Opinion
H045212
10-23-2024
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO BURGOS et al., Defendants and Appellants
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. C1518795, C1756994
Greenwood, P. J.
Gabriel Cortez and Danny Rodriguez were walking on the street when a group of men robbed them at gunpoint. After the robbers took their phones and a wallet with a few hundred dollars, Cortez and Rodriguez ran away. A jury found appellants Francisco Burgos, James Daniel Richardson, and Damon Stevenson Jr. guilty on two counts of second degree robbery with true findings on gang allegations. The trial court sentenced each appellant to 21 years in prison.
In a prior opinion, this court reversed appellants' judgments based on a retroactive application of Penal Code section 1109 as amended by Assembly Bill No. 333 (20212022 Reg. Sess.) (Assembly Bill 333), which took effect while this appeal as pending. (Stats. 2021, ch. 699, § 5.) The California Supreme Court granted review, reversed the judgment, and remanded the matter to us for further proceedings. (People v. Burgos (2024) 16 Cal.5th 1 (Burgos).) On remand, we vacated our prior opinion, and we consider the appeal anew.
Subsequent undesignated statutory references are to the Penal Code.
Appellants raise numerous claims that were not under review by the California Supreme Court. All three appellants contend the evidence was insufficient to support the robbery convictions, and they contend the trial court erroneously allowed the jury to see evidence and information revealing that a non-testifying codefendant had been convicted of the robbery. Burgos and Richardson raise additional claims of erroneous evidentiary rulings, improper jury instructions, ineffective assistance of counsel, and cumulative prejudice. Richardson contends the trial court erred by denying his motion to continue sentencing for the purpose of obtaining DNA test results. For the reasons below, we conclude these claims are without merit.
Additionally, all three appellants contend we must vacate the gang enhancements based on the retroactive application section 186.22 as amended by Assembly Bill 333, and they contend they are entitled to resentencing based on the retroactive application of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). Burgos and Stevenson contend they are also entitled to resentencing as youthful offenders under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567). The Attorney General concedes the merits of these claims, and we accept the concessions. Accordingly, we will vacate the gang enhancements and remand the matter to allow the prosecution the opportunity to retry appellants on those enhancements. We will further order the trial court to resentence appellants in accordance with Senate Bill 1393, and to resentence Burgos and Stevenson in accordance with Senate Bill 567.
Burgos contends his sentencing enhancement under former section 667.5, subdivision (b) is now invalid and must be stricken under Senate Bill No. 136 (20192020 Reg. Sess.) (Senate Bill 136) and Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483). The Attorney General does not dispute that Senate Bill 136 requires us to strike the enhancement but he argues Senate Bill 483 does not apply to Burgos. For the reasons below, we will strike the enhancement based on the retroactive application of Senate Bill 136.
All three appellants contend the trial court erred by imposing certain fines and fees without determining whether they had the ability to pay under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas). Because we must remand the matter for resentencing, appellants may raise any claims of inability to pay at their resentencing hearings. Stevenson and Burgos contend section 3051 violates their equal protection rights. Because we are vacating their sentences and remanding for resentencing, we conclude this claim is not ripe for appeal. Stevenson also requests various corrections concerning the fees as recorded in the abstract of judgment, and the Attorney General concedes several corrections must be made. We will order corrections to the abstract as set forth below.
Accordingly, we will reverse the judgment, vacate the true findings on the gang enhancements, strike Burgos's enhancement under subdivision (b) of section 667.5, and remand the matter for further proceedings.
Appellant Richardson also petitions for a writ of habeas corpus challenging his conviction in this matter. (In re James Richardson, H052317.) We ordered his petition considered together with this appeal. We deny the petition in a separate order on this date.
I. Factual and Procedural Background
A. Procedural Background
The prosecution charged each appellant with two counts of second degree robbery. (§§ 211, 212.5, subd. (c).) As to each count and defendant, the prosecution alleged that a principal personally used a firearm in the commission of the offense (§ 12022.53, subds. (b) &(e)(1)), and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The prosecution further alleged each defendant had been convicted of prior serious felony offenses (§§ 667, subds. (a), (b)-(i), 1170.12). As to Burgos, the prosecution alleged he had served a prior prison term (former § 667.5, subd. (b)). As to Stevenson, the prosecution alleged he was on felony probation at the time of the offenses. (§ 1203, subd. (k).)
The prosecution also charged codefendants Derrick Lozano and Gregory Byrd with the same offenses. Before trial, Lozano agreed to plead guilty to one count of second degree robbery with firearm and gang enhancements and one count of active participation in a criminal street gang in exchange for a stipulated sentence of three years.
Trial began in January 2017, and the jury reached verdicts in March 2017. The jury found Burgos, Richardson, and Stevenson guilty on both counts and found true the gang allegations. The jury hung on the firearm allegations and found Byrd not guilty on both counts. After a bench trial, the court found true the prior conviction allegations as to Burgos and Stevenson and the prior prison term allegation as to Burgos. Richardson admitted his prior conviction.
As to each defendant, the trial court imposed an aggregate term of 21 years, consisting of six years for robbery, 10 years for the gang enhancements, and five years for the prior felony offenses.
B. Facts of the Offense
Gabriel Cortez and Danny Rodriguez were robbed while they were walking near a 7-Eleven store on the corner of King Road and Flanigan Drive in San Jose on August 29, 2015. The victims told police they had encountered a group of four to six men, one of whom had a handgun. The men took both victims' phones and Cortez's wallet. The prosecution alleged the group of robbers included appellants along with codefendants Gregory Byrd and Derrick Lozano. The prosecution further alleged appellants were members of the Crip criminal street gang.
The robbery took place around or after midnight across the street from a 7-Eleven store. Video cameras at the 7-Eleven store recorded Burgos, Richardson, Stevenson, and Lozano entering the store at 12:17 a.m. They walked around inside and left the store at 12:21 a.m.
After the victims were robbed, they went to Cortez's home nearby, where Rodriguez called his father, and the father picked up Rodriguez to drive him home. Rodriguez's father called 911 to report the robbery around 1:00 a.m., and police went to the area of the robbery soon thereafter.
1. The Victims' Statements to the Police
Rodriguez made the following statements to the police in the early morning hours following the robbery: Rodriguez and Cortez had just left a nearby restaurant, and as they were walking away, they saw a group of five or six men on the corner. It looked like the men were coming from the 7-Eleven store. They were all black men in their late 20s, and they all wore plain black or dark blue t-shirts with no writing. The men started asking Rodriguez and Cortez where they were from and whether they were from Meadowfair. The victims responded that they were from "right here." One of the men asserted, "Well, we're Crip."
It appeared to Rodriguez that the men were about to let them go when the biggest man in the group said something like, "Nah, what do you guys have in your pockets?" Rodriguez referred to this as a "pocket check" in his statement to the police. Another man, described by Rodriguez as the "main guy," pulled up his shirt to reveal a gun. The "main guy" was wearing what looked like a black beanie, which he then pulled down over his face. Rodriguez saw it had holes for the eyes and he realized it was a ski mask. The "main guy" told the victims to empty their pockets. Rodriguez, who had no arms, responded, "Bro', I don't even [have] arms. I can't. You know I can't." The man then approached Rodriguez and pulled his phone and wallet out of his pockets. The man opened the wallet, saw it was empty, and threw it on the ground. He kept the phone. The men also took Cortez's phone and wallet. One of the men then told the victims, "See that guy with the gun .... you guys got 30 seconds to get out of my face." Cortez grabbed Rodriguez's wallet and the victims ran away.
Rodriguez described the "main guy" with the gun as a "smaller guy," about five feet six or seven inches tall, and about 180 pounds. He was around 25 or 26 years old, and he had a goatee. Rodriguez said he could see the man clearly when the group first approached the victims because the man had not yet pulled his ski mask down. Rodriguez estimated that the bigger, heavyset man-the one who asked the victims what they had in their pockets-was about six feet one or two inches tall, and "200-something" pounds. He was wearing a dark blue short-sleeve t-shirt and had facial hair like a goatee-chin hair, but with more of a mustache. All the men were wearing beanies except for one, who had long hair in "fishtail" braids, or double braids, over his shoulders. The man with long hair was about five feet seven or eight inches tall, and around 180 or 190 pounds.
Cortez also gave a statement to the police in the hours after the robbery. Cortez said he and Rodriguez were walking home from a restaurant when they got robbed. There was a group of four or five men standing in front of a dentist's office across the street from a 7-Eleven store. They were all wearing dark clothes, and they looked "pretty young." As the victims approached the group, the men started asking the victims if they "banged," and, "Where are you from?"
Someone wearing a black mask pointed a gun in Cortez's face and took his wallet and phone out of his pockets. Cortez had around $250 to $300 in his wallet. The man said, "You know what? I'm going to give you guys 30 seconds or I'm going to shoot." The gun looked like a black Smith &Wesson .357-caliber revolver, and he had pulled back the hammer. Cortez, who was five feet nine inches tall, estimated the man with the gun was "maybe about my height, a little shorter," with an average build. Cortez could not see the man's face because he had a mask on the whole time.
At trial, a police officer who interviewed Cortez testified that he described the man with the ski mask as Hispanic based on the skin tone around the eye holes in the mask. The officer testified that Cortez also described two other persons. One was Hispanic, 19 to 23 years old, about five feet seven inches tall, and 180 pounds. The man had long braided hair and he was wearing a white shirt. The third man was black, 20 to 24 years old, and he was six feet one or two inches tall. He was wearing a black shirt and a beanie or hat, and his hair was a medium-length afro.
2. Events Following the Robbery
After the robbery, the victims ran to Cortez's home and Rodriguez called his father to pick him up. Rodriguez told his father that a group of men with a gun had robbed Rodriguez and Cortez, taking their wallets and phones. As Rodriguez's father was driving him home, Rodriguez saw one or more of the robbers in a group of men standing on the corner of Bowling Green Drive and King Road. Rodriguez recognized the bigger, heavyset man who had asked the victims what was in their pockets. The man was wearing a short-sleeve t-shirt, and Rodriguez could see that it was dark blue "for sure" because the car's lights were shining on the men. Rodriguez's father told police he did not see the man's face, but the man was six feet one inch tall, and at least 250 to 260 pounds.
When Rodriguez and his father reached their home, the father called 911 and they reported the robbery. The father told the 911 operator his son had been robbed by five black men with a handgun 15 minutes earlier. The father said, "the gentlemen are on King and Bowling Green" and added that he and his son had just seen them five minutes earlier as they were driving by. The father said there were "just three of them out there," and "they were actually on the corner of the apartments" at King Road and Bowling Green Drive.
Police were immediately dispatched to the area of King Road and Bowling Green Drive. Around 1:00 a.m., two officers in a patrol car arrived at the western portion of the apartment complex at the corner and drove into the adjacent parking lot. As they were looking around the area, the police saw three black men standing next to the apartment complex. The location was about 50 to 100 yards from the 7-Eleven store. One of the men was wearing a "very, very noticeable" bright teal or turquoise shirt. When the officers got out of their car to approach them, the three men ran into the apartment complex and the officers started running after them. The officers split up, covered two of the building's exits, and requested additional units from dispatch.
Additional units arrived within 15 to 30 seconds. The police set up a perimeter around the apartment complex and watched the exits to ensure nobody else went in or out. The police saw Byrd standing on a second floor balcony "kind of . . . peeking out." About 25 minutes after police first saw the three men run into the apartment building, Byrd came out of the complex and contacted the police. He told the police he wanted to move his car, which was parked in a fire lane, so it would not get towed. The police detained Byrd.
Around 2:00 a.m., the police went to Byrd's apartment and detained appellants, Lozano, and a man named Keison Hames, who were all found in the apartment. In a search of Byrd's apartment, the police found Cortez's stolen phone inside a backpack. They also found a blue shirt with the Nike "JUST DO IT" logo on the front of the shirt.
Police later determined that the car Byrd wanted to move was owned by Lozano's girlfriend, Cynthia Capito, who was outside the apartment complex. At some point, Capito consented to a search of the car, and the police found Rodriguez's stolen phone in the car.
Subsequent forensic examinations revealed that a fingerprint on the phone matched Lozano's fingerprints. DNA samples were taken from the blue Nike shirt found in Byrd's apartment. Appellants, Lozano, Byrd, and both victims were excluded as potential contributors to the DNA recovered from the shirt.
3. The In-Field Showups
In the morning hours after the robbery, the police conducted in-field showups of several persons for Rodriguez and Cortez. At 1:56 a.m., the police showed Byrd to Rodriguez. Rodriguez identified Byrd as the "main guy" who had pulled a ski mask down over his face. Rodriguez said the man in the showup was wearing different clothes at the time of the robbery.
After police had detained appellants and Hames in the apartment building, the police conducted additional showups for Rodriguez. The police showed him Hames, but Rodriguez did not recognize him. Next, the police showed Stevenson to Rodriguez, and Rodriguez recognized him. Rodriguez said the man did not do anything during the robbery, but that he was present and just stood there. The police then showed Burgos to Rodriguez. Rodriguez said that man and the previous man both had braided hair and they looked the same. Rodriguez said it was "kind of confusing" and that now he could not be sure about either man. The police also showed Lozano and Richardson to Rodriguez, but he did not recognize either man.
The police later conducted in-field showups with Cortez and showed him five persons: Lozano, Stevenson, Burgos, Richardson, and Hames. They did not show him Byrd. The transcript of an audio recording of the showup conflicts with police testimony about the order in which the suspects were shown to Cortez.
The audio recording was played for the jury, but the parties did not designate that exhibit for transmittal to this court under California Rules of Court, rule 8.224.
According to the transcript, an officer at the scene identified Lozano as being the first person shown to Cortez. At trial, the officer who conducted the showup testified that Stevenson was the first person shown to Cortez. Cortez recognized the first person and said his shirt was the same shirt Cortez had seen during the robbery. According to the transcript, Cortez said, "I think he was just there," but Cortez also said, "He just dug inside my pocket."
The police then showed a second man to Cortez. In the transcript of the audio recording, an officer at the scene identified the man as Stevenson. At trial, the officer who conducted the showup testified that Lozano was the second man shown to Cortez. When the officer at the scene asked Cortez if the man looked familiar, Cortez responded, "Yeah, kind of." Cortez said the man was part of the group, but he "was just there" and did not touch Cortez.
The third man shown to Cortez was Burgos. Cortez identified Burgos as "the one who took my wallet." When the officer asked Cortez if he was positive Burgos was the one who took his wallet, Cortez responded, "Oh, yeah."
Next, the police showed Richardson to Cortez. Cortez recognized him. The officer at the scene asked Cortez, "He's the one that stated take everything from his pockets?" Cortez responded, "Yeah," and added that the man had stuck his hands in Cortez's pockets. Finally, the police showed Hames to Cortez, and Cortez did not recognize him.
4. Testimony of Danny Rodriguez
When Rodriguez testified at trial, he was unable to recall many details of the robbery, including details of statements he had made to the police. He testified that he and Cortez were leaving a restaurant when they were approached by a group of men, but he could not recall what the men looked like or anything they said. The group of men walked towards Rodriguez and Cortez and made contact with Rodriguez and Cortez. The men took Rodriguez's cell phone as well as Cortez's cell phone and wallet. Rodriguez could not remember how many men were in the group, but he agreed the number was somewhere between two and six. Rodriguez could not remember whether he saw a weapon.
At some point, Rodriguez called his father, and his father called 911, but Rodriguez testified that he could not recall if he was present during the call. When the prosecution played an audio recording of the call for Rodriguez, he could not remember many of the statements his father made on the call. Rodriguez testified that before the call, he had told his father about what had happened. Later in his testimony, Rodriguez said he was present while his father made the call, but that he was not there when his father made the call, and he was "brought" during the middle of the call. Rodriguez confirmed that it was his voice in the audio recording.
Rodriguez's father drove him home. The prosecutor asked Rodriguez whether he saw on the way home "any of the individuals who you associated with the group" that had robbed him. Rodriguez responded, "Yes," and testified that he had seen them on the corner near the apartments on King Road and Bowling Green Drive. He could not remember how many people he saw or whether he said anything to his father.
After he got home, Rodriguez spoke with the police at his house. The prosecutor asked about certain statements and whether Rodriguez remembered making them to the police. He could not remember making some of the statements, but he remembered making others. He did not deny making any of the statements, and of the statements he remembered, he testified that those statements were true.
Rodriguez's testimony confirmed he had told the police about the basic facts of the robbery, but as to statements that pertained to specific descriptions of the men or other identifying details, he generally testified that he could not remember making those statements. However, Rodriguez testified that he told the police the "main guy" was also the person who initiated the conversation by asking Rodriguez and Cortez where they were from; who asked if they were from Meadowfair; and who said the group were Crips. Rodriguez also confirmed that he told the police the "main guy" was the one who said something to the effect of, "You guys got 30 seconds to get out of my face."
Rodriguez testified that the police took him in a police car to the apartment complex for the showups. Rodriguez had identified the first person the police showed him as part of the group that had robbed him, but he could not remember what his reaction was or how he felt. When the prosecutor asked Rodriguez whether the police asked him about identifying any other individuals, he could not remember whether the police did so. When the prosecutor asked Rodriguez whether it would refresh his recollection to view a transcript of his in-field showups, Rodriguez responded in the negative, adding, "I don't want to remember."
Later, Rodriguez used the "Find My iPhone" application to locate his stolen iPhone. He tracked the phone to the apartments on King Road and Bowling Green Drive.
When the prosecutor asked Rodriguez about the person he had described as the "main guy" and whether that person was in the courtroom, Rodriguez responded, "I don't know," and "I don't remember." But Rodriguez confirmed that when he had made an identification after the robbery, it was truthful. When the prosecutor asked Rodriguez whether his statements to the police were accurate and complete, he responded, "Yes." When the prosecutor showed Rodriguez some of the video recorded from the 7-Eleven store and asked him if recognized any of the men walking into the store, he responded, "No." When asked if they participated in the robbery, Rodriguez responded, "I don't know." Rodriguez did not identify any of the defendants in the courtroom as being involved.
5. Testimony of Gabriel Cortez
Cortez was unable to recall the details of the robbery in his testimony. He agreed that he and Rodriguez were leaving the restaurant when they were confronted by a group of persons across the street from the 7-Eleven store. He could not recall any other details. He testified that he had been intoxicated after taking two Xanax pills, drinking for several hours, and smoking concentrated marijuana on the night of the robbery. Cortez did not identify any of the defendants in the courtroom as being involved.
6. Testimony of Gregory Byrd
Around the time of the offense, Byrd lived in an apartment at a complex near Bowling Green Drive and King Road in San Jose. He testified that around 9:30 or 10:00 p.m. on the night of the robbery, Byrd, Lozano, Hames, and appellants were at the apartment complex. At some point after midnight, appellants and Lozano left to go to the store. Hames did not go with them. Byrd testified that they came back to the apartment about 15 minutes later.
7. Gang Evidence
The prosecution introduced the testimony of a gang expert who opined that appellants, Byrd, and Lozano were members of the Crip gang. Section II.P.2 below describes the expert's testimony in greater detail.
II. Discussion
A. Sufficiency of the Evidence Supporting the Robbery Convictions
All three appellants contend the evidence was insufficient to support the robbery convictions. Richardson and Burgos argue the evidence was insufficient to support the identification of them as the robbers. Stevenson concedes substantial evidence shows he was present during the robbery, but he argues the evidence was insufficient to show he directly participated in the robbery or aided and abetted it. The Attorney General contends the evidence was sufficient to support the identification of Richardson and Burgos because Cortez identified them as robbers, and because the overall fact-pattern corroborates that finding. As to Stevenson, the Attorney General contends the evidence was sufficient to show he aided and abetted the robbery or conspired with the others in its commission.
1. Legal Principles
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The record must disclose substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) The substantial evidence must be reasonable, credible, and of solid value. (Ibid.) We review the evidence "in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (Ibid.) The standard is the same under both the California Constitution and the federal Constitution. (People v. Jimenez (2019) 35 Cal.App.5th 373, 392.)
2. Substantial Evidence Supports the Robbery Convictions
Richardson and Burgos challenge the sufficiency of the evidence supporting the identification of them as the robbers. They characterize the identification by Cortez as uncorroborated; they point to conflicting testimony; and they argue the substantial evidence standard of review allows us to reject the evidence as too weak to sustain their convictions.
We are not persuaded. Even if we rejected the Cortez identification as insufficient evidence when considered in isolation, other facts presented at trial comprised additional circumstantial evidence sufficient to support the jury's findings. The evidence showed all three appellants-who were Crip gang members-were together at Byrd's apartment complex before the robbery, and video camera evidence showed them at the nearby 7-Eleven store around the time of the robbery. They were seen together again in Byrd's apartment after the robbery, and Cortez's stolen phone was found in the apartment. Appellants were also seen together with Lozano, and Rodriguez's stolen phone was found in Lozano's girlfriend's car. Viewing the record as a whole, including Cortez's identification, the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that Richardson and Burgos were guilty of the robbery.
Stevenson does not dispute that he was present during the robbery, but he argues the evidence was insufficient to find he actively participated in the crime, or that he aided and abetted it. He points out that Cortez said the person he identified as Stevenson did nothing during the robbery apart from being present. The Attorney General argues the evidence showed Stevenson aided and abetted the robbery or conspired with the others in its commission.
"[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. Beeman (1984) 35 Cal.3d 547, 561.)" 'Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.' [Citations.] 'To be liable for a crime as an abettor, the accused must have instigated or advised the commission of the crime or have been present for the purpose of assisting the crime. He must share the criminal intent with which the crime was committed. Neither his mere presence at the scene of the crime nor his failure, through fear, to prevent a crime establishes, without more, that an accused was an abettor.' [Citation.]" (People v. Pettie (2017) 16 Cal.App.5th 23, 57-58 (Pettie).) "[F]actors for determining aiding and abetting of a robbery include presence at the scene of the crime, companionship, and conduct before and after the crime, including flight." (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.)
The record holds evidence of several factors from which a reasonable juror could infer Stevenson was guilty on a theory of aiding and abetting or conspiracy. As the Attorney General points out, the evidence supported a finding that Stevenson was a "continuous constituent" of the group that committed the robbery-before, during, and after the offense-as the group moved from the apartment complex and the 7-Eleven store and then back to the apartment complex again afterwards. Rodriguez told police that the group approached him and Cortez together just before initiating the robbery. The jury could reasonably infer that Stevenson intended to participate in a "show of force" as one member of the larger group outnumbering the victims. (See In re Juan G. (2003) 112 Cal.App.4th 1, 5 [reasonable to infer minor aided, promoted, and encouraged robbery based on his prior companionship, presence at crime scene, proximity to victim, and flight from the scene]; People v. Campbell (1994) 25 Cal.App.4th 402, 409-410 [reasonable to infer aiding and abetting where defendant approached victims together with codefendant and remained present in front of victims while codefendant used a firearm to rob them]; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095 [similar facts].)
Furthermore, the prosecution's gang expert testified that being a member of a Crip gang involved a tacit agreement to commit violence and assist or join in on acts of violence. Thus, a finding that appellants were all members of the same Crip gang, when considered together with the evidence of Stevenson's conduct before, during, and after the crime, would support an inference that he intentionally aided and abetted the robbery. (See Pettie, supra, 16 Cal.App.5th at p. 59 [reasonable to infer aiding and abetting based on defendant's presence during attempted murder together with gang expert's testimony that gang members were expected to assist in assaults]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [reasonable to infer gang-related intent].)
By the same logic, the jury could reasonably infer Stevenson was guilty as a coconspirator in the robbery. The jury instructions defined a conspiracy to commit robbery and required the jury to find at least one of eight specific overt acts-e.g., demanding the victims' property, or displaying a firearm. Based on evidence of Stevenson's conduct as a "continuous constituent" of the group, as well as evidence that the others in the group were members of a criminal street gang, jurors could reasonably infer he intentionally joined an agreement with at least one other member of the group to commit the robbery. And there was abundant evidence that at least one other member of the conspiracy had committed at least one of the eight specified overt acts.
Stevenson relies on In re K.M. (2022) 75 Cal.App.5th 323 (K.M.). In K.M., the court of appeal held the evidence was insufficient to support a juvenile court's finding that a minor aided and abetted robbery where the minor took no affirmative action. (Id. at p. 329.) K.M. is distinguishable. First, in K.M. there was no evidence the minor facilitated the robbery by participating in a "show of force" as the defendants did in this case by approaching the victims together as a group. Second, K.M. was not a gang case, and there was therefore no evidence of a tacit agreement to commit violence and assist or join in on acts of violence as the gang expert provided in this case. By the same token, K.M. did not address the possibility of liability based on the existence of a conspiracy. In this case, the jury was instructed on an uncharged conspiracy theory of liability that did not require the jury to find Stevenson personally committed an overt act to be liable; rather, the jury only had to find that at least one member of the conspiracy committed an overt act in furtherance of the robbery.
For the reasons above, we conclude the evidence was sufficient to support the robbery convictions of all three appellants.
B. Admission of Evidence of Lozano's Refusal to Testify
Burgos and Richardson contend the trial court erred by admitting evidence of Lozano's refusal to testify at trial and allowing the prosecution's gang expert to testify about the refusal. They argue admission of this evidence violated Evidence Code section 352 and their constitutional rights of due process and confrontation. The Attorney General contends appellants forfeited these claims by failing to object below, and that the trial court did not abuse its discretion or violate appellants' constitutional rights.
1. Procedural Background
Lozano, who was charged together with appellants, entered a pretrial agreement to plead guilty in exchange for a three-year sentence. He pleaded guilty to one count of second degree robbery with firearm and gang enhancements, and one count of active participation in a criminal street gang. The agreement did not expressly address Lozano's cooperation or testimony at trial, but the trial court ordered Lozano to testify under a grant of immunity. Lozano then refused to testify. Outside the presence of the jury, the trial court admonished Lozano that he had no right to refuse to testify under the Fifth Amendment and that doing so could result in a finding of contempt. Lozano still refused to testify. None of the appellants objected at that point to Lozano being called to testify in front of the jury, but counsel for Burgos stated, "I don't think we've conceded that we agree that [Lozano] should be allowed to be held in contempt in front of the jury."
Counsel for Stevenson also asked that Lozano not be dressed in jail attire or shackled on the ground that this would be unduly prejudicial because the prosecution was "trying to associate him" with the defendants. Counsel for Lozano agreed to provide him with appropriate clothes, and Lozano remained seated in the witness's box while the jury was present, thereby concealing his shackles.
Stevenson then filed a written objection to the prosecution calling Lozano to testify before the jury on the ground that it would be unduly prejudicial and lacking in probative value under Evidence Code section 352. Counsel for Byrd joined the objection, citing People v. Lopez (1999) 71 Cal.App.4th 1550 (Lopez) and People v. Morgain (2009) 177 Cal.App.4th 454 (Morgain). Counsel for the other three defendants then joined the objections as well. The court did not expressly rule on the objections but stated the prosecution would be allowed to call Lozano to the stand before the jury, and if Lozano still refused to testify, the court would impose sanctions outside the presence of the jury.
The prosecution then called Lozano to the stand in the presence of the jury, and Lozano refused to testify or answer any questions. The court asked Lozano whether he understood he had no right to refuse to testify and that he could be found in contempt. Lozano responded affirmatively. The court then excused the jury and found Lozano in contempt. Three weeks later, the court brought Lozano into court outside the presence of the jury to ask whether he had changed his mind, and he again refused to testify.
The parties then addressed whether the prosecution's gang expert would be allowed to testify about Lozano's refusal to testify and what inferences the expert could draw from the refusal. Counsel for Stevenson objected that the prosecution had not provided the defense with discovery concerning the expert's basis for any such opinions. The prosecution proffered that the expert would testify that Lozano's refusal to testify was "based on the ongoing loyalty of Crip gang members to their fellow gang members." The court ruled that any such testimony would have to be given in response to a hypothetical question from the prosecution.
The prosecution subsequently asked the gang expert whether he was present when Lozano refused to testify, and the expert responded affirmatively. The prosecutor then questioned the expert as follows: "I want to offer you a hypothetical. If an individual does not have a Fifth Amendment right to refuse to testify, is properly served and asked to testify in a trial against fellow gang members, would you be surprised if that individual refused to testify?" The expert responded, "Not at all." Counsel for Stevenson objected based on a lack of foundation, and the trial court overruled the objection. The expert responded, "Fellow gang members testifying against another gang member is against the rules. You're not supposed to snitch. Keep quiet. It's some of the things we talked about previously is valid in a gang member, loyalty and keeping your trap shut."
The prosecutor then posed a similar question but specifically with respect to Crip gang members: "So another hypothetical, but involving crip gang members and associates, would you be surprised if an individual who had no Fifth Amendment privilege not to testify was called to testify and then refused to testify? Would you be surprised by a crip refusing to testify?" The expert again replied, "Not at all," and testified his response would be the same as the answer to the prior question. In response to a question about whether a Crip gang member or associate was expected not to report to law enforcement as "part of the bonds that ties them together in committing a crime," the expert responded, "Yes, a Crip is not going to cooperate with law enforcement to talk about the fellow gang members involved or the crimes they're doing." Apart from the foundational objection, defense counsel lodged no other objections to this testimony.
Consistent with CALCRIM No. 320, the trial court instructed the jury, "Derrick Lozano did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations."
2. Legal Principles
Evidence Code section 352 gives trial courts discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We review a trial court's ruling under Evidence Code section 352 for abuse of discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 827.)
Where a witness has no constitutional or statutory right to refuse to testify, jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony. (Morgain, supra, 177 Cal.App.4th at pp. 467-468; Lopez, supra, 71 Cal.App.4th at p. 1554; see also People v. Sisneros (2009) 174 Cal.App.4th 142, 152 (Sisneros) [admission of evidence of witness's refusal to testify did not violate defendant's confrontation rights].) We apply an abuse of discretion standard of review to the trial court's ruling on calling such a witness and the admission of testimony concerning inferences that may be drawn from therefrom. (Sisneros, at p. 151.)
3. The Trial Court Did Not Abuse Its Discretion by Allowing the Prosecution to Call Lozano and Admitting Expert Testimony Relevant to the Refusal to Testify
As an initial matter, the Attorney General contends appellants forfeited their claims by failing to object below. We find no forfeiture. Counsel for Stevenson filed a written objection to calling Lozano to testify and holding him in contempt before the jury on the ground that it would be unduly prejudicial under Evidence Code section 352. Counsel for Byrd then joined the objection, citing Lopez, supra, and Morgain, supra. Counsel for the other three defendants then joined the objections. The Attorney General narrowly construes the objections as pertaining only to the prospect of holding Lozano in contempt before the jury-which the trial court did not do-but the record shows counsels' arguments went beyond that single procedural aspect. By citing Lopez and Morgain, for example, the defendants put the issues squarely before the court.
On the merits, however, those cases undercut appellants' claim. The Courts of Appeal in Lopez and Morgain concluded there was no error in calling a witness who has no Fifth Amendment right not to testify and allowing the jury to draw relevant inferences from the witness's refusal. In Lopez, as in this case, the prosecution called a fellow member of the defendant's gang as a witness to testify about a gang-related assault for the purpose of establishing a pattern of criminal gang activity. (Lopez, supra, 71 Cal.App.4th at p. 1553.) The witness had already pleaded guilty and waived his Fifth Amendment right not to testify, but the witness refused to testify in the presence of the jury. The Court of Appeal held this was not error because the witness had no right to refuse to testify. "Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. These points are well established by existing case law. [Citation.] But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony." (Id. at p. 1554.) "[O]nce the trial court was made aware the witness intended to claim a Fifth Amendment privilege, it made the proper inquiries and determined the testimony of the witness would be relevant, and the privilege did not apply. It then ordered [the witness] to testify before the jury. [The witness] took the stand and refused to answer questions, basing his refusal on a privilege he was not entitled to claim. We find, under these circumstances, that the jury was entitled to consider [the witness's] improper claim of privilege against him as evidence relevant to demonstrate exactly what the gang expert had opined: that gang members act as a unit to advance the cause of the gang and to protect their members." (Id. at pp. 15551556.) The holding and logic of Lopez is squarely on point. The trial court here followed the same procedure, and the gang expert's testimony about gang loyalty as a reason for refusing to testify or cooperate is indistinguishable from that in Lopez.
The court in Morgain applied the holding of Lopez in a non-gang case. In Morgain, the prosecution called the defendant's girlfriend to testify as a material witness on the ground the defendant had confessed to her that he had committed a murder. (Morgain, supra, 177 Cal.App.4th at p. 459.) The prosecution granted immunity to the girlfriend and called her as a witness, but after she answered some foundational questions on the stand, she refused to testify further. The trial court struck her testimony, but over the defendant's objections, the court allowed the prosecution to argue to the jury that it could infer from her refusal to testify that she was motivated by a desire to protect the defendant. The Court of Appeal affirmed, holding that the trial court did not violate the defendant's constitutional rights to due process and confrontation. (Id. at p. 468.)
Appellants acknowledge the holdings of Lopez and Morgain but contend those cases are distinguishable because the witnesses were not codefendants, whereas Lozano had previously been charged as a codefendant in the robbery. This distinction is unpersuasive. The reasoning underlying the holdings in Lopez and Morgain applies regardless of Lozano's prior status as a codefendant. Furthermore, in Sisneros, wherein the recalcitrant witness was a codefendant in a gang-related murder, the Court of Appeal rejected the same argument, based on the reasoning set forth in Lopez. (Sisneros, supra, 174 Cal.App.4th at pp. 151-152.) We find these authorities persuasive, and appellants' attempts to distinguish them are unavailing. Applying the reasoning of those opinions to this case, we conclude the trial court did not violate appellants' rights of confrontation and due process.
As to the claim under Evidence Code section 352, we conclude the trial court did not abuse its discretion. The prosecution's theory was that appellants and Lozano committed the robbery as Crip gang members, and the gang expert testified that fellow gang members were expected to show loyalty to each other by remaining silent and refusing to cooperate with law enforcement. Lozano's refusal to testify was probative because it supported the inference that he and appellants were fellow gang members, and that the robbery was committed for the benefit of or in association with a criminal street gang. Appellants contend this was prejudicial because the expert was "essentially permitted to testify that Lozano was a co-criminal gang member, who was refusing to testify against his guilty homies." But the questions were phrased in the form of hypotheticals. Appellants argue the hypothetical nature of the questions was obviously a transparent reference to the specific facts of this case, but the California Supreme Court has rejected this line of argument. (People v. Vang (2011) 52 Cal.4th 1038.) We conclude the probative value of the testimony was not substantially outweighed by undue prejudice, and the trial court did not abuse its discretion in so ruling.
For the reasons above, we conclude these claims are without merit.
C. Evidence of Lozano's Prior Conviction for the Charged Robbery
Appellants contend the jury learned through various pieces of evidence, the prosecutor's closing argument, and the jury instructions that Lozano had been convicted of the charged robbery offense with a gang enhancement. Appellants argue that allowing the jury to be exposed to this information violated their right to cross-examine a non-testifying codefendant, and that the evidence was unduly prejudicial because it invited the jury to infer guilt by association. The Attorney General contends appellants forfeited these claims by failing to lodge adequate objections below. On the merits, the Attorney General contends we should presume the jury adhered to the relevant limiting instructions. He further argues the assertion that the jury learned of Lozano's conviction for this robbery is speculative and unsupported by the record.
Lozano pleaded guilty to only one robbery count. The prosecution charged appellants with two counts of robbery based on one incident involving two victims. For convenience, we refer to the charges against appellants as "the charged robbery" in this section.
1. Factual and Procedural Background
The trial court admitted evidence of Lozano's participation in the robbery, his membership in the Crip gang, and his refusal to testify, as set forth in section II.B above. The court excluded evidence that Lozano had been convicted of the charged robbery but admitted evidence he had been convicted of a robbery with a gang enhancement. As described below, the trial court sanitized the documents offered to prove the conviction, and the parties later stipulated to a robbery conviction with a gang enhancement. The trial court instructed the jury it could only use the conviction as evidence of a predicate offense for the gang allegations as to appellants.
a. The Exclusion and Admission of Evidence Relating to Lozano's Conviction
As set forth above in section II.B.1, the prosecution charged Lozano as a codefendant in the robbery, but he entered a pretrial plea agreement in which he pleaded guilty to one count of second degree robbery with firearm and gang enhancements and one count of active participation in a criminal street gang. As part of the agreement, Lozano signed a written statement stipulating to the facts of the offenses. Among other things, he stipulated that he and appellants had taken cash and property from Rodriguez and Cortez; that a coparticipant was armed with a firearm; that Lozano and appellants were members of the Crip criminal street gang; and that a gang expert would testify the offense constituted active participation in that gang. Subsequently, Lozano refused to testify as set forth above.
Burgos moved pretrial to exclude evidence of the plea agreement and records of Lozano's conviction on the ground their admission would violate his confrontation rights unless Lozano was made available for cross-examination. The trial court ruled that evidence of the plea agreement would be excluded if Lozano did not testify but that the fact of Lozano's conviction would be admissible to prove a predicate offense for the gang enhancements. The court ordered that the documents used to show the conviction be redacted to remove any references to this case, including appellants' names.
In his testimony for the prosecution, the gang expert opined that Lozano was a Crip gang member based in part on his conviction as evidenced by a partially redacted minute order. The minute order indicated it was from the same courthouse with the same prosecutor as in appellants' trial, but it did not otherwise show Lozano's conviction was for the robbery charged in this case.
As set forth below in section II.D.1, codefendant Byrd introduced the testimony of Cynthia Capito, who was dating Lozano, and in rebuttal the prosecution called Lozano's attorney, Ignascio Camarena. Camarena testified that Capito called him after one of Lozano's court hearings, and in the call, Capito told Camarena that a friend of Lozano's named "Matthew" had confronted her and hit her on the face. According to Camarena, Capito also said this person called Lozano a "rat." When Capito testified, she denied that Matthew called Lozano a rat.
At the close of evidence, the parties stipulated that Lozano was convicted of a robbery that "took place within three years of the charged offenses in this case," and that he admitted the robbery was committed in association with, for the benefit of, or at the direction of a criminal street gang.
b. Jury Instructions Relating to Lozano's Participation and Conviction
Before closing argument, the trial court instructed the jury on the principles of conspiracy liability with Lozano as a possible coconspirator. The instructions defined the elements required for a conspiracy to commit robbery, including the requirement that the defendant "intended to agree or did agree with one or more of the other defendants or Derrick Lozano to commit robbery." The instructions also set forth eight specific overt acts the prosecution alleged as acts done to accomplish the robbery-e.g., showing a firearm, or demanding the victims' property-and the jury was required to find that one of the defendants, Lozano, or all of them, committed at least one of the overt acts.
As discussed in section II.B.1 above, the trial court instructed the jury Lozano did not have the right to refuse to answer questions and that the jury could consider that refusal during deliberations.
As discussed in section II.H below, the trial court instructed the jury on the factors it could consider in evaluating identification testimony by a witness. The factors included, among others, "Was the witness able to identify other participants in the crime?"
With respect to evidence of Lozano's prior conviction, the trial court instructed the jury, "This evidence may only be considered with respect to the gang allegation Penal Code section 186.22(b)(1)(c). You may not consider this evidence as proof that the defendants engaged in the robbery alleged to have occurred on August 29th, 2015." The court further instructed the jury, "The evidence shows that other persons may have been involved in the commission of the crimes charged against the defendants. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether those persons have been or will be prosecuted. Your duty is to decide whether the defendants on trial here committed the crimes charged."
c. The Prosecutor's Closing Argument and Powerpoint Slides
In closing argument, the prosecutor presented various Powerpoint slides to the jury. A slide titled "Fingerprint evidence" showed two bullet points referencing Lozano's fingerprint on Rodriguez's iPhone. The first bullet point stated, "Conclusive: Derrick Lozano's print is on Danny Rodriguez's phone-links him and through him all other defendants to the robberies." The second bullet point stated, "Inconclusive: Whether any other defendants touched the stolen phones-only 4 usable prints of 19 images." The prosecutor argued, "Derrick Lozano's fingerprint[] was on this cell phone. Why is that important? Because it then corroborates the subsequent identification. It corroborates the 'Find My iPhone' app. It corroborates the finding of the other cell phone in [Byrd's apartment], and it establishes the group that we're working with, linking it back to the video surveillance which started off this entire investigation. They're all intertwined." A bullet point on another slide stated that the fingerprint "tells us that [Cortez's] IDs are accurate."
A slide titled "Layers of Corroboration" contained numerous bullet points. One bullet point listed "Lozano's refusal to testify." The prosecutor referred to the jury instruction allowing the jury to consider Lozano's refusal to testify, and the prosecutor argued this refusal demonstrated his association with and loyalty to the gang.
A slide titled "Robberies on 8/29/15" contained two bullet points. The first bullet point stated, "Present crimes can support both primary activities and pattern of criminal activity (Robbery)." The second bullet point stated, "Derrick Lozano's conviction for Robbery with gang enhancement is evidence is [sic] support of primary activities and pattern of criminal activity."
There were no objections to any of the above Powerpoint slides or statements by the prosecutor.
2. Legal Principles
A coarrestee's guilty plea may be inadmissible where it is unduly prejudicial under Evidence Code section 352. (People v. Leonard (1983) 34 Cal.3d 183, 188.) "The general rule is that evidence regarding the guilty plea or conviction of a coparticipant in a crime is not admissible to prove guilt of a defendant." (People v. Neely (2009) 176 Cal.App.4th 787, 795.) We review a trial court's rulings under Evidence Code section 352 for abuse of discretion. (People v. Brooks (2017) 3 Cal.5th 1, 41.)
3. The Jury Was Not Exposed to Unduly Prejudicial Evidence of Lozano's Conviction for the Charged Robbery
Appellants contend that the evidence, jury instructions, and arguments listed above were unduly prejudicial because they informed the jury that Lozano had been convicted and thereby invited the jury to infer appellants' guilt by association. As set forth above, the trial court excluded evidence of Lozano's plea and conviction, but appellants argue the jury was nonetheless exposed to such evidence and information, including the prosecutor's statements and certain Powerpoint slides shown to the jury during closing argument.
a. Forfeiture
The Attorney General argues that appellants have forfeited this claim by failing to object below. As Burgos points out, there were numerous pretrial motions and objections to the above evidence. Appellants moved to exclude evidence of Lozano's plea agreement and conviction under Evidence Code section 352 and the Confrontation Clause. Appellants also objected to Lozano being called to testify in front of the jury; objected to Camarena's testimony about Lozano being called a "rat"; and objected to the admission of the minute order, among other things. As to the evidentiary grounds for this claim on appeal, the pretrial motions and objections during trial were sufficiently broad and comprehensive that they put the substance of the claimed evidentiary violations before the parties and the trial court below. As to the jury instructions, appellants' arguments with respect to this claim do not challenge the substance of any specific instruction per se, but rather the way the instructions as applied to the challenged evidence assertedly allowed the jury to draw improper inferences from that evidence.We conclude appellants lodged sufficient objections on evidentiary grounds to raise this claim challenging the above evidence. We therefore consider the merits of the claim to the extent it relies on the challenged evidence and the jury instructions relating to that evidence.
We consider appellants' challenges to the substance of specific jury instructions in other sections of this opinion.
As to the prosecutor's arguments and Powerpoint slides, however, those did not constitute evidence. None of the defendants objected to any of the above statements or slides on the ground they constituted improper argument or prosecutorial misconduct. We agree that the failure to object below forfeited the claim with respect to those parts of the record. Even considering them on the merits, however, we would conclude for the reasons below that appellants have not shown reversible error.
b. The Jury Did Not Hear Evidence Revealing That Lozano Was Convicted for the Charged Robbery
The prosecution was not prohibited from presenting evidence that Lozano was a participant in the robbery or a member of the same gang; rather, the trial court excluded evidence of the fact that he had been convicted of this specific robbery. Appellants do not identify any specific evidence, argument, or instruction that expressly stated Lozano had been convicted of the charged robbery. Rather, the thrust of appellants' claim is that the jury must have reached that conclusion based on all the evidence and information set forth above, which demonstrated Lozano's involvement in the robbery and membership in the gang.
To be clear, the prosecution introduced abundant evidence probative of Lozano's participation in the offense and his membership in the Crip gang. Much of the evidence identified by appellants falls in that category: the gang expert's testimony; Lozano's refusal to testify; his fingerprint on the iPhone; Cortez's identification of Lozano; and the testimony that Lozano was called a "rat." All this evidence was admissible for use against appellants under one or more theories of relevance: to establish appellants' joint liability for the robbery under theories of conspiracy or aiding and abetting, and to establish the existence of the gang as well as appellants' membership in it. Similarly, the prosecutor's use of this evidence for those purposes in his closing argument was not improper. Whether considered together or insolation, none of this evidence clearly implied Lozano had been convicted of the charged robbery.
Two other pieces of evidence suggested that fact somewhat more directly. First, the minute order offered to prove that conviction identified the same court and prosecutor involved in the charged robbery. Stevenson argues the evidence showed Lozano had been convicted of the same charges as those charged against appellants, but this is inaccurate. Appellants were charged with two counts of second degree robbery, but the minutes showed Lozano had been convicted on one count of second degree robbery and a second count of active participation in a criminal street gang. Second, the parties stipulated that Lozano had been convicted of a robbery that "took place within three years of the charged offenses in this case," and that he admitted a gang allegation attached to it.
Given the sheer volume of evidence introduced in this case, it seems improbable that the jurors scrutinized the minute order so closely that they would have noticed the two details showing the prosecutor's name and the court. Even so, the minutes do not clearly imply Lozano had been convicted of this charged robbery. Likewise, the stipulation specified a robbery conviction within three years, but that did not tell the jury it was this robbery. It is common for gang members to face multiple prosecutions for different gang-related offenses, and the jurors heard abundant testimony that would have made them aware of that. Furthermore, this evidence was offered solely to establish a predicate offense for the gang allegations, and the jury was instructed accordingly: "This evidence may only be considered with respect to the gang allegation ....You may not consider this evidence as proof that the defendants engaged in the robbery alleged to have occurred on August 29th, 2015."
Even when considered together with the evidence of Lozano's participation in the robbery, the evidence as a whole did not automatically lead to the conclusion that Lozano had been convicted for the charged robbery. Appellants can only speculate that the jury must have drawn that inference. But the trial court specifically instructed the jury not to speculate in this fashion: "The evidence shows that other persons may have been involved in the commission of the crimes charged against the defendants. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether those persons have been or will be prosecuted."
Appellants argue nonetheless that the jury must have pieced together these various indications to infer that Lozano had been convicted of the charged robbery. But they point to nothing in the record that shows the jury actually did so. Absent a showing to the contrary, we presume the jury followed the trial court's instructions not to consider Lozano's conviction for any improper purposes. (People v. Pinholster (1992) 1 Cal.4th 865, 919 ["We presume absent contrary indications that the jury was able to follow the court's instructions."].) We acknowledge there may be practical limits on a jury's ability to cabin its consideration of evidence that is highly inflammatory or prejudicial. But the information in the minute order, the stipulation, and other evidence was not so blatantly suggestive of Lozano's conviction for the charged robbery that we can conclude the jury must have considered it.
Appellants rely on other jury instructions to support their claim, but they do not explain how those instructions informed the jury that Lozano had been convicted of the charged offense. First, appellants point to the instruction that told the jury Lozano had no right to refuse to answer questions. But jurors were not told Lozano was required to testify due to his conviction for the charged robbery. Appellants argue instead that the jury must inferred this. We cannot assume the jury knew enough about the law to draw such an inference; most jurors are not lawyers schooled in criminal procedure. But if any jurors were so knowledgeable, they would also know a witness has no Fifth Amendment to remain silent if the witness is granted immunity for their testimony. (Kastigar v. U.S. (1972) 406 U.S. 441, 448.) And in fact, that was the basis on which Lozano was required to testify. When Lozano was called outside the presence of the jury, the trial court admonished him, "[Y]ou're aware, sir, that the district attorney has given you immunity on this case, and so you do not have a Fifth Amendment right." When Lozano subsequently refused to testify in the presence of the jury, the trial court did not state any legal basis for requiring him to testify, so the jury had no way to know whether he had been convicted or granted immunity. The instruction therefore did not inform jurors that Lozano had been convicted of the charged robbery. Appellants further contend the instruction allowed the jury to consider Lozano's refusal "with no limitation" on how the jury could use it, but as set forth above, the trial court specifically instructed the jury not to speculate about whether any other participants had been prosecuted for the robbery.
Appellants also point to the instruction on factors the jury could consider in evaluating identification testimony by a witness. The factors included, among others, "Was the witness able to identify other participants in the crime?" Appellants argue that the instruction "signaled" to the jury that Lozano was also a participant in the crime. The instruction itself implies no such thing; it does not tell jurors how they should use this factor in evaluating a witness' testimony, and it made no reference to Lozano. Nor does the jury instruction imply anyone was convicted, much less Lozano.
When the prosecutor referred to the instruction, he obviously took the position that Lozano was a participant in the crime. The prosecution argued that Cortez had accurately identified Lozano, and that this showed that Cortez's identification of appellants was also accurate. But there was nothing improper about this argument. As explained above, evidence of Lozano's participation in the crime was admissible and probative to prove appellants' liability under several theories of relevance. And if the jury decided to adopt the prosecutor's reasoning, the jury could conclude Cortez had accurately identified Lozano based solely on other evidence in the record; the instruction did require or imply a finding that Lozano had been convicted of the charged robbery.
In short, Lozano's participation in the robbery was relevant to appellants' liability for it, and the challenged evidence was probative of appellants' guilt. Appellants have not demonstrated the evidence was so unduly prejudicial that it outweighed its probative value. We conclude the trial court did not abuse its discretion under Evidence Code section 352.
c. The Prosecution's Closing Argument and Powerpoint Slides
Appellants point to the prosecutor's statements and the Powerpoint slides he used in his closing argument. As we conclude above, appellants forfeited the claim with respect to these parts of the record. The prosecutor's statements and slides were not evidence, and appellants made no objections to them during closing arguments.
Regardless, the prosecutor's arguments and slides did not reveal that Lozano had been convicted. First, appellants identify several slides and the corresponding statements by the prosecutor that demonstrated Lozano's participation in the robbery and gang membership. These include the slides referencing Lozano's fingerprint on the iPhone together with the prosecutor's statements about them. The record shows the prosecutor used these slides to argue that the fingerprint evidence connected Lozano to the robbery, corroborated Cortez's identification of Lozano, and corroborated Rodriguez's use the "Find My iPhone" application, among other things. Another slide referenced Lozano's refusal to testify, which the prosecutor used as evidence showing his association with and loyalty to the gang. None of these slides or arguments suggested or implied Lozano had been convicted of the charged robbery.
One Powerpoint slide titled "Robberies on 8/29/15" contained two bullet points. The first bullet point stated, "Present crimes can support both primary activities and pattern of criminal activity (Robbery)." The second bullet point stated, "Derrick Lozano's conviction for Robbery with gang enhancement is evidence is [sic] support of primary activities and pattern of criminal activity." Appellants argue that the title of this slide implied Lozano's conviction was for a robbery committed on the same date as the charged robbery. We are not persuaded that this inference follows from the title of the slide itself. The date in the title, "Robberies on 8/29/15," could refer solely to the two robbery counts charged against appellants. The prosecutor's statements in closing argument were consistent with that interpretation: "The robberies on August 29, 2015. If you determine the robberies took place, you can use those robberies in support of a determination as to whether or not a pattern of criminal activity took place, and also whether or not robberies were in their primary activities. You also have Derrick Lozano's conviction for robbery with a gang enhancement, which is further evidence of the primary activities and pattern of criminal activities." (Italics added.) After stating the title with the date, the prosecutor referred to the charged robberies, which obviously took place on that date. The prosecutor then referenced Lozano's robbery conviction as additional evidence of primary activities and a pattern of criminal activities. In the context of the prosecutor's argument, the slide does not imply Lozano also committed a robbery on the date indicated by the title.
Another Powerpoint slide titled "Fingerprint evidence" referenced Lozano's fingerprint on Rodriguez's phone and referred to "other defendants" in the bullet points. Appellants contend the use of the phrase "other defendants" implied Lozano was also a defendant in this case. We agree that this slide implied Lozano was or had been a defendant, but it did not state or imply he had been convicted. We agree that this wording should not have been used, but there was abundant evidence that Lozano was a participant in the robbery. Whatever additional prejudice might have resulted from the implication that Lozano had been charged was marginal. Furthermore, the jury was instructed repeatedly that the attorneys' arguments were not evidence, and the jury was instructed not to speculate about whether any other participants had been prosecuted. Appellants point to nothing in the record to show that the jury did not understand or adhere to these instructions. In any event, appellants never objected to this slide.
4. Appellants Suffered No Sixth Amendment Violations
As part of this claim, appellants contend the admission of evidence showing Lozano pleaded guilty or that he was convicted of the charged robbery violated their rights under the Confrontation Clause of the Sixth Amendment. Burgos cites numerous federal appellate court cases for this proposition, but none of those authorities found a violation of the Confrontation Clause, and most of them preceded the seminal case of Crawford v. Washington (2004) 541 U.S. 36 (Crawford) [Sixth Amendment bars the admission of testimonial hearsay statements by a witness not subject to crossexamination]). Under Crawford, the Confrontation Clause bars the admission of testimonial statements. "This bar applies only to testimonial statements; admission of nontestimonial statements, while subject to state law hearsay rules, does not violate the confrontation clause." (Pettie, supra, 16 Cal.App.5th at p. 63.)
Appellants identify only one out-of-court statement as the basis for their claim under the Confrontation Clause. Lozano's attorney, Ignascio Camarena, testified that Cynthia Capito told him that a friend of Lozano's ("Matthew") had called Lozano a "rat." Capito, who testified for the defense, denied that the person called Lozano a rat. As explained below in section II.E, this statement did not constitute testimonial hearsay because both Camarena and Capito were available for cross-examination by the defendants, and the out-of-court statement made by the original declarant (Matthew) was not offered for its truth-i.e., it was not offered to prove that Lozano was actually a "rat" or that he was otherwise providing law enforcement with evidence or information that could incriminate others. Furthermore, appellants do not explain how this statement could have informed the jury that Lozano had been convicted for the charged robbery. The jury might have inferred Lozano was providing law enforcement with information, assuming they were inclined to credit the "rat" accusation, but Lozano also refused to testify when the prosecution called him at trial. Either way, the "rat" statement does not imply Lozano was convicted of the charged robbery.
Aside from this single piece of testimony, appellants do not identify any purported testimonial statements in any of the other evidence, closing arguments, or Powerpoint slides. We conclude the appellants have not shown any violations of their rights under the Confrontation Clause. In conjunction with their Confrontation Clause claim, appellants summarily assert the above evidence and instructions violated their due process rights. We find no support for this due process claim in any of the authorities cited by appellants.
For the reasons above, we conclude these claims are without merit.
D. Admission of Evidence Regarding the Capito Assault
Richardson contends the trial court erred by admitting evidence that Lozano's girlfriend, Cynthia Capito, was assaulted by someone who called Lozano a "rat" after one of Lozano's court appearances. The Attorney General contends Richardson forfeited this claim by failing to press the claim below. On the merits, the Attorney General contends the trial court did not abuse its discretion by admitting the evidence.
1. Background
Codefendant Byrd called Lozano's girlfriend, Cynthia Capito, to testify about the events she witnessed on the night of the robbery. Capito testified that she and Lozano had driven to Byrd's apartment that evening. She was waiting outside when she saw Lozano, Byrd, and "a few other guys" outside the apartment. Lozano and the other men left somewhere, and Byrd went back into the apartment. Capito did not see Byrd leave the apartment, and she did not see him again until after the police had arrived. She testified that she saw him outside on the balcony smoking a cigarette at that point.
On cross-examination, the prosecutor sought to impeach Capito's credibility by establishing her knowledge of and relationships with Crip gang members. She had known Lozano for more than 10 years. She acknowledged that she knew Stevenson as her boyfriend's "best friend." Nonetheless, she testified she was not familiar with the Crip gang, and she did not know any members of the gang.
Capito testified that she had attended one of Lozano's pretrial court hearings, and she had spoken to Lozano's attorney, Ignascio Camarena. The prosecutor asked Capito whether she had told Camarena that someone called Lozano a "rat" after the hearing. Capito responded that a person named Matthew had assaulted her mother and sister. She denied, however, that Matthew called Lozano a "rat."
The prosecution then called Camarena to testify about a conversation he had with Capito following Lozano's hearing. Camarena testified that Capito called him after the hearing and told him someone had confronted her and hit her in the face. According to Camarena, Capito also said the person who hit her was a common friend of hers and Lozano's, and that the person had called Lozano a rat. Capito called Camarena again the next day and told him the attacker was waiting in a car outside her house with some others.
2. Legal Principles
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We review a trial court's ruling under Evidence Code section 352 for abuse of discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 827.)" 'An exercise of discretion under Evidence Code section 352 will be affirmed unless it was arbitrary, capricious, or patently absurd and the ruling resulted in a miscarriage of justice.' [Citation.]" (People v. Bell (2019) 7 Cal.5th 70, 105.)
3. The Admission of Capito's Assault and Statement Was Not Erroneous
As an initial matter, we reject the Attorney General's contention that Richardson forfeited this claim. As the Attorney General acknowledges, trial counsel for Richardson expressly objected to the introduction of this evidence as prejudicial under Evidence Code section 352. The Attorney General argued it was relevant to impeach Capito's credibility by establishing her connections to the gang and showing she could be biased by the fear of retaliation. The trial court deferred ruling on the objection until after Camarena took the stand.
The Attorney General argues the claim was forfeited because the trial court never made a clear ruling on the objection and defense counsel failed to press for one. The trial court in this instance did defer ruling on the objection when defense counsel initially lodged it. However, the parties took up the scope of Capito's testimony and impeachment again two days later. Counsel for Richardson's codefendants asserted it was a waste of time, peripheral, redundant, and a "fishing expedition" to call Camarena and impeach Capito. The prosecutor again asserted it was necessary to challenge Capito's credibility and establish the potential for bias. In response, the court stated, among other things, "I don't believe that [Capito] is totally clueless about gang culture. It's incredulous." Defense counsel for Burgos again argued it was a waste of time. The court responded, "That's why you have cross-exam, right," and added, "[B]ased on the information that she's the baby mama of a gang member, she has to know something. I find it incredulous that she doesn't." Defense counsel argued there was no indication of exactly what the prosecutor would impeach her, and the court responded, "That's what we want to see."
While the court did not expressly state the objections were overruled, the court's statements made clear that was the case. The court indicated that the proffered cross-examination would be probative of Capito's credibility because it would demonstrate that her asserted lack of familiarity with the Crip gang was not credible. The court's statements imply that even if counsel for Richardson had pressed his specific objection under Evidence Code section 352, the court would have overruled it expressly. We conclude counsel's failure to continue to press a futile objection does not constitute forfeiture. (See People v. Boyette (2002) 29 Cal.4th 381, 432 [futility is one exception to the general rule of forfeiture].)
On the merits, however, this claim fails. Capito's credibility was important for Byrd's defense. If the jury credited her testimony, she provided a strong alibi for Byrd by placing him inside his apartment at the time of the robbery. Evidence that could undermine her credibility was thereby highly probative. It is well established that threats against a witness are relevant to the witness's credibility. "Evidence that a witness is afraid to testify or fears retaliation is admissible because it bears on credibility." (People v. Harris (2008) 43 Cal.4th 1269, 1288.)"' "Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witness's credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witness's fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.]" [Citation.]' [Citation.]" (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450.)
Richardson argues there was no evidence that the threats or assault against Capito was made by anyone with a connection to the Crip gang or the defendants. We do not think it would have been unreasonable for a jury to draw such an inference connecting the assault to the Crip gang. Conversely, Richardson argues that if the jury did infer that the defendants were connected to the assault, such an inference would have been unduly prejudicial. But an inference connecting the assault to the Crip gang would not have been unduly prejudicial as that term is defined under Evidence Code section 352. "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
Finally, Richardson argues the introduction of this evidence impermissibly informed the jury of Lozano's conviction. But nothing in the testimony by Capito or Camarena referenced the fact Lozano had pleaded guilty or the facts of his plea agreement. Evidence of Lozano's participation in the robbery, apart from the fact of his plea and conviction, was not improper.
For the reasons above, we conclude the trial court did not abuse its discretion by admitting the challenged testimony under Evidence Code section 352. Richardson further argues the admission of this evidence violated his federal due process rights. As to this claim, trial counsel never asserted these grounds below. In any event, the admission of the challenged testimony did not infuse the trial with such unfairness that it would rise to the level of a due process violation. (See Gagnon v. Scarpelli (1973) 411 U.S. 778, 790 ["fundamental fairness [is] the touchstone of due process"].) We conclude these claims are without merit.
E. Admission of Hearsay Testimony That Lozano Was Called a "Rat"
As set forth above in section II.D, the prosecution adduced testimony by Camarena that Capito told him her assailant had called Lozano a rat. Appellants Burgos and Richardson contend the admission of this statement constituted improper admission of hearsay and violated their constitutional rights of confrontation. The Attorney General argues the testimony did not constitute hearsay because the statement was not offered for its truth. For the reasons below, we agree with the Attorney General.
Evidence Code section 1200 defines hearsay as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "The admission of multiple hearsay is permissible where each hearsay level falls within a hearsay exception." (People v. Williams (1997) 16 Cal.4th 153, 199, fn. 3.)
Appellants assert two levels of hearsay were introduced here. First, the statement by Capito's assailant that Lozano was a rat. But that statement was not hearsay because it was never offered for its truth. The prosecution did not introduce it for the purpose of showing Lozano was a rat; rather, the prosecution sought to show Capito was biased through fear of a threat-that is, the statement was offered for its effect on the listener. (See People v. Mendoza (2007) 42 Cal.4th 686, 697 [out of court statement admissible not for truth but to show state of mind, motive, and conduct].) For the same reason, admission of the statement did not violate the Confrontation Clause, as that right only applies to testimonial hearsay. (People v. Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez).) Appellants cite no authority supporting the argument that the statement was testimonial in nature.
Appellants further argue there was a second level of hearsay-the statement by Capito that Camarena repeated in his testimony. But Capito had previously testified at trial and was questioned about whether the assailant called Lozano a rat. She thereby had the opportunity to deny the statement. As the Attorney General correctly points out, Camarena's in-court recital of Capito's statement to him constituted a prior inconsistent statement under Evidence Code sections 770 and 1235. Furthermore, because Capito was available for cross-examination in her testimony, the admission of her out-of-court statement through Camarena did not violate the Confrontation Clause. (Sanchez, supra, 63 Cal.4th at p. 680.)
Burgos and Richardson further contend that to the extent trial counsel failed to preserve these claims for appeal by objecting below, counsel rendered ineffective assistance of counsel. As explained above, the trial court properly admitted the challenged testimony. To warrant relief from a claim of ineffective assistance of counsel, a defendant must first show that trial counsel's performance "fell below an objective standard of reasonableness" in light of the prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) Here, counsel did not render deficient performance by failing to object because any further objections would have been properly overruled. Declining to lodge a futile objection does not constitute ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of counsel by declining to lodge a futile objection].)
Richardson further contends trial counsel rendered ineffective assistance by failing to object to the admission of Matthew's statement on Confrontation Clause grounds. Richardson argues that the factual portion of Lozano's plea agreement constituted a testimonial statement under the Sixth Amendment, and that the admission of Matthew's statement violated Richardson's right to cross-examine Lozano. As explained above, the asserted "rat" accusation by Matthew was not admitted for its truth. Furthermore, the accusation did not repeat or relay any statement made by Lozano in the plea agreement.
Richardson asserts the prosecution's elicitation of the "rat" statement was "nearly identical" to the Confrontation Clause violation that occurred in Douglas v. Alabama (1965) 380 U.S. 415 (Douglas). In Douglas, the defendant and a codefendant (Loyd) were tried separately, and Loyd was convicted. In Douglas's trial, the prosecutor called Loyd as a witness and Loyd refused to testify. While Loyd was still on the stand, the prosecutor produced a document claimed to be Loyd's signed confession. In the guise of cross-examination, the prosecutor proceeded to read from the document word-for-word, pausing every few sentences to ask Loyd if he had made those statements. Loyd refused to answer. The prosecutor then called three law enforcement officers who identified the document as Loyd's signed confession.
In this case, the prosecution called an attorney who said his client's girlfriend said a man named Matthew had called Lozano a rat. Douglas is not "nearly identical" to this case; Douglas is not remotely on point. Any objection by Richardson's trial counsel on these grounds would have been both futile and frivolous.
For all the reasons above, we conclude these claims are without merit.
F. Ineffective Assistance of Counsel for Failure to Obtain DNA Evidence
In his closing argument, trial counsel for Richardson argued he had been misidentified as one of the robbers. Counsel asserted Keison Hames was one of the robbers, and that Richardson had been confused with Hames.
On appeal, Richardson contends trial counsel rendered ineffective assistance of counsel by failing to obtain evidence required to compare Hames's DNA with DNA taken from the blue Nike shirt found in Byrd's apartment. The Attorney General contends trial counsel's performance did not fail below minimum constitutional standards because counsel acted diligently to obtain the results of the DNA tests. The Attorney General further argues Richardson was not prejudiced by the failure to obtain DNA test results because the presence of Hames's DNA on the blue Nike shirt did not prove he was one of the robbers.
1. Legal Standards
To establish ineffective assistance of counsel, the defendant bears the burden of showing trial counsel's performance was deficient-that it "fell below an objective standard of reasonableness" in light of the prevailing professional norms. (Strickland, supra, 466 U.S. at p. 688.) Under this standard, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Id. at p. 691.) "As with other aspects of performance, we measure the sufficiency of an attorney's investigation according to the prevailing norms at the time." (In re Gay (2020) 8 Cal.5th 1059, 1077.)" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citations]" '" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) Second, the defendant must show the asserted deficiency in counsel's performance resulted in prejudice, defined as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, at p. 694.)
2. Factual and Procedural Background
In the in-field showups, Cortez told police he recognized Richardson as one of the robbers. In closing argument, trial counsel for Richardson asserted Hames was the actual robber, and that Cortez mistook Richardson for Hames in part because the two men had similar faces and physical builds. Richardson was six feet tall and 270 pounds. Hames was six feet tall and 240 pounds. The police took photographs of the two men after they were taken out of Byrd's apartment. In the photos, Richardson is shown wearing a dark shirt, and Hames is shown wearing a white tank top. They both wore full beards. Richardson was 26 years old at the time of the robbery, and Hames was 30 years old.
Rodriguez told the police the robbers were all wearing shirts that were "black, maybe dark blue," with no writing. He also stated the biggest man in the group had asked the victims what they had in their pockets. As Rodriguez's father was driving him home shortly after the robbery, Rodriguez recognized this same bigger, "heavyset guy" standing in a group of three men on the corner of Bowling Green Drive and King Road. Rodriguez told police the man was wearing a short-sleeve t-shirt, and Rodriguez could see that it was dark blue "for sure" because the car's lights were shining on the man. Rodriguez described the man as six feet one or two inches tall, weighing "200-something" pounds. Rodriguez's father told police the man was six feet one inch tall and at least 250 to 260 pounds.
When the police responded to the robbery report around 1:00 a.m., one of the officers saw three black males standing near Byrd's apartment complex. As the officers approached the men, they ran into the complex. One of the officers testified that one of the males was wearing a "very, very noticeable" bright teal or turquoise shirt. When the police entered Byrd's apartment, they detained Hames together with appellants and Lozano.
In the in-field showups, the police showed both Richardson and Hames to Rodriguez, but he did not recognize either man.
The police showed Richardson and Hames to Cortez as well. Cortez did not recognize Hames, but he recognized Richardson. When an officer asked Cortez if this was the man who said, "[T]ake everything from his pockets," Cortez responded, "Yeah." Cortez also said the man had stuck his hands in Cortez's pockets.
Police later found a size 3XL blue shirt inside Byrd's apartment. The Nike "JUST DO IT" logo was printed on the front of the shirt in large white block letters. In a photograph of the shirt, the color appears as a vivid bright blue. The Crime Lab analyzed DNA samples taken from the blue Nike shirt and compared them with DNA samples taken from the defendants and the victims, but no DNA sample had been taken from Hames. At trial, a forensic biologist from the Crime Lab testified about the results. The DNA samples from the shirt contained a mixture of DNA from at least two persons, at least one of whom was male. Appellants, Lozano, Byrd, and both victims were excluded as potential contributors to the mixture.
We do not assume the color of the shirt as it appears in the photocopied photograph precisely reflects the color as it would appear to a naked eye viewing the actual shirt.
Hames died of a drug and alcohol overdose in February 2016. In May 2016, Richardson's trial counsel requested that the prosecution compare Hames's DNA with DNA taken from the shirt. On August 30, 2016, a representative from the Office of the District Attorney's Crime Laboratory ("Crime Lab") asked the California Department of Justice if Hames was in the CODIS database. A representative from the Department of Justice responded that Hames was not in the CODIS database.
Deputy Public Defender Panteha Saban represented Richardson at the time. In October or November 2016, Deputy Public Defender Andres Alalcazar took over representation of Richardson.
Later that same day, the prosecution e-mailed defense counsel and acknowledged receiving a letter from counsel dated August 26, 2016, in which counsel had requested that the Crime Lab conduct the DNA comparison. In the e-mail, the prosecutor told defense counsel that the request for a comparison was "fair and reasonable" but that the prosecution did not have a DNA sample from Hames, which was necessary for the comparison. The prosecutor stated it would revisit the request "[i]f you obtain a reference sample through your own investigation (perhaps through the coroner or a personal item of Mr. Hames)."
The prosecutor's e-mail also acknowledged defense counsel's request that the prosecution use the CODIS database to check for a match to the DNA taken from the blue Nike shirt. The prosecutor responded, "Again, this is a reasonable thought, but it runs into two insurmountable problems. The first is that we checked the CODIS data base using Mr. Hames's name and D.O.B., and he is not in CODIS." The second insurmountable problem was that "there are very strict rules" for accessing the CODIS database and "we do not believe that this meets the criteria for submission into CODIS, but even if it did, the DNA of Mr. Hames is not in CODIS."
On March 1, 2017, the prosecutor told the trial court that the prosecution and the Crime Lab could not conduct any examinations of Hames's DNA. The prosecutor stated, "We are prohibited by law from engaging in that, and the materials we had do not allow for such an examination." As to the decision not to collect a DNA sample from Hames, the prosecutor added that there was no probable cause to search Hames at the time.
The last witness was called on March 6, 2017, and subject to the admission of various exhibits, the parties rested. That same day, the Director of the Crime Lab e-mailed the Department of Justice. The e-mail referred to the Crime Lab's prior request in August 2016 asking the Department of Justice to check CODIS for Hames's DNA. The Director wrote, "You responded that no one with that name and DOB was in the database. The case in question is now in trial, and for reasons we cannot fully understand, the judge is asking: 1) Why isn't Mr. Hames in CODIS since he has a criminal record which includes 3 prison sentences?; [¶] 2) Is it possible that CODIS made a mistake with the input of the information and could they recheck Mr. Hames' information?"
At 11:00 a.m. the next day, March 7, 2017, the Department of Justice responded by e-mail, writing that they had located a DNA sample for Hames in the CODIS database. The e-mail said the sample had been in CODIS since 2006, but the Department of Justice was unable to find it in response to the initial August 2016 request because the sample was collected by an agency that had misspelled Hames's name.
The Crime Lab immediately forwarded this e-mail to the prosecutor, who in turn forwarded it to defense counsel.
The parties appeared in court that afternoon outside the presence of the jury. The prosecutor informed the trial court that Hames's DNA had been located in CODIS and explained the reasons for the prior failure to locate it. The prosecutor asserted, however, that the Crime Lab still could not conduct a comparison of Hames's DNA with the DNA samples from the blue Nike shirt. The prosecutor stated that the Crime Lab did not itself have access to CODIS, and that getting access to it required the Crime Lab to submit an "evidentiary profile" that would satisfy the CODIS eligibility criteria. Richardson moved to dismiss the case against him on grounds of due process and prosecutorial misconduct, but the court denied it.
The parties negotiated numerous stipulations, which the court gave to the jury as follows: On August 29, 2015, law enforcement did not deem Hames to be a suspect in the robbery, and law enforcement lacked probable cause to apply for a search warrant for Hames's DNA; in May 2016, the defense requested that DNA from the shirt be compared with Hames's DNA; in August 2016, the California Department of Justice communicated in August 2016 that there was no DNA sample from Hames in the federal DNA database; on March 7, 2017, the Department of Justice advised that Hames's DNA was in the CODIS database, and the earlier mistake was based on the misspelling of his name; Richardson's attorneys were advised in August 2016 that Hames's DNA was not in the database, and even if it were, the Crime Lab was legally precluded from performing a comparison based on the absence of evidence tying the Nike shirt to the actual perpetrators of the robberies; and the prosecution's Crime Lab was unable to perform a comparison because it did not have a DNA sample for Hames.
Closing arguments began the next day, and the jury reached its verdicts on March 17, 2017. In May and June of 2017, Richardson's trial counsel exchanged multiple e-mails with the Crime Lab referencing counsel's efforts to obtain a DNA comparison. Among other efforts, trial counsel met with the prosecution and Crime Lab representatives on June 13 to review and discuss the evidence as it pertained to the CODIS eligibility criteria. As of June 29, counsel continued to argue the eligibility criteria for a CODIS search had been satisfied, and the Crime Lab continued to disagree. The parties also discussed the possibility of obtaining DNA samples from tissues that might have been taken from Hames as part of the coroner's examination.
On October 4, 2017, defense counsel e-mailed the prosecution and the Crime Lab to inform them his investigator had contacted the coroner's office and determined that they had several tissue samples taken by the coroner who performed the autopsy on Hames. Counsel asked which of the various tissue samples would be best for testing and requested that they begin the process as soon as possible. The Crime Lab responded, and over the next two days, the parties arranged to have the coroner's office deliver a sample to the Crime Lab.
Counsel was unable to obtain the results of the testing prior to sentencing, and the trial court denied his motion to continue sentencing at the sentencing hearing on October 13, 2017. After sentencing, the Crime Lab provided Richardson with a report on the test results dated November 1, 2017, showing Hames was included as a possible contributor to the DNA on the shirt.
3. Richardson Has Not Shown Trial Counsel's Performance Was Deficient
Richardson contends his trial counsel failed to make adequate investigations required for his defense. Specifically, Richardson argues counsel was informed months before trial that Hames had died, and that counsel failed to take steps that could have allowed the defense to obtain the sought-after DNA testing results.
The record is clear that the parties had access to testing using samples of DNA taken from the blue Nike shirt, but based on his third party culpability defense, Richardson's trial counsel sought to have those samples compared with a sample of Hames's DNA. The record also establishes that trial counsel was aware as early as August 2016 that Hames had died.
Richardson does not deny that his trial counsel made diligent efforts to obtain DNA tests from the prosecution's Crime Lab. Counsel made numerous attempts to have the Crime Lab compare DNA from the blue Nike shirt to a sample of Hames's DNA from the CODIS database. Nor does Richardson claim trial counsel was at fault for failing to obtain test results through that strategy. The record establishes that the prosecution erroneously informed defense counsel Hames was not in the CODIS database because the Department of Justice failed to find Hames in it. Subsequently, the Department of Justice was in fact able to locate Hames's DNA in the CODIS database. Moreover, the Department of Justice did so within hours of receiving an e-mail from the Director of the Crime Lab relaying the judge's inquiries into the matter. This suggests the problem was not "insurmountable" as the prosecution had stated to defense counsel in August 2016. Even then, the record shows the Crime Lab continued to refuse defense counsel's requests, on the ground the Crime Lab was legally prohibited from access CODIS for that purpose. All these facts show defense counsel made diligent efforts to seek testing, and the failure to obtain results through this strategy could not be blamed on counsel.
Richardson argues instead that defense counsel's performance was deficient because he did not attempt to obtain a sample of Hames's DNA from the coroner until it was too late. We note first that it is apparent the record does not provide a complete accounting of counsel's efforts to obtain testing. The e-mails and correspondence in the record contain numerous references to other communications and meetings not documented in the record. Absent a declaration from trial counsel, it is difficult to fairly assess the totality of counsel's efforts. But the defendant bears the burden to establish deficient performance. (People v. Codinha (2021) 71 Cal.App.5th 1047, 1064.)
As to trial counsel's efforts to obtain Hames's DNA samples from the coroner, e-mails between counsel and the Crime Lab suggest counsel was making efforts to do so around June 2017. On June 29, 2017, the prosecution responded, "Let me know how it goes with the coroner's office." The record does not establish precisely when defense counsel first contacted the coroner's office or how long the process took, but an e-mail from defense counsel to the Crime Lab on October 4, 2017, states that counsel had learned the coroner retained several tissue samples from Hames. At that point, defense counsel requested that the Crime Lab proceed with the testing and asked which tissue sample should be sent. These events all took place three to seven months after the jury had rendered verdicts, and the sentencing hearing was held on October 13, 2017. The Crime Lab generated a report documenting the test results on November 1, 2017, about four months after defense counsel e-mailed the prosecution and Crime Lab about the possibility of getting samples from the coroner.
We cannot know with certainty whether trial counsel could have obtained test results in time for trial by contacting the coroner's office sooner, but the record suggests that conclusion is reasonable. But the question is not whether counsel could have acted more expeditiously; the question is whether the failure to do so fell below prevailing professional norms at the time. (Strickland, supra, 466 U.S. at p. 688.) Richardson provides little support on this point. He relies on In re Sixto (1989) 48 Cal.3d 1247 (Sixto), a death penalty case in which the defendant was convicted of first degree murder, sodomy, and lewd and lascivious conduct in the killing of a five-year-old boy. In Sixto, the defendant consistently told several doctors he had drunk about 20 to 24 beers on the day of the killing. (Id. at p. 1259.) He also told doctors the beer had been had surreptitiously spiked with PCP. (Id. at pp. 1254-1255.) A blood sample was taken from the defendant the morning after the killing, but the sample was never tested for blood alcohol. (Id. at p. 1253.) In the penalty phase, a neurologist-psychiatrist opined that Sixto was highly intoxicated with alcohol and probably PCP, in addition to having a seizure disorder. (Id. at p. 1255.) The jury imposed the death sentence. In habeas proceedings, Sixto alleged trial counsels' performance was deficient for failure to investigate Sixto's blood-alcohol level, PCP usage, and other evidence. (Id. at p. 1257.) He argued counsels' failure to have the blood sample tested undermined his diminished capacity defense. Neither trial counsel provided any explanation for the failure to have the blood sample tested. The California Supreme Court held trial counsels' performance was deficient. (Id. at p. 1264.)
This case did not involve a basic failure to investigate critical evidence. Trial counsel did not simply ignore the matter of DNA testing. As set forth above, counsel made repeated attempts over the course of several months to have samples of DNA from the blue Nike shirt tested against a sample of Hames's DNA. A confluence of factors prevented this, none of which were counsel's fault: Hames had died months before; the prosecution erroneously informed counsel Hames's DNA was not in the CODIS database; and even after the error was discovered, the Crime Lab refused to conduct a DNA comparison on the ground it was legally prohibited from doing so.
While it is possible trial counsel could have obtained test results in time for trial if he had contacted the coroner sooner, on this record we cannot assume this was so obvious at the time that no reasonable defense attorney would have done otherwise. Richardson provides no authorities or sources to the contrary. Richardson points out that the prosecution's e-mail of August 30, 2016, mentioned the possibility of getting a reference sample from the coroner or a personal item of Hames's. As a general matter, a defense attorney has no professional obligation to entertain a prosecutor's suggestions on how to conduct investigations.
We note that in the next paragraph of the same e-mail, the prosecution erroneously told defense counsel that Hames was not in the CODIS database, a problem the prosecutor described as "insurmountable." To be clear, the record establishes that the prosecution did not intentionally mislead counsel, but its information was nonetheless unreliable on that point.
We conclude Richardson has not met the burden of showing trial counsel's performance was deficient.
4. Richardson Suffered No Prejudice from the Failure to Obtain DNA Evidence
Even assuming Richardson could establish deficient performance, he must also show he was prejudiced by counsel's failure to timely obtain test results-that is, Richardson must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.)
Richardson contends the test results provided critical evidence supporting his theory that he had been mistaken for Hames. Richardson argues that if the results of the successful DNA match had been presented at trial, his counsel could have established that Hames was the man in the teal shirt who fled from the police when they arrived at the apartment complex. He argues the evidence further shows Hames changed his shirt once inside the apartment, suggesting he intended to hide evidence of his involvement.
We are not persuaded. The defense theory required numerous other inferences that were unsupported by evidence, even apart from the DNA test results. First, a positive match between Hames's DNA and the DNA from the blue Nike shirt does not prove Hames was wearing it the evening of the robbery. As the prosecution pointed out, Hames was in the apartment with the shirt, and his DNA could have been transferred to the shirt without his wearing it. Second, even assuming the defense could show Hames was wearing the shirt, that does not prove he was one of the three men who fled from the police. Richardson points to the testimony of one of the officers who saw one of the men wearing a "very, very noticeable" bright teal or turquoise shirt. While this is consistent with the theory that the man was wearing the blue Nike shirt, it is hardly conclusive evidence.
Third, even assuming Hames was one of the three men who fled from the police, there was no evidence he was present at the scene of the robbery. Richardson argues that the man's flight from the police showed consciousness of guilt. But there was no evidence that man was even aware the police had discovered a crime. The jury had no basis to determine whether the man fled from the police because he knew he was guilty of a robbery, or whether he fled for unrelated reasons-e.g., because he was afraid of the police. "As numerous judges before us have recognized, many individuals-including, particularly, people of color-commonly hold a perception that engaging in any manner with police, including in seemingly casual or innocuous ways, entails a degree of risk to one's safety." (People v. Flores (2024) 15 Cal.5th 1032, 1053 (conc. opn. of Evans, J.); see also Illinois v. Wardlow (2000) 528 U.S. 119, 132 (conc. &dis. opn. of Stevens, J.) ["Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous"].)
Richardson points to Rodriguez's statement that he saw one of the robbers standing on the corner of Bowling Green Drive and King Road near the apartment complex when Rodriguez's father drove him home. Based on their descriptions of the man's size-six feet one or two inches tall, weighing at least 250 pounds-Richardson contends that man could have been Hames, who was six feet tall and 240 pounds. Richardson argues that this was the same man in the teal shirt who ran from the police when they arrived, and that Rodriguez did not recognize him in the showups because Hames had taken off the shirt.
This piece of the theory requires two more unsupported inferences: First, it assumes the men Rodriguez and his father saw on the corner were the same men police saw at the apartment building when they arrived soon after the 911 call. Rodriguez's father told the 911 dispatcher that when he (the father) saw the three men standing on the corner, he just kept driving straight past them-which he could only do if he was driving on King Road at the time. And the father repeatedly warned the dispatcher that if the police came down King Road, the men would spot the police coming. But the police officer who saw the three men never testified that they were standing on the corner. He testified that they were standing near the apartment complex, and he marked an "X" at that spot on People's Exhibit #1, a map of the area. The "X" on the map shows the three men were standing on the opposite side of the building from King Road, such that the view from King Road was blocked by the building. Richardson's theory therefore required the jury to infer the men must have left the corner and walked around to the other side of the apartment building before the police arrived.
Furthermore, Rodriguez told police that the man he recognized on the corner was wearing a dark blue shirt "for sure" because the car's lights were shining on the men. Likewise, Rodriguez told the police the men at the scene of the robbery were wearing black or dark blue plain shirts with no writing. Rodriguez never described anyone, either on the corner or at the scene of the robbery, as wearing a bright blue shirt or a shirt with a logo, letters, or anything else on the front. Nothing in the record shows Rodriguez saw the blue Nike shirt at trial either. Neither Richardson's counsel nor any other party showed the blue Nike shirt to Rodriguez when he testified.
In short, the only possible probative value from a DNA match was to show Hames had been wearing the blue Nike shirt. There was no other evidence to support a finding that Hames was at the scene of the robbery. Richardson points to the physical similarities between Hames and Richardson, but Hames was shown to both Rodriguez and Cortez in the in-field showups, and neither victim recognized Hames. Furthermore, Byrd testified that Hames stayed behind while Richardson and the others went to the store. Finally, the victims told police there were four to six men in the group that robbed them. Even if the jury concluded Hames was one of the robbers, that would not have exonerated Richardson because both men could have been involved.
Trial counsel for Richardson repeatedly asserted that Cortez's identification of Richardson was the only evidence the prosecution presented to prove he was guilty. Richardson's briefs on appeal echo trial counsel's assertion. This claim ignores what was arguably the prosecution's most persuasive evidence: The 7-Eleven store video camera recordings. The video recordings had probative value not only because they showed appellants across the street from the scene of the robbery near the time it occurred, but also because the videos showed appellants moving together as one group, playfully pushing and shoving each other as they entered and exited the store together. Evidence that the group acted in concert supported an inference that appellants all shared the intent to commit the robbery, establishing each member's joint liability for the conduct of other members. But Hames did not appear in those videos; Richardson clearly did. The jury's acquittal of Byrd-the only defendant who did not appear in the videos-suggests the jury found them persuasive.
Considering the overall state of the evidence, a finding that Hames's DNA was on the blue Nike shirt would have had little or no effect on a reasonable juror's evaluation of Richardson's culpability. Pointing to the unreliable nature of identification testimony, Richardson argues the evidence against him was not strong, and he asserts this was a close case. Even so, the DNA test results would have done little to move the needle.
We conclude Richardson has not shown a reasonable probability that the outcome of the proceeding would have been different if trial counsel had procured the DNA test results in time to present them at trial. This claim is without merit.
G. Instructing the Jury that Evidence of Possessing Stolen Property May Be Used as Evidence of Robbery
Burgos and Richardson contend the trial court erred by instructing the jury based on CALCRIM No. 376 that evidence a defendant knowingly possessed stolen property could be used in finding he committed robbery. They argue the evidence was insufficient to support such an instruction because they were merely present inside the apartment where the stolen phone was found. The Attorney General argues the instruction was supported by the evidence, and nothing in the record shows the jury misapplied it.
1. Procedural Background
The trial court instructed the jury based on CALCRIM No. 376 as follows: "If you conclude that a defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict a defendant of robbery based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed the robbery as alleged in Counts 1 and/or 2. [¶] The supporting evidence need only be slight and need be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of robbery as charged in Counts 1 and/or 2. [¶] Remember that you may not convict a defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
All three appellants objected to the instruction on the ground there was no evidence to show any of them possessed stolen property. The prosecutor argued there was evidence of joint possession by the defendants in the apartment, as well as circumstances linking each of the defendants individually to the property. The court agreed with the prosecutor and impliedly overruled the objections.
2. Legal Principles
" 'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' [Citation.]" (People v. Najera (2008) 43 Cal.4th 1132, 1136.)
"A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion." (Francis v. Franklin (1985) 471 U.S. 307, 314.) "A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citation.]" (Id. at pp. 314-315.)
We apply the de novo standard of review to a claim of erroneous jury instructions. (People v. Posey (2004) 32 Cal.4th 193, 218 (Posey).) The correctness of jury instructions is determined by looking at the context of the entire charge, not by considering only part of an instruction or a particular instruction in isolation. (People v. Salazar (2016) 63 Cal.4th 214, 248 (Salazar).)
3. The Trial Court Did Not Err by Instructing the Jury Based on CALCRIM No. 376
Burgos and Richardson point out that Cortez's stolen phone was found inside a backpack inside Byrd's apartment, not in plain view. They argue the evidence that they were knowingly in possession of the phone, or that they were even aware of its presence, was insufficient to justify the instruction.
We are not persuaded. Possession need not be exclusive, and physical possession is not a requirement; it is sufficient if the defendant has a measure of control or dominion over the stolen property. (See People v. Land (1994) 30 Cal.App.4th 220, 224 [discussing elements of receiving stolen property].) When the police arrived at Byrd's apartment after the robbery, they found all three appellants and Lozano inside, together with Cortez's phone. The evidence the phone was stolen was strong. The fact that the phone had been concealed inside a backpack shows consciousness of guilt and evidenced a degree of control over the object. The prosecution's expert testified that appellants were members of a criminal street gang, and robbery was one of the gang's primary activities. Viewed in its entirety, this evidence was sufficient to warrant the instruction.
Appellants cite case law governing the sufficiency of evidence necessary to sustain a conviction for receiving stolen property. (See People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [evidence insufficient to infer defendant as a passenger possessed stolen chain saw found in rear seat of car].) But those cases did not concern the instruction at issue here. Appellants cite no authority for the contention that CALCRIM No. 376 may only be given if the evidence is sufficient to sustain a conviction for receiving stolen property.
Appellants argue the jury was not instructed on the concept of possession. They argue that the jury could have believed that appellants' mere presence in the apartment meant they were in possession of the phone, regardless of whether they knew it was there. This ignores the plain language of the instruction, which told the jury it could only make an inculpatory inference if they concluded the defendant knew he was in possession of the property. Appellants argue that the prosecutor in closing argument glossed over this requirement. In the quoted portion of the argument, the prosecutor was discussing the elements of the robbery charge when he stated, "[A] person does not have to actually hold or touch something to possess it. It is enough if the person has control of it or the right to control it, either personally or through another person." It appears the prosecutor was referring to the jury instructions on robbery, in which told the court told the jury, "A person takes something when he or she gains possession of it, moves it some distance. The distance moved may be short. The property taken can be of any value, however slight. Two or more people may possess something at the same time. [¶ . . . ¶] Property is within a person's immediate presence if it is sufficiently within his or her physical control that he or she could keep possession of it if not prevented by force or fear." There is no reasonable probability the jury misapplied these statements to CALCRIM No. 376 in way that would eliminate the knowledge requirement of the instruction. In any event, no defense counsel objected to this line of argument.
Appellants argue that even if they possessed stolen property, that would not give rise to an inference that they were the persons who committed the robbery. But having possession of stolen property that was taken in a robbery only hours beforehand tends to support an inference that the person in possession was involved. That is the precise reasoning underlying the instruction, which California courts have long approved.
Appellants rely on People v. Morris (1988) 46 Cal.3d 1 (Morris) (disapproved on other grounds by In re Sassounian (1995) 9 Cal.4th 535). In Morris, the California Supreme Court considered a substantially similar instruction based on CALJIC No. 2.15. (Morris, at p. 40.) The trial court had instructed the jury," 'The mere fact that a person was in conscious possession of recently stolen property is not enough to justify his conviction of the crimes charged in the information.'" (Id. at p. 40, fn. 16.) The Supreme Court held, "[W]here the evidence relating to 'possession' is conflicting or unclear, an unqualified instruction pursuant to CALJIC No. 2.15 should not be given, for it could easily mislead the jury into assuming that the defendant's possession has been established when, in actuality, the issue is in doubt." (Id. at p. 40.) The Supreme Court concluded, however, that there was no likelihood the jury was misled because the trial court had further instructed the jury," 'Whether some of the instructions will apply will depend upon your determination of the facts. [¶] You will disregard any instruction which applies to a state of facts which you determine does not exist. [¶] You must not conclude from the fact that an instruction has been given that the court is expressing any opinion as to the facts.'" (Id. at p. 41, italics omitted.) Accordingly, the Supreme Court rejected Morris's challenge to the instruction.
The instruction given in this case differed from the instruction in Morris because the instruction here was conditional on the jury finding the defendant knew he possessed stolen property: "If you conclude that a defendant knew he possessed property and you conclude that the property had in fact been recently stolen ...." Thus, the instruction was not unqualified and there was no likelihood the jury was misled into thinking any defendant's possession of stolen property had been established. For that reason, Morris does not support appellants' argument. We applied this holding in People v. Williams (2000) 79 Cal.App.4th 1157, 1172 (unlike the instruction in Morris the trial court's instruction was not unqualified in a way that might imply that defendant did in fact possess stolen property). That reasoning applies with equal force here.
For the reasons above, we conclude this claim is without merit.
H. Jury Instruction on Eyewitness Identification
Burgos and Richardson contend the trial court's instructions to the jury based on a version of CALCRIM No. 315 concerning eyewitness testimony violated their state and federal due process rights. Both appellants contend the instruction was erroneous because it told jurors that in evaluating identification testimony, jurors could consider how certain the witness was when they made the identification. Burgos further contends the instruction improperly told the jury it could consider whether the witness was able to identify other participants in the crime. The Attorney General contends appellants forfeited these claims by failing to object below, and that the instruction did not violate appellants' due process rights.
1. Factual and Procedural Background
As set forth above in section I.A.3, the police conducted in-field showups in which Burgos and others were shown to Cortez. According to the transcript of the audio recording, when the officer showed Burgos to Cortez and asked Cortez if he recognized "this gentleman," Cortez said he did. When the officer asked Cortez why he recognized the person, Cortez responded," 'Cause he was the one who took my wallet." The officer asked Cortez, "[Y]ou're positive that he's the one that took your wallet?" Cortez responded, "Oh, yeah."
Counsel for defendant Byrd introduced the testimony of Geoffrey Loftus, an expert in human perception and memory. Among other things, he testified about the ways in which a witness's initial memory of an event may be affected by information the witness receives after the event. Over time, the witness's memory of the event may change to include potentially false details as a result of receiving inaccurate post-event information, but the witness is unaware of this effect, and they may express great confidence in the accuracy of the memory.
Loftus also testified about how low levels of light and different lighting angles can reduce a witness's visual ability to perceive color and detail, which in turn limits the amount of information the witness is able to acquire in forming the initial memory. Loftus testified to several other factors that can affect the initial formation of a memory and how reliable it is. These include stress, alcohol, the duration of the event, a desire to forget the event, and the human tendency to focus attention on one aspect of a scene while ignoring other aspects. "Weapon focus" is a specific example of this last factor: When a gun is present at a scene, people tend to focus their attention on the gun while ignoring other things, such as the appearance of the person holding the gun.
When asked whether a witness's expression of high confidence in the accuracy of an identification equated to actual accuracy, Loftus responded that it depends on the circumstances. If the circumstances surrounding the formation of the initial memory are optimal-e.g., there is plenty of time to observe the event, good lighting, and the witness's attention is focused on the relevant aspects of the event-and if there is no obvious source of post-event information, then there is a correlation between confidence and accuracy. Under less favorable circumstances, the correlation breaks down.
Finally, Loftus testified about two identification procedures police use for witnesses to identify suspects: Line-ups and in-field showups. Loftus opined that an identification made as part of a properly conducted, unbiased line-up is reasonably reliable. By contrast, the showup proceeding is inherently unreliable because it allows the witness to make an identification by viewing only one suspect. The witness may have a strong expectation that the suspect shown to them is the actual offender, the witness may be motivated to make an identification, or the witness may feel social pressure to do so.
Based on the June 2007 version of CALCRIM No. 315, the trial court instructed the jury in relevant part, "In evaluating identification testimony, consider the following questions: [¶ . . .¶] How certain was the witness when he or she made the identification? [¶ . . .¶] Was the witness able to identify other participants in the crime?" Defense counsel did not object or request any modifications to these instructions.
The trial court modified the instruction to allow jurors to consider whether the witness consumed drugs or alcohol in evaluating identification testimony. The modification is not at issue on appeal.
2. Legal Principles
" 'The touchstone of due process is fundamental fairness.' [Citations.] A jury instruction may' "so infuse[ ] the trial with unfairness as to deny due process of law."' [Citation.] However,' "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is' "whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process." '"' [Citation.]" (People v. Lemcke (2021) 11 Cal.5th 644, 655 (Lemcke).) As set forth above, we review the correctness of a jury instruction de novo, looking at the instruction as a whole and in the context of other instructions. (Salazar, supra, 63 Cal.4th at p. 248; Posey, supra, 32 Cal.4th at p. 218.)
"[A] proper instruction on eyewitness identification factors should focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. [¶] The instruction should not take a position as to the impact of each of the psychological factors listed." (People v. Wright (1988) 45 Cal.3d 1126, 1141 (Wright).)
3. The Jury Instructions on Identification Testimony Did Not Violate Appellants' Due Process Rights
As an initial matter, we address the Attorney General's contention that appellants forfeited this claim by failing to object or request any modifications. As to the portion of the instruction concerning the witness's degree of certainty in making the identification, appellants respond that any objection would have been futile because prior courts had upheld that portion. Appellants are correct on this point. At the time of trial, there were three California Supreme Court cases that had approved the same witness certainty factor as used in CALJIC No. 2.92. (See People v. Sanchez (2016) 63 Cal.4th 411, 462 [citing prior cases that approved inclusion of this factor in the instruction].)
Four years after the trial in this matter, the California Supreme Court reconsidered the portion of the instruction concerning a witness's certainty in the identification. In Lemcke, supra, 11 Cal.5th 644, the court acknowledged that, "Contrary to widespread lay belief, there is now near unanimity in the empirical research that 'eyewitness confidence is generally an unreliable indicator of accuracy.' [Citations.]" (Id. at p. 647.) The court then referred the issue to the Judicial Council for an evaluation of whether or how the instruction might be modified to avoid juror confusion. (Id. at p. 647.)
The Judicial Council subsequently revised CALCRIM No. 315. The bench notes to the current version provide that if there is evidence a witness has expressed certainty about an identification, the prior language on certainty should be included, but it should be accompanied by qualifying language, and the bench notes set forth additional factors the jury may consider as part of this evaluation.
However, considering the instruction in the context of the trial record as a whole, the Lemcke court held the language on witness certainty did not violate the defendant's due process rights. (Lemcke, supra, 11 Cal.5th at p. 646.) The court cited its prior rulings on the language and reiterated that "the instruction does not direct the jury that 'certainty equals accuracy.' [Citations.]" (Id. at p. 647.) The court also noted that the defense had been permitted to call an expert witness to testify that certainty is generally not predictive of accuracy, and the jury was instructed to consider the expert's testimony. (Ibid.) The jury was also instructed that the prosecution bore the burden to prove identity beyond a reasonable doubt, and that witnesses sometimes make honest mistakes. (Ibid.)
This case is indistinguishable from Lemcke on those points. As in Lemcke, the defense was permitted to call an expert witness who testified at length about the relationship between witness certainty and the accuracy of an identification, and the jury was instructed that it must consider the expert's opinions. The jury was also instructed that the prosecution had the burden to prove beyond a reasonable doubt the identity of the defendant as the one who committed the crime. And the instructions for evaluating witness testimony told the jury, "People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently."
Considering the similarities between this case and Lemcke, and based on the record as a whole, we conclude the inclusion of witness certainty in the instructions on identification testimony did not violate appellants' due process rights.
Burgos further argues the certainty instruction lowered the prosecution's burden of proof, but as set forth above, the jury was instructed on the burden of proof specifically as the element of identity, and the neutral wording of the instruction also allowed jurors to use the listed factors in finding reasonable doubt. For these and other reasons, the California Supreme Court rejected this argument. "[W]e find nothing in CALCRIM No. 315's instruction on witness certainty that operates to 'lower the prosecution's burden of proof.'" (Lemcke, supra, 11 Cal.5th at p. 657.) Burgos argues the instruction denied him a meaningful opportunity to present a defense, but again, the court in Lemke rejected this argument for reasons that apply here as well. (Id. at p. 660.) Burgos points to nothing in the record to distinguish Lemcke on this point.
As to the portion of the instruction that allowed the jury to consider whether the witness was able to identify other participants in the crime, the Attorney General is correct that Burgos forfeited this claim by failing to object. In his reply brief, Burgos claims trial counsel objected to the instruction, but the record shows otherwise. Burgos cites to the parties' arguments concerning the admissibility of evidence of Lozano's conviction. During the prosecution's case in chief, counsel for Burgos objected to the admission of Lozano's conviction, and the prosecutor put forth several grounds for its admission. Among others, the prosecutor argued Lozano's conviction was relevant under this portion of CALCRIM No. 315. Counsel for Burgos objected to the use of Lozano's conviction on that ground, but she did not object to the instruction itself, and the instruction is not limited to any specific witness or identification. Three weeks later, the trial court reviewed the parties' objections to the jury instructions, confirming that no defense counsel made any objections or requests for modifications to the instruction based on CALCRIM No. 315. Burgos has thereby forfeited this claim. (See People v. Sanchez, supra, 63 Cal.4th at p. 461 [defendant forfeited claim by failing to request modification to portion of CALJIC No. 2.92].)
In any event, we would conclude the inclusion of this factor in the identification testimony instruction did not violate Burgos's due process rights. Burgos cites no authority holding that the inclusion of this factor constitutes instructional error. Instead, he cites two cases from other states concerning the admission of witness testimony. (See State v. Hicks (Wis. Ct. App. 1984) 121 Wis.2d 700 [no abuse of discretion to prohibit defense counsel from asking victim whether she had once mistaken someone's identity in an unrelated incident]); State v. Nero (La. 1975) 319 So.2d 303 [exclusion of testimony by witness as to whether she recognized other photographs in a group of six photographs, one of which the witness identified as the defendant].) Neither the facts nor the legal reasoning of those opinions support Burgos's claim.
Burgos argues that in evaluating a witness's identification of a defendant, it is irrelevant whether the witness identified another participant in the crime. But there are many circumstances that could arguably make this factor relevant. For example, suppose the witness identified two participants of the same race who were standing in the same light, at the same angle and distance, for the same amount of time, and suppose other evidence proved the witness had accurately identified one of the two participants. That the witness was able to identify one of them accurately suggests the circumstances were amenable to an accurate identification of the other.
Burgos argues the instruction did not tell the jurors how to use this factor, but the California Supreme Court has made clear that the instruction must be neutral in this regard. "We conclude that the listing of factors to be considered by the jury will sufficiently bring to the jury's attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate." (Wright, supra, 45 Cal.3d at p. 1143, fn. omitted.)
For all the reasons above, we conclude this claim is without merit.
I. Denial of Richardson's Request to Instruct the Jury That Hames's Flight Showed Consciousness of Guilt
As set forth above in section II.F, trial counsel for Richardson argued he had been misidentified as one of the robbers because he had been confused with Keison Hames, who was detained inside Byrd's apartment after the robbery. Richardson argued that the evidence showed Hames was one of three men who ran from the police when they arrived at Byrd's apartment complex. Richardson requested a jury instruction based on a modification to CALCRIM No. 372, which tells the jury that a defendant's flight may show the defendant was aware of their guilt. Richardson proposed to change "defendant" to "suspect" in this instruction. The trial court denied the request. Richardson contends the denial of his request for the modified instruction violated his constitutional right to present a defense by depriving him of a critical aspect of his third party culpability defense.
The unmodified pattern instruction is worded as follows: "If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself." (CALCRIM No. 372.)
1. Legal Principles
Instructions that relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification, are required to be given upon request when there is evidence supportive of the theory. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) However, the trial court may refuse an instruction requested by the defendant if it incorrectly states the law or it is not supported by substantial evidence. (People v. Burney (2009) 47 Cal.4th 203, 246.) We apply the de novo standard of review to a defendant's claim of instructional error. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
The trial court has no duty to instruct the jury sua sponte on flight by a third party suspect. "Although a trial court is required by statute to instruct on flight when the prosecution relies on evidence of flight by a defendant as tending to show guilt (Pen. Code, § 1127c), there is no similar statutory requirement to instruct when the defense relies on flight by third parties. Nor does third party flight 'qualif[y] as a general principle of law vital to the jury's consideration of the evidence' such that the jury must be instructed on it even in the absence of a request." (People v. Rangel (2016) 62 Cal.4th 1192, 1224 (Rangel), fn. omitted.)
However, a defendant may be entitled to a pinpoint instruction on third party flight if the instruction was properly prepared and submitted by the defense. (People v. Henderson (2003) 110 Cal.App.4th 737, 741 (Henderson).) "E]vidence of flight by a third party after being accused of a crime or after acquiring knowledge of the crime, could be relevant to the jury's determination of whether the third party's conduct raises a reasonable doubt as to the identity of the perpetrator." (Ibid.) Accordingly, "a defendant relying on a third party culpability defense is entitled to have the trial court give an appropriate pinpoint instruction on the issue of the alleged flight of the third party upon proof that the third party was aware of the discovery of the charged crime." (Id. at p. 743.)
2. The Trial Court Did Not Err in Denying the Request for a Jury Instruction on Flight by a Third Party
Section II.F.2 above sets forth the evidence relating to Hames and the flight of the three men when the police arrived at Byrd's apartment complex. In summary, police arrived at the apartment complex around 1:00 a.m. and saw three black men standing nearby. The men immediately fled into the apartment complex, and the police subsequently detained Hames inside Byrd's apartment. Richardson argued the evidence showed Hames was one of the three men who fled from the police, and that his flight showed Hames's consciousness of guilt.
Section 1127c provides a legal basis for the jury instruction in CALCRIM No. 372 with respect to flight by a defendant: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine." This code section makes no mention of flight by a third party. "The focus of the instruction is on the defendant and the question of whether there was flight and whether it is reasonable to infer consciousness of guilt from such flight." (Henderson, supra, 110 Cal.App.4th at p. 742.) In Henderson, the Court of Appeal observed that the pattern jury instruction for flight by a defendant would have to be "totally rewritten" if it were applied to flight by a third party because the theory of relevance is somewhat different with respect to flight by a third party. (Ibid.) The court further noted that Legislature enacted section 1127c to abolish the common law rule that a jury could not be instructed to consider flight as evidence of guilt unless it had been proved that the fleeing person had previously learned they had been accused of committing a particular crime. (Id. at pp. 742-743, citing People v. Hill (1967) 67 Cal.2d 105, 120-121.) The court considered whether an instruction as applied to third party flight should require evidence the third party was aware they had had been accused of a crime, or at least that the crime had occurred.
The Henderson court found no prior California cases concerning these issues, so in deciding whether and how such an instruction should apply to flight by a third party, the court looked to caselaw from other states. (Henderson, supra, 110 Cal.App.4th at p. 743.) The court found one of those cases persuasive, and concluded its logic was consistent with prior California caselaw supporting a defendant's request for pinpoint instructions on other matters relevant to a finding of reasonable doubt. (Ibid., citing People v. Sears (1970) 2 Cal.3d 180.) From these cases, the court reasoned, "Logically, a properly tailored instruction could assist a jury in determining what weight, if any, to give to the alleged flight of a person about whom the court has permitted evidence of third party culpability. It would seem that a jury could draw an inference, favorable to the defendant, if a person, so closely connected with a crime as to permit the admission of third party evidence, from that person's abrupt departure from the area upon learning of the discovery of a crime." (Henderson, at p. 743.) Accordingly, the court held, "[A] defendant relying on a third party culpability defense is entitled to have the trial court give an appropriate pinpoint instruction on the issue of the alleged flight of the third party upon proof that the third party was aware of the discovery of the charged crime." (Ibid., italics added.)
We find Henderson persuasive, but it does not support Richardson's claim. Under Henderson, a defendant's request for such an instruction must be supported by proof the third party was aware the charged crime had been discovered. (Henderson, supra, 110 Cal.App.4th at p. 743.) Richardson made no such showing. First, the evidence did not clearly establish that Hames was one of the three men who fled. Second, there was no substantial evidence that the man who fled was aware the robbery had been discovered, or that the robbery had even taken place. The three men were standing about 50 to 100 yards from the 7-Eleven store across the street from the robbery, and by the time the police arrived, 15 or more minutes had passed since the robbery had occurred. There was no evidence to support an inference that the three men saw the robbery happening, and there was no evidence they learned about it from anyone else. Even assuming Hames was present at the robbery or that he was aware it had happened, there was no evidence he was aware the police had discovered it.
Finally, counsel for Richardson was permitted to argue in closing that Hames was one of the persons who fled from the police." '[T]he logic of the inference' that such flight could also indicate consciousness of guilt on the part of third parties would have been 'plain' to jurors, even in the absence of instruction to that effect. [Citation.]" (Rangel, supra, 62 Cal.4th at p. 1224.) For all these reasons, we conclude the trial court's denial of the request for this instruction did not violate Richardson's right to present a defense.
J. Denial of Richardson's Motion to Continue Sentencing
Richardson contends the trial court erred by denying his motion to continue sentencing so that he could obtain the results of DNA tests on the blue Nike shirt found in Byrd's apartment. Richardson contends the trial court abused its discretion and violated his constitutional right to a fair proceeding by denying him the ability to present exculpatory evidence that would have supported a motion for a new trial. The Attorney General contends the trial court acted within its discretion because the motion was untimely, and Richardson made no showing the anticipated test results would be material to his sentencing or a motion for a new trial. Even assuming the trial court erred, the Attorney General contends any error was harmless.
1. Procedural Background
The sentencing hearing was held on October 13, 2017, seven months after the jury rendered verdicts. On the morning of the sentencing hearing, Richardson filed a motion to continue sentencing until January 12, 2018. The motion included a declaration from counsel stating that the District Attorney's Office and the Santa Clara County Crime Lab had agreed to test a sample of Hames's DNA against DNA from the blue Nike shirt. Multiple e-mails attached to the declaration documented some of the steps counsel had taken during the preceding year to arrange for tests comparing Hames's DNA to DNA samples from the shirt.
When the court raised the matter at the sentencing hearing, counsel for Richardson stated that he had sent e-mails at some point during the week before the hearing to give the court and the other attorneys a "heads-up" about the forthcoming motion for a continuance. Counsel explained some of the reasons for the delay in getting the DNA testing done-including the prosecution's erroneous claim that Hames's DNA was not in the CODIS database. Counsel described the current status of his efforts to get test results, and he stated he had just received an e-mail that morning indicating that the Crime Lab now had a sample of Hames's tissue for DNA testing. Counsel argued that a continuance was justified because the results could provide evidence supporting the defense's theory that Richardson had been misidentified. He stated the results might be available "hopefully within a couple weeks or so," but he requested a continuance until January 2018 to get the results, "and then we can proceed accordingly afterwards." Counsel did not represent-and likely could not represent in good faith-that the test would produce a reliable match between Hames's DNA and DNA from the blue Nike shirt. Nor did counsel state how the results-even assuming the match was positive-would be material to sentencing or how they would provide a sufficient basis to move for a new trial.
The prosecution reiterated its prior position on these matters: That even if the evidence could prove Hames was wearing the blue Nike shirt that night, there was no evidence he was a participant in the robbery.
The trial court denied the motion. The court stated, "The defense believes this evidence may exonerate the defendant. The jury was given a stipulation regarding the shirt and the crime lab at trial. Should this DNA evidence come back to Keison [Hames], the defense may [pursue] all legal options on behalf of Mr. Richardson, but that is not before the court at this time; so your motion for continuance is denied."
Richardson subsequently received the results of the DNA testing. A report summarizing the tests showed that DNA taken from the blue Nike shirt was a mixture from at least two individuals, at least one of whom was male. Hames was included as a possible contributor to the mixture. Burgos, Byrd, Lozano, Richardson, Stevenson, Cortez, and Rodriguez were excluded as possible contributors. The reported concluded, "The evidence provides extremely strong support for the inclusion of Kelson Hames and one unknown individual."
2. Legal Principles
"To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary ...." (§ 1050, subd. (b).) Upon a showing of good cause, "a party may make a motion for a continuance without complying with the requirements of that subdivision." (§ 1050, subd. (c).) "Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause." (§ 1050, subd. (e).)
"In reviewing the decision to deny a continuance, '[o]ne factor to consider is whether a continuance would be useful. [Citation.]' [Citation.]" (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) "[T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time." (People v. Beeler (1995) 9 Cal.4th 953, 1003 (Beeler), overruled on another ground by People v. Pearson (2013) 56 Cal.4th 393, 462.) The court considers"' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." '" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
"We review a ruling on a motion to continue (§ 1050) for an abuse of discretion. [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 318.) The burden is on the defendant to establish an abuse of judicial discretion. (Beeler, supra, 9 Cal.4th at p. 1003.)
3. The Trial Court Did Not Err in Denying the Motion to Continue Sentencing
The Attorney General argues the motion for continuance was untimely filed, but the prosecution did not object on that ground and contested only the merits, forfeiting the claim for appeal. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [a party who appears and contests a motion in the court below cannot object on appeal].)
On the merits, however, Richardson failed to show good cause for a continuance. Richardson made no showing that a continuance would be useful, or that the test results would provide adequate grounds to support a motion for a new trial. First, Richardson had no way to know what the results of the test would be. It is irrelevant that the results subsequently showed Hames was likely a contributor to the mixture of DNA taken from the blue Nike shirt. The results were unknown at the time of the sentencing hearing, and Richardson did not provide a reliable estimate for when they would be available. Any argument that the tests results were material required the assumption they would produce a match. The trial court did not abuse its discretion by declining to make that assumption.
Furthermore, Richardson made no showing that the results would be material to any part of the proceeding, even assuming the tests would produce a positive match. The declaration attached to the motion asserted only that the prosecution and the crime lab had agreed to perform the tests. The e-mails attached to the declaration documented counsel's efforts to obtain testing, but the e-mails contained nothing to suggest a continuance would result in evidence material to the proceedings. Counsel argued at the hearing that the tests could provide exonerating evidence, implying he could rely on it to move for a new trial. But as the trial court properly found, there was no such motion before the court at the time, and counsel did not actually describe or proffer any such motion. The trial court did not abuse its discretion by declining to assume Richardson would eventually establish sufficient grounds to move for a new trial.
Even assuming Richardson would eventually move for a new trial on the basis of the test results, a positive DNA match would not have supported a new trial given the other evidence in the record. In ruling on a motion for a new trial based on newly discovered evidence, the trial considers, among other factors, whether the newly discovered evidence" '" 'be such as to render a different result probable on a retrial of the cause.'" '" (People v. Howard (2010) 51 Cal.4th 15, 43.) For the reasons set forth above in section II.F.4, the fact that Hames's DNA was on the blue Nike shirt had little or no probative value in assessing Richardson's guilt or innocence.
Regardless, Richardson never actually set forth an argument that the test results would support a meritorious motion for a new trial, or that they might otherwise be material to sentencing. In short, he failed to show how the continuance would be useful or that it would result in any evidence material to the proceedings. We conclude this claim is without merit.
K. Cumulative Prejudice
Burgos and Richardson contend cumulative prejudice from multiple errors requires reversal. Because we reject the merits of each of these claims as set forth above, there is no prejudice to cumulate.
L. Remand for Resentencing Under Senate Bill No. 1393
Appellants contend remand for resentencing is necessary for the trial court to exercise its discretion whether to strike the five-year serious felony enhancements under Senate Bill 1393. The Attorney General concedes remand is appropriate for this purpose. The concession is well-taken. Because appellants' cases are not final, they are entitled to the retroactive application of Senate Bill 1393. (People v. Stamps (2020) 9 Cal.5th 685, 698 [Senate Bill 1393 applies retroactively].) We will order the trial court to exercise its discretion whether to impose the enhancements at resentencing on remand.
M. Imposition of Fines and Fees
Appellants contend the trial court erred by imposing fines and fees without properly ascertaining their ability to pay under Duenas, supra, 30 Cal.App.5th 1157. As to Richardson's and Stevenson's ability to pay, the record is undeveloped as appellants did not request an ability to pay determination below. Burgos summarily asserted his indigence and requested that the trial court reduce the restitution fine imposed under section 1202.4, subdivision (c), which allows trial courts to consider inability to pay if the amount of the fine imposed exceeds the statutory minimum. The trial court denied the request on the ground that, given the lengthy sentence imposed on him, Burgos would be in custody long enough to pay the fine. If Richardson and Stevenson had made the same request, the trial court likely would have denied it since the same sentence was imposed on them. As to the other fines and fees, appellants were sentenced before Duenas was decided, so it is likely any objections on grounds of inability to pay would have been futile. We conclude they did not forfeit these claims by failing to assert an inability to pay. (People v. Santos (2019) 38 Cal.App.5th 923, 932; People v. Castellano (2019) 33 Cal.App.5th 485.)
Because we must vacate their sentences, the trial court's finding of an ability to pay based on the length of the sentence requires reconsideration. Appellants may assert their inability to pay fines and fees at the resentencing hearing on remand. (People v. Thompson (2022) 83 Cal.App.5th 69, 121 [remand is appropriate to allow a defendant to assert an inability to pay fines and fees].)
N. Eligibility for Youthful Parole Hearings Under Penal Code Section 3051
Stevenson and Burgos were 22 years old at the time of the offense. They contend they are entitled to youthful parole hearings under section 3051 notwithstanding the statute's exclusion of offenders with prior strike convictions because that exclusion violates equal protection principles. They rely on People v. Edwards (2019) 34 Cal.App.5th 183, which was disapproved by the California Supreme Court in People v. Williams (2024) 17 Cal.5th 99, 138. The Attorney General contends appellants' exclusion from section 3051 does not violate equal protection.
Because we are vacating appellants' sentences and remanding for further proceedings, we cannot determine how or whether appellants might be affected by section 3051 upon resentencing. We conclude these claims are not yet ripe for adjudication on appeal." 'The ripeness requirement . . . "prevents courts from issuing purely advisory opinions, or considering a hypothetical state of facts in order to give general guidance rather than to resolve a specific legal dispute."' [Citation.] A controversy is not ripe until '" 'the facts have sufficiently congealed to permit an intelligent and useful decision to be made.'"' [Citation.]" (People v. Cooks (2023) 89 Cal.App.5th 1124, 1127.) Accordingly, we reject these claims without prejudice to appellants' ability to raise them again after resentencing.
O. Correction of the Abstract of Judgment for Stevenson
Stevenson contends his abstract of judgment misstates the amount of the penalty assessment under section 1202.5, and he argues the abstract fails to state the statutory basis for the penalties imposed. The abstract states a fine of "$10 + 310 per PC 1202.5." In its oral pronouncement, the trial court ordered, "A $10 fine plus penalty assessment is imposed." Stevenson points out that the maximum assessments under the statute total $31, and he requests that the abstract states the statutory bases for the other penalty assessments. The Attorney General agrees. As we are remanding for resentencing, we will order the trial court to issue a correct abstract of judgment with respect to this amount, and the abstract shall reflect the statutory bases for all assessments. (People v. Hamed (2013) 221 Cal.App.4th 928, 940 [the court clerk must list the amount and statutory basis for each base fine and the amount and statutory basis for each penalty assessment in the abstract of judgment].)
P. The Effect of Assembly Bill No. 333
Effective January 1, 2022, Assembly Bill 333 enacted multiple changes to section 186.22, the gang enhancement statute. The jury here found the gang allegations true under the prior version of that statute, and the trial court imposed a 10-year term on each appellant based on those findings.
Appellants contend they are entitled to retroactive application of the revised section 186.22, and they argue the gang enhancements must be stricken because the evidence was insufficient to prove all the elements of the enhancement as defined under the revised section. The Attorney General concedes that the revised section 186.22 applies retroactively, and that remand is required to give the prosecution the opportunity to retry the enhancements. Burgos and Richardson further contend reversal on all counts is required because Assembly Bill 333 revised section 1109 to allow for bifurcated trials on gang enhancements, and the trial in this case was not bifurcated. The Attorney General argues appellants are not entitled to retroactive application of section 1109.
1. Legal Background
Section 186.22 sets forth an enhanced punishment for a felony "committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Assembly Bill 333 narrowed the definition of "criminal street gang" to mean "an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the [enumerated criminal acts], having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity." (Id., subd. (f).)
All references are to the revised statute.
The revised statute also requires additional proof regarding the predicate offenses that make up a "pattern of criminal gang activity" as follows: (1) the offenses must have "commonly benefited a criminal street gang" where the "common benefit ... is more than reputational"; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; and (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons. (§ 186.22, subd. (e)(1).) Courts had construed the prior version of the statute to allow the currently charged offense to be used as a predicate offense, but the revised statute provides that the currently charged offense cannot be used as a predicate offense." (Id., subd. (e)(2).)
With respect to the "common benefit," the statute provides that "to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).)
Assembly Bill 333 also added section 1109, requiring trial courts to conduct a bifurcated trial on gang enhancements if the defense requests one. (§ 1109, subd. (a); Stats. 2021, ch. 699, § 5, eff. Jan. 1, 2022.) Upon a defendant's request for bifurcation, guilt on the underlying offense must first be determined, and a trial on the gang enhancement is held only if the defendant is first found guilty of the underlying offense. (§ 1109, subds. (a)(1) &(a)(2).)
2. Factual Background
Investigator Michael Whittington testified as the prosecution's gang expert. He opined that Crip gangs are criminal street gangs whose primary activities include robbery, felony assault, and illegal weapon possession. Their territory included the area near the robbery. "Varrio Meadowfair" is the name of a rival Norteno gang that is active near the area of the robbery. Whittington opined that appellants and Lozano were Crip gang members. Whittington testified that a robbery like the one committed here would be perpetrated at the direction of, and for the benefit of, the Crip gang.
To prove the predicate offenses, the prosecution introduced evidence of four prior offenses in addition to the current robbery: (1) attempted robbery by Latwan Langston in 2010; (2) assault with a deadly weapon by Darius McNary in 2013; (3) illegal gun possession by Troy Giamona in 2013; and (4) unlawful possession of a loaded unlicensed gun by Stevenson in 2014. The prosecution proved the predicate offenses with certified records of conviction, and Whittington testified that the offenders were Crip gang members. As to the current offense, the prosecution also introduced sanitized records of Lozano's conviction, as described in section II.C.1 above. Except for Stevenson's prior gun possession and the current offense, the prosecution presented little or no evidence concerning the facts and circumstances of the predicate offenses.
3. Retroactive Application of Assembly Bill No. 333 Requires a Remand
Appellants contend they are entitled to the retroactive application of the revised section 186.22 as effected by Assembly Bill 333. They argue that the gang enhancements must be stricken because the prosecution failed to present sufficient evidence to prove all the elements of the enhancements under the revised statute. The Attorney General concedes that appellants are entitled to retroactive application of Assembly Bill 333 insofar as it revised the elements of the enhancement. The Attorney General disputes that insufficiency of the evidence is the proper legal framework for analyzing the issue, but he concedes the enhancements must be vacated. He argues we should remand the matter to give the prosecution the opportunity to prove the enhancements under the revised statute.
We accept the Attorney General's concession regarding the retroactive application of the revised elements of the gang enhancement. California courts have consistently held that this part of Assembly Bill 333 operates retroactively. (See, e.g., People v. Tran (2022) 13 Cal.5th 1169, 1206; Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 53.) A defendant is entitled to a remand for further proceedings unless the lack of instruction on the new elements that apply retroactively is harmless beyond a reasonable doubt. (People v. Clark (2024) 15 Cal.5th 743, 763.)
We accept the Attorney General's concession that this requires us to vacate the gang enhancements and remand the matter to give the prosecution the opportunity to prove the enhancements under the revised statute. First, the prosecution used the current offense to prove one of the predicate offenses; the revised statute prohibits this. (§ 186.22, subd. (e)(2).) Second, the prosecution did not present evidence that any of the offenses benefitted the gang in a way that was "more than reputational." (§ 186.22, subd. (g).)
The Attorney General argues that insufficiency of the evidence is not the proper analytic framework. Insofar as a finding of insufficient evidence would implicate appellants' double jeopardy or ex post facto rights, the Attorney General's point is well- taken. "Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence. [Citation.]" (People v. Figueroa (1993) 20 Cal.App.4th 65, 72.) The proper remedy is to vacate the gang enhancements and remand the matter to allow the prosecution the opportunity for a retrial on the enhancements. (People v. Oliva (2023) 89 Cal.App.5th 76, 89 [the appropriate remedy is to remand the matter to the trial court to give the People an opportunity to retry the gang enhancement allegation under the new law].)
4. Penal Code Section 1109 Does Not Apply Retroactively
Section 1109 was amended as part of Assembly Bill 333 after the conclusion of defendants' trial. Appellants argue they are entitled to the retroactive application of the amended version of section 1109 under the doctrine of In re Estrada (1965) 63 Cal.2d 740 (Estrada). They argue application of section 1109 requires us to vacate their convictions on counts 1 and 2 and remand for a new trial on those counts separate from any trial on the gang enhancements. The Attorney General contends section 1109 does not apply retroactively, such that appellants' convictions on the robbery counts must remain intact.
In the previous opinion in this matter, this court concluded the amended version of section 1109 applied retroactively and that appellants were prejudiced by the failure to bifurcate the trial. We therefore reversed the judgments against all three appellants. The California Supreme Court granted review, reversed the judgment, and remanded the matter to this court for further proceedings. (Burgos, supra, 16 Cal.5th 1.) We vacated our previous opinion, and in accordance with Burgos, we reject appellants' claim.
In Burgos, the Supreme Court held the amended version of section 1109 does not operate retroactively. (Burgos, supra, 16 Cal.5th at p. 20.) Based on the prospective-only presumption set forth in section 3, the court held section 1109 only applies prospectively because the law did not include an" 'express declaration of retroactivity or a clear and compelling implication that the Legislature intended'" to apply it retroactively. (Ibid.) The court concluded the statute was not ameliorative for the purposes of the Estrada doctrine because, "By its terms, section 1109 does not directly or potentially reduce the punishment for an offense. Nor does it change the elements of a substantive offense, defense, or penalty enhancement. Likewise, it does not create an alternative avenue for certain individuals to receive lesser or no punishment." (Id. at p. 21.) The Court considered the legislative findings and statements of intent in the enacting law and concluded they did not demonstrate the Legislature intended for section 1109 to apply retroactively. Rather, the Legislature amended section 1109 "[i]n an effort to minimize the potentially prejudicial impact of gang evidence." (Ibid.)
Applying Burgos, we reject appellants' argument that section 1109 applies retroactively. Because section 1109 had not been enacted at the time of appellants' trial, they are not entitled to its application. This claim is therefore without merit.
Q. Retroactive Application of Assembly Bill No. 124 and Senate Bill No. 567
Burgos and Stevenson contend they are entitled to resentencing as youthful offenders under the retroactive application of Assembly Bill 124 and Senate Bill 567. The Attorney General concedes, and we accept the concession.
Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b), creating a presumption in favor of a low prison term in sentencing a defendant who was under 26 years of age at the time of the offense. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038 (Flores).) Under the amended version of section 1170, subdivision (b)(6) provides in relevant part: "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] . . . [¶] (B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense." Under section 1016.7, subdivision (b), a "youth" includes any person under 26 years of age on the date the offense was committed. This provision constitutes an ameliorative change in the law and applies retroactively to all nonfinal convictions on appeal. (Flores, at p. 1039.)
At the time of the offense, both Burgos and Stevenson were under 26 years of age. Furthermore, their convictions are nonfinal. They are therefore entitled to resentencing under section 1170, subdivision (b), and we will order the trial court on remand to resentence them accordingly.
R. Burgos's Enhancement Under Penal Code Section 667.5, Subdivision (b)
Burgos contends his enhancement under section 667.5, former subdivision (b) must be stricken as unlawful under Senate Bill 136 and Senate Bill 483. The Attorney General does not dispute that the enhancement is now invalid, but he contends Senate Bill No. 483 does not apply to Burgos because the trial court stayed the enhancement.
1. Background
The prosecution alleged Burgos had served a prior prison term under section 667.5, former subdivision (b) for a first degree burglary conviction (§§ 459, 460, subd. (a)). The trial court found the allegation true. At the sentencing hearing in 2017, the trial court stayed imposition of a term for the prior prison term enhancement.
Effective January 1, 2020, Senate Bill 136 amended the prior prison term enhancement under section 667.5, subdivision (b) by limiting its application to prison terms that were served for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.)
Effective January 1, 2022, Senate Bill 483 enacted former section 1171.1 (Stats. 2021, ch. 728, § 3), later renumbered section 1172.75 (Stats. 2022, ch. 58, § 12). Section 1172.75, subdivision (a) provides, "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid."
Subdivisions (b) through (e) of section 1172.75 establish recall and resentencing procedures for eligible defendants. Subdivision (b) requires the Department of Corrections and Rehabilitation and county jails to identify persons "currently serving a term for a judgment that includes" a now-invalid enhancement described in subdivision (a) and provide their names and other information to the sentencing court. If the court determines the defendant's "current judgment" includes a now-invalid enhancement as described in subdivision (a), the court must recall the sentence and resentence the defendant. (§ 1172.75, subd. (c).)
2. The Enhancement Must Be Stricken Under Senate Bill No. 136
Burgos relies on both Senate Bill 136 and Senate Bill 483 in arguing the enhancement must be stricken. The Attorney General does not address the effect of Senate Bill 136; he argues only that Senate Bill 483 does not apply to Burgos. The Attorney General contends that the plain language of section 1172.75 refers to enhancements that were "imposed" and resentencing under subdivision (b) only applies to prisoners who are "currently serving a term" for a judgment that includes the enhancement. Because the trial court stayed imposition of Burgos's enhancement and he is not serving time for it, the Attorney General contends section 1172.75 does not entitle him to resentencing. The Courts of Appeal have split on this point and the California Supreme Court has granted review to resolve it. (See People v. Saldana (2023) 97 Cal.App.5th 1270, review granted Mar. 12, 2024, S283547 [defendant whose enhancements were stayed was entitled to full resentencing under section 1172.75]; People v. Rhodius (2023) 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169 [defendant whose enhancements were stayed was not entitled to full resentencing under section 1172.75].) For the reasons below, we do not reach this question.
California courts have held Senate Bill 136 applies retroactively to nonfinal cases on appeal. (People v. Winn (2020) 44 Cal.App.5th 859, 872-873.) The invalid enhancement should be stricken when the defendant challenges it on appeal, even if the trial court stayed punishment for it. (People v. Morelos (2022) 13 Cal.5th 722, 770 [one-year prior prison term enhancement should be stricken].) Here, the trial court found true the allegation under section 667.5, former subdivision (b) based on a prior prison term Burgos served for a first degree burglary conviction. Because that was not a conviction for a sexually violent offense, and Burgos's case is nonfinal, he is entitled to the retroactive application of Senate Bill 136. We will therefore strike the prior prison term enhancement under section 667.5, former subdivision (b).
As to resentencing under the specific procedures set forth in section 1172.75, Burgos's briefs in this appeal do not state that he is seeking resentencing under the procedures set forth in section 1172.75. He briefly describes those resentencing procedures in summarizing Senate Bill 483, but he also relies on Senate Bill 136, which does not address resentencing. He references subdivision (b) of section 1172.75, which requires prisons and jails to provide the sentencing court with the names of prisoners who may be eligible for resentencing, but he does not claim his name was provided to any court under this subdivision. He requests that we strike the enhancement and "remand for resentencing," but he does not specify what procedural rules should apply on resentencing. By contrast, in his claim seeking resentencing as a youthful offender under a retroactive application of Senate Bill 567, Burgos clearly establishes his eligibility for resentencing under section 1170, subdivision (b)(6), and he unambiguously requests resentencing under that subdivision.
While this appeal was pending, however, Burgos filed a request in the trial court for resentencing under section 1172.75. He has filed an appeal from the trial court's order in case No. H051285, which we address in a separate opinion.
Accordingly, we will strike the enhancement and order resentencing under section 1170, subdivision (b)(6), and other provisions of the sentencing law as set forth in the above sections of this opinion.
III. Disposition
The judgments against all three appellants are reversed, their sentences are vacated, and the true findings on all gang-related allegations under Penal Code section 186.22 are vacated. As to appellant Burgos, the one-year prior prison term enhancement under Penal Code section 667.5, subdivision (b) is stricken.
The matter is remanded to the trial court for further proceedings as follows: As to each appellant, if the prosecution elects not to retry that appellant within 60 days after the filing of the remittitur in the trial court in accordance with Penal Code section 1382, subdivision (a)(2), the trial court shall resentence that appellant forthwith on any remaining counts and enhancements. If the prosecution elects to retry an appellant, the trial court shall resentence that appellant upon the resolution of that proceeding. In resentencing each appellant, the trial court shall consider whether to exercise its discretion not to impose additional terms for a prior serious felony conviction under section 667, subdivision (a) and section 1385, subdivision (b) in accordance with Senate Bill No. 1393. In resentencing appellants Burgos and Stevenson, the trial court shall also sentence them in accordance with Penal Code section 1170 as amended by Assembly Bill No. 124 and Senate Bill No. 567. The trial court shall issue a corrected abstract of judgment for appellant Stevenson as set forth above.
WE CONCUR: Grover, J. Lie, J.