Opinion
C077398
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. PEDRO MARCOS GOMEZ-VIGIL III et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-121078B, 62-121078C & 62-121078F)
Codefendants Pedro Marcos Gomez-Vigil III, Bronson Arturo Baldwin, and Danny Miguel Baldwin, Jr., appeal from their convictions arising from a police raid of a drug operation and a subsequent incident in which an informant in the police raid was identified as a "snitch" on Facebook. Defendants challenge the sufficiency of the evidence supporting their various convictions and sentencing enhancements, claim the trial court erred in admitting expert testimony, assert counsel rendered ineffective assistance, and challenge some of their probation conditions as unconstitutionally overbroad.
As defendants Bronson Baldwin and Danny Baldwin share a common surname, we refer to them by their first names, Bronson and Danny, respectively.
We conclude Bronson's and Danny's convictions for dissuading a witness, threatening force against a witness, and criminal threats are supported by substantial evidence, as are the gang enhancements. However, Gomez-Vigil's convictions for dissuading a witness, threatening force against a witness, and criminal threats fail for insufficient evidence, as do his and Bronson's convictions for active participation in a criminal street gang. Additionally, aside from a single challenge premised on evidence admitted over defendants' objection resulting in harmless error, we conclude defendants forfeited their challenges to admission of expert testimony, and defendants have failed to establish that counsel rendered ineffective assistance in failing to object to or strike testimony. We will also modify the probation conditions the parties agree are unconstitutionally overbroad. Otherwise, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Events of April 10 , 2013
With reason to believe Elvis Eltagonde, a validated gang member, was on probation and had illegal drugs in his house, Roseville police went to his house to conduct a search on April 10, 2013. Police saw a car parked in front of Eltagonde's house with two people inside (Danny and Gomez-Vigil) and another person (Bronson) approaching the car from the house. The passenger, Gomez-Vigil, was on searchable probation, so officers searched him and found two knives in his pocket, one of which was a wood-handled, silver-colored pocketknife with a locked blade with a carving on the handle that read "X14 DPH." (As indicated at trial, DPH stands for Del Paso Heights, and symbols associated with the number 14 (i.e., XIV or X4) are common identifiers for the Norteño criminal street gang.) At the time, Gomez-Vigil was wearing red shoelaces and a red belt, and carried a red bandana in his pocket.
In the course of this search of the others, an officer discovered two Percocet pills in Danny's pants pocket. Officers also noted Bronson wore red shoelaces and had red stitching on his shorts.
Police then conducted the probation search of Eltagonde's house. While the search was ongoing, Savannah Baumann, who along with her boyfriend Mariano Vergara had unwittingly been involved in a police effort to set up an undercover drug deal with Eltagonde, arrived at the house. She informed police that drugs could be found in a dog food bag in Eltagonde's room. Officers found 4.8 grams of heroin and a digital scale in the dog food bag in Eltagonde's room in the house. Subsequent Facebook Posts
Baumann and Eltagonde dated for several years, and she knew Danny and Bronson, who are Eltagonde's cousins, and had previously lived with them at the cousins' grandmother's home.
Eltagonde and Vergara were tried jointly with defendants, but this appeal addresses only those claims raised by Danny, Bronson, and Gomez-Vigil.
There are various spelling and grammatical errors in the original Facebook posts and comments, which are retained in our factual account.
On May 29, 2013, Baumann noticed Bronson had posted on Facebook the following comment: "If any one knows Savannah Baumann don't be fucking with her she's a snitch. Got paper work on her. Justed lookin out for every one." Baumann was "tagged" in the post. Baumann's half sister, username "Stacy Marie," responded to Bronson's post, stating "Let's see it ???? I'm sure you can inbox it right ????" and "Take pics and post it." Bronson posted, "I got all what the paper work right here." Another individual, username "Dre CaliKing Williams," posted a comment in the thread, reading "Allbad but that's how it goes down," to which Bronson responded, "Yup." Within 24 hours of posting his comment, Bronson removed the post and the associated comments at his mother's request.
Testimony was presented that a Facebook user can hide or delete comments, or can delete an entire thread initiated from a post he or she made.
On May 31, 2013, Danny posted on Facebook: "For all you fucking knocks who wanted to see it on paper! Bitch was fast to talk once she and her tweaker ass family got caught up!! Police ain't shit without snitches!!" Facebook users with the screen names "Hernandez Richard" and "Dre CaliKing Williams" were tagged in the post. Attached to the post was an image of a document with several names listed, including, among others, Danny, Eltagonde, Gomez-Vigil (whose birthdate alone was unredacted), Vergara, Baumann, and Bronson. Another image was attached to the post, which included a portion of the police report summarizing Baumann's statement to the police regarding the location of the drugs in Eltagonde's home. Eleven users "liked" the post, and several users posted comments of their own in response to Danny's post. Among the comments were a call to "Smash that bitch!!!!" and that "If u snitch you should expect to get a visit." Both comments were posted by other users not identified as defendants in this action. Both comments also received "likes" from unidentified users. There was also a comment from someone with the user name "Juan Negrete," who wrote, "Damn bruh thats no bueno, She chose to speak when she didnt had to. Rata written all over her." Danny responded to that comment, "Yup! She thought it was gonna get her outta trouble only to realize it didn't!! Ha stupid bitch." There was evidence presented that at the time of the posts, there was no Internet access in the house where Danny lived.
Penal Code section 1054.2 mandates that no attorney "disclose or permit to be disclosed to a defendant . . . or anyone else, the address or telephone number of a victim or witness whose name is disclosed to the attorney [by the prosecutor] unless specifically permitted to do so by the court after a hearing and a showing of good cause." (Pen. Code, § 1054.2, subd. (a); further undesignated statutory references are to this code).
It was stipulated at trial that, "The postings of the police report from the April 10th, 2013, drug case were included in the discovery provided by the district attorney's office to [a law firm] which had been appointed to represent defendant Pedro GomezVigil at that time. The police reports were provided to the defense firm on May 1st, 2013."
Baumann saw the Facebook posts on May 31, while she was in the hospital after giving birth on May 29. The posts, particularly comments threatening to beat her up, made her "physically upset." She called her mother from the hospital, crying and "hysterically yelling" because she was afraid. Baumann understood snitches could be beaten up, killed, or spoken about badly, and that gang members do not like to associate with snitches. While she had not personally seen or heard of anyone being injured or killed, she knew from television shows that such ramifications were possible. She began crying when she saw the posts, and she was afraid because she could not do anything about it. Baumann called Eltagonde's mother to have the posts taken down.
Baumann's mother called the police, who met her and Baumann at the hospital on May 31. At that time, Baumann declined to file a police report because Vergara, the baby's father, was hesitant. The responding police officer also did not feel that Baumann was in imminent danger at that time. While she did later file a police report on June 11, Baumann did not seek a restraining order against defendants. At no time between when the posts were made on Facebook and the end of June 2013 did anyone threaten her or harm her. By the time she made the report to the police, Bronson had deleted or blocked his Facebook post.
Baumann testified at trial that Danny's comments were not threatening, but that "by him posting that [(the police report)], that put [her] life, [her] child's life in danger, because other people were threatening [her]. So by him putting that out there, yes, that is kind of threatening . . . ." She claimed he knew or should have known that posting the report would cause people to threaten her. She also did not feel threatened by Bronson, and acknowledged his post did not suggest that anyone take action against her. But, she claimed that by making the post, other people would feel they should do something about it.
Another witness testified about an incident a couple of years earlier in which he reported a fight with Gomez-Vigil and Bronson to the school resource officer, and was later punched by Gomez-Vigil in retaliation. He testified that snitches "get beat." He also testified he was concerned for his family with his current testimony because two of his car windows had recently been broken at his house.
Expert Testimony at Trial
Gang experts provided testimony that Eltagonde, Baumann, Gomez-Vigil, and Bronson were gang members, while Danny was a gang associate. All identified as or with the Norteño gang, which is the predominant gang in Roseville. Additionally, an expert testified that the subgroup known as the Bay Area Norteños came to Roseville when Eltagonde moved there. Experts identified that Norteños engaged in assaults, burglaries, robberies, drug sales, and witness intimidation.
Officers also testified at trial that the Facebook posts, while not overt threats, were intimidation and threats "based on the totality of the circumstances in gang culture." In reaching this conclusion, officers relied not only on the initial posts made by Danny or Bronson, but also on the comments made by other Facebook users in relation to the posts. An officer opined that by posting that Baumann was a snitch and posting the paperwork, defendants "started an outing of the one they don't like as a snitch . . . ." The officer also indicated Bronson's response of "Yup" to a comment in the thread on his post reading, "Allbad but that's how it goes down," is "a subtle threat" that reaffirms how gang culture deals with someone who helps the police.
One officer expressly testified he believed Danny's and Bronson's Facebook posts were witness intimidation. He testified the term "snitch" "has a lot more repercussions" in the gang culture. He opined the purpose of the Facebook posts was to out Baumann as a snitch to people she knows. He also testified there are popular sayings within gang culture that "snitches get stitches or snitches end up in ditches." While the officer acknowledged the posts did not look "really threatening" on their face, he opined that "if you consider the audience, the natural and probable result is that [Baumann] will be harmed in some way because she's being outed as a snitch." He also testified that the posts not only intimidated Baumann to prevent her from testifying in the case based on the April 10 events but also served as a message to anyone else that may cooperate with the police that they would be identified as snitches. He explained, "[t]he circumstances are that you have Norteño gang members posting outing [Baumann] as a snitch, and then more Norteño gang members threatening her."
Convictions and Sentencing
Based on the search on April 10, 2013, Gomez-Vigil was charged in count four with carrying a switchblade knife (§ 21510, subd. (a)), and it was alleged he committed the offense for the benefit of a street gang warranting a sentencing enhancement (§186.22, subd. (b)(1)). Danny was charged in count five with possession of a controlled substance—Percocet. (Health & Saf. Code, § 11350, subd. (a).)
Based on the Facebook posts, Bronson and Gomez-Vigil were charged in count seven with active participation in a criminal street gang. (§186.22, subd. (a).) Danny, Bronson, and Gomez-Vigil were charged in count eight with dissuading a witness from testifying. (§136.1, subd. (a)(1).) All three were also charged in count nine with threatening a witness with force or violence. (§ 140, subd. (a).) In count ten, they were charged with issuing criminal threats to Baumann. (§ 422.) As to counts eight, nine, and ten, it was further alleged defendants committed these offenses for the benefit of a street gang warranting a sentencing enhancement. (§ 186.22, subd. (b)(1).) It was additionally alleged that both Danny and Gomez-Vigil were released on bail or their own recognizance when they committed the offenses on May 31, 2013.
At the conclusion of the prosecution's case-in-chief, Gomez-Vigil unsuccessfully moved for acquittal on counts seven through ten pursuant to section 1118.1. The jury found defendants guilty on all charges, and sustained the gang enhancement allegations. Subsequently, the trial court sustained the allegations Danny and Gomez-Vigil were released on bail or their own recognizance when they committed the May 31, 2013 offenses. The trial court found not true an allegation that Gomez-Vigil had a prior serious or violent felony or juvenile adjudication.
The trial court sentenced Danny to formal probation for a period of five years. Among the terms of his probation, Danny is "not to associate with any individuals whom [he] met while in any of the county institutions. [Danny] is not to associate with any member of any gang[,] ' "gang" as defined in Penal Code Section[] 186.22[, subdivisions] (e) and (f)[,]' as directed by the probation officer." He was also prohibited from "appear[ing] at any Court proceeding unless [he is] a party to, or defendant in, a criminal action, or subpoenaed as a witness."
The trial court sentenced Bronson to the midterm of two years for dissuading a witness plus 10 years for the gang enhancement, stayed sentencing on the remaining counts pursuant to section 654, suspended execution of the sentence, and placed Bronson on formal probation for a period of five years. Among the terms of his probation, Bronson is "not to associate with any individuals whom [he] met while in any of the county institutions. [Bronson] is not to associate with any member of any gang[,] ' "gang" as defined in Penal Code Section[] 186.22[, subdivisions] (e) and (f)[,]' as directed by the probation officer." He was also prohibited from "appear[ing] at any Court proceeding unless [he is] a party to, or defendant in, a criminal action, or subpoenaed as a witness."
The trial court failed to impose sentencing for Bronson on counts seven, nine, and ten before staying execution of those sentences pursuant to section 654 as it ought to have done. (People v. Duff (2010) 50 Cal.4th 787, 796; see People v. Alford (2010) 180 Cal.App.4th 1463, 1469.) Based on our review of the record, and the trial court's analysis weighing the factors in mitigation and aggravation before selecting the middle term for count eight, "undoubtedly" the trial court would also have imposed the middle term for counts seven, nine, and ten. (Alford, at p. 1473.) However, as discussed in part 1.5, post, we conclude there is insufficient evidence to support Bronson's conviction for count seven. Accordingly, we modify the judgment to impose the middle term of three years for count nine, and the middle term of two years for count ten.
These probation terms were included in the order granting probation and judgment for monetary penalties filed on September 3, 2014. The trial court subsequently amended the presentence custody credit award on September 5, 2014. An amended order granting probation and judgment for monetary penalties reflecting this adjustment to the credit award was filed September 5, 2014. In error, this amended order does not appear to contain the probation conditions challenged here. As the trial court did not alter the probation conditions when it adjusted the credit award, correction of the order granting probation and judgment for monetary penalties is required. (See People v. Mitchell (2001) 26 Cal.4th 181, 187-188.) The corrected order shall reflect the special gang-related probation conditions contained in the September 3, 2014 order, as modified by this court's instant disposition.
The trial court sentenced Gomez-Vigil to the midterm of two years for dissuading a witness plus a consecutive 10 years for the gang enhancement, and an additional consecutive term of eight months for possession of a switchblade knife plus a consecutive two years for the on-bail enhancement. The trial court stayed sentencing on the remaining counts pursuant to section 654. The trial court suspended execution of Gomez-Vigil's sentence and placed him on formal probation for a period of five years. As part of the terms of his probation, Gomez-Vigil was ordered to "not appear at any court proceeding, unless a party to or defendant in a criminal action or subpoenaed as a witness, unless . . . preapproved by probation."
As discussed in footnote 7, ante, in relation to Bronson, the trial court ought to have imposed sentences for Gomez-Vigil for his convictions for counts eight, nine, and ten. (People v. Duff, supra, 50 Cal.4th at p. 796; see People v. Alford, supra, 180 Cal.App.4th at p. 1469.) However, because, as discussed below, we conclude there is insufficient evidence to support those convictions as to defendant Gomez-Vigil, we need not address the trial court's failure to impose sentencing as to this defendant.
It appears this probation condition was included along with at least four other special probation conditions, likely the same seven special conditions imposed on Danny and Bronson. However, that list of conditions is not contained in the record before this court. Neither is this condition, orally imposed by the trial court, reflected in the order granting probation and judgment for monetary penalties. Accordingly, to the extent these special conditions were imposed on Gomez-Vigil by the trial court, the order must be corrected by the clerk of the trial court, as modified by this court's instant disposition.
DISCUSSION
As discussed below, we reject Bronson's and Danny's contentions that their convictions for dissuading a witness, threatening force against a witness, and criminal threats and related gang enhancements are not supported by substantial evidence. We also reject Gomez-Vigil's challenge to the gang enhancement related to his possession of a switchblade knife. We agree, however, that insufficient evidence supports Gomez-Vigil's and Bronson's convictions for active participation in a street gang and Gomez-Vigil's convictions for the crimes related to the Facebook posts. We also deem defendants' challenges to the admission of certain expert testimony forfeited by their failure to object below except for a single instance of error by the trial court which we conclude was harmless. In a related vein, we reject their claims that counsel rendered ineffective assistance for failing to object to the admission of that evidence. We do, however, agree with defendants' contentions that the probation conditions prohibiting attendance at court proceedings and interaction with anyone met while incarcerated are unconstitutionally overbroad. Therefore, we will modify the conditions, reverse Gomez-Vigil's convictions for dissuading a witness, threatening force against a witness, and criminal threats, and reverse Gomez-Vigil's and Bronson's convictions for active participation in a street gang. Otherwise, we will affirm the judgments.
1.0 Sufficiency of the Evidence
We first address defendants' contentions that there is insufficient evidence to support their convictions for dissuading a witness, threatening force against a witness, and criminal threats. Based on the evidence presented at trial regarding the surrounding circumstances, we conclude the Facebook posts by Danny and Bronson are substantial evidence to support their convictions for these crimes. However, we conclude there is insufficient evidence to support Gomez-Vigil's convictions as an aider and abettor in those crimes. As a result, the gang enhancements attached to Gomez-Vigil's convictions for those crimes also must be reversed. Additionally, as a result of the reversal of Gomez-Vigil's convictions for dissuading a witness, threatening force against a witness, and criminal threats, we conclude there is insufficient evidence to support his and Bronson's convictions for active participation in a street gang. With respect to defendants' respective challenges to the sufficiency of the evidence supporting the remaining gang enhancements, we conclude those enhancements are supported by substantial evidence.
1.1 Standard of Review
In considering a claim challenging the sufficiency of the evidence in a criminal case, " ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) However, we do not determine "whether guilt is established beyond a reasonable doubt" but only "whether there is substantial evidence to support the conclusion of the trier of fact . . . ." (People v. Redmond (1969) 71 Cal.2d 745, 755.) In this inquiry, "[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction." (Ibid.) However, " 'circumstantial evidence and any reasonable inferences drawn from that evidence' " may be substantial evidence to support the conviction. (People v. Clark (2011) 52 Cal.4th 856, 943.) And while " 'a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' [Citation.] ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Casares (2016) 62 Cal.4th 808, 823-824 (Casares).) Thus, reversal is not warranted unless there is no hypothesis on which there exists substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We apply this same standard of review in considering a challenge to the sufficiency of the evidence supporting a sentencing enhancement (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar)) and in determining whether a trial court erred in denying a motion for acquittal pursuant to section 1118.1 (People v. Whisenhunt (2008) 44 Cal.4th 174, 200).
1.2 Dissuading a Witness
Danny, Bronson, and Gomez-Vigil were all convicted of dissuading a witness based on the Facebook posts, premised on the theory that Danny and Bronson each engaged in the criminal act and that Gomez-Vigil aided and abetted the act by providing them with the police report. On appeal, Bronson and Danny claim there is insufficient evidence they harbored the requisite intent. Gomez-Vigil contends there is insufficient evidence to support his conviction either because if the principals are not guilty neither is the aider and abettor, or because there is a lack of substantial evidence from which the jury could reasonably infer that when he provided the police report to Danny, if indeed he did so, he did so with the knowledge of Danny's criminal purpose and with the specific intent to commit, encourage, or facilitate Danny's commission of the offense. We disagree with Danny and Bronson, but we conclude there is insufficient evidence to support Gomez-Vigil's conviction.
Section 136.1, subdivision (a)(2) prohibits "[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." For purposes of section 136.1, "malice" means, "an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice." (§ 136, subd. (1).) Because this is a specific intent crime (People v. Brenner (1992) 5 Cal.App.4th 335, 339), to prove defendants were guilty of dissuading a witness, the People had to show " 'defendant[s'] acts or statements [were] intended to affect or influence a potential witness's or victim's testimony or acts . . . ' " (People v. Wahidi (2013) 222 Cal.App.4th 802, 806). The statement itself, as well as the circumstances in which the statement is made, must be considered in determining whether the statement is intended to dissuade a witness from testifying. (Ibid.) Additionally, where "the defendant[s'] actions or statements are ambiguous, but reasonably may be interpreted as intending to achieve the future consequence of dissuading the witness from testifying, the offense has been committed." (Ibid.)
Here, with respect to Danny and Bronson, their Facebook posts identifying Baumann as a snitch may not have expressly stated that Baumann should not testify in any criminal proceedings or directed others to dissuade Baumann from testifying. However, there was evidence presented that Danny and Bronson were aware Baumann had cooperated with the police: Bronson wrote that he had "paper work" on her and Danny posted images of the report identifying Baumann as an informant and commented that "Police ain't shit without snitches!!" Based on this knowledge, it was reasonable for the jury to infer Bronson and Danny anticipated Baumann would also be a witness against Eltagonde at any subsequent criminal judicial proceeding. There was also evidence presented that Bronson was a gang member and that Danny was a gang associate, and that Baumann had been a gang associate or member. There was also evidence of a general understanding among gang members that within gang culture being a "snitch" could lead to retaliation, including physical harm. Indeed, an officer testified that common gang phrases included that "snitches get stitches" and "snitches end up in ditches," Baumann testified she knew snitches could be hurt or killed, and another witness testified snitches would be beaten. A reasonable juror could infer that as gang members and gang associates, Bronson and Danny knew that by identifying Baumann as a snitch they would be placing her at risk of physical retaliation, and that they knew she would understand that risk as well. Additionally, she was tagged in Bronson's initial post, which made it likely that she and their mutual friends would see the post and related comments. A jury could reasonably infer from this evidence that in making the Facebook posts it was Bronson's and Danny's intent to dissuade Baumann from participating in any further judicial proceeding. Accordingly, we conclude there is substantial evidence to support Bronson's and Danny's convictions for dissuading a witness.
However, with respect to Gomez-Vigil, " '[a] person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' " (People v. Leon (2008) 161 Cal.App.4th 149, 157.) Thus, the requisite mental state for liability as an aider and abettor is that the aider and abettor " ' "act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." ' " (People v. Atkins (2001) 25 Cal.4th 76, 92.) Additionally, that intent must have been "formed prior to or during 'commission' of that offense." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
At trial, an officer testified Danny had told him "he got a copy of the [police] report from [Gomez-Vigil]." He additionally testified on cross-examination that Danny had told him Gomez-Vigil "gave it to him." However, the officer also testified he had not asked Danny when or under what circumstances he obtained the report from Gomez-Vigil. This testimony, in addition to the stipulation that the report had been provided to Gomez-Vigil's attorney in discovery about a month earlier and the fact that Gomez-Vigil's birth date was not redacted from the report, are the entirety of the evidence linking Gomez-Vigil to this crime. There was no evidence as to when Gomez-Vigil provided the report to Danny or Bronson, why he had done so, or if he had any knowledge or reason to expect Danny or Bronson would post comments or the report on Facebook. In the absence of evidence indicating Gomez-Vigil's intent in providing the report to Danny, there is insufficient evidence to support Gomez-Vigil's conviction for dissuading a witness.
1.3 Threatening Force Against a Witness
Defendants contend the Facebook posts are insufficient to support their convictions for threatening force against a witness because no force or violence is threatened and no reasonable person would construe the posts as threats. As he argued with respect to his conviction for dissuading a witness, Gomez-Vigil contends his conviction for threatening force against a witness fails either because the convictions against Danny and Bronson do not survive or because there is insufficient evidence he facilitated their crimes or acted in concert with them.
Section 140, subdivision (a) provides in relevant part that it is a crime to "willfully . . . threaten[] to use force or violence upon the person of a witness to . . . a crime . . . because the witness . . . has provided any assistance or information to a law enforcement officer . . . ." The statute "appl[ies] only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, 'a serious expression of an intent to commit an act of unlawful violence . . . .' " (People v. Lowery (2011) 52 Cal.4th 419, 427 (Lowery).) It is not required that the threat be communicated to the victim or that the defendant commit the act with the specific intent to intimidate the victim. (Id. at p. 426.)
While it is true the Facebook posts of Bronson and Danny do not expressly convey a threat to apply force or violence, we do not look merely to the words used but also to the context and surrounding circumstances in determining whether the posts could reasonably be construed as a threat to commit an act of unlawful violence. Here, as noted in our discussion of defendants' convictions for dissuading a witness, there was ample evidence presented that Bronson, Danny, and Baumann had all been engaged in the gang culture wherein it was commonly understood that someone identified as a snitch could reasonably expect to face violent physical retaliation for cooperating with the police. Based on the evidence presented, a jury could reasonably conclude that the Facebook posts identifying Baumann as a snitch were "true threats" and that a person in Baumann's position would construe them as such. (Lowery, supra, 52 Cal.4th at p. 427.) Accordingly, we conclude there is substantial evidence to support Bronson's and Danny's convictions for threatening force against a witness.
Our analysis relative to Gomez-Vigil, however, leads to a different conclusion. As with the dissuasion of a witness conviction, for Gomez-Vigil to be convicted of threatening force against a witness as an aider and abettor, he had to "act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.) Here, there was simply a paucity of evidence from which a jury could reasonably infer Gomez-Vigil's intent. Accordingly, we conclude there is insufficient evidence to support Gomez-Vigil's conviction for threatening force against a witness.
1.4 Criminal Threat
Similarly, all three defendants contend there is insufficient evidence to support their convictions of issuing criminal threats. Danny and Bronson claim there is insufficient evidence the Facebook posts were threats, were intended as threats, were perceived by Baumann as threats, or placed her in sustained fear. Gomez-Vigil argues again that his conviction cannot stand if Danny's or Bronson's convictions fall, and that there is insufficient evidence he facilitated the crimes or acted in concert with Danny and Bronson. We disagree with Danny and Bronson, but we conclude there is insufficient evidence to support Gomez-Vigil's conviction of issuing criminal threats.
To prove an offense of making criminal threats under section 422, the People must show " '(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat—which may be "made verbally, in writing, or by means of an electronic communication device"—was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat," (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' " (In re George T. (2004) 33 Cal.4th 620, 630.) Therefore, an alleged threat must " 'be examined "on its face and under the circumstances in which it was made." ' " (People v. Felix (2001) 92 Cal.App.4th 905, 914, italics added.) "A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning." (George T., supra, 33 Cal.4th at p. 635.) These surrounding circumstances may include the prior relationship of the parties and the manner in which communication was made. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.)
For example, People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341, found the defendant's comment—that the victim had messed up his brother's trial with her testimony and that he would talk to his fellow gang members—constituted a criminal threat. As the court explained, "[T]he jury was free to interpret the words spoken from all of the surrounding circumstances of the case. [Mendoza] and [the victim] had known each other for several years. They knew each other because of their mutual membership or association in [a] criminal street gang . . . . Two days earlier [the victim] had given damaging testimony against [Mendoza's] brother at his preliminary hearing where he was charged with murdering a police officer. [The victim] also knew [Mendoza's] brother to be a . . . gang member. [Mendoza's] words informed [the victim] she had 'fucked up' his brother's trial and he was going to talk to his fellow gang members. The fact [the victim] became fearful for her life implied she knew [the] gang members were capable of violence and would not hesitate to retaliate against her for hurting a fellow gang member and to prevent her from giving further testimony at his trial. A rational juror could reasonably find a threat to bring a person to the attention of a criminal street gang as someone who has 'ratted' on a fellow gang member presents a serious danger of death or great bodily injury." (Id. at p. 1341.) This is so regardless of the possibility, as recognized in Mendoza, that the words could mean something innocuous if, as was the case in Mendoza, based on their shared personal history and involvement in the gang, the victim knew the words meant they would retaliate against her with violence because of her testimony. (Ibid.) Additionally, even though the victim was not initially frightened by the comments, and only became frightened after another gang member parked in front of her house, watched her, and communicated to her sister that he was looking for her, Mendoza held there was substantial evidence the victim perceived the comments as threats and of her sustained fear. (Id. at pp. 1341-1342.)
" 'When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts.' " (Casares, supra, 62 Cal.4th at p. 828.) Nonetheless, we find Mendoza instructive here with regard to whether Bronson's and Danny's Facebook posts constitute sufficient evidence of a criminal threat. Given the parties' mutual personal history as gang associates and gang members, and in light of the expert and other testimony establishing the general cultural standard in gang culture that those who snitch on gang members are susceptible to physical retaliation, it was reasonable for the jury to conclude Danny and Bronson intended their Facebook posts—identifying Baumann as a snitch to their fellow gang members and associates—to convey a threat of physical harm. Additionally, in light of those circumstances, it was reasonable for Baumann to be placed in sustained fear for herself and her newborn child as a result of the Facebook posts, especially once other gang members and associates began commenting with more expressly threatening language in response to the posts. Additionally, there was evidence that Baumann was crying and frightened as a result of the posts, to the point that she called her mother for assistance and was still afraid weeks later when she made the report to the police. And though, when considered in a vacuum, the language of Danny's and Bronson's Facebook posts may seem comparatively inert, in light of the evidence regarding gang culture, it was reasonable for the jury to conclude the posts were sufficiently "unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat . . . ." (§ 422, subd. (a).) Accordingly, there is substantial evidence to support Bronson's and Danny's convictions for criminal threats.
However, as with the dissuading a witness and threatening force against a witness convictions, we conclude there is insufficient evidence to support Gomez-Vigil's conviction for criminal threats. " 'A "person aides and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." ' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) Here, the evidence connecting Gomez-Vigil to Danny's and Bronson's Facebook posts is paltry. Though there is evidence Danny got the police report from Gomez-Vigil, there is no evidence indicating that Danny obtained it near the time he posted it or that Gomez-Vigil had any idea Danny or Bronson would use it as a basis for making the Facebook posts much less that Gomez-Vigil intended it to be used for that purpose. Therefore, we conclude there is insufficient evidence to support Gomez-Vigil's conviction for criminal threats.
1.5 Active Participation in a Criminal Street Gang and Gang Enhancements
Defendants challenge all gang-related findings in this case based on an alleged insufficiency of evidence. First, as we have concluded, because there is insufficient evidence to support Gomez-Vigil's convictions for dissuading a witness, threatening force against a witness, and criminal threats, the gang enhancements dependent on those convictions also necessarily fail as to Gomez-Vigil. (§ 186.22, subd. (b)(1).) Second, because we conclude there is insufficient evidence that multiple gang members engaged in the felonious criminal conduct that formed the basis for Bronson's and Gomez-Vigil's convictions for the substantive offense of gang participation, we reverse those convictions. Third, however, we conclude there is substantial evidence to support Gomez-Vigil's gang enhancement for possession of a switchblade knife and for Danny's and Bronson's gang enhancements for the dissuading a witness, threatening a witness with force, and criminal threats convictions.
1.5.1 Substantive Gang Offense
Section 186.22, subdivision (a) penalizes "[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 . . . ." Based on the plain language of the statute, "a defendant may be convicted of the crime of gang participation only if he also willfully does an act that 'promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' " (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130-1131.) Additionally, "[t]he plain meaning of section 186.22[, subdivision] (a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (Id. at p. 1132.)
Here, there was evidence presented that both Bronson and Gomez-Vigil were gang members, but there was no evidence presented that Danny was a gang member. Rather, he was described by the gang experts as a gang associate. And we have concluded there is insufficient evidence to support the conclusion that Gomez-Vigil committed the underlying felonious criminal conduct of dissuading a witness, threatening force against a witness, or criminal threats as an aider and abettor. Thus, there is only evidence of a single gang member—Bronson—committing the underlying felonious criminal conduct. Accordingly, both Bronson's and Gomez-Vigil's convictions for active participation in a criminal street gang require reversal.
1.5.2 Gang Enhancements
The jury sustained gang enhancements as to Bronson, Danny, and Gomez-Vigil in relation to their convictions for dissuading a witness, threatening force against a witness, and criminal threats, and as to Gomez-Vigil in relation to his conviction for possession of a switchblade knife. As noted above, we have concluded Gomez-Vigil's convictions for dissuading a witness, threatening force against a witness, and criminal threats are not supported by substantial evidence; therefore, the gang enhancements attached to those convictions cannot stand in their absence. (§ 186.22, subd. (b)(1).) However, we conclude there is substantial evidence to support the remaining gang enhancements.
Section 186.22, subdivision (b)(1) mandates additional punishment for "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 . . . ." This gang enhancement "does not depend on membership in a gang" but applies "when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (Albillar, supra, 51 Cal.4th at pp. 67-68.)
Danny and Bronson challenge the enhancements attached to their convictions for dissuading a witness, threatening force against a witness, and criminal threats. Gang experts testified that the Facebook posts identifying Baumann as a snitch benefitted the Norteño gang of which Bronson was a member and Danny an associate because it would serve notice not only to Baumann but to anyone else connected with them on Facebook that if someone informs the police of criminal activity by a gang member, that informant will be publicly identified as such to other members and associates of the gang, and to the informant's Facebook community. Experts also testified that witness intimidation was one of the primary activities of the gang, and they and other witnesses provided examples of multiple occasions on which local Norteño gang members had intimidated various witnesses they believed had "snitched" to the police. There was also evidence presented that Eltagonde was a member of the gang, that drug sales were a primary activity of the gang, and that Baumann could be a potential witness against Eltagonde in a future criminal proceeding based on his possession of heroin for sale. Based on this evidence, it was reasonable for the jury to conclude Danny and Bronson had committed the crimes of dissuading a witness, threatening force against a witness, and criminal threats for the benefit of the Norteño gang with the intent to "promote, further, or assist" in criminal activity of the gang by persuading potential witnesses of crimes not to cooperate with the police.
Gomez-Vigil challenges the enhancement attached to his conviction for possession of a switchblade knife. Gomez-Vigil relies on In re Frank S. (2000) 141 Cal.App.4th 1192 [reversal of gang enhancement where there was no evidence presented other than expert's opinion minor possessed knife for benefit of the gang], People v. Ramon (2009) 175 Cal.App.4th 843 [reversal of gang enhancements because they were premised on gang expert's improper opinion the defendant was acting for the benefit of the gang and with the intent to promote the gang's activities without substantial evidence to support the opinion], and In re Daniel C. (2011) 195 Cal.App.4th 1350 [reversal of gang enhancement premised on expert testimony that lacked evidentiary support]. As we have already stated, " '[w]hen we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts' " (Casares, supra, 62 Cal.4th at p. 828) and, given that the cases Gomez-Vigil cites are factually distinguishable, they are of little value to our analysis.
Here, the gang expert testified that Gomez-Vigil was an active Norteño gang member, that gang members carry weapons at all times "[b]ecause they could be challenged at any place any time," and that the etched markings on Gomez-Vigil's knife—"X14 DPH"—are consistent with Norteño identifiers used to promote the gang. Gomez-Vigil claims this is insufficient evidence to support the conclusion that he possessed the knife for the benefit of that gang. Gomez-Vigil ignores the additional evidence that at the time of his arrest, he was wearing gang-related clothing, he was in the company of another gang member and a gang associate, and he was outside the home of yet another gang member. He also ignores the evidence presented that Gomez-Vigil had previously engaged in gang-related assaults with Bronson and other gang members. On this evidence a jury could reasonably conclude Gomez-Vigil carried the marked knife "for the benefit of" his gang and "with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) 2.0 Expert Testimony
In light of our conclusion that there is insufficient evidence to support Gomez-Vigil's convictions for dissuading a witness, threatening force against a witness, and criminal threats, we need not reach his claims challenging the testimony presented indicating Danny had obtained the police report from Gomez-Vigil, or his related claim that counsel rendered ineffective assistance in failing to object to that testimony on hearsay grounds or to strike that evidence because it was prejudicial, if at all, only as to Gomez-Vigil. --------
Bronson and Danny contend the trial court erred in permitting the People to elicit, without employing a hypothetical construction and without an evidentiary basis, direct testimony from the gang expert regarding defendants' specific intent in making the Facebook posts. They claim this error was so egregious as to violate their due process right to a fair trial and to trial by jury warranting reversal as to counts eight and ten, and the associated gang enhancements. Defendants further argue that if these contentions are forfeited by failing to object in the trial court, counsel rendered ineffective assistance. We conclude defendants forfeited the majority of their evidentiary challenges by failing to object below, and they have failed to demonstrate that counsel rendered ineffective assistance. With respect to the one challenge premised on evidence admitted over defendants' objection, we conclude any error by the trial court in admitting evidence was harmless.
" 'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.' " (People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang).) Additionally, " 'an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." ' " (Id. at p. 1045.) However, the " 'hypothetical question must be rooted in facts shown by the evidence' " in the case being tried. (Ibid.) " '[T]he expert's opinion may not be based on "assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors." ' " (Id. at p. 1046.) And the expert generally may not express an opinion as to a particular defendant's guilt. (Id. at p. 1048.) Nor may he or she express his or her " ' "general belief as to how the case should be decided." ' " (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) An expert is also prohibited to opine as to whether a specific defendant had specific knowledge or possessed a specific intent. (Id. at pp. 657-658; accord, People v. Ramon, supra, 175 Cal.App.4th at p. 851.) We review a trial court's ruling admitting or excluding evidence for abuse of discretion (People v. Chism (2014) 58 Cal.4th 1266, 1291), reversing only if the ruling was " 'arbitrary, capricious or patently absurd' " and caused a " 'manifest miscarriage of justice' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124).
Here, the following exchange occurred during the testimony of the People's gang expert:
"[PROSECUTOR]: Now, are you familiar with one of the crimes—the gang crimes enumerated by the Legislature—to be witness intimidation?
"A. Yes.
"Q. And the—witness intimidation in this particular case, do you believe that the Facebook posts are witness intimidation?
"A. Yes.
"Q. Tell us why.
"[DANNY'S COUNSEL]: I'm going to object. That calls for a legal conclusion. I think that's something that has to be decided.
"THE COURT: Well, the objection is sustained because of the way the question is phrased, because you are asking for the legal definition of 'intimidation.' So the objection is sustained for that reason.
"[PROSECUTOR]: Let me ask it this way: What message or messages are the Facebook posts in exhibits 16 and 17 intended to convey?
"A. That Savannah Baumann is a snitch.
"[DANNY'S COUNSEL]: Again, I am going to object, Your Honor. It goes to the intent—the subjective intent of a particular defendant, and that, again, is a question of—I believe that is addressed by the jury. So, I mean, I think it's the form of the question that I'm objecting to.
"THE COURT: Yeah. The question asks what message is being delivered here, instead of asking what his opinion is. So I'll sustain for that reason.
"[PROSECUTOR]: All right. Third time is the charm. [¶] Do you have an opinion as to what message was intended by the Facebook posts in exhibits 17 and 16?
"[DANNY'S COUNSEL]: Again, Your Honor, my objection is based upon asking what his opinion is as to what was intended. And intent is an element of more than one of the offenses. So, again, it's the form of the question I object to.
"THE COURT: Overruled.
[Following readback of the question, the witness responded.]
"A. Yes. Well, both—both messages, both by Bronson Baldwin and Danny Baldwin, both refer to Savannah Baumann as a snitch, and they're outing her as a snitch to the rest of their associates.
"[PROSECUTOR]: [W]e've heard some testimony about snitches. But based on your training and experience, for a gang member, what is the worst thing to be?
"A. A snitch.
"Q. And what happens to snitches?
"A. There's some popular sayings that . . . 'snitches get stitches' or 'snitches end up in ditches.' Those are very common in gang culture. Even [another witness] testified that snitches 'get beat.' That's kind of a wide known thing amongst gang culture.
"Q. And in this particular case, does the fact that allegedly Pedro Gomez-Vigil, Bronson Baldwin and Danny Baldwin acted together have any significance to your opinion?
"A. Yes.
"Q. And what is that?
"A. I think they're intimidating the witness by outing her as a snitch to even people that . . . she knows, associates with. That's why it is so scary for her, is because she knows that some of these people are gang members and gang member associates. So that's . . . what the danger is. Maybe on its face, it doesn't look really threatening, but if you consider the audience, the natural and probable result is that [Baumann] will be harmed in some way because she's being outed as a snitch.
"Q. All right. So in your opinion, [detective], is the crime—or is —are the actions of—of the May 31st Facebook posts gang related?
"A. Yes.
"Q. And how so?
"A. I believe Bronson and [Gomez-Vigil] are validated gang members, and some of these people that are making these threatening comments are also validated gang members. So I think it's a valid witness intimidation case by gang members.
"Q. Well, does—we talked about earlier how disrespecting the gang is not to be tolerated, in essence. What about sticking up for the gang, is that something that gang members do?
"A. Yes.
"Q. How so?
"A. Well, they're—it accomplishes a couple of things. They're—by intimidating the victim and the witness—well, in this case, she's a victim—hoping to deter her from either filing a report—because at this time she hadn't filed a report—or testifying in the other case, one way or the other, intimidating her. But it's also making an example out of her to anybody else, anybody else that steps out of line, anybody else that snitches, anybody else who cooperates with the police whether you are a gang member or not. It's setting an example of . . . what's going to happen to you if you snitch."
We first address defendants' challenge to the expert's testimony over Danny's counsel's objection in response to the People's question whether he "ha[d] an opinion as to what message was intended by the Facebook posts." Danny's counsel objected to the form of the question because it asked "what his opinion is as to what was intended. And intent is an element of more than one of the offenses." The trial court overruled this objection, and the expert testified, "both messages, both by Bronson Baldwin and Danny Baldwin, both refer to Savannah Baumann as a snitch, and they're outing her as a snitch to the rest of their associates." To the extent the prosecutor's question may reasonably be construed as asking the expert to opine as to the specific intent of Bronson and Danny in making the posts, the expert's testimony in that regard is improper because an expert without personal knowledge cannot opine as to a particular defendant's guilt or intent. (See Vang, supra, 52 Cal.4th at pp. 1048-1049.) Nonetheless, we also cannot conclude the testimony was prejudicial. Any jury member would reasonably conclude from reading the plain language of the Facebook posts themselves that the posts refer to Baumann as a snitch and that the posts out her as a snitch to all of Bronson's, Danny's, and Baumann's associates on Facebook, and moreover that Danny and Bronson knew this when they made the posts. Therefore, it is not reasonably probable exclusion of the expert's testimony would have resulted in a different outcome at trial. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
With the exception of this single question to which the trial court overruled Danny's objection, we agree with the People that defendants have forfeited their challenges to the expert's testimony. Though the prosecutor's question asking the expert whether the Facebook posts were witness intimidation may have been improper because it was not posed in the form of a hypothetical based on facts closely resembling those present in the instant case, defendants did not object to the question. Therefore, they have forfeited this contention, and we decline to reach the error in the absence of an objection. Nor can we agree that any subsequent objection to the expert's testimony would have been futile. The trial court sustained counsel's objection twice, and overruled the objection once. Nothing indicates the trial court would not consider any subsequent objection by counsel, or that such an objection would necessarily be overruled or disregarded. Therefore, defendants have forfeited any challenge to any of the subsequent testimony.
We also disagree with defendants' contention that the admission of the testimony warrants review for the first time on appeal despite the forfeiture. The testimony here is not so egregious as to rise to the level of a due process violation of defendants' respective constitutional rights. Defendants also ask us to consider that counsel rendered ineffective assistance by failing to object to the testimony. To establish a claim of ineffective assistance of counsel, defendants must prove that (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant, meaning "there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai); People v. Williams (1997) 16 Cal.4th 153, 215; see Strickland v. Washington (1984) 466 U.S. 668, 687-688 .) If defendant makes an insufficient showing on either of these components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; see Strickland, 466 U.S. at p. 687.)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Mai, supra, 57 Cal.4th at p. 1009.) We accord trial counsel's tactical decisions substantial deference and do not second-guess counsel's reasonable tactical decisions. (People v. Maldonado (2009) 172 Cal.App.4th 89, 97.) And, as a general matter, because the failure to object to evidence usually involves a tactical decision on counsel's part, it rarely establishes a counsel's incompetence. (People v. Frierson (1979) 25 Cal.3d 142, 158; see People v. Boyette (2002) 29 Cal.4th 381, 433.)
When this line of questioning began, counsel may have made the tactical decision not to object for any number of reasons, for example, in an attempt to not draw attention to the testimony, or because counsel planned on undercutting the testimony through cross-examination. Indeed, on cross-examination counsel for Danny asked the expert whether he had asked Danny if he intended to intimidate Baumann, and the expert admitted he had not asked. Counsel also elicited testimony that Danny had told the officer he had make the post because they were all upset with Baumann. Counsel also made several efforts to demonstrate the officer's investigation had been cursory and incomplete. We will not second-guess counsel's tactical decisions; therefore, we decline to find counsel rendered ineffective assistance by failing to object to the expert's testimony.
3.0 Probation Conditions
The trial court imposed two probation conditions on defendants that are challenged on appeal as facially unconstitutionally overbroad. Even though defendants did not challenge these conditions in the trial court, their claims are not forfeited by this failure to object. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) "A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We agree with defendants that the imposed conditions are unconstitutionally overbroad and modify the conditions as imposed on Danny and Bronson, and to the extent imposed on Gomez-Vigil. (See fn. 8, ante, p. 9.)
The first challenged probation condition prohibits each defendant from "appear[ing] at any Court proceeding unless [he is] a party to, or defendant in, a criminal action, or subpoenaed as a witness." As imposed, the condition would prevent defendants from appearing in any civil proceeding for which they are a party or voluntary witness, and from attending a criminal proceeding in which they, or a family member, are a victim. Thus, it impinges defendants' constitutional right to legitimately attend court proceedings. (See People v. Martinez (2014) 226 Cal.App.4th 759, 766-767 [acknowledging a First Amendment right to attend civil and criminal court proceedings].) Accordingly, the condition as imposed is unconstitutionally overbroad and requires modification. (In re E.O., supra, 188 Cal.App.4th at p. 1157; Martinez, at p. 767.) Therefore, we will modify the probation condition in conformity with People v. Leon (2010) 181 Cal.App.4th 943, 953-954, as requested by the parties.
As modified, that condition will now read as follows for each defendant:
Defendant shall not be present at any court proceeding where defendant knows, or the probation officer informs defendant, that a member of a criminal street gang is present, or that the proceeding concerns a member of a criminal street gang, unless defendant is a party, is a defendant in a criminal action, is subpoenaed as a witness, or has the prior permission of defendant's probation officer.
The second challenged condition mandates that each defendant "is not to associate with any individuals whom [he] met while in any of the county institutions. Defendant is not to associate with any member of any gang[,] ' "gang" as defined in Penal Code Section[] 186.22[, subdivisions] (e) and (f)[,]' as directed by the probation officer." Defendants contend the first portion of the condition is unconstitutionally overbroad and unnecessary, and request that it be struck. The portion of this condition prohibiting defendants from associating with anyone they meet in a county institution restricts their First Amendment right to freedom of association. (People v. Garcia (1993) 19 Cal.App.4th 97, 102.) For example, as drafted, the probation condition would bar defendants from associating with anyone who worked or visited the county institution, including a clergy person, if defendants met the person while in the county institution. Moreover, the condition as imposed would prohibit defendants from having the same employer as a felony inmate while on probation or from going to school with anyone who may have been in county jail, even if those other inmates were not convicted of gang-related offenses. Additionally, enforcement of this condition is untenable—how would the probation department or a prosecutor prove the defendant met the person in a county institution as opposed to on the street or after release from county jail. Accordingly, we strike the first sentence of the second challenged condition.
The People argue the second part of this condition, prohibiting association with gang members, is unconstitutionally overbroad because it lacks a necessary knowledge requirement. Without a knowledge requirement the condition impinges on defendants' First Amendment right to free association without being reasonably related to the compelling state interest in reformation and rehabilitation because it would forbid contact with a gang member regardless of defendant's knowledge that the person is a gang member. As in People v. Lopez (1998) 66 Cal.App.4th 615, 628-629, 638, we will cure this error by modifying the condition to require a knowledge element.
As modified, the second condition will now read as follows for each defendant:
Defendant is not to associate with any person he knows, or reasonably should know, is a member of any "gang," as defined in Penal Code section 186.22, subdivisions (e) and (f), as directed by defendant's probation officer.
4.0 Cumulative Error
Defendants contend that even if any one of their claimed errors is not itself sufficient to warrant reversal, the cumulative effect of those errors was sufficient to warrant reversal. Here, we have found only one error by the trial court, which we have deemed to be harmless. Therefore, there is no error to cumulate.
DISPOSITION
The judgments are reversed for count seven as to both Bronson Baldwin and Pedro Gomez-Vigil, and for counts eight, nine, and ten as to Gomez-Vigil. Due to the trial court's failure to impose sentencing as to Bronson Baldwin for counts nine and ten, we modify the judgment as to Bronson Baldwin to impose the midterm of three years for count nine and the midterm of two years for count ten, execution of the sentence on both counts remains suspended pursuant to section 654.
The judgments are additionally modified with respect to the special probation conditions imposed by the trial court prohibiting access to the courts and prohibiting association with people met while incarcerated or with gang members. As modified, these probation conditions will now read as follows for each defendant:
Defendant shall not be present at any court proceeding where defendant knows, or the probation officer informs defendant, that a member of a criminal street gang is present, or that the proceeding concerns a member of a criminal street gang, unless defendant is a party, is a defendant in a criminal action, is subpoenaed as a witness, or has the prior permission of defendant's probation officer; and
Defendant is not to associate with any person he knows, or reasonably should know, is a member of any "gang," as defined in Penal Code section 186.22, subdivisions (e) and (f), as directed by defendant's probation officer.
In all other respects, the judgments are affirmed. The clerk of the trial court is directed to prepare an amended order granting probation and judgment for monetary penalties as to Danny Baldwin, and an amended and corrected order granting probation and judgment for monetary penalties as to Bronson Baldwin and Pedro Gomez-Vigil and to forward said orders to the supervising probation departments to be served on each defendant.
BUTZ, Acting P. J. We concur: MAURO, J. MURRAY, J.