Opinion
F063394
07-25-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD JAMES MURATALLA, Defendant and Appellant.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Eric L. Christofferson and Jennevee H. deGuzman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF131824A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge. Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Eric L. Christofferson and Jennevee H. deGuzman, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Richard James Muratalla shot Fernando Delarosa in the buttocks after driving up to Delarosa in a stolen car. He was convicted of attempted murder, assault with a firearm, carrying a loaded firearm in a public place while an active gang member, being a felon in possession of a firearm, and unlawful taking of a vehicle. Gang allegations, among other sentence enhancement allegations, were found true.
Muratalla correctly argues that under the California Supreme Court's decision in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), the evidence does not support the conviction of carrying a loaded firearm in a public place while an active gang member. Rodriguez held that a person cannot be found to be an active gang member without proof that he committed a crime in concert with another gang member. Because the facts here did not involve perpetration of an offense with any other gang member, we reduce the offense to carrying a loaded firearm in a public place, a misdemeanor, and remand for resentencing on that count.
On January 27, 2014, we issued our original opinion in this appeal, in which we stated the above holding and rejected Muratalla's remaining arguments. On September 14, 2017, however, we granted Muratalla's motion to recall the remittitur (for reasons stated in our order of that date) and ordered supplemental briefing on the question of whether any of the evidence admitted at trial was inadmissible under our Supreme Court's ruling in People v. Sanchez (2016) 63 Cal.4th 665, and, if so, whether any such errors were prejudicial. We now hold that some of the evidence was inadmissible, with the result that the gang enhancements must be reversed.
Muratalla also argues that there was insufficient evidence to support the gang enhancement findings. We disagree.
On January 9, 2018, we granted Muratalla's request to submit further supplemental briefing on the question of whether we should remand the case to the trial court to allow it to retroactively apply the legislation known as Senate Bill No. 620 (Senate Bill 620), which confers on sentencing courts the discretion to strike firearm enhancements. The People conceded that this legislation does apply retroactively to Muratalla's case. Our remand order will direct the trial court to conduct the resentencing proceedings in light of the new law.
Finally, Muratalla argues that defense counsel rendered ineffective assistance by conducting deficient voir dire during jury selection, choosing not to make an opening statement, not objecting to evidence of prior crimes, making an inadequate closing argument, and not objecting to the prosecutor's closing argument. We reject these contentions.
FACTUAL AND PROCEDURAL HISTORY
As Fernando Delarosa walked on a street near his home in Bakersfield on the afternoon of March 31, 2010, an off-white Chevrolet Camaro pulled up beside him. Muratalla got out and asked if he was Fernando Delarosa from Southside. Delarosa recognized Muratalla as Oso from Loma Bakers. Southside and Loma Bakers are both subsets of the Sureño criminal street gang, and are not rivals of one another. However, there are sometimes conflicts between individual members of non-rival subsets. Delarosa said he was from Southside. Muratalla announced that he was from Loma Bakers and that he was going to follow Delarosa. Delarosa understood Muratalla's gang-oriented comments as a challenge to fight. He did not want to fight and told Muratalla to leave. Muratalla said "fuck this," drew a pistol from his pants and fired four shots. One hit Delarosa in the buttocks as he fled. The bullet exited his left thigh and came to rest in his right thigh. He ran into a barbershop and called 911.
Delarosa told officers he knew Muratalla from jail. He described the car and the gun. A week later, police found the Camaro. It had been reported stolen on the day of the shooting. Inside was a .22-caliber handgun with four spent shell casings and two live rounds in the cylinder. The car also contained a green canvas bag with more live ammunition inside. Muratalla's palm print was found on the inside of the driver's door. DNA on the green bag matched Muratalla's DNA profile and he was a possible contributor of DNA found on the gun.
The district attorney filed an information charging Muratalla with five counts: (1) attempted murder (Pen. Code, §§ 187, 664); (2) assault with a firearm (§ 245, subd. (a)(2)); (3) carrying a loaded firearm in a public place while an active member of a criminal street gang (former § 12031, subd. (a)(2)(C), now § 25850, subd. (c)(3)); (4) being a felon in possession of a firearm (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)); and (5) unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). For count 1, the information alleged that Muratalla attempted to kill Delarosa with premeditation and deliberation (§ 189). For counts 1 and 2, it alleged that Muratalla personally used a firearm and caused great bodily injury. (§§ 12022.53, subd. (d), 12022.5, subd. (a), 12022.7.) For counts 1, 2, 3 and 5, it alleged that Muratalla committed the offenses in association with a criminal street gang (§ 186.22, subd. (b)(1)). The gang enhancements for counts 3 and 5 were later dismissed at the People's request.
Subsequent statutory references are to the Penal Code unless otherwise noted.
Muratalla's defense at trial was that the shooting was not attempted murder because it was not proved that he was trying to kill Delarosa. He also claimed the shooting arose from a dispute between him and Delarosa over a woman, so it was not proved that the shooting was gang-related.
The jury found Muratalla guilty on all counts and found the enhancement allegations true. On count 1, the court sentenced him to 15 years to life (reflecting the gang enhancement under § 186.22, subd. (b)(5)) plus 25 years to life for the firearm enhancement. Sentences for counts 2, 3 and 4 were imposed and stayed under section 654. The court imposed a concurrent sentence of four years for count 5.
DISCUSSION
I. CARRYING A LOADED GUN IN A PUBLIC PLACE WHILE AN ACTIVE PARTICIPANT IN A CRIMINAL STREET GANG
As we will explain, the conviction on count 3 must be reduced to a misdemeanor. To establish the offense of carrying a loaded firearm in a public place as a felony, the People were required to prove that Muratalla was a gang member within the meaning of section 186.22, subdivision (a). The Supreme Court's holding in Rodriguez shows that the People did not prove this.
In count 3, Muratalla was found guilty of violating former section 12031. Subdivision (a)(1) of that section provides that a person is guilty of an offense if "he or she carries a loaded firearm on his or her person or in a vehicle while in any public place ...." Under subdivision (a)(2)(C), this offense is a felony if the defendant "is an active participant in a criminal street gang as defined in subdivision (a) of Section 186.22 ...." A violator of section 186.22, subdivision (a), is "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang ...." Where the defendant is not a gang member and none of the other enumerated conditions are met, a violation of section 12031 is a misdemeanor. (Former § 12031, subd. (a)(2)(G).)
Rodriguez deals with the meaning of the requirement that, to be a gang member under section 186.22, subdivision (a), a person must promote, further or assist in criminal conduct "by members of that gang." Specifically, the case answers the question whether this language means the prosecution must prove the defendant committed a predicate offense, either as a principal or an aider-and-abettor, in concert with another person who was a gang member. (Rodriguez, supra, 55 Cal.4th at pp. 1128, 1131.) Some courts, including this one, had held before Rodriguez that this was not required, and that a person could be proven to be a gang member based on a predicate offense in which he or she acted alone. (See People v. Salcido (2007) 149 Cal.App.4th 356, 368, overruled by Rodriguez, supra, 55 Cal.4th at p. 1137, fn. 8.) Concluding that the predicate offense must be committed in concert with another, the Supreme Court explained its reasoning as follows:
"Section 186.22(a) speaks of 'criminal conduct by members of that gang.' (Italics added.) '[M]embers' is a plural noun. The word 'promotes, furthers or assists' are the verbs describing the defendant's acts, which must be performed willfully. The phrase 'any felonious criminal conduct' is the direct object of these verbs. The prepositional phrase 'by members of that gang' indicates who performs the felonious criminal conduct. Therefore, to satisfy the third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct. The plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (Rodriguez, supra, 55 Cal 4th at p. 1132)
Since former section 12031, subdivision (a)(2)(C), incorporates the definition of a gang member from section 186.22, subdivision (a), the Rodriguez holding applies here. The People in this case did not attempt to prove that Muratalla possessed the gun in concert with anyone, or that he committed any other predicate offense in concert with anyone. It follows that Muratalla cannot be guilty of possessing a loaded firearm in a public place while a gang member within the meaning of former section 12031, subdivision (a)(2)(C), and that the possession offense is not a felony in this case.
The Rodriguez holding does not apply, by contrast, to the gang enhancement findings under section 186.22, subdivision (b). The Rodriguez court explicitly denied that its reasoning applied to enhancements imposed under section 186.22, subdivision (b). (Rodriguez, supra, 55 Cal.4th at pp. 1138-1139.)
We have authority under section 1181, subdivision (6), to modify the judgment to a lesser included offense. (People v. Matian (1995) 35 Cal.App.4th 480, 487; People v. Bechler (1998) 61 Cal.App.4th 373, 378-379.) Here, the error means Muratalla is not guilty of a felony under former section 12031, subdivision (a)(2)(C), but guilty of a misdemeanor under former section 12031, subdivision (a)(2)(G). We modify the judgment accordingly and remand for resentencing on count 3. II. GANG EXPERT'S RELIANCE ON HEARSAY EVIDENCE
"When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed ...." (§ 1181, subd. (6).)
A. Introduction
Muratalla argues that the People's gang expert, Bakersfield Police Officer Travis Harless, conveyed inadmissible hearsay statements to the jury, violating California evidence law and the confrontation clause of the Sixth Amendment. This argument is based on Sanchez, supra, 63 Cal.4th 665, in which the California Supreme Court interpreted Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Muratalla contends that the erroneous admission of this evidence was prejudicial with respect not only to the gang enhancements but also to the attempted murder conviction and the deliberate-and-premeditated finding.
Muratalla further contends that the evidence was prejudicial with respect to the conviction of carrying a loaded firearm in a public place while an active member of a criminal street gang, but we are reducing that offense to a non-gang-related misdemeanor, as explained above.
We agree about the gang enhancements. As we will explain, some of the evidence introduced through the gang expert's testimony was inadmissible hearsay, and without that evidence, elements of those enhancements would not have been established. The erroneous admission of the evidence therefore was prejudicial under any standard.
On the attempted murder, the only potential relevance of the inadmissible hearsay was that it arguably helped to show that Muratalla was motivated to kill Delarosa because they both were gang members, which might in turn have circumstantially supported the assertions that he had a specific intent to kill and attempted to kill with deliberation and premeditation. There was other, admissible, evidence that Muratalla was affiliated with a gang, however, and although the inadmissible evidence reinforced the admissible evidence on this point, it did not strengthen the claims that he intended to kill Delarosa and engaged in deliberation and premeditation before trying to kill him. With respect to the attempted murder conviction and the deliberate-and-premeditated finding, the erroneous admission of hearsay was harmless.
B. Legal background
1. Crawford and Sanchez
The confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (U.S. Const, 6th Amend.) Before Crawford, the United States Supreme Court had held that the trial admission of hearsay against a criminal defendant did not violate the confrontation clause if the declarant was unavailable and the evidence bore adequate indicia of reliability. Such indicia were present when the hearsay fell within a firmly rooted hearsay exception or where there was a showing of particularized guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56, 66.) Crawford overruled the Roberts approach, holding instead that the admission of "testimonial" hearsay violates the confrontation clause unless the declarant is unavailable to testify and the defendant had a previous opportunity to cross-examine, or a hearsay exception existing at the time of the adoption of the Sixth Amendment applies. (Crawford, supra, 541 U.S. at pp. 56, fn. 6, 62, 68.) The court did not provide a definitive statement of the meaning of "testimonial" hearsay, but one definition it mentioned with approval was: "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" (Id. at p. 52.)
In Sanchez, the defendant was convicted of being a felon in possession of a firearm (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) and possessing drugs while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)). An enhancement allegation that he committed the offenses for the benefit of a gang was found true (§ 186.22, subd. (b)), and he also was convicted of the substantive offense of being an active gang member (§ 186.22, subd. (a)). (Sanchez, supra, 63 Cal.4th at pp. 671-673.) A detective, testifying as an expert for the prosecution, opined that the defendant was a gang member and that some hypothetical crimes, based on the facts for which the defendant was on trial, would be committed for the benefit of a gang. (Id. at pp. 672-673.) These opinions were based, in part, on police records containing officers' descriptions of several incidents in which the defendant was contacted by police under circumstances indicating his involvement in gang activities. The detective recited the allegations in these documents under questioning by the prosecutor. (Ibid.)
The California Supreme Court held that the expert's descriptions of the defendant's past contacts with police were inadmissible on two distinct grounds: the Evidence Code and the confrontation clause.
"We hold that that case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford." (Sanchez, supra, 63 Cal.4th at pp. 670-671.)"Case-specific" statements are simply "those relating to the particular events and participants alleged to have been involved in the case being tried" (id. at p. 676), and thus would include all the expert's statements about the defendant, regardless of whether they were also about the current offenses.
In holding that this type of evidence is inadmissible hearsay under the Evidence Code, the court explained that it was applying "a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception?" (Sanchez, supra, 63 Cal.4th at p. 680.) In holding that the evidence is offered to prove the truth of the asserted facts, the court rejected the then-existing "paradigm" according to which a gang expert's recitation of facts about a defendant's past activities was offered only as a "basis" for the expert's opinion, not for the truth about those activities. (Id. at p. 679.) This approach does not make sense when there is no independent proof of the defendant's past activities on which the expert relies, because a jury cannot evaluate a gang expert's opinion about a defendant without considering whether the facts upon which the opinion is based are true. (Id. at pp. 674, 680-681, 684, 686.) The court overruled several California cases in which this paradigm had been embraced. (Id. at p. 686, fn. 13.)
Once the court had rejected the notion that the evidence about the defendant's past activities was not being presented through the expert to prove the truth about those activities, it was clear that the admission of this type of evidence violates the confrontation clause as interpreted in Crawford to the extent it is testimonial, absent a showing that the hearsay declarants are unavailable and the defendant had a prior opportunity for cross-examination. (Sanchez, supra, 63 Cal.4th at p. 686.) After considering a series of post-Crawford cases on the subject of types of hearsay that are testimonial, the court reached the following conclusions: (1) Three police reports were testimonial. Each of these described incidents in which the police arrested or otherwise made contact with the defendant while investigating crimes. (Sanchez, supra, at pp. 694-695.) (2) A document called a "STEP notice" was testimonial. This was a document prepared by police when they believe a person is associated with a criminal street gang. A portion was given to the suspected individual to give the individual notice, and another portion was retained by the police. The gang expert relied on the retained portion, which contained biographical information about the defendant, a statement that he was believed to be associating with gang members, and an officer's attestation that the document was issued to the defendant. (Id. at pp. 672, 696-697.) (3) Some field identification cards might be testimonial. These were reports written by officers that recorded contacts they made with the defendant. (Id. at pp. 672, 697-698.)
2. Elements of Gang Enhancement
In this case, as in Sanchez, the People relied in part on their gang expert to prove section 186.22, subdivision (b) gang enhancements. That statute provides:
"Except as provided [in another provision], any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows ...." (§ 186.22, subd. (b)(1).)A number of provisions for additional prison time follow.
"[C]riminal street gang" is a defined term in section 186.22:A list of 33 enumerated offenses follows.
"As used in this chapter, 'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)
"[P]attern of criminal gang activity" is defined in turn:
"As used in this chapter, 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons ...." (§ 186.22, subd. (e).)
The elements the prosecution in this case had to prove to establish the gang enhancements may be summarized as follows:
(1) Muratalla committed the offenses of conviction (attempted murder and assault with a firearm) for the benefit of, at the direction of, or in association with any criminal street gang,
(2) with the specific intent to promote, further or assist in any criminal conduct by gang members, where
(3) "criminal street gang" means
(a) an ongoing organization or group
(b) of three or more persons
(c) having as one of its primary activities the commission of crimes enumerated in section 186.22, subdivision (e),
(d) having a common name or symbol, and
(e) whose members individually or collectively have engaged in a pattern of criminal gang activity, consisting of
(i) two or more of the offenses enumerated in section 186.22, subdivision (e)(1)-(25) or (31)-(33) provided that
(ii) at least one offense occurred after the effective date of the statute,
(iii) the last offense occurred within three years of the one before it, and
(iv) the offenses were committed on separate occasions or by two or more persons.
As will be seen, the inadmissible hearsay, in this case, came in through the gang expert was relevant primarily to the proof of the two predicate offenses required by element (3)(e), and to the commission of the current offenses for the benefit of, at the direction of, or in association with a gang, with the specific intent to promote, further or assist in criminal conduct by gang members, as required by elements (1) and (2).
C. Expert's testimony
Officer Harless testified that he had been a member of the police department's gang unit for just over a year and went to the Loma Bakers' territory almost every day while on duty. He spoke to gang members daily and often arrested them for gang-related crimes. From these contacts, he learned the boundaries of the Loma Bakers' territory, their rivalries and alliances, and their primary activities. Asked to describe these primary activities, he testified: "[T]hey commit property crimes, different kinds of thefts. They commit assaults on rivals. They commit assaults with firearms, illegal firearm possession, things like that." Based on oral statements by various Loma Bakers and other gang members, Harless also described the customs and activities of Sureño gangs in Bakersfield more generally.
In addition to imparting the knowledge he gained from these personal field contacts, Harless conveyed information to the jury from three sets of documents. First, he described records of the 16 times Muratalla had been booked at the county jail, in each of which Muratalla "claimed South, Southside, Bakers or something to that effect" and also "said he needed to be kept away from the North." This meant that when the booking officer asked Muratalla if he had a gang affiliation for purposes of determining where in the jail he should be housed, Muratalla replied that he was a Sureño or more specifically a Baker and wanted to be housed away from Norteños.
Second, Harless testified that he reviewed 19 offense reports in which Muratalla was mentioned. In addition to one offense report on the present case, he found three of these to be "significant in the gang context." The first described an incident on September 14, 2004, when officers found Muratalla on a street at 1:53 in the morning, in possession of a three-and-a-half-inch fixed-blade knife. They arrested him for carrying a concealed weapon. The gang connection was that weapon possession was a primary activity of the Loma Bakers. From the next report, Harless learned that on April 1, 2005, officers found Muratalla in a stolen car. He discarded a methamphetamine pipe as the officers caught up with him, and had counterfeit currency in his possession. Stealing cars was a primary activity of the Loma Bakers. Finally, a report stated that on August 21, 2009, officers found Muratalla at an intersection within the Loma Bakers' territory, in the company of Anthony Perez, a Loma Baker. Muratalla placed an unknown object in his mouth. Perez was in possession of a counterfeit check. Both were arrested for parole violations.
The third group of documents of which Harless conveyed the contents to the jury consisted of two police reports and one probation report on predicate offenses committed by Loma Bakers other than Muratalla. According to one of the police reports, Rene Cazares possessed methamphetamine for sale in 2003. Another police report stated that Mario Gomez and Michael Soto committed an assault with a deadly weapon (a baseball bat) in 2005. The probation report stated that Andres Ibarra was a felon in possession of a firearm in 2008.
D. Analysis
1. Admissibility
a. Muratalla's Booking Records
Harless's testimony that the booking records showed Muratalla said he was a gang member 16 times was plainly double hearsay. The first level of hearsay—the booking officers' written reports of Muratalla's statements—are within the hearsay exception for party admissions (Evid. Code, § 1220). But for the second level—Harless's recitation of the contents of the booking reports—there is no applicable exception.
It also is clear that these statements are case-specific under Sanchez, since they pertain to the defendant. The statements therefore were inadmissible under state law. The People concede this point.
Muratalla argues that the statements were testimonial as well, because the booking officers "no doubt understood that they were establishing facts potentially relevant to later criminal prosecution." They cite People v. Elizalde (2015) 61 Cal.4th 523, 539-540 (Elizalde), in which it was held that booking questions about gang affiliation require Miranda warnings because they are "reasonably likely to elicit an incriminating response."
(Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
Muratalla's booking statements about his gang affiliation are undoubtedly inadmissible under Elizalde as well, as there was no practice at the time (Elizalde having not yet been decided) of giving Miranda warnings at booking. That is not an issue the parties have briefed, however.
It is unnecessary to decide whether the booking responses were testimonial, and thus inadmissible under the confrontation clause, since we conclude they were inadmissible under state law. It is true that a more stringent standard for harmless error review applies to constitutional error, as noted below, but this is not a factor in our disposition of this case: To the extent we find the errors harmless, we find them harmless under any standard, as will be seen.
b. Offense Reports on Muratalla
The People concede that the hearsay Harless related from the offense reports on Muratalla's past gang-related arrests was indistinguishable from the testimonial hearsay derived from police reports in Sanchez, and thus was inadmissible. In Sanchez, this hearsay consisted of "statements about a completed crime, made to an investigating officer by a nontestifying witness," which were not "made in the context of an ongoing emergency ... or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) We agree that these statements were inadmissible. Under Sanchez, their admission violated both state law (they were case-specific) and the federal Constitution (they were testimonial).
c. Police and Probation Reports on Predicate Offenses
The hearsay information in the police and probation reports describing predicate offenses committed by Loma Bakers other than Muratalla was inadmissible under the confrontation clause for the same reasons the hearsay in the offense reports on Muratalla was inadmissible under that clause. Nothing in Crawford or Sanchez would support distinguishing these statements on the ground that they pertained to someone other than the defendant. We also see no reason why the probation report should be treated differently from the police reports. The primary purpose of this type of report is to recommend a sentence to the trial court, and the recitation of the facts of the current offenses in the report is there to provide context for the recommended sentence and to help justify that recommendation. That recitation is a clear case of preserving facts for use in the proceedings against the defendant in the trial court.
The People do not claim the hearsay in any of these reports was admissible under the confrontation clause. Their brief omits any discussion of this point.
The People do argue that the hearsay in the police and probation reports on these predicate offenses was admissible under the state-law holding of Sanchez, because it was about perpetrators and offenses other than Muratalla and the current offenses, and therefore was not case-specific. Muratalla argues that this material was case-specific because it was offered to prove elements of the gang enhancements currently charged. It is unnecessary to resolve this dispute, since it is undisputed that the admission of this hearsay was unconstitutional under Crawford.
d. Background Statements on Gang Activities
Muratalla concedes that, after Sanchez, experts are still permitted to rely on inadmissible hearsay as a source of background knowledge where the hearsay is of a kind typically relied on by experts in the same field. He argues, however, that in testifying on the general activities and customs of the Loma Bakers and other Sureño gangs in Bakersfield, Harless not only relied on gang members' statements as a source of background knowledge, but also relayed to the jury a number of specific statements these gang members made about the customs and activities of gangs. He argues that even assuming these were not case-specific and not testimonial, they were still hearsay not within an exception and should have been excluded. Further, he contends that because Harless said some of his background information came from conversations with gang members who were in custody, some of the hearsay statements he relayed could have been taken for purposes of prosecution and therefore would be testimonial.
We need not rule on the admissibility of these statements. As will be seen, we hold that the gang enhancements must be reversed based on the erroneous admission of other hearsay evidence. On the attempted murder issue, we see no way in which specific hearsay statements regarding the general practices of the Loma Bakers and other gangs could have prejudiced Muratalla under any standard. Muratalla does not argue that these particular statements could have had an impact on the jury's consideration of whether or not he fired at Delarosa with a specific intent to kill.
2. Prejudice
a. Standard of Harmless-error Review
To the extent evidence was admitted in violation of the federal Constitution, the error is reversible unless the record shows beyond a reasonable doubt that, absent the error, the defendant would have obtained no better outcome in the trial court. (Chapman v. California (1967) 386 U.S. 18, 24.) To the extent evidence was admitted in violation only of the Evidence Code, a less stringent standard applies: The error is harmless if there is no reasonable probability that the defendant would have obtained a better outcome without it. (People v. Watson (1956) 46 Cal.2d 818, 836.) As much of the evidence at issue was inadmissible under the confrontation clause, we will apply the stricter standard. Applying the same standard, the People concede that this approach is appropriate.
b. Gang Enhancements
To prove the enhancements under section 186.22, subdivision (b), the People had to show that the group for which Muratalla committed the current offenses was a criminal street gang. This required proof of a pattern of criminal gang activity, which in turn required proof of at least two predicate offenses committed by members of the same group. The People's proof of this element depended on Harless's recitation of the facts of the predicate offenses, which he found in police reports. This recitation communicated testimonial hearsay to the jury. Without the recitation, the predicate offenses were unproven, so the error is prejudicial.
The People argue that the error was not prejudicial because certified copies of the conviction records for the predicate offenses were admitted into evidence. But those records did not state that the offenses were committed by members of Muratalla's gang, the Loma Bakers. This is an essential element, since there would be no point in proving that some group other than Muratalla's was a criminal street gang.
The People maintain that because Harless stated that the individuals convicted of the predicate offenses were Loma Bakers, and Harless's background knowledge and expertise enabled him to determine whether a person is a Loma Baker, this portion of the necessary proof was supported by evidence independent of the inadmissible hearsay. There is, however, nothing in the record to indicate that Harless had any foundation for his identification of these particular individuals as Loma Bakers except for the hearsay statements in the police reports to that effect. Instead, it is apparent from the transcript of his testimony that he was answering the prosecutor's questions about the perpetrators based on his review of the reports. Further, the convictions for the predicate offenses were obtained between 2003 and 2008. Harless testified that he had been a member of the gang unit for just over a year at the time of the trial in 2011, and had been a police officer for just over three years. Thus, it would appear he was not personally involved in those cases, except possibly the last one.
c. Attempted Murder
There were several kinds of evidence supporting the People's assertion that Muratalla was a Loma Bakers gang member. There was Harless's testimony about his booking statements and the police and probation reports on his prior gang-related arrests. This testimony was inadmissible, as we have said. Harless also testified about Muratalla's tattoos, photos of which were shown to the jury. Harless described the tattoos and gave his expert opinion on their significance. The abbreviation "BKS" in 12-inch letters across the front of Muratalla's abdomen signified that he belonged to one of the Bakers gangs in Bakersfield. The letters "KC" on Muratalla's inner right bicep were a common tattoo for Sureño gang members in Kern County. Another "BKS" was on Muratalla's left inner forearm. On the right side of the back of his head were the numbers 661, the area code for Bakersfield, which was often used by Bakersfield gang members to signify that they were gang members from Bakersfield. In Harless's opinion, these tattoos identified Muratalla as a Sureño belonging to one of the Bakers sub-groups in Bakersfield, though they did not identify him specifically as a Loma Baker.
Delarosa testified that after Muratalla got out of the Camaro and approached him, he did not recognize him at first, but then realized he knew him as Oso from Loma Bakers, having been acquainted with him in jail. Muratalla asked him whether he was Fernando Delarosa from Southside, which Delarosa understood to mean the Southside Bakers gang. Delarosa said yes. Muratalla then informed him he was from Loma Bakers. Delarosa testified that he understood Muratalla's questions as a method used by gang members to challenge others to fight.
In a recorded statement that was played for the jury, Delarosa said he participated in a beating administered to Muratalla in jail as gang discipline, on the orders of gang leaders who were dissatisfied with Muratalla's performance as a gang member. The leaders felt Muratalla was "beating people up too much." (At trial, however, Delarosa denied having any recollection of this incident. He also testified that gang rules forbade discussing gang discipline.)
On the other hand, as Muratalla points out, Delarosa in his recorded statement (unlike his trial testimony) did not claim Muratalla referred to Loma Bakers during the confrontation that led to the shooting. Delarosa knew Muratalla was with the Loma Bakers at that time, but Muratalla only referred to himself during the confrontation as "Oso from La Loma." In response, Delarosa told Muratalla he was "from the south," but no gang signs or gang lingo were used. Delarosa was not aware of any conflict between his group and the Loma Bakers. Harless testified that Sureño gang members sometimes introduce themselves using the name of the neighborhood or territory from which they come.
The relevance of all this to attempted murder, according to Muratalla, is that the inadmissible evidence of gang membership gave improper support to the claim that he fired the gun with a specific intent to kill, as well as the claim that the attempt involved deliberation and premeditation. Harless testified that gang members use violent behavior to raise their status within the gang. The jury was instructed that it could consider evidence of gang activity to decide "whether the defendant acted with the intent, purpose and knowledge that are required to prove the gang related crimes and enhancements charged or whether the defendant had a motive to commit the crimes charged." Muratalla's view is that the jury thus was deluged with superabundant yet largely inadmissible proof of his gang membership and then encouraged to view gang members as being likely to intend to kill those they shoot and likely to premeditate before trying to kill them.
Had the inadmissible evidence not come in, Muratalla contends, evidence tending to show he did not intend to kill Delarosa would have been more persuasive. An eyewitness named Sergio Merino testified that Muratalla pointed the gun "[d]irectly at" Delarosa, yet only one of four shots hit Delarosa, even though Muratalla fired the first shot from two or three feet away. There was police testimony that no bullet strikes were found behind where Delarosa was standing, which, according to Muratalla, suggests he was firing wildly except for the shot that hit Delarosa. Further, despite the close range, Muratalla did not hit Delarosa in a vital area, and he left two bullets in the gun even though Delarosa, running away, had obviously not been killed.
Further, there was evidence that, in addition to the prior encounter in jail, there was a preexisting dispute between Muratalla and Delarosa that was personal, not gang-related, in nature. In his recorded statement, Delarosa indicated that Muratalla had become involved in some way with a former partner of his who was the mother of his child. During a phone conversation, Delarosa and the woman argued. Muratalla got on the phone, called Delarosa names, and asked Delarosa where he was. Delarosa told Muratalla to mind his own business. Muratalla now suggests this dispute supplied a possible non-gang motive for the shooting, which perhaps would not have been sufficient to motivate him to try to kill Delarosa; he argues that the inadmissible gang evidence could have discouraged the jury from taking a non-gang motive seriously.
In our view, there is no likelihood that the inadmissible gang evidence played any significant part in convincing the jury that Muratalla had a specific intent to kill Delarosa and engaged in deliberation and premeditation before trying to kill him. We do not know what convinced the jury on these points, but if it was partly because he was a gang member, we do not think its conclusion would have been changed if it had had to rely only on the admissible gang evidence. That evidence showed Delarosa knew Muratalla as a gang member from a Sureño subset different from his own, at least since the time of the violence between them in jail. It showed Muratalla was sufficiently committed to the gang to display his membership in the form of large tattoos, and was sufficiently current in his membership to introduce himself at the time of the shooting as a gang member. This evidence was ample and compelling. On the attempted murder conviction, the errors in the admission of hearsay evidence were harmless beyond a reasonable doubt. III. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE FINDING THAT THE SHOOTING WAS GANG-RELATED?
Muratalla argues that the evidence was insufficient to support the jury's finding on the gang enhancement allegations pursuant to section 186.22, subdivision (b). We will assume, without deciding, that if the evidence were insufficient, retrial of the gang enhancements would constitute double jeopardy and be barred. (See People v. Seel (2004) 34 Cal.4th 535, 539 [retrial after reversal on appeal, based on insufficiency of evidence, of finding that murder is willful, deliberate and premeditated is barred by double jeopardy clause because finding is functional equivalent of element of greater offense under Apprendi v. New Jersey (2000) 530 U.S. 466].) On the basis of this assumption, it is necessary to resolve the sufficiency issue even though we are reversing the gang enhancements for another reason, as explained above.
Muratalla also contends that the evidence was insufficient for this reason to prove the gang-membership element of possessing a loaded firearm in public while a gang member, but we need not address that argument because we are reducing that offense for the reasons already stated.
On appellate review of the sufficiency of evidence to support a verdict, the question is whether the evidence actually admitted at trial was sufficient, not whether the admissible evidence was sufficient. For this reason, our discussion below considers Muratalla's argument in light of the admitted evidence, including the evidence we have found inadmissible under Sanchez.
"When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
The elements the prosecution had to prove to establish the gang enhancement allegations are set forth in part II.B.2. above. Muratalla's contentions focus on the primary activities element.
In People v. Sengpadychith (2001) 26 Cal.4th 316, our Supreme Court discussed the types of evidence that can establish the primary activities prong. Expert testimony can be sufficient to prove this prong. As an example, the court described a case in which a police expert testified that the defendant "had for nine years been a member ... primarily engaged in the sale of narcotics and witness intimidation .... The gang expert based his opinion on conversations he had with [the defendant] and fellow gang members, and on 'his personal investigations of hundreds of crimes committed by gang members,' together with information from colleagues in his own police department and other law enforcement agencies." (Id. at p. 324.) Specific instances of past or current enumerated criminal acts by gang members are also relevant to the primary activities issue. (Id. at p. 323.) If all the evidence presented by the prosecution establishes only occasional commission of enumerated criminal acts by members of the defendant's gang, then the primary activities element is not proven. (Id. at pp. 323-324.)
Officer Harless testified that he had been a member of the police department's gang unit for just over a year and went to the Loma Bakers' territory almost every day while on duty. He spoke to gang members daily and often arrested them for gang-related crimes. From these contacts, he learned the boundaries of the Loma Bakers' territory, their rivalries and alliances, and their primary activities. Asked about the Loma Bakers' primary activities, he testified: "[T]hey commit property crimes, different kinds of thefts. They commit assaults on rivals. They commit assaults with firearms, illegal firearm possession, things like that."
Harless also testified about specific instances of criminal acts by Loma Bakers members. Rene Cazares possessed methamphetamine for sale in 2003. Mario Gomez and Michael Soto committed an assault with a deadly weapon (a baseball bat) in 2005. Andres Ibarra was a felon in possession of a firearm in 2008.
Muratalla first argues that Harless's testimony was insufficient evidence to support the primary activities element because some of his remarks showed that he did not have a proper understanding of the meaning of primary activities. Harless testified that illegal firearm possession was a primary activity of the Loma Bakers, but he later gave an affirmative answer when asked if it was "actually rare that you'll contact with a Loma Baker who has a gun." Muratalla argues that because a primary activity cannot be one that a gang's members engage in only occasionally, Harless must have misunderstood what a primary activity is and therefore his testimony about the Loma Bakers' primary activities cannot establish that element.
As the People point out, however, other testimony given by Harless explains how he could consistently say both that firearm possession is a primary activity of the Loma Bakers and that members of the Loma Bakers are not often found with firearms. Explaining how Bakersfield gangs manage their stocks of firearms to avoid detection, Harless said that gangs often "keep them in a central location, maybe a vacant house or at a person's house where they know there's nobody on probation or parole so it's less likely law enforcement is going to go to that location ...." Members wanting a gun to commit a crime then know where to go to obtain one. This testimony shows how illegal firearm possession can be a primary activity of a gang even though most of the gang's members carry a gun only infrequently. Harless therefore did not exhibit any misunderstanding of the term "primary activities" and there is no reason for us to hold that his testimony using that term should be disregarded in the sufficiency-of-evidence analysis.
Muratalla points out Harless never said the Loma Bakers keep guns in a central location, but that is beside the point. Muratalla's argument is that Harless's statements about the Loma Bakers' possession of guns were inconsistent, and therefore cannot be substantial evidence. The fact that a gang—any gang—can have guns in a central location, available to members at all times even though most members usually are not in actual possession, shows that Harless's statements were not inconsistent.
Muratalla next argues that the People did not show a large enough number of specific criminal acts by Loma Bakers members. The three prior crimes by four members, plus the current offense, make only four incidents over a period of seven years. This, Muratalla contends, proves no more than occasional commission of enumerated offenses by Loma Bakers members.
There is, however, no rule that any particular number of offenses over any particular time period must be shown to establish that committing enumerated crimes is a primary activity of a gang. As we have said, expert testimony based on field experience can be evidence sufficient to prove the primary activities element. Muratalla cites cases in which small sets of specific instances of criminal conduct were held to be insufficient to show a gang's primary activities, but in each of those cases, either there was no expert testimony stating that the gang committed enumerated crimes as a primary activity, or else the expert testimony lacked foundation. (People v. Perez (2004) 118 Cal.App.4th 151, 160; In re Alexander L. (2007) 149 Cal.App.4th 605, 614.)
We conclude that Officer Harless's opinion testimony and his testimony about specific offenses committed by Loma Bakers members constituted substantial evidence that the Loma Bakers' primary activities included the commission of crimes enumerated in section 186.22. Muratalla's arguments that Harless contradicted himself and did not discuss a sufficient number of specific instances are without merit. IV. SENATE BILL 620
Senate Bill 620, signed by the Governor on October 11, 2017, and effective January 1, 2018, added the following language to the firearm enhancement provisions in sections 12022.5 and 12022.53:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, § 1.)The new legislation thus granted trial courts a new discretion to strike firearm enhancements they did not previously possess.
In this case, the information alleged firearm enhancements on counts 1 and 2 under sections 12022.5, subdivision (a) and 12022.53, subdivision (d). Muratalla received a 25-year firearm enhancement under section 12022.53, subdivision (d). He argues that the new provisions should be applied to him retroactively on remand, both because of the "any resentencing" language, and because they the lessen the potential punishment for the enhancements within the meaning of In re Estrada (1965) 63 Cal.2d 740, 745. The People concede the point. On remand, the trial court will have discretion (but obviously will not be required) to strike any or all of the charged firearm enhancements. V. EFFECTIVE ASSISTANCE OF COUNSEL
Muratalla argues that several aspects of his trial counsel's performance amounted to a deprivation of the effective assistance of counsel guaranteed by the Sixth Amendment. To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) Our review of trial counsel's actions is deferential. To establish that counsel's actions were objectively unreasonable, the appellate record must affirmatively show that counsel had inadequate reasons for taking those actions, or else that there simply could not possibly be any good reason for them. (People v. Kipp (1998) 18 Cal.4th 349, 367.) Further, it is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case. If the reviewing court can resolve the ineffective assistance claim by proceeding directly to the issue of prejudice—i.e., the issue of whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions—it may do so. (Strickland v. Washington, supra, at p. 697.) As we will explain, Muratalla has not established that his counsel's alleged errors amounted to ineffective assistance either separately or cumulatively.
Where relevant, the discussion below presupposes that defense counsel was justified in assuming the hearsay evidence discussed above was admissible. In light of the law as it existed at the time, objections to that evidence based on the reasoning later adopted in Sanchez would have been futile. (See People v. Gardeley (1996) 14 Cal.4th 605, 618-619 [gang expert properly allowed to relate otherwise-inadmissible hearsay on which his opinions were based] overruled by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [Gardeley survived Crawford].)
A. Voir Dire
Muratalla contends that his counsel acted unreasonably in conducting voir dire during jury selection. Specifically, he did not challenge for cause or excuse via peremptory challenge (though he left many of his peremptory challenges unused) two prospective jurors who were employed in law enforcement. One juror was a juvenile correctional officer who had received some gang-related training and who had a brother who was a California Highway Patrol officer. The other wrote reports and petitions at the Kern County Probation Department and also had received gang-related training. Both served on the jury. Another prospective juror was a nurse employed by the California Department of Corrections and Rehabilitation. Muratalla's counsel did not challenge her and she became an alternate, and ultimately served as a juror when a seated juror was excused before opening statements. More generally, Muratalla says counsel unreasonably failed to question jurors to find indications of bias. He says counsel did not ask any prospective jurors whether they had an inclination to favor testimony by law enforcement personnel, did not follow up when a prospective juror, who ultimately served on the jury, said her daughter had been a victim of a violent crime but her ability to serve would not be affected, and did not ask the prospective alternates any questions. The jury foreperson was not asked whether anyone close to her worked in law enforcement or had been a victim of a violent crime.
The record does not disclose trial counsel's reasons for allowing the correctional officer, the probation department employee and the prison nurse to serve. As we have said, counsel's actions cannot be found unreasonable based on a silent record unless there simply could be no valid reason for them. The exercise of peremptory challenges is "'"inherently subjective and intuitive [and] an appellate record will rarely disclose reversible incompetence in this process."'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 48.) There could have been other reasons why counsel found these three jurors acceptable or even desirable compared with others who might have served had these three been excused.
Similarly, the record does not show that there were no sound tactical reasons for counsel's decision to refrain from asking certain questions about bias in favor of law enforcement personnel. It has been held that even asking no questions can be a sound tactical approach. "For example, questioning by other parties may convince counsel that the juror would be favorable for the defense, and that further questions might only antagonize the juror or give the prosecution a reason to use a peremptory challenge or even grounds for a challenge for cause." (People v. Freeman (1994) 8 Cal.4th 450, 485; see also People v. Horton (1995) 11 Cal.4th 1068, 1123 [professionally unreasonable conduct not shown where counsel's decision not to ask prospective jurors about racial bias could have been result of sound tactical decision].)
Muratalla also has not shown prejudice arising from counsel's actions during jury selection. "Nothing in the record suggests the actual jury was biased, or that it is reasonably probable a different jury would have been more favorably disposed towards defendant." (Freeman, supra, 8 Cal.4th at p. 487.)
For these reasons, we conclude that Muratalla has not established ineffective assistance of counsel based on his counsel's conduct during jury selection. Cases he cites do not persuade us otherwise. In Winn v. State (Tex.App. 1993) 871 S.W.2d 756, 763, the appellate court concluded that defense counsel's performance in not asking certain questions "demonstrates a lack of preparation." The record in this case, by contrast, does not demonstrate ineffective assistance; rather, it simply fails to disclose the reasons for counsel's actions, fails to prove that they were not based on sound tactical considerations, and fails to establish prejudice. In Walker v. State (Tex.App. 2006) 195 S.W.3d 250, 256-257, a prosecution for resisting arrest, six prospective jurors identified themselves as working or having close relatives who worked in law enforcement. When the prosecutor asked them whether this background would affect them as jurors, one said it depended on the situation, and several others told stories about officers being injured or killed by suspects resisting arrest. Defense counsel asked no questions at all. Three of the people with law enforcement connections served as jurors. In a hearing on a new trial motion, defense counsel said it never occurred to him to ask whether the prospective jurors would be inclined to find law enforcement witnesses more credible and said that since he had been a law enforcement officer himself, he was certain they would not be biased. There is nothing similar in this case. Muratalla's defense counsel never stated any reasons for his tactical decisions, let alone obviously inadequate ones like these. Finally, in People v. Wagner (N.Y.App. 1984) 104 A.D.2d 457, 459, among numerous other problems (e.g., he "displayed a forgetfulness of basic principles of criminal law and procedure" and his "opening statement was essentially irrelevant and incoherent"), defense counsel did not challenge any prospective juror peremptorily or for cause, and the result was a jury that "resembled 'a miniature police force,' in that 9 of the 12 jurors had friends or relatives on various police forces, and one juror had two sons who were police officers ...." This case is not similar.
Muratalla's claim of ineffective assistance in conducting voir dire may be more appropriately raised in a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) --------
B. Opening Statement
Next, Muratalla contends that his trial counsel rendered ineffective assistance by not making an opening statement. This argument is without merit. As Muratalla concedes, trial counsel's decision "whether to waive opening statement" is a matter "of trial tactics and strategy which a reviewing court generally may not second-guess." (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Muratalla contends that his trial counsel could not have had a strategic reason for presenting no opening statement because he had already indicated at a prior hearing that his strategy would be to challenge the prosecution's proof of intent and gang-relatedness, and there was no reason not to call the jury's attention to these points in an opening statement. Even under these circumstances, however, it could be a sound tactic to wait until after the prosecution presented its evidence to make a final decision about how best to defend the case. The record shows it was not professionally unreasonable to not make an opening statement, or there is a reasonable probability that making one would have led to a different outcome.
C. Prior Crimes Evidence
Muratalla argues that several items of evidence revealed prior crimes of which Muratalla had been suspected or accused, and that this evidence was inadmissible and prejudicial. He says his trial counsel rendered ineffective assistance by not objecting to it.
As part of his expert testimony, Officer Harless testified that he reviewed 16 records of Muratalla being booked in to jail. These records supported Harless's opinion that Muratalla was a gang member because, in each booking, Muratalla "claimed South, Southside, Bakers or something to that effect" so that he would be housed away from Norteños. Muratalla says the booking records were irrelevant, and Harless should not have been permitted to mention them, because they showed only that Muratalla was a Sureño—not a Loma Baker—and the prosecution's theory was specifically that he was a Loma Baker. We disagree. The Loma Bakers are a subset of the Sureños. Evidence that someone is a Sureño has a tendency in reason to support the proposition that he is a member of a particular subset since, logically, he could not be a member of the subset unless he were also a Sureño. Further, all the records were probative. A current denial of gang membership is more effectively undermined by many past instances of membership affirmance, spanning a significant period of time, than by a few past instances. The fact that evidence tends to prove a charged allegation strongly, rather than weakly, does not show that it is substantially more prejudicial than probative under Evidence Code section 352. We do not think that statute entitled Muratalla to hide most of his many admissions of gang membership in order to avoid revealing his many arrests to the jury. Trial counsel's failure to object was not professionally unreasonable.
A similar analysis applies to Muratalla's argument that the booking records should have been objected to as cumulative because Harless testified that he also knew Muratalla was a Sureño gang member from Bakersfield from his tattoos. The tattoos were comparable to admissions on Muratalla's part that he was a gang member. A larger number of admissions adds weight to the prosecution's contentions, and does so fairly. Evidence that a gang member has frequently made a point of declaring to the world that he is a gang member is not unduly prejudicial evidence in support of gang allegations.
Muratalla discusses seven other points on which he believes his trial counsel should have raised the objections that evidence was irrelevant, was inadmissible hearsay, was substantially more prejudicial than probative under Evidence Code section 352, or all three:
1. Harless mentioned the 19 offense reports he reviewed, but said only four of these were significant for purposes of his expert testimony. Muratalla maintains that the existence of the other 15 was irrelevant and prejudicial.
2. Harless discussed Muratalla's contact with police on August 21, 2009, saying it was significant because police found Muratalla in the company of a Loma Baker member. Harless went on, however, to reveal other details of that contact: Muratalla put something in his mouth which the officers believed was heroin; his companion was in possession of a counterfeit check; and Muratalla and his companion were both arrested for parole violations at that time. Muratalla says that all these details were irrelevant because Harless said the contact was significant only because Muratalla was found with another gang member; and they were prejudicial because they were evidence of Muratalla's bad character.
3. Harless said Muratalla's April 1, 2005, contact with police was significant for purposes of his expert opinion because Muratalla was arrested for vehicle theft, which Harless said was a primary activity of the Loma Bakers. But Harless went on to say that Muratalla had been disturbing the peace before the officers arrived, that he discarded a methamphetamine pipe when they arrived and was arrested for possession of drug paraphernalia, and that he was in possession of counterfeit money. Again, Muratalla argues that this additional information was irrelevant and prejudicial.
4. Further, Muratalla was never charged with vehicle theft as a result of the April 1, 2005, contact, so the evidence of that contact was not even relevant to show he committed a vehicle theft.
5. Even if Muratalla did commit a vehicle theft, he argues, that would not show he is a member of a gang that commits vehicle thefts. Many people commit vehicle thefts without being gang members.
6. Harless said the report of Muratalla's contact with police on April 14, 2004, was significant for purposes of his expert opinion because Muratalla was found in possession of a knife and arrested for carrying a concealed weapon, weapon possession being a primary activity of the Loma Bakers. Again, Muratalla argues that the evidence did not support Harless's opinion. Offenses that form the primary activities of gangs are often committed by people who are not gang members.
7. In a recorded statement, the victim, Delarosa, said he participated in a beating administered to Muratalla as gang discipline on the orders of gang leaders who were dissatisfied with Muratalla's performance as a gang member. Muratalla had been "beating people up too much." The recording was hearsay admissible as a prior inconsistent statement, because Delarosa testified that he did not remember
the incident. Muratalla argues, however, that the reason for the gang discipline—that Muratalla was beating people up too much—was not part of the prior inconsistent statement, and was prejudicial.
Assuming meritorious objections existed on each of these points, we conclude that Muratalla has not shown he was prejudiced by counsel's failure to make them. He says he was prejudiced because evidence that should have been excluded was admitted and tended to show he had a bad character, making the jury more likely to find him guilty as charged, more likely to find him to be a gang member, and more likely to find the offense to be gang-related. By arguing for a lesser offense, however, Muratalla effectively conceded that he shot Delarosa and argued only that he had no intent to kill him. There was nothing about Muratalla's prior arrests and offenses that tended to show he was the kind of person who intended to kill others. As for the gang allegations, there was plentiful evidence in support of them that is unaffected by the issues raised here. There is no reasonable probability that Muratalla would have obtained a better outcome if his counsel had made objections on these issues.
D. Defense Counsel's Closing Argument
Defense counsel's closing argument developed two themes: the evidence did not show that Muratalla had an intent to kill Delarosa and the conflict between the two men was over a woman and was not gang-related.
Muratalla now argues that this closing argument was constitutionally inadequate because counsel could have done a better job of developing these themes. He presents a list of details he feels trial counsel should have focused on:
1. Defense counsel did not emphasize the elements necessary for a finding of premeditation and deliberation; he should have done so in response to the prosecutor's argument that premeditation and deliberation are like deciding whether to proceed through a yellow light.
2. Defense counsel did not reiterate the jury instruction stating that if Muratalla's intent were subject to two reasonable interpretations, the jury was required to adopt the interpretation under which Muratalla was less culpable.
3. Defense counsel did not point out certain facts arguably undermining the claim that he intended to kill and supporting the view that he acted thoughtlessly and impulsively: Muratalla left the scene with bullets left in his gun and Delarosa still standing; there was no evidence that Muratalla expected to encounter Delarosa that day and brought a gun with a plan to shoot Delarosa in mind; Muratalla could have been carrying the gun for protection; Delarosa said Muratalla looked "tweaked out" this was not suggestive of a cold and calculating mood; Delarosa told Muratalla to leave and Muratalla responded by saying "fuck this" and drawing the gun.
4. Defense counsel did not emphasize facts that could undermine the theory that the shooting was gang-related: When Muratalla approached Delarosa and asked if he was Fernando Delarosa from the south side, he could have simply been trying to ascertain Delarosa's identity, not challenging him to engage in a gang conflict; Delarosa had never had a conflict with a Loma Baker before and while he had seen Loma Bakers members "trying to gang bang on" Southside Bakers, he classified these as personal conflicts, not gang conflicts; although Delarosa knew Muratalla as "Oso from Loma Bakers," it remained possible that (unknown, somehow, to Delarosa) Muratalla and Delarosa were actually both members of Southside Bakers.
Muratalla's critique of the fine-grained details of counsel's closing argument does not establish ineffective assistance of counsel. Our review of the professional reasonableness of counsel's tactical choices is deferential, and in the absence of record evidence of the reasons for counsel's approach, we do not find reversible error unless there simply could be no good reason for it. The record does not reveal counsel's reasons, and it is not the case that there could be no good reason for presenting the defense themes more briefly than Muratalla now wishes his counsel had done. Further, Muratalla's critique does not demonstrate prejudice. We cannot say it is reasonably probable that the jury would have reached a different verdict if defense counsel's closing argument had focused on the details Muratalla now lists.
E. Failure to Object to Prosecutor's Closing Argument
An eyewitness, Sergio Merino, testified that he saw Muratalla pointing the gun "[d]irectly at him," i.e., at Delarosa. In his summation, defense counsel made remarks that appeared to be intended to undermine this testimony. He said that because the police searched for and did not find evidence of bullet strikes on buildings downrange from Delarosa, the barrel of Muratalla's gun must not have been pointed "in the direction of the person running away," i.e., must not have been pointed toward Delarosa. In his rebuttal argument, the prosecutor made the following remarks, apparently in response to these comments by defense counsel:
"Now, in this case, you're only allowed to rely upon the evidence. You're not allowed to rely upon conjecture—oh, he must have [been] shooting in the air. No.
"Sergio [Merino] got on the stand. He was asked where was the gun pointed. Directly at the person running away. You have an eyewitness to the event telling you exactly where the gun was pointed.
"Okay. Whether a tiny little .22 shell was found in a wall, that's—you can't get the inference from that that he was shooting wildly into the air.
"The direct evidence of an eyewitness tells you where Mr. Muratalla was shooting. That is what you can rely upon.
"There's no evidence that he was shooting in the air, none whatsoever. You cannot rely upon that.
"You can rely upon the evidence, the documents, the photos, the testimony—not conjecture, not stuff that's just made up."
Muratalla now argues that these remarks misstated the law by implying that the jury could not rely upon a lack of evidence in concluding that there was a reasonable doubt of his guilt. (See People v. Simpson (1954) 43 Cal.2d 553, 566 ["[R]easonable doubt ... may well grow out of the lack of evidence in the case as well as the evidence adduced."].) He says his counsel rendered ineffective assistance by not making an objection to that effect.
We do not see how an objection on this point could have made any difference to the jury. It is undisputed that a bullet from Muratalla's gun struck Delarosa. Muratalla does not suggest that the bullet ricocheted. This means the gun necessarily was fired directly at Delarosa at least once. If all four shots had missed, Muratalla could rationally have made an argument that he never pointed the gun directly at Delarosa, and then used that argument to support a further argument that he had no intent to kill. As it was, however, the eyewitness's testimony that the gun was pointed "directly at" Delarosa only stated what was already obvious from the undisputed facts. An objection to the prosecutor's comments about evidence versus conjecture, even if sustained, therefore could not rationally have had any impact on the jury's conclusions about whether the gun was fired directly at Delarosa. It follows that there is no reasonable probability that Muratalla would have obtained a better outcome if his counsel had objected.
Muratalla also briefly mentions that during his rebuttal argument, the prosecutor implied that any shooting in which a victim is injured is always attempted murder and never assault with a firearm. He does not present any arguments or cite any authorities on this subject. He also does not mention that the prosecutor made similar comments during his initial closing argument, that defense counsel objected, that the objection was sustained, or that defense counsel explicitly criticized the prosecutor on this point in his closing statement. Because Muratalla does not present any arguments or cite any authorities to support this subject, we conclude that he has forfeited this issue. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366 fn. 2. [Points that are not supported by analysis of the facts and citation of legal authority are deemed forfeited.].)
DISPOSITION
The true findings on the Penal Code section 186.22, subdivision (b) gang enhancements on counts 1 and 2 are reversed. On count 3, the felony of carrying a loaded firearm in public while being an active gang member (former Pen. Code, § 12031, subd. (a)(2)(C)), the judgment is modified to reduce the offense to the misdemeanor of carrying a loaded firearm in public (former Pen. Code, § 12031, subd. (a)(2)(G)). The case is remanded to the trial court for resentencing and possible retrial. In exercising its sentencing discretion, the trial court shall proceed in light of Penal Code sections 12022.5, subdivision (c), and 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 1). The judgment is otherwise affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SMITH, J.