Opinion
B287541
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE CASTANEDA et al., Defendants and Appellants.
Corona & Peabody, Jennifer Peabody for Defendant and Appellant Frank Cruz. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Jose Castaneda. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA075794) APPEAL from judgments of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed; remanded with directions. Corona & Peabody, Jennifer Peabody for Defendant and Appellant Frank Cruz. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Jose Castaneda. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Frank Cruz and Jose Castaneda of first degree murder and other charges and found gang and gun enhancements to be true, and the trial court sentenced them to long prison terms. They contend (1) no substantial evidence supports the convictions; (2) the court erred in refusing to sever their trials or bifurcate gang evidence and in denying a Pitchess motion and a motion for new trial; (3) the court improperly admitted hearsay evidence and excluded fingerprint evidence; and (4) their sentences are unlawful in several respects. We agree with some of their sentencing claims, and will thus affirm the judgments but remand for resentencing.
(Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
BACKGROUND
The Mexican Mafia is a criminal "umbrella" gang, to which most criminal street gangs in Southern California owe allegiance.
In 2007, Cruz and Castaneda, both members of the Mexican Mafia, ordered that Ray Lopez (Lopez), a Mexican Mafia associate and suspected police informant, be killed. At 1:00 a.m. on July 26, 2007, Daniel Navarro another Mexican Mafia associate, carried out their order by shooting Lopez five times from the passenger side of a car Lopez was driving, killing him.
At trial, Ashley Lopez, Lopez's daughter, and Ferdinand Bermudez, a third Mexican Mafia associate, testified that Lopez had sold drugs for Cruz and Castaneda. Bermudez testified Cruz was a "shot caller" in the gang, and Castaneda was his "right-hand man."
Bermudez testified that Cruz and Castaneda were concerned that Lopez had "a cop in his pocket," meaning a police officer who would "look the other way" when Lopez committed crimes, possibly because he was a police informant. Acting on this suspicion, Cruz held a meeting with Castaneda, Bermudez and Navarro, during which he ordered Navarro to kill Lopez.
Brian Buchanan, a former Long Beach Police Officer, testified that Lopez was a "confidential reliable informant" for ten years before his death, providing information that caused the arrest of dozens of individuals involved in narcotics trafficking. In 2006, it became known in gang circles that Lopez was talking to Buchanan, and that Buchanan's name had appeared on an arrest report concerning a crime of which Lopez had particular knowledge.
Larry Robbins, a gang member, and Sheryll Enteria, Lopez's close friend, had participated in a home invasion robbery in 2005. When Enteria was murdered a month later, possibly by the robbery victim, Robbins permitted Lopez to tell Buchanan about his friend's part in the robbery, so they could "handle the homicide." Police instead arrested Robbins. Buchanan's name was on the arrest report.
Police Detective Hugo Cortes testified that in 2008, Bermudez told him that the day before Lopez was killed, he (Lopez) drove Navarro to Walgreens to purchase items for Castaneda, who had recently been released from prison. Cortes testified that Lopez's cell phone showed he made three calls to Cruz from near Walgreens, hours before the murder.
Michael Franco, a former gang member and Mexican Mafia associate, testified that Cruz was a "crew chief" in the gang. Franco identified Cruz's voice from an audio jailhouse recording dated July 22, 2007. On it, Castaneda and Cruz received a call from Jose Gallegos, a fellow gang member. Castaneda asked Gallegos, referring to Lopez, "what up with that fool, Ray?"
Gallegos responded, "I know that he's a bit of a snake, but I know we can keep him in our pocket."
Castaneda said, "they're telling me . . . that they're looking for . . . waiting for the paperwork" on "Ray," and said that "Cyclone" was going to send the "paperwork." Castaneda said, "[W]e were about to take him on a journey over there . . . to the great beyond," and referenced two deceased Mexican singers. He said, "we're already planning, we've already bought his ticket, we're just waiting to give it to him."
Franco explained that "paperwork" referred to evidence that Lopez was a "snitch."
Olvido Salazar, another gang member, testified that Cruz was a Mexican Mafia member in charge of "taxing" gangs, i.e., collecting a portion of the money received from drug sales, in the Long Beach Harbor area.
Cell phone experts testified that Lopez called Cruz, Castaneda and Navarro several times the night of his murder, including calls made near Walgreens in Long Beach; and Navarro called Castaneda—and Cruz and Navarro exchanged calls—shortly before the murder.
Long Beach Police Detective Todd Johnson and criminalist Troy Ward testified that shell casings recovered from the crime scene and spent bullets recovered from the scene and from Lopez's body indicated that the gun used to kill Lopez was the same as the one police later found in Cruz's home safe. Police also found another firearm in the safe, as well as three bullet proof vests, methamphetamine, and several small-caliber rounds.
For the defense, Navarro testified that he killed Lopez on his own, with no help or direction from Cruz or Castaneda.
Castaneda testified on his own behalf, denying involvement.
The jury convicted Cruz of first degree murder; conspiracy to commit murder; possession of a firearm, ammunition, and body armor by a felon; and possession for sale of a controlled substance. (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a); former Pen. Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1), 12370, subd. (a); Health & Saf. Code, § 11378.)
All undesignated statutory references will be to the Penal Code.
The jury convicted Castaneda of first degree murder and conspiracy to commit murder. (§§ 182, subd. (a)(1), 187, subd. (a).)
The jury found gang and gun enhancement allegations to be true as to both appellants. (§§ 186.22, subd. (b), 12022.53, subds. (c)-(d).)
At a bifurcated proceeding, Cruz and Castaneda admitted they had prior felony "strike" convictions and serious felony prior convictions, and the court found they had served prior prison terms. (§§ 667, subds. (a)-(i), former 667.5. subd. (b), 1170.12, subds. (a)-(d).)
The court sentenced Cruz to state prison for an indeterminate term of 80 years to life, and a determinate term of 11 years 4 months. It sentenced Castaneda to an indeterminate term of 110 years to life.
Both appeal.
DISCUSSION
I. Cruz
A. The Court Admitted no Inadmissible Hearsay
Cruz argues the court erred in admitting recordings of three jailhouse telephone calls. We disagree.
During trial, the prosecutor played for the jury, without objection, a recording of Castaneda speaking with Jose Gallegos, who was in jail. In it, Gallegos asked Castaneda, "Hey are you right next to him" (referring to Cruz), to which Castaneda responded, "He's right here. Do you want to talk to him?" Castaneda handed the phone to Cruz, who spoke for a while before returning it. Then Castaneda told Gallegos they were waiting for "paperwork" on Lopez, and were going to take him on "a journey over there . . . to the great beyond." Castaneda said, "we're already planning, we've already bought his ticket, we're just waiting to give it to him."
The prosecutor also played, over defense hearsay objections, a phone conversation between Castaneda and Mexican Mafia leader Emiliano Lopez recorded after the murder. In it, the men discussed Mexican Mafia business unrelated to the Lopez murder and referred several times to Cruz, whom Castaneda called "my crimey," as a Mexican Mafia participant.
Finally, the prosecution played, over a Castaneda hearsay objection in which Cruz did not join, post-murder jailhouse calls between Castaneda and Jose Flores, a Mexican Mafia member, in which the two discussed Mexican Mafia business Castaneda was conducting in jail. These calls formed a basis for a gang expert's opinion about Castaneda's identity and relationship with the Mexican Mafia. They did not mention Cruz.
The prosecutor discussed the calls during argument. As to the first, the court instructed the jury with CALCRIM No. 357, Adoptive Admissions, which provided in pertinent part that a statement made outside of court that accuses a defendant of a crime may be deemed an adopted admission if the defendant heard and understood the statement, would normally have denied it if he thought it untrue, and in fact did not deny it.
The issue is whether recordings of these calls were inadmissible hearsay.
"Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . ." (Evid. Code, § 1220.) The party need not have made the statement himself. Evidence of a statement is not inadmissible "if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." (Evid. Code, § 1221.) " 'Under this provision, "[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, . . . and he fails to speak, . . . both the accusatory statement and the fact of silence . . . may be offered as an implied or adoptive admission of guilt." ' " (People v. Chism (2014) 58 Cal.4th 1266, 1297.)
Failure to object at trial forfeits a claim of evidentiary error on appeal. (Evid. Code, § 353; People v. Clark (2016) 63 Cal.4th 522, 603.)
We review a trial court's admission or exclusion of evidence for abuse of discretion, i.e., discretion exercised in an arbitrary, capricious, or patently absurd manner, and will reverse only when admission or exclusion "resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, Cruz objected only to the second recording set forth above, and Castaneda only to the second and third. Any arguments on appeal by either defendant about recordings to which they failed to object are forfeited.
Cruz argues his counsel's failure to object to the first or third recording constituted ineffective assistance. We disagree. To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692; People v. Williams (1997) 16 Cal.4th 153, 215.) "A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate '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.' " (People v. Maury (2003) 30 Cal.4th 342, 389.)
Regarding the first call, the jury heard evidence that Cruz was with Castaneda while the latter was on the phone, and heard his part of the conversation but said nothing. Defense counsel reasonably could have decided not to object to the recording because such objection would have been overruled, as Cruz's silence when accused of conspiring to murder Lopez constituted an adoptive admission.
Cruz argues the jury might have concluded his silence did not constitute an adoptive admission because it could be inferred that after he relinquished the phone to Castaneda he moved out of earshot, and that the statements Castaneda made about waiting on paperwork before sending Lopez to the great beyond were innocuous references to which no denial was required. Maybe so, but our review for ineffective assistance asks only whether Cruz's defense counsel had a tactical reason not to object. Such a tactical reason easily presents itself, because any suggestion that Cruz had conveniently left the room only for the incriminatory part of the conversation, or that sending someone "to the great beyond" could be a friendly act, would have met with jury disbelief and with renewed efforts by the prosecution to highlight the implausibility of such arguments, and would have impugned defense credibility going forward.
In a similar vein, Cruz's defense counsel could have reasoned that any objection to the recording of Castaneda's conversations with Flores, which did not mention Cruz, would have counterproductively highlighted Cruz's connection to Mexican Mafia business.
As to the conversation in which Castaneda referred to Cruz as his "crimey," to which Cruz did object, we find the conversation was erroneously admitted as to Cruz. But the error was harmless under any standard. Several witnesses testified that he and Castaneda worked together in the Mexican Mafia, and the jury heard a telephone conversation in which he conspired with Castaneda to murder Lopez. We are confident that no additional modicum of inculpation arising from Castaneda also referring to him as "my crimey" made any difference. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
B. The Court Acted Within its Discretion in Excluding Evidence of Bermudez's Fingerprints
After Navarro testified he killed Lopez of his own volition, Cruz's attorney sought to introduce evidence that the fingerprints of Bermudez and another gang member were found on Lopez's car after the murder, and were the only prints (other than Lopez's) found. Counsel explained that the evidence tended to show that Bermudez was the shooter. The court excluded the evidence, finding it did "not satisfy[] the requirements of third-party culpability."
Cruz argues exclusion of this evidence was prejudicial error. We disagree.
To be admitted, evidence of a third party's culpability must be relevant, and its probative value cannot be "substantially outweighed by the risk" of undue delay, prejudice, or confusion. (Evid. Code, § 352; see People v. Kaurish (1990) 52 Cal.3d 648, 685; see also Holmes v. South Carolina (2006) 547 U.S. 319, 326-327 ["the Constitution permits judges 'to exclude evidence that is "repetitive . . . , only marginally relevant" or poses an undue risk of "harassment, prejudice, [or] confusion of the issues." ' ") The evidence " 'need not show "substantial proof of a probability" that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt.' [Citation.] However, 'evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.' " (People v. Yeoman (2003) 31 Cal.4th 93, 140-141.)
Here, although Bermudez may have had opportunity to murder Lopez, and perhaps even motive (there was evidence he and Lopez were both gang drug dealers), there was no evidence at all linking him to the shooting. Bermudez's prints being on Lopez's car does not provide a link to the murder given that Bermudez was a Mexican Mafia associate and Lopez was a confidential informant who had infiltrated the gang. Thus Bermudez and Lopez had opportunities to meet other than the murder that could explain why Bermudez's prints and another gang member's prints were on Lopez's car. On the contrary, all the evidence showed that Navarro (whose prints were not in the car) shot Lopez. The court was therefore within its discretion to exclude the fingerprint evidence.
C. Cruz's Pitchess Motion was Properly Denied
After the jury found appellants guilty, the prosecution disclosed evidence that Detective Cortes, the investigating officer, had himself been investigated by the Long Beach Police Department's Internal Affairs unit and the District Attorney's Office regarding prior misconduct. According to the prosecutor, "somebody within the office concluded that Detective Cortes had removed an ankle bracelet from a defendant in an unauthorized manner that was in contravention of his plea agreement," and asked about it, "had not been truthful."
Following the disclosure, defense counsel moved for a Pitchess hearing, arguing that "[Cortes] permeated the whole trial," and his "credibility was paramount." Counsel sought information from Cortes's personnel file regarding any prior allegations of "false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, collecting evidence, tampering with evidence, false or misleading internal reports, and false overtime or medical reports." They alleged that Cortes (1) may have tainted Bermudez's testimony; (2) may have tampered with two spent shell casings found in Lopez's car; (3) engaged in misconduct by associating with female gang members, pulling his weapon on Castaneda, and then failing to report the incident; and (4) had "grabbed" counsel in the hallway when asked about the incident.
The Long Beach Police Department opposed the motion, arguing Cortes was not alleged to have testified falsely, authored no pertinent police report in this case, and was not involved in arresting appellants, and no facts indicated he prepared any false or misleading internal report.
The trial court found that Cortes had authored no pertinent report in this case and was not alleged to have made any false statement at trial, and no evidence nor any plausible factual scenario indicated how he obtained and planted shell casings from the murder weapon before it was recovered by other officers from Cruz's house. It therefore denied the Pitchess motion without examining Cortes's personnel records.
Cruz, joined by Castaneda, argues the trial court's denial of his Pitchess motion deprived him of his confrontation and due process rights, and his right to a fair trial. We disagree.
"A criminal defendant, on a showing of good cause, is entitled to discovery of information in the confidential personnel records of a peace officer when that information is relevant to defend against a criminal charge." (People v. Gaines (2009) 46 Cal.4th 172, 176; see Evid. Code, § 1043 et seq.) A defendant must adduce a specific factual scenario establishing a "plausible factual foundation" for allegations of officer misconduct. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86 (City of Santa Cruz).) There must be a logical connection between the pending litigation, the defense theory, and the requested discovery. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027; Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 392 ["all the law requires to show good cause to permit such discovery is the 'materiality' of the information to the subject matter of the pending litigation]; accord, Evid. Code, § 1043, subd. (b)(3) [Pitchess motion requires an affidavit "setting forth the materiality [of the requested personnel records] to the subject matter involved in the pending litigation"].)
A trial court has broad discretion in determining whether good cause exists to examine police personnel records, and we will disturb its finding only upon an abuse of that discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) If we determine the court abused its discretion by denying review or disclosure of such records, we would next determine whether the error was prejudicial under People v. Watson. (People v. Gaines, supra, 46 Cal.4th at pp. 182-183.) In the context of a Pitchess motion filed in anticipation of a motion for new trial, courts have construed the phrase "pending litigation" to refer to the defendant's motion for a new trial and have concluded that the standard for evaluating a posttrial Pitchess motion is whether there exists a reasonable probability that disclosure of the requested records would lead to a different result in a new trial. (People v. Nguyen (2007) 151 Cal.App.4th 1473, 1478; see People v. Delgado (1993) 5 Cal.4th 312, 328 [new trial not warranted where it is not "probable" that newly discovered evidence would have produced different result].)
Here, the trial court acted within its discretion in impliedly finding that appellants' allegations concerning misconduct unrelated to the evidence at trial (Cortes's associating with gang members, brandishing a weapon at Castaneda, and accosting a defense attorney) were immaterial for purposes of a new trial motion. Their burden was to describe "a specific factual scenario" supporting a valid theory as to how the information sought might be admissible and material. (City of Santa Cruz, supra, 49 Cal.3d at pp. 85-86.) But they argued only that Cortes "permeated" the trial, and his "credibility was paramount." This explanation, which could be made about any investigating officer, failed to indicate specifically how Cortes's outside misconduct could have led to admissible evidence, and from there plausibly to a different result upon any retrial.
Defense counsel speculated in a declaration that Cortes's threat of prosecution for conspiracy "may well have . . . tainted" Bermudez's testimony, and he "likely orchestrated" "[d]elivery of tampered evidence to the ballistics lab." But nothing indicated Cortes successfully pressured Bermudez—who testified under a grant of use immunity—to testify falsely. No Pitchess review need be conducted based on a showing of the merely imaginable or conceivable. (See People v. Thompson (2006) 141 Cal.App.4th 1312, 1318 [no good cause where defendant fails to provide "an alternate version of the facts"].)
Defense counsel speculated below that Cortes may have tampered with two spent shell casings found in Lopez's car, but offered no suggestion how he could have done so in such a manner as to cause those casings to match the murder weapon, which was recovered from a locked safe in Cruz's home sometime later by other officers. Nor has appellant addressed the spent bullet matching the gun and removed from the body at autopsy.
In short, assuming that a lie Cortes told about an ankle bracelet in another case tainted everything he said and did in this case, Cruz and Castaneda provided no plausible explanation as to how he materially tainted the crime scene or Bermudez's testimony here. How did Cortes insinuate a shell casing from Cruz's after-discovered gun into the evidentiary chain? Why would expended bullets from Cruz's gun be at the scene if Cruz's gun hadn't also been there? How did Cruz cause Bermudez, who had immunity, to testify falsely? What did Cortes lie about at trial, and how specifically could an impeachment on that point lead to a different result upon retrial?
Appellants said only that Cortes "permeated the whole trial," that his "credibility was paramount," that he "may well have . . . tainted" Bermudez's testimony somehow, and that he "likely orchestrated" delivery (by other officers) of tampered evidence.
This was insufficient. That a lead investigator plays an important role in a criminal investigation and resulting trial is a truism. That fact alone is not good cause for Pitchess review. That the investigator "likely" tampered with evidence, and "may well" have tainted a witness, are vague claims unconnected to the evidence actually adduced at trial and thus are a mere fishing expedition. (See City of Santa Cruz, supra, 49 Cal.3d at p. 85 [a Pitchess motion may not be granted absent a showing of some legitimate cause for the discovery].) The court therefore acted within its discretion in finding that appellants failed to provide a plausible alternate version of the facts, and thus in denying their Pitchess motion.
Appellants argue that Cortes was a key figure in the investigation and prosecution. He "authored multiple reports and other documents in this case," including two police reports, "drafted the search warrants and arrest warrant affidavits" for appellants and Navarro, and as the investigating officer "played a crucial role in the case." He was "in charge of the crime scene," was present when Lopez's body was removed from his car, and directed that the spent bullets be recovered. He "attended the autopsy, collected and booked a bullet recovered during the autopsy, reviewed the phone records, analyzed cell phone records and cell site information, authored and obtained search warrants, drove the route from Bermudez's house to the crime scene," "listened to over 200 calls involving people in this case," "interviewed Bermudez the day of the murder," and "interrogated Bermudez for about five hours over the course of [his] three day incarceration, wherein, on the final day, after Cortes implied that he could be charged with conspiracy unless he provided them information they needed, Bermudez changed his story and agreed to cooperate, asked for protection for his family, admitted he 'fibbed a little bit' during the initial interview and implicated [appellants] and Navarro in the murder, identified all as members of the Mexican Mafia and reported that [Cruz] ordered the hit." For trial, Cortes "served as Bermudez's handler, escorted him [in the courthouse,] and met with him in the prosecutor's office following his first day of testimony." Appellants characterize Cortes as "the most important officer involved in the investigation, arrest and prosecution."
Appellants further argue that their defense theory always impugned Cortes: They were not shot callers in any gang and were uninvolved in any plan or conspiracy to kill Lopez; Bermudez was involved in the decision to kill Lopez; the projectiles recovered were planted; officers committed misconduct; Bermudez testified falsely at the direction of Cortes, who had arrested him and threatened to prosecute him for the murder; and appellants were being scapegoated by the police.
Finally, appellants argue that the trial court had presided over the entire trial and well knew their positions and Cortes's role.
For the sake of argument, we grant all these points.
But not the next one. Appellants argue these factors, combined with their Pitchess showing—that Cortes likely tampered with bullet casings and may have coerced a witness—carried their burden to show good cause for Pitchess review. We disagree. Even granting the trial court's familiarity with appellants' trial theories, they must nevertheless explain specifically how new evidence could lead to a plausible defense theory for retrial.
They have yet even to attempt to do so.
The trial court had no mandate or ability to formulate the theory for them.
D. Motion for New Trial
On March 30, 2017, Cruz's attorney filed a motion for new trial, arguing that newly discovered evidence could have led to a more favorable result at trial. Cruz supported the motion with declarations of a gang expert and an investigator, in which they related statements of two women Melinda Cruz Villalobos and Herica Daniagua.
According to the investigator, Villalobos had said that she complained to Bermudez a day or two before the Lopez murder that Lopez had tried to "tax" her, but she had permission to do business in her area without any tax. Bermudez told her he would take care of it, and the next day said, "It's all done, you'll hear about it."
Also according to the investigator, Daniagua reported that Detective Cortes pulled her vehicle over, and then asked for her phone number and called her every day and flirted with her, and one time tried to kiss her. When he did, Castaneda and a friend entered Daniagua's house and Cortes and appellant Castaneda pulled their guns on each other.
The investigator explained that Cruz's defense counsel had requested "well before trial" that he locate and interview Villalobos and Daniagua, but he was unable to do so until March 17, 2017, when they met with him. The witnesses' statements were audio-recorded.
Cruz requested an evidentiary hearing "to get these women in and see what's going on."
The prosecution opposed the new trial motion, arguing the evidence was not newly discovered because counsel was aware of Villalobos and Daniagua before trial, the new evidence (the investigator's declaration) was hearsay, and it was not reasonably likely to lead to a different result at any retrial.
The court denied the motion, finding, "The declarations that were submitted as new evidence are not signed by the alleged witnesses. There was nothing raised here that warrants a new trial."
Cruz argues his trial counsel provided ineffective assistance by failing to present admissible evidence in support of his new trial motion. We disagree.
A motion for new trial based on newly discovered evidence must be supported by "the affidavits of the witnesses by whom such evidence is expected to be given." (§ 1181, par. 8.)
Because the record is silent on why Cruz's counsel failed to obtain signed affidavits, we will reverse only if there could be no satisfactory explanation. (People v. Maury, supra, 30 Cal.4th at p. 89.) An obvious explanation is that Villalobos and Daniagua refused to sign the declarations or did not make the statements in the declarations to begin with. Therefore, the trial court's order must be affirmed.
E. Sentencing
1. Senate Bill No. 1393
Both Cruz's and Castaneda's sentences include enhancements under section 667, subdivision (a)(1), based on prior serious felony convictions. At the time of appellants' sentencing, the trial court had no discretion to strike the enhancements, but Senate Bill No. 1393, which became effective January 1, 2019, gave trial courts that discretion. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 2.)
Cruz and Castaneda argue the matter should be remanded to afford the trial court an opportunity to strike the enhancements in furtherance of justice. Respondent concedes the point, and we agree. Where a trial court is unaware that it has the discretion to reduce a defendant's sentence, "[r]emand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; see People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand unnecessary where "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence"].) Here, the record gives no clear indication that the trial court would have declined to reduce appellants' sentences. Therefore, remand is necessary so that the trial court can exercise discretion under Senate Bill No. 1393.
2. Cruz's Section 667.5 Enhancement
Cruz was found to have suffered a prior conviction—and served a prison sentence—for robbery, which qualified as a strike prior, a serious felony prior, and a prior prison term. The trial court used the prior to double the base term on the murder count pursuant to the "Three Strikes" law, impose five additional years, and impose one year for the prior prison term, which the court stayed. Cruz argues the one-year enhancement was improperly imposed and then stayed. Respondent concedes the point, and we agree.
A prior prison term enhancement may be imposed or stricken, but not stayed. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) In any event, when, as here, "multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (People v. Jones (1993) 5 Cal.4th 1142, 1150.) The trial court's imposition of a one-year enhancement for Cruz's prior conviction enhancement resulted in an unauthorized sentence that must be corrected. (See People v. Scott (1994) 9 Cal.4th 331, 354.) At resentencing the court may also consider as to both appellants the effect, if any, of the recent amendment to section 667.5. (Stats. 2019, ch. 590, § 1 (Sen. Bill No. 136), effective Jan. 1, 2020.)
3. Cruz's Abstract of Judgment
The trial court ordered Cruz to pay on each count a $30 facilities fee and $40 security fee, plus a $390 restitution fine and a $390 parole fine (suspended). (§§ 1202.4, subd. (b), 1202.45, 1465.8; Gov. Code, § 70373.) The court sentenced Cruz to an indeterminate sentence of 80 years to life and a determinate sentence of 11 years 4 months, which resulted in two abstracts of judgment, each of which reflects the above costs. Cruz argues the abstracts must be corrected to avoid duplication. Respondent concedes the point, and we agree.
A trial court may impose but a single restitution fine in a single case. (See People v. Soria (2010) 48 Cal.4th 58, 66.) The matter will be remanded to correct the abstract of judgment to avoid duplication.
II. CASTANEDA
A. Substantial Evidence Supported Castaneda's Murder Conviction
Castaneda argues that no substantial evidence supported his murder conviction because nothing showed he aided and abetted Navarro or conspired with Cruz to kill Lopez. We disagree.
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.) "[A] person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Whether an individual aided and abetted another in committing a crime requires examination of his or her relation to the perpetrator and conduct before and after the offense. (People v. Singleton (1987) 196 Cal.App.3d 488, 492.)
One who conspires with others to commit a felony is guilty as a principal. (§ 31.) " 'Conspiracy to commit murder requires an agreement to commit murder and an overt act by one or more of the conspirators.' [Citation.] Conspiracy also requires specific intent, which includes two elements: (1) the intent to agree or conspire and (2) the intent to commit the offense that is the object of the conspiracy. [Citation.] Evidence of an agreement does not require proof that the parties met and expressly agreed; a criminal conspiracy can be shown through circumstantial evidence. [Citation.] 'Evidence is sufficient to prove a conspiracy to commit a crime "if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." ' " (People v. Penunuri (2018) 5 Cal.5th 126, 144-145.)
"In reviewing the sufficiency of the evidence, we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Davis (1995) 10 Cal.4th 463, 509.)
Here, Castaneda, in Cruz's presence, told Gallegos a few days before the murder that they, meaning he and Cruz, were waiting on "paperwork" on Lopez before sending him to the "great beyond." A day before the murder, Castaneda met with Cruz, Bermudez, and Navarro to discuss Lopez's being an informant. The day of the murder, Lopez and Navarro purchased items ostensibly for Castaneda, which they dropped off with Bermudez. This evidence, showed that Castaneda knew Navarro intended to kill Lopez, he himself intended to facilitate the crime, and acted to aid Navarro. It also shows he reached an agreement with Cruz to murder Lopez.
Castaneda argues the evidence was consistent with innocence, in that the telephone conversation with Gallegos was ambiguous, and his contact with Navarro minimal. Perhaps so, but that was an argument to make to the jury. The jury having found otherwise, our review is not to determine whether a finding consistent with innocence could have been made, but whether the finding of guilt was supported. (People v. Reed (2018) 4 Cal.5th 989, 1006-1007.)
B. Severance and Bifurcation
Castaneda argues the trial court prejudicially erred in denying his request to sever his trial from that of Cruz, and to bifurcate trial on gang allegations. We disagree.
1. Severance
"When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." (§ 1098.) There is "a statutory preference for joint trials of jointly charged defendants." (People v. Masters (2016) 62 Cal.4th 1019, 1048.) But the trial court may order separate trials when one defendant might be unduly prejudiced by association with a codefendant, or when conflicting defenses might be presented. (People v. Massie (1967) 66 Cal.2d 899, 916-917.)
We review a trial court's denial of a severance motion for abuse of discretion based on the facts known at the time the court ruled on the motion to sever. (People v. Turner (1984) 37 Cal.3d 302, 312.) We will reverse a judgment only on a showing that joinder resulted in " 'gross unfairness' amounting to a denial of due process." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150.)
Here, most of the evidence linking Castaneda and Cruz to the Lopez murder was the same. Both participated in a telephone conversation in which they said they awaited "paperwork" on Lopez's status as an informant before sending him to the "great beyond." And both met with Lopez and Navarro the day before the shooting. Although the gun used in the murder was found in Cruz's safe, that evidence against only Cruz was balanced by evidence that it was Castaneda who actually told Gallegos that Lopez would be killed, and who sent Lopez and Navarro on the final errand to Walgreens.
Given the relative parity of evidence inculpating Cruz and Castaneda, it is not reasonably probable the jury was unduly influenced by the trial joinder.
2. Bifurcation
Castaneda argues the trial court abused its discretion when it denied his motion to bifurcate the gang allegations. We disagree.
Before trial, Castaneda moved to bifurcate Mexican Mafia evidence from the rest of the trial because it would be inflammatory and unduly prejudicial under Evidence Code section 352. The court denied the motion.
A trial court must limit the introduction of evidence and argument to relevant and material matters. (§ 1044.) To carry out its duties, the court has discretion to bifurcate trial issues, including enhancements, so as to avoid the risk of undue prejudice to the defendant. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) "But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Id. at pp. 1049-1050.) Bifurcation is required only when the defendant can " 'clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' " (Id. at p. 1050.) Denial of a motion to bifurcate gang allegations from trial on substantive offenses is reviewed for abuse of discretion. (Id. at p. 1040.)
Here, much of the Mexican Mafia evidence was relevant to the charged offense in that it helped the jury understand Castaneda's motivation and permitted it to evaluate the credibility of witnesses such as Bermudez. The prosecution theory was that Castaneda's motive to kill Lopez was that he was an informant who "was getting ready to inform on the Mexican Mafia."
None of the evidence was likely to persuade the jury to convict Castaneda regardless of his guilt. Recorded conversations and circumstantial evidence showed that Castaneda conspired with Cruz and Navarro to kill Lopez because he informed on gangs to police. The Mexican Mafia evidence showed the interrelationships of all parties and witnesses, most of whom belonged to different street gangs, sharing membership only in the Mexican Mafia umbrella gang.
Castaneda argues that testimony by specified individuals about the Mexican Mafia was excessive. We disagree.
FBI Agent Glenn Hotema and Hawthorne Police Detective Jose Saldana testified that Castaneda knew Cruz and Mexican Mafia member George Bustamante, a fact that up to then had been attested to only by gang members. Their combined testimony required only 19 pages of the reporter's transcript.
Police Detective Hardiman testified that the term "paperwork" means court or police documentation showing that a person is an informant, and further testified as a gang expert that a "loyal soldier" like Navarro would likely take the entire blame for an ordered murder.
Finally Officer Neslen testified that he "personally knew and worked with" several Mexican Mafia members.
All of this evidence was necessary to prove the substantive offenses, and none was excessive. Therefore, the trial court did not abuse its discretion in denying Castaneda's motion to bifurcate the gang enhancements.
C. Proposition 57: Conduct Credits
Castaneda argues he should have been awarded conduct credits against his sentence in addition to his custody credits. We disagree.
The court may award a criminal defendant custody credit against his or her sentence for actual time serviced in jail before sentencing (§ 2900.5, subd. (a).) The court may also award some defendants presentence conduct credits for good behavior, such as performing labor or complying with rules. (§ 4019, subds. (b) & (c).)
But section 2933.2 provides that no person arrested or convicted for murder may earn presentence conduct or worktime credits. (§ 2933.2, subds. (a) & (c); see In re Carr (1998) 65 Cal.App.4th 1525, 1532, fn. 2; People v. Chism, supra, 58 Cal.4th at p. 1336.)
In November 2016, Proposition 57 went into effect. (Gen. Elec. (Nov. 8, 2016).) It added section 32 of article I of the California Constitution (section 32), which provides in relevant part: "Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements." (Cal. Const., art. I, § 32, subd. (2); see People v. Dynes (2018) 20 Cal.App.5th 523, 526.) Therefore, after Proposition 57, the Department of Corrections, and Rehabilitation may, despite section 2933.2, award good conduct credit to an inmate convicted of murder.
But nothing authorizes a court to do the same. On the contrary, section 2933.2 precludes it from doing so.
Castaneda argues Proposition 57 "effectively repeal[ed]" section 2933.2, and allows a court to award presentence conduct credits to inmates convicted of murder. He argues a contrary interpretation would violate his Fourteenth Amendment right to equal protection under the laws, because no rational basis exists to permit (under Proposition 57) a convicted murderer to obtain postsentence conduct credit while prohibiting a not-yet-convicted defendant from earning presentence credit. We disagree.
"[P]ersons who are similarly situated with respect to a law's legitimate purposes must be treated equally. [Citation.] Accordingly, ' "[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." ' [Citation.] 'This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged." ' " (People v. Brown (2012) 54 Cal.4th 314, 328.) "The 'similarly situated' prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified." (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
But there must be a distinction. "When one argues two similarly situated groups are being treated differently, it is axiomatic that one group is getting something the other is not." (In re Cleaver (1984) 158 Cal.App.3d 770, 774.)
Here, pretrial detainees may or may not be similarly situated to sentenced inmates with respect to conduct credit, but even if they are, no relevant distinction exists between the two because neither is entitled to conduct credits as a matter of right.
After Proposition 57, section 32 provides only that the Department of Corrections and Rehabilitation "shall have the authority" to award good conduct credits. Section 32 does not mandate that such credits be awarded. (See Brown v. Superior Court (2016) 63 Cal.4th 335, 361 (dis. opn. of Chin, J.) [section 32 is permissive].)
In In re Cleaver, the defendant argued that section 2933, which permitted a postconviction inmate to earn worktime credits but prohibited a pretrial detainee from earning them, violated his equal protection rights. The court rejected the argument, holding that "[t]he work-incentive program provided for in section 2933 is a privilege and not automatically applied to every postconvicted felon. Therefore, some members of the group (postconvicted felons) which [defendant] claims receive special attention, are in fact treated exactly the same as preconvicted felons" in that not all of them receive worktime credits. (In re Cleaver, supra, 158 Cal.App.3d at p. 774.)
Similarly here, section 32 grants the Department of Corrections and Rehabilitation discretion to award postconviction conduct credits but does not mandate that it do so. Because such inmates who receive no credits are treated identically to pretrial detainees charged with murder (due to section 2933.2), we reject Castaneda's equal protection argument.
DISPOSITION
Cruz's and Castaneda's convictions are affirmed. The matter is remanded for limited resentencing and correction of the abstract of judgment in accordance with the discussion above.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
BENDIX, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------