Opinion
C076755
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS ESTEBAN PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM037957) OPINION ON REHEARING
A jury found defendant Jesus Esteban Perez guilty of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); unless otherwise stated, statutory section references that follow are to the Penal Code) and found he had constructive possession of the gun for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). The jury found defendant not guilty of soliciting friend Dylan Jones to commit murder of a gang "dropout" (§ 653f, subd. (b)). The trial court found true that defendant had served two prior prison terms (§ 667.5, subd. (b)).
On appeal, defendant contends the trial court erred in finding Jones "unavailable" as a witness due to his refusal to testify at trial (Evid. Code, § 240) and in allowing Jones's preliminary hearing testimony to be used at trial -- which, according to defendant, violated his constitutional right to confront witnesses. (U.S. Const., 6th Amend.) In a supplemental brief, defendant adds an argument that the preliminary hearing testimony was also inadmissible under the former-testimony hearsay objection. (Evid. Code, § 1291.) Defendant also contends there was insufficient evidence that his constructive possession of the gun was to benefit the gang. In a petition for rehearing, defendant argues that this court should strike the two one-year sentencing enhancements the trial court imposed under section 667.5, subdivision (b), because of an amendment to that subdivision that became effective on January 1, 2020.
We remand the matter to the trial court for resentencing with instructions to strike the enhancement imposed under the prior version of section 667.5, and otherwise affirm the judgment.
FACTS AND PROCEEDINGS
On October 2, 2012, Norteño and Sureño gang members fired guns at each other outside a Seven-Eleven convenience store in South Oroville, Butte County. No one was hit by the bullets. The shooting was in retaliation for earlier gang violence, as a result of which Norteño gang members were expected to carry firearms (be "strapped").
At that time, defendant was a Norteño in South Oroville and a member of a Norteño subset named East Side Campos. He had recently been released from prison on post-release community supervision and had to wear a GPS ankle cuff monitored by the county probation office.
Jones was another Norteño in South Oroville, but he was not a member of any Butte County subset. The county's various Norteño subsets cooperated with each other, and Jones had friends in each. Norteños from different subsets hung out at Jones's house because Jones was not on searchable probation.
Defendant and Jones were friends and had lived together in the fall of 2012. Jones wanted to join defendant's subset and considered defendant a higher-ranking gang member. Jones looked up to defendant as a "big homie" who would take Jones "under his wing."
In late November or early December 2012, defendant asked Jones to hold onto defendant's nine-millimeter gun. Jones kept the gun in his garage. On the afternoon of December 12th, defendant texted Jones asking for a photo of "my 9." Jones sent a photo of defendant's gun.
That night, December 12, 2012, sheriff's deputies stopped a car in which Jones was a passenger. Defendant was not present. The driver had a suspended license. Jones was wearing red gloves and a red sweater, which led a deputy to believe he was a Norteño. The deputy saw Jones move something under the passenger seat and, after removing Jones from the car, found a stolen loaded nine-millimeter gun later linked to defendant. The driver said that Jones had used the gun at a shooting range a few days earlier.
Deputies arrested Jones for carrying a loaded and concealed firearm and being a criminal street gang member in possession of a gun. They interviewed Jones and searched his cell phone, finding text messages from "DaBeast" whom Jones identified as defendant. One text provided the nickname and address of a gang dropout (J.A.), and a later text admonished Jones "[the] next time when a homeboy says green light, it means to take off with full weapon, or kill force, ene [every Norteño is equal]." The gang expert testified a "green light" targets someone for death.
The deputies used defendant's GPS monitor to locate him at the home of another Norteño. A futon in the living room had been pulled out into a bed. There were two cell phones on the futon, one of which was associated with DaBeast. A "selfie" of defendant was on one of the phones. A photo of a nine-millimeter gun was on one of the cell phones. An address book near the futon had defendant's name on the front page and contained various names that the deputy recognized as Norteño gang members.
The deputies arrested defendant, who was later charged with soliciting Jones to murder J.A., being a felon in (constructive) possession of the gun found with Jones, and gang enhancements.
After Jones, outside the presence of the jury, refused to testify at trial, as we recount post, the trial court told the jury that Jones "is unavailable as a witness" at trial and the court was going to allow his testimony at a previous hearing a year earlier to be read into the record. Jones's preliminary hearing testimony was read to the jury, with the prosecutor reading the questions from the transcript, and an investigator from the District Attorney's office reading the answers from the transcript, with interruptions for objections and rulings on objections.
As read to the jury, Jones's testimony was that defendant, nicknamed DaBeast or Boots, was a higher-ranking member of the East Side Campo Norteño subset in Gridley. They previously lived together and defendant was like a brother to Jones. Jones started as a "pee wee" Norteño in another city at age nine by stealing his stepfather's gun. He had been in and out of the Norteño gang for 20 years and agreed he had a "great deal of experience over the last 20 years in the Norteño culture." Jones wanted to join the East Side Campo subset. A friend named Hector, who was a gang "street soldier," suggested Jones might gain membership by stabbing someone who dropped out of the gang. Jones brought up the idea to defendant, who said that was fine. Defendant was a "big homie" in the gang, authorized to call shots. Jones received a text message from "DaBeast," i.e., defendant aka "Boots," with the address of dropout J.A.
Jones said he encountered and spoke with J.A. but did not stab or kill him and was admonished for failing to do so in a text from defendant that "next time when a homeboy says green light, it means to take off with full weapon or kill force, ene." At trial, J.A. testified and denied any encounter with Jones.
From his personal experience with Norteño culture, Jones described why guns are so important to Norteños: "Well, obviously, guns are important for protection, self-preservation, robberies, home invasions, good old fun shooting. . . . [B]asically anything you can think of." This testimony was buttressed by the gang expert, who testified to multiple crimes by other Norteños in Oroville that resulted in criminal convictions for assault with a firearm, possession of a loaded and concealed handgun by documented criminal street gang members, sometimes in conjunction with possession or sale of drugs, discharging a firearm at an inhabited dwelling or vehicle, and the Seven-Eleven shooting.
When he was arrested, Jones was carrying defendant's gun because he did not feel safe after the shooting at the Seven-Eleven. The gun, a nine-millimeter, belonged to defendant, who had left it in Jones's garage 10 to 15 days earlier. Jones sent a photo of two guns -- "my .38 and his [defendant's] 9" -- to someone nicknamed "Tech 9." Jones was just supposed to keep the gun, not carry it around. He carried it the night he was arrested because he was under the influence of medication and other substances and did not think defendant would mind.
At trial, a gang expert from the sheriff's department, who was also one of the investigating officers, testified that East Side Campo is a subset of the Norteño gang in the southern portion of Butte County. The primary activities of the Norteño gang in Butte County consist of various firearms and narcotics offenses, including possession of firearms by felons. Non-Hispanics can join but have to work harder to be accepted. Investigation of the Seven-Eleven incident revealed that "it was pretty much orders for gang members to be, quote, 'strapped,' or carrying firearms, due to the level of tension that was taking place out on the streets."
When asked whether it would hypothetically benefit a gang for a junior gang member to hold a gun for a more senior member who was subject to police search, the expert replied it would benefit the gang "by one gang member entrusting in another gang member with a weapon in an attempt to avoid detection from law enforcement. So you have two gang members coming together, cooperating with each other, assisting each other, to first, enhance their, their goals or admissions in the gang."
The jury found defendant not guilty of solicitation to commit murder, but guilty of possession of a firearm by a felon. The jury found true the allegation that Perez possessed the gun for the benefit of a criminal street gang. The trial court found true the prior prison term allegations.
The trial court sentenced Perez to an eight-year aggregate term, consisting of the upper term of three years for gun possession, the middle term of three years for the gang enhancement, and two one-year enhancements for the prior prison terms.
DISCUSSION
I
Unavailable Witness and Use of Preliminary Hearing Testimony
Defendant complains the trial court improperly found Jones to be an unavailable witness and allowed use of his preliminary hearing testimony at trial, without taking sufficient steps to compel his live testimony, and without defendant having had sufficient opportunity to cross-examine at the preliminary hearing, thereby violating defendant's statutory rights (Evid. Code, §§ 240, 1291) and constitutional right to confront witnesses (U.S. Const., 6th Amend.; Crawford v. Washington (2004) 541 U.S. 36 (Crawford)).
A. Background
Before defendant's preliminary hearing, Jones entered into a "Cooperation Agreement" with the district attorney. The parties agreed Jones would plead guilty to possessing the gun but would be released on probation and placed in witness protection in exchange for testifying against defendant at trial.
However, at the time of trial, Jones -- who was then incarcerated on another matter -- refused to testify. Outside the presence of the jury, he was sworn in, and then the district attorney asked if Jones recalled a recent conversation in which he said he would not testify at trial. Jones replied, "Correct. [¶] And with all due respect to your court, Your Honor, I'm still standing with that. I'm not going to answer any questions." Jones confirmed he had signed an agreement to cooperate and testify in exchange for a plea agreement, and if he chose not to cooperate, the prosecution could reinstate criminal proceedings against him for the December 12th offense of carrying a loaded and concealed firearm, with a potential upper term of nine years in prison. Jones agreed his arrest on a new offense had already voided the plea agreement. The prosecutor said he would be willing to offer Jones limited use immunity for truthful testimony in Perez's case, and "would you accept that and testify before the jury?" Jones replied, "No, sir."
The prosecutor asked the court to order Jones to testify or he would be found in contempt. After conferring with Jones's attorney, the prosecutor clarified that the maximum term Jones faced was seven years, not nine. "So with that in mind, are you still wishing to proceed how you earlier told us you were going to proceed?" Jones answered, "Yes. I still want to keep my mouth shut and not say anything."
The trial judge interjected that, as a Superior Court judge, "I am ordering you to testify truthfully in this matter. Do you understand that?" Jones said, "I understand that, Your Honor." The prosecutor asked, "in light of the judge's statement, are you still willing [sic] to testify?" Jones said, "With all due respect, your Honor, I'm choosing to not testify."
The prosecutor asked the court to bring in the jury and, if Jones refused to answer questions, then to dismiss the jury, "make a finding of contempt, impose a sanction, and then the People would ultimately be moving to admit the preliminary hearing testimony this afternoon." Defendant's lawyer objected to having the jury witness a refusal to testify, and the court said its general practice was not to have the jury present. The prosecutor asked for Detective Paley to be allowed to describe to the jury Jones's refusal to testify. Defendant's lawyer objected it was not relevant. The prosecutor said it was relevant to show that the People diligently attempted to obtain Jones's testimony and that Jones was "fearful to testify" -- based on the prosecutor's representation of what Jones told the prosecutor in a meeting before court. Defendant's lawyer said that was speculation which he would not be allowed to probe if Jones refused to answer questions. The court agreed it was inappropriate to say why Jones refused to testify. (On appeal, the Attorney General cites Jones's preliminary hearing testimony that he was afraid, but it does not appear the prosecutor brought this testimony to the trial court's attention.)
The prosecutor asked the court to hold Jones in contempt, which the court did as follows:
"THE COURT: All right. Mr. Jones, again, you understand I've ordered you to testify. It's still your decision not to; is that correct?
"THE WITNESS: Yes, sir.
"THE COURT: And you understand if you decide not to testify after I've ordered you to testify, it's very likely in ten seconds I'm about to find you in criminal contempt of this court; do you understand that?
"THE WITNESS: Yes, sir.
"THE COURT: And it's still your desire not to testify?
"THE WITNESS: Yes, sir.
"THE COURT: All right. Then, given that, the Court will find Mr. Jones in contempt of this court. Obviously, there might be some repercussions from that. What's your suggestion at this time, Mr. [Prosecutor]?
"[Prosecutor]: Your Honor, a single day in county jail concurrent with any time currently being served."
After confirming that Jones's lawyer did not wish to be heard, the court said: "All right. Mr. Jones, for having found you in contempt, I'm going to order that you serve one day in the Butte County Jail concurrent with any other time you might be serving.
"THE WITNESS: Yes, sir."
The prosecutor then asked to have Jones's preliminary hearing testimony read to the jury. Defendant's lawyer objected, arguing the court would have to find a "persistent refusal to testify" under Evidence Code section 240, and one refusal does not constitute a persistent refusal, and so the court must bring Jones back the following day to see if he would testify and, if not, incarcerate him some more and bring him back Monday. The defense also argued that, although defendant's lawyer at the preliminary hearing (who was not trial counsel) did cross-examine Jones, it was inadequate (§ 1291) because the prosecution had not provided full information about prior statements of Jones, who was a codefendant at that time, and the defense did not have discovery rights at that proceeding. Although two videotaped police interviews of Jones were provided to Perez's counsel, he initially could not view them fully because only a portion was viewable without a special player. The prosecutor noted defendant's counsel made no record of any attempt to obtain the special player or ask to review the DVDs at the District Attorney's office.
The trial court expressed concern that putting the case on hold for days to keep asking Jones if he still refused to testify was impractical and risked losing the jury. The court wanted to hear arguments on the Evidence Code section 1291 issue about adequate opportunity to cross-examine at the preliminary hearing.
After hearing arguments, the trial court found Jones "is unavailable to testify. He clearly was represented by counsel, competent counsel, Mr. Foster. And it was clear in the Court's mind that whether we brought him back right now or tomorrow morning or Monday morning, he was going to assert his decision not to testify. So based on his testimony, I am finding him unavailable." The court also found Jones's preliminary hearing testimony could be read for the jury under section 1291, under case law holding that, "even though subsequent information comes to bear once the preliminary hearing has been held and even though there might have been a different counsel at the preliminary hearing, I do think that the cases would support the admissibility." The court added, however, that it would liberally allow attacks on credibility based on prior statements, prior convictions, or anything else that might go to his credibility.
As stated earlier, Jones's preliminary hearing testimony was read to the jury, with the prosecutor reading the questions from the transcript, and an investigator from the District Attorney's office reading the answers from the transcript, with interruptions for objections and rulings on objections.
B. Witness Unavailability
Evidence Code section 240 provides in part:
"(a) Except as otherwise provided in subdivision (b), 'unavailable as a witness' means that the declarant is any of the following: [¶] . . . [¶]
"(6) Persistent in refusing to testify concerning the subject matter of the declarant's statement despite having been found in contempt for refusal to testify. . . ."
The proponent of the evidence has the burden of showing the witness was unavailable. (People v. Smith (2003) 30 Cal.4th 581, 609.) On appeal, we review the trial court's resolution of facts under a substantial evidence standard of review, and we independently review the trial court's determination that a sufficient showing of unavailability has been made to justify an exception to the defendant's constitutional right to confront witnesses at trial. (People v. Herrera (2010) 49 Cal.4th 613, 623, 628; People v. Cromer (2001) 24 Cal.4th 889, 901.)
Defendant argues that the plain language of subdivision (a)(6) of the statute unambiguously commands that, in order for the court to find a witness unavailable, the witness must expressly and repeatedly refuse to testify after a finding of contempt. We disagree. No such restrictions appear in the statute. To the contrary, the statute uses the word "despite" a contempt finding, rather than "after" a contempt finding.
Subdivision (a)(6) was added to Evidence Code section 240 in 2010 (Stats. 2010, ch. 537, § 1). Before that, courts admitted " 'former testimony of a witness who is physically available but who refuses to testify (without making a claim of privilege) if the court makes a finding of unavailability only after taking reasonable steps to induce the witness to testify unless it is obvious that such steps would be unavailing.' " (People v. Smith, supra, 30 Cal.4th at p. 624, citing People v. Sul (1981) 122 Cal.App.3d 355, 364-365 (Sul).) Subdivision (a)(6) codified this rule.
Smith held the trial court did not err in finding that a rape victim was unavailable as a witness at the death penalty phase of trial and in admitting her preliminary hearing testimony about the rape as aggravating evidence, where she refused to testify at trial unless she was allowed to express her opposition to the death penalty. (Id. 30 Cal.4th at p. 624.) The court made reasonable efforts to induce her testimony under the unusual circumstances, by asking her whether additional time or prosecution for criminal contempt would change her mind. (Ibid.) The trial court was not required to fine her for contempt in order to find her unavailable. (Ibid.)
Here, Jones persistently refused to testify several times as the prosecutor and trial court tried to persuade him to testify. Although he did not make repeated and express refusals after being found in contempt and punished, he persisted in his earlier refusals after being found in contempt and punished. After the court found Jones in contempt and sentenced him to one day concurrent, he said, "Yes, sir," reflecting a persistent refusal to testify. Defendant cites no authority that a trial court must obtain repeated refusals to testify after the witness is found in contempt under these circumstances. Jones sufficiently persisted in his refusal to testify after being found in contempt, by which point he had also refused to testify after the prosecutor offered him limited immunity and threatened to reinstate charges against him, and after the court directly ordered him to testify and after the court warned him he was about to be found in contempt of court.
The trial itself was brief, as expected. Day One was jury selection. On Day Two, the investigating officer testified in the morning; the court ruled Jones was unavailable around 2:00 p.m., and Jones's preliminary hearing testimony was read, after which court adjourned for the day. On Day Three, the prosecution rested by 9:00 a.m.; the defense rested around 10:00 a.m.; the prosecution rested its rebuttal case by noon; and the jury heard closing arguments in the afternoon and retired to commence deliberations at 4:23 p.m. The jury returned its verdict at 2:49 p.m. on Day Four.
The court was not required to put the trial and jury on hold to give Jones another opportunity to refuse to testify on another day, because "it [was] obvious that such steps would be unavailing." (Sul, supra, 122 Cal.App.3d at pp. 364-365.) Defendant relies on Sul, which held that use of preliminary hearing testimony was reversible error, where the witness refused to answer questions without the presence of his attorney, who was in another trial but might have been available after 4:00 p.m. Privilege was not in issue. (Id. at pp. 358, 359, fn. 2, 361.) The court said it would impose sanctions and could send the witness to jail. The witness reminded the court he had already served five days in jail for his refusal to testify at the first trial. The witness again refused to answer questions, and the court found him in contempt, ordered him to answer, and asked if he still refused to answer. (Id. at p. 360, fn. 2.) The witness said yes, and the court found him in contempt and sent him to jail until he was willing to answer questions. (Ibid.) The court then immediately found the witness unavailable and allowed his preliminary hearing testimony to be read to the jury. (Id. at p. 359.) The appellate court reversed, concerned that the trial court did not adjourn the proceedings for a period of time to see whether the witness would change his mind after being incarcerated, which was inconsistent with committing the witness to jail "until such time as he would answer questions." (Id. at pp. 359, 365.) It would have been more reasonable to adjourn for the weekend and see if he would testify on Monday after spending the weekend in jail. (Ibid.) Sul said, "another arrow in the court's quiver" was a prosecution under section 166, which says "a person guilty of any of the following contempts of court is guilty of a misdemeanor: [¶] . . . [¶] (6) The contumacious and unlawful refusal of a person to be sworn as a witness or, when so sworn, the like refusal to answer a material question," which would have carried a possibility of imprisonment in the county jail for up to six months and/or a $500 fine. (Sul, at p. 366.)
Sul distinguished another case, People v. Rojas (1975) 15 Cal.3d 540, which construed Evidence Code section 240 to express a legislative intent to deem a person unavailable if he refused to testify out of fear for himself and his family after receiving threats. (Sul, supra, 122 Cal.App.3d at pp. 362-363, citing Rojas, supra, 15 Cal.3d at pp. 547, 551-552.) The Sul court found no case discussing "whether a court faced with a contumacious witness who refuses to testify, without expressly giving as his reasons threats of violence or actual violence, has the duty to adjourn proceedings for a reasonable time in order to determine if the witness will change his mind and testify as a result of coercive incarceration." (Id. at p. 363.) Sul concluded that, even when a refusal to testify was not linked to fear due to threats, a delay in trial was not required in all cases. In some cases from other jurisdictions, "the recalcitrant witness was already imprisoned on some other charge, and threats of contempt were obviously unavailing." (Id. at pp. 363-364.) Sul adopted the standard of permitting former testimony of a witness who is physically available but refuses to testify (without making a claim of privilege) if the court makes a finding of unavailability only after taking reasonable steps to induce the witness to testify "unless it is obvious that such steps would be unavailing." (Id. at pp. 364-365.) Sul specified: "We do not hold that such a continuance would be necessary. It might appear from the witness's responses that further incarceration would not result in live testimony." (Id. at p. 365.)
Thus, Sul did not require a delay in the trial in all cases. Nor does subdivision (a)(6) of Evidence Code section 240 require a delay in trial, nor is unavailability made dependent upon fear for the safety of oneself or one's family.
We presume the Legislature was aware of existing case law when it enacted subdivision (a)(6). (People v. Landry (2016) 2 Cal.5th 52, 105; People v. Childs (2013) 220 Cal.App.4th 1079, 1104.) We thus presume the Legislature was aware that Sul did not require fear as an excuse for a witness's refusal to testify and did not require multiple express refusals to testify after a finding of contempt. Had the Legislature wanted to so limit the statute, it would have done so when it enacted subdivision (a)(6). The Legislature did not do so.
The People observe that the 2010 enactment also amended a hearsay exception when a party by wrongdoing procures unavailability of the declarant as a witness. (Assem. Bill No. 1723, Stats. 2009-2010 Reg. Sess., ch. 537, §§ 1-2; Evid. Code, § 1390.) As noted by the People, a narrow reading of subdivision (a)(6) would undermine this purpose, yet the legislative history reflects an intent to expand Evidence Code section 240's definition of unavailability. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1723 (2009-2010 Reg. Sess.) p. 2; Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1723 (2009-2010 Reg. Sess.) June 29, 2010, p. 12.) Although the legislative history noted the expansion as "especially important" when a witness has been subjected to threats, it did not limit the amendment to threats. (Assem. Com. on Judiciary, supra, p. 5.)
Here, we conclude the trial court was not required to delay the trial, because it is obvious such a step would have been unavailing. (Sul, supra, 122 Cal.App.3d at pp. 364-365.) Indeed, on appeal defendant agrees Jones would probably have continued to refuse to testify if he were brought back into court the following day or week. But defendant blames the trial court's "lack of inducement." According to defendant, jailing Jones for contempt for a day concurrent with whatever term he was currently serving was "no inducement at all" because it did not increase the amount of time that Jones would have to spend in jail. But it is no more than speculation that Jones would have decided to testify if the court had ordered time in custody consecutive to that which Jones was already serving. Indeed, Jones' adamant refusal to testify here appears to have made that unlikely.
We conclude the trial court's finding that Jones was unavailable as a witness did not violate defendant's statutory or constitutional rights.
C. Use of Preliminary Hearing Testimony
Evidence Code section 1291 provides in part:
"(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶]
"(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing. . . ."
When the requirements of section 1291 are met, the admission of a witness's former testimony in evidence does not violate a defendant's constitutional right of confrontation. (People v. Thomas (2011) 51 Cal.4th 449, 503; Herrera, supra, 49 Cal.4th at p. 621; People v. Andrade (2015) 238 Cal.App.4th 1274, 1295.)
Prior testimony is not made inadmissible by the hearsay rule if the declarant is unavailable to testify at trial and, at the time the unavailable witness gave testimony, the cross-examination was made " 'with an interest and motive similar' " to that of the prior proceeding. (People v. Harris (2005) 37 Cal.4th 310, 332.) Preliminary hearings provide that opportunity. (People v. Carter (2005) 36 Cal.4th 1114, 1172-1173.) Preliminary hearing testimony is deemed sufficiently reliable to satisfy the confrontation clause, regardless whether subsequent circumstances bring into question the accuracy or completeness of the earlier testimony where the defendant had an opportunity to cross-examine. (People v. Gonzales (2012) 54 Cal.4th 1234, 1262.) Courts have held defendants were not deprived of the opportunity for meaningful cross-examination in a variety of circumstances, including: (1) the new information was unimportant or did not go to the core of the testimony; (2) the defendant had reason to cross-examine the witness about the subject matter; (3) the defendant had other information he could use to impeach the witness; or (4) the defendant presented the new impeachment information at trial even though he could not directly cross-examine the unavailable witness about it. (See Gonzales, supra, 54 Cal.4th at pp. 1262-1263 [defendant had not been given access to therapy records of the witness (his son) which indicated he suffered from depression and PTSD; defense had other more significant information to impeach the witness in the form of inconsistent statements between his preliminary hearing testimony and earlier police interviews]; People v. Valencia (2008) 43 Cal.4th 268, 294-295 [the new impeachment information did not go to the core of the witness's testimony and the defense presented the impeachment evidence at trial]; Andrade, supra, 238 Cal.App.4th at p. 1295 [defendant knew that witness had given a written statement to police though the defense had not yet seen the statement; the defense was free to and did cross-examine the witness about her written statement and there were no material inconsistencies or material differences between the interview statement and preliminary hearing testimony].)
Defendant argues he did not have adequate opportunity to cross-examine at the preliminary hearing because the prosecution had not yet disclosed evidence of prior inconsistent statements by Jones that might have been used to impeach him. First, Jones told police that a woman was with defendant when he dropped off the gun, but Jones did not mention a woman at the preliminary hearing. Second, Jones told police he used defendant's gun at a shooting range a few days before police found the gun, but at the preliminary hearing he said he did not have permission to take the gun out of his house and he suggested he did so only on the day he was arrested. Third, Jones told police he joined a Norteño subset in Santa Rosa by being beat up by gang members, but at the preliminary hearing he said he joined the Norteños at age nine by stealing his stepfather's gun. Fourth, Jones told police that defendant gave him the gun two days before Jones's arrest but testified it was 10 or 15 days. The People assert the defense already knew of this last inconsistency before the preliminary hearing because it was contained in a police report provided to the defense before the preliminary hearing.
In any event, as to all prior inconsistencies claimed by defendant, none were sufficiently material, and all concerned matters of which the defense already had reason to question Jones, and the defense had other grounds for impeaching Jones. It did not matter whether a woman was with defendant when he dropped off the gun or when the gun was dropped off; whether Jones used the gun; or how Jones became a gang member. Moreover, the trial court allowed the defense to make evidentiary objections during the reading of the preliminary hearing transcript, some of which the court sustained. The court also allowed the defense (over the prosecution's objections) to present and explore Jones's prior inconsistent statements during the defense's questioning at trial of the detective who took Jones's statement. On appeal, defendant concedes the claimed inconsistencies were elicited through the testimony of the investigating officer who interviewed Jones.
We conclude the use of Jones's preliminary hearing testimony at trial did not violate defendant's statutory or constitutional rights. We therefore need not address his argument that error was prejudicial.
II
Gang Enhancement
Defendant asks us to strike the gang enhancement (§ 186.22, subd. (b)) on the ground that there was insufficient evidence that his constructive possession of the gun held for him by Jones was to benefit the Norteños.
In reviewing a claim of insufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether there is substantial evidence from which a reasonable trier of fact could have found the necessary elements beyond a reasonable doubt. (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume in support of the judgment the existence of every fact the trier could have reasonably deduced from the evidence. (Ibid.)
The gang enhancement under section 186.22, subdivision (b)(1) -- as presented to the jury -- has two elements: (1) That defendant possessed the firearm for the benefit of the criminal street gang; and (2) that defendant did so with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Albillar (2010) 51 Cal.4th 47, 59; People v. Ewing (2016) 244 Cal.App.4th 359, 378-379.) Intent can be inferred from predictable results of action. (Ewing, at p. 379.)
By giving the gun to Jones to hold, defendant benefitted the gang by maintaining his access to the gun while at the same time reducing the risk that law enforcement would catch him with it. He needed access to a gun because many of the Norteños' primary activities required guns (as both Jones and the gang expert testified), and at the time in question Norteños were especially expected to carry firearms while out and about in response to the shootout at Seven-Eleven. Defendant was on probation having recently been released from prison, and the probation office was tracking him with a GPS monitor. If the probation officer conducted a surprise probation search and found defendant in possession of a gun, defendant risked being sent back to prison. Because Jones was a friend and a fellow-Norteño and was not on searchable probation, he could be expected to safeguard the gun and give it back anytime defendant wanted it. The expert opined in a hypothetical that it would benefit the gang for one gang member, who was subject to warrantless search by law enforcement, to entrust the gun to another gang member to keep it away from law enforcement. The two gang members cooperating with and assisting each other enhanced the gang's goals.
These facts also support an inference that defendant constructively possessed the gun with intent to promote the gang. Having Jones keeping the gun available for defendant's use would allow defendant to use the gun for the gang's criminal activities. Keeping defendant out of prison would also allow defendant to commit gang crimes or supervise the criminal activities of other gang members.
People v. Margarejo (2008) 162 Cal.App.4th 102, found substantial evidence to support the gang enhancement to a conviction of being a felon in possession of a gun, where the defendant led police on a high speed chase and, before being caught, managed to stash the gun at a fellow gang member's house. (Id. at pp. 104-106.) The jury could reasonably infer that the defendant's goal was to preserve the gun for the gang's future use in committing gang crimes, even if he landed in prison. (Id. at p. 111.) Defendant argues that case is distinguishable because there the defendant flashed gang signs during the chase, and here the evidence does not support an inference that defendant wanted other gang members to use the gun even if he could not. Neither factor undermines the reasonable inference in this case that defendant's goal was to preserve the gun for future gang crimes and to preserve his own ability to remain free to commit future gang crimes.
Defendant argues there was insufficient evidence of his intent to promote or assist the gang, because the testimony of Jones and the gang expert established that defendant stored the gun at Jones's house for safekeeping, not to promote or assist gang crimes, and by storing the gun at Jones's house, defendant was not complying with gang orders to stay armed after the Seven-Eleven shootout but rather was depriving himself of the gun. However, it is reasonable to construe the order as requiring members to be armed when they were out on the streets, not necessarily when they were inside their own home or the home of a friend. And giving the gun to Jones did not deprive defendant of the gun, as he asserts on appeal. Jones stood ready to give the gun to defendant whenever he wanted it.
Defendant argues the evidence amounted to nothing more than speculation, which does not constitute substantial evidence. He cites People v. Ramon (2009) 175 Cal.App.4th 843, 851, but that case is distinguishable. There, police stopped the defendant driving a stolen car in gang territory with another gang member in the passenger seat. There was no evidence of intent other than the gang expert's opinion that the two were acting for the benefit of the gang that night, rather than acting on their own. (Ibid.)
Here, we have more. We have evidence of the recent gang shootout at Seven-Eleven, which raised the tension level such that Norteños such as defendant were expected to be armed when out in public, and Jones's testimony from his own experience with Norteño culture that guns were important to, i.e., benefitted Norteños, for various reasons including protection, self-preservation, and "good old fun shooting."
Defendant cites no authority requiring the prosecution to prove that Perez used the gun to carry out gang-related offenses in the past or intended to use it to commit gang-related offenses in the future.
III
Sentencing Enhancement (Penal Code section 667 .5)
On rehearing, defendant claims he no longer qualifies for the two one-year enhancements imposed under section 667.5, subdivision (b). He contends Senate Bill No. 136 (SB 136), enacted in 2019, and effective as of January 1, 2020, amended section 667.5 and requires us to strike the enhancements. We agree.
When defendant was sentenced, section 667.5, subdivision (b) provided for a one-year enhancement for each prior prison term served for "any felony," with an exception not applicable here. SB 136 significantly limits the circumstances under which this enhancement may be imposed. Under the new law, a trial court may impose the one-year enhancement only when the prior prison term was served for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.)
Defendant has not served a prior prison term for a sexually violent offense. His prior prison terms were for assault with a deadly weapon (§ 245, subd. (a)(1)), and allowing a person to discharge a firearm from a vehicle he was driving (former Pen. Code, § 12034, subd. (b), repealed by Stats. 2010, ch. 711, § 4, eff. Jan. 1, 2012).
SB 136 became effective January 1, 2020. (Cal. Const., art. IV, subd. (c)(2).) Defendant's conviction was not final by that date. Because the new law mitigates punishment and there is no saving clause, it will operate retroactively. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 748.)
DISPOSITION
The matter is remanded for resentencing consistent with this opinion. The judgment is otherwise affirmed.
/s/_________
HULL, J. I concur: /s/_________
BLEASE, Acting P. J. Murray, J., Concurring.
I concur with the majority opinion in all respects. I write separately to address the discovery issue related to defendant's challenge to the admissibility of Jones's preliminary hearing testimony.
On the day of the preliminary hearing, defense counsel requested a continuance because the prosecution had not given him the video or transcript of Jones's interviews. Counsel asserted he could not cross-examine Jones without that discovery. The prosecution asserted defendant had no right to discovery before the preliminary hearing and thus the fact that the defense had not received the interrogation evidence was not good cause for a continuance. The prosecutor added, "[t]here is no Brady material in there." (Italics added.)
Brady v. Maryland (1963) 373 U.S. 83 .
While a defendant has no statutory right to discovery prior to the preliminary hearing (See Pen. Code § 1054.7 [prosecution must provide discovery of statutorily specified information 30 days before trial]), " 'a defendant has a due process right under the California Constitution and the United States Constitution to disclosure prior to the preliminary hearing of evidence that is both favorable and material, in that its disclosure creates a reasonable probability of a different outcome at the preliminary hearing. This right is independent of . . . the criminal discovery statutes.' [Citation.] This obligation of disclosure includes impeachment evidence regarding prosecution witnesses. [Citation.]" (People v. Hull (2019) 31 Cal.App.5th 1003, 1033-1034.) Whether a due process violation has taken place as the result of late discovery depends on whether there is a reasonable probability that pre-preliminary hearing disclosure would have changed the outcome of the preliminary hearing. (Bridgeforth v Superior Court (2013) 214 Cal.App.4th 1074, 1087 ["the standard of materiality is whether there is a reasonable probability that disclosure of the exculpatory or impeaching evidence would have altered the magistrate's probable cause determination with respect to any charge or allegation"].) Nevertheless, a prosecutor's statutory and constitutional discovery obligations pre-preliminary hearing are matters separate from the later admissibility of preliminary hearing testimony. By not disclosing witness statements before the preliminary hearing, a prosecutor takes the chance that a materially significant inconsistent statement could be made during the testimony and the witness later becomes unavailable for trial. In some other case the failure to provide witness statement discovery before the preliminary hearing might be critical. "The opportunity to cross-examine required by the confrontation clause and section 1291 requires the opportunity for 'effective' cross-examination during the prior testimony. [Citations.]" (Hull, at p. 1034.)
While I agree with the result in the majority opinion concerning Jones's preliminary hearing testimony, I do not read the majority opinion as condoning the prosecution's late discovery of Jones's interview videos or the transcripts.
/s/_________
MURRAY, J.