Opinion
H049250
09-05-2023
In re E.B., a Person Coming Under the Juvenile Court Law. v. E.B., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 18JV43312E)
WILSON, J.
Appellant E.B., a minor, and his coparticipants, all members of Norteno gang subsets, drove their stolen car to Sureno territory and shot at a group of people standing outside a liquor store, killing one of them. The juvenile court sustained allegations that E.B. had committed, among other offenses, first degree murder (Pen. Code, § 187, subd. (a)), and that he had committed those offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)). E.B. appeals from the juvenile court's order committing him to the California Department of Corrections and Rehabilitation - Division of Juvenile Justice (DJJ) with a maximum confinement time of 65 years to life, consecutive to 11 years four months.
Unspecified statutory references are to the Penal Code.
On appeal, E.B. argues the juvenile court erred in admitting statements recorded without his knowledge as he sat in the backseat of a patrol car conversing with one of his coparticipants. He also contends that the juvenile court erred in admitting some of the testimony offered by the prosecution's gang expert. E.B. further contends that the cumulative prejudice of these evidentiary errors require reversal. Finally, E.B. argues that recent amendments to section 186.22 require that the true findings on the criminal street gang enhancements (§ 186.22, subd. (b)(5)) and the associated firearm enhancement allegation (§ 12022.53, subd. (e)(1) must be vacated and remanded for possible retrial.
We reject E.B.'s claims of evidentiary error (as well as his related cumulative error argument) but agree that, under the amended version of section 186.22, the record does not contain substantial evidence to support the juvenile court's true findings on the gang enhancement allegations and the associated firearm enhancement allegation. We therefore reverse the juvenile court's order and remand for further proceedings.
I. Factual and Procedural Background
A. Procedure
On October 11, 2019, the Santa Clara County District Attorney filed a Welfare and Institutions Code section 602 petition alleging that E.B. committed the following offenses: first degree murder (§ 187, subd. (a); count 1); conspiracy to commit murder (§ 182, subd. (a)(1); count 2); willfully discharging a firearm from a vehicle at a person not an occupant of a motor vehicle (§ 26100, subd. (c); count 3); and assault with a firearm (§ 245, subd. (a)(2); count 4). The petition further alleged as to each count that the crimes were committed to promote a criminal street gang (§ 186.22, subd. (b)(5)). As to counts 1 through 3, the petition alleged that a principal personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (d) &(e)(1)), and that E.B. personally used a firearm in committing those offenses (§ 12022.53, subd. (g)).
Following a contested jurisdictional hearing, the juvenile court sustained the petition on all counts and found true all of the enhancements. The juvenile court further found that E.B. was the actual shooter. At the dispositional hearing, the juvenile court committed E.B. to the DJJ, setting a maximum confinement time of 65 years to life, consecutive to 11 years four months.
E.B. timely appealed.
The defense did not present any evidence, so our recitation of the facts is derived from the prosecution's case-in-chief.
Due to the circumstances of this case, we will protect the personal privacy interests of the witnesses to the shooting by referring to them by their initials only. (Cal. Rules of Court, rule 8.90(b)(10).)
On the evening of August 19, 2019, S.D. rode her bicycle to a liquor store at the corner of Williamsburg Drive and Winchester Boulevard in the City of San Jose. S.D. wanted to get something to drink, but also hoped to see Fernando Andrade, whom she had been dating for about two years. When she got to the liquor store, S.D. saw Andrade outside, with two other men, drinking whiskey. S.D. remained outside with the three men and drank some vodka and three cans of beer.
S.D. said these two other men went by "Cansone" and "Potro," but she did not know their true names.
S.D. and Andrade were standing near a dumpster by the liquor store when she heard screeching tires. S.D. looked toward the street and saw a green two door Honda with three young males inside-a driver, a front passenger, and a rear passenger. The "young man" in the front passenger seat was pointing a gun out of the open window. He yelled something, then started shooting. S.D. was not certain how many shots were fired, but believed it was somewhere between five and 10. She estimated three seconds elapsed between her hearing the tires screeching and the first shot being fired.
S.D. immediately got down when she heard the gunshots. She heard bullets striking metal but she was not hit. S.D. told Andrade to get down but he did not respond. S.D. went over to him and realized he had been shot in the chest.
A.S. owned the liquor store where the shooting occurred. At approximately 12:10 a.m. on August 19, 2019, A.S. was closing his store for the night and went outside to put the garbage in the dumpster in front of his store. He saw Andrade, S.D., and a third male, all regular customers of his, standing outside. A.S. put the trash in the dumpster then went back inside to drop off the trash container. No more than a minute later, he stepped outside to close and lock the front door when he heard "fire crackers [sic]." A.S. realized it was actually gunfire when he saw Andrade and the others run and hide. A.S. ran back inside the store and "felt something sharp" in his leg. He turned off the lights, closed the door, and hid behind the counter. A.S. heard around five shots but did not see who fired the shots.
A.S. was shot in his right thigh, but the bullet first went through his wallet and did not break the skin. There were bullet holes in the liquor store windows, and the dumpster.
M.A. lived in a second-floor apartment approximately 100 yards from the liquor store. On the night of the shooting, she was watching a movie with her grandson when she heard gunshots outside. M.A. heard three shots, followed by a brief pause, then a "few more" shots. She looked out her window and saw a "dark green or teal" older model Honda speeding down Williamsburg Drive, away from Winchester Boulevard. M.A. could not see how many people were in the car. She was shown a photograph of a car and said that it looked "similar" to the one she had seen that night.
San Jose Police Officer Anthony Romero was the first officer to arrive on scene that night. A woman flagged him down and led him to where Andrade was lying on the ground. Andrade appeared to be unconscious and was struggling to breathe. Medical personnel transported Andrade to the hospital where he subsequently died.
2. Initial investigation
San Jose Police Officer Tarik Awwad arrived at the scene of the shooting at approximately 12:30 a.m. Awwad saw an unconscious male lying on the ground with a gunshot wound to the chest. Awwad tried to speak to S.D., who was "very hysterical, crying," and not cooperative. Over the course of an hour, Awwad tried multiple times to get a statement from S.D., both at the scene and after taking her to the police station but was unsuccessful.
The following month, in September 2019, S.D. gave a statement to the police in which, according to one of the officers that interviewed her, she described the car involved in the shooting. During that interview, S.D. was shown a photo of a green car but she could not confirm that it was the same car she saw the night of the shooting. S.D. did tell officers the car was similar to the one in the photo.
Investigating officers recovered six nine-millimeter shell casings from the street. In addition, five bullets or bullet fragments were found in the area, one on the sidewalk by the liquor store, one by where Andrade fell, two in the dumpster, and one lodged in the door of a car parked by the liquor store.
On August 20, 2019, a San Jose police officer found a green Honda Civic abandoned on the shoulder of Mabury Road in San Jose. The vehicle had been reported stolen, so the officer conducted an inventory search and found four spent shell casings inside the vehicle: one on the driver side floor; one near the front-passenger seat; and two near the rear-passenger side seat.
3. Subsequent investigation a. Surveillance videos of shooting and vehicle thefts
San Jose police retrieved surveillance footage from a nearby gas station and several other locations. A San Jose police forensic analyst created a video synopsis, which combined all of the surveillance footage into one video showing the events in sequence. The surveillance video from the gas station and a fast-food restaurant from around 12:20 a.m. on August 19, 2019, showed a vehicle traveling on Winchester Boulevard, turning onto Williamsburg Drive, then turning onto another street. The same vehicle then again appears on Winchester Boulevard, and again turns onto Williamsburg Drive. This time, the vehicle stops abruptly for a few seconds, then continues on Williamsburg Drive, but runs a stop sign at the next intersection. The occupants of the vehicle could not be identified on the video, nor could officers determine how many people were in the car.
The theft of the green Honda Civic was also captured on surveillance video which was played in court. The video, recorded at approximately 11:45 p.m. on August 18, 2019, showed a white Honda Civic driving on Cape Hatteras Way before making a U-turn and stopping near Cape Breton Place. At least one person got out of the white Honda and got into the green Honda Civic parked nearby. The two vehicles drove off together and turned onto a nearby street where the white Honda was abandoned.
The officer initially testified the vehicle was a Honda Civic, but subsequently the prosecutor and the officer began referring to it as a Honda Accord. Neither party claims the discrepancy has any significance to the case so we will not address it further.
The white Honda had been stolen around 1:07 a.m. on August 17, 2019, and that theft was also captured by surveillance cameras. That video showed a person wearing a white shirt and dark pants enter the driver's side of the vehicle, after which two more individuals, one in all dark clothing and the other wearing a white shirt and dark pants like the driver, climb into the car. The vehicle's lights flashed before it drove away.
The police officer describing the video stated he did not believe the car had an alarm system but the lights were "activating as if [it] was . . . not properly accessed through a key fob or the key to the vehicle."
b. Ballistics evidence
The prosecution's firearm expert, a criminalist at the Santa Clara County District Attorney Crime Lab, testified that she analyzed six fired cartridge cases and three fired bullets recovered from the scene, as well as the four fired cartridge cases found in the green Honda. All were nine-millimeter (9mm) Luger cartridge cases. In her expert opinion, the cartridges found in both locations were fired from the same firearm. Based on the class characteristics of the markings on the cartridges, the expert concluded they were fired from a 9mm pistol manufactured by either Fabrique Nationale (FN) or Smith &Wesson. FN and Smith &Wesson manufacture multiple firearms that use 9mm ammunition and both are common brands.
c. Social media evidence
On August 17, 2019, San Jose Police Officer Gerardo Silva noticed an Instagram post under the account name "Soldier.677." The post consisted of a photo of two males, later identified as E.B. and coparticipant Carlos Villa-Sandoval, standing in front of a white Honda Accord. The vehicle's license plate was mostly obscured, except for one character-the letter "V."
In the photo, both men were wearing gloves and E.B. had a pistol tucked into his waistband. E.B. was wearing a backwards black hat, a grey t-shirt, a black hooded sweatshirt, blue jeans, and black and white Nike Cortez shoes. Villa-Sandoval was wearing a white shirt, black pants, and white-and-black Nike Cortez shoes. Both men were displaying four fingers, a common Norteno gang sign. The caption on the photo read: "YK [i.e., you know] how we roll. You scrappas ain't out here," followed by three hashtags: "#NPS gang[;]" "#677[;]" and "#BSJN." A comment on the post read: "gang shit 677." Based on the timestamp, Silva determined the photo had been posted at approximately 2:44 a.m. on August 17, 2019.
According to Silva, "scrappas" is a derogatory term for Sureno gang members.
On August 19, 2019, Silva searched the stolen vehicle database for vehicles reported stolen in San Jose. He discovered one outstanding stolen vehicle, matching the make and model of the white Honda Accord shown in the photograph that had the letter "V" in its license plate. It was the same white Honda that had been stolen on August 17, 2019 and which appeared on the surveillance videos described above.
Silva searched the Soldier.677 Instagram account for additional posts and found numerous photos of E.B. In one of the photos, E.B. was posing with his arms crossed, forming an "X," and displaying tattoos of four dots on his left elbow and one dot on his right elbow. In Silva's opinion, the tattoos appeared to be recent as they were "glistening." In a video from another Instagram account, "HandItOver2ME," E.B. is in the driver's seat of a vehicle, next to a passenger who has a semiautomatic pistol in his lap.
The Soldier.677 Instagram account referenced a SnapChat account entitled "ESSJ.E[]." Another investigating officer searched the SnapChat account and discovered a post from August 15, 2019, offering to sell a 9mm firearm. A second post was made on August 20, 2019, at approximately 12:00 p.m., which read, "YK [i.e., you know] anyone who need a 9mm S&W." A number of photos were also posted on the account, including a screenshot of a news article regarding the shooting.
We have redacted E.B.'s true first name from the account name.
d. Cell phone location evidence
Based on the social media postings, San Jose police officers searched for E.B.'s first name in the probation department database and discovered his contact information, including a phone number. Pursuant to a search warrant, officers obtained the records for that phone number from the cell service provider, which included location data and call logs. After reviewing the call logs from that phone, officers obtained search warrants for phone numbers associated with E.B.'s coparticipants, J.L. and Villa-Sandoval.
The cell phone records for the three phones were analyzed to determine their respective locations at the time of the two vehicle thefts-the white Honda and the green Honda-and at the time of, as well as shortly after, the shooting. The data showed that the cell phones belonging to E.B. and J.L. pinged off cell towers near both vehicle thefts around the time the vehicles were stolen. Both of those phones also pinged off cell towers near Williamsburg Drive around the time of the shooting, and then pinged off cell towers along southbound Highway 101. At 1:20 a.m. on August 19, 2019, E.B., J.L., and Villa-Sandoval's phones were all in the same area near Hellyer Park, off Highway 101, in San Jose.
4. E.B.'s arrest and evidence recovered via search warrants
E.B. was arrested on October 9, 2019, and a search warrant was executed at his home in San Jose. In E.B.'s bedroom, officers discovered a black hooded jacket hanging in the closet, "a bunch of red clothing," two belt buckles with the letter "N," a knife, and brass knuckles. A computer monitor in the bedroom displayed a PlayStation profile with the name "e[] gg," along with a photo of E.B. In that photo, E.B. was wearing a red belt, displaying four fingers, and had a handgun stuck into his waistband.
We have redacted that part of the profile name which reflects the minor's first name.
On the same date, police executed a search warrant at J.L.'s home in San Jose. In J.L.'s bedroom, officers found a holster, red clothing, a blue glove, and a Great America pass with E.B.'s name on it.
5. Gang Evidence
The prosecutor's gang expert, San Jose Police Officer Sean Santoro, was qualified to testify as an expert on San Jose criminal street gangs "including, but not limited to, Nortenos as well as the Norteno hoods [sic]" of "The B" and Northern Pride Soldiers (NPS). Santoro testified that San Jose is "predominantly [a] Norteno area." Norteno gang members create subsets in which they "claim a specific territorial area within San Jose." According to Santoro, The B was formed when two different subset gangs- Barrio San Jonero and Barrio Eastside-aligned to create a larger gang. Santoro would not estimate how many members are in each gang and would only state that both NPS and The B have at least three members.
Santoro testified that Nortenos identify with the color red, the number "14," the letter "N," and often use the University of Nebraska's red "N" logo. In addition, Nortenos use common hand signs and tattoos to demonstrate the number "14." NPS subset members will use "677" because the numbers correlate to NPS on a telephone keypad. The B gang members will make a hand sign to form the letter "B," and commonly use the Boston Red Sox's "B" logo.
Norteno subsets were generally territorial, with members of a subset identifying with a specific location and claiming it as a "stronghold" in which they can "operate and build status." Both NPS and The B claim their own territory, but subsets would commonly work together with members of other subsets. Norteno gangs, including NPS and The B, are "primary rivals" of Sureno gangs. According to Santoro, "VST" is a Sureno subset gang, which claims territory near Winchester Boulevard.
In Santoro's opinion, Norteno gang members contribute to the reputation of their gang by "putting [in] work," i.e., committing crimes or other activities that promote the gang. Violent acts bolster the gang's reputation and allow them to maintain or increase their territory by making other gangs fearful of them. When a gang has a violent reputation, it bolsters the gang because members of the community are less willing to cooperate with police. A member who commits a homicide garners a high level of respect within a gang because it demonstrates their commitment to the gang and their willingness to do whatever is necessary.
Santoro opined that E.B. is a member of NPS based on his tattoos and his social media postings, under the handle Soldier.677, in which he is making Norteno and NPS hand signs. Santoro also believed that J.L. was a member of NPS, and Villa-Sandoval was a member of The B. Finally, Santoro testified that, based on his tattoos, Andrade, the victim in this case, was a member of the Sureno gang VST.
In response to a hypothetical question mirroring the facts of this case, Santoro opined that the gang members committed their offenses for the benefit of and in association with the Norteno gang. In his opinion, the gang members' conduct would benefit both Norteno subsets, as well as the overall Norteno mission.
According to Santoro, Norteno members will work together to go "hunting" in Sureno territory, looking for perceived rivals to challenge and assault. The attack on a rival gang instills fear in the rival gang members and in the community, thereby promoting the Norteno gangs' reputation.
II. Discussion
A. Admission of patrol car recorded statement
E.B. raises several arguments challenging the admission of statements he made, recorded without his knowledge, as he conversed with a coparticipant in the backseat of a patrol car. Before addressing these arguments, we provide the relevant additional background facts regarding the recorded conversation.
The Attorney General notes that E.B.'s counsel did not object below that admitting the recorded statement violated E.B.'s Miranda rights or his federal due process rights and thus those claims of error are waived. We will reach the merits of both arguments regardless and therefore need not and do not reach E.B.'s alternative claim that his counsel was constitutionally ineffective.
1. The patrol car conversation
E.B. was 15 years old at the time of his arrest. Officers did not question him, but did question his coparticipant J.L., who had waived his Miranda rights and had already been interviewed by the investigating officers. After J.L.'s interview was complete, officers placed both minors in the backseat of a patrol car for transport to the Santa Clara County Juvenile Hall. Unbeknownst to E.B., that car was equipped with a recording device.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
E.B. and J.L.'s recorded conversation is set forth below:
“[J.L.]: Foo, we're fucked.
“[E.B.]: [] Nigga, we been here all day.
“[J.L.]: Foo, what they tell you?
“[E.B.]: Nothing
“[J.L.]: What?
“[E.B.]: What'd they tell you?
“[J.L.]: (pause and voice lowers) About the fucking (voice lowers further) thing.
“[E.B.]: For real?
“[J.L.]: Nigga…
“[E.B.]: Nigga, I was sleepin the whole time…
“[J.L.]: For real?
“[E.B.]: Yeah, they didn't even go in…foo, they didn't tell me…
“[J.L.]: Foo, it's bad nigga. They're…They're trying to give me life.
“[E.B.]: (scoffing) Life.
“[J.L.]: Naw, nigga, for real.
“[E.B.]: They can't fool. (chuckling) Hella stupid. They can't.
“[J.L.]: Fool, they kept questioning me . . . Keep questioning me about you. They're like do you know this foo? I'm like naw.
“[E.B.]: (chuckling) Foo, just don't say shit foo.
“[J.L.]: Nigga, you don't say shit, nigga.
“[E.B.]: Nigga, they haven't asked me shit.
“[J.L.]: Don't tell them you know me, nigga, cuz they found my fucking shit in your in my [sic] house.
"[E.B.]: What'd they find?
"[J.L.]: The great America pass and your . . . (voice lowers) the fuckin holster, nigga.
"[E.B.]: Great America pass? What the fuck do you have my Great America pass for?
"[J.L.]: Just be like . . . I don't know . . . Foo they were like all their phones were there, foo.
"[E.B.]: (yawning) Uh huh.
"[J.L.]: They were like . . . they were like you know how you know what the phones do? And I was like naw and they were like what were [you] doing at like 12 two months ago. I was like I was like I was at home.
"[E.B.]: Heh.
"[J.L.]: And he was like he was like tell me why three of your guys' phones were there. And I was like daaaaamn.
"[E.B.]: Heh heh. [¶] . . . [¶]
"[J.L.]: Foo all they kept telling me nigga is that that I fucked up and that I just wasted my life foo. And I'm like nigga I'm trying to call my mom. Foo they pulled out pictures of the cars, nigga.
"[E.B.]: Hmm.
"[J.L.]: Foo and then they said there were like there were like gun casings in the shell. In the car. And that and that they're gonna investigate. Cus they took my DNA and they were like we're gonna like test for DNA so like they are like basically telling me that if I if I you know if they take every DNA from it they're not gonna it's not gonna me once. And I was like no.
"[E.B.]: Heh heh.
"[J.L.]: The detectives are talking and they are like you really think. . . Foo that they have pictures of us!
"[E.B.]: Heh. What do you mean?
"[J.L.]: Foo, you're stupid as fuck, nigga!
"[E.B.]: What?
"[J.L.]: Your fucking account . . . they got every fucking picture of me and you together.
"[E.B.]: Oh the Instagram?
"[J.L.]: Yeah cuz of your dumb ass from your account with your with . . . They seen videos of us, nigga!
"[E.B.]: Heh.
"[J.L.]: Foo they already fuckin put us that we're from NPS.
"[E.B.]: That's hella funny. [¶] . . . [¶]
"[J.L.]: They're like: Why did we find
[E.B.]'s fucking Great America pass in your, in your house and a holster?
“[E.B.]: A holster?
“[J.L.]: Yeah.
“[E.B.]: There's no holster at your pad. It's at my pad.
“[J.L.]: There was.
“[E.B.]: It's at my pad.
“[J.L.]: But I get . . . you left it in the car, and I took it, like a dumbass.
“[E.B.]: It's at my pad.
“[J.L.]: For real?
“[E.B.]: Yeah.
“[J.L.]: I found that, I had a holster.
“[E.B.]: You put . . . why the fuck did they say it was mine? [laughs] ‘Cause mine's at my pad, foo.
“[J.L.]: For real?
“[E.B.]: Yeah.
"[J.L.]: Like still?
"[E.B.]: Yeah, it's still there.
"[J.L.]: I don't know, fool, 'cause I had a holster And they were like: Why was there a holster in your house? I'm like: Fuck! I just kept tellin' 'em like: I know that makes me look hella bad, but it wasn't like . . . you know, I was just like: Foo, it wasn't me. Or like . . . I was just like . . . I'm just like: It wasn't me, I wasn't there. I was just like: I found that shit. 'Cause, fool, that shit makes it look hella sketchy.
"[E.B.]: They probably found it at my pad, or did you have one?
"[J.L.]: I really hadn't, like foo, I literally found one in the car, nigga, and I took it 'cause I thought it was yours. And I just took it 'cause I was gonna be like
"[E.B.]: Fuckin' mine was still there, 'cause before I got rid of mine, it was still there.
"[J.L.]: (pause) Fuck, foo, they're investigating Pollo too. (pause) Foo, this is all bad. Why only me and you, niggah?
"[E.B.]: Hm? "[J.L.]: Why only me and you? [burps] (pause) Who you gonna call first?
"[E.B.]: The homies. "[J.L.]: Yeah. I'm gonna call my mom. And then probably the homies.
"[E.B.]: (chuckling) Yeah, well my parents already know, foo.
"[J.L.]: I don't care, nigga, I just want her to know if she don't answer then fuck it I'll call hitty. Call Shitty.
"[E.B.]: Uh, Shitty probably not answer, so I'll probably call my other homie.
"[J.L.]: I'm gonna call that foo, gonna be like wasup foo? [laughs] Foo, they were literally . . . foo, oh my God, nigga, I feel like I fucked up.
"[E.B.]: What?
"[J.L.]: Just said the dumb shit, foo, 'cause foo, they were like: You . . . your story makes no sense. They were like: You don't know him, but you guys were talking in the car like you were homies. I was like: No I wasn't.
"[E.B.]: That's why I say just tell 'em that you want to talk to your attorney.
"[J.L.]: (pause) Bitch, kept saying
"[E.B.]: I literally slept the whole time, foo.
"[J.L.]: Foo, they . . . they just kept telling me, foo, uh, like I was tryin' to fall asleep in there; they just kept going in, kept tryin' to question me. They were like: What, how are we gonna send an innocent person stuck up, up in jail? I was like: What? With this nigga, I was like . . . I was like: You guys make me feel like I'm gonna get locked up, and he's like: Why do you . . . why do you say that? It's like bitch, man, I was like: nigga, you're tellin' me. And then the other nigga was like, it's like: We don't lock up innocent people. I was like: Then why the fuck you guys doing it right now. He's like: You know we're not. He's like: You know why you were here. No, nigga, I do not. Fuck, nigga! Fuckin' [E.B.].
"[E.B.]: [chuckles]
"[J.L.]: I swear to God, nigga, I didn't even get fuckin' time to earn mine you faggot
"[E.B.]: [laughs] (singing) Locked up, they won't let me out...
"[J.L.]: That's what I was thinkin' about, too, I was like: Damn, this nigger really fucked me over, nigger. Didn't even get me time to fuckin' do mine.
"[E.B.]: (singing) Locked up, they won't let me out. They won't let me out (inaudible)
"[J.L.]: We gotta be cool, though, nigga.
"[E.B.]: (singing) Locked up (inaudible)
"[J.L.]: 'Cause they're like, they're . . . they're like connecting hella dots, they were like . . . they were like the cars, like there's, foo, they have fucking like our phones foo, they located, like where we were, foo, at that time, and like when we got the cars, foo. And like we can pull up those, like, things I was like what the fuck. (pause and car engine starts)
“[J.L.]: My Uber's chirping.
“[E.B.]: My Uber's [chuckles].
“[J.L.]: I think we're at the wrong location.
[¶] . . . [¶]
“[E.B.]: What kind of . . so what kinda Uber you get me, foo?
“[J.L.]: (inaudible).
“[E.B.]: This is Uber pool?
“[J.L.]: Uber deluxe. Its that sixty dollar Uber. Right here. (pause) Six.
“[Police officer]: This one (inaudible)
“[J.L.]: Uber luxury [laughs].
“[E.B.]: Uber XL. That was Uber XL right there. (pause)
“[J.L.]: I think we're going to Bay One.
“[E.B.]: We're going to Disneyland. Disneyland.
“[J.L.]: Foo, this nigga's pissing me off. [sniffs] (pause)
“[Police officer]: You guys okay back there?
“[J.L. and E.B.]: Yeah.
“[Police officer]: All right.
“[E.B.]: Five stars.
“[J.L.]: Five stars, for that comment.
“[E.B.]: Yeah. Tip? Maybe tip? (pause)
“[J.L.]: (Inaudible.) For real nigga, I was like what time is it and the nigga looked at his phone when he was fuckin' talking to me.
“[E.B.]: Yeah said eight, you know?
“[J.L.]: Yeah, to yo, I was like-
“[E.B.]: Why are you . . . you picked me up at ten in the morning? What the fuck you mean its eight?
“[J.L.]: For real. I was . . . he's like, he's like it's not the . . .: It's just the first stage. He's like: It's not even the first stage, I was like: Fuck you. Cuz I kept telling him it's hella long.
“[E.B.]: This is hella good dude they're having a count. So that I'm not . . . you're not gonna promote until next Thursday. (pause) We're goin' to County, foo.
“[J.L.]: Fuck.
“[E.B.]: (chuckles) We're going to County, foo.
“[J.L.]: Yes we are.
“[E.B.]: Right here, we're goin' double red.
“[J.L.]: Gotta kick it with the homies.
“[E.B.]: Wanna get certified real quick?
“[J.L.]: Damn. [¶] . . . [¶]
“[J.L.]: [] He was like: What does NPS stand for and he told me. And I was like: I don't know.
“[E.B.]: My home, I'm back home. I know you missed me, baby.
“[J.L.]: Fuck this shit.
“[E.B.]: Fifteen-year-old juvenile has escaped juvenile hall.
“[J.L.]: Hm [laughs]. (pause) I could jump that fence in like two (inaudible). Just get to the middle one. Look at that, we took all the way around, foo.
“[E.B.]: I know.
“[J.L.]: That's cool, she didn't take us right away [laughs].
“[E.B.]: [sigh] And those are the doors of Disneyland.
“[J.L.]: Those are the magic doors. (pause) The gate.
“[Police officer]: Do you want (Inaudible.) ?
“[J.L.]: Oh, my head hurts.
“[E.B.]: I'd like to take a shower, I smell like shit, fool.
“[J.L.]: My hands are hella sweaty. Foo, we better go to the same fuckin' unit.
“[E.B.]: We're not; you're older, foo.
“[J.L.]: Fuck you.
“[E.B.]: We go? You're going to B3, fool.
“[J.L.]: Ooh, they will take ... they will turn you over on the same charges.
“[E.B.]: You're goin' to B3. I'm goin' to B1.
“[J.L.]: Oh, ok so that's how they do it?
“[E.B.]: Yeah, B3's for older, (inaudible).
“[J.L.]: Oh, okay. (Inaudible.) I thought they would just switch B1, B3.
“[E.B.]: Nah.
“[J.L.]: Foo, that shit was hella cold, in that room?
“[E.B.]: Well, all I have is shorts and a tank top on.
“[Unidentified male]: So I'll take, uh, this guy (inaudible).
“[Unidentified female]: Sure.
“[Unidentified male]: And then escort him, and then
“[J.L.]: (Inaudible.). Fuck those two niggers, those are homicide unit.
“[E.B.]: Wassup, pop, take me to Disneyland. (pause)
“[Unidentified male]: Seatbelt off?
“[E.B.]: Yeah.
“[Unidentified male]: Okay.
“[Unidentified female]: All right.
“[Unidentified male]: (Inaudible.)
“[Unidentified female]: Do me a favor and look out the window.
“[J.L.]: I'm already unbuckled.
“[Unidentified female]: Oh, you're already unbuckled?
“[J.L.]: Yeah.
"[Unidentified female]: All right. Okay.
"[J.L.]: Make your job easy."
2. The recorded statement does not violate Miranda
E.B. argues that the admission of statements he made, recorded without his knowledge while he sat in the back of a police car with his coparticipant, J.L., violates his rights under Miranda as it was an unlawful interrogation. We disagree.
a. Applicable legal principles
In Miranda, the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, supra, 384 U.S. at p. 444.) "In reviewing Miranda issues on appeal, we accept the trial court's resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained." (People v. Smith (2007) 40 Cal.4th 483, 502.)
"It is settled that Miranda advisements are required only when a person is subjected to 'custodial interrogation.'" (People v. Davidson (2013) 221 Cal.App.4th 966, 970.) The United States Supreme Court defined the phrase "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444, fn. omitted, italics added.) "The test for Miranda custody is,' "would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave."' [Citation.] The objective circumstances of the interrogation are examined, not the' "subjective views harbored by either the interrogating officers or the person being questioned." '" (People v. Kopatz (2015) 61 Cal.4th 62, 80.)
"[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." (Rhode Island v. Innis (1980) 446 U.S. 291, 301-302, fns. omitted (Innis).)
In Innis, the defendant was arrested in connection with a gun-related murder and robbery. (Innis, supra, 446 U.S. at p. 293.) He was given the Miranda advisements and placed in a police car to be transported to the police station. (Innis, at p. 294.) Three officers were tasked with taking him to the station and were instructed not to speak to him. En route to the station, two of the police officers had a conversation about the search for the gun. (Id. at pp. 294-295.) One of the officers stated that there was a school for handicapped children nearby and expressed concern that one of them might find the weapon and hurt themselves. (Ibid.) The other officer agreed. The defendant then volunteered the location of the gun, explaining "he 'wanted to get the gun out of the way because of the kids in the area in the school.'" (Id. at p. 295.)
The United States Supreme Court determined that the defendant "was not 'interrogated' within the meaning of Miranda." (Innis, supra, 446 U.S. at p. 302.) As an initial matter, it was "undisputed that the first prong of the definition of 'interrogation' was not satisfied, for the conversation between [the two officers] included no express questioning of the [defendant]." (Ibid.) Further, the court concluded "it cannot be fairly concluded that the [defendant] was subjected to the 'functional equivalent' of questioning" because the officers could not have known "that their conversation was reasonably likely to elicit an incriminating response from the [defendant]." (Ibid.) The court noted that there was "nothing in the record to suggest that the officers were aware that the [defendant] was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is there anything in the record to suggest that the police knew that the [defendant] was unusually disoriented or upset at the time of arrest." (Id. at pp. 302-303.) The court also pointed out that the conversation was brief, as opposed to a "lengthy harangue," and the officers' comments were not particularly
" 'evocative.'" (Id. at p. 303.) Although the court acknowledged that the defendant may have been subjected to" 'subtle compulsion,'" and the officers' conversation certainly "struck a responsive chord," that was not the equivalent of interrogation. (Ibid.) In sum, "[i]t must [] be established that a suspect's incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." (Ibid.) b. There was no interrogation by police
" '[T]he constraints of the . . . Fifth Amendment[] do not apply to purely private activity.' [Citation.] But 'the government can exercise such control over a private actor that a "private" action can fairly be attributed to the government for purposes of the . . . Fifth Amendment.' [Citation.] A defendant must demonstrate 'that, in light of all the circumstances, [the private individual] acted as an instrument or agent of the government.' [Citation.] . . . A defendant satisfies this test 'by showing that the government exercised such coercive power or such significant encouragement that it is responsible for [the private individual's] conduct, or that the exercised powers are the exclusive prerogative of the government.'" (United States v. Sanchez (8th Cir. 2010) 614 F.3d 876, 886 (Sanchez).)
In Arizona v. Mauro (1987) 481 U.S. 520 (Mauro), the defendant was taken into custody and given the Miranda advisements. He refused to answer any questions until a lawyer was present. The defendant's wife, who was being questioned in another room, asked to speak with him. The officers brought her into the interrogation room, turned on a tape recorder, and remained in the room. The defendant then made incriminating statements to his wife, which the prosecution later sought to introduce at trial. Relying on Innis, the Arizona Supreme Court ruled the statements were inadmissible. It reasoned that allowing the defendant to speak with his wife was the" 'functional equivalent'" (id. at p. 526) of interrogation because the officers knew that" 'if the conversation took place, incriminating statements were likely to be made.'" (Id. at p. 525.)
The United States Supreme Court reversed. The court noted that there was "no evidence that the officers sent [the defendant's wife] in to see her husband for the purpose of eliciting incriminating statements." (Mauro, supra, 481 U.S. at p. 528.) Rather, the evidence showed that officers" 'yielded to her insistent demands'" to see the defendant. (Ibid.) While it was correct to say "that there was a 'possibility' that [the defendant] would incriminate himself while talking to his wife," and that officers were certainly "aware of th[at] possibility," the court determined that "[o]fficers do not interrogate a suspect simply by hoping that he will incriminate himself." (Id. at pp. 528-529.) The court concluded that the defendant "was not subjected to compelling influences, psychological ploys, or direct questioning. Thus, his volunteered statements cannot properly be considered the result of police interrogation." (Id. at p. 529.)
Here, as in Mauro, the voluntary conversation between J.L. and E.B. was not the functional equivalent of a custodial interrogation. Importantly, the two minors of their own accord began discussing the potentially incriminating evidence officers had told J.L. they had discovered, without encouragement or solicitation by any police officers. While officers may have recognized the possibility the two minors might make inculpatory statements while seated together in the patrol car, "[o]fficers do not interrogate a suspect simply by hoping that he will incriminate himself." (Mauro, supra, 481 U.S. at p. 529.)
E.B. argues that officers should have recognized that, as a minor, he had a particular susceptibility to persuasion or coercion, especially as a gang member who would be expected to prove himself to other gang members. Even assuming that E.B. had any such susceptibility, there was no interaction between E.B. and the officers that came into play in this case which might support a claim that E.B. was subjected to any sort of pressure or inducement to talk. Nor is there any indication that E.B. was motivated by any need to prove himself to J.L. in any way. E.B. sat in the back of a patrol car with a fellow gang member and, unprompted by police officers, spoke freely about the case and what he expected to happen. E.B.'s demeanor during his conversation with J.L. is relaxed and unconcerned, as compared to J.L. who repeatedly expresses his anxiety and alarm about the evidence police had already collected. E.B. sings lyrics about being "locked up," occasionally laughs, and predicts that he and J.L. are "going to County [jail]." At one point, E.B. and J.L. compare their transportation by police officers to an Uber ride and E.B. refers to the entrance of juvenile hall as the "doors of Disneyland."
In sum, the dialogue between E.B. and J.L. was not the functional equivalent of a custodial interrogation, and there is nothing in the record to suggest that J.L. acted as an instrument or agent of law enforcement. Thus, E.B.'s inculpatory statements made during that conversation were not the result of police interrogation, and the statements were not taken in violation of Miranda.
3. No error in admitting statements as adoptive admissions
E.B. next contends that the trial court erred in admitting the recorded statements as adoptive admissions because the accusatory statements by J.L. were not made under circumstances which fairly afforded E.B. an opportunity to respond, and the record supports a finding that E.B. was relying on his Fifth Amendment right of silence. We disagree.
a. Additional background
During the jurisdictional hearing, the juvenile court received and considered the parties' briefing on adoptive admissions. The court ultimately concluded that the "evidence falls within the adoptive admission exception to the hearsay rule" and admitted the statements made during the recording.
b. Applicable legal principles
We review the trial court's evidentiary rulings for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717 (Waidla).) "We will not reverse a court's ruling on such matters unless it is shown' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. Merriman (2014) 60 Cal.4th 1, 74, quoting People v. Brown (2003) 31 Cal.4th 518, 534.)
Evidence of a statement by someone other than a witness testifying at the hearing and offered to prove the truth of the matter stated is generally inadmissible hearsay. (Evid. Code, § 1200, subds. (a), (b).) However, "[e]vidence of a statement offered against a party is not inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." (Evid. Code, § 1221; Waidla, supra, 22 Cal.4th at p. 717.)
Accordingly," '" '[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.'" '" (People v. Armstrong (2019) 6 Cal.5th 735, 789-790.)
" 'In determining whether a statement is admissible as an adoptive admission, a trial court must first decide whether there is evidence sufficient to sustain a finding that: (a) the defendant heard and understood the statement under circumstances that normally would call for a response; and (b) by words or conduct, the defendant adopted the statement as true.'" (People v. Charles (2015) 61 Cal.4th 308, 322-323 (Charles).)
" 'For the adoptive admission exception to the hearsay rule to apply, no "direct accusation in so many words" is necessary. [Citation.] Rather, it is enough that the evidence showed that the defendant participated in a private conversation in which the crime was discussed and the circumstances offered him the opportunity to deny responsibility or otherwise dissociate himself from the crime, but that he did not do so.'" (Charles, supra, 61 Cal.4th at p. 323.)
Trial courts have "broad discretion to determine whether a party has established the foundational requirements for a hearsay exception [citation] and '[a] ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto ....'" (People v. DeHoyos (2013) 57 Cal.4th 79, 132 (DeHoyos).)"' "To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant's conduct actually constituted an adoptive admission becomes a question for the [trier of fact] to decide." '" (People v. Zavala (2008) 168 Cal.App.4th 772, 779.) "We review the trial court's conclusions regarding foundational facts for substantial evidence . . . [and] [w]e review the trial court's ultimate ruling for an abuse of discretion [citations], reversing only if' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (DeHoyos, supra, at p. 132.)
c. Analysis
In this case, there is no evidence that E.B. did not hear and understand what J.L. was saying to him about the evidence that police had gathered connecting the two of them to the murder. E.B. had every opportunity to deny knowledge of what J.L. was talking about and any involvement in a crime. Instead, E.B. affirmatively engaged in a prolonged, almost light-hearted, exchange with J.L. about the case and its likely result, e.g., they are "going to County [jail]." At one point near the beginning of the conversation, when J.L. says, "They're trying to give me life," E.B. replies, "They can't fool. (chuckling) Hella stupid. They can't." Under the circumstances, a person who was not involved in the shooting would reasonably have expressed confusion or proclaimed their ignorance as to what J.L. was talking about. E.B.'s active participation in the conversation can reasonably be seen as a tacit admission of J.L.'s discussion of the evidence.
E.B.'s argument that he did not have a fair opportunity to respond because he knew police were nearby and could potentially overhear their conversation is not persuasive. The fact that J.L. and E.B. lowered their voices and changed subjects when officers were within earshot shows that E.B. was cautious about implicating himself in the presence of police, but not when he believed he was having a private conversation with J.L.
We also are not convinced that E.B.'s actions give rise to an inference that he was invoking his Fifth Amendment right to remain silent, thereby making his recorded statement inadmissible. E.B. and J.L. lowered their voices and stopped talking about the case as they were transported to juvenile hall but E.B. spoke freely when he (mistakenly) believed he and J.L. were having a private conversation. As discussed above, the recorded conversation with J.L., who was not a police officer nor an agent of the police, did not violate E.B.'s Miranda rights. "[T]he constraints of the . . . Fifth Amendment[] do not apply to purely private activity." (Sanchez, supra, 614 F.3d at p. 886.)
Accordingly, the juvenile court did not abuse its discretion in admitting E.B.'s recorded statement as an adoptive admission.
4. No due process violation in admitting recorded statement
E.B. next claims that admitting the recorded statement violated his Fourteenth Amendment rights to due process and a fair trial because it unfairly used his post-Miranda silence against him. We disagree.
The law relating to adoptive admissions is well established. "As [the California Supreme Court] has explained, '[i]f a person is accused of having committed a crime, under circumstances which fairly afford him [or her] an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he [or she] was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.' [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 661 (Jennings).)"' "When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His [or her] silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his [or her presence." [Citation.]' [Citation.]" (Ibid.)
In this case, the juvenile court found that E.B.'s reactions, both verbal and nonverbal, to J.L.'s statements about the various pieces of evidence police had discovered in their investigation, such as the holster, E.B.'s social media posts, and the cell phone location information, qualified as adoptive admissions of his involvement in the shooting. This case is unlike Doyle v. Ohio (1976) 426 U.S. 610, 619 where the United States Supreme Court held that impeaching a defendant with his post-Miranda silence violated the Fourteenth Amendment's Due Process Clause. At no time during their conversation did E.B. deny that he had any involvement in or knowledge of the things that J.L. described, which one would expect to occur if E.B. did not participate in the shooting. Instead, E.B. laughs when informed of the evidence gathered from his social media posts, belittles J.L. for thinking he could be sentenced to a life term, and jokes that he and J.L. will be "going to County [jail,]" rather than juvenile hall. The court properly admitted E.B.'s statements, his nonverbal reactions, as well as his silence, all of which were voluntarily made to J.L. in the back of the patrol car and we do not find this to be a violation of his due process rights under the federal constitution.
Because we conclude the trial court did not err in admitting E.B.'s recorded statements, we need not address whether E.B. was prejudiced by their introduction.
B. Admission of gang expert testimony
E.B. contends that his constitutional rights to a fair trial were violated when the prosecution's gang expert offered testimony in which he gave the court his opinion of both E.B.'s guilt and his intent. We disagree.
1. Additional background
On direct examination, the prosecutor asked the gang expert, Santoro, the following hypothetical question: "Three Norteno gang members, two of one hood and one of another hood steal a car. Then, before they commit a crime, they get rid of the first car and steal a second car. They drive into what is known as a Sureno neighborhood. They circle the area a couple of times. They see a group of people drinking outside of a store. They drive by on that second time [sic], slow the vehicle, yell something out of the window, and then fire into the group of people standing there and then they speed away. [¶] Under that hypothetical, what is your opinion about whether that crime would be committed for the benefit of or at the direction of or in association with a criminal street gang and would that promote, further, or assist in any criminal conduct by gang members?" Santoro opined that the crime was committed "for the benefit and association of [a] criminal street gang, Norteno. It furthers and benefits the gang- criminal street gang."
After E.B.'s counsel objected to the hypothetical as not mirroring the evidence, the juvenile court agreed and noted that the video showed the vehicle driving by once before circling back and stopping briefly. The prosecutor then modified the hypothetical to clarify that the vehicle circled once, then returned, at which point the shots were fired.
When asked to explain the basis for his opinion, Santoro responded, "Often times what we'll see, specifically in San Jose, we'll see Norteno gang members work together specifically within their gang or within their own subset and they'll collectively come together and do what we refer to as slang as hunting. They'll go out together and they will go to a predominantly known area that they believe is Sureno territory and challenge and look for perceived rivals or possible threats and then challenge and assault those individuals. The reason they go out there is to promote the gangs as well as to instill fear amongst the rival gang and that specific community as well as after committing the offense, it sends a message to the gang that they're willing to use violence and that act alone builds reputation for the gangs."
During redirect examination, the prosecutor asked the gang expert, Santoro, if in his opinion, E.B.'s actions "in this case . . . were . . . done for the benefit of NPS." The juvenile court sustained E.B.'s counsel's objection that the question called for an ultimate fact and asked the prosecutor to rephrase the question "in terms of a hypothetical."
The prosecutor asked: "Did [E.B.]'s, in your opinion, actions in this case benefit NPS?" E.B.'s counsel objected again on the same grounds. The juvenile court overruled the objection, saying "[the question] doesn't call for the ultimate legal conclusion of the case. It's just simply a question as to whether or not his actions benefited NPS." The court granted counsel's request for a continuing objection. The expert responded, "It's my opinion that it did." The expert then opined that the offenses were "done in association with NPS."
2. Applicable legal principles
An expert is someone with "special knowledge, skill, experience, training, or education" in a particular field (Evid. Code, § 720) who may testify in the form of an opinion when it will assist the jury "to understand the evidence or a concept beyond common experience." (People v. Torres (1995) 33 Cal.App.4th 37, 45 (Torres); see Evid. Code, § 801.) "Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (Torres, supra, at p. 45.)" 'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support [a gang enhancement under] section 186.22, subdivision (b)(1) ...." (People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang).)
Experts may be asked questions that coincide with the ultimate issue in a case (Evid. Code, § 805; People v. Prince (2007) 40 Cal.4th 1179, 1227), but they cannot offer an opinion on whether a defendant is guilty because "the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." (Torres, supra, 33 Cal.App.4th at p. 47; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) Although the traditional method of eliciting opinion testimony from an expert witness is a hypothetical question based closely on the evidence of the case being tried (Vang, supra, 52 Cal.4th at p. 1046), an expert may also provide an opinion based on other witnesses' testimony presenting no factual conflicts or contradictions (Estate of Collin (1957) 150 Cal.App.2d 702, 712-715).
In Vang, the California Supreme Court held that a gang" 'expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." '" (Vang, supra, 52 Cal.4th at p. 1045.) The hypothetical question must closely track the facts in the case and may not be based on assumptions of fact with no evidentiary support in the case. (Id. at pp. 1045-1046.) Conversely, Vang explained that it is generally not permissible for a gang "expert to opine that the particular defendant[] committed a crime for a gang purpose." (Id. at p. 1049.) Furthermore, "[a] consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant." (Torres, supra, 33 Cal.App.4th at pp. 46-47.) An expert's "opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." (Vang, supra, at p. 1048.)
We review the trial court's evidentiary rulings related to expert testimony for abuse of discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
3. Any error in admitting expert's testimony was harmless
E.B. argues admission of the expert's testimony on redirect as to whether E.B.'s actions benefitted NPS was improper and "usurped [the trial court's] role as the factfinder." In E.B.'s view, when the court sustained defense counsel's objection to the question of whether E.B.'s actions "in this case . . . were . . . done for the benefit of NPS," but then overruled the objection to a nearly identical question, the court essentially accepted the expert's opinion that E.B. committed the offense to benefit a criminal street gang. We agree that the two questions were essentially identical and were not couched in terms of a hypothetical, as required by Vang, supra, 52 Cal.App.4th, pages 1045-1046.
We are not persuaded, however, that the trial court's role as factfinder was usurped by the expert's response to this question. Following the jurisdictional hearing, the juvenile court issued a lengthy written decision. In addressing the criminal street gang enhancement, the court first outlined the gang expert's testimony regarding Nortenos in general and NPS in particular before writing that the expert "was provided with a hypothetical that mirrored the facts in this case and opined that the crime would have been committed for the benefit of, in association with, or at the direction of a criminal street gang and that it would promote, further or assist that gang. [¶] This Court agrees." The court found there could be "no doubt [E.B.] is a member of [NPS]," citing the photos and video on E.B.'s social media accounts; as well as the clothing, weapons, and writings discovered in E.B.'s bedroom. In addition, the court concluded that E.B. committed the offense for the benefit of, at the direction of, or in association with a criminal street gang because he stole two vehicles with two known gang members and used one of those vehicles to drive into rival gang territory and shoot Andrade. Nowhere in its written decision did the trial court state that its conclusions were based on the expert's testimony on redirect.
However, even assuming there was error in permitting the expert to answer the question "Did [E.B.]'s, in your opinion, actions in this case benefit NPS," we find any error harmless under Watson. (People v. Chism (2014) 58 Cal.4th 1266, 1298 [erroneous admission of evidence at guilt phase is reviewed under Watson standard].) Under Watson, we ask whether there is a reasonable chance-more than an abstract possibility but not necessarily" 'more likely than not' "-that a result more favorable to defendant would have been reached absent the assumed error. (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041.) "In assessing prejudice, we consider both the magnitude of the error and the closeness of the case." (Ibid.)
People v. Watson (1956) 46 Cal.2d 818, 837.
Based upon our careful review of the record, we conclude that it is not reasonably probable that E.B. would obtain a more favorable result even if the trial court had sustained defense counsel's objection.
At the jurisdictional hearing, the prosecutor introduced evidence showing E.B. in an Instagram photo two days before the shooting, posing in front of the stolen white Honda next to Villa-Sandoval. E.B. has a handgun stuck into his waistband in the photo. Before and after the murder, E.B. posted on social media, asking if anyone wanted to purchase a 9mm Smith &Wesson semiautomatic handgun, which is one of the models that the criminalist testified was used to kill Andrade.
In addition, E.B.'s Snapchat account displayed a screenshot from a local television news report on the homicide. This raises a reasonable inference that not only was E.B. keeping up to date on the crime he committed, but he was also using the screenshot to elevate his status in the gang.
Addressing E.B.'s standing within his gang, the prosecution also introduced evidence that E.B. gained some level of notoriety and celebrity status in his social media circle after the murder, specifically the "Famous Foo" Instagram video posted on or about August 28, 2019. In the video, E.B. is wearing sunglasses, acting "cool," and the person shooting the video comments that one should not "fuck with [E.B.], cuz [he's] famous," presumably due to his involvement in the shooting.
Police also had surveillance video of three individuals stealing the white and green Hondas, along with cell phone location evidence placing E.B. and J.L. at the site of both vehicle thefts and the scene of the shooting around the time each of those events took place. The shell casings discovered in the green Honda matched the casings and bullets recovered at the liquor store.
Finally, the gang expert testified about the violent rivalry between Nortenos, including E.B., and Surenos, such as the victim, Andrade, as well as the fact that the shooting took place within Sureno territory. Although not required, such evidence was particularly relevant to establish motive for E.B.'s commission of the underlying offenses.
The prosecution's gang expert testified that, based on his tattoos, Andrade was a Sureno gang member.
While the evidence presented at the jurisdictional hearing was circumstantial, it overwhelmingly supports the jurisdictional finding that E.B. committed the offenses alleged in the juvenile petition. Any error in admitting the expert's testimony that E.B. was acting to benefit NPS by shooting at Andrade and the others outside the liquor store was therefore harmless.
C. Cumulative error
E.B. contends that the cumulative effect of the purported errors discussed above warrants reversal of the judgment. "In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself." (In re Reno (2012) 55 Cal.4th 428, 483.) Here, we have found no errors, aside from one assumed nonprejudicial error related to admission of the gang expert's testimony regarding whether E.B.'s conduct benefitted NPS. As there are no additional errors to cumulate, reversal is not required.
D. Gang enhancements
E.B. argues that the juvenile court's findings on the gang enhancements are invalid, because: (1) the amendments to section 186.22, made by Assembly Bill No. 333 (2021-2022 Reg. Sess.), which changed the elements of the gang enhancement, are retroactive; and (2) the Attorney General cannot prove beyond a reasonable doubt that application of the amended statute would not have led to a different outcome on those enhancements. The Attorney General concedes that the amendments to section 186.22 are retroactive but contends that, even under the amended version of the statute, the juvenile court would have found the allegations true. We agree that the amendments are retroactive but disagree with the Attorney General that the evidence relating to those allegations was sufficient to meet section 186.22's new requirements. Accordingly, we will vacate the juvenile court's true findings on those enhancements and remand the matter to the juvenile court where the prosecution may elect to retry the gang enhancements.
1. Additional background
As set forth above, the juvenile court found true that E.B. committed all of the charged offenses to promote a criminal street gang (§ 186.22, subd. (b)(5)). The juvenile court also found true the vicarious section 12022.53, subdivision (e)(1) firearm enhancements alleged in connection with counts 1 through 3.
A required element of these enhancements is that the person be found to have violated section 186.22. (§ 12022.53, subd. (e)(1).)
Leading up to the discussion of predicate offenses evidence, the prosecution's gang expert testified that The B and NPS members "either individually or collectively, engaged in a pattern of criminal gang activity." (Italics added.) To prove that The B and NPS had a "pattern of criminal gang activity" of a "criminal street gang," the prosecutor then introduced records of convictions of three individuals: Anthony Espinoza, Hugo Michicastaneda, and Dave Montenegro.
In 2019, Espinoza pleaded no contest to assault with a firearm and admitted the crime was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)). Santoro testified that, in his opinion, Espinoza was a member of The B criminal street gang based on the circumstances of the case, Espinoza's tattoos, witness statements, gang indicia on his social media accounts and his cell phone, and his then-current residence within territory claimed by The B.
In the second proffered predicate offense, Michicastaneda pleaded no contest to one count of robbery, an offense committed on April 16, 2018. The complaint did not include any gang enhancement allegations. Santoro opined that, based on Michicastaneda's association with Espinoza (who was charged as a codefendant with Michicastaneda), Michicastaneda's prior contacts with law enforcement, and Santoro's investigation of social media and cell phone data in which Michicastaneda is pictured with known gang members and displaying hand signs, Michicastaneda was a member of The B.
As to the third predicate offense, Montenegro pleaded no contest to possession of a firearm by a felon. The arresting officer testified that, after he pulled over a vehicle for speeding, Montenegro exited the passenger side of the car and ran. The officer pursued him and saw him throw a firearm into a back yard prior to his capture and arrest. The complaint did not include any gang enhancement allegations, nor was anyone else charged with Montenegro. Santoro testified that, based on Montenegro's "[c]lothing, the type of crime, and . . . tattoos," he believed Montenegro was a member of NPS.
In addition, the prosecutor presented evidence of a robbery and assault committed by E.B. on March 29, 2019. The court took judicial notice of its own file in the petition regarding E.B.'s prior juvenile adjudication for attempted robbery in that case.
In its written decision, the juvenile court outlined that, pursuant to the version of section 186.22 in effect at the time, the prosecution had to show that the purported criminal street gang "members, whether acting alone or together, engage in a pattern of criminal gang activity." (Italics added.) The juvenile court also noted that qualifying predicate offenses had to have been "committed on separate occasions or [be] personally committed by two or more persons."
2. Assembly Bill No. 333 and applicable legal principles
Our Supreme Court has summarized the effect of Assembly Bill No. 333. "In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assem. Bill No. 333), which became effective on January 1, 2022 (see Stats. 2021, ch. 699). Assem. Bill No. 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a 'criminal street gang' to require that any gang be an 'ongoing, organized association or group of three or more persons.' (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision (f) required only that a gang's members 'individually or collectively engage in' a pattern of criminal activity in order to constitute a 'criminal street gang,' Assem. Bill No. 333 requires that any such pattern have been 'collectively engage[d] in' by members of the gang. (§ 186.22, subd. (f), italics added.) Third, Assem. Bill No. 333 also narrowed the definition of a 'pattern of criminal activity' by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assem. Bill No. 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.' (§ 186.22, subd. (g).)" (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).)
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Powell (2018) 5 Cal.5th 921, 944; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
"In applying this test, we . . . presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "We 'must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence.'" (Ibid.)" 'We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the [trier of fact]'s verdict." (Ibid.) "However, '[a] reasonable inference . . . "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." '" (People v. Davis (2013) 57 Cal.4th 353, 360.)
3. Insufficient evidence to support gang enhancement findings
The collective engagement requirement of amended section 186.22, subdivision (f) has been interpreted to mean that predicate offenses must have each been "committed by more than one person," rather than "individually but on a different day." (People v. Delgado (2022) 74 Cal.App.5th 1067, 1088-1089 (Delgado); accord, People v. Lopez (2021) 73 Cal.App.5th 327, 345.) The Attorney General urges this court to follow the contrary analysis laid out in another appellate decision currently under review by the California Supreme Court (People v. Clark (2022) 81 Cal.App.5th 133, 145-146, review granted Oct. 19, 2022, S275746.) Although the precise question is still pending, the Supreme Court clarified in Tran, supra, 13 Cal.5th at page 1207 that-whatever "the contours of Assembly Bill [No.] 333's collective engagement requirement" may be- reversal is required where "the jury was not presented with any discernible theory as to how" that requirement was met. Under either interpretation of the requirement, the record here does not reveal the presentation of a compliant theory of collective activity derived from the predicate evidence.
Under the version of section 186.22 in effect at E.B.'s jurisdictional hearing, the prosecution could prove the existence of a criminal street gang by showing that members of the gang "individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (Former § 186.22, subd. (f), italics added.) Assem. Bill No. 333 eliminated the phrase "individually or" from that subdivision and consequently, the prosecution must show that gang members "collectively engage in, or have engaged in" criminal gang activity. (Amended § 186.22, subd. (f).)
In this case, the prosecution did not establish that gang members collectively, as opposed to individually, engaged in a pattern of criminal activity. Amended subdivision (f)'s requirement that gang members "collectively engage" in a pattern of criminal gang activity "means the People were required to prove that two or more gang members committed each predicate offense," and here, no evidence was presented that multiple gang members committed the predicate offenses. (Delgado, supra, 74 Cal.App.5th at pp. 1072, 1088-1090.) There was no testimony or documentary evidence offered to show that the members of The B and NPS collectively, rather than individually, engaged in a pattern of criminal gang activity.
The evidence supporting the predicate offense involving Espinoza was the strongest. Espinoza was charged with other defendants, and Espinoza admitted the criminal street gang allegation as part of his plea bargain. However, there was no evidence presented regarding the gang affiliation of Espinoza's codefendants, i.e., whether one or more of them were members of The B, NPS, or another Norteno gang. Santoro offered no testimony about the underlying facts of this case which resulted in the plea agreement, nor was there evidence that any of the codefendants were also convicted in this case.
Espinoza entered his plea agreement in 2019 which means he admitted the gang enhancement under the former version of section 186.22, a fact which blunts the impact of that admission from an evidentiary standpoint. Whether he would have admitted the enhancement under the operative version of section 186.22 is unknowable.
The prosecution also offered no evidence regarding the facts surrounding the predicate offense committed by Michicastaneda. It is true that another gang member, Espinoza, was named as a codefendant in the charging document offered to prove Michicastaneda's conviction, but no evidence was proffered to show that Espinoza was ultimately convicted in that case or that Michicastaneda and Espinoza acted together in committing that crime. Further, the charging document did not allege a gang enhancement, which implies the crime was not gang related.
The third predicate offense offered by the prosecution was similarly flawed. The evidence relating to Montenegro's conviction was that he illegally possessed a firearm, which was discovered after he fled from a vehicle that police had pulled over for speeding. However, Montenegro is the only person named in the charging document, and the arresting officer offered no testimony about who else was in that vehicle, let alone that they were also gang members. As a result, there was insufficient evidence to show that, in this particular instance, Montenegro and at least one other gang member were "collectively engage[d]" in a criminal gang activity.
Regarding E.B.'s prior juvenile adjudication, the arresting officer testified that E.B. was arrested for assault and robbery which took place at Independence High School. There was no testimony that E.B. committed the crime with any other person, let alone with other gang members, or that the assault or robbery were gang-related in any way.
Finally, and most importantly, the prosecution offered no evidence as to how any of the predicate offenses described above commonly benefitted a criminal street gang, let alone benefitted the gang in a way that was more than reputational. (Amended § 186.22, subd. (e)(1).)
In short, no evidence shows beyond a reasonable doubt that any of the predicate offenses presented at the jurisdictional hearing were committed in concert with other gang members, that they were related to the individual's membership in a gang, that they were not committed alone, or that they benefitted the gang in a way that was more than reputational. (Delgado, supra, 74 Cal.App.5th at p. 1090.) Consequently, the gang enhancement findings are not supported by sufficient evidence and must be vacated along with the finding on the associated firearm enhancement.
III. Disposition
The juvenile court's order is reversed and the true findings on the gang allegations under Penal Code section 186.22, as well as the firearm allegation under Penal Code section 12022.53, subdivision (e)(1), are vacated. On remand, the prosecutor may elect to retry the gang allegations and the firearm enhancement. If the prosecutor elects not to retry any allegations, the juvenile court shall strike those allegations and hold a new dispositional hearing.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Bromberg, J.