Opinion
D073442
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. RUBEN KIKO HERNANDEZ, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Collette Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER DENYING REHEARING ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT] THE COURT:
The petition for rehearing is denied.
It is ordered that the opinion filed herein on August 21, 2018, be modified as follows:
The last sentence of the first full paragraph on page 23 is removed and the following two sentences are added to the end of that paragraph:
Subdivision (b) of the same section, however, removes from the trial court the discretion to strike a prior conviction of a serious felony. (See also, § 667, subd. (a)(1); People v. Purata (1996) 42 Cal.App.4th 489, 498.) We remand the matter for the trial court to impose a term of five years for the serious felony priors on all counts and to exercise its discretion to strike or impose sentence as to the prison priors.
On page 25, the paragraph under the disposition heading is removed and replaced with the following paragraph:
The judgment is affirmed. The matter is remanded for the trial court to impose sentence for the prior serious felony convictions on all counts. Additionally, consistent with section 1385, subdivision (a), the court may exercise its discretion to impose or strike the sentence on the two prison priors as to each count. The court is directed to prepare an amended abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation.
There is no change in the judgment.
BENKE, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB1205467) APPEAL from a judgment of the Superior Court of San Bernardino County, William Jefferson Powell IV, Judge. Affirmed and remanded with directions. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Collette Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ruben Kiko Hernandez of three counts of possession of firearm by a felon (Pen. Code, § 29800, subd. (a)) and one count of possession of ammunition by a felon (§ 30305, subd. (a)(1)). It found true that Hernandez committed the four offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1)(A).)
Undesignated statutory references are to the Penal Code.
In bifurcated proceedings, Hernandez admitted that as to all counts, he suffered two prior serious felony convictions (§ 667, subd. (a)(1)) and two prison priors (§ 667.5, subd. (b)) within the meaning of the "Three Strikes" law. (§ 667, subds. (b)-(i).) He admitted an allegation that he did not remain free from prison custody for at least five years afterwards. He also admitted an allegation that he committed one of his prior offenses—possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a))—for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)).
The court sentenced Hernandez to a total of 112 years in state prison as follows: consecutive 25-to-life terms for the four underlying crimes plus two terms of five years each for the serious felony priors (§ 667, subd. (a)(1)), and two terms of one year each for the prison priors (§ 667.5, subd. (b)). It stayed the four-year terms on each of the gang enhancements.
Hernandez contends: (1) the true findings on the gang enhancements should be stricken because the gang expert improperly provided case-specific and hearsay testimony in violation of both the California Supreme Court's decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and Hernandez's constitutional rights to confrontation; (2) the prosecutor committed misconduct during closing arguments by lowering the People's burden of proof; (3) although the crimes arose from the same set of operative facts, the court erroneously sentenced him to consecutive terms; moreover, his trial counsel was ineffective for failing to challenge the sentence; and (4) this court should review the sealed reporter's transcript to determine whether the trial court properly decided his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
The People respond that although the trial court imposed sentence on the prior conviction enhancements as to one count, it was required to do so on all four counts because they are subject to indeterminate terms. We affirm the judgment of conviction but remand for resentencing as set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
A San Bernardino County Sheriff's Department sergeant testified that on December 6, 2012, he surveilled Hernandez's residence as a member of the "Gang Impact Team" comprised of state, local and federal law enforcement agencies that targeted higher level, more influential gang members like Hernandez. After Hernandez was apprehended that day, the sergeant searched his residence and recovered his cell phone, gang paraphernalia, a .45-caliber unexpended round of ammunition, a case of 50 unexpended nine-millimeter rounds, a loaded .45-caliber Ruger magazine containing ammunition, a twelve-gauge unexpended round, and 10 additional unexpended nine-millimeter rounds of ammunition. The authorities also found four firearms. A witness who found some of the firearms in the attic testified they did not have dust or cobwebs, which indicated they were recently placed there.
Y.R. testified at trial that on that day, while she and another female, C.B., were visiting Hernandez at his house, the two women left for the store. On the way there, police stopped them and inquired about Hernandez. Y.R. told them he was in the house, where she had seen a gun.
A San Bernardino County Deputy Sheriff testified at trial that he was a classification deputy with the Department of Corrections and Rehabilitation when Hernandez was booked into jail in December 2012. Hernandez self-identified as a member of the "North Side Colton" criminal street gang.
A San Bernardino County Sheriff Department sergeant who participated in surveilling Hernandez's residence testified at trial that he examined Hernandez's phone and reviewed his text messages on the day he was arrested. One message left for Hernandez on December 6, 2012, stated that everybody on 4th Street "got busted." Another message said that someone was going to be "charging the brother wit [sic] a gun." The sergeant testified that on December 5, 2012, he had been involved with a search warrant issued for a 4th Street address in the City of Colton, where an active member of the North Side Colton gang resided. The individuals were successfully prosecuted for possession of ammunition by a prohibited person, and gang allegations were found true.
A City of Colton Police Department sergeant who was familiar with the North Side Colton gang testified as a gang expert about predicate crimes that gang members committed. The expert further testified that in 2005, he had contacted Hernandez, who was already a known North Side Colton gang member, at a residence located in the gang's territory, containing gang paraphernalia and graffiti identifying Hernandez by his moniker, which is "Evil." According to the expert, Hernandez was convicted of possession of a firearm by a felon and Hernandez admitted committing the crime at the direction of, or in association with a criminal street gang. The expert testified in that trial.
In the present trial, the expert testified that Hernandez was a well-respected leader of the North Side Colton gang. The expert based his opinion on the trial evidence, including photographs of Hernandez's gang tattoos and Hernandez's jail classification form, the trial witnesses' testimony, text messages found on Hernandez's telephone, and Hernandez's carjacking crime committed in 1997.
The expert testified as a general matter that firearms are essential to the gangs' way of conducting business: "Anytime you are dealing with gangs, at the forefront is . . . guns, drugs, money, respect, intimidation. So that is one of the key contributing factors when dealing with gangs and gang investigations. [¶] A lot of the crimes they commit, it is essential they have possession of firearms. They need to be able to have a firearm to defend themselves against others who wish to impede upon [sic] their territory. It helps them with establishing their boundaries. It helps them to maintain safety when conducting illegal activities. [¶] When you are doing unsavory activities with unsavory individuals, you need to make sure that you have possession of some type of weapon to defend yourself during the commission of those illegal acts, when you are trying to buy a large amount of methamphetamine, when you are trying to buy a gun."
The expert testified from personal experience and investigations he had conducted that the North Side Colton gang kept different types of guns and ammunitions for gang members' use in secret residences known as "stash pads." The prosecutor asked the expert: "Based on your training and experience, do well-respected, upper-echelon criminal street gang members keep firearms to themselves, in close proximity of where their criminal street gang operates without allowing the gang to be involved in the utilization of those firearms?" The expert replied: "No. It's one of those things where they are going to allow others to utilize those guns. They have a particular gun specific to them they like to carry, but they are going to make those gun[s] accessible to other criminal street gang members should they need them to be utilized. This garners the specific individual respect amongst other gang members. It is kind of like having a lot of money, having a lot of guns. [¶] In gang culture, having a lot of access to firearms, access to drugs, to money, these are things that are viewed as being positive and something that others are going to respect out of one of its members."
The expert added that gangs maintain a number of stash pads in different locations so that if police raid one, the gang will still have guns at others. The expert testified he was familiar with North Side Colton gang members, Harold Velarde and Joseph Castillo, who operated a stash house and were prosecuted for firearms possession. According to the expert, Velarde had stated that he knew and respected Hernandez from their prior dealings and their time as schoolmates. From prison, Velarde instructed someone on the outside to forward money to the prison accounts of Hernandez and some members of the Mexican mafia. That indicated to the expert that Hernandez was a well-respected and "highly influential" North Side Colton gang member. At one point, the person on the outside tried to arrange a three-way phone call involving Velarde and Hernandez.
The prosecutor asked the gang expert his opinion, "based on all [his] training and experience, the testimony [he] heard in court and the totality of the circumstances," whether Hernandez had possessed the guns and ammunition for the benefit of, at the direction of, or in association with a criminal street gang. The expert answered in the affirmative: "Access to guns by criminal street gang members is essential for them to conduct daily business. It is important that those guns be accessible, be accessible in a fairly reasonable amount of time, that multiple guns are kept at stash pads for that specific reason so that people have access to those firearms for utilization of gang-type crimes." The expert factored in his opinion the location of Hernandez's residence; that the weapons were loaded and ready to use; that one of the weapons was an assault rifle; the presence of different calibers of ammunition; that Hernandez previously was convicted of illegally possessing a firearm at the direction of, or in association with a criminal street gang; that gang paraphernalia was found in Hernandez's house; that someone the expert knew as a gang associate, C.B., was in the house; the text messages found on Hernandez's phone warning him that other gang members had recently been arrested for firearm possession; and Hernandez's relationship with Velarde. The expert reiterated his conclusion regarding the gang enhancement when the prosecutor presented him with a hypothetical matching the facts of this case.
On redirect examination, the expert testified that one gun found in Hernandez's house was registered to C.H., whose boyfriend was a known North Side Colton associate. The expert concluded that gang members share guns among themselves.
DISCUSSION
I. No Violation of Sanchez or of the Confrontation Clause
Hernandez contends the expert's testimony supporting the true findings on the gang enhancements violated Sanchez, supra, 63 Cal.4th 665: "Most importantly, the evidence regarding additional stash houses and the information attempting to connect [Hernandez] to Mr. Velarde and the Mexican Mafia was entirely inadmissible. The evidence was case-specific testimonial hearsay admitted without appellant having a true opportunity to cross-examine either: (1) the officer who testified or (2) the persons whose statements were relied upon by the expert." Hernandez contends the claim is not forfeited because the expert testified in May 2016 but Sanchez was decided in June 2016. Hernandez also argues the expert's testimony violated his Sixth Amendment right to confrontation, adding that the prosecution relied heavily on that testimony during closing arguments.
The People respond that the claim is forfeited because 12 years earlier the United States Supreme Court had decided Crawford v. Washington (2004) 541 U.S. 36 (Crawford), which held that the confrontation clause bars admission of out-of-court testimonial hearsay statements unless the declarant is unavailable and the defendant had a previous opportunity for cross-examination. (Id. at p. 59.) The People alternatively argue that most of the expert's testimony did not violate Sanchez, supra, 63 Cal.4th 665 because the expert testified from his personal experience regarding the Velarde connection; moreover, testimony regarding Velarde was not offered for its truth. The People concede that the expert's testimony regarding the ownership of one gun was case-specific and thus violated Sanchez, but claim any error was harmless.
We apply the rule of Sanchez rather than the law governing the admission of expert hearsay testimony prevailing at the time of Hernandez's trial. In general, "[a] new rule for the conduct of criminal prosecutions is applied retroactively to all cases pending on appeal or not yet final, even if the new rule presents a 'clear break' with the past." (People v. Song (2004) 124 Cal.App.4th 973.) While this general principle was developed specifically with respect to new rules of law announced by the United States Supreme Court (People v. Cage (2007) 40 Cal.4th 965, 974, fn. 4), California similarly recognizes that " '[a]s a rule, judicial decisions apply 'retroactively.' [Citation.] Indeed, a legal system based on precedent has a built-in presumption of retroactivity.' " (People v. Guerra (1984) 37 Cal.3d 385, 399.) Because Sanchez does not "expand criminal liability or enhance punishment," we apply it here. (Correa v. Superior Court (2002) 27 Cal.4th 444, 463, fn. 5; see People v. Welch (1999) 20 Cal.4th 701, 732, fn. 4 ["In the criminal law, similarly, the rule is that 'convictions should ordinarily be tested on appeal under the law then applicable, not the law prevailing at the time of trial' "].)
Hernandez's trial counsel did not forfeit this legal claim by failing to object to the prosecution expert's testimony on this ground at the hearing. Arguably, Sanchez changed the law on the proper scope of expert testimony as it existed prior to this appeal. (See Sanchez, supra, 63 Cal.4th at p. 686, fn. 13 [disapproving People v. Gardeley (1996) 14 Cal.4th 605 "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules"]). There is little doubt that objecting would have been futile. Because the expert's testimony was unobjectionable under the law prevailing at the time of the hearing, any objection would presumably have been overruled. " '[R]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.' " (People v. Brooks (2017) 3 Cal.5th 1, 92.)
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.)
Before Sanchez, expert witnesses could testify about out-of-court statements upon which they had relied in forming their opinions even if the statements were otherwise inadmissible under the hearsay rule. Case law held such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley, supra, 14 Cal.4th at pp. 618-620; People v. Miller (2014) 231 Cal.App.4th 1301, 1310.) Appellate courts deemed the use of out-of-court statements in an expert witness's "basis testimony" to be compliant with the hearsay rule and the requirements of Crawford, supra, 541 U.S. 36. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
The Sanchez opinion holds that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which implicates the hearsay rule and the Sixth Amendment right of confrontation. (Sanchez, supra, 63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. . . . If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.)
"The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676.) However, the hearsay rule does apply to testimony regarding "case-specific facts," meaning "those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.) Unless subject to a statutory exception, such hearsay is inadmissible under state law. (Id. at pp. 674, 698; Evid. Code, § 1200, subd. (b).)
Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Sanchez, supra, 63 Cal.4th at pp. 680-681, 685.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.) Information contained in a police report is generally construed as testimonial hearsay because police reports "relate hearsay information gathered during an official investigation of a completed crime." (Id. at p. 694.)
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard described in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. (Id. at p. 698.) The erroneous admission of nontestimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836, which asks if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.)
As noted, case-specific facts are defined as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) "Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Ibid.)
The Sanchez decision expressly "restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 685.) To illustrate this distinction, the Sanchez court provided the following example: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Id. at p. 677.)
We conclude that the testimony supporting the jury's true findings on the gang enhancements did not run afoul of Sanchez, supra, 63 Cal.4th 665 and the federal Constitution. Specifically, a law enforcement officer testified that when he searched Hernandez's residence after Hernandez's arrest, he found gang paraphernalia, guns and ammunition. There was never any dispute that Hernandez is an active member of the North Side Colton gang, as that was previously known to the expert, and Hernandez admitted it to a different law enforcement officer who booked him into jail following his arrest in the underlying case. This was not testimonial hearsay. "[N]othing in the circumstances of [the expert's] interactions with gang members and other officers objectively indicates the primary purpose of [the expert's] questioning was to target [the defendants] or any other individuals or crimes for investigation or to establish past facts for a later criminal prosecution. . . . To the contrary, he merely educated himself about the history of gangs in an area in which he was assigned as a gang officer, which would help him better understand and perhaps more effectively investigate gang activity. Like the mixed motives of officers and witnesses during ongoing emergencies, that he used this general information to testify as a gang expert at trial does not mean his primary purpose in obtaining this information was to use it against [the defendants] in a later criminal prosecution. Day in and day out such information would be useful to the police as part of their general community policing responsibilities quite separate from any use in some unspecified criminal prosecution." (People v. Valadez (2013) 220 Cal.App.4th 16, 36.)
The only question was whether Hernandez possessed the guns and ammunition at the direction of, in association with, or for the benefit of the gang. The gang expert's testimony—from his personal knowledge and previous investigations of stash houses—provides circumstantial evidence supporting the jury's findings. The gang expert pointed to the common practice among gangs to have such houses available to store guns for the use of different gang members. All of that testimony was admissible as general background information: "The [Sanchez] court made clear that an expert may still rely on general 'background testimony about general gang behavior or descriptions of the . . . gang's conduct and its territory,' which is relevant to the 'gang's history and general operations.' [Citation.] This plainly includes the general background testimony [the expert officer] gave about [the gang's] operations, primary activities, and pattern of criminal activities, which was unrelated to defendants or the current [crimes] and mirrored the background testimony the expert gave in Sanchez. . . . By permitting this type of background testimony, the court recognized it may technically be based on hearsay, but an expert may nonetheless rely on it and convey it to the jury in general terms. (People v. Meraz (2016) 6 Cal.App.5th 1162, 1174-1175, review granted March 22, 2017, No. S239442.)
Hernandez also in passing challenges the gang expert's testimony regarding certain predicate offenses committed by other gang members. (See § 186.22, subds. (e), (f).) There is a split in authority as to whether such testimony implicates case-specific facts within the meaning of Sanchez, supra, 63 Cal.4th 665. (Compare People v. Blessett (2018) 22 Cal.App.5th 903, 944-945, review granted Aug. 8, 2018, No. S249250; People v. Meraz (2016) 6 Cal.App.5th 1162, 1175, review granted Mar. 22, 2017, No. S239442 with People v. Lara (2017) 9 Cal.App.5th 296, 337; People v. Ochoa (2017) 7 Cal.App.5th 575, 582-583.) Assuming without deciding that that predicate offense testimony ran afoul of Sanchez, we would find any such error harmless. The expert also testified regarding Hernandez's other offenses from separate occasions. That testimony is not contested, and predicate offenses may "be established by proof of an offense the defendant committed on a separate occasion." (People v. Tran (2011) 51 Cal.4th 1040, 1046.) Accordingly, the admission of additional predicate offenses by other gang members would have made no difference as to the jury's conclusion that the North Side Colton gang was a "criminal street gang" within the meaning of section 186.22. --------
The expert also highlighted the messages on Hernandez's cellphone dealing with a police raid on a different group of gang members the day before. That warning to Hernandez could show the jury that Hernandez was an influential member of the gang who was informed of such events, and Hernandez was alerted of the raid for him to take preventive measures to secure the guns in his residence from police raids.
We point out that separate from the expert's testimony regarding stash houses in the context of prosecutions of Velarde and Castillo, who were not subject to prosecution in this case, the expert also provided relevant general background facts about gangs' practices based on his personal knowledge and investigations. That testimony was admissible under Sanchez, as it was not case-specific.
The expert's testimony that Velarde had high regard for Hernandez, shown by his putting money in Hernandez's prison account, related to this case specifically, and therefore was inadmissible. In any event, the testimony was harmless because it was introduced solely to show Hernandez's elevated gang status. However, the expert had separately testified based on other information that Hernandez was a well-respected member of the North Side Colton gang's leadership. Therefore, that aspect of the expert's testimony was cumulative and therefore harmless.
We agree with the People that the expert provided inadmissible case-specific testimony that one gun located at Hernandez's house was traced to a gang member, who was C.H.'s boyfriend. However, that testimony was harmless as it only involved one of the various guns found in Hernandez's residence. The overwhelming evidence regarding the other guns leads us to conclude that any error was harmless even under the more stringent Chapman standard, as any error did not contribute to the verdict, and the jury would still have found the gang allegations true even if that portion of the testimony regarding that one gun was excluded.
II. Prosecutorial Misconduct and Ineffective Assistance of Counsel Claims
Hernandez contends the prosecutor in closing argument committed misconduct by describing proof beyond a reasonable doubt as proof that would make the jury "comfortable" with its decision. He asserts that by doing so the prosecutor lowered the burden of proof, thus depriving him of his constitutional right to due process. Hernandez further contends his trial counsel's failure to object to that argument deprived him of his constitutional right to effective assistance of counsel. A. Background
The prosecutor argued to the jury in closing: "I have proven this case to you beyond a reasonable doubt. And because of that, you can feel comfortable when you reach a verdict of guilty because it will be the right thing. My job is to help you do the right thing and that is what this presentation is to do, to show you you can feel comfortable with a verdict of guilty because the case has been proven to you. But I would suggest that you deliberate carefully and do your job as a juror." The prosecutor added: "But you know there is proof beyond a reasonable doubt that you were at jury service. You can—We don't use that term, but it comes from the word abode. Because the term, the definition legally, is proof beyond a reasonable doubt is an abiding conviction in the truth of the charge. Abiding, abode. Something you can make a home with, something you are comfortable with. That is why it is not a TV drama, like I said. That's why I ask you these questions. What do you believe happened? What can you make a home with?" (Italics added.)
The prosecutor continued: "And that is as simple as it is. If I have proven this case to you beyond a reasonable doubt, and I submit to you that I have, you can feel comfortable knowing you are doing the right thing. That is what I'm asking you to do, what I'm here to help you do. Know you are comfortable making an important decision. Know you are doing the right thing. And the system works when the jury is doing the right thing. That's what I'm asking you to do in this case. The right thing is to hold the defendant accountable if I have proven to you beyond a reasonable doubt." (Italics added.)
At the outset of defense counsel's closing argument, he refuted the prosecutor's argument: "It is not as simple as—proof beyond a reasonable doubt is not as simple as what do I believe happened. And it is not that simple because you have to look at it through the prism, through the lens of proof beyond a reasonable doubt. Let me show you, give you an example. Let's say—Well, let's back up. There are three burdens of proof in law: Preponderance of the evidence, clear and convincing evidence, and then there is proof beyond a reasonable doubt. Proof beyond a reasonable doubt is the highest one. The lowest one is preponderance of the evidence." (Italics added.) Defense counsel proceeded to explain each of burden of proof.
Defense counsel continued to reject the prosecutor's argument and in fact supplied the proper definition of the applicable burden of proof: "When you hear consistent—inconsistencies in testimony, you can believe it in part, exclude it in part, or exclude it completely. That is what we have in this case. And, again, that's why it is not as simple as saying, well, what do you believe? Okay. Proof beyond a reasonable doubt is an abiding conviction. It is not nothing [sic] about being a home. An abiding conviction is enduring belief. That is what an abiding conviction is. When you are a prosecutor, you always try to lower that burden, right? Hey, what do you believe? It is easy. No, it is not like that." (Italics added.)
In rebuttal, the prosecutor reiterated his earlier argument: "[U]ltimately you heard a lot of things not supported by the evidence . . . when [defense counsel] argued to you. And I would like to show you why and reestablish what you know to be true, that you have proof beyond a reasonable doubt that you can feel comfortable you are doing the right thing in this case." (Italics added.) The prosecutor continued: "I told you in my initial closing, do the right thing on all counts and especially on all allegations. Don't split the baby. Don't do anything other than find the right verdict for each and every count and allegation. When you do that, you know you're comfortable you are doing the right thing." (Italics added.) B. Applicable Law
A prosecutor's misconduct violates the federal Constitution and requires reversal when it infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) Under state law, a prosecutor's conduct that does not render a criminal trial fundamentally unfair is still error if it involves the use of deceptive or reprehensible methods in attempting to persuade the trier of fact. (Id. at pp. 1009-1010.) Generally, a claim of prosecutorial misconduct is preserved for appeal only if the defense makes a timely objection and requests an admonition to cure any harm. (People v. Centeno (2014) 60 Cal.4th 659, 674.)
We conclude the prosecutorial misconduct claim is forfeited because defense counsel failed to object, and we have no basis to believe that a jury admonition would have been ineffective. We nonetheless address this claim on the merits because Hernandez raises an ineffective assistance of counsel claim.
All defendants in criminal proceedings have a constitutional right to effective assistance of counsel. (Gideon v. Wainwright (1963) 372 U.S. 335.) To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient such that it "fell below an objective standard of reasonableness" and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) To show prejudice, a defendant must establish by a reasonable probability that if counsel's performance was not deficient, he would have received a more favorable result. (Id. at p. 694.) In considering a claim of ineffective assistance of counsel, it is not necessary to determine " 'whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, at p. 697.) "In general, reviewing courts defer to trial counsel's tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsel's conduct falls outside the wide range of competent representation. [Citations.] In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal. 4th 313, 349.) C. Analysis
Hernandez has not shown prejudice to make out a claim for ineffective assistance of counsel. The prosecutor's references to "abode," "abide" and the jury "feeling comfortable" with its verdict were by way of analogy to explain the burden of proof to make it accessible to the jury. It was not a substitute for the formal definition of reasonable doubt, which the court provided to the jury. Even if defense counsel had objected to the prosecutor's argument, the court likely would have simply reminded the jury to read the instruction on reasonable doubt (CALCRIM No. 220), and that the arguments of counsel are not evidence (CALCRIM No. 222). We presume the jury followed the court's actual instructions on those points. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions."].) In any event, as noted, defense counsel rebutted the prosecutor's arguments on this issue and clarified the reasonable doubt standard for the jury. Therefore, in light of the entire record, it is not reasonably likely the jury would have reached a different decision absent the prosecutor's closing argument.
III. Sentencing Error Claims
A. No Error in Sentencing Hernandez Consecutively
Hernandez argues the trial court erred by sentencing him consecutively, claiming the crimes were committed on the same occasion and arose from the same set of operative facts; therefore, his trial counsel was ineffective for failing to argue for concurrent sentences. Because the court stated that each count was a "separate and distinct crime," Hernandez argues that it did not understand its discretion and erroneously concluded it was required to impose consecutive sentences.
Section 1170.12, subdivision (a)(7) states: "If there is a current conviction for more than one serious or violent felony as described in subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law." Subdivision (b) of that section defines a "prior serious and/or violent conviction of a felony" as: "(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony[.]" In turn, section 1192.7, subdivision (c)(28) makes felony offenses with an enhancement under section 186.22, such as the ones here, serious felony convictions. (See People v. Briceno (2004) 34 Cal.4th 451, 462.)
During the pendency of this appeal, the court in People v. Torres (2018) 23 Cal.App.5th 185 decided that consecutive sentencing is mandatory under section 1170.12, subdivision (a)(7): "[S]ection 1170.12, subdivision (a)(7) now applies whenever there are multiple serious and/or violent felony convictions, whether or not they were not committed on the "same occasion" or did not arise from the "same set of operative facts." And the sentences for those serious and/or violent felonies (imposed either consecutively or concurrently as required or allowed under section 1170.12, subdivision (a)(6)), must "run consecutive to his sentence for any other offense, whether felony or misdemeanor, for which a consecutive sentence may be imposed." (Torres, at p. 201.) We agree with Torres, and conclude the court did not err by sentencing Hernandez consecutively for the four serious felonies. B. The People's Claim of Sentencing Error
The People contend the court erroneously sentenced Hernandez only once—for a 12-year term—based on his two prior serious felony convictions and his two prison prior convictions; instead, it should have imposed that same sentence on each of Hernandez's four convictions. They point out the California Supreme Court has held that under the Three Strikes law, "the status or nature of the offender as a person previously convicted of serious felony offenses does not result merely in a single additional term of imprisonment for each prior conviction added on to the overall sentence that would otherwise be imposed for all of the new offenses. Instead, the Three Strikes law uses a defendant's status as a recidivist to separately increase the punishment for each new felony conviction." (People v Williams (2004) 34 Cal.4th 397, 404, and fn. 4.) We are bound by that ruling. (Auto Equity Sales, Inc. v Superior Court (1962) 57 Cal.2d 450, 455-456.)
Hernandez responds that section 1385, subdivision (a) grants the trial court discretion regarding whether to impose the sentence on all convictions, and we should remand the matter for it to exercise that discretion. That statute provides: "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." We remand the matter for the trial court to impose the sentence as required by section 1385, subdivision (a).
IV. Pitchess Motion
Hernandez requests that this court independently review the sealed documents that the trial court reviewed in response to his Pitchess motion. The People do not oppose our review.
In People v. Gaines (2009) 46 Cal.4th 172, 179, the California Supreme Court summarized the manner by which a party may discover evidence in confidential police officer personnel records under Pitchess, supra, 11 Cal.3d 531 and its progeny: "[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the litigation." ' "
On appeal, this court is required to review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose the contents of the officers' personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1229; see People v. Hughes (2002) 27 Cal.4th 287, 330.) We have examined the personnel records of the police officer reviewed by the trial court and conclude it did not abuse its discretion in denying discovery of the records.
DISPOSITION
The judgment is affirmed. The matter is remanded for the trial court to resentence Hernandez under section 1385 and consistent with this opinion. It is directed to prepare an amended abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. DATO, J.