Opinion
B289623
04-22-2021
THE PEOPLE, Plaintiff and Respondent, v. MARIO CAMPA, Defendant and Appellant.
Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. NA101408 APPEAL from a judgment of the Superior Court of Los Angeles County, James D. Otto, Judge. Affirmed in part, reversed in part, and remanded with directions. Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant Mario Campa of four counts of attempted willful, premeditated, and deliberate murder, with true findings as to each count that Campa committed the crime for the benefit of a gang and that a principal used a firearm causing great bodily injury. The court sentenced Campa to 80 years to life in prison. On appeal, Campa contends: (1) the court violated his due process rights when it granted the People's motion not to disclose impeachment evidence concerning one of the investigating officers; (2) the court erred in admitting testimonial hearsay evidence; (3) insufficient evidence supports the gang enhancements; (4) the court imposed an unauthorized sentence; and (5) the court violated his due process rights by imposing various fines and fees without first determining his ability to pay. We agree that Campa's sentence is unauthorized and remand the matter for resentencing. We otherwise affirm the judgment.
FACTUAL BACKGROUND
1. The Shootings
Kejion Robinson and Larry Hood, two Black men, were walking down 14th Street in Long Beach. As they walked past an alleyway, someone started shooting at them from inside a late-1990s green Toyota Camry. Robinson was struck by two bullets—one hitting his thigh and another hitting his foot—and Hood was struck by one bullet in the leg. Robinson saw the face of the person sitting in the front passenger seat before the Camry sped off.
A little more than an hour after Robinson and Hood were shot, Bryon Rodriguez and Edwin Alonzo were standing in front of a liquor store on Daisy Avenue in Long Beach. A man who was standing about 10 to 15 feet away started shooting at them. Rodriguez was struck by four bullets—two in the chest, one in the hand, and one in the arm—and Alonzo was struck by three bullets. According to Rodriguez, the shooter was wearing what looked like a hooded jacket. Rodriguez didn't see the shooter's face, however.
2. The Investigation
Juan Zazueta (uncle) testified that Campa is his wife's nephew. The uncle's son—i.e., Campa's cousin—was a gang member. The uncle's son and Campa used to hang out.
Campa's uncle purchased a late 1990's green Toyota Camry the day before the shootings. Around 1:00 p.m. on the day of the shootings, the uncle left the car and its keys at his house while he went to church. When he returned from church several hours later, the uncle noticed the car was parked in a different position from when he left for church and that one of its hubcaps was missing.
License plate recognition technology used by the Long Beach Police Department showed that Campa's uncle's Camry was in the vicinity of the 14th Street shooting around the time Robinson and Hood were shot and near the Daisy Avenue liquor store around the time Rodriguez and Alonzo were shot. Footage obtained from a residence near the liquor store also showed the same car driving back and forth about four times on Daisy Avenue about an hour and a half before the liquor store shooting. Several hours after the shootings, Campa's uncle was stopped and arrested while driving the Camry.
The police recovered .45-caliber bullet casings from the scene of each shooting. A criminologist later determined that both sets of casings were fired from the same gun.
In February 2015, while in custody on unrelated charges, Campa was placed in a jail cell with an undercover informant. At the time, Campa had yet to be identified as a suspect in the 14th Street and the Daisy Avenue liquor store shootings. Campa's conversation with the informant was recorded and played for the jury.
Campa told the informant he was a member of the East Side Longo gang, with the moniker "Baby Evil." After denying involvement in the unrelated charges, Campa told the informant that his cousin had recently been arrested in connection with the 14th Street and the Daisy Avenue liquor store shootings. Campa also told the informant that his uncle had been arrested while driving the Camry used in the shootings. Campa admitted he was riding shotgun in his uncle's car while his cousin drove and three other people sat in the back passenger compartment. Using .45-caliber bullets, they shot at two "Tintos" and "two fools from Barrio Pobre."
Two of the People's investigators testified that "Tintos" is a derogatory term for Black men used by Hispanic gang members in Long Beach.
Barrio Pobre is a Long Beach gang.
When the informant asked where the two Black men were from, Campa responded, "I don't even know where the fuck they was from ... ." The informant followed up, "Just see black and fucking start shooting," to which Campa replied, "Yeah, yeah." Campa later told the informant, "That's the thing about me. I'll be in the car with a burner and all that. I['m] ready to hop out on somebody like man I see somebody I'm hopping out right now."
One of the investigators testified that a "burner" is slang for a gun.
About a week after Campa spoke to the informant, one of the investigators showed Robinson a six-pack photographic lineup containing Campa's photograph. Robinson identified Campa as the shooter because his face was " 'unforgettable.' "
Shortly after the shooting, the investigator showed Robinson a six-pack photographic lineup that did not include Campa's photograph. Robinson did not identify anyone in that lineup.
The police recovered security footage from the Daisy Avenue liquor store where the second shooting occurred. The footage showed a man wearing white shoes and a grey hooded sweatshirt with an emblem of the State of California across the front. As he walked toward the front of the liquor store, the man in the sweatshirt started shooting at Rodriguez and Alonzo. The shooter's face wasn't identifiable from the security footage. The police later recovered a pair of white shoes and a grey hooded sweatshirt with an emblem of California across the front inside Campa's home.
One of the investigators spoke to a witness near the liquor store shooting. The witness told the investigator that, shortly before the shooting, someone in the green Camry asked two women who were walking down the street, "Where the Bean Pies at?" According to the investigator, " 'Bean Pie' " is a derogatory term for members of the Barrio Pobre gang in Long Beach.
3. Gang Evidence
The People's gang expert testified that Campa is a member of East Side Longo, a Long Beach gang that claims territory on the east side of the 710 freeway. Campa has several tattoos of symbols associated with the gang. East Side Longo is the largest gang in Long Beach, with about 900 members.
The gang expert has spent the "bulk" of his 16-year career in law enforcement investigating and studying gang activity. He's had conversations with numerous gang members in Long Beach, the vast majority of which were consensual and non-hostile interactions.
The expert became familiar with East Side Longo during his training at the academy for the Long Beach Police Department. Since then, the expert has interviewed East Side Longo members as well as more senior officers who have "worked the gang." Throughout his career, the expert has investigated crimes committed by, and testified in trials involving, East Side Longo members. Specifically, the expert has testified in 25 to 50 cases "specific to Eastside Longo." The expert stays current with the gang's activities, rivalries, and territorial disputes by talking with members of the gang, members of rival gangs, other law enforcement officers, and members of the community. According to the expert, East Side Longo's primary criminal activities include: narcotics sales; violent assaults with firearms and other deadly weapons; illegal possession of firearms; attempted murder; and murder.
East Side Longo's rival gangs include Barrio Pobre and Barrio Small Town, who each claim territory that is also claimed by East Side Longo. East Side Longo is also rivals with all of the Black gangs in the city, and East Side Longo members will often attack Black men, regardless of whether they're in a gang, without provocation.
The 14th Street and the Daisy Avenue liquor store shootings occurred in East Side Longo territory. The Daisy Avenue liquor store was in an area over which East Side Longo, Barrio Pobre, and Barrio Small Town dispute ownership. According to one of the investigators, a member of Barrio Small Town had put up graffiti of the gang's tag near the liquor store, which had been crossed out by a member of another gang.
The prosecutor posed a hypothetical based on the facts of this case. Based on that hypothetical, the gang expert opined that the shootings were committed at the direction of, and to promote, East Side Longo. Specifically, the shootings benefitted the gang by instilling fear in the community, which in turn would help the gang maintain its territory.
The People also introduced the certified conviction records of two East Side Longo members. One of the gang's members was convicted of committing a murder in East Side Longo territory. The other member was convicted of murdering a member of Barrio Pobre in East Side Longo territory. According to the gang expert, both crimes benefitted East Side Longo.
PROCEDURAL BACKGROUND
The People charged Campa with four counts of attempted willful, premeditated, and deliberate murder (Pen. Code, §§ 664/187, subd. (a)). As to each count, the People alleged Campa committed the crime for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The People also alleged firearm enhancements as to each count (§ 12022.53, subds. (b), (c), (d), & (e)).
All undesignated statutory references are to the Penal Code.
The jury found Campa guilty of all four counts of attempted murder. As to each count, the jury found the attempted murders were willful, deliberate, and premeditated and that a principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). The jury also found true the gang enhancement allegation as to each count.
The court sentenced Campa to a total of 80 years to life in prison. As to count 1, the court imposed a total term of 40 years to life, consisting of 15 years to life for attempted murder committed for the benefit of a gang under section 186.22, subdivision (b)(5), plus 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). As to count 2, the court imposed the same total term of 40 years to life, to run consecutively to Campa's sentence for count 1. For each of counts 3 and 4, the court imposed a term of 40 years to life to run concurrently with Campa's sentence for counts 1 and 2. As to each count the court also imposed but stayed a 10-year term under section 186.22, subdivision (b)(1)(C).
Campa appeals.
DISCUSSION
1. Nondisclosure of Impeachment Evidence
Campa contends the court violated his due process rights, including his right to disclosure of favorable impeachment evidence under Brady v. Maryland (1963) 373 U.S. 83 (Brady), when it granted the People's request not to disclose evidence of one of the investigating officers' misconduct during a prior unrelated criminal prosecution. As we explain, although the challenged evidence was favorable to Campa and suppressed by the People, its nondisclosure did not violate Campa's due process rights because the evidence was not material.
1.1. Relevant Background
Prior to trial, the People filed under seal a motion to deny disclosure of impeachment information concerning Malcolm Evans, the detective from the Long Beach Police Department who orchestrated and recorded Campa's in-custody conversation with the undercover informant. The People had received a report identifying potential misconduct by Evans in a prior unrelated murder investigation. The People argued any impeachment evidence concerning Evans was irrelevant and not exculpatory because he played a limited role in investigating the shooting and his testimony would be introduced for the limited purpose of establishing a foundation for the recording of Campa's conversation with the undercover informant.
While this appeal was pending, we ordered the motion and the reporter's transcript of the related in camera hearing to be unsealed as part of the appellate record.
In March 2011, Evans and another detective, referred to as "Detective Johnson" in the report, interviewed a witness about the unrelated murder. The witness, who was in custody on suspicion of robbery, identified the shooter. The officers' report, however, didn't disclose that the witness was in custody at the time of the interview, and the officers omitted one of the letters of the witness's last name each time they referred to him. The officers also didn't record the beginning of their interview with the witness. In the portion that was recorded, the officers didn't mention that the witness was in custody. Instead, Johnson stated that the witness " 'came in here and advised us that [he] had some information regarding that murder.' "
A couple of days after the interview, the witness's robbery case was assigned to Evans. The witness was released from custody that same day. The witness's case was never submitted to the District Attorney's office, nor was the witness's release documented in the "murder book" for the case Evans was investigating.
In October 2016, the prosecutor assigned to the murder case asked Evans to provide her a copy of another detective's report that had referred the witness to Evans and Johnson. Evans told the prosecutor that the other detective never wrote a report but instead verbally advised Evans and Johnson that the witness lived in the area where the murder occurred and could be a " 'good person to interview.' " The prosecutor later discovered, however, that the other detective had written a report summarizing his interview with the witness the day the witness was arrested for robbery.
In May 2017, Evans told the prosecutor he had just become aware that he was assigned to the witness's robbery case. The Long Beach Police Department's records contradicted that claim, however, showing Evans had been the assigned detective since March 2011.
At a pretrial hearing in May 2017, the judge assigned to the murder case criticized Evans's and Johnson's handling of information related to the witness, stating that the officers' conduct was " 'appalling and unethical and inappropriate.' " After "a series of indicated evidentiary rulings," the People dismissed the case.
After the People filed their request in this case not to disclose evidence of Evans's prior misconduct, the court held an in camera hearing. The court granted the People's request and ordered the related proceedings and the motion to be sealed. The court explained its ruling: "I'm familiar with this incident, obviously. I'm also aware that neither Detective Evans nor Johnson were available or made available at the time of the hearing before [the judge in the other case]. I'm also informed that there has been an investigation and both detectives have been exonerated. [¶] Notwithstanding that, this could be Brady material going to Detective Evans's credibility. But on the other hand, I don't see how it is of that nature, how it would exonerate [Campa] given the fact that Detective Evans is not going to be called to be testifying about anything he heard on any tapes. He's going to testify that that was Mr. Campa's voice and this is the tape of it in essence because of his prior conversation with Mr. Campa ... ."
At trial, Evans testified that at the time he recorded the jail cell conversation, he was only investigating the unrelated charges for which Campa was in custody. Evans didn't know that Campa was potentially involved in the 14th Street and the Daisy Avenue liquor store shootings. It wasn't until Campa told the informant details about those shootings that Evans became aware of Campa's involvement in the offenses charged in this case. Evans denied "stimulating" Campa, or instructing the informant to threaten, harass, or beat up Campa, to get Campa to talk about the details of the charged shootings. After listening to Campa's statements, Evans contacted the detectives investigating the shootings charged in this case and gave them copies of the recording of Campa's conversation with the informant.
1.2. Applicable Law
Due process requires the prosecution to disclose evidence favorable to the defendant "where the evidence is material either to guilt or to punishment ... ." (Brady, supra, 373 U.S. at p. 87.) The prosecution, therefore, has a duty to disclose all material evidence that reasonably appears favorable to the defendant. (In re Sassounian (1995) 9 Cal.4th 535, 544-545 (Sassounian).) This duty exists regardless of whether the defendant requests discovery of such evidence. (Kyles v. Whitley (1995) 514 U.S. 419, 432.) The prosecution violates a defendant's due process rights when it suppresses evidence that is favorable to the defendant and material to the case, regardless of whether the suppression is intentional or inadvertent. (Brady, at p. 87.)
Under Brady, evidence is favorable to the defendant if it is either exculpatory or could be used to impeach the credibility of the prosecution's witnesses. (U.S. v. Bagley (1985) 473 U.S. 667, 676; see also Sassounian, supra, 9 Cal.4th at p. 544; People v. Uribe (2008) 162 Cal.App.4th 1457, 1471-1472.) "Material evidence" is any evidence that may "may make the difference between conviction and acquittal." (Bagley, at p. 676.) Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." (Id. at p. 682.)
There are three elements to a Brady violation: (1) the evidence at issue is favorable to the defendant—i.e., it is exculpatory or impeaching; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) the suppression of the evidence must have prejudiced the defendant. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) The defendant carries the burden of showing on appeal that there is a reasonable probability of a different result in the trial court had the evidence at issue not been suppressed. (Banks v. Dretke (2004) 540 U.S. 668, 699.)
"We independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176 (Letner and Tobin).)
1.3. The impeachment evidence was not material.
The People don't dispute that the first two elements of a Brady claim are met in this case. Evidence that Evans concealed and lied about information concerning his investigation of a potential crime undoubtedly has impeachment value that could undermine the officer's credibility, especially as it relates to his testimony describing his investigation techniques in this case. (See People v. Wheeler (1992) 4 Cal.4th 284, 295 ["[m]isconduct involving moral turpitude may suggest a willingness to lie"].) That evidence, therefore, was favorable to Campa. (Sassounian, supra, 9 Cal.4th at p. 544.)
It also cannot be disputed that the People suppressed the evidence. As noted above, the prosecutor was aware of the report detailing Evans's misconduct during the prior unrelated investigation, the prosecutor refused to disclose the details of the report to defense counsel, and the prosecutor obtained a court order precluding defense counsel from otherwise discovering that evidence. We therefore must decide whether the suppressed impeachment evidence was material.
Campa contends the evidence was material because it could have called into question the credibility of Evans's testimony authenticating the recording of the jail cell conversation and describing how that conversation was orchestrated. Specifically, Campa argues the evidence could have affected the jury's evaluation of whether: (1) Evans didn't know about any of the details concerning the underlying shootings before placing the informant in the jail cell with Campa; (2) Evans didn't coach or otherwise influence the informant to extract details about the underlying shootings from Campa; (3) the recording that was played for the jury accurately reflected the entire conversation between Campa and the informant; and (4) Evans accurately identified Campa as one of the speakers in the recording that was played for the jury.
" ' "In general, impeachment evidence has been found to be material where the witness at issue 'supplied the only evidence linking the defendant(s) to the crime,' [citations], or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case, [citation]." ' [Citation.]" (Letner and Tobin, supra, 50 Cal.4th at p. 177.) As we explain, Campa hasn't shown Evans's impeachment evidence was material.
First, Evans's testimony about the circumstances surrounding the recording of Campa's jail conversation with the informant was corroborated by the testimony of the officers who investigated each of the shootings charged in this case. The officer who investigated the 14th Street shooting of Robinson and Hood testified that he was unaware that Campa was a suspect in that shooting until he heard Campa's conversation with the informant. Likewise, the officer who investigated the Daisy Avenue liquor store shooting of Rodriguez and Alonzo testified that he did not identify Campa as a suspect until he heard the recording of Campa's conversation. Thus, even had Campa been able to impeach Evans with evidence of his prior misconduct, it is not reasonably probable that the jury would have disbelieved Evans's testimony that he was unaware of the details of the underlying shootings, or that he did not coach the informant to extract from Campa details about the shootings, because the other officers' testimony confirmed that Campa had yet to be identified as a suspect in this case at the time the jail conversation was recorded.
Second, other evidence corroborated Evans's testimony about the authenticity and contents of the recording of Campa's jail conversation. (See People v. Goldsmith (2014) 59 Cal.4th 258, 268 [a recording may be authenticated by means other than the testimony of the person who witnessed the recording, such as by "other witness testimony, circumstantial evidence, content and location"].) The person identified as Campa in the recording told the informant that he and his cohorts used a green Camry during the shootings, that his cousin had been arrested in connection with the shootings, and that his uncle had been arrested while driving the green Camry. Consistent with those statements, the uncle testified that Campa is his nephew, that the uncle owned a late 1990's green Toyota Camry like the one used in the underlying shootings, that the uncle's son used to hang out with Campa, and that the uncle had been arrested while driving the Camry several hours after the Daisy Avenue liquor store shooting. In addition, Robinson identified Campa as the person sitting in the front passenger seat of the green Camry after someone inside the car shot at Robinson and Hood. During the recording, the person identified as Campa tells the informant that he was riding "shotgun"—i.e., in the front passenger seat—during the shootings. Further, the person identified as Campa in the recording told the informant that he used .45-caliber bullets during the shootings, the same caliber of bullet casings found at the scene of each shooting.
It is therefore not reasonably probable that the jury would not have found Campa was the person speaking to the informant in the recording even if he was able to impeach Evans's testimony with evidence of the officer's misconduct. And because circumstantial evidence confirms that Campa is the person speaking to the informant in the recording, corroborates Campa's statements to the informant describing the shootings, and links Campa as a participant in the shootings, it is not reasonably probable that the jury would have reached a different verdict had Campa been able to call into question Evans's testimony that the recording memorialized the entire conversation between Campa and the informant.
In short, Campa cannot establish that his due process rights were violated by the nondisclosure of Evans's impeachment evidence because Campa has not shown that the evidence was material.
For the same reasons that we conclude the impeachment evidence was not material, we also conclude that any violation of state evidentiary laws caused by the nondisclosure of the evidence was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13 [violation of California reciprocal discovery statute is a basis for reversal only where it is prejudicial under state-law harmless error standards—i.e., where it is reasonably probable that the omission affected the trial result].)
2. Admission of Hearsay Statement
Campa next contends the court violated his confrontation rights under the state and federal Constitutions. Specifically, Campa challenges the court's admission of one of the investigating officer's testimony that an unidentified witness told him someone in the green Camry used a derogatory term to ask two women where members of the Barrio Pobre gang were located before the liquor store shooting. According to Campa, admission of the hearsay statement was prejudicial because it improperly bolstered the People's evidence showing he premeditated before committing the attempted murders against Rodriguez and Alonzo and that the crimes were committed for the benefit of a gang.
2.1. Relevant Background
During the People's case in chief, one of the investigating officers testified about information he obtained while searching for video footage related to the shooting. The officer contacted an unidentified witness near the Daisy Avenue liquor store. That witness told the officer that, before the liquor store shooting, the green Camry stopped next to two women who were walking down the street. One of the car's occupants then asked the women, "where the Bean Pie is at?" Defense counsel objected, arguing the officer's testimony about what someone told him the car's occupants asked the women was inadmissible hearsay. The court overruled the objection, explaining "[i]t's not going to the truth of the matter but to his state of mind regarding his investigation."
Later during the officer's testimony, the prosecutor asked him: "Additionally, you mentioned when you were looking for surveillance footage you received notice about a comment, 'Where the Bean Pies at?' [¶] Are you familiar with the term 'Bean Pies' in gang context?" The officer explained that the phrase is a derogatory term to describe a member of the Barrio Pobre gang.
During closing argument, the prosecutor discussed the officer's testimony: "[Campa's] view of the world is premeditation. It's all premeditation. [¶] ... [¶] This is 3:32 in the afternoon. It's about a half hour before [Robinson] and [Hood] get shot. He is on the other side of town near the liquor store. They are driving up and down this street. Driving up and down the street, talking to people, calling out. They even stop at this point. You heard testimony something about, where the Bean Pies at? That's slang for Barrio Pobre. [¶] That's premeditation right there. Why else are you driving up and down the street with your boys asking hey, where the Barrio Pobre gangsters at? This isn't a bar fight that got out of control. This is premeditation." The prosecutor also argued the comment about "Bean Pies" showed the shootings were gang-related.
At sentencing, while discussing the aggravating factors under California Rules of Court, rule 4.421(a), the court explained that Campa using a derogatory term to refer to rival gang members indicated that he planned the shootings.
2.2. Any error was harmless beyond a reasonable doubt.
A criminal defendant has a constitutional right to confront accusing witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) Whether admission of a hearsay statement violates a defendant's confrontation rights turns on whether the statement is testimonial or nontestimonial. (Crawford v. Washington (2004) 541 U.S. 36, 53-54; People v. Sanchez (2016) 63 Cal.4th 665, 670, 680.) "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822.) Whether a hearsay statement is testimonial and implicates a defendant's confrontation rights is an issue we review de novo. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1478.)
The People concede that the court erred when it admitted the officer's testimony that an unidentified witness told him that someone in the green Camry asked two women, "Where the Bean Pie is at" because the witness's statement was testimonial hearsay. The People contend, however, that the statement's admission was harmless beyond a reasonable doubt.
Where the erroneous admission of evidence implicates the defendant's federal constitutional rights, we determine whether that error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24. Under Chapman, we must reverse unless the People "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Ibid.)
Any error in admitting the unidentified witness's hearsay statement was harmless beyond a reasonable doubt. Overwhelming evidence independent of that statement supports the jury's findings that Campa premeditated before committing the attempted murders against Rodriguez and Alonzo and that those offenses were gang related. As to premeditation, Campa told the informant during the recorded jail conversation that he was a member of East Side Longo and that he targeted Rodriguez and Alonzo because he thought they were members of Barrio Pobre. Campa, therefore, admitted he had a motive for shooting Rodriguez and Alonzo—i.e., he believed they were members of a rival gang. (People v. Cage (2015) 62 Cal.4th 256, 276 [evidence that the defendant had a motive to attack his victim supports inference that the defendant acted with premeditation and deliberation], abrogated by statute on another ground, as explained in People v. Falsetta (1999) 21 Cal.4th 903, 911.)
There also was overwhelming evidence of planning. (People v. Alcala (1984) 36 Cal.3d 604, 626 [evidence of planning is the most important for establishing premeditation and deliberation].) The People presented evidence that the Daisy Avenue liquor store is in territory over which East Side Longo and Barrio Pobre dispute control. Video footage captured about an hour and a half before the liquor store shooting showed the car Campa was riding in driving back and forth several times in front of the store. And Campa admitted to the informant that he was carrying a gun with him in the car so that he would be "ready to hop out" and shoot someone. This evidence, when considered with Campa's statements about why he shot Rodriguez and Alonzo, strongly supports a finding that Campa and his cohorts were searching for members of Barrio Pobre who they could attack. (See People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002 [evidence that shooter had the driver slow down in front of victims the shooter believed to be members of rival gang supports evidence of planning and deliberation].)
Much of the same evidence also strongly supports the jury's finding that the attempted murders were gang related. As noted above, Campa admitted he targeted Rodriguez and Alonzo because he believed they were members of a rival gang. Plus, the liquor store shootings occurred in territory over which East Side Longo and Barrio Pobre disputed control. As the gang expert testified, gang members will often attack people who they believe are members of rival gangs to instill fear in rival gang members and members of the community and to strengthen their gang's control over its territory. In light of this evidence, we are confidant beyond a reasonable doubt that the jury would have found the liquor store shootings were committed for the benefit of a gang even had the court excluded the unidentified witness's statement.
Campa insists admission of the hearsay statement was prejudicial in light of the prosecutor's reliance on that statement during his closing argument when addressing the premeditation and gang enhancement allegations. (See People v. Pitts (1990) 223 Cal.App.3d 606, 694 [a prosecutor's argument carries "great weight" because it comes from a representative of the government].) The prosecutor's argument doesn't change our conclusion that the statement's admission was harmless beyond a reasonable doubt. The strongest evidence of premeditation and the gang-related nature of the Daisy Avenue liquor store shootings came from Campa's own admissions to the informant and the video footage of the car that Campa was riding in driving back and forth several times in front of the liquor store not long before Rodriguez and Alonzo were shot. The unidentified witness's statement that someone in Campa's car asked two other people where members of Barrio Pobre were located was, therefore, cumulative of a wealth of other evidence that proved the shootings were premeditated and gang related. Consequently, any error in admitting the witness's statement was harmless beyond a reasonable doubt.
Campa also argues the court's admission of the unidentified witness's statement was prejudicial because the court relied on the contents of that statement when it calculated his sentence. We need not address this argument because, as we explain below, we vacate Campa's sentence on other grounds and remand for resentencing.
3. Sufficiency of the Evidence for the Gang Enhancement
Campa next contends insufficient evidence supports the gang enhancement under section 186.22, subdivision (b). Specifically, Campa argues the People failed to prove East Side Longo's primary activities include any of the criminal acts enumerated in section 186.22, subdivision (e). We disagree.
3.1. Applicable Law and Standard of Review
To support a gang enhancement under section 186.22, subdivision (b), the People must prove the existence of a criminal street gang whose members engage in a pattern of criminal activity. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322-323 (Sengpadychith); see also 186.22, subd. (f).) A " 'criminal street gang' " is defined as: "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) Some criminal acts that qualify as primary activities under the statute include assault with a deadly weapon or force likely to produce great bodily injury, robbery, murder, narcotics sales, and illegal possession of firearms. (§ 186.22, subd. (e).)
"[E]vidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang." (Sengpadychith, supra, 26 Cal.4th at p. 323.) The primary activities element may be proved by expert testimony that is based on the expert's experience investigating the gang's crimes, interviewing gang members and other law enforcement officers, and reviewing information related to the gang gathered by the expert's own police department and other law enforcement agencies. (Id. at p. 324.)
When a defendant challenges the sufficiency of the evidence to support a special allegation finding, we review the entire record in the light most favorable to the judgment to determine whether any rational trier of fact could have found the evidence proved the elements of the allegation beyond a reasonable doubt. (People v. Manibusan (2013) 58 Cal.4th 40, 87; see also People v. Albillar (2010) 51 Cal.4th 47, 59-60 [same standard of review applies to allegation findings].) We draw all reasonable inferences in favor of the judgment and do not resolve credibility issues or evidentiary conflicts. (Ibid.) " ' " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.) Thus, before we may set aside the judgment, it must be clear that " ' "upon no hypothesis whatever is there sufficient evidence to support" ' [it]." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
3.2. Substantial evidence supports the primary activities element of the gang enhancement.
The gang expert testified that East Side Longo's primary activities were narcotics sales, murder, attempted murder, illegal possession of firearms, and assault with firearms and other deadly weapons. Each of those crimes is a qualifying offense under section 186.22. (See § 186.22, subd. (e)(1), (3), (4), (23), & (31).)
Although the expert didn't explicitly identify the basis for his opinion concerning East Side Longo's primary activities, he did provide a foundation for that opinion when he testified about his experience investigating the gang. Specifically, the expert testified that he stayed current with East Side Longo's activities by speaking to members of the gang, members of rival gangs, other law enforcement officers, and members of the community. And, throughout most of his career, the expert had investigated numerous crimes committed by, and testified in at least 25 trials involving, East Side Longo members. The expert's testimony was therefore sufficient to establish the primary criminal activities of East Side Longo. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1465 [gang expert's testimony based on conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from other officers and law enforcement agencies may be used to prove a gang's primary activities]; Sengpadychith, supra, 26 Cal.4th at p. 323 [same].)
In addition to the expert's testimony, the People also presented evidence of six other specific qualifying crimes committed by East Side Longo members. For instance, the expert testified about the two predicate offenses committed by East Side Longo members: a murder committed in May 2009 and another murder committed in October 2009, both of which the expert investigated. (See Sengpadychith, supra, 26 Cal.4th at p. 323 [past offenses committed by the gang's members may be probative of the gang's primary activities].) The jury also heard the evidence concerning the four charged attempted murders committed by Campa, which corroborates the expert's testimony that attempted murder is one of the gang's primary activities. (See ibid. [nothing in section 186.22 precludes the jury from considering the circumstances of the charged offenses in determining whether the gang has as one of its primary activities the commission of the enumerated crimes].)
Relying on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), In re Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel C.), and In re Leland D. (1990) 223 Cal.App.3d 251 (Leland D.), Campa insists the gang expert's testimony was too "conclusory" to support a finding that East Side Longo's primary activities included the commission of any of the offenses listed in section 186.22, subdivision (f). Campa's reliance on these cases is misplaced.
In Alexander L., the juvenile defendant was charged with vandalism based on gang-related "tagging" activities. (Alexander L., supra, 149 Cal.App.4th at p. 609.) The People's gang expert testified about the criminal activities of the defendant's gang: " 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved in auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (Id. at p. 611.)
The reviewing court reversed the gang enhancement because insufficient evidence supported the primary activities element. (Alexander L., supra, 149 Cal.App.4th at pp. 611-614.) As the court explained, the People never elicited any information about the specifics of the crimes that allegedly formed the gang's primary activities. (Id. at pp. 611-612.) The People also failed to elicit testimony addressing, when, where, or how the gang expert obtained the information that formed the basis for his opinion: "[The expert] did not directly testify that criminal activities constituted [the gang's] primary activities. Indeed, on cross-examination, [the expert] testified that the vast majority of cases connected to [the gang] that he had run across were graffiti related." (Id. at pp. 611-612.)
In Nathaniel C., the reviewing court concluded insufficient evidence supported the primary activities element of the gang enhancement because the "[t]he only testimony even remotely addressing [that] element [was] the expert's statement that the primary activity of all of the gangs in his area [was] criminal." (Nathaniel C., supra, 228 Cal.App.3d at p. 1004.) The expert never testified that the gang at issue had as one of its primary activities the crimes listed in the statute, and he acknowledged that the subject gang did not operate within his jurisdiction. (Id. at pp. 1004-1005.)
In Leland D., the appellate court reversed the gang enhancement because the gang expert failed to identify with any particularity crimes that the gang at issue had committed to establish the pattern of criminal activity element. (Leland D., supra, 223 Cal.App.3d at p. 259.) When asked whether the gang had committed any serious felonies, the expert responded, " 'I don't know. I'm sure there has been, but I don't know.' " (Ibid.) The expert then testified in vague terms about a recent drive-by shooting that may have involved members of the subject gang. (Id. at p. 260.)
Alexander L., Nathaniel C., and Leland D. are distinguishable because, unlike the experts in those cases, the gang expert in this case provided a sufficient foundation for his testimony about the crimes that form the primary activities of East Side Longo. Nathaniel C. is further distinguishable in that the expert in this case identified specific crimes committed by East Side Longo; he didn't testify in vague terms about crimes committed by gangs in general. Leland D. is also further distinguishable because the reviewing court's analysis in that case addressed the pattern of criminal activity element, not the primary activities element. (See Leland D., supra, 223 Cal.App.3d at pp. 258-260.) Unlike the pattern of criminal activity element, the primary activities element may be proved through expert opinion testimony alone. (See Sengpadychith, supra, 26 Cal.4th at p. 324.)
4. Unauthorized Sentence
Campa next contends the court imposed an unauthorized sentence. Specifically, he claims the court erred when it imposed both the 25-years-to-life term under section 12022.53, subdivisions (d) and (e)(1) and the 15-years-to-life term under section 186.22, subdivision (b)(5) because the jury did not find that he personally used or discharged a firearm during any of the offenses. (See § 12022.53, subd. (e)(2).) We agree.
4.1. Applicable Law
Under section 12022.53, a gun enhancement usually applies "only to a defendant who personally used or fired a gun." (People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1424 (Gonzalez).) If multiple people commit a crime for the benefit of a gang, however, all principals who participated in the crime are subject to section 12022.53's enhancements if any of the principals personally used or fired a gun during the commission of the crime. (§ 12022.53, subd. (e)(1).) But if the court imposes a gun enhancement for a defendant who was a principal in a gang crime under section 12022.53, subdivision (e)(1), it may not impose any other "enhancement for participation in a criminal street gang," unless the defendant "personally used or personally discharged a firearm in the commission of the offense." (§ 12022.53, subd. (e)(2); People v. Brookfield (2009) 47 Cal.4th 583, 590 (Brookfield).)
Section 12022.53, subdivision (e)(2) encompasses both the sentence enhancements and the penalty provisions established under section 186.22. (Brookfield, supra, 47 Cal.4th at p. 595 ["the word 'enhancement' in section 12022.53(e)(2) refers to both the sentence enhancements in section 186.22 and the penalty provisions in that statute"].) That includes section 186.22, subdivision (b)(5), which establishes a minimum parole eligibility period of 15 years for a crime committed for the benefit of a gang that is otherwise punishable by a life term. (Gonzalez, supra, 180 Cal.App.4th at p. 1427.) Thus, if the jury finds only that a principal, but not specifically the defendant, used or fired a gun during the commission of a gang crime subject to a life term, the court cannot impose both a gun enhancement under section 12022.53, subdivision (e)(1) and the 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5). (Ibid.)
4.2. The court imposed an unauthorized sentence.
As to each of the four counts in this case, the jury found a principal personally and intentionally fired a gun causing great bodily injury during a crime committed for the benefit of a street gang. (§ 12022.53, subds. (d) & (e)(1).) The jury did not make a finding that Campa personally fired the gun used in any of the charged attempted murders. Thus, on their face, the jury's findings precluded the court from imposing both the 25-years-to-life gun enhancements under section 12022.53, subdivisions (d) and (e)(1) and the 15-year minimum eligibility period for the attempted murders under section 186.22, subdivision (b)(5).
We also can't infer that, as a matter of law, the jury necessarily found Campa fired the gun when it found him guilty of the attempted murders and found true the attendant allegations. The court only instructed the jury on a principal's use of a firearm. That is, it instructed the jury it only needed to find a principal fired the gun, and it defined a principal as someone who "directly commits the crime or ... aids and abets someone else who commits the crime." And, during closing argument, the prosecutor told the jury that it didn't need to find Campa fired the gun to find true any of the gun allegations under section 12022.53, subdivision (e)(1), arguing that the jury could find the allegations true even if they found someone else riding in the car with Campa fired the gun.
Because the jury did not find Campa personally fired the gun used in any of the attempted murder counts, the court erred when it imposed both the gun enhancement under section 12022.53, subdivisions (d) and (e)(1) and the 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5) on counts 1 through 4. We therefore must vacate Campa's sentence and remand the matter for resentencing.
As to each count on remand, the court may choose to impose the gun enhancement under section 12022.53, subdivisions (d) and (e)(1), or it may choose to impose the 15-year minimum eligibility period under section 186.22, subdivision (b)(5). The court cannot impose both. (Gonzalez, supra, 180 Cal.App.4th at p. 1427.) We offer no opinion on how the court should exercise its sentencing discretion on remand.
Campa also contends the court violated his due process rights by imposing a $300 restitution fine, $160 in court security fees, a $120 criminal conviction assessment, and $266.52 in booking fees without determining his ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157. This issue is currently pending before the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844. Because the lower court may decide not to impose the challenged fine and fees upon resentencing, we do not address Campa's argument challenging the imposition of the fine, fees, and assessment. Campa should raise this issue at the resentencing hearing. --------
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing consistent with the views expressed in this opinion. In all other respects, we affirm. Upon resentencing, the court is directed to prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
EGERTON, J.