Opinion
E071941
10-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH WILLIAM RAMIREZ, Defendant and Appellant.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Stephanie H. Chow and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1400855) OPINION APPEAL from the Superior Court of Riverside County. Jerome E. Brock, Judge. (Retired judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Stephanie H. Chow and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following a jury trial in March 2018, defendant, Joseph William Ramirez, was found guilty as charged of the premeditated first degree murder of Jairo F. on February 23, 2014. (Pen. Code, § 187, subd. (a).) The jury also found that defendant personally used a firearm in the commission of the murder (§ 12022.53, subd. (d)), and that defendant intentionally killed Jairo F. while an active participant in, and to further the activities of, a criminal street gang (§ 190.2, subd. (a)(22)). Defendant was sentenced to life without parole for the murder conviction, plus 25 years to life for the personal use enhancement.
Unspecified statutory references are to the Penal Code.
Following trial and before sentencing, the court granted defendant's motion, pursuant to People v. Marsden (1970) 2 Cal.3d 118, to relieve his court-appointed trial counsel. Thereafter, defendant's newly appointed counsel moved for a new trial on the ground that defendant's trial counsel rendered ineffective assistance of counsel, and the court denied the motion. Following sentencing, and on the People's motion, the court dismissed allegations that defendant committed the murder while released on bail, and had two prison priors, a prior serious felony conviction, and a prior strike conviction.
In this appeal, defendant raises three related claims of error concerning the gang special circumstance allegation and the admission of gang evidence against him: (1) the trial court abused its discretion in denying his pretrial motion to bifurcate the gang special circumstance allegation from the murder charge and personal use allegation; (2) in failing to exclude particular gang evidence, the court abused its discretion under Evidence Code section 352 and violated his federal due process right to a fair trial; and (3) his trial counsel rendered ineffective assistance in failing to object to the admission of particular gang evidence. We conclude that the bifurcation motion was properly denied and that all of the gang evidence was properly admitted.
Defendant further claims, and the People and we agree, that his $10,000 parole revocation fine must be stricken as unauthorized because his sentence does not include a determinate term. Lastly, defendant claims the court violated his due process rights in imposing a $10,000 restitution fine without determining that he had the ability to pay it. We modify the judgment to reduce the $10,000 restitution fine to $300 because the record shows that the court intended to impose only the minimum mandatory restitution fine. We also conclude that the imposition of the intended $300 restitution fine, without an express determination of defendant's ability to pay it, is harmless beyond a reasonable doubt.
We therefore modify the judgment to reduce the $10,000 restitution fine to $300 and to strike the $10,000 parole revocation fine. We affirm the judgment in all other respects.
II. FACTUAL BACKGROUND
A. The Shooting
Around 8:16 p.m. on February 23, 2014, a Riverside County Sheriff's Department deputy received a dispatch call of gunshots fired in San Jacinto. Another call reported that a person was down. Around 8:23 p.m., the deputy arrived at a San Jacinto apartment complex and found the body of Jairo F. in the parking lot, lying on its back and bleeding from the back of the head. Jairo F. was dead; his eyes were partially open, his pupils were fixed, and he had no pulse. It was "extremely dark" when the deputy arrived at the apartment complex.
Jairo F. died from a bullet that entered the back of his neck and severed his brain stem from his upper cervical spinal cord. The bullet was lodged in the base of his skull. There were no expended shell casings at the scene, and no bullet strikes were found on the pavement or elsewhere near Jairo F.'s body. No weapons were found on Jairo F. B. Witnesses to the Shooting
A visitor to the apartment complex was in her brother's first floor apartment when she heard three gunshots coming from the parking lot. After the shots were fired, the visitor heard the sound of footsteps "running" past the apartment and through a nearby pedestrian gate. Another person who lived near the complex heard two gunshots around 8:16 p.m. This person told a sheriff's deputy that, after she heard two gunshots, she saw the silhouette of a person run south on Minor Street, then turn east on Shaver Street.
Two sheriff's investigators interviewed Johnny A. on February 24, 2014, the day after the shooting, and a recording of the interview was played for the jury. During the interview, Johnny A. said he was sitting outside, in the middle of the apartment complex, when "a young cat," Jairo F., approached him, and said he had $20 and that he was looking for someone named "Chuco," from whom he could buy drugs.
While Jairo F. was talking to Johnny A., a man "from SJ" with "SJ" "tats" on his face, whom Johnny A. knew as "Gangster G.," walked up and said, "What?" to Jairo F. Johnny A. identified defendant from a photo as Gangster G. Johnny A. had met defendant once before, when defendant asked him, "Where you from?"; but Johnny A. did not claim a gang. Johnny A. had also seen defendant in the apartment complex two or three times before.
After defendant said, "What?" to him, Jairo F. said to defendant, "I'm not talkin' to you." Defendant said, "What do you mean you ain't talkin' to me?" At some point, Jairo F. also said he was from "East Los" and "Fuck San Ja." Defendant and Jairo F. then went to the parking lot behind the apartment complex, and Johnny A. thought they were going to "throw blows." Johnny A. ran away when he saw defendant take out a "little handgun." Jairo F. also turned and ran, and defendant fired the gun. Johnny A. heard two shots, separated by a pause.
At the time of trial, Johnny A. was in custody following his arrest for failing to appear in court in this case. He claimed he did not remember anything about a shooting; and he denied knowing defendant, having seen defendant before, or making any statements to law enforcement concerning the shooting.
Johnny A. also said he saw "Anthony" run away after defendant displayed the handgun. Anthony M. was 14 years old at the time of the shooting. During an initial interview on February 27, 2014, he told investigators he did not see the shooting, but he later asked to speak to the investigators again and, during a second interview on March 3, 2014, he said he saw "Gangster" shoot Jairo F. A recording of Anthony M.'s second interview was played for the jury.
During his second interview, Anthony M. said he was outside his girlfriend's apartment, walking toward the parking lot, when he heard Jairo F. say he did not have Gangster's money. He then heard Gangster tell Jairo F. to go to the parking lot, and he thought the two men were going to fight. After that, he could not hear Gangster or Jairo F. say anything, but he saw Jairo F. get into a fighting stance; then he saw Gangster pull out a gun. Jairo F. then ran to the middle of the parking lot. Gangster shot Jairo F. once, ran away, then turned and shot Jairo F. again. Anthony M. recalled that Gangster was wearing a black beanie and what Anthony M. believed were black shorts and a black coat. He knew that Gangster was a gang member; sometime before the shooting, Gangster was in his house talking to his mother. He did not want his mother to know he was talking to investigators. He identified a photo of defendant as Gangster.
At trial, Anthony M. again identified defendant as Gangster but denied he saw the shooting. He claimed he was in a smaller parking lot of the apartment complex when he heard gunshots and ran away. But later during his testimony, he admitted he told the investigators that he saw defendant pull a small handgun from his waistband and shoot the victim. He also admitted he told investigators that, after the shooting, he saw defendant run toward Minor Street as if defendant were heading toward Shaver Street. C. Additional Prosecution Evidence
Around 9:29 p.m. on February 23, 2014, a Hemet police officer, while on patrol in his marked police vehicle, saw defendant driving a gold Ford Contour with defendant's girlfriend, Cherelle B., in the front passenger seat. The officer attempted a traffic stop after defendant veered the car to the wrong side of the road. After the officer activated his emergency lights, defendant slowed down; continued to drive for around 150 yards; stopped the car at an angle so the officer could not see its driver's side; yelled at the officer to "hurry up"; then yelled that he was taking his girlfriend to the hospital. The officer followed defendant to a nearby hospital; but defendant drove past the entrance to the emergency room, stopped the car, and got into the back seat, while Cherelle B. got into in the driver's seat. Meanwhile, the officer called for backup, and defendant and Cherelle B. were arrested after additional officers arrived, including gang task force officers. At the time of his arrest, defendant was wearing white shorts, tall white socks, and white shoes. No gunshot residue tests were performed on defendant or his clothing.
Cherelle B. later told an investigator that, around 8:30 p.m. on February 23, 2014, defendant picked her up at the home she shared with defendant, and a "white guy" she did not know was with defendant and was driving a white truck. They went directly to Joseph F.'s nearby home on Agape Avenue, stayed for a brief period, then got into a gold Ford Contour and left. Cherelle B. saw that defendant was acting "different and scared"; he talked about hiding a gun or taking a gun somewhere; and he also talked about a shooting. But Cherelle B. said she did not see a gun and did not know where defendant hid the gun. The interview ended shortly thereafter when Cherelle B. did not want to continue talking. The gun used in the shooting was never recovered.
At trial, Cherelle B. refused to testify, even though she had been granted immunity for criminal prosecution for her testimony and did not have the right to invoke her Fifth Amendment privilege not to incriminate herself.
On February 23, 2014, defendant was wearing a GPS-equipped ankle monitor that recorded his location every five minutes. The GPS device was accurate within four feet in the open, between four feet and 10 feet in a vehicle, and within 15 to 20 feet inside a building. It showed that, on February 23, 2014, defendant left his San Jacinto residence at 4:29 p.m. and arrived at the Agape Avenue residence at 4:34 p.m. He left the Agape residence at 5:04 p.m. and went to various locations in San Jacinto. He arrived at the apartment complex at 7:44 p.m., and he left that location at 8:15 p.m. His wife and daughter lived in the apartment complex.
At 8:15 p.m., defendant was near the south entrance to the apartment complex, at the intersection of Minor and Shaver Streets, and he was moving eastward. He was back at his own residence at 8:30 p.m., and at 8:40 p.m., he was again at the Agape Avenue residence. He left the Agape residence at 9:20 p.m. His location was tracked through 10:05 p.m., when he was arrested in Hemet and jailed.
Joseph F., a San Ja gang member known as "Danger," lived at the Agape Avenue residence, which was around two miles from the apartment complex. Several days after the shooting, Joseph F.'s fiancé at the time, Jessica F., told investigators that she and Joseph F. arrived home between 8:30 and 8:40 p.m. on February 23, 2014, and she went directly to bed. Shortly thereafter, she heard Cherelle B. and defendant in her home and heard them leave around 9:20 p.m. Defendant and Cherelle B. had been at the Agape residence a number of times. D. Gang Evidence
1. Defendant's "San Ja 1st Street" Gang Membership
Following his arrest on the night of the shooting, defendant waived his Miranda rights and told the arresting officer that he was a "San Ja 1st Street" gang member and that his moniker was "G" or "Gangster." The arresting officer completed a "gang field interrogation card" for defendant, which was his practice in dealing with gang members. When he arrested defendant, the officer did not know that defendant was a suspect in the shooting of Jairo F.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
In 1998, another police officer conducted a "field interview" with defendant. Defendant was 14 years old at the time. He told the officer that he was a San Ja gang member; he had been "jumped into" the gang around one month earlier; and his moniker was Gangster.
In October 2004, another police officer conducted a field interview and completed a field identification card on defendant. Defendant again admitted he was a "San Ja" gang member. He had multiple gang-related tattoos, including "CP" on both sides of his eyes, signifying "Calle Primera" or "1st Street"; and he was wearing a custom-made hat with a "CP" logo on it.
In November 2013, a member of the Riverside County Regional Gang Task Force contacted defendant. Defendant said he was a member of the San Jacinto 1st Street gang. He had a tattoo of a "G shield" or "Aztec war shield" on his stomach, which is commonly awarded to gang members who are "loyal soldiers" and who "put work in" for the gang. He also had a "San Ja" tattoo on his chest and a "San Jacinto" tattoo on the back of his head. He said he was "jumped into" the gang at age 12 and was "validated as a Mexican Mafia associate."
2. Expert Gang Testimony
Investigator David Hankins, from the Riverside County District Attorney's Office, testified as a gang expert for the prosecution. In February 2014, Investigator Hankins was a member of the Riverside County Regional Gang Task Force, assigned to the Hemet and San Jacinto regions. He had been involved in over 500 gang investigations, including 100 investigations involving the San Ja 1st Street gang, and he had testified over 40 times concerning the San Ja 1st Street gang.
Investigator Hankins described the general customs and habits of criminal street gangs. Gangs are generally divided along racial lines and have geographical territories and hierarchical organizational structures. Being "jumped in" to a gang is the most common way to join a gang and entails being violently assaulted by fellow gang members for a period of time. The concept of being jumped in means "blood in and blood out"— "you bled to get into the gang" and to get out, "you have to do the same."
"Putting in work" means committing crimes or violence for the gang, or bringing in money, drugs, vehicles, or women for gang members. Putting in work shows loyalty to the gang and increases a gang member's stature within the gang. Having "respect" in the gang culture means being feared; a gang member earns and increases respect, and the gang's respect, by using violence, force, and intimidation. Having respect, or being feared, decreases the likelihood that other gangs will come into the gang's territory and intercept its drug sales because other gang members know the gang will retaliate with violence. Gang culture also requires a gang member to act if someone disrespects his gang; otherwise, the gang member may be assaulted by other gang members. If someone owes the gang money, a gang member has to collect it or be assaulted by fellow gang members. By instilling fear of the gang in the community, gangs also make it less likely that people will report gang crimes or testify against gang members. In gang crime investigations, witnesses are reluctant to come forward or speak to law enforcement because they fear gang retaliation.
In the gang culture, the term "paperwork" is "used in [the] custody setting" and refers to identifying "who said what" against the gang. Incarcerated gang members try to obtain information from their defense counsel concerning the identities of witnesses who made statements to law enforcement about the gang's crimes, so that nonincarcerated gang members can intimidate or retaliate against the witnesses. This explains why witnesses may initially report what they saw but later claim, "No, I didn't say that. I don't remember," when called to testify in court.
At the time of trial, the "San Ja 1st Street" gang was the "main" Hispanic gang in San Jacinto. In February 2014, it had around 150 members. In Investigator Hankins's opinion, the San Ja 1st Street gang met the statutory definition of a criminal street gang. (§ 186.22, subd. (f).)
The gang's primary activities consisted of homicides, attempted homicides, shootings, vehicle thefts, and narcotics sales. (§ 186.22, subd. (f).) Its predicate crimes consisted of two attempted murder convictions and four murder convictions, each committed by San Ja 1st Street gang members: the December 2009 attempted murder of a police officer, with gang enhancements; a November 2011 murder, with a gang enhancement; and three murders committed in 2013, by Raymond B., with gang enhancements. (§ 186.22, subd. (e) [defining pattern of criminal gang activity].)
The gang's signs and symbols included "Calle Primera"; "CP"; "1st Street"; "Inland Empire"; "Insane Empire"; "M" for La Eme; Aztec art; the color blue to signify Southern California; and the kanpol symbol, which is the Mayan number for 13, and is comprised of two bars, each representing five, plus three dots, because "M" is the 13th letter of the alphabet. All Southern California Hispanic gangs are loyal to "La Eme," the Mexican Mafia, a gang comprised of all Southern California Hispanic gang members incarcerated in state prison or county jails.
La Eme was formed by incarcerated Hispanic gang members in order to protect themselves from inmates from other races and ethnicities. At some point, La Eme assumed control over all incarcerated Southern California Hispanic gang members. There were "very, very few" La Eme or Mexican Mafia "members"; most were considered "associates."
In order to stay in La Eme's good graces, Southern California Hispanic gang members had to pay "taxes"—a portion of their drug sales—to La Eme. If they did not, La Eme would "green-light" the gang member—target the gang member for a violent assault or a homicide. If asked, Southern California Hispanic gang members also had to "put in work" for La Eme.
The tattoos "IE," "San Ja," and "SJ" were common among San Ja 1st Street gang members. The location of tattoos on a gang member's body signify his level of commitment to the gang, and facial tattoos signify a very high level of commitment because they cannot be covered.
At the time of his arrest on February 23, 2014, defendant's tattoos included a "C" and a "P" under each eye, for Calle Primera; "Inland Empire" on his clavicle area; "San Ja" on his chest; a "G shield" on his stomach—an earned tattoo which is typically given in prison through acts of violence; "Southern Gangster" on his right hand; various Aztec-themed tattoos, including a kanpol on his right arm; "Till I die," signifying his level of commitment to the gang; a handgun on his right torso; "Sureno," signifying "southerner"; his last name, Ramirez; another "SJ"; a large "San Jacinto" on the back of his head; and a "1" and a "3" on each shin.
The prosecution played a recording of a "jail call" to defendant, made three days before the shooting, on February 20, 2014, from Raymond B., a jail inmate and San Ja 1st Street gang member. During the call, Raymond B. said he had an "SJ" tattoo on his face. When defendant told Raymond B. he should have gotten a "CP" tattoo instead, Raymond B. said, because defendant had a CP tattoo, he would be defendant's "other half."
During the call, defendant said he was "about to take care of that thing . . . them two fools . . . ." Defendant then asked Raymond B. whether he had "g[otten] those papers or what?" Raymond B. responded that he had gotten his papers—"I got mine"—but he was "waiting for the names," and he would get "it" to defendant "ASAP." In Investigator Hankins's opinion, Raymond B. was telling defendant that "he'll get him the paperwork as soon as he gets it from his attorney." The investigator explained, "eventually the defense gets all the information regarding who's testified, who saw what, and who is going to say what. And once you know those names, you can go knock on their door."
During the call, defendant also mentioned his "girl" Cherelle, and said she was "from the neighborhood too." Cherelle B. was an associate of the San Ja 1st Street gang.
Joseph F. was a "documented, self-admitted" San Ja gang member whose moniker was "Danger." Sometime between 2013 and 2015, Joseph F. and his wife, Jessica F., drove by the Hemet Police Department's "off-site building, which nobody [was] supposed to know about," but which was "not that secret." The F.'s took pictures of the building and all the officers' vehicles.
Investigator Hankins further testified that, in the gang culture, if someone tells a San Ja 1st Street gang member, "Fuck San Ja," that would be a sign of disrespect that had to be met with "immediate violence." If the same person who insulted the gang also owed the gang a drug debt, that would require the gang member to "take action." In Investigator Hankins's opinion, defendant was an active member of the San Ja 1st criminal street gang on February 23, 2014.
Based on a hypothetical scenario tracking the circumstances of the shooting, Investigator Hankins opined that the shooting "further[ed] the activities" of and "benefited the [San Ja 1st Street gang] directly." It did so by enhancing respect for and fear of the gang in the community. It was significant that the shooting occurred in the San Ja 1st Street gang's territory, and in front of witnesses, and that defendant went to a fellow gang member's house after the shooting. These circumstances showed defendant was willing to immediately kill for his gang and went to a safe place in order to aid his escape.
III. DISCUSSION
A. Defendant's Motion to Bifurcate the Gang Special Circumstance Allegation Was Properly Denied
Before trial, the defense moved to bifurcate the trial on the gang special circumstance allegation from the murder charge and the personal use enhancement. Alternatively, the defense moved to limit or exclude particular gang evidence under Evidence Code section 352.
The People opposed the motion on the ground that all of its proffered gang evidence was not only relevant to, but was "inextricably tied up" with, issues concerning the murder charge: defendant's identity as the shooter; whether defendant had a motive to kill Jairo F.; and whether defendant intended to kill Jairo F. (Evid. Code, § 1101, subd. (b).) Following a pretrial hearing, the court denied the motion in its entirety after concluding that the probative value of the gang evidence outweighed its potential for undue prejudice. (Evid. Code, § 352.)
In denying defendant's bifurcation motion, the court admonished defense counsel to object during trial if he believed the prosecution's gang expert was "g[oing] into an area" that would violate People v. Sanchez (2016) 63 Cal.4th 665, 685-686 [gang expert may not "relate as true" "case-specific facts asserted in hearsay statements" unless the statements are "independently proven by competent evidence or covered by a hearsay exception"]. Defendant does not raise a Sanchez claim in this appeal.
Defendant claims the trial court abused its discretion in denying his motion to bifurcate the trial on the gang special circumstance allegation. He argues the prosecutor "elicited a massive amount of evidence regarding gangs, some of which was relevant" to the murder charge and the gang special circumstance allegation, some of which was "highly prejudicial." We find no abuse of discretion.
1. The Court's Authority To Bifurcate the Gang Special Circumstance Allegation
We first address whether the trial court had authority to bifurcate the gang special circumstance allegation. Defendant argues the court had such authority; the People argue it did not. The People argue that section 190.1 "provides for a unitary trial" on a first degree murder charge and a special circumstance allegation, unless the special circumstance allegation is that defendant was convicted in a prior proceeding of first or second degree murder. (§ 190.2, subd. (a)(2).) The People misinterpret the scope and applicability of section 190.1.
By its terms, section 190.1, titled, "Procedure in case involving death penalty," only applies in death penalty cases. The statute provides: "A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows: (a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2, except for a special circumstance pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree." (§ 190.1, subd. (a), italics added.)
The People did not seek the death penalty in this case. Thus, this was not a case in which the death penalty "may" have been imposed. (§ 190.1.) It follows that section 190.1's proviso—that all special circumstance allegations, except prior murder special circumstance allegations, shall be tried with or "at the same time" as the underlying murder charge—did not apply here. (§ 190.1, subd. (a).)
Rather, a trial court's duty and authority to control the conduct of a criminal trial, under section 1044, vests the court with discretion to bifurcate a gang special circumstance allegation from a murder charge and other enhancement allegations. Section 1044 provides: "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." The statute plainly suggests that trial courts may bifurcate a special circumstance allegation from its underlying first degree murder charge, where necessary or advisable to ascertain the truth of the murder charge and the special circumstance allegation.
Our Supreme Court has interpreted section 1044 as vesting trial courts with discretion to bifurcate prior conviction allegations from charged offenses (People v. Calderon (1994) 9 Cal.4th 69, 72, 74-75) and to bifurcate gang enhancement allegations from charged offenses (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez)). "General authority to bifurcate trial issues may be found . . . in section 1044, which vests the trial court with broad discretion to control the conduct of a criminal trial . . . ." (Calderon, at pp. 74-75.) It stands to reason that the trial court's general authority to bifurcate trial issues, under section 1044, authorizes the trial court to bifurcate a special circumstance allegation from its underlying first degree murder charge, and from other enhancement allegations—in nondeath penalty cases, that is, when section 190.1 does not prohibit the bifurcation.
2. Defendant's Bifurcation Motion Was Properly Denied
We review the trial court's denial of a bifurcation motion (§ 1044) for an abuse of discretion. (Hernandez, supra, 33 Cal.4th at p. 1048.) Although the trial court was authorized to bifurcate the gang special circumstance allegation in this case (§ 1044), it did not abuse its discretion in denying defendant's bifurcation motion.
In Hernandez, two defendants challenged the trial court's denial of their motion to bifurcate gang enhancement allegations from the robbery charges against them. (Hernandez, supra, 33 Cal.4th at p. 1044-1045.) The Hernandez court generally observed that "the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Id. at p. 1048; see § 186.22, subd. (b).) The court more specifically explained: "[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, at pp. 1049-1050.)
Generally, gang special circumstance allegations are, by definition, even more inextricably intertwined with the first degree murder charges to which they are attached than gang enhancement allegations are to the variety of felony charges to which they may be attached. A gang special circumstance allegation specifically relates to the underlying first degree murder charge, in that it alleges, "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Thus, a gang special circumstance allegation will often be proved by much of the same evidence that proves the first degree murder charge. Indeed, courts have admitted gang evidence when, "the very reason for the crime is gang related." (People v. Ruiz (1998) 62 Cal.App.4th 234, 239.)
In contrast, the evidence relevant to prove a gang enhancement allegation may, in some cases, have little to do with the evidence relevant to prove the underlying felony charge. (See, e.g., People v. Albarran (2007) 149 Cal.App.4th 214, 230 ["Certain gang evidence . . . had no legitimate purpose in this trial."]; cf. Hernandez, supra, 33 Cal.4th at p. 1049 ["evidence of gang membership is often relevant to, and admissible regarding, the charged offense"].) Thus, there is generally even less need to bifurcate a gang special circumstance allegation than there is to bifurcate a gang enhancement allegation. (See Hernandez, at p. 1048.)
Whenever evidence or allegations sought to be severed or bifurcated are relevant to proving a charged offense, the burden is on the party seeking the severance or bifurcation "to clearly establish that there is a substantial danger of prejudice requiring that the charges" and allegations "be separately tried." (Hernandez, supra, 33 Cal.4th at p. 1050 [discussing defendant's duty to show substantial danger of prejudice requiring severance of charged offenses, or bifurcation of enhancement from charged offense].) The defendants in Hernandez did not meet this burden; hence, the trial court did not abuse its discretion in refusing to bifurcate the gang enhancement allegations from the robbery charges. (Id. at pp. 1046, 1050-1051.)
The Hernandez court reasoned that "much of the gang evidence" was relevant to prove the robbery charge against the defendants who had acted in concert in committing the robbery, particularly the defendants' motive and intent in committing the robbery, as well as to prove the elements of the gang enhancement. (Hernandez, supra, 33 Cal.4th at pp. 1050-1051.) Further, none of the gang evidence was "particularly inflammatory" or otherwise presented a substantial risk of prejudice to the defendant, even if some the gang evidence would not have been admitted in a bifurcated trial solely on the robbery charge. (Id. at p. 1051.) The court thus concluded, "Any evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants' actual guilt. Accordingly, defendants did not meet their burden 'to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' [Citation.] The court acted within its discretion in denying bifurcation." (Ibid.)
The Hernandez court's use of the term "prejudice" was synonymous with "undue prejudice" as that term is used in Evidence Code section 352. (See Hernandez, supra, 33 Cal.4th at p. 1051.) Under Evidence Code section 352, "evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
Similarly here, much of the gang evidence was highly probative of several issues concerning defendant's guilt of the first degree murder charge: defendant's identity as the shooter and his motive and intent in committing the shooting. The gang evidence, in combination with other evidence, helped to establish defendant's identity as the shooter. The gang evidence showed that defendant was an active member of the San Ja 1st Street gang at the time of the murder. This bolstered the credibility of the subsequently retracted pretrial statements of Johnny A. and Anthony M., identifying defendant as "Gangster" and as the person who shot Jairo F. The gang evidence also showed that defendant had a motive to shoot and kill Jairo F.—to retain and enhance "respect" for his gang following Jairo F.'s "Fuck San Ja" insult to the gang. The gang evidence also showed that defendant shot Jairo F. with intent to kill, a necessary element of the first degree murder charge, rather than to wound or frighten him. In sum, the gang evidence explained the shooting and was highly probative of defendant's identity as the shooter, as well as his motive and intent in committing the shooting.
Additionally, to the extent that any of the gang evidence would not have been admissible in a bifurcated trial solely on the first degree murder charge and the personal use allegation, defendant did not demonstrate that there was a substantial danger that the admission of any of the gang evidence would unduly prejudice him in the eyes of the jury on the murder charge or the personal use allegation. Thus, bifurcation of the gang special circumstance allegation was unnecessary, and the court did not abuse its discretion in denying defendant's motion. (See Hernandez, supra, 33 Cal.4th at pp. 1049-1051.)
Defendant argues, "[t]he problem here is not that all of the gang-related evidence admitted was irrelevant or that all of it was more prejudicial than probative. The problem is some of the evidence was irrelevant, some of the evidence was minimally relevant but highly inflammatory, and much of the evidence was cumulative." Defendant points to three "major areas of concern": (1) the " 'Mexican Mafia' " evidence; (2) the " 'paperwork' " evidence, "that gang members in general and [defendant] in particular obtain witness information from defense counsel in order to intimidate and terrorize non-gang witnesses in gang-related offenses"; and (3) the evidence that Joseph F. and Jessica F., whose home defendant went to shortly after the shooting, had "located the 'secret' gang investigators' building," and had driven by and taken pictures of the building and the officers' private vehicles, between 2013 and 2015.
We disagree that any of this gang-related evidence required the court to bifurcate the gang special circumstance allegation. None of this gang-related evidence was particularly inflammatory, or was otherwise likely to unduly prejudice defendant in the eyes of the jury in determining whether defendant was guilty of the first degree premediated murder charge—the shooting and killing Jairo F.
The Mexican Mafia evidence explained some of defendant's gang-related tattoos and showed he was a seasoned and high-ranking gang member—someone who was motivated to shoot and kill a person who disrespected his gang or owed his gang a drug debt. Defendant's affiliation with the Mexican Mafia demonstrates that he was an active member of San Ja, which pledges its loyalty, as do all Southern California Hispanic gangs, to the Mexican Mafia. The paperwork evidence related to the February 20, 2014 "jail call" to defendant from his fellow gang member, Raymond B. In the jail call, Raymond B. called defendant, "G." and told him he would "get" the names of unspecified persons to defendant "ASAP." This evidence showed that defendant was an active San Ja 1st Street gang member only three days before, and at the time of, the February 23, 2014 shooting. (§ 190.2, subd. (a)(22).)
Lastly, the evidence that Joseph F. and Jessica F. took pictures of the Hemet police officers' off-site building and private vehicles between 2013 and 2015 showed that the F.'s were actively engaged in gang-related activities around the time of the shooting, and bolstered the inference that defendant went to the F.'s home shortly after the shooting in order to obtain assistance in escaping from the shooting.
To be sure, courts are required to "carefully scrutinize gang-related evidence," even if it is found to be relevant, because of its potentially inflammatory impact on the jury. (People v. Albarran, supra, 149 Cal.App.4th at p. 224; People v. Williams (1997) 16 Cal.4th 153, 193 [evidence of gang membership "creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged"].) But, as discussed, all of the gang evidence was highly probative of defendant's identity, motive, and intent in committing the shooting. All of the gang evidence explained the shooting and defendant's actions at the time of and following the shooting. In this context, the gang-related evidence concerning the Mexican Mafia, the paperwork, and the F.'s picture-taking activities in connection with the police officers' building and vehicles was not "so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict" defendant of the first degree murder charge regardless of his guilt. (Hernandez, supra, 33 Cal.4th at p. 1051.) The bifurcation motion was therefore properly denied. B. All of the Gang Evidence Was Properly Admitted Under Evidence Code Section 352 , and There Was No Due Process Violation
Defendant claims that, even if the trial court did not abuse its discretion in denying his motion to bifurcate the gang special circumstance allegation, the court nonetheless abused its discretion and violated his federal due process right to a fair trial by refusing to exclude the gang-related evidence concerning the Mexican Mafia, the "paperwork," and the F.'s activities in connection with the Hemet police officers' building and vehicles. We find no merit to these claims.
Evidence Code section 352 gives trial courts discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of undue prejudice, of confusing the issues, or misleading the jury." "Rulings under Evidence Code section 352 come within the trial court's broad discretion and will not be overturned on appeal absent a showing of an abuse of that discretion." (People v. Brooks (2017) 3 Cal.5th 1, 43.) The court did not abuse its discretion in refusing to exclude any of the gang evidence under Evidence Code section 352.
Evidence is "substantially more prejudicial than probative when 'it poses an intolerable "risk of to the fairness of the proceedings or the reliability of the outcome." ' " (People v. Jablonski (2006) 37 Cal.4th 774, 805.) But "[g]ang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative." (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Here, the trial court reasonably determined that the probative value of all of the gang evidence outweighed any risk of undue prejudice, or unfairness, that it may have posed to defendant.
As discussed, all of the gang evidence was highly probative of defendant's identify as the shooter, and his motive and intent in committing the shooting. All of the gang evidence was also highly probative of the gang special circumstance allegation—whether defendant committed the murder while an active participant in a criminal street gang and to further the activities of the gang. (§ 190.2, subd. (a)(22).)
In this context, the particular gang evidence concerning the Mexican Mafia, the paperwork, and the F.'s picture-taking activities in connection with the police officers' building and vehicles was also relevant to the issues in the case, and did not pose a substantial risk of undue prejudice to defendant. For the same reasons the trial court did not abuse its discretion in denying the bifurcation motion, the court did not abuse its discretion in refusing to exclude any of the gang evidence from the unitary trial under Evidence Code section 352.
Nor did the admission of the gang evidence render defendant's trial fundamentally unfair. " 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' " (People v. Albarran, supra, 149 Cal.App.4th at pp. 229-230.) As discussed, there were permissible inferences, relevant to the murder charge and the gang special circumstance allegation, that the jury could have drawn from all of the gang evidence. None of the gang evidence deprived defendant of a fair trial. C. Defendant's Restitution Fine and Parole Revocation Fine
In light of our conclusion that all of the gang evidence was properly admitted and did not pose a substantial risk of undue prejudice to defendant, it is unnecessary to address defendant's claim that his trial counsel rendered ineffective assistance in failing to object during Investigator Hankins's testimony, when the prosecutor elicited the Mexican Mafia evidence, the paperwork evidence, and the evidence that the F.'s took pictures of the Hemet police buildings and vehicles.
1. The $10,000 Parole Revocation Fine Must be Stricken
The parties agree, and we concur, that defendant's $10,000 parole revocation fine, which the court imposed but stayed, was unauthorized and must be stricken because defendant's sentence does not include a period of parole. (§ 1202.45, subd (a); People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182 [§ 1202.45 does not apply where defendant is sentenced to life without parole]; People v. Price (2017) 8 Cal.App.5th 409, 465 [same]; People v. McWhorter (2009) 47 Cal.4th 318, 324, 380.) We therefore modify the judgment to strike the $10,000 parole revocation fine.
2. The $10,000 Restitution Fine Is Reduced to $300
Defendant claims his $10,000 restitution fine must be stricken because the court imposed it without determining that he had the present ability to pay it. He relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held that due process principles require sentencing courts to stay the execution of any restitution fine "unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Id. at p. 1164.) Dueñas further held that the People have the burden of showing that a defendant "has the ability to pay the fine." (Id. at p. 1172.)
(a) Relevant Background
At sentencing, on December 28, 2018, the court ordered defendant to pay $13,175 in victim restitution to the Victim Compensation Government Claims Board—the amount the board was requesting—but noted that the $13,175 amount would be modified if defendant successfully challenged it or if additional victim restitution amounts were sought (§ 1202.4, subds. (a)(3)(B), (f)).
Next, the court said it would "only be imposing the mandatory fines and fees," and that these "would include" a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) and "[a]n equal" $10,000 parole revocation fine (Pen. Code, § 1202.45). The court did not impose any other fines or fees after finding that defendant was unable to pay the fees and assessments listed in the probation report, including the $30 criminal conviction assessment fee (Gov. Code, § 70373) and $40 court operations fee, on defendant's murder conviction (Pen. Code, § 1465.8).
(b) Analysis
Dueñas was issued on January 8, 2019, shortly after defendant was sentenced on December 28, 2018. Defendant claims that the Dueñas decision is retroactive to all cases not final on appeal from when it was decided in January 2019, including his case. Although we would agree Dueñas applies retroactively to defendant's case, we observe that Dueñas has not been universally followed by our state appellate courts. To the contrary, a number of them have concluded that Dueñas was "wrongly decided." (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068; People v. Adams (2020) 44 Cal.App.5th 828, 831.) Additionally, our Supreme Court is currently reviewing the two questions that lie at the heart of Dueñas: (1) Is a court required to consider a defendant's ability pay before it may impose or execute fines, fees, and assessments?; and (2) If so, which party—the defendant or the People—bears the burden of proof regarding the defendant's "inability to pay?" (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
In any event, in this case, it is unnecessary to determine whether Dueñas was wrongly decided or whether, as defendant claims, the matter must be remanded to the sentencing court with directions to conduct an ability to pay hearing and to determine whether defendant is presently able to pay the $10,000 restitution fine. The record clearly indicates that the court only intended to impose a $300 restitution fine—the statutory minimum restitution fine—on defendant's murder conviction because the court said it would "only be imposing the mandatory fines and fees." A $300 restitution fine is the minimum restitution fine a court is authorized to impose in a felony case, unless the court finds "compelling and extraordinary reasons" not to impose a restitution fine and states those reasons on the record. (§ 1202.4, subd. (b)(1) ["If the person is convicted of a felony, the [restitution] fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)"].)
We are authorized to correct clerical errors in the court record in order to make the records reflect "the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore modify the judgment to reduce defendant's restitution fine to the minimum amount, $300, in keeping with the court's expressed intention when orally pronouncing defendant's sentence.
Remand for an ability to pay hearing and a determination of whether defendant is able to pay the $300 restitution fine is also unnecessary, for two reasons. First, the court expressly considered defendant's ability to pay in effectively imposing the "mandatory" minimum $300 restitution fine. Indeed, the court declined to impose even the $30 court facilities assessment (Gov. Code, § 70373) and the $40 court operations assessment (Pen. Code, § 1465.8) because it found that defendant was unable to pay them.
Second, any error in imposing the $300 restitution fine without an ability to pay hearing, or an express determination that defendant was able to pay it, was harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035) Defendant's probation report shows he is young—he was born in October 1983—and he is in "good" physical and mental health. There is no indication that he is unable to work. The record thus shows that defendant will be able to pay the $300 restitution fine and the $13,175 in victim restitution over the period of his lifetime incarceration. (See People v. Aviles, supra, 39 Cal.App.5th at p. 1076 [prison wages range from $12 to $56 a month, and state may garnish between 20 and 50 percent of prison wages to pay restitution fine].) In other words, the record "forecloses a meritorious inability to pay argument." (People v. Jones, at p. 1035
IV. DISPOSITION
The judgment is modified to strike defendant's $10,000 parole revocation fine. (§ 1202.45) and to reduce defendant's $10,000 restitution fine to $300 (§ 1202.4, subd. (b)). The matter is remanded to the trial court with directions to prepare a supplemental sentencing minute order and an amended abstract of judgment, reflecting these modifications, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.