Opinion
D071364
10-11-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN BRIZUELA, Defendant and Appellant.
Law Office of Patrick Morgan Ford and Patrick Morgan Ford for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN317396-4) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Conditionally reversed and remanded with directions. Law Office of Patrick Morgan Ford and Patrick Morgan Ford for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
In 2013, four teenagers were victims of a gang shooting at Libby Lake Park in Oceanside, California. Two of the four, 13-year-old Melanie V. and 15-year-old Edgar S., died from gunshot wounds at the scene. The other two teenagers, 17-year-old David G. and 17-year-old David R., sustained gunshot wounds, but survived. Weeks after the shooting, police received a tip confirming their suspicion that members of the Vista Home Boys gang were responsible for the crime. Kevin Brizuela, who was 17 years old at the time, and three other members of the gang were arrested and charged with two counts of first degree murder and two counts of premeditated attempted murder, as well as gang and firearm enhancements. The other defendants, Santo Diaz, Martin Melendrez, and Michael Zurita, eventually entered into plea agreements with the District Attorney, while Brizuela faced trial.
After trial, the jury convicted Brizuela of two counts of premeditated first degree murder (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(3)) and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a), 189). The jury also found true the allegations that Brizuela committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that he vicariously discharged a firearm, proximately causing great bodily injury or death in the commission of the offenses (§ 12022.53, subds. (d) & (e)(1)). Brizuela was sentenced to prison for an aggregate term of 100 years to life.
Subsequent statutory references are to the Penal Code unless otherwise noted.
Brizuela challenges his conviction on several grounds. He contends (1) the court improperly allowed the prosecution's gang expert to testify about case-specific hearsay; (2) the court improperly admitted hearsay statements of codefendant Diaz on a theory of adoptive admissions; (3) the court failed to adequately instruct the jury on the natural and probable consequences theory of aiding and abetting with respect to the charges of premeditated attempted murder; and (4) the court failed to conduct a sufficient hearing on alleged juror misconduct. We reject each of these arguments.
Brizuela also asserts that because he committed the crimes when he was 17, under Proposition 57 he is entitled to a hearing to determine if he should have been charged as a juvenile. The People concede a conditional reversal and remand is necessary on this ground. Brizuela also asserts remand for resentencing is necessary to allow the trial court to exercise its discretion under newly enacted section 12022.53, subdivision (h), which provides the court with discretion to strike a firearm enhancement.
We agree with the Attorney General's concession and, accordingly, conditionally reverse Brizuela's conviction and sentence. We also agree with Brizuela that if the case is transferred back to criminal court, he is entitled to a new sentencing hearing so the court can consider whether to strike the firearm enhancements. Accordingly, the case is remanded to the juvenile court for a determination of Brizuela's fitness for treatment within the juvenile justice system. (Welf. & Inst. Code, § 707.) If the court finds juvenile treatment is appropriate, the juvenile court is ordered to treat Brizuela's conviction as a juvenile adjudication and impose an appropriate juvenile disposition after a dispositional hearing. If Brizuela is found unfit for juvenile court treatment, his conviction will be reinstated and his sentence vacated and remanded for resentencing to allow the court to consider whether the firearm enhancements should be stricken under section 1385.
BACKGROUND
A. The Prosecution's Case
On March 13, 2013, David G., Edgar, Melanie, and David R. were hanging out, drinking and smoking, at Libby Lake Park in Oceanside, California. The park was in an area claimed by the Mesa Locos (Mesa) gang, which David R. had some affiliation with. The four teenagers sat on a couch in the park, located at the top of the hill, which was a memorial to a Mesa gang member who was shot to death two years earlier. Just before 9:00 p.m., David G. heard footsteps coming up the hill. Moments later, gunfire erupted and David G. saw four people, seven to ten feet away from him. Two of the individuals were holding what appeared to be handguns and shooting rapidly and repeatedly at him and his friends. At some point in the shooting, David G. heard someone yell "Fuck Mesa." David R. did not know how many gunmen there were, but remembered seeing flashes coming from two guns.
Ronnie T. and his girlfriend, who lived in an upstairs apartment near Libby Lake Park, stepped out onto their balcony just before the shooting began. When Ronnie and his girlfriend heard the gunfire erupt, they ran downstairs toward the park. Ronnie saw four individuals running down the hill, out of the park, and jump into a gray Toyota Tacoma truck and drive away. Ronnie estimated he heard 16 or 18 gunshots and saw two of the four people carrying rifles, one with a scope.
The police eventually determined that the truck belonged to Melendrez's girlfriend.
Melanie and Edgar died at the scene. Melanie was shot 13 times, with fatal wounds to her brain and cervical spine. Edgar was shot eight times, with fatal wounds to his heart, left lung, and spleen. David G. was taken by ambulance to the hospital where trauma physicians discovered he had been shot twice in the head, once in the abdomen, once in the chest, and once in each arm. David G. was in a medically induced coma for 10 days and spent over three weeks in the hospital. David R. suffered less serious injuries, but was struck by two bullets in his upper left back and his lower right thigh.
After the shooting, Oceanside police recovered 22 bullet casings from the scene, including eight .9-millimeter rounds and fourteen .22-caliber rounds. The results of forensic testing showed that the casings had been fired from three different guns, two .9-millimeter firearms and one .22-caliber firearm. Police also found three .9-millimeter projectiles and two .22-caliber projectiles.
On March 22, 2013, the police received their first substantial lead in the case when a car that Andrea B. was riding in was stopped for a traffic violation. County of San Diego Deputy Sheriff Michael Astorga, who was assigned to the Vista Station Gang Enforcement Team and had interacted with Andrea before, was at the stop when Andrea approached him. Andrea was upset and told Astorga about the murders and that she thought she knew who committed them. Andrea then identified three men, Brian B. (who she referred to as "Bodie"), Brizuela ("Kevi"), and Elvis M. ("Solo"), as the perpetrators of the murders. She also told Astorga a fourth man, Sal B. ("Booboo"), might have been involved.
Astorga contacted the Oceanside police who were investigating the murders and told them about Andrea's statements. Oceanside Police Officer Bryan Campagna interviewed Andrea that day, and several days later Oceanside detectives Mark Lavake and Doug Baxter conducted an additional interview. Andrea told police that Brian, who she was close with, had a grievance with a Mesa gang member called "Boxer." Andrea worked at a transmission shop owned by Brian's father, and Brian and his friends, who were known members of the Vista Home Boys gang, hung out at the transmission shop regularly.
Andrea told police that a day or two before the shooting she was hanging out with Brian, Brizuela, Elvis, and Santo Diaz (who used the moniker "Rival") at an apartment and overheard them talking about Boxer and how they were going to "get these motherfuckers, fuck them, fuck Mesa." Andrea told the detectives that Brian and the others were worried that Boxer or another Mesa gang member was out to kill them. Andrea also told police about other, earlier altercations involving Mesa, including that Brizuela "almost got jumped" by Mesa gang members at a transit center near the transmission shop and that Mesa gang members shot at the transmission shop from a car while she, Brian, Diaz, and another Vista Home Boys gang member were standing outside.
The night of the shooting, Andrea was inside a van parked at the shop when Diaz, Brian, Elvis, and Brizuela arrived wearing bulletproof vests. Andrea stated that Brian had been carrying a .9-millimeter handgun and Diaz had a .22-caliber rifle with a scope on it. Andrea could not remember for certain, but thought that Brizuela was carrying a .380-caliber gun. The four men were hyped up and Andrea heard them say let's "go and fuck up Mesa and get ready, just get ready, suited and booted . . . . " Andrea understood them to mean that they were preparing to go out on a mission to attack rival Mesa gang members.
Andrea also told police that she heard Brian, Diaz, and Brizuela return to the transmission shop early the next morning, around 4:00 a.m., and heard Brian and Diaz say Mesa had it coming, but that they were afraid of retaliation for their actions. Andrea also heard them talk about the type of ammunition they used. Andrea told detectives that Brian, Diaz, and Brizuela were carrying the weapons when they returned to the transmission shop, but that the guns were wrapped in towels or bandanas.
A week later, Andrea was back in another apartment in the same complex where she first heard Brian and the other men discussing their animosity toward Mesa. Brizuela, Brian, Diaz, and Elvis were also there. Andrea told police that Diaz was bragging about the murders and also talking about the type of bullets they had used. Andrea said that Brian was concerned about retaliation, especially if the shooting was considered a drive-by, which would have special significance because the Mexican Mafia to which both Mesa and the Vista Home Boys owed an allegiance had outlawed drive-by shootings.
Andrea also told police that Elvis and Brizuela were always together, and Brian and Diaz were always together. Because of the events she witnessed and statements she overheard, and because the men ran together, Andrea believed these four men were the perpetrators of the crime.
On March 29, 2013, Elvis was arrested and interviewed by a Federal Bureau of Investigation special agent. Elvis told the agent, Josafina Regula, that he was at work the night of the murders and law enforcement officials quickly verified Elvis's alibi. Elvis told Regula that another member of the Vista Home Boys gang (who was in jail) had called Elvis's brother (who was also a member of the gang), and told him that their "neighborhood fucked up," and that they needed to stay on their toes, "post up," and "watch out."
Elvis also told Regula that Diaz had called him the day of the shooting to see if Elvis wanted to participate, and Elvis told Diaz he had to work. Elvis said that another Vista Home Boys gang member, Martin Melendrez, had some guns stored in a guitar case and that Melendrez had asked Elvis if he could obtain .9-millimeter rounds or .22-caliber ammunition. Elvis eventually told Regula that Brizuela, who was Elvis's close friend, called Elvis after the shooting and admitted that he was involved. Brizuela also told Elvis the other perpetrators were Zurita, Melendrez, and Diaz. Later, Brizuela told Elvis that his accomplices were "tripping on" him because he talked to Elvis about the shooting.
At trial, in addition to the witness testimony about these events, the prosecution introduced testimony concerning Brizuela's affiliation with the Vista Home Boys street gang and cell tower records reflecting the movement of Brizuela's cell phone on the night of the murders. San Diego Sheriff's Deputy Jack Reed told jurors he had contact with Brizuela on several occasions, including on March 27, 2013, and knew Brizuela to be an associate of the Vista Home Boys. Oceanside police also searched Brizuela's bedroom and discovered items indicating his gang affiliation, including a three-ring binder with "V-H-B" and "X-3" etched on its cover, and a belt buckle in the shape of a "V."
San Diego County Sheriff's Detective Jonathan Fecteau, who was assigned to the North County Regional Gang Task Force and was involved in the investigation of the shooting, testified as a gang expert for the prosecution. He stated that the Vista Home Boys are a criminal street gang with upwards of 180 members, who are involved in drug sales and other crimes. Fecteau also opined that Brizuela was a member of the gang. Fecteau based his opinion, in part, on the evidence collected from Brizuela's bedroom, explaining that V-H-B stands for Vista Home Boys, and that X-3 is a reference to the thirteenth letter in the alphabet, M, which is known to represent the Mexican Mafia. Fecteau also referred to other writing contained in Brizuela's binder that showed his involvement in gang banging.
Fecteau also testified that on January 19, 2016, the date Brizuela's trial began, prosecutors gave him a small piece of paper with microscopic writing on it, known as a "kite," that was intercepted by jail officials from the cell where Brizuela was held. The kite was addressed to known gang members and said that a "trooper from [Vista Home Boys was] going to be going to court for the next two weeks and so he will be in charge of moving the mail." Fecteau explained that "moving the mail" refers to moving "kites, intel, drugs" to and from the jail and that individuals selected for this role are trusted members of the gang.
Detective Lavake testified that he had subpoenaed the records for the cell phones belonging to Brizuela, Melendrez, Zurita, Elvis, and Brian. The records showed that between 11:30 a.m. and 11:00 p.m. on March 13, 2013, Brizuela exchanged 55 calls or text messages with Diaz and those four other individuals. Zurita called Brizuela at 8:29 p.m., and Brizuela returned the call one minute later. The calls and text messages among the men then stopped until 8:54 p.m., when Melendrez made a phone call to his uncle. At that moment Melendrez was at the intersection of College Boulevard and Highway 76, about two miles from Libby Lake Park. Brizuela's phone records showed him moving from Vista north toward Oceanside, beginning at 8:07 p.m. to 8:30 p.m., when he had his final contact with Zurita and was about five and a half miles south of Libby Lake Park.
B. The Defense Case
To refute the cell phone record evidence, Brizuela's defense introduced the testimony of cell phone forensics and cell tower data analyst Robert Aguero. Aguero called into question the prosecution's analyst's conclusions concerning the movement of Brizuela's phone the night of the shooting. Aguero opined that the cell phone's signal could switch towers even if the phone did not change locations because cell tower coverage overlaps. He also noted that there are six cell towers between the tower that transmitted Brizuela's last call to Zurita before the shooting and Libby Lake Park, and none of those towers was hit by Brizuela's cell phone. Aguero conceded, however, that there was no cell tower information that showed where Brizuela's phone was located between 8:34 p.m. and 11:04 p.m. that night.
C. Verdict and Sentencing
After the conclusion of the trial, the jury found Brizuela guilty of two counts of premeditated first degree murder (§§ 187, subd. (a), 190.2, subd. (a)(3)) and two counts of premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a), and 189). The jury also found true the allegations that Brizuela committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that he discharged, or vicariously discharged, a firearm, proximately causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)).
The trial court sentenced Brizuela to an aggregate term of 100 years to life in prison, consisting of consecutive terms of 25 years to life for each count of first degree murder, plus 25 years to life for each corresponding firearm enhancement. The court imposed concurrent terms of seven years to life for each count of premeditated attempted murder, plus 25 years to life for each corresponding firearm enhancement. The court also imposed and stayed terms of 15 years to life for the gang enhancements on all four counts. Brizuela timely appealed.
DISCUSSION
As stated, Brizuela challenges the conviction on several grounds. He argues (1) Fecteau improperly testified about hearsay statements that included case-specific facts; (2) the trial court violated the Aranda/Bruton rule by admitting hearsay statements of Diaz; (3) the court did not provide adequate jury instructions with respect to the natural and probable consequences theory of aiding and abetting premeditated attempted murder; and (4) the court failed to conduct a sufficient hearing concerning alleged juror misconduct. Brizuela also challenges his conviction based on two recently enacted laws, Proposition 57 and Senate Bill 620.
I
Gang Expert Testimony
Brizuela argues that the testimony of the prosecution's gang expert, Jonathan Fecteau, included case-specific hearsay that was admitted in violation of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution.
A. Legal Background
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) provides a framework for analyzing the admissibility of expert testimony alleged to be inadmissible hearsay. "While lay witnesses are allowed to testify only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given greater latitude." (Sanchez, at p. 675.) In Sanchez, the Supreme Court noted that historically, "an expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds." (Id. at p. 676.) "By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge." (Ibid.) Sanchez recognized the line between these two categories had become blurred and held that "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Id. at pp. 682-683.)
Thus, "[l]ike any other hearsay evidence, [such statements] must be properly admitted through an applicable hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 684.) "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Id. at p. 685.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
Further, if the out-of-court statement is testimonial and offered against the defendant in a criminal prosecution, Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny govern its admissibility. (Sanchez, supra, 63 Cal.4th at p. 687.) Specifically, the confrontation clause bars the use of out-of-court testimonial statements offered to prove the truth of the matter asserted unless there has been a showing of unavailability and the defendant had a prior opportunity for cross-examination. (Crawford, at pp. 62, 68.) "Testimonial 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, at p. 689.) "Violation of the Sixth Amendment's confrontation right requires reversal of the judgment against a criminal defendant unless the prosecution can show 'beyond a reasonable doubt' that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24 [(Chapman)]; see People v. Geier (2007) 41 Cal.4th 555, 608.)" (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.)
B. Brizuela's Confrontation Clause Rights Were Not Violated
Brizuela has failed to present a clear argument, with appropriate citations to the record, supporting his claim that Fecteau's testimony violated Brizuela's confrontation clause rights. Rather than specifically delineating what testimony he finds objectionable, and on what grounds, Brizuela generally contends testimonial hearsay was admitted in violation of Sanchez. Brizuela's entire "legal analysis" on this issue consists of the following:
The People argue that Brizuela forfeited this claim, even though the trial occurred before Sanchez was decided, by failing to object to Fecteau's testimony on this basis. We disagree. "Because the experts' testimony was unobjectionable under the law prevailing at the time of the hearing, any objection would presumably have been overruled. ' "[R]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." ' [Citation.] In addition, parties are generally not required to anticipate rulings that significantly change the prevailing law." (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507 [Fn. omitted].)
"The gang expert testified that VHB was a criminal street gang for purposes of section 186.22, subd. (b), and that appellant was an active member of the gang. The expert based his opinion on case-specific hearsay referring to police contact cards completed by other officers, conversations with other members, his 'general knowledge of gangs' which he applied to appellant, and his limited contacts with appellant. Under Sanchez, this evidence was inadmissible unless it fell within a hearsay exception, which it did not. It was offered for its truth, not admissible under any hearsay exception, and was therefore inadmissible. [¶] The court in Sanchez emphasized that the type of evidence relied upon here is 'testimonial' as it involves statements by a non-testifying witness, thus implicating the Sixth Amendment confrontation clause. (People v. Sanchez, supra, 63 Cal.4th at p. 694.)"
Brizuela refers to other portions of Fecteau's testimony that he claims are objectionable in the "background" section of his opening brief; those portions are discussed post at footnote 5.
Based on our review of the record, we conclude Brizuela's rights under the confrontation clause were not violated and there is no basis to reverse the gang enhancements.
First, no Sanchez error occurs when a gang expert testifies based on personal knowledge. (Sanchez, supra, 63 Cal.4th at p. 685 [expert witnesses "can rely on information within their personal knowledge"]; People v. Iraheta (2017) 14 Cal.App.5th 1228, 1248.) Here, Fecteau gave his opinion that Brizuela was a member of the gang and explained to the jury that his opinion was based on his familiarity with the Vista Home Boys and other local gangs from his own interactions with gang members, first as a deputy sheriff assigned to the Vista jail, and later both as a patrol officer in Vista and a detective in the gang unit of the Vista sheriff's station. Fecteau testified that he had personally investigated crimes committed by Vista Home Boys gang members, and had reviewed evidence recovered at the scenes of those crimes. Fecteau also reviewed evidence retrieved from Brizuela's bedroom suggesting he was a member of the Vista Home Boys and involved in gang banging.
Second, although Fecteau mentioned he had discussions with other law enforcement officials about the gang's activity, Sanchez is not implicated because Fecteau did not "present, as facts, the content of testimonial hearsay statements." (Sanchez, supra, 63 Cal.4th at p. 685.) Contrary to Brizuela's assertion, none of Fecteau's testimony concerning the basis for his opinion about Brizuela's gang affiliation conveyed any case-specific hearsay statement by another police officer. Rather, Fecteau's testimony consisted of his own personal knowledge combined with general background information. (See Sanchez, at pp. 685-686 ["Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests."].)
As an example of improper case-specific hearsay, Brizuela states that Fecteau "talked about the gang's association with the Mexican Mafia. He speculated on how members might plan the shooting at Libby Lake Park, where they park the getaway car, and how they would leave quickly. He further suggested that the gang members would dispose of any weapons used in the crime." Fecteau, however, was not relaying case-specific facts that were not otherwise already admitted into evidence. Rather, the prosecutor was eliciting Fecteau's opinion that if the crime was perpetrated as the prosecution theorized, it was consistent with his knowledge about how a gang going into a rival gang's territory to retaliate would operate. (See Sanchez, supra, 63 Cal.4th at p. 686 [expert cannot rely on case-specific hearsay unless it is "independently proven by competent evidence"]; id. at p. 698 [expert may still rely on general "background testimony about general gang behavior or descriptions of the . . . gang's conduct and its territory," which is relevant to the "gang's history and general operations"].)
Brizuela also gives the example that "Fecteau understood a 'green light' had been issued by the Mexican Mafia based on the killing of two young people at the park, but, for some unknown reason, had been recalled." (The "green light" would allow a driveby shooting targeting the perpetrators of the instant crime.) Brizuela's citation, however, is not to testimony, but to the parties' discussion with the court about whether the prosecution could elicit testimony from Fecteau that the kite showed that Brizuela was working on returning credibility to the Vista Home Boys in order to cancel the "green light" by acting as a mail carrier for the Mexican Mafia. The court ruled that the prosecution could not elicit such testimony.
Finally, Fecteau's opinion that the crimes were committed for the benefit of the gang was based on hypothetical questions, and did not include any testimonial hearsay. As Brizuela himself points out, the prosecutor described the facts that had been introduced through other witnesses about the crime and then asked Fecteau if those facts were consistent with an act of retaliation that "would work to the benefit of the gang by enhancing its reputation among other gangs." As Sanchez explained, this type of hypothetical questioning does not run afoul of the confrontation clause. (Sanchez, supra, 63 Cal.4th at p. 684 ["[T]he evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner."].)
In sum, Brizuela has not shown that Fecteau's testimony included any case-specific hearsay in violation of his rights under the confrontation clause.
C. Any Error Was Harmless
Brizuela contends the alleged Sanchez error requires reversal, citing People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran) for the principle that "[t]he potentially inflammatory impact gang evidence can have on a jury has long been recognized in California courts." Brizuela's reliance on Albarran is misplaced, and any error in admitting case-specific hearsay was harmless in this case.
For purposes of this analysis, we assume some testimonial hearsay statements were admitted despite Brizuela's failure to delineate what (if any) portions of Fecteau's testimony were objectionable on that ground. We conclude any confrontation clause violation was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
In Albarran, the prosecution introduced gang evidence that was inflammatory and had no connection to the charged offenses. (Albarran, supra, 149 Cal.App.4th at p. 227.) The court found that admission of gang evidence with "no connection to [Albarran's] crimes" was so prejudicial "that it raised the distinct potential to sway the jury to convict regardless of Albarran's actual guilt." (Id. at pp. 227-228.) Albarran was "one of those rare and unusual occasions where the admission of evidence . . . violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232.) The prosecutor introduced evidence of the defendant's membership in a gang, but then engaged in "overkill" by "consum[ing] the better part of an entire trial day" with one officer's testimony about the gang. (Id. at p. 228 & fn. 10.) The officer testified about a threat the gang had made to kill police officers, and referred to the Mexican Mafia. (Id. at pp. 227-230.) In the present case, by contrast, the evidence presented through Fecteau was not "irrelevant to the underlying charges"—it was relevant and probative to whether Brizuela committed the crimes for the benefit of a criminal street gang. That testimony was limited and focused, not inflammatory or prejudicial, and it did not render Brizuela's trial fundamentally unfair.
In any event, any error in this case was harmless. Even apart from any alleged testimonial statements erroneously admitted through Fecteau, the evidence of Brizuela's gang membership and the gang-related nature of the crime was strong. Deputy Reed had personal knowledge of Brizuela's membership in the Vista Home Boys gang, evidence of Brizuela's gang affiliation was found during a search of his bedroom, Andrea overheard Brizuela and other Vista Home Boys gang members discussing their desire to "get these motherfuckers, fuck them, fuck Mesa," a Mesa gang member had previously almost "jumped" Brizuela, the crime was committed at a location that served as a memorial to a Mesa gang member who had previously been shot, and one of the victims of the shooting heard one of the four shooters yell "Fuck Mesa" during the crime. Thus, even if considered testimonial hearsay, Fecteau's testimony based on the contents of "police contact cards completed by other officers" or some undescribed "conversations with other members" was harmless beyond a reasonable doubt.
II
Hearsay Statements of Codefendant Diaz
Brizuela argues the court erred by admitting Andrea's testimony that she heard Diaz bragging on two separate occasions about his involvement in the shooting in Brizuela's presence and Brizuela remained silent. Specifically, Brizuela asserts the prosecution did not provide a sufficient evidentiary foundation to support the trial court's admission of the statements under the adoptive admission exception to the hearsay rule. Brizuela further contends the admission of the statements violated his due process rights under Aranda/Bruton, which limits the prosecution's ability to introduce out-of-court statements of a codefendant that inculpate the defendant. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1986) 391 U.S. 123.)
A. Additional Background
The hearsay exception for adoptive admissions under Evidence Code section 1221 provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." Thus, " ' "[w]hen a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence." ' " (People v. Jennings (2010) 50 Cal.4th 616, 661.)
"Whether the statement constitutes an adoptive admission is 'determined upon the facts and circumstances therein presented.' " (People v. Roberts (2011) 195 Cal.App.4th 1106, 1121.) "For a statement to be an adoptive admission, there must be sufficient evidence to sustain a finding that (1) the defendant heard and understood the statement under circumstances normally calling for a response, and (2) the defendant adopted the statement as true by the defendant's words or conduct." (People v. Sample (2011) 200 Cal.App.4th 1253, 1262.) The trial court may admit the proffered evidence of an adoptive admission if the evidence supports a reasonable inference that the preliminary facts exist, then the jury must determine whether an adoptive admission was actually made. (People v. Edelbacher (1989) 47 Cal.3d 983, 1011 (Edelbacher).)
When the adoptive admission is a testimonial statement by a codefendant, the Aranda/Bruton rule is also in play. Under that rule, the prosecution cannot introduce out-of-court statements of a codefendant that inculpate a nondeclarant defendant if those statements would not be admissible against the nondeclarant defendant in a severed trial. (People v. Fletcher (1996) 13 Cal.4th 451, 455 (Fletcher); People v. Morales (1968) 263 Cal.App.2d 368, 374.) The rationale for the rule is that even with a cautionary instruction the jury cannot reasonably be expected to disregard the declarant defendant's statement in determining the guilt or innocence of the nondeclarant defendant, resulting in a violation of the nondeclarant defendant's right to confront witnesses against him. (Fletcher, at p. 455; People v. Brawley (1969) 1 Cal.3d 277, 286.)
Critically, a nontestifying defendant's statement that is not testimonial does not implicate the confrontation clause concerns embodied by the Aranda/Bruton rule. (People v. Arceo (2011) 195 Cal.App.4th 556, 571-572.) If the statement is not testimonial, "the issue is simply whether the statement is admissible under state law as an exception to the hearsay rule." (People v. Garcia (2008) 168 Cal.App.4th 261, 291.) Although no precise definition of what "constitutes a 'testimonial' statement" exists, the United States Supreme Court has stated that "at a minimum, testimonial statements include 'prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations.' " (People v. Gutierrez (2009) 45 Cal.4th 789, 812 (Gutierrez).) As the California Supreme Court has explained, "the confrontation clause addressed the specific concern of '[a]n accuser who makes a formal statement to government officers' because that person 'bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.' " (Gutierrez, at pp. 812-813, quoting Crawford, supra, 541 U.S. at p. 51.)
"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717.) We will not disturb the trial court's exercise of discretion except upon a showing that it "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) If there is error in the routine application of state evidentiary law that does not implicate a defendant's constitutional rights, it "is properly reviewed for prejudice under People v. Watson [(1956)] 46 Cal.2d [818] 836 [(Watson)]." (People v. McNeal (2009) 46 Cal.4th 1183, 1203.)
Under the Watson harmless error test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.) If, however, the defendant's constitutional rights are implicated such that the error renders the trial fundamentally unfair, the error is reviewed under the beyond a reasonable doubt standard of Chapman, supra, 386 U.S. 18. Under this test, the People must "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Id. at p. 24.)
B. Analysis
Before trial, the court ruled that Andrea would be permitted to testify regarding statements made in Brizuela's presence on four occasions based on its finding that the statements fell under the adoptive admission exception to the hearsay rule: (1) statements made before the shooting at the apartment; (2) statements made before the shooting at the transmission shop while Andrea was in a van; (3) statements made the morning after the shooting at the transmission shop; and (4) statements made after the shooting at an apartment. The court conditioned the admission of the testimony on the prosecution first establishing a sufficient foundation for the statements.
Brizuela now contends the prosecution failed to meet its burden with respect to Andrea's testimony concerning the third and fourth occasions. With respect to the statements at the transmission shop in the early morning after the shooting, he contends the prosecution never established where Andrea was when she heard the statements, whether she saw the speaker, exactly what was said, or where Brizuela was in relation to the speaker. Likewise, with respect to the statements at the apartment, Brizuela asserts that the district attorney did not establish where Andrea or Brizuela were in relation to Diaz, or whether the conversation continued after Andrea left the apartment creating the possibility that Brizuela later disclaimed Diaz's alleged bragging about the crime.
As the Attorney General points out, the record does not support Brizuela's claims. At trial, Andrea testified that she both saw and heard Brian, Diaz, and Brizuela return to the transmission shop in the early hours of the morning and "mostly" Brian and Diaz were "talking about . . . what [Mesa] had coming. That they were afraid of getting green lighted because they don't know if it was a drive-by, considered a drive-by." This evidence was sufficient to create a reasonable inference that Brizuela had an opportunity to deny the statements, but did not do so. (See Edelbacher, supra, 47 Cal.3d at p. 1011.)
Similarly, in her initial interview with law enforcement, which was admitted into evidence, Andrea indicated that at the apartment on the day in question, she saw Brizuela, Elvis, Diaz, and another man gather in a bedroom inside the apartment. The door to the room was open and she could "hear everything" that was being said. This evidence created an inference that Brizuela heard Diaz and the others expressing concern that they were going to be "green lighted," i.e. attacked by other gangs, because they killed two young teenagers. It also created a reasonable inference that Brizuela's silence was a tacit admission of his participation. Whether that silence was an admission was properly presented to the jury for its determination.
We also reject Brizuela's claim that the statements were admitted in violation of his rights under the confrontation clause as expressed by the Aranda/Bruton rule. The statements at issue were made by accomplices in the crime to one another or to other members of the Vista Home Boys gang, at private locations. The statements are not testimonial and do not raise the "concern of '[a]n accuser who makes a formal statement to government officers' because that person 'bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.' " (Gutierrez, supra, 45 Cal.4th at pp. 812-813, quoting Crawford, supra, 541 U.S. at p. 51.) Where, as here, the challenged statements are made to third parties, they are "unquestionably nontestimonial." (People v. Cortez (2016) 63 Cal.4th 101, 129.) Accordingly, "binding high court precedent requires us to hold that the Sixth Amendment is inapplicable and that defendant's confrontation clause claim therefore fails." (Ibid.)
III
Natural and Probable Consequences Doctrine of Aiding and Abetting
Premeditated Attempted Murder
Brizuela next asserts that his convictions for premeditated attempted murder must be reversed because the court failed to instruct the jury that a premeditated attempted murder specifically, rather than any attempted murder generally, was a natural and probable consequence of the uncharged target offense of aggravated assault. Although People v. Favor (2012) 54 Cal.4th 868 (Favor) holds that such an instruction is not required, Brizuela contends that Alleyne v. United States (2013) 570 U.S. 99 (Alleyne) and People v. Chiu (2014) 59 Cal.4th 155 (Chiu) call that holding into doubt. The People respond these cases do not address the question presented here, and thus Favor requires this court to reject Brizuela's claim. A similar claim is pending review by the California Supreme Court in People v. Mateo review granted May 11, 2016, S232674.
A. Additional Background
As noted, the jury convicted Brizuela of two counts of premeditated attempted murder. In her closing argument, the district attorney presented the jury with two primary theories of guilt—either Brizuela was one of three shooters, or he directly aided and abetted the crimes as the lookout for Melendrez, Diaz, and Zurita. She also explained the natural and probable consequence theory of aiding and abetting to the jury, stating, "[i]f, however, you don't believe that [Brizuela] had any malice when he went there, that [Brizuela] had no intent to kill when he aided and abetted this shooting, that he just wanted to aid and abet, you know, a shooting, then the alternative theory is what's call[ed] natural and probable consequences." The prosecutor continued, stating if the jury were to find that Brizuela "had no malice when he went to act as a lookout to shoot up Mesa's park and that he only intended to aid and abet and be a lookout for the mere [uncharged crime] of assault with a firearm, then he [is] still guilty of murder because he intended to aid and abet an assault with a firearm and it's reasonably foreseeable that when you run to the top of a hill and fill a 4-foot couch full of lead where people are sitting, it's reasonably foreseeable that someone could get killed in that scenario."
After the close of evidence, the court instructed the jury on direct aiding and abetting principles and on the natural and probable consequences theory of aiding and abetting. The jury was instructed that "under this theory, before you may decide whether the defendant is guilty of murder and attempted murder, you must decide whether he is guilty of assault with a firearm or assault by force likely to produce great bodily injury. [¶] To prove that the defendant is guilty of murder and attempted murder, the People must prove that: [¶] 1. The defendant is guilty of assault with a firearm or assault by force likely to produce great bodily injury; [¶] 2. During the commission of assault with a firearm or assault by force likely to produce great bodily injury a co-participant in that assault with a firearm or assault by force likely to produce great bodily injury committed the crime of murder and attempted murder; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the murder and attempted murder was a natural and probable consequence of the commission of the assault with a firearm or assault by force likely to produce great bodily injury."
The instruction was modeled on CALCRIM No. 403.
The instruction also provided, "If you decide that the defendant aided and abetted one of these crimes and that murder and attempted murder was a natural and probable consequence of that crime, the defendant is guilty of murder and attempted murder. You do not need to agree about which of these crimes the defendant aided and abetted. [¶] If you find the defendant guilty beyond a reasonable doubt of murder as charged in Counts One and Two under this theory, you shall set the degree of murder as Second Degree Murder."
B. Analysis
"When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." (Chiu, supra, 59 Cal.4th at p. 167.) If there is instructional error, the conviction for attempted premeditated murder must be reversed, "unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted" the premeditated attempted murder. (Ibid.)
Section 31, which governs aider and abettor liability, provides that "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed." A defendant is a direct aider and abettor of a crime if " ' "he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." ' " (Chiu, supra, 59 Cal.4th at p. 171.)
"Indirect liability of the aider and abettor, under the natural and probable consequences rule, is more complex, requiring a five-step process. The jury must find that 'the defendant (1) with knowledge of the confederate's unlawful purpose; and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s); (3) aided, promoted, encouraged, or instigated the commission of the target crimes.' [Citation.] The jury must also find that '(4) the defendant's confederate committed an offense other than the target crime(s); and . . . (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated.' [Citation.]" (Chiu, supra, 59 Cal.4th at pp. 171-172, italics omitted.)
"Under the natural and probable consequences rule, liability 'is "derivative," that is, it results from an act by the perpetrator to which the accomplice contributed.' [Citation.] A crime is the natural and probable consequence of an intended or target crime if its commission by the perpetrator was reasonably foreseeable. 'The . . . question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' [Citation.] 'A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case . . . and is a factual issue to be resolved by the jury.' " (Chiu, supra, 59 Cal.4th at p. 172, italics omitted.)
Under section 664, subdivision (a), a "defendant convicted of attempted murder is subject to a determinate term of five, seven or nine years." (Favor, supra, 54 Cal.4th at p. 875.) "However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 664, subd. (a).) In Favor, the California Supreme Court held that "the jury need not be instructed that a premeditated attempt to murder must have been a natural and probable consequence of the target offense," which in Favor was robbery. (Favor, at pp. 871-872.)
The defendant in Favor argued that his conviction for premeditated attempted murder could not stand because the jury was not instructed that it "had to find, not only that the attempted murder was a natural and probable consequence of the robber[y], but also that the perpetrator's willfulness, deliberation, and premeditation were natural and probable consequences." (Favor, supra, 54 Cal.4th at p. 874.) Relying on two Court of Appeal decisions, People v. Hart (2009) 176 Cal.App.4th 662 and People v. Woods (1992) 8 Cal.App.4th 1570, the defendant asserted that " 'a reasonable jury could have concluded that the actual perpetrator [the companion] was guilty of attempted premeditated murder but that the aider and abettor [the defendant] was guilty of no more than attempted unpremeditated murder." (Favor, at p. 876, italics added.) Thus, "the trial court should have instructed that the jury could find the aider and abettor guilty of the nontarget crime" of unpremeditated attempted murder "even though the actual perpetrator was guilty of" premeditated attempted murder. (Ibid.)
The Supreme Court rejected these arguments as a matter of statutory interpretation. The court first noted that, unlike murder, attempted murder is not divided into first and second degrees. Then, relying on its earlier opinion in People v. Lee (2003) 31 Cal.4th 613 (Lee), the court held that the attempted murder statute, section 664, subdivision (a), " 'must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted willfully and with deliberation and premeditation, even if he or she is guilty as an aider and abettor.' " (Favor, supra, 54 Cal.4th at p. 877.)
The court noted that in Lee it had held that "the Legislature would have been justified in refusing to extend section 664(a)'s penalty provision to an aider and abettor who fails to personally act with premeditation, but did not." (Favor, supra, 54 Cal.4th at p. 877.) Lee also "commented in dictum that 'where the natural-and-probable consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy. In light of such a possibility, it would not have been irrational for the Legislature to limit section 664(a) only to those attempted murderers who personally acted willfully and with deliberation and premeditation. But the Legislature has declined to do so." (Favor, at p. 878.)
Favor endorsed this dictum, holding explicitly that section 664, subdivision (a) applies to aiders and abettors prosecuted under the natural and probable consequences doctrine. "Because section 664(a) 'requires only that the attempted murder itself was willful, deliberate, and premeditated (Lee, supra, 31 Cal.4th at p. 626), it is only necessary that the attempted murder 'be committed by one of the perpetrators with the requisite state of mind.' " (Favor, supra, 54 Cal.4th at p. 879.) Accordingly, "[u]nder the natural and probable consequences doctrine, there is no requirement that an aider and abettor reasonably foresee an attempted premeditated murder as the natural and probable consequence of the target offense. It is sufficient that attempted murder is a reasonably foreseeable consequence of the crime aided and abetted, and the attempted murder itself was committed willfully, deliberately and with premeditation." (Id. at p. 880, italics added.)
Favor also noted that "punishment need not be finely calibrated to the criminal's mens rea" and "takes account of other valid penological considerations, such as the defendant's conduct, the consequences of such conduct, and the surrounding circumstances, including the fact that the murder attempted was willful, deliberate, and premeditated." (Favor, supra, 54 Cal.4th at p. 878.)
Brizuela argues this court should decline to follow, or "disapprove[]" of, Favor because its holding has been called into question by Alleyne and Chiu. We decline to do so.
Building on its landmark decision in Apprendi v. New Jersey (2000) 530 U.S. 466, in Alleyne, the United States Supreme Court held that any fact that increases the mandatory minimum penalty for a crime qualifies as an " 'element' " of the crime that must be submitted to the jury and found true beyond a reasonable doubt. (Alleyne, supra, 570 U.S. at p. 107.) One year after Alleyne was decided, the California Supreme Court held in Chiu that "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequence doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles." (Chiu, supra, 59 Cal.4th at pp. 158-159.)
In reaching its holding, Chiu distinguished Favor. (Chiu, supra, 59 Cal.4th at p. 163.) "Unlike Favor, the issue in the present case does not involve the determination of legislative intent as to whom a statute applies. Also, unlike Favor, which involved the determination of premeditation as a requirement for a statutory penalty provision, premeditation and deliberation as it relates to murder is an element of first degree murder." (Ibid., italics added.) The court also noted that Favor "expressly distinguished the penalty provision at issue there[, (§ 664, subd. (a),] from the substantive crime of first degree premeditated murder on the ground that the latter statute involved a different degree of the offense." (Ibid.)
In distinguishing Favor, the Chiu decision points to the relatively less severe punishment at stake for premeditated attempted murder: "Section 664(a) provides that a defendant convicted of attempted murder is subject to a determinate term of five, seven, or nine years. If the jury finds the premeditation allegation true, the defendant is subject to a sentence of life with the possibility of parole. ([Favor, supra, 54 Cal.4th] at pp. 876-877.) With that life sentence, a defendant is eligible for parole after serving a term of at least seven years. (§ 3046, subd. (a)(1).) On the other hand, a defendant convicted of first degree murder must serve a sentence of 25 years to life. (§ 190, subd. (a).) He or she must serve a minimum term of 25 years before parole eligibility. (§ 3046, subd. (a)(2).) A defendant convicted of second degree murder must serve a sentence of 15 years to life, with a minimum term of 15 years before parole eligibility. (§§ 190, subd. (a), 3046, subd. (a)(2).)" (Chiu, supra, 59 Cal.4th at p. 163.)
Chiu then went on to preclude the use of the natural and probable consequences doctrine to convict an aider and abettor of premeditated first degree murder. "Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime." (Chiu, supra, 59 Cal.4th at p. 164.) However, in the context of premeditated first degree murder, Chiu held "the connection between the defendant's culpability and the perpetrator's premeditated state is too attenuated to impose aider and abettor liability . . . , especially in light of the severe penalty involved and the . . . public policy concern of deterrence." (Id. at p. 166.)
We see no basis to reverse Brizuela's convictions based on existing law, including Chiu and Alleyne. Our Supreme Court in Chiu distinguished Favor in reaching its conclusion that "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine"; it did not question the continued viability of the Favor decision. (Chiu, supra, 59 Cal.4th at pp. 158-159.) Similarly, Alleyne was decided one year before Chiu, and the court in Chiu addressed Favor at length without indicating Alleyne had undermined that prior holding. (See People v. Gallardo (2017) 18 Cal.App.5th 51, 85.) Favor is dispositive, precluding Brizuela's argument that the trial court erred by failing to instruct the jury that it must find premeditated attempted murder was a natural and probable consequence of the target crime. (Favor, supra, 54 Cal.4th at p. 880.) Although our Supreme Court is currently considering the effect of Chiu and Alleyne on Favor, we remain bound by that precedent in the meantime. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
(People v. Mateo, review granted May 11, 2016, S232674.) --------
Furthermore, we need not consider the continued validity of Favor because any error in providing the instruction Brizuela advances was harmless. The evidence overwhelmingly supported the prosecutor's theory that Brizuela was either one of the gunmen himself, or that he directly aided and abetted the murders.
Brizuela was one of four gang members who killed two victims at a park by unloading at least 22 rounds of gunfire, as one of the shooters yelled "Fuck Mesa," an apparent reference to a rival gang. One victim who died (Melanie) was shot 13 times, suffering fatal wounds to her brain and cervical spine. Another victim who died (Edgar) was shot eight times, suffering fatal wounds to his heart, left lung, and spleen. Two of the other victims survived. One of these victims (David G.) was shot at close range, approximately seven to ten feet away. Results of forensic testing showed the bullets recovered from the scene were fired from three different guns. There was testimony that Brizuela previously had almost been "jumped" by Mesa gang members, and that he was discussing retaliating against the Mesa gang a day or two before the shooting. Andrea testified that (1) she saw four men, including Brizuela, the night of the shooting; (2) Brizuela was wearing a bulletproof vest; (3) she thought Brizuela was carrying a gun when she initially saw him that night, although she was not certain; and (4) Brizuela, Brian, and Diaz were carrying weapons when they returned.
On these facts, the jury could only find that Brizuela and his fellow gang members went to Libby Lake Park with the intention of killing, and the jury thus found Brizuela guilty as either a direct perpetrator or under direct aiding and abetting principles. The fact that the jury convicted Brizuela of two counts of premeditated first degree murder further demonstrates that the instruction as to the alternative natural and probable consequences doctrine, even if erroneous, was harmless error. It is "beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted" the premeditated attempted murders Brizuela was convicted of committing. (Chiu, supra, 59 Cal.4th at p. 167.) Even if Favor were ultimately overruled by our Supreme Court, the result in this case would remain the same on this record.
IV
Juror Misconduct
Brizuela next asserts that the trial court erred by denying his motion for a new trial based on juror misconduct. Specifically, he argues that the court's inquiry into the alleged misconduct at the hearing on the motion "was inadequate to make a proper credibility determination" with respect to Juror No. 6, who alleged that fellow jurors engaged in misconduct.
A. Additional Background
On July 11, 2016, Brizuela's defense filed a motion to release juror identifying information based on the allegations in a declaration it obtained from Juror No. 6. In her declaration, Juror No. 6 stated that after an initial vote in which the jury was split eight to four in favor of guilt, the jury foreperson pressured the jurors who had voted not guilty to change their votes and another juror, No. 10, looked up information on the internet about Diaz's case and shared the information with other jurors. Juror No. 6 alleged that as a result, the four jurors who had voted not guilty changed their vote. The trial court granted the motion to release juror information.
On October 3, 2016, Brizuela brought a motion for new trial under section 1181 asserting the juror misconduct described by Juror No. 6 mandated a new trial. The prosecution opposed the motion and attached the declarations of several other jurors, Nos. 1, 3, 9, and 11, to its opposition that directly refuted Juror No. 6's allegations. Juror No. 1, the foreperson, averred that during deliberations there was only one "hold-out" juror and the "jury spent an entire day deliberating upon the evidence admitted in the case with that one juror." The foreperson stated she took her role seriously and would have reported any misconduct, including outside research or reference to information outside of the record, to the trial judge. She also stated that "based on [her] prior experience [she] knew that [the jury] may be polled by the court when the verdicts were read."
At the hearing on the new trial motion, the trial court questioned Juror No. 10 and indicated it had reviewed the transcript of the defense investigator's interview of Juror No. 6, in which she explained the bases of her declaration in great detail. In response to the court's questions, Juror No. 10 denied conducting any investigation or looking up any information about the case online, and denied discussing any outside information with any other juror before the verdict was provided. After these initial questions, the court conducted a sidebar with counsel outside the presence of Juror No. 10 and asked if counsel wanted any additional questions posed. Brizuela's counsel requested that the court ask Juror No. 10 if she told Juror No. 6 the specific information about Diaz's case that Juror No. 6 alleged she had researched.
The court agreed and asked Juror No. 10 if she ever "discussed with Juror No. 6 that [she] had read an article of one of the other individuals involved in the trial." Juror No. 10 responded: "Any discussion that I remember with her is after our decision was made, and I felt that we were allowed to discuss things. . . . So if I said anything regarding other trials, it was that I felt horrible that—because I felt that the defendant was there but did not have a gun, and if he was the only one that went to jail, it would be a horrible, you know, sad situation."
After some additional questions in which Juror No. 10 denied conducting any investigation outside the trial or discussing outside information with other jurors, the trial court asked Brizuela's counsel whether he wanted another sidebar to request further questioning and he declined. Thereafter, the trial court denied the motion for a new trial. The court explained that based on its review of the transcript of the defense investigator's interview with Juror No. 6, it did not find Juror No. 6 to be credible and instead believed the accounts of the four other jurors whose declarations and testimony refuted Juror No. 6's allegations. Brizuela's counsel then requested that the court question Juror No. 6, who was present at the hearing. The court denied the request, stating that it did not believe that further inquiry would shed any additional light on the issue and reiterated its ruling denying the motion for a new trial.
B. Analysis
Brizuela does not directly challenge the court's denial of his motion for a new trial. Instead he argues that the trial court's denial of his request for additional questioning of Juror No. 6 was a prejudicial error and that his defense counsel should have been permitted to question Juror No. 10. He asserts, "The present issue is not whether substantial evidence supported the court's credibility finding. Rather, appellant argues that the court's inquiry was inadequate to make a proper credibility determination." These claims lack merit.
"The trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. [Citation.] Defendant is not, however, entitled to an evidentiary hearing as a matter of right. Such a hearing should be held only when the court concludes an evidentiary hearing is 'necessary to resolve material, disputed issues of fact.' [Citation.] 'The hearing should not be used as a "fishing expedition" to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.' " (People v. Avila (2006) 38 Cal.4th 491, 604 (Avila).)
" 'The power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court . . . .' [Citation.] 'It is an established principle that the credibility of witnesses and the weight to be given their testimony are matters within the sole province of the trier of fact . . . .' [Citation.] 'A trier of fact may accept such witnesses as he wishes and reject others'.' [Citation.] 'Where there is conflicting testimony, reviewing courts recognize that the trier of the facts has the better opportunity to judge the credibility of witnesses. In such a case the trial court's findings of fact, to the extent that they rest upon an evaluation of credibility, should be regarded as conclusive on appeal.' [Citation.] '[S]o long as the trier of fact does not act arbitrarily and has a rational ground for doing so, it may reject the testimony of a witness even though the witness is uncontradicted. [Citations.] Consequently, the testimony of a witness which has been rejected by the trier of fact cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463-1464.)
Brizuela complains that the trial court should have allowed defense counsel to question Juror No. 10 so that he could have asked her to explain "how it was that she had this controversial conversation with Juror No. 6, when she left the courthouse immediately after the verdict." Before releasing Juror No. 10, the court specifically asked Brizuela's defense counsel if he wanted the court to conduct any further inquiry and counsel stated he did not. This issue is thus forfeited. (See People v. Avila (2009) 46 Cal.4th 680, 727-728.)
Brizuela next complains that the court should have allowed Juror No. 6 to testify at the hearing so that she could rehabilitate her credibility, and that there was "no legitimate reason for the court to find that she lied about the allegations based on her affidavit." The trial court did not err in choosing to proceed as it did—by closely reviewing Juror No. 6's proffered claims without eliciting live testimony from her. The trial court admitted into evidence and reviewed the lengthy interview transcript of Juror No. 6 submitted by Brizuela. The interview showed that Juror No. 6's allegations were motivated by her animosity at not being selected as the foreperson of the jury and her belief that her views were discounted. The transcript also revealed that after the trial, Juror No. 6's family expressed disagreement with the verdict and she felt she might have made a mistake by voting to convict.
Based on these facts, the testimony of Juror No. 10, and the affidavits of three other jurors, the trial court could properly conclude that Juror No. 6's allegations of misconduct were not credible. (People v. Hamlin, supra, 170 Cal.App.4th at pp. 1463-1464.) Further, Brizuela does not explain what additional information might have been elicited from Juror No. 6 that would have aided the court in its credibility determination had she been called to testify. On this record, we cannot conclude the court abused its discretion by denying Brizuela's request to call Juror No. 6 to the stand during the evidentiary hearing on his motion for a new trial. (See People v. Hedgecock (1990) 51 Cal.3d 395, 417-418 [trial court has "discretion to examine jurors under oath" in evaluating claims of possible juror misconduct]; People v. Yeoman (2003) 31 Cal.4th 93, 164 [trial court did not abuse its discretion in failing to compel jurors to testify where "the affidavits submitted . . . did not demonstrate a strong possibility that prejudicial misconduct had occurred"].)
V
Proposition 57
Because Brizuela was 17 years old when he committed the crimes at issue, the district attorney directly filed the criminal complaint against him in the criminal division of the San Diego Superior Court under Welfare and Institutions Code section 707, subdivision (d). This provision gave prosecutors the discretion in specified circumstances to file charges against a minor directly in a court of criminal jurisdiction, "known as 'direct filing' or 'discretionary direct filing.' " (People v. Cervantes (2017) 9 Cal.App.5th 569, 596, partially disapproved in People v. Lara (2018) 4 Cal.5th 299 (Lara).) There was no hearing to determine whether Brizuela was fit to be adjudicated as a minor pursuant to the Welfare and Institutions Code. Proposition 57, enacted by the electorate in November 2016, abolished the direct filing procedure.
After briefing in this case was completed, the California Supreme Court addressed the retroactivity of Proposition 57 in cases that were not final before the new law took effect. The court concluded that Proposition 57's transfer provision applies retroactively "to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at p. 304.)
Citing the reasoning articulated in In re Estrada (1965) 63 Cal.2d 740, the Lara opinion holds that while Proposition 57 does not mitigate punishment for any particular crime, it does confer potential benefits to a class of persons, i.e., juveniles, and constitutes an " 'ameliorative change[ ] to the criminal law' that . . . the legislative body intended 'to extend as broadly as possible.' " (Lara, supra, 4 Cal.5th at p. 309.) Because defendant's judgment of conviction is not yet final, his Proposition 57 claim is well taken and in supplemental briefing requested by this court, the Attorney General concedes Brizuela is entitled to the relief endorsed in Lara.
Lara endorses a remand procedure described by the Fourth District in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298. (Lara, supra, 4 Cal.5th at pp. 310, 313 ["we believe remedies like those provided in Vela . . . are readily understandable, and the courts involved can implement them without undue difficulty"].) Accordingly, we follow that direction and conditionally reverse Brizuela's convictions and sentence, and remand the matter for the juvenile court to conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707 as amended with the passage of Proposition 57. (Lara, at p. 310.)
In conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer the case to a court of criminal jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(1).) After conducting the juvenile transfer hearing, if the court determines it would have transferred Brizuela to a court of criminal jurisdiction because he is not a fit and proper subject to be dealt with under the juvenile court law, then Brizuela's conviction is to be reinstated in accordance with the opinion, and as discussed below the trial court shall conduct a resentencing hearing for the limited purpose of considering whether to strike the firearm enhancement under section 12022.53, subdivision (h). (Welf. & Inst. Code, § 707.1, subd. (a).) If, on the other hand, the juvenile court finds it would not have transferred Brizuela to a court of criminal jurisdiction, then it shall treat his conviction as a juvenile adjudication and impose an appropriate disposition within its discretion. (Lara, supra, 4 Cal.5th at p. 310, following People v. Vela, supra, 11 Cal.App.5th at p. 82, review granted.)
VI
Senate Bill 620
Brizuela's sentence includes two enhancements of 25 years to life under section 12022.53 for the discharge, or vicarious discharge, of a firearm, proximately causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)). We granted Brizuela's motion to file a supplemental brief to address the impact of Senate Bill 620, which took effect on January 1, 2018, and which provides trial courts with discretion to strike firearm enhancements under sections 12022.5 and 12022.53. (See §§ 12022.5, subd. (c) and 12022.53, subd. (h).) These subdivisions were not effective at the time Brizuela was sentenced and the trial court, therefore, did not have discretion to strike the firearm use enhancement. Brizuela asserts Senate Bill 620 should be applied retroactively, requiring remand to allow the trial court to consider striking the firearm use enhancement.
In its supplemental response brief, the Attorney General concedes People v. Francis (1969) 71 Cal.2d 66 (Francis) is controlling and requires retroactive application of section 12022.53, subdivision (h) to all nonfinal judgments. In Francis, the defendant was charged with selling and giving away marijuana. (Id. at pp. 69-70.) The matter was tried to the court and submitted on the preliminary examination transcript. (Id. at p. 70.) The court found defendant guilty of possession of marijuana as a lesser included offense. (Ibid.) At the time of the defendant's sentencing, possession of marijuana was punishable by a term of one to 10 years in prison. The court also had the authority to grant the defendant probation and require him to serve time in the county jail as a condition of probation. (Id. at p. 75.) The trial court sentenced the defendant to state prison. (Id. at p. 70.) After his conviction, but prior to the conclusion of his appeal, the Legislature amended the Health and Safety Code, authorizing a trial court to reduce a conviction for possession of marijuana to a misdemeanor, punishable by a term in county jail. (Ibid.)
The court held the amendment should be given retroactive effect pursuant to In re Estrada, supra, 63 Cal.2d 740. (Francis, supra, 71 Cal.2d at pp. 75-76.) In arguing against remand, the People noted the trial court rejected the idea of placing the defendant on probation and to impose county jail time as a condition of probation. (Id. at p. 76.) In rejecting that contention, the court stated, "the mere fact that the Legislature changed the offense from a felony to a felony-misdemeanor conceivably might cause a trial court to impose a county jail term or grant probation in a case where before the amendment the court denied probation to a defendant eligible therefor and sentenced the defendant to prison." (Id. at p. 77.)
The Attorney General concedes, and we agree, the same reasoning applies in the instant case and section 12022.53, subdivision (h) should be applied retroactively. However, the Attorney General argues remand is not necessary because the record demonstrates the trial court would have sentenced Brizuela no differently even if it had the discretion to strike the firearm use enhancement.
We need not remand the instant matter if the record shows that the trial court "would not . . . have exercised its discretion to lessen the sentence." (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The People contend the sentence imposed by the trial court below combined with the court's comments at sentencing show the court would not have exercised its discretion under section 12022.53, subdivision (h). The Attorney General points out that the trial court arrived at the 100-year-to-life aggregate sentence by looking to Brizuela's relatively long and serious criminal history and the serious nature of the crimes he was convicted of in this case, and that the trial court also considered the mitigating factor of Brizuela's youth. The People assert that the trial court was thoughtful in its imposition of the 100-year term, noting that the court could have increased the punishment further by imposing the terms for Counts 3 and 4 consecutively and its decision not to do so shows the court would not have stricken the firearm enhancement if it had the chance.
We are not persuaded that this record establishes the trial court would not have stricken the enhancement. Although the trial court was not sympathetic to Brizuela, it is undisputed that the court had no discretion to strike the firearm enhancement. Subsequently enacted section 12022.53, subdivision (h) provided that discretion, greatly modifying the court's sentencing authority. We cannot be certain the court would not have exercised its new discretion to strike the firearm enhancements and in the event Brizuela's case does not remain in juvenile court, we direct the trial court to resentence Brizuela after considering whether the firearm enhancement should be stricken under section 12022.53, subdivision (h).
DISPOSITION
The judgment is conditionally reversed pending further proceedings in accordance with Proposition 57. The case is remanded to the juvenile court with directions to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707. At the transfer hearing, if the juvenile court determines it would not have transferred defendant to a court of criminal jurisdiction, then defendant's criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court shall then conduct a disposition hearing.
At the transfer hearing, if the juvenile court determines it would have transferred defendant to a court of criminal jurisdiction, it shall then reinstate defendant's conviction, and return the case to the trial court to conduct a resentencing hearing for the limited purpose of considering whether to strike the firearm enhancement under section 12022.53, subdivision (h).
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. DATO, J.