Opinion
F072905
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. KEENAN ANTWAUN WILBURN, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[No Change in Judgment] THE COURT:
It is ordered that the opinion filed herein on April 30, 2018, be modified as follows:
1. In part IV, the last sentence on page 31 beginning "We therefore reverse" is deleted and the following sentence is inserted in its place:
We therefore reverse the gang allegations in counts 4 and 5 as well as the gang enhancement allegations.
2. In part IV, the first sentence on page 32 beginning "The People, however," is deleted and the following sentence is inserted in its place:
The People, however, are not foreclosed from retrying counts 4 and 5, as well as the gang enhancement allegations.
3. On page 41, under the heading DISPOSITION, the first sentence is deleted and the following sentence is inserted it its place:
Defendant's convictions on counts 4 and 5 are reversed, as are the jury's true findings on all the gang enhancements.
There is no change in the judgment. Appellant's petition for rehearing is denied.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF159427B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Keenan Antwaun Wilburn was convicted of Penal Code violations at the conclusion of a jury trial as follows: two counts of attempted murder against Francisco A. and Cassandra R. (§§ 664, 187, subd. (a); counts 1 & 2), two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3 & 8) carrying a loaded firearm as an active member of a criminal street gang (§ 25850, subd. (c)(3); count 4), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5); unspecified statutory references are to the Penal Code. The jury found true the allegations that count 1 was willful and deliberate within the meaning of section 189, but found this same allegation not true in count 2. The jury found true the allegations in counts 1 and 2 that defendant intentionally discharged a firearm causing great bodily injury to one other than an accomplice (§ 12022.53, subd. (d)). In counts 3 and 8, the jury found true allegations defendant committed those offenses while personally using a firearm (§ 12022.5, subd. (a)). The jury further found true allegations in counts 1, 2, 3, and 8 that defendant committed these felonies for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
At the sentencing hearing on December 2, 2015, the trial court sentenced defendant to a term of life with the possibility of parole on count 1, plus a consecutive term of 25 years to life for the gun use enhancement. The court sentenced defendant to a consecutive term of seven years on count 2 plus consecutive terms of 25 years to life for the gun use enhancement, and 10 years to life for the gang enhancement. The trial court stayed defendant's remaining sentences on counts 3, 4, 5, and 8, as well as the enhancements, pursuant to section 654.
On appeal, defendant contends the trial court erred in denying his motion to bifurcate the gang allegations because of the substantial prejudicial effect of these allegations against him as to the nongang-related charges. Defendant contends there was insufficient evidence to support his attempted murder of Cassandra R. charged in count 2. Defendant contends the trial court's attempted murder instructions to the jury were erroneous because they referred to the nonexistent offense of second degree murder. Defendant further argues the prosecutor improperly relied on inadmissible case-specific testimonial hearsay evidence to prove his involvement in a gang in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Defendant argues the prosecutor improperly relied on the conduct of gang subset groups without establishing the required organizational or associational nexus to the larger gang, in violation of People v. Prunty (2015) 62 Cal.4th 59 (Prunty). The parties filed supplemental briefing addressing the effect of Senate Bill No. 620 (2017-2018 Reg. Sess.) on defendant's sentence on the gun use enhancement.
We find Sanchez error. The case is remanded for the People to retry defendant on the gang allegations, should it elect to do so, and for the trial court to exercise its discretion concerning whether to strike one or more of the gun enhancements.
FACTS
Shooting Incident
Francisco A., Cassandra R., and Marisol L. went to Tacos La Villa restaurant in Bakersfield about 3:30 a.m. on November 9, 2014. Marisol and Francisco were dating. Defendant, who is African-American, and codefendant Gabriel Hiracheta, who is Hispanic, approached Marisol and her friends in the parking lot and began making gang-affiliated statements. Hiracheta directed the comment "East Side Crip" and "'What's up, bitch-ass niggas?'" at Francisco. Francisco replied, "'Bitch-ass Nigga, what's up?'" The comment and reply were unfriendly and confrontational. Marisol did not hear defendant say anything.
As defendant and Hiracheta went into the restaurant, Marisol and her friends decided to go somewhere else. Defendant and Hiracheta exited the restaurant and approached Francisco, Cassandra, and Marisol, with Hiracheta again saying "East Side Crip" as a challenge to Francisco to fight. According to Marisol, Francisco wanted to fight after being challenged. Marisol recognized Hiracheta because she went to high school with him.
During the second confrontation, defendant was seven to ten feet away from the group. He was quiet but grinning. Marisol did not remember defendant saying anything. When Francisco asked defendant why he was smiling, defendant fired about three shots from a small black handgun. Marisol could see the gun in defendant's right hand. Francisco was not carrying a gun or any other weapon and neither was Cassandra nor Marisol. She did not remember Francisco saying "East Side Bakers" during the incident. Francisco was bleeding heavily from the face. Marisol said Francisco was not one to get into fights with others.
Marisol and her friends went to the hospital after the shooting. Even though she recognized Hiracheta, Marisol told police she did not recognize him because she was scared. Marisol described the assailants to police as a "Mexican dude" and a "black male."
When Marisol was subsequently questioned by Detective Christina Abshire with the Bakersfield police, she told the detective the Hispanic male was Hiracheta and that she had come across defendant on Facebook and described the Black male assailant as defendant. Marisol identified both Hiracheta and defendant in photographic lineups. Marisol also identified both men from a photograph taken from a surveillance video. When Abshire asked Marisol if Francisco was an East Side Baker, Marisol replied, "Yeah, I guess."
Cassandra described the incident with some differences from Marisol's account. At the restaurant parking lot, Cassandra described Hiracheta as staring at Francisco, who then asked, "'Do you know me?'" Cassandra could not remember if Hiracheta replied. During the initial confrontation, defendant did not say or do anything. Defendant and Hiracheta went into the restaurant while Cassandra and her friends went back toward their car. Cassandra and Marisol tried unsuccessfully to get Francisco back into the car.
Cassandra said Hiracheta and defendant exited the restaurant and split up as they walked toward Marisol's car. Hiracheta and Francisco exchanged additional words, though Cassandra could not remember who spoke first. Cassandra remembered Hiracheta saying "East Side Crips" and Francisco saying "East Side Bakers." Cassandra thought Francisco was affiliated with a gang because he claimed the Eastside Bakers. Cassandra also heard Hiracheta tell Francisco, "'Come on, let's fight.'" She heard Francisco tell defendant he laughed "'like a little bitch.'"
Immediately after Francisco made his comment about defendant's laugh, Cassandra heard three or four gunshots. The shots sounded as though they came from the area where defendant was standing during the argument. Cassandra did not see anyone with a gun that evening. After the shooting, Cassandra's face went numb and she was bleeding everywhere. Cassandra had been shot behind her ear and the bullet came out the front of her face. Francisco was shot in the lip. Cassandra drove to the hospital with her friends.
Gang Evidence-Eastside Crips
Officer Frederick Martinez worked on the gang unit for over a year and testified as the People's gang expert. In Bakersfield, the Eastside Crips is an African-American gang with 500 to 1,000 members. Martinez has spoken to about 100 members. The gang claims a territory, or turf, as its own. The gang's main rivals are the Country Boy Crips, Bloods, and Westside Crips. The Eastside Crips place a value upon members who are willing to shoot other gang members. A gang member earns respect and status by committing more crimes. The more crimes a member commits, the more respect and status that member earns.
When a member "puts in work" for the gang, the gang reaps benefits. For instance, if a gang member commits a shooting, it can instill fear into rival gangs. According to Martinez, a rival gang probably will not fire back or retaliate out of fear. Such a shooting also instills fear in the gang's community and makes it less likely witnesses will cooperate with law enforcement. Martinez opined it would be beneficial to the Eastside Crips if one or more of its members announced they were members of the Eastside Crips and then shot someone from another gang, because it would let everyone in the area know who was responsible for the shooting.
Martinez explained respect is important in gang culture. Gang members stand up for themselves if they feel disrespected. Other members are expected to assist a fellow gang member in a fight. If two members of the Eastside Crips got involved in an altercation with a member of another gang, Martinez would not expect one of the Eastside Crip gang members to walk away if a fight broke out.
Subset Groups
Martinez testified about subset groups affiliated with the Eastside Crips. Since the territory of the Eastside Crips is large, there are naturally going to be certain cliques and certain friends; these will make a subset, which is a smaller group within the Eastside Crips. The subsets get along with other Eastside Crips, but it's their own little clique or subset. Martinez testified the following are subsets of the Eastside Crips: Stroller Boys, Mid City Crips, Spoonie G Crips, Lakeview Gangster Crips, Clifton Street Mob, and the East 11th Street Project Crips. The subset groups get along with one another and consider themselves to be part of the Eastside Crips. Martinez stated a person asserting membership in one of the subsets would also be a member of the Eastside Crips.
Martinez showed the jury a picture of a male with tattoos referencing the Mid City Crips and Project Crips, which he explained shows the subsets get along. Martinez showed the jury another picture of a male wearing a shirt including writings promoting the Mid City Crips, Project Crips, Clifton Mob Street Crips, Lakeview Gangster Crips, Stroller Boy Crips, and Spoonie G Crips, which demonstrated how all the subset groups "fall together underneath the Eastside." Some subsets also have their own set of colors, though still with a blue theme.
Gang Identifying Symbols
Martinez explained how gang members can be identified through their use of colors, signs, symbols, tattoos, hand signs, and monikers. Eastside Crip gang members use the colors royal or navy blue, as well as signs and symbols to indicate membership in the gang, including the subset's official abbreviation: East (E), Eastside (ES), Eastside Crips (ESC), the number 11 for the 11th Street Project Crips, the number 3 for the East Third Street Spoonie G Crips, Eastside Up (East Up), Clifton Mob Street Crips (CMC), Lakeview Gangster Crips (LVGC or LGC), Spoonie G Crips (SGC), Mid City Crips (MCC), Project Crips (PJC), and Stroller Boy Crips (SBC).
Hiracheta's Facebook page contained a picture of him with defendant and a known Eastside Crip; Hiracheta is wearing royal blue with yellow, the traditional colors of the Mid City Crips. Martinez also explained the significance of a photograph of Hiracheta, defendant, and Kelan Williams, who wore a hat with the letter "M" for Mid City Crips.
Tattoos worn by the Eastside Crips can show membership, disrespect for another rival gang, or respect for a deceased friend or fellow gang member. The following are tattoos from Eastside Crip gang members: Mid City Crips (M or MCC), Project Crips (PJC), 11th Street Project Crips (ST), Stroller Boys (SB or 900).
Eastside Crip gang members also use hand signs. "Eastside" would be demonstrated with an "E" and a "19" for the letter "S." On May 19, "Eastside Hood Day," Hiracheta was photographed wearing a blue and yellow hat and making an "M" with his hands for Mid City Crips. In that same photograph, a second male made the "Spoonie G sign," and a third male made a hand sign of disrespect towards the Country Boy Crips. Included in that photograph were members whom Martinez had personal contact with.
Martinez explained it is very common for gang members to use monikers instead of their true names. As an Eastside Crip gang member's level of respect within the gang increases, it is more likely that member will get followers or people beneath him with monikers like "Lil'" and "Baby." Defendant's moniker is "Low." Martinez found a photograph on Facebook featuring defendant as well as his minions, Steven Thomas ("Lil' Low"), an Eastside Crip gang member Martinez has contacted before, Reginald Stephenson ("Baby Low"), an Eastside Crip member Martinez has contacted before, and 15-year-old Tyree A. ("Tiny Low"), who was making a gang hand sign disrespecting the Country Boy Crips.
It is very common to see a progression of monikers in East Side Crips members. Stephenson's Facebook page stated, "'Free my big homie #freelow.'" Martinez has seen the reference to "free" used by gang members to mean they want someone freed from jail or prison. Martinez explained a "big homie is like a mentor, and he kind of shows you the way of how to act in the gang and basically how to be a gang member."
Primary Activities
Based on Martinez's discussions with senior officers, his training, and the investigations he has been involved in, he testified the primary activities of the Eastside Crips include shootings, assaults with deadly weapons, possession of firearms, illegal possession of firearms, narcotic sales, possession of stolen vehicles, possession of stolen property, criminal threats, carjackings, burglaries, robberies, and murder.
Predicate Offenses
Eastside Crip gang members have committed predicate offenses. Travell Clark and Ryan Johnson, both members of the Eastside Crips, were each convicted of illegal possession of a firearm by a felon (§ 29800, subd. (a)(1)). Martinez learned about Clark's and Johnson's case by reading the police report and talking to the officers who were involved in the investigation. Martinez explained Clark was a known member of the Eastside Crips gang based on reports documenting his prior admissions of membership and on his tattoos, and he had been contacted in the company of other known Eastside Crips. Court-certified dockets of the convictions of Clark and Johnson were admitted into evidence without objection.
Martinez determined Sheridan Rogers was an Eastside Crip gang member based on police reports documenting his prior admissions of membership and on his tattoos, and he had been contacted by law enforcement officers with other known Eastside Crip gang members. Martinez had previously testified as a gang expert at a trial where Rogers was charged. Rogers was also convicted of carrying a loaded firearm while being an active participant in a criminal street gang (§ 25850, subd. (c)(3)). A certified court docket indicating the conviction was admitted into evidence.
Martinez determined David Colen was an Eastside Crip gang member based on reports admitting his membership in the Eastside Crips and he had been contacted with other known Eastside Crips. Colen was convicted of being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and participating in a criminal street gang (§ 186.22, subd. (a)). Martinez became familiar with the offense by reading the general offense report and contacting the officers involved in the investigation. A certified court docket of Colen's convictions was admitted into evidence.
Evidence of Defendant's Gang Membership
In determining whether someone is involved in a criminal street gang, Martinez considers general offense reports, police reports, "street checks" or documentation of contact with certain people, information in the criminal justice information system, and social media such as Facebook. Prior to Martinez's involvement in the instant case, he had never met or heard of defendant. Martinez opined defendant was an active member of the Eastside Crips at the time of the shooting in this case.
In making this conclusion, Martinez relied on his own training and experience as well as conversations with other officers. Cassandra, Marisol, and Francisco reported statements made by the involved parties "about Eastside Crips and Eastside Bakers" in the instant case. Defendant was contacted by law enforcement in the past while with several Eastside Crip members. During one encounter with defendant in "the mid-2000's," defendant admitted being an Eastside Crip in the Kincaid subset. Martinez had not earlier mentioned the Kincaid subset because it was a smaller clique and not considered a full-on subset of the Eastside Crips. It was more a group of Eastside Crips who claimed Kincaid Street in reference to a particular location. Members of this group wear hats with the Kansas City Royals logo.
Defendant has a tattoo of either RIP or EIP on one hand and GWARD on his other hand. Due to the tattoo's font, Martinez could not determine whether it was RIP or EIP. Eastside Crips will often use EIP for "East in Peace," instead of RIP for "Rest in Peace." GWARD was significant because it showed respect for Joshua Ward, a known Eastside Crip gang member who was shot and killed in 2007. Martinez explained defendant's tattoos were indicative of association and membership with the Eastside Crips.
Street Checks of Defendant
During incidents on March 23, 2006, and May 12, 2006, law enforcement contacted defendant at the same former Eastside Crips hangout with the same Eastside Crip gang members. By speaking with older officers, Martinez learned that between 2006 and 2008 this particular location was a known Eastside Crips hangout. On December 28, 2007, law enforcement contacted defendant with an Eastside Crip gang member. Law enforcement contacted defendant on February 2, 2014, with Eastside Crip gang members during a traffic stop.
A general offense report from March 2, 2013, indicated law enforcement contacted defendant with his minion, Reginald Stephenson or "Baby Low," an Eastside Crip member, after the men left a known Eastside Crips residence. Defendant was in possession of a firearm The firearm was registered to defendant. A general offense report from July 6, 2011, indicated defendant brandished a firearm during an argument, pointed it at the victim, and threatened to kill the victim. Possessing a firearm is a primary activity of the Eastside Crips. No charges were ultimately brought against defendant for that incident.
A general offense report from August 12, 2009, indicated law enforcement contacted defendant with another Eastside Crip gang member who was in possession of a firearm, and defendant admitted he was an Eastside Crip and his subset was Kincaid. The charges against defendant were eventually dismissed. An offense report from May 15, 2008, indicated law enforcement responded to a reported shooting in Westside Crips territory. Defendant was with an Eastside Crip gang member who was later arrested for assault with a deadly weapon and gang charges in connection with the shooting.
An offense report from September 26, 2008, indicated an Eastside Crip gang member told law enforcement that defendant associates with the Eastside Crips, he goes by the moniker of "Low," and he is frequently armed with a firearm. An offense report from May 12, 2006, indicated law enforcement contacted defendant and Eastside Crip gang members at a former gang hangout regarding a shooting. Defendant and the other gang members told law enforcement that subjects had approached them, fired multiple shots in their direction, and then fled through a field toward rival Country Boy Crips territory. A police report from September 23, 2007, stated defendant was present at the scene of a shooting where Joshua Ward, an Eastside Crip gang member, was killed by a rival Westside Crip gang member. Martinez also testified he found a report from 2008 where defendant's aunt told law enforcement that defendant "bangs the east side."
Gabriel Hiracheta
Martinez opined Hiracheta was an active member of the Eastside Crips at the time of the underlying shooting. Martinez had a photograph of Hiracheta taken on May 19, Eastside Hood Day. Hiracheta was in the top right corner of the photograph wearing a blue and yellow hat and making an "M" for the Mid City Crips. Hiracheta was in the photograph with several other known Eastside Crip gang members who were also wearing gang colors and "throwing" gang signs. Martinez had personally contacted the individuals in the photograph. Hiracheta also had tattoos for EIP and GWARD. Hiracheta told Martinez the second tattoo was in honor of Joshua Ward, a fellow gang member who had been killed.
Hiracheta claimed association with the Eastside Crips days before his arrest for the instant offenses. Hiracheta was inside the gang's territory and was associating with other known gang members at the time. Hiracheta had a tattoo on his arm depicting praying hands with dog tags that read, EIP for East in Peace and GWARD. Hiracheta used the moniker "Lil' Stacc Dolla" or "Lil' Staccs." Hiracheta displayed to Martinez knowledge of local street gangs.
Hiracheta was observed in known gang territory. He was seen wearing royal blue shoes. Martinez found an image on Hiracheta's Facebook page of Hiracheta throwing a gang sign for the Mid City Crips and standing with other Eastside Crip gang members. Although Hiracheta would not admit being a member of the Eastside Crips, he did admit being friends with members of the gang. Martinez still believed Hiracheta was a member of the Eastside Crips. Francisco A.
Martinez stated his belief Francisco was a member of the Eastside Bakers, a Hispanic criminal street gang in the Bakersfield area, based on Francisco's multiple admissions that he was an Eastside Baker. There was a street check on March 16, 2012, involving a Varrio Baker gang member and Francisco, who had allegedly thrown gang hand signals. Francisco also told law enforcement on the day of the shooting that he was a member of the Eastside Bakers and the two men who approached him in this case had said, "'Eastside Crips.'"
Hypothetical
The prosecutor asked Martinez to assume there were two Eastside Crip gang members who went to a taco restaurant in Bakersfield. While they were there, they engage in a verbal confrontation with someone who announces he is an Eastside Baker. The prosecutor asked Martinez to assume further that at least one of those Eastside Crip gang members during this verbal altercation announces the gang affiliation of the Eastside Crips. In the course of a verbal altercation between the two Eastside Crips and the one Eastside Baker, one of the Eastside Crip gang members pulls out a firearm and starts firing multiple shots in the direction of the Eastside Baker. With these hypothetical facts, the prosecutor asked Martinez if he had an opinion as to whether the shooting committed by one of the Eastside Crip gang members would have been perpetrated for the benefit of or in association with the Eastside Crips. Martinez replied the shooting would have been done for the benefit of and in association with the Eastside Crips gang. Also, this offense would instill fear into the members of the community who may be less likely to cooperate with law enforcement.
Based on the hypothetical, Martinez also thought the shooting would be conducted in association with the Eastside Crips because there was an altercation with words being exchanged. There was an association of members "yelling out" or disrespecting Eastside Crips, and one of them shoots the victim.
Defense Evidence
Defendant testified he arrived by himself at Tacos La Villa restaurant about 3:30 a.m. Defendant said he ran into Hiracheta in the restaurant parking lot. Defendant explained Francisco looked at Hiracheta and asked, "'You know me? You got a problem?'" Hiracheta replied, "'No,'" and then he and defendant went into the restaurant.
Inside the restaurant, defendant realized he had lost his money, so he went outside to search the parking lot for it. Defendant walked by Francisco, Cassandra, and Marisol; neither party spoke to the other. Defendant saw Hiracheta by his vehicle. Francisco said to Hiracheta, "'If you wanna fight, we can fight.'" Defendant did not hear Hiracheta's reply. Defendant did not hear Hiracheta say "Eastside Crips." Francisco, Cassandra, and Marisol walked back towards their vehicle. Defendant heard "chatter back and forth between [Hiracheta] and Francisco."
Defendant began paying close attention to the confrontation when Francisco said, "'I have a gun, and I'll shoot you.'" Defendant turned around and faced Francisco. Francisco, Cassandra, and Marisol were standing at a vehicle that had its doors open. Defendant said he saw a gun "under the passenger's seat in the back." Francisco reached into the vehicle and grabbed the gun. Francisco saw defendant looking at him and asked, "'What you smiling at?'" Defendant laughed and Francisco said, "'You laugh like a little bitch.'" Francisco then fired his gun at defendant. Cassandra was bent over in a "football stance" in front of Francisco when he fired.
Defendant explained he fired back a single shot from 39 feet away with a six millimeter gun he had in his waistband. The gun was like ones used at track meets, had three rounds, and did not eject shell casings. The shot was meant only as a diversion, not to hit anyone. Defendant got back into his vehicle and drove off. Defendant said he did not intend to kill anyone and the shot was meant for him to get away. Defendant testified it appeared Francisco shot Cassandra when she stepped in front of his gun.
Defendant also explained he was not a member of the Eastside Crips and never committed a crime with the intent to benefit a gang. Defendant said the tattoos on his wrists, RIP and GWARD, were a tribute to his good friend Ward. Defendant admitted he knew associates of the Eastside Crips but not their names. Defendant said people called him "Low Kee," not "Low." Defendant believed law enforcement created the Facebook page where Stephenson posted "'Free my big homie. #freelow.'" Defendant denied he ever heard Hiracheta say anything about or do anything for the Eastside Crips.
Detective Verion Coleman and Officer Thomas previously questioned defendant. During questioning, the officers informed defendant they wanted to talk to him about "an incident" occurring on November 9th at 3:30 a.m. Defendant knew La Villa was a restaurant but denied "hanging out" or eating there. At trial, defendant asserted he told the officers he was not at the restaurant because he did not know what they were talking about. Defendant denied telling the officers he shot at Francisco in self-defense because "anything you say can and will be used against you," he was afraid, and there is racism in Kern County.
DISCUSSION
I. Motion to Bifurcate Gang Allegations
Defendant filed a motion to bifurcate the gang allegations from the other allegations. The trial court denied the motion. We reject defendant's contention the trial court abused its discretion in denying his motion.
A trial court has broad discretion in deciding whether to bifurcate gang allegations from the other charged offenses. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051.) Evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of gang affiliation—including evidence of the gang territory, membership, signs, symbols, beliefs, practices, criminal enterprises, and rivalries—can be used to prove identity, motive, modus operandi, specific intent, or other issues pertinent to guilt of the charged crime. (Id. at p. 1049.) To the extent evidence supporting a gang enhancement would be admissible at a trial determining a defendant's guilt, any inference of prejudice would be dispelled and bifurcation would be unnecessary. (Id. at pp. 1049-1050.) Evidence of gang membership that is more probative than prejudicial also overcomes a challenge pursuant to Evidence Code section 352. (People v. Becerrada (2017) 2 Cal.5th 1009, 1022.) A trial court's ruling denying a defendant's motion to bifurcate is within the sound discretion of the trial court and is reviewed on appeal for abuse of discretion. (People v. Burch (2007) 148 Cal.App.4th 862, 867.)
In support of his argument, defendant relies on People v. Albarran (2007) 149 Cal.App.4th 214, 229-230. In Albarran, two Hispanic males shot at a house. Though there was substantial evidence the sole defendant was a gang member, there was no evidence as to the identity of the other individual. (Id. at pp. 217-219.) Prior to trial, the court ruled the proffered gang evidence was relevant not only to the gang enhancement, but also to the issues of motive and intent for the underlying charges. (Id. at p. 220.) The jury found the defendant guilty of the charged offenses and found the gang enhancement allegations true. (Id. at p. 222.) However, the trial court later found there was insufficient evidence to support the gang findings and they were dismissed without prejudice. (Ibid.)
Albarran held that, even if some of the gang evidence was relevant to the issues of motive and intent, other inflammatory gang evidence not relevant to the charged offenses was admitted. (People v. Albarran, supra, 149 Cal.App.4th at pp. 227-228.) Albarran found much of the gang evidence had no legitimate purpose in the underlying trial and could have led the jury to conclude the defendant posed a danger to society. (Id. at p. 230.) Albarran determined the case was "one of those rare and unusual occasions where the admission of evidence ... violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232, italics added.) Defendant's reliance on People Albarran is unpersuasive because the gang evidence was irrelevant to the underlying offenses and was clearly prejudicial to the defense. Albarran is factually inapposite to the instant action.
When the trial court ruled on the bifurcation motion, evidence had been presented at the preliminary hearing that Francisco and Hiracheta had verbally argued and later exchanged their respective gang affiliations. Also, it had been established that disrespect between rival gang members can lead to violence, including shooting. The designated gang expert at the preliminary hearing testified the shootings in this case were committed for the benefit of the Eastside Crips gang. The evidence of a gang motivation for the shootings was even better established at trial than it was at the preliminary hearing.
Gang evidence is relevant and admissible when the very reason or motive for the underlying crime is gang related. Because motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168, see People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) The trial court did not err in denying defendant's motion to bifurcate the gang allegations from the remaining allegations.
II. Evidence of Premeditation
Defendant contends there was insufficient evidence adduced at trial that he premeditated and intended to kill Cassandra. Defendant argues the evidence established Cassandra was struck by a bullet fired at Francisco, and he harbored no malice toward Cassandra. We reject this contention.
When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This standard of appellate review is the same in cases in which the People primarily rely on circumstantial evidence. Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury, not the reviewing court, that weighs the evidence, resolves conflicting inferences, and determines whether the People have met the burden of establishing guilt beyond a reasonable doubt. If the trier of fact's findings are reasonably justified under the circumstances, the opinion of the reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823-824.) After reviewing the evidence in the light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.)
"[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181; see Evid. Code, § 411.) An appellate court must accept logical inferences the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear there was no hypothesis whatsoever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Smith (2005) 37 Cal.4th 733, 739.) Firing a gun at the victim's head, a particularly vulnerable part of the body, supports an inference of an intent to kill. (People v. Manibusan (2013) 58 Cal.4th 40, 88; People v. Mendoza (2011) 52 Cal.4th 1056, 1071 [close-range gunshot to face sufficient to permit inference defendant acted according to preconceived design with intent to kill]; People v. Adcox (1988) 47 Cal.3d 207, 240 [lethal shot to head from distance of less than six feet establishes shooting was conceived in advance, evidence of prior planning shown by defendant bringing loaded gun to scene of crime].) It takes no special expertise to know that shots fired at someone's head from close range are highly likely to permanently disable even if they are not fatal. (People v. Manibusan, supra, at p. 88, citing People v. Ferrell (1990) 218 Cal.App.3d 828, 835 [attack to victim's neck showed specific intent to disfigure victim and commit mayhem].) Shooting a victim in the head or neck from within a few feet is particular and exacting enough to permit the inference the defendant was acting with a preconceived design. (People v. Halvorsen (2007) 42 Cal.4th 379, 422.)
According to Marisol, defendant fired his gun only seven to ten feet away from Francisco and Cassandra. Defendant aimed the gun in Cassandra's direction and fired three or four shots. Marisol was also standing right next to Francisco. The evidence adduced at trial did not show defendant shot indiscriminately but deliberately aimed at his victims' heads. (People v. Manibusan, supra, 58 Cal.4th at p. 88.) The mental state necessary to show attempted murder is the intent to kill a human being, not to kill a particular human being. Firing a single shot at a group intending to kill someone, but without targeting a particular individual and without using a means of force calculated to kill everyone in the group, is sufficient to sustain a count of attempted murder. (People v. Perez (2010) 50 Cal.4th 222, 224-225.) Although he may have been initially provoked by Francisco's comments, defendant demonstrated an intent to kill both Francisco and Cassandra by aiming his gun at their heads. There was sufficient evidence defendant intended to kill Cassandra when he fired his gun at her.
III. Attempted Murder Instructions
On the attempted murder of Cassandra as alleged in count 2, defendant contends the trial court improperly instructed the jury it had to determine whether the attempted murder was in the first or second degree. Defendant argues this error necessitates reversal of count 2. Although instructing the jury on degrees of attempted murder was error, the trial court's verbal instruction did not alter the elements the jury needed to find defendant guilty of attempted murder, nor did the error foreclose the jury from finding defendant guilty of the lesser offense of attempted voluntary manslaughter. We find the error was harmless.
Jury Instructions
The trial court instructed the jury on attempted murder and attempted voluntary manslaughter using standard CALCRIM instructions. The court instructed the jury on self-defense and defense of another as negating attempted murder or attempted voluntary manslaughter (CALCRIM No. 505); the elements of attempted murder (CALCRIM No. 600); the determination pursuant to section 189 that the attempted murder was done willfully, with deliberation, and premeditation (CALCRIM No. 601); the lesser included offense of attempted voluntary manslaughter if defendant attempted to kill due to a sudden quarrel or in the heat of passion (CALCRIM Nos. 603 & 3500); the lesser included offense of attempted voluntary manslaughter if defendant acted in imperfect self-defense or defense of another (CALCRIM No. 604); and instructions on the use of verdict forms (CALCRIM No. 640). The written jury instructions were sent with the jury to use during its deliberations and did not include the trial court's verbal instructions on the degrees of attempted murder.
When the trial court instructed the jury with CALCRIM No. 640, there was a variance between the court's oral instructions and the written instructions. The written instructions set forth a procedure by which the jury had to first find defendant guilty of attempted murder beyond a reasonable doubt, for counts 1 and 2, before considering the section 189 enhancement. The jury could only consider the enhancement if it found defendant guilty on either or both counts of attempted murder. If the jury found defendant not guilty of attempted murder, then it could address whether he was guilty in either or both counts of attempted voluntary manslaughter.
The trial court's oral instructions concerning how to fill out the verdict forms introduced the concept of attempted first degree and attempted second degree murder. The court orally instructed the jury as follows:
"For each count charging attempted murder, that being Counts 2 and 3 [sic] as to [defendant] only, you will be given verdict forms for guilty and not guilty of attempted first-degree murder and actually attempted voluntary manslaughter. Now I'm going to read you this instruction, but before I do that, I want to reference the verdict form as to [defendant]. You're not actually going to have a finding that says guilty/not guilty attempted first-degree murder; guilty/not guilty attempted second-degree murder; guilty/not guilty voluntary manslaughter. You're going to have guilty/not guilty of attempted murder. If it is first degree, the next question is true or not true as to ... section 189. That's the premeditation and deliberation.
"Premeditation and deliberation, if true, is what would make it first degree. So if you find not true as to the 189 enhancement, that means it's second degree. If you find true as to the 189 enhancement, that makes it first degree. So with that in mind, I'm going to read you this instruction.
"You may consider these different types of attempted homicide in whatever order you wish, but I cannot accept a verdict of guilty or not guilty of attempted second-degree murder—or I can only if you have found the defendant not guilty of attempted first-degree murder, and I can accept a verdict of guilty or not guilty of attempted voluntary manslaughter only if you have found the defendant not guilty of both attempted first- and attempted second-degree murder.
"Basically it works like this. If as to Count 1 you find him not guilty, then you go to voluntary manslaughter. If you find guilty as to attempted murder, then you go to the 189 enhancement and you don't address voluntary. It's not a lesser-included offense if you've already found the greater. If you can't reach a verdict as to attempted murder, then you just go to the next count. There's nothing else to do. So I'll read this to you, but keep in mind what I've just said.
"Follow these instructions and what I've just said to you before you give me any completed and signed final verdict forms. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of attempted first-degree murder or attempted murder, complete and sign that verdict form.
"Actually, I'm going to change this and go through this because this is confusing. If all of you agree the People have proved beyond a reasonable doubt that the defendant is guilty of attempted murder, complete and sign that verdict form and then go to the ... Section 189 enhancement and address whether it's first degree or second degree.
"If you can't agree whether he's guilty of attempted murder, inform me that you cannot reach an agreement and do not complete or sign any other verdict forms for that count. If all of you agree that the defendant is not guilty of attempted murder but also agree that—in the first degree, but you also agree that the defendant is guilty of attempted second-degree murder, then you complete and sign the verdict form of guilty for attempted murder, and then you go to the 189 enhancement, and that would be the finding 'No' or not true, which would make it second-degree murder.
"If all of you agree that the defendant is not guilty of attempted first degree or second degree, then you go to voluntary. And if you cannot agree, then you move on to the next portion." (Italics added.)
Attempted Murder
In California, the crime of attempted murder is not divided into degrees. (People v. Favor (2012) 54 Cal.4th 868, 876-877; People v. Smith (2005) 37 Cal.4th 733, 740; People v. Cooper (1991) 53 Cal.3d 771, 832; People v. Douglas (1990) 22 Cal.App.3d 544, 548-550.) Attempted premeditated murder and attempted unpremeditated murder are not separate offenses. The provision in subdivision (a) of section 664 imposing greater punishment for an attempt to commit a murder that is willful, deliberate, and premeditated does not create a higher degree of murder. Rather, it constitutes a penalty provision prescribing an increase in punishment, a greater base term, for the offense of attempted murder. The statutory language prescribing an additional penalty for attempted murder reflects legislative intent to create a penalty with a greater term rather than a substantive offense. Premeditated attempted murder is not a separate offense from attempted murder. (People v. Favor, supra, at pp. 876-877; Anthony v. Superior Court (2010) 188 Cal.App.4th 700, 706.)
The trial court's oral instructions to the jury that attempted murder consisted of first and second degree murder was legally incorrect. Midway through its instruction, the court told the jury, "I can only if you have found the defendant not guilty of attempted first-degree murder, and I can accept a verdict of guilty or not guilty of attempted voluntary manslaughter only if you have found the defendant not guilty of both attempted first- and attempted second-degree murder." Later, the court instructed the jury, "If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of attempted first-degree murder or attempted murder, complete and sign that verdict form." On two more occasions, the trial court told the jury to determine whether or not defendant committed attempted first degree or attempted second degree murder.
At the beginning of its instruction on how fill out the verdict forms, however, the court told the jury: "You're not actually going to have a finding that says guilty/not guilty attempted first-degree murder; guilty/not guilty attempted second-degree murder; guilty/not guilty voluntary manslaughter. You're going to have guilty/not guilty of attempted murder. If it is first degree, the next question is true or not true as to ... Section 189. That's the premeditation and deliberation."
Although the court told the jury to make a finding as to whether defendant committed attempted murder in the first or second degree, the court also told the jury it would not make such a finding on the verdict form. The court accurately told the jury it would find whether the defendant committed attempted murder and whether he did so willfully, deliberately, and with premeditation. These instructions were correct and did not direct the jury to find attempted murder of either degree. The court's instructions also did not foreclose the jury from making a finding that defendant committed attempted voluntary manslaughter, a lesser included offense of attempted murder. (People v. Lee (1999) 20 Cal.4th 47, 58-59; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.)
The jury verdict forms did not refer to degrees of attempted murder. The verdict forms permitted the jury to find defendant guilty or not guilty of attempted murder in counts 1 and 2 and whether the attempted murder was conducted willfully, deliberately, and with premeditation. If the defendant did not commit attempted murder, then whether he committed attempted voluntary manslaughter. The jury found defendant committed attempted murder with the requisite section 189 finding on count 1, but found the section 189 finding not true for count 2, the attempted murder of Cassandra. The jury clearly followed the trial court's instructions on how to determine and fill out the verdict forms for attempted murder and whether the crime alleged as to either victim was done willfully, deliberately, and with premeditation.
The prosecutor and defense counsel did not refer to degrees of attempted murder in their closing arguments to the jury. In discussing whether his client acted with premeditation, defense counsel referred generally to "the murder charge" and "premeditated first-degree murder." Defense counsel made these references specifically to whether defendant shot the victims with the intent to kill them. Defense counsel did not ask the jury to make a finding that attempted murder occurred in the first or second degree. Defense counsel further argued defendant acted in self-defense and further clarified that in counts 1 and 2 for attempted murder, there was no evidence and "no intent to murder." Defense counsel asked the jury to "move on to the lesser included of attempted manslaughter." From the context of defense counsel's entire argument, it is clear he was not asking the jury to go through the process of determining degrees of attempted murder prior to making a finding on attempted voluntary manslaughter.
The People contend defendant forfeited this argument on appeal because his counsel mentioned first degree murder in his closing argument and also failed to object to the trial court's oral instructions. As noted, defense counsel did not argue there were degrees of attempted murder and limited his discussion of first degree murder to the related issue of forming an intent to kill; we reject the People's first point. As to the assertion defendant did not object to the trial court's erroneous instruction, the People rely on authority holding the failure to seek clarification of an allegedly confusing instruction can lead to forfeiture of instructional error on appeal. (See People v. Souza (2012) 54 Cal.4th 90, 120.) Defendant's contention, however, is the trial court's instruction was incorrect, misleading, and led to a fundamentally unfair trial. Although we reject defendant's argument on the merits, instructional errors affecting a defendant's due process rights not first raised to the trial court are not necessarily forfeited on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 436-439.) We therefore reject the People's assertion this issue was forfeited for appellate review.
The trial court's instructional error did not prejudicially affect the jury's deliberations or its ability to determine the relevant offense, if any, defendant committed. The trial court's pattern instructions on attempted murder and attempted voluntary manslaughter accurately set forth the relevant legal principles for the jury to determine defendant's culpability, if any. Counsel did not incorrectly argue the law of attempted murder. The written instructions sent with the jury for its deliberations were correct and did not include the trial court's erroneous statements concerning degrees of attempted murder. The court's verbal instructions to the jury set forth the proper procedure for the jury to follow in determining defendant's guilt or innocence in counts 1 and 2. The court did not direct a verdict on count 1 or 2. The verdict forms sent in with the jury were legally correct. Finally, the jury found defendant acted in count 1 willfully and with premeditation as to victim Francisco, but found defendant did not do so in count 2 as to victim Cassandra.
Given the jury was not foreclosed in the trial court's erroneous instruction concerning the degree of attempted murder from finding him not guilty of attempted murder, and the jury could find him guilty or not guilty of the lesser included offense of attempted voluntary manslaughter, we find the trial court's misstatement of the law of attempted murder to be harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18.) Contrary to defendant's argument, the error in the trial court's verbal instructions does not raise the specter of fundamental unfairness violating defendant's right to due process of law. Where a court has incorrectly instructed a jury to determine the degree of attempted murder, one remedy employed is to correct the abstract of judgment from attempted second degree murder to attempted murder. (People v. Villasenor (2015) 242 Cal.App.4th 42, 76.) Such correction is not necessary here because the verdict forms and the abstract of judgment only refer to defendant's convictions for attempted murder without reference to a degree of attempted murder.
IV. Testimonial Hearsay
Introduction
Defendant contends the prosecutor's gang expert improperly relied on testimonial hearsay to prove the elements of the gang enhancements in violation of the California Supreme Court's decision in Sanchez, supra, 63 Cal.4th 665. Although some of the gang expert's evidence was admissible, large portions included improper testimonial hearsay. Defendant's conviction on count 5 and the true findings on the gang enhancements must be reversed. As we further explain, however, because the evidence adduced at trial was sufficient at that time, the People are not foreclosed by double jeopardy from retrying the gang allegations. People v. Sanchez
The Sixth Amendment's confrontation clause grants a criminal defendant the right to confront adverse witnesses. (U.S. Const., 6th Amend.) Thus, the admission of testimonial hearsay is barred by the confrontation clause unless the speaker is unavailable to testify and the accused previously had the opportunity to cross-examine the speaker, or the accused has forfeited the right to do so by his or her own wrongdoing. (Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford).) Defendant's counsel filed a written pretrial motion challenging the prosecution expert's use of testimonial hearsay in violation of Crawford. During a hearing on in limine motions, defense counsel further challenged hearsay statements in police reports based on Crawford. The trial court overruled these objections.
In Sanchez, our Supreme Court found the holding in Crawford applicable to testimonial hearsay information of a defendant's past gang affiliation and activity. (Sanchez, supra, 63 Cal.4th at pp. 679-685.) The Sanchez case noted, however, a gang expert's background testimony about general gang behavior or descriptions of a gang's behavior in a community is relevant and admissible evidence as to the gang's history and general operations and based on well-recognized sources of the expert's area of expertise. (Id. at p. 698.)
When an expert relates case-specific out-of-court statements to the jury, and the content of those statements is treated as true and accurate to support the expert's opinion, Sanchez found these statements are hearsay. Sanchez disapproved the court's earlier precedent in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) to the extent it held an expert's opinion is not hearsay because any statements related by the expert go only to the basis of the expert's opinion. Gardeley was further disapproved for finding the potential prejudicial impact of the expert's testimony was overcome by limiting instructions to the jury. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) The court explained "an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Id. at p. 679.)
Sanchez clarified an expert is permitted to rely on hearsay in forming an opinion and may tell the jury so in general terms. "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.) Case-specific facts are those the expert has no independent knowledge of and relate "to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) Typically, parties establish these facts by calling witnesses who have personal knowledge to testify to those facts. The expert then renders an opinion as to what those facts may mean. Thus, the expert is prohibited from supplying those case-specific facts not within the expert's personal knowledge. (Ibid.)
In light of California's hearsay rules and Crawford, Sanchez held a court addressing the admissibility of out-of-court statements must engage in a two-step analysis.
"The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
Statements not offered for their truth are not hearsay, and neither the hearsay doctrine nor the confrontation clause is implicated. (Sanchez, supra, 63 Cal.4th at p. 681.) Concerning the use of limiting jury instructions on a gang expert's reliance on hearsay involving case-specific facts, Sanchez observed there was no denying such facts were being considered by the expert and offered to the jury as true. The jury was instructed it must decide whether the information the expert relied upon was true and accurate. However,
"[w]ithout independent competent proof of those case-specific facts, the jury simply had no basis from which to draw such a conclusion. The court also confusingly instructed the jury that the gang expert's testimony concerning 'the statements by the defendant, police reports, F.I. [field identification] cards, STEP notices, and speaking to other officers or gang members' should not be considered 'proof that the information contained in those statements was true.' Jurors cannot logically follow these conflicting instructions. They cannot decide whether the information relied on by the expert 'was true and accurate' without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true." (Sanchez, supra, 63 Cal.4th at p. 684.)
Sanchez also examined the deficiency of jury instructions and its impact on considerations of hearsay and the right to confrontation. Sanchez recognized the jury must consider expert basis testimony for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his or her opinion, those statements are necessarily considered by the jury for their truth, rendering them hearsay. Like any other such evidence, it must be properly admitted through an applicable hearsay exception. (Sanchez, supra, 63 Cal.4th at p. 684.) The gang expert in Sanchez testified to case-specific facts based upon out-of-court statements and asserted those facts were true because he relied on their truth in forming his opinion, thus reciting hearsay. Although hearsay would ordinarily constitute statutory error, under Crawford, if the hearsay is testimonial and Crawford's exceptions do not apply, the defendant should have the right to cross-examine the declarant or the evidence should have been excluded. (Sanchez, supra, at p. 685.)
The Sanchez court observed testimonial statements are those "made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony," while nontestimonial statements are "those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, 63 Cal.4th at p. 689.) The gang expert in Sanchez testified to the defendant's prior contacts with police. He learned about several of the prior contacts solely through police reports compiled during the investigation of completed crimes. (Id. at p. 694.) The court held the contents of the police reports were testimonial—they were compiled during a police investigation of completed crimes, and the expert relied upon and related as true case-specific facts from a narrative by the investigating officer. (Ibid.)
The court further found field identification cards, used to show a defendant had a prior contact with police while in the company of a known gang member, could be testimonial if the card was produced during the course of an ongoing criminal investigation. (Sanchez, supra, 63 Cal.4th at p. 697.) The Sanchez court could not conclusively determine whether the card was produced in the course of an ongoing investigation, rendering it testimonial because the circumstances surrounding the preparation of the field identification card were unclear. (Ibid.)
In evaluating the effect of confrontation clause errors, the Supreme Courts of the United States and California have found the error measured pursuant to the harmless error analysis standard set forth in Chapman, supra, 386 U.S. 18—the error must be harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684; People v. Cage (2007) 40 Cal.4th 965, 991-992; see Sanchez, supra, 63 Cal.4th at pp. 698-699.)
The People argue there was enough admissible evidence produced by the expert and eyewitnesses to show beyond a reasonable doubt defendant acted for the benefit of a criminal street gang. The People point out Officer Martinez's general knowledge and background information about the Eastside Crips and gang culture was admissible under Sanchez. (Sanchez, supra, 63 Cal.4th at pp. 675, 685 [information acquired through personal knowledge, training, and experience, including lectures and conversations, is admissible].) The testimony of Marisol and Cassandra about the case-specific facts they witnessed was admissible. This included the gang identification slogans shouted out by Hiracheta and Francisco. The People concede Martinez's case-specific testimony about the shooting—including both defendant and Hiracheta saying "Eastside Crips" and Francisco admitting being an Eastside Baker—constituted inadmissible, testimonial hearsay. The People argue, however, Marisol and Cassandra provided independent, admissible testimony corroborating these facts.
The People argue defendant's gang tattoos constituted admissible evidence. The People argue photographs of defendant in the company of Eastside Crip gang members were admissible. The People concede evidence of defendant's gang moniker from a 2008 general offense report was not admissible nor was documentation of general street checks. The People still argue the admission of testimonial hearsay was harmless beyond a reasonable doubt. We disagree.
The general offense reports were replete with inadmissible, testimonial hearsay and constituted a significant portion of the prosecution's evidence on the gang allegations. Martinez relied on reports prepared by other officers referring to defendant's gang activities or referring to gang activities of other Eastside Crip members on the following dates: March 23, 2006; May 12, 2006; December 28, 2007; May 15, 2008; September 26, 2008; August 12, 2009 [defendant allegedly admitted being an Eastside Crip]; July 6, 2011; August 12, 2011; March 2, 2013; and February 1, 2014. Martinez relied on case-specific hearsay statements from defendant's aunt to an unsworn officer that defendant "bangs the east side."
With a photograph of defendant allegedly taken on Eastside Hood Day, Martinez said the only reason he knew it was taken on that day was because another officer documented it in his report. Martinez relied on further case-specific hearsay evidence for Hiracheta and Francisco. The specificity of inadmissible street check reports, including no fewer than 10 separate incidents between 2006 and 2014, made the reports appear more reliable to the jury even though they are inadmissible. Also, the volume of inadmissible information presented by the expert portrayed the People's case with the illusion of a strong case.
The People presented inadmissible court records of convictions suffered by members of the Eastside Crip gang as proof of predicate offenses. This inadmissible evidence was amplified by Martinez, who used inadmissible case-specific testimony concerning the gang membership of the defendants in the predicate offenses. Martinez also testified to inadmissible case-specific details of the crimes underlying the predicate offenses based on police reports of the crimes.
Under Chapman, we "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; see Neder v. United States (1999) 527 U.S. 1, 15-16.) To find an error did not contribute to the ensuing verdict requires a finding that the error was unimportant in relation to everything else the jury considered on the issue in question. The focus is on what the jury actually decided and whether the error may have tainted its decision. (People v. Neal (2003) 31 Cal.4th 63, 86; see People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) We consider "not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.) Given the specificity and volume of inadmissible case-specific testimonial hearsay presented in violation of Crawford and Sanchez, we cannot find the error in admitting this evidence was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684; Sanchez, supra, 63 Cal.4th at pp. 698-699.) Although there was some admissible evidence of defendant's involvement in the Eastside Crips gang, the effect of the inadmissible evidence against him would have been great and likely very persuasive to a jury. We therefore reverse the gang allegation in count 5 and the gang enhancement allegations.
The People, however, are not foreclosed from retrying count 5 and the gang enhancement allegations. In determining whether a retrial of an allegation violates double jeopardy, reviewing courts must consider all the evidence admitted at trial and submitted to the jury to establish whether there was substantial evidence by relying on the law as it existed at the time of trial. (Lockhart v. Nelson (1988) 488 U.S. 33, 39-42.) The double jeopardy clause does not bar retrial after a reversal based on the erroneous admission of evidence if the erroneously admitted evidence supports the conviction. (U.S. v. Chu Kong Yin (9th Cir. 1991) 935 F.2d 990, 1001; People v. Cooper (2007) 149 Cal.App.4th 500, 522; see In re Anthony C. (2006) 138 Cal.App.4th 1493, 1509-1510.) At the time of trial, our Supreme Court's decision in Gardeley was still controlling precedent. Upon remand, the People may retry defendant on the gang allegations. V. Alleged Prunty Error
Introduction
On August 27, 2015, the California Supreme Court issued its decision in Prunty, supra, 62 Cal.4th 59. Defense counsel challenged gang subset evidence pursuant to Prunty in a written pretrial motion. Defendant contends the People failed to establish a nexus between the criminal subsets of the Eastside Crips gang. The prosecution's theory of defendant's conduct on behalf of the Eastside Crips gang, however, was not predicated on gang subsets but rested on a single unified criminal street gang. The gang expert testified subsets were formed based on personal friendships, and everyone affiliated with the Eastside Crips gang acted for the benefit of the larger gang, not for individual subsets. Further, with one exception, the three predicate offenses were not committed by separate subsets but by members of the Eastside Crips. Although the evidence on this point is close, we find the People narrowly avoided violating Prunty's evidentiary requirements. Legal Principles Pertaining to Section 186 .20 et seq., the Street Terrorism Enforcement and Prevention Act (STEP Act)
Among elements for both the substantive gang offense and the gang enhancement, the People must prove the alleged criminal street gang for whose benefit the defendant acted has engaged in a pattern of criminal activity. (People v. Ramirez (2016) 244 Cal.App.4th 800, 816-817 [element of substantive gang offense pursuant to § 186.22, subd. (a)]; People v. Resendez (2017) 13 Cal.App.5th 181, 188 [element of enhancement pursuant to § 186.22, subd. (b)]; People v. Rios (2013) 222 Cal.App.4th 542, 564 [same].) A "pattern of criminal gang activity" is a gang member's individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated predicate offenses during a statutorily defined time period. (§ 186.22, subd. (e); see People v. Loeun (1997) 17 Cal.4th 1, 9-10.)
In Prunty, our Supreme Court determined the required showing "the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Prunty, supra, 62 Cal.4th at p. 67.) "[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.) This connection can take the form of evidence of collaboration or organization, or sharing material information among the subsets of a larger group. It may alternatively be shown the subsets are part of the same loosely hierarchical organization even if the subsets do not communicate or work together. In other cases, the prosecution may show various subsets' members exhibit behaviors indicating their self-identification with a larger group.
Prunty explained the rule it set forth "applies to all STEP Act cases where the prosecution's theory of why a criminal street gang exists turns on the conduct of one or more gang subsets, not simply to those in which the prosecution alleges the existence" of a larger "'umbrella gang.'" (Prunty, supra, 62 Cal.4th at p. 71, fn. 2.) The STEP Act does not require prosecutors to prove an umbrella gang exists. (Ibid.) A problem "arises only when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang." (Id. at p. 91 (conc. & dis. opn. of Corrigan, J.).)
"Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22(b)." (Prunty, supra, 62 Cal.4th at p. 72.) It is not enough "that the group shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets somehow connected to each other or another larger group." (Ibid.)
The Prunty decision recognized groups involved in illicit activity can exhibit "starkly different degrees of formal organization." (Prunty, supra, 62 Cal.4th at p. 77.) In some cases "gangs may constitute loosely coupled, amorphous organizations that routinely operate covertly." (Ibid.) Prosecutors do not, and in some cases cannot, "show that these groups resemble formally structured, hierarchical enterprises such as businesses or professional associations." (Ibid.) Prunty noted it did "not intend to place limits on the theories that the prosecution may advance in attempting to show that various neighborhood-based groups in fact constitute a single 'criminal street gang' within the [STEP] Act's meaning." (Ibid.)
Prunty illustrated its holding using examples of organizational and associational connections. Prunty noted the most straightforward cases might involve subsets connected formally through bylaws or organizational arrangements. Prosecutors could present evidence that such subsets are part of a loose approximation of a hierarchy. Even where subsets have no formal relationship or interaction, and are unaware of one another's activities, "the subsets may still be part of the same organization if they are controlled by the same locus or hub." (Prunty, supra, 62 Cal.4th at p. 77.) This can be demonstrated by a "shot caller" for a subset who answers to a higher authority in the gang's chain of command. (Ibid.) Subsets may be linked together as a single criminal street gang if independent activities benefit the same higher ranking individual or group. This can be shown, for instance with sharing drug sale proceeds with the same members of the gang. Gang subsets may be shown to be linked by more indirect evidence such as shared bylaws. (Ibid.)
Prunty explained that, alternatively, evidence of two seemingly unrelated cliques of a gang routinely act to protect the same territory or "turf" could suggest a larger association. (Prunty, supra, 62 Cal.4th at p. 77.) Proof that several gang subsets conduct independent but harmonious criminal operations within a discrete geographical area may show they are part of a single entity whose bosses have divided up a larger territory. (Id. at pp. 77-78.) In cases where formal structure or hierarchy may not be present, the facts may suggest behavior reflecting such a degree of collaboration, unity of purpose, and shared activity as to "support a fact finder's reasonable conclusion that members of the various subsets collaborate to accomplish shared goals. (Id. at p. 78.) Such collaboration could be demonstrated by working in concert to commit a crime, or that members have strategized to carry out their activities. Evidence that subsets have some sort of informal relationship "need not be direct, and it need not show frequent communication or a hierarchical relationship among the members." (Ibid.) Evidence that subsets "have professed or exhibited loyalty to one another would be sufficient to show that the ... subsets collaborate or cooperate." (Ibid.)
Evidence of more informal associations, such as proof members of gang subsets "hang out together" and "back up each other" can demonstrate subset members have exchanged strategic information or have otherwise taken part in common activities "that imply the existence of a genuinely shared venture." (Prunty, supra, 62 Cal.4th at p. 78.) Evidence of two members of different neighborhood subsets have engaged in activities suggesting they identify one another as belonging to the same criminal street gang is relevant to show the subsets form a single group. "Such evidence, coupled with appropriate evidence that a gang exists, that it operates within a particular geographic area, and that it conducts its activities through subsets or in another decentralized fashion, could permit the inference that the different subsets are members of a single group." (Id. at p. 79.)
Prunty found there are limits "on the boundaries of an identity-based theory." (Prunty, supra, 62 Cal.4th at p. 79.) There must be evidence "that an organizational or associational connection exists in fact, not merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization." (Ibid.) The central question is whether the groups constitute the same criminal street gang. The prosecution must show more than the same geographical area. In Prunty, the alleged subsets were located "'all over Sacramento'" and this did not show the subsets constituted a single criminal street gang. (Id. at p. 79.) The prosecution must present evidence of the alleged subsets' activities showing a shared identity. Such evidence could be in the form of proof a certain gang subset retaliates against a rival gang for affronts the rival gang committed against other subsets. (Ibid.) The prosecution can submit evidence the subsets require their members to perform the same initiation activities. (Id. at p. 80.) Self-identification evidence must refer to the particular activities of subsets and must permit the jury to reasonably conclude the various subsets are associated with each other because of the shared connection within a certain group. (Ibid.)
The statute requires the criminal street gang the prosecution proposes to exist be the same gang the defendant sought to benefit. (Prunty, supra, 62 Cal.4th at p. 80.) The prosecution must meet this sameness requirement by showing the group the defendant acted to benefit, "the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." (Id. at p. 81.) Prunty found the prosecution failed to prove the existence of a unified criminal street gang because the predicate offenses—committed by members of alleged Norteño subsets—were not shown to be sufficiently connected to either the subset claimed by the defendant, or to the overarching gang. (Id. at p. 82.) The court explained "where the prosecution's evidence fell short [was] with respect to the predicate offenses." (Ibid.) The gang expert did not describe any evidence showing "collaboration, association, direct contact, or any other sort of relationship among any of the subsets he described." (Ibid.)
For example, the gang expert's testimony did not show the alleged subsets "shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets." (Prunty, supra, 62 Cal.4th at p. 82.) The expert's testimony also failed to demonstrate "the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that defendant sought to benefit." (Ibid.)
The failure of the prosecution to establish gang affiliations between subsets and the larger criminal street gang constitutes insufficient evidence of the gang allegations. The prosecution must present sufficient proof "consistent with the theory it advanced regarding what constituted the relevant 'criminal street gang.'" (Prunty, supra, 62 Cal.4th at p. 85.)
Analysis
Unlike Prunty, the prosecutor here did not rely on the conduct of subset groups to prove the broader criminal street gang's existence. The expert, Martinez, referred to the general conduct of the entire Eastside Crips gang to show the allegations here were for the benefit of and in association with the Eastside Crips. Most of the gang actors referred to by Martinez were all acting generally and specifically for the Eastside Crips, including defendant and Hiracheta. Many Eastside Crip gang members, including defendant and Hiracheta, had the tattoo "GWARD" as a tribute to Eastside Crip member Joshua Ward who was shot and killed in 2007. Martinez testified the Eastside Crips acted as a single gang within a large territory. The smaller cliques or subsets within that territory were formed based on friendships. According to Martinez, all of the subset groups cooperated and got along well together. A member of a subset would also be a member of the Eastside Crips. Martinez referred to photographs of Eastside Crips members with tattoos naming multiple subsets or of a gang member with a shirt displaying several subset names on it indicating the subsets got along.
Defendant argues one predicate offense was committed by Travell Clark, a purported member of the Lakeview Gangster Crips subset. Defendant contends the prosecutor had to show an associational nexus between the Lakeview Gangster Crips and the Eastside Crips. Had this been a pivotal predicate offense, the failure to establish a tie between the Lakeview Gangster Crips and the Eastside Crips could potentially be error under Prunty without additional evidence linking the subset to the larger gang. The People, however, only had to prove two predicate offenses and did so, showing convictions of Eastside Crip members Sheridan Rogers and David Colen who apparently acted for the benefit of the umbrella gang and not for a particular subset. Furthermore, the jury could rely on defendant's convictions in the instant case as evidence of one predicate offense. (People v. Loeun, supra, 17 Cal.4th at p. 8.) Thus, there was no prejudice in using Clark's conviction as a predicate offense.
Defendant also argues there was a Prunty nexus problem with defendant's alleged membership with the Kincaid subset of the Eastside Crips because defendant claimed membership in that subset. Defendant had asserted affiliation with Kincaid during a police contact. Martinez testified, however, that Kincaid was not a known or official subset of the Eastside Crips but a clique based on street location. Martinez further established, albeit in part with inadmissible hearsay evidence, that defendant was a member of and acting for the benefit of the Eastside Crips gang.
We conclude there was sufficient evidence showing the primary activities and predicate offenses, as well as the crimes committed by defendant and Hiracheta, were conducted by and for the benefit of the Eastside Crips criminal street gang. Although the factual showing here is close, the People and the gang expert narrowly avoided the problem presented in Prunty. As the Prunty decision explained, our Supreme Court did "not intend to place limits on the theories that the prosecution may advance in attempting to show that various neighborhood-based groups in fact constitute a single 'criminal street gang' within the [STEP] Act's meaning." (Prunty, supra, 62 Cal.4th at p. 77.)
The more fundamental problem with the prosecution's proof of defendant's and Hiracheta's membership in the Eastside Crips gang was Martinez's overreliance on inadmissible testimonial hearsay that was case-specific. Should the People elect to retry the gang allegations, however, the prosecutor and gang expert should clarify the relationship and the importance, if any, between the Eastside Crips criminal street gang and its subsets to avoid potential Prunty error on retrial.
VI. Senate Bill No. 620
The parties filed supplemental briefing addressing the effect of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620) on defendant's sentence. On October 11, 2017, the Governor approved Senate Bill 620, effective January 1, 2018, which amended sections 12022.5 and 12022.53 to give the trial court discretion to strike or dismiss a firearm enhancement. Previously, the trial court had no discretion to strike or dismiss such enhancements and they had to be imposed by law. Both parties agree this statutory amendment is retroactive to all cases not yet final because its effect mitigates punishment for a particular criminal offense. (See People v. Brown (2012) 54 Cal.4th 314, 324; People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Francis (1969) 71 Cal.2d 66, 75-76.) The People argue, however, the trial court would abuse its discretion if it struck one or both of defendant's firearm enhancements based on the facts of this case. We disagree with the People's assessment of the facts.
The probation officer's report noted defendant had a limited criminal record. Defendant's family and friends wrote several letters in support. Defendant apologized to the victims and their families for his conduct, accepting responsibility for his actions without equivocation. In sentencing defendant, the trial court referred to all of the letters filed on behalf of defendant requesting leniency. The court further noted, "And I want to state to the family and to everyone present that with certain of these charges, the Court does not have discretion."
The trial court was aware of support for defendant from his family and friends, had heard his apology, and was aware from the probation report of defendant's limited criminal history. The court explained to defendant it had no discretion as to some of the charges except to sentence defendant. The court's lack of sentencing discretion was the law at the time of sentencing, but it is no longer. While we do not discount the seriousness of what happened or the crimes defendant was convicted of, we cannot say as a matter of law the trial court would abuse its discretion if it were to strike one or more firearm enhancements.
Nor can we say from the trial court's comments at sentencing that it would necessarily have imposed the enhancement even if it could have exercised its discretion not to do so. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1021.) This case is also distinguishable from People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, where the trial court clearly stated it did not find any good cause to strike a prior conviction allegation and had many reasons not to, concluding the defendant was the kind of person the law intended to keep off the street as long as possible. We therefore reject the People's arguments that it would be legal error for the trial court to strike any firearm enhancement and a remand for resentencing would serve no purpose.
DISPOSITION
Defendant's conviction on count 5 is reversed, as are the jury's true findings on all the gang enhancements. The verdicts on the remaining counts and enhancements are affirmed. The case is remanded for further proceedings. The People may refile the gang allegations. The People shall notify defendant of their intent to refile the gang allegations within 30 days after the remittitur is issued. The trial court shall conduct a new sentencing hearing if the People elect not to retry defendant on the gang allegations, or after retrial on those allegations. In resentencing defendant, the trial court shall exercise its discretion on whether to strike or dismiss one or more of the firearm enhancements, and, to resentence defendant if appropriate.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.