Opinion
F084503
11-26-2024
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF162787C Kenneth C. Twisselman II, Judge.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
INTRODUCTION
Over a period of three years, members of the Varrio Wasco Rifas (VWR) gang repeatedly targeted Tony V.[ for dropping out of the gang. On the night of December 31, 2015, during one of these targeted attacks, defendant Vicente Ibarra and three other VWR gang members drove up to Tony's house and shot at the house while his family was having a barbeque on the front porch. Ismael Ramirez was shot and killed.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.
During the non-gang substantive offense trial (Phase I), a jury convicted Ibarra of the premediated first degree murder of Ramirez (Pen. Code, §§ 187, subd. (a), 189, count 1).[ Thereafter, Ibarra waived his right to a bifurcated gang trial and pleaded no contest to the substantive gang offense (§ 186.22, subd. (a), count 19) (substantive gang offense), and admitted the gang-murder special circumstance allegation (§ 190.2, subd. (a)(22)) (gang-murder special circumstance), as alleged in count 1, and the gang enhancements (§ 186.22, subd. (b)(1)) (gang enhancements).[ Subsequently, the trial court imposed a total aggregate indeterminate term of life without the possibility of parole, plus 183 years to life, plus a determinate term of 51 years, 6 months.
All further statutory references are to the Penal Code unless otherwise indicated.
As we discuss in detail below, Ibarra was convicted and sentenced to additional offenses and enhancements.
On appeal, Ibarra contends the trial court prejudicially erred when it: (1) "permitted the introduction of a huge volume of highly inflammatory yet irrelevant and prejudicial gang evidence [during Phase I of the trial] and denied his request for a mistrial[;]" (2) "permitted the prosecutor to commit Doyle [ error by allowing the prosecutor to introduce, as an adoptive admission, [his] silence in response to his sister's [Jackie] question 'Why?[;]'" and (3) permitted the prosecutor to introduce "evidence of two gang rap videos without applying the requirements of Evidence Code section 352.2 in its evaluation." (Capitalization omitted.) Finally, Ibarra contends the cumulative effect of these errors "ha[d] a compounding effect that amplifies the prejudice of each individual error."
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
As to the alleged Doyle error, we conclude the trial court erred in admitting Ibarra's silence or unwillingness to answer his sister Jackie's questioning as an adoptive admission because, as we discuss in detail below, there is an inference he was relying on his Fifth Amendment right to remain silent. However, we further conclude any error was harmless beyond a reasonable doubt, as articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman).
Finally, in a supplemental briefing order, this court requested the parties address an apparent sentencing error as applied to counts 9 and 17. As we discuss in detail below, both parties agree the trial court erred in defendant's sentence and therefore, we accept the parties' agreement and remand for the trial court to prepare an amended abstract of judgment reflecting the accurate sentence.
As to Ibarra's remaining claims, they lack merit. Accordingly, we affirm the judgment.
STATEMENT OF CASE
On February 28, 2017, the Kern County District Attorney filed an information charging Ibarra[ with the premeditated first degree murder of Ramirez (§§ 187, subd. (a), 189; count 1), with the special circumstances he intentionally killed Ramirez while lying in wait (§ 190.2, subd. (a)(15)) and that the murder was carried out to further the activities of a criminal street gang (id., subd. (a)(22)); conspiracy to commit murder (§§ 182, subd. (a), 187; count 2); attempted first degree murder (§§ 187, subd. (a), 189, 664; count 3); two counts of unlawfully discharging a firearm at an inhabited dwelling (§ 246; counts 4 &6); assault with a semiautomatic firearm (§ 245, subd. (b); count 5); assault with a firearm (§ 245, subd. (a)(2); count 7); two counts of criminal threats (§ 422; counts 8 &9); unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1); count 17); carrying a loaded firearm on his person or in a car (§ 25850, subd. (c)(3); count 18); and active participation in a criminal street gang (§ 186.22, subd. (a); count 19).
Cristian Gomez, Omar Araujo, Freddie Santa Cruz, and Joseph Gamboa were all charged as codefendants, but only Araujo and Santa Cruz were tried with Ibarra. Araujo was acquitted of all charges, while Santa Cruz has an appeal pending before this court in Case No. F084580.
As to counts 1 through 7, the information further alleged various firearm enhancements (§§ 12022.5, subd. (a), 12022.53, subds. (c), (d), (e)(1)), and as to counts 1 through 18, the information alleged the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Finally, the information alleged Ibarra had suffered a prior "strike" and a prior serious felony conviction for active participation in a criminal street gang (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d), 186.22, subd. (a)).[
The information also alleged Ibarra had served five prior prison terms (former § 667.5, subd. (b)), which have been subsequently disallowed through the passage of Senate Bill No. 136 (2019-2020 Reg. Sess.). (People v. Mayberry (2024) 102 Cal.App.5th 665, 669.) In any event, the trial court did not impose these prior prison term enhancements during sentencing.
On March 1, 2022, the jury was sworn. Prior to the jury being sworn in, the trial court granted trial counsel's motion in limine to bifurcate the gang-murder special circumstance, the substantive gang offense, the gang enhancements, criminal threats (§ 422, counts 8 & 9), and carrying a loaded firearm (§ 25850, subd. (c)(3); count 18) offenses. On March 24, 2022, the trial court granted the People's motion to dismiss the assault with a firearm charge (§ 245, subd. (a)(2); count 7) for insufficient evidence.
On April 15, 2022, after Phase I of the trial, the jury returned guilty verdicts as to counts 1 through 6, and count 17,[ and found true all non-gang related enhancements and allegations. Thereafter, Ibarra waived his right to a jury trial as to the gang offense and gang allegations, and pleaded no contest to counts 8, 9, and 19, and admitted the gang, firearm, and prior conviction allegations as alleged in counts 1 through 6, 8, 9, and 17, and admitted the aggravating factors.[ The People dismissed count 18 (§ 25850, subd. (c)(3)) in exchange for the plea.
The verdict referred to this count as the "Ninth Count." It was the ninth count presented to the jury for determination, but it was listed as Count 17 in both the minute order and information.
Specifically, as to counts 8 and 9, Ibarra admitted to threatening both T.R. and A.G. with death or great bodily injury, which caused both individuals to reasonably fear for their safety. Because of the plea, the specific facts surrounding these offenses are not in the record.
Subsequently, as to count 1, the trial court sentenced Ibarra to an indeterminate term of life without the possibility of parole, plus a consecutive indeterminate term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement and a consecutive five-year term for the prior serious felony (§ 667, subd. (a)). The trial court further imposed a 20-year term for the section 12022.53, subdivision (c) firearm enhancement (§ 12022.53, subd. (c)) and a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed these two enhancements pursuant to section 654. As to count 2, the trial court sentenced Ibarra to an indeterminate term of 25 years to life, doubled to 50 years to life, because of the prior strike, plus an indeterminate term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement, a 20-year term for the section 12022.53, subdivision (c) firearm enhancement, and a five-year term for the prior serious felony (§ 667, subd. (a)), but stayed this total sentence pursuant to section 654. As to count 3, the trial court sentenced Ibarra to an indeterminate term of 15 years to life, doubled to 30 years to life because of the prior strike, plus a 20-year term for the section 12022.53, subdivision (c) firearm enhancement and a five-year term for the prior serious felony (§ 667, subd. (a)), to be served consecutive to count 1.
As to counts 4 and 6, the trial court imposed two consecutive indeterminate terms of 32 years to life, doubled to 64 years to life because of the prior strike, to be served consecutive to count 3. As to count 5, the trial court sentenced Ibarra to the upper term of nine years, doubled to 18 years because of the prior strike, plus a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed this sentence pursuant to section 654. As to count 8, the trial court sentenced Ibarra to the upper term of three years, doubled to six years because of the prior strike, plus a five-year term for the gang enhancement (§ 186.22, subd. (b)(1)), to be served consecutive to count 6. As to count 9, the trial court sentenced Ibarra to a term of eight months (one-third the middle term of two years), doubled to 16 months because of the prior strike, plus a term of 18 months (one-third the term of five-years) for the gang enhancement, to run consecutive to count 8.
As to count 17, the trial court sentenced Ibarra to the term of eight months (one-third the middle term of two-years), doubled to 16 months because of the prior strike, plus a term of eight months (one-third the middle term of two-years), doubled to 16 months because of the prior strike for the gang enhancement, to be served consecutive to count 9. Finally, as to count 19, the trial court sentenced Ibarra to the upper term of three years, doubled to six years because of the prior strike, but stayed this sentence pursuant to section 654. Therefore, the total aggregate sentence imposed was an indeterminate term of life without the possibility of parole, plus 183 years to life, plus a determinate term of 51 years, 6 months.
SUMMARY OF FACTS
I. Prosecution Case-in-Chief
A. Background
Tony lived in a house in Wasco with his mother (Melissa C.), his mother's boyfriend (Ramirez), his brothers, Javier V., Joey C., and Tommy V., and his sisters, Amanda V. and Samantha C. Tony's father, Raul V., and his cousin Agustin V., introduced him to the VWR gang. Tony was around 15 or 16 years old when he was "jumped" into the VWR and began actively participating in gang activity. Tony was familiar with several other VWR gang members and was familiar with the gang's common signs, symbols, color, rivals, and its criminal activities.
Just after midnight on July 27, 2011, Tony was hanging out on the front porch of the house with Amanda, her boyfriend (Oscar L.), Araujo, and two other men, all of whom were VWR gang members. At some point, deputies drove by and shined their vehicle's spotlight on the individuals, which caused Oscar L. to take off running inside the house in order to hide "a .25-caliber Beretta [semiautomatic handgun] and a .25-caliber ammunition magazine that was loaded with four live rounds" inside a washing machine. Subseqeuntly, officers spoke with Tony who stated he had not observed Oscar L. with the handgun, but had observed him with a stun gun, which deputies later "found in a laundry basket outside the back door." Oscar L. was then arrested for possession of the firearm and ammunition; the other VWR gang members became aware that Tony had "[s]nitch[ed]" to law enforcement.
B. Tony Drops out of the VWR Gang
As a result of his cooperation with law enforcement, Tony knew he "was in bad standing [with the VWR], so [he] wanted to leave." Tony began removing his gang tattoos and he "[t]alked with [his] father [Raul]" about how to be "jumped out of the gang[.]" Raul told Tony to contact Carlos; Carlos told Tony to meet him at a "[g]ang member's backyard."
On October 13, 2012, Tony went to the gang member's backyard where three individuals physically beat him for 13 seconds. After the beatings, "[t]hey told [Tony] they would let everybody know [he] was okay" and "[t]hat nobody will mess [with him] no more."
C. Prior Incidents
1. October 13, 2012 Assault
However, later that same night, approximately 10 VWR gang members attacked Tony and his brother, Javier, in an alleyway as they walked to a party. During the attack, these individuals yelled "Varrio Wasco Rifas" and told Tony "[t]hey were going to kill [him]." The gang members repeatedly struck Tony in the head, which caused him to lose consciousness, suffer a fractured jaw, and injuries to both of his eyes. Initially, Tony refused to identify his attackers to law enforcement, but eventually cooperated and identified the attackers as VWR gang members. Deputies located several VWR gang members with bloody clothing near where Tony had been attacked.
Thereafter, in August and September 2013, Tony testified in a jury trial against three of his attackers. During Tony's testimony, an active VWR gang member entered the courtroom and "stare[d] [him] down while [he was] testifying[.]" Tony was intimidated as a result of this act.
2. April 2013 &May 26, 2013 Incidents
VWR gang members repeatedly harassed Tony due to his cooperation with law enforcement in prosecuting the individuals involved in the October 13, 2012 attack. For example, in April 2013, three to four VWR gang members approached Tony and told him he "better not go to court."
Subsequently, on May 26, 2013, Tony was driving a car in Wasco when two VWR gang members drove up next to him and asked," 'Is that Tony?,'" and someone eventually responded," 'It is him.'" The VWR members then "tried to pull [Tony] out of [his] vehicle" while saying," 'Varrios Wasco Rifas, kill him.'" Tony drove off, but the VWR members followed him and fired "five to six" gunshots at his car. Tony attempted to evade the gunshots, which caused him to hit a parked car. Deputies arrived on scene and "found one spent shell casing in the alley just east [of] his residence and six additional spent shell casings on the grass just in front of his residence." Tony told deputies that one of the VWR members told him," 'If you testify and put my brother or cousin in prison for life, I'll kill you.' "
3. August 7, 2013 Incident
On August 7, 2013, a VWR gang member went to Tony's house and called him a" 'fuckin' leva[ '" and stated" 'Varrio Wasco Rifas[,]'" and then fired "[f]ive to six" gunshots at Tony.
Tony testified the word "leva" meant "punk."
4. January 27, 2014 & February 13, 2014 Incidents
On January 27, 2014, an individual spray-painted "Varrio Wasco Rifas," "187," and "Fuck Tony" on Tony's Chevrolet Silverado and house. A couple weeks later, a VWR gang member went to Tony's house and told Tony," 'I have a green light[ to kill you.'" He also told Tony "[i]f he s[aw him] in the streets he would put a bullet in [him]." The VWR gang member left Tony's house and yelled," 'Varrio Wasco Rifas.' "
The prosecution's gang expert Juan Bravo testified a "[g]reen light is a gang term used by gang members, including members of the VWR, to let others know that that member or that person is targeted for an attack or death."
D. Attempted Murder of Tony (Counts 3, 4, &5)
On December 29, 2015, Tony and his family were at his house celebrating Melissa's birthday. Prior to arriving at the house, Tony observed a vehicle following him. Tony parked his vehicle in an alleyway and walked to the house's front porch. The vehicle following Tony stopped; Ibarra and Araujo exited the vehicle while carrying handguns and fired approximately six shots before getting back into the vehicle and fleeing the scene.
Tony got back into his Chevrolet Silverado and followed the vehicle. He observed the vehicle drive into a housing complex and proceeded to call law enforcement to report the shooting. Deputies arrived on scene and Tony described to them the suspects' vehicle, but told the deputy "he knew [who shot him] but he [] refus[ed] to tell [the deputy] who they were." However, Tony later identified both Ibarra and Araujo as the shooters.
At the scene of the shooting, deputies observed bullet holes in Tony's house and they photographed and seized seven spent nine-millimeter FC Luger shell casings in the street along the curb west of Tony's house. There were also bullet holes observed on the neighbor's house.
E. The Murder of Ismael Ramirez (Count 1)
Two days later, on December 31, 2015, the family was having a barbeque on the house's front porch. At some point, Ramirez left the house in his pickup and went to the grocery store. Thereafter, Melissa also left the house and went for a drive. Melissa then came back to the house; Melissa and her son Javier then heard gunshots toward the back of the house. Javier grabbed Melissa and threw her on the ground to protect her from the gunfire. After the gunfire stopped, Javier and Melissa ran toward the alley on the east side of the house and observed an older model four door white Pontiac[ with a loud engine driving off toward Highway 43. Both Melissa and Javier observed Ibarra[ in the front passenger's seat. Javier also identified Araujo and Cristian Gomez[ as the backseat passengers. Neither Javier nor Melissa saw the vehicle's occupants with any weapons or guns, but Javier did observe them using their hands to display a "W," a sign for VWR, as they drove away. Tony was not at the house during the shooting.
Evidence established this vehicle was a white Pontiac Grand Am belonging to VWR gang member Joseph Gamboa.
Javier and Melissa identified Ibarra in a six-pack photo lineup.
Cristian Gomez also went by the name of Alex Gomez.
Melissa then went outside, walked around the front of the house, and observed Ramirez laying on the sidewalk with his arms on his chest. Ramirez was alive and "was making sounds," but his "eyes were rolling back and forth." Melissa kept telling Ramirez," 'Mike, please get up, get up.'" Javier then called 911 and Tony returned home a short time later.
Subsequently, deputies arrived on scene and observed Ramirez laying on the sidewalk next to his pickup truck with multiple gunshot wounds. Deputies located three shotgun shells and six nine-millimeter bullet casings approximately two to three feet away from Ramirez's body.[ Ramirez was transported via ambulance to Kern County Medical Center where he later died three days later from his injuries.[
Crime Scene technicians seized and booked the six nine-millimeter casings, which all had a headstamp of "FC 9mm Luger," and three shotgun shells, which all had a headstamp of "HEVI-Shot 12," from a 12-gauge shotgun. A technician also observed and photographed bullet holes in the back of Ramirez's truck.
The forensic pathologist testified that Ramirez died as a result of "[m]ultiple gunshot wounds."
F. The January 1, 2016 Shooting Incident (Count 6)
On January 1, 2016, a deputy responded to a residence on Birch Street in Wasco regarding a potential shooting. A witness had reported she heard something at night, which she believed were fireworks. The next morning she discovered bullet holes on her house. The deputy observed bullet holes on the witness's house and bullet holes on her vehicle, which was parked in front of the witness's house.
The deputy searched the surrounding area and found three spent FC nine-millimeter Luger casings, two live FC nine-millimeter Luger rounds, one unspent live shotgun round, and three 12-gauge shotgun shells. The live shotgun round was a HEVI Steel brand shotgun shell as were two of the three spent shells. The other spent shotgun shell was a 12-gauge Winchester. The deputy also located a nine-millimeter bullet fragment. All of these items were seized and booked into evidence.
G. Subsequent Law Enforcement Investigation
Between the period of December 20, 2015, and January 1, 2016, Denise S. worked at a convenience store in Wasco. She testified she sold two boxes of 12-gauge HEVI-Steel ammunition to Ibarra in December 2015.[
In January 2016, Denise identified Ibarra in a six-pack photographic lineup.
Thereafter, on January 21, 2016, Ibarra was arrested outside his apartment in Wasco. Deputies located a loaded Smith &Wesson nine-millimeter semiautomatic pistol in Ibarra's left pocket and booked the firearm into evidence. Deputies also searched Ibarra's apartment and found "a baseball cap, a bandana, and a cell phone[.]"
1. Forensic Evidence
A criminalist performed comparisons of Ibarra's firearm and the seized casings that had been recovered from the three shooting scenes. The criminalist opined Ibarra's Smith &Wesson firearm fired all the spent nine-millimeter shell casings recovered from the three shootings. Additionally, the criminalist opined the same shotgun fired all the spent shotgun shells recovered from the murder and January 1, 2016, shooting scenes.[
Law enforcement never located a shotgun.
2. Facebook Messages
On December 30, 2015, Tony attempted to contact Ibarra, Gomez, and Araujo via Facebook Messenger using his own Facebook account. Tony was angry at the three individuals for committing a drive-by shooting at a house where children were present. Specifically, he told Ibarra," I see you. That's what's up. You going against it rules." Tony also told them he would not tell the police, but also said he would remember this incident. Neither Ibarra nor Araujo replied, but Gomez replied with a "thumbs up" emoji.
In February 2016, in order to obtain information, Tony created a Facebook account using the alias "Luis Salas"[ so as to communicate with Gabby Acosta,[ a VWR gang member. Tony recorded several audio conversations with Acosta and these conversations were admitted into evidence. Specifically, Acosta unknowingly told Tony that VWR gang members drove Gamboa's car over to his house to kill him, but they failed. She also told Tony that she wanted to finish the job because Tony" 'was the biggest PC[ in Wasco.' "
Luis Salas was the name of an actual VWR gang member who had the gang moniker, "Toto."
Acosta hung out with Ibarra and went by the gang moniker of" 'G-Locs[.]' "
"PC" stands for protective custody and it refers to gang members who dropout.
H. Leonel V.'s Statements &Subsequent Undercover Jail Operation
Leonel V. was a VWR dropout. On January 9, 2016, Leonel was arrested for auto theft. Subsequently, Leonel told Detective Richard Anderson he would provide him with information regarding the December 31, 2015, murder in exchange for leniency on his auto theft case. He told Anderson he received a phone call "on January 8th . . . from his homie, Freddie Santa Cruz, saying that they needed to give 'Chente' Ibarra[ . . . a ride." During the drive, Leonel observed Ibarra "armed with a 9mm Smith &Wesson handgun" and "[a] sawed-off, pump style shotgun." Leonel described Ibarra as having "the keys to Wasco" - meaning he was high up in the VWR.
Ibarra also went by the nickname of "Chente Ibarra."
On December 31, 2015, Leonel was drinking with a group of VWR gang members[ at Araujo's house when they concocted a "mission" to drive over to Tony's house in Gamboa's car and kill Tony. Leonel also told Anderson he would provide information on the whereabouts of Ibarra, Araujo, and Gomez. As a result, Anderson agreed to release Leonel from custody and place him on ankle monitor on the condition he assist law enforcement in locating Ibarra, Araujo, and Gomez. However, Leonel cut off his ankle monitor as soon as he was released from custody.
Leonel told officers the group included Acosta, Araujo, Ibarra, Gamboa, Gomez, and Santa Cruz.
Thereafter, Leonel was re-arrested in late February 2016. Leonel reached out again to law enforcement to obtain leniency. Leonel told Anderson that Ibarra had told him he shot at the Birch Street house after shooting Ramirez on December 31, 2015. He also told Anderson he observed Santa Cruz with a shotgun on December 31, 2015, and that Santa Cruz had been "check[ed]"[ for failing to kill Tony.
" '[B]eing checked'" is "[w]hen you do something wrong in the gang [and] they beat you up for 13 seconds."
Based on this information, detectives in March 2016 arranged to have Leonel and Santa Cruz placed in the same jail cell with a recording device. Portions of the recorded conversations were admitted at trial. During these conversations, Santa Cruz made several admissions. Specifically, Santa Cruz admitted he had been drinking with other VWR gang members, including Ibarra, Acosta, and Gamboa, when they decided to take Gamboa's car to kill Tony. He confirmed Ramirez was not the intended target. Santa Cruz also told Leonel that he and Ibarra exited the vehicle and shot at the Birch Street address. Ibarra shot the house with a nine-millimeter handgun, whereas Santa Cruz shot the house with a shotgun. Santa Cruz also told Leonel about how they cleaned out Gamboa's car after the shootings.
I. Recorded Jail Phone Calls with Ibarra
On December 16, 2015, law enforcement intercepted a phone call between Ibarra and a VWR gang member who was incarcerated at the Kern County Jail. Ibarra and the VWR gang member discussed how some of the younger VWR members had been hanging out with the PCs in Wasco and thus should be punished. The VWR gang member told Ibarra, "And when I get out homie best believe I'm going to be handling business fool, fuck them PCs homie" and Ibarra replied, "We out here, we're already on that, those fools they going to have a rude awakening but until then."
On January 24, 2016, law enforcement recorded a phone conversation between Ibarra, who was incarcerated at Kern County Jail, and his sister Jackie.[ Ibarra called Jackie because he needed money to be added to his account in jail. On three separate occasions, Jackie asked Ibarra for an explanation as to his involvement in the shootings. Jackie asked Ibarra, "Why brother?," and then asked him, "I mean, why brother? Fuck." Ibarra did not answer either question. Finally, Jackie asked Ibarra, "My question is why?" and Ibarra replied, "Yeah, I'm not gonna answer that." Jackie then stated, "I know you - whatever you - I know that you're not gonna answer you're not gonna - but it's like come on." The prosecutor asked Anderson, "Why was that call significant to you?" and Anderson replied, "I felt the fact that he didn't - he didn't say that he didn't do it, that he wasn't involved, was significant to me."
As we discuss in detail below in section II of the Discussion, this conversation was admitted into evidence as an adoptive admission over trial counsel's objection.
J. Gang Evidence
The gang evidence presented in Phase I was substantial. Deputy Juan Bravo testified as the prosecution's gang expert. He testified that" 'Rifas'" in VWR means "rule or control." VWR's gang territory is the entire city of Wasco and in 2015 the gang had "at least 60 members" and "a number of associates."
VWR has a hierarchy. An associate is not a full-fledged member "but will be involved with the gang through association or assisting or aiding them in committing criminal offenses." The "members or associates who are willing to become part of the gang . . . have to establish themselves with the members who are already in the gang." Then there are the members "who are not as - they are not involved in the criminal activity as much as certain members who are what the gang members call pushing the politics of the gang."
VWR associates with the color blue, which is the color of the Mexican Mafia from which the gang originates. Deputy Bravo testified the following signs and symbols are associated with VWR:
"Some of the common signs and symbols that I have seen throughout my career include the ZIP code, 93280; the letters VWR; Wasco 13; a variation of how they write out VWR, maybe using the letter V, the entire word Wasco, and then the letter R afterwards; and then the number 13 in Roman numerals or numeric numbers."
The number 13 is significant to the Mexican Mafia because "M" is the thirteenth letter of the alphabet. Further, VWR gang members wear the Washington National's baseball hat because of "the W on the Nationals hat[.]" They will also wear Kansas City Royals' attire because the team's logo is "KC," which can stand for Kern County.
Gang members also utilize "monikers" or nicknames.[ Ibarra's moniker was "Chente," and he was an active VWR gang member when the underlying offenses were committed. Araujo's moniker was "Malo," Gomez's moniker was "Gunner," and Santa Cruz's moniker was "Klumz," "Lil' Klumz," and "Clums." Santa Cruz was also an active VWR gang member at the time of the offenses.
A person obtains a moniker "when you get jumped in[to the gang], they usually give to you, or you grow up as a kid and you have it already, depending on the type of name it's called."
1. Prior Gang Contacts
On January 13, 2010, while on patrol, Deputy Andrew Avila contacted Ibarra, who was walking with a companion, and spoke with him. Ibarra made a throwing motion and Deputy Avila "could see it was a firearm that had been discarded in the air."[ Deputy Avila then went to Ibarra's residence and searched his room. He located evidence of gang indicia, along with .22, .25., and .38 caliber ammunition and a 12-gauge shotgun shell.
The firearm "was a revolver, .22 caliber" loaded with six live rounds.
On April 30, 2010, Deputy Bryceton Patterson observed a four-door green Honda occupied by Ibarra and another active VWR gang member. Deputy Patterson contacted Ibarra who "had an open 24 ounce can [of beer] in his lap[.]" He then searched the vehicle and located 24 .22 caliber long rifle rounds inside a purse. He also searched the trunk and "[u]nderneath the spare tire cover [he] found a .22 long rifle[.]" Deputy Patterson spoke with Ibarra who admitted the rifle and ammunition belonged to him; Ibarra was then arrested. Subsequently, two other deputies conducted a separate search of Ibarra's bedroom and located live nine-millimeter rounds in Ibarra's room.
On December 27, 2013, Deputy James Jackson observed Santa Cruz on a bicycle with "a creased blue rag hanging out of his back left pocket." Santa Cruz abandoned the bicycle, took off running, and then made a throwing motion. Deputy Jackson went to the area where Santa Cruz made the throwing motion and discovered "[a] butterfly knife with about a four-inch blade."
On July 22, 2015, Deputy Robert Reed stopped a black Ford Escort for an expired registration. Deputy Reed contacted the driver Anthony Romero, and two passengers, Gomez and Abel Araujo (Omar Araujo's brother). "Anthony Romero had a VWR tattooed on his stomach [a]nd Cristian Gomez had a VW on his right arm . . . [and] he had three dots on his left arm."
On January 3, 2016, Deputy Reed stopped a white Pontiac vehicle driven by Gamboa.[ There were three other individuals inside the vehicle.
As noted above, Javier and Melissa observed a white Pontiac vehicle flee the December 31, 2015, murder scene.
On February 25, 2016, Deputy Tommy Robins went to a body shop and inspected a Kia four-door sedan.[ The vehicle had damage consistent with being shot by a firearm.
This vehicle belonged to Araujo's girlfriend, Katie Garcia. Garcia helped Araujo try to flee to Mexico. She was eventually arrested for aiding and abetting (§ 32).
On June 10, 2016, Ibarra sent a letter from the jail to a fellow active VWR gang member. Specifically, Ibarra stated:
"Fuck yeah. Straight roll call.[ Man, fuck these - I believe it's guerras -but, man, we deep. I would love for all of us to be out there. Man, that would be Wasco's nightmare. Serrio. I can imagine the rampage that would be - that would be. On some straight sick shit. I love it."
Deputy Bravo testified that roll call "[i]n the custody setting it's . . . to determine who is in custody and where they are located within the facility."
On March 16, 2017, Deputy Arthur Sandoval testified he observed Araujo, Gamboa, and Gomez attack Antonio C. when they were all being transported from the jail to the court.
On February 18, 2020, Deputy Jesse Turner was escorting inmates to the elevator at the courthouse when Ibarra "slipped [his] right hand out of [his] cuff and was hitting [Leonel] with the right hand." Leonel could not defend himself because "[h]e was completely handcuffed and secured." As a result of this attack, Leonel suffered "a cut to his left hand."
Deputy Alberto Tovar testified that VWR member Emiliano Martinez made a rap video that referenced a confrontation between Tony and Adrain Martinez, Emiliano's relative. Deputy Tovar stated that "[s]nitches get snitches" is a common phrase within gang culture and "there [were] references in the song about working with cops and then basically saying that they are going to be found dead[.]" Further, in 2009, deputies "located [in Araujo's residence] . . . a handwritten note or letter which contained what appeared to be rap lyrics on it." Specifically, the lyrics stated," 'I ain't givin' a fuck. 187 on your ass, and you will end up in the past. Just like that. I got a Mossberg[ on your ass.' "
Deputy Bravo testified a Mossberg "is a brand of - a common brand of shotgun, a firearm."
2. Gang Expert Opinion
Deputy Bravo opined that Ibarra, Araujo, and Santa Cruz were all active VWR gang members at the time of the underlying offenses. He later opined that Gamboa, Leonel, Gomez, and Acosta were also active VWR gang members. He further opined that Leonel "was facing scrutiny from the gang for an incident that occurred [a]nd that's what . . . led him to drop out of the gang."
Deputy Bravo went through each of the prior incidents described by Tony. He testified VWR members carry out attacks against dropouts and that Tony is "probably the most sought after dropout gang member of VWR." He opined that each one of the incidents were perpetrated by active VWR members as retaliation and discipline for dropping out, and thereafter, testifying against the gang.
II. Defense (Araujo) Case-in-Chief
Ibarra's trial counsel rested and presented no evidence in his defense. However, Araujo's defense counsel called Evangelina A. (Araujo's mother) to testify in his defense. Evangelina testified that on the evening of December 31, 2015, Araujo and Gomez were at her house for a barbeque. Ibarra and Santa Cruz were not at her house. She further testified she went to bed at 11:15 p.m. and Araujo was still at the house.
DISCUSSION
I. The Introduction of Gang Evidence During Phase I of the Trial
Ibarra contends "the trial court deprived [him] of due process and a fair trial when it permitted the introduction of a huge volume of highly inflammatory yet irrelevant and prejudicial gang evidence [during Phase I of the trial] and denied his request for a mistrial." (Capitalization omitted.) Although we agree the gang evidence presented during Phase I was substantial, we conclude the trial court properly exercised its discretion under Evidence Code section 352 in allowing gang evidence it viewed as relevant to motive and intent. Further, we conclude the trial court properly denied Ibarra's motion for a mistrial.
A. Additional Factual Background
Prior to the trial, trial counsel filed motions in limine to limit the gang evidence that was admissible at Phase I of the trial, along with a request to bifurcate the gangmurder special circumstance, the substantive gang offense, the gang enhancements, the offenses of criminal threats (§ 422, counts 8 &9), and the offense of carrying a loaded firearm (§ 25850, subd. (c)(3), count 18). The People opposed bifurcation of the gangmurder special circumstance.
Thereafter, the trial court heard arguments from both parties and issued its ruling on the record. As to bifurcation, the trial court ruled as follows:
"But my tentative is to bifurcate all gang enhancements and gang charges, and that would also . . . That would also include the counts or charges under Penal Code Section 25850 Subdivision (c)(3) because that has gang elements in it. [¶] . . . [¶] So the ones that will be bifurcated . . . For [Ibarra] Count 18 and 19, the same two charges [§ 25850, subd. (c)(3)]."
The trial court also bifurcated the two counts of criminal threats (§ 422, counts 8 &9).
Although the trial court bifurcated the gang offense, enhancements, and allegations, it did permit the prosecution to admit five prior gang contacts regarding Ibarra for the purposes of proving motive and intent. The following relevant exchange between the trial court, prosecutor, and trial counsel occurred:
"[TRIAL COUNSEL]: I am objecting to the admission of all of these because none of these go to the issue of motive or intent with regard to the charged crimes. So I will note that objection for the record before we get into the specifics.
"[TRIAL COURT]: Sure.
"[TRIAL COUNSEL]: Because, as far as I can see, none of these incidents addresses the issue of motive or intent with regards to the charged crimes, underlying charged crimes in this case.
"[TRIAL COURT]: Why don't we let [the prosecutor] respond to that right now since the Court has found that it would be relevant for the People to put on their gang expert to discuss gang motive and intent as it relates to the charges that were not bifurcated. [¶] [Prosecutor].
"[PROSECUTOR]: Thank you, your Honor. [¶] To clarify, it's actually six separate instances. We have five prior and one post, a total of six.
"[TRIAL COUNSEL]: Right.
"[PROSECUTOR]: People's theory from day one, and it hasn't changed, is that you had a person who was active within the same gang that these three defendants are accus[ed] of being a part of and at some point had decided to leave or talk to law enforcement and become, essentially, a rival. And, in doing so, he's been green-lit, and they have been trying to kill him ever since that time period occurred, which is around 2011-2012. [¶ ] As an active participant within the VWR, if there's somebody who is green-lit and they have a chance to kill this individual or to attack them they are supposed to. And the instances in this case, the attempted murder and the murder, albeit it was the wrong person for the murder, the intent was to go kill Tony. And we have evidence to show that. [¶] . . . [¶] And we have evidence that shows that these individuals knew of Tony, knew of what he did, and, as such, he is a rival. They went to go kill him and killed the wrong person.
"[TRIAL COURT]: And you are trying to also establish a basis, evidentiary basis, for your expert to opine that the three defendants were active members of the gang at the time of these alleged crimes.
"[PROSECUTOR]: Yes, pursuant to the Sanchez [ case with the live witnesses so that he has a basis for that opinion.
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
"[TRIAL COURT]: [Trial counsel].
"[TRIAL COUNSEL]: I understand that that's the People's theory of the case. But I don't see how all these different instances - they may establish my client may be a member of Varrio Wasco Rifas, but I don't see how it goes to the intent element of this. That gets into speculation as to what the intent was in this case. I don't think there's any direct evidence that that's exactly why they were doing it. And, certainly, if there is direct evidence, then they don't need all of this to present to the jury in the first phase with regards to gang affiliation.
"[TRIAL COURT]: Submit?
"[PROSECUTOR]: Submit.
"[TRIAL COUNSEL]: Submit.
"[TRIAL COURT]: I am going to overrule the objection. I do find that it's relevant for the People to be able to establish both intent and motive with regard to the charged crimes that will not be bifurcated. And the theory of the People's case is that people who are active gang members of this criminal street gang, if they can establish that, would have had a motive to try to cause harm to the alleged victim or death to the alleged victim. And the expert can't testify as to what these specific defendants' intent was. He can just describe in general here's how gangs operate, this gang specifically operates, and here's what its members may be expected to do under certain circumstances. [¶] So that's the purpose of the Court allowing it. [¶] So now are you ready to discuss the specific incidents or evidence that [prosecutor] is seeking to admit, [trial counsel]?
"[TRIAL COUNSEL]: Yes, I am.
"[TRIAL COURT]: So starting with Image 170, that's from February 7, 2003. [¶] Do you want to make any record on that?
"[TRIAL COUNSEL]: Yes, your Honor. Obviously, with this one, any statements by my client that are allegedly made indicating any involvement in Varrio Wasco Rifas and any statements he made, that would need to be addressed at a Miranda [ hearing.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
"[TRIAL COURT]: My tentative is to have that Miranda hearing prior to the witness's testimony.
"[TRIAL COUNSEL]: Okay.
"[TRIAL COURT]: Anything else on that, [trial counsel]?
"[TRIAL COUNSEL]: I don't believe so with regards to that one, your Honor.
"[TRIAL COURT]: So you are objecting and submitting otherwise.
"[TRIAL COUNSEL]: Yes. [¶] . . . [¶]
"[TRIAL COURT]: [Trial counsel], next is Image 180 from August 25th, 2011. We did discuss redacting any evidence that [Ibarra] was on parole. [¶] What else?
"[TRIAL COUNSEL]: And then anything regarding any sentence that he received as a result of the plea.
"[TRIAL COURT]: Are you agreeing to that, [prosecutor]?
"[PROSECUTOR]: I am. [¶] . . . [¶]
"[TRIAL COURT]: Next, [trial counsel], is Image 182 from April 30, 2010. We noted we would need a Miranda.
"[TRIAL COUNSEL]: Yes. We have a Miranda issue. It's purportedly, I believe, an admission with regards to the weapons and the other items.
"[TRIAL COURT]: What else?
"[TRIAL COUNSEL]: And then the sentence, obviously, issue needs to be redacted out. [¶]
"[PROSECUTOR]: Agreed. [¶] . . . [¶]
"[TRIAL COURT]: Next, Image 184 from January 13, 2010. [¶] [Trial counsel].
"[TRIAL COUNSEL]: Yes. With regards to that, obviously, since this case involves firearm possession and in this case some of the underlying charges, I am objecting to this one for those reasons. And then also I think we need to address issues of Miranda on this one since there's an allegation that my client admitted the firearm was his. And also the prison sentence will have to be redacted.
"[TRIAL COURT]: [Prosecutor].
"[PROSECUTOR]: Submit it on that, your Honor.
"[TRIAL COURT]: Well, you are not submitting on redacting the firearm.
"[PROSECUTOR]: No. I'm sorry. On the sentence part, yes. But on the firearm it's relevant with regards to primary activities of VWR.
"[TRIAL COURT]: And the Court's tentative would be that the evidence of possession of a firearm is highly probative in light of the charges in this case. [¶] Considering the prejudicial effect, there's no evidence that he fired the gun. [¶] Is that correct?
"[TRIAL COUNSEL]: There is none.
"[TRIAL COURT]: So I think that substantially reduces the prejudicial effect. And I am going to find under [Evidence Code section] 352 that the probative value is not substantially outweighed by its prejudicial effect and allow that evidence as we discussed. [¶] Anything further to clarify that, [trial counsel]?
"[TRIAL COUNSEL]: No, your Honor.
"[TRIAL COURT]: Next is Image 188 from August 13, 2007. [¶] [Trial counsel].
"[TRIAL COUNSEL]: With regards to this one, I will submit.
"[PROSECUTOR]: Submit it, your Honor.
"[TRIAL COURT]: I will allow that one. [¶] The post-arrest is from Image 173. And that's from February 18, 2020. [¶] [Trial counsel].
"[TRIAL COUNSEL]: I will submit on that one.
"[PROSECUTOR]: Submit it, your Honor.
"[TRIAL COURT]: I will allow it." (Italics added.)
The next day, the trial court heard further argument regarding the admissibility of gang evidence and the proposed PowerPoint slides relied on by Deputy Bravo. Specifically, trial counsel argued "when it comes to Mr. Gamboa and Mr. Gomez, one of the things that he is relying upon is their involvement in this current case [and] [t]hey are no longer defendants in this current case." Therefore, trial counsel argued to "take out the slides that reference Gamboa and Gomez only . . . because they are no longer a part of this case, reference to that being something he relies upon with regards to his opinion." The prosecutor replied that "even though those two defendants have pled out, [he] still ha[s] to prove up the conduct of those individuals . . . [and] have to prove that those conducts were being committed by active gang members of this alleged gang." Therefore, "[b]ased on that - and [his] expert would have to use that to rely, as Sanchez requires us to, to give a basis, not just make an empty opinion." (Italics added.) The trial court overruled trial counsel's objection and found "that the probative value of that evidence is not substantially outweighed by its prejudicial effect."
The trial court directed the prosecutor to limit the number of prior street checks, police reports, and other incidents he wanted Deputy Bravo to rely upon. Specifically, the trial court limited the prosecutor to "no more than five what I will call pre-arrest contacts or incident reports and no more than one post-arrest." Specifically, the trial court permitted the prosecutor to introduce the following six contacts during the trial:
-On February 7, 2003, Deputy Jackson contacted [Ibarra] who admitted he was an active VWR gang member. He stated he had been a VWR gang member since the age of 11 and was accepted into the gang. During the contact, [Ibarra] made the hand sign of the letter "W" with his hand (Image 170).
-On February 18, 2020, while in custody, [Ibarra] assaulted VWR dropout, Leonel (Image 173).
-On August 25, 2011, Deputy Ferguson contacted [Ibarra] and located methamphetamine and other indicia of drug sales inside [Ibarra's] bag (Image 180).[
The underlying facts of this prior contact were not introduced at trial.
-On April 30, 2010, Deputy Patterson contacted [Ibarra] and a VWR gang member inside a vehicle. Deputy Patterson located narcotics, ammunition, and a firearm. [Ibarra] admitted the items belonged to him (Image 182).
-On January 13, 2010, Deputy Avila attempted to contact [Ibarra], but he ran away from the deputy and threw a firearm. [Ibarra] was detained and a Ruger .22 caliber revolver was seized. Deputy Avila also searched [Ibarra's] residence and located numerous gang related items (Image 184).
-On August 13, 2007, Deputy Avila attempted to contact [Ibarra], but [Ibarra] ran away. Eventually, [Ibarra] was located and was found to be in possession of a knife and was arrested. [Ibarra] was found with an active VWR gang member (Image 188).
Deputy Bravo testified about various VWR gang members' tattoos and their relevance. At this point, trial counsel objected for relevance, and outside the presence of the jury argued the following:
"At this point I have allowed it to go a little bit longer than I even felt was necessary. But I fail to see how all this information with regards to Deputy Bravo's experience goes to the issue of motive or intent with regards to the charges that these defendants are facing in the first phase of this trial. This is all wonderful background information once we get to the second phase, but it doesn't get to the issue of motive and intent with regards to these charges. And that's the basis for my objection.
Trial counsel continued:
"Your Honor, with regards to the motive and intent, [Tony] has already pretty much laid out what he believes or what he is saying the motive and intent of these defendants were because of his status at the time of this incident, the prior incidents involving himself. I just don't see where this adds anything. In fact, it's cumulative as to what [Tony] has already testified to and I am sure will continue to testify to. So I don't see where this is - even under [Evidence Code section] 352, I don't see where this is particularly probative as to the issues of motive and intent."
Defense counsel for both Araujo and Santa Cruz joined in the objection.[ Santa Cruz's counsel also asked for a mistrial. The prosecutor responded, "I am laying the foundation for the expert's opinion with regards to what would happen if an individual testifies or drops out of the gang, which is absolutely the crux of the motive in this case." The trial court overruled the objection and stated the following:
Prior to the trial, all defense counsel stipulated "that any objection or motion made by one defense attorney shall be deemed to be joined in by all the others unless [they] ma[de] a specific record to the contrary."
"I am going to overrule the relevance objection. I do find that it's probative and relevant for the witness to testify as to his knowledge about the unique - any unique characteristics of the Varrio Wasco Rifas criminal street gang.
And I think that this is part of laying the foundation for the witness to express an opinion on if tattoos are relevant and what about a tattoo is relevant, including then when he forms an opinion about one of the defendants.
"So I am overruling the objection. Obviously, I don't expect [the prosecutor] to spend a long time on these things. We don't need to show him multiple photos of people's tattoos to establish that they wear them on their neck or face. Just, you know, cut to the chase on that unless you are talking about one or more of the defendants. If you are talking about third persons, again, I am going to limit you on that under [Evidence Code section] 352."
As to the mistrial motion, the trial court ruled as follows:
"I am denying the motion for mistrial. Again, the case law - and I have seen a number of cases now that have been published since the new law went into effect or when it was about to go into effect. And the appellate courts are not reversing cases because there was gang evidence. They are reversing them because there's been a change in some of the definitions that the jury has to be instructed on or that there need to be bifurcations under the new law. But none of these cases have said that because the jury heard gang evidence that now there's some kind of prejudice that requires a mistrial.
"And I do find that it's relevant for the purposes I have previously stated, and so that motion for mistrial is denied. I do not find that the defendants have been denied a fair trial. I do not find a miscarriage of justice."
B. General Legal Principles
"In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), known as the STEP Forward Act of 2021. (Stats. 2021, ch. 669, § 1.) Assembly Bill 333 amended Penal Code section 186.22 by imposing new substantive requirements relating to gang enhancements and the criminal offense of gang participation. (Stats. 2021, ch. 699, § 4.) Assembly Bill 333 also added section 1109, which provides that, if requested by the defense, a trial court must try a gang enhancement charge separately from the underlying offense. (§ 1109, subd. (a); Stats. 2021, ch. 699, § 5.)" (People v. Burgos (2024) 16 Cal.5th 1, 7 (Burgos), fn. omitted.) Specifically, section 1109 states the following:
"(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:
"(1) The question of the defendant's guilt of the underlying offense shall be first determined.
"(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.
"(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22." (§ 1109.)
Although section 1109 requires that upon a defense request a gang enhancement allegation be tried separately from the underlying offenses (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran), it does not mandate exclusion of gang evidence in the nongang portion of a bifurcated proceeding. Rather, gang evidence may be admitted "to prove other facts related to a crime." (Id. at p. 1208.) As our Supreme Court has held, "[e]vidence of the defendant's gang affiliation - including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like - can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) "A trial court has wide latitude to admit evidence relevant to motive" (People v. Johnson (2019) 32 Cal.App.5th 26, 62 (Johnson)), and when the alleged motivation of the crime is gang related, "evidence tending to show" gang membership is "highly relevant." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 (Olguin).)
C. The Trial Court Properly Determined the Gang Evidence's Probative Value Was Not Substantially Outweighed By its Risk of Undue Prejudice Pursuant to Evidence Code Section 352.
First, Ibarra contends the trial court abused its discretion when it decided to permit the prosecutor to introduce cumulative, irrelevant gang evidence during Phase I of the trial.
1. Applicable Law
"We review the trial court's rulings regarding the admissibility of the evidence for an abuse of discretion. [Citation.] A trial court's decision to admit or exclude evidence '" 'will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.'" '" (People v. Mataele (2022) 13 Cal.5th 372, 413-414.)
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.)" 'Relevant evidence' means evidence, . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) All relevant evidence is admissible "[e]xcept as otherwise provided by statute[.]" (Evid. Code, § 351.) Trial courts possess broad discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the jury." (Evid. Code, § 352.)
"The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason." (Olguin, supra, 31 Cal.App.4th at p. 1369.) "Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial." (People v. Martin (1994) 23 Cal.App.4th 76, 81.)
2. Analysis
Ibarra argues "the trial court abused its discretion by allowing introduction of irrelevant [gang] evidence and by failing to exclude that evidence on the ground that it was more prejudicial than probative." At the outset, the trial court granted trial counsel's motion to bifurcate all gang enhancements and gang allegations. However, as the trial court found, evidence of VWR gang membership was relevant during Phase I of the trial to establish that its members "would have had a motive to try to cause harm to the alleged victim or death to the alleged victim." (See, e.g., People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168 ["Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. [Citation.]' "[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence."' "].)
Here, Ibarra was charged with shooting at Tony on two separate occasions, and in the second shooting Ibarra ended up killing Ramirez. Per the prosecution's theory of the case, Ibarra intended to kill Tony, a VWR dropout, for speaking with and assisting law enforcement in its investigation regarding the October 13, 2012 attack. Deputy Bravo, the prosecution's gang expert, testified the VWR gang retaliated against and disciplined dropouts, and that Tony was "green lit" for execution by the gang. Deputy Bravo also went through each of the prior incidents described by Tony and opined that each one of the incidents were perpetrated by active VWR gang members to discipline Tony for dropping out, and thereafter, testifying against the gang. Because "[a] trial court has wide latitude to admit evidence relevant to motive" (Johnson, supra, 32 Cal.App.5th at p. 62), where, as here, the alleged motivation of the crime was gang related, "evidence tending to show" gang membership was "highly relevant." (Olguin, supra, 31 Cal.App.4th at p. 1373.)
Nonetheless, although Ibarra appears to concede that some evidence of his gang membership may have been relevant in Phase I of the trial, he points to several pieces of evidence he argues were both cumulative and substantially prejudicial to his case. Specifically, he refers this court to the six prior contacts reflected in Images 170, 173, 180, 182, 184, and 188. During the trial, trial counsel argued these prior contacts were irrelevant because he did not "see how all these different instances . . . goes to the intent elements of this. That gets into speculation as to what the intent was in this case."
However, the trial court overruled the objection because Deputy Bravo was permitted to "describe . . . how gangs operate, this gang specifically operates, and . . . what its member may be expected to do under the circumstances." It is unquestionable Ibarra's VWR membership, which was partially established through prior law enforcement contacts, was relevant to establish the motive behind why he targeted and attempted to kill Tony. This included "[e]vidence of [] defendant's gang affiliation -including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like - [which] can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to the guilt of the charged crime." (Hernandez, supra, 33 Cal.4th at p. 1049.)
Further, Ibarra argues the evidence regarding his gang tattoos was irrelevant" 'to the issue of motive and intent.'" Specifically, trial counsel objected after the following line of questioning:
"[PROSECUTOR]: As you have done patrol and also within your duties as a gang officer, have you seen photos and in person the tattoos of VWR gang members?
"[DEPUTY BRAVO]: Yes. I have taken photos myself. I have seen VWR gang members' tattoos in person on multiple occasions, dozens of times.
"[PROSECUTOR]: Have you also seen it on social media?
"[DEPUTY BRAVO]: I have.
"[PROSECUTOR]: Facebook?
"[DEPUTY BRAVO]: Yes. [¶] ... [¶]
"[PROSECUTOR]: The large VWR across the chest, is that one of the more common ones you will see on VWR gang members?
"[DEPUTY BRAVO]: Yes.
"[PROSECUTOR]: When you have spoken with VWR gang members and they have tattoos, this one that we are looking at could be easily hidden with a shirt. [¶] Is that fair to say?
"[DEPUTY BRAVO]: That's fair to say, yes.
"[PROSECUTOR]: Have you ever come across individuals who have VWR gang tattoos in very visible places such as the face or neck?
"[DEPUTY BRAVO]: I have.
"[PROSECUTOR]: Have you ever talked to them about why would you get it in such a visible place?
"[TRIAL COUNSEL]: Your Honor, at this point I am going to object as to relevance."
Subsequently, the trial court overruled the objection, but told the prosecutor, "We don't need to show [Deputy Bravo] multiple photos of people's tattoos to establish that they wear them on their neck or face." Again, the tattoo evidence was highly relevant to establish Ibarra's gang membership and active participation in the VWR gang. (See People v. Albillar (2010) 51 Cal.4th 47, 62 [expert witness testified the gang tattoo on the defendant's face" 'shows that the individual has a lot of love for that gang and is continually representing the gang and his affiliation with it' "].) Furthermore, the trial court "neither granted nor rejected admission of the proffered evidence in toto," but "[i]nstead, [it] ruled some of the People's evidence admissible and some inadmissible." (People v. Ortiz (2003) 109 Cal.App.4th 104, 117.)
Finally, Ibarra implicitly argues that because trial counsel offered to stipulate he was a gang member to avoid the" 'excessive'" gang evidence, this supports his assertion that this gang evidence was both cumulative and prejudicial.[ We find our Supreme Court's decision in People v. Valdez (2012) 55 Cal.4th 82 (Valdez) instructive. In Valdez, the defendant's counsel offered to stipulate the defendant was an active gang member. Therefore, on appeal, the defendant argued the gang evidence was irrelevant because defendant's counsel "offered to stipulate to the 'exact language' of the entire alleged gang enhancement." (Id. at p. 132.) However, the appellate court disagreed because "[t]he proposed stipulation that defendant . . . w[as] . . . [a] gang member[] would have done little, if anything, for the prosecution; under the operative statutory language, as set forth above, that fact was neither necessary nor sufficient to establish any element of the gang enhancement. (See People v. Valdez (1997) 58 Cal.App.4th 494, 505 ['gang membership is not an element' of gang enhancement].)" (Ibid.) Similarly here, the proposed stipulation from trial counsel that Ibarra was a VWR gang member would have done little to assist the prosecutor in establishing the underlying motive behind the offenses. Based on the gang evidence's probative value, the prosecutor was not required to accept any stipulation from trial counsel regarding Ibarra's gang membership. (See People v. Rogers (2013) 57 Cal.4th 296, 329 ["A trial court cannot compel a prosecutor to accept a stipulation that would deprive the state's case of its evidentiary persuasiveness or forcefulness."].) Accordingly, Ibarra's six prior contacts with law enforcement and his tattoos were relevant to establish his VWR gang membership and explain to the jury the intent and motive behind the underlying offenses.
The record indicates that trial counsel joined Araujo's counsel's offer to stipulate Ibarra was a VWR gang member.
D. The Trial Court Properly Denied Ibarra's Motion for a Mistrial
Second, Ibarra contends "[t]he trial court abused its discretion when it denied the .. motion for a mistrial based on the uncontrolled introduction of gang evidence because the decision was not informed by the changes to the law embodied in . section 1109."
1. Applicable Law
"The denial of a motion for mistrial is generally reviewed for abuse of discretion. [Citation.]' "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" [Citation.] A motion for a mistrial should be granted when"' "a [defendant's] chances of receiving a fair trial have been irreparably damaged." '"' [Citation.] As the moving part[y], [defendant] b[ears] the burden of proof to demonstrate this." (People v. Garcia (2022) 83 Cal.App.5th 240, 248.)
2. Analysis
Here, the trial court acted well within its discretion in finding the gang evidence relevant and in finding that Ibarra's chances of receiving a fair trial had not been irreparably damaged. As noted above, Ibarra is not arguing that gang evidence was irrelevant in this case, but rather argues that not all of the evidence was necessary and that its "minimal" probative value was outweighed by its "highly inflammatory" nature. Specifically, Ibarra argues that "Tony provided the background information that formed the basis of the prosecution's gang theory of the case," and that it "was undisputed the VWR qualifies as a criminal street gang[,] [e]vidence that gangs retaliate against snitches is so common in gang cases that it could be deemed to be common knowledge[,]" and he "acknowledged that he was active in VWR when he was arrested." Therefore, he argues all this additional gang evidence was cumulative and highly inflammatory and "[i]nstead of focusing on these three issues, the trial court permitted the prosecutor to run wild with the cumulative gang evidence."
However, "defendant cites no authority for the argument that the prosecution must forgo the use of relevant, persuasive evidence to prove an element of a crime because the element might also be established through other evidence." (Tran, supra, 51 Cal.4th at pp. 1048-1049.) "[T]he prosecution cannot be compelled to' "present its case in the sanitized fashion suggested by the defense." '" (Id. at p. 1049.) Further, as noted above, the trial court told the prosecutor to "cut to the chase" and to focus Deputy Bravo's testimony on the individuals who engaged in the offenses, not third parties. Again, it was well within the trial court's discretion to allow Deputy Bravo to testify about the significance of Ibarra's tattoos, as it related to his strong ties to the VWR gang, and that this strong connection to the VWR gang resulted in him targeting Tony for both snitching on his fellow gang members and then subsequently dropping out of the gang. Therefore, there is nothing in the record to indicate Ibarra's chances of receiving a fair trial were irreparably damaged as a result of the introduction of this aforementioned gang evidence. Accordingly, the trial court properly exercised its discretion when it overruled trial counsel's relevance objection and then subsequently denied the mistrial motion.
E. Harmless Error
Nonetheless, even if the trial court erred, any error in admitting the challenged gang evidence or denying the motion for a mistrial was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).[ Under Watson, the judgment may be overturned on appeal only if the defendant shows "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Ibid.)
Ibarra argues "the admission of the gang evidence deprived [him] of his constitutionally protected right to due process of law . . . [and therefore,] the prosecution must show that the error was harmless beyond a reasonable doubt" under Chapman. However, as our Supreme Court articulated in Tran with regard to a failure to bifurcate pursuant to section 1109, "We also reject [the defendant's] argument that the Chapman . . . standard for federal constitutional error should apply when reviewing his guilty verdicts. '[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.'" (Tran, supra, 13 Cal.5th at p. 1209, italics in original.) Here, the trial court weighed the probative value of the evidence against its prejudicial effect, admitted the evidence on relevant issues of motive and intent, and gave a limiting jury instruction in the form of CALCRIM No. 1403 (Limited Purpose of Evidence of Gang Activity). This is not "one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair." (People v. Albarran (2007) 149 Cal.App.4th 214, 232 [admission of "extremely inflammatory gang evidence" that had "no legitimate purpose" was not harmless and violated due process]; see People v. Partida (2005) 37 Cal.4th 428, 439 [improper admission of gang evidence did not render the trial fundamentally unfair].)
Here, there is no reasonable probability Ibarra would have obtained a favorable result in the absence of the error. The evidence demonstrating Ibarra's guilt was overwhelming. Tony identified Ibarra as the individual who shot at him on December 29, 2015, and both Javier and Melissa identified Ibarra in the front passenger seat of the vehicle that drove by and shot at the house on December 31, 2015, which resulted in Ramirez's killing. Further, Denise testified she sold Ibarra two boxes of 12-gauge HEVI-Steel ammunition; these types of shotgun shells were found at both the murder scene and the scene of the January 1, 2016 shooting. Leonel, although his credibility was at issue during the trial, testified that Ibarra and a group of VWR gang members concocted a plan to shoot Tony on December 31, 2015. More importantly, Ibarra was arrested while carrying a loaded Smith &Wesson nine-millimeter semiautomatic pistol in his left pocket - the same pistol that a criminalist opined fired all the spent nine-millimeter shell casings recovered from the three shootings.
As it relates specifically to the prejudicial effect on a failure to bifurcate, the Tran court stated the following:
"[A]part from describing the general risk of prejudice that may result from the admission of gang evidence, [the defendant] does not explain how the exclusion of gang evidence in this case would have been reasonably likely to change the jury's verdict of guilt as to the underlying murder. The case for guilt here was strong, with multiple witnesses testifying that [the defendant] had told them about his involvement in the killing . . . Given the overwhelming evidence of guilt and lack of any credible defense theory in response, it is not reasonably likely that a bifurcated trial would have changed the jury's verdict." (Tran, supra, 13 Cal.5th at pp. 1209-1210.)
Similarly here, Ibarra addresses the fact that Melissa and Javier both identified him as the front seat passenger in the vehicle that shot at the house and that he was found in possession of the nine-millimeter firearm used in all three of the shootings, but still argues that "[t]he gang evidence made the difference." This is not a case where the prosecutor attempted to use Ibarra's gang affiliation to buttress a weak evidentiary case. Rather, the evidence of guilt in this case was overwhelming and the prosecutor used gang evidence as a means of explaining the underlying reasons for why the offenses were committed - specifically, that Ibarra had both the intent and motive to kill Tony.
Further, any potential for prejudice was mitigated by the trial court instructing the jury it could only consider the gang evidence for a specific purpose (CALCRIM No. 1403).[ (See People v. Washington (2017) 15 Cal.App.5th 19, 26 (Washington) ["As a 'general rule,' courts presume that juries can and will dutifully follow the instructions they are given, including instructions that limit a jury's consideration of evidence for certain purposes"].)
The trial court instructed the jury with CALCRIM No. 1403, as follows: "You may consider evidence of gang activity only for the limited purpose of deciding whether: "The defendant had a motive and/or intent to commit the crime[s] charged. "You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. "You may not consider the evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
Accordingly, because the evidence of guilt was strong and the trial court provided the jury with a limiting instruction on how to apply the gang evidence in this case, we find any presumed error to be harmless.[
Ibarra further argues the admission of gang evidence was prejudicial because "essentially the same substantive evidence was admitted against Araujo . . . [b]ut he was acquitted." This simply is not the case. Unlike Araujo, Ibarra was identified by Denise as the individual who bought the HEVI-Steel shotgun ammunition and was the individual found in possession of the firearm used during all three of the shootings. The evidence of guilt against Ibarra was substantially stronger than the evidence of guilt against Araujo.
II. Alleged Doyle Error
Ibarra further contends "the trial court deprived [him] of due process of the law when it permitted the prosecutor to commit Doyle error by allowing the prosecutor to introduce, as an adoptive admission, [his] silence in response to his sister's question 'Why?'" (Capitalization omitted.) We agree the prosecutor committed Doyle error by introducing Ibarra's silence during his conversation with his sister Jackie, but conclude the error was harmless beyond a reasonable doubt as articulated in Chapman.
A. Additional Factual Background
On March 24, 2022, trial counsel informed the trial court the prosecutor intended to introduce a tape of a jail phone call that occurred on January 24, 2016, between Ibarra and his sister, Jackie. Specifically, the prosecutor intended to introduce Ibarra's silence to Jackie's questions as an adoptive admission. The relevant portions of the phone call are as follows:
"[JACKIE]: Why brother?
"[IBARRA]: I guess it's better to just stay strong you know? [¶] . . . [¶]
"[JACKIE]: I'll write to you brother. But you just have to be strong as well - I mean, why brother? Fuck.
"[IBARRA]: All right. I mean if you get - just try to do me that favor (Jackie). [¶] . . . [¶]
"[JACKIE]: My question is why?
"[IBARRA]: Yeah, I'm not gonna to answer that."
Trial counsel objected to the introduction of this phone call because Ibarra was invoking his right to silence on the advice of counsel. The trial court then had an unrecorded sidebar with counsel and subsequently overruled the objection. The phone call was played for the jury (People's Exhibit No. 57). Trial counsel then objected to the trial court providing the jury with the adoptive admission instruction; however, the trial court overruled this objection as well. The trial court proceeded to instruct the jury with the adoptive admission instruction (CALCRIM No. 357).[
The trial court instructed the jury with CALCRIM No. 357, as follows: "If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: "1. The statement was made to the defendant or made in his presence; "2. The defendant heard and understood the statement; "3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; "AND "4. The defendant could have denied it but did not. "If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose. "You must not consider this evidence in determining the guilt of any other defendant."
On January 21, 2016, three days before the phone call, Ibarra had been arrested, law enforcement provided him with his Miranda rights, and he was then interrogated. Deputy Bravo testified Ibarra was aware the phone calls at the jail were recorded and that Ibarra had been informed not to talk to anyone about his case on the phone.[
The jail call recording stated the following: "This call is from a correction facility and is subject to monitoring and recording."
B. Forfeiture
At the outset, the Attorney General argues trial counsel "never made a specific objection to the challenged evidence on Doyle error grounds" and therefore, "the trial court never had an opportunity to consider whether admission of the evidence violated due process or to make a ruling on this specific point." We disagree. Trial counsel objected to the introduction of the phone call between Ibarra and Jackie because Ibarra "refuse[d] to talk about the incident with his sister since the conversation [was] being recorded and it's announced as being recorded." Because trial counsel objected based on Ibarra implicitly asserting his right to remain silent, which is the basis of the right to silence articulated in Doyle, we find he properly preserved this argument for appeal.[
Because we conclude this claim was not forfeited on appeal, we do not address Ibarra's corollary ineffective assistance of counsel claim.
C. Applicable Law
The Fifth Amendment to the United States Constitution provides that "[n]o person .. shall be compelled in any criminal case to be a witness against himself ..." (U.S. Const., 5th Amend.) To safeguard a suspect's Fifth Amendment privilege against self-incrimination from the "inherently compelling pressures" of the custodial setting (Miranda, supra, 384 U.S. at p. 467), the high court adopted a set of prophylactic measures requiring law enforcement officers to advise a suspect of his right to remain silent and to have counsel present prior to any custodial interrogation (id. at pp. 444-445).
"In Doyle, the United States Supreme Court held that it was a violation of due process and fundamental fairness to use a defendant's postarrest silence following Miranda warnings to impeach the defendant's trial testimony. (Doyle, supra, 426 U.S. at pp. 617-618.)" (People v. Collins (2010) 49 Cal.4th 175, 203; see People v. Earp (1999) 20 Cal.4th 826, 856.) "Post-arrest silence also may not be used against a defendant at trial in order to imply guilt from that silence." (Stone v. United States (6th Cir. 2007) 258 Fed.Appx. 784, 787, citing to Doyle, at p. 611.) "The Supreme Court has explained the rationale of this holding in these terms: '[The] use of silence for impeachment [is] fundamentally unfair . . . because "Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances." '" (People v. Evans (1994) 25 Cal.App.4th 358, 367.)
"The prosecutor cannot use the defendant's invocation of his right to remain silent or refusal to answer questions as evidence against him. [Citations.] Particularly, the defendant's silence may not be used to impeach his credibility. [Citations.] [¶] To establish a violation of due process under Doyle, the defendant must show that the prosecution inappropriately used his postarrest silence for impeachment purposes and the trial court permitted the prosecution to engage in such inquiry or argument." (People v. Champion (2005) 134 Cal.App.4th 1440, 1448 (Champion).)" 'To assess whether these questions constitute Doyle error, we ask whether the prosecutor referred to the defendant's post-arrest silence so that the jury would draw "inferences of guilt from [the] defendant's decision to remain silent after . . . arrest." '" (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1556 (Hollinquest), quoting Smith v. Jones (6th Cir. 2009) 326 Fed.Appx. 324, 330.)
"Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." (Evid. Code, § 1221.) "The statute contemplates either explicit acceptance of another's statement or acquiescence in its truth by silence or equivocal or evasive conduct." (People v. Combs (2004) 34 Cal.4th 821, 843.) Generally speaking," '[w]hen a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.'" (People v. Riel (2000) 22 Cal.4th 1153, 1189 (Riel), quoting Estate of Neilson (1962) 57 Cal.2d 733, 746.)
However, as noted above, "the Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin v. California (1965) 380 U.S. 609, 615 (Griffin), fn. omitted.) "The rationale of Griffin implicitly proscribes drawing an inference adverse to the defendant from his failure to reply to an accusatory statement if the defendant was asserting his constitutional privilege against self-incrimination." (People v. Cockrell (1965) 63 Cal.2d 659, 669-670, italics added.) For Evidence Code section 1221 to apply, the circumstances cannot" 'lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution[.]'" (Riel, supra, 22 Cal.4th at p. 1189.)[ Therefore, "[w]here a defendant's failure to reply is based on his constitutional right to remain silent, instructing the jury that it can treat the failure to reply as an adoptive admission violates the Fifth Amendment." (Arnold v. Runnels (9th Cir. 2005) 421 F.3d 859, 869.)
Although at least one federal court appears to have placed a blanket prohibition on the use of a defendant's postMiranda silence because such silence" 'is insolubly ambiguous'" (Franklin v. Duncan (N.D. Ca. 1995) 884 F.Supp. 1435, 1446, affd. Franklin v. Duncan (9th Cir. 1995) 70 F.3d 75, 78), the California Supreme Court has not drawn such a bright line rule (see People v. Medina (1990) 51 Cal.3d 870, 890-891 (Medina), affd. Medina v. California (1992) 505 U.S. 437, 453). The Medina court held the Fifth Amendment's right to silence was not implicated because the "record d[id] not suggest that [the] defendant believed his conversation with his sister was being monitored, or that his silence was intended as an invocation of any constitutional right." (Medina, at p. 890.) However, the Medina court delineated the scope of its holding by explaining: "We are not here concerned with, and do not address, the situation in which an in-custody, Mirandized, suspect is confronted with an accusatory statement in circumstances where he may be presumed to suspect the monitoring of his conversation. We do not decide whether, in such circumstances, application of the adoptive admissions rule would be unfair, essentially requiring the defendant to respond to avoid an adverse inference of guilt if he remains silent." (Id. at p. 891, italics in original.)
D. Analysis
Ibarra argues the prosecutor improperly used his purported tacit adoptive admissions in violation of his due process rights as articulated in Doyle and its progeny based on the circumstances of this case - specifically, him being provided his Miranda warnings three days before the jail phone call, his knowledge the jail calls were being recorded, and his indication he did not want to speak with Jackie about possible incriminating topics. As noted above, in Medina, our Supreme Court stated it did not "address [] the situation in which an in-custody, Mirandized, suspect is confronted with an accusatory statement in circumstances where he may be presumed to suspect the monitoring of his conversation [and] . . . do not decide whether, in such circumstances, application of the adoptive admissions rule would be unfair, essentially requiring the defendant to respond to avoid an adverse inference of guilt if he remains silent." (Medina, supra, 51 Cal.3d at p. 891.) This case presents the issue left open in Medina because the evidence in this record established Ibarra received Miranda advisements and was aware his phone conversation with his sister Jackie was being monitored because a recording so advised at the beginning of the call.
It is possible to expressly invoke the constitutionally guaranteed right to silence in a conversation only among private parties. "The mere fact that [the] defendant's silence was exhibited to a private party rather than in response to police questioning does not necessarily preclude a constitutional violation [by introducing the lack of response as evidence of guilt]. '[E]ven outside the context of custodial interrogations, silence remains constitutionally protected if it appears to be an assertion of the right to remain silent.' [Citation.] [Consequently,] we must examine 'the circumstances surrounding defendant's post-Miranda silence. Doyle need not apply to [the] defendant's silence invoked by a private party absent a showing that such conduct was an assertion of his rights to silence and counsel. [Citation.] On the other hand, when the evidence demonstrates that [the] defendant's silence in front of a private party results primarily from the conscious exercise of his constitutional rights, then Doyle should apply.'" (Hollinquest, supra, 190 Cal.App.4th at p. 1556, quoting People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520 (Eshelman), italics in original.)
The following three cases are instructive: Hollinquest, supra, 190 Cal.App.4th 1534; Medina, supra, 51 Cal.3d 870; and Eshelman, supra, 225 Cal.App.3d 1513. In Hollinquest, the defendant, while in custody, had conversations with a friend over the jail telephone. (Hollinquest, at pp. 1545, 1554.) An investigator listened to these phone conversations and the defendant's friend later told him defendant never had an explanation for the incriminating evidence asked of him. (Id. at p. 1554.) The prosecutor attempted to use the defendant's post-arrest silence against him. (Ibid.)
The court found that "[w]hile [the] defendant did not adduce explicit evidence that his silence was induced by his counsel's advice . . . the context of [the] defendant's recorded phone conversations with [his friend] are indicative of an exercise of his constitutional rights to silence and counsel." (Hollinquest, supra, 190 Cal.App.4th at p. 1557.) Specifically, the court noted that although "no evidence was adduced that directly reflects upon [the] defendant's motivation for declining to discuss the case with [his friend,] . . . the perspective of the conversations suggests that [the] defendant may have at least been aware of his right to silence . . . [because] [h]e was speaking with [his friend] while he was incarcerated, and during their conversations institutional warnings were repeated that 'everything you say here is being recorded.'" (Ibid.) "Although [the friend] could not recall if [the] defendant's attorney advised him 'never to discuss the facts' of the murder, he acknowledged 'that very well could have happened' because he had not 'done that.'" (Ibid.)
Further, in Eshelman, after the defendant was released on bail, he refused to respond to his girlfriend's questions, in part because his attorney told him not to speak to her before the trial. (Eshelman, supra, 225 Cal.App.3d at p. 1520.) The court concluded the defendant's silence exhibited his "reliance on his constitutional rights to silence and counsel," and thus Doyle error occurred. (Id. at p. 1521.) Importantly, the defendant expressly advised his girlfriend he could not discuss the case based on legal advice. (Id. at p. 1519.)
Finally, as briefly discussed above, in Medina, not long "after [the] defendant's arrest, his sister . . . visited him in jail" and asked," 'why did you have to shoot those three poor boys?' Defendant initially made no response," but "later indicated he did not wish to talk about the matter." The "record fail[ed] to show that [the] defendant was given Miranda warnings prior to his conversation with his sister." (Medina, supra, 51 Cal.3d at pp. 889-890.) Our Supreme Court concluded that "in the context of the present case, where [the] defendant was engaged in conversation with his own sister, it was not unreasonable to permit the jury to draw an adverse inference from his silence in response to her inquiry as to why he shot the victims. [¶] The record does not suggest that [the] defendant believed his conversation with his sister was being monitored, or that his silence was intended as an invocation of any constitutional right." (Ibid.)
Here, similar to Hollinquest, although "no evidence was adduced that directly reflects upon defendant's motivation for declining to discuss the case with" Jackie, "the perspective of the conversation[] suggests that defendant may have at least been aware of his right to silence." (Hollinquest, supra, 190 Cal.App.4th at p. 1557.) At the outset, Ibarra was arrested and provided Miranda warnings only three days prior to his conversation with Jackie. During his interrogation, he expressed a willingness to speak with Anderson up until questions were asked about the firearm, and at this point Ibarra told him he did not want to speak with him. Further, as it relates specifically to the phone conversation, Ibarra "was speaking with [Jackie] while he was incarcerated, and during their conversation[] [an] institutional warning[]" (Hollinquest, at p. 1557), stated that, "This call is from a correction facility and is subject to monitoring and recording." Throughout the extent of the conversation, Ibarra made it clear to Jackie he was fine speaking with her about the money issue, but when asked to provide an explanation regarding the underlying offenses, he continued to deflect and eventually told her, "Yeah, I'm not gonna answer that." Trial counsel also informed the trial court he had previously directed Ibarra not to speak to anyone about the case. Ibarra made it clear both during the interrogation and the phone conversation he was willing to speak to the respective parties regarding certain topics, but when asked to provide explanations regarding the underlying offenses he made it clear he was invoking his right to silence. Accordingly, "[w]hile defendant did not adduce explicit evidence that his silence was induced by his [trial] counsel's advice, as did the defendant in Eshelman, the context of defendant's recorded phone conversation[] with [Jackie] are indicative of an exercise of his constitutional right[] to silence[.]" (Hollinquest, at p. 1557.)
Therefore, assuming Ibarra's refusal to answer Jackie's questions was an assertion of his right to remain silent, we must determine if Doyle error occurred. "An assessment of whether the prosecutor made inappropriate use of defendant's postarrest silence requires consideration of the context of the prosecutor's inquiry or argument." (Champion, supra, 134 Cal.App.4th at p. 1448.) Here, the prosecutor did not introduce any of Ibarra's statements to Detective Anderson at trial, nor did Ibarra testify in his own defense, so this phone recording was not offered for impeachment purposes. "But the principles of Doyle apply even if a defendant does not take the stand in his own defense thereby subjecting himself to potential impeachment. A defendant is entitled to rely on the assurance when he is 'Miranda-ized' that his silence will not be used against him. The Miranda warnings are deemed to have induced the silence." (United States v. Fambro (5th Cir. 2008) 526 F.3d 836, 841, fns. omitted, italics in original.) The United States Supreme Court has" 'consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him.' [Citation]. The Miranda warnings had, after all, specifically given the defendant both the option of speaking and the option of remaining silent - and had then gone on to say that if he chose the former option what he said could be used against him. It is possible to believe that this contained an implicit promise that his choice of the option of silence would not be used against him." (Portuondo v. Agard (2000) 529 U.S. 61, 74-75, italics in original.)
The evidence of Ibarra's silence during his conversation with Jackie was offered to demonstrate that he did not deny the accusations made against him regarding the underlying offenses. Further, during closing argument, the prosecution played this phone conversation and argued the following:
"If you didn't do it - your loving sister calls you or you call her and she's crying asking - I didn't do it. I didn't fucking do it. I didn't shoot him. That's all bullshit. Someone is lying. You didn't hear that. All you heard him is say hey, hey, I'm not going to answer that. You heard an individual who understood the consequences of his actions finally and has told his sister, Jackie, on the phone, you can still visit me in visitation, in prison. Because he knows what he did and he got caught for it, and he got caught with the murder weapon.
"He realizes his own demise. He's made his own choices that led him there. You can feel the pain that he has caused not only on Ismael Ramirez's family, but on his own family as well in his phone call to Jackie. You can hear it. That's the reality of it that that's what he's done. He's realized it. That's why he's told sister you can still see me in visitation. Yeah, I'm not going to talk about it.
"Adoptive admission. The statement made to the defendant in his presence. The topic of that conversation just before those bits that I played you, Jackie was saying everyone in Wasco is hitting me up about this. They are asking about you. There's a picture - there's not a picture of you, but your name is all up there. They got busted for homicide, and it sucks. I have to pretend I don't know you. This and that. You're not my brother. The defendant obviously heard what his sister was asking him and knew what it was about. So he heard and understood the statement. And then under those circumstances, he would have denied if he thought it was not true.
"Richard Anderson has done numerous investigations. He's listened to lots of jail calls - and not every case is going to be the same. I understand that - as a whole, I asked him when individuals are talking in custody to their family members and when they are initially there, do they typically deny what has happened to them or what's being accused of them? Or do they just not talk at all? What's the situation? Typically when a family member calls or talks to them, they vehemently deny it. It didn't happen here. Adoptive admission. Could have denied it, but did not."
The prosecutor, through both Anderson's testimony and his subsequent closing argument, urged the jury to draw an inference of guilt from Ibarra's postarrest silence. By drawing attention to the fact Ibarra never denied his involvement in the underlying offenses to Jackie, the prosecutor violated the precepts of Doyle.
E. Harmless Error
We now turn our focus to an examination of the prejudicial impact of the admission of evidence in violation of Doyle and the prosecutor's associated misconduct by arguing Ibarra's silence exhibited consciousness of guilt. The test of prejudice is the standard enunciated in Chapman, which requires us to reverse the judgment unless the People prove beyond a reasonable doubt the error complained of did not contribute to the verdict. (Champion, supra, 134 Cal.App.4th at p. 1453.)" 'When deciding whether a prosecutor's reference to a defendant's post-arrest silence was prejudicial, this court will consider the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant's guilt.'" (United States v. Lopez (9th Cir. 2007) 500 F.3d 840, 845.)
Even applying the Chapman standard, we conclude that any Doyle error did not prejudice Ibarra. On the facts of this case, the jury was unlikely to have focused on Ibarra's silence in the face of questions by Jackie. This is due to the overwhelming evidence of guilt against him. As discussed at length in section E of the Discussion, ante, apart from Tony's lengthy testimony, the gang evidence provided evidence regarding Ibarra's motive and intent in attempting to kill Tony. Leonel testified Ibarra and a group of VWR gang members formulated a plan to kill Tony on December 31, 2015. Both Javier and Melissa independently identified Ibarra in the front passenger seat of the vehicle that drove by and shot at the house on December 31, 2015, resulting in Ramirez's killing. Tony also identified Ibarra as one of the shooters who shot at his house on December 29, 2015. Denise testified she sold HEVI-Steel ammunition to Ibarra - the same shotgun shells found at both the murder scene and the January 1, 2016 shooting -and most importantly Ibarra was later arrested while carrying the pistol that was used at all three shooting scenes.
Therefore, the prosecutor's references to Ibarra's failure to deny Jackie's implicit references to his involvement in the case did not alter the extensive evidence of guilt against Ibarra that existed in the form of numerous eyewitness identifications and physical evidence. Accordingly, as in Hollinquest, supra, 190 Cal.App.4th at pages 1558-1561, we are satisfied any improper statements by the prosecutor regarding Ibarra's silence about his involvement in the underlying offenses could not have affected the jury's verdicts in this case. (Chapman, supra, 386 U.S. at p. 24.)
III. Evidence Code Section 352.2
Ibarra further contends the trial court prejudicially erred when it permitted the prosecutor to introduce "evidence of two gang rap videos without applying the requirements of Evidence Code section 352.2 in its evaluation." (Capitalization omitted.) Even assuming Evidence Code section 352.2 applies retroactively and thus, the trial court erred in not applying section 352.2's requirements in weighing prejudice, we still find the error to be harmless under Watson.
A. Applicable Law
Effective January 1, 2023, Assembly Bill No. 2799 (2021-2022 Reg. Sess.) added Evidence Code section 352.2. (Stats. 2022, ch. 973, § 2.) Evidence Code section 352.2 states the following:
"(a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice includes, but is not limited to, the possibility that the trier of fact will, in violation of Section 1101, treat the expression as evidence of the defendant's propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings.
"(b) If proffered and relevant to the issues in the case, the court shall consider the following as well as any additional relevant evidence offered by either party:
"(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.
"(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.
"(3) Evidence to rebut such research or testimony.
"(c) For purposes of this section, 'creative expression' means the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including, but not limited to, music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.
"(d) The question of admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to [Evidence Code] Section 402. The court shall state on the record its ruling and its reasons therefor."
The Legislature's intent in passing Evidence Code section 352.2 was "to provide a framework by which courts can ensure that the use of an accused's person's creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice." (Stats. 2022, ch. 973, § 1, subd. (b).)
Currently, the appellate courts of this state are split as to whether Evidence Code section 352.2 applies retroactively to nonfinal cases on appeal. (Cf. People v. Venable (2023) 88 Cal.App.5th 445, 456-458, review granted May 17, 2023, S279081 (Venable) [Evid. Code, § 352.2 has ameliorative effect and thus applies retroactively to nonfinal cases] with People v. Slaton (2023) 95 Cal.App.5th 363, 372-376, review granted November 15, 2023, S282047 [Evid. Code, § 352.2 is not retroactive]; People v. Ramos (2023) 90 Cal.App.5th 578, 592-596, review granted July 12, 2023, S280073 (Ramos) [same].)
B. Analysis
We need not take a definitive side in this dispute. Even if Evidence Code section 352.2 does apply retroactively, any error in the admission of the rap video and lyrics under that statute was harmless under Watson. (People v. Jones (2013) 57 Cal.4th 899, 957 ["[T]he routine application of provisions of the state Evidence Code law does not implicate a criminal defendant's constitutional rights"].) First, the trial court instructed the jury it could "consider evidence of gang activity only for the limited purpose of deciding whether . . . [t]he defendant had a motive and/or intent to commit the crime[s] charged" and "may also consider this evidence when you evaluate the credibility or believability of a witness[.]" However, the jury was instructed it could "not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime." Finally, the jury was instructed to not be biased against Ibarra based on his "race or ethnicity[.]" Absent a contrary showing, and there is none here, we again presume the jury followed these instructions. (Washington, supra, 15 Cal.App.5th at p. 26.)
Second, any prejudice stemming from the introduction of Martinez's rap video and Araujo's 2009 rap lyrics was minimized because this evidence was brief and it played a minor role in the prosecution's case. The jury heard testimony about gangs and gang violence for approximately three weeks, from March 2 to March 24, 2022. Further, there was no evidence that Ibarra was involved in making the video or writing the rap lyrics. The rap lyrics were attributed to Araujo, who the jury acquitted, and the rap video was attributed to Martinez.
Finally, based on the entire record, the rap video and rap lyrics could not have influenced the jury's decision to convict Ibarra of the underlying offenses. As discussed in sections I and II of the Discussion ante, evidence of Ibarra's guilt was overwhelming. The evidence unequivocally showed that Ibarra premeditated the shootings targeted at both Tony and the Birch Street address, and Ibarra was later found with the firearm used in all three of the shootings. Accordingly, based on this overwhelming evidence, it was not reasonably probable the jury would have reached a different result had the rap video and rap lyrics been excluded.
IV. Cumulative Error
Further, Ibarra contends "the cumulative impact of the errors deprived [him] of his due process right to a fair trial." (See People v. Hill (1998) 17 Cal.4th 800, 844 [individually harmless errors can "by accretion" make a trial unfair[.) (Capitalization omitted.) Because we conclude the trial court made only one error under Doyle, we necessarily reject this claim. (People v. Grimes (2016) 1 Cal.5th 698, 737 [court "found only one error" so "there is nothing to cumulate"].) However, even if we agreed that Evidence Code section 352.2 is retroactive and the trial court erred in admitting the rap video and rap lyrics without conducting the proper analysis, we would readily conclude the cumulative effect of these two errors fell short of causing prejudice, particularly in view of the already discussed overwhelming evidence of Ibarra's guilt.
V. Sentencing Error
In a supplemental briefing order, this court "made the following observations regarding sentencing: [¶] First, as to the gang enhancement . . . alleged in count 9 (§ 422), the trial court imposed a term of 18 months (one-third the term of five years) to be served consecutive to count 8. However, one-third the term of five years is 20 months, not 18 months."
"Second, as to the gang enhancement . . . alleged in count 17 (§ 29800, subd. (a)(1)), the trial court imposed a term of 16 months (one-third the middle term of two years, doubled because of the prior strike) to be served consecutive to count 9." However, "[t]he section 186.22, subdivision (b)(1) enhancement permits the court to impose a term of two, three, or four years when the underlying substantive offense is neither a serious (§ 1192.7, subd. (c)) or violent (§ 667.5, subd. (c)) felony. (§ 186.22, subd. (b)(1)(A).)" Thus, "[o]ne-third the middle term of three years is one-year, not eight months." Therefore, "the correct sentence to be imposed for count 17 was a consecutive two-year term for the gang enhancement (one-third the middle term of three years (one year), doubled to two years because of the prior strike)."
"Accordingly, the correct total aggregate sentence that should have been imposed is an indeterminate term of life without the possibility of parole, plus 183 years to life, plus a determinate term of 52 years, 4 months."
On November 12, 2024, Ibarra filed a letter brief wherein he indicated he "submits the matter described in the Court's order." Subsequently, on November 13, 2024, the Attorney General filed a letter brief wherein it agreed with our overall order, but further noted that as to count 17 "only the base term, and not any enhancements, are subject to doubling under the Three Strikes law." Therefore, "because count 17 is a consecutive, subordinate term to count 9, the trial court should have imposed a term of one year (one-third the middle term) for the gang enhancement." We agree with the Attorney General's position and conclude that as to count 17, the correct sentence that should have been imposed was a consecutive one-year term for the gang enhancement. Accordingly, the correct total aggregate sentence that should have been imposed is an indeterminate term of life without the possibility of parole, plus 183 years to life, plus a determinate term of 51 years, 4 months.
DISPOSITION
This matter is remanded for the trial court to prepare an amended abstract of judgement reflecting the correct sentences as to counts 9 and 17. The trial court is further directed to forward certified copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: HILL, P. J. LEVY, J.