Opinion
H043411
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. ARNULFO PINEDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS140460A)
On February 23, 2014, Crispin Guajardo, a known associate of the Norteno criminal street gang, was shot and killed outside a bar in Greenfield, California. Following a jury trial, defendant Arnulfo Pineda, a member of the Mexican Klan Locos subset of the Sureno criminal street gang, was convicted of Guajardo's murder. (Pen. Code, § 187.) The jury also found true several enhancements, including a gang enhancement (§ 186.22, subd. (b)(1)) and three firearm enhancements (§§ 12022.5, subd. (a), 12022.53, subds. (d), (e)(1)). On appeal, defendant argues (1) the gang enhancement is not supported by substantial evidence, (2) the trial court erroneously permitted the admission of overly prejudicial and unreliable testimonial hearsay, (3) the trial court failed to correctly instruct the jury on the use of hearsay evidence, (4) the trial court did not correctly respond to the jury's question on how to complete verdict forms when deadlocked on an enhancement, (5) the prosecutor committed misconduct, (6) the trial court erroneously permitted the introduction of statements that did not qualify as adoptive admissions and violated Doyle v. Ohio (1976) 426 U.S. 610, and (7) the cumulative effect of the errors that occurred at his trial warrants reversal of the judgment. Defendant also filed a supplemental letter brief arguing the prosecution failed to plead and prove all the facts required to impose the firearm enhancements under section 12022.53, subdivisions (d) and (e)(1).
Unspecified statutory references are to the Penal Code.
We initially filed an opinion on October 23, 2018 rejecting defendant's claims of error and affirming the judgment. Defendant filed a petition for rehearing, raising a new claim that recent amendments to section 12022.53 apply retroactively to him and require reversal and remand of the judgment. We granted rehearing to consider defendant's argument and find it has merit. We therefore reverse and remand the matter to the trial court.
We largely refile our prior opinion. Defendant's petition for rehearing raised numerous claims in addition to his argument that newly enacted amendments to section 12022.53 applied to his case. After reviewing his petition for rehearing, we believe the only issue raised that warrants rehearing is his claim regarding the applicability of the newly amended section 12022.53. Several other claims of error raised in defendant's petition require only minor modifications of our prior opinion, which have been made below.
BACKGROUND
1. The Information
On January 6, 2016, a second amended information was filed charging defendant with murder (§ 187). It was further alleged that with respect to the murder, defendant acted willfully, deliberately, and with premeditation (§ 189). The information also alleged a total of seven enhancements: defendant personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)), defendant committed the offense for the benefit of a criminal street gang, "A Sureno Criminal Street Gang," (§ 186.22, subd. (b)(1)(C)), defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and defendant had served two prior prison terms (§ 667.5, subd. (b)). Jury trial began on January 4, 2016.
2. The Prosecution's Evidence
a. The Crime and Investigation
On February 23, 2014, Mario Moreno, Saul Delgadillo, and the victim Crispin Guajardo were at El Paraiso, a bar located in Greenfield, California, at around 7:00 p.m. Guajardo was associated with the Norteno gang but was not wearing any red clothing that night. Moreno admitted he was an active gang member at the time.
That night at the bar, Guajardo asked Moreno for a cigarette and stepped outside to smoke. After about 10 minutes, Moreno and Delgadillo went next door to a restaurant. Moreno saw Guajardo outside, still smoking a cigarette. Guajardo said he was going to go for a bicycle ride. After Moreno and Delgadillo were seated at the restaurant, Delgadillo, who was seated toward the window, could see Guajardo riding his bicycle toward the bar. Delgadillo gestured for Guajardo to join them at the restaurant.
One or two minutes later, Moreno heard nine or 10 gunshots. He also heard Guajardo call him by his nickname. Moreno ducked and took cover. Afterwards, when he went outside, he saw Guajardo lying on the sidewalk.
Greenfield Police Department Officer Corey Smith was on duty the evening of February 23, 2014 and was patrolling the alleyway behind El Paraiso in his car. He heard the sound of gunshots being fired somewhere near the front of the bar. Smith headed toward the direction of the gunshots and stepped out of his car. When Smith got back to his patrol car, he realized that he had failed to put the vehicle in park and that it had continued rolling after he had gotten out of it, running over a stop sign and into the side of a building. He saw a Hispanic man wearing a white sweatshirt and an orange nightcap or beanie run around the corner. Smith holstered his handgun and ordered the man to stop. The man did not stop and continued to run.
Officer Smith then heard two or three gunshots near the front of the bar. He diverted his attention to the front of the bar and saw another man wearing a dark-colored hoodie holding a gun around his right thigh, later identified as defendant, run around the corner. Smith ordered defendant to stop. Defendant glanced at Smith, dropped the gun, and continued running. Smith chased defendant and eventually caught up with him, handcuffed him, and arrested him. When defendant stopped running, he told Smith, "I give, I give." At the time, defendant was wearing black gloves on both hands. From a pat-search, Smith believed defendant had an ammunition magazine in his rear pocket. Defendant was cooperative during the rest of his arrest and detention.
While walking defendant to his car, defendant told Officer Smith not to disrespect him. Smith responded that he was not disrespecting defendant and that defendant was lucky he had not been shot by the police. Defendant told Smith, "You're lucky I didn't shoot you first." Afterwards, Smith went toward the area where defendant had dropped his gun and retrieved a semiautomatic pistol. He also removed the ammunition magazine from defendant's pocket. While defendant sat in the back of another officer's patrol car, Smith heard him repeatedly yell "fuck" and "fuck me."
After his arrest, defendant was booked into jail. During the booking process, officers took photographs of his tattoos. Defendant had a tattoo that said "SUR," which indicated "southern gang affiliation." While in jail, officers helped defendant call his wife. Defendant told his wife that he was sorry, he loved her, and she would not understand. In response, his wife said he was not sorry, he did not love her, and he would not be able to see her or their kids again because he was "out running around with his friends."
Meanwhile, more officers arrived at the scene of the shooting. Guajardo was found lying unresponsive on the ground near the bar. He had no pulse. Officers summoned emergency personnel, who attempted to revive Guajardo without success.
Officers recovered a total of five .40-caliber casings and numerous 9-millimeter casings from the sidewalk and street in front of the bar. The magazine in defendant's pocket was fully loaded and held twelve 0.40-caliber rounds. The firearm that defendant had dropped, which used 0.40-caliber bullets, had six unspent rounds. A criminalist opined that a 0.40-caliber bullet retrieved from Guajardo's neck matched the firearm that was recovered from the scene of the crime. Five 9-millimeter bullets were also retrieved from Guajardo's body. Guajardo received other "through and through" injuries where no bullets were retrieved. Ultimately, it was determined that Guajardo died of multiple gunshot wounds to his extremities, lung, main pulmonary artery, and colon. All of his injuries were considered potentially life threatening.
b. Motive
At trial, the prosecution theorized that defendant, a member of the Mexican Klan Locos subset of the Sureno gang operating in the King City area, shot Guajardo in retaliation for recent assaults that had been committed against Sureno gang members in the area. The prosecutor attempted to introduce evidence of alleged shootings between Surenos and Nortenos, painting Guajardo's murder as part of a series of gang violence.
First, the prosecution introduced evidence of an assault against Saul Delgadillo, one of the men who had accompanied Guajardo to the bar the night of the shooting. Delgadillo had been served a subpoena but failed to appear for defendant's trial. As a result, Greenfield Police Department Sergeant Michael Rice testified about Delgadillo's assault. Officer Rice had been assigned to investigate the crime, which occurred sometime before Guajardo's murder. When Rice first responded to the scene of the crime, he saw Delgadillo holding a bloody towel to his chin and face area. Another officer, who had arrived seconds before Rice, was speaking to Delgadillo, and Delgadillo was recounting what had happened. Rice was close enough to Delgadillo to overhear his statements. Delgadillo described that he had been walking on the street when he heard someone call out to him from inside a car. As he approached the car, one of the car's occupants fired a shot, striking him in the face. At defendant's trial, Rice testified he did not believe anyone had been arrested for the crime.
The second assault introduced by the prosecution as motive evidence occurred the day before Guajardo's murder and involved a victim named Joshua Hernandez. Greenfield Police Department Officer Paul Charupoom investigated the crime, which was a shooting. Charupoom described that he walked down a nearby alleyway when he first arrived at the scene. As he walked down the alleyway, he heard a woman say she wanted to leave the area. Charupoom told her she needed to wait until she spoke with officers, but the woman left without his permission. Later, Charupoom spoke with a witness at the scene who said he saw a bleeding man try to enter a nearby house. When Charupoom went to the house in question, he observed red blood stains and bullet holes in the fence. He later determined that the victim, Hernandez, lived in the house.
Officer Rey Medeles also participated in the investigation of Hernandez's shooting. After being shot, Hernandez had driven himself to a hospital in Salinas. Medeles contacted him at the hospital. Medeles believed Hernandez was a member of the Mexican Klan Locos subset based on his tattoos and information he had gleaned from CalGRIP, a program where information between various law enforcement agencies are shared.
Officer Smith, who was also qualified as the prosecution's gang expert, testified he was familiar with Hernandez and knew him to be a Sureno gang member. He was also familiar with Delgadillo. He had reviewed the reports summarizing the assault against Delgadillo but believed he did not have enough information to render an opinion as to whether the assault against him was gang related.
c. Gang Evidence
i. Jail Classification
Deputy Nicholas Reyes, who was assigned to the classification unit at the Monterey County Jail, explained there are two major gangs in the Monterey County area, the Nortenos and the Surenos. Reyes testified that it is important to separate the two gangs within the county jail system. He believed defendant had some gang affiliation based solely off his tattoos. Initially, when defendant was booked into jail he was classified by staff as a Sureno and was housed with other Sureno inmates. Several days later, he informed jail personnel he no longer wanted to be an active Sureno gang member and was moved to a dropout housing unit.
According to Deputy Reyes, the inmates themselves run something akin to their own classification system within the jail. Both Nortenos and Surenos have someone who is in charge of the operation of their specific jail pod. If a new inmate does not pass the "clearing process" of the jail pod they are placed in, they are typically assaulted. Inmates may sometimes ask to be moved if they do not pass the inmate-enforced clearing process.
ii. Gang Subsets and Predicate Gang Offenses
Detective Alexander Rouch, who was currently employed by the Coalinga Police Department in Fresno County, had previously worked for the King City Police Department for 21 years. From his previous assignment in King City, Rouch became familiar with gangs, including Mexican Klan Locos, which Rouch identified as a subset of the Sureno criminal street gang that operated in and around King City. Rouch asserted that Mexican Klan Locos started out as Brown Pride in the 1990s and had seven original members, one of whom was defendant. Rouch described Mexican Klan Locos as a "Monterey County certified Sureno gang." Rouch had previously investigated crimes that involved defendant including shootings, assaults, and other crimes where defendant was either the alleged perpetrator or the victim.
At the time Detective Rouch worked with the King City Police Department there were other Sureno subsets operating in the area, including KC13, also known as La Esperanza Trece, and Dukes. Each subset had their own identifying characteristics. In Rouch's experience, the Sureno subsets tended to work together and were intertwined with each other. Sometimes family members within the same family would be members of different Sureno subsets. Rouch gave one specific example of a family where a brother was a member of La Esperanza Trece and another brother was a member of Mexican Klan Locos.
In August 2000, Rouch was involved in an investigation of a crime that involved defendant and another individual, Froilan Chavez, who Rouch believed was a member of Mexican Klan Locos. During that incident, defendant and Chavez confronted, attacked, and attempted to rob someone. Rouch testified this crime was typical of gang members.
In August 2001, Rouch participated in an investigation involving defendant and another known gang member, Bobby Rodriguez, following an altercation with a rival gang member. Defendant was later convicted of being an active gang member in violation of section 186.22, subdivision (a). Rouch believed this type of crime was indicative of the types of crimes committed by Mexican Klan Locos members. Rouch, however, did not specify which Sureno subset Rodriguez was affiliated with.
In February 2004, Rouch also investigated a shooting involving Chavez and another individual, Jose Hernandez. Based on his investigation, Rouch learned the victim of the shooting had previously testified against a member of the Mexican Klan Locos subset. Rouch was unsure if Jose Hernandez was a member of Mexican Klan Locos or if he was a member of the Dukes subset.
Robert Burnes, who previously worked as a police officer at the King City Police Department, testified that sometime between March 1999 and April or May 2000 he investigated an assault with a deadly weapon and a battery that involved Chavez. Based on his investigation, Burnes determined the crime was gang-related, and he believed it was the type of crime committed by "Sureno criminal street gangs" at the time. The victim in the case was a Norteno member.
King City Police Department Officer Ricardo Robles testified he remembered he assisted Officer Baker with a booking and a probation search in April 2000. The probation search was conducted on Daniel Andrade, a known Sureno member affiliated with the Dukes subset. During the probation search, Robles and Baker recovered photographs, and Baker told Robles that the photographs depicted other gang members from other Sureno subsets in the area, including Mexican Klan Locos. Baker also told Robles that defendant was in one of the photographs. Robles also participated with Baker in a probation search of a member of Mexican Klan Locos in October 1999. In that search, Robles and Baker recovered photographs depicting defendant. None of the photos were admitted into evidence, and Robles did not describe in detail what the photos depicted.
Officer Robles did not provide Officer Baker's first name.
Officer Smith testified about an offense committed by Cesar Gomar, a Sureno gang member, in August 2012. Smith did not identify if Gomar was a member of a particular Sureno subset. After reviewing a police report, Officer Smith opined Gomar's crimes were typical of gang members. Gomar was convicted of carrying a loaded firearm in a vehicle and a gang enhancement. The information alleged Gomar committed the crime in Monterey County.
Officer Smith also reviewed the police report of a crime committed by Johnny Calderon, a Sureno gang member, in May 2011. Again, Smith did not identify if Calderon was a member of a particular Sureno subset. Calderon pleaded guilty to assault and being an active gang member. After reviewing a police report, Smith opined Calderon's crimes were typical of the types of crimes that Sureno gang members are involved in. The information alleged the crime was committed in Monterey County.
Officer Smith also testified about an attempted murder committed by Daniel Orozco and Orozco's conviction for the offense. Smith testified after he reviewed his own police report summarizing the crime. After he refreshed his memory with his report, Smith testified this was the type of crime that Surenos were typically involved in. He did not specify if Orozco was a member of a particular Sureno subset, but he recalled that Orozco was a Sureno member in King City. The information alleged Orozco committed the crime in Monterey County.
iii. Additional Testimony on Defendant's Previous Gang-Related Crimes
District Attorney Investigator Michael Hoier testified he had previous contacts with defendant when he was employed by the San Luis Obispo County Sheriff's Office in the gang task force. In July 2007, Hoier visited defendant at his home in San Luis Obispo County for a parole compliance check. From his conversation with defendant, Hoier learned defendant was one of the original members of Mexican Klan Locos. Defendant told Hoier the gang started in the early 1990s in King City. Sometime after his conversation with defendant, Hoier noticed tagging around the area claiming Mexican Klan Locos affiliation. High school-age juveniles also began claiming affiliation with a gang out of King City.
Later, Hoier investigated defendant for committing an assault on a neighbor in San Luis Obispo County sometime in 2007. Based on his investigation, Hoier believed the assault was gang related. At the time of the assault, defendant was with another gang member. Hoier believed the victim in the case hesitated to come forward for fear of retaliation.
iv. Gang Expert Testimony
The prosecution called Officer Smith to testify generally about gangs in the area. Smith was currently assigned to a gang suppression unit with the Greenfield Police Department. As a result, he had special training that included 90 hours of gang related education. He also learned about gangs from more senior gang officers, other gang experts, and community members. Smith taught gang awareness classes for his department and for the community police academy.
According to Officer Smith, the Mexican Mafia, which is associated with the Surenos, is the "premier[] southern gang in California." The primary rival gang of the Mexican Mafia is the Nuestra Familia, which is associated with the Nortenos. The overriding goal of both gangs with the public is to instill fear so witnesses will not come forward and victims will not report crimes. According to Smith, respect is important for both Surenos and Nortenos; the more respect a gang member has the more a gang member is elevated within the gang.
Officer Smith was familiar with gang tattoos, which he described as a "silent commitment" to the gang. Smith had seen defendant's tattoos, several of which he identified as gang related, such the word "SUR," which could be used to refer to Surenos, "City of King," which referred to defendant's hometown, and the number "13," which referred to the 13th letter of the alphabet (M). Defendant also had a tattoo that said "MKL," which Officer Smith believed indicated his allegiance to the Mexican Klan Locos subset. Officer Smith believed defendant's tattoos were a factor to be considered when determining defendant's gang affiliation. He believed defendant was one of the founding members of the Mexican Klan Locos subset.
Officer Smith was present in court when the other officers, including Detective Rouch, Robert Burnes, and Officer Robles, testified about predicate offenses committed by Mexican Klan Locos members and other Sureno members. Based on their testimony, Smith surmised that defendant was "associated with and has been arrested with other sects of Sureno gang members." He also opined that Mexican Klan Locos affiliated itself with other Sureno subsets in the area. Smith did not know how many Mexican Klan Locos gang members there were in King City, but he estimated there were probably several hundred Sureno gang members and associates in the area. Smith described King City as dominated by Surenos. Nortenos are prominent in Greenfield, but there is a small pocket of Sureno members that live there.
According to Officer Smith, the bar that was the scene of the crime, El Paraiso, was frequented mostly by Norteno members and associates.
3. Defendant's Case
Defendant testified on his own behalf. He was born and raised in King City and had last been released from prison in 2011. He was living with his wife and children in San Luis Obispo County at the time of the crime and had been working toward becoming an electrician.
Defendant admitted he started participating in gangs in 1994, when he was around 14 years old. In 2003, when he was incarcerated for an unrelated offense, he made a decision to stop participating in gang activity. The last tattoo he received was from 2011 during his most recent incarceration. Defendant claimed he was a gang dropout.
Defendant admitted he knew Chavez, a coparticipant in one of his prior convictions, and explained they were from the same gang subset, Mexican Klan Locos. However, he denied knowing Joshua Hernandez, the Sureno gang member whose assault was offered as evidence of motive. Defendant briefly discussed his 2007 assault conviction that Hoier had testified about. Defendant insisted the assault was not gang related. In fact, the 2007 assault was not charged as a gang crime.
The day of the shooting at the El Paraiso bar, defendant had been with his mother in Atascadero. He later went to a cousin's house in Greenfield for a baptism. Defendant knew that Sureno gang members were a minority in Greenfield so he was nervous about being in Greenfield because of his tattoos. While at his cousin's house, he attended a barbeque that was attended by other men. Some of the men started talking about cartels and mentioned names of "big people" that defendant knew from when he was younger.
Several of the men asked defendant to join them to get beers. One of the men told defendant that the bar they were going to was under his "power," so not to worry. Defendant was not armed and did not believe that any of the other men were armed. As they walked toward the bar, one of the men stopped to urinate against a wall. Defendant stayed behind with him as the other men continued ahead. Defendant and the other man started walking again and turned a corner. As they turned a corner, defendant heard gunshots. The shots were fired before defendant even reached the bar. Defendant dropped to the ground and stayed on the ground until he stopped hearing shots. He ran and stopped when he saw a patrol car "hit the wall." He did not see where any of the other men ran after the shots were fired.
A police officer told defendant to freeze and put his hands up, and defendant complied. Defendant told the officer not to disrespect him, because the officer put his knee in defendant's face during the arrest. Defendant said "fuck me" in the patrol car, because he knew he was in a bad situation and nobody would believe his side of the story. Defendant denied shooting anyone that night. He also denied having a gun or having a gun magazine in his pocket.
4. The Verdict and Sentencing
During its deliberation, the jury asked the court several questions, including if it could "stop on an enhancement without having a unanimous vote" and resolve to find the enhancement to be "not true." The court instructed the jury that all verdicts, including enhancements, must be unanimous.
Thereafter, the jury convicted defendant of all charges and enhancements as alleged in the second amended information. With regards to the gang enhancement, the jury found defendant committed the murder for the benefit of, or at the direction of, or in association with "the Sureno criminal street gang." On March 8, 2016, the trial court sentenced defendant to an indeterminate term of 100 years to life. The trial court imposed a term of 75 years to life for the conviction of premeditated murder, a consecutive term of 25 years to life for the firearms enhancement imposed under section 12022.53, subdivision (d), a consecutive life term for the gang enhancement imposed under section 186.22, subdivision (b)(1), and stayed the terms for all other enhancements, including a term of 25 years to life for the second firearm enhancement under section 12022.53, subdivision (e). Defendant appealed.
DISCUSSION
1. Sufficient Evidence Supports the Gang Enhancement
Defendant admits there was sufficient evidence that he was one of the founding members of Mexican Klan Locos, a Sureno subset. Defendant, however, argues the People failed to prove that Mexican Klan Locos is an "ongoing organization" that committed the requisite "pattern of criminal activity" as required under section 186.22, subdivision (a). The People disagree, arguing the prosecution did not need to prove Mexican Klan Locos was a gang by itself, since the theory of the case was that defendant was a member of the overarching Sureno gang in the King City area. As we explain in detail below, we agree with the People and find the prosecution presented sufficient evidence that defendant was a member of the overarching Sureno gang operating in the King City area. Thus, sufficient evidence supports defendant's gang enhancement.
a. Standard of Review
Defendant challenges the sufficiency of the evidence supporting his gang enhancement conviction. In reviewing a challenge to the sufficiency of the evidence, we must " ' "review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848-849 (Hill).) In so doing, we do not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
b. Overview of the STEP Act
Section 186.22, which is also known as the Street Terrorism Enforcement and Prevention Act (the STEP Act or the Act), imposes punishments on individuals who commit gang-related crimes, including a sentencing enhancement for those who commit felonies "for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b).)
The STEP Act defines "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e) [of the Act], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)
"The phrase 'primary activities,' . . . implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. . . . [¶] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . . . ." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324.)
A " 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [offenses set forth under section 186.22, subdivision (e)(1)-(33)], provided at least one of these offenses occurred after the effective date of [the STEP Act] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).)
"To prove that a criminal street gang exists in accordance with these statutory provisions, the prosecution must demonstrate that the gang satisfies the separate elements of the STEP Act's definition and that the defendant sought to benefit that particular gang when committing the underlying felony." (People v. Prunty (2015) 62 Cal.4th 59, 67 (Prunty).)
c. The Prosecution's Theory of Guilt was that Defendant Committed the Crime to Benefit the Overarching Sureno Gang in King City
Preliminarily, the parties dispute whether the prosecution's theory of the case was that defendant committed the crime to benefit the overarching Sureno gang operating in the King City area or if he committed the crime to benefit only Mexican Klan Locos, a smaller subset of the overarching Sureno organization. Despite some ambiguity in the record, we believe the theory advanced by the prosecutor below was that defendant sought to benefit the overarching Sureno gang in King City, which is made up of multiple subsets including Mexican Klan Locos.
First, we note the second amended information alleged defendant committed the crime for the benefit of "A Sureno Criminal Street Gang," which defendant argues is a reference to Mexican Klan Locos. However, "a Sureno Criminal Street gang" could also be a reference to a larger, overarching Sureno gang, composed of various subsets, operating in the King City area. The second amended information is worded differently than the jury's verdict form, which states that defendant was found guilty of committing the crime for the benefit of "the Sureno criminal street gang." "The Sureno criminal street gang" can be interpreted as the overarching Sureno gang in King City. However, it could also be interpreted as a reference to the Sureno subset, Mexican Klan Locos. Thus, we do not believe either the information or the verdict form provided much insight into the prosecutor's theory of guilt.
We believe much of the ambiguity stems from the prosecutor's statements at trial. During his opening statement, the prosecutor specifically stated he intended to prove defendant was a member of Mexican Klan Locos. However, the prosecutor also stated during his opening statement that defendant began his gang activity and gang career in King City, where the vast majority of gang members are Surenos. During hearings on motions in limine, the prosecutor reiterated it was going to prove defendant was affiliated with Mexican Klan Locos and initially indicated to the court that it would be providing evidence of predicate offenses committed by Mexican Klan Locos members in an effort to overcome "any potential issue" that could arise from Prunty, which the Supreme Court had recently decided. In his closing argument, the prosecutor urged the jury to find defendant guilty, arguing that he had produced sufficient evidence showing defendant was a member of Mexican Klan Locos.
Although the prosecutor repeatedly described defendant as affiliated with Mexican Klan Locos, we believe the prosecutor interchangeably used the terms "Mexican Klan Locos" and "Surenos." Notwithstanding the prosecutor's statements, we have gleaned from the record that the prosecutor presented evidence attempting to prove defendant was a Sureno who affiliated with the Mexican Klan Locos subset and the overarching Sureno gang in the King City area, not just that he was a member of Mexican Klan Locos. The prosecutor asked Detective Rouch, who testified generally about Sureno subsets in King City, including Mexican Klan Locos, whether the Sureno subsets in the area were intertwined. The prosecutor also asked its main gang expert, Officer Smith, about the history of Surenos and whether defendant's tattoos showed an allegiance to Mexican Klan Locos and to the primary gang of Surenos. The prosecutor also asked Smith if the "Surenos"—not Mexican Klan Locos—are an ongoing organization.
Thus, it appears the prosecution sought to prove that defendant was a Sureno—an overarching gang that was comprised of multiple subsets within the King City area—who specifically claimed membership in the Mexican Klan Locos subset. We therefore disagree with defendant that the prosecutor intended to prove Mexican Klan Locos by itself was a criminal street gang.
In his reply brief, defendant argues we cannot analyze whether substantial evidence supports the prosecution's theory that Mexican Klan Locos is intertwined with other Sureno subsets in the King City area since the prosecution did not try its case on this theory. As we have already discussed, we believe that given the evidence adduced at trial, the prosecution did try its case on this theory.
d. Sufficient Evidence of an Overarching Sureno Gang
We now turn to the merits of defendant's sufficiency of the evidence argument. As we explain below, we find there was sufficient evidence supporting all the elements necessary to establish the existence of an overarching Sureno criminal street gang in the King City area.
First, Officer Smith testified that the Sureno gang in King City consisted of at least 200 members, with a handful of Sureno members living in Greenfield. Smith further testified that the primary activity of the Sureno gang is to engage in criminal activity such as murder, shooting at an inhabited dwelling, assaults, and possession of firearms. We believe this testimony is sufficient to establish the Sureno gang in the King City area as a "group of three or more persons . . . having one of its primary activities the commission of certain offenses enumerated in subsection (e)" of section 186.22. (§ 186.22, subd. (f); see id., subds. (e)(1) [assault with a deadly weapon or by means of force likely to produce great bodily injury], (e)(3) [homicide], (e)(5) [shooting at an inhabited dwelling], (e)(31) [prohibited possession of a firearm].)
Officer Smith also testified that Sureno gangs affiliate themselves with the Mexican Mafia, basing their ideologies off that organization. He testified that regardless of subsets, Sureno gangs associate with the number 13, and tend to align themselves with the color blue and southern sports teams. This testimony was sufficient to establish that the overarching Sureno gang in the King City area has a "common identifying sign or symbol." (§ 186.22, subd. (f).)
Defendant argues the prosecutor failed to provide sufficient evidence of predicate offenses as set forth in our Supreme Court's decision in Prunty. In Prunty, the defendant identified as a Norteno and claimed membership in a particular Norteno subset, Detroit Boulevard. (Prunty, supra, 62 Cal.4th at pp. 67, 68.) At trial, the prosecution's gang expert testified about the "the Sacramento-area Norteno gang's general existence and origins, its use of shared signs, symbols, colors, and names, its primary activities, and the predicate activities of two local neighborhood subsets." (Id. at p. 67.) The Prunty court held that where the prosecution's evidence fell short was with the predicate offenses. (Id. at p. 82.) The prosecution had introduced evidence of predicate offenses involving three Norteno subsets in the Sacramento area—Varrio Gardenland Nortenos, Del Paso Heights Nortenos, and Varrio Centro Nortenos. (Ibid.) The prosecution also introduced evidence all three of these subsets were Norteno subsets but did not provide evidence connecting the groups to each other or to any overarching Sacramento-area Norteno gang. (Ibid.)
The California Supreme Court concluded the gang expert "never addressed the Norteno gang's relationship to any of the subsets at issue. . . . Instead, [he] simply described the subsets by name, characterized them as Nortenos, and testified as to the alleged predicate offenses." (Prunty, supra, 62 Cal.4th at p. 83.) Furthermore, even though the expert testified generally about how the Nortenos are associated with the Nuestra Familia prison gang, he did not provide testimony about the relationship between Nuestra Familia shot callers with the Sacramento-area Norteno gang subsets. The court concluded the expert's testimony failed "to permit the jury to infer that the organization, association, or group at issue included the subsets that committed the predicate offenses." (Id. at p. 81.)
Prunty held that when "the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization." (Prunty, supra, 62 Cal.4th at p. 71.)
Prunty applies specifically "where the prosecution's theory of why a criminal street gang exists turns on the conduct of one or more gang subsets, not simply to those in which the prosecution alleges the existence of 'a broader umbrella gang.' " (Prunty, supra, 62 Cal.4th at p. 71, fn. 2.) In other words, Prunty's application is limited to the narrow circumstances where the prosecution attempts to show that " 'multiple subsets of [a gang] may be treated as a whole' under section 186.22[, subdivision] (f)," which is "not premised upon the existence of a broader 'umbrella' group." (Ibid.)
In People v. Pettie (2017) 16 Cal.App.5th 23 (Pettie), this court considered the sufficiency of the evidence supporting the claim that the Nortenos were a unitary gang under Prunty. In Pettie, the prosecution's theory at trial was that the Norteno gang was the criminal street gang at issue for the purposes of section 186.22. (Pettie, supra, at p. 48.) The prosecution's gang expert testified about the number of members of the Norteno gang in California, opined that the gang's main purposes include the commission of various crimes, and explained that the gang's members identify with certain colors and symbols. (Ibid.) The expert further testified about various geographically distinct cliques with whom Nortenos associate, but also testified that the Nortenos as a whole constituted a gang under section 186.22. (Pettie, supra, at p. 48.) With respect to predicate offenses, the expert testified to numerous qualifying predicate offenses committed by Norteno members that were not identified as members of any particular subset. (Id. at p. 49.)
The defendants in Pettie, like defendant here, raised a challenge to the sufficiency of the evidence, arguing that the prosecution was required to show some nexus between the subsets discussed by the expert and the Norteno gang. (Pettie, supra, 16 Cal.App.5th at p. 49.) We rejected this argument, noting that evidence of some nexus between the subsets was necessary in Prunty because the expert in that case failed to provide evidence to show the subsets were either connected to each other or to the broader Norteno gang. (Ibid.) In contrast, the Pettie defendants' arguments had no merit, because "the prosecution's theory was that the defendants were Nortenos, not members of a subset gang." (Ibid.) Moreover, the prosecutor presented evidence of predicate offenses that were all committed by members of the umbrella Norteno gang for the benefit of that gang, not for particular subsets. (Id. at p. 50.) The prosecutor also presented expert testimony detailing the primary activities of the Norteno gang as a whole, not for particular subsets. (Id. at p. 49.) Thus, we concluded in Pettie that sufficient evidence supported the existence of a broader Norteno gang, and "neither the existence of [particular] cliques nor the connections between them were necessary to prove the gang-related charges and allegations . . . ." (Id. at p. 50.)
Other courts have also examined the applicability of Prunty. In People v. Nicholes (2016) 246 Cal.App.4th 836 (Nicholes), the evidence showed the defendant was a member of the Nortenos generally and a specific subset, Oak Park Nortenos, from Sacramento. (Id. at p. 845.) At trial, the prosecution's gang expert testified as to two predicate offenses involving members of what it characterized as the " 'Norteno criminal street gang.' " (Id. at p. 846.) However, the expert was a member of the Yuba City Police Department, rendering it likely the predicate offenses were committed by members of the subsets he had identified as operating in that area in Sutter County—which did not include the Oak Park Nortenos subset. (Ibid.)
In Nicholes, the prosecution argued Prunty was inapplicable because the prosecution below endeavored to prove the existence of an umbrella Norteno gang. (Nicholes, supra, 246 Cal.App.4th at p. 845.) The appellate court rejected this argument, finding it to be "at odds with our Supreme Court's statement that it 'granted review in [Prunty] to address the showing prosecutors must make when attempting to show that "multiple subsets of the Nortenos may be treated as a whole" under section 186.22[, subdivision] (f).' " (Ibid., quoting Prunty, supra, 62 Cal.4th at p. 71, fn. 2.) The Nicholes court then concluded the prosecution's evidence was insufficient under Prunty, because the expert gave no testimony regarding how the defendant's Norteno subset (the Oak Park subset) operated and did not specify which subset or subsets committed the predicate offenses. (Nicholes, supra, at p. 847.)
In our view, this case is more closely aligned with Pettie than it is to Nicholes. As in Pettie, the various officers who testified about gangs at defendant's trial provided evidence of the number of Sureno gang members in the King City area and the common symbols the overarching Sureno gang used. Moreover, the evidence of the predicates is sufficient. Some officers testified specifically about offenses committed by members of defendant's Mexican Klan Locos subset. However, Officer Smith, like the gang expert in Pettie, testified about predicate offenses committed by Sureno gang members that were not affiliated with a particular subset.
The appellate court in Nicholes found Prunty was implicated, because the testifying gang expert was from Yuba City, which suggested his testimony was limited to the subsets operating from that particular area, and that area did not include the Nicholes defendant's subset. (Nicholes, supra, 246 Cal.App.4th at pp. 845-846.) In contrast, the vast majority of the officers who testified here either had worked in or were from the King City area. Officer Smith worked at the Greenfield Police Department, but his testimony about the Sureno gang was inclusive of the Surenos operating in King City, which reasonably included defendant's Mexican Klan Locos subset. During his testimony, Smith described King City as dominated by Surenos and further described that Nortenos are dominant in Greenfield with a small pocket of Surenos. Thus, the implication in Nicholes—that the expert's testimony excluded the defendant's subset—is absent here. As a result, we find Prunty is inapplicable, and evidence of some nexus between the various subsets referenced at trial was unnecessary.
We now turn to the evidence of predicate offenses introduced by the prosecution at trial. To briefly summarize, evidence showed predicate offenses were committed on the following dates by gang members with the following affiliation: (1) May 2011, Johnny Calderon (Sureno), (2) August 2012, Cesar Gomar (Sureno), (3) June 2013, Daniel Orozco (Sureno), and (4) February 2014, defendant (Mexican Klan Locos) (the charged crime). A pattern of criminal gang activity means the commission of "two or more of the [specified] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).) Considering the charged crime to be a predicate offense, any combination of the charged crime with one of the three offenses attributed to Sureno gang members unaffiliated with particular subsets would be sufficient evidence of a pattern of criminal gang activity.
We acknowledge that the evidence presented at trial was by no means perfect. The prosecution's case was hampered in part by the prosecutor's interchangeable references between the Mexican Klan Locos subset and the greater King City area Sureno gang. Moreover, the evidence was presented by different witnesses—with some officers testifying specifically about the Mexican Klan Locos subset while others testified more generally about the umbrella Sureno gang. Nonetheless, our review of a claim for sufficiency of the evidence is guided by the principles that we must view the evidence in the light most favorable to the prosecution and determine if any rational trier of fact could have found the enhancement beyond a reasonable doubt. (People v. Jennings (2010) 50 Cal.4th 616, 638.) Based on the evidence presented at trial, we believe a reasonable jury could have found true the fact that the King City area Sureno gang constituted a criminal street gang. Thus, sufficient evidence supports defendant's gang enhancement under section 186.22, subdivision (b)(1).
2. Defendant Forfeited His Arguments Pertaining to Testimonial Hearsay and Regardless, He Has Not Demonstrated Prejudice
Defendant argues the trial court erred when it admitted testimonial hearsay in violation of the Confrontation Clause of the Sixth Amendment, citing People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Defendant claims the court erroneously admitted the testimony of the officers who described the assaults against Saul Delgadillo and Joshua Hernandez, which the prosecution introduced as motive evidence. He also argues the court erred in admitting approximately 18 other hearsay statements from Officer Smith and several other officers who testified at his trial.
a. Overview and Standard of Review
Hearsay is an out of court statement that is offered for the truth of its content. (Evid. Code, § 1200, subd. (a).) Hearsay is generally inadmissible unless it falls under an exception provided by law. (Id., subd. (b).) For example, under the spontaneous statement exception, a statement is not inadmissible under the hearsay rule if the statement narrates or describes an act, condition, or event perceived by the declarant and the statement was made while the declarant was under the stress of excitement caused by his or her perception of the act, condition, or event. (Evid. Code, § 1240.)
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford).) This bar applies only to testimonial statements; the admission of nontestimonial statements is subject to hearsay rules but are not subject to exclusion under the Confrontation Clause. (Id. at p. 53.)
In Sanchez, the California Supreme Court described that "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? If a hearsay statement is being offered by the prosecution in a criminal case, and the 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, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
"In Davis v. Washington [(2006)] 547 U.S. 813, the court explained the difference between testimonial and nontestimonial statements made to the police. 'Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.' " (People v. Livingston (2012) 53 Cal.4th 1145, 1158-1159.)
Sanchez held that case-specific statements made by a gang expert constituted inadmissible hearsay when it was not established that the defendant had a prior opportunity for cross-examination and that the declarant was unavailable. (Sanchez, supra, 63 Cal.4th at p. 686.) Sanchez also held that "statements about a completed crime, made to an investigating officer by a nontestifying witness . . . are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Id. at p. 694.) Thus, Sanchez concluded that the information in a field identification card memorializing police contact with gang-related individuals would be testimonial if it was generated during the course of an ongoing criminal investigation, because it would be akin to a police report. (Id. at p. 697.)
We review de novo whether a statement is testimonial and implicates the Confrontation Clause. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.) However, we apply the abuse of discretion standard of review to the trial court's rulings on the admissibility of evidence, including hearsay. (People v. Waidla (2000) 22 Cal.4th 690, 723.)
b. Background
i. The Court's Pretrial Statements on Hearsay And The Confrontation Clause
Prior to trial, the court made several statements to the prosecution and the defense, explaining its position on the use of out of court statements during the trial. Specifically, the court stated it believed that officers could properly testify about matters if they were "the percipient witness," but they could not testify about statements made by victims unavailable to testify at trial.
ii. Saul Delgadillo
As we previously described, Delgadillo was served a subpoena but failed to appear to testify at defendant's trial. Over defendant's objection, the court permitted Greenfield Police Department Officer Michael Rice to testify about his investigation into Delgadillo's assault.
Officer Rice testified he responded as a patrol officer to the scene of the crime. According to Rice, he arrived less than a minute after he received the initial dispatch call. He saw Delgadillo at a residence seated on a chair holding a bloody towel to his chin and facial area. Another officer, who had arrived seconds before Rice, was already with Delgadillo. Rice said he went out to secure the crime scene and search for evidence.
Officer Rice said he was only a few feet away from Delgadillo when Delgadillo spoke to the other officer about what had happened. Delgadillo said he was walking northbound on a street with a female companion when a car pulled up next to him. Someone in the car called out to Delgadillo, so he walked over. Then, someone in the car shot him in the face.
iii. Joshua Hernandez
The assault against Joshua Hernandez was also offered by the prosecution as motive evidence against defendant. First, Officer Rey Medeles testified that he investigated a shooting involving Hernandez the day before Guajardo's murder. Medeles explained that Hernandez had driven himself to the hospital after he was shot, and he talked to Hernandez personally at the hospital.
Officer Medeles explained he did not have prior contacts with Hernandez, but he knew who he was based on his position with the department as a detective who put together CalGRIP operations. Medeles explained that CalGRIP is a multijurisdictional operation where officers go out and conduct probation and parole contacts. Various police departments share information using CalGRIP. Medeles surmised from the information he knew from CalGRIP that Hernandez was an active Mexican Klan Locos member. His observation of Hernandez's tattoos when he visited the hospital confirmed his belief that Hernandez was an active Mexican Klan Locos member. Hernandez had a tattoo that said "Klanderos" on his chest, which Medeles explained was a moniker for Mexican Klan Locos.
Officer Paul Charupoom also testified about the assault on Hernandez. According to Charupoom, he was the first to arrive at the scene after he received a dispatch call about shots fired. When he arrived, a man told him he had seen someone wearing dark clothing run down a nearby alleyway. Chraupoom walked down the alleyway for about 60 feet until he heard a female voice saying she wanted to leave. He also heard on the police radio that the victim may be on a different street. Charupoom walked back out of the alleyway toward his patrol car. The woman who said she wanted to leave was standing in her front yard. Charupoom told her not to leave until she was contacted by other officers. The woman did not listen to Charupoom and left.
Officer Charupoom went to the street where he believed the victim of the crime may be. While he was there, he spoke with a witness who described what he had seen. The witness told Charupoom that he saw a man in a backyard run back toward a house after the shooting. The man knocked on a backdoor and yelled for someone to open it. The man then knocked on a sliding glass backdoor. A woman opened the door, and the man walked in. The witness saw the man's lower leg area was bleeding. Charupoom searched the area and saw red blood stains along the doorway of the house in question and by the sliding glass backdoor. He also observed bullet holes in the fence line. Charupoom later learned that Hernandez lived at that house.
c. Defendant's Confrontation Clause Arguments are Either Forfeited or Lack Merit
i. Saul Delgadillo's Hearsay Statements
First, defendant argues the court erred when it permitted Officer Rice to testify about the statements made by Delgadillo following the assault. Defendant argues Rice did not initially hear the statement made by Delgadillo when he first arrived at the scene, and Rice was processing the evidence outside when he overheard Delgadillo's later statements to another officer. Thus, defendant argues the statements made by Delgadillo to the other officer were primarily made to establish or prove past events relevant to a later criminal prosecution and was testimonial hearsay.
The People argue defendant ignores the fact that the court admitted Officer Rice's statements under the spontaneous statement hearsay exception under Evidence Code section 1240. The People, however, confuse defendant's argument. Under Crawford, the Confrontation Clause reaches all out of court statements, including hearsay admissible under a hearsay exception, unless the statements are nontestimonial. (Crawford, supra, 541 U.S. at p. 51.) Thus, even if Officer Rice's statements were admissible hearsay under the exception for spontaneous statements, they could still be barred under the Confrontation Clause if they were testimonial.
Prior to Crawford, the Confrontation Clause barred admission of out of court statements offered for the truth if the declarant was unavailable for cross examination unless the statement bore "adequate 'indicia of reliability,' " such as if the evidence fell within a "firmly rooted hearsay exception" or if the evidence otherwise had "particularized guarantees of trustworthiness." (Ohio v. Roberts (1980) 448 U.S. 56, 66, overruled by Crawford, supra, 541 U.S. 36.)
However, we find defendant's claim is without merit. Defendant argues Officer Rice did not initially hear the statement made by Delgadillo, and only later heard a statement he made to an officer. By that point, defendant posits the statements were testimonial. We believe defendant misinterprets the record.
Defendant correctly states that Officer Rice testified he did not hear the first part of Delgadillo's initial statement, which was made to the other officer who had arrived at the scene. However, defendant's analysis omits the details Rice gave to the court establishing the circumstances surrounding Delgadillo's statements. Rice described that he arrived at the scene of the crime minutes after he received the dispatch call. Another officer had arrived only seconds before him. At the time he made his statements, Delgadillo was being medically treated for his injury. Rice explained that none of the officers at the scene knew what had happened. He expressly stated the primary purpose of his contact with Delgadillo was to ascertain the extent of Delgadillo's injuries and determine where and how the injuries had been sustained. According to Rice, he was standing only a few feet away from Delgadillo when he answered the other officer's questions. There is no indication a significant amount of time elapsed between his arrival on the scene and Delgadillo's statements about the shooting.
In Davis v. Washington, supra, 547 U.S. 813, the Supreme Court held that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicting that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822.)
Based on Officer Rice's testimony, we find the circumstances of Delgadillo's statements reflect the primary purpose of the officers' questions was to respond to an ongoing emergency. Thus, the statements were not testimonial and their admission did not violate defendant's right to confrontation.
ii. Hearsay Statements About Joshua Hernandez's Assault
Next, defendant argues the statements made by Officer Medeles and Officer Charupoom recounting the assault against Joshua Hernandez and establishing his gang affiliation were also testimonial hearsay which should have been excluded.
We find defendant's arguments have not been preserved for appeal, because he failed to object to the challenged testimony on Confrontation Clause grounds. (Evid. Code, § 353, subd. (a); People v. Redd (2010) 48 Cal.4th 691, 730 [failure to object below on Confrontation Clause grounds forfeits claim of error].) Defendant challenged Officer Medeles's testimony about CalGRIP on the basis of hearsay, not confrontation. Similarly, he objected to Officer Charupoom's testimony on the basis of hearsay alone.
Even if we were to reach the merits of defendant's claims, we would reject them. Defendant argues Officer Medeles's testimony constituted multi-level hearsay and revealed that Hernandez was on probation or parole and was a target of a CalGRIP operation to suppress crime. We agree with defendant that case-specific information about Hernandez that was obtained from other officers' interactions with him may be testimonial, and inclusion of this evidence would have violated defendant's right to confrontation. (Sanchez, supra, 63 Cal.4th at p. 676.)
However, even assuming Officer Medeles's testimony was erroneously admitted, defendant has failed to demonstrate prejudice. The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard set forth under Chapman v. California (1967) 386 U.S. 18. (Sanchez, supra, 63 Cal.4th at pp. 670-671.) Officer Medeles also testified about his own interactions with Hernandez at the hospital and his observations of his tattoo, which supported his opinion that Hernandez was a gang member. This testimony was not inadmissible on Confrontation Clause grounds, because Medeles was testifying from his own personal knowledge and was subject to cross-examination at trial. (Id. at pp. 676, 680.) Thus, Medeles's references to information gleaned from CalGRIP was merely duplicative of the same information Medeles provided from his personal knowledge and was marginally probative. The implication that Hernandez had been the subject of CalGRIP operations was also not prejudicial. Certainly, this information painted Hernandez in a negative light. The evidence, however, did not bear on defendant's character or guilt.
Likewise, even if Officer Charupoom's statements were erroneously admitted, their admission was harmless. Charupoom's testimony recounted the statements made by a witness to Hernandez's assault. The witness merely stated that he had seen an individual who was bleeding from his lower leg area run to the backyard after the shooting and had heard the individual yell for someone to open the back door. Aside from the witness's out of court statement, Charupoom testified about his own investigation of the assault. He observed blood stains in the doorway of the home in question and bullet holes in the fence line of the house. Charupoom's observations from his investigation into the assault was based on his own personal knowledge and was admissible. (Evid. Code, § 702.) The statements made by the witness did not add much additional information. Thus, inclusion of the testimony was harmless beyond a reasonable doubt.
iii. Other Instances of Hearsay
Lastly, defendant lists 18 separate instances in his opening brief where he believes the trial court erroneously permitted hearsay testimony in violation of his Sixth Amendment rights. Defendant, however, fails to provide analysis regarding each alleged instance. Although the People respond and provide argument regarding the challenged statements, we decline to reach the merits of defendant's claims. Issues not supported with reasoned argument and analysis may be deemed forfeited. (People v. Clayburg (2012) 211 Cal.App.4th 86, 93.) Thus, we find defendant has forfeited his argument pertaining to the admission of the other instances of alleged testimonial hearsay.
We do, however, note that defendant argues the prosecution never proved the facts underlying the three predicate offenses committed by unaffiliated Sureno gang members in the King City area that were not identified by particular subsets: May 2011, Johnny Calderon (Sureno); August 2012, Cesar Gomar (Sureno); June 2013, Daniel Orozco (Sureno). As stated in our recitation of the facts, Officer Smith, the prosecution's gang expert, testified about these three predicate offenses. Even assuming it was error to admit Smith's testimony on the subjects, the certified records of these convictions were admitted into evidence and were admissible under the hearsay exception under Evidence Code section 452.5. (People v. Duran (2002) 97 Cal.App.4th 1448, 1461.) Moreover, appellate courts have concluded that certified records of conviction are not testimonial under Crawford. (People v. Meraz (2016) 6 Cal.App.5th 1162, 1176, fn. 10, review granted Mar. 22, 2017 (S239442).) Our review of the certified records of conviction reflect that at the least, Gomar's record of conviction contains evidence of his Sureno affiliation. Thus, defendant's claim that all of these facts were not proven by competent, admissible evidence would fail. Moreover, our review of the record reflects defendant did not object when Smith testified about these predicate offenses on the grounds on hearsay or confrontation, forfeiting his claims. (People v. Redd, supra, 48 Cal.4th at p. 730 [failure to object below on Confrontation Clause grounds forfeits claim of error].)
Given that Gomar's conviction occurred in 2012, evidence of Gomar's conviction coupled with defendant's charged offense would still satisfy section 186.22, subdivision (e)'s requirement of a pattern of two predicate offenses, the last of which occurred within three years of the prior offense.
3. The Court's Statements and Instructions on Hearsay Were Not Erroneous
Defendant acknowledges the trial court instructed the jury with the standard instruction on expert witness testimony (CALCRIM No. 332) and the standard instruction on the limited purpose of gang evidence (CALCRIM No. 1403). Defendant, however, argues the trial court "reverted to old ideas about gang hearsay" when it "overruled valid defense objections and admonished the jury twice that statements by witnesses who did not appear at trial were admissible but should not be considered for the truth."
a. Overview and Standard of Review
" 'A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.' " (People v. Moon (2005) 37 Cal.4th 1, 25.) "Even if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) "The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law." (People v. Posey (2004) 32 Cal.4th 193, 218.)
b. Background
During the trial, the trial court twice instructed the jury on the proper use of hearsay evidence. The first instance occurred when Officer Charupoom testified about his investigation of Joshua Hernandez's shooting. As we previously described, Charupoom testified he spoke with a witness at the scene of the shooting who told him he saw someone who was bleeding try to enter a nearby house. Defense counsel objected to Charupoom's testimony as inadmissible hearsay, which the court overruled after accepting the prosecutor's representation that it was not being admitted for the truth of the matter asserted.
Thereafter, the trial court made the following statement to the jury: "On occasion you'll hear objections that are made by either counsel. And when a hearsay objection is made they're saying that if there's a statement made by someone else that's not in court, that's hearsay, and it's not normally allowed in court for the truth of whatever that statement is. [¶] You've heard me go back and forth with the attorneys recently on some of these objections and I say, Is it offered for the truth of the matter? And when the answer is no, the statement can be received but you are not to consider it for the truth of the matter, it's just that the statement was made."
The second instance occurred when Officer Medeles testified about statements made between defendant and his wife following his arrest. Defense counsel objected to Medeles's testimony as hearsay, which the court overruled after finding it was being admitted to show the effect of his wife's statement on defendant, not for the truth of the matter asserted.
Thereafter, the court made the following statement to the jury: "So, again, we talked yesterday about hearsay and about the—there are occasions where hearsay is allowed to be presented into evidence. [¶] In this particular instance, the hearsay itself, so the statement itself that was made by the—[defendant's] wife, is not being offered—or cannot be considered by you for the truth of what is said in that, but basically it's . . . being offered to show the effect that it had on—and the result that it had on [defendant]—or the . . . resulting conduct by [defendant]."
c. The Trial Court's Statements Were Not Incorrect
Defendant argues the trial court's statements about how to treat hearsay—to "receive" it but not to consider it for the truth of the matter asserted—lowered the prosecution's burden to prove its case through competent evidence. Defendant argues the court's statements to the jury about the use of hearsay evidence are similar to the instructions that were rejected by the Sanchez court as both conflicting and confusing. As we explain, we reject defendant's claims and his reliance on Sanchez.
We have already discussed the Sanchez case at length in the preceding part of this opinion. To review, Sanchez discussed the hearsay and Confrontation Clause issues raised by the prosecution's gang expert, who had testified about case-specific facts obtained from field identification cards, STEP notices, and police reports. (Sanchez, supra, 63 Cal.4th at p. 684.) The gang expert in Sanchez had no personal knowledge of the case-specific facts. (Ibid.) Sanchez concluded that when the expert is not testifying in response to a proper hypothetical question and there is no other evidence supporting the case-specific facts to which the expert is testifying, it is clear the evidence is being offered to the jury to be considered as true. (Ibid.)
Like the jury here, the jury in Sanchez given the standard instruction about expert witness testimony (CALCRIM No. 332), which said that it " 'must decide whether information on which the expert relied was true and accurate.' " (Sanchez, supra, 63 Cal.4th at p. 684.) The trial court also gave the jury a limiting instruction, informing the jury that it could not consider the expert's statements concerning " 'the statements by the defendant, police reports, [field identification] cards, STEP notices, and speaking to other officers or gang members' " as " 'proof that the information contained in those statements was true.' " (Ibid.) Sanchez concluded that "[j]urors cannot logically follow these conflicting instructions. They cannot decide whether the information relied on by the expert 'was true and accurate' without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true." (Ibid.) Thus, Sanchez held that the court's limiting instruction could not avoid the hearsay and confrontation problems generated by such testimony. (Ibid.)
Defendant argues that like the trial court's instructions in Sanchez, the court's statements here regarding hearsay was inconsistent with CALCRIM No. 332. Thus, he argues the jury was not given "correct instruction to treat all hearsay as offered for the truth and also to disregard all hearsay which is not proven up by competent evidence." Sanchez, however, does not aid defendant. Here, the trial court admitted the statements and gave the limiting instruction in a vastly different context than in Sanchez. The officers that were testifying were not relaying "case-specific facts" and relying on hearsay statements that were offered for the truth of the matter asserted.
We agree with defendant that by definition, hearsay evidence is "offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) The court here, however, did not instruct the jury to consider all hearsay evidence not as proof that the statement is true. As the court acknowledged, certain out of court statements are admissible at trial if they are not being offered for the truth. These statements are not hearsay to begin with. The first time the court made its comments about hearsay, the prosecutor argued he was offering Officer Charupoom's statement not as proof that the statement was true. The second time, the court permitted Officer Medeles to testify about statements made by defendant's wife to show the impact the statement had on defendant.
We conclude the court's statements in these two contexts—that out of court statements should not be considered for the truth of the matter asserted when a hearsay objection is lodged, and the court determines the objection should be overruled because the evidence is not "hearsay"—were not incorrect. Thus, we find no merit in defendant's claim of prejudice, or in his claim that the court's statements conflict with CALCRIM No. 332.
4. The Court's Response to Jury Question About Unanimity Was Responsive
During its deliberation, the jury asked the court the following question: "With regard to an enhancement, if we find we cannot reach a consensus can we resolve that we find the enhancement is 'not true' and simply not in force. In other words, can we stop on an enhancement without having a unanimous vote?" The court notified the parties of the jury's question and responded, "All verdicts, including on enhancements, must be unanimous. This means that to return a verdict, all of you must agree to it. Jury Instr. 3550." Both the prosecutor and defendant's trial counsel signed the court's response. Defendant now argues the court's response was neither responsive nor neutral, because the court failed to tell the jury that if it was deadlocked it could return a blank verdict form.
a. Defendant Forfeited This Argument For Failing to Object Below
Preliminarily, we agree with the People that defendant has forfeited this claim of error. The record reflects defendant's trial counsel was informed of the jury's question, and his counsel signed off on the court's answer. No objection was made. "[C]ounsel's affirmative agreement with [a] court's reply to a note from the jury forfeits a claim of error." (People v. Salazar (2016) 63 Cal.4th 214, 248.) Thus, the claim has not been preserved for appeal.
b. Defense Counsel Did Not Render Ineffective Assistance of Counsel
In the alternative, defendant claims his trial counsel was ineffective for failing to object to the challenged answer below. We disagree and reject defendant's claim of ineffective assistance of counsel. An objection would have been meritless, and counsel is not obligated to make meritless objections.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
The People insist that here, the court properly and correctly instructed the jury on the requirement of unanimity. We agree. The jury specifically asked if it could find an enhancement "not true" in the absence of a consensus. Thus, the court's response to the jury's question was responsive, informing the jury that it needed to reach a unanimous decision on all verdicts and referring them to CALCRIM No. 3550. CALCRIM No. 3550 reiterates that verdicts must be unanimous, and "to return a verdict, all of you [jurors] must agree to it."
We reject defendant's characterization of the question as indicating the jury was leaning toward acquittal (or deadlocking) on an enhancement, or that it was conveying uncertainty as to the prosecution's burden of proof. Defendant's interpretation of the jury question differs from ours. In his view, the jury was not asking about the requirement of unanimity; rather, it was asking the court the proper way to fill out a verdict form if it was already deadlocked. Defendant argues the jury asked if it was okay to "stop on" an enhancement having a unanimous vote, inferring the jury was asking if it was permissible to stop deliberating and not return a verdict on an enhancement if jurors could not unanimously agree. This interpretation, however, ignores the first part of the jury's question, where it specifically asked if it could return a "not true" verdict without a unanimous decision. In context, we believe the jury's phrase "stop on an enhancement" meant it was contemplating stopping deliberations and returning a verdict of "not true" in the absence of unanimity.
Section 1138 requires a trial court to provide a deliberating jury with information it desires on points of law. (People v. Smithey (1999) 20 Cal.4th 936, 985.) We believe the trial court did that here. Thus, having found no error, we also find defense counsel did not render ineffective assistance for failing to make a meritless objection.
5. No Reversible Prosecutorial Misconduct Occurred
Defendant argues the prosecutor committed multiple instances of misconduct, and his trial counsel rendered ineffective assistance for failing to object below. He argues the prosecution interfered with the court's exercise of discretion in deciding whether to bifurcate the gang evidence, violated the court's pretrial and midtrial rulings on hearsay, argued facts not in evidence, misstated facts in evidence, and elicited inadmissible evidence of prior investigations into crimes committed by defendant and other Mexican Klan Locos members. We address each of his contentions below and explain why we reject them.
a. Overview and Standard of Review
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (Hill, supra, 7 Cal.4th at p. 819.)
"Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights—such as a comment upon the defendant's invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' " (People v. Rundle (2008) 43 Cal.4th 76, 157, disapproved on a different ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Reversal is required "only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 178.)
"[I]n order to preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection to the alleged misconduct and request the jury be admonished to disregard it." (People v. Seumanu (2015) 61 Cal.4th 1293, 1339 (Seumanu).) However, "[a] defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (Hill, supra, 17 Cal.4th at p. 820.)
Defendant acknowledges his trial counsel failed to object below to the claimed instances of misconduct. Thus, he claims to the extent any of his claims are forfeited, his trial counsel rendered ineffective assistance for failing to object. When reviewing his claims of ineffective assistance of counsel, we apply the same standard of review as we did for his prior claim of ineffective assistance in the preceding section of our opinion.
b. The Prosecutor Did Not Misrepresent Evidence When Arguing Against Defendant's Motion to Bifurcate the Gang Enhancement
First, defendant argues the prosecution deceived the court and misrepresented that the same evidence would be used to prove both the gang enhancement and the motive to commit the murder. Thus, he claims the prosecution interfered with the court's exercise of discretion on his pretrial motion to bifurcate the gang enhancement, which the court denied based on its mistaken belief.
i. Background
In his pretrial motion to bifurcate the gang enhancement, defendant argued the gang evidence would be overly prejudicial to the charged crime of murder. He noted there was no evidence that there were any gang slogans yelled at the time of the murder, and defendant was not wearing gang colors at the time of his arrest. He insisted that introduction of the gang evidence would permit the jury to hear impermissible character evidence and would allow the jury to infer that he has a disposition to commit crimes. Thus, he insisted bifurcation of the gang enhancement was necessary for him to receive a fair trial.
During the hearing on the motion, the prosecutor argued against bifurcation, pointing out that it believed the gang evidence was relevant to the motive for the crime. Specifically, the prosecutor stated: "[O]n the day before the killing . . . of Mr. Guajardo, Joshua Hernandez was shot. Joshua Hernandez is an MKL member and a friend of the defendant's. And on January . . . 23rd[,] a Saul Delgadillo, a Norteno gangster who lived in Greenfield, was shot. [¶] So . . . over this approximately ten-day period, we have three shootings that involve gang members and people—members of a gang. And I think that—I think the evidence will show that the motive for the final shooting and killing of Mr. Guajardo is a retaliation for the shootings that took place before. And so, Saul Delgadillo gets shot as a Norteno, then Mr. Hernandez gets shot as a Sureno, and now Mr. Guajardo is shot and killed in front of the bar. And I think that's integral to the facts of this particular case in justifying trying the gang enhancement together with the crime itself."
Afterwards, the trial court stated that based on the information gleaned from the trial briefs, the preliminary hearing, and the comments made by counsel, it had determined the motive for the shooting being presented by the prosecution was a series of gang shootings. Furthermore, it believed the same evidence being presented to establish a motive would also be used to establish the gang enhancement. It then denied defendant's motion to bifurcate.
ii. The Prosecutor's Statements Characterizing Its Offer of Proof Were Not Misconduct
Defendant argues the prosecution's offer of proof was intentionally deceptive, because at trial the prosecution was unable to prove that Joshua Hernandez was defendant's friend, the assaults on Hernandez and Delgadillo were unsolved with no known suspect, the prosecution's own gang expert opined that he did not have enough information to determine if the assault on Delgadillo was gang related, and the prosecution's gang expert would also opine there was no established history of Surenos shooting at Nortenos in Greenfield.
The People argue defendant's claims of misconduct are forfeited, because defendant failed to make a timely objection below. (Seumanu, supra, 61 Cal.4th at p. 1339.) However, as defendant points out, at the time the prosecution made its offer of proof, defendant had no way of knowing if the prosecution was misrepresenting the evidence it sought to present at trial. Thus, we find his claim of prosecutorial misconduct not forfeited for failing to object below.
Defendant's claim, however, lacks merit. Based on our review of the record, it is apparent the prosecution did proceed with introducing the assaults on Hernandez and Delgadillo as motive evidence. The prosecution also attempted to establish that the assaults were gang related, though it was unsuccessful in eliciting testimony from its gang expert, Officer Smith, confirming the nature of the assaults. As the People note, the prosecution's description of its use of gang evidence was also made before the trial court made clear its rulings on the exclusion of testimonial hearsay.
While discussing this claim in his opening brief, defendant also briefly argues the prosecution's failure to elicit evidence the three predicate crimes committed by Daniel Orozco, Cesar Gomar, and Johnny Calderon were related to Mexican Klan Locos also constitute misconduct. We would reject this claim for the same reason articulated here. Although the prosecution initially stated it intended to prove the three predicates were related to the Mexican Klan Locos subset, the statements were made prior to the court's pretrial rulings on the admissibility of testimonial hearsay from expert witnesses. Thus, defendant has not met his burden to show the prosecutor's statements with respect to these predicates were intentionally deceptive.
As a result, defendant fails to establish the prosecutor's statements were deceptive or reprehensible, constituting misconduct. (Hill, supra, 17 Cal.4th at p. 819.) For all intents and purposes, it appears the prosecution was unable to elicit all the evidence it had originally intended to elicit at trial. Defendant's claim of prosecutorial misconduct therefore fails.
c. The Prosecutor Did Not Violate Court Orders Excluding Hearsay
Next, defendant argues the prosecutor violated the court's pretrial orders excluding hearsay when he introduced District Attorney Investigator Michael Hoier's testimony regarding the assault committed by defendant in 2007 in San Luis Obispo County.
i. Background
At trial, the prosecutor called Investigator Hoier as a witness. Hoier testified that prior to his employment with the District Attorney's office, he was employed by the San Luis Obispo County Sheriff's Office as a deputy where he worked in the gang task force for seven years. During his tenure at the sheriff's office, he became familiar with defendant and personally investigated an assault perpetrated by defendant against a male victim who lived down the street from defendant.
Hoier opined that based on his investigation, he believed the assault was gang related. He recalled that defendant was associating with another gang member during the assault. He also believed defendant gained status and respect in the gang due to the violent nature of the crime. Hoier testified that gang members generally rely on status or respect, and the more violent a crime the more status they earn. Hoier also indicated the victim had been hesitant to report the assault. Defense counsel objected to Hoier's statement as hearsay, which the court overruled as the basis of Hoier's opinion. Hoier characterized the assault as an "assault with a deadly weapon."
Thereafter, the prosecution attempted to elicit additional information from Hoier about how he formulated his opinion that the victim of the assault was hesitant to report the crime. In response, Hoier testified briefly that the original report was made by the victim's girlfriend, who relayed the crime to a "CPS worker," and the "CPS worker" contacted Hoier and told him the victim was hesitant to come forward. Later, the victim himself came forward and expressed fear of retaliation. The court sustained defense counsel's objection to the statement and struck Hoier's testimony. The prosecutor again attempted to elicit information from Hoier about why he believed the crime was gang related and why he believed the victim was afraid to come forward. The prosecutor asked Hoier: "Don't tell us what [the victim] said, just what—what he said, it caused you to form some opinion about whether he would cooperate with you?" Hoier began to answer the question by stating "[the victim] said he was scared . . . ." Defense counsel objected to Hoier's testimony, and the trial court sustained the objection and struck Hoier's testimony recounting the victim's statement.
Subsequently, the prosecutor posed the following questions to Hoier: "[D]id you form the opinion . . . that he was concerned about continuing with prosecution?" Hoier answered yes. The prosecutor then asked: "And did you form an opinion as to why he felt that way?" Hoier answered, "For fear of retaliation." Defense counsel did not object to either of these questions.
ii. The Prosecutor's Questions Did Not Violate the Trial Court's Pretrial Rulings on Inadmissible Hearsay
Defendant characterizes the prosecutor's direct examination of Hoier as an attempt to introduce inadmissible hearsay and inadmissible lay opinion evidence in violation of the trial court's pretrial rulings precluding the admission of testimonial hearsay.
First, we find no merit in defendant's claim that the prosecutor's questions demonstrate a flagrant attempt to circumvent the trial court's earlier pretrial rulings on testimonial hearsay. " ' "It is, of course, misconduct for a prosecutor to 'intentionally elicit inadmissible testimony.' [Citations.]" [Citation.] Such misconduct is exacerbated if the prosecutor continues to attempt to elicit such evidence after defense counsel has objected.' [Citation.] However, a prosecutor cannot be faulted for a witness's nonresponsive answer that the prosecutor neither solicited nor could have anticipated." (People v. Tully (2012) 54 Cal.4th 952, 1035.)
The prosecution twice asked Hoier why he believed the victim was hesitant to come forward. At one point, the prosecution even admonished Hoier not to repeat what the victim said. The prosecutor cannot be faulted for Hoier's nonresponsive answer. Furthermore, each time Hoier answered by recounting the victim's statement, the trial court sustained defendant's objection and ordered the testimony stricken. Thus, even if there was misconduct, defendant cannot show prejudice.
Second, we find defendant's claim that the prosecutor intentionally elicited lay opinion testimony from Hoier was forfeited for defendant's failure to object below. (Seumanu, supra, 61 Cal.4th at p. 1339.) When Hoier testified about his belief the assault was gang-related, defendant did not object to the testimony either on the evidentiary basis that it was improper lay opinion or on the basis the prosecutor was committing misconduct by attempting to elicit inadmissible evidence. Thus, his argument is forfeited.
Even if we were to find the claim of prosecutorial misconduct is not forfeited, we would find defendant has failed to demonstrate prejudice. Aside from Hoier's testimony about the 2007 assault committed by defendant, the prosecutor introduced two other prior gang related convictions, one in August 2000 where he was convicted with Chavez and another in August 2001 where he was convicted with Rodriguez. Reversal is required "only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (People v. Breverman, supra, 19 Cal.4th at p. 178.) Given the evidence of defendant's gang connections—he also personally admitted he was a member of Mexican Klan Locos during his testimony at trial—we do not believe defendant has met his burden to demonstrate admitting Hoier's testimony was prejudicial.
d. The Prosecutor Did Not Argue Facts Not In Evidence And Misstate Facts
Defendant claims the prosecutor committed misconduct when he misstated the trial evidence and argued facts that were not in evidence during its closing argument. Specifically, defendant points to a part of the prosecutor's closing argument where he stated Officer Smith had described Mexican Klan Locos as an ongoing organization with more than three people. The prosecutor had explained that he believed Smith had testified there were several hundred members in King City alone. Defendant also points to the part of the prosecutor's closing argument where he stated Officer Charupoom had testified that he had spoken to a witness to Joshua Hernandez's shooting, and the witness had told Charupoom that he had seen someone "shoot over the fence . . . at Hernandez." Defendant insists both of these claims misrepresented the evidence presented at trial.
First, we find defendant's claim of prosecutorial misconduct on this ground has been forfeited for failing to object below. (Seumanu, supra, 61 Cal.4th at p. 1339.) No objections were made during the prosecutor's closing argument, and there is no indication that an admonition to the jury to disregard the challenged statements would not have been effective.
Furthermore, defendant's claim would fail on the merits. A prosecutor may not argue facts not in evidence. (People v. Velez (1983) 144 Cal.App.3d 558, 569.) However, a prosecutor can offer fair comment on and argue reasonable inferences from the evidence. (People v. Wharton (1991) 53 Cal.3d 522, 567.) As we previously discussed, the prosecution in this case pursued the theory that the Mexican Klan Locos subset was intertwined with the overarching Sureno gang in the King City area. Officer Smith had previously testified there were around 200 Sureno members in the King City area. In essence, the prosecution interchangeably referred to the overarching Sureno gang and to the Mexican Klan Locos subset in its argument and offered a fair comment that it believed it had proved Mexican Klan Locos was an "ongoing organization." This was not misconduct.
Additionally, the prosecutor's mischaracterization of Officer Charupoom's testimony did not prejudice defendant. Charupoom had already testified the assault on Hernandez was a shooting. The additional—though inaccurate—information offered by the prosecution about an individual shooting over a fence at Hernandez does not add much new information. The jury was also specifically instructed by the court that the attorneys' arguments were not evidence. "The presumptions that jurors understand and follow their instructions [citation] and do not draw the most damaging inferences from ambiguous arguments [citation] minimize our concern that the instant jury's verdict was influenced by a misapplication of the prosecutor's remarks." (People v. Shazier (2014) 60 Cal.4th 109, 150-151.)
e. The Prosecutor Did Not Intentionally Introduce Inadmissible Evidence of Prior Investigations Into Crimes Committed by Defendant and Mexican Klan Locos Members
Lastly, defendant argues the prosecutor committed misconduct when he introduced evidence without court approval of investigations into offenses and shootings that officers suspected were either attributed to defendant or other Mexican Klan Locos members.
First, defendant cites to Officer Burnes's testimony about an investigation he conducted involving Chavez sometime between March 1999 and May 2000 when Burnes was employed with the King City Police Department. Burnes had testified he investigated Chavez for an assault with a deadly weapon and a battery where the victim was a Norteno gang member. Defendant made no objection to Burnes's testimony.
Next, defendant cites to a portion of Detective Rouch's testimony. On direct examination, Rouch testified he was familiar with defendant and had previously been involved in investigations involving him. The prosecutor asked Rouch what the nature of the investigations he conducted were, and Rouch responded: "I've done everything from shooting investigations, where he was the victim of shootings, suspects of shootings, as well as various other gang-related crimes, assaults, and probably all the way down to misdemeanor assaults. I mean, there's a number of contacts that I've had with him that I really couldn't recall, but there's some of the highlights where he was both victims of shootings and involved suspects."
Again, defendant has forfeited his claims of misconduct for failing to object below. (Seumanu, supra, 61 Cal.4th at p. 1339.) Defendant argues in his reply brief that an objection would have been futile, because the trial court had repeatedly overruled his objections over introduction of hearsay evidence, citing to his objection to Hoier's testimony recounting that the victim of defendant's 2007 assault had been afraid to come forward. We disagree that the court's ruling on the admissibility of hearsay statements somehow demonstrate that objections to Officer Burnes' and Detective Rouch's respective testimonies—which did not involve hearsay—would have been fruitless. Since defendant did not object below to the challenged conduct, his claims of misconduct on this ground have not been preserved on appeal.
Even assuming the argument was not forfeited, defendant has not met his burden to demonstrate the prosecutor engaged in misconduct. Officer Rouch's testimony was elicited to lay the foundation for Rouch's familiarity with defendant. Officer Burnes's testimony was elicited to present evidence of a predicate offense committed by a Sureno gang member. We do not believe presentation of this evidence was reprehensible or intentionally deceptive. (Hill, supra, 17 Cal.4th at p. 819.)
6. There was no Doyle Error
Defendant insists the trial court erroneously permitted the prosecution to present evidence of a phone conversation between him and his wife following his arrest. Defendant argues the statements he made to his wife were not correctly characterized as adoptive admissions. He claims admission of the statements meant evidence of his postarrest silence following advisement of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 were used against him in violation of Doyle v. Ohio, supra, 426 U.S. 610.
a. Background
Before trial, the prosecution moved to admit evidence of statements made by defendant to his wife during a phone call that was made following his arrest. After his arrest, defendant had asked Officer Medeles to call his wife. Officers attempted to call defendant's wife several times but were unsuccessful. Subsequently, defendant was read his Miranda rights and invoked his right to remain silent. Again, defendant requested his wife be contacted. Medeles called defendant's wife and was able to reach her. The call was conducted over speakerphone. Defendant was in the same room as the officers at the time and knew they were listening to his conversation.
During the phone call, defendant's wife told defendant that if he loved her he would have been home with her and his kids instead of "running around with his friends," that defendant had a chance to come home when she called him but did not do so, and he had done the same thing to his children the last time he was arrested. In response, defendant stated he was sorry, he loved her, and she would not understand. Officer Medeles summarized what had transpired in a police report, which the court reviewed.
Defendant's trial counsel argued it was not clear based on the conversation that defendant's wife knew what had happened, and it seemed she was expressing only that she was not happy he had been arrested. Thus, defendant's counsel argued the statements were not adoptive admissions. The trial court disagreed and admitted the statements.
b. Overview and Standard of Review
"In Doyle, the United States Supreme Court held that it was a violation of due process and fundamental fairness to use a defendant's postarrest silence following Miranda warnings to impeach the defendant's trial testimony." (People v. Collins (2010) 49 Cal.4th 175, 203.) "Since Miranda warnings implicitly indicate that the defendant's silence will not be used against him, it is unfair to use that silence to impeach the defense at trial." (People v. Lewis (2004) 117 Cal.App.4th 246, 256.) "Doyle does not apply when a defendant presents exculpatory testimony at trial inconsistent with a voluntary post-Miranda statement." (People v. Collins, supra, at p. 203.) " 'To establish a violation of due process under Doyle, the defendant must show that the prosecution inappropriately used his postarrest silence for impeachment purposes and the trial court permitted the prosecution to engage in such inquiry or argument.' " (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555.)
c. Admission of Defendant's Statements Did Not Constitute Doyle Error
Defendant acknowledges his trial counsel failed to object to the admission of the statements as Doyle error below. Failure to object on Doyle grounds forfeits the claim on appeal. (People v. Tate (2010) 49 Cal.4th 635, 692.) Thus, defendant has not preserved his claim.
Defendant, however, also argues his trial counsel was ineffective for failing to object on Doyle grounds below. As we have already stated, to establish a claim of ineffective assistance of counsel, defendant must show both that counsel's performance "fell below an objective standard of reasonableness" and that counsel's omission prejudiced the defense. (Strickland, supra, 466 U.S. at p. 688.)
Preliminarily, we find defense counsel was not ineffective, because the prosecutor did not commit Doyle error. The prosecutor did not comment on defendant's postarrest silence; he commented on defendant's postarrest statements, which were voluntarily made. Doyle does not bar argument pertaining to postarrest, voluntary statements. (See Anderson v. Charles (1980) 447 U.S. 404, 408.) Defendant himself requested his wife be contacted by phone. He then volunteered the statements that the prosecution characterized as adoptive admissions. Defense counsel's failure to object to the testimony on Doyle grounds was not unreasonable.
Defendant argues it is clear from the record that he did not relinquish his right to counsel and his right to remain silent, because the only fair interpretation of the circumstances is that the officers placed him into a coercive environment. He bases this argument on the fact that defendant did not request to have a public conversation with his wife over speakerphone with the police present and listening in on the conversation. Defendant claims the only reasonable interpretation is that his statements to his wife were purposefully truncated so he could get off the phone once he realized officers would be listening in on the conversation. Defendant's interpretation, however, is not grounded in the record. There is nothing to indicate he requested a private conversation with his wife, nor is there any express indication officers promised him a private conversation when he asked them to contact her. Furthermore, there is nothing in the report indicating defendant objected to the form of the call when Officer Medeles contacted his wife at his request.
Even assuming defense counsel was ineffective for failing to object to the challenged testimony, defendant has failed to demonstrate prejudice. To establish prejudice, defendant must show there is a "reasonable probability . . . sufficient to undermine confidence in the outcome" that but for counsel's performance "the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) At best, defendant's statements had marginal probative value. His statements did not expressly admit to committing a crime. His wife's comments to him were vague, accusing him of "running around with his friends." In contrast, there was strong evidence of defendant's guilt. Defendant was seen running from the scene of the crime and was arrested by Officer Smith. Smith saw defendant drop a gun that later matched bullets that were extracted from Guajardo's body. Admission of the challenged statements was harmless, even if it was error.
d. Assuming Defendant's Statements to His Wife Were Not Admissible as Adoptive Admissions, Defendant Has Not Shown Prejudice
Defendant also argues that the statements he made to his wife did not qualify as adoptive admissions and were therefore erroneously admitted. We find that even if the statements were admitted in error, defendant has failed to demonstrate prejudice. "No judgment shall be set aside, or a new trial granted, in any cause, on the ground . . . of the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Under People v. Watson (1956) 46 Cal.2d 818, prejudice exists only if it is reasonably probable that a more favorable result would have been reached in the absent of the error. As we stated in the preceding section of our opinion, we believe defendant's statements were only marginally probative, and there was overwhelming evidence of his guilt. Thus, reversal would not be required even assuming the statements should not have been admitted.
7. The Elements of the Firearm Enhancements Were Pleaded And Proved
In a supplemental letter brief, defendant argues the People failed to plead and prove the "other than an accomplice" element of the firearm enhancements that were found true by the jury.
a. Overview and Standard of Review
Section 12022.53 "was enacted in 1997 to substantially increase the penalties for using firearms in the commission of enumerated felonies," including murder. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1148-1149.) Section 12022.53, subdivision (d) requires imposition of an additional, consecutive 25-year-to-life sentence when a defendant "personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice." (§ 12022.53, subd. (d).) Thus, the 25-year-to-life sentence is inapplicable if the victim of the crime was also an accomplice to the crime he or she and the defendant intended to commit. (People v. Flores (2005) 129 Cal.App.4th 174, 182.) Section 12022.53, subdivision (e)(1) states that "[t]he enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)."
Section 12022.53, subdivision (j) states that "[f]or the penalties in [section 12022.53] to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."
Here, the prosecution alleged in the second amended information both that defendant had "personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and/or death to Crispin Guajardo within the meaning of Penal Code section 12022.53(d)" and that "a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and/or death to Crispin Guajardo within the meaning of Penal Code section 12022.53(d) and (e)(1) . . . ."
After the close of evidence, the trial court instructed the jury with a modified version of CALCRIM No. 3149, the standard jury instruction on firearm enhancements imposed under section 12022.53, subdivision (d). In part, the modified version of CALCRIM No. 3149 stated: "To prove this allegation [the enhancement set forth under section 12022.53, subdivision (d)], the People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission of that crime; [¶] 2. The defendant intended to discharge the firearm; [¶] AND [¶] 3. The defendant's act caused great bodily injury or death of a person." The modified version of CALCRIM No. 3149 omitted from the third element the phrase "who was not an accomplice to the crime." The unmodified version of CALCRIM No. 3149 contains the phrase in a bracket, and reads as follows: "[t]he defendant's act caused . . . the death of . . . a person [who was not an accomplice to the crime]."
The trial court also instructed the jury with a modified version of CALCRIM No. 1402, which provides in part that: "If you find the defendant guilty of the crime charged in Count 1—Murder and you find that the defendant committed that crime for the benefit of, or at the direction of, or in association with a criminal street gang . . . , you must then decide whether the People have proved the additional allegation that one of the principals personally and intentionally discharged a firearm during that crime and caused great bodily injury or death (Penal Code section 12022.53(d)/(e)). [¶] To prove this allegation, the People must prove that: [¶] 1. Someone who was a principal in the crime personally discharged a firearm during the commission of the Murder; [¶] 2. That person intended to discharge the firearm; [¶] AND [¶] 3. That person's act caused great bodily injury to or the death of another person."
b. Guajardo Could Not Be An Accomplice To His Own Murder As A Matter of Law
Defendant argues that section 12022.53, subdivision (j) and People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) compels a finding that the enhancements must be reversed. He insists the element of "other than an accomplice" was not found by the jury and its omission constitutes a due process violation that is not subject to a harmless error analysis.
In Mancebo, the court struck an enhancement even though the elements necessary to establish it were found by the jury, because it was never pleaded. (Mancebo, supra, 27 Cal.4th at pp. 752-753.) The Mancebo court noted the problem was the lack of notice, finding that "a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes." (Id. at p. 747.)
Defendant's case is unlike Mancebo. Here, the firearm enhancements imposed under section 12022.53, subdivisions (d) and (e)(1) were pleaded in the second amended information. Thus, contrary to Mancebo, defendant was given fair notice of the specific enhancement and was on notice he had to defend against the allegation. We find no violation of defendant's due process rights.
Furthermore, the trial court's failure to instruct on the accomplice exception and the jury's failure to reach a verdict on that element does not require reversal. As a matter of law, Guajardo, the victim of the murder, cannot be an accomplice to the charged crime. Section 1111 defines an accomplice as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of an accomplice is given." Here, defendant was charged with Guajardo's murder. Guajardo could not be charged for his own murder or attempted murder. "Neither suicide nor attempted suicide is a crime under the criminal statutes of California or any other state." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.)
Moreover, "Apprendi [v. New Jersey (2000) 530 U.S. 466] error—that is, error in failing to submit a punishment-increasing factual issue to the jury—is subject to harmless error analysis under the beyond-a reasonable-doubt test of Chapman v. California [(1967)] 386 U.S. [18, 23]. [Citation.] Indeed, even when jury instructions completely omit an element of a crime, and therefore deprive the jury of the opportunity to make a finding on that element, a conviction may be upheld under Chapman where there is no 'record . . . evidence that could rationally lead to a contrary finding' with respect to that element." (People v. Davis (2005) 36 Cal.4th 510, 564.) Here there was no evidence to support a finding that Guajardo was somehow an accomplice to defendant's crime.
Thus, even if the court had been required to instruct the jury on the "other than an accomplice" element and the jury was required to make a finding on it, its failure to do so was harmless.
8. There is no Cumulative Error
Lastly, defendant argues the cumulative effect of the errors complained of on appeal require complete reversal of his convictions. " '[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) We have either rejected defendant's claims of error or found any assumed errors to be harmless. Thus, we reject defendant's claim of cumulative error.
9. Applicability of Senate Bill No. 620
In his petition for rehearing, defendant argues remand for resentencing is necessary on his firearm enhancements. Defendant argues the recently enacted Senate Bill No. 620, which amended section 12022.53, subdivision (h), now gives the trial court the discretion to strike his enhancements imposed under section 12022.53, subdivisions (d) and (e)(1). The amended version of section 12022.53, subdivision (h) applies to judgments not yet final at the time of its effective date. (People v. Robbins (2018) 19 Cal.App.5th 660, 679.) The People concede remand is appropriate, and we agree. The record does not clearly reflect the trial court would not have exercised its discretion to strike defendant's firearm enhancements. We thus reverse and remand the matter for the limited purpose of allowing the trial court to consider whether the enhancements imposed under section 12022.53, subdivisions (d) and (e)(1) should be stricken.
DISPOSITION
The judgment is reversed and remanded for resentencing for the limited purpose of allowing the trial court to consider whether the enhancements imposed under Penal Code section 12022.53 should be stricken under Penal Code section 1385.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.