Opinion
F083387
04-09-2024
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY ANGEL GARCIA, Defendant and Appellant.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. PCF405495A Antonio A. Reyes, Judge.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
Appellant Johnny Angel Garcia was convicted by jury of attempted murder (Pen. Code, § 664/187, subd. (a), counts 1 & 2), possession of a controlled substance with a firearm (Health & Saf. Code, § 11371.1, subd. (a), count 3), felon in possession of a firearm (§ 29800, subd. (a)(1), count 4), and felon in possession of ammunition (§ 30305, subd. (a)(1), count 5). In addition, the jury further found true enhancements for the personal use of a deadly weapon (§ 12022.7, subd. (a)), the personal and intentional discharge of a firearm which proximately caused great bodily injury (§ 12022.53, subd. (d)), and the commission of crimes for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C).) Garcia admitted to having suffered three prior "strike" convictions (§1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and having suffered three prior serious felony convictions (§ 667, subd. (a)(1)). The trial court sentenced him to an aggregate indeterminate term of 75 years to life in state prison, plus a determinate term of 10 years 16 months.
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
Garcia raises the following claims on appeal. First, he contends that the trial court erroneously instructed the jury that implied malice is a basis of liability for attempted murder. Second, the trial court erred by failing to instruct the jury on voluntary manslaughter in relation to Garcia's claim of imperfect self-defense. Third, the trial court erroneously instructed the jury that in relation to some of the charged enhancements, great bodily injury only had to be more than "minor or moderate." Fourth, the trial court abused its discretion by admitting evidence of the following: Garcia's prior convictions; evidence of Garcia's tattoos, his jail recorded phone calls and jail visits; details of the Fresno Bulldog criminal street gang's predicate offenses; and irrelevant opinions by the prosecutor's gang expert regarding Garcia's guilt and the Bulldog gang's propensity for violence. Fifth, Garcia contends that the prosecutor erred in multiple respects during her comments in closing argument. Sixth, Assembly Bill No. 333's (2021-2022 Reg. Sess.) (AB 333) recent amendments to section 186.22 necessitates reversal of the gang enhancements. Finally, Garcia submits that the cumulative effect of these errors compels the reversal of his convictions.
The Attorney General concedes that the trial court erred by instructing the jury that implied malice can support a conviction for attempted murder, and that the error was compounded by statements the prosecutor made during her comments in closing argument. He agrees that the error was prejudicial and necessitates reversal of Garcia's convictions for attempted murder on counts 1 and 2. The Attorney General further concedes that AB 333's recent amendments to section 186.22 require reversal of the gang enhancements. We agree.
We conclude that Garcia's convictions for attempted murder (counts 1 & 2) must be reversed for prejudicial instructional error, and that the gang enhancements applied to all counts must be reversed following AB 333's amendments to section 186.22. Garcia's second and third claims are therefore moot and we do not address them. We further conclude that the remainder of Garcia's claims are meritless and affirm his remaining convictions.
PROCEDURAL HISTORY
On June 9, 2021, the Tulare County District Attorney filed a second amended information charging Garcia with premeditated attempted murder (§ 664/187, subd. (a), counts 1 & 2), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a), count 3), felon in possession of a firearm (§ 29800, subd. (a)(1), count 4), felon in possession of ammunition (§ 30305, subd. (a)(1), count 5), and criminal gang conspiracy (§ 182.5, counts 6 & 7). As to counts 1 and 2, the information alleged that Garcia had discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (b), (e)(1)) and that he had personally inflicted great bodily injury in the commission of the offenses (§ 12022.7, subd. (a)). As to counts 1, 2, and 4 through 7, the information alleged that Garcia committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C), (b)(4), & (b)(5)). The information further alleged that Garcia had suffered three prior "strike" convictions (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and three prior serious felony convictions (§ 667, subd. (a)(1)).
On July 30, 2021, following a trial, a jury found Garcia guilty on counts 1 through 5. The jury further found true the great bodily injury enhancement allegations (§ 12022.7, subd. (a)), the firearm enhancement allegations (§12022.53, subds. (b), (e)(1)), and the gang enhancements (§ 186.22, subd. (b)(1)(C), (b)(4), (b)(5)). Garcia admitted the truth of his prior convictions.
Garcia was jointly charged with his wife, Kristi Flores, who was convicted of being an accessory after the fact. She is not a party to this appeal.
On September 30, 2021, the trial court sentenced Garcia to an indeterminate term of 75 years to life in state prison, plus a determinate term of 10 years 16 months.
A timely notice of appeal followed.
STATEMENT OF FACTS
Prosecution's Case
Garcia and Flores, a married couple from Fresno, were staying at the Hampton Inn in Tulare while on vacation. Garcia is an admitted McKenzie Street Bulldog gang member, which is a subset of the Fresno Bulldogs criminal street gang. Flores has a documented history of associating with gang members, she had previously been involved in gang-related crimes, and she has tattoos documenting her affiliation with the Fresno Bulldogs.
At approximately 11:03 a.m., Garcia returned to the hotel's gym to retrieve a speaker he had left inside while working out. The gym has a window that looks directly out to the main entrance of the hotel, where G.J. and L.A. were approaching. G.J. was wearing a red 49er t-shirt under a black hooded jacket, while L.A. wore a red "TC" hat and red shoes-attire frequently associated with Norteño gang affiliation.
Tulare County is primarily occupied by the Norteño or Northern criminal street gang, who are rivals of the Fresno Bulldogs. Tulare County is therefore considered hostile territory for Fresno Bulldogs.
Garcia signaled Flores to come down from their hotel room by sending her a selfie text message. He got into the hotel lobby elevator. As the elevator doors began to close, L.A. and G.J. approached, stopped it from closing, and entered.
Seconds later, Garcia pulled out a gun and shot them both. L.A. was shot in the abdomen and G.J. was shot in the shoulder.
Garcia then chased G.J. outside until G.J. was able to run to the south parking lot. Garcia appeared to have a heavy object swinging in his pocket as he ran, and he was holding unidentified objects in his left hand. L.A. ran west into the hotel lobby, and then into a hallway.
Garcia ran back inside the lobby of the hotel holding a gray sweater and an unknown object. Once inside, he walked back to the elevators where he met Flores. Garcia and Flores took the elevator to their hotel room on the fourth floor.
Two or three minutes after the shooting, hotel surveillance video depicted Flores leaving the hotel carrying her purse and a white plastic bag. She exited the hotel by using the stairwell located at the east side of the hotel, bypassing the elevators which were adjacent to the room she and Garcia shared.
Flores walked around the back of the hotel, around the pool, and to her car. A few minutes later, she drove away. She left her cellular phone in her hotel room, which prevented police from tracking her location.
During their investigation, officers found a spent nine-millimeter shell casing along the same route taken by Flores when she left the hotel. No bullet casings were found in the elevator where the shooting occurred. A mushroomed bullet was found on the ground in the hallway where L.A. had fled.
Four hours later, Flores returned to the hotel with her uncle, J.F. Investigating officers searched Flores's vehicle and found a gray sweater consistent with the sweater Garcia was holding after the shooting. Following her arrest, police searched Flores and found a glass pipe commonly used for smoking methamphetamine in her bra.
Garcia was taken to the police station. While he was being booked into custody, officers found 2.9 grams of heroin in Garcia's wallet. Garcia was wearing a lanyard with the word "McKenzie" on it.
During police interrogation, Garcia told officers that he was not doing anything wrong and claimed that he was just working out in the gym. Although he self-identified as a Bulldog gang member, he claimed that he did not actively promote the gang.
Garcia maintained that he did not know the men that were shot or where they came from. He told the interrogating officers, "I don't know what … happen[ed]," "I don't know if I'm getting robbed I don't know if I'm getting … set tripped on." Garcia also denied having a weapon in his possession.
The Ballistics
Jessica Winn, an assistant laboratory director at the Fresno Crime Lab's Bureau of Forensics, examined bullets fragments retrieved from both the crime scene and G.J.'s body, as well as the shell casing recovered by the hotel pool. Winn concluded that two bullets she had examined were fired from a semiautomatic pistol. She opined that the bullets were most likely fired from the same firearm, but she could not reach a conclusive determination without the firearm.
The firearm used in the shooting was never recovered.
The bullets Winn examined were consistent with a nine-millimeter Luger. She could not say with certainty that the bullets were attached to the mushroomed shell casing recovered from the hotel hallway, but she opined that they could have been.
Brand names are not typically stamped or imprinted on bullets. Although Winn could not discern what brand of bullet was used in the shooting, she was able to determine that more than one type of bullet was used.
At trial, the prosecutor introduced a photograph extracted from Flores's cellular phone which depicted a jewelry dish containing two wedding rings stacked together, and three intact bullet cartridges. The bullets depicted were of more than one brand of ammunition, but they were all the same caliber: a nine-millimeter Luger.
Winn stated that the rounds depicted in the wedding rings photograph were not consistent with the mushroomed bullet recovered from the crime scene. She explained that full metal jackets, like the ones depicted in the photograph, do not mushroom. However, Winn opined that the bullets in the photograph and those recovered from the shooting were of the same caliber: a nine-millimeter. There are over 30 different brands of nine-millimeter Luger pistols capable of firing nine-millimeter ammunition.
The Gunshot Residue Test Results
A gunshot residue (GSR) test was performed on Garcia, G.J., and L.A. To explain the significance of the results, a brief background about GSR is required:
With respect to GSR, a "characteristic" particle contains three metals: Lead, Antimony and Barium. When characteristic particles are detected on a person's hands, it is consistent with the individual having discharged a firearm, being near a firearm, or having touched a surface with GSR on it. If, for example, someone sustained a gunshot wound and then touched the wound, characteristic particles may be detected on their hand. Winn explained that in her experience, it is very common to see gunshot wound victims with characteristic particles on their hands.
A "consistent" particle contains two out of the three component metals, specifically, Barium and Antimony. Consistent particles are consistent with having originated from a firearm being discharged, but there are non-firearm sources that the particles may also have originated from.
Finally, a "commonly associated" particle means that only one of the three metals is detected. The result is considered inconclusive because it cannot be determined where the particles originated from.
Characteristic and consistent particles were detected on both of Garcia's hands and both of L.A.'s hands. Characteristic and commonly associated particles were detected on G.J.'s right hand only. These results indicate that GSR was detected on both of Garcia's and L.A.'s hands, and that GSR was detected on G.J.'s right hand only.
The gray sweater found in Flores's vehicle was also tested for GSR. Lead particles were detected on the gray sweater, yielding an inconclusive result as to whether the particles came from a firearm or a non-firearm environmental source.
The Gang Evidence
Sergeant Ruelas
Parlier Police Sergeant Jesse Ruelas testified as an expert regarding the Fresno Bulldogs criminal street gang. Sergeant Ruelas had 25 years of experience as a police officer and had worked in the Multi Agency Gang Enforcement Consortium (MAGEC) at the Fresno Police Department for 11 years.
According to Sergeant Ruelas, there are approximately 6,000 known Bulldog gang members in Fresno County, and 8,000 to 10,000 associates of the gang. The Fresno Bulldogs are comprised of various subsets, including, East Side Fresno (ESF), which is the largest subset. McKenzie Street, Lewis Street, Daisy Park, Varrio Fifth Street, and Varrio Taco Flats are Bulldog subsets that operate under the umbrella of ESF. While Bulldog subsets generally claim territory to specific parks or streets, Sergeant Ruelas opined that they are all Bulldogs.
The Fresno Bulldogs are unique in that there is no established hierarchy within the gang and its individual members operate by status rather than rank. Although the Norteños are considered rivals of the Fresno Bulldogs, the Bulldogs fight with everybody. The subsets even occasionally fight with one another.
Based upon his experience, Sergeant Ruelas opined that the primary activities of the Fresno Bulldogs include murder, assault with a deadly weapon, battery with great bodily injury, witness intimidation, arson, vehicle theft, burglary, pimping, prostitution, and human trafficking. With respect to the McKenzie Street Bulldogs, the prosecutor adduced evidence of specific examples of McKenzie Street Bulldog gang members who had committed the crimes of carjacking, the illegal possession of firearms, and vehicle theft.
To demonstrate that the Fresno Bulldogs have committed a "pattern of criminal gang activity" (see § 186.22, subd. (a)), the prosecutor relied upon the current offenses charged against Garcia and adduced evidence of prior crimes committed by Fresno Bulldog, Lewis Street Bulldog, or McKenzie Street Bulldog gang members. Officers with personal knowledge of these incidents offered testimony establishing the following:
Garcia does not challenge the sufficiency of the evidence supporting the gang enhancements under our Supreme Court's decision in People v. Prunty (2015) 62 Cal.4th 59 (Prunty). There, our Supreme Court held that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.) We therefore do not address Prunty's application to the instant case.
On December 3, 2017, Louie Valdez, Destiny Rico, her husband, Fernando Cancino, and Victor C., traveled from Fresno to a home in Tulare County and stole firearms from a residence for purposes of firearms trafficking. Rico is a self-admitted Fresno Bulldog gang member.
In 2014, Rico, also known by the gang moniker of "Baby Dreamer," had beaten and robbed another girl of her clothing while yelling out "Bulldogs."
Valdez claimed membership to the Lewis Street Bulldogs. Certified copies of Valdez's and Rico's convictions show they were convicted of first degree burglary with a criminal street gang enhancement.
On August 17, 2018, following a traffic stop, Martin Contreras was found in possession of a concealed firearm. Officers also found methamphetamine on his person and in his vehicle. Contreras had multiple tattoos on his body and face associated with the Fresno Bulldogs in general, as well as tattoos specific to the McKenzie Street Bulldogs subset, including "624" and "MSD." The grip of his firearm handle was red, a color commonly associated with the McKenzie Street Bulldogs.
Detective Christopher Martinez, who was assigned to MAGEC at the time of the traffic stop, was tasked with identifying members of the McKenzie Street Bulldogs. He opined that Contreras was a McKenzie Street Bulldog.
Contreras ultimately plead no contest to carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(3)). He also admitted the charged allegation of being an active participant in a criminal street gang (§ 25400, subd. (c)(3)). A certified copy of Contreras's conviction was admitted into evidence.
Based upon various indicia, Sergeant Ruelas opined that Flores and Garcia are active Fresno Bulldog and McKenzie Street Bulldog gang members. Sergeant Ruelas further opined that the fact that Garcia committed a violent crime in broad daylight in addition to his demonstrated unwillingness to back down was consistent with the Fresno Bulldogs, who are known to fight everybody. Sergeant Ruelas explained that Garcia would benefit reputationally from his attempt to kill two rival gang members because his crimes would elevate his status within the gang, which like the Bulldog breed of canines, has a reputation for violence.
Garcia does not challenge the sufficiency of the evidence supporting the conclusion that he is an active McKenzie Street Bulldog and a Fresno Bulldog gang member. We therefore do not recite the facts supporting Sergeant Ruelas's opinion.
Officer Michal Elliott
Visalia Police Officer Michael Elliott also testified as an expert regarding the Fresno Bulldogs. Officer Elliott worked on a gang suppression and a special enforcement unit for six years. He had also personally investigated the burglary committed by Valdez, Destiny Rico, and two others, and had testified as a gang expert in Rico's criminal case.
Officer Elliott explained that members of the Fresno Bulldogs identify with the gang by wearing California State University Fresno clothing, by wearing red and blue, and with specific tattoos, including, the Fresno State University Bulldog face, dog paws, dog collars, the letters "B" and "D", and the numbers "2" and "4." Officer Elliott explained that some of the Bulldog subsets allow members from other subsets of the same gang to have safe passage on their turf. Accordingly, a Chancla Bulldog, a Callohill Bulldog, a McKenzie Street Bulldog, or a Lewis Street Bulldog can travel safety throughout Fresno without being harassed by other Bulldogs because these subsets are allied.
The Defense's Case
Garcia testified that after he had retrieved his speaker from the hotel gym, he got in the lobby elevator. The elevator doors suddenly began to open, and a man walked in with a hoodie that covered his face. Garcia saw a knife in the man's hands. Garcia used the speaker he was carrying as a shield.
According to Garcia, a second man walked into the elevator, moved his right arm to his waist, and pulled out a pistol. Garcia dropped the items that he was holding, including the speaker. He grabbed the wrist of the man holding the firearm and yanked it to try to get the gun out of his hand. This caused the gun to discharge one time.
Although Garcia was unable to identify his assailants at trial, from his testimony, he claimed that L.A. had brandished a firearm and that G.J. was holding a knife.
One of the assailants, L.A., stumbled out of the elevator, and the other, G.J., fled. Garcia claimed that he picked up his things and absentmindedly ran in the same direction as G.J. According to Garcia, he continued to run in the same direction as G.J. because he "wanted to see where [G.J.] was going." During this time, he observed G.J. drop his knife.
When he saw a third person outside, Garcia turned around and ran at full speed back to the hotel lobby. Garcia claimed that he did not know what happened to the gun and he denied giving Flores a gun. He also denied sending Flores a signal to come down from their hotel room.
DISCUSSION
I. The Trial Court Committed Prejudicial Instructional Error Necessitating Reversal of the Attempted Murder Convictions
Garcia asserts that the trial court erred by instructing the jury that implied malice is sufficient to support a conviction for attempted murder. The Attorney General agrees that the trial court erred in so doing, and that the instructional error was compounded by the prosecutor's comments in closing argument. The Attorney General further concedes that reversal of Garcia's convictions for attempted murder is required.
Following our independent review of the record, we accept the parties' assertions and will therefore reverse Garcia's convictions for attempted murder on counts 1 and 2. We will remand the matter back to the lower court for further proceedings, including, a retrial on these counts at the election of the prosecutor.
A. Background
Garcia was charged with attempted murder in counts 1 and 2. The jury was instructed on this crime as follows:
"To prove that the defendant is guilty of attempted murder, the People must prove that:
"1. The defendant took at least one direct but ineffective step toward killing another person.
"AND
"2. The defendant intended to kill that person."
However, the jury was also instructed with a modified version of CALCRIM No. 252. This instruction provided:
"The specific intent and mental state required for the crime of ATTEMPTED MURDER OF G.J. is INTEN[T] TO KILL AND WITH MALICE AFORETHOUGHT."
During her comments in closing argument, the prosecutor stated that malice aforethought could include express or implied malice:
"So willful is on purpose. And malicious, that's something else that we have to find. Someone acts maliciously when he intentionally does a wrongful act or when he acts with an unlawful intent to disturb, annoy or injure someone else. And defendant Johnny Garcia was definitely acting maliciously.
"You have been given a number of verdict forms or you will be given a number of verdict forms. And there are crimes and there are also lesser included crimes. So for Count 1 [attempted murder] you are going to get a stack and it will say basically first degree premeditated, willful deliberate murder of [L.A.] by Johnny Garcia. And then it will have some fill-ins there for your determination and your verdict.
"But if you were to find that it wasn't willful, that it wasn't malicious, and that it was more of somebody acting with an intent that showed that they had a reckless disregard for the value of human life, that would be second degree murder instead of first. So you would circle the second degree. And then also, that has to do with malice aforethought. Malice aforethought is either express or implied. And proof of either is sufficient to establish the state of mind required for murder. The defendant has express malice if he unlawfully intends to kill and they are shooting multiple victims in this case. That shows his express malice. Or there is implied malice if it's an act that's done that is willful disregard for the value of human life. But here the defendant intended to kill which was express malice aforethought.
"So, implied malice is if he intentionally committed an act and the natural and probable consequences of the act were dangerous to human life, and at the time he acted he knew this, that what he did was dangerous for human life. And so if you find that and that he deliberately acted with the conscious disregard for human life when he [shoots] his victims multiple times, then basically the defendant is guilty of attempted murder on both fronts, with express malice and with implied. But, I submit to you that this is attempted first degree murder, premeditated, willful, deliberate attempted murder. And that's what you have to decide." (Italics added.)
The prosecutor never corrected her statements concerning implied malice and attempted murder, nor did trial counsel object.
The verdict forms for attempted murder, charged in counts 1 and 2, described "malice aforethought" as the mental state required for attempted murder.
"We the Jury, find the defendant ____ of ATTEMPTED MURDER in Violation of Penal Code section 664/187(a), A FELONY; was committed by JOHNNY ANGEL GARCIA, who did unlawfully, and with malice aforethought attempt to murder [G.J./L.A.], a human being."
Thus, while the jury was initially instructed that attempted murder required the intent to kill, the jury verdict form required only a finding of "malice aforethought."
On July 29, 2021, during deliberations, the jury foreperson requested a definition of" 'aforethought'" and" 'malice'" with respect to "count 6." Malice aforethought is not an element of criminal gang conspiracy, the crime charged in count 6. Rather, the jury instructions on count 6, "CRIMINAL GANG CONSPIRACY PC 182.5-ATTEMPTED MURDER OF L.A.," included the following elements:
"1. The defendant actively participated in a criminal street gang;
"2. When the defendant actively participated in the gang, he or she knew members of that gang engage in or have engaged in a pattern of criminal activity;
"3. Members of the criminal street gang have engaged in a pattern of criminal activity; and
"4. The defendant willfully promoted, furthered, assisted in OR benefited from the felonious conduct of members of the gang."
The record demonstrates that the jury was under the misimpression that malice aforethought was an element of the crime of gang conspiracy to commit attempted murder. Rather than clarifying the elements of this offense, the trial court responded by providing the jury with a portion of CALJIC No. 520, the instruction for first or second degree murder with malice aforethought. This instruction stated the following:
"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
"The defendant had express malice if (he/she) unlawfully intended to kill.
"The defendant had implied malice if:
"1. (He/She) intentionally (committed the act/[or] failed to act);
"2. The natural and probable consequences of the (act/[or] failure to act) were dangerous to human life;
"3. At the time (he/she) (acted/[or] failed to act), (he/she) knew (his/her) (act/[or] failure to act) was dangerous to human life;
"AND
"4. (He/She) deliberately (acted/[or] failed to act) with conscious disregard for (human/[or] fetal) life.
"Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time." [Italics in original.]
The following day, the jury announced that it had reached a verdict. It found Garcia guilty, in relevant part, of two counts of attempted murder, but not guilty of the premeditation allegations, and not guilty of gang conspiracy to commit murder.
B. Standard of Review
"' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole ... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]"' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.'" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)
We review de novo whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) The test is whether there is a" 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; People v. Houston (2012) 54 Cal.4th 1186, 1229; People v. Fiu (2008) 165 Cal.App.4th 360, 370.)
C. Analysis
1. Error
"Attempted murder requires express malice, i.e., intent to kill. Implied malice-a conscious disregard for life-suffices for murder but not attempted murder." (People v. Stone (2009) 46 Cal.4th 131, 139-140; accord, People v. Lee (1987) 43 Cal.3d 666, 670; People v. Swain (1996) 12 Cal.4th 593, 604-605.) Thus, to support a conviction for attempted murder, the prosecutor must prove the defendant acted with the specific intent to kill. (People v. Mumin (2023) 15 Cal.5th 176, 190.)
Here, CALCRIM No. 600 correctly stated the elements of attempted murder, including the fact that Garcia must have acted with the specific intent to kill to be convicted of this offense. However, the jury was also instructed with a modified version of CALCRIM No. 252, which stated that the intent required for attempted murder was "[t]he specific intent … to kill and with malice aforethought." The prosecutor and the trial court subsequently defined "malice aforethought" to include implied malice, an insufficient basis to support a conviction for attempted murder. (See People v. Mumin, supra, 15 Cal.5th at p. 190.)
During her comments in closing argument, the prosecutor advised the jury that it could find Garcia guilty of attempted murder based upon express or implied malice. Although the prosecutor asserted that Garcia had acted with express malice in the commission of the attempted murders, she also told the jury, "if you find that [Garcia] deliberately acted with the conscious disregard for human life when he [shot] his victims multiple times, then basically [he] is guilty of attempted murder on both fronts, with express malice and with implied."
When the jury later sought clarification on "aforethought" and "malice" in relation to "count 6," the trial court responded with a definition of malice aforethought from CALCRIM No. 520, the instruction on first and second degree murder. This instruction informed the jury that "malice aforethought" includes implied malice, thus reinforcing the jury's misimpression that malice aforethought, for purposes of attempted murder, includes implied malice.
The jury instructions on count 6 were tailored to the crime of gang conspiracy, which is distinct from the traditional crime of conspiracy. (People v. Lopez (2022) 82 Cal.App.5th 1, 25.) For gang conspiracy, the "act of assistance of promotion replaces the required prior agreement to commit a crime that is ordinarily at the heart of a traditional conspiracy." (People v. Johnson (2013) 57 Cal.4th 250, 262.) Thus, it is possible to commit the crime of gang conspiracy to commit attempted murder. (Id. at p. 264 ["there is no logical impossibility or absurdity in recognizing the crime of conspiracy to actively participate in a gang"].)
Finally, the verdict forms for the attempted murder charges stated that to find him guilty of attempted murder, the jury had to find that Garcia had acted with "malice aforethought." The verdict form did not reference specific intent or require a finding to that effect. And, nothing within the jury's verdict demonstrates that it necessarily found that Garcia had committed the attempted murders with the intent to kill. Indeed, because the jury found not true the premeditation allegations, we are unable to conclude, with confidence, that the jury convicted Garcia of attempted murder based upon express malice.
2. Prejudice
Instructional errors that fail to require the jury to find an element of a charged crime implicate the heightened test for prejudice articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). Because the instructional error here potentially allowed the jury to convict Garcia of attempted murder without finding that he had acted with the specific intent to kill, which is an element of attempted murder, Chapman applies.
Under Chapman, we "must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, … the error was harmless beyond a reasonable doubt." (People v. Aledamat (2019) 8 Cal.5th 1, 3.) The Attorney General concedes that the jury instruction on malice aforethought, the prosecutor's comments on implied malice in relation to the attempted murder charges, and the trial court's response to the jury's request for a definition of "malice" and "aforethought" during deliberations, was prejudicial. We agree.
We find the instant case to be closely analogous to People v. Beck (2005) 126 Cal.App.4th 518 (Beck), a case previously before this court. In Beck, the defendant was charged with attempted murder. The trial court initially instructed the jury that attempted murder requires the defendant to have committed the act while" 'harbor[ing] express malice aforethought, namely, a specific intent to kill unlawfully another human being.'" (Id. at p. 522.) However, immediately after instructing the jury on the elements of attempted murder, the court instructed the jury with CALJIC Nos. 8.10 and 8.11, the standard instructions on murder. These instructions informed the jury that "malice aforethought" includes express or implied malice. (Beck, at pp. 521-522.)
The use of CALJIC Nos. 8.10 and 8.11 "reintroduc[ed] the concept of implied malice and inform[ed] the jury that either express or implied malice would 'establish the mental state of malice aforethought.'" (Beck, supra, 126 Cal.App.4th at pp. 522-523.) Thereafter, the prosecutor explicitly argued that implied malice was sufficient to support a conviction for attempted murder, compounding the error. (Id. at pp. 523, 525.) During deliberations, the jury requested clarification as to the definition of "intent," suggesting confusion about the conflicting instructions on malice. (Id. at pp. 523-524.) The jury's verdict ultimately failed to dispel the possibility that it had convicted the defendant of attempted murder based upon implied malice. (Id. at p. 525.) Consequently, the error required reversal of Beck's conviction. (Ibid.)
Here, as in Beck, the conflicting jury instructions on malice, the prosecutor's comments in closing argument, and the trial court's response to the jury foreperson's request for a definition of malice aforethought, show that the jury was erroneously instructed that implied malice was sufficient to support a conviction for attempted murder. Further, just as in Beck, the record here fails to dispel the possibility that the jury relied upon a theory of implied malice to convict Garcia of attempted murder.
Based upon the foregoing, we will reverse Garcia's convictions for attempted murder on counts 1 and 2, as well as the enhancements attached to these counts. Garcia's assertion that the great bodily injury and firearm use enhancements associated with these counts should be reversed due to an unrelated instructional error is rendered moot, as is his claim that the court erred by failing to instruct the jury on imperfect self-defense. Consequently, we do not address these claims.
II. The Recent Enactment of AB 333 Requires Reversal of the Gang Enhancements
Garcia contends that AB 333's recent amendments to section 186.22 compels reversal of the gang enhancements applied to counts 1, 2, 4, and 5. The Attorney General concedes that AB 333 retroactively applies (see People v. Tran (2022) 13 Cal.5th 1169, 1206-1207), and that the gang enhancements must be vacated.
Prior to the enactment of AB 333, section 186.22 defined a" 'criminal street gang'" as "an ongoing, organized association or group of three or more persons ... having as one of its primary activities the commission of one or more [enumerated criminal acts], having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, former subd. (f); Stats. 2017, ch. 561, § 178.)
Although the prosecutor and the witnesses often referred to the Fresno Bulldogs and the McKenzie Street Bulldogs interchangeably, the prosecutor ultimately argued that Garcia and Flores had acted in association with and for the benefit of the overarching Fresno Bulldogs, rather than the McKenzie Street Bulldog subset.
Following our review of the record, we conclude that the evidence was sufficient to establish that the Fresno Bulldogs met the criteria of being a criminal street gang as defined by former section 186.22. Because there is no dispute on this point by the parties, our focus is solely on evaluating the adequacy of the evidence under amended section 186.22. For the reasons discussed below, we accept the parties' assertion that following the enactment of AB 333, the evidence is now insufficient to support the gang enhancements, and that the jury's findings on the enhancements must be stricken.
A. AB 333
AB 333 was signed into law at a regular session of the Legislature and therefore went into effect on January 1, 2022. (Cal. Const., art. IV, § 8; Gov. Code, § 9600, subd. (a).) AB 333 amended section 186.22 in multiple aspects.
" '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," Assembly Bill 333 requires that any such pattern have been "collectively engage[d] in" by members of the gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill 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, Assembly Bill 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. Rojas (2023) 15 Cal.5th 561, 566-567, citing People v. Tran, supra, 13 Cal.5th at p. 1206.)
B. The Evidence is Insufficient to Support the Gang Enhancements Under Amended Section 186.22
The parties agree that the evidence adduced at Garcia's trial was insufficient to meet amended section 186.22's definition of a criminal street gang in several aspects. First, the jury was not instructed that the benefit to the putative gang had to be more than reputational. The gang expert opined, and the prosecutor argued, that the attempted murders would benefit the perpetrator of the shooting reputationally, by demonstrating that Fresno Bulldog gang members will not back down to anybody. A reputational benefit is no longer a sufficient basis to conclude that a crime was committed "for the benefit of" (former § 186.22, subd. (b)(1)) a criminal street gang.
We acknowledge that the record contains ample evidence supporting the conclusion that in shooting G.J. and L.A., Garcia was targeting two perceived rival gang members. Section 186.22, subdivision (g) provides: "to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (Italics added.) (Ibid.) Thus, one of Garcia's ostensible motives for the shooting qualifies as a common benefit that is consistent with the amended statute. However, as discussed further below, the jury was not tasked with making a factual determination on this point.
Second, to establish a pattern of criminal gang activity by the Fresno Bulldogs, the prosecutor used the commission of the currently charged offense by Garcia as one of the qualifying predicate offenses. Although this was permitted at the time of Garcia's trial (see People v. Loeun (1997) 17 Cal.4th 1, 10), AB 333 precludes use of the currently charged offense as one of the qualifying predicates. (See § 186.22, subd. (e)(2).) The record does not show which offense or offenses upon which the jury relied in concluding that the prosecutor had demonstrated the Fresno Bulldogs had committed a pattern of criminal activity.
Although Garcia identifies other ways in which the evidence adduced at trial fails to comply with the heightened evidentiary requirements enacted by AB 333, we need not address his claims. We agree that the jury's findings on the gang enhancements must be stricken based upon the errors we have already identified.
Even though there is overwhelming evidence from which we could conclude the jury would likely have found the Fresno Bulldogs qualified as a criminal street gang under the amended definition of section 186.22, it would be improper for us to salvage the gang enhancements on this basis. "To rule that the existence of evidence in the record that would permit a jury to make a particular finding means that the jury need not actually be asked to make that finding would usurp the jury's role and violate [Garcia's] right to a jury trial on all the elements of the charged allegations." (People v. Lopez (2021)73 Cal.App.5th 327, 346, disapproved on other grounds by People v. Clark (2024) 15 Cal.5th 743.)
"When jury instructions are deficient for omitting an element of an offense, they implicate the defendant's federal constitutional rights, and we review for harmless error under the strict standard of Chapman v. California (1967) 386 U.S. 18." (People v. Sek (2022) 74 Cal.App.5th 657, 668.) This standard applies "where the new element to the offense is introduced through the retroactive application of a new law." (Ibid.) This is precisely what occurred here.
"Under the Chapman standard, reversal is required unless 'it appears beyond a reasonable doubt that the error did not contribute to th[e] jury's verdict.'" (People v. Sek, supra, 74 Cal.App.5th at p. 668, citing People v. Flood (1998) 18 Cal.4th 470, 504.) We are unable to conclude, with the level of certainty required by Chapman, that the errors identified did not contribute to the jury's verdict. Indeed, the record supports the conclusion that in reaching its verdict, the jury likely relied upon evidence now insufficient or otherwise expressly prohibited by amended section 186.22. We therefore accept the parties' assertion that the jury's true findings on the gang enhancements must be stricken.
III. The Admission of Evidence of the Circumstances Underlying Garcia's Prior Convictions
Garcia contends the trial court abused its discretion by admitting evidence of the circumstances underlying his prior criminal offenses. We conclude that the trial court erred by admitting some of this evidence, but find the error was harmless.
A. Background: Evidence of Garcia's Prior Convictions
Garcia was charged with two counts of criminal gang conspiracy (counts 6 & 7; § 182.5) and with respect to counts 1, 2, 4, 5, 6 and 7, the information further alleged that Garcia committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C), (b)(4), and (b)(5)).
During in limine proceedings, the prosecutor sought to introduce evidence of Garcia's 2002 convictions for carjacking, assault with a firearm, and robbery, as well as Garcia's 2013 convictions for weapon and narcotics possession. According to the prosecutor, this evidence was relevant to prove that Garcia was a Fresno Bulldog criminal street gang member (counts 6 & 7), and to prove that he committed the currently charged crimes for the benefit of, in association with, or under the direction of this gang.
Because Garcia had admitted the truth of his prior convictions for purposes of the special allegations, it was undisputed that he had suffered prior felony convictions. The trial court agreed however that the facts underlying Garcia's prior convictions were admissible to show that Garcia was an active gang member.
The court emphasized that evidence about the nature of Garcia's prior felony convictions would be inadmissible unless Garcia "opened the door." For example, the jury would not be permitted to hear that Garcia was convicted of carjacking, robbery, and assault with a deadly weapon arising from his 2002 arrest. The court explained that if Garcia "raise[d] any issue disputing the validity of him having felony convictions … it opens the door and [the prosecutor] can bring everything in."
Trial counsel objected, asserting that the nature of Garcia's prior convictions would be obvious based upon the witnesses' testimony. The trial court overruled counsel's objection and emphasized that the witnesses should not discuss the specific nature of the incidents other than the fact that they resulted in unspecified felony convictions.
1. Garcia's Prior Convictions
Through the testimony of percipient witnesses, the prosecutor adduced evidence of the following offenses:
i. December 2002
On December 10, 2002, Garcia and two other men stole a vehicle from a man at gunpoint. After detaining the suspect vehicle, a black Honda, officers found Garcia, who was driving, in possession of four individual packages of marijuana. Inside the Honda, officers also located a loaded shotgun in between the front passenger's legs, as well as a baseball bat and an eight-and-a-half inch bladed, sheathed knife on the passenger side front seat.
Officers also found one blue shoe at the scene of the carjacking and another in the driver's seat of the victim's vehicle, which had been abandoned in a nearby neighborhood. Garcia was convicted of three felonies following the incident.
ii. January 2013
On January 16, 2013, officers from the Fresno Police Department responded to reports of gunshots being fired. When they arrived on scene, officers observed Garcia talking on a cellular phone standing near the garage of a residence. Garcia walked quickly toward the front door of the residence and dropped an object into a bucket. He then fled, jumping a fence into a backyard.
Officers checked the bucket. Inside, they found a loaded .38-caliber Smith & Wesson revolver, a digital scale, car keys, and a bag of suspected crystal methamphetamine. Garcia was located hiding in the rafters of a garage two houses away.
Following his arrest, Garcia claimed that he had been kidnapped and held hostage by a Bulldog gang member. He stated that he had taken the gun and drugs from the perpetrator, who had fled when the police arrived. Garcia admitted that he was a member of the McKenzie Street Bulldogs but asserted that he did not "bang anymore." Following his arrest, he showed officers his tattoos, some of which represented his claimed membership to the Fresno Bulldogs, and others, the McKenzie Street Bulldogs. Garcia was convicted of two felonies from this incident.
2. Sergeant Ruelas's Testimony Concerning Garcia's Prior Convictions
During his testimony, the prosecutor asked Sergeant Ruelas about the relevancy of Garcia's prior convictions:
"[The Prosecutor]: And what did it mean, if anything, that he had both a firearm and a knife in both 2002 and in the current case?
"[Sergeant Ruelas]: That he was ready for - - that he was ready to commit any kind of violent act at that time, that he was armed not only with a firearm but also with a knife."
As to Garcia's 2013 offense, the prosecutor asked Sergeant Ruelas the relevancy about Garcia's disposal of a firearm and other contraband:
"[The Prosecutor]: And what, if anything, did that mean to you?
"[Sergeant Ruelas]: Once again, it shows that [Garcia] was not going to be connected to that firearm and he is going to avoid any kind of law enforcement contact or detection.
"[The Prosecutor]: And did it make a difference to you that the firearm was loaded?
"[Sergeant Ruelas]: Yes.
"[The Prosecutor]: How so?
"[Sergeant Ruelas]: That it was ready to be used.
"[The Prosecutor]: And did it make any difference to you that he also had drugs and a scale?
[¶…¶]
"[Sergeant Ruelas]: Yes, it did. Based on the possession of narcotics and scale which would lead me to - in my experience to be narcotics trafficking.
"[The Prosecutor]: And what if anything does that mean in terms of him having a loaded weapon at the same time?
"[Sergeant Ruelas]: It means he is armed, he is - - if he is assaulted or he needs to … rob him or he sees a rival gang member, he is ready to - - he is ready to go.
"[The Prosecutor]: Did you take into consideration the fact that when he was contacted by law enforcement he said that he was the victim?
[¶…¶]
"[Sergeant Ruelas]: Yes. Because he is trying to place the blame on somebody else or saying that he had the weapon for self-defense.
"[The Prosecutor]: And did you take into consideration the case at bar that he also said he was the victim?
"[Sergeant Ruelas]: Yes."
Trial counsel objected to the prosecutor's questions as leading, but not based on relevance or as an improper opinion by an expert. Counsel's objections were overruled. Sergeant Ruelas continued:
"[Sergeant Ruelas]: Yes. Because he is trying to place the blame on somebody else or saying that he had the weapon for self-defense."
Following this exchange, the prosecutor questioned Sergeant Ruelas about relevant gang evidence from the prior offenses.
3. Garcia's Testimony
On direct examination, Garcia confirmed that he had suffered convictions arising from the 2002 and 2013 incidents:
"[Trial Counsel]: [Y]ou have prior felony convictions; is that right?
"[Garcia]: Yes.
"[Trial Counsel]: Okay. You heard about this 2002 carjacking crime up in Fresno. Did you get three felonies out of that case?
"[Garcia]: Yes.
"[Trial Counsel]: You also heard testimony about the 2013 case up in Fresno relating to a loaded gun and some drugs. Did you get two felonies out of that case as well?
"[Garcia]: Yes."
Subsequently, outside of the presence of the jury, the prosecutor inquired about the admissibility of photographs of the drugs, scale, and gun found by police following Garcia's arrest in 2013. The trial court ruled the photographs would not be admissible but concluded that the prosecutor could cross-examine Garcia about his prior convictions, "including the nature of his convictions, because [Garcia] opened the door."
4. Cross-Examination of Garcia
During cross-examination, the prosecutor questioned Garcia about his prior convictions, beginning with his convictions from the armed carjacking in 2002. Over trial counsel's objection, the prosecutor asked Garcia the following:
"[The Prosecutor:] … Who is [CAB]?"
"[Garcia:] … The victim?"
[¶ ] … [¶ ]
"[The Prosecutor]: Yes. Yes. That's your victim. Now, you were with two other Fresno Bulldogs during that crime, correct?
"[Garcia]: Yes
"[The Prosecutor]: Okay. And one of them took a loaded shotgun and put it to [CAB]'s head with one hand and punched him in the face with the other, correct?
Trial counsel's objection was overruled. The prosecutor continued:
"[The Prosecutor]: [W]hile [CAB] was vacuuming his BMW at the car wash, correct?
"[Garcia]: I did not witness that.
"[The Prosecutor]: And you went up, and while that's happening, and you all are demanding his car and his money, then your other co-Defendant takes a baseball bat and he breaks the front of the windshield of that BMW? [¶ ] Do you remember that?
"[Garcia]: I wasn't part of that.
"[The Prosecutor]: And what was your part?
"[Garcia]: I was the driver. If you want to talk about that case, I was the driver. I didn't have no weapons. I didn't have no gun. I didn't have no bat. And because I refused to talk, I went to prison for it.
[¶ ] … [¶ ]
"[The Prosecutor]: Okay. And you actually in that three-some of Fresno Bulldogs, McKenzie Street Bulldogs, took the victim's shoes off; didn't you?
"[Garcia]: I didn't witness that.
"[The Prosecutor]: You didn't witness yourself take off his shoes?
"[Garcia]: I did not do that.
"[Garcia]: You did take off his shoes. And then one was located at the carwash and then one was located down the road where the three of you unsuccessfully tried to drive a stick shift down the road?
"[Garcia]: I had my own vehicle.
"[The Prosecutor]: Yes, you did have your own vehicle. What vehicle was that? It was a black Honda; wasn't it?
"[Garcia]: Yes.
[¶ ] … [¶ ]
"[The Prosecutor]: In your vehicle with you in the front seat there was a loaded shotgun, and there was also ammunition in it, and there was also a knife; wasn't there?
"[Garcia]: The knife was an antique knife that belonged to my grandparents. It was not a weapon.
"[The Prosecutor]: So you had a knife?
"[Garcia]: It had a design and it wasn't - it was from my grandparents, so
"[The Prosecutor:] A knife and a gun, right? "[Garcia]: Yes.
"[The Prosecutor:] Yes. Loaded firearm that was used in the commission of a carjacking and robbery
"[The Prosecutor:] [O]f somebody who was dressed as a Norteño; wasn't he?
"[Garcia]: Dressed as a Norteño?
"[The Prosecutor:] Was he dressed as a Norteño or Sureño? Was it the blue that was on his shoes that made him a target or was it the rest of his maroon clothing? Which one was it?"
Garcia denied that the group had targeted the victim based upon the victim's clothing. The prosecutor then turned to Garcia's 2013 offense:
"[The Prosecutor:] Okay. Now, let's talk about the 2013 case. Once again, you have a loaded firearm, don't you, with ammunition? Yes?
"[Garcia]: Yes.
"[The Prosecutor:] And you have drugs on you, methamphetamine, correct?
"[Garcia]: Yes.
"[The Prosecutor:] And a scale?
"[Garcia]: Yes.
"[The Prosecutor:] And in the 2002 case, along with the loaded weapon and the knife, you had marijuana for sale, correct?
"[Garcia]: …yes."
The prosecutor continued to question Garcia about the fact that he ran from the police during the 2013 incident, that he changed his appearance by taking off his shirt, and that he had claimed to be the victim of a kidnapping.
"[The Prosecutor]: Isn't it true that in this case you had a knife and a firearm the same as you had in the 2002 case?
"[Garcia]: No.
"[The Prosecutor:] And isn't it true that in this case before you came down and you spoke to law enforcement that you also changed your appearance by taking off your hat and leaving it in the room; isn't that right; like you did in the 2013 case?"
Garcia claimed that he took his hat off because he had been sweating after his morning workout.
5. The Trial Court's Instructions and the Prosecutor's Comments in Closing Argument
At the conclusion of the trial, the trial court instructed the jury that with the exception of the gang conspiracy charges, it could consider the gang evidence "only for the limited purpose of deciding whether the defendants acted with the intent, purpose and knowledge that are required to prove the gang related crimes, enhancements and special circumstance allegations or the defendant had a motive to commit the crime charged, or the defendant actually believed in the need to defend themselves." Additionally, the gang evidence could be considered for purposes of evaluating the credibility of a witness, but it could not be considered to conclude that "the defendant is a person of bad character or that they have a disposition to commit the crime."
During her comments in closing argument, the prosecutor discussed Garcia's prior convictions. She explained that following the shooting in the elevator, Garcia removed his hat "just like he had done in the past in the 2013 case when law enforcement was looking for him." And, just as in his prior case, Garcia also attempted to portray himself as the victim. According to the prosecutor, that is Garcia's modus operandi.
With respect to Garcia's armed carjacking in 2002, the prosecutor cited this as evidence of Garcia's gang affiliation, stating, "there are gang contacts that you heard about…. [Y]ou learned about a 2002 case that had happened in Fresno which was a carjacking case where there were three total Bulldogs, Johnny Garcia included, and Johnny Garcia in his car had a loaded shotgun and a knife. Because that's what he does when he commits gang crimes he has the shotgun or a loaded firearm and a knife. And he had drugs for sale."
The prosecutor continued to draw parallels between Garcia's 2013 offense and the currently charged offense, stating: "And then you also heard about the 2013 case where the defendant Johnny Garcia possessed a loaded firearm with drugs, because that's what he does. And he admitted to being a gang member in this case. So he had the loaded firearm with methamphetamine and he immediately claims that he is the victim. And in this case he took off his hat and his shirt to change his appearance when he was running from law enforcement. And he was a prohibited person in possession of a firearm."
B. Relevant Legal Principles
The trial court initially ruled that evidence of Garcia's 2002 and 2013 convictions was admissible to show that Garcia was an active member of the McKenzie Street Bulldog subset and the overarching Fresno Bulldog criminal street gang. Except as otherwise provided by statute, all relevant evidence is admissible. (Evid. Code, § 351.) Relevant evidence must be excluded "when its probative value is substantially outweighed by its prejudicial effect." (People v. Tran (2011) 51 Cal.4th 1040, 1047; see Evid. Code, § 352.)
Although the court ruled that the fact of Garcia's conviction was relevant to the charged offenses and was therefore admissible, it further concluded that the nature of his convictions was inadmissible unless Garcia "opened the door." Following Garcia's testimony on direct examination, the court concluded that Garcia had in fact opened the door and permitted the prosecutor to cross-examine Garcia about details of his prior convictions.
Under the California Constitution and Evidence Code section 788, the parties may use certain prior convictions for impeachment. (See Cal. Const., art. I, § 28, subd. (f)(4) ["Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding."]; Evid. Code, § 788 ["For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony," except in circumstances not relevant here].) Prior felony convictions admissible under article I, section 28, subdivision (f) of the California Constitution and Evidence Code section 788 must be crimes of moral turpitude," 'even if the immoral trait is one other than dishonesty.'" (People v. Hinton (2006) 37 Cal.4th 839, 888.)
When offered for impeachment, subject to Evidence Code section 352, there is no prohibition on admission of the facts underlying a prior conviction. (People v. Dalton (2019) 7 Cal.5th 166, 214 ["Evidence of circumstances underlying a conviction is admissible to impeach credibility if the proponent demonstrates that the evidence has 'any tendency in reason' to disprove credibility"]; See People v. Harris (2005) 37 Cal.4th, 310, 337 ["Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352"].)
In exercising its discretion to admit impeachment evidence, under Evidence Code section 352, a trial court should consider the following factors: "(1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial; and, (4) finally, what effect admission would have on the defendant's decision to testify." (People v. Castro (1985) 38 Cal.3d 301, 307.) These factors are not "rigid standards" that must be applied but are merely suggested factors to be considered. (Ibid.) "Because this discretion is broad, 'a reviewing court ordinarily will uphold the trial court's exercise of discretion.'" (People v. Anderson (2018) 5 Cal.5th 372, 407.)
C. Analysis
Evidence showing that Garcia was an active member of the McKenzie Street Bulldogs and the Fresno Bulldogs was probative to the gang conspiracy charges as well as the criminal street gang enhancements. At trial, Garcia admitted that he was a Fresno Bulldog gang member and that he claimed membership to the McKenzie Street Bulldog subset, but he denied actively participating in the gang. Garcia claimed that he made efforts to leave the gang lifestyle once he and Flores got engaged. However, his prior offenses, in conjunction with the currently charged crimes, support the conclusion that has been a longstanding and active member of the gang.
Garcia's status as an active gang member was also inextricably tied to the motive for the attempted murders. The prosecutor theorized that Garcia had attempted to kill two perceived rival gang members while Garcia was in enemy gang territory. Thus, the circumstances underlying Garcia's prior convictions were probative to the charged offenses.
The problem, in our view, was not the admission of facts underlying Garcia's prior convictions, but the basis upon which this evidence was admitted, the details which were admitted, and the prosecutor's discussion of how these prior offenses were relevant to the instant offense. The trial court ruled that except for evidence pertaining to the nature of Garcia's prior convictions, the circumstances of his prior convictions would be admissible as evidence relevant to the gang allegations and conspiracy charges. Indeed, some of the circumstances underlying the prior offenses did tend to establish Garcia has been an active gang member. In 2002, he committed the armed carjacking with two other Fresno Bulldogs. And, in 2013, he self-identified as a Fresno Bulldog and showed his gang affiliated tattoos to police.
However, the fact that Garcia was in possession of a weapon and narcotics during his 2013 offense, and that a knife was found in his vehicle during the 2002 carjacking offense bore little relevance to the fact that he was an active gang member during the instant shooting. On the other hand, given the fact that he was currently charged with possession of a firearm and illegal narcotics, and he also was alleged to have possessed a knife during the shooting, there was a significant risk of danger that the jury would hear details of Garcia's prior crimes and draw improper conclusions about Garcia's criminal disposition.
Moreover, despite her assertion that this evidence was not being introduced "for propensity," the prosecutor consistently invited the jury to draw inferences about the current crime based upon details of Garcia's prior crimes. For example, the prosecutor asked Sergeant Ruelas, "what did it mean, if anything, that [Garcia] had both a firearm and a knife both in 2002 and in the current case?" Sergeant Ruelas responded "That [Garcia] … was ready to commit any kind of violent act at that time, that he was armed not only with a firearm but also with a knife." In other words, the prosecutor invited the jury to conclude (1) that Garcia was in fact in possession of the knife and firearm in the currently charged offense, a fact which was disputed throughout his trial; and (2) that Garcia's presumed possession of weapons and his status as an active Fresno Bulldog demonstrated his willingness to do violence.
During her comments in closing argument, the prosecutor referenced Garcia's armed carjacking in 2002, stating, "[Y]ou learned about a 2002 case that had happened in Fresno which was a carjacking case where there were three total Bulldogs, Johnny Garcia included, and Johnny Garcia in his car had a loaded shotgun and a knife. Because that's what he does when he commits gang crimes he has the shotgun or a loaded firearm and a knife. And he had drugs for sale." (Italics added.) In other words, the prosecutor informed the jury it could infer that based upon Garcia's prior convictions, he has a propensity to carry weapons and drugs, thus likely having possessed a firearm and knife in the currently charged offense.
We acknowledge that evidence of Garcia's prior convictions was ruled admissible for purposes of impeachment, if he were to testify, and that Garcia elected to do so to mount a claim of self-defense. Trial counsel conceded that Garcia's prior convictions were for crimes of moral turpitude, a fact which the parties do not dispute on appeal.
To that end, Garcia's prior convictions were relevant to his credibility. "No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity." (People v. Beagle (1972) 6 Cal.3d 441, 453, abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176; see e.g., People v. Johnson (1991) 233 Cal.App.3d 425, 459 [no abuse of discretion where "trial court could properly conclude that admission of defendant's prior murder was necessary to inform the jury fully as to defendant's credibility"]; People v. Bedolla (2018) 28 Cal.App.5th 535, 556 [finding no abuse of discretion where the trial court admitted" 'sanitized' yet 'loaded' reference to a prior felony" where the defendant's "credibility was at issue because the nature of his defense was to deny any knowledge of or intent" to commit attempted first degree burglary].)
However, the trial court here permitted the prosecutor to examine Garcia extensively about his prior convictions, concluding that Garcia had "opened the door" during his testimony on direct examination. "Under the doctrine of 'opening the door,' one party may render otherwise inadmissible evidence admissible by introducing the topic selectively such as to leave a misleading impression." (See, e.g., People v. Kerley (2018) 23 Cal.App.5th 513, 553.) But that is not what occurred here.
When trial counsel questioned Garcia about the fact that he had suffered prior convictions, he acknowledged that he had. Garcia never attempted to deny or minimize the nature of his prior convictions-at least not until after the prosecutor already began cross-examining Garcia about them. In short, Garcia did not "open the door" to further inquiry about his prior convictions simply by acknowledging that they had occurred.
Upon the instant record, the circumstances of Garcia's prior conviction- specifically, the facts related to his possession of a knife in 2002 were more prejudicial than probative and should not have been admitted, at least on the evidentiary basis upon which the trial court ruled this evidence admissible. The fact that Garcia was in possession of a knife after he was arrested for carjacking in 2002 was not shown to have any bearing upon his credibility. On the other hand, this evidence might allow the jury to draw improper inferences about Garcia's propensity to carry knives.
Evidence of Garcia's possession of a firearm and drugs in 2013, is however, a closer issue. Garcia claimed he took a gun and drugs from a Fresno Bulldog that had taken him hostage, an explanation which tends to demonstrate his lack of veracity for the truth. This was a specific instance of dishonesty that could be used to attack his credibility.
We acknowledge that in 2013, Garcia was convicted of identical offenses as two of the crimes with which he was currently charged, including possession of a firearm by a prohibited person and possession of drugs and a firearm. However, similarity "is a factor for the court to consider when balancing probative value against prejudice, it is not dispositive." (People v. Clark (2011) 52 Cal.4th 856, 932.) Moreover, although Garcia's prior convictions were remote in time, the record showed that he has not lead a "legally blameless life." (People v. Beagle, supra, 6 Cal.3d at p. 453.) Although the jury did not hear evidence about Garcia's parole status, he was on parole during the commission of his 2013 offense. On balance, the record does not show error from the trial court's admission of the circumstances underlying Garcia's 2013 offense.
Assuming however that some of the details underlying Garcia's prior convictions should have been excluded under Evidence Code section 352, we are not persuaded that Garcia would have received a more favorable outcome at trial.
"We review evidentiary errors for prejudice by determining whether it was reasonably probable that a jury would have returned a more favorable verdict for defendant had the court not admitted the evidence." (People v. Felix (2019) 41 Cal.App.5th 177, 187, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test." (People v. Partida (2005) 37 Cal.4th 428, 439.) Garcia has not demonstrated that the evidentiary error here violated his constitutional rights. Watson therefore applies.
Compared to the charged offense of two attempted murders, the details of his prior crimes were far less inflammatory. While Garcia's armed carjacking in 2002 involved the threat of violence, there was no evidence that the victim was harmed during the commission of that offense. The instant crime offense however involved the shooting of two unarmed men, in a public space, during the daytime. This was a brazen offense that involved more than just the threat of violence.
We further observe that there was strong evidence showing that Garcia was in unlawful possession of a firearm and ammunition during the currently charged incident. Although Garcia claimed that he was attacked by G.J. and L.A., who were armed with a firearm and a knife, Garcia's version of events was contradicted by the evidence presented at trial.
Garcia claimed that when he entered the elevator, he was not paying attention to anyone around him, and that L.A. and G.J. entered the elevator unexpectedly. He claimed that he did not notice what the victims were wearing. However, the hotel's surveillance video shows Garcia look to the right towards the hotel's entrance seconds before G.J. and L.A. entered the hotel. One of the men was wearing red shoes and a red hat, and the other was wearing a red shirt underneath a black sweater. The jury could infer that Garcia, an active gang member who was in enemy gang territory, saw the victims walk into the hotel wearing clothing affiliated with a rival gang.
According to Garcia, when he attempted to jerk the gun away from G.J., the gun discharged. Garcia was emphatic that the gun discharged "[o]nly one time. One shot went off in that elevator with my hand on it, only one shot." However, at least two shots were fired during the confrontation, resulting in G.J. being shot in the shoulder and L.A. being shot in the abdomen. Thus, Garcia's version of events did not comport with the evidence.
Further, despite being attacked by two armed assailants, Garcia emerged from the elevator uninjured. And, immediately after the shooting, he chased G.J. out of the hotel to the south parking lot. Based upon our review of the surveillance video and still shots, it appears that Garcia had a heavy object swinging in his pocket as he ran. This was presumably the firearm.
Although Garcia denied sending Flores a selfie as a signal for backup, she met him in the elevator just minutes after the shooting. And, six minutes after the shooting, the hotel's surveillance video depicted Flores walking to her vehicle with her purse and a plastic bag. Officers found a nine-millimeter shell casing along the pathway she took to reach her vehicle, and a gray sweater in her vehicle. The sweater was consistent with the sweater Garcia was carrying moments before the shooting.
This evidence strongly suggests that Flores disposed of the firearm used in the shooting, which was never recovered. The only ostensible motive for Garcia to conceal the firearm and for Flores to dispose of it would be to protect Garcia, if he were the perpetrator of the shooting.
Finally, when Garcia was arrested, officers found two grams of heroin in his wallet, which was in his pants. Thus, the fact that he was in possession of a controlled substance was virtually undisputed.
We conclude that the jury would not have returned a more favorable verdict for Garcia had the challenged evidence been excluded. (People v. Felix, supra, 41 Cal.App.5th at p. 187, citing Watson, supra, 46 Cal.2d at p. 836.) Considering the strong evidence against him, the record supports the conclusion that Garcia would still have been convicted of possession of a controlled substance with a firearm, being a felon in possession of a firearm, and being a felon in possession of ammunition.
IV. Evidence of Garcia's Jail Tattoos, Jail Video Visit, and Jail Phone Calls
Garcia challenges the trial court's admission of evidence pertaining to his gang affiliated tattoos, his recorded jail video visit, and jail phone calls. We conclude that Garcia's claim is without merit.
A. Background
1. Garcia's Tattoos
Garcia has numerous tattoos which were depicted in photographs taken following his arrest in the instant case. Following his arrest in 2013, Garcia admitted to officers that some of his tattoos represented his gang affiliation.
Garcia's gang tattoos include: the letters "EK" on the right side of his chest, which stands for "everybody killer," a male resembling a dead Norteño on his back, "KC" and "McKenzie" on his abdomen, the Fresno State Bulldog mascot with a spiked collar around its neck on his chest, the letters "BDS" on his neck which stands for "Bulldogs," "MSD" for the "McKenzie Street Bulldogs" on his left forearm, bulldog faces on his left and right arms, a dog collar around his neck, and "Efe" on his hands. Garcia also has a tattoo of the Fresno State Bulldog mascot holding a firearm while bursting out of a Huelga bird flag with multiple bullet holes in the flag. According to Sergeant Ruelas, this tattoo is meant to show disrespect to the Norteños.
2. Jail Phone Calls
On November 22, 2020, Garcia called Flores while he was in jail. During the recorded phone call, Garcia stated," 'I wonder if those fools were active?'" Detective Cynthia Vasquez with the Tulare Police Department opined that Garcia was inquiring as to whether L.A. and G.J. were active gang members.
During jail calls Garcia made to Flores on January 22, 2021, and on April 22, 2021, he discussed the selfie he texted to her just prior to the shooting. During January 22d phone call, Garcia admitted, "I sent you that so you'll fuckin come down." Flores interrupted him, telling him to "stop."
During the subsequent April 22, 2021 phone call, which occurred after Flores's preliminary hearing, Flores told Garcia that the charges against her were based upon the selfie signal. They discussed the purpose of the selfie, Garcia's intent in sending it, and whether Flores had received it. During the call, Flores alleged that their prior conversation during the January 22d phone call had been "mistranscribed."
3. Jail Video Visit
On March 16, 2021, Flores and her 15-year-old son had a jail video visit with Garcia. During the call, Flores held up a hat her son was wearing. The hat was a black Kansas City Chief's hat with "KC" inscribed on the front. Garcia nodded approvingly, exclaiming, "yeah, yeah!" Kansas City clothing is commonly worn by McKenzie Street Bulldogs.
The prosecutor also played several jail phone calls between Garcia, Flores, and a third male. According to Sergeant Ruelas, Garcia made statements during the call expressing a desire to bring his brother back into the gang. During the phone call, Garcia repeatedly addressed the other male as "dog." Sergeant Ruelas explained Garcia's repeated use of the word "dog" meant that he was likely addressing another Bulldog gang member.
B. Relevant Legal Principles
Evidence Code section 210 defines relevant evidence as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Here, evidence of Garcia's gang tattoos, his jail phone calls, and his jail video visits, were directly relevant to the charged offenses.
This evidence tended to show that Garcia is an active member of the Fresno Bulldogs and the McKenzie Street Bulldogs. Evidence of Garcia's active membership in both the McKenzie Street Bulldogs and the broader Fresno Bulldog street gang not only clarified his motive for the shooting, but also supported the gang conspiracy charges and the gang enhancement allegations. Whether Garcia sent Flores a selfie text message, for example, was relevant to whether Garcia signaled Flores that he needed backup. Although Garcia denied sending Flores a selfie as a signal, he admitted as much during a jail phone call with Flores on January 22, 2021.
The jail video call wherein Garcia nodded approvingly at a "KC" hat his stepson was wearing was also relevant to show that Garcia remained an active gang member, as was the fact that Garcia was discussing bringing his brother back into the gang.
Although Garcia admitted he is a member of the McKenzie Street Bulldogs, he consistently denied actively participating in the gang, insisting that he had left that lifestyle behind once he and Flores got engaged. Even if Garcia had admitted he was an active gang member, the prosecutor was not required to rely upon his representation. The prosecutor retained the burden of establishing each element of the charged offenses beyond a reasonable doubt, and had the" 'right to introduce all relevant and admissible evidence toward that end.'" (People v. Chhoun (2021) 11 Cal.5th 1, 29; People v. Salcido (2008) 44 Cal.4th 93, 147 ["the prosecution is not required to ... '... present its case in the sanitized fashion suggested by the defense' "].)
Moreover, the record shows that the trial court considered all relevant factors under Evidence Code section 352. "Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable"' "risk to the fairness of the proceedings or the reliability of the outcome." '" (People v. Riggs (2008) 44 Cal.4th 248, 290.) No such intolerable risk was present here.
There is no doubt that gang evidence tends to be inflammatory, but that is not enough to infer that it must be excluded."' "In applying section 352, 'prejudicial' is not synonymous with 'damaging.'"' [Citation.] '" '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.'"' [Citation.] The 'prejudice' which section 352 seeks to avoid is that which '" 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'" '" (People v. Cage (2015) 62 Cal.4th 256, 275.) The gang evidence challenged here was directly relevant to the charged offenses and was not likely to evoke an emotional bias.
We acknowledge however that the prosecutor arguably placed too much emphasis on the relevance of Garcia's gang affiliated tattoos in her closing argument, asserting that they could be construed as evidence of his willingness to do violence and premeditation and deliberation. For example, the prosecutor asserted that Garcia displayed his gang tattoos publicly because he was proud of them, "[a]nd that is part of the premeditation and deliberation that goes into him being a gang member who hates the [Norteños] so much that he has it written all over his back." She made additional comments about Garcia's tattoo of a Fresno Bulldog, holding a Glock semiautomatic pistol, ripping through the Huelga bird flag, stating that it was evidence of Garcia's readiness to do violence against Norteños. The prosecutor further opined that one of the shooting victims had a Mongolian haircut which resembled Garcia's tattoo of a deceased Norteño.
Nevertheless, because the jury acquitted Garcia of the gang conspiracy and premeditation allegations, it appears that it did not find Garcia's tattoos or the prosecutor's remarks on their relevance convincing. Based upon the foregoing, we conclude that evidence of Garcia's gang tattoos, his jail phone calls, and video visits was probative of the charged offenses and that the trial court properly balanced all relevant considerations under Evidence Code section 352.
V. The Admission of the Details Underlying the Predicate Offenses
Garcia contends that the trial court abused its discretion by failing to limit the number of qualifying predicate offenses the prosecutor was allowed to present to establish the existence of the Fresno Bulldogs. He further contends the details underlying the predicate offenses were prejudicial. We disagree.
Ultimately, the prosecutor adduced evidence of two prior offenses and relied upon the currently charged crime as evidence of a third qualifying predicate. The details of these prior offenses were required to support the gang expert's opinion that the Fresno Bulldogs were a criminal street gang within the meaning of section 186.22. Contrary to Garcia's assertion, the details of these offenses did not tend to evoke an emotional bias or otherwise inflame the jury against him.
A. Background
Prior to the commencement of Garcia's trial, the prosecutor sought to introduce evidence of six qualifying predicate offenses. Trial counsel objected, arguing that the number of predicates would require an undue consumption of time on matters of little relevance to the charged offenses. The court overruled counsel's objection, declining to limit the number of predicate offenses the prosecutor sought to present. Counsel lodged a continuing objection to the admission of this evidence.
To prove that the Fresno Bulldogs have committed a "pattern of criminal gang activity" (§ 186.22, subd. (a)), the prosecutor ultimately relied upon the currently charged offenses and two prior crimes by Fresno Bulldog, Lewis Street Bulldog, or McKenzie Street Bulldog gang members. Officers with personal knowledge of these incidents offered testimony establishing the following:
On December 3, 2017, Louie Valdez, Destiny Rico, her husband, Fernando Cancino, and Victor C., traveled from Fresno to a home in Tulare County and stole firearms from a residence for purposes of firearms trafficking. Rico is a self-admitted Fresno Bulldog gang member. In 2014, Rico, also known by the gang moniker of "Baby [D]reamer," beat and robbed another girl of her clothing while yelling out "Bulldogs."
Valdez claimed membership to the Lewis Street Bulldogs. Certified copies of Valdez's and Destiny Rico's convictions show they plead guilty of first degree burglary with a criminal street gang enhancement.
On August 17, 2018, following a traffic stop, Martin Contreras was found to be in possession of a concealed firearm. Officers also found methamphetamine on his person and in his vehicle. Contreras had multiple tattoos on his body and his face associated with the Fresno Bulldogs in general, as well as tattoos specific to the McKenzie Street Bulldogs subset, including "624" and "MSD." The grip of his firearm handle was red, a color commonly associated with the McKenzie Street Bulldogs.
Detective Christopher Martinez, who was assigned to MAGEC at the time of the traffic stop, was tasked with identifying members of the McKenzie Street Bulldogs. He opined that Contreras was a McKenzie Street Bulldog.
Contreras ultimately plead no contest to carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(3)). He also admitted the charged offense of being an active participant in a criminal street gang (§ 25400, subd. (c)(3)). A certified copy of Contreras's conviction was admitted into evidence.
The prosecutor asked Sergeant Ruelas, based upon his training and experience, why a McKenzie Street Bulldog might carry a firearm in their vehicle. Sergeant Ruelas opined that the firearm could be used for protection from rival gang members or to commit crimes such as drive-by shootings.
B. Analysis
Details of the predicate offenses were required to establish the existence of the Bulldog criminal street gang. Although the prosecutor originally sought to adduce details of six qualifying predicates, the prosecutor ultimately offered evidence of only two offenses, relying on the currently charged offense as evidence of a third predicate offense. The details of these crimes were required to support the gang expert's opinion that the subjects of these offenses were gang members. (See former § 186.22, subd. (f) [for a group to fall within the statutory definition of a "criminal street gang" the group's members must "engage in or have engaged in a pattern of criminal gang activity" (italics added)].)
Contrary to Garcia's assertions, the facts underlying these offenses were necessary to support Sergeant Ruelas's opinion that the group's members had engaged in criminal activity. An expert's opinion without a factual foundation is useless to a trier of fact. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923 ["Like a house built on sand, the expert's opinion is no better than the facts on which it is based"].)
The fact that some extraneous information was admitted into evidence is not, by itself, sufficient to infer that Garcia was prejudiced. There is no evidence that the jury interpreted evidence relevant to the predicate offenses as evidence of Garcia's criminal disposition. Indeed, the jury was instructed that the gang evidence could not be considered for such a purpose. (See CALCRIM No. 1403 ["You may not conclude from this evidence that the defendant is a person of bad character or that (he/she) has a disposition to commit crime.) In the absence of evidence to the contrary, we presume the jury followed the trial court's instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852 ["[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions"].)
VI. The Gang Expert's Testimony
Garcia challenges Sergeant Ruelas's testimony on multiple grounds. First, he contends that the gang expert opined that Garcia's guilt of the charged offenses could be inferred from his commission of the prior offenses. Second, he asserts that the gang expert offered an improper opinion as to Garcia's guilt on the charged crimes. Garcia specifically contends that rather than responding to a hypothetical question, Sergeant Ruelas opined that Garcia committed the charged offenses, that Garcia's crimes benefited the Fresno Bulldogs, and that Garcia had acted with the intent to kill. Finally, Garcia alleges that the gang expert improperly testified that all Bulldog gang members have a propensity for violence, are "potential killers" who will attack on sight, and that they have no remorse for their actions.
The record shows that trial counsel objected to some of this testimony below, but not on the grounds Garcia now asserts on appeal. Further, Garcia's assertion that any further objections would have been "futile" is unsupported by the record. His contentions are therefore forfeited. With respect to Garcia's alternative claim of ineffective assistance of counsel, we conclude that the record does not affirmatively demonstrate prejudice, and therefore, reject Garcia's claim on this basis.
A. Forfeiture/Ineffective Assistance of Counsel
"[N]umerous decisions by [our Supreme Court] have established the general rule that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal." (People v. Dykes (2009) 46 Cal.4th 731, 756; accord, People v. Lewis (2001) 26 Cal.4th 334, 357; Evid. Code, § 353 [relief based on the erroneous admission of evidence is barred unless the objecting party stated an objection so as "to make clear the specific ground of the objection" and the appellate court agrees that the evidence should have been excluded "on the ground stated"].) A party "may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.)
Here, while the record shows that trial counsel lodged some objections to the gang expert's testimony Garcia now challenges on appeal, the basis of counsel's objections were either not specified, or were made on grounds of error distinct from those now asserted on appeal. Further, although Garcia submits that further objections would have been futile, the record does not support his conclusion. We therefore turn to Garcia's assertion that trial counsel was incompetent for failing to preserve these issues.
To prevail on a claim of ineffective assistance of counsel, an appellant is required to make a two-part showing. First, they must establish that "counsel's representation fell below an objective standard of reasonableness under prevailing professional norms." (People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Second, they must show that trial counsel's deficient performance was prejudicial. (Ibid.) Prejudice must be affirmatively shown; the record must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694.)
B. Relevant 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; 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." (People v. Torres, 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 embrace 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." (People v. 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 (see 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, our Supreme Court held that an" '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.) The Vang court explained however 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.)
Further, "[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." (People v. 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, 52 Cal.4th at p. 1048.)
C. Analysis
1. Testimony Regarding the Relevance of Garcia's Prior Crimes
According to Garcia, Sergeant Ruelas rendered improper opinions as to the relevance of Garcia's prior convictions. We have addressed Garcia's claim in part III, ante. We therefore need not repeat our analysis.
2. Sergeant Ruelas's Opinion Pertaining to Garcia's Guilt
Garcia contends that the gang expert offered an improper opinion as to Garcia's guilt. He directs this court to the following exchange, which he contends, should have been phrased in terms of a hypothetical question:
"[The Prosecutor]: [C]an you tell me how this case falls within a pattern of criminal street gang activity as a predicate?
"[Sergeant Ruelas]: It's an assault on two other rival gang members with a firearm. Basically it was from what I reviewed in the case is that after the two rival gang members, the Norteños, attempted to get into the elevator with the Bulldog gang member, shots were fired. The Norteños attempt to run away from being assaulted and the Bulldog gang member continued to chase them even after they had been assaulted and shot.
"[The Prosecutor]: And in your expert opinion are those attempted murders?
"[Sergeant Ruelas]: Yes.
"[The Prosecutor]: And why is that?
"[Sergeant Ruelas]: Because after they had been shot, they are trying to run away from the person assaulting them, and the suspect continues to chase them down and shooting at them.
"[The Prosecutor]: And so how does that fit within a pattern of criminal activity of the gang?
"[Sergeant Ruelas]: It's assault with a firearm. It's basically a propensity for violence. Going back to it's on sight, rival gang members attack, shot, they are trying to get away, and he is still chasing them down.
"[The Prosecutor:] And what about the female getting rid of the gun after?
"[Sergeant Ruelas]: That -- once again that shows a level of criminal sophistication. That's going to be any evidence linking him to that crime. [Italics added.]
Sergeant Ruelas further testified that Garcia was armed with a knife and firearm during the commission of the charged offense:
"[The Prosecutor:] And with respect to Johnny Garcia, did you take into consideration in forming your expert opinion that he had heroin on him as well as the firearm and the knife?
"[Sergeant Ruelas]: Yes.
"[The Prosecutor:] And what, if anything, does that mean to you?
"[Sergeant Ruelas]: That he was armed during the commission of the crime. Also that he had narcotics on him. And once again it leads to narcotics, either heroin, methamphetamine or any kind of illegal contraband is going to not let you make the best decisions.
"[The Prosecutor:] Lower your inhibitions?
"[Sergeant Ruelas]: Correct.
"[The Prosecutor:] And is someone though making their own decision at that time?
"[Sergeant Ruelas]: Yes. It's their choice."
The record does not show that trial counsel interposed a timely and specific objection to the gang expert's testimony. However, even if the issue had been preserved, the gang expert's testimony was not prejudicial. Sergeant Ruelas's testimony was of no assistance to the jury, as it merely informed the jury of factual conclusions drawn by the expert. However, since Sergeant Ruelas was not a percipient witness to the charged crimes or the prior crimes, "[t]he jury was as competent as the expert to weigh the evidence and determine what the facts were." (Vang, supra, 52 Cal.4th at p. 1048.)
a. Sergeant Ruelas's Opinion that the Crimes Were Committed in Association with the Bulldogs
Garcia further contends that Sergeant Ruelas impermissibly testified that the shootings were committed in association with the Fresno Bulldog criminal street gang. He directs this court to the following exchange:
"[The Prosecutor:] Was Johnny Garcia acting in association with ... the Bulldog criminal street gang on the date in question?
"[Sergeant Ruelas]: In my opinion, yes."
Once again, trial counsel failed to lodge a timely and specific objection to the testimony he now challenges on appeal. While the issue is forfeited, we nonetheless agree with Garcia's assertion that this testimony was improper.
An" '[e]xpert['s] opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the Penal Code section 186.22, subdivision (b)(1), gang enhancement." (Vang, supra, 52 Cal.4th at p. 1048, citing People v. Albillar (2010) 51 Cal.4th 47, 63.) However, such an opinion should be offered in response to hypothetical questions rooted in facts shown by the evidence, rather than about whether the defendant himself committed a particular crime for a gang purpose. (See Vang, at p. 1049.) This principle necessarily applies to an expert's opinion that a crime was committed in association with a criminal street gang.
Although we accept Garcia's claim of error, as discussed in parts I and II, ante, Garcia's convictions for attempted murder and the gang enhancements must be reversed for unrelated errors. Garcia has not shown that the gang expert's improper testimony was prejudicial to his remaining convictions. (People v. Mitchell (2022) 83 Cal.App.5th 1051, 1060 ["[t]o prevail on an ineffective assistance of counsel claim, 'the petitioner must carry his burden of proving prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel' "].)
We further observe that Sergeant Ruelas's erroneous statements were brief, and that the evidence supporting Garcia's guilt on the remaining offenses was strong. We find no prejudice upon this record.
b. Ruelas's Opinion as to Garcia's Intent
Garcia further contends that the gang expert offered an improper opinion as to Garcia's intent during the shooting:
"[The Prosecutor]: And in that hypothetical that I gave you, what would the male Fresno Bulldog's intent have been when he shot those two rivals on sight in the elevator?
"[Sergeant Ruelas]: His intent in my opinion was to kill the rival gang members or inflict as much damage as he could.
"[The Prosecutor]: And as much damage as he could would equal killing them or murder, correct?"
The record does not disclose a timely and specific objection by trial counsel. Consequently, Garcia contends that trial counsel rendered ineffective assistance of counsel by failing to object to this testimony.
A gang expert is not permitted to offer an opinion on the defendant's guilt or innocence, because such opinions "are of no assistance to the trier of fact." (Vang, supra, 52 Cal.4th at p. 1048.) However, Sergeant Ruelas here did not offer an opinion on Garcia's guilt. Rather, his opinion as to "the shooter's" intent was in response to a hypothetical which mirrored the facts of the instant case. This was permissible.
" 'Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.'" (Vang, supra, 52 Cal.4th at p. 1048, citing Evid. Code, § 805.) The jury is still tasked with deciding (1) whether to credit the expert's opinion at all; and (2) "the significance of any difference between the actual facts and the facts stated in the questions." (Vang, at p. 1050.) Thus, Garcia's claim of error is without merit.
c. Ruelas's Opinion on the Bulldog Gang Members' Propensity for Violence
Throughout his testimony, Sergeant Ruelas opined that Fresno Bulldog gang members have a "propensity for violence." He explained that when members of the gang feel that they have been disrespected, "they will attack." Trial counsel made an unspecified objection to Sergeant Ruelas's testimony, which was overruled. Sergeant Ruelas continued, reiterating that the Bulldogs are "very violent. I believe that they will attack at any time at any given moment's notice because that's the way they were brought up."
Sergeant Ruelas added that based upon his training and experience, Bulldog gang members carry weapons, including, "[e]verything from machetes, knives, to firearms." In his experience, a Bulldog gang member will engage a Norteño gang member on sight. In response to a hypothetical posed by the prosecutor, Sergeant Ruelas stated that if a Bulldog gang member was in an elevator and two men dressed as Norteños got into the elevator, the Bulldog gang member would attack first. The gangs are fierce rivals.
In arguing that the gang expert's opinion was improper character evidence, Garcia fails to direct this court to any legal authority to support his claim. The failure to present arguments with citation to legal authority can result in forfeiture. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)
We nonetheless acknowledge that Sergeant Ruelas's testimony was problematic. On one hand, evidence showing that Garcia was an active member of the Fresno Bulldogs and that the victims appeared to be members of a rival criminal street gang, was probative of Garcia's motive and intent. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 193-194 [evidence was highly probative of motive and identity, where the specific reason for the charged offense, a shooting, was a gang rivalry].)
On the other hand, Sergeant Ruelas was essentially opining that because the Bulldogs have a reputation for violence, a hypothetical gang member in Garcia's position would have attacked first. Sergeant Ruelas ostensibly based his opinion upon his experience, but he did not provide any specific examples to support his opinion. Taken to its logical conclusion, any shooting by a Bulldog gang member of a rival gang member would be the result of express malice, regardless of the facts or circumstances. This is a propensity argument which carries with it an obvious risk of prejudice. (See People v. Carter (2003) 30 Cal.4th 1166, 1194 [although relevant to prove motive or identity, there is always a risk the jury will use gang evidence to improperly infer the defendant has a criminal disposition and is therefore guilty].)
Nonetheless, Garcia cannot show that a different outcome would have resulted had trial counsel objected to Sergeant Ruelas's testimony. Under Watson, supra, 46 Cal.2d at p. 836, 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; People v. Lapenias (2021) 67 Cal.App.5th 162, 176-177 [" 'The erroneous admission of expert testimony only warrants reversal if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"' "].) "In assessing prejudice, we consider both the magnitude of the error and the closeness of the case." (People v. Vasquez, at p. 1041.)
Garcia's only remaining convictions are for possession of a controlled substance with a firearm, being a felon in possession of a firearm, and felon in possession of ammunition. With respect to these crimes, the instant case was not particularly close. Garcia's status as a felon was undisputed since he admitted his prior convictions, and he was found with heroin on his person following his arrest. Although the jury could disagree as to whether Garcia had acted in self-defense, there was overwhelming evidence that he was in possession of the firearm used in the shooting. We therefore conclude that Garcia has failed to demonstrate that Sergeant Ruelas's testimony prejudiced his remaining convictions.
VII. Prosecutorial Misconduct Claims
Garcia further contends the prosecutor committed multiple instances of misconduct during her comments in closing argument. According to Garcia, the prosecutor: (1) improperly advised the jury that implied malice could be used to support a conviction for attempted murder; (2) erroneously defined "great bodily injury" as "greater than minor injury," (3) misstated the evidence and argued facts not in evidence; and (4) insinuated that trial counsel had coached a witness and told the jury it could consider counsel's objections as evidence that Garcia had conspired with Flores.
Garcia's claim of instructional error as to implied malice and the definition of great bodily injury is moot considering our conclusions in part I, ante, of this opinion. We do not address his first and second claims as a result. We conclude that Garcia's remaining claims of error do not warrant reversal of his convictions. Our reasoning is set forth fully below.
A. Relevant Legal Principles
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).
To preserve a claim of prosecutorial misconduct or error, a defendant must timely object and request a curative admonition unless an admonition would not have cured the harm caused by the misconduct or error. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp (1999) 20 Cal.4th 826, 858.) "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
B. Analysis
1. Misstating the Evidence and Arguing Facts Not in Evidence
Garcia contends that the prosecutor misstated multiple facts in evidence. We address his assertions, in turn, below.
a. The Ballistics Evidence and Testimony
During closing argument, the prosecutor stated, "there are pictures from [Flores's] cell phone which show her wedding rings as well as ammunition. And Jessica Winn testified that those are different kinds of ammunition and that the ammunition that was in the gun was also different kinds of 38-caliber nine-millimeter ammunition, and that the ammunition in that photograph [was] consistent with the ammunition that was used at the scene on November 19th of 2020." The trial court sustained trial counsel's objection to the prosecutor's comments as a misstatement of the evidence and ordered the prosecutor's comment stricken.
The prosecutor continued, adding: "basically all of the forensics match. The shell casing and the projectile were fired from the same gun and they are consistent with the shell casing that was found." The court sustained trial counsel's objection to this statement as well. However, counsel did not seek a curative admonition from the court.
Based upon Winn's testimony, we agree that the prosecutor mischaracterized the evidence. Winn testified that the ammunition depicted in the photograph of Flores and Garcia's wedding rings depicted different brands of ammunition, but the bullets were all the same caliber, a nine-millimeter. The prosecutor should have explained that the caliber of the bullets depicted in the photograph and the bullets recovered from the shooting were consistent.
Moreover, the prosecutor's assertion that the shell casings and projectile were fired from the same gun was incorrect. Winn testified that the items recovered from the shooting were most likely fired from the same firearm, but she could not make a conclusive determination without the firearm itself, which was never recovered.
Although we agree with Garcia that the prosecutor misrepresented Winn's conclusions, we do not find the error prejudicial. Nothing in the record suggests that the jury failed to heed the court's instruction to disregard the prosecutor's challenged statements following the court's admonition. "We presume that the jury heeded the admonition and any error was cured." (People v. Wash (1993) 6 Cal.4th 215, 263.)
Further, the jury was advised that the arguments of counsel are not evidence. We presume that the jury heeded this admonition as well. (See People v. Osband (1996) 13 Cal.4th 622, 717, citing People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 ["[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade"].)
b. The Fingerprint on the Knife
Next, Garcia contends that the prosecutor made inaccurate statements when discussing the knife found in the parking lot of the hotel:
"[The Prosecutor]: [W]e also learned from the Department of Justice that the knife didn't have any prints on it, which is consistent with having rubbed against Garcia's pocket. And it's inconsistent with having belonged to anyone else. Because there is no blood. There is no identifiable DNA. And there are no fingerprints. And if someone had a knife in their hand, then there should be fingerprints. But not having fingerprints on a knife is consistent with it falling out of a pocket."
The court sustained counsel's objection to the prosecutor's comments. However, a curative admonition was neither requested nor provided.
Matthew Pombo, a latent print analyst with the Department of Justice, examined the knife for latent fingerprints. Pombo testified that he looked for fingerprints on the knife using a super glue technique. After applying Rhomadine 6G, a florescent dye stain, on top of super glue, and then using a laser for visualization, Pombo was able to determine that someone had probably touched the knife, but "no usable latent prints developed."
When the knife was disassembled, another criminalist found a fingerprint that appeared to have been "etched" on to the knife, but nothing could enhance the print so that it could be identified. Based on a visual comparison however Pombo determined that the etched fingerprint did not match Garcia, Flores, or "the listed victim." Pombo opined that given the location of the fingerprint, it was likely left by the person who had assembled the knife.
The implication from the prosecutor's statements about the knife were that (1) there were no fingerprints or DNA found on the knife, other than by the person who had likely assembled it; and (2) this could be consistent with the knife having been in someone's pocket. We conclude that the prosecutor's assertion was a reasonable argument based upon the evidence, but even assuming otherwise, Garcia has failed to demonstrate prejudice.
The identity of the person who possessed the knife during the shooting was relevant to Garcia's claim that he had acted in self-defense. According to Garcia, he was attacked by both L.A. and G.J., who entered the elevator wielding a knife and a gun. But as discussed, Garcia's version of events was simply not plausible. In contrast, there was strong evidence implicating him as the perpetrator of the shooting.
We further observe that the identity of the individual who possessed the knife during the shooting bore the most relevancy to the attempted murder charges, which must be reversed for instructional error. Beyond speculation, the record does not support the conclusion that Garcia suffered prejudice to any of his remaining convictions.
c. Comments About GSR on the Gray Sweater
Samantha Ingalls, the GSR analyst, testified that when she tested the gray sweater, she found five or more commonly associated particles that were Lead. Ingalls explained that in her experience, among the three particles commonly associated with GSR, Lead is the most prevalent. However, she did not detect particles characteristic of GSR on the sweater. The results of the test were therefore inconclusive.
Ingalls explained that in circumstances where only Lead particles are detected, "[she] can never say that it came from a firearm or it came from another source. But, our conclusion would be that either the sweater received these particles from a non firearm source or that the sweater was in the environment of gunshot residue. But no characteristic particles were collected from the sample."
Ingalls further explained that GSR particles can stay on a surface "until they are removed," because "heavy metals don't tend to really disintegrate." However, GSR generally only stays on a person's hands for four to six hours, depending on a person's level of physical activity.
During her comments in rebuttal, the prosecutor discussed the GSR test results on the gray sweater. She commented, "there is GSR on that sweatershirt." Trial counsel objected. Following an unreported sidebar, the court overruled counsel's objection. The prosecutor continued:
"[The Prosecutor]: That there is GSR on that sweartshirt and that the GSR expert Samantha Ingalls testified that it falls off after a while, that in terms of when they test for hands and whatnot [sic] that there is different criteria that they use and that a couple hours if it's passed off, then they won't even test the hands because it comes off. So with a sweatshirt that clearly is being used to transport the firearm, the shell casings, it's being taken and then it's placed carefully in the back seat like tucked into that center divider between the back seat so that it's in a special place in the back seat, then there still even with all of that even with being shaken, whatever it was that happened to that when it was getting rid of the gun, there is still GSR particles on it."
We agree with Garcia's assertion that the prosecutor's comments were misleading. Lead particles were detected on the gray sweater that Garcia was likely holding during the shooting. Lead particles are particles characteristic of GSR, along with Antimony and Barium, but the presence of Lead particles alone does not mean that GSR from a firearm has been detected. As Ingalls explained, she could not determine whether the Lead particles came from a firearm or a non-firearm environmental source, a conclusion she repeated five separate times during her testimony.
Garcia further observes that contrary to the prosecutor's statements, Ingalls did not opine that GSR particles could be shaken off a surface like a sweater. However, we conclude this was a fair inference from the analyst's testimony. Ingalls explained that because heavy metals do not disintegrate, they will stay on a surface unless they are removed, and that such particles on hands can fall off due to normal physical activity. The jury could reasonably infer, from this testimony, that GSR particles can be removed from a non-skin surface.
Nevertheless, even assuming an expert opinion was required to establish this fact, we conclude that the error, in addition to the prosecutor's erroneous statement about GSR being detected on the gray sweater, was harmless for two reasons. First, any potential misunderstanding the jury might have had regarding the significance of Lead particles being detected on the gray sweater was addressed by trial counsel's remarks in closing argument:
"[Trial Counsel]: The People's theory is that the sweater that was found in Kristy's car is the same sweater from the elevator. If that's true that sweater should have been covered in gunshot residue, not inconclusive, like maybe at some point in time there could have been gunshot residue in this. Not there is other possible explanations for the materials that are found on this sweater.It should be covered in gunshot residue.So again, this is weak.It's a desperate attempt to tie the gun to Kristy."
Trial counsel's remarks countered the prosecutor's claim that GSR was detected on the gray sweater, rectifying any potential misunderstanding the jury may have had about the GSR test results.
Second, the jury was instructed that the attorneys' remarks in opening and closing argument are not evidence. Absent an affirmative indication to the contrary, we presume the jury understood and complied with the trial court's instruction. (People v. Osband, supra, 13 Cal.4th at p. 717.) Nothing upon this record demonstrates that the jury failed to follow the court's instruction. We therefore reject Garcia's claim that the prosecutor's comments were prejudicial.
2. Insinuating Trial Counsel Had Coached a Witness/Stating Trial Counsel's Objections Could be Construed as Evidence of Guilt
Garcia contends that the prosecutor committed misconduct by insinuating that trial counsel for Garcia had coached a witness and by stating that objections made by trial counsel could be construed as evidence of Garcia's guilt. We conclude that the record does not support his claim of prosecutorial misconduct.
During her comments in closing argument, the prosecutor made the following statements:
"[The Prosecutor:] And then [J.F.] came and he talked, that's Kristy Flores's uncle. And he really told us what happened when Kristy Flores went to him after the shooting, but after a long time had passed because the shooting was at 11:00 in the morning and he said she showed up sometime around 4:00. And then they came to Tulare County which would be around 5:00. So there is a big gap there where we don't know what happened. She didn't take her cell phone so she can't be tracked. And Johnny Garcia also says that he wiped his cell phone when he was sitting in the lobby so neither one of them, neither one of their phones can be checked for these things.
"And [J.F.] says what really happened on November 19th of 2020 when she came to his home, she asked for help. She said her husband had been in a fight with two males, and that he was arrested and that she needed his help. And he said I am her uncle, of course I am going to help her."
Trial counsel objected, but the court overruled counsel's objection. The prosecutor continued:
"[The Prosecutor:] But then [J.F.] changed his story once he figured out from the Defense attorney that his testimony wasn't helping Kristy Flores. And that was from Johnny Garcia's defense attorney even objecting now. Because why is that? It's because it shows the gang conspiracy between both Garcia and Kristy Flores and it shows that she knew 100 percent what had gone down with her husband. She knew he was arrested. She knew he was in a supposed altercation with two men. She knew that there was a definite problem with what had happened with Johnny Garcia."
Subsequently, outside of the presence of the jury, trial counsel for Flores raised an objection to the prosecutor's statements. Counsel claimed that the prosecutor's comments about trial counsel's objection to J.F.'s testimony amounted to misconduct and asked the court to instruct the jury that "there should not have been any comment as to an attorney doing their job in this case."
The court admonished the prosecutor not to comment on trial counsel's objections. However, the court did not instruct the jury to disregard the prosecutor's comments.
Garcia contends however that the prosecutor's comments were an attack on trial counsel's integrity. (People v. Turner (2004) 34 Cal.4th 406, 429, quoting People v. Hill (1998) 17 Cal.4th 800, 832 [a prosecutor commits error under state law if he "attacks the integrity of defense counsel, or casts aspersions on defense counsel"].) According to Garcia, the prosecutor insinuated that trial counsel had coached J.F. into changing his testimony. We do not agree the jury would have interpreted the prosecutor's comments as a denigration of trial counsel.
The logical deduction from the prosecutor's statements is that trial counsel was attempting to derail a witness whose testimony was damaging to Garcia's and Flores's defense. But this was not an attack on trial counsel personally.
In any event, the record does not show that Garcia has suffered prejudice. J.F.'s testimony was relevant to establish two facts. First, that Flores did not arrive at J.F.'s home, asking for help, until hours after the shooting, giving Flores a substantial amount of time to dispose of the firearm. Second, that Flores was aware of what had occurred at the hotel, because she showed up at J.F.'s house scared and seeking help because Garcia had been arrested following an altercation.
The prosecutor theorized that these facts were relevant to the gang conspiracy charges. However, Garcia and Flores were ultimately acquitted of the gang conspiracy charges, thereby demonstrating that the jury likely ascribed little if any relevance to the prosecutor's statements concerning trial counsel's objection.
VIII. Cumulative Error
Garcia contends that the cumulative effect of the errors discussed above warrants reversal of his convictions. "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.) We reject Garcia's assertion that the errors identified herein, considered independently or cumulatively, compel reversal of his remaining convictions.
DISPOSITION
Garcia's convictions for attempted murder on counts 1 and 2 are reversed, and the jury's true findings on the section 12022.7 great bodily injury enhancements, the section 12022.53 firearm use enhancements, and the gang enhancements (§ 186.22) are stricken. The matter is remanded back to the lower court for further proceedings. The People shall have 60 days from the date of the remittitur in which to file an election to retry Garcia on these charges and enhancements. If the People elect not to retry him, the trial court shall resentence Garcia accordingly. Following the conclusion of proceedings, the court shall amend the abstract of judgment in a manner consistent with this disposition and forward copies of the amended abstract to the appropriate law enforcement and custodial officials. In all other respects, the judgment is affirmed.
WE CONCUR: PEÑA, Acting P. J. MEEHAN, J.