Opinion
F072319
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. SPENCER EARL ROGERS, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel Bernstein, Lewis A. Martinez, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF152669A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel Bernstein, Lewis A. Martinez, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Spencer Earl Rogers (defendant) of the following offenses that occurred on or about March 2, 2013:
Count 1 : First degree murder committed for the benefit of a criminal street gang, which was perpetrated by means of lying in wait and by means of discharging a firearm from a motor vehicle, and which was committed while defendant was an active participant in a criminal street gang and was carried out to further the activities of the gang, and in the commission of which defendant personally discharged a firearm, proximately causing great bodily injury or death. (Pen. Code, §§ 186.22, subd. (b)(1), 187, subd. (a), 189, 190.2, subd. (a)(15), (21) & (22), 12022.53, subd. (d).)
Walter Goodson originally was jointly charged with defendant in counts 1, 2, 5, and 13. He entered into a plea agreement prior to the evidentiary portion of trial, and is not a party to this appeal.
All statutory references are to the Penal Code unless otherwise stated.
Count 2 : Premeditated attempted murder committed for the benefit of a criminal street gang, in the commission of which defendant personally discharged a firearm and personally discharged a firearm, proximately causing great bodily injury or death. (§§ 186.22, subd. (b)(1), 187, subd. (a), 189, 664, 12022.53, subds. (c) & (d).)
Count 3 : Felon in possession of a firearm committed for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(1), 29800, subd. (a)(1).)
Count 4 : Misdemeanant in possession of a firearm committed for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(1), 29805.)
Count 5 : Active participation in a criminal street gang, in the commission of which defendant used a firearm and personally inflicted great bodily injury upon two individuals. (§§ 186.22, subd. (a), 12022.5, subd. (a), 12022.7, subd. (a).)
Count 13 : Discharging a firearm at an occupied motor vehicle committed for the benefit of a criminal street gang, in the commission of which defendant used a firearm and personally discharged a firearm, proximately causing great bodily injury or death. (§§ 186.22, subd. (b)(1), 246, 12022.5, subd. (a), 12022.53, subd. (d).)
The same jury convicted defendant of the following offenses that occurred on or about July 28, 2013:
Count 6 : Premeditated attempted murder committed for the benefit of a criminal street gang, in the commission of which defendant personally discharged a firearm and personally discharged a firearm, proximately causing great bodily injury or death, and in which he personally inflicted great bodily injury. (§§ 186.22, subd. (b)(1), 187, subd. (a), 189, 664, 12022.53, subds. (c) & (d), 12022.7, subd. (a).)
Count 7 : Premeditated attempted murder committed for the benefit of a criminal street gang, in the commission of which defendant personally discharged a firearm, proximately causing great bodily injury or death, and in which he personally inflicted great bodily injury. (§§ 186.22, subd. (b)(1), 187, subd. (a), 189, 664, 12022.53, subd. (d), 12022.7, subd. (a).)
Count 8 : Felon in possession of a firearm committed for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(1), 29800, subd. (a)(1).)
Count 9 : Misdemeanant in possession of a firearm committed for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(1), 29805.)
Count 10 : Assault with a semiautomatic firearm committed for the benefit of a criminal street gang, in the commission of which defendant used a firearm and personally inflicted great bodily injury. (§§ 186.22, subd. (b)(1), 245, subd. (b), 12022.5, subd. (a), 12022.7, subd. (a).)
Count 11 : Assault with a semiautomatic firearm committed for the benefit of a criminal street gang, in the commission of which defendant used a firearm and personally inflicted great bodily injury. (§§ 186.22, subd. (b)(1), 245, subd. (b), 12022.5, subd. (a), 12022.7, subd. (a).)
Count 12 : Active participation in a criminal street gang, in the commission of which defendant used a firearm and personally inflicted great bodily injury upon two individuals. (§§ 186.22, subd. (a), 12022.5, subd. (a), 12022.7, subd. (a).)
Following a bifurcated court trial, defendant was found to have served two prior prison terms. (§ 667.5, subd. (b).) His motion for a new trial was denied, and he was sentenced to an unstayed term of life in prison without the possibility of parole plus multiple consecutive indeterminate terms. He was also ordered to pay restitution, as well as various fees, fines, and assessments.
On appeal, we hold: (1) The trial court did not abuse its discretion or violate defendant's constitutional rights by limiting the impeachment of a prosecution witness; (2) The giving of CALCRIM No. 318 does not entitle defendant to reversal of counts 1 through 5 and 13; (3) Defendant was not prejudiced by the admission of case-specific testimony by the gang expert; (4) The lying-in-wait special circumstance must be stricken; (5) The sentences imposed for the attempted murder convictions need not be corrected; and (6) Defendant is not entitled to a remand to allow the trial court to exercise its discretion whether to strike any or all the firearm enhancements. We modify the judgment to strike the lying-in-wait special circumstance on count 1, but otherwise affirm.
FACTS
Unless otherwise specified, all dates in the statement of facts are from the year 2013. In addition, all references to law enforcement personnel are to members of the Bakersfield Police Department except as otherwise stated.
Evidence Related to Events of March 2
As of March 1, Laverne Taylor and defendant had been dating for several months. Both lived in Bakersfield at the time, though not together. On or about March 1, Taylor purchased a Chevrolet Cobalt. Defendant borrowed the car the next night or the night after. He left about 10:00 p.m. and returned around 3:30 or 4:00 a.m. Taylor did not go with him.
Taylor — who grew up "in the Country," i.e., the south side — only dated Country Boys. When she and defendant were dating, defendant had a number of tattoos. One read "CBC." Although defendant never told Taylor what it meant, she knew it stood for Country Boy Crip. There were two X's inside the B. Those stood for "Blood Killer." Defendant never told Taylor he was a member of the Country Boy Crips, but she knew he was, based on where she met him and whom he was with.
Around 2:20 a.m. on March 2, Andrew Ward (also known as Baby G) and Kevin McMahan (also known as Kev Mac) arrived at the Valero gas station on the corner of California Avenue and Union Avenue, Bakersfield, in McMahan's car. McMahan was driving. When they left a short time later, McMahan turned onto Union Avenue.
Ward was looking down and texting on his cell phone when he heard more than five gunshots. He ducked down in the vehicle, but was struck once in his lower back. When the shots stopped, he sat back up. The car was still moving, and he had to pull McMahan's foot off the pedal.
Ward flagged down a friend he knew from school, who happened to be passing through the area with another person. Unable to do much for McMahan, who was unconscious and bleeding badly, the friend took Ward to Kern Medical Center.
At approximately 2:30 a.m., the Bakersfield Police Department received multiple 911 calls. The initial call reported four individuals running around a vehicle at State Highway 58, just east of South Real Road. They had blood on them and appeared to be trying to drag someone out of the car.
Highway 58 runs into, and ends at, South Real Road.
Officer Littlefield arrived at the scene at approximately 2:36 a.m. McMahan was in the vehicle, lying with his feet in the driver's compartment and his body extending partially out of the open passenger side door. There were multiple fresh bullet strikes on the driver's side of the vehicle and in the back of the driver's seat; an expended bullet in the driver's side rear tire, which was flat; and a spent, deformed bullet near the rear of the car. The car was in the road, facing west and still running. Ward was not present.
Between the car and the Hughes Lane overpass, which was three-quarters of a mile east of the vehicle, officers located 14 nine-millimeter and five .22-caliber shell casings. The closer the shell casings were to the Hughes Lane overpass, the closer together they were found. They were more sporadically spaced nearer the car.
When the car was processed, it was determined the bullets traveled rear to front and left to right toward the vehicle. Seven bullet projectiles or fragments were recovered from the vehicle. The shell casings were processed for fingerprints. None were found.
McMahon was shot three times. One bullet penetrated the left arm, another penetrated the left thigh, and the third penetrated the right lower back. None of the bullets exited the body, and all were recovered during the autopsy. All three wounds were fatal, as they penetrated major arteries and, in the case of the bullet to the back, resulted in extensive bleeding into the peritoneal cavity. The cause of death was penetrating gunshot wounds to the trunk.
A little while after defendant returned with Taylor's car, Taylor's sister told Taylor about a shooting that had happened on Highway 58. Shortly after, Taylor's brother said defendant had done the drive-by shooting in Taylor's car. When Taylor questioned defendant about it, he first denied doing anything. Eventually, however, he said he and Chris H. (Chris) were at a club by the freeway, and "Skeet's" (Walter Goodson's) car and "Lil Critter" "block[ed] the car or something," then "they rolled up" on McMahan and shot him on the freeway entrance. Defendant said he was the driver, but he was also shooting with his .38. Then he moved Chris to the side, took a "chopper" — an automatic weapon like an AK-47 — from Chris, and shot that, too. Defendant said he left a cell phone at the scene so the authorities would think the perpetrator was someone from the West Side. Defendant said the .38-caliber revolver he used was hidden at his mother's rental property. Defendant subsequently bragged about the shooting on multiple occasions. He flew to North Dakota a couple weeks after the shooting.
For privacy, we use first names and/or initials for some individuals. No disrespect is intended.
On March 21, Officer Vaughan was assigned to the Special Enforcement Unit, also known as the gang unit. That evening, he stopped a red Chevrolet Cobalt being driven by Taylor. Taylor said she did not have any insurance because she had just purchased the vehicle. The car was seized and impounded. Taylor did not get the car back after that point. She was subsequently arrested for an unrelated matter and spent 13 days in jail. The day after her release, she also went to North Dakota. Taylor subsequently made several trips between North Dakota and Bakersfield, sometimes with defendant, and sometimes with other people. One of the trips from North Dakota to Bakersfield was made in a pearl white Subaru that Taylor had a friend rent for defendant. The Subaru had Montana license plates.
In 2013, D., a relative of Taylor, was living in Bakersfield. As of that time, she had known defendant one or two years. Sometime around June, D. (sometimes accompanied by her friend, K.) made several trips with Taylor between Bakersfield and North Dakota, where defendant was working. At one point, possibly in late July, defendant drove back with them. He was driving a white SUV-type car. D. did not notice any damage to the vehicle. When they returned to North Dakota about a week later, D. noticed a bullet hole in the vehicle. The hole had been patched. D. saw defendant with a firearm once or twice in North Dakota, both before and after this trip back. The gun D. saw before this trip was not the same gun she saw after. The one she saw before had a five-barrel object that could be pushed out and spun. The one she saw after had a laser on it.
On one occasion, defendant started talking to D. about "gangbanging and getting his stripes." He told D. he had killed "Kev Mac" to get his stripes in the gang. Defendant said he and someone named Chris, who had been driving, had caught "Kev Mac" and "Baby G" on a fluke on the freeway while defendant and Chris were just driving around. Defendant said McMahan and Ward "were some egg ni[**]as, and they was caught slippin'." D. was aware that "egg" stood for East Side, and that East Side and Country were rival gangs. Defendant said he was from the Country. "[S]lippin' " meant they were out of their boundaries and not watching their backs, and they were in the wrong place at the wrong time. Defendant told D. there was his car and one other, and they blocked McMahan and Ward in. Defendant said he had his own gun, while the person he was with had an AK. They shot into McMahan's car, and defendant had a seizure when the gun went off.
Shortly after 2:30 p.m. on July 26, Taylor telephoned defendant and asked him to come to Enterprise Rent-A-Car to rent a car for her. She explained a credit card was needed. Defendant agreed to do so, but said he needed to drop off a gun. He did not want to keep riding with it, because police were at the funeral and defendant did not want to just throw the gun away.
In late July and early August, Officers Beagley and Champness were involved in an investigation of defendant. They obtained and listened to wiretaps, and coordinated and conducted surveillance. Recordings of a number of intercepted telephone calls were played for the jury.
According to Taylor, after she and defendant arrived in Bakersfield from North Dakota in the Subaru, defendant attended a funeral.
On August 6, Detective Dossey contacted M.G., who lived in North Dakota and was acquainted with defendant and Taylor, by telephone. When Dossey asked what defendant had told her, M.G. related that the car used in the shooting belonged to Taylor. There were two other people with defendant and Taylor. They were riding around, not even looking for McMahan, but rather looking for someone else. They were on the freeway and saw McMahan, and the male in the backseat said, "Okay. Let me get 'im. Let me get 'im. There goes one of those East Side dudes" or "East Side ni[***]rs." But defendant said he grabbed the gun from the other man and said no, this was his time to put in his "work" for the "hood." Defendant said he shot and saw him go down.
At trial, M.G. denied discussing a shooting with defendant. She lied to the detective when she said defendant told her, because she was "having some issues" with defendant and Taylor. She was angry at them because Taylor had shot at her. S.C., an acquaintance who resided with M.G. in North Dakota until around August 4, told M.G. about the shooting, so M.G. told the detective what S.C. told M.G. There were also things M.G. did not recall telling Dossey. She felt her inability to recall was caused by her drug use, as was her making a false accusation against defendant. Had she been in her right state of mind, she would not have listened to anything S.C. said.
Taylor denied ever shooting at M.G.
Evidence Related to Events of July 28
C.P. drove to Anthony Lyons's house on South Brown, in her white BMW, around 8:30 or 9:00 p.m. on July 27. Aside from Lyons, the only other person there was Larry Lynch, who was sitting inside a silver or green Suburban. C.P.'s car was parked toward the driveway of the house next door, while the Suburban was parked directly in front of her car and directly in front of Lyons's residence. Lyons and C.P. remained outside, talking. Lyons was sitting on the driver's side hood of the BMW, while C.P. was standing in the street directly in front of him.
Although the prosecutor's questions suggested this occurred on July 28, it appears he failed to distinguish between before and after midnight.
Sometime after 9:00 p.m., C.P. and Lyons went to the store. When they returned, they resumed their original places and started drinking. Lynch joined them for a while, then got back into the Suburban.
Meanwhile, early on the morning of July 28, Taylor, defendant, and "Chuckie" arrived at a Fastrip gas station in the Subaru. When a man who was at the station called Taylor a name, a fight ensued. Defendant received a black eye. He, Taylor, and Chuckie then went to a party on Bradshaw. Chris was there. He and defendant spoke, then Chris went around the corner, got someone, and came right back. When he drove up, he told defendant that the person with him wanted to go with defendant. That person got in the Subaru with defendant, and defendant "zoomed off."
At 2:27 a.m. on July 28, the Bakersfield Police Department received a call for service from the Fastrip at Ming and South Chester, in Bakersfield. The caller reported a fight among six to eight Black individuals, some of whom were "jumping" others. Those involved were gone by the time police arrived. Cell phone data was consistent with defendant's cell phone being at the Fastrip at the time of the incident.
During the time C.P. and Lyons were at C.P.'s car, a vehicle occasionally came down the street. At some point, a car came up the street from behind C.P. She heard several gunshots, and she and Lyons both ran. C.P. made it as far as the middle of the car, then fell to the ground, wounded. The car from which she thought the shots came was white and looked "kind of like an SUV." She had not seen it earlier that night. C.P., who was shot in the back, leg, and foot, did not see anyone shooting at the white vehicle.
At 3:07 a.m., the Kern County Sheriff's Department received a 911 call from a male subject who reported that medical aid was needed for the victim of a shooting at an address in the 500 block of South Brown. Officer Messick arrived at the South Brown location less than five minutes after the call. Lyons, who was angry and upset, said he had been shot. He showed Messick a gunshot entry wound to his left buttock. Lyons said the shots came from a white compact SUV. Cell phone data could not exclude defendant's cell phone from having been at or near the South Brown location just prior to the time of the 911 call.
Messick located five .380-caliber shell casings and three .45-caliber ACP shell casings in the roadway. He searched the Suburban for a firearm, but none was found. Lynch denied having a firearm.
Defendant returned to the party in the Subaru about 10 to 15 minutes after he left. The other person was now driving. Defendant wrapped a gun in a sweater and gave it to Justin H. (Justin). Defendant instructed Taylor to drop Chuckie and the person who had gone with defendant, at home. Defendant and Justin headed to the backyard.
Taylor met back up with defendant at her mother's house, which was off Cottonwood, in "the Country." Once there, Taylor allowed her cousin to use the vehicle. Defendant said she should not have done that, because he had just done a drive-by, and the vehicle took a round to the back. Defendant said he believed the person who was with him ran a red light coming back, and the camera or something "flashed" him. In describing the shooting, defendant said he hit a girl first, then hit a guy on South Brown. Unlike the Highway 58 shooting, defendant never really talked about the South Brown shooting again.
Taylor subsequently saw the hole in the back of the Subaru. Defendant patched it first thing in the morning after the drive-by.
At approximately 11:30 a.m. on July 28, a telephone call between defendant and a female believed to be his mother was intercepted. In it, the woman advised defendant to put some antibiotic ointment around his eye so it did not get infected. When she asked why he was out fighting the night before, he explained that someone "hopped on" Rodney, and defendant was trying to get them off Rodney. When the woman commented that there were a lot of police going "out that way," defendant asked, "Where, to the country?" The woman responded that that was where it looked like they were headed.
At approximately 5:00 p.m. on July 28, Officer Williams, who was involved in the investigation of defendant, received information concerning defendant's location. Williams observed defendant to be the sole occupant and driver of a white Subaru with Montana license plates.
Just after 9:00 a.m. on July 29, a telephone call from an unknown male to defendant was intercepted. At one point, defendant said "we" were on Brooks right then, that they were trying to hurry up and get out of there, and that defendant was trying to get on his way. At another point, defendant said they "got a rental," and he wished they could fly. Defendant also mentioned being at the Fastrip and "squabbing" with some people. Later, he said, "hey check this out though cuz we smashin it on the egg went to the SB cuz and that shit was tight cuz, we were over there and all them chicks and them ni[**]as bust back and hit the car." He was laughing when he said this.
Defendant and Taylor left for North Dakota two days after the South Brown shooting. On the way, defendant told Taylor that when he fixed the hole in the Subaru, he went back and dug up the gun. This was the .380 used in the drive-by shooting on South Brown.
In early August, D. and Taylor were at the Oasis, a hotel in North Dakota, when the local police arrived and seized the SUV because the rental agreement had expired. The police allowed Taylor to get her personal items out of the vehicle. Taylor was concerned there may have been a gun in the car. She looked for it, but could not find it. She telephoned defendant to see if he had it. This was the gun used in the South Brown shooting.
Shortly after 11:00 a.m. on August 2, law enforcement intercepted a telephone call from Taylor to defendant's cell phone. At one point, Taylor said, "Tell me you didn[']t have that thing in that car because I checked behind the glove compartment and couldn't find it." Defendant responded that he had it.
The local police had been informed by Dossey that the vehicle had possibly been involved in a shooting. The Subaru was impounded and then searched. The bumper that had the patched hole in it was removed, and a bullet was found behind the hole, on the inside of an air intake vent. The bullet was consistent with .45-caliber ballpoint ammunition. There were also dents in the vehicle that were consistent with the bullet ricocheting after entering the vehicle and then pushing metal outward. There was also a second hole that appeared to be a gunshot entry, where someone shot from behind the vehicle. Also found in the vehicle was a receipt bearing defendant's name.
On August 8, the police and a federal narcotics task force came to the Select Inn, where defendant and Taylor were staying in North Dakota. Special Agent Hill of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) searched a black suitcase that was in the room. Inside, he found, among other items, men's shorts and an empty magazine that would fit a .380-caliber handgun. Inside a red suitcase, Hill found paperwork bearing defendant's name, as well as a receipt from Alamo Rent A Car for a white Subaru Outback registered in Montana. Also in that suitcase was a black leather purse that belonged to Taylor. It contained a holster, some loose ammunition, and two handguns. One of the handguns, to which the ammunition and holster were connected, was a Smith & Wesson Bodyguard model, .380-caliber, semiautomatic pistol with a built-in laser sight. The other firearm was a Charter Arms Bulldog model, .44-caliber, five-shot revolver. Both pistols were loaded. Inside a hygiene kit in the room were two 50-round boxes of .44-caliber ammunition, five rounds of which were missing from one of the boxes, and several prescription bottles bearing defendant's name. Inside a red duffel bag, officers located drug paraphernalia (including a digital scale and what appeared to be a ball of methamphetamine) and female clothing.
When officers entered, D. and K. were inside the room, but defendant was not present.
According to Taylor, defendant took antiseizure medication daily, as he had epilepsy.
Subsequent testing showed the five .380-caliber shell casings found at the scene of the shooting on South Brown were fired from the .380 semiautomatic firearm located during the search of defendant's hotel room.
The Gang Expert's Testimony
Officer Malley had extensive training and experience with respect to criminal street gangs in Kern County, including numerous personal contacts with gang members. He explained that the Country Boy Crips and East Side Crips are the two biggest rivals in Bakersfield.
Because defendant expressly does not challenge that the Country Boy Crips constitute a criminal street gang within the meaning of section 186.22, we omit much of Malley's testimony concerning that subject.
The Country Boy Crips often refer to themselves as South Side Crips or being from the South Side. Their traditional territory is southeast Bakersfield, with Union Avenue as the west border, Cottonwood as the east border, East Belle Terrace as the north border, and East White Lane as the south border. Two of their common symbols are CBC, which stands for Country Boy Crips; and ESK, which stands for East Side Killer. The primary criminal activities of the gang include murder, assault with a deadly weapon, robbery, carjacking, burglary, criminal threats, witness intimidation, illegal firearm possession, vehicle theft, and narcotic sales.
East Side Crip territory is the central part of East Bakersfield, immediately north of Country Boy Crip territory. East Side Crip territory is East Belle Terrace and everything north to East California, with Union Avenue as the west boundary and Washington Street as the east boundary. "[E]gg" and "eggshell" are derogatory terms for East Side Crips.
A portion of Highway 58 is in East Side Crip territory, but where Highway 58 ends at South Real Road is not in the traditional territory of a gang. The Valero station at Union and California is in West Side Crip territory, just across Union from East Side Crip territory. The area of the party on Bradshaw is in Country Boy Crip territory. The Fastrip on South Chester is just outside Country Boy Crip territory. Country Boy Crips commonly can be found there.
Malley had several contacts with Justin and his brother, Chris. As one of the offenses demonstrating the primary activities of the Country Boy Crip gang and the pattern of criminal activity, Malley described an incident that took place on January 19, 2008, in which defendant and Justin acted in concert to commit a carjacking within Country Boy Crip territory. When arrested a few blocks away, defendant was wearing a powder blue T-shirt, which he admitted was the color of the Country Boy Crips. He also admitted having family in the gang, and having associated with the gang all his life. Defendant identified Justin as a Country Boy Crip and his second cousin. Defendant pled no contest to being an accessory, while Justin pled no contest to carjacking. Each received a prison term. The incident was significant to Malley, because carjacking is one of the primary activities of the gang. In addition, defendant admitted his affiliation with the gang and committed the crime with another Country Boy Crip. In Malley's opinion, Justin was a Country Boy Crip. Malley based this on past contacts with Justin, in which Justin was in the company of other Country Boy Crips. Malley also based this on defendant's statement that Justin was a Country Boy Crip, together with Malley's parole search of Justin's cell phone, in which were photographs of Justin throwing Country Boy Crip hand signs and Justin with other Country Boy Crips. Malley opined Chris also was a Country Boy Crip, based on Chris's admission to Malley that he was a Country Boy Crip, the fact Malley had contacted him in the company of other Country Boy Crips, and parole searches of Chris's person and vehicle.
Malley had never contacted defendant in person, but became familiarized with him through the wiretap operation as well as documentation Malley reviewed in preparation for court.
Malley became familiarized with Goodson through the wire investigation, as well as through searches he had conducted on Goodson's home and contacts he had with Goodson from the wire investigation. On September 21, 1997, Goodson drove two other Country Boy Crips into East Side Crip territory. One of his passengers fired multiple rounds into a crowd of people, killing one person. The homicide was committed in retaliation for an earlier shooting in which Goodson and one of his passengers were shot at by East Side Crips. Witnesses and informants all identified Goodson and the other two perpetrators as Country Boy Crips. All three either pled no contest or were convicted of various offenses and were sentenced to prison. The incident was significant to Malley because it involved a group of Country Boy Crips aiding each other in committing a primary activity, and it was committed within rival East Side Crip territory. Based on this incident, Goodson's gang-related tattoos, his jail booking admissions, and his street checks and offense reports, Malley opined he was an active Country Boy Crip, including as of March 2.
Malley was familiar with Lyons, having had contacts with, and talked to, him before. Malley knew Lyons to be an East Side Crip gang member. In addition, Malley had searched Lyons's house on South Brown (which was in East Side Crip territory) on several occasions during probation searches, the most recent five or six months before trial. Malley believed Lyons was an East Side Crip because of Lyons's own admissions, his gang tattoos, the fact he was arrested for gang crimes that were consistent with the activities of the East Side Crips, and reports and street checks Malley reviewed concerning Lyons's contacts with the police that contained evidence Lyons was a gang member. Aside from her affiliation with Lyons, C.P. had no gang affiliations of which Malley was aware.
Malley was familiar with Ward, and had several prior contacts with him in which they talked about Ward's gang membership and Ward admitted he was an East Side Crip. Malley had also searched Ward's parole address, person, and vehicle multiple times, and reviewed documentation on Ward before coming to court. Ward was an East Side Crip member from the Stroller Boy Crip subset, and had Stroller Boy and anti-Country Boy Crip and anti-West Side Crip tattoos. At the time he testified, Ward had a Highway 58 sign with "East" over it tattooed on his arm. Malley knew Ward did not have that tattoo before McMahan was killed, and opined it was a memorial tattoo for McMahon.
Malley was familiar with McMahan, having pulled him over in his vehicle two to three times, conducted searches of his vehicle and his person per his parole and probation status, and having reviewed materials about his gang membership in preparation for court. McMahon was an East Side Crip from the Spoonie Gee subset. Malley based this opinion on McMahan's admissions, tattoo, and the documentation.
Malley opined that defendant was a Country Boy Crip. The predicate offense committed by defendant and Justin was one factor in this opinion, because defendant was with another documented Country Boy Crip, they committed a crime that was one of the primary activities of the gang, defendant made admissions about his affiliation and identified Justin — his cousin — as a Country Boy Crip, the offense was committed within Country Boy Crip territory, and defendant and Justin were acting together at the time. In addition, defendant had a "CBC" tattoo. The letters stood for "Country Boy Crip" and the tattoo was an "obvious gang identifier." The fact the letter B was crossed out twice in the tattoo was an open sign of disrespect for Blood gang members, who are rivals to Crips, and so was also an obvious indication it was a gang tattoo.
Malley also reviewed defendant's booking records. Between 2008 and 2014, defendant claimed Country Boy Crips 10 times, requested to be kept away from the Bloods nine times, and requested to be kept away from the East Side once.
In addition, Malley looked at offense reports that were generated by law enforcement agencies to document crimes, and at street checks, which are done for intelligence purposes. One street check was from March 25, 2013, when defendant was a passenger in a car with a documented Country Boy Crip associate. It was significant to Malley because defendant was contacted with someone who identified with the Country Boy Crips.
Another street check was from October 28, 2012. An officer contacted defendant at Kern Medical Center after he was shot. The deputy who was there at the time told the officer that defendant told him the shooting was gang related because defendant was an active Country Boy Crip. The deputy also noted defendant had a CBC tattoo on his arm.
On May 22, 2012, defendant was contacted within Country Boy Crip territory in the company of five documented Country Boy Crip members. Several of these individuals were required to register as Country Boy Crips.
Another street check, from September 24, 2008, reported defendant was contacted within Country Boy Crip territory in the company of another Country Boy Crip member. Defendant was wearing powder blue shoes at the time. The officers noted defendant did not live within the boundaries of the gang, but was repeatedly contacted there. This was significant to Malley because, although defendant's residence was not near Country Boy Crip territory, he still went out of his way to associate with people from that area, and he went to that area to associate with them.
On August 17, 2008, defendant was contacted as a vehicle passenger. Justin and another Country Boy Crip member were also in the vehicle.
On July 13, 2008, defendant was stopped while in a vehicle just outside of Country Boy Crip territory. With him were Justin and another Country Boy Crip member.
On July 11, 2008, defendant was contacted with Justin and another Country Boy Crip member. In the street check, it was noted that all three affiliated with the Country Boy Crips.
One offense report was from March 8, 2013. Defendant was contacted at a motel in Bakersfield when officers went there to conduct a probation search of Taylor's motel room. Defendant's cell phone was searched; it was found to contain phone numbers and monikers for several Country Boy Crip gang members, as well as photographs of defendant with Country Boy Crip members.
Another offense report was dated January 2, 2011. On that date, officers responded to a call from service at a bar. Defendant was contacted in the company of two other Country Boy Crips.
On October 24, 2010, officers searched defendant's bedroom. They found photographs of Country Boy Crip members. They also found letters that discussed gang politics as well as the recent arrest of Country Boy Crips. There were signs and symbols in the letters that represented the gang. A scale with marijuana residue and packaging was also located inside the bedroom.
On July 29, 2009, defendant was found trespassing on a commercial business property after a burglar alarm went off at the business. Malley found the incident significant because burglary is a primary activity of the Country Boy Crips and defendant possibly was involved in burglary activity at the time.
Based on the totality of the foregoing information, Malley opined that defendant was a Country Boy Crip. He further opined that, on March 2 and July 28, defendant was an active participant in the gang.
Defendant's intercepted telephone calls were significant to Malley's opinion. In the one on July 26, in which Taylor asked him to come to Enterprise and rent a vehicle, defendant spoke of dropping off a gun to avoid police contact with that firearm in his vehicle. This was significant, because the funeral defendant referenced was for a Country Boy Crip who had been murdered by an East Side Crip a week or two earlier. It is common for the gang unit to conduct high-visibility patrols around funerals of gang members to ensure there is no retaliation.
In the call between defendant and possibly his mother, in which defendant mentioned Rodney, it was Malley's opinion defendant was talking about Rodney R., who was a Country Boy Crip. Under the gang's code, defendant would be required to help defend another gang member if that person was being assaulted.
In the call defendant received on the morning of July 29, in which he spoke of "squabbing" at the Fastrip, defendant said, "we smashin it on the egg . . . ." Malley explained that this meant going to East Side Crip territory to assault or shoot East Side Crip gang members. Defendant also said, "we were over there and all them chicks and them ni[**]as bust back and hit the car." Malley explained that "bust" meant to use a firearm. When defendant said "bust back," he was saying, " 'We shot and then they shot back at us and hit our car.' " Defendant referred to going "to the SB," which was an acronym for South Brown, the location in East Side Crip territory where the shooting occurred. The caller asked, "for reals?" Defendant responded, "on country." This meant defendant basically was "putting it on the gang." By itself, this essentially showed defendant was a Country Boy Crip, since it would not make sense for him to put something on the gang if he was not from that gang. When defendant subsequently said he "already smacked one down," this meant that before someone shot back at the car, defendant knocked someone over with gunfire. Malley opined this could refer to the South Brown shooting before the car was shot, or it could mean another offense sometime in the past.
In a call on July 29, defendant asked the other person what happened. The person replied that someone "just bust on Bradshaw," but did not hit anything. This was a discussion about a shooting in retaliation for the one on South Brown the day before. It was also significant that defendant and the other person referred to each other as "cuz," as that is a term Country Boy Crips use to refer to each other.
Based on Malley's experience and opinion, it would not be common for a Country Boy Crip to take someone unaffiliated with the gang along on a drive-by shooting. Malley explained there is trust between gang members. When they are caught by the police, it is expected by fellow gang members that they will not snitch or give a statement. In contrast, there is a big possibility someone who is not a gang member may snitch or give information to the police that leads to the gang member's arrest and prosecution. There is also a bond between gang members, and if someone goes with a Country Boy Crip to commit a gang-related shooting, that person basically is required to be someone who identifies with that gang. Malley further opined that a Country Boy Crip who bragged of committing a crime he did not commit, would face a penalty of a severe beating to even death. Malley learned this from speaking with Country Boy Crips on a daily basis and from speaking with informants who were Country Boy Crips.
Asked a hypothetical question based on the evidence presented concerning the March 2 shooting, Malley opined the activity would benefit the Country Boy Crips. It would be beneficial to the gang's reputation within gang culture by showing the Country Boy Crips were not fearful of their rivals and were willing to kill their rivals on sight and in public. It would also be beneficial because the Country Boy Crips were in an ongoing gang war with the East Side Crips, and in war, the objective is to kill the enemy. Moreover, multiple gang members working together showed a crime committed in association with the Country Boy Crips, because more than one member of the gang was working together in concert to execute a plan, and coming together to commit a crime that was within the primary activities of the gang.
Asked a hypothetical question based on evidence presented concerning the July 28 shooting, Malley opined that activity also would benefit the gang by directly benefiting the gang's reputation. That Country Boy Crip members were willing to arm themselves and drive into rival territory to commit shootings at any time was beneficial to the gang because it struck fear into the rivals and into the public who have to live in the area. It also struck fear into the hearts of law enforcement who have to deal with members of the gang, and emboldened the gang as a whole. The fact someone not affiliated with a gang was hit would simply be considered collateral damage by the gang, and would not result in any penalty against the shooter.
Malley explained that a violent reputation helps a gang commit its primary activities by furthering its ability to commit those activities. It intimidates people so they do not want to become witnesses, and makes gang crimes hard to solve and prosecute.
DISCUSSION
I
LIMITATION ON IMPEACHMENT
A. Background
Defendant moved, in limine, to be permitted to impeach Taylor with 2002 and 2012 convictions for forgery (§ 470, subd. (b)), 2005 and 2007 convictions for burglary (§ 460, subd. (b)), and a 2002 conviction for reckless evasion of a peace officer (Veh. Code, § 2800.2). The prosecutor objected to using all the convictions, given their number and similarity, but otherwise did not oppose the motion.
The court observed that the law did not permit a witness to testify under a false aura of credibility, and it recognized Taylor was a percipient or critical witness whose credibility would be at issue at trial. The court found all five convictions were for conduct involving moral turpitude, then considered remoteness in time and the number of convictions. Pursuant to Evidence Code section 352, it ruled Taylor could be impeached with her 2012 forgery conviction and her 2005 and 2007 commercial burglary convictions. In light of the fact all occurred within the preceding 10 years, and given their number, the court found the probative value outweighed the prejudicial effect. With respect to the 2002 convictions, the court concluded they were over 12 years old and, hence, remote. The court found the probative value of the 2002 convictions "diminish[ed] greatly" when the other three convictions were considered, so that the prejudicial effect of the 2002 convictions outweighed their probative value.
At trial, defense counsel elicited that at the time of the March 2 shooting, Taylor was on probation for forgery. Taylor testified she had also been convicted of burglaries and, she thought, "a high-speed. Something like that." She admitted having suffered three felony convictions.
Defendant now contends the trial court abused its discretion by precluding him from impeaching Taylor with all her prior felony convictions. He says the error violated his federal constitutional confrontation and fair trial rights. We find neither abuse of discretion nor violation of defendant's rights. B. Analysis
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.]
" '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.' [Citations.] When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, [and, where the witness is the defendant,] whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify. . . .
"Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion. [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 931-932, fn. omitted.)
Taylor's felony convictions all were for crimes involving moral turpitude. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 [burglary and theft-related crimes]; People v. Dewey (1996) 42 Cal.App.4th 216, 222 [felony evasion]; People v. Parrish (1985) 170 Cal.App.3d 336, 349 [forgery].)
"[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.) Because Taylor did not lead a blameless life following her 2002 convictions, the trial court reasonably could have permitted those convictions to be used for impeachment, despite their remoteness in time and the number of convictions. (See, e.g., People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926; People v. Green (1995) 34 Cal.App.4th 165, 183.) This does not mean the court acted unreasonably in not doing so, however. Defendant fails to convince us that, in light of the admission of three prior convictions spanning a range of up to 10 years before trial, the exclusion of two older prior convictions gave Taylor a false aura of veracity by hiding from the jury her "ingrained, long-standing character for dishonesty." (Compare People v. Richardson (2008) 43 Cal.4th 959, 1009 & People v. Pitts (1990) 223 Cal.App.3d 1547, 1554 with People v. Green, supra, 34 Cal.App.4th at p. 183 & People v. Muldrow (1988) 202 Cal.App.3d 636, 647.) " 'When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.' [Citation.]" (People v. Goldman (2014) 225 Cal.App.4th 950, 959.)
We recognize that Evidence Code section 352 "must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 999.) The limitation placed by the trial court on defendant's impeachment of Taylor did not violate defendant's constitutional rights, however. " 'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]' " (People v. Cudjo (1993) 6 Cal.4th 585, 611.)
" '[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, "to expose to the jury the facts from which jurors . . . could appropriately draw inferences related to the reliability of the witness." ' [Citation.] However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witness's] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.)
In the present case, in addition to admitting she had suffered three prior felony convictions, Taylor testified about being on a probation monitoring device at the time of the first shooting, and to being in jail for approximately 13 days between the time of the first shooting and her first trip to North Dakota. Taylor also was examined extensively about her bias and motives for testifying. Jurors learned that the third time she spoke to officers and purportedly told them the truth, she was in custody for stabbing defendant with a large knife and, by her own admission, wanted to get back at defendant for calling 911. Jurors also learned she was testifying at trial under an immunity agreement, and was facing federal drug charges that potentially carried a 40-year sentence. Taylor also testified defendant beat her on numerous occasions, and she stated she was testifying because defendant "did [her] so wrong."
Under the circumstances, the impeachment of Taylor with two additional prior convictions that were more than 10 years old would not have produced a significantly different impression of her credibility.
II
CALCRIM NO. 318
A. Background
M.G.'s testimony is summarized in the statement of facts, ante. As noted, she related to Dossey incriminating information she said defendant told her. At trial, however, she testified the actual source of the information was S.C.
Apparently without objection, the trial court instructed, pursuant to CALCRIM No. 318: "You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: one, to evaluate whether the witness's testimony in court is believable; and, two, as evidence that the information in those earlier statements is true."
The jury instruction conference was not reported. On the record, defense counsel stated there were no instructions in the jury instruction packet that he requested that the court not give. The record does not reflect which party, if either, requested the instruction or whether it was given on the court's own motion. (Contrary to defendant's assertion, the box for "Given as Modified" is checked on the written instruction, not the box for "Given on Court's Motion.")
Defendant now contends the giving of the instruction constituted prejudicial error. He argues CALCRIM No. 318 was misleading under the circumstances of this case, because it permitted the jury to use inadmissible hearsay against defendant. He reasons as follows: Hearsay evidence (Evid. Code, § 1200, subd. (a)) generally is inadmissible (id., subd. (b)). If there are multiple levels of hearsay, each must meet the requirements of an exception to the hearsay rule. (Evid. Code, § 1201.) M.G.'s statements to Dossey were admissible under the hearsay exception for prior inconsistent statements. (Id., § 1235.) If defendant directly provided the information to M.G., this second level of hearsay fell within the hearsay exception for admissions by a party. (Id., § 1220.) If, however, the information came from S.C., who did not testify, the second level of hearsay did not fall within any exception, and S.C.'s statements could not be used as evidence against defendant.
We conclude defendant forfeited his claim by failing to request modification or clarification of the instruction. We further conclude defendant was not prejudiced, whether we consider the issue on the merits or by way of defendant's alternative argument that if the claim of error was forfeited, counsel rendered ineffective assistance. Finally, having found no error with respect to the limitations placed on defendant's impeachment of Taylor, we reject defendant's claim the instructional error was cumulatively prejudicial to that purported error. B. Analysis
A trial court has no sua sponte duty to instruct on prior inconsistent statements. (People v. Griffin (1988) 46 Cal.3d 1011, 1026.) A trial court does, however, have a duty to give legally correct instructions. "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.)
Defendant concedes CALCRIM No. 318 was correct as an abstract principle of law, but claims it was misleading in his case. If he believed this was the situation, he should have requested a modification or clarification. His failure to do so, or to request an instruction applying specifically to the double hearsay issue about which he now raises concerns, forfeited the issue for purposes of appeal. (See, e.g., People v. Chism (2014) 58 Cal.4th 1266, 1308; People v. Valdez (2004) 32 Cal.4th 73, 113; People v. Lewis (2001) 26 Cal.4th 334, 362; People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.)
Assuming the purported instructional error affected defendant's substantial rights, so that the issue was preserved for review despite the lack of objection or request for modification (§ 1259; see, e.g., People v. Hudson (2009) 175 Cal.App.4th 1025, 1028; People v. Solórzano (2007) 153 Cal.App.4th 1026, 1038), we find no cause for reversal. "The relevant inquiry here is whether, 'in the context of the instructions as a whole and the trial record, there is a reasonable likelihood that the jury was misled to defendant's prejudice.' [Citation.]" (People v. Sattiewhite (2014) 59 Cal.4th 446, 475; accord, e.g., People v. Solomon (2010) 49 Cal.4th 792, 822.) " ' " 'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.' " ' [Citation.]" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) " 'Moreover, any theoretical possibility of confusion [may be] diminished by the parties' closing arguments . . . .' [Citation.]" (People v. Hajek and Vo, supra, at p. 1220.)
Citing Francis v. Franklin (1985) 471 U.S. 307, 316, defendant asserts jury instructions are to be reviewed "in terms of what a 'reasonable juror' could understand the instructions to mean." (Italics added.) In Boyde v. California (1990) 494 U.S. 370, 379-380, however, the United States Supreme Court rejected standards requiring examination of what a reasonable juror "could" or "would" have done, and settled instead on the "reasonable likelihood" standard. (See Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
CALCRIM No. 318 informed jurors that they had heard evidence of statements a witness made before trial. The statements made by M.G. to Dossey prior to trial included a statement that defendant told her what he did. Under the instruction, jurors first had to determine whether M.G. made those statements. We have no doubt jurors so found; a recording of M.G.'s conversation with Dossey was played for the jury, and M.G. confirmed it was her voice on the recording. Having found that M.G. made a statement that defendant told her what he did, jurors then were permitted to use that statement (1) to evaluate whether M.G.'s trial testimony — that the source of the information was S.C. — was believable, and (2) as evidence the information in the earlier statements — including that defendant was the source of the information about the shooting — was true.
We do not believe there is a reasonable likelihood jurors interpreted the instruction as permitting them to use the information about the circumstances of the shooting if they concluded, as M.G. testified at trial, that S.C. told her "about the shooting that she thought she knew about or something" and that M.G. never talked to defendant about the matter. This is particularly true in light of the attorney's arguments to the jury, which strongly implied what mattered was whether M.G. told Dossey the truth about defendant being the source of her information.
Assuming error occurred, either because the trial court should have made it clear jurors could not use M.G.'s statements against defendant if they found S.C. was the source of the information, or because defense counsel rendered ineffective assistance by not requesting an appropriate clarification, defendant has failed to establish prejudice. Defendant recognizes the standard applicable to instructional error of this nature is that set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), i.e., whether it is reasonably probable defendant would have achieved a more favorable result absent the error. The "reasonable probability" standard also pertains to the showing required to obtain reversal for ineffective assistance of counsel, in the context of which " '[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
We find no reasonable probability of a more favorable result. As the prosecutor argued, the recording itself (to which we have listened) strongly suggested M.G. was lying about talking to S.C. on one phone while at the same time relaying information to Dossey on a second phone. More importantly, M.G.'s statements about the circumstances of the shooting were corroborated by, and cumulative of, other evidence.
Defendant says the error with regard to CALCRIM No. 318 was cumulatively prejudicial with the error discussed in part I, ante. Since we found no error or violation of defendant's rights with respect to Taylor's impeachment, however, there is no prejudice to cumulate.
III
THE GANG EXPERT'S TESTIMONY
As summarized in the statement of facts, ante, Malley testified as the People's gang expert. His opinions were based on a combination of, inter alia, his own training, experience, and contact with gang members; individuals' tattoos; jail booking admissions; and street checks and offense reports.
Trial was held, and Malley testified, in 2015. The following year, the California Supreme Court issued its opinion in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), in which it delineated the rules regarding expert reliance on, and relaying to the jury of, hearsay, under both state law and Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Defendant now contends the trial court incorrectly overruled one purportedly significant hearsay objection raised by defense counsel, defense counsel rendered ineffective assistance by not objecting to other instances of hearsay and testimonial hearsay, and, if counsel's performance was not deficient because Sanchez's holding could not reasonably be anticipated and/or any objection would have been futile, the issue nevertheless is cognizable on appeal as trial court error. Defendant says he is entitled to reversal of the gang-murder special circumstance (§ 190.2, subd. (a)(22)), the gang enhancements (§ 186.22, subd. (b)), and counts 5 and 12 (the counts charging active participation under § 186.22, subd. (a)). We conclude defendant is not entitled to reversal. A. Procedural Background
The People moved, in limine, to admit gang expert testimony and gang evidence. Prior to his removal as a codefendant, Goodson moved for an Evidence Code section 402 hearing to establish the qualifications of the People's gang expert. Defendant moved generally for the exclusion of out-of-court statements from nontestifying witnesses, pursuant to Crawford. With respect to the gang expert, he requested an Evidence Code section 402 hearing to allow the court to make a ruling as to the validity of the testimony, and to ensure the testimony and/or opinion was "(1) based on matter of a type [on] which the expert may reasonably rely, (2) based on reasons supported by the material in [sic] which the expert relies; and (3) is not speculative." The trial court denied the Crawford motion as being overly broad, but did so without prejudice. Defense counsel stated that he understood the court's concern, and would notify the court if the situation arose. The court granted both defendants' requests for Evidence Code section 402 hearings, focused primarily on Malley's qualifications and the foundation for his opinions.
During his trial testimony, Malley stated he had never before contacted defendant in person. He became familiarized with defendant through his in-the-field work on the wiretap operation, as well as through the documentation he reviewed in preparation for court. As one of the offenses used to demonstrate the primary activities of the Country Boy Crips as well as the pattern of criminal activity, Malley recited the facts of a 2008 offense in which defendant and Justin committed a carjacking, and following which defendant admitted to police that he had associated with the Country Boy Crips all his life and identified Justin as a Country Boy Crip. When subsequently asked by the prosecutor about the basis for his opinion Justin was a Country Boy Crip, Malley said it was based, in part, on defendant's admission of that fact in conjunction with his arrest for the 2008 offense. Defense counsel objected on hearsay grounds; when the prosecutor responded that Malley was relying on the statement for his opinion, the objection was overruled. The defense's hearsay objection was also overruled when made in response to Malley's use of defendant's 2008 statement as a basis for Malley's opinion as to whether defendant was a Country Boy Crip.
During Malley's recitation of street checks involving defendant, Malley testified that on October 28, 2012, an officer contacted defendant at Kern Medical Center after defendant was shot. The deputy who was at the hospital told the officer that defendant told him the shooting was gang related, because defendant was an active Country Boy Crip. Defense counsel objected on hearsay grounds, but the prosecutor again responded that Malley was relying on it for his opinion. The court told the jury: "Ladies and gentlemen, the Court would otherwise sustain the hearsay objection, but it's going to allow this witness to rely on what's categorized as reliable hearsay on the basis of forming his ultimate opinion. You can consider the information just as it relates to this witness's opinion, but you cannot consider it for the truth of the matter asserted. So you can consider the statements made in the previous answer for that limited purpose only."
Defendant did not object, on hearsay or Crawford grounds, to any of the other portions of Malley's testimony. B. Analysis
If a witness is testifying as an expert, his or her opinion may be "[b]ased on matter . . . perceived by or personally known to the witness or made known to him [or her] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion . . . ." (Evid. Code, § 801, subd. (b).) Generally speaking, such permissible basis evidence includes hearsay. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 366.)
As previously described, hearsay — extrajudicial statements offered to prove the truth of the matter asserted — is inadmissible except as provided by law. (Evid. Code, § 1200.) Moreover, if a hearsay statement is "testimonial," it generally cannot, consistent with the confrontation clause of the Sixth Amendment to the United States Constitution, be introduced against a defendant in a criminal trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. (Crawford, supra, 541 U.S. at pp. 53-54.) From Crawford and the United States Supreme Court's opinion in Davis v. Washington (2006) 547 U.S. 813, the California Supreme Court has derived these basic principles:
"First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in
purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony — to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984, fns. omitted.)
The United States Supreme Court has since recognized that "there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. . . . Where no such primary purpose exists, the admissibility of a statement is the concern of state . . . rules of evidence, not the Confrontation Clause." (Michigan v. Bryant (2011) 562 U.S. 344, 358-359, fn. omitted.)
At the time of defendant's trial, California Supreme Court precedent permitted the type of expert testimony at issue here. (People v. Gardeley (1996) 14 Cal.4th 605, 617-620 (Gardeley).) Serious questions had been raised, however, concerning the continuing validity, post-Crawford, of the notion evidence forming the basis of an expert's opinion was not offered for its truth. (See, e.g., Williams v. Illinois (2012) 567 U.S. 50, 108-109 (conc. opn. of Thomas, J.); id. at pp. 125-133 (dis. opn. of Kagan, J.); People v. Dungo (2012) 55 Cal.4th 608, 627 (conc. opn. of Werdegar, J.); id. at p. 635, fn. 3 (dis. opn. of Corrigan, J.); People v. Valadez (2013) 220 Cal.App.4th 16, 31-32; People v. Hill (2011) 191 Cal.App.4th 1104, 1129-1137; but see People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 .) In addition, the California Supreme Court had already granted review in Sanchez, formerly 223 Cal.App.4th 1, review granted May 14, 2014, S216681.
In Sanchez, the state high court addressed the interplay between basis evidence, the hearsay rule, and Crawford. The court observed: "The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise. . . . [¶] By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.)
The court provided the following example: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at p. 677.)
The court determined that in light of state hearsay rules and Crawford, "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 [by wrongdoing], 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.)
Sanchez disapproved Gardeley, supra, 14 Cal.4th 605, "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) It also disapproved a number of its prior decisions that had concluded an expert's basis testimony is not offered for its truth. (Ibid.)
After examining United States Supreme Court and California authorities, the California Supreme Court "adopt[ed] the following rule: When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) The court cautioned that it was not calling into question "the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field." (Id. at p. 685.) "Gang experts, like all others, can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code. They can rely on information within their personal knowledge, and they can give an opinion based on a hypothetical including case-specific facts that are properly proven. They may also rely on nontestimonial hearsay properly admitted under a statutory hearsay exception." (Ibid.) An expert may still rely on hearsay in forming an opinion, "and may tell the jury in general terms that he did so." (Ibid.) What experts "cannot do is present, as facts, the content of testimonial hearsay statements." (Ibid.) "When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements 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. Further, testimonial statements do not become less so simply because an officer summarizes a verbatim statement or compiles the descriptions of multiple witnesses." (Id. at p. 694.)
There can be no doubt Malley conveyed some evidence to the jury that clearly was testimonial hearsay. (See, e.g., Sanchez, supra, 63 Cal.4th at pp. 694, 697 [police reports compiled about completed crime; "FI" cards produced in course of ongoing criminal investigation]; People v. Iraheta (2017) 14 Cal.App.5th 1228, 1248-1250 [statements memorialized on "FI" cards prepared in course of investigation into potential crime].) Defense counsel made very few hearsay objections, and none under Crawford that were specifically aimed at Malley's testimony, however.
Booking admissions may or may not be testimonial. (Compare People v. Vega-Robles (2017) 9 Cal.App.5th 382, 415 with People v. Leon (2016) 243 Cal.App.4th 1003, 1018-1019, 1020.) In People v. Elizalde (2015) 61 Cal.4th 523, 531, 538-539, however, the state Supreme Court concluded that jail classification interviews are a form of custodial interrogation for purposes of the Fifth Amendment. Although defendant did not object at trial to Malley's reliance on booking admissions, nor does he raise the issue on appeal, we will assume, for purposes of our prejudice analysis, post, that defendant's booking admissions should not have been presented to the jury.
Defendant's broad pretrial motion on Crawford grounds does not constitute a timely and specific objection to gang expert testimony, particularly where it was denied without prejudice. (See People v. Lindberg (2008) 45 Cal.4th 1, 48; People v. Blessett (2018) 22 Cal.App.5th 903, 926-927, petn. for review pending, petn. filed June 8, 2018.) Moreover, the hearsay objections defendant did make did not preserve a Crawford claim. (See People v. Rangel, supra, 62 Cal.4th at pp. 1216-1217.)
It has long been settled that a timely and specific objection at trial — on the same ground — is necessary to preserve for appeal a claim of state law error in the admission of hearsay or a claim of confrontation clause violation. (E.g., People v. Redd (2010) 48 Cal.4th 691, 730; People v. Harrison (2005) 35 Cal.4th 208, 239; People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) The duty to object will be excused, however, if an objection would have been futile. (E.g., People v. McKinnon (2011) 52 Cal.4th 610, 654; People v. Carrillo, supra, at p. 101.)
We decline to decide whether, in light of Gardeley's holding and the fact the trial court overruled defendant's hearsay objection to the hospital street check, further objections on hearsay and/or confrontation clause grounds would have been futile. Such an undertaking would be an idle act on our part, since we are convinced any error with respect to admission of Malley's testimony was harmless.
Crawford error is assessed under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661; see, e.g., Sanchez, supra, 63 Cal.4th at p. 699.) State law error in the admission of hearsay is assessed under the reasonable probability standard of Watson, supra, 46 Cal.2d at page 836. (People v. Duarte (2000) 24 Cal.4th 603, 619.) Defendant claims prejudice with respect to whether he was an active participant in a gang and whether the crimes were gang related. These issues affect counts 5 and 12, the active participation charges under section 186.22, subdivision (a); the gang-murder special circumstance (§ 190.2, subd. (a)(22)) appended to count 1; and the gang enhancements (§ 186.22, subd. (b)) appended to counts 1 through 4, 6 through 11, and 13.
"[T]he elements of the gang offense [proscribed by section 186.22, subdivision (a)] are (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engaged in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.] All three elements can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related." (People v. Albillar (2010) 51 Cal.4th 47, 56 (Albillar).) A person need not be a member of a gang to be guilty of violating section 186.22, subdivision (a) (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (lead opn. of Corrigan, J.)), nor is mere membership in a gang enough to establish the offense (Gardeley, supra, 14 Cal.4th at p. 623). The person need not occupy a leadership position in the gang or devote a substantial part of his or her time and efforts to the gang, but must take part in a manner that is not passive. (People v. Castenada (2000) 23 Cal.4th 743, 747.) The defendant's active participation must be shown to have occurred at or reasonably near the time of the crime(s) (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509), and he or she must commit an underlying felony with at least one other gang member (People v. Rodriguez, supra, 55 Cal.4th at p. 1134 (lead opn. of Corrigan, J.).)
Section 190.2, subdivision (a)(22) mandates a sentence of death or life in prison without the possibility of parole where the defendant is convicted of first degree murder and the jury finds he or she "intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . , and the murder was carried out to further the activities of the criminal street gang." It "contains three basic elements: (1) the defendant must intentionally kill the victim; (2) while an active participant in a criminal street gang; (3) in order to further the activities of the gang." (People v. Mejia (2012) 211 Cal.App.4th 586, 612.) As is the case with section 186.22, subdivision (a), "there is a constitutional requirement that, before a defendant can be penalized for being an active participant in a criminal organization . . . the defendant must be shown to have had knowledge of the gang's criminal purposes." (People v. Carr (2010) 190 Cal.App.4th 475, 487.) "[T]he evidence that allows a jury to find a felony was committed for the benefit of a gang within the meaning of section 186.22, subdivision (b)(1), also typically supports a finding the defendant knew of the criminal activities of the gang. . . . [J]ust as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities. [Citation.]" (Id. at pp. 488-489, fn. omitted.)
A gang enhancement requires proof the defendant committed the substantive offense (1) "for the benefit of, at the direction of, or in association with any criminal street gang," and (2) "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) "[T]he Legislature included [the first requirement] to make it 'clear that a criminal offense is subject to increased punishment . . . only if the crime is "gang related." ' [Citation.] Not every crime committed by gang members is related to a gang." (Albillar, supra, 51 Cal.4th at p. 60.) A crime is gang related, however, if, inter alia, it is committed in association with the gang, or it is committed for the benefit of the gang. (Ibid.) A crime is committed in association with a gang where the perpetrators "relied on their common gang membership and the apparatus of the gang" in committing the crimes. (Ibid.) Because the statute lists the requirements of the first prong in the disjunctive, if the crime was committed for the benefit of the gang, it need not have been committed in association with the gang, and vice versa.
With respect to the second, specific intent prong, "the scienter requirement . . . is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, 51 Cal.4th at p. 66.) "There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. [Citations.]" (Id. at p. 67.)
In the present case, a significant amount of Malley's testimony did not run afoul of Sanchez, either with respect to state hearsay rules or with respect to Crawford. (See, e.g., People v. Blessett, supra, 22 Cal.App.5th at pp. 947-948; People v. Iraheta, supra, 14 Cal.App.5th at p. 1248; People v. Vega-Robles, supra, 9 Cal.App.5th at pp. 412-413; People v. Valadez, supra, 220 Cal.App.4th at pp. 35-36.) This admissible testimony included how the charged crimes benefited the Country Boy Crips. The wiretapped conversations — which not only were analyzed by Malley, but which were admitted into evidence and played for the jury (cf. People v. Martinez (2018) 19 Cal.App.5th 853, 858), and which presented none of the credibility problems defendant alleges with respect to Taylor and D. — demonstrated defendant's consistent involvement in the Country Boy Crips and that the July shooting was gang related. In addition, Taylor testified defendant was a Country Boy Crip, and the jury heard evidence of defendant's admissions to D. and M.G. concerning the gang-related purpose of the March shooting.
In light of all the properly admitted evidence, we conclude the trial court's error in admitting those portions of Malley's testimony consisting of case-specific hearsay and case-specific testimonial hearsay was harmless under either the Watson or the Chapman standard. (See People v. Jablonski (2006) 37 Cal.4th 774, 821.) Defendant is not entitled to reversal of the substantive gang crime convictions, the true findings as to the gang enhancements, or the true finding as to the gang-murder special circumstance.
It follows that, were we to find the issue forfeited by defense counsel's failure to object, defendant's ineffective assistance of counsel claim would fail for lack of prejudice. To establish prejudice on such a claim, a defendant must show a reasonable probability — that is, " 'a probability sufficient to undermine confidence in the outcome' " — of a more favorable result absent counsel's shortcomings. (People v. Cunningham, supra, 25 Cal.4th at p. 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.) Where, as here, an error can be declared harmless beyond a reasonable doubt, no such probability exists.
IV
THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE
Defendant contends the lying-in-wait special circumstance must be stricken, because it was never charged. The Attorney General says the record impliedly shows it was added after the information was filed, and any error was harmless in any event. We agree with defendant, and decline the Attorney General's suggestion that we remand the matter to the trial court to resolve what the Attorney General terms "the ambiguity in the record." A. Procedural Background
In pertinent part, the complaint alleged, with respect to count 1, a gang-murder special circumstance pursuant to section 190.2, subdivision (a)(22). At the conclusion of the preliminary hearing, the magistrate confirmed this was the only special circumstance alleged, and held defendant to answer accordingly. The original information, filed July 22, 2014, added a drive-by-murder special circumstance. (§ 190.2, subd. (a)(21).) Defendant was arraigned on that information.
The People moved, in limine, to amend the information by interlineation to correct the dates of two prior convictions already alleged. The court granted the request, and defendant was arraigned on the amended information. In the course of discussing the information, the prosecutor stated that the theories pursuant to which he was alleging first degree murder in count 1 were premeditation, shooting from a vehicle with intent to cause death, and lying in wait. As read to the jury, the information included lying in wait as a means by which the crime in count 1 was done within the meaning of section 189, but only the drive-by and gang-murder special circumstances.
At the conclusion of the evidentiary portion of trial, the court noted the prosecutor had mentioned, during an in chambers conference, that he was moving to amend counts 2 and 6 of the information to add section 12022.53, subdivision (c) enhancements thereto. The defense did not object, the motion to amend was granted, and defendant was arraigned accordingly.
The court then turned to the instructional conference held in chambers, focusing on whether and to what extent it would instruct on lesser included offenses and on self-defense and defense of others. At the conclusion of that discussion, defense counsel stated there were no instructions in the packet prepared by the court that he requested not be given.
In the course of instructing the jury, the court instructed on lying in wait as one of the theories under which first degree murder could be found as to count 1. The trial court subsequently instructed the jury on drive-by and gang-murder special circumstances, as well as on the special circumstance of murder committed by means of lying in wait, in violation of section 190.2, subdivision (a)(15). Defense counsel raised no objection, and the jury returned true findings on all three special circumstances. B. Analysis
Pursuant to section 190.2, subdivision (a)(15), the penalty for a defendant found guilty of first degree murder is death or life in prison without the possibility of parole if the defendant "intentionally killed the victim by means of lying in wait" and that special circumstance "has been found under Section 190.4 to be true." Section 190.4, subdivision (a) provides: "Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance." (Italics added.) Read together, these statutes do not permit a sentence of death or life in prison without the possibility of parole to be imposed unless the special circumstance has been pled and proved. (In re C.R. (2008) 168 Cal.App.4th 1387, 1392, fn. 4; see People v. Morris (1988) 46 Cal.3d 1, 14, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5 & 545, fn. 6; People v. Balderas (1985) 41 Cal.3d 144, 200, fn. 27.)
The record on appeal contains no showing the lying-in-wait special circumstance was ever alleged or that defendant was arraigned on an accusatory pleading containing such an allegation. This is not a mere ambiguity; this is a failure of pleading.
It has been held that "[w]here a defendant fails to object at trial to the adequacy of the notice he receives, any such objection is deemed waived. [Citation.]" (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1056.) Assuming this statement could apply here, in face of the statutory pleading and proof requirements, we nevertheless have the authority to address the merits of an otherwise forfeited issue to forestall a claim of ineffective assistance of counsel. (People v. Turner (1990) 50 Cal.3d 668, 708; People v. Lewis (1990) 50 Cal.3d 262, 282.) We find it particularly appropriate to do so here, where, assuming the lying-in-wait special circumstance was discussed in chambers or off the record, there is no assurance defendant was present or ever made aware of such a discussion. (Compare People v. Houston (2012) 54 Cal.4th 1186, 1226-1229 with People v. Perez (2017) 18 Cal.App.5th 598, 616-618.)
"Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citations.]" (People v. Seaton (2001) 26 Cal.4th 598, 640.) " ' "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." ' [Citation.] '[T]he role of the accusatory pleading is to provide notice to the defendant of the charges that he or she can anticipate being proved at trial. "When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecution's intent to prove all the elements . . . ." ' [Citation.] Moreover, ' "[i]t is fundamental that '[w]hen a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.]' " ' " (People v. Ochoa (2016) 2 Cal.App.5th 1227, 1232.) These principles extend to sentence enhancements and analogous provisions, even where the requirements of those provisions are subsumed in the requirements of the underlying offense. (See People v. Mancebo (2002) 27 Cal.4th 735, 747.)
We have been unable to find a published opinion involving the validity of a true finding on an unalleged special circumstance. We have, however, examined cases involving the analogous situations of failure to plead qualifying circumstances for sentencing under the One Strike law (§ 667.61; People v. Mancebo, supra, 27 Cal.4th 735; People v. Perez (2015) 240 Cal.App.4th 1218, 1223-1227); failure to allege attempted murders were willful, deliberate, and premeditated, as required by section 664, subdivision (a) (People v. Perez, supra, 18 Cal.App.5th at pp. 614, 617-618; People v. Arias (2010) 182 Cal.App.4th 1009, 1017-1021); failure to plead a prior conviction under the Three Strikes law, where the conviction itself was alleged to be a serious or violent felony (People v. Sawyers (2017) 15 Cal.App.5th 713, 720-727); and failure to plead subdivision (e)(1) of section 12022.53 (People v. Botello (2010) 183 Cal.App.4th 1014, 1026-1029).
These opinions lead to the inescapable conclusion the lying-in-wait special circumstance cannot stand. Section 190.4, subdivision (a) makes no exception to its pleading requirements for special circumstances that overlap elements of the underlying offense. Rather, those requirements apply to all special circumstances. (See People v. Mancebo, supra, 27 Cal.4th at p. 752.) Those requirements, and defendant's due process rights, were violated not because defendant was never on notice the People were pursuing a lying-in-wait theory of first degree murder or seeking a sentence of life in prison without the possibility of parole based on special circumstances, but because he was never on notice the People were seeking a sentence of life in prison without the possibility of parole in part based on a lying-in-wait special circumstance. (See id. at p. 753.)
We recognize that, as a practical matter, striking one of three special circumstances will not lessen defendant's sentence. This does not render the error harmless, however. We cannot predict whether being subject to three special circumstances instead of two may have some adverse effect on defendant in the future. Moreover, the courts and all parties have an interest in ensuring the correctness of their judgments. The lying-in-wait special circumstance must be stricken. (See People v. Mancebo, supra, 27 Cal.4th at p. 754.)
V
SENTENCE ON THE ATTEMPTED MURDER COUNTS
As described, defendant was convicted, in counts 2, 6, and 7, of premeditated attempted murder, and, as to each count, the section 186.22, subdivision (b)(1), gang enhancement allegation was found true. On each count, the trial court sentenced defendant to a consecutive term of "15 years to life" in prison. Line 6a. of the abstract of judgment for the indeterminate terms is checked. That line states "15 years to Life on counts 2, 6, 7." Defendant now contends sentence on each count must be corrected to show his sentence to be "life with a minimum parole period of 15 years."
Pursuant to subdivision (a) of section 664, the punishment for premeditated attempted murder is life in prison with the possibility of parole. Pursuant to section 3046, subdivision (a), a person serving a life sentence "shall not be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years. [¶] (2) A term as established pursuant to any other law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole." Subdivision (b)(5) of section 186.22 establishes such a minimum term or period of confinement, as it provides, with exceptions not applicable here, that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
Because, on counts 2, 6, and 7, gang allegations were found true and the underlying felony already carried a life sentence, defendant is correct: the sentence for each count was life in prison with the possibility of parole with a 15-year minimum term for parole eligibility. Defendant does not, however, explain why the use of the phrase "15 to life," is error requiring a modification order.
The inclusion of the minimum term of imprisonment established by sections 186.22 and 3046 in an oral pronouncement of sentence is not error. (People v. Jefferson (1999) 21 Cal.4th 86, 101-102, fn. 3 (Jefferson).) In Jefferson, the question was whether doubling under section 667, subdivision (e)(1), of the Three Strikes law applied to the 15-calendar-year imprisonment before parole requirement of section 186.22, subdivision (b)(4). (Jefferson, supra, at pp. 89-90.) Section 667, subdivision (e)(1) requires doubling the "minimum term" if the current felony is punished by an indeterminate term of imprisonment. "For example, a defendant who has a prior strike and who is convicted of a felony punishable by a term of 15 years to life in prison will receive a sentence of 30 years . . . to life." (Jefferson, supra, at pp. 89-90.) The California Supreme Court held the 15 years of imprisonment before parole in section 186.22, read with section 3046, established a minimum term of 15 years subject to doubling under section 667, subdivision (e)(1). (Jefferson, supra, at p. 90.) It further noted the trial court's pronouncement of sentence which included the minimum term established by sections 186.22 and 3046, was not error. "By including the minimum term of imprisonment in its sentence, a trial court gives guidance to the Board of [Parole Hearings] regarding the appropriate minimum term to apply, and it informs victims attending the sentencing hearing of the minimum period the defendant will have to serve before becoming eligible for parole." (Jefferson, supra, at p. 102, fn. 3.)
Proposition 21, passed by voters on March 7, 2000, renumbered subdivisions in section 186.22. The 15-calendar-year imprisonment before parole requirement became subdivision (b)(5). (People v. Lopez (2005) 34 Cal.4th 1002, 1006.)
Defendant argues, however, that the specific language used matters because "[t]he 15-year-minimum parole period becomes subsumed in the sentence of 25 years to life under section 12022.53, subdivision (d) imposed on each count, rather than being added to the sentence on each count." Defendant is incorrect. In People v. Villegas (2001) 92 Cal.App.4th 1217, the defendant was convicted, inter alia, of premeditated attempted murder and enhancement allegations under section 186.22, subdivision (b)(1) and section 12022.53, subdivision (d) were found true. (People v. Villegas, supra, at p. 1221.) The trial court sentenced Villegas to "40 years to life" after adding the 15-year minimum parole period under section 186.22, subdivision (b), to the 25-year-to-life term for the gun use enhancement. (People v. Villegas, supra, at pp. 1221, 1228.) Villegas argued the trial court erroneously sentenced him to a term of 15 years to life for the attempted murder conviction. (Id. at p. 1222.) "Specifically, defendant argue[d] that the court treated the sentencing prescription for the gang allegation in section 186.22, subdivision (b)(5), as a sentence enhancement by improperly adding a 15-year-to-life sentence to defendant's life term and consecutive 25-year-to-life term for the gun use enhancement." (Id. at p. 1228, italics omitted.) The court found no error. (Ibid.)
Here, the Attorney General concedes "it is common for the 15-year minimum parole eligibility to be expressed as a 15-year-to-life term," but "does not object to the abstract of judgment being amended to reflect the imposition of life terms with 15-year minimum parole eligibilities on counts 2, 6 and 7." (Fn. omitted.)
Minimum prison time before parole is often expressed in terms of years to life. (E.g., People v. Caballero (2012) 55 Cal.4th 262, 265 [sentence imposed for attempted murder committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664) expressed as 15 years to life]; People v. Leon, supra, 243 Cal.App.4th at pp. 1010, 1026 [sentence referred to as 15 years to life when based on the alternate penalty in § 186.22, subd. (b)(4)(B)]; People v. Campos (2011) 196 Cal.App.4th 438, 442, 445, 446 [sentence imposed for attempted willful, deliberate and premeditated murder described §§ 187, subd. (a), 664, subd. (a), 3046, subd. (a)(1) as seven years to life], disapproved on other grounds by People v. Fuentes (2016) 1 Cal.5th 218, 229, fn. 8.) This may be in part because the phrase "15 years to life" is understood to mean a 15-year minimum parole eligibility period. (§ 190, subds. (a), (e) [second degree murder shall be punished by imprisonment in the state prison for a term of 15 years to life and a person so sentenced shall not be released on parole prior to serving that minimum term of confinement]; People v. Lopez (2005) 34 Cal.4th 1002, 1009 [second degree murderers have a minimum parole eligibility term of 15 years].)
The problem, however, with the Attorney General's agreement to the abstract of judgment being amended is that the abstract of judgment accurately reflects the trial court's oral judgment. "An abstract of judgment . . . may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Additionally, the abstract of judgment "gives guidance to the Board of [Parole Hearings] regarding the appropriate minimum term to apply." (Jefferson, supra, 21 Cal.4th at p. 102, fn. 3.)
The sentences imposed for the attempted murder convictions need not be modified, nor must the abstract of judgment be corrected with regard thereto.
VI
SENATE BILL NO. 620
Defendant was sentenced on September 2, 2015. The court imposed the aggravated term on all counts that were subject to determinate sentences (all of which it then stayed pursuant to § 654), and it imposed consecutive terms on the murder and attempted murder counts, along with a consecutive firearm enhancement (§ 12022.53, subd. (d)) as to each of those counts.
At the time defendant was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." Thus, the trial court was required to enhance defendant's sentence on counts 1, 2, 6, and 7 by 25 years to life, pursuant to section 12022.53.
The trial court was also required to, and did, enhance defendant's sentence on some of the remaining counts pursuant to section 12022.5, which contained the identical provision. (Id., subd. (c).) Since the section 12022.5 enhancements all were stayed, pursuant to section 654, along with the sentence on the counts to which those enhancements pertained, we do not address them further.
After defendant was sentenced, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, § 2.) As of January 1, 2018, subdivision (h) of section 12022.53 provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Defendant's case was not yet final when the foregoing amendment went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) In light of this fact and the fact section 12022.53, subdivision (h) now vests the trial court with authority to lower defendant's sentence, we conclude the amendment applies to the instant case, as the Attorney General concedes. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; see People v. Francis (1969) 71 Cal.2d 66, 75-76.)
Nevertheless, we conclude a remand would be a futile act, and therefore should not be ordered. As described, the trial court imposed the maximum possible sentence, even when it had discretion to impose less than the upper term. Under the circumstances, and in light of the trial court's comments about gang violence needing to stop, we find it clear the trial court would not exercise its discretion to strike any of the section 12022.53, subdivision (d) enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) No purpose would be served by remanding the matter.
We believe, on the facts of this case, the trial court would have erred had it not applied section 654 to the counts as to which it stayed sentence.
DISPOSITION
The lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)) found true in conjunction with count 1 is stricken. As so modified, the judgment is affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modification, and to transmit a certified copy of same to the appropriate authorities.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.