Opinion
F073902
06-08-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN JOEL MEDINA, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F13901746)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Christian Joel Medina was 17 years old when he was charged with the first degree murder (Pen. Code, § 187, subd. (a)) of Leonel Ortega in a criminal complaint filed directly in superior court on February 22, 2013, without a fitness hearing to determine whether he should be tried as an adult. An information was filed in the criminal division of superior court alleging defendant committed first degree murder and alleging enhancements for using a knife, a deadly weapon (§ 12022, subd. (b)(1)), and committing the offense for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
Further statutory references are to the Penal Code unless otherwise indicated.
At the conclusion of a jury trial on May 4, 2016, defendant was convicted of second degree murder. The jury found the weapon enhancement true but found the gang enhancement not true. The jury also found true an allegation defendant was 17 years old within the meaning of Welfare and Institutions Code section 707, subdivision (d)(1). On June 2, 2016, the trial court sentenced defendant to a term of 15 years to life for the second degree murder conviction plus a consecutive term of one year for the weapon enhancement. The court granted defendant 1,199 days in custody credits.
On appeal, defendant contends the trial court failed in its sua sponte duty to give a lesser included voluntary manslaughter instruction based on heat of passion. The People respond that when the trial court asked defense counsel if he wanted a heat of passion instruction, defense counsel declined the offer and the issue is therefore waived. The People further argue there was no evidence to support a heat of passion instruction. Defendant argues the trial court committed further instructional error in failing to instruct the jury it could return a verdict of voluntary manslaughter if it found defendant used excessive force in self-defense.
Defendant contends the trial court abused its discretion in denying his pretrial motion to bifurcate the gang enhancement. In supplemental briefing, defendant argues he is entitled to a fitness hearing after the passage of Proposition 57, The Public Safety and Rehabilitation Act of 2016 (approved Nov. 8, 2016), which eliminated the option for prosecutors to directly file criminal charges against juveniles in adult criminal court. Although Proposition 57 was passed after defendant's trial, he argues its provisions apply retroactively to all cases not yet final. In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), the California Supreme Court recently held defendants who were juveniles when they committed their offenses are entitled to fitness hearings to determine whether they should remain in juvenile court or be tried as adults, and Proposition 57 applies retroactively to all cases not yet final. We will conditionally reverse defendant's conviction and remand for further proceedings consistent with Lara.
FACTS
Confrontation between Defendant and Victim
In February 2013, defendant was living in a group home with roommate Marc M. Under house rules, residents had to be home by 8:00 p.m. On February 19, defendant and Marc M. climbed out of their bedroom window and walked to an apartment complex about 25 minutes away. As they journeyed, Marc M. and defendant drank vodka from a water bottle and smoked marijuana. When they reached the apartment complex, they went to a small playground inside the apartment grounds. A man named Juan arrived a few minutes later and joined them.
Fifteen minutes or so passed when Leonel Ortega walked down the sidewalk. Marc M. did not know Juan or Ortega. Ortega lived in the apartments with his girlfriend. Ortega, wearing gray pants, a long-sleeve shirt under a short-sleeve shirt, and a 49ers cap, left the apartment just before 9:00 p.m. to go to the store. Marc M. believed defendant was a member of the Norteño gang. Defendant had a tattoo of "N" near his left eye and a tattoo of "WFN" on his neck.
Ortega said to defendant, "What's up, Dog?" Marc M. did not think Ortega's tone was angry but more questioning in nature. Marc M. did not hear defendant's response. The conversation turned unfriendly. Ortega asked defendant, "Do you bang?" but Marc M. did not think Ortega was identifying himself with a gang. Defendant and Ortega squared up, lifting their hands as though they were about to fight. They did not touch one another or throw punches toward one another. As they faced each other, Ortega told defendant to back up. Marc M. did not see defendant make gang signs or draw a weapon, although he acknowledged he did not know Norteño or Bulldog gang signs. Marc M. did not see defendant with a weapon that evening.
As defendant and Ortega were preparing to fight, D.R. ran out of her apartment, got between them, and tried to pull the two apart. Defendant had gone to D.R.'s apartment earlier that evening to either ask for a ride or to use her phone. D.R.'s brother was defendant's friend. After leaving D.R.'s apartment, defendant went downstairs. There was a commotion outside and D.R. heard someone say, "What's up, Dog?" and "You bang?" D.R. heard defendant's voice, but could not recall what he said. She heard Ortega use the term "dog." D.R. was aware dog was a word used by criminal street gangs to refer to the Bulldog gang. Although defendant never told her so, D.R. was aware he was a Norteño.
D.R. told Marc M. and Juan to stay back. Marc M. followed D.R.'s instruction because he was "not involved with that." Prior to trying to pull the two apart, D.R. yelled, "That's my brother," hoping they would stop fighting. D.R. did not know Ortega prior to this incident. During the confrontation, defendant once or twice told Ortega "This is Norte gang" and "This is Norte." Ortega was much larger than defendant and was trying to hit him. D.R. heard Ortega say, "I got this little, skinny nigga." Defendant grabbed D.R. by her throat and told her to move while holding a knife with his other hand. Defendant was not hiding the knife.
D.R. explained that when Ortega saw the knife, the expression on his face changed and he started backing away. Ortega said, "I'm sorry." D.R. told Ortega, "Go home. Please go home." Ortega did not have a weapon and D.R. was scared for Ortega's life because defendant did have a knife. Ortega and defendant headed in the direction of the apartment office. D.R. gave up trying to stop the fight and started walking home.
Marc M. lost sight of Ortega and defendant as they moved away from him around the corner. The entire time, Ortega was moving backwards away from defendant as defendant was advancing on Ortega. Ortega and defendant were out of Marc M.'s sight for a couple of minutes. Marc M. ran toward the direction he last saw defendant because he could tell something was happening and Marc M. was trying to call out to him before anything occurred. Defendant was running toward Marc M. and told him to come with him. They went back toward the playground area, jumped the fence to the apartment complex, and ran all of the way back to the group home. On the way back to the group home, defendant repeatedly told Marc M. to hurry up.
Defendant and Marc M. climbed back through their bedroom window. Marc M. watched a news report on television that night with defendant about a stabbing at the apartment complex. Marc M. did not recall anything defendant said while the news report was on; Marc M. then went to bed. Defendant did not flaunt his gang membership or his tattoos and never talked about wanting to fight other gang members. Marc M. did not question defendant about what happened because he was shocked and also afraid of defendant.
D.R. saw defendant and Marc M. run past her and she had a bad feeling because she had just been choked by defendant, who had a knife, and he had been arguing with Ortega. Ortega was lying down by the apartment office. D.R. tried to give him CPR. Ortega told D.R., "I'm sorry. Should have listened to you." Ortega kept repeating "I'm sorry." D.R. placed Ortega on her lap and his eyes rolled back.
911 Call
The group home issued cell phones to the juveniles housed there. A call to 911 was made at 9:03 p.m. from the phone issued to defendant. The phone was registered to Lisa Tatum, who ran the group home. An alternate phone number used for the account was the group home's number. A recording of the conversation during the call was played for the jury. The jury was also provided with a transcript of the recording. It reproduced the dialogue between the dispatcher, defendant, Marc M., D.R., and Ortega.
A second 911 call was made from defendant's phone about 12 minutes earlier, but the recording was unintelligible.
"[DISPATCHER]: 9-1-1. Hello you called 9-1-1. Your Emergency?
"(Unintelligible) Come on Boy!
"[ORTEGA]: Get back dog!
"(Unintelligible)
"[D.R.]: Please don't! No!
"[ORTEGA]: Back the fuck up dog.
"[Defendant]: Fuck you you pussy ass nigga
"[Defendant]: Back the fuck up! Back off me! Get the fuck (unintelligible)...If you're holding me, I can't touch him. He's a (unintelligible)
"[D.R.]: Stop.
"[ORTEGA]: Fucking fight me dog! (unintelligible). Don't fucking knife me dog! That's my fucking fade homeboy! (unintelligible)
"[Defendant]: (unintelligible) fuck up.
"[ORTEGA]: That's my (unintelligible) fucked up (unintelligible) dog. (Unintelligible). You better back the fuck up dog. Dog back the f—I got you dog.
"[Defendant]: (Laughs) Shit! He can't take it from me. You're gonna die.
"[ORTEGA]: (Unintelligible)
"[Defendant]: You need to die bitch! Shut-up!
"[ORTEGA]: (Unintelligible)
"[D.R.]: No. (Unintelligible)
"[Defendant]: (Unintelligible)
"[D.R.]: No.
"[Defendant]: (Unintelligible) I'll stab you nigga in the balls bitch!
"(Unintelligible voices)
"[ORTEGA]: Don't fucking stab me dog. What the fuck! (Unintelligible) Oh my God! Oh God! What the fuck! Dog! Please stop! Please! (Unintelligible)
"[Defendant]: Hey! Let's get out of here! Hurry Up. Hurry Up. Hurry Up bitch.
"[Defendant]: I'm outta here. Y'all niggas stupid! Hurry up then. I'm outta here. Come on Marc! Marc. Come on Marc, come on Marc hurry up, come on come on Marc. Come on Marc.
"(Running)
"[Defendant]: Take off your shirt. Take off your shirt. (unintelligible).
"[Marc. M.]: Alright. Is there an exit?
"[Defendant]: Come on! Hurry! Hurry up! Hurry up! (unintelligible). Yeah! Come on bitches! We gotta go to Cub's house. (unintelligible). Come on, come on, come on. (unintelligible). Got it. (unintelligible)
"[Defendant]: Come on Marc. Come on (unintelligible). I know what I'm doing. I know what I'm doing Juan. Come on.
"[Defendant]: Come on! Come on Juan. Hurry up! Hurry the fuck up Juan!
"Unk: (Unintelligible) faster bro come on (unintelligible). Come on. You know we can (unintelligible) Hurry up! (unintelligible).
"[Defendant]: Hurry up (unintelligible). Hurry up. Hurry up! Marc hurry up! Hurry up Marc!
"[Defendant]: Marc hurry up!
"[Defendant]: Marc hurry up!"
Emergency Response to Stabbing
After the 911 call, Fresno Police Officer Nathan Jaime was dispatched at 9:04 p.m. to investigate a reported stabbing in the area of the apartment complex. He arrived about five minutes later and was flagged down by two Hispanic females standing near Ortega, who was lying in the driveway and bleeding from his leg and back. Jaime started giving Ortega medical aid. Ortega had no pulse and was not breathing. Jaime performed CPR on Ortega until paramedics arrived.
Ortega was taken to Community Regional Medical Center by ambulance. Ortega remained unconscious and had no pulse while attended to by paramedics. Ortega, who was 27 years old, had lacerations on his back, left side near his chest, and right leg, as well as an abrasion on his left leg. Ortega was six feet one inch tall and weighed 233 pounds. He had tattoos, including "Ortega" on his upper back and right wrist, and "Gina" on his left wrist. There was also a tattoo of a skull and crossbones on Ortega's right shoulder. Ortega did not have a Bulldog gang tattoo. Ortega's blood tested negative for alcohol but positive for cannabis and methamphetamine.
Dr. Michael Chambliss, a forensic pathologist, performed Ortega's autopsy. Ortega had bruises on both cheeks, his chin, and the corner of his eyebrow that were inflicted prior to his death but within the time frame of the stabbing. Ortega had a superficial wound below his left armpit. Ortega suffered a stab wound to his right thigh, two stab wounds to his upper left back, and a stab wound to his upper right back. The stab wound to Ortega's left upper back traveled in a downward path, penetrating his left lung. The stab wound to Ortega's left middle back penetrated three inches horizontally.
The stab wound to Ortega's right upper back traveled in a downward path, penetrating the upper lobe of his right lung. From the injuries to the lungs and the accumulation of blood in Ortega's chest cavity, he would have lost consciousness within minutes. The cause of death was from the stab wounds penetrating Ortega's lungs. Dr. Chambliss concluded Ortega was not moving while the knife blade was in his body.
Police Investigation
No weapon was found near Ortega or at the apartment complex. Homicide Detective Ignacio Ruiz was assigned lead investigator on the case and arrived at the apartment complex at 10:00 p.m. Detectives Ruiz and Andre Benson canvassed the complex door-to-door for witnesses and received information of a Hispanic woman wearing pajama bottoms and no shoes who was outside at the time of the stabbing. About 3:00 a.m., they saw D.R. sitting on the staircase outside her apartment and spoke with her inside her apartment.
D.R. was initially hesitant to talk to the detectives and told them, "'You're going to get me killed.'" Her hands were shaking and she was stuttering. D.R. was very frightened. D.R. told Ruiz that Ortega was "hitting up" defendant, asking him, "What's up, dog?" and "You bang?" D.R. was familiar with the greeting "What's up, dog," being used in two ways: one meaning hello or how are you, and the other as being confrontational. Because Ortega also asked, "You bang?" he was being aggressive, not friendly.
D.R. explained that during the first part of the altercation, Ortega was talking tough. But when Ortega saw the knife, his face changed as well as his stance as he realized defendant was serious. Ortega stopped making a fist with his hand and began trying to protect himself. When defendant pointed the knife at him, Ortega apologized, saying he was sorry and then ran away. Defendant ran after Ortega. When defendant ran back past D.R. with Marc M., he told D.R., "'Get rid of your clothes and stay quiet.'"
D.R. testified defendant was holding the knife down at his side as he ran. D.R. told the detectives a Northern gang member would want to keep the knife used on a rival as a trophy. D.R. tried to bleach the bloodstains on her pajama pants. She put the bloody clothes in a bag with the shoes she had picked up outside and put the bag underneath her kitchen sink. Ruiz examined the shoes and noticed they appeared to be bloody. D.R. told the detectives she was afraid to give them any information about what happened because they could not remove every Norteño in Fresno. She asked whether they would reveal what she told them. D.R. agreed to write down the name of the person involved and wrote "Cribs" on a piece of paper, but she pronounced the name "Creeps," explaining his real name was Chris.
D.R. scrolled through her contacts on her Facebook account looking for a male with a tattoo on his face and showed the detectives defendant's photo. D.R. agreed to show the detectives where defendant lived and took them to one of his former addresses. D.R. believed defendant was a "big guy out there." D.R. was afraid of testifying because it could get her in trouble with defendant's gang.
Defendant was taken into custody from the group home later that morning. Lisa Tatum took the detectives to defendant's bedroom to perform a search. Detective Ted Kazarian located a Samsung cell phone on defendant's bed. The phone was locked but was in Internet mode and had a news update visible on the locked screen stating, "The police say the motive behind a fatal stabbing at a northwest apartment complex on Wednesday night remains unclear. The police responded shortly after 9:00 p.m." The remainder of the news update was not visible on the phone's display screen.
Kazarian searched the closet. When he lifted a folded pair of blue jeans on the top shelf to look underneath, a large knife fell onto the floor. The cell phone and knife, a fixed-blade 10-inch knife with wooden handle, were booked into evidence. The knife had no fingerprints. It had what appeared to be blood on it, and DNA sample swabs were collected. Ruiz did not send the swabs for DNA testing after defendant told him he had washed the knife, and it did appear the knife had been washed. Ruiz did not believe there was any detectible DNA remaining on the knife.
Defendant's Statement to Detectives
On February 20, 2013, defendant was interrogated by Detectives Ruiz and Benson at the police department. The interrogation was recorded and played for the jury. Defendant did not appear to be under the influence of drugs or alcohol. Ruiz did not see any injuries to defendant's face or bruising on any part of his body.
After reading defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Ruiz informed defendant he and Benson were investigating the homicide at the apartment complex and wanted to talk to him about what happened. Defendant said, "I was right there and this guy passed by and he said—he said what's up dog, and he was trying to fight me. And that's what happened. He was trying to fight me and he's a grown-ass man. Gonna fight me. I had a knife on me." Defendant added, "Uh, like, he was just trying to fight me and I pulled out the knife on him. And then, like, just started going to the street. I got a good shot at him." Defendant admitted stabbing Ortega more than once after Ortega took his eyes off defendant and stumbled while backing up into the street.
According to defendant, the fight started when he and Ortega squared off. Ortega tried to throw punches at defendant, but did not hit him. Defendant said he pulled out a knife from his pants pocket. Ortega was backing up, and when he stumbled, defendant said he "got him." Defendant said he was not injured. Defendant said he stabbed Ortega because Ortega was waiting for a chance to get defendant. Defendant did not run away after Ortega stumbled because he believed Ortega would have chased him. When Ortega stumbled, his back was exposed and defendant stabbed him. Defendant explained, "He could have got up and just like, just hit me or something." Defendant claimed he stabbed Ortega because Ortega was "a grown-ass man trying to fuckin' kill me."
Defendant told the detectives he ran home after stabbing Ortega. Defendant explained he threw his black hoodie into the adjacent apartment complex. Defendant threw the knife as well, but went back and got it. At home, he took a shower and washed off the knife. Defendant admitted the knife found in his bedroom was the knife he used to stab Ortega. Defendant told the detectives Ortega had been trying to "punk" him. Defendant explained, "[H]e could have just walked away and leave me alone. I said he could have. He could have just kept going. I wasn't trying to—I wasn't trying to kill him. I wasn't trying to be the aggressor. He—he just—he was f—he was testing me, he was pressing—he was just trying to beat me up." Defendant also asserted Ortega tried to take the knife away from him while they were fighting.
Ruiz explained trying to "punk" someone occurs when an individual is challenging another individual to a fight, trying to make that person "cower down." When Benson asked defendant what it meant to him when Ortega said, "what's up dog," defendant replied it meant Ortega was identifying himself as a Bulldog gang member. Defendant maintained he was not bothered by this because after a friend of his died, he was "not on that little-ass kid shit." Defendant acknowledged Ortega did not beat him up, did nothing to his friend, and had nothing in his hands. Defendant told the detectives, "It doesn't matter what I say, I'm fucked anyways" and "I'm pretty much fucked, right?" Defendant lamented, "I don't want to do life."
Gang Evidence
A school resource officer testified defendant fought another student in their classroom in February 2009. Defendant told the resource officer he was a member of the Norte gang and he did not like the person he fought with because that person was a Bulldog gang member. In October 2009, defendant got into a disturbance with a female student at school because she was a Bulldog; defendant admitted being a Norteño. Defendant wrote Norteño graffiti on a wall in school a month later. Thereafter, defendant had encounters with law enforcement in which he admitted being a Norteño gang member. In 2011, defendant was wearing clothing with Norteño colors and a belt buckle with the letter "N." In 2012, law enforcement had an encounter with defendant, who had the letter "N" tattooed on his face and the letters "WFN" tattooed on his neck.
The People's gang expert, Officer Kyle Kramer, had 18 years of experience as a peace officer with the Fresno Police Department, including 11 years as a member of the Multi-Agency Gang Enforcement Consortium. Kramer had personally contacted over a thousand gang members over the years, including members of the Norteños, Sureños, and Fresno Bulldogs, which are all Hispanic gangs. Kramer explained the Norteños are at the bottom of a hierarchical organization that includes the prison gangs Northern Structure, or Nuestra Raza, in the middle and Nuestra Familia at the top.
There are 11 subsets of Norteños in Fresno County, four of them in the metropolitan area including West Fresno Norte (WFN). The Norteño criminal street gang engages in crimes including murder, attempted murder, shootings, assaults with deadly weapons, automobile thefts, and drug dealing. Members of WFN commit these same offenses. Although the Norteños do not claim any turf, the Bulldogs are divided into turf-based subsets. Rivals to WFN include the Bulldogs and Sureños.
Kramer described four predicate crimes committed by WFN gang members: (1) aggravated mayhem, assault with a deadly weapon, and gang participation by Antonio Garcia in 2010; (2) assault with a deadly weapon with a gang enhancement by Jesus Medrano in 2009; (3) grand theft by Jose Ayala in 2012; and (4) shooting at an inhabited building, assault with a deadly weapon, and gang participation by David DeJesus in 2012.
Kramer explained respect is the most important thing in gang culture. Gang members gain respect by committing violent crimes, and respect of an individual gang member reflects well on the gang itself. Such violence makes it less likely other gangs will attack. Gang members arm themselves for offensive and defensive reasons, including to carry out attacks if given an opportunity. Some incidents are planned and others occur in a split second.
Kramer opined defendant was a member of the WFN criminal street gang at the time of the incident based on defendant's acknowledgment of gang membership, his gang tattoos, and his writing gang graffiti. Kramer explained a "hit up" in gang terminology is a verbal or physical gesture asking what's up and demands a response. If the hit up comes from a rival gang member, a physical response is expected. If the person who is hit up has a weapon, he or she is expected to use the weapon because failure to do so can be seen as weakness or cowardice. If a gang member fails to respond to a hit up, he or she will be punished for failing to respond.
When given a hypothetical scenario based on the facts of this case, Kramer explained when Ortega asked defendant if he banged, this was a hit up by someone defendant likely perceived as a rival Bulldog gang member. Failing to respond would be seen as cowardice or weakness. By yelling out Norte, defendant was benefitting the Norteño gang. Carrying out the act also benefitted the gang. Kramer, however, acknowledged there was nothing in the hypothetical scenario indicating Ortega was a gang member or the apartment complex was claimed turf or territory for a gang.
Defense
D.R. was called as a witness by defendant and testified it was possible someone other than defendant yelled "Norte" during the altercation.
Defendant testified he was five feet seven or eight inches tall, weighed 120 pounds, and was 17 years old on the date of the incident. Defendant admitted he stabbed Ortega but denied any intent to kill him. Defendant explained he used to be a Northerner but dropped out after members of the gang killed his best friend. Defendant went to the apartment complex to see his friend D.R. Ortega approached defendant near D.R.'s apartment. Defendant described Ortega as a tall grown man and described his weight as big. As Ortega passed, defendant looked up and Ortega said, "'What the fuck, what's up, Dog?'" Defendant said when Ortega put his hands up to hit him, defendant tried to move out of the way. Ortega swung at defendant and they started fighting. Defendant did not know Ortega.
Defendant explained that although the first swing Ortega took missed him, Ortega hit the top of defendant's head a couple of times and defendant started backing up. Defendant hit Ortega in the face but it did not appear to have any effect on Ortega. They ended up next to the laundry. As defendant was walking backward, Ortega was advancing and said, "'Come on, Dog, catch my fucking fade.'" Defendant denied calling out the word Norte during the fight. Defendant acknowledged he had run with a gang in the past, he had his own gang tattoos, and he saw no gang tattoos on Ortega. Defendant still thought of Ortega as a gang member because of his use of language and calling defendant a dog.
Defendant said he never wanted to fight Ortega because he was worried about Ortega's size, height, and manner. Defendant thought Ortega wanted to kill him. Defendant denied stabbing Ortega while Ortega was running away. Defendant tried to call the police twice while he was walking backward. The second time defendant called the police, he had his knife out and thought he had hung up the phone.
As defendant began to advance on Ortega, Ortega said, "'Back the fuck up, Dog.'" Ortega did not initially attempt to take away defendant's knife, but did so later after D.R. came outside and defendant pushed her off. Defendant started backing up again and Ortega kept trying to advance on him. Defendant said he was trying to intimidate Ortega. Defendant was worried for his safety when D.R. grabbed hold of him because he could do nothing as Ortega advanced on him. Defendant's heart was pounding and he was scared. After pushing D.R. away, defendant said Ortega was trying to take the knife from him.
Defendant backed into the middle of the street. According to defendant, Ortega tried to attack him and they began to wrestle. Defendant thought Ortega was stabbed in the leg as defendant ducked under Ortega's left arm. Defendant remembered stabbing Ortega in the back once as they wrestled because Ortega tripped over the center divider trying to resume a fighting stance. Defendant did not remember stabbing Ortega any other time. After defendant stabbed him, Ortega said, "Don't stab me. I'm sorry."
Defendant then ran back to his group home. Defendant initially threw away the knife, but later retrieved it. Defendant denied taking a shower with the knife but admitted he washed it because it had blood on it. Defendant denied retrieving the knife as a trophy.
On cross-examination, defendant admitted he was holding the knife as D.R. held on to him and he told her he could not touch Ortega. Defendant denied this meant he could not hurt Ortega. Defendant said his comment meant he could not defend himself. Defendant heard Ortega say, "'Fucking fight me, Dog. Don't fucking knife me, Dog.'" Defendant acknowledged Ortega meant for him to put the knife down and fight without it. Defendant was aware Ortega was not armed. Defendant also acknowledged he told Ortega he was going to die. Defendant explained he was scared when he called Ortega a racial epithet and threatened to stab him in the testicles. Defendant admitted Ortega was pleading with defendant to stop the attack and did not believe Ortega was reaching for a weapon.
DISCUSSION
I. Instruction on Heat of Passion
Introduction
Defendant contends Ortega's verbal challenge to defendant and Ortega's substantially greater size entitled him to CALCRIM No. 570, the instruction for the lesser included offense of voluntary manslaughter based on heat of passion. The People argue this issue was forfeited by defense counsel and, on the merits, there was no evidence to support a heat of passion defense. We reject the People's forfeiture argument but find a theory of heat of passion is not supported by the evidence adduced at trial.
Jury Instructions
The trial court reviewed the jury instructions with counsel. The court explained it was planning to give CALCRIM No. 1403, the instruction concerning the limited purposes the jury could consider evidence of gang activity. These include defendant acted with the intent required to prove the gang enhancement, defendant had the motive to commit the charged crime, and defendant actually believed he had the need to defend himself. The court asked defense counsel if he wanted the portion of the instruction referring to defendant acting in the heat of passion. Defense counsel replied: "When I originally looked at it, I was looking at the bracketed portion about the defendant acted in heat of passion. Because I was originally going to ask for voluntary based also on heat of passion. But I didn't. That being said, I'm good." The court noted it would give the instruction as presented to counsel without reference to heat of passion.
The jury instructions reflected the parties' legal theories. Defense counsel conceded his client stabbed Ortega. Defense counsel proceeded to argue his client was acting in self-defense because of Ortega's significantly larger size, status as an adult, and aggression toward defendant. Defense counsel alternatively argued defendant acted in imperfect self-defense. The prosecutor argued the facts supporting the People's theory that defendant committed first degree murder with malice aforethought. The prosecutor's opening and rebuttal arguments were that defendant was not acting in self-defense.
In addition to instructions on homicide (CALCRIM No. 500), first degree murder (CALCRIM No. 520), the degrees of murder (CALCRIM No. 520), and how to manage the verdict forms in evaluating a potential verdict (CALCRIM No. 640), the trial court instructed the jury on provocation (CALCRIM No. 522), self-defense (CALCRIM No. 505), and imperfect self-defense (CALCRIM No. 571).
The trial court instructed the jury on imperfect self-defense as follows:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense.
"If you conclude that the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime....
"The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable.
"The defendant acted in imperfect self-defense if:
"One, the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury;
"And two, the defendant actually believed that the imminent use of deadly force was necessary to defend against the danger;
"But, three, at least one of those beliefs was unreasonable.
"I'm going to reread the second element.
"Two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.
"In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.
"A danger is imminent if when the fatal wound occurred the danger actually existed or the defendant believed it existed. The danger must seem immediate and present, so that it must be instantly dealt with. It may not be merely prospective or in the near future.
"Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force.
"If you find that the defendant received a threat from someone else that he associated with Leonel Ortega, the Third, you may consider that threat in evaluating the defendant's beliefs.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder."
Forfeiture and Invited Error
The People argue defense counsel rejected a bracketed portion of CALCRIM No. 1403 that included provocation by heat of passion and has therefore both invited any error by the trial court in failing to instruct the jury on provocation by heat of passion and forfeited the issue. We reject the theory of invited error because defense counsel and the trial court were referring to CALCRIM No. 1403, the instruction concerning the limited purposes the jury could consider evidence of gang activity. This instruction focused on the gang enhancement rather than the allegation of premeditated homicide. Also, for the doctrine of invited error to apply, defense counsel must have an articulated strategy for refusing an instruction, and defense counsel did not explain why he wanted to omit the bracketed, heat-of-passion portion of CALCRIM No. 1403 from the jury instructions. (People v. Cooper (1982) 53 Cal.3d 771, 829-831.) Although a clearly implied tactical purpose may be sufficient to invoke the invited error rule, it must be clear defense counsel acted for tactical reasons rather than ignorance or mistake. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
The trial court is required to instruct on all lesser included offenses substantially supported by the evidence, whether or not there is a formal request by the defense. This obligation encompasses instructions on lesser included offenses if there is evidence absolving the defendant of the greater offense but not the lesser offense if accepted by the trier of fact. (People v. Rogers (2006) 39 Cal.4th 826, 866.) This is a sua sponte duty on the trial court. The duty falls on the trial court where the defendant fails to request an instruction due to trial tactics and even where the defendant objects to the instruction being given. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) Consequently, we also reject the People's forfeiture argument and proceed to the merits of defendant's contention.
Analysis
Under section 187, subdivision (a), murder is the unlawful killing of a human being with malice aforethought. A person who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter pursuant to section 192. The intent to kill generally constitutes malice. In limited and explicitly defined circumstances, a defendant who intentionally kills may lack malice when the defendant kills in unreasonable self-defense or when the defendant acts in a sudden quarrel or heat of passion. Neither heat of passion nor imperfect self-defense is an element of voluntary manslaughter that must be affirmatively proven. Instead, they are theories of partial exculpation reducing murder to manslaughter by negating the element of malice. (People v. Moye (2009) 47 Cal.4th 537, 549.)
A heat of passion theory of manslaughter has both an objective and subjective component. To satisfy the objective, or reasonable person, element of this type of voluntary manslaughter, the defendant's heat of passion must be due to sufficient provocation. The factor distinguishing the heat of passion form of voluntary manslaughter from murder is provocation. The provocation inciting the defendant to homicidal conduct must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. Although the conduct may be physical or verbal, it must be sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. The killing is not voluntary manslaughter, however, if sufficient time has elapsed for passion to subside and reason to return between the provocation and the fatal blow. (People v. Moye, supra, 47 Cal.4th at pp. 549-550, People v. Avila (2009) 46 Cal.4th 680, 705-706.)
A trial court does not have a sua sponte duty to instruct the jury on a lesser included offense on the existence of "'any evidence, no matter how weak.'" Such instructions are required only where the evidence the defendant is guilty "of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman, supra, 19 Cal.4th at p. 162.)
In Moye, the defendant engaged in a fight on Saturday evening, reflected on it overnight, and returned to inflict a fatal blow the next day. The trial court denied a heat of passion instruction because the accused had time to cool down and reflect, even though the victim also had kicked the defendant's car just before the assault. Under this scenario, the trial court did not err in failing to give the heat of passion instruction. (People v. Moye, supra, 47 Cal.4th at pp. 551-552.)
In Avila, the victims and their unarmed friends were socializing in a parking lot. The defendant and one or two other men got out of a vehicle and walked up to the group. The men told two women in the group to get into the car but they refused to leave. Names that one witness assumed were gang names were called out and one person in the defendant's group suggested a one-on-one fight. A surviving victim told the defendant he was free to leave with the women and there was no problem. As the confrontation appeared to dissipate, the victim and his friends started toward their vehicles and the defendant attacked. The defendant attacked the surviving victim and killed two others with a long knife. (People v. Avila, supra, 46 Cal.4th at pp. 685-687.) The Avila court found insufficient provocation to justify homicidal rage or passion in an ordinarily reasonable person. (Id. at pp. 705-706.)
According to defendant, Ortega's comment of "What's up, dog" was a provocative challenge to fight. Defendant further argues he feared Ortega due to Ortega's greater size and age. Together, these facts at best create a subjective basis for provocation of defendant by heat of passion. In themselves, however, these facts cannot sustain heat of passion provocation under an objective standard. The victim's conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Lee (1999) 20 Cal.4th 47, 59.) Although there was evidence of an argument and emerging fistfight, there was no evidence Ortega did or said anything sufficiently provocative that his conduct would cause an average person to react with deadly passion. (Ibid.) Adequate provocation must be affirmatively demonstrated. (Id. at pp. 59-60; People v. Johnston (2003) 113 Cal.App.4th 1299, 1312-1313 [a challenge to fight is insufficient to justify the use of deadly force in self-defense].) The directing of pejorative swear words toward a defendant is also insufficient provocation to justify a voluntary manslaughter instruction, even when it involves simple assault by the victim. (People v. Gutierrez (2009) 45 Cal.4th 789, 826-827.) From an objective standpoint, defendant has failed to affirmatively show he was sufficiently provoked to warrant voluntary manslaughter instructions based on provocation by heat of passion.
Furthermore, in a mutual combat scenario presented by the defense here, a defendant who kills during such combat cannot take undue advantage. This is especially true where the mutual combat is broken off but resumed by the use of a superior weapon, giving the defendant the unfair advantage. (See People v. Lee, supra, 20 Cal.4th at p. 60, fn. 6.) Here, the evidence demonstrated Ortega sought to stop the mutual combat as soon as defendant pulled out a 10-inch knife. Ortega was unarmed and tried to retreat but defendant kept advancing on Ortega until defendant could begin to stab him with multiple lethal blows. Defendant's conduct is not identical but similar to the conduct of the defendant in People v. Avila, who proceeded to attack his victims after their initial hostile encounter had cooled down and the victims were retreating.
Defendant's counsel correctly focused his attention on the theories of self-defense and imperfect self-defense—theories matching the confrontation unfolding between defendant and Ortega. The jury received complete instructions on these defense theories. Defendant failed to show by any evidence that he was enraged, angered, or in fury due to Ortega's words or conduct. Given these facts, the trial court did not have a sua sponte duty to instruct the jury on heat of passion provocation. (See People v. Manriquez (2005) 37 Cal.4th 547, 585.)
Because we find there was insufficient evidence to create a sua sponte duty for the trial court to instruct the jury on provocation by heat of passion, we find no merit to defendant's alternative argument that his trial counsel was ineffective for failing to request these instructions.
II. Failure to Instruct on Excessive Force in Self-defense
Introduction
Defendant testified he feared Ortega was going to kill him. Defendant argues that based on this evidence, the trial court had a sua sponte duty to instruct the jury on the theory of voluntary manslaughter based on defendant's use of excessive force because defendant honestly believed the degree of force he used was necessary. The People reply self-defense does not apply to an honest but unreasonable belief the degree of force used was necessary. The People further argue defendant's theory was covered by the trial court's instructions on imperfect self-defense.
Defendant elaborates that the trial court's voluntary manslaughter instructions to the jury based on imperfect self-defense were inadequate because the court failed to instruct the jury on imperfect self-defense based on use of excessive force in self-defense. The jury instructions included the use of deadly force within the imperfect self-defense instructions given. This instruction necessarily included the concept of use of unreasonable excessive force. Defendant further argues his defense counsel was ineffective for failing to request further clarifying instructions on the use of unreasonable excessive force. We find no merit to this issue because the pattern instruction adequately defined the legal theory of unreasonable use of deadly force.
Use of Unreasonable Force in Self-defense
For a killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. If the belief subjectively exists, but is objectively unreasonable, there is imperfect self-defense, meaning the defendant is deemed to have acted without malice and cannot be convicted of murder but can be convicted of manslaughter. Perfect self-defense exonerating a person occurs when the defendant's subjective belief is objectively reasonable. For either perfect or imperfect self-defense, the defendant must fear imminent harm to life or great bodily injury. Fear of future harm does not suffice, no matter how great its likelihood. (People v. Hardin (2000) 85 Cal.App.4th 625, 629.)
Justification for self-defense does not depend on the existence of actual danger but rather upon appearances. It is sufficient the circumstances be such that a reasonable person would be in fear for his or her safety. One engaged in self-defense may be mistaken in his or her judgment. In defending himself or herself, the person may use only that force necessary in view of the nature of the attack, and excessive force is not justified. The circumstances surrounding self-defense, including whether the situation would cause a reasonable person to perceive the necessity of defense, whether the defendant actually acted out of self-defense, and whether the force used was excessive, are questions of fact for the trier of fact to resolve. (People v. Clark (1982) 130 Cal.App.3d 371, 377-378, abrogated on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92; People v. Young (1963) 214 Cal.App.2d 641, 646 [excessive force destroys justification for self-defense; whether excessive force was used is question of fact for jury to determine].)
Self-defense is founded on the doctrine of necessity, which comprises two closely related rules. First, a defendant may only employ that force necessary to repel an attack. Force exceeding this necessity is unjustified. Second, deadly force or force likely to cause great bodily injury may only be used to repel an attack that is deadly or likely to cause great bodily injury. Following these principles, a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds the nature of the attack did not justify the defendant's resort to deadly force or the force used exceeded that reasonably necessary to repel the attack. (People v. Hardin, supra, 85 Cal.App.4th at pp. 629-630.)
The California Supreme Court explored how malice could be negated during self-defense where a defendant asserted he acted in an honest belief he had to act in self-defense but used excessive force in the process of defending himself. In People v. Mayfield (1997) 14 Cal.4th 668, 702-703, abrogated on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, footnote 2, Mayfield fatally wounded police Sergeant Gary Wolfley with Wolfley's service revolver. As Mayfield fled with Wolfley's revolver, he shot two rounds at pursuing officers, wounding one of them. Mayfield dove through the living room window of a home and shot one of the residents. Mayfield surrendered to police who had surrounded the home. The People maintained Mayfield disarmed Wolfley to avoid arrest and deliberately shot and killed him. Mayfield maintained Wolfley shouted racial slurs and verbal threats at him while pointing a gun at the defendant's head; Mayfield, fearing for his life, grabbed the officer's hands and the gun accidentally fired twice during the ensuing struggle. (Ibid.)
Mayfield contended the self-defense jury instructions were incomplete and misleading because they did "not state that if a person uses unreasonable or excessive force in response to an officer's use of unreasonable or excessive force, a killing that results is without malice and at most voluntary manslaughter." (People v. Mayfield, supra, 14 Cal.4th at p. 777.) Mayfield argued he was also entitled to meet the officer's unreasonable force in detaining him with his own unreasonable force. The court in Mayfield noted the jury was instructed the officer was not permitted to use excessive force in detaining the defendant but if he did so, the defendant "' may lawfully use reasonable force to protect himself.'" (Ibid.) The Mayfield court explained malice is negated under these facts only if the defendant honestly but unreasonably believed the degree of force used was in fact necessary. Absent such a belief, a person's use of excessive force in response to an officer's use of excessive force would not negate malice. (Ibid.)
The jury in Mayfield was also instructed a "'person who kills another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully, but does not harbor malice aforethought and cannot be found guilty of murder.'" (People v. Mayfield, supra, 14 Cal.4th at pp. 777-778.) Mayfield reasoned that under these instructions, "if the jury concluded that defendant killed Sergeant Wolfley by the use of excessive force without honestly believing that the amount of force used was necessary, then the jury could properly find, as it evidently did find, that defendant acted with malice, whether or not Sergeant Wolfley had used excessive force." (Id. at p. 778.) The Supreme Court concluded there was no reasonable likelihood the jury was misled, and it rejected defendant's contention the trial court erred in giving the challenged instruction. (Ibid.)
Mayfield explores the principles of self-defense and refers to the then applicable version of the imperfect self-defense instruction also given to the jury. Mayfield explains how malice can be negated to transform murder into voluntary manslaughter. The court in Mayfield noted malice is negated only if the defendant honestly, but unreasonably, believed the degree of force used was in fact necessary. (People v. Mayfield, supra, 14 Cal.4th at p. 777.) It rejected the defendant's proposed instruction that he was entitled to meet unreasonable force by the officer detaining him with his own unreasonable force. The Mayfield court noted the jury rejected voluntary manslaughter based on imperfect self-defense because it had been instructed a defendant could not harbor malice if he had an honest but unreasonable belief in the necessity to defend against a threat to his life or great bodily injury. Having rejected an imperfect self-defense theory on properly given instructions, Mayfield reasoned the jury concluded the defendant had acted with malice in his encounter with Wolfley.
As part of the imperfect self-defense instructions to the jury here, the trial court explained defendant had to actually believe he was in imminent danger of being killed or suffering great bodily injury, and defendant had to actually believe the immediate use of deadly force was necessary to defend against the danger, but at least one of those beliefs was unreasonable. The jury was informed the People had the burden beyond a reasonable doubt to show defendant was not acting in imperfect self-defense, and if the People failed to meet this burden, the jury must find defendant not guilty of murder. The effect of such a finding would be to negate the element of malice if the jury concluded either defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, or he actually but unreasonably believed he had to use deadly force against the danger. This latter portion of the trial court's instructions clearly informed the jury it could find defendant guilty of voluntary manslaughter, rather than murder, if it found defendant used excessive force in self-defense. As in Mayfield, the jury rejected the theory defendant was entitled to use deadly, or excessive, force.
Although the pattern instruction uses the phrase "deadly force" rather than the term "excessive force," in the context of the imperfect self-defense instruction and the facts presented at trial, the two phrases are synonymous and indistinguishable. The trial court has no duty to clarify words and phrases commonly understood by those familiar with the English language and not used in a technical sense peculiar to the law. (People v. Estrada (1995) 11 Cal.4th 568, 574; People v. Lopez (2011) 199 Cal.App.4th 1297, 1307.) The trial court's instructions gave the jury a clear path to find defendant culpable of voluntary manslaughter if he used excessive force in self-defense. CALCRIM Nos. 505 and 571 have been found to accurately set forth principles of self-defense and imperfect self-defense and set forth the law in terms of common, everyday usage. (People v. Lopez, supra, at p. 1307.) Assuming the trial court had a sua sponte duty to instruct the jury on excessive or deadly force, it fulfilled that duty by advising the jury with CALCRIM No. 571. Further instructions on the actual but unreasonable belief that excessive force was necessary would have constituted clarifying or pinpoint instructions. The trial court does not have a sua sponte duty to give the jury pinpoint instructions. (People v. Hughes (2002) 27 Cal.4th 287, 361.)
Alleged Ineffective Assistance of Counsel
Defendant alternatively argues his trial counsel was ineffective for failing to seek a clarifying instruction on use of excessive force.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1019.)
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts 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. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file futile motions. (Id. at p. 420; see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
On direct appeal, reversal of a conviction for ineffective assistance of counsel will only occur if: (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there could be no satisfactory explanation for counsel's choices. All other claims of ineffective assistance of counsel are more appropriately resolved in a habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Because defendant received complete instructions on his theory of voluntary manslaughter, defense counsel did not perform below professional norms, and defendant has unsuccessfully demonstrated prejudice from the failure to have additional instructions on excessive use of force. (See People v. Maury, supra, 30 Cal.4th at pp. 416-417.) Furthermore, defense counsel could well have had tactical reasons for not seeking further instructions on his client's unreasonable belief he could use excessive or deadly force. For instance, this may have unduly emphasized defendant's use of a 10-inch knife on an unarmed victim. The instructions adequately informed the jury on how to evaluate evidence related to imperfect self-defense and voluntary manslaughter, and defense counsel cannot be faulted for not seeking additional pinpoint instructions.
III. Motion to Bifurcate Gang Allegations
Defendant made a motion to bifurcate the gang allegation from the other allegations on the basis the gang evidence was more prejudicial than probative under Evidence Code section 352. The prosecutor argued the killing was motivated by defendant's gang affiliation and was done to promote a criminal street gang. Defense counsel replied defendant's motive was not an element of murder and the court should grant the motion. The trial court denied the motion, finding the escalation in the confrontation between defendant and Ortega was gang related. The court found the probative value of the gang evidence substantially outweighed its prejudicial effect. On appeal, defendant contends the trial court abused its discretion in denying his motion to bifurcate the gang allegations.
A trial court has broad discretion in deciding whether to bifurcate gang allegations from the other charged offenses. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051.) Evidence of gang membership is often relevant and admissible regarding the charged offense. Evidence of gang affiliation—including evidence of the gang territory, membership, signs, symbols, beliefs, practices, criminal enterprises, and rivalries—can be used to prove identity, motive, modus operandi, specific intent, or other issues pertinent to guilt of the charged crime. (Id. at p. 1049; People v. Funes (1994) 23 Cal.App.4th 1506, 1518.)
To the extent evidence supporting a gang enhancement would be admissible at a trial determining a defendant's guilt, any inference of prejudice would be dispelled and bifurcation would be unnecessary. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) Evidence of gang membership that is more probative than prejudicial also overcomes a challenge pursuant to Evidence Code section 352. (People v. Becerrada (2017) 2 Cal.5th 1009, 1022.) A trial court's ruling denying a defendant's motion to bifurcate is within the sound discretion of the trial court and is reviewed on appeal for abuse of discretion. (People v. Burch (2007) 148 Cal.App.4th 862, 867.) A trial court's exercise of discretion under Evidence Code section 352 is disturbed on appeal only if the court's decision exceeds the bounds of reason. (People v. Funes, supra, 23 Cal.App.4th at p. 1519.) Admission of relevant evidence does not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70; People v. Falsetta (1999) 21 Cal.4th 903, 913.)
In support of his argument, defendant relies on People v. Albarran (2007) 149 Cal.App.4th 214. In Albarran, two Hispanic males shot at a house. Though there was substantial evidence the sole defendant was a gang member, there was no evidence as to the identity of the other individual. (Id. at pp. 217-219.) Prior to trial, the court ruled the proffered gang evidence was relevant not only to the gang enhancement but also to the issues of motive and intent for the underlying charges. (Id. at p. 220.) The jury found the defendant guilty of the charged offenses and found the gang enhancement allegations true. (Id. at p. 222.) However, the trial court later found there was insufficient evidence to support the gang findings and they were dismissed without prejudice. (Ibid.)
Albarran held that, even if some of the gang evidence was relevant to the issues of motive and intent, other inflammatory gang evidence not relevant to the charged offenses was admitted. (People v. Albarran, supra, 149 Cal.App.4th at pp. 227-228.) Albarran found much of the gang evidence had no legitimate purpose in the underlying trial and could have led the jury to conclude the defendant posed a danger to society. (Id. at p. 230.) Albarran determined the case was "one of those rare and unusual occasions where the admission of evidence ... violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232, italics added.) Defendant's reliance on People v. Albarran, supra, 149 Cal.App.4th at pages 226-228 is unpersuasive because in Albarran, the gang evidence was irrelevant to the underlying offenses and was clearly prejudicial to the defense. Albarran is factually inapposite to the instant action.
Defendant was charged with murder, and a gang enhancement alleged he committed the murder for the benefit or in association with the Norteño criminal street gang. Gang evidence was relevant on the issue of whether the homicide was murder in the first or second degree, or manslaughter. Gang evidence was also relevant to the People's case concerning defendant's motive in killing Ortega. Evidence of defendant's gang connection was also used by the prosecution to refute defendant's theories of self-defense, or alternatively, imperfect self-defense. Because gang evidence was relevant to the People's theory of defendant's criminal liability, as well as to refute his theories of self-defense, the trial court acted well within its discretion in denying defendant's motion.
Gang evidence is relevant and admissible when the very reason or motive for the underlying crime is gang related. Because motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) The trial court did not err in denying defendant's motion to bifurcate the gang enhancement from the remaining allegations.
IV. Proposition 57
Defendant was 17 years old when he committed the offense and when the People directly filed the initial criminal complaint against him in the criminal division of superior court pursuant to former Welfare and Institutions Code section 707, subdivision (d). This statute provided prosecutors with discretion under specified circumstances to file charges against a minor directly in a court of criminal jurisdiction, "a practice known as 'direct filing' or 'discretionary direct filing.'" (People v. Cervantes (2017) 9 Cal.App.5th 569, 596, partially disapproved of in Lara, supra, 4 Cal.5th at pp. 314-315.) Here, there was no fitness hearing to determine whether defendant was fit to be adjudicated as a minor pursuant to the Welfare and Institutions Code. Proposition 57, enacted by the electorate in November 2016, abolished the direct filing procedure.
In supplemental briefing, the parties raise the issue of whether the provisions of Proposition 57 prohibiting direct filing of criminal charges against juveniles can be applied retroactively. The California Supreme Court's recent decision in Lara answers that question in the affirmative. Citing the reasoning articulated in In re Estrada (1965) 63 Cal.2d 740, the Lara opinion holds that while Proposition 57 does not mitigate punishment for any particular crime, it does confer potential benefits to a class of persons, i.e., juveniles, and constitutes an "'ameliorative change[] to the criminal law' that ... the legislative body intended 'to extend as broadly as possible.'" (Lara, supra, 4 Cal.5th at p. 309.) In short, Proposition 57 applies retroactively "to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, at p. 304.)
Because defendant's judgment of conviction is not yet final, his Proposition 57 claim is well taken. On the issue of the relief defendant is entitled, Lara endorses a remand procedure described by the Fourth District Court of Appeal in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298. (Lara, supra, 4 Cal.5th at pp. 310, 313 ["we believe remedies like those provided in Vela ... are readily understandable, and the courts involved can implement them without undue difficulty"].) Accordingly, defendant's convictions and sentence will be conditionally reversed, and the matter will be remanded for the juvenile court to conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707 as amended with the passage of Proposition 57. (Lara, supra, at p. 310.)
In 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 the case to a court of criminal jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(1).) After conducting the juvenile transfer hearing, if the court determines 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 defendant's conviction is to be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).) If, on the other hand, the juvenile court finds it would not have transferred defendant to a court of criminal jurisdiction, then it shall treat defendant's conviction as a juvenile adjudication and impose an appropriate disposition within its discretion. (Lara, supra, 4 Cal.5th at p. 310, following People v. Vela, supra, 11 Cal.App.5th at p. 82, review granted.)
DISPOSITION
The judgment is conditionally reversed pending further proceedings in accordance with Proposition 57. The case is remanded to the juvenile court with directions to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707 as discussed above. At the transfer hearing, if the juvenile court determines it would not have transferred defendant to a court of criminal jurisdiction, then Medina's criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court shall then conduct a disposition hearing.
At the transfer hearing, if the juvenile court determines it would have transferred defendant to a court of criminal jurisdiction, it shall then reinstate defendant's conviction and sentence.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.