Opinion
D073856
08-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JAIME RAMIRO VEGA, Defendant and Appellant.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kristen Chenelia, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1306306) APPEAL from a judgment of the Superior Court of Riverside County, Christian F. Thierbach, Judge. Affirmed in part; vacated in part; remanded with directions. Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kristen Chenelia, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Following a hung jury and mistrial, a second jury convicted Jaime Ramiro Vega of first degree murder with the special circumstance of shooting from a motor vehicle. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21).) In connection with the murder, the jury found that Vega had personally and intentionally discharged a firearm causing death. (§ 12022.53, subd. (d).) The jury also convicted Vega of possession of a firearm by a felon. (§ 29800, subd. (a)(1).) In bifurcated proceedings, Vega admitted two prior prison terms under section 667.5, subdivision (b). The trial court sentenced Vega to life imprisonment without the possibility of parole for the special circumstance murder conviction, plus an indeterminate term of 25 years to life imprisonment for the firearm enhancement and a determinate term of two years for the prison priors. The court imposed the middle term of two years for the firearm possession conviction, which it stayed under section 654.
Further statutory references are to the Penal Code unless otherwise stated.
Prior to trial, Vega pleaded guilty to unauthorized possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) The court sentenced Vega to 360 days in jail for that misdemeanor conviction.
Vega appeals. He contends (1) the trial court erred by admitting evidence concerning the culture of criminal street gangs; (2) the court erred by admitting evidence of two prior incidents in which Vega possessed firearms; and (3) his sentence should be vacated to allow the trial court to exercise its newly-effective discretion to strike the firearm enhancement found by the jury.
The Attorney General concedes that the matter should be remanded to allow the trial court to exercise its discretion to strike the firearm enhancement. We accept that concession. Vega's remaining arguments are unpersuasive. We will therefore vacate his sentence and remand for resentencing but otherwise affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On July 12, 2013, Jose Aguilar drove his Saturn minivan to a medical marijuana dispensary in Riverside County, California. Vega had arrived at the dispensary a few minutes earlier. Inside, Vega asked Aguilar, "What's up fool?" Aguilar stepped away from Vega and appeared nervous. While Aguilar was at the counter, Vega asked whether they knew each other. Aguilar replied, "No. I don't know what you're talking about." He did not turn around. A dispensary employee believed that Aguilar was trying to avoid an interaction with Vega. At some point, Vega said, "Yeah, I remember from the car. You were in that car" or "I remember you from that car, that bitch ass car." Aguilar repeatedly said, "I don't know who you are." Vega appeared "pepped up" and "hyper." Aguilar was a little standoffish, but Vega kept trying to lean in and get Aguilar to acknowledge him. It looked like Vega was trying to start an argument with Aguilar. The dispensary manager told Vega and Aguilar to stop or they would have to leave. Because of the confrontation, the dispensary had their security guard escort Vega and Aguilar out separately.
Security camera footage showed Vega leaving the dispensary first. He walked toward his black BMW, which was parked some distance away. When Aguilar exited the dispensary and got in his minivan, Vega looked over his shoulder and began jogging to the BMW. Vega watched Aguilar drive by and then got in the front passenger seat of the BMW. The BMW backed up, pulled away, and followed Aguilar's minivan.
A short distance away, a witness heard a series of loud bangs. The witness looked over and saw two vehicles, the BMW and the Saturn minivan, driving side by side. He saw the minivan lose control and start spinning. The BMW drove quickly away. The witness told his son to call 911, and he went over to the minivan. He saw bullet holes in the driver's side of the minivan and discovered that Aguilar had been shot. By the time sheriff's deputies arrived, nine minutes later, Aguilar was not breathing. His death was caused by a single gunshot wound to his left side, four inches below his armpit. Further investigation revealed that seven shots had been fired, all from the same handgun.
The next morning, Vega called his auto insurance company and reported that his BMW had been in an accident. He claimed to have hit someone on the freeway several days earlier. Vega later admitted his statements to the insurance company were false.
Investigators obtained a search warrant and tracked Vega's cell phone to a hotel in San Bernardino. They arrested Vega and impounded his BMW. The BMW had damage to both passenger side doors. Forensic examination revealed "[m]any characteristic particles of gunshot residue" on the inside of the front passenger door, "one characteristic [particle] and one consistent particle" on the inside of the rear passenger door, and "[m]any consistent particles" on the outside of the front and rear passenger doors. A "characteristic" particle is more likely to be tied to the discharge of a gun than a "consistent" particle. Based on these results, both the front and rear passenger doors may have been in the vicinity of a firearm discharge or otherwise in the environment of gunshot residue.
In an interview with investigators, Vega admitted buying marijuana but claimed he went home afterward. He said he had been in a car accident on the freeway. He eventually admitted seeing someone in the dispensary he recognized. They exchanged words, and Vega claimed the other man was trying to pick a fight. The dispensary staff told them they were "gangbanging" and kicked Vega out. Vega said he drove away alone, went to a bar, and got drunk. Vega later admitted this story was false.
Vega is a member of the North Side Rialto criminal street gang. While in jail awaiting trial, Vega wrote at least two letters. One was recovered from the home of a fellow gang member, and the other was recovered hidden in a Bible as another inmate was being processed out of jail.
In the first letter, Vega asked his fellow gang members to provide information to a defense investigator. He wanted them to say that three individuals, "Al, Flaco, and Ziggy," existed. Vega emphasized, "No one is snitching." He wrote, "Say Al was the closest homie out of the three. He brought the other two around. Flaco and Ziggy were cholos from L.A. who were always looking for trouble. . . . [¶] . . . [¶] Say that you haven't seen these fools since around the time I got locked up and you think or thought they were busted too." Vega provided a description as well: "All three of these guys look the same and are 5-6 to 5-11 height and are skinny, if they ask." Vega also wrote about a "homie" who "might need . . . to come forward" and "fight life" with Vega. He wrote, "You all know I won't say his name to anyone, but when he does [come forward], he needs to stick with the same story I've given them."
In the second letter, Vega wrote, "I'm trying to look for more angles and scenarios for my defense. [¶] . . . [¶] For now everything stays the same about Flaco and Ziggy, but I need you to look into something for me. Our little homie Huero's uncle Soldier, check and see if he was busted when I caught this case. [¶] . . . [¶] Because with Huero's consent, I'd like to put this off on him and say he was going by Ziggy. With another person saying Soldier did this along with my statement [it] proves my innocence. Remember, you can't snitch on a dead guy." Vega then returned to the original defense: "No one can identify the shooter but me. [¶] Remember, physical description is crucial. You've seen Flaco and Ziggy numerous times around town but not since before you got busted in 2012. They haven't been around since I got busted." On the back of the letter, Vega wrote, "Just take in what you can on this one. I'm not being too specific. But if Plan 'B,' Soldier, sounds 'firme,' let me know when you talk to me."
"Soldier" is the moniker for an individual who was murdered several months after Aguilar's murder.
A police corporal testified at trial as an expert on criminal street gang culture. He explained that fear, intimidation, and respect are the foundation of gang culture: "[W]ith all the gangs, one thing they have in common is they thrive on fear, intimidation, and respect . . . . They do that through fear and intimidation that they instill in the community, and they derive the respect not only from other gang members but people they come into contact with on a routine basis." He said, "[I]f a gang member is disrespected, even more so in front of somebody else or in front of their fellow gang members, and they don't react or retaliate or acknowledge they were disrespected and make light of it in some way, that shows a sign of weakness upon that member. And depending on who is around, it can also be a perception of weakness of the gang in its entirety because that gang member, in essence, is a representation of that gang." He also explained that "[g]ang members will lie for each other," including in court testimony, to protect their own.
The prosecution presented evidence of two prior occasions when Vega possessed handguns. In May 2010, Vega was the rear passenger in a car that was stopped by police in Arizona. Underneath the rear seat next to Vega, police found a loaded handgun. Vega denied that handgun was his, but he admitted his fingerprints would be found on it. He was eventually convicted under Arizona law of possessing a deadly weapon while committing a felony offense. Later, in April 2013, Vega was waiting in his car with three other individuals. After Vega consented to a search, police found three loaded handguns underneath his seat. At the time, Vega acknowledged to police that he knew it was illegal for him to possess handguns because he was a felon.
Vega testified in his own defense. He said he first encountered Aguilar several months before, when they had an impromptu street race in Rialto. Aguilar was driving a white Nissan. They raced twice, and Vega did not sense any hostility between them. Vega said he saw Aguilar a number of times after that, including once when Aguilar drove recklessly though a neighborhood and another time when both he and Aguilar were at a car wash.
On the day of Aguilar's murder, Vega said he drove his BMW to Fontana to look for someone who owed him money. He did not find the person, but he saw someone named Al. Vega knew Al from around town but did not know his full name. They smoked some marijuana. Two other people, Flaco and Ziggy, walked up. Vega had seen them a couple times before. Flaco and Ziggy wanted to buy some marijuana. In Vega's words, it "dawned on [him]" that they could go to a dispensary. Vega was tired, so he asked Al to drive his BMW. Ziggy sat behind Vega in the rear passenger seat, and Flaco sat behind Al in the rear driver's side seat. At the dispensary, Vega recognized Aguilar. They exchanged words, and Vega told Aguilar that his car was "a piece of shit." Vega wanted to boast about his new BMW, but the dispensary employee cut him off.
Vega left the dispensary and walked to his car. He claimed he started running because it was a long way. As Vega stood by his car, Aguilar passed. Vega said Aguilar started yelling at him. Vega got in the car, and Al drove away. They saw Aguilar's van stopped by the side of the road. Aguilar was going through his trunk, and Vega said he was concerned Aguilar might be looking for a gun. Aguilar started following Vega's BMW. According to Vega, Aguilar pulled up beside them, started screaming, and slammed his minivan into Vega's BMW. At that point, Vega claimed, Ziggy pulled out a handgun and started shooting, the vehicles collided again, and the minivan veered away. Vega denied knowing that Ziggy was carrying a gun.
Vega said that he, Al, Flaco, and Ziggy drove away from the scene. Ziggy told Vega not to snitch or he would kill Vega or someone he loved. They each eventually went their separate ways. Vega said he has not seen or heard from them since.
Vega admitted he was a member of the North Side Rialto gang. He also admitted that, at the time he wrote the letters from jail, he had not told police about the alleged existence of Flaco and Ziggy. Vega claimed his first letter was an effort to get fellow gang members to testify truthfully in his defense. But he admitted his second letter was premised in part on a lie: a plan to falsely blame Soldier for Aguilar's murder. Vega acknowledged that he was asking his fellow gang members to come to court and lie under oath. He agreed that in gang culture a gang member can ask his fellow gang members to come to court and lie. On cross-examination, Vega was impeached by several inconsistencies between his testimony and his prior testimony at his first trial.
The defense also called Aguilar's longtime fiancée to testify about an incident a couple weeks before his murder. While driving his fiancée, Aguilar saw a young man painting graffiti on a curb and confronted him. Aguilar and the young man exchanged words. At some point, the young man referenced his gang, and Aguilar laughed. The young man got in his car and chased Aguilar and his fiancée. The young man eventually caught up to them, and they continued arguing. Eventually the young man drove away. The fiancée testified that Aguilar was not in a gang and did not have a criminal record.
DISCUSSION
I
Gang Expert Testimony
A
Vega contends the trial court erred by admitting expert testimony regarding gang culture, specifically (1) the willingness of gang members to lie for each other and (2) the importance of fear, intimidation, and respect in gang culture. We conclude the court erred by admitting the second category of testimony, but not the first. Any error, however, was harmless.
Prior to trial, Vega moved in limine to limit any gang expert testimony to issues directly related to the two letters Vega wrote from jail, including the identities of the people referenced in the letters and how the letters got out of jail. In particular, Vega objected to certain evidence identifying Vega as a member of the Mexican Mafia prison gang. Evidence regarding the Mexican Mafia was admitted at his first trial. The trial court ruled that the gang expert could testify about the identities of the people referenced in Vega's letters, but it tentatively excluded the Mexican Mafia evidence.
During trial, Vega raised the issue of gang expert testimony again. Specifically, Vega's counsel objected to testimony regarding "respect" in gang culture, i.e., "if someone gets disrespected, you would expect the gang member to retaliate." He argued that such testimony had little relevance and had the potential to unfairly prejudice the jury against Vega. The court overruled the objection. It stated that the gang expert could testify about "the fact that gang members are expected to assist their fellow gang members," as well as "gang culture and what's expected and the signs of disrespect and all that . . . ." But the court warned the prosecution not to imply that the charged offenses were somehow gang-related.
Before witnesses testified about Vega's letters, the court instructed the jury regarding the limited relevance of gang expert testimony. It stated, "Ladies and gentlemen, starting with this witness and I believe one or two more, you're going to hear testimony related to the gang culture. I want to remind you, as I did at the beginning of this trial, that this is not a gang case. There's no suggestion that this alleged crime was committed either in association with, at the direction of, or for the benefit of a criminal street gang. [¶] You're going to hear testimony for the very limited purpose of educating you as to general gang culture and what members of a particular gang are expected to do in terms of assisting or protecting fellow members of the gang. That's the only relevance that it has for you in terms of this trial. So do not consider it for any other purpose other than this limited purpose that I just described."
The gang expert testified as described above. In the court's closing jury instructions, it returned to the limitations on this testimony: "And you'll recall I instructed you that you could consider that evidence solely for the purpose of being—receiving information as to gang culture and the expectation that fellow members of the gang would be helping out other members of the gang if they got into trouble. [¶] You're not to consider that evidence for any other purpose. Most specifically, you're not to consider that as evidence of the defendant's bad character or that he's more likely than not to commit crimes. [¶] As I instructed you before, there is no allegation in this case that the crimes charged were committed either at the direction of, for the benefit of, or in association with a criminal street gang."
B
The relevant evidentiary principles are well-settled. "Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence." (People v. Scheid (1997) 16 Cal.4th 1, 13-14 (Scheid).)
" 'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.' " (People v. Vang (2011) 52 Cal.4th 1038, 1044.)
"Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' " (People v. Riggs (2008) 44 Cal.4th 248, 290.) Gang evidence, in particular, must be carefully scrutinized under this statute. "[Our Supreme Court has] recognized that admission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. . . . Moreover, even where gang membership is relevant, because it may have a highly inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence before admitting it." (People v. Williams (1997) 16 Cal.4th 153, 193.) "We review a trial court's rulings on the admission and exclusion of evidence under the abuse of discretion standard." (People v. Thompson (2010) 49 Cal.4th 79, 128.)
C
The first category of challenged expert testimony concerned the willingness of gang members to lie, including in court testimony, to protect other gang members. This testimony was directly relevant to the letters Vega sent from jail while awaiting trial. In the first letter, Vega asked fellow gang members to say that Al, Flaco, and Ziggy existed and to provide certain details about them. In the second letter, Vega sought assistance blaming a deceased man, Soldier, for the murder. The jury could reasonably infer that both letters asked Vega's fellow gang members to lie to bolster his defense. Indeed, Vega admitted that his second letter was an effort to falsely place blame on Soldier. The gang expert's testimony explained why Vega would feel comfortable asking his fellow gang members to lie on his behalf, including in court testimony. It was therefore relevant. Vega argues that the testimony had no bearing on whether Vega or some other person shot Aguilar. But the test of relevance is not so limited. Whether Vega was asking his fellow gang members to lie in his letters was a material disputed issue. If Vega were asking them to lie, it would be evidence from which the jury could reasonably infer that Vega was conscious of his guilt. (See, e.g., People v. Stankewitz (1990) 51 Cal.3d 72, 97-98.) Vega also argues that the evidence was more prejudicial than probative, but he does not substantiate that argument. He claims the jury would improperly infer that gang members "routinely lie for one another," but none of the gang members referenced in the letters testified at trial. And, while Vega testified, he was testifying for himself and not to protect other gang members. Vega has not shown the court abused its discretion in admitting this category of gang expert testimony.
The second category of challenged expert testimony concerned the importance of fear, intimidation, and respect in gang culture. The expert testified that gangs "thrive on fear, intimidation, and respect" and that a gang member's failure to "retaliate or acknowledge they were disrespected . . . shows a sign of weakness" in the member and potentially the gang as a whole. This testimony appears to be far afield from the disputed issues at trial. Vega was not alleged to be acting on behalf of his gang in connection with Aguilar's murder and the prosecution did not present any evidence Aguilar "disrespected" Vega. On appeal, the Attorney General offers no argument why this evidence might have been relevant at trial. Its potential prejudicial effect, however, was substantial. The testimony directly appealed to popular fears regarding gang violence and the profoundly negative effects gangs have on the communities in which they operate. (See People v. Cardenas (1982) 31 Cal.3d 897, 904-905.) Under these circumstances, the only reasonable conclusion is that the probative value of this evidence, if any, was substantially outweighed by concerns of undue prejudice. The court therefore abused its discretion by admitting this testimony over Vega's objection. (See People v. Albarran (2007) 149 Cal.App.4th 214, 227-228 [error to admit expert testimony regarding "respect" and "reputation" in gang culture absent specific facts tying the crime to such concerns].)
Although we conclude the court erred by admitting evidence of the importance of fear, intimidation, and respect in gang culture, Vega has not shown prejudice. State law evidentiary errors are reviewed under the Watson standard of prejudice. (Scheid, supra, 16 Cal.4th at p. 21; see People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) " 'Under the Watson standard, prejudicial error is shown where " ' "after an examination of the entire cause, including the evidence," [the reviewing court] is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] '[Our Supreme Court has] made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' " ' " (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
After reviewing the entire record, we are convinced there is no reasonable chance the outcome of Vega's trial would have been more favorable to him if the court had not admitted the challenged evidence concerning fear, intimidation, and respect in the culture of criminal street gangs. The evidence pointing to Vega's guilt was strong. It was undisputed that Vega was present at Aguilar's murder. The only question was whether Vega was the shooter. Compelling circumstantial evidence showed he was. Forensic tests of Vega's BMW found the most gunshot residue on the interior door where Vega was sitting, in the front passenger seat. Impartial witnesses described how Vega was confrontational with Aguilar in the dispensary. Security camera video showed Vega watching Aguilar leave the dispensary parking lot, jogging to his BMW, and driving in the same direction Aguilar did. Vega's efforts to manufacture a defense further implicated him. It is apparent from Vega's first letter and his testimony that Al, Flaco, and Ziggy were fictional. Indeed, in that letter, when Vega mentioned the individual who was actually with him in the BMW, Vega referred to him only as "the homie" and would not use his name. The attempt to place the blame on Soldier in Vega's second letter further showed his guilt. The erroneously admitted expert testimony was insignificant in comparison, and the court instructed the jury on its limited relevance in any event.
In arguing that the error was prejudicial, Vega focuses on the letters themselves. But the letters were properly admitted, so his argument is unpersuasive. He does not explain how the fear, intimidation, and respect testimony compared to the remaining evidence at trial. While the evidence may not have been overwhelming, and indeed Vega's first trial ended in a hung jury with two jurors voting to acquit, the current record does not support the conclusion that there is a reasonable chance the outcome of this trial would have been different if the erroneously admitted expert testimony had not been admitted.
Vega argues that the erroneous admission of gang culture testimony also violated his federal constitutional rights. (Payne v. Tennessee (1991) 501 U.S. 808, 825.) We disagree. "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) Vega has not shown the admission of this evidence rendered his trial so arbitrary and fundamentally unfair that it violated the federal Constitution. (See People v. Covarrubias (2011) 202 Cal.App.4th 1, 20-21.) Unlike the authorities Vega cites, he was not convicted solely based on his gang affiliation. (See United States v. Garcia (9th Cir. 1998) 151 F.3d 1243, 1245-1246; Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, 1342.)
II
Prior Firearm Incidents
A
Vega further contends the trial court erred by admitting evidence of two prior occasions when Vega possessed handguns. Prior to trial, Vega moved in limine to exclude evidence relating to these incidents. Vega's counsel argued it was impermissible propensity evidence under Evidence Code section 1101 and unduly prejudicial under Evidence Code section 352. The court agreed it was not relevant to the murder charge, but it concluded the jury should be able to consider the evidence in connection with the charge of possessing a firearm by a felon. The court believed it was relevant to "possession" and "knowledge" in that latter charge. Vega's counsel explained that he would not be arguing that Vega did not know it was a firearm, so the prior incidents were of little relevance. However, the court pointed out that the prosecution still had the burden of proving all elements of the crime. It therefore allowed the evidence to be admitted.
In its closing jury instructions, the court explained the relevance of the prior incidents as follows: "If you decide that the defendant committed the uncharged offenses, you may but are not required to consider that evidence for the limited purpose of deciding whether or not the defendant was the person who committed the offense charged in Count 2 in this case or the defendant knew he possessed a firearm as charged in Count 2."
In his closing argument, the prosecutor referenced the prior firearm incidents. He argued, "Again, we had other criminal conduct, other evidence which goes to the Count 2. You heard about the loaded firearm underneath the seat when he was in La Paz County in Arizona. [¶] And then we heard from [a police investigator], who has worked the undercover narcotics task force. And when he contacted Vega, he had three loaded firearms underneath the driver's seat, two semiautomatic weapons, and a .38. [¶] And that evidence is presented to you relevant to Count 2 that shows that the defendant had knowledge that he should not possess firearms because he was a felon, that he knowingly in the past had possessed loaded firearms in his car, and he had a custom and habit of having those loaded firearms in his car."
B
Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent." (People v. Thomas (2011) 52 Cal.4th 336, 354 (Thomas).) "The least degree of similarity is required to prove intent or mental state. A higher degree is required to prove common plan, and the highest degree to prove identity." (Id. at p. 355.)
" 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.] Evidence may be excluded under Evidence Code section 352 if its probative value is 'substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citation.] 'Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value.' " (People v. Lindberg (2008) 45 Cal.4th 1, 22-23 (Lindberg).) We review the trial court's ruling for abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328.)
C
The trial court instructed the jury that the evidence of other firearm incidents was potentially relevant to identity ("the defendant was the person who committed the offense charged in Count 2") and knowledge ("the defendant knew he possessed a firearm as charged in Count 2"). On appeal, the Attorney General argues that the other firearm incidents were relevant to knowledge and does not mention identity. Based on our review, it is apparent the prior incidents do not "share sufficient distinctive common features to raise an inference of identity." (Lindberg, supra, 45 Cal.4th at p. 23; accord, People v. Barnwell (2007) 41 Cal.4th 1038, 1056 ["To be admissible on the issue of identity, an uncharged crime must be highly similar to the charged offenses, so similar as to serve as a signature or fingerprint."].) We will therefore consider only the element of knowledge in detail.
To convict a defendant of possession of a firearm by a felon, the prosecution must show that such possession was knowing, i.e., the defendant knew he possessed a firearm. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052.) In order for the other firearm incidents to be relevant to the issue of knowledge, they must be sufficiently similar to the charged offense to lead to the logical inference that Vega had the same knowledge during each incident. In one limited aspect, the other incidents are sufficiently similar. In each prior incident, Vega possessed one or more handguns. Similarly, in the charged offense, Vega was alleged to possess a handgun. Therefore, the prior incidents lead to the logical inference that Vega knew the object he possessed was in fact a handgun, as opposed to a water gun or other toy. But, beyond that basic fact, the prior incidents are not sufficiently similar to the charged offense to raise any logical inferences regarding Vega's knowledge. For example, it is unknown whether in the charged offense Vega stored the handgun under a seat, in a glovebox, on his person, or with an accomplice. A jury could not make a logical inference based on the prior incidents that Vega knew he possessed a firearm because the circumstances of the charged offense were so unclear.
Contrary to the prosecutor's closing argument, the possession charge does not require that a defendant know "he should not possess firearms because he was a felon." The fact that the prior incidents may show that Vega was aware he should not possess firearms is therefore immaterial.
In contrast to this limited probative value, the danger of undue prejudice was substantial. In the prior firearm incidents, Vega committed similar crimes to that charged at the current trial. The risk was not negligible that the jury would believe that Vega possessed a firearm in the charged offense simply because he possessed firearms on prior occasions, i.e., because Vega is the type of person who possesses firearms. This reasoning rests on Vega's supposed criminal disposition, which is directly prohibited by Evidence Code section 1101, subdivision (a). Because the evidence did not have " 'substantial probative value,' " it should not have been admitted. (See Lindberg, supra, 45 Cal.4th at p. 23.) The trial court abused its discretion by admitting it.
Because we conclude it was error to admit this evidence under Evidence Code sections 1101 and 352 even in connection with the possession charge, we need not consider Vega's additional argument that the court's instruction limiting the evidence to the possession charge was ineffective.
We review the trial court's error in admitting evidence of the prior firearm incidents under the Watson standard of prejudice. (Thomas, supra, 52 Cal.4th at p. 356.) Here, as discussed above, the evidence of Vega's guilt for Aguilar's murder was strong. Forensic analysis, impartial witnesses, and security camera footage all pointed to Vega, and his letters from jail provided powerful circumstantial evidence of consciousness of guilt. By contrast, his defense at trial was implausible and unsupported by the evidence. Vega's guilt on the murder charge leads directly to his guilt on the possession charge. While the admission of the prior firearm incidents created a risk that the jury would improperly convict Vega, we are convinced based on our review of the record that there is no reasonable chance the outcome would have been more favorable for Vega had the prior firearm incidents not been admitted.
Vega points out that the court recognized the potential prejudicial effect of the prior firearm incidents when it instructed the jury to limit its consideration of that evidence to the possession charge. While Vega is correct that this evidence created the risk of undue prejudice under Evidence Code section 352, this risk is not the same as a showing of prejudice in the context of a harmless error analysis on appeal. Otherwise, every error in admitting potentially unduly prejudicial evidence under that statute would lead to reversal. Instead, as explained above, while the court erred in admitting this evidence, the error was harmless on this record.
Vega argues that the prosecutor's closing argument, which claimed Vega had a "custom and habit of having those loaded firearms in his car," shows the prejudicial effect of the trial court's error. We agree that the prosecutor's argument increased the potential for prejudice. The evidence did not show a custom or habit of carrying loaded firearms in cars; it showed only that Vega carried firearms in cars on two occasions over a three-year period. (Cf. People v. Humphries (1986) 185 Cal.App.3d 1315, 1338 [evidence that a witness used PCP every day for a two-month period leads to reasonable inference that the witness used PCP three days later as well].) In this context, the prosecutor's argument effectively asked the jury to draw an improper inference based on Vega's alleged criminal disposition. However, the prosecutor's reference to custom and habit was fleeting, and he specifically confined his argument to the possession charge. Given the strong evidence that Vega was responsible for Aguilar's murder, the prosecutor's statement does not support the conclusion that the court's error in admitting evidence of the prior firearm incidents was prejudicial.
III
Cumulative Error
Vega contends the cumulative effect of the trial court's errors violated his due process rights under the federal Constitution. " 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436-1437.) Here, although the court erred by admitting certain evidence, this evidence was minor compared to the entire record. We cannot say the errors "so infected the trial with unfairness as to make the resulting conviction a denial of due process." (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.)
Vega relies on Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862. But that matter involved errors that were far more severe, including the erroneous exclusion of an expert witness on eyewitness identification, ineffective assistance of counsel in failing to present alibi evidence or investigate defenses, the erroneous exclusion of two witnesses who would support a third-party culpability defense, and the erroneous admission of inflammatory physical evidence related to the murder weapon. (Id. at p. 894.) The federal appellate court noted that "the cumulative impact of these errors goes to the heart of the prosecution's theory of the case and undermines every important element of proof offered by the prosecution" against the defendant. (Id. at p. 893.) No equivalent errors occurred here.
To the extent Vega argues that cumulative error requires reversal under the state law Watson standard, we disagree. As discussed above, the evidence of Vega's guilt was strong and was not substantially affected by any error. Moreover, nothing in the errors we have identified "could have caused the jury to give more credence to defendant's version of the events." (People v. Carrera (1989) 49 Cal.3d 291, 332.) There is no reasonable probability, i.e., no reasonable chance, that Vega would have obtained a more favorable result at trial absent the errors, whether considered individually or together.
IV
Newly-Effective Discretion to Strike Firearm Enhancements
In a supplemental brief, Vega contends his sentence should be vacated and the matter remanded to the trial court for resentencing based on section 12022.53, subdivision (h). That subdivision, which became effective after Vega was sentenced, allows a trial court to exercise its discretion under section 1385 to strike a firearm enhancement in the interest of justice. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) The statute previously prohibited the trial court from exercising its discretion in this way. (Former § 12022.53, subd. (h).) Vega argues that the new subdivision should be applied retroactively to him by the terms of the statute and under the Estrada rule. (See In re Estrada (1965) 63 Cal.2d 740.) The Attorney General concedes that the new subdivision should be applied retroactively under existing case law (see People v. Francis (1969) 71 Cal.2d 66, 75-76) and remand is necessary.
We accept the Attorney General's concession. Several recent opinions, including an opinion issued by a different panel of this court, have concluded that section 12022.53, subdivision (h) applies retroactively. (See, e.g., People v. McDaniels (2018) 22 Cal.App.5th 420, 424; People v. Chavez (2018) 22 Cal.App.5th 663, 712.) And, because the record contains no clear indication how the trial court would have exercised its discretion if it had been empowered to do so at the time of Vega's sentencing, we will vacate his sentence and remand for resentencing. (See McDaniels, at p. 425; Chavez, at pp. 713-714.) We express no opinion regarding how the trial court should exercise its discretion.
DISPOSITION
Vega's sentence is vacated and the matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.
GUERRERO, J. WE CONCUR: IRION, Acting P. J. DATO, J.