Opinion
F074412
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO GARCIA LOPEZ, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. LF010149A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Roberto Garcia Lopez (appellant) appeals his conviction on one count each of attempted murder (Pen. Code, §§ 187, subd. (a), 664), assault with a deadly weapon (§245, subd. (a)(2)), shooting at an occupied motor vehicle (§ 246), and assault on a person likely to produce great bodily injury (§ 245, subd. (a)(4)). Each count included an enhancement alleging the crimes were committed for the benefit of a gang (§ 186.22, subd. (b)(1)). The assault and shooting at an occupied vehicle counts also included enhancements for use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (c)). In this appeal, appellant argues we must reverse the gang enhancements due to the improper admission of expert testimony and the lack of other supporting evidence. In supplemental briefing, appellant contends his underlying convictions should be vacated based on an allegedly improper argument made by counsel conceding his guilt. Procedurally, appellant also argues the trial court wrongly denied his request to bifurcate the gang enhancements from the underlying offenses and requests, with respect to the firearm enhancements, that the matter be remanded for the trial court to exercise its discretion whether to strike those enhancements. For the reasons set forth below, we affirm appellant's convictions but remand for the court to consider striking the firearm enhancements.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2014, the victim in this case was attempting to order a pizza from a local restaurant in Lamont, Kern County. According to the victim, he had stopped at the restaurant, leaving his kids in his car, a white Grand Marquis, and entered to order the pizza. When he returned to his car to wait for the order, he saw an SUV drive by the restaurant. The vehicle made a U-turn. At that time, the victim saw appellant, sitting inside the SUV, flash a gang sign.
The victim immediately got into his car and fled. The SUV followed closely, flashing its lights at the victim. When the victim stopped his car in a nearby alley, the SUV pulled up behind him. Appellant exited the SUV holding a pistol-grip shotgun and proceeded to fire multiple shots at the victim's car, shooting out the back window and damaging the vehicle. The victim immediately fled and returned home. The actual shooting was caught on a nearby surveillance camera and that video was played for the jury.
Appellant was eventually charged with attempted murder, assault with a firearm, unlawful discharge of a firearm, and assault by force likely to produce great bodily injury. Each charge carried several enhancements, including an enhancement alleging the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by gang members. This enhancement constitutes the crux of most of appellant's arguments on appeal and, thus, we begin with recounting evidence relevant to the enhancement.
At trial, the People presented evidence from various sources supporting the allegation that appellant was not only the shooter, but also a member of the gang Varrio Chico Lamont (VCL), sometimes referred to as Lamont 13, acting in support of the gang at the time of the shooting.
Anali Hernandez's Testimony
The first significant witness presented was Anali Hernandez, a codefendant who had been given a plea deal to testify. Hernandez was the driver of the SUV the night of the shooting. Hernandez had been friends with appellant prior to the incident and picked him up after he called her asking for someone to cruise around with him. She did not see him carrying a firearm when he entered the vehicle but noticed he was wearing long baggy shorts and had to reach across his own body to shut the SUV's door.
Appellant directed Hernandez on where to drive and had her travel down Main Street toward the restaurant where the victim was at. The two did not speak until appellant directed Hernandez to turn in front of the restaurant and stop. Hernandez drove past the restaurant instead and made a U-turn. As she drove past the restaurant she noticed a parked, white Grand Marquis and heard appellant say "what's up" to the driver of that vehicle. After making the first U-turn, appellant instructed Hernandez to follow the Grand Marquis. Hernandez complied.
At appellant's request, Hernandez sped up to keep pace with the Grand Marquis and caught up to it when it stopped in a nearby alley. Appellant exited the SUV without saying anything and began shooting at the Grand Marquis. When appellant got back in the car, Hernandez saw him holding an approximately 18-inch-long firearm. The Grand Marquis fled the scene and appellant instructed Hernandez to take him to a specific location where she dropped him off.
Hernandez watched various videos from surveillance cameras in the area, including the surveillance video of the shooting, and confirmed that the SUV seen in the videos was the one she was driving and that the shooter in the video was appellant.
Hernandez testified that she never heard any gang slogans spoken and saw no gang signs flashed during the incident. With respect to gang information generally, she had heard of Lamont 13, seen their tags, and believed appellant and her sister to both be members of the gang based on her sister being jumped in and appellant being introduced to her as a gang member.
The Victim's Testimony
The next significant witness on these issues was the victim. In addition to the facts recounted above, the victim also testified to how he knew appellant, his interactions with the VCL, and his identification of appellant as the shooter. The victim explained that he was familiar with appellant from drug transactions occurring shortly before the shooting, stating he would see him around when purchasing methamphetamine in the area. Appellant would generally be with a group of friends and the victim testified appellant and his friends would act in a threatening manner when they saw him by flashing VCL signs at him.
With respect to his knowledge of the VCL generally, the victim stated he had moved to Lamont to be with his girlfriend, who was a member of the gang but was no longer active by the time of the shooting, and their children. Despite being inactive, through 2014 the victim's girlfriend would associate with several female friends bearing VCL tattoos. Also, during 2014, the victim was having recurring problems with other members of the VCL. Specifically, he testified that he had been jumped, or physically attacked, at least two times prior to the shooting. His attackers would state they were part of the VCL during the attack or flash gang signs before the attack. These attacks had occurred within a few months of the shooting, but appellant had not been involved.
According to the victim, his trouble with the VCL stemmed from two incidents. In the first, occurring around 2012, he aided police in investigating the burglary of his home. The crime had been committed by a person with a VCL tattoo on his face. The victim identified a picture of that person during the trial. The other incident involved the victim disparaging "Lamont" in front of a person named Jacob Bauer, who went by the nickname Polar Bear.
After the shooting, the victim made some conflicting statements to the police about whether his children were present during the event and whether he knew who the shooter was. Ultimately, the victim identified appellant as the shooter in a photo lineup presented to him while the victim was being housed in the same jail as appellant due to his own criminal activity.
The Gang Expert's Testimony
To further support the gang enhancement allegations, the People called Deputy Sherriff Timothy Monsibais to testify as a gang expert. Monsibais testified to his background and training, noting he had testified as an expert on the Lamont 13 gang eight or nine times. Monsibais then provided a background on the general structure of Hispanic gangs in California before explaining that VCL is a subset of the Lamont 13 gang, which itself, is part of the Southern Hispanic branch of gangs generally controlled by the Mexican Mafia.
With respect to contact with gang members, Monsibais explained that he had regular contact with members of the VCL, along with many other gangs, and that he discussed the gangs with them, including such things as their monikers and members' activities. He also reviews gang packets, which consist of activities that have been documented by the local police, and field interview cards, which document contacts with potential gang members.
Monsibais explained the VCL's territory covers the location of the local restaurant where the victim and appellant saw each other and the alley where the shooting took place. He further testified that members generally wear blue clothing and utilize hand signals where you make an "L" with your index finger and thumb or forearms or form the letters "VCL" with your fingers. He provided a list of primary activities these gang members engage in, including grand theft auto, attempted murder, assault with a deadly weapon, possession of firearms, and narcotic sales. And he testified to his opinion that the gang contained three or more members and was active as of the date of the shooting.
Monsibais was then asked a series of questions about past crimes alleged to have been committed by VCL members. He first identified two individuals named Javier Lopez and Valentin Ramirez, whom he testified he knew through reading their gang packets and speaking to other investigators. These two individuals were involved in a court case where they were convicted of a July 2010 assault with a deadly weapon. To support this fact, the People introduced the indictment and dockets from their case. Monsibais testified the criminal conduct at issue was a primary activity of the VCL and provided his opinion, based on the gang packets he had reviewed, that both were members of Lamont 13. Monsibais also reviewed a separate case involving Javier Lopez, who was convicted of attempted murder, assault with a deadly weapon, and gang participation in 2012. The same primary documents were introduced into evidence from that case.
Continuing in this pattern, Monsibais discussed a case involving a Marcus Rosales, who was convicted in 2012 of assault with a deadly weapon and gang participation. Upon review of Rosales's gang packet, Monsibais concluded he was a member of the VCL. Monsibais then turned to a case involving one Ivan Ramos, who was convicted of vandalism and gang participation in 2013. Again, upon review of the gang packet, Monsibais concluded Ramos was an active member of the VCL at the time. Monsibais then reviewed a 2012 attempted murder and gang participation case involving one Victor Vega who, again based upon review of his gang packet, was deemed to be an active participant of the VCL at the time of his crime. Notably, at all times, Monsibais's testimony was a cursory statement that he had reviewed certain documents, without detailing those documents or their contents, and an opinion that an individual was a gang member based on what Monsibais had reviewed.
Following these recitations, the People called Sherriff Deputy Ralph Lomas, who testified that, on September 21, 2013, he attempted to make a traffic stop that resulted in three suspects refusing to stop their car then attempting to flee. The three individuals were eventually detained and identified as appellant, George Martinez, and Daniel Catalan.
Monsibais was then recalled to the stand. Before discussing the incident testified to by Lomas, Monsibais was shown a photograph of the individual previously identified by the victim as a VCL member because of the tattoo on his face. Monsibais identified this person as Jose Benjamin Lopez, also known as Gato, testified the tattoo was one associated with the VCL, and explained with supporting case files, that Gato had previously been convicted of being a felon in possession of a firearm and gang participation in 2011. Monsibais provided his opinion, based on the victim's testimony, the tattoo, and the prior conviction, that Gato was a member of the VCL in 2011.
Turning to the incident described by Lomas, Monsibais testified that Catalan was a VCL member based upon his prior conviction for assault with a deadly weapon and gang participation, which was again supported by court documents from the case.
Monsibais then began reciting his basis for concluding appellant himself was a member of the VCL. Monsibais claimed he based his opinion that appellant was, in fact, a member of the gang at the time of the shooting on various police reports regarding appellant, including those discussed during the trial, and the victim's testimony. Monsibais found significant the fact that appellant was contacted with Catalan while evading police, that he had previously, as a felon, been found in possession of a firearm (a point previously testified to by the officer that had arrested him), that the victim had identified Gato, a gang member, as a potential source of his problems with the VCL, that the victim had disrespected Lamont in front of an individual Monsibais identified as a Lamont Familia Sureño, that the victim had seen appellant utilize VCL signs, and that appellant himself possessed a tattoo identifiable as a VCL insignia.
Having stated his opinion appellant was a VCL member, Monsibais was then asked a hypothetical question, mirroring the facts of the case, as to whether a shooting similar to the one that occurred in this case would benefit the VCL. Monsibais opined that such a shooting would benefit the gang because violent crimes increase a gang member's status within the gang, increase the gang's status generally, and instill fear in the community. Monsibais believed the flashing of a gang sign before the shooting was significant in seeing this event as aiding the gang.
During much of Monsibais's testimony regarding whether various individuals were, in fact, members of the VCL, appellant's counsel objected to the propriety of the questions asked, specifically raising hearsay and confrontation clause claims. These objections were overruled.
Other Testimony and Closing Arguments
In addition to the gang testimony, the People offered DNA evidence linking appellant to the shotgun shells recovered at the scene of the crime. They also played the jury portions of the jail interview where the victim identified appellant as the shooter.
Following the People's case, the defense rested without calling any witnesses. Relevant to the issues raised in this case, we recount the introduction of appellant's counsel at closing argument. Upon beginning his summation, counsel stated, in relevant part: "Ladies and Gentlemen of the jury, let's cut to the chase. I'm not going to stand up here and say that [appellant] was not the shooter in this case.... [¶] ... The overwhelming evidence in this case is that [appellant], my client, was the shooter. But being the shooter is not the end-all in this case." Counsel then continued to attack various elements of the offenses charged. The concession that appellant was the shooter is challenged in this appeal as inappropriate.
The Verdict and Sentencing
Ultimately, appellant was convicted on all counts. He received a sentence of 29 years to life with respect to the shooting at an occupied vehicle charge. His sentences on the remaining counts were stayed pursuant to section 654. This appeal timely followed.
DISCUSSION
Appellant raises concerns under the Sixth Amendment's confrontation clause and the caselaw applying the right to expert testimony in criminal cases. He also raises issues about the sufficiency of the evidence presented on the gang enhancements in this case, the propriety of his counsel's statements in summation, and certain procedural aspects of his trial and sentencing. We consider each in turn. Confrontation Clause Challenge
Appellant's confrontation clause challenge concerns whether Monsibais's testimony violated the rule set forth in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) that an expert witness violates the confrontation clause when they relate case- specific facts to the jury in support of their opinion that are not otherwise properly admitted at trial. In the context of this case, Monsibais's opinion related to whether appellant's conduct satisfied the criminal street gang enhancement found at section 186.22, subdivision (b)(1).
Standard of Review and Applicable Law
Section 186.22, subdivision (b)(1) enhances criminal sentences when the underlying felony is "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) "To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) "A 'pattern of criminal gang activity' is defined as gang members' individual or collective 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons." (Ibid.)
"The Sixth Amendment to the federal Constitution guarantees a defendant's right to confront adverse witnesses. [Citation.] In addition, the prosecution may not rely on 'testimonial' out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination." (People v. Harris (2013) 57 Cal.4th 804, 839-840.) Under federal confrontation clause jurisprudence, as interpreted by our Supreme Court, at least two factors must be considered to determine whether a statement is testimonial. "First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution." (People v. Dungo (2012) 55 Cal.4th 608, 619.)
In Sanchez, supra, 63 Cal.4th 665, the Supreme Court analyzed "the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion." (Id. at p. 670.) Sanchez reasserted the historical distinction between case-specific hearsay and the general hearsay relied upon by experts to detail general knowledge in the expert's field of expertise. (Id. at pp. 675-678.) In doing so, it clarified that "[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay." (Id. at p. 684.)
Having established this baseline, the court then considered whether certain types of hearsay evidence in gang cases are testimonial in nature and thus within the purview of Crawford's constitutional restrictions on admissibility. (Sanchez, supra, 63 Cal.4th at p. 687.) The court detailed its understanding of the present evolution of what constitutes testimonial hearsay, explaining as a precursor, "[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.) It then recounted various permutations of the primary purpose test, before applying the overarching doctrine to certain evidence relied upon in reaching the gang conclusions in that matter. (Id. at pp. 689-694.) In its application, the court found that police reports are generally testimonial in nature, as are field identification cards written during the course of an active investigation. (Id. at pp. 695-697.) The court concluded the admission of such testimonial hearsay violates the confrontation clause. (Id. at pp. 695-698.)
" ' " 'Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24.' [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error." [Citation.]' " (People v. Capistrano (2014) 59 Cal.4th 830, 873, overruled on other grounds by People v. Hardy (2018) 5 Cal.5th 56, 104.) " 'To say that an error did not contribute to the ensuring verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86.)
We review whether the proffered evidence violated the confrontation clause and whether any such error was prejudicial, issues of law, de novo. (See People v. Stamps (2016) 3 Cal.App.5th 988, 992.)
Monsibais's Testimony Did Not Violate Sanchez
Appellant contends that Monsibais improperly relied upon testimonial hearsay when providing his opinion that Marcus Rosales, Ivan Ramos, Victor Vega, Daniel Catalan, and Gato were members of the VCL when they committed various crimes. The People respond in two ways. First, they argue that Monsibais did not actually convey any case-specific information to the jury. Rather, the People claim he properly relied on hearsay information and only provided the jury with his opinion derived from that information. Second, the People contend any error is harmless because the predicate offense requirements were met through the independent evidence and opinions offered with respect to Gato and appellant's conduct.
On the first point, the People's argument raises a question regarding the language in Sanchez permitting an expert witness to rely upon, but not recount, hearsay when presenting the jury with their opinion. The crux of Sanchez was the recognition that a confrontation clause issue arises when the jury treats testimony as true concerning case-specific facts provided by an expert witness as the basis for their opinion because that evidence has not been subjected to potential cross-examination, thereby insulating it from effective testing. (Sanchez, supra, 63 Cal.4th at pp. 676, 679, 685-686.) In this sense, the actual issue that triggered confrontation clause concerns was the expert's introduction of facts to the jury that were not otherwise proven. In Sanchez, the People argued practical concerns justified the testimony. The court, however, explained that a case weakened because the expert merely tells the jury they relied on certain types of information essentially confirms that such underlying facts are being offered for their truth, warranting precluding their introduction through the expert. (Sanchez, at p. 686.) The court's holding appears narrowly drawn, with the court repeatedly noting it was the recitation of case-specific facts to the jury that violated the confrontation clause and not making any broader pronouncements about an expert's ability to provide opinions based on those facts.
This case falls where the Sanchez opinion drew its line. Here, Monsibais did not introduce case-specific facts to the jury. Rather, he testified generally as to the material he reviewed and, without detailing what that evidence was, provided an opinion that each of the relevant individuals were members of the VCL. His opinions generally turned upon review of gang packets but were bolstered by conviction records showing a gang affiliation enhancement in some cases, although none of those conviction records identified the relevant gang. Appellant now contends that recitation of his opinion violates the confrontation clause because it relies upon hearsay to prove case-specific facts, even if those case-specific facts have not been presented to the jury.
Appellant cites to cases such as People v. Lara (2017) 9 Cal.App.5th 296 and People v. Iraheta (2017) 14 Cal.App.5th 1228 as support for his position that relying on these documents and informing the jury of that fact was improper. But both of these cases, and those found by this court in its own research, are distinguishable because the officers in each case actually recounted case-specific facts to the jury in support of their opinions. (See Iraheta, at p. 1249 ["Barragan related facts in the FI cards as the basis for his conclusion that the men were gang members."].) Here Monsibais either presented an unsupported opinion that, based on certain types of documents reviewed, he believed each individual was a VCL member or presented an inferential conclusion based on evidence showing conviction of a gang-offense and an unsupported opinion that the gang in question was the VCL.
In this sense, Monsibais did exactly what the court in Sanchez stated was permissible—"rely on hearsay in forming an opinion, and ... tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685; see People v. Roa (2017) 11 Cal.App.5th 428, 451 [noting that "investigator reports, even if inadmissible hearsay, could be relied upon by the experts in forming their opinions" even if facts from those reports could not be presented to the jury]; In re K.W. (2017) 13 Cal.App.5th 1274, 1285 [expert could provide opinion and explain he received a lot of information supporting opinion from other people, but could not recount case specific facts obtained].) While we recognize that Monsibais's testimony could be impermissible under other principles, we take no position on such a possibility given that the only complaint raised in this appeal falls under the rule enunciated in Sanchez. Under that rule, Monsibais properly avoided reciting to the jury evidence that qualifies as testimonial hearsay and, instead, provided only a weakly supported opinion on a factual issue before the jury—whether Marcus Rosales, Ivan Ramos, Victor Vega, and Daniel Catalan were members of the VCL. With respect to Gato, we note in advance of the other issues raised that Monsibais relied on additional information to opine on Gato's membership, including the victim's testimony and a picture of the "Varrio Chico" tattoo on Gato's face.
As Monsibais's testimony did not violate Sanchez or otherwise provide the jury with case-specific facts constituting testimonial hearsay, we find no error and need not reach the People's second argument, that any error was harmless given the evidence presented with respect to Gato and appellant. Sufficiency of the Evidence Challenge
Appellant next contends that the evidence presented was insufficient to support the allegation that the shooting was committed for the benefit of a criminal street gang. He contends Monsibais's opinion that the shooting was committed to increase the gang's reputation along with appellant's standing in the gang was unsupported and that the victim's credibility was sufficiently compromised to preclude reliance on his testimony. The People counter that Monsibais's testimony was not the key component to the "gang benefit" element but, rather, the victim's testimony and appellant's gang member status provided Monsibais with enough factual support to render an opinion the shooting was designed to benefit the gang and to support the jury's verdict. We agree with the People.
Standard of Review and Applicable Law
As noted above, under section 186.22, subdivision (b)(1), one's sentence will be enhanced when they have been "convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) "The enhancement set forth in section 186.22[, subd. ](b)(1) does not pose a risk of conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 67-68.) "[T]he Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment under the [Street Terrorism Enforcement and Prevention] Act only if the crime is "gang related." ' [Citation.] Not every crime committed by gang members is related to a gang." (Id. at p. 60.) A crime can be gang related, however, if it is committed in association with the gang or for the benefit of the gang. (Ibid.)
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
The Evidence Is Sufficient to Support the Conviction
Appellant's argument focuses on the testimony provided by Monsibais that appellant's actions benefited the gang by instilling fear in the community and increasing his credibility within the gang on the ground it was not supported with any firm evidence. Appellant then cites a string of cases including People v. Prunty (2015) 62 Cal.4th 59, People v. Franklin (2016) 248 Cal.App.4th 938, People v. Ramirez (2016) 244 Cal.App.4th 800, and People v. Ochoa (2009) 179 Cal.App.4th 650, for the proposition that a gang enhancement cannot be based solely on a gang expert's unsupported opinion. Appellant contends Monsibais's opinion in this case was unsupported by any case-specific facts showing the offense was committed to benefit the VCL. We do not agree.
Although there was conflicting evidence regarding the nature of the shooting, the victim provided a clear connection between the shooting and the VCL. Specifically, he testified that he had contact with the gang through his girlfriend, that he had assisted law enforcement in pursuing a person associated with the VCL, and that from that point onward he was frequently attacked by gang members in a manner that indicated they were representing their gang in the attacks. This pattern of behavior continued when appellant saw the victim, flashed a gang sign, and proceeded to shoot at him. Utilizing hypothetical facts mirroring this narrative, Monsibais opined that such a shooting would instill fear in the community and increase appellant's standing in the gang, thus satisfying the requirement the crime was committed for the benefit of or in association with the VCL.
To reject the victim's supporting testimony in this case, as appellant requests, would require us to view the evidence most favorably to the defense and not to the prosecution. As noted above, such a review is inappropriate in a challenge to the sufficiency of the evidence presented. (People v. Smith, supra, 37 Cal.4th at pp. 738-739.) The jury was free to believe the victim's testimony in this case and the presentation of that testimony was sufficient to support Monsibais's opinion. Decision Not to Bifurcate Gang Elements from Underlying Crime
Appellant next claims the trial court abused its discretion by deciding not to bifurcate appellant's trial to separate the gang enhancement evidence from the evidence of the underlying offenses. Appellant requested bifurcation in a motion in limine. The People opposed, arguing the gang evidence was relevant to the motive for the shooting. The request was denied. Appellant now argues his due process rights were violated through the introduction of "mostly inadmissible, irrelevant gang evidence that only presented a plausible theory rather than actual evidence of motive and/or intent."
Standard of Review and Applicable Law
A trial court has discretion to bifurcate the trial of a gang enhancement from the trial of the underlying offense in appropriate circumstances. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) However, our Supreme Court has noted there is no special need for bifurcation of gang enhancements from the underlying offense as such enhancements are "by definition, inextricably intertwined" with the underlying offense. (Id. at p. 1048.) While some gang enhancement evidence "may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict," the court noted that other evidence of 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." (Id. at p. 1049.) In seeking bifurcation, appellant must " 'clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' " (Id. at p. 1051.)
The Trial Court Did Not Abuse Its Discretion
Upon review of the facts of this case, we see no abuse of discretion in the trial court's decision not to bifurcate the gang enhancement. The prosecution sought to prove, and ultimately provided evidence, that the shooting was the result of an ongoing problem the victim was having with members of the VCL. Evidence relating to the gang, its territory, its symbols, and certain members of that gang were thus clearly relevant to this issue. Much of this evidence, as discussed above, also satisfied the gang enhancement requirements.
In contrast, additional evidence relating solely to the gang enhancement offered by the People, such as additional members of the gang, their predicate crimes, and appellant's association with some of those members, was neither so minimally probative nor so inflammatory as to require bifurcation. The predicate crimes were neither particularly gruesome nor heinous, especially given the offense as ultimately described by the victim included firing a shotgun several times at a car holding children, and only minimal details of those offenses were ultimately presented to the jury. The identification of certain individuals tied to those offenses as gang members was only weakly supported and did not include substantial detail that could inflame the jury. As a result, we see no abuse of discretion in denying the request to bifurcate as appellant cannot clearly establish a substantial danger of prejudice from trying the offense and the enhancements together. Identity Concession Claim
In supplemental briefing, appellant contends his conviction must be reversed because, in closing argument, counsel argued against his client's interest and effectively entered a guilty plea by telling the jury he would not contest that appellant was the shooter. In the alternative, appellant contends the statement constitutes ineffective assistance of counsel. In a second supplemental brief, appellant points us to a slip opinion in People v. Lopez (2018) 28 Cal.App.5th 758 that he contends supports his position. We note at the outset that appellant's citation was vacated on rehearing by People v. Lopez (2019) 31 Cal.App.5th 55 (Lopez) and further find that the later Lopez opinion sets forth the proper analysis of this claim. Accordingly, we reject appellant's argument.
In Lopez, as in this case, the court faced a situation where counsel conceded some portion of the case in his closing argument and the defendant later appealed claiming that concession constituted an improper guilty plea. (Lopez, supra, 31 Cal.App.5th at p. 62.) Similar in both cases, too, there was no objection made to the concession. (Ibid.) As the Lopez court explained, in the case of true guilty pleas and actions equivalent thereto, the case law requires the court to inform the defendant of his constitutional rights before allowing the action. (Id. at p. 63.) However, as explained by the Supreme Court, concessions made during closing argument are "not tantamount to a guilty plea." (Ibid. [citing People v. Cain (1995) 10 Cal.4th 1, 30].)
Here, as in Lopez, counsel's actions were not admissions in the evidentiary sense. They did not change the burden of proof on the issues or otherwise limit the scope of the jury's role. (Lopez, supra, 31 Cal.App.5th at p. 64.) Similarly, as explained in Lopez, appellant's failure to object at trial distinguishes this case from McCoy v. Louisiana (2018) 584 U.S. ___ [138 S.Ct. 1500, 1505], which, from the start, drew a clear distinction between situations where a defendant remains silent in the face of his counsel's actions and a defendant objects. (Lopez, at pp. 65-66.) As such, counsel's statements do not rise to the level of a guilty plea or argument against a client's interest that could qualify as structural error.
Likewise, as further explained in Lopez and on the record before us, counsel's statements do not constitute ineffective assistance of counsel as a matter of law. (Lopez, supra, 31 Cal.App.5th at p. 66.) In the face of testimony identifying appellant as the shooter from both the victim and the driver of the vehicle shown to be involved in the shooting through video evidence, a potentially reasonable trial tactic would avoid disputes about the shooting and focus on the inconsistencies in the testimony concerning the gang aspects of the case, as appellant's counsel did. (People v. Hart (1999) 20 Cal.4th 546, 623-624 [" 'Tactical errors are generally not deemed reversible; and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation ...." ' "].) Had the jury accepted the driver's testimony over the victim's, the gang aspects of the case would have been seriously damaged. Concluding there is no reason to depart from the analysis in Lopez given the facts of this case, we see no basis for concluding counsel's conduct constituted a guilty plea or crossed into the realm of ineffective assistance of counsel. Remand on Firearm Enhancements
Finally, appellant notes that his conviction included an enhancement under section 12022.53 relating to the use of a firearm and that after his sentencing the Legislature passed Senate Bill No. 620 (2017-2018 Reg. Sess.), effective January 1, 2018, retroactively providing the court with discretion to strike or dismiss enhancements under section 12022.53 (Stats. 2017, ch. 682, § 2). Appellant requests this matter be remanded for the court to exercise its discretion whether to dismiss the enhancements in this case. The People agree the legislation is retroactive and join in the request to remand for the court to consider this issue in the first instance. In several cases we have considered the retroactivity of Senate Bill No. 620 and determined, in line with the parties' arguments, that the statute is retroactive and remand is appropriate. We see no reason to deviate here and agree with the parties that a remand is appropriate for the trial court to determine, in the first instance, whether striking the relevant firearm enhancements is appropriate in this case.
DISPOSITION
The matter is remanded for the trial court to determine whether to exercise its discretion pursuant to section 12022.5, subdivision (c). In all other respects, the judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
SMITH, J.