Opinion
F073789
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JACINTO ANTONIO MAGALLANES, Defendant and Appellant.
Jonathan E. Berger, 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 Stephanie A. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF297712)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Jonathan E. Berger, 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 Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In an amended information filed November 16, 2015, defendant was charged with the attempted murder of Pablo G. (count 1 - Pen. Code, §§ 664, 187, subd. (a)); and carjacking (count 2 - § 215, subd. (a).) As to both counts, the information alleged defendant personally used (§§ 12022.53, subd. (b), 1203.06, subd. (a)(1)) and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), proximately causing great bodily injury (§ 12022.53, subds. (d) & (e)(1).) The information also alleged, as to both counts, that defendant personally inflicted great bodily injury upon Pablo, causing the victim to become comatose due to brain injury and to suffer paralysis. (§ 12022.7, subd. (b).) The information also alleged both counts were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1); see also former Welf. & Inst. Code, § 707, subd. (d)(2)(C)(ii).) Finally, the information alleged defendant was a minor over the age of 16 when the crimes were committed. (See former Welf. & Inst. Code, §§ 707, subds. (d)(1) & (d)(2)(A).)
All further statutory references are to the Penal Code unless otherwise stated.
On February 29, 2016, a jury convicted defendant on all counts and found all allegations true. Defendant filed a motion for a new trial, which was denied. The court sentenced defendant to life with the possibility of parole on count 1, with a minimum of 15 years until parole eligibility (§ 186.22, subd. (b)(5)), plus a consecutive term of 25 years to life on the section 12022.53, subdivision (d) enhancement. On count 2, the court sentenced defendant to a stayed (§ 654) term of five years, plus a consecutive 25 years to life for the section 12022.53, subdivision (d) enhancement.
In his opening brief, defendant raised an issue concerning the trial court's denial of his motion for new trial. Defendant subsequently withdrew the issue.
The prosecutor and the court clarified that the combined effect of the gang and weapons enhancement is that the term on count 1 is, effectively, 40 years to life.
FACTS
Pablo G. lived on East Cardinal Street in Earlimart. On May 8, 2011, Pablo drove his truck to pick up his sister from work at 8:00 p.m.
There is a stop sign a couple doors down from Pablo's home, near the home of Hernan M. Pablo had seen a "lot of gangsters" hanging out around Hernan's house in the past. They wore red, which is associated with the Norteño gang.
Pablo also saw such people at Hernan's house after the incident of May 8, 2011.
As Pablo approached the stop sign near his home, there were three "guys" standing outside Hernan's house. One of the three approached his vehicle and asked for a ride. Pablo recognized the person from seeing him around Earlimart, but did not know his name. Pablo agreed to give the ride, and the person called to two other "guys" nearby. The person who had asked for a ride got into the cab, and the two other people got into the bed of the truck. Pablo also recognized one of the two people who went into the bed of the truck, but did not know his name.
The person sitting in the front asked Pablo to take them to Jose Raul's house. Pablo knew where Raul lived and that it was close by. The person sitting in front gave Pablo directions. The directions were not towards Raul's house, but Pablo followed the directions nonetheless. After several turns, the person in front told Pablo to stop on Earlimart Avenue before Avenue 56. The two men in the back exited. The man sitting in the front also exited, but did not close his door. The man then turned around and came back towards Pablo's truck. Pablo then heard one "shot" which came from the passenger side where the man was. Pablo did not see the man shoot him, but no one else was on that side of Pablo's truck at the time.
Pablo lost consciousness. When he regained consciousness, he was on the road and someone was administering CPR.
Pablo is paralyzed as a result of the shooting.
At trial, Pablo identified defendant as the man who had been in the front seat. Pablo testified he was certain of his identification.
Witnesses
A nine-year-old witness saw the incident from outside the apartment where he lived. A pickup truck stopped, and a person exited the bed of the truck. The witness could not see what the person did next because his view was obscured by the truck. The witness then heard more than two gunshots.
Another witness heard gunshots while he was inside an apartment. He walked outside and saw "somebody get pulled out of a truck, thrown on the floor." The person who had pulled the victim out of the truck then "[j]umped in the truck and took off."
A third witness, named Lupe Sr., heard a sound and went outside after his son said, "That sounded like gunfire." Lupe Sr. administered CPR to Pablo.
Investigation
Two bullet fragments were recovered. The responding detective for the crime lab, who was trained in crime scene investigation, could not determine the type of weapon that fired the bullet fragments.
The truck was found the next day with its engine running on Bobbi Avenue, approximately 200 yards from Church Road. The driver's window was smashed. None of the fingerprints or palm prints from the vehicle matched defendant or Juan Perez.
Interviews of Pablo G.
May 25, 2011 Interview
Pablo could not speak immediately following the shooting. Detective Frank Zaragoza was able to speak with Pablo at the hospital on May 25. Pablo indicated that the person who had been in the front seat was a Hispanic male around 17 years old, who lived on the corner of Church and Bobbi. Detective Zaragoza did not show Pablo any suspect photographs during the May 25 interview.
June 16, 2011 Interview
On June 16, 2011, Detective Zaragoza again interviewed Pablo in the hospital. Detective Zaragoza showed him 16 lineups, each with six photographs on them. In the first five lineups, Pablo did not identify anyone as having been involved in the incident. In the sixth lineup, Pablo identified one of the people as having been in the back of truck, but was not the shooter. The photograph he identified depicted Juan Perez.
In lineups seven, eight and nine, Pablo did not identify anyone as having been involved in the shooting. Defendant's photograph was on lineup number 10. When Pablo was shown lineup number 10, "[h]is physical reaction was that of a startled person." In reference to defendant's photograph, Pablo said, "I think that's him. I think that's the guy that shot me." But Pablo also said it was possible it the person in the photograph was not the shooter, and that he wanted to see another picture of the individual.
July 20, 2011 Interview
On July 20, 2011, Detective Zaragoza showed defendant four more lineups. During the interview, Pablo said he thought the shooter had a scar on his face, possibly on the cheek area.
Events of October 25 through 27, 2011
Detective Zaragoza spoke with Pablo on October 25, 2011, and he confirmed the shooter lived on the northwest corner of Church and Bobbi.
The next day, Detective Zaragoza went to the home on the corner of Church and Bobbi. Defendant and his mother were at the house. Defendant said he did not remember the date of the shooting but was not involved. Defendant volunteered to provide a DNA swab and to take a lie detector test.
Detective Zaragoza took a picture of defendant during the interview. On the next day, October 27, 2011, Detective Zaragoza showed Pablo lineup 27, which included the picture of defendant taken the previous day in position five. Detective Zaragoza wrote down Pablo's statement on the admonition form: "I think number five was sitting in the front seat of the truck, I think number five shot me."
Additional Lineups
Detective Zaragoza showed Pablo additional lineups on November 28, 2011, and January 30, 2012. Pablo did not identify any additional suspects from these lineups.
In total, Detective Zaragoza showed Pablo 186 photographs across 31 lineups. The only two people Pablo identified from the lineups as being involved were defendant and Juan Perez.
On July 21, 2014, an investigator with the district attorney's office showed Pablo a lineup that included a photograph of Rosalio Ayon in position four. Pablo said he had seen "number four" in Earlimart but did not know who he was, and he was not at the scene of the shooting.
Defendant's School Records
During the 2010-2011 school year, defendant was enrolled in independent study. He was required to attend school only one day per week. The "attendance" records for such a student do not actually reflect whether the student was physically present, but whether they turned in their work for that week.
From November 15, 2010, through mid-March 2011, defendant received "full credit," meaning he turned in his work during that time period. However, for the week of March 14-21, defendant did not submit any work. After that week, defendant received credit until May 9, 2011. From May 9 through 25, defendant did not submit his work. Pablo was shot on May 8, 2011.
Defendant submitted his work for the week of May 26 through June 3, 2011. Defendant did not submit any more work through the last day of the school year on June 30, 2011.
Defendant's Arrest and Interrogation
Defendant was arrested on May 13, 2014. Defendant claimed that he had learned of the shooting through his sister's Facebook account. Defendant told his mother that he believed law enforcement would investigate him for the shooting. Defendant claimed the reason for this belief was that law enforcement always comes to him whenever something happens in Earlimart. Consequently, when asked about his whereabouts on May 8, 2011, he said he was on the couch with his crying mother. Defendant said his mother was "the only proof I got."
Defendant told law enforcement that he looked like his cousin, Rosalio Ayon, and that people would confuse the two of them. Defendant said Ayon was a validated northern gang member. Defendant also claimed Ayon said defendant was on a "black list" with the Norteño gang.
Defendant said he knew Hernan M. and knew where he lived.
Defendant initially said Perez was his friend. Later, defendant started cursing when Perez was brought up and said he "didn't like that guy."
Lupe Sr.
Lupe Sr. testified that earlier on the day of the shooting, Juan Perez had been working for him at an apartment complex near the eventual crime scene. Perez visited Lupe Sr. to get his pay on the day of the shooting. When asked how much time passed from the time he last saw Perez that day until the time he heard gunshots, Lupe Sr. testified: "Gosh, five minutes maybe."
In September 2011, a sheriff's deputy showed a lineup to Lupe Sr. The deputy mentioned that Juan Perez had been arrested for the shooting. Lupe Sr. did not tell the deputy that he had seen Perez on the day of the shooting.
Gang Evidence
Deputy Sheriff Christal Derington testified as the prosecution's gang expert. She testified about the Norteño criminal street gang and its symbols, territory, subsets, primary activities and predicate offenses.
Deputy Derington opined defendant and Juan Perez were Norteño gang members when Pablo was shot. Perez was convicted of a gang-related double murder that occurred on January 14, 2011. Perez admitted gang membership, associated with gang members, wore gang attire, and was housed with gang members.
Deputy Derington also testified about several contacts defendant had with law enforcement. That testimony is set forth in the Discussion section, post, in connection with the relevant issues raised by defendant.
Deputy Derington opined that a hypothetical crime mirroring the facts of the present offense would benefit and promote the Norteño gang "because it is committed by ... two gang members in a crime that's very violent in a neighborhood that's heavily populated." Such a crime would instill fear in the community, enhancing the gang's control of the area.
Defense Case
Defendant
Defendant denied shooting Pablo. Defendant said that on May 8, 2011, he worked at a swap meet from 6:00 a.m. until 4:00 or 5:00 p.m. After that, he was at his aunt's house to celebrate Mother's Day from 5:00 p.m. to 10:00 p.m.
Defendant claimed he did not remember telling Detective Zaragoza that he was at home with his mother that night.
Defendant did not have a scar on his face at trial.
Ines Ayon
Defendant's mother, Ines Pompa Ayon, testified for the defense. Ines confirmed that defendant was picked up for work at 6:00 a.m. and returned at 4:00 p.m. Defendant was at Ines's home from 4:00 p.m. to 5:30 p.m. At 5:30 p.m., defendant accompanied Ines to her brother, Antonio's, house for a Mother's Day celebration. Ines and defendant left Antonio's house around 9:30 p.m. Ines did not see defendant leave Antonio's house at any time before they left together. Ines and defendant stayed up until around 10:00 p.m., when defendant went to bed. A few days later, Ines reported defendant missing.
"[B]etween 2:00 or 3:00 in the afternoon," before she had left for Antonio's house, Ines heard helicopters and police "going all over town." While at Antonio's house earlier that day, Ines heard about a young man who had been shot.
Araceli Pompa is Ines's sister. Rosalio Ayon is Araceli's son. In 2014, after defendant had been arrested, Ines had a conversation with Araceli and Rosalio. Rosalio said he had shot Pablo. Rosalio said that "if they were accusing [defendant] of this case regarding Pablo [G.], that he was going to tell the truth. He would turn himself in." Ines admitted she did not bring this information to the attention of law enforcement. The first time she mentioned Rosalio's purported confession was to a defense investigator in the spring or summer of 2015.
Araceli also told Ines something about her son, Rosalio, being involved in the shooting.
Defense counsel then asked Ines what specifically Araceli had said. The prosecutor lodged a hearsay objection to the question, which was sustained.
Ines admitted she was convicted for perjury in 2013.
Araceli Pompa
Araceli testified that she heard an ambulance and a helicopter on May 8, 2011. When asked if she knew where her son Rosalio was at the time, Araceli responded: "I refuse to answer that question because that could incriminate me."
Araceli said Rosalio accompanied her to Antonio's house for the Mother's Day celebration at around 4:00 p.m. The celebration continued until about 9:10 p.m. However, Rosalio left sometime before the celebration ended. Araceli did not remember whether Rosalio left before or after she heard the helicopter and ambulance.
Araceli denied that Rosalio ever said he had shot someone that day. She also never overheard Rosalio say anything to that effect in her presence.
On July 16, 2015, a defense investigator - through an interpreter - asked Araceli if she would testify truthfully at trial. Araceli was very emotional and said she would not. However, the translator did not know whether Araceli was saying she would not testify at all at trial or would not testify truthfully.
Rosalio Ayon
Outside the presence of the jury, Rosalio Ayon invoked his Fifth Amendment right not to testify.
DISCUSSION
I. DEFENDANT HAS FAILED TO SHOW HE RECEIVED PREJUDICIALLY INEFFECTIVE ASSISTANCE OF COUNSEL
A. An Eyewitness Identification Expert was not Necessary
Defendant argues his trial counsel was ineffective for failing to call an eyewitness identification expert because the prosecution's case hinged on Pablo's identification.
" ' "To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] "A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citation.]" [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 80.)
Defendant asserts that Pablo's identification was weak because his pretrial identifications were tentative; he described the shooter as having a scar on his cheek while defendant had no facial scarring at trial; the incident occurred in the dark; and Pablo did not look at the shooter for long enough to remember his hair style. Defendant also points to problems with eyewitness identifications generally, noting they are prone to problems arising from anxiety, forgetfulness, suggestion, faulty interview and lineup techniques, imperfect or malleable memories and the contaminating effects of extrinsic information.
These arguments miss the mark. There is no question that eyewitness identifications can sometimes be unreliable, and that Pablo's identifications could have been stronger. But the question we face is not whether Pablo's identifications are trustworthy or whether eyewitness identifications are generally reliable. Rather, the question is whether the jury could properly evaluate those issues without the aid of an expert. If the jury would not have been aided by an expert, then defense counsel was not deficient for failing to call one. As explained below, we conclude that the purported shortcomings of Pablo's identifications were clear and understandable, and the jury did not need expert testimony on the subject. As a result, defendant can show neither deficient performance, nor prejudice.
First, the tentative nature of Pablo's pretrial identifications were straightforward. Pablo repeatedly qualified his pretrial identifications with the phrase, "I think." Pablo also said it was possible defendant was not the shooter. These considerations do weaken Pablo's pretrial identifications, but there is no reason to think the jury could not make that evaluation on their own, without an expert. The jury was instructed that they must decide whether the eyewitness testimony in the case was truthful and accurate. One of the questions jurors were expressly told to consider was: "How certain was the witness when he or she made the identification[?]" (See CALCRIM No. 315.) Defense counsel argued the issue in closing. We are confident that, without an expert, the jury could appreciate the import of tentative language like "I think" and other indicia of equivocation in Pablo's pretrial identifications.
Similarly, the fact that Pablo thought the shooter had a scar and that defendant did not have a scar at trial is also straightforward. These factors presented the jury with several possible conclusions, including: (1) Pablo misremembered or misperceived the scar, but otherwise correctly identified defendant; or (2) Pablo correctly remembered and perceived the scar, and therefore his identification of defendant was wrong. Again, we have no reason to think the jury was incapable of appreciating the import of this evidence. The jurors were expressly instructed to consider whether eyewitnesses in the case gave a description to compare that description to the defendant. (See CALCRIM No. 315.) "Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." (People v. Alexander (2010) 49 Cal.4th 846, 903.)
Defense counsel also emphasized the issue during closing argument.
Finally, the fact that the incident occurred at night, and that Pablo did not get a long look at the shooter, did not require expert testimony. Juries can reasonably be expected to appreciate that lighting and duration can impact perception. "It is doubtless true that from personal experience and intuition all jurors know that an eyewitness identification can be mistaken, and also know the more obvious factors that can affect its accuracy such as lighting, distance, and duration." (People v. McDonald (1984) 37 Cal.3d 351, 367, fn. removed, overruled on other grounds by People v. Mendoza (2000) 23 Cal.4th 896, 914.) Indeed, defendant concedes that "lay jurors may understand that eyewitness testimony is affected by such factors as lighting and distance ...."
The jurors were instructed to consider "the circumstances affecting the witness'[s] ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation."
Defendant does seek to identify considerations lay jurors would not be familiar with. For one, he points to research refuting the idea that witnesses are more observant in times of mortal danger. But this research does not appear to have any bearing on the facts of this case. Pablo's testimony was that he willingly gave a ride to three people - two of whom he recognized. He dropped them off, and one of them turned around and unexpectedly shot him. There is nothing to suggest Pablo knew he was in mortal danger as he observed the men involved. Calling in an expert to debunk a theory the jury had no reason to utilize in the first place would not have altered the result here.
Defendant points to research that has "shed light" on the ways in which suggestive questioning and identification procedures, or exposure to extrinsic information, may impact an identification's accuracy. First, we are not convinced that juries cannot appreciate the impact of suggestive questioning or the witness' exposure to extrinsic information. "Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995.) Moreover, defendant does not point to any actual evidence of suggestive questioning or contamination by extrinsic information. Detective Zaragoza showed Pablo 186 photographs across 31 lineups. The only two people Pablo identified from the lineups as being involved were defendant and Juan Perez. And defendant does not suggest that Pablo had been exposed to any relevant extrinsic information before May 25, 2011, when he indicated that the person who had been in the front seat was a Hispanic male around 17 years old, who lived on the corner of Church and Bobbi.
The prosecutor argued that Pablo had identified defendant "not once, but multiple times." Defendant argues an expert "would have explained why this did not make any difference." We do not agree that the fact that a witness has repeatedly identified a particular suspect "does not make any difference." Defendant cites an out-of-state case stating, "Mugshot commitment occurs when a witness identifies a photo that is then included in a later lineup .... Studies have shown that once witnesses identify an innocent person from a mugshot, 'a significant number' then 'reaffirm[] their false identification' in a later lineup - even if the actual target is present. [Citation.]" (State v. Henderson (2011) 208 N.J. 208, 256.) But this concept of "mugshot commitment" does not mean a single identification always has the same probative value as multiple identifications of the same suspect over time. Nor is the concept of "mugshot commitment" particularly opaque, such that explanation by an expert is necessary. Jurors can reasonably be expected to understand that it is possible a witness could misidentify someone, and stick to the misidentification even after they are shown a picture of the true culprit.
B. There are Conceivable Reasons Counsel Would Decline to Call an Eyewitness Identification Expert
"In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions. [Citations.]" (People v. Weaver (2001) 26 Cal.4th 876, 926, italics added.)
Even if an eyewitness identification expert would have provided some beneficial testimony for defendant, counsel could still have reasonably chosen not to call one. While an expert could have testified to the weaknesses of Pablo's identifications, cross-examination would have also forced the expert to acknowledge some of the strengths of Pablo's identifications. For one, Pablo told Detective Zaragoza exactly where the shooter lived before ever seeing any photographic lineups. Moreover, even when Pablo was shown 186 photographs, he selected only two suspects. Pablo never identified anyone other than defendant as the shooter. In sum, counsel could have reasonably determined that a defense expert's acknowledgement of strengths in Pablo's identifications was not worth the anticipated direct examination testimony undermining the identifications.
Defendant also notes that some research shows there is no correlation between the confidence of an eyewitness and the accuracy of their identification. (See People v. McDonald, supra, 37 Cal.3d at p. 369.) But there is a conceivable tactical reason defense counsel may not have wanted an expert to convey that research to the jury. In his in-court testimony, Pablo said he was "certain" defendant was the shooter. However, in his pretrial identifications, Pablo used tentative language indicating he "think[s]" defendant was the shooter. Defense counsel emphasized that fact closing. Thus, with respect to the pretrial identifications, any assumption that confidence and accuracy are correlated would have worked in defendant's favor, because Pablo was not particularly confident. Consequently, if the jury was operating under the assumption that the confidence of an eyewitness and their accuracy are correlated, defense counsel could have reasonably decided he did not want that assumption challenged. Because while refuting correlation may have weakened Pablo's in-court identification, it could have also partially rehabilitated his pretrial identifications. Counsel could have reasonably decided the tradeoff was not worth it. II. DEFENDANT HAS NOT SHOWN PREJUDICIAL ERROR UNDER THE CONFRONTATION CLAUSE
A. Background
Defendant next contends that the prosecution's gang expert's reliance on hearsay violated his Sixth Amendment right of confrontation.
At the outset of her testimony concerning defendant's prior contacts with law enforcement, Deputy Derington testified as follows:
"Q. As part of your involvement in this case, did you investigate [defendant's] history, that is, any contacts that he's had with law enforcement to determine if any of the [gang] validation criteria applied to him?
"A. Yes.
"Q. Did you locate prior contacts that he's had with law enforcement?
"A. I did.
"Q. Approximately how many did you locate?
"A. Can I refer to my validation - or my work up?
"Q. If that would refresh your memory.
"A. I know there was [sic] six reports, police reports that I was able to locate. Seven if you include an additional case I forgot. He also had admitted in custody."
"Q. Let me back up and sort of go through these one by one." Deputy Derington then proceeded to testify about several incidents.
January 16, 2009 Incident
On January 16, 2009, defendant called a girl at school a "scrap" (a derogatory term referring to Southern gang members). Defendant and the girl's boyfriend then engaged in a physical altercation.
February 17, 2009, Incident
On February 17, 2009, defendant was involved in another altercation, alongside gang member Rosalio Ayon.
January 2010, Incident
In January 2010, defendant was walking with his cousin, a Norteño gang member named Jesus Manjarrez. Southern gang members drove by and yelled "some slurs like South Side, to which the defendant and his cousin had responded with some words of their own." Manjarrez called two other Norteños, who came to the location and shot the Southern gang members.
Deputy Derington's Testimony Regarding Personal Contact with Defendant
The prosecutor then asked Deputy Derington if she had personal contacts with defendant, and she replied, "I have." The prosecutor then proceeded down another line of questioning.
August 11, 2010, Incident
On August 11, 2010, defendant was present during an altercation involving Northern gang member David Hernandez.
September 29, 2010, Incident
On September 29, 2010, defendant was involved in another altercation. Defendant was with three Northern gang members.
Deputy Derington's testimony on the September 29, 2010, proceeded as follows:
"A. 2010. He [defendant] was involved with another altercation in a neighborhood with a gentleman cleaning up the leaves. He was with three Northern street gang members, Anthony Cuevas, Jaime Martinez, and Fabian Rivera.
"Q. You know all of them to be Norteño gang members?
"A. I've had personal contact with all three.
"Q. And he was with them on that date?
"A. Yes."
October 15, 2011 Incident
On October 15, 2011, someone shot at defendant's residence. When asked why his house would have been targeted, defendant said he was an active gang member. Defendant said he was in good standing with the Northerners.
Defendant's Facebook Profile
Deputy Derington testified that defendant had a gang moniker: Nano. Defendant's Facebook profile used the name "NaNo" instead of his actual first name. All of the N's in "NaNo" were capitalized. Capitalizing all of the letter N's in a word is one way Norteño gang members represent their gang.
Deputy Derington said she did not think she considered any other contacts or records involving defendant in arriving at her opinions for the case.
Zaragoza's Testimony Concerning January 2010 Incident
Detective Zaragoza also testified concerning the January 2010 incident. He knew the details of the incident because he was one of the responding detectives and the case was subsequently assigned to him. Detective Zaragoza testified that three southern gang associates and/or members were traveling in a vehicle in Earlimart. The passenger saw two northern gang members walking down the street and yelled "South side." The two people walking were defendant and his cousin, Jesus Manjarrez. They responded to the vehicle by yelling back, "Earlimart, Tulare County, Norte, what's up." Manjarrez called another northern gang member who came and shot the southern gang members.
After Zaragoza described the event, he testified as follows:
"Q. In the investigation of that case, did you talk to the defendant?
"A. I did.
"Q. Was that in 2010?
"A. Yes, sir.
"Q. And did he provide you with information about what had happened?
"A. Yes, sir.
"Q. Was he cooperatively initially or not?
"A. No. Our interview lasted well over four and a half hours.
"Q. Eventually he provided you with information?
"A. Yes, sir.
"Q. Did he provide you a statement that was similar to what you've just told the jury you learned in your investigation?
"A. Yes." (Italics added.)
B. Law
With certain exceptions, Crawford v. Washington (2004) 541 U.S. 36 (Crawford ) held "the admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses." (People v. Sanchez (2016) 63 Cal.4th 665, 670 (Sanchez).) However, the confrontation clause " 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' [Citation.]" (Id. at p. 674.) When an expert relies on testimonial statements to support an opinion, the question of whether those statements are being offered " 'for purposes other than establishing the truth of the matter asserted[]' " (ibid.) depends on a distinction between case-specific facts and background information as explained in Sanchez.
In Sanchez, the California Supreme Court held that "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Sanchez, supra, 63 Cal.4th at p. 682.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) In contrast, Sanchez did not "call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field." (Id. at p. 685, italics added.)
In sum, an expert may not convey to the jury hearsay statements that are both case-specific and testimonial.
Unless the declarant was unavailable to testify and the defendant had a previous opportunity to cross-examine (or forfeited the right by his own wrongdoing.) (See Sanchez, supra, 63 Cal.4th at p. 680.)
The parties disagree as to whether defendant forfeited the Sanchez issue by failing to object below. We need not decide that question because we find the error harmless beyond a reasonable doubt.
The Attorney General concedes that Deputy Derington's testimony about the law enforcement contacts on January 16, 2009; February 17, 2009; August 11, 2010; and September 29, 2010 was testimonial hearsay.
However, the Attorney General argues that Deputy Derington's testimony that defendant "was with three gang members on September 29, 2010, was based on personal knowledge and not hearsay." In other words, it appears the Attorney General's position is that Derington's testimony that defendant was with three Norteño gang members on September 29, 2010, was not hearsay, but that the remainder of her testimony concerning that event was testimonial hearsay.
Deputy Derington testified that on September 29, 2010, defendant "was involved in another altercation in a neighborhood with a gentleman cleaning up the leaves. He was with three Northern street gang members, Anthony Cuevas, Jaime Martinez, and Fabian Rivera." The prosecutor then asked, "You knew all of them to be Norteno gang members?" Derington responded, "I've had personal contact with all three." Derington's response is arguably nonresponsive. But even if we give the Attorney General the benefit of the doubt, at most Derington's response indicates she had personal knowledge Cuevas, Martinez and Rivera were northern gang members. However, her response does not indicate that she had personal knowledge that defendant was with those three individuals on September 29, 2010.
In contrast, the Attorney General asserts that "the trial record does not conclusively show that Deputy Derington's testimony about [defendant's] October 15, 2011, admission was based solely on a report written by a non-testifying witness rather than her personal knowledge." Defendant acknowledges that Derington did not testify as to whether his gang membership admission was made to her or someone else. However, he argues that the prosecutor's use of passive voice during his examination indicates he believed Derington had not been personally involved in the investigation. While the use of passive voice does not necessarily support the conclusion Derington had personal knowledge of the admission, neither does it undermine that possibility. Moreover, the prosecutor later asked Derington whether the words of defendant's admission were documented "in your report?" (Italics added.) The record simply does not establish whether Derington was personally aware of the facts concerning the October 15, 2011, incident, or whether she only learned of them from police reports authored by others.
The parties disagree on the effect of a trial record that does not establish or refute preliminary facts bearing on the admissibility of Derington's testimony. Defendant argues the prosecutor was the proponent of the evidence and therefore bore the burden of establishing the preliminary facts that render it admissible under Evidence Code section 403. The Attorney General points to People v. Ochoa (2017) 7 Cal.App.5th 575 (Ochoa), in arguing this court may not assume Derington's testimony was hearsay. Defendant responds that Ochoa conflicts with other statutory law and precedent.
Evidence Code section 403 places the burden of producing evidence as to the existence of a preliminary fact on the proponent of the proffered evidence. (Evid. Code, § 403, subd. (a).) Ochoa held that the testimonial nature of evidence cannot be assumed on appeal, but must be affirmatively shown in the record. (Ochoa, supra, 7 Cal.App.5th at p. 585.) We find no conflict between these two principles of law. Evidence Code section 403 concerns a burden of production in the trial court, while Ochoa concerns the burden of establishing error on appeal, which must be borne by the appellant. Given that the record does not establish nor refute that Deputy Derington had personal knowledge of the October 15, 2011 incident, and given that defendant bears the burden of affirmatively showing error on appeal, we reject defendant's claim as to that incident.
"Had defendant lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay. [Citations.]" (Ochoa, supra, 7 Cal.App.5th at pp. 584-585.)
D. Prejudice
As noted above, the parties agree that Deputy Derington's testimony concerning the law enforcement contacts on January 16, 2009; February 17, 2009; August 11, 2010; and September 29, 2010, related testimonial hearsay. We must now determine whether the admission of this evidence was prejudicial.
Sanchez analyzed prejudice under the "beyond a reasonable doubt" standard. (Sanchez, supra, 63 Cal.4th at p. 698.)
The February 17, 2009, August 11, 2010, and September 29, 2010, incidents were similar: Defendant was involved in, or present for, an altercation along with other Northern gang members.
The January 16, 2009, incident also involved a physical altercation, but there was no indication other Northern gang members were present. However, during that incident, defendant called someone a "scrap" - a derogatory term for a southern gang member.
The testimony concerning these four incidents was very brief.
Moreover, none of these four incidents are nearly as compelling as the October 15, 2011, contact during which defendant admitted to being an active gang member. This admission came only about five months after the May 8, 2011, shooting of Pablo. Moreover, in January 2010, defendant was with a Norteño and responded hostilely to southern gang members. Thus, this is not a case where "[m]uch of the evidence relied on by [the prosecution's gang expert] consisted of red items of clothing, including sports memorabilia ...." (People v. Pettie (2017) 16 Cal.App.5th 23, 65.)
In sum, defendant admitted to gang membership five months after the shooting of Pablo, and acted in a manner consistent with Norteño gang membership on January 2010. There is substantial evidence defendant was with Norteño gang member Perez when he shot Pablo. In light of all this evidence, we conclude that the admission of additional, cumulative evidence that defendant also associated with northern gang members on three other dates, and that he used a derogatory reference to southern gang members in another incident, was harmless beyond a reasonable doubt. III. THE PARTIES AGREE THE CASE SHOULD BE REMANDED
Additionally, defendant's capitalization of all the N's in his Facebook profile name - while insufficient to show gang membership on its own - is consistent with this evidence of Norteño gang membership. --------
In supplemental briefing, the parties agree the case should be remanded for two reasons: (1) for the superior court to decide whether to strike defendant's sentence enhancements under section 12022.5 and 12022.53; and (2) for the juvenile court to conduct a transfer hearing pursuant to Proposition 57. (See generally People v. Superior Court (Lara) (2018) 4 Cal.5th 299.) We accept these concessions.
DISPOSITION
Defendant's conviction and sentence are conditionally reversed and the juvenile court is ordered to conduct a juvenile transfer hearing. (Welf. & Inst. Code, § 707.) When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer defendant's cause to a court of criminal jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(1).)
If, after conducting the juvenile transfer hearing, the court determines that it would have transferred defendant to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then the superior court shall reinstate defendant's convictions. If, however, the juvenile court finds that it would not have transferred defendant to a court of criminal jurisdiction, then it shall treat defendant's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.
As to the sentence or disposition, the superior court shall determine whether to strike defendant's section 12022.5 and/or section 12022.53 enhancements under Senate Bill 620. Depending on how the superior court rules on that issue, it shall either reinstate defendant's original sentence or impose a new sentence/disposition accounting for any stricken enhancements and/or the ruling at the transfer hearing.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
PEÑA, J.
Defendant argues Zaragoza's testimony concerning the January 2010 incident was hearsay. But defendant does not explain why the testimony was inadmissible hearsay other than to argue Zaragoza did not personally observe the shooting. Defendant does not explain why Zaragoza could not convey defendant's description of the events as the statements of a party. (See Evid. Code, § 1220.)