Opinion
D073001
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. TITO PEREZ, SR., Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB1003269) APPEAL from a judgment of the Superior Court of San Bernardino County, Robert G. Yabuno, Judge. Affirmed in part; reversed in part; remanded with directions. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Tito Perez, Sr. of two counts of dissuading a witness (Pen. Code, § 136.1, subd. (b)(1); counts 1, 2); two counts of criminal threats (§ 422; counts 3, 4); two counts of attempted extortion (§§ 550, 664; counts 5, 6); and street terrorism (§ 186.22, subd. (a); count 7). In addition, the jury found true that Perez committed counts 1 through 6 for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated bench trial, the court found that Perez suffered prior convictions for criminal threats and battery resulting in serious bodily injury, in violation of sections 422 and 243, subdivision (d), respectively, as strike priors within the meaning of section 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). The court, however, vacated the conviction under count 7 (street terrorism) in light of People v. Rodriguez (2012) 55 Cal.4th 1125.
Statutory references are to the Penal Code unless otherwise specified.
The court sentenced Perez to prison for 28 years four months, consisting of: six years for count 1, plus 10 years for the gang enhancement; one year four months for count 2 and concurrent 10-year term for the gang enhancement; one year for count 5, plus four years for the gang enhancement; one year for count 6, plus three years for the gang enhancement; and five years for the serious felony prior. The court stayed the sentences for counts 3 and 4 under section 654.
Perez appeals, contending: (1) the court improperly admitted hearsay evidence through the prosecution's criminal street gang expert witness in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); (2) the court improperly admitted Perez's statement to the police that he was "good for seven homicides"; (3) the court prejudicially erred by failing to provide a unanimity instruction as the counts for criminal threats and attempted extortion; (4) the court prejudicially erred by failing to instruct the jury that it could consider the defense of voluntary intoxication as to the counts for criminal threats; (5) the court improperly instructed the jury that the offense of criminal threats was a general intent crime; (6) substantial evidence does not support a finding that he committed a prior strike consisting of battery with serious bodily injury; and (7) the abstract of judgment must be corrected to award Perez the correct number of days of credit for time served.
We agree with Perez that the court committed prejudicial error by failing to provide a unanimity instruction as to the counts for criminal threats and attempted extortion. We therefore reverse Perez's conviction as to those counts. In addition, the prosecution's expert witness's reliance on hearsay evidence to support his opinions and his testimony regarding that hearsay evidence violated Sanchez, supra, 63 Cal.4th 665, but we conclude such error was harmless.
In addition, we note that the People and Perez agree that substantial evidence does not support the court's finding that Perez committed a prior strike consisting of battery with serious bodily injury. However, we agree with the People that there is no double jeopardy violation if the prosecution is provided with another opportunity to prove the elements of the prior strike on remand.
Finally, the parties agree that the abstract of judgment must be corrected to accurately reflect Perez's number of days of credit for time served.
Perez has not specifically challenged his conviction under counts 1 and 2. Accordingly, we affirm the judgment as to those counts and the gang enhancement finding as to those counts as well. We reverse as to the remaining counts, and remand this matter to the superior court so that it can proceed consistent with this opinion.
FACTUAL BACKGROUND
Prosecution
Robert Melchor owned a single family home in the City of Colton, which he rented on a month-to-month basis to Anna Gonzalez. Gonzalez's husband Jose Bonilla, her niece Dora Perez (Dora), and several young children also lived at the house. Melchor had some difficulty collecting rent from Gonzalez.
Melchor did not know Perez and never gave him permission to collect rent for the subject house. Melchor's daughter, Angela Luna (Angela), knew of Perez through a mutual friend, but she did not have a relationship with him. Angela was not involved in the day-to-day management of the subject house and never asked Perez to collect rent on her father's behalf.
In the early afternoon of August 4, 2010, Perez and another man approached the subject house. Dora and Bonilla were sitting out on the porch with Dora's two-year-old son. Perez, who was drinking a beer, introduced himself as "Tito" and said he was there to collect a "tax" because they were $400 short on the rent for that month. He explained that he had been sent by the landlord's daughter Angela to collect the money. Perez told Dora and Bonilla to have half of the money by 5:00 p.m. that afternoon. He said he would return at 5:00 p.m., and if Dora and Bonilla did not have the money, Perez would kick them out and destroy the house.
At trial, Bonilla testified that he believed Perez was drunk.
Perez also told them that his son "Thumper" had murdered someone in the driveway of the house. He said he hated that house and wanted to destroy it because it had evidence of the murder. Dora and Bonilla had heard rumors about the murder and had seen the name "Thumper" tagged in various parts of their house. Dora stated that she would call Gonzalez and have her talk to the landlord about the situation. Perez told them not to call the landlord or the police. He then took off his shirt, stating that he was not afraid of the police, that he had been stabbed and shot numerous times, and that he was "invincible." Perez had tattoos on his neck and chest. He also had stab wounds on his chest and a scar that went from his sternum down to the belly button.
Perez also informed Dora and Bonilla that he was a gangster from Compton and ran all of the youngsters in their neighborhood. He told them that he lived at the Four Seasons apartments, which were only a block away from the house, and that he would be back at 5:00 p.m. for the money. Before Perez and the other man walked away, the other man stated, "You better do what he says."
As soon as the men left, Dora called Gonzalez. She told Gonzalez to call the landlord and ask whether he had sent Perez to collect the rent. Gonzalez called the police instead. Police responded to the house and took statements from Dora and Bonilla.
Within a few minutes of the police leaving, Perez and his companion returned to the house. Dora and Bonilla were inside the house with the young child. Bonilla held the front door as Perez aggressively tried to force himself in. Perez yelled, "Did you fucking call the police? Do you fucking know what happens to fuckin' rats?" He reminded the inhabitants that he had control over all of the youngsters in the neighborhood. He also said, "You got something coming, if not today, you [are] going to get it." Dora and Bonilla both were scared by Perez's actions.
At the time, Dora was on the phone with Gonzalez. When Perez saw her on the phone, he yelled, "Who the fuck are you talking to now?" While Perez was trying to get through the front door, his companion was running around the perimeter of the house. Dora called the police. Perez and his companion left as soon as they saw the police car pulling up.
Dora and Bonilla were transported to the police station and interviewed by Detective Rob Wilson. Both victims were visibly upset and crying throughout their respective interviews. After the victims gave their statements, Wilson briefed a team of officers regarding the incident. He explained that Perez had threatened and attempted to extort money from Dora and Bonilla. The team of officers then set up surveillance near the Four Seasons apartments.
At trial, Dora testified that the initial conversation with Perez was civil. She also confirmed that she told Wilson that Perez did not threaten her. Additionally, Bonilla testified that Perez was simply talking to Bonilla and Dora at first, but then Perez began to raise his voice when he showed off his tattoos and scars.
One of the officers got out of his patrol unit when he saw Perez running down the street. The officer chased after Perez and told him to stop. Perez shouted, "fuck you," and jumped over a fence. Another officer saw Perez on the other side of the fence. The officer drew his gun, yelled "police," and told Perez to get on the ground. Perez failed to comply, ran the opposite direction, and tried to jump over another fence. The two officers who eventually caught up with Perez struggled to subdue him. As a result, Perez was punched and kicked two or three times in the face. After a brief struggle, a third officer arrived and handcuffed Perez. Perez was taken to the hospital for a medical evaluation before being transported to the police station. While at the hospital, Perez asked the officers what he was being charged with. The officers told him "criminal threats," to which Perez responded, "This is nothing, I'm good for seven homicides."
Defense
Deputy Sheriff David Johnson testified for the defense. In 2010, Johnson worked classification detail at the West Valley Detention Center. His duty was to classify inmates to make certain they were properly housed for their safety and the safety of others. He explained that "protective custody" is where inmates are housed away from the general population for their own safety.
Johnson filled out a classification form on Perez. Based on the information Perez provided, he was placed in administrative segregation. Johnson confirmed the information and then housed Perez in a high security cell in protective custody. His placement was based in part on the violent propensities of the inmates housed in that unit. According to Johnson, once an inmate is placed in protective custody they are never placed back into the general population. Inmates in protective custody wear different colored uniforms that are normally green.
The defense also offered evidence that when Perez appeared at his preliminary hearing, he was wearing a green jumpsuit, which signified he was in protective custody.
DISCUSSION
I
GANG EVIDENCE
A. Perez's Contention
Perez contends the admission of certain evidence in support of the prosecution's expert witness's testimony violated Sanchez, supra, 63 Cal.4th 665 and the confrontation clause under the United States Constitution. Although we agree that the court erred by admitting some of the evidence provided by the expert, we find such error harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
B. Background
At trial, the prosecution's expert witness, George Luna of the San Bernardino Police Department, testified as a criminal street gang expert witness. Luna explained the concept of respect is very important to gangs. Gang members commit crimes openly to earn respect within their gang and cultivate fear among their rivals and the community. They intimidate and dissuade people from reporting crimes by threatening them with violence. This benefits the gang because it allows their crimes to go undetected by law enforcement. A "snitch" or "rat" is someone who cooperates with law enforcement by reporting a crime or testifying against a gang member. Within the gang subculture, the term "taxing" can be synonymous with "paying rent."
Luna testified that law enforcement agencies utilize gang cards, field identification (FI) cards and SMASH (San Bernardino Movement Against Street Hoodlums) cards to obtain intelligence on gangs. These tools help identify individual gang members by documenting certain information such as their monikers, who they are associating with, and the evolution of their gang tattoos.
Luna discussed that determining an individual's gang membership is based on the totality of circumstances—i.e., self-admission, tattoos, clothing, association with documented gang members and displaying gang signs and symbols. Members usually acquire more gang tattoos as time goes on to show their involvement and commitment to the gang. A gang member may be able to "drop out" of a gang in certain circumstances. Someone who truly drops out of a gang generally will stop committing crimes, claiming their gang and, associating with other gang members.
Luna testified that East Side Trece was a criminal street gang, which originated in Los Angeles. In the late 1980s, members of the gang—specifically, the Armendariz and Esiero families—migrated to San Bernardino and began recruiting new members. The San Bernardino faction has about 40 documented members. The gang's primary activities include felon in possession of a firearm, possession of a controlled substance for sale, vehicle theft, and witness intimidation.
To establish a pattern of criminal activity, the prosecution relied on Perez's instant offenses in addition to the following predicate offenses: Hugo Del Sid's 2008 conviction for felon in possession of a firearm; Joseph Armendariz's 2007 conviction for possession of a controlled substance for sale; Perez's 2004 conviction for vehicle theft that was committed for the benefit of a criminal street gang; and Perez's 2007 arrest for criminal threats. In testifying about these predicate acts, Luna admitted that he had not been involved in the investigation of any of the cases, but instead, became familiar with the facts of the cases by reading memoranda, reviewing various reports, and/or talking to officers involved with the cases.
Luna opined that Perez was an active member of East Side Trece. His opinion was based on his prior contacts with Perez in which Perez admitted his gang membership, Perez's association with other East Side Trece members, Perez's gang tattoos, photos of Perez displaying East Side Trece gang signs, and Perez's gang cards and prior contacts with other officers.
In addition, in response to a hypothetical mirroring the facts of the instant case, Luna opined that the crimes were committed for the benefit of East Side Trece. He explained that the crimes benefitted the gang by spreading fear and intimidation in the community, which dissuades people from reporting crimes committed by gang members.
C. Analysis
Generally, California law permits an expert witness to relate to the jury the "matter" upon which his or her opinion relies, even if that matter would otherwise be inadmissible. (Sanchez, supra, 63 Cal.4th at p. 679.) Before Sanchez, an expert witness was permitted to relate even "case-specific hearsay" to the jury, on the theory it was not being admitted for the truth of the matter asserted, but instead merely to explain the basis for the expert's opinion. (Id. at p. 683.)
However, in Sanchez the California Supreme Court held that "this paradigm is no longer tenable." (Sanchez, supra, 63 Cal.4th at p. 679.) The court stated that, "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Id. at p. 684, fn. omitted.) Further, the court also noted that the admission of testimonial hearsay through an expert witness is also subject to the Sixth Amendment's confrontation clause, which may be violated, "unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing." (Sanchez, supra, at p. 680.)
"[A] court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception?" (Sanchez, supra, 63 Cal.4th at p. 680.) While an expert can, in a general sense, communicate hearsay statements to a jury to establish the basis of his opinion, "[w]hat an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686; italics omitted.)
The second step of the Sanchez analysis concerns statements offered against criminal defendants. "If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford [v. Washington (2004) 541 U.S. 36 (Crawford)] limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay . . . ." (Sanchez, supra, 63 Cal.4th at p. 680; italics omitted.) The United States Supreme Court has not always been entirely clear as to what constitutes testimonial hearsay under the Sixth Amendment's confrontation clause. (People v. Holmes (2012) 212 Cal.App.4th 431, 437.) Nevertheless, testimonial hearsay includes formalized testimony, "statements made in response to police interrogations if there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution [citations]; and sworn affidavits that are admitted in lieu of live testimony [citation]." (Ibid.)
In Sanchez, the court discussed three forms of evidence typically relied upon by gang experts to form the basis of their opinions: police reports, street terrorism and enforcement and protection (STEP) notices, and FI cards. Police reports are testimonial hearsay because they relate "information gathered during an official investigation of a completed crime" and not "made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) STEP notices are testimonial hearsay because they are prepared primarily "to establish facts to be later used against [the defendant] or his companions at trial." (Id. at p. 696.) FI cards may also constitute testimonial hearsay, but only to the extent they are made in an ongoing criminal investigation. (Id. at p. 697.)
In analyzing the prejudicial impact of improperly introduced hearsay evidence under Sanchez, if the expert's testimony violates the Evidence Code alone, we are to apply the reasonable probability of a more favorable result standard of review. (People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).) But if the error also implicates a defendant's federal constitutional rights, we must apply the more rigorous harmless beyond a reasonable doubt standard. (Chapman, supra, 386 U.S. at p. 24; Sanchez, supra, 63 Cal.4th at p. 698.)
Here, Perez primarily takes issue with Luna's testimony regarding two opinions: (1) Perez is a member of East Side Trece; and (2) the pattern of criminal activity by the gang. As to the first issue, Luna testified that Perez was a member of East Side Trece because Luna had contacted Perez more than 12 times over the past 20 years and on those occasions Perez admitted that he was a gang member. Although Perez's out-of-court admission that he was a gang member was offered for the truth of the matter, it is admissible as an exception to the hearsay rule as a party admission. (Evid. Code, § 1220.) In addition, Luna identified Perez as a gang member based on pictures of Perez's tattoos as well as pictures of Perez displaying gang signs. That evidence was not hearsay and did not violate Sanchez, supra, 63 Cal.4th 665.
As a threshold matter, the People argue Perez forfeited many of his challenges under Sanchez, supra, 63 Cal.4th 665 and the confrontation clause by failing to object during trial. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237-238.) The California Supreme Court's decision in Sanchez represented a significant change in substantive law regarding expert testimony. Under these circumstances, the People's forfeiture argument is unpersuasive.
However, Luna also relied upon at least nine reports or SMASH cards prepared by other officers concerning their contacts with Perez from 1989 to 2010. Police reports are testimonial hearsay because they relate "information gathered during an official investigation of a completed crime" and not "made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) SMASH cards (gang or FI cards) also may constitute testimonial hearsay, but only to the extent they are produced in an ongoing criminal investigation. (Id. at p. 697.) Perez maintains Luna's reliance on the police reports and SMASH cards was improper under Sanchez and violated the confrontation clause of the United States Constitution. Although we agree that Luna's reliance and testimony based on police reports and SMASH cards as to his opinion that Perez was a gang member violated Sanchez, we conclude that the error was harmless beyond a reasonable doubt under Crawford, supra, 541 U.S. 36.
"To find the error harmless we must find beyond a reasonable doubt that it did not contribute to the verdict, that it was unimportant in relation to everything else the jury considered on the issue in question." (People v. Song (2004) 124 Cal.App.4th 973, 984.) Here, putting aside the hearsay evidence of Perez's gang membership, Luna offered overwhelming evidence that Perez was a member in East Side Trece based on Luna's personal knowledge. He knew Perez and testified that Perez told him on multiple occasions that he was a gang member. Moreover, Luna buttressed his opinion based on other nonhearsay evidence—pictures of Perez displaying gang signs as well as Perez's tattoos. In light of this evidence, Luna's reliance on police reports and SMASH cards to establish Perez as a gang member was unnecessary. Indeed, Perez does not address Luna's nonhearsay evidence establishing his gang membership.
Moreover, Perez admits that he did not dispute that he was previously a member of a gang. Instead, he argues that the improper hearsay evidence as to his gang membership "decimated [his] ability to effectively present and argue" that he was not a member of East Side Trece since 2007. We disagree.
Perez committed the offense in the instant action in August 2010. He argued that he left the East Side Trece gang in 2007. He emphasizes that Luna testified that he did not contact him from 2007 through 2010. He also argues that the prosecution presented no evidence to show when Perez obtained any of his tattoos or when the photographs of him displaying gang signs were taken. Perez is correct, but he does not explain how the hearsay evidence regarding his membership in a gang undermined the defense theory that he had left the gang.
The only evidence offered by Luna that specifically stated that Perez was an active gang member in 2010 was a SMASH card completed by Officer Mike Collins, which he prepared based on the instant offenses on August 4, 2010. However, Collins testified at trial about the SMASH card and indicated that he prepared the card based on his prior contacts with Perez as well as the circumstances of the instant matter. And Perez's trial counsel cross-examined Collins about the card. In addition, Collins admitted that Perez told him in 2007 that he was no longer active in a gang. Because Collins testified at trial and was available for cross-examination about the 2010 SMASH card he prepared, Luna's testimony about the 2010 SMASH card did not violate Sanchez, supra, 63 Cal.4th 665 or the confrontation clause.
Collins also testified regarding pictures of Perez displaying gang-related tattoos as well as the 2010 SMASH card that he prepared.
In summary, we are satisfied that Luna's testimony about hearsay contained in police reports and SMASH cards was harmless beyond a reasonable doubt. Further, we disagree with Perez that Luna's testimony prevented him from presenting his defense that he was no longer a gang member in 2010. To the contrary, he offered considerable evidence to the jury that he was no longer a gang member. Based on the jury's verdict, it appears the jury did not find that evidence credible. In this sense, Perez's argument here does not indicate a Sanchez problem, but instead, hints at a substantial evidence issue. Nevertheless, Perez did not raise a substantial evidence issue on appeal; therefore, that issue is not before us.
Perez also claims that the trial court allowed Luna to establish the East Side Trece gang's criminal activity through hearsay evidence in violation of Sanchez, supra, 63 Cal.4th 665. At trial, Luna testified regarding the gang's criminal activity using crimes committed by three individuals: Hugo Del Sid, Joseph Armendariz, and Perez.
Regarding Del Sid, Luna testified that he was familiar with a "felon in possession of a firearm case." Luna was not involved in the investigation of that crime, but explained that an officer involved in the investigation, Albert Ramirez, explained the circumstances of the investigation to him. Luna therefore based his testimony on what Ramirez told him. In addition, Luna stated that Del Sid was convicted of possession of a firearm by a felon based on his review of a district attorney interoffice memorandum. That memorandum was admitted into evidence as Exhibit 7. It included a certified copy of Del Sid's guilty plea. Luna also testified that he had "numerous contacts" with Del Sid, and Del Sid "self-admitted" "as being a member of" East Side Trece. Luna further testified that he had seen Del Sid with Perez and that they both would hang out at a residence where the East Side Trece gang would throw parties.
In testifying about Armendariz, Luna stated that he was familiar with a possession for sale of a controlled substance case that involved Armendariz. He admitted that he was not involved in the investigation of the case, but learned about it from officers who did investigate the case, including his former partner. Luna testified that Armendariz was convicted of possession for sale of a controlled substance based upon reviewing a district attorney interoffice memorandum. That memorandum was admitted into evidence as Exhibit 6. It included a certified copy of an abstract of judgment, showing Armendariz was sentenced to prison for one year four months for the offense. Luna also testified that he knew Armendariz was a member of East Side Trece based on his associations with other gang members, his self-admission, pictures of him with other gang members, and his tattoos. In addition, Luna testified that he had seen Armendariz with Perez at a residence known as an East Side Trece hangout.
The final criminal activity Luna discussed at trial involved Perez. Luna testified that he was familiar with a previous criminal threats case involving Perez. Luna provided details about the case, including a statement Perez made during the crime. The record is unclear regarding Luna's involvement in the investigation of this crime and how Luna was aware of it. At one point, the prosecutor refreshed Luna's recollection by referring Luna to his report, but that report was not admitted into evidence and is not in the record. Although the prosecutor's question implied that Luna wrote the report, whether Luna prepared it is somewhat ambiguous in the record.
Luna also testified about Perez being convicted of commercial burglary based on a district attorney interoffice memorandum. That memorandum was entered into evidence as Exhibit 4. It included a certified copy of a plea bargain agreement wherein Perez pled guilty to the offense.
Finally, Luna discussed a case involving Perez wherein Perez drove a stolen motor vehicle. Luna was not involved in the investigation of that matter and based his testimony about that case on his review of "reports in that matter." Luna also relied on a certified copy of an abstract of judgment, which was entered into evidence as Exhibit 3.
Here, Perez contends Luna's testimony regarding the gang's criminal activity was based on hearsay in violation of Sanchez, supra, 63 Cal.4th 665. The People counter that Luna's testimony was general background information permissible under Sanchez. (See id. at pp. 680-686.) We do not agree with the People that Luna's testimony should be considered general background information.
In Sanchez, the California Supreme Court defined case-specific facts as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) However, the appeal in Sanchez concerned a hearsay challenge to statements introduced as evidence of the defendant's own gang background. (Id. at pp. 672, 674.) Although the court mentioned the gang expert "testified about convictions suffered by two Delhi [gang] members to establish that Delhi [gang] members engaged in a pattern of criminal activity" (id. at p. 672), the depth of the expert's testimony concerning the predicate offenses is unclear, nor was that specific testimony one of the issues confronting the court (id. at pp. 670, 672; see People v. Delgado (2017) 2 Cal.5th 544, 590 [" 'It is axiomatic . . . that a decision does not stand for a proposition not considered by the court.' "]).
Moreover, the definition of case-specific facts articulated in Sanchez should not be divorced from its context and viewed in isolation. As the court explained more fully, "The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676.) "By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Ibid.; italics omitted.)
Several Courts of Appeal have since addressed this issue. In People v. Meraz (2016) 6 Cal.App.5th 1162 (Meraz), the court stated that the gang expert's general background testimony "plainly" included testimony about the gang's pattern of criminal activities, which the court described as "unrelated to [the] defendants or the current shooting and mirrored the background testimony the expert gave in Sanchez." (Meraz, supra, at p. 1175.) In People v. Vega-Robles (2017) 9 Cal.App.5th 382, the Court of Appeal cited Meraz for this proposition in a case in which the defendant broadly challenged the gang expert's testimony in a "scattershot approach." (Vega-Robles, supra, at p. 411.)
In contrast, in People v. Ochoa (2017) 7 Cal.App.5th 575 (Ochoa), the court concluded the testimony regarding the individuals involved in the predicate offenses was case-specific, stating, "It seems clear the hearsay statements at issue in the present case—out-of-court statements by individuals admitting being members of the [South Side Locos]—are case-specific hearsay rather than general background information about the [South Side Locos]." (Id. at pp. 588-589.) The court in People v. Lara (2017) 9 Cal.App.5th 296 (Lara), too, treated the gang expert's testimony regarding the predicate offenses as case specific. (Id. at p. 337.)
In the respondent's brief, the People focus on the single sentence in Sanchez describing case-specific facts, a basis we find insufficient to persuade us that Luna's testimony regarding the predicate offenses in this case was merely general background information. As an element of the gang enhancement, the prosecutor was required to prove the existence of a criminal street gang and that in turn required she show, in relevant part, a pattern of criminal activity. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) Thus, Luna's testimony regarding the predicate offenses, and Del Sid's and Armendariz's respective gang memberships, related to an element of the gang enhancement. Under these circumstances, we are not convinced that this testimony may be fairly described as background information; that is, "testimony regarding [Luna's] general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676; see People v. Stamps (2016) 3 Cal.App.5th 988, 995-996.) We believe this conclusion is consistent with and follows from the court's discussion of case-specific facts versus general background information in Sanchez. Therefore, we conclude that Luna's testimony regarding the predicate offenses, and Del Sid and Armendariz, was case specific. (See Sanchez, supra, at pp. 676-677; Lara, supra, 9 Cal.App.5th at p. 337; Ochoa, supra, 7 Cal.App.5th at pp. 588-589; Stamps, supra, at pp. 995-996.)
Regarding Del Sid, Luna testified that Del Sid was a member of East Side Trece based on Del Sid's self-admissions during Luna's contacts with him. Thus, Luna was offering Del Sid's out-of-court statements for the truth of the matter, i.e., to establish Del Sid was a gang member. This is hearsay. (Evid. Code, § 1200.) The fact that Del Sid was convicted of being a felon in possession of a firearm was shown through the admission of certified court documents; thus, those documents were not hearsay. (See Evid. Code, § 452.5, subd. (b)(1).) However, Luna testified about the circumstances of Del Sid's offense based on what another officer told him. This testimony also constituted hearsay. (Evid. Code, § 1200.) Further, this hearsay may also be testimonial, given that the facts related to the investigation of a completed crime. (Sanchez, supra, 63 Cal.4th at pp. 674-675.)
Luna also was not involved in the investigation of the circumstances of the offense committed by Armendariz. Instead, he testified about that crime based on what another officer told him. Thus, this portion of Luna's testimony was hearsay. (Evid. Code, § 1200.) And such testimony was more than likely testimonial. (Sanchez, supra, 63 Cal.4th at pp. 674-675.) In addition, Luna testified that he believed Armendariz was a gang member based on Armendariz's "associations with other members of the gang, his self-admission, pictures of him with other members of the gang as well as tattoos." It appears Luna's opinion that Armendariz was a member of East Side Trece was based on Luna's observations as well as hearsay (Armendariz's self-admission). That said, although the record lacks any objections to Luna's testimony on this point or any additional foundational evidence, it seems like Luna could be basing his opinion that Armendariz was a gang member on nonhearsay evidence, e.g., Luna's personal observations of Armendariz and pictures of Armendariz. As such, we conclude that Perez did not meet his burden of demonstrating error on appeal with respect to Luna's testimony that Armendariz was a gang member. Also, the fact that Armendariz was convicted of possession of a controlled substance was shown through certified court documents, which are not hearsay. (Evid. Code, § 452.5, subd. (b)(1).)
Luna's testimony about Perez's previous offenses raises problems as well. Luna testified about a criminal threats investigation involving Perez. It is unclear from the record if Luna was involved in the investigation of Perez in that matter. At one point during Luna's testimony, the prosecutor asks him if he needed to review "your report to . . . refresh your recollection." Luna refreshed his recollection with the report then testified regarding the substance of Perez's criminal threats. There is no indication that Perez was convicted of making the criminal threats.
Perez's previous convictions for commercial burglary and driving or taking a stolen motor vehicle were shown through certified court documents. Although Luna did not testify as to any of the circumstances involving the former offense, he did so regarding the later offense. And his testimony was based on what another officer told him. Thus, Luna's testimony contained hearsay (Evid. Code, § 1200) and was likely testimonial (Sanchez, supra, 63 Cal.4th at pp. 674-675).
Having concluded that some of Luna's testimony regarding Perez, Del Sid, and Armendariz was admitted in violation of state law and some was also admitted in violation of the confrontation clause, we evaluate the cumulative effect of these errors under the Chapman standard of review. (People v. Houston (2012) 54 Cal.4th 1186, 1233; People v. Woods (2006) 146 Cal.App.4th 106, 117; Sanchez, supra, 63 Cal.4th at p. 699.) " 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86; People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) We consider "not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
Determining whether the error was prejudicial "requires an examination of the elements of the gang enhancement and the gang expert's specific testimony." (Sanchez, supra, 63 Cal.4th at p. 698.) In the instant action, the prosecution was required to prove Perez committed the crimes "[(1)] for the benefit of, at the direction of, or in association with any criminal street gang, [and (2)] with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).) As previously discussed, to prove the existence of a "criminal street gang" within the meaning of the statute, the prosecution was also required to prove, in relevant part, that members of the gang individually or collectively engaged in the commission of at least two predicate offenses. (§ 186.22, subd. (f); see Ochoa, supra, 7 Cal.App.5th at p. 581.)
Against this backdrop, we are satisfied that the errors in admitting certain evidence in violation of state and federal law were harmless beyond a reasonable doubt. Perez has not shown that Luna's testimony identifying Armendariz as a gang member was based on hearsay. And although Luna's testimony about the circumstances of Armendariz's offense was based on hearsay, the fact that he was convicted of the offense was shown through a certified court document. In addition, as we discuss above, there was no Sanchez violation in establishing Perez was a gang member and his previous convictions of commercial burglary and driving or taking a stolen motor vehicle were proven through certified court documents as well.
Moreover, the jury could consider Perez's offenses in the instant matter to establish a predicate offense. Indeed, the jury was instructed that it could do so. (See CALCRIM No. 1401.) Here, the jury convicted Perez of two counts of dissuading a witness. Perez does not challenge his conviction as to those counts. One of those counts also established one of the two required predicate acts under section 186.22, subdivision (e).
In short, Perez's previous conviction for driving or taking a stolen motor vehicle and his conviction for dissuading a witness in the instant action are sufficient to establish the criminal activity of the East Side Trece gang. Moreover, Perez has not shown that it was error to admit Luna's testimony regarding Armendariz's status as a gang member or the fact he was convicted of possession of a controlled substance.
Additionally, Perez has not shown how it was error to admit or that he was prejudiced by Luna's testimony that Perez committed his crime for the benefit of, at the direction of, or in association with a criminal street gang based on a hypothetical. Thus, we summarily reject this argument as well.
Our determination of a lack of prejudice is bolstered by the record in this matter. In some sense, this is to be expected because the instant matter was tried before our high court issued its opinion in Sanchez, supra, 63 Cal.4th 665. Therefore, not surprisingly, Perez's trial counsel did not object to much of the evidence on which Luna relied to form his opinions. There were no objections based on hearsay or the confrontation clause. Moreover, the lack of objections made for a sparse, ambiguous record on the very issues critical to our analysis here. However, it is not just the fact that the subject trial occurred pre-Sanchez that renders the instant record somewhat garbled. We also must consider Perez's strategy at trial regarding the gang allegations. Perez admits that he did not dispute he was a member of a criminal street gang. Instead, one of his defense theories was that, as of at least 2007, he was not a gang member because his gang had ordered a "hit" on him. Thus, instead of challenging that East Side Trece was a criminal street gang or that he was once a member of that gang, Perez sought to convince the jury that he was no longer a gang member. In fact, he presented evidence to support his theory and his trial counsel argued Perez was not a gang member at the time he committed the instant offenses. Apparently, Perez believed that if the jury was shown that he was not a gang member at the time of the offenses then the prosecution could not prove that Perez committed any of the offenses for the benefit of, at the direction of, or in association with a criminal street gang. In this regard, one of Perez's primary arguments at trial essentially was that this was not a gang case. The prosecution, based on Perez's previous gang activity and the manner in which he committed the instant offenses, argued it was. Ultimately, the jury found the prosecution's version to be true beyond a reasonable doubt. This is not a problem under Sanchez, supra, 63 Cal.4th 665. Instead, it appears Perez is arguing the jury incorrectly weighed the evidence. As an appellate court, we do not engage in the weighing of evidence. (People v. Brown (2014) 59 Cal.4th 86, 106 [" 'We do not reweigh evidence or reevaluate a witness's credibility.' "]; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 ["Appellate courts 'do not reweigh evidence or reassess the credibility of witnesses.' "]; People v. Morton (2003) 114 Cal.App.4th 1039, 1048 ["Long-standing precedent decrees that we are not empowered to reweigh the evidence, no matter how unpersuasive it may appear on a cold record."].) There was no reversible error under Sanchez.
II
UNANIMITY INSTRUCTION
A. Perez's Contention
Perez contends the trial court committed reversible error by failing to provide a unanimity instruction for counts 3 and 4 (criminal threats) and 5 and 6 (attempted extortion). He maintains that the prosecution presented evidence of several alleged threats and acts of attempted extortion from two separate interactions among Perez and the victims. Perez further argues that the prosecutor did not elect any particular statements or acts to support the separate offenses; therefore, the court was required to give a unanimity instruction. We agree.
B. Background
The crime of criminal threats may be divided into five constituent elements. (People v. Toledo (2001) 26 Cal.4th 221, 227.) "In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (Toledo, supra, at pp. 227-228.) A criminal threat is the communication of an intent to inflict death or great bodily injury on another with the intent to cause the listener to believe death or great bodily injury will be inflicted on the person or a member of the person's immediate family. (Id. at p. 233.) In the information, Perez was charged with two counts of criminal threats. The information did not explicitly refer to the actual threats made, but instead, indicated that Perez was being charged for willfully and unlawfully threatening to commit a crime on or about August 4, 2010.
"Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by wrongful use of force or fear, or under color of official right." (§ 518, subd. (a).) Attempted extortion is defined in former section 524 as an attempt, "by means of any threat, such as is specified in Section 519 of this code, to extort money or other property from another." The elements of attempted extortion are "(1) a specific intent to commit extortion and (2) a direct ineffectual act done towards its commission." (People v. Sales (2004) 116 Cal.App.4th 741, 749.) In the instant action, the information did not list the specific acts that constituted attempted extortion. It merely stated that Perez extorted money and other property by means of force and threat on or about August 4, 2010.
At trial, the prosecution presented evidence of several threats made by Perez, some of which occurred early in the afternoon of August 4, 2010, and others that took place later in the day when Perez returned to the subject residence. Specifically, the prosecution presented evidence that, during the first encounter, Perez told Dora and Bonilla that he was at the residence to collect overdue rent and if they did not have the rent by five o'clock that evening, he would kick them out and "destroy" the house. Before he left, Perez removed his shirt, exposing tattoos and scars, and informed Dora and Bonilla that he had been stabbed multiple times and shot. He also exclaimed that he was a gangster from Compton, he runs the youngsters in the area, and was invincible before stating he would return at five o'clock to collect the rent.
The prosecution also presented evidence of additional threats Perez made when he returned to the residence later in the day, after Dora and Bonilla talked to the police. In this regard, the prosecution offered evidence that Perez returned to the house and "came to the [security, screen front] door [of the residence] with force[,]" but the door was locked. He was wiggling the lock while saying, "Why the fuck did you call the police? Do you know what the fuck happens to rats?"
During closing argument, the prosecutor explained the elements of criminal threats. In discussing one the elements, the prosecutor argued as follows:
"Element number one, the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to . . . Bonilla and [Dora]. I'm going to come back, and if you don't have the rent I'm going to destroy the house and everything and everyone inside of it. You guys are rats. You know what happens to rats. Rats get killed. Element number one, when you're going through them, check."
Similarly, in discussing the crime of attempted extortion, the prosecutor again referred to threats that Perez made during his first visit to the residence as well as his second visit.
C. Analysis
"The right to a unanimous jury in criminal cases is guaranteed by the California Constitution. (Cal. Const., art. I, § 16; [citation].) . . . [¶] It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows. [Citation.] [A unanimity] instruction is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. . . . [I]t is generally agreed that under such circumstances, a unanimity instruction of some kind is required to ensure the defendant's constitutional right to a unanimous verdict." (People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.)
"[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where no election is made, the court has a duty to instruct sua sponte on the unanimity requirement. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado) ["the principle has emerged that if the prosecution shows several acts, each of which could constitute a separate offense, a unanimity instruction is required"].)
There is a split of opinion in the appellate courts as to whether the Chapman standard or Watson standard for harmless error applies in a unanimity instruction case. (See, e.g., People v. Matute (2002) 103 Cal.App.4th 1437, 1448 [noting conflicting authorities].) The majority of the courts that have addressed the issue have applied Chapman. (See, e.g., People v. Wolfe (2003) 114 Cal.App.4th 177, 186-188 (Wolfe); People v. Smith (2005) 132 Cal.App.4th 1537, 1545; People v. Deletto (1983) 147 Cal.App.3d 458, 472; but see People v. Vargas (2001) 91 Cal.App.4th 506, 562 [Watson standard applies].)
In Wolfe, the court explained that federal due process requires that the prosecution convince a jury of the defendant's guilt of the crime beyond a reasonable doubt. (Wolfe, supra, 114 Cal.App.4th at pp. 186-188.) "When the trial court erroneously fails to give a unanimity instruction, it allows a conviction even if all 12 jurors (as required by state law) are not convinced that the defendant is guilty of any one criminal event (as defined by state law). This lowers the prosecution's burden of proof and therefore violates federal constitutional law." (Id. at pp. 187-188.) Because the error violates federal constitutional rights, the Chapman standard applies. (Wolfe, supra, at p. 188.) We follow Wolfe here and apply the Chapman standard.
In the instant matter, Perez maintains that there was evidence of at least two distinct acts, on August 4, that could establish criminal threats within the meaning of section 422: Perez's statement that he will destroy the house if rent was not paid during his first encounter with Bonilla and Dora and a statement later in the day where he was yelling about what happens to snitches who call the police. The prosecution did not elect which of the two acts constituted the criminal threats, and moreover, during closing argument, the prosecutor argued that the offense of criminal threats could be based on both or either statement. In addition, the trial court did not give a unanimity instruction to avoid the danger the jury might convict Perez even though it was not in unanimous agreement as to the specific act constituting the offense. (See Melhado, supra, 60 Cal.App.4th at p. 1534 ["When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act."]; People v. Sutherland, supra, (1993) 17 Cal.App.4th 602, 611-612 ["It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows."].)
The People incorrectly assert that a unanimity instruction was not required because Perez's acts on August 4 constituted a "continuous course of conduct." The problem here is that because section 422 focuses on "an individual act--a threat," it is not susceptible to continuous course of conduct analysis. (People v. Salvato (1991) 234 Cal.App.3d 872, 883-884 [prosecutorial election or unanimity instruction required where "numerous acts" could have been the basis for a section 422 count].)
Melhado, in fact, provides a good example of why, in the section 422 context, discrete threats require election or a unanimity instruction. In Melhado, the defendant brought his car into a repair shop for brake repairs, but could not pay the bill and was sent away without the car when he came to claim it. (Melhado, supra, 60 Cal.App.4th at p. 1532.) About two weeks later, when the defendant visited the shop, he noticed the car was missing. When told it was in storage, he said he was going to " 'blow [the manager] away' " if he did not bring the car back. (Id. at p. 1533.) That particular threat was around 9:00 a.m. The defendant returned to the repair shop at about 11:00 a.m. the same day, pulled an object resembling a hand grenade from his jacket pocket and told the manager (and two mechanics) he was going to "blow you away" if he did not get his car back by the following Monday. (Ibid.) He even returned, the same day, at about 4:30 p.m. This time the manager called the police who, arriving "within seconds" noticed a bulge in the defendant's jacket (it turned out to be a fake grenade) and arrested him. (Ibid.) The defendant was charged with one count of violation of section 422. In his argument to the jury, the prosecutor emphasized the events of 11:00 a.m. and treated the events of 9:00 a.m. and 4:30 p.m. as mere embellishments to "the retelling of the tale." (Melhado, supra, at p. 1535.) But the prosecutor never made an election to base the section 422 charge on the 11:00 a.m. events, and the court never told the jury "in so many words" of an election to base the crime on the 11:00 a.m. threat. (Melhado, supra, at p. 1535.) In reversing, the appellate court explained at some length that the 9:00 a.m. threat could have supplied its own basis for a section 422 conviction just as much as the 11:00 a.m. threat. (Id. at pp. 1536-1538.)
We see little difference between the two threats made on the same day in Melhado and the two threats made on the same day, August 4, here. In each case, the second threat could be seen as substantially similar to the first one. In Melhado, supra, 60 Cal.App.4th 1529, it was two successive threats to blow up the victim, here it was two successive threats to harm the victims. And in each case, the jury could, at least in theory, have divided over which specific threat constituted the crime of section 422.
We are not persuaded by the People's argument that there was only one statement establishing a criminal threat in this case. On appeal, the People claim that the criminal threat in this case was only Perez's statement to the victims, "I'm going to show you what happens to rats and snitches." They argue that Perez's statement to the victims that if they did not pay rent by five o'clock, he would destroy the house does not meet the elements of a criminal threat because the statement was not unconditional. The People's argument, however, is undercut by the record. The prosecutor clearly told the jury that it could consider the statements Perez made during the first encounter and the second encounter on August 4 as constituting criminal threats. Put differently, the prosecutor argued that Perez's comments during the first encounter constituted criminal threats. The People cannot now argue on appeal that the prosecutor was legally incorrect; therefore, a unanimity instruction was not needed.
Likewise, we disagree with the People that People v. Orloff (2016) 2 Cal.App.5th 947 is instructive here. In that case, the defendant was charged with a single count of criminal threats for calling a pharmacist and stating, over the phone, "you're dead." (Id. at p. 952.) On appeal, he claimed a unanimity instruction should have been given because 90 minutes before that phone call, the defendant called the same pharmacist and stated, "expect something when you least expect it." (Id. at p. 954.) The court found no unanimity instruction was required because the first statement was vague and ambiguous. (Ibid.) Here, Perez's statements during the first encounter were not vague and ambiguous. Further, there is no indication in Orloff that the prosecutor argued that either statement could constitute a violation of section 422. In contrast, the prosecutor in the instant action did.
We have similar concerns about the two counts for attempted extortion. The prosecutor did not clearly indicate which encounter (the first or the second) constituted attempted extortion. And the court did not provide a unanimity instruction for the attempted extortion offense. On appeal, the People claim the attempted extortion was based on Perez's statements during the first August 4 encounter. However, during closing argument, the prosecutor implied that after the second encounter, the victims believed that if they did pay rent, they would not be harmed. The prosecutor argued:
"Then it says the defendant intended to commit extortion. How do you know that he intended to? Well, he came back to the house. And again, he threatened and he made comments about his gang, and he did all these things, indicating, look, just because you called the police, you know what I was here for. And you know, you called the police. Now I have two choices. I could kill you. Someone can kill you for me. But you're going to know that something's going to happen. [¶] What's another logical inference? Well, if this case goes away and someone comes back or someone comes with him, they can pay rent and he'll leave them alone."
Although the prosecutor begins to discuss the second August 4 encounter as evidence that Perez intended to commit extortion, he tells the jury that the victims could have interpreted the comments made during the second encounter as a threat to induce the victims to pay rent. Thus, we determine a unanimity instruction was needed for the two counts of attempted extortion as well.
The People assert that an error attributable to the trial court failing to provide a unanimity instruction is harmless. On the record before us, we cannot agree. There was some evidence, albeit contradicted by other evidence, that Dora told the investigating detective that, during the first August 4 encounter, they were talking like "civilized people." She also admitted that she told the investigating detective that Perez did not threaten her during the first encounter. There was also evidence that Bonilla had some experience with a "street life" and that when demanding the rent, Bonilla was not afraid as Perez was just talking. However, according to Bonilla, the atmosphere changed when Perez lifted his shirt, showing his tattoos and scars, and started claiming he was a gang member. Thus, there is evidence in the record that Bonilla did not feel threatened and was not scared until Perez started describing his gang background. The conflicting evidence combined with the prosecutor referring to both encounters to support the offenses of criminal threats and attempted extortion undermines our confidence that the subject error was harmless beyond a reasonable doubt. As such, we reverse Perez's convictions under counts 3 through 6.
III
PEREZ'S OTHER CONTENTIONS REGARDING ERRORS AT TRIAL
Perez raises three other issues regarding his trial: (1) the trial court improperly instructed the jury that criminal threats was a general intent crime by including the counts of criminal threats in the list of counts in CALCRIM No. 250; (2) the trial court erred by failing to instruct the jury that it could consider Perez's defense of voluntary intoxication as to counts 3 and 4 (criminal threats); and (3) the court erred in admitting Perez's statements to the police that he was good for seven homicides. Although we need not reach these issues because we are reversing the convictions under counts 3 through 6, we believe it prudent to briefly discuss them in the event the prosecution elects to retry Perez. That said, we offer no analysis whether Perez was prejudiced under any of these errors.
The trial court's errors regarding instructing the jury on criminal threats stemmed from its belief that criminal threats is a general intent crime. It is not. Making criminal threats in violation of section 422 is a specific intent crime that requires a showing that the defendant intended the statements to be taken as a threat. (See People v. Fierro (2010) 180 Cal.App.4th 1342, 1347.) As such, if this matter is retried, the trial court should not include the counts of criminal threats in any list of general intent crimes, by way of CALCRIM No. 250 or otherwise.
Additionally, because criminal threats is a specific intent crime, evidence of voluntary intoxication may be offered at trial on the issue of whether a defendant formed the required specific intent. (§ 29.4, subd. (b).) Thus, if this matter is retried, and the trial court believes a voluntary intoxication instruction is warranted, it must instruct the jury that voluntary intoxication is applicable to the counts for criminal threats in addition to the other specific intent crimes.
Finally, we are concerned by the trial court admitting Perez's statement to the police, "this is nothing, I'm good for seven homicides." Perez made this statement in response to finding out that he was being charged with criminal threats. Over defense counsel's objection, the trial court admitted the statement, finding it was "relevant towards [the] issue as to the [e]ffect of inducing fear upon the victims in this case." During closing argument, the prosecutor referred to Perez's statement, claiming it corroborated Bonilla's and Dora's testimony. The prosecutor also insisted it showed that Perez was a gang member who liked to intimidate and bully.
Although we afford a trial court wide latitude in determining the relevance of evidence (People v. Alexander (2010) 49 Cal.4th 846, 904), we struggle to understand how Perez's statement to the police had "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) In the respondent's brief, the People argue the statement corroborated the victims' testimony of Perez's intimidation tactics and the reasonableness of their fear. We disagree. To accept the People's argument, we would have to make a leap of logic over the gap between a statement Perez made only to the police after Perez's arrest and statements Perez made to the victims. Indeed, there is no indication that he was trying to intimidate or threaten the police or that the police were afraid of Perez based on his statement.
In addition, we are troubled by the trial court's analysis of Perez's statements under Evidence Code section 352. In the subject statement, Perez appears to be admitting that he murdered seven people. The instant action involved Perez threatening two victims. Obviously killing seven people is far more severe than threatening two people to convince them to pay their rent. Indeed, Perez's statement is inflammatory in that it paints Perez as a seven-time murderer who obviously would have no qualms about threatening two people with physical violence to make them pay the rent. This type of evidence is the kind that uniquely tends to evoke an emotional bias against Perez, while having only slight probative value, if any, in this case. As such, it is the type of evidence that Evidence Code section 352 should prohibit. (See People v. Garceau (1993) 6 Cal.4th 140, 178.) Simply put, we do not see how the trial court could not find that the prejudicial impact of Perez's statement did not far outweigh any possible probative value it might have had. If Perez is retried, it would be sensible for the court to exclude Perez's statement to the police unless some other compelling justification is offered for its admission that is not before us here.
In general terms, Perez argues the admission of his statement to the police requires reversal of the entire judgment. However, he only specifically discusses the impact of the evidence as to criminal threats. He does not address its impact on the counts for dissuading a witness. Accordingly, we consider this issue forfeited and do not address it here. (See Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 217-218.)
IV
INSUFFICIENT EVIDENCE OF PEREZ'S PRIOR CONVICTION
UNDER SECTION 243 , SUBDIVISION (D)
The court made a true finding that Perez had a prior conviction for violating section 243, subdivision (d). Here, Perez argues and the People concede that substantial evidence does not support the true finding. The parties, however, disagree on whether this issue should be remanded for retrial. The People claim it should. Perez argues any retrial would violate double jeopardy. The People are correct.
Our high court has answered the very question before us. The double jeopardy provisions of the state and federal Constitutions do not apply to the trial of a prior conviction allegation in a noncapital case. (People v. Barragan (2004) 32 Cal.4th 236, 239 (Barragan); see Monge v. California (1998) 524 U.S. 721, 734 (Monge).) Additionally, the California Supreme Court held that retrial is permissible after an appellate court reverses a prior strike finding for insufficient evidence. (Barragan, supra, at pp. 239, 259, fn. 9.) The court noted that because retrial of a prior conviction allegation in noncapital cases does not violate the double jeopardy protections, retrial likewise does not violate the constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions. (Id. at pp. 239, 241, 243-259.) The court observed that, unlike reversal of a substantive offense conviction for insufficient evidence, reversal of a sentencing enhancement conviction was not akin to an acquittal because a defendant cannot be "acquitted" of his prior conviction status " ' "any more than he can be 'acquitted' of being a certain age or sex or any other inherent fact." ' " (Id. at p. 242.) The court also reasoned that allowing a retrial of a prior conviction allegation furthers the important public policy of imposing more severe punishment on recidivists. (Id. at pp. 252, 256.)
Surprisingly, neither party cites to Barragan, supra, 32 Cal.4th 236. However, Perez claims that Monge, supra, 524 U.S. 721 (on which the court in Barragan relied) has been sufficiently undermined by subsequent Supreme Court cases, and as such, we should not follow it. We do not accept Perez's invitation for two reasons. First, Monge has not been overruled; thus, its holding remains valid. (See United States v. Rosales (2008) 516 F.3d 749, 757-758.) Second, and more importantly to our analysis here, our high court has not overruled Barragan, supra, 32 Cal.4th 236 or otherwise limited its applicability to the retrial of a true finding of a prior strike. As an intermediate court of appeal, we are not able to overrule Barragan, and to the contrary, it is well established that we must follow that Supreme Court case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
To this end, Perez cites to Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, Shepard v. United States (2005) 544 U.S. 13, and Cunningham v. California (2007) 549 U.S. 270. Perez argues Apprendi undermines Monge, supra, 524 U.S. 721. Nevertheless, we note that our high court issued its opinion in Barragan, supra, 32 Cal.4th 236 well over three years after the United States Supreme court issued its opinion in Apprendi.
In short, on remand, the prosecution should be presented with the opportunity to offer additional evidence, not introduced at the first trial, to support a true finding that Perez had a prior conviction for violating section 243, subdivision (d).
V
ERROR IN THE ABSTACT OF JUDGMENT
Perez maintains and the People agree that the abstract of judgment contains a clerical error that must be corrected. Here, the abstract of judgment contains no information regarding credit for time served. It appears this occurred when the abstract was completed before the determination of Perez's credits. After the trial court sentenced Perez, it referred the matter to probation for a calculation of credit for time served. A subsequent hearing was held to determine Perez's credits. The record before us does not include the reporter's transcript for that hearing. However, according to the clerk's minutes, Perez was awarded 1,974 actual days, plus 296 conduct credits for a total of 2,270 days of credit for time served. This total is consistent with the probation department's calculation. Also, the parties agree that the abstract should reflect a total of 2,270 days of credit for time served.
Although we can correct the abstract of judgment (People v. Zackery (2007) 147 Cal.App.4th 280, 385), we decline to do so here because we are reversing part of the judgment, and we are remanding the matter back to the superior court. Accordingly, we order the superior court to modify the abstract of judgment, consistent with this opinion, and contingent on whether the prosecution opts to retry Perez and the results of that retrial.
DISPOSITION
Perez's convictions under counts 3 through 6 are reversed. The convictions as to counts 1 and 2 are affirmed as is the true finding of the gang enhancement in connection with counts 1 and 2. In addition, the trial court's true finding that Perez had a prior conviction for violating section 243, subdivision (d) is reversed. The matter is remanded to the superior court for further proceedings consistent with this opinion. The superior court also is ordered to correct the abstract of judgment consistent with this opinion and subject to the results of any further proceedings and resentencing of Perez. The superior court also is directed to forward the final amended abstract of judgment to the Department of Corrections and Rehabilitation.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. GUERRERO, J.