Opinion
H043180
08-17-2017
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ZUNIGA-GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F28140)
I. INTRODUCTION
A jury convicted defendant Pedro Zuniga-Garcia of three counts of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); counts 1, 4 & 8), two counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2 & 9), one count of assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1); count 3), two counts of resisting a peace officer (§ 148, subd. (a); counts 5 & 6), and one count of destroying evidence (§ 135; count 7). The jury also found true allegations that defendant committed counts 2, 3, 5, 6, 7, and 9 (i.e., all of the counts other than the active participation counts) for the benefit of a criminal street gang (§ 186.22, subds. (b)(1) & (d)), and the trial court found true allegations that defendant had a prior serious felony conviction (§ 667, subd. (a)), which qualified as a strike (§§ 667, subds. (b)-(i), 1170.12), for which defendant had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to an aggregate prison term of 29 years four months.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends (1) there was insufficient evidence to support count 7, his conviction for destroying evidence; (2) the instruction on destroying evidence erroneously told the jury that an attempt to destroy evidence was sufficient; (3) there was insufficient evidence to support count 4, one of his convictions for active participation in a criminal street gang; (4) the gang expert should not have been permitted to rely on testimonial hearsay and booking statements; (5) the gang expert should not have been permitted to link his opinions to specific facts of the case; (6) the trial court erred by denying the defense request for juror contact information; (7) the trial court erred by denying the defense motion for a new trial; (8) the gang enhancement associated with the assault in count 3 should be reduced to a one-year term; (9) the term for destroying evidence should be stayed pursuant to section 654; and (10) defendant is entitled to additional custody credit.
The Attorney General concedes that there was insufficient evidence to support defendant's convictions in count 7 (destroying evidence) and count 4 (one of the active participation counts). The Attorney General also concedes sentencing error with respect to the gang enhancement associated with count 3 (assault by means of force likely to produce great bodily injury). Finally, the Attorney General concedes that defendant is entitled to additional custody credit.
For reasons that we shall explain, we will reverse the judgment and order the trial court to do the following: (1) reduce count 7 to a conviction of attempted destruction of evidence, (2) reverse one conviction of active participation in a criminal street gang (count 4), (3) modify the gang enhancement associated with count 3 to a one-year term, and (4) award defendant additional custody credit.
II. BACKGROUND
Defendant's convictions arose from three incidents. The first incident involved two assaults during a March 2008 party at a residence on Eureka Canyon Road. The second incident occurred while defendant was in jail following the first incident: he resisted two officers and attempted to flush several "kites" down the toilet. The third incident involved an assault in February 2009 at the Watsonville City Plaza.
A. The March 2008 Eureka Canyon Incident (Counts 1-3)
Jose Ayala hosted a party at a residence on Eureka Canyon Road in Watsonville on March 1, 2008. Although not invited, defendant went to the party with his friends Jesus Ramirez and Miguel Gonzalez. Defendant and Ayala introduced themselves to each other at the party. Defendant referred to himself as Termite from the City Hall gang. Defendant said he had just been released from jail for stabbing a "scrap," i.e., a Sureño gang member.
At about midnight, Ramirez shouted that he had been stabbed. Ramirez, Gonzalez, and defendant all shouted, "[W]ho the fuck stabbed the homie." A fight broke out inside the house. Both defendant and Ramirez were fighting.
Ayala pushed defendant outside, where the fighting continued. He saw Gonzalez use a two-by-four piece of wood to hit a few people, including Omar Contreras. Ayala's then-girlfriend, Blanca Lara, saw defendant and his associates "beating" a guy who was trying to get into his car. Meanwhile, everyone else ran back inside the house.
According to Ayala, he went outside and told Gonzalez to "[c]alm down and leave the party." According to Lara, Ayala and his friends came out of the house and shouted that defendant and his associates should leave, but defendant, Gonzalez, and Ramirez ran back towards the house and began fighting with Ayala and his friends.
During the ensuing fight, Gonzalez hit Ayala in the head with a two-by-four piece of wood. Ayala tried to run back towards the house, but Gonzalez hit him again. Defendant, Gonzalez, and Ramirez then all started hitting, kicking, and punching Ayala. Ayala managed to get back into the house. He looked outside and saw Gonzalez again hit Contreras with the piece of wood. Defendant and Ramirez then punched and kicked Contreras. After some guests helped Contreras get into the house, defendant and his two associates broke some windows using rocks, a chair, and the two-by-four piece of wood.
Santa Cruz County Sheriff's Deputy Paul Nagamine was the first law enforcement responder to the party. He interviewed Megan Santos, the girlfriend of Contreras. Santos described seeing three subjects enter the house, yelling, "City Hall Norteno." The three subjects then "started hitting random people," throwing things, and breaking windows.
Santa Cruz County Sheriff's Sergeant Stefan Fish responded to the party and stopped a vehicle that was driving away. Three males were in the vehicle, and they all initially denied having been in the fight. They all admitted being Sureño gang members—specifically, members of the Brown Pride Santa Cruz subset. One of the Sureño gang members had fresh injuries. Sergeant Fish found a large knife under the driver's seat of the vehicle and another knife on the person of one of the Sureño gang members. Neither knife had blood on it.
A deputy found defendant in the backseat of a vehicle that drove into the parking lot of Watsonville Hospital. Defendant had a small cut on his left arm. Defendant was taken into custody.
Officers searched Ramirez's house a few weeks after the incident. They found gang graffiti on a fence outside his house, a red cross above Ramirez's bed, and an address book with "CHW" (for City Hall Watsonville) on the cover. At trial, Ramirez testified that after he was stabbed in the back at the party, he got angry and started to fight. He admitted hitting people with a piece of wood. He admitted lying to an officer at the hospital. He admitted that he hung around Norteño gang members at the time and that he had a red "NorCal" star tattoo on his shoulder.
A search warrant was also served at defendant's house. Photographs introduced at trial showed carvings on the side of defendant's bed, including "WVCH X4" (for Watsonville City Hall 14), "Termite," and "Watsonville," with the "s" crossed out. Officers also found some "red-themed" hats and a CD with gang writing on it. In addition, officers found letters addressed to defendant from Norteño jail inmates. The letters made it clear that defendant held a high status in the gang.
Ramirez and Gonzalez were both convicted of assault charges stemming from the Eureka Canyon incident, with gang allegations found true or admitted.
B. The April 2008 Jail Incident (Counts 4-7)
On April 7, 2008, defendant was in the Norteño unit at the Santa Cruz County jail. Correctional Officers Nick Flores and Scott Enrico ordered defendant and his cellmate out of their cell in order to conduct a search. Defendant grabbed something from the floor, lunged towards the toilet, threw the object into the toilet, and tried to flush the toilet.
Officer Enrico grabbed defendant's arms before defendant could flush the toilet. Defendant resisted Officer Enrico, trying to twist and pull away from him. Officer Flores tried to grab defendant's hands and then wrapped his arms around defendant. All three fell to the ground, where defendant continued to struggle. Defendant stopped struggling when Officer Enrico threatened to use pepper spray.
Officer Flores retrieved several kites from the toilet. The kites, which contained gang communication, were blurry due to water damage. The kites indicated that defendant was "in a position of authority" in the gang. The kites requested "incident reports" from other Norteño gang members and were going to be sent out to other Norteño gang members.
C. The February 2009 Watsonville City Plaza Incident (Counts 8 & 9)
In October 2008, defendant was released on bail.
On the afternoon of February 10, 2009, Jose Lopez, a member of the Sureño gang Poor Side Watsonville, was in the Watsonville City Plaza, taking a break from his college classes. Lopez was wearing a Dallas Cowboys jacket—clothing favored by Sureño gang members. A group of five or six Norteño gang members approached Lopez, who tried to run away. The Norteños called Lopez a "scrap" while chasing him. Lopez was pushed to the ground and stabbed in the back during the incident.
Watsonville Police Sergeant Michael Ridgway, who had been on motorcycle patrol, followed three men he saw running shortly after the stabbing. After the men split up, he followed defendant (one of the three men). He ordered defendant to stop, but defendant fled to a residential property.
Police found defendant hiding in a shed. A blood-stained knife was found in the shed, and there was blood on defendant's clothing. Defendant had a small cut on his finger. Defendant's DNA was on the knife handle, and there was "strong evidence" that Lopez (the victim) was the major contributor to the blood on the knife blade.
On May 19, 2009, defendant was arraigned on charges stemming from the February 2009 Watsonville City Plaza incident. During a break in the proceedings, defendant "absented himself from the courthouse." He was not located until May 30, 2014.
D. Gang Evidence
Santa Cruz County District Attorney Inspector Morgan Chappell testified as a gang expert. At the time of his trial testimony in June 2015, Inspector Chappell had been working for the District Attorney's Office for almost a year. Inspector Chappell had previously been a sergeant with the Watsonville Police Department; he had worked there for six and a half years. As an inspector, he investigated gangs and homicides, and as a police sergeant, he had "mostly worked gangs." In the latter capacity, he had contact with gang members every day. He also had gang experience through his prior positions with the Burlingame Police Department and with the California Department of Corrections.
1. Gang Culture and Symbols
Inspector Chappell testified that in Norteño gang culture, it is important to back up fellow gang members during fights. If a Norteño gang member sees a fellow Norteño gang member getting beaten up, he is expected to "jump in" and defend his fellow gang member.
When determining whether someone is a gang member, police look for "tattoos, bookings, admissions they've made, crimes they've committed, people who they've spent time with, people they've been identified with in police reports, people they've been arrested with, the types of crimes they commit, where they elect to be housed within correctional facilities when they go there, and just, generally, the picture that they paint of themselves to the world."
Norteño tattoos include the letter N, the number 14, the word "Norte," and other common Norteño signs and symbols, such as a huelga bird, a five-point nautical star, and the color red. Norteños may also have tattoos that are specific to their "hood" or subset. Watsonville City Hall is a Norteño gang subset.
2. Evidence of Defendant's Gang Membership
Defendant had a large "Watson" tattoo across his chest, a "CH" tattoo (for City Hall) on his stomach, a five-point nautical star by his left eye, and a huelga bird tattoo on his left forearm. The tattoo by his left eye indicated that defendant held "rank and status in the gang." Defendant also had an "SK" tattoo, which he apparently got while in custody. The "SK" stood for "Scrap Killer." The "S" was crossed out to indicate disrespect for Sureños.
As noted above, gang indicia was also found at defendant's house: gang carvings on his bed, gang clothing, gang writing, and the letters addressed to defendant from Norteño jail inmates that showed defendant held a high status in the gang.
3. Defendant's Criminal History and Booking Statements
Defendant's criminal history dated back to 1996; certified copies of his criminal records were introduced into evidence.
In February 1996, defendant and two other Norteños went into Sureño territory. Defendant tried to lure a Sureño into running towards the other two Norteños, who were armed with bats.
In September 1997, defendant and other Norteños confronted a Sureño. Defendant said something to the effect of "Shoot those guys. This is all about City Hall." Someone did shoot at the victim, and the next day, defendant threw a bottle at the same victim. Defendant was subsequently interviewed by the police, and he admitted being in the City Hall gang and having the nickname Termite.
In October 1997, defendant and other Norteño gang members flashed gang signs and shouted gang slogans, and they committed a battery on a Sureño. Defendant told police that he attacked the Sureño because the Sureño had flashed gang signs at him.
Also in October 1997, defendant and four others attacked a gang dropout. Defendant stabbed the victim multiple times, and another person took the victim's wallet. As a result of this incident, defendant was sent to the California Youth Authority (CYA) until 2000.
In July 2000, while in CYA, defendant attacked a rival gang member and was convicted of assault with a deadly weapon. Defendant went to prison until 2007.
During a jail booking in May 2014, defendant stated that he was a "Northern gang member" and that he needed to be housed with other Norteño gang members. Defendant had made similar statements at his 2008 booking following the Eureka Canyon incident.
4. Inspector Chappell's Opinions
Inspector Chappell had reviewed incident reports for all three incidents leading to the current charges against defendant. Inspector Chappell acknowledged that he was not present during the March 2008 Eureka Canyon incident and that he had no knowledge of "what was going on in the defendant's head" at the time. However, he provided opinions based on a hypothetical situation in which three Norteños were leaving a party but were taunted as they were walking away. Inspector Chappell believed that the taunting was "the kind of disrespect that would generally, amongst Nortenos, provoke a violent reaction."
Inspector Chappell believed defendant was a member of, and active participant in, a Norteño gang. He believed Ramirez and Gonzalez were also Norteño gang members. He also believed that any crimes defendant, Ramirez, and Gonzalez had committed during the March 2008 Eureka Canyon incident were done in association with the Norteño criminal street gang.
Inspector Chappell likewise believed that the attempted destruction of kites during the 2008 jail incident was "the kind of crime that would also benefit the Norteno gang." The kites held "sensitive information" that gang members would not want "to fall into the hand of law enforcement."
Inspector Chappell also believed that the 2009 Watsonville City Plaza stabbing incident was committed for the benefit of the Noreteño gang. His opinion was based on the fact that the victim was a Sureño and the fact that the crime was committed "in broad daylight," in front of witnesses.
Inspector Chappell testified that Norteño gang members, including members of the City Hall subset, engage in crimes such as stabbings, shootings, robberies, violent assaults, and drug sales. In his opinion, those crimes are the primary activity of the Norteño gang and the City Hall subset. His opinion was based on his investigations as well as the fact that "those are the crimes that continue to come - come across my desk time and time and time again."
5. Predicate Offenses
Inspector Chappell described three predicate offenses committed by Norteño gang members. First, City Hall gang member Ritchie Betancourt (nicknamed "Devil") committed a stabbing in January 2007. Betancourt and some other City Hall gang members had gone to a Sureño neighborhood and approached the victim, who Betancourt stabbed in the neck. As reflected in certified court documents, Betancourt was convicted of assault with a deadly weapon with a gang enhancement. Betancourt had tattoos including "Watson" across his chest and "City Hall" on his forearms.
The second predicate offense was committed by Norteño gang member Richard Martinez (nicknamed "Spider"). In February 2007, Martinez committed a robbery and an assault with a deadly weapon following a threat to kill the victim if he did not hand over his money. Martinez's tattoos included a five-point nautical star, "Watson" on his forearm, and a strawberry behind his ear, which is a common tattoo of the North Side subset. A certified copy of Martinez's conviction of robbery with a gang enhancement was admitted into evidence.
The third predicate offense was a robbery committed by City Hall gang member Francisco Vasquez in March 2007. Vasquez and some other City Hall gang members had called the victim a scrap, demanded his money, yelled out, "Puro Norte" and "City Hall," and then beat up the victim. Vasquez's tattoos included the nautical star and "NorCal." A certified copy of Vasquez's conviction was admitted into evidence.
E. Defense Evidence
Michael Roberts saw defendant sitting on a park bench on the afternoon of the February 2009 Watsonville City Plaza incident. Defendant, who had been talking to two females, suddenly jumped up and ran. Three men chased defendant. Defendant fell down or was tripped. The three men fell on top of defendant. Defendant got up and took off running again; he ran past a police officer on a motorcycle. Roberts was subsequently housed in the same jail unit as defendant.
Roberts's prior testimony was read to the jury.
Forensic consultant James Norris, an expert in evidence collection, testing, and preservation, had viewed the knife recovered from the shed after the 2009 Watsonville City Plaza incident. He had examined the knife in May 2015. He had also viewed a photograph of the knife taken by the police around the time of the incident. The knife blade was "a lot cleaner" when he examined it, and thus it had lost its evidentiary value. He opined that the officers had not complied with "proper practices" in evidence collection and preservation.
F. Charges
Based on the March 2008 Eureka Canyon incident, defendant was charged with active participation in a criminal street gang (§ 186.22, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1)) on Contreras (count 2) and Ayala (count 3). The information alleged that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of both assaults and that defendant committed both assaults for the benefit of a criminal street gang (§ 186.22, subd. (b)).
Based on the April 2008 jail offenses, defendant was charged with active participation in a criminal street gang (§ 186.22, subd. (a); count 4), two counts of resisting a peace officer (§ 148, subd. (a); counts 5 & 6), and one count of destroying evidence (§ 135; count 7). The information alleged that defendant committed counts 5 through 7 for the benefit of a criminal street gang (§ 186.22, subd. (d)).
Based on the February 2009 Watsonville City Plaza incident, defendant was charged with active participation in a criminal street gang (§ 186.22, subd. (a); count 8) and assault with a deadly weapon on Lopez (§ 245, subd. (a)(1); count 9). The information alleged that defendant committed the assault for the benefit of a criminal street gang (§ 186.22, subds. (b) & (d)).
The information further alleged that defendant had a prior serious felony conviction (§ 667, subd. (a)), which qualified as a strike (§§ 667, subds. (b)-(i), 1170.12), and for which defendant had served a prior prison term (§ 667.5, subd. (b)). Finally, the information alleged that defendant had committed counts 8 and 9 while released from custody on bail (§ 12022.1).
G. Verdicts and Sentencing
A jury found defendant guilty of all three counts of active participation in a criminal street gang (counts 1, 4 & 8), both counts of resisting a peace officer (counts 5 & 6), two counts of assault with a deadly weapon (counts 2 & 9 [Contreras and Lopez]), and destroying evidence (§ 135; count 7). As to the third count of assault with a deadly weapon (count 3 [Ayala]), the jury found defendant guilty of assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1)). The jury found each of the great bodily injury allegations not true, but it found all of the criminal street gang allegations true.
The trial court found true the prior serious felony, strike, and prior prison term allegations.
The trial court sentenced defendant to an aggregate prison term of 29 years four months. The trial court imposed an eight-year term for count 2 (assault with a deadly weapon on Contreras); consecutive two-year terms for count 3 (assault by means of force likely to produce great bodily injury on Ayala) and count 9 (assault with a deadly weapon on Lopez); and consecutive one-year, four-month terms for count 5 (resisting Officer Flores), count 6 (resisting Officer Enrico), and count 7 (destroying evidence). The trial court stayed the terms for all three counts of active participation in a criminal street gang (counts 1, 4, & 8) pursuant to section 654. The trial court imposed consecutive five-year terms for the prior serious felony conviction and for the gang allegation associated with count 2, and it imposed consecutive one-year eight-month terms for the gang allegations associated with counts 3 and 9. The trial court struck the punishment for the prior prison term allegation.
III. DISCUSSION
A. Count 7 - Destruction of Evidence
Defendant contends, and the Attorney General concedes, that there was insufficient evidence to support count 7, his conviction for destroying evidence. The parties disagree, however, as to the appropriate remedy: defendant urges this court to reverse the conviction, while the Attorney General asserts that we should reduce the conviction to attempted destruction of evidence.
1. Standard of Review
The standard of review for an appellate challenge to the sufficiency of the evidence to support a conviction is well-established. "The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
2. Section 135 and Jury Instruction
Section 135 provides: "A person who, knowing that any book, paper, record, instrument in writing, . . . or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor."
The trial court instructed the jury on destruction of evidence as follows: "The defendant is charged in Count 7 with destroying or concealing evidence. [¶] To prove that the defendant is guilty of this crime, . . . the People must prove that, one, the defendant willfully destroyed or attempted to destroy a book, paper, record, or instrument in writing; two, the defendant knew that the book, paper, record, or instrument in writing would be produced in evidence in a trial; and, three, when he willfully destroyed or attempted to destroy a book, paper, record, or instrument in writing, the defendant had the specific intent to prevent the book, paper, record, or instrument in writing from being produced at trial."
3. Analysis
Defendant makes two contentions with respect to his conviction of destroying evidence. First, he argues that there was insufficient evidence he "actually destroyed" any evidence. Second, he argues that there was insufficient evidence he knew the kites were "about to be produced in a trial" and insufficient evidence that he destroyed the kites with the intent to prevent their production at trial.
The Attorney General concedes defendant's first point, and we find the concession appropriate. This court has explained that "[t]he purpose of section 135 is to prevent the obstruction of justice" and that "[t]he plain meaning of 'destroy' is to ruin something completely and thereby render it beyond restoration or use. [Citation.]" (People v. Hill (1997) 58 Cal.App.4th 1078, 1089 (Hill).) If the defendant's efforts to destroy evidence are unsuccessful, in that "the evidence is or can be restored and used," the evidence "has not been destroyed" within the meaning of section 135. (Hill, supra, at p. 1089.) "[R]ather, such efforts constitute an attempt: a direct, but ineffectual, act toward the commission of a crime. [Citations.]" (Ibid.)
In Hill, this court reversed a conviction for destruction of evidence. In that case, the defendant tore up several forged travelers checks and tossed them from a car, but "he did not ruin them completely or render them beyond restoration or use." (Hill, supra, 58 Cal.App.4th at pp. 1089-1090.) The checks "were easily reassembled and admitted into evidence at trial, and thus were no less useful for having been torn." (Id. at p. 1090.) This court noted that "[a]t most, the tearing of checks was an attempt to destroy them." (Ibid.)
Here, defendant tossed the kites into the toilet but was prevented from flushing them. They were retrieved from the toilet and introduced into evidence at trial, where Inspector Chappell read from them. The kites were still useful as evidence and thus, they were not destroyed within the meaning of section 135.
Although the Attorney General suggests we reduce defendant's conviction to an attempted violation of section 135, defendant contends his conviction should simply be reversed because he lacked the requisite knowledge and intent for a conviction of either destroying evidence or attempting to destroy evidence.
Defendant acknowledges that section 135 applies when evidence is destroyed with the knowledge that it is "about to be produced in evidence upon a trial, inquiry, or investigation" (§ 135), and that the evidence supported a finding that he intended to destroy the evidence to prevent it from being discovered by the jail officers for their "investigation into gang-related matters." However, he points out, the jury was not instructed on that theory. Rather, the jury was instructed that defendant was guilty of violating section 135 only if defendant knew that the evidence "would be produced in evidence in a trial" and defendant "had the specific intent to prevent the [evidence] from being produced at trial."
Defendant relies on People v. Prysock (1982) 127 Cal.App.3d 972 (Prysock), in which the defendant argued that he could not be convicted of violating section 135 for his act of burning the clothes he and a coparticipant were wearing during a crime. The Prysock defendant argued that the evidence did not show that the clothes "were 'about to be produced' in evidence and/or that he so knew." (Prysock, supra, at p. 998.) The appellate court agreed. The court held that the phrase "about to be produced in evidence" (§ 135) "connotes an immediacy or temporal closeness" (Prysock, supra, at p. 1000), and that there was no evidence "that any law enforcement investigation in fact had started and/or that law enforcement was or would be looking for the particular item" (id. at p. 1001).
At the time of the April 2008 jail offenses, defendant had recently been charged with active participation in a criminal street gang (§ 186.22, subd. (a)), and gang enhancements had been alleged as to both of the charged assaults. Thus, this case is distinguishable from Prysock, in which there were no pending charges and no evidence that even an investigation had begun. Here, the jury could reasonably find, beyond a reasonable doubt, that defendant knew that evidence of his gang activity, such as kites, was "about to be produced in evidence upon a trial" and that defendant attempted to destroy the kites "with the intent to prevent [them] or [their] content from being produced" at a trial. (§ 135.) Therefore, substantial evidence supports a conviction of attempted destruction of evidence, and we will direct the trial court to modify count 7 to reflect a conviction of attempting to destroy evidence (§§ 664/135).
Because we have concluded that no substantial evidence supports defendant's conviction of destroying evidence as charged in count 7, we need not reach defendant's alternative contention with respect to that count: that the instruction on destroying evidence erroneously told the jury that an attempt to destroy evidence was sufficient.
B. Count 4 — Active Participation in a Criminal Street Gang
Defendant contends, and the Attorney General concedes, that there was insufficient evidence to support count 4, his conviction for active participation in a criminal street gang based on the April 2008 jail offenses. The parties agree there was insufficient evidence that defendant willfully promoted, furthered, or assisted "in any felonious criminal conduct by members of [a] gang" (§ 186.22, subd. (a)) because his criminal conduct consisted of misdemeanors—resisting police officers (§ 148, subd. (a)) and attempting to destroy evidence (§§ 664/135)—which were elevated to felonies only as a result of the associated gang allegations (§ 186.22, subd. (d)).
Our Supreme Court has held that in order to establish a violation of section 186.22, subdivision (a), "the prosecution must prove that the charged gang member willfully promoted, furthered, or assisted members of his gang in felonious criminal conduct that is distinct from his otherwise misdemeanor conduct . . . ." (People v. Lamas (2007) 42 Cal.4th 516, 519-520.)
As the Attorney General concedes, "there was no inherently felonious conduct to support an active participation charge." Thus, defendant's conviction of count 4 must be reversed.
Because we have concluded that count 4 must be reversed, we need not reach defendant's alternative contention with respect to count 4: that the instruction on participation in a criminal street gang was erroneous because it failed to tell the jury that the crimes of resisting a peace officer and destroying evidence were misdemeanors.
C. Gang Expert — Testimonial Hearsay
Defendant contends the gang expert should not have been permitted to rely on testimonial hearsay and booking statements when rendering his opinions about defendant's gang membership and the issue of whether the offenses were committed for the benefit of a criminal street gang.
1. Proceedings Below
The prosecutor filed motions in limine to introduce gang evidence—including gang expert testimony—and to admit defendant's gang admissions made during his jail booking. The prosecutor argued that the gang expert could properly rely on "hearsay and other inadmissible evidence" in forming his or her opinions, and that defendant's booking statements were admissible despite the fact they were not preceded by Miranda warnings.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Defendant filed motions in limine to limit gang evidence and to exclude gang expert testimony that would be based on testimonial hearsay. Defendant argued that it would be "legally inappropriate for the prosecution's gang expert to recite [evidence] in hearsay form" and that a limiting instruction (telling jurors not to consider the hearsay for its truth) would not cure the prejudice.
At a hearing on motions in limine, the prosecutor argued that under state law, a gang expert could "rely on hearsay and recite the basis for his opinion," and that through cross-examination, the defense could bring out the fact that the gang expert was relying on reports. Defendant's trial counsel reiterated his position that a gang expert could not "testify to incompetent hearsay."
At another hearing on motions in limine, defendant's trial counsel argued that the trial court should exclude defendant's booking statements. He argued that although the booking process had "some administrative purpose," there was also "a simultaneous criminal investigative purpose," such that a booking statement should be excluded if Miranda warnings were not given.
The trial court ruled that the gang expert could "express the basis" for his opinion, "even when that includes what would otherwise be inadmissible hearsay." The trial court further ruled that defendant's admissions during the booking process could be introduced into evidence.
2. Applicable Law
After trial in this case, the California Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In Sanchez, the court held that "case-specific statements" related by a gang expert as the basis for the expert's opinion constituted inadmissible hearsay, and that admission of some of the statements, including facts taken from police reports prepared by other officers, constituted "testimonial" hearsay under the Sixth Amendment. (Sanchez, supra, at pp. 670-671; see Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford) [testimonial hearsay is inadmissible unless the witness is unavailable or there was a prior opportunity for cross-examination].) The court explained that "[c]ase-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried" and are distinguished from "generally accepted background information." (Sanchez, supra, at p. 676.) The court clarified that an expert may relate to the jury "case-specific facts asserted in hearsay statements" if the facts are "independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) The court disapproved its prior opinion in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Sanchez, supra, at p. 686, fn. 13.) The court also noted that because a jury "must consider expert basis testimony for its truth in order to evaluate the expert's opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth." (Id. at p. 684.)
The Supreme Court also decided People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde) after defendant's trial. In Elizalde, the California Supreme Court held that classification interviews that take place while a defendant is booked into jail constitute custodial interrogation for purposes of Miranda. (Elizalde, supra, at pp. 527, 530-540.) The court further held that a defendant's un-Mirandized responses to questions about gang affiliation during a classification interview are not within the public safety exception to the definition of custodial interrogation under Miranda. (Elizalde, supra, at pp. 540-541.) Thus, a defendant's answers to "unadmonished gang questions" posed during the booking process are inadmissible in the prosecution's case-in-chief. (Id. at p. 541.)
3. Analysis
Defendant identifies the following gang expert testimony as being "likely" based on testimonial hearsay: the primary activities of Norteños, the facts underlying the predicate offenses, the facts underlying defendant's prior crimes, and defendant's admissions during jail booking interviews.
There was no Sanchez error with respect to Investigator Chappell's testimony about the primary activities of the Norteño gang and City Hall subset. Investigator Chappell testified that his opinion was based on his having "investigated" such crimes, and he referenced crimes that "come across [his] desk," but he did not "relate[] to the jury case-specific out-of-court statements" in rendering that opinion. (See Sanchez, supra, 63 Cal.4th at p. 686.) As reaffirmed in Sanchez, an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Id. at p. 685.)
We do agree with defendant that the record indicates Investigator Chappell relied on testimonial hearsay when he testified about the facts underlying the predicate offenses and the facts about defendant's prior convictions. Although Investigator Chappell did not describe the source of his information, many of the offenses predated his work with the Watsonville Police Department, and thus the record strongly suggests that his testimony about the details of those offenses was based on information in police reports—specifically, "statements about a completed crime, made to an investigating officer by a nontestifying witness." (See Sanchez, supra, 63 Cal.4th at p. 694.) Thus, that testimony was inadmissible.
We also agree with defendant that the record strongly suggests that defendant's admissions to gang membership made during the jail booking process were inadmissible under Elizalde, supra, 61 Cal.4th 253 because there were no Miranda advisements given prior to the classification interviews.
However, after carefully reviewing the record, we conclude that defendant was not prejudiced by the admission of Investigator Chappell's testimony about the details of the predicate offenses and defendant's prior convictions/prior juvenile adjudications, nor by the admission of Investigator Chappell's testimony about defendant's booking statements.
First, the details of the predicate offenses were not necessary to establish the requisite "pattern of criminal gang activity" (see § 186.22, subds. (e) & (f)), and certified copies of the Betancourt, Richard Martinez, and Vasquez convictions were introduced into evidence. Those records of conviction were admissible as official records (Evid. Code, § 1280) and were nontestimonial. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 (Taulton) [records that are "prepared to document acts and events relating to convictions and imprisonments" are beyond the scope of Crawford].) Further, it was not necessary to prove all three predicate offenses. The commission of only two offenses is required to show a "pattern of criminal gang activity." (§ 186.22, subd. (e).) Moreover, the charged crime can be one of the two predicate offenses (Gardeley, supra, 14 Cal.4th at p. 625), and evidence of a predicate offense committed by another gang member on the same occasion can show the requisite pattern. (People v. Loeun (1997) 17 Cal.4th 1, 10.) Admissible evidence here showed that Ramirez and/or Gonzalez were also Norteño gang members: the circumstances of the 2008 Eureka Canyon incident, as to which both Ramirez and Gonzalez were found to have acted for the benefit of a criminal street gang; Ramirez's gang tattoo; and the gang indicia found at Ramirez's house. Admissible evidence also showed that during that incident, Ramirez and Gonzalez committed assaults with a deadly weapon and/or assaults by means of force likely to product great bodily injury, both of which are listed in section 186.22, subdivision (e)(1). Thus, admission of any testimonial hearsay about the predicate offenses was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
Second, there was no prejudice from admission of Inspector Chappell's testimony about the details of defendant's prior offenses and defendant's booking statements. Although that testimony was relevant to show defendant's gang membership, that testimony was insignificant in comparison to other evidence that established defendant was a Noreteño gang member and a member of the City Hall subset. (See Yates v. Evatt (1991) 500 U.S. 391, 403 [under Chapman, "an error did not contribute to the verdict" if that error was "unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record"], disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) The admissible evidence of defendant's gang membership included his tattoos, the evidence that he introduced himself to Ayala as being Termite from City Hall, the kites found in his jail cell, and the gang indicia found at his home. Additionally, the records of defendant's convictions and juvenile adjudications were admissible as official records (Evid. Code, § 1280) and were nontestimonial. (See Taulton, supra, 129 Cal.App.4th at p. 1225.)
The significant additional evidence distinguishes this case from Sanchez, in which the admission of testimonial hearsay was prejudicial error because "[t]he main evidence of [the] defendant's intent to benefit [his gang] was [the expert's] recitation of testimonial hearsay." (Sanchez, supra, 63 Cal.4th at p. 699.) In light of the admissible evidence establishing that members of the Norteño gang had engaged in a pattern of criminal activity and the admissible evidence establishing that defendant was a member of the Norteño gang, no reasonable jury would have failed to convict defendant of the substantive gang offense or found the gang allegations untrue if Inspector Chappell's challenged testimony had been excluded.
Finally, the admission of Inspector Chappell's testimony about defendant's prior offenses was not prejudicial with respect to the issue of whether defendant committed the 2008 Eureka Canyon assaults. Defendant was positively identified by Ayala, who was certain of his identification, as one of the perpetrators of the assaults. Defendant was also found in the backseat of a vehicle that drove into the parking lot of Watsonville Hospital soon after the incident. At the time, defendant had a small cut on his left arm, suggesting his recent participation in a fight.
In sum, the admission of hearsay evidence through the gang expert, while violating Sanchez, supra, 63 Cal.4th 665, was harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)
D. Gang Expert — Opinion
Defendant contends the prosecution's gang expert should not have been permitted to link his opinions to specific facts of the case.
1. Proceedings Below
In his response to the prosecution's in limine motion regarding gang evidence, defendant requested an order prohibiting the gang expert from mentioning defendant "by name in any hypothetical regarding specific intent or mental state." The trial court does not appear to have ruled on this request.
When Inspector Chappell testified, the prosecutor asked the following hypothetical: "If any crimes were found to have been committed at the Eureka Canyon incident, in your opinion, would the fact that the defendant is a Norteño, Miguel Gonzalez is a Norteño, and Jesus Ramirez is a Norteño make any crimes they committed together something that was done in association with the Norteño criminal street gang?" Inspector Chappell responded, "Yes, absolutely."
The prosecutor also posed the following question: "In your opinion, was the incident in the jail, assuming a crime is found to have been committed by the jury, the attempted destruction of those kites, is that the kind of crime that would also benefit the Norteno gang?" Inspector Chappell responded, "Yes," then explained, "Because kites generally hold sensitive information that they don't want to fall into the hand of law enforcement."
The prosecutor asked Inspector Chappell whether, based on his review of the incident reports regarding the 2009 Watsonville City Plaza incident, the stabbing was done for the benefit of the Norteño gang. Inspector Chappell responded, "Yes," then explained that the victim had been a Sureño who was in City Hall territory and that the stabbing had occurred in broad daylight.
The prosecutor asked, "So if you had a situation where a Sureno was wearing obvious Sureno gear, such as a Cowboys jacket, . . . is that the kind of thing that would disrespect the Nortenos?" Inspector Chappell responded, "Yes," and further affirmed that such behavior was "the kind of thing that" Nortenos would "take violent action in response to." Inspector Chappell testified that he also found it significant that, after the stabbing, the Norteños ran towards City Hall territory while the victim ran back towards Sureño territory.
When defendant's trial counsel objected that the expert was "testifying concerning specific facts of this case" and "it was not posed as a hypothetical," the trial court overruled the objection.
2. Applicable Law
" 'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." [Citation.]' [Citation.]" (People v. Vang (2011) 52 Cal.4th 1038, 1045 (Vang).) The facts underlying a hypothetical question must, however, "be rooted in the evidence." (Id. at p. 1046.) With respect to gang experts, it is generally improper for an expert to "testify directly whether [the defendant] committed the assault for gang purposes," but such an expert may "express an opinion, based on hypothetical questions that tracked the evidence," whether a particular crime "if the jury found it in fact occurred, would have been for a gang purpose." (Id. at p. 1048.) "[I]n some circumstances," however, "expert testimony regarding the specific defendants might be proper. [Citations.]" (Id. at p. 1048, fn. 4, citing People v. Valdez (1997) 58 Cal.App.4th 494.)
Defendant analogizes to People v. Torres (1995) 33 Cal.App.4th 37, in which an officer improperly testified about the definition of robbery and expressed his opinion that " '[t]hat is what happened in this particular case.' " (Id. at p. 44.) In that case, the officer's testimony "expressing the opinion the crimes were robberies was tantamount to expressing the opinion defendant was guilty of robbery" and first degree felony murder. (Id. at p. 48.)
Here, some of the prosecutor's questions were properly framed as hypotheticals. He qualified his question about the 2008 Eureka Canyon incident, asking, "If any crimes were found to have been committed at the Eureka Canyon incident," would such crimes be committed for the benefit of a criminal street gang. This question tracked the language approved in Vang: whether a particular crime "if the jury found it in fact occurred, would have been for a gang purpose." (Vang, supra, 52 Cal.4th at p. 1048.) The same is true for the prosecutor's question about "the incident in the jail," which asked Inspector Chappell to "assum[e] a crime is found to have been committed by the jury." The prosecutor's hypothetical about whether a person wearing "obvious Sureno gear, such as a Cowboys jacket," would been seen as disrespectful by Norteño gang members was also proper.
The prosecutor's question about the 2009 Watsonville City Plaza incident, however, was not phrased as a hypothetical. The prosecutor asked Inspector Chappell whether, based on his review of the incident reports, he believed that the stabbing was done for the benefit of the Norteño gang. Inspector Chappell responded, "Yes," then explained that the victim had been a Sureño who was in City Hall territory and that the stabbing had occurred in broad daylight.
Although the gang expert's opinion testimony about the 2009 Watsonville City Plaza incident was not given in response to a hypothetical, the error was harmless. First, the jury was instructed on the limited significance of expert testimony: pursuant to CALCRIM No. 332, the jury was told that when considering an expert's opinions, the jury was "not required to accept them as true or correct." The jury was further instructed that it could "disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." Second, independent evidence overwhelmingly established that the incident was gang related. Lopez testified that he was a member of the Sureño gang Poor Side Watsonville at the time. Lopez told an officer that he had been assaulted by a group of five or six Norteño gang members, who called Lopez a "scrap" while chasing him. Lopez had been wearing a Dallas Cowboys jacket—clothing favored by Sureño gang members. And several witnesses testified that the stabbing occurred during the day.
On this record, it is not reasonably probable that the jury would have reached a result more favorable to defendant had Inspector Chappell testified about the 2009 Watsonville City Plaza incident in response to hypothetical questions. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
E. Juror Contact Information
Defendant contends the trial court erred by denying the defense request for juror contact information in light of a juror declaration stating that the jury had convicted defendant of counts 2 and 3 based on an improper theory of aiding and abetting.
1. Proceedings Below
After the jury's verdicts, defendant filed an ex parte application for juror contact information. (See Code Civ. Proc., §§ 206, subd. (g), 237, subd. (b).) Defendant included a declaration signed under penalty of perjury by Juror M.B., which stated: "The jurors were divided about the verdict on the counts alleging assault against Jose Ayala and Omar Contreras. There was no unanimous agreement about what, if anything, [defendant] did with respect to those counts. We wound up agreeing that we could convict him of the charges on an aiding and abetting theory because he failed to intervene and stop the others from assaulting Ayala and Contreras. Our verdicts as to those counts were based on the belief that he could be convicted for failing to intervene and prevent the assault. All jurors believed that [defendant] arrived with Jesse Ramirez and Miguel Gonzalez, remained with them throughout the night and left with them after the assaults without trying to stop them."
"Pursuant to Section 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. . . ." (Code Civ. Proc., § 206, subd. (g).)
". . . The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information . . . ." (Code Civ. Proc., § 237, subd. (b).)
The trial court denied that request, finding that the juror declaration "would not be admissible evidence" because it "goes into matters that would violate [section 1150] of the Evidence Code."
Defendant then filed a motion for a new trial, alleging juror misconduct, and he renewed his request for juror contact information. In his motion for a new trial, defendant argued that the jury's discussion "was in direct contravention of" the trial court's instruction on aiding and abetting. Pursuant to CALCRIM No. 401, the trial court had instructed the jury, "If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent a crime does not by itself make him or her an aider and abett[o]r."
At a hearing on January 14, 2016, the trial court again denied defendant's request for release of juror contact information, indicating it did not believe Juror M.B.'s declaration was admissible under Evidence Code section 1150.
2. Applicable Law
Evidence Code section 1150, subdivision (a) provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him [or her] to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
Evidence Code section 1150 thus "distinguishes 'between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . .' [Citation.] 'This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.' [Citations.]" (People v. Steele (2002) 27 Cal.4th 1230, 1261.)
Evidence Code section 1150 "may be violated not only by the admission of jurors' testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150." (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.)
3. Analysis
Defendant argues that the trial court misapplied Evidence Code section 1150, in that the declaration he submitted included juror statements that qualified as admissible overt acts.
Defendant relies on two cases that involved juror statements about the defendant's failure to testify: People v. Johnson (2013) 222 Cal.App.4th 486 (Johnson) and People v. Perez (1992) 4 Cal.App.4th 893 (Perez). In Johnson, three jurors told the defendant's stepfather that during deliberations, " 'at least half of the jurors . . . raised the question if he is innocent why he didn't take the stand to defend himself.' " (Johnson, supra, at p. 495.) The Court of Appeal held that "the mere making of such a statement in the jury room was an overt act of misconduct and admissible as such under Evidence Code section 1150. [Citations.]" (Ibid.) Similarly, Perez held the trial court could properly consider statements indicating jurors had discussed the defendant's failure to testify. (Perez, supra, at p. 908.) Evidence that "the jury had explicitly or implicitly agreed to disregard the court's express instruction not to consider or discuss [the defendant's] failure to take the witness stand" was "admissible to impeach the verdict under the express provisions of Evidence Code section 1150." (Ibid., fn. omitted.) The Perez court explained that "evidence of a jury discussion on an improper topic [is] admissible as an 'overt act,' provided the evidence is not directed at the subjective reasoning processes of the individual juror. [Citations.]" (Id. at pp. 907-908, emphasis added.)
The instant case does not involve jurors' discussion of a prohibited subject such as defendant's failure to testify, but rather jurors' discussion of how they reached certain verdicts. As such, this case is distinguishable from Johnson and Perez because the jury declaration here was "directed at the subjective reasoning processes" of individual jurors. (Perez, supra, 4 Cal.App.4th at p. 907.) The declaration here indicated the rationale certain jurors used to find defendant guilty of counts 2 and 3.
This case falls under the rule that "juror declarations are inadmissible to the extent that they purport to describe the jurors' understanding of the instructions or how they arrived at their verdict. [Citations.]" (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1125.) This rule precludes consideration of a juror declaration even when the declaration indicates that one or more jurors failed to follow the trial court's instructions. For instance, in Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, juror declarations stated that certain jurors had "defined a ' battery' as contact which is intentional or unlawful or harmful or offensive" in a manner contrary to the trial court's instruction, "which provided a battery 'is any intentional, unlawful and harmful or offensive contact by one person with the person of another.' " (Id. at pp. 1682-1683.) The appellate court found that the juror declarations were inadmissible because they "recited only the reasoning process of the jurors during deliberations." (Id. at p. 1684.) Even where a juror declaration indicates a verbal agreement regarding application of the trial court's instructions, Evidence Code section 1150 prohibits consideration of the juror's statements of their thought processes. (See People v. Dillon (2009) 174 Cal.App.4th 1367, 1384, fn. 9 [Evid. Code, § 1150 prohibited admission of juror declarations that indicated jurors had " 'verbally discussed and agreed' " on a certain understanding of the relevant instructions].) "The subjective quality of one juror's reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning. To hold otherwise would destroy the rule . . . which clearly prohibits the upsetting of a jury verdict by assailing these subjective mental processes. It would also inhibit and restrict the free exchange of ideas during the jury's deliberations." (People v. Elkins (1981) 123 Cal.App.3d 632, 638.)
In this case, the juror declaration contained statements that reflected the subjective reasons certain jurors voted to convict defendant of the assaults charged in counts 2 and 3. As such, the trial court properly found that the statements were inadmissible under Evidence Code section 1150, subdivision (a) and found no good cause to support defendant's request for juror contact information.
F. Motion for a New Trial
Defendant contends the trial court erred by denying the defense motion for a new trial. His argument depends on the admissibility of the juror declaration—he asserts that the declaration "established a prima facie case of juror misconduct, which raised a presumption of prejudice" that was not rebutted. As we have previously concluded, the trial court properly found that the juror declaration was inadmissible under Evidence Code section 1150, subdivision (a). Thus, the trial court did not err by denying defendant's motion for a new trial. (See People v. Engstrom (2011) 201 Cal.App.4th 174, 182 [first step in trial court's ruling on a motion for a new trial based upon jury misconduct is a determination of " 'whether the affidavits supporting the motion are admissible under Evidence Code section 1150, subdivision (a)' "].)
G. Gang Enhancement — Count 3
Defendant contends, and the Attorney General concedes, that the gang enhancement for count 3, assault by means of force likely to produce great bodily injury, should be reduced from one year eight months to one year.
As noted above, at sentencing, the trial court selected count 2 (one of the assault with a deadly weapon counts) as the principal term and imposed the upper term of eight years for that count, with a consecutive five-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(B), which applies when the underlying felony is a serious felony as defined in section 1192.7, subdivision (c). The trial court imposed a consecutive sentence of two years for count 3—i.e., one-third the midterm—and a consecutive sentence of one year eight month for the associated gang enhancement. The trial court apparently calculated the one-year eight-month term for the count 3 gang enhancement at one-third of five years.
As defendant points out, assault by means of force likely to produce great bodily injury is not a serious felony as defined in section 1192.7, subdivision (c). Thus, the appropriate gang enhancement was section 186.22, subdivision (b)(1)(A), which provides for an additional term of two, three, or four years. One-third of the midterm would be one year. Thus, we will order the term imposed for the gang allegation associated with count 3 reduced to one year.
H. Count 7 — Section 654
Defendant contends the term for count 7 (which we will order reduced to attempted destruction of evidence) should be stayed pursuant to section 654 because that offense involved "the same conduct and the same objective" as counts 5 and 6 (the two counts of resisting a peace officer).
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Thus, "[s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
A trial court's finding of separate intents or objectives is "a factual determination that must be sustained on appeal if supported by substantial evidence [citation]." (People v. Osband (1996) 13 Cal.4th 622, 730.)
Defendant asserts that People v. Martin (2005) 133 Cal.App.4th 776 (Martin) "is instructive" with respect to the instant case. In Martin, the defendant was being escorted to a police car, in handcuffs, when he began physically resisting. In the course of trying to prevent the officers from putting him in the patrol car, the defendant "jerked his body backwards and wrapped his leg around" the leg of an officer, causing the officer to be injured. (Id. at p. 780.) The defendant was convicted of both resisting arrest and battery on a peace officer, and he was sentenced to concurrent terms. (Ibid.) On appeal, he argued that section 654 prohibited multiple punishment because "both offenses were incident to his sole objective to escape." (Martin, supra, at p. 780.) The appellate court agreed that section 654 applied because the defendant's "sole objective in both resisting arrest and committing battery on a police officer was to free himself." (Martin, supra, at p. 781.) The court noted that the battery on an officer did not "appear to have been intentional, but merely the result of appellant's physical gyrations aimed at freeing himself." (Ibid.)
Martin is distinguishable because here, defendant's attempted destruction of evidence was "intentional," and not "merely the result of defendant's conduct in resisting the officers. (Martin, supra, 133 Cal.App.4th at p. 781.) Further, here the attempted destruction of evidence preceded defendant's act of physically resisting the officers. Defendant continued to struggle with the officers even after he was prevented from flushing the toilet and brought to the ground; he stopped struggling only when an officer threatened to use pepper spray.
We conclude that substantial evidence supports the trial court's implicit finding that defendant had multiple objectives in first attempting to destroy evidence and in later resisting the officers. Therefore, section 654 does not prohibit the imposition of separate punishment for count 7.
I. Custody Credit
The trial court awarded defendant 830 days of actual custody credit and 830 days of conduct credit, for a total of 1,660 days of credit. Defendant contends he is entitled to five additional days of actual custody credit. The Attorney General agrees, as do we.
Defendant was in custody for five separate time periods: (1) on March 1, 2008 [one day]; (2) from March 21, 2008 to October 2, 2008 [196 days]; (3) on February 10, 2009 [one day]; (4) from February 17, 2009 to April 5, 2009 [48 days]; and (5) from June 5, 2014 to January 14, 2016 [589 days]. Thus, defendant spent a total of 835 days in custody and, including conduct credits, was entitled to a total of 1,670 days of credit. We will order the trial court to award defendant the proper amount of custody credit.
IV. DISPOSITION
The judgment is reversed. The trial court is directed to: modify defendant's conviction of destruction of evidence (Pen. Code, § 135) in count 7 to reflect a conviction of attempted destruction of evidence (Pen. Code, §§ 664/135) and resentence him on that count; strike defendant's conviction of active participation in a criminal street gang (Pen. Code, 186.22, subd. (a)) in count 4; modify the Penal Code section 186.22, subdivision (b)(1)(B) gang enhancement associated with count 3 to a one-year term pursuant to Penal Code section 186.22, subdivision (b)(1)(A); and award defendant an additional five days of actual custody credit and an additional five days of conduct credit.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.