Opinion
B257627
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO GRANADOS, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on February 25, 2020, be modified as follows:
On page 13, first sentence of the first full paragraph, the words "appellant fired three shots" are changed to "the shooter fired three shots" so the sentence reads:
By contrast, here, the evidence showed that the shooter fired three shots at three intended victims.
There is no change in the judgment.
Appellant's petition for rehearing is denied. /s/_________
ASHMANN-GERST, Acting P. J. /s/_________
CHAVEZ, J. /s/_________
HOFFSTADT, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA398784)
OPINION ON REMAND
APPEAL from a judgment of the Superior Court of Los Angeles County. Gail Ruderman Feuer, Judge. Affirmed and remanded with directions. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Pursuant to order by the California Supreme Court, we vacate our original opinion and issue this opinion instead.
In an information filed by the Los Angeles County District Attorney's Office, defendant and appellant Armando Granados was charged with three counts of attempted premeditated murder (counts 1-3; Pen. Code, §§ 664/187, subd. (a)), and shooting into an inhabited dwelling (count 4; § 246). It was alleged that appellant committed those offenses for gang purposes within the meaning of section 186.22, subdivision (b)(1)(C). For count 1, it was further alleged that a principal personally used, intentionally discharged, and proximately caused great bodily injury and death with a firearm. For counts 2 and 3, it was further alleged that a principal personally used and intentionally discharged a firearm during those offenses. (§ 12022.53, subds. (b)-(e).)
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant pleaded not guilty and denied the allegations. Trial was by jury. The jury found appellant guilty as charged, but it found the firearm allegations for counts 2 and 3 were not true.
The trial court denied probation and sentenced appellant to state prison for an aggregate term of 62 years to life, including a 25-year to life term pursuant to section 12022.53, subdivisions (d) and (e)(1). He was ordered to pay various fines and fees, including a $200 restitution fine under section 1202.4, a $40 court operations assessment under section 1465.8, and a $30 criminal conviction assessment under Government Code section 70373. Appellant was awarded presentence custody credit.
The trial court also ordered defendant to pay a $200 parole revocation fine under section 1202.45. That fine was stayed.
Appellant timely filed a notice of appeal. On appeal, he raised five arguments: (1) He asked that we review the sealed Pitchess records for error; (2) The trial court erred in instructing the jury on a kill zone theory of attempted murder on counts 2 and 3; (3) The trial court erred in denying him a reasonable continuance of his sentencing hearing to allow him to retain different counsel; (4) The trial court abused its discretion in imposing consecutive sentences on the three attempted murder counts; and (5) The trial court erred in imposing a concurrent term on count 4 as it should have been stayed under section 654.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
On January 27, 2016, we affirmed the judgment. (People v. Granados (Jan. 27, 2016, B257627) [nonpub. opn.].) Appellant filed a petition for review with the California Supreme Court, and on April 13, 2016, the Supreme Court granted his petition, stating: "Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Canizales, S221958." The Supreme Court issued its decision in People v. Canizales (2019) 7 Cal.5th 591 (Canizales) on June 24, 2019. On September 11, 2019, the Supreme Court transferred the matter back to us with directions to vacate our original decision and reconsider the cause in light of Canizales.
On September 19, 2019, appellant filed a motion for leave to file supplemental briefing. We granted his motion. In his supplemental brief, appellant asserts: (1) Pursuant to Canizales, appellant's conviction for attempted murder on counts 2 and 3 must be reversed for lack of substantial evidence to support a kill zone theory of liability, and therefore instructing on this theory was erroneous; (2) Pursuant to People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the admission of case-specific hearsay to prove the criminal street gang enhancement through expert testimony violated appellant's right to confrontation; (3) The case must be remanded to allow the trial court to consider whether to strike the firearm enhancement imposed against appellant (§§ 12022.5, subd. (c), 12022.53, subd. (h)); and (4) Pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, 1163-1173 (Dueñas), the trial court erred in imposing certain fines and fees without first determining that appellant was able to pay those fines, in violation of appellant's right to due process.
We remand the matter for resentencing on the firearm enhancement. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Gang Tagging Prior to the Shooting
On June 2, 2012, Los Angeles Police Officer David Ramirez discovered evidence that appellant had "tagged" a wall with spray paint at a mark located on South Avenue 18. Officer Ramirez drove to appellant's house and looked inside a blue Toyota belonging to Vanessa Tapia (Tapia), appellant's girlfriend. Tapia's car contained items linking it to the tagging.
According to Mary Neves (Neves), appellant's mother, appellant is a member of the 18th Street criminal street gang. In early June 2012, Neves lived on Avenue 19, inside the territory claimed by the "Clover" gang. While appellant lived at a different location on Dudley Drive, he occasionally stayed with Neves "when he had problems" with his girlfriend. That month, Neves's home was tagged with graffiti displaying the words "East Side Clover" and two "monikers." She may have told police that she felt that she was being singled out because of her son. Neves "just felt like [she] was in the middle of [two] individuals." On June 13, 2012, at around 8:00 p.m., Neves tried to contact appellant by cell phone because she wanted to be taken to the hospital. She was unable to reach him, so she stayed home.
B. The Shooting
On June 13, 2012, Frank Vaca, Sr. (Vaca), lived with his wife, three sons, and daughter at a house located near the intersection of Mozart Street and Workman. The house has a raised porch in front. At around 8:00 p.m., Vaca and his brother, Jesus, and his son, Salvador, were sitting near the stairs leading up to the porch. They discussed having a Father's Day party for Vaca's father. The rest of Vaca's family was inside the residence.
Suddenly, Salvador tried to warn his father that there was someone in front of the house holding a gun. At trial, Vaca testified that he did not turn in time to see the gunman, but he recalled hearing two or three gunshots, being struck in the back, falling down, and losing feeling in his legs. He also remembered hearing someone yell, "where are [you] from?" He could not remember if he described the shooter for the police.
Vaca was treated by paramedics and taken to the hospital. Along the way, Vaca told Los Angeles Police Officer Jorge Talledo that he saw a man get out of a blue car with a gun. When Vaca tried to run away, he was shot and fell down on his porch.
Salvador estimated that when the shooting occurred, he was three feet away from Vaca and five feet away from Jesus.
Jesus described where the three men were on the porch when the shooting occurred. Jesus was sitting on a couch when he noticed appellant's blue car stop in front of Vaca's house on the closer side of the street. The shooter got out of the car from the passenger side, walked toward the porch, and said, "'Where you mother fuckers from?'" Then, the shooter fired three shots using a small shiny handgun. The shooter appeared to be Mexican-American, in his 20's, and five to five-and-a-half feet tall. Jesus saw appellant in the car's back seat, but he could not see the driver. He saw another unidentified person in the car during the shooting. The shooter returned to the car, and the car headed away.
Salvador ran to the street, where he was able to see the car, a blue Toyota, and obtain a partial license plate number. He saw four people inside the vehicle. Appellant was sitting in the back seat behind the driver. Salvador retrieved his car keys. By the time Salvador reached his car, the blue Toyota had returned to the area. Salvador followed it. Along the way, he called 911. Eventually, the police began pursuing appellant, so Salvador backed off and drove at a distance.
C. Jesus and Salvador Identify Appellant
Later that night, Jesus made a field identification of appellant. Jesus believed that appellant was a passenger during the shooting. Salvador identified the Toyota and appellant as a passenger.
D. Investigation
Los Angeles Police Officer Juan Cobian was assigned to a gang enforcement detail. On June 13, 2012, at around 8:12 p.m., he went to the scene of the shooting, where he saw Vaca on his porch being treated by paramedics. When Officer Cobian learned the description and license plate number for the vehicle used in the shooting, he recalled stopping appellant in that vehicle during April 2012. Officer Cobian knew that the car belonged to Tapia. Officer Cobian provided this information, as well as appellant's address, to other officers investigating the shooting.
Los Angeles Police Officer Geraldine Ruiz and her partner, Officer Edward Castro, were on patrol when the shooting occurred. Officer Ruiz was driving when she saw appellant traveling on Griffin Avenue in the vehicle used during the shooting. Appellant looked "surprised" when he passed her vehicle and quickly made a right turn. She followed the Toyota and checked the license plate number.
Meanwhile, Salvador drove into the area and caught Officer Ruiz's attention. He told her that appellant had shot his father. Officer Ruiz continued to follow appellant onto the 110 Freeway until he exited at Marisol, but was then unable to follow him due to heavy traffic.
Officer Ruiz believed that the shooting was done by an 18th Street gang member while he was in a rival gang's territory (the Clover gang). She went to appellant's home on Dudley Drive. Then she went to another location where appellant had been taken into custody by other officers.
E. Appellant's Home is Searched
During a search of appellant's home, police recovered 44 rounds of .45 caliber ammunition, 20 rounds of nine-millimeter Luger jacketed hollow-point ammunition, and one round of .40 caliber Smith & Wesson ammunition. This ammunition was booked into evidence. The parties stipulated that the nine-millimeter rounds and .45 caliber rounds could be used for handguns, primarily semi-automatic weapons, but were not commonly used for revolvers. The parties also stipulated that appellant was tested for gunshot residue and none was found; the result was inconclusive as to whether he had been around a firearm the day of the shooting.
F. Tapia
According to Tapia, appellant was a member of the 18th Street gang. In 2012, she owned a blue Toyota Corolla given to her by her mother. On June 13, 2012, in the afternoon, Tapia let appellant use her car so that he could pick up her daughter from her mother's house. She saw him leave their home on Dudley Drive by himself, but he did not return with Tapia's daughter as expected. Between 6:22 p.m. and 8:19 p.m., Tapia sent several text messages to appellant. She also tried to call him, but he did not answer. At around 8:30 p.m., appellant returned home without Tapia's daughter.
Later, Tapia, appellant, and Tapia's other child drove to Tapia's mother's house. On the way, she was pulled over by police. Appellant seemed nervous at the time. Appellant and Tapia were arrested and taken to a police station, where she gave a statement.
After Tapia was released and returned home, a man named Franklin went to her house. She and Franklin spoke with appellant by telephone; a recording of that conversation was played for the jury.
G. Expert Testimony
According to Officer Cobian, appellant had tattoos on his face indicating membership in the 18th Street gang. He also admitted that he was a member of that gang.
Los Angeles Police Officer Angelica Gutierrez testified as an expert regarding the 18th Street gang, and provided information regarding the gang's history, hand signs, colors, and rivals (Clover and El Sereno). She also described the primary activities of the gang and gang members who had committed the required predicate offenses. She opined that appellant was an 18th Street gang member based on his prior admissions and tattoos. In fact, she testified that she had spoken with appellant in the past "and he admitted to being an 18th Street gang member." Based on hypotheticals mirroring the facts of this case, Officer Gutierrez believed that the hypothetical crimes would have been committed in association with and for the benefit of the 18th Street gang. The shooting was in retaliation for the tagging by the Clover gang that occurred prior to the shooting.
II. Defense Evidence
The defense did not present any evidence before resting.
DISCUSSION
I. Review of Pitchess Proceedings
Appellant asks that we review the trial court's in camera proceedings to determine whether the trial court incorrectly withheld any discovery pertaining to three police officers. The People do not object to our review of the transcripts to determine whether the trial court erred.
We have reviewed the transcript of the trial court's in camera proceedings and have determined that the trial court did not err.
II. Instruction on Kill Zone Theory of Attempted Murder
Appellant argues that the trial court erred by instructing the jury on a kill zone theory of attempted murder (CALCRIM No. 600) because no substantial evidence warranted that instruction.
A. Standard of Review
Trial courts have a duty to instruct on the "'"general principles of law relevant to the issue raised by the evidence. [Citations.]"'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) Courts also have a "correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.'" (People v. Saddler (1979) 24 Cal.3d 671, 681.)
We review claims of instructional error de novo. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
B. Relevant Law
In People v. Bland (2002) 28 Cal.4th 313 (Bland), "the California Supreme Court held that the doctrine of 'transferred intent' applies to murder but not to attempted murder. [Citation.] 'In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder.' [Citation.]" (People v. Adams (2008) 169 Cal.App.4th 1009, 1021 (Adams).)
"However, the California Supreme Court also recognized that 'a shooter may be convicted of multiple counts of attempted murder on a "kill zone" theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the "kill zone") as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. [Citation.]' [Citation.]" (Adams, supra, 169 Cal.App.4th at p. 1021.)
"'A kill zone, or concurrent intent, analysis, therefore, focuses on (1) whether the fact finder can rationally infer from the type and extent of force employed in the defendant's attack on the primary target that the defendant intentionally created a zone of fatal harm, and (2) whether the nontargeted alleged attempted murder victim inhabited that zone of harm. [Citation.]' [Citation.]" (Adams, supra, 169 Cal.App.4th at p. 1022.)
C. Analysis
In our original opinion, we rejected appellant's argument, finding ample evidence to support the trial court's instruction. After all, there was a kill zone, namely three persons (Vaca, Jesus, and Salvador) standing together on a porch within three to five feet of each other. The shooter fired three times in their direction. From this evidence, we determined that the jury reasonably could have inferred that he intended to shoot Jesus and Salvador even though he missed them. (People v. Smith (2005) 37 Cal.4th 733, 742.)
In so doing, we found appellant's reliance upon People v. McCloud (2012) 211 Cal.App.4th 788 (McCloud) misplaced and noted that the California Supreme Court had granted review of the Court of Appeal decision in People v. Canizales (2014) 229 Cal.App.4th 820, a case critical of McCloud. (Granados, supra, B257627 at pp. 7-9.)
In Canizales, the Supreme Court expressed its concern about the "misapplication of the kill zone theory" by some appellate courts. (Canizales, supra, 7 Cal.5th at p. 606.) The court clarified, consistent with its original pronouncement on kill zone theory in Bland, supra, 28 Cal.4th 313, that an instruction on kill zone theory is proper only where "the circumstances of the defendant's attack on a primary target, including the type and extent of the force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death [and] the alleged attempted murder victim who was not the primary target was located within that zone of harm." (Canizales, at p. 597.) "In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the victims to the primary target." (Id. at p. 607.)
In Canizales, although substantial evidence allowed the inference that one of the victims was the primary target, the court concluded that the evidence was insufficient to allow the jury to find that the defendants intended to create a zone of fatal harm around the primary target, and that the other victim was within that zone. (Canizales, supra, 7 Cal.5th at p. 611.) While five shots were fired, the defendants were not "in close proximity to the area surrounding their intended target" (id. at p. 610), but shot from 100 to 160 feet away at a block party on a wide city street, and the bullets were "'going everywhere'" as the victims ran after the first shot was fired. (Id. at p. 611.) "This evidence was insufficient to support instruction on the kill zone theory." (Ibid.) Thus, the court reversed the conviction for attempted murder of the other victim. (Id. at p. 615.)
By contrast, here, the evidence showed that appellant fired three shots at three intended victims. From this evidence, the jury could have inferred that each of the victims was a primary target. And, the shooter and the victims were in close proximity to one another; at least one witness testified that he saw the firearm. These facts are closer to the facts in Bland, where the defendant started shooting into a vehicle and then fired at the car as it started to drive away. (Canizales, supra, 7 Cal.5th at p. 611.)
Canizales emphasizes that we must focus on the circumstances of the attack on the primary target to determine whether the evidence allowed the jury to infer the defendant's intent to create a zone of fatal harm. (Canizales, supra, 7 Cal.5th at p. 606.) Although "[s]uch a determination does not turn on the effectiveness or ineffectiveness of the defendant's chosen method of attack," the evidence in Canizales that neither victim of the attempted murder charges was hit by any of the shots fired "further diminishe[d] any inference that defendants intended to create a zone of fatal harm." (Id. at p. 611.)
In contrast here, as set forth above, the jury could have inferred that all three intended victims were primary targets. Thus, although Jesus and Salvador were not struck by the gunshots, the ineffectiveness of appellant's "chosen method of attack" does not compel reversal. (Canizales, supra, 7 Cal.5th at p. 611.)
In short, Canizales held that the trial court should only instruct on a kill zone theory when "there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm." (Canizales, supra, 7 Cal.5th at p. 608.) As the evidence set forth above demonstrates, this case falls squarely within the Supreme Court's scope of kill zone theory. It follows that the trial court did not err in instructing the jury with CALCRIM No. 600.
We reach this result keeping in mind the Supreme Court's following comment: "[W]hen a kill zone instruction is legally warranted and in fact provided, the standard instruction should be revised to better describe the contours and limits of the kill zone theory as we have laid them out here." (Canizales, supra, 7 Cal.5th at p. 609.) Even if CALCRIM No. 600 needs to be revised, the facts in this case support the trial court's use of the standard language in CALCRIM No. 600.
III. Denial of Request for Continuance
Appellant argues that the trial court abused its discretion by denying his request for a continuance to retain private counsel to review grounds for a new trial and to represent him at sentencing.
A. Relevant Proceedings
On September 10, 2012, the preliminary hearing was conducted and appellant was held to answer. On September 24, 2012, appellant was arraigned and pleaded not guilty. Jury selection commenced on or about May 20, 2014. On June 2, 2014, the jury returned its guilty verdicts. Appellant was sentenced on July 9, 2014. Before the trial court pronounced its sentence, appellant's counsel asked to address the trial court. Counsel explained that earlier that day, for the first time, appellant informed his attorney that he was seeking to hire a private attorney to file any necessary presentencing motions.
The trial court framed the issue as "whether to continue the sentencing." It noted that the case was set for sentencing that day, that the jury's verdict had been rendered over a month earlier, that both the prosecution and defense had each filed a sentencing memorandum, and that the court had read the probation report. Thus, the trial court was "basically ready to address the sentencing issues." The trial court then commented that appellant had failed to make his request within a reasonable time after the jury returned the verdicts, which would have been "an appropriate time to put it over as opposed to waiting for today." The trial court noted that if appellant were to retain a private attorney, "that lawyer would need a significant amount of time" to be prepared; thus, the trial court queried as to why the request was not raised earlier.
In discussing the issue with appellant's trial counsel, it was learned that appellant "simply forgot" to tell his attorney that he needed a continuance. When asked if new counsel had been retained, appellant's attorney explained that appellant's family had spoken with Alex Kessel, but had not yet retained him.
The prosecutor opposed the requested continuance.
Ultimately, the trial court denied appellant's request for a continuance, reasoning that it was untimely and appellant had failed to justify the delay in advising the court about his desire to substitute private counsel. The trial court noted that appellant's trial counsel had done "a very thorough and excellent job" at trial. Moreover, the trial court found that a delay would be prejudicial to the victims—they "have a right to have some certainty and resolution of the case in terms of the sentencing, not have it put over about three months." Appellant had not yet even retained private counsel, and "it's speculative whether or not the family would have the funding to retain a private attorney." And, there was no indication that a new attorney would be filing a new trial motion (or that there were grounds to do so); thus, the new lawyer would simply be revisiting the sentencing memorandum.
B. Relevant Law
Under the Sixth Amendment, a criminal defendant has a constitutional right to be represented by counsel at all critical stages of prosecution. (Faretta v. California (1975) 422 U.S. 806, 818-819.) While a defendant has the right to counsel of his choice, this right is not absolute. (People v. Gzikowski (1982) 32 Cal.3d 580, 586.) In this context, a trial court has the discretion to grant or deny a request for a continuance. (People v. Courts (1985) 37 Cal.3d 784, 790.) A court may deny a request for a continuance where the defendant "is 'unjustifiably dilatory' in obtaining counsel" or "'arbitrarily chooses to substitute counsel at the time of trial.'" (Id. at pp. 790, 791.) We review the trial court's denial for abuse of discretion. (People v. Blake (1980) 105 Cal.App.3d 619, 624.)
C. Analysis
The trial court did not abuse its discretion in denying appellant's belated request for a continuance to retain new counsel. Without explanation, he waited until the day of sentencing to make his request. While he claims that he "simply forgot" to mention this issue to his assigned counsel, we do not find this contention compelling.
Moreover, while appellant's family had been in contact with Mr. Kessel, there is no evidence that appellant and/or his family had retained him yet. In fact, there was even some question as to whether appellant had the financial means to retain private counsel. And, in any event, it seems that the new attorney would only be revisiting the sentencing memorandum, which had already been prepared. Under these circumstances, there was no abuse of discretion.
Our conclusion is bolstered by the fact that appellant has not shown that he was not being adequately represented. In fact, appellant was represented by the same assigned attorney throughout the trial proceedings, and the trial court noted that his representation was "thorough" and "excellent."
It follows that the trial court did not err in denying appellant's request for a continuance.
IV. Consecutive Sentences
Appellant argues that the trial court abused its discretion when it imposed consecutive sentences for the three attempted premeditated murder convictions.
A. Procedural Background
At sentencing, the trial court's tentative ruling was to impose the sentences for counts 2 and 3 consecutive to count 1. It reasoned that the crimes were "heinous" because of the injuries Vaca suffered, namely being "paralyzed for life from the [knee] down, having no working urinary system, difficulty concentrating and other physical impacts." Appellant was not a minor participant in the shooting; he acquired the car used during the shooting and participated in the actual shooting itself. The victims were not gang members. Vaca's wife and children were inside the residence at the time of the shooting. And, appellant almost faced murder charges as Vaca's injuries were nearly fatal.
The trial court further found that appellant intended to kill all three victims. The crimes involved "great violence and bodily harm and threat of bodily harm." A weapon was used to commit the crimes. Appellant was a serious danger to society. He was already on probation for a gun charge. And, the shooting was planned.
Finally, the trial court did note two mitigating factors, including appellant's age (26) and insignificant criminal record. But, the trial court found that the factors in aggravation outweighed those factors in mitigation.
B. Relevant Law
Where a defendant has been convicted of a number of serious felonies, each of which separately qualifies the defendant for a life sentence, the trial court has discretion to order that the life terms be served either concurrently or consecutively. (People v. Jenkins (1995) 10 Cal.4th 234, 254-256.)
"Factors affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Facts relating to crimes [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) Other facts and limitations [¶] Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's sentence in prison or county jail under section 1170[, subd.] (h); and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences." (Cal. Rules of Court, rule 4.425.)
Factors in aggravation are set forth in California Rules of Court, rule 4.421. Factors in mitigation are set forth in California Rules of Court, rule 4.423.
C. Analysis
Here, as the trial court noted at sentencing, appellant's crimes "involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Cal. Rules of Court, rule 4.421(a)(1).) His actions demonstrate cruelty because he willfully and knowingly caused pain or distress to others. He was vicious and callous—he hunted down victims that he believed were rival gang members and he attempted to murder them; he participated in a shooting at victims in front of an occupied residence. Any and all of these factors support the trial court's imposition of consecutive sentences.
Moreover, the victims in this case were particularly vulnerable when the shooting occurred. (Cal. Rules of Court, rule 4.421(a)(3).) They were socializing in front of the residence and had no warning or reason to believe that they were targets of a gang. The crimes were planned and sophisticated.
Finally, there were aggravating factors related to appellant. (Cal. Rules of Court, rule 4.421(b).) He engaged in violent conduct indicating a serious danger to society; he attacked innocent people in his failed quest to kill rival gang members; and he was on probation for gun possession when he committed the underlying offenses. (Cal. Rules of Court, rule 4.421(b)(1) & (4).)
In light of this overwhelming evidence, appellant has not demonstrated that the trial court acted outside its discretion in imposing consecutive life sentences.
V. Concurrent Term on Count 4
Appellant argues that the trial court erred in imposing a concurrent term on count 4 (shooting at an inhabited dwelling). According to appellant, the sentence should have been stayed under section 654.
A. Relevant Facts
In sentencing appellant, the trial court imposed counts 1 through 3 consecutively. It imposed a separate term of 15 years to life on count 4 and ordered that this term run concurrent with counts 1 through 3. It reasoned that the concurrent term was justified because the evidence showed Vaca's wife and children were inside the house when the shooting occurred.
B. Applicable Law
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." In other words, section 654 prohibits multiple punishments for a single act or omission, even when that act or omission violates more than one statute and thus constitutes more than one crime. Thus, although a defendant may be charged with and convicted of multiple crimes arising from a single act, the defendant may be sentenced only on the crime carrying the highest punishment; the sentence on the other counts arising from the same act must be stayed. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
If, however, the defendant "harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.) The question of whether a defendant harbored multiple objectives within the meaning of section 654 is a question of fact, and we will affirm the trial court's order if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Significantly, there is a "multiple victim" exception to section 654, which allows separate punishment for each crime of violence against a different victim, even if all of the crimes were part of an indivisible course of conduct with a single objective. (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631; People v. McFarland (1989) 47 Cal.3d 798, 803; People v. Masters (1987) 195 Cal.App.3d 1124, 1128; People v. Anderson (1990) 221 Cal.App.3d 331, 338-339.) As our Supreme Court noted, there is a "greater culpability for intending or risking harm to more than one person," which precludes application of section 654. (People v. Felix, supra, at p. 1631.)
C. Analysis
Here, appellant and his associates worked together to collectively and repeatedly fire at the Vaca residence. The act of shooting into the Vaca residence was a violent crime that targeted at least one additional and different victim not accounted for by the attempted murder convictions, namely Vaca's wife and children. Accordingly, the prohibition against multiple punishment is inapplicable. (People v. Felix, supra, 172 Cal.App.4th at pp. 1630-1631 ["There is a multiple victim exception to Penal Code section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective"].) It follows that the trial court did not err in declining to stay the sentence on count 4.
VI. Gang Expert Testimony
Appellant argues that the trial court erred by admitting case-specific hearsay to prove the criminal street gang enhancement, in violation of Sanchez, supra, 63 Cal.4th 665.
A. Forfeiture
In its respondent's brief, the People argue that appellant forfeited any argument on appeal regarding the detective's testimony because he did not raise any objection during trial.
There is a split of authority on the question of forfeiture in cases involving pre-Sanchez trial proceedings. (Compare People v. Flint (2018) 22 Cal.App.5th 983, 996-998 [Sanchez claim not forfeited] and People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508 (Jeffrey G.) [same] with People v. Blessett (2018) 22 Cal.App.5th 903, 925-941 (Blessett), rev. granted Aug. 8, 2018, S249250.) The issue is currently pending before the California Supreme Court. (Blessett, supra, S249250; see also People v. Perez (2018) 22 Cal.App.5th 201, rev. granted July 18, 2018, S248730.)
Jeffrey G. reasons that hearsay and confrontation clause objections to expert testimony would have been futile in the pre-Sanchez era because the doctrine of stare decisis required trial courts to overrule them. (Jeffrey G., supra, 13 Cal.App.5th at pp. 507-508.) The opinion notes that Sanchez expressly disapproved of six prior state Supreme Court decisions, including People v. Montiel (1993) 5 Cal.4th 877 (Montiel) and People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley). (Jeffrey G., supra, at pp. 506-507 & fn. 4.) In Montiel, the high court endorsed the use of jury instructions advising "that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth." (Montiel, supra, at p. 919.) The Gardeley opinion held that experts could recite hearsay if it constituted "material of a type that is reasonably relied upon by experts in the particular field in forming their opinions." (Gardeley, supra, at p. 618.)
The opposing view on forfeiture, as expressed by the majority of a divided panel in Blessett, scrutinizes the foreseeability changes in the law. The opinion explains how the holdings of Sanchez were foreshadowed by Crawford v. Washington (2004) 541 U.S. 36, Williams v. Illinois (2012) 567 U.S. 50, the concurring and dissenting opinions in People v. Dungo (2012) 55 Cal.4th 608, and two appellate court decisions, People v. Hill (2011) 191 Cal.App.4th 1104 and People v. Mercado (2013) 216 Cal.App.4th 67. (Blessett, supra, 22 Cal.App.5th at pp. 930-932.) Despite the precedential import of Gardeley, all notions of futility were rejected. (Blessett, supra, at p. 933.) In essence, Blessett concludes that objections are never futile so long as changes in the law are "reasonably foreseeable." (Id. at p. 936.)
We express no opinion on the issue of forfeiture because, as set forth below, appellant's argument fails on the merits.
B. Officer Gutierrez's Testimony Did Not Violate Sanchez
"Prior to Sanchez, 'the general rule was that "out-of-court statements offered to support an expert's opinion [were] not hearsay because they [were] not offered for the truth of the matter asserted. Instead, they [were] offered for the purpose of assessing the value of the expert's opinion." [Citation.]' [Citation.] Sanchez similarly noted that 'some courts [had] attempted to avoid hearsay issues by concluding that statements related by experts [were] not hearsay because they "[went] only to the basis of [the expert's] opinion and [were not being] considered for their truth." [Citations.]' [Citation.] This practice, however, conflicted with the rule that 'an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge.' [Citation.] Sanchez thus declared the practice improper, explaining: 'When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, "the validity of [the expert's] opinion ultimately turn[s] on the truth" [citation] of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking.' [Citation.]
"Sanchez explicitly prohibited the introduction by an expert of case-specific hearsay. 'What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.' [Citation.] Based on this holding, the court found that case-specific statements related by a gang expert concerning the defendant's gang membership were inadmissible hearsay, because '[t]hey were recited by the expert, who presented them as true statements of fact, without the requisite independent proof.' [Citation.]
"The court in Sanchez noted that expert testimony could properly encompass certain matters that would generally be subject to exclusion as hearsay: 'Our decision does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field.' [Citation.] Further, '[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.'" (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 877-878.)
Officer Gutierrez's testimony did not violate Sanchez. To the extent she opined that he was a member of the 18th Street gang, she did not base her testimony on inadmissible hearsay. Rather, she testified that she had spoken with appellant in the past "and he admitted to being an 18th Street gang member."
We also reject appellant's challenge to the prosecutor's admission of "case specific hearsay through the hypothetical facts presented to Officer Gutierrez." Detective Gutierrez did not testify that the charged attempted murders were committed for the benefit of the gang. Instead, she testified that a hypothetical crime, based on the facts in evidence, would have benefitted the gang. Such testimony does not contravene Sanchez. (People v. Anthony (2018) 32 Cal.App.5th 1102, 1136 ["An expert may be asked to assume a hypothetical set of case-specific facts for which there is independent competent evidence and testify about what conclusions can be drawn from those facts"].)
C. No Prejudice
Even if Officer Gutierrez's testimony violated Sanchez, appellant has not demonstrated any prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836-837; Chapman v. California (1967) 386 U.S. 18, 23-24; People v. Prieto (2003) 30 Cal.4th 226, 247 [erroneous admission of hearsay evidence will not result in a reversal unless it is reasonably probable that the defendant would have received a more favorable result had the evidence not been admitted].) Aside from Officer Gutierrez's testimony, there was ample evidence that appellant was an 18th Street gang member. Both Neves, appellant's mother, and Tapia, appellant's girlfriend, testified that he is a member of the 18th Street gang. And, Officer Cobian testified that appellant admitted to him that he was a member of that gang.
Moreover, during closing argument, appellant's counsel told the jury: "This was a gang crime. No doubt about it. This shooting was a gang shooting. Okay. We concede that. This was an 18th Street shooting. Concede it." This concession renders any alleged error harmless. VII. Remand for Reconsideration of Appellant's Sentence as to the Firearm Enhancement under Senate Bill No. 620
Appellant asserts that the matter should be remanded for resentencing on the firearm enhancement imposed under section 12022.5, subdivision (a), pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.). The People agree.
At the time of appellant's sentencing, trial courts had no authority to strike firearm enhancements proven under sections 12022.5 and 12022.53. But, Senate Bill No. 620, which became effective January 1, 2018, removed the prohibition; sections 12022.5 and 12022.53 now give trial courts the discretion to strike an enhancement. And, as the parties agree, the amended statutes apply retroactively. We therefore remand the matter to the trial court to consider whether to strike the firearm enhancement pursuant to the discretion now conferred by Senate Bill No. 620.
VIII. Fines and Assessments
In his supplemental brief, appellant argues that the trial court erred in imposing various fines, fees, and assessments without first determining whether he had the ability to pay those fines, fees, and assessments. In support, he relies upon Dueñas, supra, 30 Cal.App.5th 1157. Relying upon People v. Castellano (2019) 33 Cal.App.5th 485, 490, the same court that rendered Dueñas, the People respond that because the matter must be remanded for resentencing, appellant should raise his ability to pay arguments below.
We find no error. (People v. Hicks (2019) 40 Cal.App.5th 320, 322, 324-329.) Even before Dueñas, a trial court could "consider[]" a defendant's "[i]nability to pay" whenever it "increase[ed] the amount of the restitution fine" in excess of the minimum of $300 applicable here. (§ 1202.4, subds. (b)(1), (c).) As appellant concedes, he did not object or otherwise present any evidence regarding his ability to pay to the trial court at sentencing. As a result, the issue has been forfeited on appeal. (See, e.g., People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [by failing to object to fees or fines in the trial court, the defendant forfeited his objection on appeal]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.)
Moreover, there is no indication that any objection would have been futile. "Although [the] statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [appellant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [Appellant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [appellant] was obligated to create a record showing his inability to pay the maximum restitution fine, which would have served to also address his ability to pay the assessments." (People v. Frandsen, supra, 33 Cal.App.5th at p. 1154.)
"More fundamentally, we disagree with [appellant's] description of Dueñas as 'a dramatic and unforeseen change in the law . . . .' [Citation.]" (People v. Frandsen, supra, 33 Cal.App.5th at p. 1154.) "Dueñas was foreseeable." (People v. Frandsen, supra, at p. 1154.)
Setting aside this procedural obstacle, appellant's argument fails on the merits. Based on the constitutional guarantees of due process and ban against excessive fines, Dueñas held that trial courts may not impose three of the standard criminal assessments and fines—namely, the $30 court operations assessment (§ 1465.8), the $40 criminal conviction assessment (Gov. Code, § 70373), and the $300 restitution fine (§ 1202.4)—without first ascertaining the "defendant's present ability to pay." (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1171, fn. 8, 1172, fn. 10.) We need not decide whether we agree with Dueñas because appellant is not entitled to a remand even if we accept Dueñas. That is because the record in this case, unlike the record in Dueñas, indicates that appellant has the ability to pay the assessments and fines imposed in this case. A defendant's ability to pay includes "the defendant's ability to obtain prison wages and to earn money after his release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28 Cal.App.4th 1374, 1376.) Prisoners earn wages ranging from $12 per month (for the lowest skilled jobs) to $56 per month (for the highest). (Cal. Dept. of Corrections & Rehabilitation, Operations Manual, §§ 51120.6, 51121.10 (2019).) At these rates, given appellant's lengthy sentence, he will have enough to pay the assessments and fines.
Even if appellant does not voluntarily use his wages to pay the amounts due, the state may garnish between 20 and 50 percent of those wages to pay the restitution fine. (§ 2085.5, subds. (a) & (c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.)
It follows that we reject appellant's argument that he is entitled to a hearing upon remand to determine his present ability to pay.
In so concluding, we note that appellant "points to no evidence in the record supporting his [present or future] inability to pay." (People v. Gamache (2010) 48 Cal.4th 347, 409.) And, the fact that appellant is represented by court-appointed counsel does not aid his claim on appeal. (See, e.g., People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["a defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine"].)
DISPOSITION
The matter is remanded for resentencing pursuant to Senate Bill No. 620. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT