Opinion
F083695
06-01-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS VALDEZ ESPARZA, Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley Donohue and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF184712A John R. Brownlee, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley Donohue and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, Acting P. J.
INTRODUCTION
Defendant Jose Luis Valdez Esparza appeals his convictions for second degree murder and robbery, asserting the trial court erroneously admitted irrelevant and prejudicial gang evidence, which the People dispute. Additionally, defendant asserts his sentence must be vacated and the matter remanded for retroactive application of recent statutory changes effected by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567). While error occurred in admitting gang evidence, we find it was harmless under any standard. However, as the People concede, defendant is entitled to the retroactive benefit of Senate Bill 567. Defendant's sentence is vacated and matter is remanded to the trial court for full resentencing. In all other respects, we affirm.
PROCEDURAL SUMMARY
On May 17, 2021, the Kern County District Attorney filed an information charging defendant with murder and robbery (Pen. Code, §§ 187, subd. (a); count 1, 212.5, subd. (c); count 2). (Undesignated statutory references are to the Penal Code.) Both counts included allegations that defendant personally used a deadly or dangerous weapon, specifically, a knife. (§ 12022, subd. (b)(1).)
On August 23, 2021, defendant filed a motion in limine seeking to exclude any references to or testimony about gangs. The trial court denied the motion the same day.
On September 13, 2021, a jury found defendant not guilty of first degree murder, but guilty of second degree murder on count 1, and guilty of robbery on count 2. The jury also found true that defendant personally used a deadly or dangerous weapon, namely a knife, within the meaning of section 12022, subdivision (b)(1), in relation to both offenses.
On December 17, 2021, the trial court sentenced defendant to an aggregate term of 20 years to life in prison as follows: on count 1, 15 years to life, plus a one-year enhancement pursuant to section 12022, subdivision (b)(1); and on count 2, three years (the middle term), plus a one-year enhancement pursuant to section 12022, subdivision (b)(1), to be served consecutively to the term on count 1.
FACTUAL SUMMARY
On December 15, 2020, Corey Wayne Thomas was stabbed outside of a motel in Bakersfield. Much of the incident-albeit not the stabbing itself-was captured on a motel surveillance video. Thomas was exercising outside of the motel. Defendant, who was wearing a blue bandana and a blue cap, rode up on a skateboard. The two interacted briefly, although it is unclear what they said to each other as the surveillance video had no sound, and no witnesses testified about the exchange. A woman walked up to Thomas to ask if Thomas had a charger for her ankle monitor. While Thomas's back was turned, defendant took Thomas's jacket off the fence where it was hanging and started walking away. Thomas turned and saw his jacket was being stolen and ran after defendant, kicking defendant in the face. Defendant dropped the jacket, which Thomas retrieved, and then Thomas chased after defendant into an adjacent lot while carrying the jacket, a black Puma bag, and a wireless speaker. Video then shows him retreating to the parking lot, having apparently been stabbed off-screen. The entire conflict lasted approximately 20 seconds.
Thomas was stabbed three or four times with a sharp object. He was transported to Kern County Medical Center, where he died from his injuries. Several of Thomas's injuries were described as defensive wounds by the prosecution's forensic pathologist.
Significant evidence established Thomas, who went by the nickname "Psycho," was known to be a violent and aggressive person. The jury heard evidence of instances in which Thomas threatened a grocery store manager with a hammer; threatened to kill a police officer and his family; acted erratically and aggressively; and threatened people with a knife. He had the words "unstable record" and "5150" tattooed on his face, the latter in reference to Welfare and Institutions Code section 5150, which authorizes involuntary detention for people who are a danger to themselves or others.
There was also ample evidence from which the jury could have concluded Thomas regularly used methamphetamines, including on the day of his death. He was arrested on numerous occasions in possession of drug paraphernalia. Witnesses testified Thomas smoked methamphetamine earlier on the day of his death and was acting erratically and aggressively at the time of the conflict with defendant.
Defendant was not identified immediately after the stabbing. Both defendant and Thomas were homeless at the time and were mostly known to witnesses only by their nicknames. Witnesses could only identify the assailant as "KJ." Searching records of text messages of witnesses present outside the motel during the conflict revealed a text to one of them from an individual identifying himself as "KJ." That text provided the police with a phone number, which allowed the police to identify defendant through the phone company's records. Once the police obtained access to defendant's phone and e-mail records from the phone company, defendant was identified by his nickname, his given name, his mother's street address, his birthdate, and photographs of himself he had sent to other people. Defendant's ex-girlfriend testified defendant indeed went by the name "KJ." After the police learned defendant's identity, an arrest warrant was issued for him. A cell phone found on defendant's person when he was ultimately arrested confirmed the phone records were linked to him, as the same text messages were found on that phone as had been supplied by the phone company.
The fact of defendant stabbing Thomas was not contested. Defendant stayed at the same motel with his former girlfriend in January 2021, approximately a month after the stabbing. While there, he confessed to her he was uncomfortable staying there because he had previously stabbed someone at that specific motel. Further, e-mail and text records showed numerous references to the stabbing, including text messages referencing the stabbing sent the day after it occurred. Defendant's phone also showed Internet searches were conducted seeking news about the stabbing, including searches for the victim by name.
Instead, defendant contended he acted in self-defense. In particular, the defense focused on the fact Thomas began the physical altercation and was known to be a violent and erratic individual. The defense noted Thomas kicked defendant in the face upon seeing his jacket was being taken by defendant. Further, while no weapons were found on or near Thomas after the stabbing, he did have possession of a portable speaker that the defense implied he used to assault defendant. However, other evidence tended to indicate defendant stole more of Thomas's property following the stabbing. The day after the altercation, a Los Angeles Dodgers backpack was located near an overpass for Highway 99, along with several other items, all of which were identified as belonging to defendant. Police also located a black duffel bag with bloodstains on it as well as a sweatshirt that belonged to Thomas.
Defendant was also charged with and tried for the robbery of a department store on March 16, 2021, alongside the murder charge. Two different security personnel from the department store testified defendant entered the store on that day and quickly selected several items bearing insignia of the Los Angeles Dodgers. After walking around the store and briefly standing in line as though he intended to purchase the items, defendant left carrying the items without having paid for them. As he was exiting the store, security personnel contacted defendant. Although he was approximately 20 feet away from the employees at that point, defendant waved a knife over his head. Store employees made no further attempts to intervene and stop defendant. Defendant was stopped by Bakersfield police a short while later wearing a Los Angeles Dodgers sweatshirt he had just stolen from the store. Defendant was also arrested for Thomas's murder on the outstanding arrest warrant at that time.
A variety of gang evidence was admitted, over defendant's objection, during the trial. Detective Jesse Perez, the lead investigator for the Bakersfield police, testified partially as a gang expert and partially as a percipient witness. Perez noted defendant identified himself in text messages as an "active 18th'ster," which Perez asserted was a representation defendant was a member of the 18th Street Gang, a Los Angeles-based street gang. Perez testified the "18th Street criminal street gang are Hispanic gang members or Latin descent or Mexican descent. They associate with the color blue, which the color blue is significant and shows allegiance or ownership for the Mexican Mafia." The Mexican Mafia, according to Perez, is a prison gang which directs the activities of street gangs associated with the Surenos. Perez opined "oftentimes criminal street gangs associate colors or symbols with professional [sports teams] whether it be NFL, NHL, any major league-or major league baseball team. Typically, criminal street gang members who are from the Los Angeles area will often wear a Los Angeles Dodgers hat, as it is the color blue. And the L.A., obviously ... displayed on the hat." Perez stated, in his expert opinion, a text message from defendant saying he did not actually like baseball but just liked the hat was therefore a "direct reference to his gang association."
The prosecution introduced evidence of a text message from defendant describing the fight with Thomas, which said, "'The 25-year-old was trying to act gangster with the real gangster and the real gangster wasn't having it.'" Perez testified this was significant because gang members take particular offense to someone "who claims a particular gang or set and they are not from that set." The prosecution also put on evidence of another text message, which predated Thomas's death, in which defendant signed off as "'KJ, your friendly but deadly 18th Street neighborhood watchman and punisher.'"
Perez opined as to the meaning of certain terms or phrases found in defendant's text messages in reference to the stabbing, including a reference by defendant that he had "put in work on a sucker." According to Perez, that phrase meant someone had done something to "defend their gang"; "putting in work is equivalent of conducting crimes or conducting a murder on behalf of their gang." Specifically, Perez clarified "putting in work basically refers to crimes that are violence [sic], physically violent in nature, assaults, shootings, stabbings, violent robberies, murder. That's what's classified as putting in work." He also opined defendant's e-mail address- SSDMKXV3ST@gmail.com-was an acronym meaning "Southside Dangerous Mobbing Krew 18th Street," in reference to "the 18th Street criminal street gang based out of Los Angeles, California." He referred to the "Dangerous Mobbing Krew" as a "tag banging crew," i.e., a "group of individuals who associate themselves with a particular criminal street gang [and] who tag or commit graffiti offenses for that particular gang."
While defendant had tattoos, he had no gang tattoos. Photos contained in text messages suggested defendant would draw the number 18 on his body in ink, which Perez connected to his gang membership. However, according to Perez, other than defendant holding himself out as a member of the 18th Street Gang, there was no other evidence actually connecting him to that gang. Perez testified the 18th Street Gang was a Los Angeles gang, and there was no evidence defendant ever lived in or near areas in Los Angeles where the gang was located. Similarly, the prosecution presented no evidence the 18th Street Gang had any confirmed affiliations with Bakersfield.
DISCUSSION
I. The Trial Court Erred in Admitting Gang Evidence, but the Error Was
Harmless
A. Standard of Review
The standard of review for claims of error relating to the admissibility of evidence is abuse of discretion. (See, e.g., People v. McCurdy (2014) 59 Cal.4th 1063, 1095; People v. Homick (2012) 55 Cal.4th 816, 859; People v. Waidla (2000) 22 Cal.4th 690, 717.) "'The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason.'" (People v. Martinez (2003) 113 Cal.App.4th 400, 413.)
B. The Trial Court Erred in Admitting Gang Evidence
Defendant contends evidence of his self-proclaimed gang membership should have been excluded because its probative value was substantially outweighed by the risk of undue prejudice and failing to exclude this evidence was an abuse of discretion. We agree with defendant that, in the factual circumstances of this case, the trial court did abuse its discretion.
Under California law, the trial court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice ...." (Evid. Code, § 352.) Undue prejudice refers to the potential for the jury to use a particular fact to draw an impermissible inference or conclusion. (See, e.g., People v. Fontana (2010) 49 Cal.4th 351, 370; Evid. Code, § 1101 [prohibiting character evidence to prove conduct in conformity therewith, but not other facts].) It does not refer to prejudice based on a reasonable and permissible inference for the jury to draw. (See, e.g., People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Mayfield (1997) 14 Cal.4th 668, 750 ["The only form of prejudice defendant suggests is that the jury would infer that he had possession of the knife, but this was a permissible inference and not a basis for exclusion"], abrogated on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
California appellate courts have frequently cautioned about the admission of gang evidence in cases where it has minimal probative value because of its risk of creating undue prejudice against the defendant. (People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran) ["California courts have long recognized the potentially prejudicial effect of gang membership"]; People v. Perez (1981) 114 Cal.App.3d 470, 479 [noting gang evidence "connotes opprobrious implications" and "takes on a sinister meaning"].) "In cases not involving the gang enhancement, [our Supreme Court has] held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; see People v. Cardenas (1982) 31 Cal.3d 897, 904-905.) "Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury," and thus should be "'carefully scrutinize[d].'" (People v. Avitia (2005) 127 Cal.App.4th 185, 192 (Avitia); see People v. Carter (2003) 30 Cal.4th 1166, 1194 ["[E]vidence of a defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged"].) Also, "'"[t]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to the defendant."'" (Avitia, supra, at p. 194.)
Of course, like other evidence, "[g]ang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative." (Avitia, supra, 127 Cal.App.4th at p. 192; see People v. Martinez, supra, 113 Cal.App.4th at p. 413; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) "[W]hile admissible evidence often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias." (Olguin, supra, at p. 1369.)
In Albarran, the defendant was charged with attempted murder following a shooting at a house party. (Albarran, supra, 149 Cal.App.4th at pp. 217-219.) Before trial, the defendant sought to exclude gang evidence as irrelevant. (Id. at p. 219.) The prosecutor argued the purpose of the shooting was to gain respect and enhance reputation within the gang community, and therefore was relevant to motive. (Ibid.) However, the prosecutor admitted he "had no percipient witness or evidence to prove the crime was gang related or motivated, but instead would be relying on testimony of the sheriff's deputy gang expert." (Ibid.) The gang expert testified at a hearing pursuant to Evidence Code section 402 that, while he did not have any actual knowledge of the reason for this shooting, he believed the shooting was gang related because there were two shooters and the crime would intimidate people, which was a general purpose of the gang. (Albarran, at p. 220.) The prosecutor referenced the defendant's membership in the "'dangerous' street gang, the 13 Kings," during argument and referred to his tattoos as gang tattoos showing allegiance to the Mexican Mafia. (Id. at p. 222.) The prosecutor contended the gang evidence was admissible to prove motive and intent. (Id. at p. 226.)
On appeal, the Albarran court held there was insufficient evidence to provide a foundation for believing the shootings were related to an effort to gain respect within the gang. (Albarran, supra, 149 Cal.App.4th at p. 227.) It noted the motive was not apparent from the circumstances of the crime: the shooting occurred at a private birthday party; there was no announcement of a gang-related purpose; the gang members did not brag about their involvement to each other or create graffiti or take credit for the shooting amongst themselves; and although the intended victim was asserted to be a member of another gang, there was no evidence the two gangs were rivals. (Ibid.) Further, the court noted, even if some of the evidence was relevant to the issue of motive and intent, other inflammatory evidence was admitted that had no relationship to the crime. (Id. at pp. 227-228.) In particular, the Albarran court pointed to references to graffiti from the gang indicating they would kill police officers and the references in testimony and argument to the Mexican Mafia as particularly inflammatory and prejudicial, and completely unrelated to the underlying crime. (Ibid.) Overall, the "paramount function of this evidence was to show Albarran's criminal disposition-a fact emphasized in the prosecutor's closing argument when he argued: '[Albarran] is all about being a gang member day in and day out, every day, every night, despite efforts of the deputies.... He's all about it.'" (Id. at p. 228.) For those reasons, the court concluded the evidence should have been excluded. (Ibid.)
The court in Avitia came to a similar conclusion. In that case, the defendant was charged with discharging a firearm in a negligent manner and possession of an assault weapon, even though no gang enhancement was alleged and there was no evidence the crimes were gang related, gang evidence was admitted. (Avitia, supra, 127 Cal.App.4th at p. 187.) Specifically, an officer testified as an expert and noted he had seen gang-related graffiti in Avitia's bedroom (which was not where the crime occurred), and that in his experience, this graffiti was associated with Hispanic gangs and gang members. (Id. at p. 192.) The Avitia court concluded this was error because there was no actual link between the graffiti and the crime. (Id. at p. 193.) Further, the court noted that because the prosecution's explanation for the evidence-that it tended to show the guns were Avitia's-was not actually disputed, the probative value of this evidence was minimal. (Id. at pp. 193-194.) Because the only function of the evidence was to show the defendant's criminal disposition, it should have been excluded. (Id. at p. 194.)
Two other cases-People v. Memory (2010) 182 Cal.App.4th 835 (Memory) and People v. Huynh (2021) 65 Cal.App.5th 969 (Huynh)-also support limiting the admission of gang evidence where it has, at best, only marginal probative value or where there is little or no foundational evidence establishing its relevance. Memory involved a stabbing in the parking lot of a bar by two bikers after a bar fight. (Memory, supra, at pp. 839-848.) Numerous witnesses-most of whom were admittedly intoxicated-told conflicting stories about the chaotic fight that erupted when a number of young men attacked the two bikers. (Ibid.) The trial court admitted myriad examples of gang evidence related to the Jus Brothers motorcycle club, including its affiliation with the Hells Angels, its culture and organization, and its orientation toward being a "one-percenter" motorcycle club and having a "warrior spirit." (Id. at p. 856; see id. at pp. 852-858.) Again, no gang enhancement was charged. (Id. at p. 851.) Admission of the evidence was based on the theory it went to identity, motive, and intent. (Id. at p. 858.) Identity was undisputed, however, and could have been proved by mere admission of the vests the defendants were wearing. (Ibid.) Further, there was insufficient foundational evidence to show the crimes were in any way gang related, or that the defendants' conduct was dictated by adherence to a gang requirement. (Id. at pp. 859-862.) The Court of Appeal, therefore, held the trial court abused its discretion. (Id. at p. 860.)
Huynh, meanwhile, was a murder case stemming from an escalating series of physical altercations between two groups of young men over the course of a week. (Huynh, supra, 65 Cal.App.5th at pp. 973-975.) The trial court permitted expert testimony on gangs and their members' propensity "to retaliate to acts of disrespect with extreme and disproportional violence for the purpose of showing motive for the murder." (Id. at p. 982.) However, again, no gang enhancement was charged, and there was no foundational evidence showing the defendant was a member of a criminal street gang. (Ibid.) The group to which the defendant belonged-Thien Dang-was a social club, and no evidence was introduced that it was a criminal street gang. (Ibid.) Further, the crimes themselves "bore little indicia of typical gang crimes." (Ibid.) There was no evidence the prior conflicts preceding the murder were based on gang rivalry; the other participants in those conflicts were not gang members; no "gang colors, signs, shouts, or announcements were reported"; and there was no known territorial dispute. (Ibid.) Because of this, and because there was no evidence the defendant was actually a member of a criminal street gang, the evidence about gangs was not relevant to motive or intent, and instead was used to imply to the jury "that defendant had a disposition or character for using overwhelming violence in retaliation for disrespect, with no foundational support." (Id. at p. 983.) Again, the court found the evidence should have been excluded. (Ibid.)
Here, as in Albarran, Avitia, Memory, and Huynh, there was little, if any, foundation to support the relevance of this evidence to the case at hand. There was no evidence defendant actually was a member of the 18th Street Gang, except the way he represented himself in text messages. Detective Perez, the prosecution's gang expert, noted he had completed record checks to attempt to locate any police reports or contacts with defendant in the Los Angeles area that might show he was associated with the 18th Street Gang, and found none. There was no evidence presented at trial that the 18th Street Gang had any other presence in Bakersfield besides defendant, or that defendant had ever lived in Los Angeles in or around areas where the 18th Street Gang was known to exist. In short, there was little evidence to suggest defendant was actually a gang member, regardless of what he represented himself to be in text messages.
While the prosecution referenced the gang evidence as going to identity, identity was not actually a disputed issue in the case. The prosecutor acknowledged as much in closing argument, saying, "[I]t's not an ID case because then after that happens, Detective Perez is able to start piecing it all together." Defendant put on no evidence suggesting he was not the person who stabbed Thomas, and instead argued he acted in self-defense, which inherently conceded identity. Searches of defendant's phone and email revealed copious amounts of identifying information, as well as numerous references to the stabbing and Internet searches by defendant attempting to find news about the stabbing. Further, defendant's ex-girlfriend testified he had confessed to her that he previously stabbed someone at that motel. Therefore, there was little need for gang evidence to prove the issue of identity, which was well-established through nongang evidence.
Besides identity, the prosecution argued in closing, and the People argue here, that gang membership went to defendant's motive. However, any claimed relationship between gang affiliations and motive lacks a reasonable foundation. The testimony at trial suggested defendant and Thomas, who were both homeless and frequented the same area, simply did not like each other on a personal level. There was no evidence Thomas was a member of a rival gang, nor was there evidence defendant said anything gang-related in the lead-up to the conflict. While the surveillance video introduced at trial shows the two exchanging some words prior to the conflict, no witnesses testified as to what was said. Instead, the surveillance video clearly shows what precipitated the stabbing: defendant stole Thomas's jacket and tried to walk away with it; Thomas attacked him; and the two began fighting, during which defendant stabbed Thomas. The overwhelming evidence, including video footage, indicated the stabbing was precipitated by defendant's theft of Thomas's property, not by any gang-related motivation.
Scant testimony suggested only the barest of links between defendant's purported association with the 18th Street Gang and a motive to murder Thomas. On recross examination of the prosecution's gang expert, defendant's counsel elicited testimony that a pole near where the fight began had the words "18th Street" crossed off, and a letter K after it. Elsewhere on the pole, "5150" and "Psycho" had been written. Perez testified this could be a sign of disrespect toward the 18th Street Gang, as well as a threat to kill members of that gang, although he stated there could be other meanings as well. Perez also testified the expected reaction of a gang member to this type of disrespect would be to respond violently. However, no evidence was introduced indicating Thomas had written the graffiti on the pole, that defendant saw or knew of the graffiti, or that the graffiti in any way precipitated the conflict. Notably, while this evidence was ultimately argued by the prosecution in closing as motive, it was actually elicited by the defense, in all likelihood reflecting a recognition by the prosecution that it would not be admissible over a defense objection. There is thus little in the record showing any foundation for believing the stabbing was gang motivated, as opposed to being precipitated by the fight that occurred when defendant attempted to steal Thomas's jacket.
Defendant made no motion to strike any portion of Perez's testimony regarding the graffiti on the pole or what it might mean (See De Bock v De Bock (1919) 43 CalApp 283, 302 [Hart, J, concurring] ["[W]here a proper question elicits from a witness improper testimony[,] the remedy is by a motion to strike out such testimony"].) Normally, a party cannot raise an issue on appeal related to the introduction of evidence to which the party did not specifically object at trial. (See People v. Richardson (1959) 51 Cal.2d 445, 447; People v. One 1956 Porsche Convertible (1959) 175 Cal.App.2d 251, 256.) Here, defendant not only did not object to this portion of Perez's testimony, but in fact elicited it and did not move to strike it. However, we find no forfeiture here. Defendant's objections to gang-related evidence were the subject of a motion in limine and repeated objections throughout the trial. Defendant filed a motion requesting a continuing objection on any issues raised via in limine motions resolved against him, which the trial court granted. Since the trial court had already permitted the prosecution to delve into gang-related evidence, the defense cannot be faulted for further exploring that evidence.
Nevertheless, significant references to gang membership were made throughout the case. Perez testified about the 18th Street Gang, a Los Angeles-based criminal street gang. On more than one occasion, Perez described the 18th Street Gang as a Sureno gang allied with the Mexican Mafia, which he described as a prison gang. Perez testified Sureno gang members tend to wear blue, including merchandise depicting the logo for the Los Angeles Dodgers. Since defendant was also contemporaneously tried for a robbery on a separate date involving the theft of items from a department store, which included Los Angeles Dodgers merchandise, this evidence strongly implied defendant was associated with a dangerous prison gang. Perez further extended that association by ascribing particularized gang-related meaning to a phrase used by defendant in a text message that he "put in work on a sucker." Perez testified that to "put in work" specifically meant conducting violent crimes on behalf of a gang. He also offered an explanation of defendant's e-mail address as an acronym for "Southside Dangerous Mobbing Krew 18th Street." These connections between defendant and a dangerous prison gang-of which there was no evidence that he was actually affiliated-increased the risk that the jury would find him guilty by association.
The prosecution specifically invoked defendant's status as a gang member during argument and linked it directly to his character. At trial, the prosecutor asked the jury, "The defendant, who is he? Well, he holds himself out to be an 18th Street Los Angeles criminal street gang member. That's who he identifies himself as." The prosecutor repeated this theme multiple times, defining defendant as a person who was a gang member: "This is the defendant who holds himself out as a gang member"; "Who the defendant is? Well, he's a violent person. He uses a gang member persona. That's how he represents himself, as a criminal street gang member." The prosecution also invoked Perez's testimony about gangs on numerous occasions in closing arguments and reminded the jury Perez had identified the phrase "put in work" as meaning someone commits a violent crime on behalf of their gang. The prosecutor suggested to, and even outright explicitly asked, the jury to associate the dangerousness of prison gangs such as the Mexican Mafia with defendant's character, which is the precise reason gang evidence is intended to be limited. As the Albarran court put it, the "paramount function of this evidence was to show [defendant's] criminal disposition." (Albarran, supra, 149 Cal.App.4th at p. 228.)
The cases cited by the People generally establish gang evidence may be admissible in the appropriate case when such evidence goes to a material issue in that case such as motive or identity but are all readily distinguishable from the current case. All were cases where either a gang enhancement was charged or the defendant's status as a gang member was highly probative of a material issue. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1051 [noting the defendant's gang status was a specific part of the crime, in that he identified himself as a gang member and "attempted to use that status in demanding money from the victim"]; People v. Williams (1997) 16 Cal.4th 153, 193-194 [evidence was highly probative of motive and identity, where the specific reason for the shooting was a gang feud between Bloods and Crips]; People v. Martinez, supra, 113 Cal.App.4th at pp. 412-413 [no error where sufficient foundational evidence established the most likely motive for the crime was a previous homicide committed by members of a rival gang]; People v. Olguin, supra, 31 Cal.App.4th at p. 1370 [gang evidence highly probative, because crime was immediately precipitated by victim crossing out gang graffiti and yelling rival gang name at defendants].) Because the gang evidence in those cases was highly probative of a critical issue, and the foundational evidence establishing a gang-related connection to motive was overwhelming, they bear little resemblance to this case.
In the case before us, there was virtually no foundation to say defendant's gang membership, whether actual or merely represented by defendant, went to any material issue in the case. Identity was not disputed and could have been proven entirely without gang-related evidence. Motive was clearly related to defendant's theft of Thomas's jacket and Thomas's responding attack on defendant. The prosecutor's gang expert even acknowledged he was not able to find any information confirming defendant actually was a member of the 18th Street Gang, which had no Bakersfield presence and was based in Los Angeles, where there was also no evidence defendant had ever lived. The suggestion that defendant's motive was based on any gang membership was supported by only the thinnest reed. Any other use of this evidence was cumulative of other evidence that carried no risk of undue prejudice.
To the extent the People suggest gang membership was relevant to combat the narrative of self-defense, this only exposes the problem of gang evidence. The People argue defendant's "intent to steal from Thomas and then stab him when Thomas defended himself were directly correlated to his attitude as a self-professed gang member." In other words, the People argue on appeal the jury should have been allowed to disbelieve defendant acted in self-defense because defendant was a gang member and gang members tend to be violent. This is, definitionally, character evidence: the People argue defendant was the type of person who would be violent, and therefore he was violent and not acting in self-defense on the day in question, because he was associated with gangs and gangs are violent. No other evidence of defendant's propensity for violence, aside from the crime itself, was introduced to the jury.
To introduce gang evidence and allow expert testimony on gang members' propensity for violence generally, as well as allow the expert to connect defendant to the Mexican Mafia-even though the prosecution admitted there was no actual evidence connecting defendant to any gang, let alone the Mexican Mafia-created a substantial risk the jury would use the information to draw an impermissible inference about defendant's character based not on his own actions, but on the actions of others. This is precisely the kind of situation in which appellate courts have cautioned against the admission of gang evidence, which tends to be inflammatory, when it has little probative value. The trial court abused its discretion in deciding otherwise.
C. The Trial Court's Error Was Harmless
1. Standard of Review
California law directs harmless error review in relation to claims that evidence was inappropriately admitted. (Cal. Const., art. VI, § 13 ["No judgment shall be set aside ... on the ground of . the improper admission . of evidence, . unless . the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"]; see Evid. Code, § 353, subd. (b).) "In a criminal case, a miscarriage of justice can only be found when the reviewing court determines it is reasonably probable that a result more favorable to the defendant would have been reached had the trial court excluded the erroneously admitted evidence." (People v. Lapenias (2021) 67 Cal.App.5th 162, 170; see People v. Lazarus (2015) 238 Cal.App.4th 734, 787, fn. 53; see also People v. Watson (1956) 46 Cal.2d 818, 836.)
The standard enunciated in People v. Watson does not apply where an error is so serious it renders a trial fundamentally unfair and therefore violative of the United States Constitution. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Under Chapman, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Ibid.) A claim that evidentiary error rises to the level of a deprivation of federal due process rights must meet a high burden, however. (People v. Boyette (2002) 29 Cal.4th 381, 428; Albarran, supra, 149 Cal.App.4th at p. 229.) The question under federal law is whether the evidentiary error "'rendered the trial so arbitrary and fundamentally unfair that it violated federal due process,'" and compliance (or lack thereof) with state evidentiary rules is neither necessary nor sufficient to establish a federal due process violation. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process." (Ibid.) Even in that case, the evidence must "'be of such quality as necessarily prevents a fair trial.'" (Ibid.)
Defendant argues the evidence was so pervasive here that it deprived him of due process, thus implicating the Chapman standard. We do not agree. Trial lasted seven days. The prosecution called upwards of two dozen witnesses. Only one of them- Perez-testified about gangs. The prosecution presented 68 exhibits at trial. Of those, only a handful of messages and pictures reflected any relationship between defendant and the 18th Street Gang. Considered in view of the totality of the record, the amount of gang evidence was not so overwhelming that it fundamentally denied defendant a fair trial, and therefore, violated due process. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
2. Any Error Was Harmless Beyond a Reasonable Doubt, and the Jury Would Not Have Reached a Different Outcome
Even if we were to conclude the Chapman standard applied, we would find the error in admitting gang evidence here was harmless beyond a reasonable doubt. There was copious evidence defendant stabbed Thomas, and the defense rested solely on selfdefense. However, defendant was charged with first degree murder. The only theory of first degree murder on which the jury was instructed was that the murder was willful, deliberate, and premeditated. The prosecution's sole theory of first degree murder was that this was a gang-motivated murder in which defendant intentionally provoked Thomas into a fight by stealing his property in order to have an excuse or opportunity to stab him. However, it does not appear the jury was persuaded by this argument, as the jury did not convict defendant of first degree murder, but rather second degree murder, thereby suggesting it rejected the prosecution's gang-related theory of the case.
Further, the evidence was overwhelming from which the jury could conclude defendant did not act in self-defense. The crime itself escalated from a fistfight into defendant stabbing Thomas four times within a matter of seconds, as the entire encounter only lasted approximately 20 seconds. There was no evidence Thomas was armed, and it was reasonable for the jury to reject the implication that Thomas holding a speaker was a sufficient threat to justify stabbing him. Defendant fled the scene after the stabbing and was not captured for approximately three months after the stabbing. The jury was instructed defendant's flight could be considered as evidence defendant was aware of his guilt. Defendant also took the time to steal Thomas's other belongings after he stabbed Thomas, suggesting defendant was not in fear for his life at the time. There was unrebutted evidence defendant bragged about the stabbing after it occurred, again indicating defendant did not feel threatened or scared for his life. Further, the jury was instructed the right to self-defense cannot be contrived, and defendant was not permitted to provoke a fight in order to create an excuse to use force. The video evidence is clear that the act precipitating the fight was defendant's theft from Thomas; the entire fight and stabbing following the theft only lasted approximately 20 seconds. We are convinced beyond a reasonable doubt the jury would have rejected defendant's self-defense argument with or without the gang evidence. It appears the jury placed little weight on the gang evidence, as the prosecution used the gang evidence as its sole theory of first degree murder, which the jury rejected.
II. The Parties Agree Defendant Must Be Resentenced
Defendant argues he must be resentenced under Senate Bill 567's recent amendments to section 1170, subdivision (b), which is retroactive and creates a presumption of a low term for defendants under 26 years of age. (Stats. 2021, ch. 731, § 1.3 [adding § 1170, subd. (b)(6)(B)].) The People concede the amendments to section 1170, subdivision (b) apply to this case, and defendant must be resentenced. We agree with the parties. (See People v. Banner (2022) 77 Cal.App.5th 226, 240.) Therefore, defendant's sentence will be vacated and this case will be remanded to the trial court for full resentencing. (People v. Gerson (2022) 80 Cal.App.5th 1067, 1096 [vacating sentence and remanding for consideration of the new low-term presumption in § 1170, subd. (b)(6)]; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [same].)
Defendant also contends he is entitled to argue under Senate Bill No. 81 (20212022 Reg. Sess.) that one of the weapon enhancements should be stricken. The People agree. Since the trial court has not yet had an opportunity to consider this issue, we offer no opinion at the present time.
DISPOSITION
Defendant's sentence is vacated. The matter is remanded to the trial court for full resentencing consistent with the retroactive changes to section 1170, subdivision (b). In all other respects, the judgment is affirmed.
WE CONCUR: SMITH, J., DE SANTOS, J.