Opinion
B297160
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO GONZALEZ, JR., et al., Defendants and Appellants.
Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Gonzalez, Jr. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Ricardo Garcia. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA084150) APPEALS from judgments of the Superior Court of Los Angeles County. Hilleri G. Merritt, Judge. Affirmed as modified with directions. Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Gonzalez, Jr. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Ricardo Garcia. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
In an amended information filed by the Los Angeles District Attorney's Office, defendants and appellants Francisco Gonzalez, Jr., (Gonzalez) and Ricardo Garcia (Garcia), and codefendant Wendy Barajas (Barajas), were charged with murder (Pen. Code, § 187, subd. (a); count 1). Gonzalez and Barajas were additionally charged with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). It was further alleged as to both counts that the offenses were committed for the benefit of a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). The amended information also alleged that Gonzalez had 17 serious felony and strike prior convictions (§§ 667, subds. (a)-(i); 1170.12, subd. (a)). Last, the amended information alleged that Garcia had served two prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Gonzalez and Garcia both pled not guilty to the charges and denied the special allegations. They were tried together. The jury found them guilty on count 1 of second degree murder and found the gang enhancement allegations to be true. It also found Gonzalez guilty as charged on count 2 and found the gang allegation to be true as to that count. After the verdicts were rendered, both Gonzalez and Garcia admitted the prior conviction allegations.
Barajas's trial was severed from the trial of Gonzalez and Garcia.
The trial court sentenced Garcia to a total term of 17 years to life in state prison, as follows: 15 years to life for the second degree murder conviction, plus two consecutive years pursuant to section 667.5, subdivision (b).
Gonzalez successfully petitioned to have his murder conviction set aside, pursuant to Senate Bill No. 1437. The trial court sentenced Gonzalez on count 2 to a term of 25 years to life, plus 85 years (five years for each of his 17 felony strike prior convictions) in state prison.
Defendants timely appealed. On appeal, Garcia argues that (1) his conviction for murder is not supported by substantial evidence, and (2) the two prior prison term enhancements imposed against him must be reversed pursuant to the recent changes to section 667.5, subdivision (b). Gonzalez argues that (1) the gang allegation is not supported by substantial evidence, and (2) the trial court erroneously imposed 17 five-year enhancements against him, pursuant to section 667, subdivision (a).
We agree with the parties that both of Garcia's one-year prior prison term enhancements must be stricken pursuant to Senate Bill No. 136, which amended section 667.5, subdivision (b). We therefore strike those two years from Garcia's sentence. We also agree that Gonzalez's sentence is erroneous. He should only have received two, not 17, five-year prior conviction enhancements, pursuant to section 667, subdivision (a). We therefore strike the 75 years in enhancements that were imposed in error. In all other respects, the judgments are affirmed.
FACTUAL BACKGROUND
I. Prosecution evidence
In 2013, Gonzalez met Brandon Barajas (Brandon), codefendant Barajas's brother, while they were both housed in Calipatria State Prison. Gonzalez had been in prison the majority of his adult life. In 1999, he was convicted of robbing eight different people. In 2013, he attempted to rob someone else. Following that crime, he was convicted of robbing seven different people. In addition, he committed a carjacking.
Gonzalez actually testified during his defense of the case, but a portion of his testimony is presented here for chronological understanding.
Because Brandon shares the same last name as codefendant Barajas, we refer to him by his first name. No disrespect is intended.
In January or February 2015, Gonzalez started a "friendship relationship" with Brandon's sister, Barajas. They would communicate through a cell phone that Gonzalez shared with Brandon. Through their conversations, Gonzalez learned that Barajas had problems with her children's father, Jose De Jesus Sotello Trujillo (Trujillo). At one point, he also communicated with Trujillo through the shared cell phone, telling him in a text message, with "explicit language," to respect Barajas.
On July 7, 2015, Barajas, sounding "a little hysterical," called Gonzalez and told him that Trujillo had just hit her. Gonzalez could hear the kids crying in the background. Gonzalez called fellow gang member Garcia and asked Garcia to go talk to Trujillo and "tell him to knock it off."
Gonzalez acknowledged during his testimony that a tattoo near his ear was a gang tattoo signifying "the 13 for San Fer." Gonzalez was an admitted member of the San Fer gang.
That same day, Los Angeles Police Department Detective Ryan Verna received a report of a crime on Cobalt Street, and he responded to the scene. He collected video surveillance footage from two nearby businesses. The videos depicted Barajas in a white Honda Accord with her children exiting the car. The videos showed Trujillo approach, and then kick, Barajas's car, leaving a dent. Barajas started to drive away, but then did a U-turn and stopped a few feet away.
A short time later, a red Dodge Dakota pickup truck and a dark Toyota Avalon approached. Garcia then attacked Trujillo and subsequently drove away, leaving Trujillo on the ground. Trujillo died shortly thereafter at a hospital from blunt force trauma.
One of the videos depicted the legs of the victim and multiple assailants in the upper portion of the screen. The red Dodge truck was visible. It was later found to be registered to a relative of Garcia's girlfriend. This video showed that at 7:19 p.m., the red truck approached Trujillo and someone exited the vehicle. A gold car also pulled up. Multiple persons struck or kicked Trujillo for approximately 30 seconds. Someone returned to the red truck, which drove away. The assault took place at the upper edge of the video, so none of the participants' faces were visible.
Detective Verna recovered a cell phone (and ultimately the corresponding phone records) from Barajas. She had sent multiple text messages and made multiple calls to a phone number that belonged to Gonzalez, and to another one that belonged to Garcia. The information that Detective Verna obtained from the cell phone records showed that Barajas had communicated at times with her brother Brandon, and at times with Gonzalez. They both had access to the cell phone while in prison.
Federal Bureau of Investigation Special Agent Michael Easter analyzed the cell phone tower data for Barajas, Gonzalez, and Garcia around the time of the murder. The records showed that on July 7, 2015, between 7:19 p.m. and 7:25 p.m., Barajas and Gonzalez had a phone call, and then they brought Garcia in on a three-way call. The cell phone tower data showed that Barajas was at the crime scene on Cobalt Street from the time of the first call. Special Agent Easter determined that the Gonzalez phone received calls from within Calipatria State Prison during this same time period. Garcia was not initially there, but arrived at the scene by approximately 7:30 p.m.
Detective Verna interviewed Gonzalez at Calipatria State Prison. During the interview, Gonzalez admitted being a member of San Fer, but lied to Detective Verna and said that he did not know anything about what happened on July 7, 2015.
Los Angeles Police Department Detective Robert Beaty spent five years in the Los Angeles Police Department Gang Unit, and specialized in studying "the San Fer criminal street gang."
The parties stipulated that San Fer is a criminal street gang pursuant to section 186.22.
Detective Beaty testified that he met Garcia at a gang "cease fire[]."
Detective Beaty then testified about Gonzalez's tattoos. He attested that Gonzalez's "San Fer" tattoo was a gang tattoo. He also testified that Gonzalez had tattoos representing the Mexican Mafia, a prison gang that was connected to San Fer. According to Detective Beaty, being in the Mexican Mafia would give Gonzalez influence over street level San Fer members. Detective Beaty testified that someone who was ordered by a higher ranking gang member to just give a verbal warning to someone on the outside, but beat that person to death instead, would face consequences from the gang in the form of internal discipline.
Detective Beaty identified Garcia's tattoos as representing a clique of San Fer, the Hardcore Freaks. His tattoos included one on his neckline that read "Hardcore Freaks," another that read "SF," which Detective Verna believed was a reference to the San Fernando gang, and a "felon" tattoo. Garcia also had a new tattoo, which read "Frank." Detective Verna believed that "Frank" was a reference to Gonzalez, and that Garcia had gotten that tattoo sometime after Trujillo was killed. Brandon was also a member of the Hardcore Freaks clique. Detective Beaty opined that gang members "put in work" to prove themselves to the gang, and gangs commit violent acts in order to create fear in the community.
Detective Verna testified that there were witnesses to the incident, and some did not want to talk to him about what they had seen.
Based on a hypothetical reflecting the facts of the attack on Trujillo, Detective Beaty opined that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members.
II. Defense evidence
Defense gang expert Daniel Laughlin (Laughlin) testified that the "13" behind Gonzalez's ear did not necessarily mean that he was in the Mexican Mafia. He indicated that the Aztec tattoos could be cultural pride. Laughlin also disagreed with the prosecution as to whether the incident was committed for the benefit of the San Fer gang. Rather, he believed that the incident was a personal family issue, and stated that crimes committed by the gang members were not necessarily done in service of the gang.
Gonzalez admitted that both he and Garcia were members of the San Fer gang, but stated that the events concerned a family matter, not a gang matter. He testified that Barajas had called him on his cellphone in prison, and told him that Trujillo had beaten her in front of their children. He did not instruct Garcia to kill or hurt Trujillo. Instead, based on his relationship with the Barajas family, Gonzalez asked Garcia to speak with Trujillo.
DISCUSSION
I. Substantial evidence supports Garcia's murder conviction
Garcia argues that the evidence was insufficient to support his murder conviction.
A. Standard of review
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) "The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "An appellate court must accept logical inferences that the [factfinder] might have drawn from the circumstantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 396.)
Because we begin with the presumption that the evidence was sufficient, it is the appellant who bears the burden of convincing the court otherwise. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) Reversal on a substantial evidence ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"'Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.' [Citations.]" (People v. Brown (2014) 59 Cal.4th 86, 106.)
B. Analysis
Applying these legal principles, we conclude that ample evidence supports Garcia's murder conviction. It was undisputed that Gonzalez, from prison, told his fellow (perhaps younger) gang member, Garcia, to go "talk" to Trujillo and tell him to "knock it off." As evidenced by cell phone tower data, Garcia then went to the Cobalt Street location, where Barajas was waiting (after she had called Gonzalez). Video surveillance tapes show Garcia and others beat Trujillo to death. Garcia then drove away in a red truck owned by his girlfriend's relative.
Urging us to reverse, Garcia argues that there is no evidence that the kicking shown in the video actually caused Trujillo's death. In other words, there is no evidence that any specific blows to Trujillo actually led to his death. According to Garcia, because no one testified to the cause of death, something other than what the prosecution claimed (Garcia striking Trujillo) could have led to Trujillo's death.
We are not convinced. As the trial court noted, there was ample circumstantial evidence that the beating led to Trujillo's death. Minutes before he was attacked, Trujillo was fine; he was certainly able to kick Barajas's car and dent it. Then Garcia beat him, and Trujillo died as a result of blunt force trauma.
We reject Garcia's contention that the detectives were not "qualified to say [that Trujillo] did in fact die."
Garcia contends that there is no evidence that Trujillo died as a result of blunt force trauma. After all, no coroner testified as to Trujillo's cause of death. Rather, Detective Verna, who was present at the autopsy, was the person who testified that the cause of death was blunt force trauma.
The problem for Garcia is that he failed to object to Detective Verna's testimony. While he now argues on appeal that Detective Verna's testimony was inadmissible hearsay, he did not lodge that objection below, thereby forfeiting the issue on appeal. (People v. Doolin (2009) 45 Cal.4th 390, 448.) II. Senate Bill No. 136 requires that both of Garcia's one-year prior prison term enhancements be stricken
Garcia's sentence includes two separate one-year enhancements under section 667.5, subdivision (b), for having served a prior prison term for a felony conviction. Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b), to apply only where the prior prison term was served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b); see Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1.) Because the judgment in the current case is not yet final, Senate Bill No. 136 applies to Garcia. (People v. Winn (2020) 44 Cal.App.5th 859, 872-873 [Sen. Bill No. 136 applies to nonfinal judgments on appeal]; People v. Lopez (2019) 42 Cal.App.5th 337, 341 [same]; In re Estrada (1965) 63 Cal.2d 740, 744-746 (Estrada) [absent evidence to the contrary, the Legislature intended amendments to statutes that reduce the punishment for a particular crime to apply to all defendants whose judgments are not yet final on the amendments' operative date]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308 [discussing Estrada]; People v. Brown (2012) 54 Cal.4th 314, 323 [same].)
Garcia's prior prison term enhancements were based on sections 29800 and 12031 (repealed 2012), both offenses involving illegal possession of firearms. Because those crimes are not an enumerated sexually violent offense (Welf. & Inst. Code, § 6600, subd. (b)), we hereby strike the two separate one-year enhancements. Remand for a new sentencing hearing is unnecessary because the trial court has already exercised its discretion to impose the maximum sentence. (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15; People v. Lopez, supra, 42 Cal.App.5th at p. 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion"].) Therefore, we modify the judgment, striking the two one-year enhancements, and direct the trial court to prepare an amended abstract of judgment. (People v. Lopez, supra, 42 Cal.App.5th at pp. 342-343.)
III. Substantial evidence supports Gonzalez's gang enhancement
Gonzalez argues that insufficient evidence supported the true finding on his gang enhancement.
A. Standard of review and relevant law
We review a section 186.22 gang enhancement finding for substantial evidence. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484; see also People v. Ochoa (2009) 179 Cal.App.4th 650, 657 [applying substantial evidence test to contentions that gang enhancements were unsupported by the evidence].)
"'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the . . . section 186.22, subdivision (b)(1), gang enhancement. [Citation.]" (People v. Vang (2011) 52 Cal.4th 1038, 1048.) "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22[, subdivision] (b)(1)." (People v. Albillar (2010) 51 Cal.4th 47, 63.)
Moreover, a trier of fact may accept "'such witnesses as he wishes and reject others'" and may reject the testimony of a witness even though the witness is uncontradicted. (People v. Hamlin, supra, 170 Cal.App.4th at pp. 1463-1464.) "We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' [Citation.]. . . '[I]t is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]'" (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
The elements of section 186.22, subdivision (b), are: (1) the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang; and (2) the defendant intended to assist, further, or promote criminal conduct by gang members. (People v. Loeun (1997) 17 Cal.4th 1, 11; see also People v. Ortiz, supra, 57 Cal.App.4th at p. 483.) The evidence must establish both prongs. (People v. Rios (2013) 222 Cal.App.4th 542, 561.)
B. Analysis
Applying these legal principles we conclude that there was ample evidence that Gonzalez committed this crime for the benefit of, at the direction of, or in association with a criminal street gang. After Barajas contacted Gonzalez on July 7, 2015, when she was upset, Gonzalez, a member of the Mexican Mafia contacted Garcia, a member of San Fer, a gang "tied" to the Mexican Mafia; Trujillo was then beaten to death. Taken together, the evidence showed that Gonzalez orchestrated the crime from prison, using his gang connections and an illicit cellphone.
At the sentencing hearing, the trial court noted that there was no evidence that "Gonzalez intended anything other than . . . Trujillo wasn't going to get spoken to. He was going to get dealt with." The trial court added: "[T]o pretend that . . . Gonzalez was calling from prison to a younger member of his gang to have some sort of Leave-It-To-Beaver, stern talking to . . . Trujillo is not borne out by the evidence."
Notably, Detective Beaty offered his expert opinion that Gonzalez directed the commission of the crime in association with the Mexican Mafia and the San Fer street gang. Gonzalez's argument notwithstanding, Detective Beaty's testimony was sufficient to support the true finding on the gang allegation. (People v. Vang, supra, 52 Cal.4th at p. 1048.)
Moreover, Detective Beaty testified that gangs commit violent acts in order to create fear in the community. Detective Verna testified that several people observed the beating and murder of Trujillo. This evidence supports the second prong of the analysis, namely the jury's finding that the crime benefited the San Fer gang.
People v. Ramon (2009) 175 Cal.App.4th 843 does not compel a different result. In that case, the defendant was found guilty of committing three crimes: receiving a stolen vehicle, being a felon in possession of a firearm, and carrying a loaded firearm in public for which he was not the registered owner. (Id. at p. 848.) The jury also found that the defendant committed these crimes for the benefit of a criminal street gang. (Ibid.) "The only evidence" on the issue of whether the crime was committed for the benefit of a criminal street gang was provided by the People's expert witness. (Id. at p. 849.) He opined that the defendant committed these crimes for the benefit of a gang, based upon "two independent facts": (1) the defendant and his codefendant were members of the same gang, and (2) the two were stopped in territory claimed by their gang. (Ibid.) "From these two facts, along with the crimes the two were accused of committing, [the expert] opined that the crime was committed for the benefit of the . . . gang and was intended to promote" the gang. (Ibid.) The expert's opinion "was based on his belief that because the gun and the stolen vehicle could be used to facilitate the commission of a crime, and the [gang] commit[s] crimes, the two must have been acting on behalf of the [gang]." (Ibid.)
The Court of Appeal reversed the true finding of the gang enhancement, finding insufficient evidence. (People v. Ramon, supra, 175 Cal.App.4th at p. 853.) Evidence of "two gang members in possession of illegal or stolen property in gang territory" does not mean that they were "acting to promote a criminal street gang." (Ibid.) The Court of Appeal expressly noted that its "analysis might be different if the expert's opinion had included 'possessing stolen vehicles' as one of the activities of the gang. That did not occur." (Ibid.)
Conversely, in this case, the appellate record shows far more than just two gang members who committed a crime. As set forth above, Detective Beaty testified that gangs like San Fer commit violent acts in order to create fear in the community. This was certainly a violent act that presumably created fear in the community. After all, certain witnesses did not want to tell Detective Verna what they had seen.
The fact that the perpetrators did not identify themselves as gang members or even identify their gang does not alter our analysis. After all, as Detective Beaty noted, "I would just think that eventually word gets out" that the San Fer gang committed this crime. And once "word g[o]t out" that the San Fer gang committed such a violent crime, the gang would have accomplished its goal of creating fear in the community.
Urging us to reverse, Gonzalez argues that "the evidence provided a very clear non-gang reason for the assault," namely Gonzalez's relationship with Barajas and Barajas's call to Gonzalez stating that Trujillo had hit her. In making this argument, Gonzalez is asking us to reweigh the evidence, something we cannot, and will not, do. (People v. Young (2005) 34 Cal.4th 1149 1181 [we do not reweigh the evidence or resolve conflicts in the evidence]; People v. Ceja (1993) 4 Cal.4th 1134, 1139 [if the circumstances reasonably justify the factfinder's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding]; People v. Bean (1988) 46 Cal.3d 919, 932-933 [same].)
IV. The trial court did not violate Gonzalez's constitutional rights and did not make any improper comments during voir dire
Gonzalez asserts that the "trial court violated [his] rights under the Sixth and Fourteenth amendments during voir dire when the judge said there was a reason why the defendant was standing trial."
A. Relevant proceedings
During voir dire, the trial court judge made the following comment to the jury pool: "Sometimes jurors will say something like, 'Well, you know, judge, this defendant is sitting there. There's got to be a reason.' [¶] I mean, yes, we didn't just pull people off the street today saying we really need to do a trial and you get to be the defendant. We don't do that. There may be a reason why they're sitting here, but that's not evidence of anything." Gonzalez acknowledges that he did not object to this statement by the trial court judge.
B. Relevant law
"[A]s a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury's verdict in the case. Any such errors or misconduct 'prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings, before its attention has even begun to focus upon the penalty issue confronting it.'" (People v. Medina (1995) 11 Cal.4th 694, 741; see also People v. Avila (2009) 46 Cal.4th 680, 716; People v. Seaton (2001) 26 Cal.4th 598, 636.)
C. Analysis
1. Forfeiture
Initially, Gonzalez's contention is forfeited on appeal because he did not object in the trial court to this statement by the trial court judge. (See People v. Anderson (1990) 52 Cal.3d 453, 468 [an objection to "statements or comments by the trial court must be raised at trial or are waived on appeal"].) Indeed, the California Supreme Court has stated, "At the outset, we conclude the issue was not preserved for appeal by a timely and specific objection to the trial court's comments. (People v. Monterroso (2004) 34 Cal.4th 743, 759 [claim of judicial error based on a judge's comments during voir dire proceedings is forfeited by failure to object].)" (People v. Seumanu (2015) 61 Cal.4th 1293, 1357.) This claim is forfeited.
2. No error
In any event, Gonzalez fails to note that the trial court, immediately after the aforementioned statement to the jury, told the jury as follows: "That's the context I was telling you about, why I read you the information. Yes, something happened. Yes, they were arrested. Yes, they were charged with this crime, and now they're going to trial. That's not evidence of anything. It just tells us why we're here."
Gonzalez also fails to mention that, at that point, the trial court had just finished reading the information to the jury. Moreover, the trial court was not instructing the jury at the time it made the comments in question. Indeed, it was conducting voir dire of prospective jurors. Its "comments 'were not intended to be, and were not, a substitute for full instructions at the end of trial.'" (People v. Seaton, supra, 26 Cal.4th at p. 636.) "'The purpose of these comments was to give prospective jurors, most of whom had little or no familiarity with courts in general . . . a general idea of the nature of the proceeding.'" (People v. Livaditis (1992) 2 Cal.4th 759, 781.)
In the context of voir dire, the trial court's comments in this case were entirely proper. Nothing in the trial court's pretrial remarks misstated or diluted the burden of proof or was likely to confuse or mislead the jury as to the process for determining the case. (See People v. Freeman (1994) 8 Cal.4th 450, 503-505.)
3. No prejudice
Even if the trial court had erred, which it did not, under any conceivable standard of prejudice, the claimed error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Gonzalez had a full and fair opportunity to conduct voir dire and to eliminate any potential juror whom he felt might have been biased against him.
Moreover, Gonzalez fails to explain how he could have been prejudiced by information already known by the jury. Obviously, the jury knew that there was a reason Gonzalez was standing trial, i.e., he had been arrested and charged with a crime pursuant to the information as read to the prospective jurors.
In addition, Gonzalez admits that "the court went on to say that Mr. Gonzalez's presence in the courtroom could not be used as evidence." This comment certainly negated any inference, however speculative, Gonzalez now claims a prospective juror may have inappropriately made. (See People v. Perez (1989) 216 Cal.App.3d 1346, 1352 [while easy to perceive as an issue it is impossible to find support for "'what might have been'" in the record].)
Furthermore, as noted above, there was substantial evidence to support the gang enhancement. Not only was there ample evidence to support the gang enhancement, Gonzalez's credibility was questionable given that he admitted to lying to Detective Verna and admitted that he had 17 prior felony convictions. Under these circumstances, it is beyond any reasonable doubt that Gonzalez was convicted based upon the evidence, not based upon what the trial court stated at the onset of these proceedings.
Finally, the trial court specifically instructed the jury that it could only determine the facts from the evidence presented at trial and the law as given to them, and that they were not to let prejudice or conjecture influence their decision. It also instructed the jury pursuant to CALCRIM No. 332 (addressing expert witness testimony and hypothetical questions) that, "A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved." And, the trial court instructed the jury: "Do not assume just because I give a particular instruction that I am suggesting anything about the facts."
Presumably, the jury followed these instructions and disregarded any material, such as general voir dire comments by the trial court, that was not based on the evidence properly adduced at trial. (See People v. Smith (2007) 40 Cal.4th 483, 517-518 [jurors are presumed to faithfully follow instructions].) In fact, Gonzalez does not provide even a scintilla of evidence that the jury somehow ignored the trial court's directive in the instant case. It follows that Gonzalez could not have been prejudiced, and his claim fails. V. Gonzalez's sentence is modified because most of his prior serious felony convictions were not "brought and tried separately," as required by section 667 , subdivision (a)
Gonzalez contends that his "sentence must be modified because his prior serious felony convictions were not 'brought and tried separately' as required by" section 667, subdivision (a). The People agree that the trial court should only have imposed two section 667, subdivision (a), prior conviction enhancements.
We agree with the parties. (§ 667, subd. (a); In re Harris (1989) 49 Cal.3d 131, 136; People v. Wiley (1995) 9 Cal.4th 580, 604 [it is the prosecutor's burden to prove that the prior convictions were both brought and tried separately].) Section 667, subdivision (a), provides that a defendant who is convicted of a serious felony shall receive a five-year sentence enhancement for each previous conviction "on charges brought and tried separately." Gonzalez's 17 prior strike convictions came from just two cases that were brought and tried separately. Thus, he should only have received two five-year enhancements, one for each of the two cases, for a total of 10 years. We therefore strike the 75 years that were imposed in error. (§ 1260; People v. Diaz (1967) 66 Cal.2d 801, 807.)
DISPOSITION
Garcia's sentence is modified by striking the two one-year prior prison term enhancements. Gonzalez's sentence is modified by striking 75 years imposed pursuant to section 667, subdivision (a). As modified, the judgments are affirmed. The trial court is directed to prepare amended abstracts of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
ASHMANN-GERST We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ