Opinion
H044019
12-10-2018
THE PEOPLE, Plaintiff and Respondent, v. OFELIA RODRIGUEZ OROPEZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 16CR01595)
Defendant Ofelia Rodriguez Oropeza was convicted by a jury of second degree robbery (Pen. Code, § 211) with a firearm enhancement (§ 12022, subd. (a)(1)). She was sentenced to a total term of four years in prison. On appeal, she argues (1) the trial court erred when it instructed the jury to "continue" their deliberations and "fill . . . in" the alternate juror following the juror's substitution, (2) the trial court erroneously permitted the People to introduce testimonial hearsay evidence from a gang expert, and (3) the trial court committed instructional error when it failed to instruct the jury that her duress defense negated her guilt under a conspiracy theory of liability. We reject defendant's claims and affirm the judgment.
Unspecified statutory references are to the Penal Code.
BACKGROUND
On August 21, 2014, the Santa Cruz County District Attorney's Office filed an information charging defendant with second degree robbery (§ 211) and a firearm enhancement (§ 12022, subd. (a)(1)). Jury trial began on July 21, 2016.
1. The Trial
a. The Prosecution's Evidence
On January 6, 2012, Maria Naranjo worked at Ideal Jewelry, a store in Watsonville that sold various items including gold jewelry. That day, Naranjo's 12-year-old son accompanied her to the store and played games on a nearby computer while she worked. At approximately 5:26 p.m., two women entered the store and asked Naranjo if they could sell her gold. One of the women was later identified as defendant. Defendant did not wear anything that obscured her face, but Naranjo recalled that she wore a pink sweatshirt. The other woman wore a hat and sunglasses. Naranjo told the women that they would have to go to another location to sell their gold. The women did not immediately leave, and they started browsing the store. Naranjo showed them a book of merchandise they could purchase.
After several minutes, defendant nodded or made some sort of gesture with her head. Shortly thereafter, a man walked into the store. The man pulled out a gun and told Naranjo to get on the floor. Both Naranjo and her son complied. Around that time, Naranjo pressed her silent alarm. The woman who was wearing sunglasses asked for the keys to a glass case that held gold jewelry. Defendant tried to break the case with her fist, pounding the glass. Naranjo told her not to break the glass, because she was already handing over the keys. The woman with the sunglasses asked for Naranjo's cell phone, but Naranjo did not have a cell phone with her. After Naranjo handed over the keys, the woman wearing the sunglasses opened the glass case and started taking out trays of jewelry. She handed the trays to defendant, who placed them in a bag. Afterwards, the two women and the man left the store and entered a dark-colored car that drove away.
The jewelry store had several surveillance cameras that recorded video of the robbery. Based on the surveillance videos, the woman who wore sunglasses during the robbery appeared to have a gun tucked into the small of her back.
After the robbery, Naranjo filled out a form indicating what items had been taken from the store. In total, the robbers took approximately $85,000 worth of jewelry.
On February 14, 2012, officers showed Naranjo a series of photographs. Naranjo identified a photograph of defendant as the female robber who had not been wearing sunglasses.
Officers obtained a search warrant for defendant's apartment and conducted a search on March 8, 2012. The apartment was empty when officers arrived. During the search, officers found a pink sweatshirt and a large gold ring. The officers were not sure if the ring was one of the items stolen from the store, so it was not seized. The owner of Ideal Jewelry was shown a photograph of the ring. He believed the ring was similar to rings sold at his store, but he was not sure if it was something that his store sold.
Officers found a black car parked in the apartment's garage, which looked like it had been damaged in a major collision. The black car looked similar to the car used as the getaway vehicle after the robbery, although the car shown in the surveillance video did not have significant damage to it. A subsequent investigation determined that Porfirio Alvarado, defendant's brother, owned the car.
We refer to defendant's brother by his first name as the parties did in their briefing.
Officers left a copy of the search warrant on defendant's kitchen counter. They also returned to her apartment several times but were unable to locate her. At one point, they returned to defendant's apartment and discovered the front door, which had been broken to facilitate the search, had been repaired.
b. The Defense's Evidence
Defendant testified on her own behalf. She confirmed she participated in the robbery. However, she claimed she participated in the crime under duress after she was kidnapped by the man and the woman that were seen on the video.
At the time of the crime, defendant lived with her brother, Porfirio. Defendant believed Porfirio was a Norteno gang member. Sometime before the robbery, Porfirio decided to leave the gang. He told his sister to tell his "homies" that he was not home when they came to look for him. On multiple occasions, people that defendant believed were gang members stopped by her apartment asking for Porfirio. The gang members threatened defendant when she refused to tell them where her brother was. She was threatened a total of three to four times before a man, who later served as the getaway driver during the robbery, came to her apartment and forced her at gunpoint to come with him and two other accomplices, the man and woman seen on the surveillance video. Defendant had six children and was worried her kidnappers would kill her or harm her children if she did not give in to their demands.
Defendant was told by her kidnappers that they were going to go rob a jewelry store. She was told she was kidnapped to repay a debt owed by her bother. Her kidnappers gave her a bag and gloves and told her to tell the store employee that she wanted to sell jewelry because her car had broken down and she needed money for repairs. She denied she signaled the man to come in to start the robbery. Defendant said that her kidnappers did not tell her when to put on the gloves, but she put the gloves on when the robbery commenced. Defendant explained that she put on the gloves when the male kidnapper came into the store because she suddenly remembered they had given her the gloves. Her kidnappers had told her that the female kidnapper would facilitate the actual robbery.
Defendant said she banged on the counter because she wanted Naranjo to hurry up. Defendant only wanted to get out of the store quickly. Defendant admitted that after the robbery was completed, she was the first one to leave the store. She also carried the bulk of the stolen jewelry. When she and her kidnappers exited the store, they initially walked in different directions. However, her kidnappers did not chase after her. Defendant said she saw a getaway car coming towards her, and she went towards it. Defendant acknowledged she had the chance to run away but explained she did not do so because she was afraid for her children and her family. After the robbery, she was dropped off about a block away from her apartment. She was never given any of the jewelry stolen from the store.
According to defendant, the getaway driver was wearing a hoodie pulled over his head and glasses during the entire robbery. The other man, the accomplice that entered the store, wore a bandana covering his face. Defendant's testimony contradicted Naranjo's earlier testimony; Naranjo had testified that she could see the male robber's face when he first walked past the store.
Defendant confirmed that the black car parked in her apartment's garage belonged to her brother. She explained that the car was involved in an accident around Halloween 2011, so it would have been damaged at the time of the jewelry store robbery.
After she learned her apartment had been searched, defendant decided to go to Arizona, where her ex-husband lived. Around that time, defendant told her mother that she had been forced to commit the robbery. Defendant fled because she was afraid of what her kidnappers would do if they discovered she had been linked to the robbery, and she was worried she would be arrested. Defendant lived in Arizona for several months before she moved to Mexico, where she stayed for approximately a year and a half with her children. Defendant decided to come back to the United States, because she did not believe it was fair to her children to keep them away from their home country. Defendant knew she would be arrested at the border, but she decided to cross it anyway.
After her arrest, defendant was transported to California. She made several calls while she was in jail. In one call, she told her sister that she had told her lawyer about how she robbed the store under duress. She then told her sister that her lawyer wanted someone—either her sister or her mother—to explain what had happened, and her lawyer had asked her for her sister's phone number. Over the phone, defendant said to her sister: "My lawyer wants to talk to you. Well, so—so you told him the same I told you, well, what I am telling you." Defendant told her sister she had not given her sister's phone number to her lawyer yet, and she was going to give her sister her lawyer's number so she could call him. Defendant told her sister to call her lawyer the following day, because she had just told her lawyer that she did not know her sister's number. Defendant then asked her sister to call their mother and "explain it to her." She told her sister to tell their mother not to be "nervous, unintelligible." She also reminded her sister to tell her mother that sometime after the robbery, Porfirio was shot at by gang members.
Also while in jail, defendant called her mother and told her that her lawyer was going to call her. Defendant explained to her mother that she had told her lawyer the truth and that she had been forced to rob the store. Defendant told her mother that her lawyer had wanted to speak with someone who knew that she had been forced to commit the robbery under duress. However, at trial, defendant's mother could not remember if she learned her daughter had robbed the store before or after her subsequent arrest for the crime.
Defendant introduced evidence that her brother had been the target of violence after he dropped out of the Norteno gang. In July 2012, Porfirio called defendant's oldest daughter and asked her to pick him up. At that time, Porfirio drove a red pickup truck. Porfirio appeared nervous and would not sit in the front seat when defendant's daughter came to get him. Later, an officer testified that a red pickup truck was found with bullet holes.
c. The Prosecution's Rebuttal
As a rebuttal to defendant's evidence that her brother had been subjected to gang violence after he withdrew from the gang, the prosecution presented testimony from Officer Anthony Parker, who had previously been a gang enforcement officer with the violence suppression unit in the City of Salinas. Parker testified that on January 26, 2012, about 20 days after the robbery occurred, defendant's brother was stopped at a traffic stop while driving three passengers. Parker observed one of the passengers had gang-related tattoos and wore clothing that indicated gang membership. In total, two of the passengers, aside from defendant, had previously admitted to being gang members.
Officer Parker testified that in his experience, gang members do not typically force family members of gang dropouts to commit crimes to repay debts. He further testified that gang members typically commit crimes either by themselves or with other gang members whom they trust. Gang members would not commit crimes with someone they did not trust.
2. Verdict and Sentencing
On July 29, 2016, after approximately a day of deliberations, the jury informed the court that it was deadlocked. Upon questioning by the trial court, several jurors indicated they believed further deliberations would be helpful. On August 2, 2016, deliberations resumed, but one of the jurors failed to appear. As a result, the court substituted in an alternate juror. When it made the substitution, the court instructed the jury that it was required to begin deliberations anew. The court also commented that the jury should "fill . . . in" the alternate juror and "continue" with their deliberations.
Subsequently, the jury reached a verdict, finding defendant guilty of robbery and the firearm enhancement. On October 3, 2016, the trial court sentenced defendant to a total term of four years in prison, composed of three years for the robbery and an additional year for the firearm enhancement. Defendant appealed.
DISCUSSION
1. Jury Instruction Following Substitution of an Alternate Juror
a. Background
Shortly after the jury started deliberating, the jurors asked the court to read back defendant's testimony. That same day, Friday, July 29, 2016, the jury informed the court it was deadlocked. The court addressed the jurors and asked if additional deliberations and coming back after the weekend may help them reach a verdict. Several jurors, including Juror No. 8, indicated that further deliberations may be helpful.
The court then had some discussions with counsel, because Juror No. 12 had indicated he was starting a new job that following Monday and would not be able to return to deliberate. During the discussions, the court told the jury that if it were to excuse Juror No. 12 and substitute one of the alternate jurors, the jurors would have to "start [their] discussions from the start again so that the other person gets the benefit of all those discussions." The court reiterated that "by law," the jury would be required to "start [their] deliberations from the beginning." Later, Juror No. 12 indicated he would ask his new employer on Monday if he could have the day off on Tuesday to continue deliberations. Thereafter, the court ordered the jury to come back the following Tuesday.
The following Tuesday, all of the jurors (including Juror No. 12) returned, except for Juror No. 8. The court dismissed Juror No. 8 and substituted Alternate Juror No. 1. When it made the substitution, the court made the following statement: "Now, the law is very clear on what you as a jury have to do. I'm going to read an instruction to you that is just black and white. Okay? So you're going to have to follow this instruction."
The court then gave the following instruction: "One of your fellow jurors has been excused, and an alternate juror has been selected to join the jury. Do not consider the substitution for any purpose.
"The alternate juror must participate fully in the deliberations that lead to any verdict. The People and the defendant have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict. This right will only be assured if you begin your deliberations again from the beginning.
"Therefore, you must set aside and disregard all past deliberations and begin your deliberations all over again.
"Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place."
The court then made the following statements to the jurors as it told them to go back to the jury room: "Now, please return to the jury room and start your deliberations from the beginning. [¶] He [the alternate juror] has to be part of it all, and I'm hoping that makes sense to you folks, although it may sound a little frustrating. If you come up with a decision, it has to be a joint decision. So fill him in on everything and start fresh. [¶] . . . [¶] Follow the bailiff at this point and continue with your deliberations, and thank you very much."
b. The Trial Court's Instructions to Begin Deliberations Anew
On appeal, defendant argues the trial court's comments to the jury that it should "fill him [the alternate juror] in on everything" and "continue with your deliberations" undermined its previous instructions to start deliberations anew. Given the trial court's repeated admonitions to the jury that it must completely restart deliberations, we do not believe the trial court's vague statements to the contrary constituted error.
Under People v. Collins (1976) 17 Cal.3d 687 (Collins), disapproved of on another ground in People v. Boyette (2002) 29 Cal.4th 381, 462, the California Supreme Court held that a defendant's right to a jury trial includes the right to a unanimous verdict. (Collins, supra, at p. 693.) This right "requires each juror to have engaged in all of the jury's deliberations. . . . The requirement that 12 persons reach a unanimous verdict is not met unless those 12 reach their consensus through deliberations which are the common experience of all of them. It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint. The result is a balance easily upset if a new juror enters the decision-making process after the 11 others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. By this we mean that a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity." (Ibid.)
Thus, Collins held that in situations where a juror is replaced with an alternate juror, the court must "instruct the jury to set aside and disregard all past deliberations and begin deliberating anew. The jury should be further advised that one of its members has been discharged and replaced with an alternate juror as provided by law; that the law grants to the People and to the defendant the right to a verdict reached only after full participation of the 12 jurors who ultimately return a verdict; that this right may only be assured if the jury begins deliberations again from the beginning; and that each remaining original juror must set aside and disregard the earlier deliberations as if they had not been had." (Collins, supra, 17 Cal.3d at p. 694.)
Defendant acknowledges the trial court correctly instructed the jury to begin deliberations anew, but she takes issue with the court's later comments that the jury should "fill . . . in" the alternate juror and "continue" their deliberations. Citing to People v. Odle (1988) 45 Cal.3d 386, 405 (Odle), abrogated on another ground as stated in People v. Prieto (2003) 30 Cal.4th 226, 256, she claims the trial court's comments, made after the required admonition, undermined its instruction to restart deliberations.
In Odle, the trial court made the following statements to the jury: " 'The court is compelled under the law to admonish you that you are to start your deliberations from scratch because, obviously, [the alternate juror] has not had the benefit of whatever discussions you have had so far . . . . Start your discussions from scratch so that [the alternate juror] has full benefit of everything that has gone on between the jury up to the present time.' " (Odle, supra, 45 Cal.3d at p. 405.) The Supreme Court noted that by instructing the jury to " 'start from scratch,' " the court correctly implied it should disregard its previous deliberations and start anew. (Ibid.) However, when the trial court added that it should start from scratch so the alternate juror could have the " 'benefit' " of " 'everything' " that had previously " 'gone on,' " it implied the jury should not disregard its previous deliberations. (Ibid.) The Supreme Court determined that this interpretation of the trial court's comments would defeat the purpose of the instruction required under Collins. (Odle, supra, at p. 405.)
Defendant also argues the trial court's statement to the jury to "continue" with deliberations is akin to the erroneous instruction contemplated in Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578 (Griesel), overruled on another ground as stated in Privette v. Superior Court (1993) 5 Cal.4th 689, 696. In Griesel, the trial court substituted an alternate juror after seven days of deliberation. (Griesel, supra, at p. 581.) The court did not instruct the reconstituted jury to restart deliberations. Instead, it instructed the jury to " 'continue with your efforts' " and " 'continue your consideration of the case.' " (Id. at p. 583.) The Supreme Court concluded this instruction was erroneous.
Defendant's case, however, is unlike either Odle or Griesel. First, we note that contrary to defendant's assertion, the Odle court did not determine that the trial court's comments to the jury were erroneous. In Odle, the Supreme Court assumed error occurred and found the error was not prejudicial. (Odle, supra, 45 Cal.3d at p. 405.)
Moreover, the allegedly erroneous comments made by the trial court here were short and vague compared to the multiple admonitions it made to the jury to start deliberations anew. Defendant's comparison to Odle ignores the differences between the two cases. In Odle, the court made the allegedly erroneous statement after briefly admonishing the jury to start their deliberations " 'from scratch.' " (Odle, supra, 45 Cal.3d at p. 405.) Here, defendant takes issue with the court's comments that the jury should "fill him [the alternate juror] in on everything" and "continue with your deliberations." The court, however, made these comments after it instructed the jury that it must follow its directive to continue "deliberations again from the beginning" and to "set aside and disregard all past deliberations." Following this instruction, the court reiterated that the alternate juror had to be part of the entire deliberation process and acknowledged that starting deliberations over could be frustrating to the jury. Moreover, the week prior to these allegedly erroneous comments, the trial court had previously commented to the jury that if an alternate juror was substituted into the jury, jurors would have to completely restart their deliberations.
For similar reasons, defendant's comparison to Griesel is also misplaced. The trial court in Griesel gave no admonition whatsoever and merely instructed the jury to continue their deliberations. Here, the trial court told the jury to "[f]ollow the bailiff" and "continue with your deliberations" only after it made multiple admonitions to the jury that it would need to begin deliberations anew. We do not believe a reasonable juror would rationally infer that the court intended to override its previous directives based on these offhand remarks.
Furthermore, the trial court's statements were vague. At no point did the court expressly contradict its earlier admonition to the jury to restart deliberations, and its statements are open to interpretation. As the People argue, the court's statements could have been reasonably interpreted as directing the jury to "fill . . . in" the alternate juror by telling him where to get coffee or find the bathroom. We also note that the court told the jury to "fill . . . in" the alternate juror and to "start fresh" in the same sentence, right after it acknowledged to the jury that restarting deliberations from the beginning may be frustrating. In this context, we do not believe the jury could have rationally concluded the court was instructing them to inform the alternate juror of what transpired during the prior deliberations.
Moreover, telling the jury to "continue" with deliberations was similarly vague. The trial court did not tell the jury to continue its prior deliberations. The court may have been referring to the fact that the majority of the jurors had been deliberating since the prior week; thus, although the jurors would begin deliberating anew they would be continuing the process of deliberating.
Even if we were to assume error occurred, we would find it was not prejudicial. We review the error here under the test set forth under People v. Watson (1956) 46 Cal.2d 818. (People v. Guillen (2014) 227 Cal.App.4th 934, 1031.) Under Watson, reversal is required only if there is a reasonable probability that a more favorable verdict would have been returned had the jury been properly instructed following the substitution of the alternate juror. "In determining whether Collins error was prejudicial, we may consider whether the case is a close one and compare the time the jury spent deliberating before and after the substitution of the alternate juror." (People v. Proctor (1992) 4 Cal.4th 499, 537.)
Defendant argues the comparative length of the jurors' deliberations weighs in favor of finding prejudice. We disagree. Defendant argues the original jurors deliberated for almost seven hours before informing the trial court they were deadlocked. A portion of these seven hours, however, was spent with the court reading back defendant's testimony. Defendant argues the newly constituted jury deliberated for "two and a half hours," which is comparatively short. Defendant, however, cites to her trial counsel's motion for a new trial to support the claim the newly constituted jury took only two and a half hours to deliberate, and this fact is not supported by anything in the record. The reporter's transcript of the proceedings did not notate when and if the jurors took a lunch break. It is, however, apparent that the newly constituted jury deliberated for at least several hours, because it reached a verdict at 2:30 p.m. that same day. While this may have been shorter than the seven hours that the first jury spent deliberating, the difference is not vastly significant.
We also disagree with defendant that this was a close case. Defendant conceded she participated in the robbery and there was evidence her duress defense was not consistent with her behavior during the robbery. Defendant was seen on the surveillance video signaling or nodding her head before the male accomplice entered the store. Defendant insisted she did not know about the plan for the robbery, yet she put her gloves on when the robbery commenced. Defendant banged her hands on the counter and asked Naranjo for the keys, facilitating the robbery. During the robbery, defendant and her alleged kidnappers placed the bulk of the jewelry into a bag, which defendant carried out of the store. Defendant was the first one to leave the store, and she initially walked in an opposite direction from her kidnappers.
Defendant's mother corroborated that her daughter had told her that she robbed the store out of duress. However, at trial she could not recall if her daughter told her about the kidnapping before or after her arrest. Furthermore, defendant called her mother when she was in jail and told her that she had robbed the store out of duress. Similarly, in a recorded phone conversation from jail, defendant told her sister to contact her lawyer after she told her sister that her lawyer wanted to know who knew she had committed the robbery out of duress. She also told her sister not to call her lawyer right away, because she had just told her lawyer she did not have her sister's phone number. In short, the recorded jail conversations did not fully support defendant's defense. In fact, the jail conversations hurt defendant's claim that she committed the robbery under duress, because they demonstrated that defendant told her mother and her sister about her duress defense before they were contacted by her lawyer.
There was other evidence that contradicted defendant's claim that she committed the robbery only after she was threatened and kidnapped. The prosecution presented evidence that sometime after the robbery, Porfirio was stopped while driving a car by an officer who observed that one of his passengers had gang-related tattoos and wore clothing with symbols commonly worn by gang members. This evidence tended to refute defendant's claim that Porfirio had dropped out of the gang. The officer also opined that gang members typically commit crimes with people they trust and do not abduct family members to help commit crimes.
We acknowledge the jury initially informed the trial court that it was deadlocked after deliberating for several hours. The jury's statement does impact our analysis of prejudice and whether this was a close case. However, we may not speculate the reasons for a deadlock. (People v. Foy (2016) 245 Cal.App.4th 328, 352.) Furthermore, the jury was ultimately able to return a verdict after deliberating for several hours. Multiple jury members also indicated, after they had stated they were deadlocked, that they believed further deliberations would be helpful. Thus, despite the jury's initial statement that it was deadlocked, we do not view this as a close case. We therefore conclude that even assuming error occurred, the error was not prejudicial.
2. Sixth Amendment Rights
a. Background
Defendant testified she committed the robbery after she was kidnapped at gunpoint by gang members after her brother, Porfirio, dropped out of a gang. As a rebuttal to the defense, the prosecution presented testimony from Officer Anthony Parker, who had previously been a gang enforcement officer with the violence suppression unit in the City of Salinas. Parker testified that on January 26, 2012, about 20 days after the robbery occurred, he stopped Porfirio at a traffic stop while he was driving three passengers.
Officer Parker spoke with one of the passengers, Alejandro Mendez. At the time, Mendez was wearing a Houston Astros baseball cap, which is commonly worn by Norteno gang members. Mendez also wore a sweatshirt that depicted the California bear and a nautical star. The California bear symbol is common with both Nortenos and Surenos, and the nautical star is common with Nortenos. Mendez lived on a street that Parker knew was associated with a particular Norteno subset. Mendez also had tattoos, including one with the word "Salinas" and another with the moniker "Smiley." Parker asked Mendez about the "Smiley" tattoo, and Mendez replied that his "homies" called him that. According to Parker, "homies" is a term commonly used in gang culture. Parker specifically asked Mendez if he was a gang member. Mendez said he was not a gang member, but he associated with Nortenos.
Officer Parker testified that the Northern Star had significance for the "same reason as the hat [that Mendez was wearing]," because it was "representative of the Northern Star." Earlier, he had testified that the Houston Astros hat was common with Nortenos, because the star represents the "Northern Star to a Norteno gang member."
Officer Parker then testified that based on his research, Mendez had previously been contacted by officers on two prior occasions and on those two occasions he had admitted he was a Norteno gang member. Parker also testified that another passenger, Christian Martinez, had also previously admitted to being a gang member. Parker confirmed that Porfirio himself had previously admitted to being a gang member.
The prosecutor asked Officer Parker if, based on his experience, gang dropouts are likely to associate with members of the gang they had recently left. Defendant's counsel objected on Confrontation Clause grounds, which the trial court overruled. Parker answered that gang dropouts do not typically associate with members of the gang they had left.
During the next recess, the trial court held a sidebar with counsel. During the sidebar, the court noted that it believed defendant's counsel had not limited his cross-examination to the subjects that Officer Parker discussed during his direct examination. In response, defendant's trial counsel in part remarked to the court that he was dealing with late discovery, and the People had not disclosed it was going to introduce the "rank hearsay and confrontation testimony" about what others had told Officer Parker. He made no specific objection to Parker's testimony.
a. Forfeiture
On appeal, defendant argues Officer Parker's statements describing the gang affiliations of the car passengers violated the Confrontation Clause and constituted testimonial hearsay as set forth in People v. Sanchez (2016) 63 Cal.4th 665. Sanchez was decided on June 30, 2016, before defendant's trial commenced. However, defendant's trial counsel only objected on Confrontation Clause grounds to the portion of Parker's testimony that based on his experience, gang dropouts are unlikely to associate with members of the gang they had left.
Defendant acknowledges that her trial counsel did not make a timely objection to the challenged testimony. Nonetheless, she argues that this "short delay" does not forfeit her challenge on appeal. She argues that her counsel objected as soon as he "[caught] the prosecutor's drift." (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.)
We disagree. The record reflects that defense counsel objected only when Officer Parker was asked if in his experience, gang dropouts associated with gang members. Defense counsel's statements about the "rank hearsay" and "confrontation testimony" presented by Parker were made when the trial court remarked that defense counsel had gone beyond the scope of Parker's direct examination during his cross-examination. Defendant's objection to a different portion of Parker's testimony and his later statements about the People's failure to disclose some of Parker's "hearsay" and "confrontation testimony," which were made during the court's next recess, were neither timely nor specific and did not preserve his arguments on appeal. (Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 21; People v. Redd (2010) 48 Cal.4th 691, 730 [Confrontation Clause argument forfeited for failing to object below].)
b. Ineffective Assistance of Counsel
In the alternative, defendant argues her trial counsel was ineffective for failing to object to the challenged testimony below. As we explain, we find no merit in defendant's claim of ineffective assistance of counsel because she cannot demonstrate prejudice.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.)
With respect to prejudice a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
Assuming the challenged statements violated the Confrontation Clause, defendant cannot show that their admission caused her prejudice. Officer Parker recounted the following hearsay statements during his testimony: (1) Mendez's statement that he associated with Nortenos but was not a gang member, (2) Mendez's statement that he lived on a particular street (which Parker knew to be associated with a particular Norteno subset), (3) Mendez's statement that his "homies" called him "Smiley," (4) Mendez's previous admissions in two prior police contacts that he was a Norteno gang member, (5) Porfirio's previous admissions in prior police contacts that he was a Norteno gang member, and (6) Martinez's previous admissions in prior police contacts that he was a Norteno gang member.
We agree with defendant that admission of these statements bolstered the prosecution's case. However, many of these statements merely duplicated evidence that had already been presented. Defendant herself testified that her brother had been a Norteno gang member. Moreover, Officer Parker testified that he observed Mendez had gang-related tattoos and wore clothing indicative of gang membership. Thus, Mendez's statements to Parker and his prior admission of gang membership were not the only evidence of his alleged gang membership.
Thus, even if we stripped the challenged out-of-court statements from Officer Parker's testimony, the jury would have still been presented with evidence that defendant was associating with at least one individual who had gang-related tattoos and wore clothing commonly associated with gang members. This evidence would still tend to contradict defendant's testimony that her brother had decided to drop out of the gang.
Moreover, Officer Parker's challenged testimony was not the only evidence that refuted defendant's duress defense. As we indicated in the previous portion of the opinion, there was other evidence of defendant's guilt, including her actions during the robbery and her recorded jail statements to her sister and her mother. Officer Parker's expert opinion that gang members do not typically commit crimes with people they do not trust was also contrary to defendant's defense.
Based on the foregoing, defendant has not met her burden to demonstrate that if the statements had been stricken, it is reasonably probable she would have received a more favorable result. (Strickland, supra, 466 U.S. at pp. 687-696.)
3. Failure to Instruct that Duress Negated Guilt Under Conspiracy Theory of Liability
a. Background
Before the trial court gave the jury its instructions, defense counsel indicated he had reviewed the People's proposed instructions and was satisfied with them. The trial court acknowledged during the hearing that defense counsel had sent an e-mail stating he believed the submitted instructions looked "appropriate and complete." When the court and counsel continued discussing jury instructions, defense counsel made no objections.
Thereafter, the trial court instructed the jury with CALCRIM No. 1600 on the elements of robbery. The trial court also instructed the jury with CALCRIM No. 416 on evidence of an uncharged conspiracy.
In part, the modified version of CALCRIM No. 416 given by the trial court in this case stated: "The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of a conspiracy done to help accomplish the goal of the conspiracy. [¶] To prove that the defendant was a member of a conspiracy in this case, the People must prove that, one, the defendant intended to agree and did agree with the female who was the defendant—who was with the defendant during the robbery or the male who brandished the firearm during the robbery to commit robbery; two, at the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit robbery; three, the defendant or the female who was with the defendant during the robbery or the male who brandished the firearm during the robbery or all of them committed at least one of the following overt acts to accomplish robbery: entered Ideal Jewelry, pointed a gun at Maria Naranjo, attempted to break the glass case, opened the glass case with a key, removed jewelry from [the] glass case, placed jewelry in [a] bag, and left Ideal Jewelry carrying [the] stolen jewelry, and at least one of these overt acts was committed in California." The court further instructed the jury that "[t]o decide whether the defendant and one or more of the other alleged members of the conspiracy intended to commit robbery, please refer to the separate instructions that I will give you on that crime."
The trial court also instructed the jury with CALCRIM No. 3402 on the defense of duress or threats, which states in part: "The defendant is not guilty of robbery if she acted under duress. The defendant acted under duress if, because of threat or menace, she believed that her or someone else's life would be in immediate danger if she refused a demand or request to commit a crime. [¶] . . . [¶] The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty of robbery."
b. Forfeiture
On appeal, defendant argues the trial court failed to instruct the jury that duress would negate her guilt under a conspiracy theory of liability. She argues that because the trial court failed to tie her duress defense to the instruction on uncharged conspiracy, the jury could have found she acted under duress but was nonetheless guilty due to her participation in the conspiracy.
The People argue defendant has forfeited her claim by failing to object to the challenged instructions below. Generally, a defendant that agrees or fails to object to proposed jury instructions forfeits the right to challenge the instructions on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326.) Defendant, however, argues she did not forfeit her arguments. She insists her trial counsel's e-mail that stated he had no objections to the proposed instructions did not invite error and forfeit her appellate claims.
We agree with defendant that she has not forfeited her claims, but for different reasons than she asserts on appeal. In essence, defendant argues on appeal that the instruction given on the duress defense was legally incorrect. "Even if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) Thus, "[w]here . . . a defendant asserts that an instruction is incorrect in law an objection is not required." (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11, overruled on a different point as stated in People v. Hardy (2018) 5 Cal.5th 56, 104.) Moreover, under section 1259, a defendant does not forfeit his or her right to reversal based on instructional error if he or she can establish the error affected his or her substantial rights. This analysis would require us to examine the merits of her claim. We therefore proceed to address the merits of her arguments.
In the event we find her claim forfeited, defendant argues her counsel rendered ineffective assistance. Since we find the claim is not forfeited, we need not reach her claim of ineffective assistance of counsel.
c. Instructional Error
Defendant argues the court erred when it failed to instruct the jury that her duress defense applied if the jury found she was guilty of robbery under both a conspiracy theory of liability or a direct perpetrator theory of liability.
Defendant acknowledges the trial court did not err when it instructed the jury with conspiracy even though there was evidence that showed defendant acted as a direct perpetrator. (People v. Belmontes (1988) 45 Cal.3d 744, 788-789, overruled on a different point as stated in People v. Cortez (2016) 63 Cal.4th 101, 118.) Under a conspiracy theory of liability, once a conspiracy is established, "each member of [the] conspiracy is liable for all acts of his co-conspirators, intended, unintended, or even actually forbidden, provided only that such acts be in furtherance of the common purpose of the conspiracy." (People v. Manson (1976) 61 Cal.App.3d 102, 209-210.) Citing People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99 (Coffman), defendant claims the trial court was required to sua sponte instruct the jury as to which theories of liability her duress defense applied, which includes the conspiracy theory of liability.
We find defendant's reliance on Coffman is misplaced. In Coffman, the defendants were charged with multiple criminal counts, including several counts of murder, which were alternatively tried on the theories of felony murder or premeditated or deliberate murder. Evidence of duress was presented, and the Supreme Court concluded in a footnote that the trial court erred when it did not instruct the jury to consider evidence of duress with respect to felony murder but not premeditated and deliberate murder. (Coffman, supra, 34 Cal.4th at p. 99, fn. 31.)
The Supreme Court's statement in Coffman was based on its earlier decision in People v. Anderson (2002) 28 Cal.4th 767. In Anderson, the defendant contended the court erred in refusing to instruct the jury on duress as a defense to a murder charge. (Id. at p. 771.) Rejecting the defendant's argument, the Supreme Court concluded that "duress is not a defense to any form of murder." (Id. at p. 780.) However, the Supreme Court further held that duress can provide a defense to murder on a felony-murder theory by negating a defendant's guilt for the underlying felony. (Id. at p. 784.)
As in Coffman, defendant's case was tried on alternative theories of liability. The prosecution argued defendant was guilty either as a direct perpetrator or as a conspirator. Unlike Coffman, however, defendant's duress defense was applicable to both theories of liability and there was nothing in the duress instruction that limited its application to only one theory of liability. Here, the instruction on duress given to the jury expressly stated that "[t]he defendant is not guilty of robbery if she acted under duress." The instruction further stated that "[t]he People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty of robbery."
Based on the wording of the duress instruction given to the jury, we do not believe the instructions as a whole are susceptible to defendant's interpretation. " ' "It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Wilson (1992) 3 Cal.4th 926, 943.) Reading the instructions, the jury could not have found defendant guilty of robbery under a conspiracy theory of liability if they found the People failed to meet their burden to establish that defendant did not act under duress. Such a finding would only be possible if the jury decided to ignore the instruction that defendant cannot be guilty of the crime of robbery if she acted under duress. Absent reason to believe otherwise, we must presume the jury followed the given instructions. (See People v. Bonin (1988) 46 Cal.3d 659, 699, overruled on other grounds as stated in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Thus, defendant's claim of instructional error fails.
Since we find no instructional error, we do not need to reach defendant's argument that she was prejudiced by the alleged error.
We do, however, note that defendant's claim that error is readily shown through the prosecutor's closing argument has no merit. Defendant argues the prosecutor "urged the jury to use the conspiracy theory of liability as a shortcut to avoid the duress defense in this case." We disagree with defendant's assessment. In his closing argument, the prosecutor argued that if the jury found defendant to have "conspire[d] with [her accomplices], [she is] responsible for their acts that are done to accomplish that conspiracy." The prosecutor then outlined the various elements of conspiracy. Later, he discussed the duress defense. At no point did the prosecutor state that the duress defense would not apply if the jury found defendant guilty as a conspirator. Thus, the record does not support defendant's assertion that the prosecutor made arguments that misstated the law or urged the jury to find defendant guilty under a conspiracy theory of liability even if she acted under duress. --------
4. Cumulative Prejudice
Lastly, defendant argues that she suffered cumulative prejudice. (See People v. Hill, supra, 17 Cal.4th at p. 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) We have rejected each of defendant's claims and have found even if there was error, the error was not prejudicial.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.