Opinion
F064564
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. DARRELL CEDRIC STEWART, Defendant and Appellant.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R, Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Catherine Chatman, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF133087A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R, Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Darrell Cedric Stewart (defendant) stands convicted of first degree murder and four counts of attempted murder. Due to a gang special circumstance finding, he is serving a life term in prison without the possibility of parole. In People v. Stewart (Apr. 10, 2014, F064564) (nonpub. opn.) (Stewart I), we affirmed the judgment subject to a sentencing modification.
In Stewart I, defendant challenged two of his attempted murder convictions on the basis of insufficient evidence and further alleged the trial court erred by failing to question his mental competence to stand trial. Both claims were rejected on the merits. Defendant also alleged a violation of his constitutional rights based on the admission of hearsay during testimony by the People's gang expert. This claim was denied pursuant to case law predating the California Supreme Court's decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Our sentencing modification was based on a claim by the People concerning the trial court's misapplication of Penal Code section 654 to stay a firearm enhancement (subsequent undesignated statutory references are to the Penal Code).
The California Supreme Court denied defendant's petition for review "without prejudice to any relief to which [he] may be entitled" following its decision in Sanchez. The remittitur issued on June 23, 2014, and Sanchez was decided two years later. In August 2018, in light of the high court's "without prejudice" language, we granted defendant's motion to recall the remittitur to permit reconsideration of the appeal to the extent Sanchez might compel a different result. The prior opinion was vacated, the appeal was reinstated, and the parties submitted additional briefing. In October 2018, the parties were ordered to brief the impact, if any, of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620) and Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393).
Although Sanchez error occurred, it was harmless beyond a reasonable doubt. The enactment of Senate Bill 620 and Senate Bill 1393 warrants a limited remand to allow the trial court to consider striking certain firearm and prior serious felony conviction enhancements. Subject to the conditional remand, we affirm the judgment.
STATEMENT OF THE CASE
On July 4, 2009, dozens of people attended a family reunion at a house in Bakersfield. The festivities continued past midnight. At approximately 12:30 a.m., while some attendees were still congregating in front of the home, a series of gunshots were fired. One person died from a bullet wound to the chest. Four additional victims sustained nonlethal injuries.
Witnesses recalled seeing three Black youths—two males and one female—approaching the house on foot immediately prior to the shooting. The shots were fired from the middle of the street. All seven shell casings recovered at the scene were determined to have been fired from a single gun.
Police questioned suspects who had been at a house approximately two blocks away from the crime scene the night of the shooting. A 15-year-old girl, L.F., implicated herself and defendant (then age 19) in the homicide. Defendant confessed to being present during the shooting but refused to identify the killer.
Defendant was charged with premeditated murder (§§ 187, 189; count 1); conspiracy to commit murder (later dismissed at the People's request); and attempted premeditated murder (§§ 187, 189, 664; counts 3-6). The offenses were alleged to be gang related for purposes of section 186.22, subdivision (b)(1) and, with regard to count 1, special circumstance liability under section 190.2, subdivision (a)(22). Each count included firearm enhancement allegations (§ 12022.53, subds. (d), (e)(1)). Defendant was further alleged to have suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)).
L.F. was charged as an adult in the same counts listed above. However, she accepted a plea deal allowing her to be punished as a juvenile for second degree murder. In exchange for this outcome, she agreed to testify against defendant at trial. According to her testimony, the shooting was an act of revenge that resulted in the death of an innocent bystander.
By way of background, L.F. grew up in a part of Bakersfield considered to be within the territory of a gang called the Eastside Crips. In approximately 2008, she found herself in bad standing with the gang for cooperating with police in a criminal investigation involving a gang member. By 2009, after having been threatened at gunpoint by Eastside Crips members and/or associates, L.F. was socializing with people who lived within the territory of a rival gang, the Westside Crips. Through her boyfriend at the time, C.J., she met several people who frequently gathered at a residence on Donna Avenue (the Donna house). C.J. lived in a different house on the same street. The residents of the Donna house were defendant's younger brother, L.S., and one of defendant's adult cousins.
On June 27, 2009, one week prior to the family reunion shooting, L.F., defendant, and other regular visitors to the Donna house attended a friend's party just a few houses away from where the family reunion was later held. During the party, a vehicle pulled up to the house and a girl, S.C., challenged L.F. to a fight. S.C. issued the challenge while "hanging out the sunroof of the car." According to witness testimony, S.C. is related to an Eastside Crips gang member whose street name is "Gotti."
As she taunted L.F. from the car, S.C. was "throwing up [a gang sign of] the Eastside [Crips]." Meanwhile, others in the car shouted derogatory remarks about the Westside Crips. Next, someone in the vehicle fired approximately five gunshots toward the crowd of partygoers. L.F. later heard rumors that Gotti had bragged about being the shooter, and she believed the rumors to be true.
A week later, on July 4, 2009, L.F. saw Gotti as she and her boyfriend were walking up the street where the family reunion was held. Gotti had just exited a vehicle and was headed toward the family reunion. In separate testimony, family members confirmed Gotti is related to the victims in this case and did attend the reunion.
Upon seeing Gotti, L.F. immediately turned around and went to the Donna house. Once there, she spoke with defendant and told him something to the effect of, "I [saw] the people who did the shooting [last] week," specifically referencing Gotti. Defendant laughed and was dismissive of her. However, later in the evening she heard someone in the house say "'D-Mac is tripping, he's got a banger.'" She understood this to mean defendant was angry and had a gun. She went looking for defendant and found him talking to his 16-year-old cousin, T.J.
According to L.F., defendant and T.J. were discussing Gotti and the shooting the week before. She joined in the conversation and, in her words, they "started planning out going over there," i.e., to the family reunion. T.J. proposed they "shoot at the people, [namely] Gotti." Defendant agreed and stipulated "that if it was older people over there, that he would start shooting and [then] throw the gun to [T.J.] so he could start shooting. And if it was younger people there, [T.J.] would start shooting and then throw the gun to [defendant] so he could start shooting." Apart from exchanging a weapon in mid-attack, the plan was simple: "Just shoot them and run [back to the Donna house]."
Defendant gave no reason for this measure, so L.F. could not explain its purpose. Whatever the strategy, L.F. and an independent eyewitness both testified there was a notable pause in between the initial two or three gunshots and those that followed. A third witness generally testified to hearing a rapid succession of gunfire.
The trio walked from the Donna house and approached the reunion attendees in a side-by-side formation, with T.J. in the middle. L.F. testified that "[r]ight before the shooting happened, [defendant] and [T.J.] switched." This detail is noteworthy because an independent eyewitness also said the perpetrators "switched spots" before the shooting began. The same witness had previously identified L.F. from a photographic lineup.
L.F. testified to seeing defendant in possession of a firearm immediately prior to the shooting. She described him holding the gun with both hands, arms outstretched and "looking towards the party." L.F. claimed to have taken cover just as the shots were fired and thus denied knowing who had pulled the trigger. She explained: "[At the time there] was no doubt in my mind that it was [defendant] ...." "[But later,] [s]omeone told my attorney something. He discussed [it] with me. I was hearing different things from different people, and I just started putting the pieces together, and it made more sense that [defendant] was not the shooter."
Within hours of the shooting, police executed a search warrant at the Donna house. Defendant and his adult cousin (the resident of the home) were arrested on suspicion of drug dealing. While in custody, defendant waived his right to remain silent and submitted to questioning. A recording of the interrogation was played for the jury.
Defendant initially provided a false timeline, claiming to have only left the Donna house by car sometime between 11:30 p.m. and 12:00 a.m. to get food at a convenience store. In fact, the store's security cameras captured footage of him with L.F. and T.J. at approximately 4:00 a.m. When asked about the shooting, defendant denied any involvement and claimed to have been asleep at the Donna house when it occurred. He claimed to have learned of the shooting that morning from T.J., and T.J. had supposedly received the information from their friends, i.e., the people whose party ended in gun violence the previous week.
As the interviewed progressed, defendant told a story about taking a 30-minute walk by himself at an unspecified point in the evening. He eventually said, "I did walk by that party [the family reunion] and ... it was no gunfire or none of that. I just walked by the party. ... You go write that down. I walked by the party." When reminded of his earlier contentions, he said, "Okay. I was lying there I guess. Want to put that down he was lying. I walked by the party though. I know that for sure. I'm positive I did."
Next, defendant admitted to lying about being alone and claimed the person who had accompanied him was "light skinned." This corroborated eyewitness accounts describing two Black males, one of whom had "lighter skin" than the other. Earlier in the interview, when asked if there were any "light complected people" at the Donna house that evening, defendant had said, "[T.J.] That's the only person."
A transcript of the interview appears to contain a misspelling, substituting a very similar sounding first name. On the actual recording, defendant can be heard responding with T.J.'s first name, which is what the prosecutor alleged in closing argument: "[Defendant] says the only light-complected person at the house that night is [T.J.]. It's in the video. [¶] ... [¶] ... [Defendant] identified himself as the dark-complected person. [Defendant] said 'I'm with a light-skinned person and a female.'"
Later, defendant stared and then pointed at a tattoo on his arm, which the interrogator understood to signify a Westside Crips affiliation. Shortly thereafter, defendant said, "I can't[.] I'm not telling. That's not in my blood." He was asked, "How long you been with the Dub?" meaning the gang, and he replied, "Since I was 13." However, defendant also said, "That's where I'm from but I ride for myself." As for his tattoos, he explained: "That's so if I'm in prison and you see a tattoo, you already know [my background]."
By the end of the interview, defendant had come close to admitting he was an accomplice: "I can tell you how many shots was fired. Color [of the gun], all that[.] [¶] ... [¶] I was there when the shots got off, yep, I was there. [¶] ... [¶] ... [Y]ou got the person that was with the shooter. Close[d] case." He estimated eight to ten shots were fired and hinted at the type of firearm involved, disclosing his knowledge of shell casings being left at the scene. Finally, when asked what he would say to the deceased victim's family, defendant replied, "My bad."
At trial, despite his recorded statements, defendant presented an alibi defense. Two of his relatives testified that he and T.J. were at the Donna house at the time of the shooting. These witnesses were impeached in a variety of ways, which may explain why trial counsel abandoned the alibi defense during closing argument. Defendant's attorney told the jury: "I think the issue here is whether my client's an aider and abettor. [¶] ... [¶] ... [Defendant] puts himself there. And you have to decide whether he's an aider and abettor. [¶] ... [¶] ... I don't believe they've shown sufficient proof that he's the shooter; it is whether [defendant] is an aider and abettor."
To prove the gang allegations, the People relied on defendant's custodial interview and expert witness testimony. Lay witness testimony further supported the theory of a gang motive. A more detailed summary of this evidence is provided in our Discussion, post.
Defendant was found guilty as charged and all sentencing allegations were found true. Sentencing details are provided in the final part of the opinion.
DISCUSSION
I. Sanchez Claims
The holdings of Sanchez restrict the use of hearsay in expert witness testimony. Defendant seeks reversal in light of those holdings, but the People contend his claims were forfeited by a failure to object below. The point of contention is whether objecting would have been a futile act. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 ["An objection in the trial court is not required if it would have been futile"].)
There is a split of authority on the issue of forfeiture in cases where the trial proceedings occurred before Sanchez was decided. (Compare People v. Flint (2018) 22 Cal.App.5th 983, 996-998 [no forfeiture because objections would have been futile] and People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508 [same] with People v. Blessett (2018) 22 Cal.App.5th 903, 925-941, rev. granted Aug. 8, 2018, S249250 [Sanchez claim forfeited because "the change in the law was foreseeable" and objections would not have been futile].) We share the view expressed in cases such as Flint and Jeffrey G. Given our harmless error analysis, our rejection of the People's forfeiture argument does not affect the outcome of the appeal.
A. Additional Background
The prosecutor asked L.F. several questions designed to establish a gang motive for the offenses. Those questions did not always produce the desired response. She insisted her animosity toward Gotti was a personal matter and answered "no" when asked if she had realized the family reunion shooting was "gang related." The People wanted her to say she solicited defendant's involvement because of his Westside Crips affiliation, but L.F. rejected the theory multiple times. She finally acquiesced on redirect examination:
"Q. Back to your mindset that night. [¶] You knew you were hanging out on the west side with Westside Crip gang members?
"A. Yes.
"Q. And you were talking to them about an Eastside Crip gang member?
"A. Yes.
"Q. But you didn't believe at the time that it was gang related?
"A. I knew it had something to do with gangs.
"Q. So would it be fair to say that it was personal for you, but you were using [defendant] because he was in a gang?
"A. You can say that."
L.F. confirmed the Donna house was in Westside Crips territory but gave equivocal testimony regarding whether it was "a Westside Crip hangout." She claimed to have "heard" defendant and T.J. were members of the Westside Crips, but she initially denied knowledge or belief in the truth of those statements at the time of the shooting. The prosecutor impeached her by asking about a large tattoo of the letters "WSG" on defendant's right forearm, which would have been visible to her on the night in question. She testified the letters stand for "Westside Gangster" and admitted she had known the tattoo was "related to the Westside Crips." Elsewhere in her testimony, she answered "yes" when asked, "Did you think he was a gang member?"
This testimony was admissible for the nonhearsay purpose of demonstrating the effect of out-of-court statements on the listener. (People v. Livingston (2012) 53 Cal.4th 1145, 1162.) Insofar as the People may have intended to establish the truth of the matters asserted, defense counsel made no objections.
L.F. acknowledged that the first shooting, i.e., the one allegedly committed by Gotti outside of her friend's home, was gang related. She declined to characterize the gathering as a "Westside Crip party" but conceded the people in the crowd were "Westsiders." Thus, as phrased in a question to which she affirmatively responded, "the Eastside came over to that house, [and] somebody from the Eastside fired at the Westside[.]"
The fact of the shooting was independently corroborated by police testimony, but the People did not attempt to prove Gotti's actual involvement.
Another lay witness, I.H., explained that the Eastside Crips and Westside Crips are regional gangs of predominantly African-American membership. His testimony addressed the gangs' territorial nature:
"Q. [I]f you were from a certain gang, it's important to stay in your part of town?
"A. If you were a certain gang, yes, of course. If you were a gang member, it would be important to stay on the right side of town.
"Q. Okay. [¶] Let's say if you were an Eastside Crip, would you want to be over [near where the shootings in this case occurred]?
"A. You would never want to do that if you were Eastside, no.
"Q. What would happen?
"A. If a Westsider or somebody noticed you, you would get hit or shot at or something. You would get in trouble like that."
Officer Eric Lantz of the Bakersfield Police Department served as the People's gang expert. He provided background information about the Eastside Crips and Westside Crips, which included identifying the gangs' respective territories and explaining the history of their violent rivalry. The expert attested to personal knowledge of Gotti being an Eastside Crip who had been judicially ordered to register as a gang member.
According to Officer Lantz, the Westside Crips' primary activities include "narcotics sales, weapon sales, murder, robbery, and [felonious assault]." To establish the requisite pattern of criminal gang activity, he testified about four prior offenses committed by alleged gang members. Some of the testimony included hearsay, and the hearsay was repeated and/or supplemented in a PowerPoint presentation, which the expert created himself and used as a visual aid while testifying. The PowerPoint slides also included properly admitted evidence such as photographs of defendant's tattoos. We summarize all evidence of disputed admissibility in our analysis section, post.
The expert testified to two prior personal contacts with defendant. In one instance, Officer Lantz had responded to a "shots fired call" and arrived to find several people whom he recognized as Westside Crips gang members fleeing the scene, "[o]ne of them being [defendant]." On a separate occasion, he arrested defendant for possession of a stolen vehicle. He had also seen defendant's tattoos, which consisted of the letters WSG on his right forearm, "a hand sign displaying the [letter] C" on his right biceps, and, on the left arm, the letters "FAM" and a tombstone with the letters "GCIP" above a list of names. Officer Lantz understood each of these tattoos to have a gang connotation. For example, WSG stands for "Westside Gangster" and the "C" indicates "Crip." The letters GCIP represent "Gangster Crip in Peace" and the list of names included Westside Crips who had been killed in gang-related shootings.
Officer Lantz also discussed two letters obtained by police during a 2008 search of the residence of a gang member known as "M-Locc." One of the letters was written by defendant to M-Locc and the other was written by M-Locc to defendant. The documents contained Westside Crips gang jargon. In defendant's letter, he had written "GANGSTA" in large print down the left column of the page and, in smaller script inside of the G, the letters "ESK." Both the gang expert and the officer who had seized the letter testified ESK stands for Eastside Killer. The jury was shown photographs supporting testimony that ESK commonly appears in spray-painted graffiti as a form of "gang-related tagging."
In late February 2009, approximately four months prior to the family reunion shooting, Officer Lantz participated in a probation search at the residence of a Westside Crips gang member. An individual present in the home with visible Westside Crips tattoos was found in possession of the letter authored by defendant, which defendant had recently mailed from prison. This letter also contained gang jargon and derogatory references to the Eastside Crips, including ESK. Defendant does not dispute the admissibility of the letters, photographs, and related testimony.
With further regard to defendant's gang membership, Officer Lantz relied on his recorded custodial statements. Most significant were defendant's admission of being "with the Dub" since age 13 and his directing of the interrogators' attention to one of his tattoos. "The Dub" is slang for Westside Crips, as it connotes the letter W.
In response to a hypothetical question tailored to the evidence, Officer Lantz opined the shooting was committed to benefit the Westside Crips. He explained: "[I]t would show a tremendous sign of weakness if [the shooting allegedly committed by Gotti] was not answered with violence [by the Westside Crips]. [¶] ... If it was left unnoticed, it would ruin their name. That one act alone. [¶] ... [¶] ... [The Westside Crips] have a name to protect. They can't allow that. That's their hood. They fight for their hood."
B. Applicable Law
Section 186.22 prohibits active participation in a criminal street gang, as set forth in subdivision (a), and includes sentence enhancement provisions, which are found in subdivision (b). The enhancements apply when a felony is 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." (Id., subd. (b).) Pursuant to section 190.2, subdivision (a)(22), the crime of murder is punishable by death or imprisonment for life without the possibility of parole if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang."
Whereas the substantive gang offense requires felonious conduct by at least two gang members acting in concert, the enhancement and special circumstance provisions do not. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131-1132, 1138-1139; People v. Carr (2010) 190 Cal.App.4th 475, 487-488 & fn. 12.) The enhancement provisions punish "gang-related conduct, i.e., felonies committed with the specific intent to benefit, further, or promote the gang." (Rodriguez, supra, at p. 1138.) Section 190.2, subdivision (a)(22) similarly requires "that the qualifying murder be 'carried out to further the activities of the criminal street gang.' Thus, there is no bar to imposition of a special circumstance under this subdivision on a gang murderer acting alone [or with a non-gang member]." (Carr, supra, at p. 487, fn. 12.)
A criminal street gang is "any ongoing organization, association, or group of three or more persons ... whose members individually or collectively engage in or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.'" (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33). The gang's primary activities must include at least one of the enumerated crimes. (§ 186.22, subd. (f).)
"Expert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant's membership in a gang; ... the 'motivation for a particular crime, generally retaliation or intimidation'; and 'whether and how a crime was committed to benefit or promote a gang.'" (People v. Hill (2011) 191 Cal.App.4th 1104, 1120.) Prior to Sanchez, experts could recite out-of-court statements upon which they had relied in forming their opinions even if the statements were otherwise inadmissible under the hearsay rule. Case law held such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert's "basis testimony" to be compliant with the hearsay rule and the requirements of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108, citing Evid. Code, § 1200.)
The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.) In Crawford, the United States Supreme Court held the confrontation clause bars the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a previous opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 59.)
In Sanchez, it was determined a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which implicates the hearsay rule and the constitutional right of confrontation. (Sanchez, supra, 63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. ... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.)
A gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert's personal knowledge or independently supported by admissible evidence. (Sanchez, supra, 63 Cal.4th at pp. 676, 684-685.) Factual assertions are "case-specific" if they relate "to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Id. at pp. 680-681, 685.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.) Information contained in a police report is generally construed as testimonial hearsay because police reports "relate hearsay information gathered during an official investigation of a completed crime." (Id. at p. 694.)
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard described in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (See People v. Garton (2018) 4 Cal.5th 485, 507; People v. Perez (2018) 4 Cal.5th 421, 456; Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. (Sanchez, at p. 698.) The erroneous admission of nontestimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Where there is a combination of federal and state law hearsay errors, the reviewing court applies the Chapman standard. (See Sanchez, supra, at p. 698; People v. Martinez (2018) 19 Cal.App.5th 853, 861 ["Because the instant case involves a mix of testimonial and nontestimonial hearsay, we will apply the federal standard"].)
C. Analysis
1. Admissibility
a. Predicate offenses testimony
The term "predicate offenses" refers to past crimes by gang members evidencing a "pattern of criminal gang activity" within the meaning of section 186.22, subdivision (e). (People v. Zermeno, supra, 21 Cal.4th at p. 930.) Such offenses need not be gang related, and proof of a conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524; People v. Augborne (2002) 104 Cal.App.4th 362, 375.) However, certified court records documenting the fact of a conviction may be used to establish a predicate offense. (See Evid. Code, §§ 452.5, 1280; People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [records "prepared to document acts and events relating to convictions and imprisonments" are not testimonial].) Currently charged crimes may qualify as predicate offenses, and so may a defendant's prior convictions if the jury concludes he or she is a gang member. (People v. Tran (2011) 51 Cal.4th 1040, 1046.)
There is a split of authority regarding whether a gang expert's testimony about predicate offenses entails "case-specific facts" as defined by Sanchez. Some courts believe such evidence should be classified as "general background information" and thus treated as subject matter about which a qualified expert may relate hearsay. (E.g., People v. Blessett, supra, 22 Cal.App.5th at pp. 943-945, rev. granted; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411.) The opposing view holds that facts related to predicate offenses are necessarily case specific. (People v. Lara (2017) 9 Cal.App.5th 296, 337; People v. Ochoa (2017) 7 Cal.App.5th 575, 583, 588-589.) Although we endorse the latter view and disagree with the People's arguments regarding the former, we need not further address the issue because it does not affect the outcome on appeal.
(i) BF120044
The first predicate offense involved defendant and a person named Deshaun Nicholson. Certified court records showed defendant and Nicholson pleaded nolo contendere to second degree robbery (§§ 211, 212.5, subd. (c))), which is a qualifying felony under section 186.22, subdivision (e)(2). The judgments of conviction were entered in August 2007; defendant was only 17 years old but had been prosecuted as an adult. The admissibility of this evidence is not disputed.
Officer Lantz testified to the underlying facts. Defendant and Nicholson allegedly committed an "armed robbery" of a business located "within the boundaries of the Westside Crips." They took $30 in cash and, according to a slide in the PowerPoint presentation, were later discovered to have used a "replica firearm" during the offense. According to the expert's testimony, "Nicholson ended up admitting that he was a member of the Westside Crips."
Defendant contends the facts alleged by Officer Lantz were recited from a police report and thus constituted testimonial hearsay. The expert acknowledged reviewing "the reports that were ... accomplished regarding the investigations." However, as the People note, he also testified to being involved in the predicate offenses as an investigating and/or arresting officer. The prosecutor asked, "So as to all four of these cases up here, do you have personal knowledge, as well, based on being on patrol at the time?" Officer Lantz replied, "Yes, sir."
Although defendant did not forfeit his Sanchez claim, his failure to object or otherwise attempt to determine the extent of the expert's personal knowledge precludes a finding of federal constitutional error. "Had defendant lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay. [Citations.]" (People v. Ochoa, supra, 7 Cal.App.5th at p. 584.) In the absence of pertinent objections, we cannot simply assume the testimony was inadmissible. (Id. at p. 585.) To the contrary, error must be affirmatively shown by the record. (Ibid., citing People v. Giordano (2007) 42 Cal.4th 644, 666; accord, People v. Anthony (2019) 32 Cal.App.5th 1102, 1139-1140.)
We have no way of knowing whether Officer Lantz permissibly used the police reports to refresh his own recollection of the facts or instead repeated inadmissible hearsay. At most, we may be able to conclude his recital of Nicholson's admission of gang membership was a hearsay error under state law. (People v. Ochoa, supra, 7 Cal.App.5th at pp. 583-589.) If so, the potential for unfairness arises from inadmissible evidence of defendant's association with a Westside Crips gang member. However, in separate testimony unrelated to the predicate offenses, Officer Lantz claimed to know that Nicholson is a member of the Westside Crips. Thus, assuming there was error, defendant is unable to establish prejudice. (Cf. People v. Calhoun (2019) 38 Cal.App.5th 275, 319 ["Any conceivable Sanchez error was harmless because the content of the [hearsay] was independently proven" through admissible evidence]; see id. at p. 316 ["Sanchez explained that case-specific facts are those of which the expert has no independent knowledge .... The expert may render an opinion based on case-specific facts but may not relate such facts unless they are within the expert's personal knowledge."].)
(ii) BF115835A
The second predicate offense was committed by Stefan Evans in 2006. Certified court records established his conviction of first degree murder with a gang special circumstance finding. He was ordered to register as a gang member pursuant to section 186.30.
Officer Lantz testified Evans was a Westside Crip and further alleged the murder benefited the gang. In his opening brief, defendant complained this testimony related information beyond what was contained in the certified court documents. He makes no additional arguments in his supplemental briefing. The record indicates Officer Lantz had personal knowledge of the matters to which he testified. The gang-related nature of the crime is confirmed by the special circumstance finding. Therefore, error has not been shown.
(iii) BF126716A
The third predicate offense was committed by Lamont Bradshaw in 2008. Certified court records showed he was convicted, inter alia, of conspiracy to commit murder, active participation in a criminal street gang, and carrying a loaded firearm as an active gang member. Officer Lantz testified the case involved a shooting of an Eastside Crips gang member. He opined Bradshaw was a member of the Westside Crips and said other members were "implicated as co-conspirators in the assault." A PowerPoint slide named the alleged coconspirators. Officer Lantz went on to explain how the offenses would have benefited the Westside Crips.
Defendant's opening brief claims "much of what [Officer] Lantz related to the jury ... was based on his review of investigation reports into those crimes." No additional arguments are presented in the supplemental briefing. Based on the expert's testimony, it is clear he was dispatched to the scene of the shooting, located the victim, and participated in the ensuing investigation. Investigating officers are frequently involved in the prosecutorial phase of such matters, which may have been the case here. It is impossible to discern whether his testimony about the Bradshaw case was based on hearsay rather than personal knowledge. Therefore, defendant has failed to affirmatively demonstrate error. (People v. Ochoa, supra, 7 Cal.App.5th at pp. 584-586.)
(iv) B126004A
The final predicate offense was committed by Aleric McDonald. Certified court records showed he was convicted of second degree murder in 2011 (on a charge filed in late 2008). Officer Lantz testified to the involvement of two accomplices, Marcus Johnson and Lawrence Dean, and court records confirm they were codefendants in the case.
In the McDonald case, Officer Lantz was dispatched to the scene of a shooting and found a homicide victim. At defendant's trial, he testified Dean, Johnson, and McDonald admitted during the investigation "that their intention was to ... shoot Eastside Crips members." Officer Lantz also testified the shooting occurred in "an area that is frequented by members of the Eastside Crips." He opined Dean, Johnson, and McDonald were Westside Crips members and noted Johnson is defendant's cousin. The expert also opined the murder benefited their gang and discussed a history of retaliatory shootings between the Eastside Crips and Westside Crips circa 2005 and 2006, i.e., a few years before the predicate offense was committed.
Once again, we cannot tell if any of Officer Lantz's testimony was based on hearsay as opposed to personal knowledge. The testimony about Marcus Johnson being defendant's cousin was confirmed by a different witness and acknowledged by defense counsel. Johnson is the person referred to as "M-Locc" in the previously discussed letters. A state law hearsay error may have occurred regarding the perpetrators' alleged statement of intent (People v. Ochoa, supra, 7 Cal.App.5th at pp. 584-586), but it appears the expert had personal knowledge of the gang-related nature of the crime. Moreover, there was ample admissible evidence of violent confrontations between members of the Eastside Crips and Westside Crips. Therefore, any prejudice resulting from hearsay regarding the perpetrators' intent to shoot Eastside Crips was de minimis.
b. Further testimony re: history of retaliatory gang shootings
BF120731 & BF121635
Officer Lantz discussed two allegedly related cases. In case No. BF120731, Jerald Larry and Terrell Young pleaded nolo contendere to voluntary manslaughter with gang and firearm enhancements. Officer Lantz testified Larry and Young were Westside Crips gang members who had shot and killed an Eastside Crips gang member named Joshua Ward. The decedent's brother, Jake Ward, subsequently killed a Westside Crips gang member named Mikko James and was prosecuted in case No. BF121635A. Officer Lantz said informants "were advising us" that Jake Ward had killed James as an act of retaliation. Elsewhere in his testimony, he explained defendant's tombstone tattoo contains the name "Meko" in honor of James's death.
In his opening brief, defendant argued the testimony was inadmissible because "the facts discussed by [Officer] Lantz were not contained in the certified records." The record indicates Officer Lantz investigated the shooting of Mikko James and is silent with regard to his involvement in the Joshua Ward case. In his supplemental reply, defendant seems to partially concede the issue but argues Officer Lantz's role as an investigator "does not transform post-offense witness and suspect statements into admissible evidence."
As argued by the People, the record clearly shows L.F. was one of the informants in the case against Jake Ward. She explained this in her trial testimony and was briefly questioned about it on cross-examination. Defendant does not address these facts in his briefing, and we conclude he has failed to demonstrate error or prejudice. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1118 ["Where the witness is available at trial for cross-examination, the principal danger of admitting hearsay evidence is not present [citation], and neither the federal nor the state constitutional right of confrontation is violated. [Citations.]"].)
c. Death of Deondre Marzette
In describing one of his personal encounters with defendant, Officer Lantz noted defendant was with several people whom he (the expert) knew to be Westside Crips gang members, including Deondre Marzette. He testified: "Several of them are in custody. One of them is deceased. [¶] ... [¶]... [Marzette] was killed by a subject by the name of Andre Ball, a member of the Eastside Crips. He was shot in the Valley Plaza after a confrontation where they were banging on one another inside of the mall, a firearm [was] produced, Marzette was shot and killed."
Defendant assumes the quoted testimony is inadmissible hearsay, but the record is silent on this point. "'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Therefore, the claim fails.
2. Booking Admission
Defendant reportedly admitted to being a Westside Crips member or associate when booked into jail on July 5, 2009, on the charges in this case. In People v. Elizalde (2015) 61 Cal.4th 523, the California Supreme Court held a defendant's Fifth Amendment rights are implicated when jail personnel ask questions about gang affiliation during the booking process. However, defendant makes no claims of Elizalde error. Instead, he contends the evidence of his booking statement was testimonial hearsay and inadmissible under Crawford and Sanchez.
The record indicates defendant's booking statement was given in response to a jail classification inquiry made for safety reasons. Such admissions are not considered testimonial for purposes of the Sixth Amendment right of confrontation. (People v. Leon (2016) 243 Cal.App.4th 1003, 1019-1020; see People v. Elizalde, supra, 61 Cal.4th at p. 532, fn. 7 ["This case in no way implicates the court's Crawford jurisprudence"].) Moreover, assuming defendant has a valid hearsay argument under state law, he admitted a Westside Crips affiliation on the same day during his custodial interview. Given the independent proof of his admission of gang membership, plus his numerous gang tattoos and documented history of associating with gang members, any error related to the brief testimony about his booking admission was harmless. (People v. Calhoun, supra, 38 Cal.App.5th at p. 319; People v. Flint, supra, 22 Cal.App.5th at pp. 998-1000.)
3. "Offense Reports"
a. 05-145842
Officer Lantz testified about several "offense reports," which we interpret to mean the type of police reports described in Sanchez. (Sanchez, supra, 63 Cal.4th at p. 694.) One such report pertained to an alleged incident on July 30, 2005, when defendant was 15 years old. The testimony was as follows:
"Officer Sallee and there was other officers, I don't recall who, they were dispatched to [a particular address]. Once the—they arrived, [defendant], he was acting belligerent, causing problems for the officers there, and he began making the Westside Crip hand signs to the officers who were on scene. He refused several orders to leave the area ultimately and was arrested for obstructing and delaying."
The People concede Officer Lantz lacked personal knowledge of these events and recited hearsay. The testimonial nature of the hearsay is disputed because Officer Lantz claimed to have spoken to Officer Sallee about the incident. Therefore, it is argued, the hearsay declarant did not make the statements "'with a primary purpose of creating an out-of-court substitute for trial testimony.'" (Sanchez, supra, 63 Cal.4th at p. 688.)
We are not persuaded by the People's argument. The testimony obviously repeated the contents of the police report, which was testimonial hearsay. (Sanchez, supra, 63 Cal.4th at p. 694.) However, the potential for unfair prejudice was minimal. The incident occurred nearly four years prior to the shooting in this case and was closer in time to when defendant first joined the Westside Crips at age 13 (circa 2003). Other admissible evidence such as his robbery conviction in 2007 and letters written to Westside Crips members in 2008 and 2009 showed his commitment to the gang during more relevant time periods.
b. 05-147731
Two days after the incident described above, defendant was reportedly contacted in a vehicle with someone named Ryan Graham. Officer Lantz said police had been looking for Graham because Graham, a Westside Crip, was with a fellow gang member, Deshontae Wright, when Wright was shot and killed by suspected members of the Eastside Crips. The purpose of this testimony was to show defendant's association with a known gang member on a particular day in 2005. However, in earlier testimony about defendant's tattoos, the expert had said the decedent, Wright, went by the name "Shawnee Dogg" and was killed "during a gang-related shooting." Defendant has a tattoo of the name "Shawnee Dogg," which Officer Lantz opined is a tribute to Wright.
Officer Lantz did not author the police report and appears to have lacked personal knowledge of defendant being with Ryan Graham on the day in question. The record also suggests the information about Deshontae Wright's death and his nickname was derived from the same report. However, assuming error, the resulting prejudice was neutralized by several factors. First, Officer Lantz testified to personal knowledge of Graham being a Westside Crips gang member. Second, he testified to personally seeing defendant with Graham and several other gang members on a separate occasion. Third, the evidence of "Shawnee Dogg" being killed by an Eastside Crips gang member was no more probative than the admissible evidence of Mikko James being killed by an Eastside Crips gang member. The names "Shawnee Dogg" and "Meko" both appear within defendant's "Gangster Crip in Peace" tombstone tattoo.
c. 05-228140
The incident described in this report occurred in November 2005. Defendant was allegedly with Deshaun Nicholson and another individual. The expert testified to these facts:
"They were walking past a man and his wife. The man asked them to watch where they were going, and at which time they assaulted him for speaking to them that way. That's one of those situations where the man was not involved in any gangs, and as a result, to him merely asking where they were going, they basically just rat packed him and punched him and his wife. [¶] [The purpose of such behavior is] instilling fear into the public that's occupying that area."
Of the six offense reports about which Officer Lantz testified, he had personal knowledge of three by virtue of his role as an investigating officer. He was not personally involved in two of the six incidents. As for his involvement in this particular incident, the record is ambiguous.
In supplemental briefing, defendant argues: "During cross-examination, [Officer] Lantz testified that he believed the offense happened on the street, but agreed after reviewing the report that it had occurred in a restaurant. [Citation.] This exchange makes it clear that [Officer] Lantz did not personally witness the incident." We reject the argument for two reasons. First, in the cited exchange on cross-examination, defense counsel said, "if you check your report ...." The words "your report" suggest Officer Lantz was the author and thus had personal knowledge of the information therein. A silent or ambiguous record is construed in favor of the judgment. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Second, we do not agree with the implied premise that only eyewitnesses to a crime can possess the type of "personal knowledge" contemplated by Sanchez. (Sanchez, supra, 63 Cal.4th at p. 676.)
d. 09-150435
The last offense report discussed defendant's arrest in this case on July 5, 2009. Officer Lantz gave the following testimony regarding his execution of a search warrant at the Donna house: "We ended up locating marijuana that was packaged for the purposes of sales, which would be small baggies. It was a considerable amount of marijuana that was located in two different locations. [Defendant] ended up admitting to selling the marijuana, as did [his adult cousin]." The prosecutor asked, "[W]ere you present or did you review whether or not [his cousin] made any statements about his participation in the Westside Crips?" Officer Lantz replied, "Yes. He—both—well, [his cousin] stated that he was a Westside Crip associate—I'm sorry. Was—he was a Westside Crip associate, and that [defendant] was a member—a member."
This testimony conflicted with the corresponding PowerPoint slide. The slide read: "[Defendant] stated that he was a WSC associate and [his cousin] said he knew [defendant] to be a member of the WSC." The slide matched testimony Officer Lantz gave during motions in limine: "[Defendant] admitted during that time to being an associate, and he was identified as being a gang member by [his cousin]." The parties' briefing overlooks this discrepancy.
Defendant concedes the admissibility of his statement regarding the sale of marijuana. He assigns error to his cousin's purported statement about gang association and membership. It is hard to imagine the alleged statement being made for any reason other than in response to police questioning, so we will assume it was testimonial hearsay. However, the resulting prejudice must be evaluated in light of several facts and circumstances.
Defendant's cousin resided at the Donna house with defendant's brother, L.S. The brother testified as a defense witness and was shown to be a gang member himself. During his testimony, L.S. explained he was presently confined at a youth correctional facility for "[s]econd-degree robbery, gang enhancement, GBI and assault with a deadly weapon." L.S. denied associating with gangs but admitted on cross-examination that he would soon be "registering as a Westside Crip gang member" pursuant to a court order.
Defendant admitted he was a Westside Crip during his custodial interview. Defendant's gang ties were independently established by his tattoos, his letters corresponding with other gang members, his history of associating and/or committing crimes with other gang members, and testimony by his accomplice in this case, L.F. Furthermore, with regard to the Donna house, L.F. testified, "There's people that be over there that was part of the Westside."
To summarize, the hearsay declarant resided at the Donna house with a gang member, namely defendant's brother. Defendant visited the Donna house and was evidently involved in some type of drug dealing enterprise with the declarant at that location. Defendant's other accomplice in this case, T.J., was at the Donna house on the night of the shooting and there was admissible evidence of T.J. being a Westside Crips gang member. Additional unnamed members of the Westside Crips visited the home. Therefore, it would have been obvious to the jury, regardless of the statement of admission, that defendant's cousin was a Westside Crips "associate." Likewise, the jury would have undoubtedly concluded defendant was a Westside Crips gang member without any consideration of the inadmissible statement.
According to Officer Lantz, "associates are ones that will hang around the gang. They may partake in some criminal activity with the gang. It's just depending on their level of trust. And an associate versus a member is a very, very fine line ...."
4. "Street Checks"
Defendant alleges Officer Lantz related inadmissible hearsay about two documented "street checks," which differ from police reports. A police report is prepared during a criminal investigation. A street check is a "field contact, whether it's a dispatched call or a consensual contact of a subject." The corresponding documentation reflects "intelligence gathering to determine who's associating with one another." Street check reports are apparently similar to the field identification (FI) cards described in Sanchez, supra, 63 Cal.4th at page 672. Such documents do not necessarily contain testimonial hearsay; it depends on whether the writing was prepared "in the course of an ongoing criminal investigation." (Id. at p. 697.)
In January 2006, defendant was allegedly contacted with Deshaun Nicholson. In July 2006, defendant was contacted "during a peace disturbance" within the traditional boundaries of Westside Crips territory. The record indicates Officer Lantz did not have personal knowledge of these incidents. However, he did testify to personal knowledge of Nicholson's status as a Westside Crips gang member.
The street checks testimony was harmless under any standard of prejudice. The fact of defendant's frequent presence in Westside Crips territory was never in dispute. There was other admissible evidence of defendant's association with Nicholson, including their commission of a robbery together in July 2007.
5. Testimony re: T.J.
Officer Lantz opined the alleged shooting accomplice, T.J., was a Westside Crips "associate." He based his opinion on evidence of T.J.'s "activity in the present case" and upon his review of two police reports. One report concerned the "marijuana sales case for [the Donna house]," which was deemed significant because it indicated T.J. was "associating at that residence where the other members of the [Westside] Crips were frequenting." Regardless of whether the expert had personal knowledge of this information, T.J.'s presence at the Donna house was established by L.F.'s testimony and confirmed by defendant during his custodial interrogation. Therefore, any prejudice arising from testimony about the "marijuana sales case" was harmless beyond a reasonable doubt.
The second report described a May 2008 incident during which T.J. "and other members of the Westside Crips ... forcibly snatched an MP3 player from a kid .... And the [victim], being familiar with them, was terrified to—to respond to it. And they fled and were ultimately apprehended and arrested for robbery and conspiracy." It does not appear Officer Lantz had personal knowledge of these facts. For purposes of our analysis, we will assume he related testimonial hearsay about this incident. (See further discussion, post.)
6. Testimony re: the "Vans Mob"
A few witnesses testified about a group called the "Vans Mob," so named because of the brand of shoes worn by its members. According to L.F., it was a dance group consisting of juveniles who socialized at the Donna house. Defendant's brother, L.S. described the group as a "dance crew." The group's activities became a disputed issue when the prosecutor attempted to impeach L.S. with photographs of him contorting his fingers to make alleged gang signs. L.S. claimed the gestures symbolized the Vans Mob and had no gang-related meaning.
Officer Lantz gave this testimony on rebuttal:
"[The Vans Mob is] a group that was started up by several younger members of the Westside Crips.... [W]e became aware of them when we began arresting them for burglaries. Most particularly, the most intelligence we gathered [on] them was from a felony assault which hospitalized one of the high school kids. [¶] As a result of that, we were able to determine through interviews that—that the Vans Mob is recognized by members of the Eastside Crips as being from the Westside. And during that interview, one of the members, also, he identified several other members that were Vans Mob members, and also stated that everybody who's in the Vans Mob is from the Westside and resides in the west side."
Respondent impliedly concedes the testimony was inadmissible. Avoiding the question of error, the People argue the Vans Mob "was a tangential topic of little to no significance." We agree, and defendant does not explain how the testimony might have prejudiced him. The People were attempting to impeach L.S., but his alibi testimony already contradicted defendant's admission of being present during the shooting. Furthermore, L.S.'s credibility was damaged by his admission of multiple juvenile adjudications and pending court-ordered registration as a Westside Crips gang member. The hearsay was prejudicial insofar as it bolstered the People's theory of the Donna house being a "Westside Crips hangout," but this theory was supported by other admissible evidence.
7. Miscellaneous Hearsay
Officer Lantz was asked how criminal activity benefits the Westside Crips. He explained the development of a reputation for violence instills fear in the community, which results in citizens being "very reluctant to come out and cooperate with [police] because they know of the gang's reputation [and] the things they're capable of doing." Responding to a followup question, he also said, "[A] lot of times they will refuse to [even] have me on their front doorstep. They'll ask me to slip a card or drop one on the ground and walk away so they can call me at a later time, or they will tell me I know what happened, I can't tell you about it because I'm afraid they'll kill me and my family."
Defendant contends the expert related testimonial hearsay. We disagree. The Sanchez decision expressly "restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 685.) "The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Id. at p. 676.) The challenged testimony falls into the category of "generally accepted background information, admissible under the latitude afforded experts." (Id. at p. 683.)
Finally, defendant claims Officer Lantz provided inadmissible details about the June 27, 2009, shooting allegedly committed by Gotti. To recapitulate, L.F. testified this incident occurred at a party attended by her, defendant, T.J., other regular visitors to the Donna house, and unnamed "Westsiders." A vehicle pulled up to the house and a female Eastside Crips associate leaned out of the sunroof, flashed a gang sign, and challenged L.F. to a fight. Others in the car made disparaging remarks about the Westside Crips just before someone opened fire on the partygoers.
Testifying to the contents of a police report, Officer Lantz alleged this shooting happened shortly after an Eastside Crips gang member, N.D., had been shot at a different location. The vehicle involved in the shooting was allegedly "driven by [W.G.], and he was in the company of other Eastside Crip gang members." With regard to the N.D. shooting, the expert said, "I believe it was their [the Eastside Crips'] assumption, due to the history, that the Westside was responsible for it."
The allegation concerning W.G. was testimonial hearsay. Officer Lantz did not investigate the shooting during the party involving L.F. and seemingly lacked personal knowledge of who had driven the suspect vehicle. However, he did personally investigate the N.D. shooting. Therefore, the timing of the N.D. shooting in relation to the party shooting was established by admissible evidence. Any prejudice arising from testimony about W.G. was harmless because the gang-related nature of the party shooting was essentially undisputed. Gunshots were fired within moments of an Eastside Crips associate flashing a gang sign as others in her car yelled derogatory statements about the Westside Crips. As the People argue, the identity of the driver was a "peripheral" detail.
D. Harmless Error
The Chapman standard requires reversal unless the People establish "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.) "'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.'" (People v. Neal (2003) 31 Cal.4th 63, 86.) In other words, the analysis considers whether the jury might have reached a different verdict but for the error. (People v. Mil (2012) 53 Cal.4th 400, 418.)
Defendant's prejudice arguments rely on several claims we have rejected, e.g., those related to the predicate offenses testimony. When actual errors are separated from the multitude of contentions, we are left to consider the following:
1. A booking admission of Westside Crips membership/association;
2. Hearsay attributed to defendant's adult cousin regarding defendant's gang membership;
3. Defendant's arrest at age 15 for acting "belligerent" and flashing gang signs at police;
4. Hearsay concerning association with gang members Ryan Graham and Deshaun Nicholson;
5. Hearsay concerning the significance of defendant's "Shawnee Dogg" tattoo;
6. Hearsay regarding accomplice T.J's criminal history and gang ties;
7. Hearsay regarding the "Vans Mob"; and
8. Cumulative hearsay about the history of violent confrontations between the Eastside Crips and Westside Crips.
Again, defendant's Westside Crips criminal gang affiliation was established by admissions in his custodial interview, photographs of his gang tattoos, and the letters he wrote to other gang members. There was admissible evidence of defendant's association with Deshaun Nicholson, including Officer Lantz testifying to arresting them together in 2005 for possessing a stolen vehicle and their joint convictions of robbery in 2007. Officer Lantz testified to seeing defendant with Ryan Graham and other Westside Crips while investigating a "shots fired call" in 2005.
The most significant error was the hearsay about T.J. committing a robbery with Westside Crips gang members. However, the People introduced a photograph of gang-related material found on T.J.'s mobile phone. The photograph contained the letters "WSGC," which the expert interpreted to mean Westside Gangster Crip. The photo included other gang jargon, including the words "West in Peace" above a list of names. Officer Lantz testified the names were of "fellow members who were murdered or otherwise deceased." L.F. separately testified about T.J.'s gang affiliation. Furthermore, defendant's liability did not depend on whether T.J. was a gang member. (See People v. Rodriguez, supra, 55 Cal.4th at pp. 1131-1132, 1138-1139; People v. Carr, supra, 190 Cal.App.4th at pp. 487-488 & fn. 12.)
The Chapman standard requires evaluation of the "'whole record'" and "typically includes review of the strength of the prosecution's case." (People v. Aranda (2012) 55 Cal.4th 342, 367.) The prosecution's case is inevitably contrasted with the defense case. Here, the decision to call two of defendant's relatives as alibi witnesses likely did more harm than good for his cause. His cousin, J.H., who is T.J.'s brother, preemptively acknowledged being under confinement for "child molestation." The prosecutor demonstrated J.H.'s gang ties by introducing a photograph of him making a hand gesture of the letter "W," which Officer Lantz opined was a Westside Crips symbol. J.H.'s testimony also allowed the People to introduce a photograph of his uncle making a similar Westside Crips hand sign. As for his alibi testimony, J.H. struggled on cross-examination to the point of being asked if he was making the story up as he went along.
The other defense witness, L.S., was asked about defendant's gang affiliation. He replied, "I don't know what [he does]. I don't hang out with my older brother like that." Responding to a direct question about defendant being a Westside Crips member, L.S. said, "I'm not in his business." As discussed, L.S. acknowledged his own court-ordered obligation to register as a Westside Crips gang member.
The jury must have asked itself why the defense called two witnesses with ties to the Westside Crips to give alibi testimony when defendant had already admitted he was "with the shooter." Defendant specified he was with a "light-skinned" guy "and a female." The only viable defense theory was mere presence at the scene, but this was an undeveloped argument with little evidentiary support. In his custodial interview, despite denials about being the shooter, defendant's body language and statements are easily interpreted as showing consciousness of guilt.
Although L.F. was shown to have told several lies during her own police interviews, her account of the shooting was largely corroborated by eyewitnesses. Defendant argues she "never told police prior to trial about the 'plan' to shoot at the [reunion attendees]," but he fails to persuasively link the believability of her testimony to the improper hearsay evidence. There was overwhelming proof of a gang motive and of defendant's involvement in the crime, either as the shooter or as an aider and abettor. It is evident, beyond a reasonable doubt, the jury's verdicts would have been the same without any exposure to the inadmissible hearsay.
II. Sufficiency of the Evidence
Defendant argues there is insufficient evidence of his attempt to murder family reunion attendees C.M. and L.D. The claim is based on a lack of testimony as to where these people were standing in relation to the shooter and/or the homicide victim. We conclude the evidence supports the verdicts.
The standard of review is deferential to the judgment. We must determine "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Marshall (1997) 15 Cal.4th 1, 34.) "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise." (People v. Combs (2004) 34 Cal.4th 821, 849.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Attempted murder requires express malice, i.e., the intent to kill. (People v. Booker (2011) 51 Cal.4th 141, 177-178.) "Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially." (People v. Thomas (2011) 52 Cal.4th 336, 355.) "The act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill. [Citation.] Moreover, attempted murder does not necessarily require a specific target. ... [A]n indiscriminate would-be killer who fires into a crowd is just as culpable as one who targets a specific victim." (People v. Houston (2012) 54 Cal.4th 1186, 1218; accord, People v. Stone (2009) 46 Cal.4th 131, 134 ["Can a person who shoots into a group of people, intending to kill one of the group, but not knowing or caring which one, be convicted of attempted murder? Yes."].)
L.F. testified the perpetrators agreed to shoot at "people," i.e., more than one person, with the primary goal of hitting Gotti. She claimed to have realized just before the shooting began that Gotti had left the reunion, but she remained silent and let her accomplices follow through with the plan. Even assuming the shooter(s) fired into the crowd without seeing Gotti, the requisite mens rea is discernable. "A jury can reasonably conclude a defendant without a primary target who repeatedly shoots into a crowd with the intent to kill committed multiple counts of attempted murder." (People v. Medina (2019) 33 Cal.App.5th 146, 156, rev. granted June 19, 2019, S255373, rev. dismissed Sept. 11, 2019; accord, People v. Canizales (2019) 7 Cal.5th 591, 608 (Canizales).)
The California Supreme Court granted review in People v. Medina on a deferred basis pending its decision in Canizales, which was published five days later. The Canizales opinion addresses a separate issue concerning jury instructions on a "kill zone" theory of liability. (Canizales, supra, 7 Cal.5th at pp. 596-597.) --------
Witness testimony indicated C.M. and L.D. attended the family reunion, sustained injuries as a result of the shooting, and were transported to a hospital to receive medical care. The jury was shown a photograph of a wound on C.M.'s hand, which an investigating officer opined was a bullet wound. Another officer testified to his interactions with L.D. at the emergency room: "He had an injury to the right foot .... He indicated that he had been shot. The injury that I saw was very superficial. If it was a bullet wound, it was more of a grazing wound."
The homicide victim's wife was standing in front of the house when she and her husband were shot. She testified the perpetrators were in the middle of the street and within approximately 16 feet of her when the shooting began. Other witnesses, including defendant, estimated there were seven to 10 gunshots. All evidence indicated the bullets were fired toward the front of the house. Shell casings were found in the middle of the street, bullet fragments were found in the gutter area and in a flower bed near the front door, and there were strike marks near the front door as well. Photographs of the crime scene allowed jurors to perceive the size of the area into which the shots had been fired. Viewed as a whole and in the light most favorable to the judgment, the record permits the inference C.M. and L.D. were part of the crowd of people targeted by the shooter(s). The intent to kill is inferable from evidence of a plan to shoot multiple people and the perpetrators' close proximity to the victims when the shooting occurred.
III. Mental Competency Proceedings Were Not Required
Defendant alleges the trial court had a sua sponte duty to order an evaluation of his mental competence to stand trial. He cites examples of defiant and disruptive outbursts, as well as affirmative requests to be removed from the courtroom, characterizing the behavior as "irrational and self-defeating conduct." We find no error.
A. Additional Background
On August 11, 2011, a date intended for motions in limine, the trial court ordered a continuance until the next day. Defendant reacted by saying, "Bullshit. [¶] ... [¶] I ain't coming back tomorrow." Upon adjournment, defendant disobeyed a bailiff's order to remain seated and walked out of the courtroom.
On August 15, 2011, during a break in jury selection, the trial court made a record of defendant's stated desire to remain in handcuffs. Defense counsel did not object, so the trial court granted the request. Later that morning, the trial court admonished defendant for "singing and making comments" during voir dire, warning he could be permanently removed from the courtroom. Defendant replied, "Ooh. That would be nice. That will be real nice. It ain't no fair trial anyway." In a subsequent colloquy with the judge, defendant used profanity while reiterating his opinion about the fairness of the trial. The following excerpt is most pertinent to the claim on appeal:
"THE COURT: What makes you feel that you won't be able to [refrain from making outbursts]?
"THE DEFENDANT: I don't know. I don't know. [¶] If you were sitting in that chair fucking fighting for your life, you don't know what you might do. That's why keep my handcuffs on. Ain't no telling.
"THE COURT: So you're going to keep your handcuffs on because there's not—no telling what you'll do to me?
"THE DEFENDANT: You or anybody in this courtroom.
"THE COURT: So you feel you're a threat to the people in this courtroom?
"THE DEFENDANT: I don't know. This is my life.
"THE COURT: Why do you want to keep the handcuffs on?
"THE DEFENDANT: Who knows. Only time will tell.
"THE COURT: Do you know?
"THE DEFENDANT: No. I got a lot of personalities."
Defendant eventually agreed to maintain proper decorum and did so until the afternoon of August 18, 2011. Upon seeing the designated investigating officer, defendant demanded to be removed from the courtroom. The trial court granted the request, and defense counsel agreed defendant had "voluntarily excluded himself." Defendant returned to court the next day and had no further outbursts until August 24, 2011, when he became angry over Officer Lantz's testimony about the predicate offense involving him and Deshaun Nicholson. Defendant politely asked to be removed from the courtroom, but he launched into a profanity-laced tirade after the jury was excused for a recess. As he was being removed defendant said, "Fuck you, crackers. Rest in piss."
Defendant was voluntarily absent during the defense case and closing arguments. He returned to court for the rendering of jury verdicts on August 29, 2011.
B. Law and Analysis
The constitutional right to due process prohibits the trial of a mentally incompetent criminal defendant. (In re R.V. (2015) 61 Cal.4th 181, 188.) Under federal law, the test for competence is whether the defendant "'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... and whether he has a rational as well as factual understanding of the proceedings against him.'" (Dusky v. United States (1960) 362 U.S. 402.) In California, section 1367 codifies a nearly identical standard. "A defendant is mentally incompetent ... if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (Id., subd. (a).)
Under section 1368, if "a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of [defense counsel] whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or [defense counsel] or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time." (Id., subd. (a).) If counsel or the trial court believe the defendant is or may be mentally incompetent, a hearing to determine the question of competence should be conducted pursuant to sections 1368.1 and 1369. (§ 1368, subd. (b).)
Although section 1368 is phrased in terms of whether a doubt exists "in the mind of the judge," case law holds that substantial evidence of incompetence triggers the right to a competency hearing as a matter of law. (People v. Stankewitz (1982) 32 Cal.3d 80, 91-92; People v. Pennington (1967) 66 Cal.2d 508, 518.) The sua sponte duty to conduct a competency hearing may arise at any time prior to judgment. (People v. Rogers (2006) 39 Cal.4th 826, 847.) If evidence of the defendant's incompetence is less than substantial (and the court has not expressed a doubt as to his competence), the decision to conduct such a hearing is a matter of discretion. (Pennington, supra, at p. 518.) "A trial court's decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial." (Rogers, supra, at p. 847.)
Substantial evidence of incompetence is evidence "that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial." (People v. Rogers, supra, 39 Cal.4th at p. 847.) Such evidence may come from any source, and the trial court "must consider all of the relevant circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1164.) "If a defendant presents merely 'a litany of facts, none of which actually related to his competence [to understand the nature of the proceedings],' the evidence will be inadequate to support holding a competency hearing. [Citation.] In other words, a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of [his competence to stand trial]." (People v. Ramos (2004) 34 Cal.4th 494, 508.)
The threshold for competence is low. "Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel." (Godinez v. Moran (1993) 509 U.S. 389, 402.) Furthermore, a defendant's competence is presumed. (§ 1369, subd. (f); People v. Medina (1990) 51 Cal.3d 870, 881.)
The record provides no indication of defendant's inability to understand the proceedings. On the contrary, the impetus for most of his disruptions was his perception of the trial as unfair. For example, during the incident prompted by Officer Lantz's predicate offenses testimony, defendant said, "You're all just letting them bring in a conviction. [¶] ... [¶] ... To bring in a conviction [of] somebody [who] is on the stand that's on trial? [¶] ... [¶] ... That's right? That's a fair trial? [¶] ... [¶] ... Do you all call that a fair trial? Seriously?"
Defendant's argument that he was incapable of controlling his behavior is unavailing. The record shows his conduct was volitional. As noted in People v. Mai (2013) 57 Cal.4th 986, 1034, the California Supreme Court has "made clear that an uncooperative attitude is not, in and of itself, substantial evidence of incompetence." Depending on the circumstances, irrational behavior may constitute substantial evidence of incompetence. "However, disruptive conduct and courtroom outbursts by the defendant do not necessarily demonstrate a present inability to understand the proceedings or assist in the defense." (Id. at p. 1033.)
Defendant likens himself to the appellant in People v. Murdoch (2011) 194 Cal.App.4th 230, but the comparison is untenable. There is no evidence in this case of a psychiatric history requiring prescription medication to treat and control a severe mental illness. (Id. at pp. 233-235.) As for defendant's wish to remain handcuffed and his comment about having "a lot of personalities," case law holds "that more is required to raise a doubt of competence than the defendant's mere bizarre actions or statements, with little reference to his ability to assist in his own defense. [Citation.]" (People v. Medina (1995) 11 Cal.4th 694, 735.)
Neither the trial court nor the attorneys expressed any doubts regarding defendant's competence to stand trial. Therefore, given the lack of evidence of an inability to understand the proceedings or assist counsel, the decision not to order a section 1368 evaluation was entirely discretionary. (People v. Pennington, supra, 66 Cal.2d at p. 518.) An abuse of discretion has not been shown.
IV. Sentencing Issues
Pursuant to section 190.2, subdivision (a)(22), defendant was sentenced on count 1 to life in prison without the possibility of parole. The sentence was enhanced by a five-year term for a prior serious felony conviction. (§ 667, subd. (a).) The jury returned true findings on firearm enhancement allegations under section 12022.53, subdivisions (d) and (e)(1), but the trial court stayed the applicable punishment of 25 years to life pursuant to section 654.
Based on a prior strike, defendant received sentences of 14 years to life for each attempted murder conviction, i.e., counts 3-6. Each sentence was enhanced by consecutive terms of 25 years to life for the firearm enhancements plus five-year terms for the prior serious felony conviction. Gang enhancements under section 186.22, subdivision (b)(1) were stayed pursuant to section 12022.53, subdivision (e)(2).
Section 654 prohibits separate punishments for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. In People v. Ahmed (2011) 53 Cal.4th 156, the California Supreme Court determined that enhancements are subject to section 654 if the applicable sentencing statutes do not indicate whether more than one enhancement may be imposed. (Id. at p. 159.) However, the penalty provisions of section 190.2 are not accurately characterized as "enhancements" in this context.
Under section 12022.53, subdivision (d), a defendant convicted of a qualifying felony who is found to have personally and intentionally discharged a firearm, proximately causing great bodily injury or death, is subject to a sentencing enhancement of imprisonment for 25 years to life. Vicarious liability is imposed upon aiders and abettors if they are found to have committed the qualifying offense in violation of section 186.22, subdivision (b), which is a gang enhancement provision. (§ 12022.53, subd. (e)(1); People v. Garcia (2002) 28 Cal.4th 1166, 1171.) However, pursuant to section 12022.53, subdivision (e)(2), vicarious liability cannot be imposed in addition to an enhancement prescribed by section 186.20 et seq.
"A sentence enhancement is 'an additional term of imprisonment added to the base term.'" (People v. Jefferson (1999) 21 Cal.4th 86, 101; accord, People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.) A penalty provision, in contrast, "'sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.'" (People v. Jones (2009) 47 Cal.4th 566, 576, quoting Jefferson, supra, at p. 101.) Section 190.2, subdivision (a)(22) mandates a sentence of death or imprisonment without the possibility of parole if "[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." Therefore, section 190.2, subdivision (a)(22) imposes an alternate penalty for murder, not an enhancement.
Admittedly, use of the term "enhancement" in section 12022.53, subdivision (e)(2) has been broadly construed to encompass the alternate penalty provision of section 186.22, subdivision (b)(4). (People v. Brookfield (2009) 47 Cal.4th 583, 593-594.) However, section 12022.53, subdivision (e)(2) references only the statutory scheme containing section 186.22 and does not mention section 190.2. The statute upon which the trial court relied, section 654, does not otherwise bar joint imposition of the gang special circumstance penalty and the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). (See People v. Shabazz (2006) 38 Cal.4th 55, 66-70 [affirming imposition of both punishments upon the shooter in a gang-related murder but only analyzing whether the sentence was permissible under § 12022.53, subd. (j)].)
For the reasons stated, we conclude the trial court erred by staying punishment for the count 1 firearm enhancement. We previously ordered the judgment modified to lift the stay and instructed the clerk of the superior court to prepare an amended abstract of judgment. However, subsequent legislative enactments now permit the trial court to impose a different sentence.
Effective January 1, 2018, Senate Bill 620 amended sections 12022.5 and 12022.53. (Stats. 2017, ch. 682, §§ 1, 2.) Pursuant to those amendments, trial courts may, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss [a firearm] enhancement otherwise required to be imposed ...." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) More recently, Senate Bill 1393 amended sections 667 and 1385. The legislation went into effect on January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2.) As a result, trial courts have discretion under section 1385 to strike or dismiss the five-year sentencing enhancement prescribed by section 667 for prior serious felony convictions.
The People concede Senate Bills 620 and 1393 apply retroactively to all nonfinal judgments. Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Therefore, we accept the concession on the issue of retroactivity. (Accord, People v. Garcia (2018) 28 Cal.App.5th 961, 973; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
The parties dispute the propriety of a hearing to allow the trial court to consider exercising its discretion to strike any of the firearm and/or prior serious felony conviction enhancements. Citing the trial court's imposition of upper terms, which was based on multiple aggravating circumstances and the absence of mitigating circumstances, the People argue a remand would be futile given the unlikelihood of any leniency. Several appellate courts have adopted the following standard:
"Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court's intent, remand is required when the trial court is unaware of its sentencing choices." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
Respondent's argument is unpersuasive in light of the trial court's original stay of the count 1 firearm enhancement. Since the court had no occasion to consider striking the enhancement rather than staying it, we can only guess at how it would exercise its discretion under the new laws. We realize any relief obtained on remand would have no practical impact on defendant's period of incarceration, but that does not justify rejection of his claim.
DISPOSITION
The judgment is affirmed but conditionally remanded for a new sentencing hearing with regard to the enhancements under sections 667, subdivision (a), and 12022.53. On remand, the trial court shall determine whether any such enhancements should be stricken in accordance with sections 1385, subdivision (b), and 12022.53, subdivision (h). If the trial court does not elect to strike the count 1 firearm enhancement, the previously ordered stay of punishment for said enhancement shall be lifted. Upon conclusion of the further proceedings, the trial court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P. J. /s/_________
FRANSON, J.