Opinion
F070809
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL OSBALDO CATALAN et al., Defendants and Appellants.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Osbaldo Catalan. William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant Edy Catalan. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Roberto Rodriguez. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
(Kern Super. Ct. Nos. LF009916B, LF009916C & LF009916D) ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
It is hereby ordered that the opinion filed herein on August 20, 2018, be modified as follows:
1. The second full paragraph on page 65 is deleted in its entirety and replaced with the following:
Regarding the second argument, respondent contends that, because at least one of the described prior convictions of a VCL member was proven by Monsibais's personal knowledge, there was sufficient evidence to establish a pattern of criminal gang activity without violating Sanchez. Appellants concede that Monsibais had personal knowledge and his testimony regarding the first predicate offense did not violate Sanchez.
Except for the modification set forth, the opinion previously filed remains unchanged.
This modification does not effect a change in the judgment.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. LF009916B, LF009916C & LF009916D)
OPINION
APPEAL from judgments of the Superior Court of Kern County. Charles R. Brehmer, Judge. Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Osbaldo Catalan. William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant Edy Catalan. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Roberto Rodriguez. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellants Daniel Catalan, Edy Catalan and Roberto Rodriguez, along with a fourth individual, Dennis Ruth, were charged and tried for crimes in connection with the assault of three victims, one of whom suffered critical stab wounds. Defendants were charged with five counts: count 1, attempted premeditated murder of German (Pen. Code, § 664/187, subd. (a)); count 2, assault with a deadly weapon of German (§ 245, subd. (a)(1)); count 3, assault of Jamie by force likely to produce great bodily injury (§ 245, subd. (a)(4)); count 4, active participation in a criminal street gang (§ 186.22, subd. (a)); and count 5, robbery (§ 212.5, subd. (c)).
Several of appellants and the victims share last names. We will refer to each by their first name to prevent confusion (Edy Catalan and Daniel Catalan shall be referred to as Edy and Daniel, and German S., Elbardo S., and Jamie B. shall be referred to as German, Elbardo, and Jamie, respectively). No disrespect is intended. Further, as Ruth is not a party to this appeal, to prevent confusion, Daniel, Edy, Rodriguez and Ruth collectively shall be referred to as defendants as opposed to appellants, which only refers to Daniel, Edy and Rodriguez.
All further statutory references are to the Penal Code unless otherwise specified.
The information included conduct enhancements alleging that defendants committed the crimes in counts 1, 2, 3, and 5 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); personally used a knife in connection with counts 1, 4, and 5 (§ 12022, subd. (b)(1)); and personally inflicted great bodily injury with respect to all counts (§ 12022.7); along with status enhancements alleging that: Daniel served a prison term for possession of a stolen vehicle in 2012; Edy was convicted of a serious felony for manslaughter in 2010 (§§ 667, subd. (a), 1170.12) and served a prior prison term (§ 667.5, subd. (b)); and Rodriguez was convicted of a serious felony for assault with force likely to produce great bodily injury in 2012 and that he served prior prison terms for that assault and for possession of tear gas. Defendants entered pleas of not guilty and denied all allegations.
The matter proceeded to trial and on October 28, 2014, the jury returned a verdict against appellants. The jury acquitted appellants on the charge of attempted murder in count 1 (victim German), but convicted them of the lesser offense of attempted voluntary manslaughter, and found the accompanying conduct enhancements true. Appellants were also convicted of counts 2 (assault of German), 4 (gang participation), and 5 (robbery), and jurors found the accompanying conduct enhancements true but for the great bodily injury enhancements for counts 4 and 5, and knife use in count five. The jury acquitted appellants on count 3 (assault of Jamie), but convicted Daniel and Rodriguez of the lesser offense of misdemeanor assault.
The fourth codefendant, Ruth, was charged and tried with appellants, but the jury was unable to reach a unanimous verdict as to him on all counts, and therefore is not a subject of this appeal. It is noted that, after the jury returned its verdict, Ruth accepted a plea as to lesser charges.
A bifurcated trial on the status enhancements was held and the court found true that Edy had served a prior prison term, but found that the prior conviction was not a serious felony. The court further found true that Rodriguez had served two prior prison terms.
On December 16, 2014, the court sentenced Edy to 17 years 8 months in prison, Daniel was sentenced to 15 years 8 months in prison, and Rodriguez was sentenced to 18 years 8 months in prison.
The parties concede that various errors were made in the abstracts of judgment.
Appellants present seven separate claims on appeal; however, each appellant did not join in each claim. Unless stated otherwise, all three appellants presented claims asserting: (1) that the prosecution failed to provide or otherwise destroyed evidence favorable to the defense, (2) Daniel and Rodriguez alleged that the court failed to excuse a sleeping juror, (3) that the court erred in permitting the jury to convict appellants of attempted voluntary manslaughter based on a natural and probable consequences theory, (4) that the court erred in providing a jury instruction regarding motive that conflicted with the elements of the gang enhancement allegations, (5) Daniel and Rodriguez assert that the trial court improperly provided the jury instructions regarding flight in relation to CALCRIM No. 372; (6) Edy asserts that the identification techniques used were unduly suggestive, and (7) Edy and Rodriguez were prejudiced by the introduction of hearsay evidence by the gang expert under People v. Sanchez (2016) 63 Cal.4th 665.
For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Incident at Gas Station
At around 7:00 p.m. on March 9, 2014, brothers German and Elbardo, along with their cousin, Jamie, drove to a gas station and attached convenience store in Lamont, a small community outside of Bakersfield, California. German and Elbardo lived in Arvin, a town about seven miles away from Lamont, and Jamie lived in Weedpatch, a small community bordering Lamont. German was aware that Jamie was affiliated with the Weedpatch street gang. At the time of the incident, Jamie was wearing a white T-shirt and blue pants.
They parked at a gas pump, and Elbardo and Jamie exited the vehicle and went in the attached convenience store as German stayed in the back seat of the vehicle. While in the store, Elbardo noticed two Hispanic males standing outside of the store, one wearing a white shirt and the other a checkered shirt.
After about five minutes, Elbardo and Jamie emerged from the store and German saw two males approach them from a grey or brown sport utility vehicle (SUV). One of the individuals said something to a third person, who was driving the SUV, and then proceeded to shake hands with Jamie. The male then hit Jamie, who fell to the ground. Both men proceeded to kick Jamie while he was on the ground. Elbardo grabbed and pushed one of the individuals away from Jamie, and German exited the vehicle. The other individual, the one who originally shook Jamie's hand, was still kicking Jamie in the face. German punched that individual in the face three times, and he fell to the ground. Jamie then got up and ran off behind the store.
Jamie did not voluntarily testify at trial, and only appeared after he was taken into custody for failure to appear. He denied being a member of a gang. He admitted that he shook hands with someone, but stated that he did not look at the individual's face.
After Jamie had been knocked to the ground, Elbardo noticed two additional men wearing white shirts approach the scene. One of these individuals punched Elbardo in his face.
German next remembered getting hit in the head and falling to the ground, but did not see who hit him. German was hit several times while he was on the ground, but was eventually able to get back up and went back into the vehicle. He attempted to call 911 on his phone, but was having difficulty concentrating. While German was sitting in the vehicle, an individual opened a different door, searched the car, and took Elbardo's cell phone and charger from the console. German was unable to tell if the individual was one of the two men that had originally approached Elbardo and Jamie. German then went into the store and was taken by ambulance to the hospital.
Elbardo saw the individuals get back in the SUV and drive south. He then noticed that German had been stabbed several times in the chest.
Sheriff's Deputy Justin Fernandez arrived at the scene and observed German's injuries. German had a stab wound to his head and several to his abdomen. German had puncture-type stab wounds under his right nipple and on his right side.
German was treated at the hospital for two lacerations to his liver, two cuts to his diaphragm and some abdominal bleeding. The surgeon opined that German's injuries were potentially life threatening and he was hospitalized for 10 days.
Identification of Appellants
Law enforcement placed a request for location information regarding Elbardo's stolen cell phone with the phone company. The company provided geographic coordinates of the cell phone, which coincided with a residential address in Lamont.
The cell phone location data was only used to explain the conduct of law enforcement in investigating that residence The prosecution did not present evidence that a cell phone was ever recovered during the investigation.
Deputy Tovar was one of the first law enforcement officers to arrive at the residence indicated from the cell phone signal. Tovar encountered Edy in the backyard. Tovar was also able to see into the house and observed several males and females inside. Upon entering, Tovar contacted Daniel, Rodriguez, Ruth, and three other males, Juan H., Richard P. and a 14-year-old male juvenile.
Later, Tovar transported Elbardo to the residence. When they pulled up, Elbardo recognized the SUV parked in front of the residence as the vehicle from the gas station. Tovar read Elbardo an admonition stating that the individuals being shown may or may not be the individuals that had committed the crime. Elbardo sat in the back of a patrol vehicle as he was shown six or seven individuals (the male juvenile was not included).
The individuals were led out one at a time in handcuffs near the vehicle that Elbardo had just identified. Elbardo identified Edy, Daniel and Ruth in the showup as being involved in the incident. However, Elbardo did not identify Rodriguez, Juan H. or Richard P. as being present at the gas station.
Search of Residence and SUV
Sherriff's deputies conducted a search of the house and SUV. During the search of the residence, they found two knives, but were unable to find Elbardo's phone. The search also revealed a grey T-shirt with blood splatter on it. The two knives from the residence and grey and black shirts were taken for testing.
A search of the SUV revealed a baseball bat and blood spatter on the door to the rear passenger seat. The mother of Rodriguez's son owned the SUV. She admitted that the baseball bat was hers, and that she had left it in the back of the SUV for several months. She had told deputy Tovar that Rodriguez had taken the vehicle for several hours that day and was in possession of the keys.
Forensic Testing
An evidence technician searched the SUV and collected prints along with a baseball bat from the SUV's rear compartment. Examination of fingerprints lifted from the SUV matched those of Daniel and Rodriguez. The technician also swabbed the blood spatter from the door of the vehicle. One of the knives tested positive for the DNA of Rodriguez.
A forensic laboratory technician testified regarding DNA testing of the knives and shirts. The technician was unable to find any evidence of bloodstains on either of the knives found at the residence.
DNA testing of the gray shirt found at the residence revealed positive matches as to Daniel and Edy. DNA on the black T-shirt matched Daniel. A swabbing of the front neck of the same T-shirt also matched Daniel, however, while it did not provide a match to German, his DNA could not be excluded from the sample. The true allele DNA testing program required an accuracy level of greater than one in 10,000 persons to ensure against false positives. With regard to this sample from the black shirt, the possibility of selecting a random, untested person from a population that would have the same DNA profile was 1 in 917 African-Americans, 1 in 921 Caucasians and 1 in 600 Hispanic individuals. Due to the much lower level of accuracy of the DNA testing, German's DNA could not be excluded, and the result was considered to be inconclusive. However, if German's DNA was on the shirt, it was not in the form of visible bloodstains.
The level of identification of most samples in this investigation were much more accurate than one in 10,000. For example, the random match probability for Daniel's DNA on the grey shirt was one in 48 billion Hispanic persons and one in in 87 billion for Edy.
Rodriguez's DNA matched that found on the bat found in the back of the SUV. The passenger door handle of the SUV matched DNA to Daniel.
DISCUSSION
I. Claim One—Failure to Disclose and Retain Evidence
Appellants claim that the court erred in not dismissing the case considering the failure of the prosecution to disclose evidence, or, alternatively, due to the destruction of material evidence to their defense. Specifically, appellants present claims regarding two separate items of evidence. First, the prosecution failed to disclose that German was interviewed and given photographic lineups the day after the incident to see if he could identify the perpetrators. German either identified three other individuals in the lineup, or did not identify anyone, depending on whose testimony is to be believed, but under no circumstance identified any of appellants. Second, several photos taken of appellants during booking, which appellant contend may have depicted defensive injuries, were not disclosed and were possibly destroyed. Appellants contend that the actions of law enforcement violated their rights under Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose material evidence, under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and under Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) for failing to preserve the relevant evidence.
A. Relevant Facts
1. Discovery During Trial of Lineup Provided to German
German was called to testify on the first day of testimony at trial on October 7, 2014. During his direct testimony, he identified Edy as one of the perpetrators. The prosecutor followed up by asking if he had ever seen Edy either prior to or after the incident. German responded that he had never seen Edy before the incident, but that he "might have" seen a photograph of Edy when Fernandez provided him photo lineups at the hospital the day after the incident. German did not recall if Edy was one of the individuals in the lineup.
At the next recess, the prosecutor informed the court that he was unaware of the photographic lineup at the hospital, and was concerned that the lineup was not disclosed in Fernandez's report. He called Fernandez during the recess, who confirmed that he indeed had presented German a lineup in the hospital. Fernandez did not believe that he retained copies of the lineups he provided to German.
Appellants' counsel objected to the lack of disclosure and preservation of the evidence. The court ordered Fernandez to appear that afternoon and testify as to what had occurred, but in the meantime allowed the trial to continue. The court agreed to preserve defense counsels' right to recall German upon discovering further information regarding the photographic lineup.
During cross-examination, German was separately questioned by defense counsel. German's testimony regarding the lineups evolved over the course of questioning. First, he testified that he picked three people out of the lineup that he thought looked like the assailants but was not completely sure whether his identification was correct. When asked if one of the pictures he was shown was of Edy (whom he had just identified while in court), German was not sure. German consistently provided testimony that he was certain that he picked three people in the lineup, but lacked confidence whether they were defendants.
Fernandez was called to testify that day outside of the presence of the jury. He explained that he had been employed with the Kern County Sheriff's Department for three years. He admitted providing German the lineups at the hospital. Fernandez used a computer program to generate four lineups with six individuals in each lineup. Each of the lineups contained a photo of one of the four defendants along with five randomly chosen pictures of individuals from the sheriff's department's database.
Fernandez did not recall German identifying anyone out of the lineups and admitted that he did not reference the lineup nor German's responses in his report. He explained that he did not feel the need to record the incident because "[German] was still kind of out of it" and "very groggy," so Fernandez planned to follow up later and conduct another lineup. He also admitted that he believed that the copies of the lineups he provided were destroyed. When asked why he destroyed the lineups, he was unable to provide a reason.
On cross-examination, Fernandez admitted that he had an audio recording device and, despite interviewing German at a time that he was not sure if he would survive his injuries, he did not record the interview. Fernandez agreed that it would be important to preserve the lineups had German identified appellants. He then noted that even though there was not a policy to destroy the lineups, he did so because they contained personal information of the suspects. When asked if it was important to report that defendants had not been identified by German, Fernandez noted that he "didn't feel like they weren't identified because they weren't the suspects. It was because he was out of his right mind to do a six-pack line-up." But he then admitted that he would not have gone forward with administering the lineups if he thought German did not understand what was asked of him and was not coherent enough to proceed.
Although the paper copies of the lineups were destroyed, Fernandez testified that copies of the lineups were electronically retained by the sheriff's department. After questioning, Fernandez immediately obtained copies of the lineups, and provided them to the parties.
Fernandez provided black and white copies of the lineups that afternoon, and was ordered by the court to return the next morning with color copies of the lineups, which he did.
Outside the presence of the jury, the court noted that, based on the destruction of the original lineups and the failure to disclose that German identified people who were not defendants when provided the lineups, "We have some serious issues here." The court found that the evidence was clearly Brady information as it was potentially exculpatory. The destruction of evidence might also implicate Trombetta and Youngblood error and that the different legal doctrines could lead to different outcomes. The court held it was premature to rule on the matter due to concerns whether the destruction of evidence was made in bad faith and whether the evidence could be re-created, but, on the other hand, it was troubling that Fernandez did not document German's identifications. The court provided the parties two days to prepare and file written briefs, and provided the parties additional opportunity to call and question Fernandez.
2. Questioning of Deputy Fernandez
Fernandez testified in front of the jury the following day. He explained that he provided photographic lineups to German at the hospital, but did not preserve records of the interview. When asked why he destroyed copies of the lineups, he explained that the documents contained personal information including driver's license numbers and birthdates. Fernandez also admitted that Rodriguez was depicted twice in one of the lineups. Although the prosecution was still questioning Fernandez, Rodriguez's counsel noted during a break that he felt his "hands [were] tied" attempting to prepare to cross-examine Fernandez without having a ruling and the ability to fully and freely question Fernandez regarding his credibility. The court provided defense counsel the opportunity to wait to conduct cross-examination of Fernandez until after its ruling, but counsel collectively agreed to proceed with cross-examination immediately after Fernandez's direct testimony.
On the morning that defense counsel submitted their briefs, the court entertained discussion regarding how to proceed. It held that exculpatory information was not disclosed. The court found that it did not require automatic dismissal, but instead may be remedied by some form of sanctions.
The prosecution asked for clarification and the following exchange occurred:
"[PROSECUTOR]: Thank you. It sort of sounds like the Court may have already come to a tentative conclusion that the destroyed photo line-ups were both material and exculpatory. It sounds to me like the Court would prefer a discussion on what the sanctions or remedy should be.
"THE COURT: That's correct."
The court discussed the possibility of providing a jury instruction regarding the lost evidence, and concluded the discussion by clarifying the scope of cross-examination of Fernandez. The court held that any issues regarding the failure to disclose or the destruction of evidence were "fair game."
Fernandez was called back to testify later that day. When questioned why he did not describe the lineups procedure in his report, he claimed there was nothing to document because German did not identify anyone in the lineups.
Fernandez admitted that he wanted German to positively identify the people that he thought perpetrated the event and that he "went out of [his] way" to do that. He acknowledged that it was important to report German's failure to identify appellants, and that his report was incomplete because it did not include those results. He stated that he destroyed his copies of the lineups because German had not identified anyone, even though he just acknowledged that it was important to report that result. He also admitted that he never prepared a supplemental report to include the information regarding the lineups, and that the only reason the information regarding the lineups was discovered was because German mentioned it in his testimony. When asked if it was exculpatory evidence, Fernandez stated that he did not know the meaning of the word exculpatory.
Fernandez was questioned regarding whether the lineups actually contained personal information based on stating that was the reason he destroyed the original lineups. He responded that driver's licenses were not present, but booking numbers were. Fernandez admitted that he did not know whether a booking number was considered sensitive personal information.
Fernandez conceded that he had both testified that he did not have a reason for destroying the lineups and later testified that he destroyed them because they contained personal information. He attempted to explain that what he meant by his prior testimony that he "[didn't] have a reason" to destroy the lineups was that he destroyed them because they contained personal information, including driver's license numbers. Regardless, he maintained that it was not his intent to conceal his motive for destroying the lineups.
When questioned further regarding German's mental state, Fernandez admitted that German appeared to understand the admonishment given prior to the lineups. Fernandez noted that German appeared groggy, but since he wanted him to look at the pictures he continued with the lineups anyway. Fernandez did not recall German making any comments that he did not feel well enough to continue with the identification. In addition, Fernandez was impeached when he contradicted his earlier testimony outside the presence of the jury in which he said he was unable to recall whether German identified anyone by stating that German did not identify anyone.
On continued cross-examination, Fernandez explained that the reason he destroyed the paper copies of the photographic lineups was due to the fact that German was still groggy, and that he intended to re-create the photo lineups, and fix errors in the original lineups, including the duplicate images of suspects on the lineups, however, he never got around to doing so.
This was only the second lineup that Fernandez had ever generated, and he admitted that he erred in its preparation. Had German not mentioned the lineups during his testimony and the prosecutor followed up with him, Fernandez admitted that he would have never disclosed the fact that he gave the lineups. He also noted that the only reason that he went and reproduced copies of the lineups from the computer records and provided them to the parties was because he had been ordered to do so by the court.
3. Booking Photographs
In addition to the lineups, it was determined that booking photos of appellants were not provided to the defense. The prosecutor explained that he had provided all the photographs in his possession to the defense months before trial. While preparing for trial, he re-read Fernandez's report mentioning that appellants were photographed upon their intake to jail. The prosecutor reviewed the photos in his possession and determined that those photos were missing. He confirmed with Fernandez that the photos were indeed missing, and notified defense counsel at that time. Rodriguez's counsel indicated he was first made aware of the lost booking photographs on the first day of testimony during trial.
Fernandez was called to testify outside the presence of the jurors regarding the booking photos on the first day of testimony, October 7, 2014. He explained that he booked appellants in the jail about five hours after the incident. At that time, he took photographs of appellants to record relevant gang information for field identification gang cards and to identify any injuries they had from the fight. However, Fernandez did not have copies of the photographs. Although it was custom and practice to download the digital photos, he did not do so and the camera had since been lost. Fernandez was borrowing a camera, there was confusion as to who was to upload the photos, and Fernandez admitted that he did not do so. During his testimony, it was also revealed that there was video footage of Fernandez and Tovar taking the pictures of appellants in the receiving area of the jail and that copies of the video were being made for the parties.
The next morning, the parties were provided copies of the video depicting Fernandez photographing appellants during booking. Further evidentiary hearings were held that morning, and Fernandez and Tovar explained that Fernandez was using Tovar's camera, and they failed to download the pictures. Tovar lost the camera several weeks after the pictures were taken.
On October 14, 2014, Tovar reported that he had found copies of several of the photos of appellants taken by Fernandez. The copies of the photos had been separately kept in the gang unit of the sheriff's department. At an evidentiary hearing that morning, Fernandez admitted that he did not recall printing the photos that were found, and that there may be photos that were not printed, and were therefore lost.
Fernandez was questioned extensively regarding the failure to keep photos that may have depicted defensive injuries to appellants. He was not aware that the booking photos were missing until trial started.
The booking photographs that were recovered depicted appellants' tattoos that had relevance to their gang affiliation. Fernandez stated that he took pictures of any injuries of appellants that he observed, and there was one photo depicting a scratch to Ruth's side. But, he admitted that he did not take photos of the knuckles of appellants that could have shown injuries from fighting. Fernandez testified that the six photos that they found were all of the photos that he was aware were taken at the jail, but acknowledged some photos may have been lost.
4. Trial Court's Ruling
On the morning of October 10, 2014, the court orally announced its ruling based on the failure to preserve or provide evidence. The court, having determined that evidence was not disclosed and may have been destroyed, discussed the remedies available including providing the jury additional instructions. The court noted its options:
"[CALCRIM No.] 306 is not a bad starting point. I will say that 306 will not be enough. There will need to be some language if it's added in 306 or there's a separate instruction to clearly indicate to the jury the significance without inappropriately highlighting certain information that would be judicial comments. The fact is this instruction, they will be judicial comments, I mean, appropriately because the other remedy is to do nothing, which is not appropriate and another remedy is to strike testimony and give no instruction. That's not appropriate.
"Then another remedy is to dismiss the case. That's not appropriate. This was not done in bad faith. The fact is that Deputy Fernandez did destroy and he did not put it in his report and so is it in bad faith? In my view, it's not. He seems to be an inexperienced person who clearly didn't have any clue what he was doing but not having a clue affects the rights of the defendants greatly."
Even though the trial was proceeding, the court explained that it was not a foregone conclusion that it was too late to file a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The court said it would grant orders shortening time and cooperate to get such a motion completed if any of appellants wanted to do so.
After the ruling, Ruth's counsel proceeded to file a Pitchess motion. The court informed counsel that, upon review, there were no records indicating dishonesty on the part of Kern County Sheriff's deputies that required disclosure.
After hearing argument from counsel regarding the failure to disclose evidence, the court drafted a jury instruction to address this specific situation. The court explained that it was not providing the jury with a modified jury instruction of CALCRIM No. 306 because "this is a more significant issue." The court explained "I don't want to comment on evidence and invade their purview, but this is not a little issue that can be sidestepped. I don't think anybody thinks it is. But I want it to be very clear why I'm reading this instruction, why the language is here, and why I'm not using [CALCRIM No.] 306 in some modified way. Because this is more significant. So this is what I'll give." The instruction would be read first before all other instructions.
CALCRIM No. 306 reads in part as follows: "306 Untimely Disclosure of Evidence
"Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial.
"An attorney for the (People/defense) failed to disclose: __________ <describe evidence that was not disclosed> [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."
Accordingly, the court provided the following specially drafted instruction to the jury:
"You have heard evidence that on March 10, 2014, Kern County Sheriff's Deputy Justin Fernandez met with German [S.]—people have also called him German, but it's pronounced 'her-mon' ... —at Kern Medical Center. And Deputy Fernandez showed four photographic lineups to German [S.]
"Neither Deputy Fernandez nor anyone else documented this information in any written or recorded report. Deputy Fernandez later destroyed the actual lineups shown to German [S.] Saved electronic computer versions were later located.
"None of this information was discussed nor provided to anyone by Deputy Fernandez until after trial had already begun.
"The lack of documentation and lack of disclosure of this information is a violation of the law which requires that law enforcement disclose this information to any defendant and their attorney before trial.
"You may consider this violation and lack of timely disclosure in your deliberations and the effect, if any, on the issues in this case.
"This includes the credibility of the witnesses involved."
5. The Prosecution's Closing Arguments
During closing arguments, the prosecution noted that the case was already complex, but made more so because "one of the deputies destroyed some evidence because he didn't know what he was doing, there were photographs that were lost, [and] photographs that were then found after the trial started."
The prosecution was well aware that there was some uncertainty as to the identification of the attackers, especially with regard to the lack of any witness observing who stabbed German. The prosecution noted that "there is something glaringly missing here. And that is, who did the stabbing?" However, the prosecution dismissed it as not important to proving guilt under an aider and abettor or natural and probable consequences theory of liability. Theories of aiding and abetting were discussed at length, and the prosecution noted that defendants could still be found liable if none of appellants were the actual perpetrator who stabbed German, as long as they intended to assist the coparticipant who committed the act.
The prosecution described its theory of how the altercation occurred, and explained that defendants or an uncharged coparticipant hit German with the bat, even though no witnesses observed anyone holding or using a bat. With regard to Edy, the prosecution noted that both German and Elbardo identified him as the person who shook hands with and proceeded to punch Jamie.
The prosecution dismissed German's failure to identify defendants in the lineups provided the day after the incident due to his recovery from surgery:
"Now, German was unable to pick [Edy] out as well as the other three defendants in this case in the photo lineup that sort of came out during the middle of this trial, but he had just come out of surgery to fix life-threatening injuries less than twenty four hours before he was under the knife, so to speak, and was having his injuries repaired. It shouldn't be all that surprising that he was unable to select anybody after having gone through major surgery."
Later, the prosecutor circled back to the issue and reiterated that it was reasonable that German would not be able to make any identification immediately after surgery:
"I'm sure there will be some argument about how German didn't pick [Edy] out of the photo lineup that was shown to him hours after he had just come out of surgery. But please keep in mind, he had just come out of surgery. I don't think it's all that surprising that he wouldn't be able to identify anybody at the time of being shown those photographs."
The prosecution also relied heavily on the black shirt that contained major DNA contributions from Daniel, along with German as a minor contributor. The prosecution explained that it was reasonable to decide that as no one saw any of the perpetrators wearing a black shirt, it was possible that Daniel was wearing the black shirt underneath a different shirt at the time of the confrontation.
6. The Defense Case
Prior to the disclosure regarding German, defense counsel came to trial ready to present evidence to undermine the accuracy of the victim's identifications. Daniel presented Robert Shomer, a psychologist who specialized in memory, perception and eyewitness identifications. Shomer described how an in-field showup is an inherently suggestive procedure. Shomer explained that the officer directing the identification procedure should not know who the suspect is as it has been shown that the person administering the identification can influence the witness's decision. He opined that an in-field showup was an inferior procedure for identification because of its much higher chance of erroneous identification. He had never seen a case where an officer made overt statements that he or she was trying get the witness to identify the suspect; however, he believed that many officers may have that intent. Also, he agreed that best practice techniques provide for identification procedures to be performed double-blind, where both the witness and the administering officer are not aware of the identity of the alleged suspect.
With regard to the specific details of the in-field showup in this case, Shomer noted that holding the showup next to a vehicle that the witnesses had identified as the one at the scene would suggest to the witness that the people in the showup were more likely to have been involved in the crime.
He also explained that being provided photographic lineups in which the witness does not identify anyone can nonetheless provide the witness familiarity with the suspects and lead to an in-court identification that is influenced by the fact that the defendant was previously seen, but not identified in the lineups. Also, it was highly improper to place two photos of one of appellants in the lineups and the failure of the witness to identify that person would be evidence that the witness could not make an identification even despite the additional suggestiveness of the lineups. He opined that an in-court identification seven months later is worthless because the memory has decayed tremendously.
In addition to presenting Shomer, defendants questioned Elbardo at length at trial regarding his identifications, especially in light of the fact that his trial testimony differed significantly from his identifications made on the day of the incident. Elbardo made an in-court identification of Edy and identified him as the one who shook Jamie's hand. Elbardo was completely certain of his identification of Edy. However, for the first time, he identified Rodriguez as being present at the incident. Additionally, he did not remember Daniel or Ruth being present at the incident nor could he say who stabbed German. Elbardo remembered that the same individual who shook Jamie's hand also was the individual who stole the cell phone from the vehicle.
Cross-examination of Elbardo by defense counsel revealed that he really wanted to help law enforcement catch the individuals who stabbed his brother and have them brought to justice. Elbardo confirmed that he was very confident about his identification of Edy, but admitted he was less certain and did not remember whom else he identified by the time of trial. When asked if the other three defendants were at the scene, he admitted that he was not sure.
In addition to attempting to raise doubt as to the identity of the perpetrators, appellants presented an alternative defense based on the theory that the victims were, in fact, the instigators of the fight and that appellants acted in self-defense. During opening statements, Rodriguez's counsel noted that German "went over and made himself involved in the altercation." Counsel questioned, "Why did he do that? What was his intention when he went to the ... altercation[?]" Counsel argued that the victims were not being truthful when stating they were attacked, saying "It's going to be basically from the boys that are claiming they were attacked and from our side." (Italics added.)
During cross-examination of Elbardo and German, defense counsel repeatedly asked questions, attempting to raise doubt as to who instigated the attack and whether the stabbing was done in self-defense. Counsel asked questions whether they instigated the fight with appellants , about what weapons they normally carried , whether they attacked appellants with weapons , and whether German and Elbardo were acting to defend their gang, even though there was no evidence that they were gang members . Defense counsel aggressively pursued this line of questioning regarding whether the victims were in fact the aggressors, and the court sustained the prosecution's objection that the questions were argumentative.
7. Defense Counsels' Closing Arguments
Daniel's counsel argued that they could not place Daniel at the scene. Counsel noted that German did not identify Daniel in the lineups the day after the stabbing or at trial. He also noted that Elbardo was not sure and unable to identify Daniel at trial, and that the showup in which Elbardo identified Daniel at the residence was inherently suggestive. Further, he noted that Elbardo indicated that he was uncertain and lacked confidence when identifying Daniel at the showup.
With regard to the shirt with bloodstains, Daniel's counsel noted that there was no evidence presented that Daniel was injured or bleeding on the night of the incident. If that blood did not come from the time of the incident, then it would not have much probative value. Counsel also argued at length regarding how it is not clear whether the alleged minor contribution that could have shown German's DNA on the shirt was accurate. Counsel noted that while the odds were 1 in 600 of the entire southwestern Hispanic population, the analyst did not elaborate regarding how common that profile would be in smaller communities such as Arvin, where many people could be closely related.
As the failure to disclose and destruction of evidence were discovered during trial, appellants presented arguments at closing describing the prejudicial effect of Fernandez's actions on trial preparation and the effect of Fernandez's actions on his credibility and the thoroughness of the investigation. Ruth's counsel argued that Fernandez "didn't put anything in that report that could help exonerate these people who are now in front of you, trying to prove their innocence." He argued that Fernandez intentionally concealed exculpatory evidence, and this instance may not have been the only time he engaged in such a practice. Edy's counsel, in addition to noting Fernandez's known transgressions, noted that defendants "have no idea what other mistakes were made, what other things were covered up because there's no way to discover them now" and described the case as "bungled."
Edy's counsel noted that law enforcement did not keep accurate records regarding how many assailants were at the store, and did not attempt to interview the victims to get more specific details, especially regarding the identification of the assailants. He described the problems with the lineups provided to German and how Fernandez did not document any of it. Also, counsel reminded the jury that Fernandez explained that he was going to go back and provide German another lineup, but failed to explain why he did not. If he had, German could confirm whether or not he was able to identify anyone. Rodriguez's attorney raised the point that if it were true that German was groggy when he was asked to identify the perpetrators from the lineups, then he would not have remembered in detail the lineup procedure at the time of trial.
8. Verdict
The jury began deliberations on the morning of Friday, October 24, 2014. On the afternoon of Monday, October 27, 2014, the jury requested readback of German's and Elbardo's testimony. The court responded to the note the next morning, Tuesday, October 28, 2014. Later, at 3:20 p.m., the jury sent a note stating that they could not agree on any charges with respect to Ruth. The court responded that the jury should continue deliberations with regard to appellants. At 4:31 p.m., the jury reached a verdict as to appellants. However, the jury did not find appellants guilty of attempted murder, but rather found them guilty of the lesser offense of attempted voluntary manslaughter.
B. Legal Standards
1. Failure to Disclose Evidence Under Brady
In Brady, the United States Supreme Court held that the government violates the Constitution's due process clause "'if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment.'" (Turner v. United States (2017) ___U.S.___ [137 S.Ct. 1885, 1888] (Turner).) "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87; accord, Wearry v. Cain (2016) ___U.S.___ [136 S.Ct. 1002, 1006].) "[T]he Brady rule's '"overriding concern [is] with the justice of the finding of guilt,"' United States v. Bagley, 473 U.S. 667, 678 (1985) (quoting United States v. Agurs, 427 U.S. 97, 112 (1976), and that the Government's '"interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done,"' (Kyles v. Whitley, 514 U.S. 419, 439 (1995) (quoting Berger v. United States, 295 U.S. 78, 88 (1935))." (Turner, supra, at p. ___ [137 S.Ct. 1885, 1893].)
A defendant must prove three elements to state a violation under Brady, ""'[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'"'" (People v. Masters (2016) 62 Cal.4th 1019, 1067 (Masters); see People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709-710; see also Skinner v. Switzer (2011) 562 U.S. 521, 536.)
"Brady evidence is, by definition, always favorable to the defendant and material to his guilt or punishment." (Skinner v. Switzer, supra, 562 U.S. at p. 536.) "Evidence qualifies as material when there is '"any reasonable likelihood"' it could have '"affected the judgment of the jury."'" (Wearry v. Cain, supra, ___ U.S. at p. ___ [136 S.Ct. 1002, 1006]; accord, Napue v. Illinois (1959) 360 U.S. 264, 271.) Stated differently, "evidence is 'material' within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." (Cone v. Bell (2009) 556 U.S. 449, 469-470; accord, Turner, supra, ___U.S. at p. ___ [137 S.Ct. 1885, 1893].) To prevail under Brady, appellants need not show that they more likely than not would have been acquitted had the new evidence been admitted; they need only show that the new evidence is sufficient to undermine confidence in the verdict. (Wearry v. Cain, supra, at p. ___ [136 S.Ct. 1002, 1006].) The Supreme Court has explained that the use of the adjective "reasonable" in the term "'reasonable probability'" "is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." (Kyles v. Whitley, supra, 514 U.S. at p. 434.) "'Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review.'" (People v. Cordova (2015) 62 Cal.4th 104, 124; People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22).)
"A showing by the [defendant] of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of 'error' and 'prejudice.' For, here, there is no 'error' unless there is also 'prejudice.' [Citations.] [¶] It follows that harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [(Chapman)], with its standard of 'harmless beyond a reasonable doubt,' is not implicated." (In re Sassounian (1995) 9 Cal.4th 535, 545-546, fn. 7.)
The California Supreme Court has further explored what evidence is material and required to be disclosed under Brady. It noted that "Brady involved evidence relevant to the defendant's culpability for the crime and not just evidence regarding the defendant unrelated to the charged crime or any other prosecution evidence. Its purpose was to prevent the obvious unfairness of allowing the prosecution to withhold information that undermines its own case. Implicitly, Brady requires the prosecution to disclose only evidence that is favorable and material under the prosecution's evidence or theory of the case." (In re Steele (2004) 32 Cal.4th 682, 699, italics added (Steele).) "It is one thing to expect the prosecution to know about its own case and to provide the defense with evidence weakening that case. It is quite different to expect it to be alert to information unrelated to its case that might support a defense theory, especially given the unlimited range of potentially mitigating evidence." (Id. at p. 700.)
Brady disclosure issues may arise before, during or after trial, yet the test is always the same. (United States v. Agurs, supra, 427 U.S. at pp. 107-108; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-8.) The prosecutor's duty to disclose material evidence favorable to the defense "is applicable even though there has been no request by the accused, [citation], and ... encompasses impeachment evidence as well as exculpatory evidence, [citation]." (Strickler v. Greene (1999) 527 U.S. 263, 280.) Moreover, "the suppression of evidence that is materially favorable to the accused violates due process regardless of whether it was intentional, negligent, or inadvertent." (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225.) "Because 'the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police' [citation], 'Brady suppression occurs when the government fails to turn over even evidence that is "known only to police investigators and not to the prosecutor"' [citations]." (Ibid.)
Finally, disclosure must be made at a time when it would be of value to the accused. (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51 (Meraz).) "'Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies.'" (People v. Cordova, supra, 62 Cal.4th at pp. 123-124.) Moreover, the materiality of each piece of evidence must be evaluated cumulatively rather than in isolation. (Wearry v. Cain, supra, ___ U.S. at p. ___ [136 S.Ct. 1002, 1007]; see Kyles v. Whitley, supra, 514 U.S. at pp. 440-441.)
2. Trombetta/Youngblood
"Closely related to the Brady rule requiring the prosecution to disclose material evidence favorable to the defense is the prosecution's obligation to retain evidence. With respect to retention, however, the prosecution's obligation is narrower." (City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 8.)
In Trombetta, the Supreme Court explained that the "duty must be limited to evidence that might be expected to play a significant role in the suspect's defense." (Trombetta, supra, 467 U.S. at p. 488.) The government violates the defendant's right to due process if the unavailable evidence possessed "exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id. at p. 489.)
On the other hand, "[t]he destruction of evidence with only potential, rather than apparent, exculpatory value is without remedy under Trombetta, but Youngblood provides a limited remedy when the state has acted in bad faith in failing to preserve the evidence." (People v. Lucas (2014) 60 Cal.4th 153, 221, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19 (Lucas).) "'Trombetta speaks of evidence whose exculpatory value is "apparent,"'" whereas Youngblood addresses "'potentially useful evidence.'" (People v. Montes (2014) 58 Cal.4th 809,838 (Montes), quoting Youngblood, supra, 488 U.S. at p. 56, fn. * & p. 58.) Under Youngblood, the mere "possibility" that information in the prosecution's possession may ultimately prove exculpatory "is not enough to satisfy the standard of constitutional materiality." (Youngblood, supra, at p. 56, fn.*; accord, City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 8.)
Whereas under Brady, the good or bad faith of the prosecution is irrelevant when it fails to disclose to the defendant material exculpatory evidence (Brady, supra, 373 U.S. at p. 87), a different standard applies when the prosecution fails to retain evidence that is only potentially useful to the defense. In the latter situation, there is no due process violation unless the accused can show bad faith by the government. (Illinois v. Fisher (2004) 540 U.S. 544, 548-549; Youngblood, supra, 488 U.S. at p. 58; City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 8.) "The presence or absence of bad faith by the police ... must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." (Youngblood, supra, at p. 56, fn. *; see Montes, supra, 58 Cal.4th at p. 838; Illinois v. Fisher, supra, at p. 549 ["[t]he applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecution's case or the defendant's defense, but on the distinction between 'material exculpatory' evidence and 'potentially useful' evidence."].)
3. Standard of Review
Questions whether a Brady violation has occurred are provided independent review, but great weight is given to any trial court's findings of fact that are supported by substantial evidence. (Masters, supra, 62 Cal.4th at p. 1067; People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.) "Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim [citation], are subject to independent review. [Citation.] Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence." (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
The standard for error under Trombetta and Youngblood is less certain. "The standard of review of a trial court's determination that evidence is or is not sufficiently exculpatory under Trombetta and Youngblood is unsettled, and it may depend on the extent of the inquiry a court takes before ruling on a Trombetta motion." (People v. Velasco (2011) 194 Cal.App.4th 1258, 1262.) The applicable standard of review under Trombetta has rarely been considered in appellate decisions. (People v. Velasco, supra, at p. 1262.) "It is settled that the substantial evidence standard applies to a trial court's determination, following a factual inquiry, that the state acted in good or bad faith in failing to preserve evidence." (Ibid.; see Montes, supra, 58 Cal.4th at pp. 837-838.) However, it is unclear what standard of review applies when a hearing is not conducted. (People v. Velasco, supra, at p. 1262.)
C. Analysis
As described, there are two separate instances involving the failure to disclose or the failure to retain evidence. One involves the lineups provided to German while he was in the hospital, and the other involves booking photographs of appellants. Accordingly, we review each instance to determine if the action of law enforcement violated Brady, Trombetta or Youngblood.
1. Photographic Lineups
a. Suppression Under Brady
We first determine if the failure to disclose the photographic lineups to German violated appellants' rights under Brady. The test under Brady includes three elements, (1) the evidence at issue must be favorable to the accused; (2) that evidence must have been suppressed by the state, either willfully or inadvertently; and, finally, (3) prejudice must have ensued. (Masters, supra, 62 Cal.4th at p. 1067.)
First, the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching. (Masters, supra, 62 Cal.4th at p. 1067; Skinner v. Switzer, supra, 562 U.S. at p. 536.) Here, the suppressed evidence consisted of Fernandez's testimony regarding the lineups, which may fairly be summarized as German either failed to identify appellants in the lineups provided a day after the stabbing, or, he identified three other individuals in the lineups that were not appellants. The identity of the perpetrators is, of course, central to the prosecution of any criminal case.
The prosecution attempted to prove that defendants drove the SUV to the liquor store and assaulted and stabbed the victims. Had German identified appellants, it would have served as direct evidence to prove the prosecution's theory of the case, but he did not. Although Elbardo had identified Edy, Daniel and Ruth and there was circumstantial evidence that appellants were the individuals involved, the greatest obvious weakness of the prosecution's case was the identity of the perpetrators. This issue is compounded by the fact that there were three other male individuals found at the residence who could have been involved rather than any one of defendants and no explanation was presented why any of those individuals were or were not involved. Accordingly, the identification or nonidentification of appellants by the victims is relevant to, and could have had an effect on, the jury's decision.
The prosecution is expected to "know about its own case and to provide the defense with evidence weakening that case." (Steele, supra, 32 Cal.4th at p. 700.) German's failure to identify appellants was clearly exculpatory, and would have been obviously exculpatory at the time it was obtained. German was unable to corroborate the identifications made by Elbardo, and his identification of other individuals in the lineups raised the possibility that appellants may not have been the assailants.
The purpose of Brady "was to prevent the obvious unfairness of allowing the prosecution to withhold information that undermines its own case." (Steele, supra, 32 Cal.4th at p. 699.) Brady requires the prosecution to disclose only evidence that is favorable and material under the prosecution's evidence or theory of the case. (Steele, supra, at p. 699.) That is clearly the type of evidence at issue here. While the California Supreme Court has raised concerns with requiring the defense to disclose evidence, which at best, "might support a defense theory, especially given the unlimited range of potentially mitigating evidence," it would be unreasonable for any prosecutor to fail to disclose evidence directly relating to the identity of the perpetrators of the assault at issue. (Id. at p. 700.)
There was no dispute that the evidence was favorable to appellants. Upon learning of the evidence at trial, the prosecutor immediately knew that exculpatory evidence may not have been disclosed, and told the court at the next available opportunity. Likewise, the court did not require argument regarding whether the evidence was exculpatory. The court found it to be a clear Brady violation, and instead focused argument on the materiality of the violation and the potential remedial actions that could be taken.
We agree. The suppressed evidence was without question favorable to appellants and adverse to the prosecution's case. Therefore, we will proceed to determine if the suppression of the evidence until trial was material and prejudiced appellants.
Respondent contends that there was "no material evidence suppressed under Brady." It appears that respondent is arguing that the evidence was not suppressed because it was discovered and disclosed during trial. The California Supreme Court has at times stated that "evidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery." (People v. Morrison (2004) 34 Cal.4th 698, 715; see People v. Verdugo (2010) 50 Cal.4th 263, 281.) However, California and Federal courts have consistently held that the disclosure of Brady material "'must be made at a time when the disclosure would be of value to the accused.'" (Meraz, supra, 163 Cal.App.4th at p. 51; United States v. Gordon (9th Cir. 1988) 844 F.2d 1397, 1403 ["Brady does not necessarily require that the prosecution turn over exculpatory material before trial," but if the disclosure is made at trial it must be made "'at a time when disclosure would be of value to the accused'"]; United States v. Shelton (9th Cir. 1978) 588 F.2d 1242, 1247.) "[T]he delay in disclosing it only requires reversal if 'the lateness of the disclosure so prejudiced [the] appellant's preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.'" (United States v. Shelton, supra, at p. 1247.)
b. Materiality Under Brady
"[The] touchstone of materiality is a 'reasonable probability' of a different result." (Kyles v. Whitley, supra, 514 U.S. at p. 434.) That is, whether in the absence of the withheld evidence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. (Ibid.)
"'Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies.'" (People v. Cordova, supra, 62 Cal.4th at pp. 123-124.) In assessing materiality, "'an incomplete response to a specific [Brady] request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued.' [Citation.] Given this possibility, 'under the ["reasonable probability"] formulation the reviewing court may consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response.'" (In re Brown (1998) 17 Cal.4th 873, 887; see United States v. Bagley, supra, 473 U.S. at pp. 682-683.)
The delay in providing the evidence in this case could have affected appellants' ability to prepare for trial. The suppressed evidence was revealed during trial, limiting the ability to conduct additional discovery. Furthermore, counsel had to digest the newly revealed information and modify trial strategy as trial progressed. Appellants incorporated the Brady issue into their defense, and presented extensive arguments based on the suppressed evidence to the jury. There is no doubt the jury was made aware of the evidence. The relevant inquiry is, therefore, whether the failure to timely disclose the evidence was material and there was a reasonable probability the late disclosure impacted the outcome of the trial. (People v. Cordova, supra, 62 Cal.4th at pp. 123-124.)
It is possible that appellants would have conducted additional or different investigations and modified their trial strategy had the evidence not been suppressed. Whether defense counsel would have approached trial differently, however, does not necessarily mean there was a reasonable probability that the defense would have resulted in a different outcome. Here, even without knowing about the interview and lineup provided to German, appellants prepared to present issues at trial concerning the identification of the assailants as one of their primary defenses, including that they retained an identification expert who was prepared to testify. As we explain, the record indicates the defense presented their concerns regarding the victims' identifications despite the late disclosures and used the new evidence to its advantage.
At trial, German identified Edy for the first time. But based on the disclosure of German's failure to identify Edy in the lineup at the hospital, appellants were able to create doubt as to the reliability of his in-court identification. In addition, German's identifications, or lack thereof, conflicted with Elbardo's identifications at the showup and provided a basis for challenging Elbardo's testimony. Appellants questioned Elbardo at length regarding his inability to remember whom he had identified from the showup at trial.
Appellants retained and presented an expert, Dr. Shomer, to provide scientific opinion as to why the identifications made by Elbardo may not be reliable. Shomer explained that field showups, like the one provided to Elbardo, have been determined to be inherently suggestive by the United States Department of Justice. Further, defense counsel elicited testimony from Shomer indicating that a witness's failure to identify any suspects from lineups within 48 hours of an incident would be a reatlively good indicator that the witness is not able to make a positive identification. Accordingly, defense counsel was able to submit to their expert questions regarding the late-disclosed evidence, and argue that German's later identification of Edy in court may have been based, in part, in having gained familiarity with Edy's picture from the lineups.
Further, appellants were given wide latitude to question Fernandez and, based on his testimony, they were able to attack his credibility and raise legitimate questions regarding the thoroughness and integrity of the investigation. Fernandez contradicted himself several times, attempting to explain why he did not document the interview of German and why he destroyed the paper copies of the lineups he provided. Also, based on his failure to record or disclose the interview with German and his failure to provide the booking photographs of defendants, there were multiple instances in which Fernandez failed to properly preserve evidence. Fernandez was in charge of much of the investigation and, based on his conduct and evasive responses at trial, appellants were able to raise questions regarding whether other evidence was not disclosed, whether the investigation was diligently carried out, and whether the prosecution could meet its burden of proof to place appellants at the scene of the crime.
Edy's counsel described the case as being "bungled ... from the very beginning." He pointed out there was no way to know what mistakes were made or what other things were covered up during the investigation. Counsel described how the initial interviews with the victims were sloppy and incomplete and failed to gather basic information regarding the assault, such as how many people were involved and if other people were around to witness it. They did not get detailed descriptions of the perpetrators, and they failed to search for forensic evidence at the scene outside the convenience store or in and around the victims' truck.
Daniel's counsel argued how Elbardo's identification of Daniel was not reliable. He also argued that Fernandez's conduct undermined the entire investigation of the incident. Rodriguez's counsel argued law enforcement failed to properly investigate the crime scene and that based on Fernandez's misrepresentations, the evidence as presented by law enforcement should not be trusted. Accordingly, appellants made the jury aware of the weaknesses of the prosecution's case, that the investigation was incomplete and that the credibility of the sheriff's deputies was called into question.
In addition, the court provided the special instruction to the jury, explaining that the prosecution violated the law in failing to provide the exculpatory evidence, and that they could consider the effect of the failure to timely disclose evidence on any issues in the case, including the credibility of the witnesses involved. Based on this special instruction, the jury was constrained to consider Fernandez's credibility and the quality of the investigation. Further, the court made clear that even though trial was underway, it would still entertain defense requests to conduct additional discovery, such as filing a Pitchess motion.
While counsel was aware that the court would entertain requests for ameliorative relief, beyond filing a Pitchess motion and obtaining a ruling, appellants did not request any further discovery. Nor do appellants argue on appeal what, if any, additional pretrial discovery they would have attempted to conduct had they been timely made aware of the results of the lineups given to German. We note the possibility that they could have investigated further regarding the behavior of the sheriff's deputies conducting the investigation, such as whether the officers made any effort to exclude the other males found at the residence from being the perpetrators or to explore the persons identified by German. Appellants could have investigated whether law enforcement properly considered other leads or evidence that contradicted their theory of the case. These possible avenues of discovery, however, are speculative. There is no reason appearing in the record that any of it would have done more than add to, rather than materially alter, the body of evidence presented to the jury that the identification of appellants was unreliable and the prosecution could not meet its burden of proof that appellants were the assailants at the scene of the assaults. Accordingly, even if such discovery was conducted and additional evidence was presented to the jury, it is unlikely that the presentation of the defense would have been more effective than that already presented.
In addition, appellants presented an alternative theory that the victims were the aggressors in order to claim that appellants acted in self-defense or did not have the requisite intent to commit attempted murder. This line of argument used at trial—attempting to shift blame for the altercation on the victims—may have appeared to conflict with the proposition that the prosecution couldn't prove appellants were the assailants. This may have confused or alienated the jury rather than create doubt, especially in light of the lack of evidentiary support for the self-defense theory. However, appellants presented questions to German and Elbardo relevant to self-defense, attempting to frame them as the aggressors, after the evidence suppressed before trial was disclosed. It is evident that appellants intended to present this alternative defense in addition, and as an alternative, to challenging issues of identification. Presenting alternative defenses is not uncommon and may well be the defense's best strategy but, in any event, it is the defense's prerogative. To the extent that the alternative defense here was not well received by the jury, the decision to press this strategy was nonetheless made with knowledge that evidence was disclosed late. Moreover, there is no reason to believe that, had appellants decided not to additionally focus on a victim-aggressor theory, that the result would have been different. While there was little favorable evidence supporting the theory, the attempt to raise issues regarding who instigated the fight was not such that it would have prevented the jury from impartially evaluating the facts of the case. Appellants present no argument regarding what additional investigations they would have conducted or what additional evidence they could have presented that would materially alter the mix of evidence.
The physical evidence of the altercation did not support a theory that Elbardo, German and Jamie instigated the fight. There was no evidence that they were armed. Beyond a scratch on Ruth's side, there was no significant, visible evidence of defensive injuries on defendants consistent with a fight, especially injuries that would indicate that they were struck with any weapons. German was the only individual who was stabbed, suffering life-threatening wounds. In addition, based on his testimony that he did not see the knife or recall being stabbed, it is likely that the stabbing occurred when he had been knocked to the ground and was covering his body, rather than looking at his attackers. The physical evidence and logical inferences created therefrom all present a stronger case that the victims did not instigate the attack or that they were armed.
Considering the effect of the nondisclosure on defense investigations and trial strategies, we conclude that there is not a reasonable probability that, had the evidence been disclosed earlier, the result of the proceedings would have been different. (Turner v. United States, supra, ___ U.S. at p. ___ [137 S.Ct. 1885, 1893]; People v. Cordova, supra, 62 Cal.4th at pp. 123-124.) We find that in light of the actions taken at trial, the suppressed evidence was disclosed to the defense in time for it to be of value. With counsel's ability to argue issues of identification, credibility, lack of thoroughness of the investigation, and the effect of the special jury instruction addressing the suppression of evidence, appellants were not prejudiced by the late disclosure. (Kyles v. Whitley, supra, 514 U.S. at p. 434.)
c. Trombetta and Youngblood
There is no significant dispute as to what occurred with regard to the lineups provided to German the day after the stabbing. Fernandez did not provide copies of the lineups, nor did he disclose that he provided German lineups until after German described the lineups at trial. In addition to the failure to disclose the evidence, some of the evidence with regard to the lineups may not have been retained, although electronic copies of the lineups were recovered and disclosed. The critical evidence at issue that was lost was any record of the individuals who German had identified.
As explained above, the failure of German to identify appellants in the lineups, and his identification of other individuals the day after the incident, directly weakened the prosecution's case and was "evidence that might be expected to play a significant role in the suspect's defense." (Trombetta, supra, 467 U.S. at p. 488.) While the "exculpatory value that was apparent before the evidence was destroyed," the question at issue here is whether the evidence is of "such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id. at p. 489.) Based on the fact the evidence was known or should have been known to be exculpatory at the time it was obtained, the error is one described under Trombetta and the additional element showing bad faith under Youngblood is not required. "[T]he applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence ..., but on the distinction between 'material exculpatory' evidence and 'potentially useful' evidence." (Illinois v. Fisher, supra, 540 U.S. at p. 549.)
Once it was discovered that Fernandez had provided German with lineups, electronic copies of the lineups were found and provided; therefore, most of the evidence was reasonably available by other means. In other words, while Fernandez destroyed the physical copies of the lineups he presented to German, the evidence was not truly destroyed as electronic copies of the lineups remained. Despite some discussion that the pictures in the digital copies of the six-person lineups may not have appeared in the same order, there is no dispute by the parties that the lineups were faithfully reproduced during trial.
The destruction, therefore, was limited to any markings made on the lineups, of which neither Fernandez nor German remember making, and the failure by Fernandez to memorialize the interview, such as by a recording device or by writing it down in his report. However, this failure to retain evidence of who German identified could have had a significant impact on appellants' defense and may not be able to be re-created. Fernandez does not mention in his testimony that he made any notes or otherwise recorded the interview. He testified that he included in his report that he interviewed German, but did not include details of the lineups in his report.
The evidence that was not retained due to the inadequate documentation in Fernandez's report included the identity of the three individuals identified by German in the lineups. As German did not recall at the time of trial whom he had identified, appellants were not able to obtain from other means an accurate reporting of German's identification and other interactions during the lineups.
The California Supreme Court has assumed without deciding that inadequate documentation of an identification procedure by law enforcement could result in the violation of due process rights by failing to preserve favorable defense evidence under Trombetta. (Lucas, supra, 60 Cal.4th at p. 234.) In Lucas, the Court found the inadequate documentation was not material because the victim was unable to talk at the time of the documentation procedure. (Ibid.) Even though the reports of the interviews were written months later, they were based on written questions and answers, which had been preserved. (Ibid.)
Based on German's testimony at trial that he identified three individuals in the lineups, the information that was lost due to inadequate documentation by Fernandez was favorable to appellants. However, as described ante, there was not a reasonable likelihood that the failure to record the results of the identification or timely disclose the results affected the judgment of the jury and caused the result of the proceedings to be different. (Wearry v. Cain, supra, ___ U.S. at p. ___ [136 S.Ct. 1002, 1006].)
2. Booking Photos
a. Brady
Next, appellants contend that the prosecution suppressed the photos of appellants taken during booking. There is no dispute that appellants were not notified nor provided copies of the booking photos until trial. However, during trial, copies of several of the photos were found in a separate gang investigation folder and provided to appellants.
After it was determined that the photos were missing, the prosecution was able to find videotape from the sheriff's department showing the deputies taking photos of appellants. When viewed in conjunction with the pictures that were discovered in the gang investigation folders, the disclosed photos largely correspond to the photos Fernandez is seen taking on the video. Pictures of defendants were taken both clothed and without shirts. Beyond the abrasion on Ruth's side, there were no other apparent injuries that were observable from the photos or the videotape. While it is possible that additional photos of defendants were taken and lost, there is no reason to believe that they would be substantially different than the photos that were discovered during trial or depict other, yet to be revealed defensive injuries.
Appellants' claim that the evidence was suppressed fails under Brady, because, although the evidence was suppressed, the evidence was neither exculpatory nor material. Appellants contend that missing pictures could have provided evidence of defensive wounds that may have shown appellants were not the aggressors and that they acted in self-defense. However, the pictures were taken of each individual while shirtless. Had any of appellants had substantial injuries above the waist or to their face, those injuries would have been revealed by either the videotape or pictures provided during trial. Even though the evidence was not revealed until trial, the evidence was not helpful to appellants and was not reasonably probable to lead to a different verdict. Accordingly, appellants' Brady claim with regard to the booking photos fails. (Masters, supra, 62 Cal.4th at p. 1067.)
b. Trombetta and Youngblood
Appellants also contend other booking photos that were not produced and that might have been helpful to the defense may have been destroyed. Without knowing if such photos exist or the content of the photos, the alleged lost evidence was only potentially useful. Youngblood, therefore, controls and the additional element of bad faith on the part of law enforcement must be shown. (Illinois v. Fisher, supra, 540 U.S. at pp. 548-549; City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 8.) Sheriff's deputies testified that they lost the camera before the pictures were downloaded, when, in reality, at least some, if not all, of the photos were downloaded and placed in gang investigation folders rather than provided to appellants during discovery.
To the extent that the photos were not included in the file for this investigation, it appears to be mere inadvertence. As previously described, the photos that were recovered during trial did not contain exculpatory evidence, as they did not clearly depict defensive injuries on appellants. Despite the recollection of the officers that copies of the photos were lost when the camera was stolen, it turned out that many of the photos were retained, but just misplaced. Under Trombetta, there is no constitutional violation where "[t]he record contain[ed] no allegation of official animus towards [the] respondents or of a conscious effort to suppress exculpatory evidence." (Trombetta, supra, 467 U.S. at p. 488; see People v. Zapien (1993) 4 Cal.4th 929, 965.) Such is the case with regard to the booking photographs. While law enforcement failed to act with proper diligence to preserve and report evidence, appellants have not shown a conscious effort on the part of law enforcement to suppress the booking photographs because they were exculpatory. The booking photos that were discovered and produced at trial were not particularly helpful to appellants, nor have appellants provided an articulable theory as to how additional exculpatory photos were destroyed in bad faith. Appellants are not entitled to relief under Trombetta with respect to the booking photographs that may have been destroyed.
D. Outrageous Police Misconduct
Appellants argue that the convictions should be dismissed, rather than reversed, in light of the outrageous police misconduct on the part of Fernandez. In certain instances, dismissal may be appropriate in light of outrageous governmental conduct. The power of a court to dismiss a criminal case for outrageous conduct arises from the due process clause of the United States Constitution. (Rochin v. California (1952) 342 U.S. 165, 168; accord, Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1259-1261.) Prosecutorial misconduct can violate a defendant's right to substantive due process and result in dismissal of an action when a prosecutor engages in outrageous conduct that shocks the conscience. (People v. Morrow, supra, at pp. 1259-1260; People v. Alexander (2010) 49 Cal.4th 846, 892 ["Arbitrary official action can violate a defendant's substantive due process rights, but 'only the most egregious official conduct can be said to be "arbitrary in the constitutional sense ...."'"].) If misconduct occurred, "whether the governmental conduct constitutes outrageous conduct in the constitutional sense of violating [a] defendant's due process rights" is subject to independent review. (People v. Uribe (2011) 199 Cal.App.4th 836, 858.)
Law enforcement suppressed evidence in this case, but there is no evidence that the prosecution engaged in egregious acts of misconduct that would form the basis of outrageous prosecutorial conduct that would warrant dismissal. (People v. Uribe, supra, 199 Cal.App.4th at p. 869.) For example, in People v. Uribe, the prosecutor presented false testimony during hearings regarding his knowledge of the existence of relevant evidence. (Id. at pp. 859-860.) Despite the misconduct, the court held that dismissal was an inappropriate remedy. (Id. at pp. 884-885.) "Dismissal of charges is an extraordinary remedy, which is reserved for the few cases where conduct by the prosecution has completely eliminated the possibility of a fair retrial." (People v. Kasim (1997) 56 Cal.App.4th 1360, 1387.)
Here, the trial court did not find bad faith by the investigating officers, including Fernandez, although he acknowledged the deficiencies in their conduct. The prosecutor immediately alerted the court upon learning of the suppressed evidence regarding the lineups, and actively helped to contact Fernandez and determine what had occurred. The prosecution likewise cooperated with the court and defense counsel to determine if there were undisclosed booking photographs upon learning of the issue before trial. The government's conduct in this case was not outrageous. While evidence was suppressed by law enforcement, the prosecutor made no attempt to perpetuate the situation or attempt to obtain a tactical advantage from the defense. Neither dismissal nor reversal is appropriate. II. Claim Two—Sleeping Juror
Daniel and Rodriguez contend that a juror fell asleep several times during the proceedings.
A. Facts
On the morning of October 8, 2014, Rodriguez's attorney noted that Juror No. 4 had fallen asleep twice that morning and asked the court to take corrective measures. During the afternoon of that same day, the court asked the same juror if he "are you with us?" Several days later, on October 14, 2014, another juror reported that Juror No. 4 was having difficulty staying awake. The judge agreed and observed that he had been watching him as well and noted that it "seems like he kind of nods off for a second and then jerks back up." Upon returning from recess, the judge admonished the entire jury of the importance of staying awake during trial.
B. Analysis
"'A trial court may discharge a juror who "becomes ill, or upon other good cause shown to the court is found to be unable to perform his [or her] duty ... [.]" [Citation.] Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty "to make whatever inquiry is reasonably necessary" to determine whether the juror should be discharged. [Citation.] We have ... explained, however, that the mere suggestion of juror "inattention" does not require a formal hearing disrupting the trial of a case.'" (People v. Williams (2013) 58 Cal.4th 197, 289, quoting People v. Espinoza (1992) 3 Cal.4th 806, 821.)
"'"The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial."' [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute 'good cause' to doubt a juror's ability to perform his or her duties and would justify his or her removal from the case." (People v. Bradford (1997) 15 Cal.4th 1229, 1348 (Bradford).) If any substantial evidence exists to support the trial court's exercise of its discretion to discharge or retain a juror, the court's action will be upheld on appeal. (Id. at p. 1351.)
In Bradford, the trial court acknowledged on the record that a juror was asleep and had been asleep the previous day. The Supreme Court observed that "'[a]lthough implicitly recognizing that juror inattentiveness may constitute misconduct, courts have exhibited an understandable reluctance to overturn jury verdicts on the ground of inattentiveness during trial. In fact, not a single case has been brought to our attention which granted a new trial on that ground. Many of the reported cases involve contradicted allegations that one or more jurors slept through part of a trial. Perhaps recognizing the soporific effect of many trials when viewed from a layman's perspective, these cases uniformly decline to order a new trial in the absence of convincing proof that the jurors were actually asleep during material portions of the trial. [Citations.]'" (Bradford, supra, 15 Cal.4th at p. 1349, quoting Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411.)
The absence of any "reference in the record to the juror's inattentiveness over a more substantial period indicates that the trial court did not abuse its discretion in failing to conduct an inquiry." (Bradford, supra, 15 Cal.4th at p. 1349.) Here, the court observed that Juror No. 4 was nodding off and reminded him to stay alert. However, a few instances during a lengthy trial of a juror having trouble staying awake is insufficient to apprise the trial court that good cause might exist to discharge him. After the first instance in which Juror No. 4 dozed off, the judge monitored the juror, including asking him if he was still with the court, and when a concerned juror noted an issue several days later, the judge acknowledged that he had seen the juror nodding off. Having observed the juror's conduct, the judge saw fit to provide an admonishment, but not to inquire further. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1233-1234.) Under these circumstances, the trial court did not abuse its discretion in declining to conduct a formal hearing into juror misconduct. III. Claim Three—Natural and Probable Consequences
All three appellants claim that it was error to allow the jury to convict them of attempted voluntary manslaughter using the natural and probable consequences doctrine. They contend the trial court erred when it instructed the jury that appellants could be found guilty of attempted murder or the lesser offense of attempted voluntary manslaughter under the natural and probable consequences doctrine. They rely on our Supreme Court's recent holding in People v. Chiu (2014) 59 Cal.4th 155, 158-159 (Chiu) "that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles." While the holding in Chiu found it inappropriate to use the doctrine with regard to first degree murder, the question presented here is whether such prohibition of the natural and probable consequences doctrine should be extended to attempted murder and attempted voluntary manslaughter.
A trial court has a duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. (People v. Townsel (2016) 63 Cal.4th 25, 58.) When a jury asks a question after retiring for deliberation, section 1138 requires that the court provide information the jury desires on points of law. (People v. Hodges (2013) 213 Cal.App.4th 531, 539; People v. Montero (2007) 155 Cal.App.4th 1170, 1179.) "When the original instructions are themselves full and complete, the trial court has discretion to determine what additional explanation is sufficient to satisfy a jury request for further information." (People v. Elder (2017) 11 Cal.App.5th 123, 137.) We independently determine whether the instructions given were correct and adequate. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; People v. Riley (2010) 185 Cal.App.4th 754, 767.)
At issue here are the legal principles regarding attempted homicide as they relate to aiding and abetting liability. "There are two distinct forms of culpability for aiders and abettors." (Chiu, supra, 59 Cal.4th at p. 158.) First, to be liable as a direct aider and abettor to murder, the prosecution must show the defendant aided or encouraged the commission of the murder with knowledge of the perpetrator's unlawful purpose, and with the intent or purpose of committing, encouraging, or facilitating its commission. (Id. at pp. 166-167.) Consequently, the aider and abettor must have the intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 624 (Lee).) Second, under the natural and probable consequences doctrine, a "'"person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime,"'" that is, that was reasonably foreseeable. (Chiu, supra, at p. 161.) "'Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.'" (Ibid.)
In Lee, the defendant, who was tried for first degree murder as a direct aider and abettor, contended section 664 required that an attempted murderer must personally act with willfulness, deliberation, and premeditation, and that the trial court erred by failing to so instruct the jury. (Lee, supra, 31 Cal.4th at pp. 616, 618, 621-623.) The court disagreed, concluding that based on the statutory language, "section 664[, subdivision ](a) properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted [willfully] and [with] ..., deliberation, and premeditation, even if he or she is guilty as an aider and abettor." (Id. at p. 627.) Accordingly, "the trial court did not err by failing to instruct the jury to determine personal willfulness, deliberation, and premeditation in the case of an aider and abettor." (Id. at p. 628.)
People v. Favor (2012) 54 Cal.4th 868 (Favor) came to the same conclusion when a defendant is tried under the natural and probable consequences theory, holding that "the jury need not be instructed that a premeditated attempt to murder must have been a natural and probable consequence of the target offense." (Id. at p. 872; see Chiu, supra, 59 Cal.4th at p. 162.) Favor reasoned that section 664, subdivision (a), did not create a greater degree of attempted murder, but constituted a penalty provision that prescribes an increased punishment. (Favor, supra, at pp. 876-877.)
Subsequently, Chiu held that "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles." (Chiu, supra, 59 Cal.4th at pp. 158-159.) Chiu concluded that "punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime" based on "the natural and probable consequences doctrine." (Id. at p. 166.) Chiu explained, however, that "[a]iders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles." (Ibid.)
Appellants contend that Lee and Favor have been called into question by Chiu and by Alleyne v. United States, (2013) 570 U.S. 99 (Alleyne). In Alleyne, the United States Supreme Court held, based on Apprendi v. New Jersey (2000) 530 U.S. 466, that any fact that increases a mandatory minimum sentence qualifies as an element of the crime and must be submitted to the jury. (Alleyne, supra, at p. 103.) Appellants argue that after Alleyne and Chiu, a jury cannot convict an aider and abettor of the nontarget offense of attempted murder or attempted voluntary manslaughter under the natural and probable consequences doctrine.
Appellants' argument is unavailing. As noted, under Favor and Lee, an "aider and abettor need not share the heightened mental state of the direct perpetrator for the applicability of section 664[, subdivision ](a)'s penalty provision." (Favor, supra, 54 Cal.4th at p. 879; see Lee, supra, 31 Cal.4th at pp. 621-622.) This is so, Favor explained, because "section 664[, subdivision ](a) 'requires only that the attempted murder itself was willful, deliberate, and premeditated'" and, therefore, it is sufficient that "'one of the perpetrators'" had the "'requisite state of mind.'" (Favor, supra, at p. 879.) The California Supreme Court is currently considering the effect of Alleyne on Favor when the natural and probable consequences doctrine is at issue. (People v. Mateo (Feb. 10, 2016, B258333 [nonpub. opn.], review granted May 11, 2016, S232674.)
There is additional support for finding that Favor remains good law. "Alleyne was decided approximately one year before Chiu. Although Chiu addressed Lee and Favor at length, it did not mention Alleyne, or provide any indication that Alleyne had undermined its prior holdings in those cases. We presume the Supreme Court was aware of Alleyne when it issued Chiu." (People v. Gallardo (2017) 18 Cal.App.5th 51, 85.) Favor and Lee remain good law, and unless and until our Supreme Court overrules them, they preclude appellants' argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) IV. Claim Four—CALCRIM No. 370
The trial court instructed the jury with CALCRIM No. 370, as follows: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."
Appellants contend this instruction was given in error. As argued by appellants, in order to find appellants guilty of the section 186.22, subdivision (a) substantive offense of active participation in a criminal street gang, the jury had to decide if appellants' motive was to benefit the gang when they committed the underlying offenses. The instruction on the section 186.22 gang substantive offense states, in pertinent part: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal activity; [¶] AND [¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang ...." (CALCRIM NO. 1400.)
Appellants argue the instruction telling the jury the People did not need to prove motive fundamentally undercut the People's burden of proof with regard to the gang enhancements. We disagree.
As an initial matter, appellants did not request modification of CALCRIM No. 370 in the trial court and have therefore forfeited any objection on appeal. "Failure to object below to an instruction correct in law forfeits the claim on appeal." (People v. Fernandez (2013) 216 Cal.App.4th 540, 559; see People v. Virgil (2011) 51 Cal.4th 1210, 1260.) But the claim also fails on the merits.
Motive, intent and malice are separate and disparate mental states. (People v. Hillhouse (2002) 27 Cal.4th 469, 504; People v. Snead (1993) 20 Cal.App.4th 1088, 1098, overruled on other grounds in People v. Letner and Tobin, supra, 50 Cal.4th at p. 181.) "Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a mental state such as intent or malice." (People v. Hillhouse, supra, at p. 504.)
As appellants acknowledge, a similar argument was rejected by this court in People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes). In Fuentes, the prosecution alleged a section 186.22, subdivision (b) gang enhancement allegation and a special circumstance under section 190.2, subdivision (a)(22), which required the jury to find the charged murder was carried out to further the activity of a criminal street gang. (Fuentes, supra, at p. 1139.) We rejected the defendant's argument that these findings required the jury to also make a finding of motive. As we explained:
"An intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that [the defendant] intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. [The defendant] claims the intent to further criminal gang activity should be deemed a motive, but he cites no authority for this position. There was no error." (Fuentes, supra, 171 Cal.App.4th at pp. 1139-1140.)
Similarly, in People v. Snow (2003) 30 Cal.4th 43 (Snow), the defendant argued an instruction that motive was not an element of the crime charged and need not be shown conflicted with another special circumstance instruction requiring the jury to find "'the witness was intentionally killed for the purpose of preventing his testimony in a criminal proceeding' ...." (Id. at p. 98.) The California Supreme Court rejected the argument, explaining the instruction on motive referred to the "crime charged" and not the special circumstance allegation. The court further reasoned: "Even allowing for misunderstanding on that particular point, it was not reasonably likely [citation] that the jurors would have been misled in the manner defendant suggests, as they were repeatedly and expressly instructed to find the special circumstance allegation true only if each element, including the purpose of preventing the victim's testimony, was proved beyond a reasonable doubt. The instructions, taken as a whole, did not deprive defendant of a fair trial or a reliable penalty determination." (Ibid.)
Appellants attempt to distinguish Snow, pointing out that the substantive crime of active gang participation (§ 186.22, subd. (a)), was the "crime charged" and not an enhancement (such as, e.g., § 186.22, subd. (b)). As such, they argue, CALCRIM No. 370 incorrectly told the jury it need not prove motive for the "crime charged," confusing and undercutting the need to prove the intent requirement.
We disagree. As we acknowledged in Fuentes, a "common sense concept" of motive might support the idea that an intent to further gang activity is a "motive" for committing a murder. "A wish to kill the victim was a reason for the shooting, and a wish to further gang activity stood behind that reason." (Fuentes, supra, 171 Cal.App.4th at p. 1140.) But, as we explained, the jury instructions "were well adapted to cope with the situation. By listing the various 'intents' the prosecution was required to prove (the intent to kill, the intent to further gang activity), while also saying the prosecution did not have to prove a motive, the instructions told the jury where to cut off the chain of reasons. This was done without saying anything that would confuse a reasonable juror." (Ibid.) Here, the jury was also instructed that section 186.22, subdivision (a), required a specific intent or mental state. (CALCRIM No. 252.)
Appellants attempt to distinguish Fuentes because that court did not instruct the jury it could consider proof of the appellants' gang activity to determine whether they "had a motive to commit the crime[s] charged," as the court did here. (CALCRIM No. 1403.) But this is a distinction without a difference. CALCRIM No. 1403 refers to "the crime[s] charged," not to an allegation. (See Snow, supra, 30 Cal.4th at p. 98.) The instructions distinguished between "crimes" and "allegations" throughout. And the instructions as a whole told the jury that, whether or not there was proof of motive, they could only find appellants' crimes were gang related if the prosecution proved they committed it with the specific intent to promote, further, or assist criminal gang activity. It is not reasonably likely the jurors were misled.
We agree with respondent that, while the People did not have to prove motive, appellants suffered no prejudice as the jury was required to find beyond a reasonable doubt appellants acted with the necessary mental state before it could find them guilty of the substantive offense. (People v. Musselwhite (1998) 17 Cal. 4th 1216, 1248 [correctness of jury instructions determined from entire charge to jury].) We reject appellants' claim to the contrary. V. Claim Five—CALCRIM No. 372
During the discussion of the jury instructions, Edy objected to CALCRIM No. 372 and Daniel joined the objection. Counsel argued that leaving the scene of a crime is insufficient support for this instruction as there is no requirement that appellants stay at the scene and wait for the police to arrive. Here, the assailants drove away from the convenience store and went home. As a result, appellants argued that CALCRIM No. 372 should not be given. The court disagreed and found substantial evidence to give the instruction. During closing argument, the prosecutor discussed the facts of the case in detail, including the fact that defendants fled the scene in the SUV. However, the prosecution did not rely upon CALCRIM No. 372 nor attempt to argue that appellants' flight from the scene of the crime was evidence that they were aware of their guilt.
CALCRIM No. 372 provides: "If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself."
Appellants claim there was no factual basis for the flight instruction. We review the instructional error claim de novo. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.) A flight instruction is generally proper "'"where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt."' [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328 (Bonilla).)
Here, the circumstances of appellants' departure from the convenience store "provided sufficient evidence of flight to warrant the flight instruction." (People v. Cage (2015) 62 Cal.4th 256, 285; see Bonilla, supra, 41 Cal.4th at p. 329.) After appellants were in the altercation in which German was stabbed and Elbardo's cell phone was stolen, they drove off. These circumstances "could have given rise to an inference of consciousness of guilt." (Bonilla, supra, at p. 329.) The jury could have inferred from appellants' conduct in leaving the scene that they did not instigate the attack. The prosecution did not focus on that detail of the incident; however, appellants' "departure and the circumstances thereof were consistent with and supported the prosecution's theory" that they were the aggressors and did not want law enforcement to apprehend them. (Ibid.) Sufficient evidence supported giving the flight instruction. (People v. Cage, supra, at p. 285.)
Even if the court erred by instructing the jury with CALCRIM No. 372, appellants cannot demonstrate prejudice because it is not reasonably probable they would have obtained a more favorable result had the instruction not been given. (People v. Silva (1988) 45 Cal.3d 604, 628; People v. Clem (1980) 104 Cal.App.3d 337, 344-345.) The prosecution did not address the inferences that could have been reasonably considered by the jury from appellants' actions in fleeing from the scene. The prosecution based its case on other evidence that appellants were the aggressors and initiated the confrontation and assault. Moreover, the "instruction did not posit the existence of flight; both the existence and significance of flight were left to the jury." (People v. Crandell (1988) 46 Cal.3d 833, 870, [error in giving flight instruction was "manifestly harmless"], overruled on another point in People v. Crayton (2002) 28 Cal.4th 346.) In light of the evidence presented by and arguments made regarding appellants' guilt at trial, we find any error in providing the instruction harmless. VI. Claim Six—Unduly Suggestive Identification Procedure
Edy contends that the identification procedure in which sheriff's deputies brought Elbardo to the residence to identify suspects was unduly suggestive. He contends that the procedure in which Elbardo was told by sheriff's deputies that they had arrested suspects in the assault, and then shown the suspects, one by one, in front of the vehicle Elbardo identified as the one used by the assailants at the gas station, created the suggestion that Elbardo should pick appellants. Edy contends it was error to show Elbardo the suspects one at a time, rather than in a lineup with other suspects, and placing the subjects near the vehicle identified in the incident.
A defendant bears the burden of demonstrating that eyewitness identification evidence should be excluded as unreliable. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) A court's ruling regarding the suggestiveness of a pretrial identification procedure is subject to our independent review, with deference given to the factual findings of the trial court. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) Due process requires the exclusion of identification testimony only if the procedures used were unnecessarily suggestive and, if so, the resulting identification was unreliable. (Manson v. Brathwaite (1977) 432 U.S. 98, 106-114 (Manson); Neil v. Biggers (1972) 409 U.S. 188; People v. Yeoman (2003) 31 Cal.4th 93, 125.)
In cases where the defendant has been identified by an eyewitness at trial, an appellate court will set aside a conviction based on a suggestive pretrial photographic identification only if the pretrial procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Simmons v. United States (1968) 390 U.S. 377, 384 (Simmons).) "When an eyewitness has been subjected to undue suggestion, the factfinder must nonetheless be allowed to hear and evaluate his identification testimony unless the '"'totality of the circumstances'"' suggests '"a very substantial likelihood of irreparable misidentification."'" (People v. Arias (1996) 13 Cal.4th 92.) "'Short of that point, such evidence is for the jury to weigh.... [E]vidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.'" (Id. at p. 170.)
The procedure leading to Edy's identification by Elbardo on the night of the incident did not violate Edy's right to due process. The application of the due process clause turns on the presence of state action and is not implicated when there is no improper action by police. (Perry v. New Hampshire (2012) 565 U.S. 228, 241-242.) "The due process check for reliability ... comes into play only after the defendant establishes improper police conduct. The very purpose of the check ... was to avoid depriving the jury of identification evidence that is reliable notwithstanding improper police conduct." (Id. at p. 241.) However, even if field showups are more suggestive than lineups, United States and California law both permit a field showup identification procedure under a "totality of the circumstances" approach. (See Stovall v. Denno (1967) 388 U.S. 293, 302, overruled on other grounds in Griffith v. Kentucky (1987) 479 U.S. 314, 321-322; People v. Ochoa, supra, 19 Cal.4th at p. 413; People v. Clark (1992) 3 Cal.4th 41, 136; People v. Floyd (1970) 1 Cal.3d 694, 714, overruled on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36; People v. Bisogni (1971) 4 Cal.3d 582, 587.)
As for the physical lineup itself, the circumstances, while not ideal, were not unduly suggestive. Elbardo was given the standard admonitions before viewing the suspects who were similar to appellants in terms of age, height, race and gender. No evidence was introduced that any of the deputies drew Elbardo's attention to any particular subject or did anything to suggest Elbardo should select any of appellants. While the showup appears to have taken place in front of the vehicle that Elbardo identified, he was shown more individuals than were indicated to have been present at the gas station. Even if there were some indicia of suggestiveness present, Elbardo had to have known that at least some, if not all of them, were not involved in the assault at the gas station. Based on the totality of the circumstances, Edy has not shown a very substantial likelihood of irreparable misidentification. (People v. Arias, supra, 13 Cal.4th at p. **.) Reversal is not required. VII. Claim Seven—Substantive Gang Offenses and Gang Enhancements
Edy and Rodriguez argue that under the California Supreme Court's recent decision in Sanchez, supra, 63 Cal.4th 665, they are entitled to reversal of both the substantive gang offenses and the gang enhancements because the gang expert related case-specific facts drawn from hearsay evidence, some of which is also testimonial under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). In addition to proving the gang offenses and enhancements, Edy and Rodriguez argue that the hearsay statements were prejudicial as the inadmissible statements were used to show motive to commit the charged crimes.
A. The STEP Act
"In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.)" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) "'The act's express purpose was "to seek the eradication of criminal activity by street gangs." [Citation.]' [Citation.] In pursuit of this goal, the STEP Act focuses upon 'patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.' (§ 186.21.)'" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. omitted (Rodriguez).)
In addressing the problem, the STEP Act creates both a substantive offense for active participation in a criminal street gang and a sentence enhancement for committing gang related crimes. (Rodriguez, supra, 55 Cal.4th at p. 1130.)
1. Substantive Gang Offense
The substantive gang offense applies to "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang ...." (§ 186.22, subd. (a).) It is not a crime to be a gang member, however (Rodriguez, supra, 55 Cal.4th at pp. 1130-1131), and "[n]ot every crime committed by gang members is related to a gang" (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar)). Rather, the substantive gang offense targets "gang members who act[] in concert with other gang members in committing a felony regardless of whether such felony [is] gang related." (Rodriguez, supra, at p. 1138.) The offense requires the commission of felonious criminal conduct by at least two members of the criminal street gang. (Id. at p. 1132; People v. Johnson (2014) 229 Cal.App.4th 910, 920-921.)
The substantive gang offense has three elements: "[f]irst, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Rodriguez, supra, 55 Cal.4th at p. 1130; People v. Lamas (2007) 42 Cal.4th 516, 524.)
2. Gang Enhancement
The STEP Act also provides for the enhancement to a sentence of "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members ...." (§ 186.22, subd. (b)(1).) "'A criminal offense is subject to increased punishment under the STEP Act only if the crime is "gang related."'" (Albillar, supra, 51 Cal.4th at p. 60.) Although gang membership is not an element of the enhancement, gang evidence can nevertheless bolster the prosecution's theory on the elements it is required to prove. (Sanchez, supra, 63 Cal.4th at pp. 698-699; People v. Gutierrez (2009) 45 Cal.4th 789, 820; People v. Hernandez, supra, 33 Cal.4th at pp. 1044-1049; People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 541.) That is, "[g]ang membership is simply circumstantial evidence establishing that the crime was gang related and a motive for why a defendant may have harbored the 'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Villa-Gomez, supra, at p. 540.)
For both the substantive offense and enhancement, "'the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period.'" (Sanchez, supra, 63 Cal.4th at p. 698.)
Rodriguez and Edy challenge both their convictions on substantive gang offenses and the jury's true findings on the gang enhancements. They argue that the gang expert's case-specific testimony regarding predicate offenses and gang membership was based on hearsay evidence in violation of Sanchez and the error was prejudicial, entitling them to reversal of the gang offense and enhancement. In addition, they assert that the evidence was prejudicial as it was used to establish motive for the underlying convictions of attempted voluntary manslaughter, assault and robbery. We begin with a summary of the gang evidence presented.
B. Gang Evidence
1. General Activities of the Varrio Chico Lamont Gang
Timothy Monsibais, a deputy sheriff with the Kern County Sheriff's Department, testified as a gang expert for the prosecution. Monsibais had been assigned to the gang suppression unit for less than a year prior to providing his testimony, and was previously assigned to the Lamont substation for over a year prior to his assignment with the gang unit. He testified that there was a gang in the Lamont area known as Varrio Chico Lamont or Lamont 13 (VCL) and that he had at least 100 separate contacts with its members. Primary criminal activities of the gang were auto theft, assault with a deadly weapon, attempted homicide, burglary and robbery. Monsibais described the geographic boundary of the VCL gang area, and noted that the location of the incident was within that territory. VCL was rivals with gangs from the surrounding communities of Arvin and Weedpatch.
Members of VCL claimed the color royal blue and would oftentimes display royal blue bandanas. Monsibais described the most common weapon used by VCL members was knives. To illustrate the point, Monsibais described a situation in which several members of the gang approached a victim, began a fight, and then stabbed him.
2. Particular Crimes of VCL
Monsibais testified to various prior crimes committed by members of VCL. The first crime occurred on December 21, 2013. Monsibais explained that he had personal knowledge of the incident involving VCL member Victor Vega as he was the second officer to respond to the crime and assisted with the investigation. There, the victim was walking in Weedpatch when assaulted by Hispanic males. The victim was struck with pipes and stabbed several times. Monsibais believed that the assault was gang related because prior to the assault of the victim, the perpetrators asked the victim where he was from to determine if he was a member of a rival gang. Vega was convicted of attempted murder and participating in a criminal street gang. The second incident occurred on May 31, 2013. In that incident, two individuals flashed an "L" gang sign at the victim and threw a speaker at the victim's car, causing damage. One of the suspects was convicted of vandalism. Monsibais learned of the incident by reading the police report and talking to the investigative officer.
The third incident occurred on September 17, 2012. Three gang members drove to Arvin, approached the victim and asked him where he was from. When the victim replied that he was from Arvin, the gang members got out of their vehicle, said they were from Lamont, and proceeded to stab and shoot the victim, and then fled. Law enforcement officers stopped the suspects in the vehicle, and during a search of the vehicle found a gun and a knife. Monsibais also learned of this incident by reading the police report and talking to the investigative officer.
The fourth and final incident involved Rodriguez, along with two other individuals, and occurred on November 7, 2010. They approached two victims in a McDonald's parking lot, asked the victims to buy them food, and assaulted them with a weapon when they refused. After the incident, Rodriguez was interviewed by Deputy Sanchez, who also testified at trial. During the interview with Sanchez, Rodriguez admitted to being an active VCL gang member, that his moniker was "Lil Chico," and that he had a prior conviction for assault with a deadly weapon. Sanchez testified regarding the statements Rodriguez made about his gang affiliation. However, at trial, Sanchez did not testify regarding any details of the underlying conviction.
3. Gang Status of Appellants
Monsibais next presented evidence that supported his opinion that defendants were active members of the VCL gang.
a. Edy
Monsibais personally conducted a search of Edy's room. During the search, officers found a photograph of Edy, Ruth and several other known VCL gang members. Two of the individuals in the photograph were wearing hats, one of which said "Lamonster" and the other was "KC," which Monsibais opined stood for Kern County. Several other photographs were introduced where Edy and others were making an "L" or "VCL" gang sign with their hands. Monsibais explained that Edy had a tattoo of "LMT," which Monsibais believed to be an abbreviation for Lamont.
Monsibais reviewed 10 significant offense reports regarding Edy and described three of the offenses to illustrate Edy's gang affiliation. In the first offense Edy, Rodriguez and Ruth were arrested for burglary and vandalism on January 5, 2007. Two other offense reports connected Edy to two separate incidents of assault with a deadly weapon, one occurring on April 3, 2009, and the other October 22, 2009. The April 3, 2009, incident involved Edy and five other individuals, including Victor Vega, whom Monsibais had previously testified to as being a member of VCL. The incident involved a robbery and assault with a deadly weapon.
The incident occurring on October 22, 2009, took place at Daniel's and Edy's residence. Edy used a weapon to assault the victim, who ultimately died from his injuries. Monsibais explained that several people drove to the Catalans' house, and one was seeking a romantic relationship with the sister of Daniel and Edy. Daniel and Edy told them to leave and a confrontation arose. Once again, Monsibais failed to provide information regarding the investigating officers or how he had personal knowledge of the events described in the incident reports.
Based on the following evidence, Monsibais opined that Edy was an active VCL gang member.
Although Monsibais did not mention or rely on the evidence in reaching his conclusion that Edy was an active VCL gang member, Fernandez testified that roughly six weeks before the offense occurred he made contact with Edy and Ruth at a residence in Lamont. Edy and Ruth admitted to being gang members, but Fernandez could not recall whether they specified the particular gang of which they were members.
b. Rodriguez
Monsibais testified that he personally conducted a search of Rodriguez's house on March 18, 2014. During the search, he found a mail envelope from an inmate at Corcoran State Prison and a known VCL member addressed to Rodriguez. Monsibais noted that the letter spelled out VCL in Spanish, or "Ve Ce Ele," and that the letter "A" was written upside down throughout the letter as a sign of disrespect to a competing gang in the community of Arvin. On the last page of the letter, the author had spelled out Varrio Chicos Lamont. Monsibais also found a blue hat with a "KC" logo, which he opined was common for gang members to wear in representation of Kern County. In the back yard of the residence, a table was marked with VCL and the roman numeral 13 in reference to Southern Hispanic gangs.
Monsibais also reviewed six offense reports and two field interviews of Rodriguez. The first incident involving Rodriguez was from January 5, 2007. Rodriguez was arrested with Edy and Ruth for burglary and vandalism to several vehicles. The second report was from December 18, 2008, when Rodriguez was contacted while riding a bicycle in VCL gang territory and was found in possession of a concealed hammer and knife. In the third report from January 1, 2010, Rodriguez and three other individuals were contacted in a stolen vehicle. Monsibais knew two of the other three individuals were VCL gang members.
The fourth report, dated November 7, 2010, was an attack at a McDonald's in which Rodriguez admitted to being a VCL gang member. The attack involved the use of a weapon and resulted in two victims being injured.
Deputy Sanchez testified at trial that he had prior contacts with Rodriguez, including describing this incident discussed by Monsibais. Rodriguez's attorney moved to exclude the testimony as unduly prejudicial under Evidence Code section 352. The judge granted the motion and limited any statements regarding the stabbing or the use of a knife. On December 6, 2010, Sanchez was investigating Rodriguez for an assault with a deadly weapon on November 7, 2010. After Sanchez provided him warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Rodriguez admitted he was an affiliate of the VCL gang for the last two years and his gang moniker was "Lil Chico."
On October 4, 2006, Rodriguez tagged the wall of his juvenile hall cell with the letters "VCL." Another incident occurred on August 27, 2007, where Rodriguez was contacted at a residence with two known VCL gang members. In addition, Monsibais introduced evidence of a rap video Rodriguez created that indicated disrespect to the rival gang in Arvin and included two other known VCL gang members.
Monsibais also took pictures of Rodriguez's tattoos several weeks before trial. Rodriguez had the number "187" on his right index finger. He also had the letter "L" tattooed on his head, along with the phrase "Bury me a G," which Monsibais interpreted the "G" to stand for gangster. Rodriguez had also written the names of his mother and father in the shape of an L on his neck, which referenced Lamont. Finally, Rodriguez also had dots on his hand that Monsibais believed indicated that he was a Southern gang member.
Based on the above evidence, Monsibais opined that Rodriguez was an active member of VCL at the time of the incident.
Monsibais also provided testimony as to why he opined that Ruth and Daniel were also active VCL gang members. As Ruth and Daniel have not asserted error, we omit those facts from this discussion.
4. Hypothetical
Monsibais was provided a hypothetical in which one or more members of the VCL approach an associate of the Varrio Weedpatch gang at a liquor store in VCL gang territory. A member of the VCL gang shakes hands with the Varrio Weedpatch gang associate, and then punches him, knocking him to the ground. One of the family members comes to the aid of the Varrio Weedpatch gang associate and knocks one of the VCL gang members to the ground. Other members of the VCL gang then knock the family member to the ground and stab him four times, and then proceed to the victim's truck and steal a cell phone. Based on the hypothetical, Monsibais opined that the crime was committed in association with and for the benefit of the VCL gang. Assault with a deadly weapon, attempted murder, and robbery were primary activities of VCL and the attack by multiple members of the gang would send a message to rival gang members regarding what would happen if they come into VCL gang territory.
5. Gang Affiliation of Victims
Monsibais opined from looking at Jamie's offense reports that he was at least an associate of the Varrio Weedpatch gang. On the other hand, Monsibais could not find any records as to German or Elbardo being involved in any gang activity, except for the incident at issue, and opined that they were not involved in any criminal street gangs.
C. Admission of Hearsay Evidence
1. Sanchez Decision
Following jury trial in this case, the California Supreme Court issued its decision in Sanchez, which fundamentally reordered the landscape of expert testimony. Sanchez considered the degree to which an expert witness may rely on hearsay evidence under state law and under federal law in light of the United States Supreme Court's decision in Crawford, supra, 541 U.S. 36. "Sanchez 'jettisoned' the former 'not-admitted-for-its-truth' rationale underlying the admission of expert basis testimony, and occasioned a 'paradigm shift' in the law." (People v. Iraheta (2017) 14 Cal.App.5th 1228, 1246 (Iraheta), quoting People v. Stamps (2016) 3 Cal.App.5th 988, 994-995 (Stamps).) The court discussed general background versus case-specific facts, making clear that an "expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.) However, "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.) Moreover, "[i]f the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Ibid.)
Thus, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
The court discussed at length what constitutes testimonial hearsay in Sanchez, explaining, "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, 63 Cal.4th at pp. 689, fn. omitted; see id. at pp. 691-694.) Additionally, the formality of the statement is considered. (Id. at pp. 692-694; People v. Ochoa (2017) 7 Cal.App.5th 575, 583 (Ochoa).)
2. Analysis
Turning to the merits of appellants' challenge, viewed through the lens of Sanchez, the gang expert clearly relied on inadmissible hearsay during case-specific portions of his testimony relating to the predicate offenses and appellants' gang membership. (People v. Lara (2017) 9 Cal.App.5th 296, 337; Ochoa, supra, 7 Cal.App.5th at p. 583.) Of the hearsay admitted in violation of state law, some was also testimonial and, therefore, violated the confrontation clause. The remainder, as we shall explain, may or may not have been testimonial, but the record does not allow for a determination. (People v. Ochoa, supra, at pp. 584-585.)
a. Colors, Symbols and Territory
In general, colors, symbols, territory and other general background information regarding the actions of a gang is permissible expert testimony under Sanchez, and not considered case-specific information. (Sanchez, supra, 63 Cal.4th at pp. 676-677.) That VCL had adopted blue as its gang color, Kansas City Royals athletic gear as a symbol, has a traditional territory, other gangs that it affiliates with or is in active rivalries with is general background information. (Id. at p. 677.) However, whether appellants were observed wearing known gang attire, or were present in gang territory during a particular incident, is case-specific information. (Id. at p. 676.)
b. Predicate Offenses
Appellants argue that Monsibais relied on case-specific hearsay in describing the predicate offenses and explaining his opinion why Edy and Rodriguez were active gang members. Regarding the four predicate offenses, Monsibais was personally involved in investigating one: the predicate offense involving the beating and stabbing of a rival gang member by Victor Vega. In contrast, Monsibais did not have any personal involvement in the other three predicate offenses. However, Deputy Sanchez, who also testified at trial, investigated the fourth incident. Sanchez, in his testimony at trial, did not describe the underlying facts of the fourth incident. He only testified to his interview after the incident in which Rodriguez admitted that he was an active VCL gang member. Accordingly, in testifying about the underlying facts of the other three predicates, Monsibais relied on police reports, conversations with other officers and court dockets.
Respondent takes the position that Monsibais's testimony regarding the predicate offenses is not problematic because, one, he relied on court dockets and, two, the information was cumulative of other independently proven facts. We are not persuaded. Regarding the first argument, Monsibais's testimony was not limited to the court dockets and largely drew upon information obtained from police reports. (Evid. Code, § 452.5; People v. Skiles (2011) 51 Cal.4th 1178, 1186; Ochoa, supra, 7 Cal.App.5th at p. 589, fn. 10.) However, it was not the bare convictions, but the details surrounding the convictions described by Monsibais that tied the offenses to VCL.
Regarding the second argument, appellants contend that, because at least one of the described prior convictions of a VCL member was proven by Monsibais's personal knowledge, there was sufficient evidence to establish a pattern of criminal gang activity without violating Sanchez. Appellants concede that Monsibais had personal knowledge and his testimony regarding the first predicate offense did not violate Sanchez.
Under the statute, the prosecutor was required to prove the existence of a criminal street gang and a pattern of criminal activity in which that gang engaged. (§ 186.22, subds. (e), (f).) Thus, Monsibais's testimony regarding the predicate offenses is relevant to both the substantive gang offense and the gang enhancement. (People v. Lara, supra, 9 Cal.App.5th at pp. 326-327.) Under these circumstances, this testimony is not background information; that is, "testimony regarding [Monsibais's] general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676; see Stamps, supra, 3 Cal.App.5th at pp. 995-996.) We believe this determination is consistent with and follows from the court's discussion of case-specific facts versus general background information in Sanchez. Therefore, we conclude Monsibais's testimony regarding the predicate offenses was case-specific. (Sanchez, supra, at pp. 676-677; People v. Lara, supra, at p. 337; Ochoa, supra, 7 Cal.App.5th at pp. 588-589; Stamps, supra, at pp. 995-996.)
The prosecution needed to prove that the predicate offenses were committed by members of the gang. (See § 186.22, subd. (f) [part of definition of criminal street gang is that its "members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity"].) However, predicate offenses need not be gang related at all. (People v. Gardeley (1996) 14 Cal.4th 605, 621-622, disapproved on other grounds in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Further, a predicate offense may be established by evidence of the charged offense. (People v. Tran (2011) 51 Cal.4th 1040, 1046.)
As previously stated, Monsibais was personally involved in investigating the first predicate offense he described for the jury, and there is nothing readily apparent on the face of this testimony that raises concern. Nor do appellants, who bear the burden of affirmatively demonstrating error on appeal, specifically argue otherwise. (People v. Gamache (2010) 48 Cal.4th 347, 378; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523; People v. Clifton (1969) 270 Cal.App.2d 860, 862.) In light of Monsibais's personal knowledge that known VCL gang members committed the first predicate offense, and the fact that Sanchez testified that he personally interviewed Rodriguez, who admitted his gang affiliation with respect to the fourth predicate offense, there is sufficient evidence to establish a pattern of criminal gang activity.
Monsibais's testimony regarding the other three predicate offenses, however, relied on hearsay, and appellants claim that they were prejudiced by its admission into evidence.
c. Gang Membership
Monsibais provided evidence of gang membership with regard to all four defendants. His testimony comprised the vast majority of the gang evidence presented and that testimony relied largely on case-specific hearsay.
i. Edy
With regard to Edy, Monsibais described items found during a search of Edy's room. Several photographs depicted Edy and Ruth with other known VCL gang members in which individuals in the photo were wearing a Kansas City Royals hat and a hat with the words "Lamonster." Monsibais testified that "Lamonster" was a common name that Lamont gang members would use to identify themselves. Other photographs were obtained in which Edy or other individuals were making "L" signs with their hands and one individual was making a "VCL" hand sign. A Kansas City Royals hat was also found in the room. In addition, Edy had a tattoo with the letters "LMT" on his chest, which Monsibais opined was an abbreviation for Lamont. Monsibais's reliance on the above evidence to opine as to whether Edy was an active member of the VCL gang was not based on improper hearsay evidence, nor does Edy challenge Monsibais's testimony to the extent that it relied on that evidence. In addition to Monsibais's expert testimony, Edy admitted to Fernandez that he was a gang member. That evidence was sufficient to show that Edy associated with, and had tattoos and clothing commonly found on VCL gang members.
However, Monsibais also relied in significant part on the description of criminal offense reports to show that Edy engaged in criminal activity that was associated with the VCL gang. Edy challenges the testimony regarding 10 offense reports of his criminal activity that Monsibais claimed supported a finding that Edy was an active gang member. Monsibais described three of the 10 events. With regard to two of the events, Monsibais provided case-specific information in addition to the fact that the underlying offense occurred. With regard to the first described event, involving burglary and vandalism, Monsibais provided case-specific information that Edy was contacted with codefendants Rodriguez and Ruth, and that the incident occurred just outside of VCL gang territory. The other two instances involved assaults with a deadly weapon. One incident was an assault with a deadly weapon and robbery, and Monsibais again provided case-specific information that Edy was contacted with four other individuals, including one known to be a VCL gang member. Monsibais provided detailed case-specific information regarding the third incident, involving an assault with a deadly weapon, where the victim died from his injuries. Monsibais explained that in the third incident, occurring at the Catalan house, Edy used a weapon during the incident and "that weapon cause[d] this individual to die." Monsibais explained that witness statements indicated Edy felt disrespected when individuals came to his house asking for his sister, and that Edy and Daniel were compelled to act because it would be a sign of weakness to allow someone else to disrespect a gang member in his gang territory. Respondent concedes that Monsibais's testimony based on these reports contained case-specific facts and violated the confrontation clause. However, respondent argues that the evidence was cumulative and harmless.
We lack information regarding why the crime was considered an assault rather than a homicide.
ii. Rodriguez
With regard to Rodriguez, Monsibais spent a significant amount of time describing the contents of a letter addressed to Rodriguez from a known VCL gang member incarcerated in Corcoran State Prison. Rodriguez points out the letter was written from an individual who was never called to testify and was offered to prove that Rodriguez associated with VCL gang members and shared their intent to commit crimes in furtherance of the gang. Specifically, the letter was offered for the truth of the matter asserted in describing disrespect toward other rival gang members and to show that Rodriguez was a VCL gang member who associated and communicated with other VCL gang members. Rodriguez contends that the letter was both case-specific and testimonial in nature, and the author of the letter did not testify nor was there an applicable exception to the hearsay rule to allow for the letter to be admitted.
Other items found in a search of Rodriguez's house were properly admitted under Sanchez; however, not all items that were admissible clearly identified Rodriguez as a VCL gang member. For instance, a Kansas City Royals hat was found in his room, and "VCL" and the number 13 had been written on the side of a table in the back yard.
Monsibais described four of six offense reports. Monsibais again described the incident in which Rodriguez, Edy and Ruth were arrested for burglary and vandalism that he had previously described to support his finding that Edy was an active gang member, but no details regarding the nature of the offenses were provided. The next incident involved Rodriguez being stopped while riding a bicycle in VCL gang territory and found in possession of a hammer and a knife. Monsibais found the incident relevant because it indicated that Rodriguez armed himself against rival gang members or someone who might disrespect him. Monsibais described an incident in which Rodriguez was contacted with other VCL gang members in a stolen vehicle. Monsibais indicated it was notable that Rodriguez was acting with other gang members because he would know that he could trust the other gang members not to cooperate or provide information to law enforcement.
The last incident involved Rodriguez and two other individuals who assaulted victims at a McDonald's because they would not buy them food. Monsibais explained that a weapon was used in that incident and the two victims were injured during the altercation. With regard to this incident, Deputy Sanchez described his personal interaction with Rodriguez. Rodriguez admitted to Sanchez that he had been a VCL gang associate for two years, and described his gang alias as "Lil Chico."
Monsibais also described incidents of Rodriguez writing "VCL" and being associated with known gang members. The factual details of the writing and many of the incidents were case-specific hearsay; however, there was evidence from Rodriguez's statements to Deputy Sanchez where he admitted that he was a VCL gang member that would remain admissible under Sanchez.
Even if the letter from the prison inmate and much of the evidence presented of the past criminal acts of Edy and Rodriquez were hearsay and improperly admitted under Sanchez, there was sufficient evidence of appellants' gang membership to support the jury's finding of guilt as to the substantive gang offenses and for the true finding of the gang enhancements. Both Edy and Rodriguez made incriminating statements, admitting that they were active gang members and there was sufficient evidence of predicate offenses to establish that VCL was a criminal street gang.
Both People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) and In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) support a finding of sufficient evidence. These cases stand for the proposition that an expert's opinion must be based on facts rooted in evidence. (Ramon, supra, at p. 851; Frank S., supra, at p. 1199; accord, People v. Franklin (2016) 248 Cal.App.4th 938, 950; People v. Rios (2013) 222 Cal.App.4th 542, 574.)
In Frank S., we found the gang enhancement attached to one count of carrying a concealed dirk or dagger unsupported by substantial evidence. (Frank S., supra, 141 Cal.App.4th at pp. 1194-1195.) Unlike this case, Frank S. was alone. He was riding his bike when he failed to stop at a red light and he thereafter provided an officer with a false name. The officer found a knife, a drug bindle and a red bandana on Frank S. After his arrest, Frank S. told the officer he was carrying the knife for protection "against 'the Southerners' because they feel he supports northern street gangs. [He] also stated he has several friends in the northern gangs." (Id. at p. 1195.)
The gang expert simply testified regarding her belief about Frank S.'s intent and how carrying a knife benefitted the Norteños. (Frank S., supra, 141 Cal.App.4th at p. 1199.) Notably absent was "[a]ny evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Ibid.) We explained that "the only other evidence was the minor's statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Ibid.) We concluded that "[the] appellant's criminal history and gang affiliations cannot solely support a finding that a crime is gang-related under section 186.22" (ibid., citing People v. Martinez (2004) 116 Cal.App.4th 753, 761), and we published expressly for that purpose (Frank S., supra, at p. 1195).
In Ramon, we again found a gang enhancement unsupported by substantial evidence. (Ramon, supra, 175 Cal.App.4th at p. 853.) In that case, a sheriff's deputy pulled the defendant over while he was driving a stolen truck in Colonia Bakers gang territory. (Id. at p. 847.) Another man was riding in the truck with the defendant and the deputy found an unregistered gun under the driver's seat. (Ibid.) Relying on the facts that the defendant and his passenger were active Colonia Bakers members and the defendant was pulled over in Colonia Bakers territory, the gang expert testified the stolen vehicle and unregistered firearm benefitted the gang because they were tools to facilitate other crimes and the gang commits crimes. (Id. at pp. 847-848, 849.)
We found the facts on which the expert based his opinion—gang membership and presence in gang territory—were insufficient to support his opinion as to the defendant's intent and, therefore, his opinion did not constitute substantial evidence in support of the jury's finding. (Ramon, supra, 175 Cal.App.4th at pp. 851, 853.) We observed, however, that "[t]he analysis might be different if the expert's opinion had included 'possessing stolen vehicles' as one of the activities of the gang. That did not occur and we will not speculate. [¶] Simply put, in order to sustain the People's position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang. Such a holding would convert section 186.22[, subdivision ](b)(1) into a general intent crime. The statute does not allow that." (Id. at p. 853.)
The evidence in this case does not suffer from the deficiencies that informed our decisions in Ramon and Frank S. An expert may opine, as Monsibais did here, that the crime committed was in association with or benefitted the gang and that opinion may be, as it is here, sufficient to support the enhancement. (People v. Vang (2011) 52 Cal.4th 1038, 1048.) What an expert may not do is base his opinion "'"on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors ...."'" (Id. at p. 1046; accord, People v. Franklin, supra, 248 Cal.App.4th at pp. 948-949; People v. Rios, supra, 222 Cal.App.4th at p. 574; Frank S., supra, 141 Cal.App.4th at p. 1199.) That is, the hypothetical question presented to the expert "must be rooted in evidence of the case being tried ...." (People v. Vang, supra, at p. 1046.)
Here, Monsibais offered his opinion on whether the crimes were committed in association with or for the benefit of the gang based on a hypothetical question that tracked the specific facts of this case shown by the evidence, distinguishing it from Ramon and Frank S. We conclude the facts underlying the crimes and the gang expert's admissible testimony regarding gang culture and motivation are sufficient to support the jury's findings that appellants actively participated in the VCL gang and that the crimes were committed in association with or for the benefit of VCL. Monsibais's testimony regarding gang culture and his response to the prosecution's hypothetical provide a plausible motive to assault Jamie, as it can be inferred that he was a rival gang member in VCL territory, and then to assault German and Elbardo when they came to Jamie's aid. The evidence is sufficient to show that the crimes of attempted voluntary manslaughter, assault with a deadly weapon, assault by force likely to produce great bodily injury, and robbery benefitted VCL. (See People v. Weddington (2016) 246 Cal.App.4th 468, 484 [first prong of gang enhancement is in the disjunctive].)
The inquiry does not end there, however. Rather, appellants claim they were prejudiced by the admission of case-specific hearsay testimony.
3. Prejudice
Having concluded that significant portions of Monsibais's testimony was based on hearsay and some of that hearsay was also testimonial, we evaluate the cumulative effect of these errors under the constitutional standard of review articulated in Chapman, supra, 386 U.S. 18. (People v. Houston (2012) 54 Cal.4th 1186, 1233; People v. Woods (2006) 146 Cal.App.4th 106, 117; see Sanchez, supra, 63 Cal.4th at p. 699; Iraheta, supra, 14 Cal.App.5th at p. 1254.) Under Chapman, we "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez (2012) 54 Cal.4th 643, 663.) "'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86; accord, People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) We consider "not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
Here, appellants argue that admission of Monsibais's testimony relying on hearsay was prejudicial. Acknowledging that there was evidence of appellants' gang affiliation and gang-based motive that was properly admitted, appellants argue the improperly admitted evidence was particularly prejudicial and had a significant impact on the jury. First, they contend that there was not overwhelming evidence of guilt, pointing to the fact that Elbardo's and German's identification testimony was contested and inconsistent. Also, the jury did not find appellants guilty of attempted murder, but instead of the lesser charge of attempted voluntary manslaughter. Further, appellants argue that the keystone of the prosecution's case was that the motive for the attack was gang related, that is, appellants were defending their gang territory from the encroachment of a member of a rival gang. Therefore, the question presented is whether it is clear beyond a reasonable doubt that a rational jury would have reached the same conclusion without the admission of the impermissible case-specific hearsay.
We agree with appellants that the only plausible theory presented regarding the motive for the attack was gang related. Even though a cell phone was taken, the robbery appears to have been peripheral to the primary objective of assaulting a rival gang member found within VCL gang territory. The interaction between the parties prior to the attack was short, and there was no action taken by the victims that would obviously provide an ulterior motive. The incident involved a violent assault and a robbery, which Monsibais explained as some of the primary criminal activities that VCL gang members engaged in. However, there were no overt actions indicating that the crime was gang related inasmuch as at the time of the incident, none of the individuals involved were wearing clothing that would clearly affiliate them with gangs, nor were any words exchanged. The prosecution did not present any evidence how appellants knew that Jamie was a rival gang member.
To the extent this evidence was not overwhelming as to motive, based on the admissible evidence of gang affiliation presented, the jury could make reasonable inferences that the motive for the crime was to benefit the VCL gang. Further, it does not appear that motive was a significant issue at trial. In closing argument, the prosecution spent significant time addressing issues of identification, and very little time describing the motive for which the crime was committed. The prosecution argued that it is common sense that when a group of gang members assault a rival gang member in gang territory, the motive of the assault is gang related.
Regardless, we will address the case-specific hearsay relevant to both Edy and Rodriguez and determine whether its admission was prejudicial.
With regard to Edy, the prosecution presented the strongest case. While there were significant issues regarding the identification of appellants, Elbardo's identification of Edy was quite strong. Elbardo identified Edy on the night of the incident, and law enforcement noted that Elbardo was certain as to his identification of Edy. At trial, Elbardo remained certain of his identification of Edy, and explained that Edy was the assailant who approached Jamie and shook his hand.
Monsibais presented testimony of Edy's prior criminal acts, including two assaults with a deadly weapon, including one in which the victim died, that are serious, violent offenses and similar to the charged offense of attempted murder. It is possible that the jury found the evidence of the prior crimes favorable to the prosecution and that it was therefore more likely that Edy engaged in similar conduct in this case. However, the question is whether the testimony so tainted the jury's decision that they would not have reached the same verdict. In the context of the totality of the circumstances, we find beyond a reasonable doubt that the jury would have found Edy guilty absent the error.
Further, the prosecution argued Edy's presence and involvement in the incident was central to finding him guilty regardless if he was the individual who stabbed German. For the prosecution, the critical issue was identifying Edy as one of the assailants as he would then be found culpable based on aider and abettor liability. Even if the case-specific hearsay would lead the jury to believe that it was more probable that Edy could have committed the stabbing based on his prior acts, the error was harmless as it was not necessary to determine which assailant did so. The evidence presented at trial left little doubt that Edy was one of the assailants and, even if the jury had not been presented evidence of Edy's prior assaults with deadly weapons, there is no reasonable possibility that they would have reached a different verdict with regard to the substantive offenses or the gang enhancements.
The case-specific hearsay admitted with respect to Rodriguez was weaker. Three of the four prior offenses involving Rodriguez did not involve violent crimes. Rather, they were for burglary, vandalism, possession of concealed weapons, and possession of a stolen vehicle. The last incident involved an assault with a weapon, but the court granted the motion to exclude testimony that the weapon used in the assault was a knife.
While Rodriguez was not identified by Elbardo on the night of the incident, the SUV identified by the victims was owned by the mother of Rodriguez's son, and she admitted that he had taken the vehicle for several hours near the time of the incident. Even though the identification evidence as to Rodriguez was weaker, there is no reason to believe that the jury found him guilty based on the inadmissible evidence under Sanchez. Logical inferences based on his possession of the SUV at the time in question and his DNA on the bat and one of the knives created a strong inference that Rodriguez was the driver of the SUV and was involved in the assault. Even though the identification evidence of Rodriguez was weaker, he has not shown that there was reasonable doubt he would have been convicted of the substantive offenses or the gang enhancements without the case-specific testimonial hearsay.
Here, the quantity and quality of the inadmissible gang evidence did not overwhelm the admissible evidence, nor was it likely used by the jury to provide elements of the prosecution's case that were lacking for other evidence. We conclude the error was harmless under either standard of review. (Sanchez, supra, 63 Cal.4th at p. 699; Iraheta, supra, 14 Cal.App.5th at p. 1255.) Therefore, Edy and Rodriguez are not entitled to reversal for Sanchez error.
VIII. Clerical Errors in Abstracts of Judgment
Edy and Daniel seek correction of two clerical errors in the abstracts of judgment. The abstracts of judgment list the gang enhancements under section 186.22, subdivision (b)(1), in the wrong sections. Respondent agrees the clerical errors in Edy's and Daniel's abstracts of judgment must be corrected, and notes similar errors are contained in Rodriguez's abstract of judgment.
"When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties." (People v. Jones (2012) 54 Cal.4th 1, 89.) Upon review, we agree that corrections to the abstracts of judgment should be made to accurately reflect appellants' sentences and direct the trial court to correct these errors.
The first error is that the 10-year gang enhancement under section 186.22, subdivision (b)(1), for count 5, should be moved from section 3 to section 2. Section 2 of the abstract refers to conduct enhancements tied to specific counts, whereas section 3 is for enhancements for prior prison commitments or prison terms. The enhancement for the commission of count 5 for the benefit of a criminal street gang should be removed from section 3 and placed in section 2 as follows:
| COUNT | ENHANCEMENT | TIME IMPOSED |
| 5 | PC 186.22(b)(1) | 10 Years |
Second, appellants note that with regard to count 1, attempted voluntary manslaughter, the one year eight months' gang enhancement term was included in the underlying term in section 1 rather than being placed separately in section 2. The time imposed for count 1 should be one year, and the one year eight months' term for the enhancement should be placed in section 2 as follows:
| COUNT | ENHANCEMENT | TIME IMPOSED |
| 1 | PC 186.22(b)(1) | 1 Year, 8 Months |
In Rodriguez's abstract of judgment, the sentence for count 1 was accurately reflected in section 1. However, the one year eight months' conduct enhancement for section 186.22, subdivision (b)(1), was placed in section 3 rather than section 2. It should be moved to section 2 in the same manner as described above.
DISPOSITION
The matter is remanded to the trial court to issue amended abstracts of judgment based on the instructions set forth above. The trial court shall forward the amended abstracts of judgment to the appropriate authorities. The judgments are otherwise affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.