Opinion
D076547
07-09-2020
THE PEOPLE, Plaintiff and Respondent, v. DANNY RAY GARCIA, Defendant and Appellant.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Melissa A. Mandel, Andrew S. Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF1500923) APPEAL from a judgment of the Superior Court of Riverside County, Anthony R. Villalobos, Judge. Convictions affirmed; sentence vacated and remanded for resentencing. Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Melissa A. Mandel, Andrew S. Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Danny Ray Garcia was convicted by a jury of carjacking, robbery, assault with a deadly weapon, and active participation in a gang. On appeal, Garcia contends that the trial court erred in admitting a coparticipant's hearsay statement as a statement against interest. He further argues that the court erred in admitting expert opinion testimony regarding the meaning of the coparticipant's statement against interest, as well as regarding the meaning of certain statements that Garcia made during a recorded jailhouse phone call to a fellow gang member. Garcia also contends that even if this court determines that none of these errors is individually prejudicial, the cumulative effect of these errors requires reversal. We conclude that none of the errors identified by Garcia requires reversal of his convictions.
Garcia also raises two arguments regarding his sentence. Garcia contends that the one-year prior prison term enhancements that the trial court imposed under Penal Code section 667.5, subdivision (b) must be vacated based on recent amendments to that statute that went into effect January 1, 2020. In addition, Garcia argues that another recent amendment affecting prior serious felony enhancements under Penal Code section 667, subdivision (a)(1), requires remand to allow the trial court to exercise its discretion with respect to whether to strike Garcia's prior serious felony enhancement. The People concede both points, and we accept the People's concessions.
We therefore affirm Garcia's convictions but vacate Garcia's sentence and remand the matter to the trial court for resentencing, with directions to strike Garcia's one-year prior prison term enhancements and to exercise its discretion with respect to whether to strike Garcia's prior serious felony enhancement.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. Facts surrounding the beating, robbery and carjacking
On February 16, 2015, at approximately 9:00 p.m., Robert V. drove to an apartment complex in the northern part of Indio. As Robert got out of his car, a group of men approached him. One of the men spoke to him in a friendly voice, but then "almost immediately," someone struck Robert from behind. Robert felt multiple blows coming at him "from everywhere after that." Robert testified that he may have been hit with an object, as well, because his jaw was fractured in two places. Although Robert tried to defend himself, there were "too many people" attacking him. Robert put his head down and covered his face with his hands while several different people struck him.
According to Robert, the beating lasted approximately five minutes. While the beating was happening, Robert tried to escape from the attack by running into a laundry room at the apartment complex, but the assailants followed him. Robert was able to get out of the laundry room and tried to run back to his car, but he tripped. The attackers continued the assault, and Robert lost consciousness for some period of time.
After the beating eventually stopped, one of the men demanded Robert's wallet and other items, saying, " 'Give me everything.' " Robert placed his wallet, cell phone, and keys on top of a green utility box that was not far from his car.
Once the attackers left, Robert attempted to go back to his car, but the car was gone, as were the items that he had placed on the utility box. Robert stumbled to a neighbor's house and asked the neighbor for help to call his wife. He did not want to call the police; he "just wanted to get out of there." Although Robert did not call the police, he believed that the neighbor called for police assistance.
When police arrived at the apartment complex, they saw that the screen door to the laundry room had been torn off of its hinges, and found what appeared to be blood on a counter inside the laundry room. Robert had several cuts and scratches and his clothing was torn and dirty. He told police that one of the men who attacked him had brandished a knife and said, " 'Give me everything or I'll stab you.' "
Paramedics treated Robert at the scene. He was eventually transported to the hospital for additional treatment. Robert suffered an injury to his left eye that required stitches, as well as a broken jaw and other injuries to his face and head.
2. The telephone calls between Grajiola and other NSI members
At the time of the incident, Max Grajiola, a member of the North Side Indio gang (NSI), was the subject of a judicially-approved wiretap. The wiretap captured and recorded two phone calls that took place not long after the incident at issue. In the first call, made at 9:23 p.m. on February 16, 2015, fellow NSI member David Alejos told Grajiola that Alejos was "[a]t [his own] pad," and that he "just got there right now." Grajiola asked Alejos who was there with him, and Alejos responded, "Me, Dopey and Speedy." Garcia's gang moniker is "Dopey." Another NSI member, Richard Gonzalez, is known by the moniker "Speedy."
Although the trial testimony did not indicate who placed the 9:23 p.m. telephone call, the transcript identifies the first person to speak as Grajiola, which could indicate that Grajiola placed the call.
In the second call, made at 9:30 p.m. that same night, Alejos spoke with Grajiola again briefly, and then handed the phone to Gonzalez. During the conversation between Gonzalez and Grajiola, Grajiola told Gonzalez that, "the task force is right here down the street," and added, "I don't know if they are coming to my pad or what, but they're right here." Gonzalez made some unintelligible comments, and then said, "Don't trip, dog, and shit, you know." After some further discussion, Gonzalez said to Grajiola, "Yeah, we didn't do nothing to Eddie, and everything was fero with old boy, Crook. And uh, that's when we seen ah, old boy Robie pull up and we just ah, took care of him good you know." Gonzalez and Grajiola proceeded to discuss "meet[ing] up somewhere" that day or the next.
3. Robert's identification of Garcia and Gonzalez as two of his attackers
The day after the incident, Robert told police that one of the men who attacked him had referred to one of the other attackers as "Speedy." Approximately a week later, Robert spoke with detectives. Robert's recorded interview was played for the jury. During the interview, Robert repeated that he had heard one of the attackers refer to one of the other men as "Speedy." One of the men brandished a knife and demanded, " 'Give me everything or I'll stab you.' "
Robert was asked to look at photographic lineups to try to identify the men who had attacked him. Robert expressed concern for his safety and the safety of his family if he were to identify anyone. Despite indicating his concern, Robert identified appellant and Gonzalez from the photographic lineups. Robert indicated to the detective that "[Garcia, as indicated in the photographic lineup], him, and the other guy [Gonzalez, as indicated in the photographic lineup] did most of the beating." Garcia said, " 'Hi, how's [it] [g]oing,' " and shook Robert's hand; someone then struck Robert from behind. Robert said that he thought it was Gonzalez who had the knife.
At trial, however, Robert testified that he could not "be for sure" that Garcia was one of the men who attacked him that night "because it was dark when [he] got beat up." Robert conceded that during the photographic lineup presented to him by the police, he had identified Garcia as one of the individuals who participated in the assault. Robert testified that he and Garcia had both been in the "same gang," so he knew Garcia as "Daniel" or "Dopey," and said that Garcia had been "like a brother to [him]."
4. Other gang evidence
Robert had been a member of NSI from the time he was 13 until about three years prior to the trial, and was known in the gang as "Robie." At the time of trial, he was forty years old. Robert had decided to get out of the gang because he did not want his children "to do the same thing [he] was doing."
Robert acknowledged at trial that while he was in the gang, he did not cooperate with police. Those in the NSI gang discourage cooperation with police, and someone who cooperates could end up getting hurt. This was the reason he did not want to report the attack to police. In addition, testifying against gang members is seen as a "bad thing" in gang culture.
Robert said that he did not "gangbang" anymore, and indicated that he was a gang "dropout." Those who drop out of the gang "have a problem" if they testify in court. Robert indicated that he was aware that there could be consequences as a result of his identifying Garcia as one of the people who attacked him.
Indio police detective Matthew Gutting testified as a gang expert regarding the culture and organization of criminal street gangs. Gang members use fear and intimidation to gain respect. If a gang member thinks that he is not being shown respect, he may react violently. In Gutting's opinion, the more violent a person is, the more respect that person garners from other gang members. Gang members are expected to "put in work," which means commit crimes, for the gang. Yelling out a gang's name or a moniker while committing a crime is a way that gang members take credit for the violent crime and cause fear and intimidation. The commission of violent crimes benefits an individual gang member by elevating his respect and status within the gang and by causing increased fear and intimidation in the community. Gang members often discuss or brag about their crimes to their fellow gang members in order to take credit for the crimes that they have committed.
According to Detective Gutting, victims of gang crimes are frequently uncooperative and may not report the crime at all, particularly if the victim is also a gang member. Sometimes victims who initially cooperate will later stop cooperating. A gang member who cooperates with law enforcement is labeled a "snitch" or a "rat."
Gang members use their gang affiliation to intimidate victims, jurors, or other witnesses involved in a case. Gang members use fear and intimidation to persuade victims or witnesses not to testify in court against a fellow gang member.
NSI has been an active criminal street gang since the 1980's, and it claims a specific geographical territory in Indio. At the time of the incident leading to the charged offenses, NSI had 45 to 50 active members. NSI does not allow members to "drop out," and if a former member desires to stop associating with and committing crimes for the gang, that decision is seen as disrespectful to the gang.
Detective Gutting testified that in his opinion, both Garcia and Richard Gonzalez were active members of NSI at the time of the attack on Robert. When presented with a hypothetical situation based on the facts of the offenses at issue here, Gutting opined that such crimes would have been committed for the benefit of a criminal street gang and in association with other gang members.
5. Garcia's telephone call from county jail
On March 8, 2016, while Garcia was in custody in county jail awaiting trial, he placed a telephone call to Ferial Awad. After Garcia and Awad spoke for a while, Awad called Julio Gomez, another NSI gang member, so that Garcia, Awad, and Gomez were all on the line together for some period of time. During the first part of the call, when Garcia and Awad were the only two on the call, Garcia said multiple times that his trial would be starting soon, and stated that he could really use some "prayer" or could use a "prayer group" and wanted Awad to "let the pastor know, you know, from the church." At one point, Awad asked, "Who is the person? I forgot." Garcia responded, "I don't know. I don't even wanna say nothing. [¶] . . . [¶] . . . Over the phone, you know."
Awad then placed a three-way call to Gomez. Garcia told Gomez that the victim had "said it wasn't us" at the preliminary hearing, and that his trial was scheduled to begin soon. Garcia then repeated his request for a "prayer group," and said, "Just to keep, keep me in prayer, you know?" He continued, "Just that the, you know, the courts work in my favor, you know?" Garcia repeated, "And uh, just uh, just keep me in prayer, like I said," and then said, "[A]nd uh, you know, I send my love, and um, boy, uh, co-defendant sends his love too, you know?" Gomez said, "Yeah, yeah, yeah. Okay. Alright, my boy. Yeah, I got you and shit. You know, I'll make sure, fuckin', I'll talk to, you know, everybody and make sure, you know."
Detective Gutting testified that he regularly reviews jail phone calls related to cases that he is investigating. He found it significant that Garcia immediately mentioned his upcoming trial before asking Awad to speak to the pastor about a prayer group. In Gutting's opinion, the reference to a pastor could refer to Gomez who joined the call later, or to another "higher up within the North Side Indio gang." Gutting thought that "the church" and "prayer group" might refer to the gang, particularly given Garcia's vocal emphasis on the phrase "the church," and believed that Garcia's request for prayers was a veiled request for NSI members to intimidate the victim in this case in an attempt to get him not to testify against Garcia. The detective explained that in his opinion, the entire conversation "was coded to make sure that this victim or witness gets intimidated or threatened or persuaded not to come to court." B. Procedural background
A jury convicted Garcia of carjacking (Pen. Code, § 215, subd. (a); count 1), robbery (§ 211; count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and active participation in a gang (§ 186.22, subd. (a); count 4). The jury further found that Garcia committed counts 1, 2 and 3 for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)) and that in committing those offenses, he inflicted great bodily injury (§ 12022.7, subd. (a)).
Further statutory references are to the Penal Code unless otherwise indicated.
In a separate proceeding, the trial court found that Garcia had suffered a prior conviction that constituted both a prior strike (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)). The court also found that Garcia had suffered four prior prison term convictions (§ 667.5, subd. (b)).
The trial court sentenced Garcia to an indeterminate term of 30 years to life on count 1. As to count 3, the court sentenced Garcia to a determinate term of eight years, plus an additional five years for the gang enhancement and three years for the great bodily injury enhancement. The trial court stayed punishment on counts 2 and 4 pursuant to section 654. With respect to Garcia's prior serious felony enhancement, the trial court imposed an additional five years, and then imposed three additional one-year terms for three of Garcia's four prior prison term convictions. The trial court stayed the remaining prior prison term enhancement. The trial court thus sentenced Garcia to a total determinate term of 24 years, to run consecutively to his 30 years to life indeterminate term.
Garcia filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court did not abuse its discretion in admitting a recorded statement that Gonzalez made to another gang member as a statement against Gonzalez's interest
Garcia contends that the trial court abused its discretion in admitting as a statement against interest a statement that Gonzalez made during one of the recorded phone calls between Gonzalez and Grajiola.
1. Additional background
Before trial, the prosecution sought to introduce recordings of the wiretapped telephone calls between Alejos and Grajiola and between Gonzalez and Grajiola that took place shortly after the charged crimes.
In the first call, made at 9:23 p.m. on February 16, 2015, Alejos told Grajiola that he, Alejos, was "[a]t my pad," and that he "just got there right now." When Grajiola asked who was there with Alejos, Alejos responded, "Me, Dopey, and Speedy." In the second call, which occurred seven minutes after the first, Alejos spoke to Grajiola again briefly and then handed the phone to Gonzalez, also known as Speedy. During that conversation, Gonzalez said to Grajiola, "Yeah, we didn't do nothing to Eddie, and everything was fero with old boy, Crook. And ah, that's when we seen ah, old boy Robie pull up and we just ah, took care of him good you know."
Defense counsel filed a written opposition to the admission of the wiretap evidence, arguing that the conversations contained inadmissible hearsay and that they did not meet constitutional requirements of trustworthiness. During arguments on the prosecutor's request to admit the wiretap recordings, defense counsel pointed out that the pronoun Gonzalez used in describing who had taken part in the event was ambiguous, and specifically, that it was unclear to whom Gonzalez was referring when he said "we . . . took care of him." (Italics added.) Defense counsel argued that the second call did not necessarily establish that the persons who committed the assault and carjacking with Gonzalez were the same people who were with Alejos seven minutes earlier, at the time of the first call (i.e., it may not have been "Me, Dopey, and Speedy"). Defense counsel argued that the evidence was "awfully prejudicial," but not very probative because it was unclear that Garcia, also known as Dopey, was part of the "we" to whom Gonzalez referred during the second call. Counsel suggested that the jury could not infer that Garcia was one of the persons to whom Gonzalez was referring based solely on Alejos's earlier statement that Garcia and Gonzalez were with him at his place. Counsel also pointed out that Gonzalez was no longer a codefendant in the case, and suggested that because the pronoun that Gonzalez had used was ambiguous, and because it was not clear that Gonzalez was referring to the charged assault, the statement should be excluded as more prejudicial than probative under Evidence Code section 352.
In support of admitting Gonzalez's statement in evidence, the prosecutor pointed out that the recorded conversations had taken place very close in time to the crimes. The first call took place shortly after the crimes occurred, and the second call took place just a few minutes later. During that second call, Gonzalez can be heard telling a fellow gang member, "[W]e just . . . took care of him [Robie] good." According to the prosecutor, in this context, Gonzalez's statement was admissible as a statement against penal interest, and the jury could infer that Gonzalez was referring to himself, Garcia, and Alejos when he said, "[W]e just . . . took care of him good." (Italics added.)
The trial court concluded that the statements were against Gonzalez's penal interest and that they were sufficiently reliable and trustworthy for admission under Evidence Code section 1230, stating, "Now, as far as the[ ] next thing the Court needs to consider whether it's a statement that's reliable and trustworthy. Both statements were made as part of the wiretap. They—none of the—neither Mr. Gonzalez nor Mr. Alejos knew that [the wiretap] was being conducted. They didn't know that law enforcement was present. They were not responding to any questioning. It was not a law enforcement atmosphere. They were—doesn't appear that they were trying to curry any favor with law enforcement since they didn't know that they were being questioned or that they were—that that was being recorded. They had no expectation that this—statements would be used later as to any one evolved—involved in this incident. In addition, didn't appear that either party attempted to shift blame or to say that they were not involved in any way in this incident. And [it] appears that the statements were against the penal interest. . . . [It a]ppears it is reliable and trustworthy. So defense objection's noted; however, I will allow it at this time."
The court asked whether counsel had anything further to add, to which both defense counsel and the prosecutor responded in the negative.
2. Analysis
Garcia contends that the trial court abused its discretion in admitting Gonzalez's statement to Grajiola that "we just . . . took care of him good" as a statement against interest. According to Garcia, there is an insufficient nexus between the first recorded phone call, during which a speaker had placed Gonzalez and Garcia together at that person's home, and the second call seven minutes later, during which Gonzalez made the statement, "we just . . . took care of him good," such that Gonzalez's admission could not be deemed sufficiently trustworthy to be considered a "declaration against appellant's penal interest."
An appellate court reviews challenges to the admission of evidence under the hearsay exception for statements against interest pursuant to Evidence Code section 1230 for an abuse of discretion. "Whether a trial court has correctly construed Evidence Code section 1230 is, however, a question of law that we review de novo." (People v. Grimes (2016) 1 Cal.5th 698, 711-712 (Grimes), italics added.)
"Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content." (People v. Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez).) "Hearsay is generally inadmissible unless it falls under an exception." (Ibid.) One such exception permits the admission of any statement that "when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) "[T]he rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements." (Grimes, supra, 1 Cal.5th at p. 711.)
"To demonstrate that an out-of-court declaration is admissible as a declaration against interest, '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' " (Grimes, supra, 1 Cal.5th at p. 711, quoting People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).) " 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation]" (Grimes, at p. 711.) In addition, the context in which the statement was made must be considered because a statement that is facially inculpatory of the declarant may, in fact, be an attempt to minimize the declarant's liability and shift blame. (Duarte, at pp. 611-612.) Therefore, a statement should not be deemed sufficiently against the declarant's interest merely because it incorporates an admission of criminal culpability. (Id. at p. 611.)
Garcia first argues that "the nexus between the two phone calls was not strong enough to establish that the statement was trustworthy [as] a declaration against appellant's penal interest." (Italics added.) However, as should be clear from our recitation of the relevant standards, the test to be applied is not whether the statement was against Garcia's penal interest, but rather, whether it was against the declarant's—i.e., Gonzalez's—penal interest when made. A review of the relevant circumstances, as well as Gonzalez's possible motivations and his relationship with Garcia, supports the trial court's determination that the statement was sufficiently reliable as a statement against Gonzalez's interests. First, by using the term "we," Gonzales clearly implicated himself. In addition, Gonzalez admitted that he and others "took care of" the victim in this case. In the context of this phone call, it is clear that the phrase "took care of" was a reference to harming the victim. Further, although Gonzalez also implicated others, he implicated himself equally; this is not a situation where Gonzalez was attempting to shift blame to others. Thus, "the trial court could have reasonably found that, in context, the statement as a whole was specifically disserving of" Gonzalez's interest. (People v. Valdez (2012) 55 Cal.4th 82, 144 [viewed in context of circumstances as a whole, statements that demonstrate conspiracy of which the declarant is part are appropriately viewed as inculpatory].)
The totality of the circumstances also favor a finding of a reliability, as the trial court concluded. Gonzalez spoke from personal knowledge, and had no apparent motive to lie to implicate himself or others. In addition, he made the statement during what he believed to be a private telephone conversation with a friend/fellow gang member, shortly after the attack, and he named the specific victim of the crime. The most reliable situation is one where "the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures." (People v. Greenberger (1997) 58 Cal.App.4th 298, 335; accord, People v. Arceo (2011) 195 Cal.App.4th 556, 577.) Given the inculpatory nature of the statement and the totality of the circumstances under which the statement was made, the trial court did not err in concluding that the statement was sufficiently reliable for purposes of Evidence Code section 1230. (See People v. Arauz (2012) 210 Cal.App.4th 1394, 1399-1401 [accomplice's jailhouse statements to "a paid confidential informant" that were "surreptitiously recorded" were sufficiently trustworthy under Evidence Code section 1230]; see also People v. Edwards (1991) 54 Cal.3d 787, 820 ["[a] reviewing court may overturn the trial court's finding regarding trustworthiness only if there is an abuse of discretion"].)
Garcia also suggests that because Gonzalez's statement is ambiguous as to whether it implicated Garcia along with Gonzalez, it should not have been admitted under Evidence Code section 1230. However, the existence of some "ambiguity regarding the meaning of a party's out-of-court statement" does not automatically render a statement against penal interest inadmissible. (People v. Cortez (2016) 63 Cal.4th 101, 125.) Rather, any ambiguity goes to the weight the jury may give to the evidence. Once the trial court determined that Gonzalez's statement qualified as a statement against his own penal interest, the parties were free to argue the meaning of the statement to the jury. It was for the jury to decide whether, in conjunction with the other evidence, Gonzalez's statement, "we just ah, took care of him good you know" meant that Gonzalez and Garcia had both participated in the beating and carjacking of the victim. (See People v. Guerra (2006) 37 Cal.4th 1067, 1122 [meaning of ambiguous statement relevant to weight, not admissibility].)
Finally, to the extent that Garcia is arguing that because Gonzalez's statement was insufficiently trustworthy, the court's admission of the statement constituted a violation of Garcia's confrontation rights, we reject such a contention, even apart from our rejection of his premise that the statement is insufficiently trustworthy to be admissible as a statement against interest. Specifically, Garcia argues that "[a]bsent clarity as to whom [Gonzalez] was referring . . . when he used the term, 'we,' the trial court erred in finding the statement trustworthy, in violation of appellant's right to confrontation under the Sixth Amendment." Garcia concedes that Gonzalez's statement to Grajiola during the telephone call was not "testimonial" within the meaning of Crawford v. Washington (2004) 541 U.S. 36. In Crawford, the United States Supreme Court described testimonial hearsay as " 'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or . . . ' . . . 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Id. at pp. 51-52, italics omitted.) Obviously, a statement made during a telephone call between gang members cannot be considered to have been made under circumstances that would lead one reasonably to believe that the statement would be available for use at a trial. Given the fact that the statement that Gonzalez made on the telephone call can in no reasonable sense be determined to be "testimonial," it is clear that the trial court's admission of the statement does not raise confrontation clause issues. Nontestimonial hearsay is subject only to "traditional limitations upon hearsay evidence" and does not implicate the Sixth Amendment right of confrontation. (Davis v. Washington (2006) 547 U.S. 813, 821; see People v. Cooper (2007) 148 Cal.App.4th 731, 740-741.) Therefore, even if the trial court had erred in concluding that the statement was sufficiently trustworthy to make it admissible as a statement against interest—which we have already concluded it did not—that error would not have implicated Garcia's Sixth Amendment right of confrontation. B. Although the trial court abused its discretion in allowing the gang expert to testify to his opinion that Gonzalez was referring to Garcia during the recorded telephone call, the error was not prejudicial
In a related contention, Garcia argues that the trial court abused its discretion in allowing the gang expert to testify that, in his opinion, Gonzalez was referring to himself and Garcia when Gonzalez said, "we just . . . took care of him good you know" during his telephone conversation with Grajiola.
1. Additional background
While the attorneys were discussing the admissibility of the statement as a statement against interest, defense counsel argued that the statement was ambiguous and suggested that, to the extent Detective Gutting would be asked about the statement at trial, it would be speculation on the detective's part if he were to testify that Gonzalez was referring to himself and Garcia when he used the term "we." There was no further discussion as to whether it would be appropriate for the detective to express his view as to whom Gonzalez was referring when he told Grajiola "we just . . . took care of him good." At this time, the trial court determined that there was a sufficient showing that Gonzalez's statement was a statement against his interest, and that the statement was sufficiently reliable to warrant its admission pursuant to the statement against interest exception to the hearsay rule.
At trial, on cross-examination, defense counsel asked Detective Gutting about the two phone calls placed on the night of the incident that were recorded pursuant to the wiretap. Gutting acknowledged that in the first phone call, Alejos said only that he, Dopey, and Speedy were at Alejos's house. Gutting conceded that he could not say whether Gonzalez was referring to himself and Garcia in the second call when he said, "we just . . . took care of him good." On redirect, the prosecutor mentioned that defense counsel had asked Gutting about Gonzalez's statement, and specifically, Gonzalez's use of the word " 'we,' " and then said, "Probably too general just that word [']we,['] however[, when] taken in conjunction with the call by Mr. Alejo[s] seven minutes prior where he references who is all there, ['M]e, Speedy[,'] and Speedy does not clarify who the [']we['] is?" Detective Gutting testified that the first call helped to clarify the person or persons to whom Gonzalez was referring in the second call when he told Grajiola that "we just . . . took care of" the victim. Defense counsel objected that the question eliciting this information from Detective Gutting called for speculation, and further objected that the question was leading. The trial court overruled the objections. On recross-examination, Gutting explained that his opinion regarding the persons to whom Gonzalez was referring when we said "we" was based on the timeframe of the phone calls; the two calls happened "[s]o close together" that Gutting thought that Gonzalez was referring to Garcia when Gonzalez said, "we . . . took care of [the victim]." Gutting acknowledged that his opinion was "really [his] speculation," and that it was possible that Garcia was just visiting his cousin, Alejos.
2. Analysis
a. Garcia failed to object on the ground that he raises on appeal
The failure to object to testimony as constituting improper expert testimony results in forfeiture of the issue on appeal. (Evid. Code, § 353; see, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 948; People v. Panah (2005) 35 Cal.4th 395, 477-478.) The rule requiring a specific evidentiary objection exists in order to ensure that the trial court may "take steps to prevent error from infecting the remainder of the trial" and to ensure the development of an adequate record. (People v. Williams (2008) 43 Cal.4th 584, 624.) Further, requiring a specific objection provides the opposing party an opportunity to remedy any admissibility issues and " 'prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.' " (Ibid.)
In the trial court, Garcia objected to the testimony that the prosecutor was attempting to elicit from Detective Gutting on two grounds: that Gutting's opinion testimony concerning the identity of the person or persons to whom Gonzalez was referring to when Gonzalez said, "we just . . . took care of him good," called for speculation, and that prosecutor's question was leading. Garcia did not raise any objection that the anticipated testimony from Gutting constituted improper expert opinion. It is clear that "[a] general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal." (People v. Marks (2003) 31 Cal.4th 197, 228; see People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1433-1435 [objection made based on "vagueness" was insufficient to preserve challenge to gang expert testimony as being beyond the proper scope of expert testimony].)
By failing to make a specific and timely objection in the trial court on the specific evidentiary ground raised on appeal, Garcia has forfeited this contention. (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)
b. Any error resulting from the trial court's allowing Detective Gutting to testify as an expert regarding to whom Gonzalez was referring when he used the word "we" was harmless
Even if Garcia had not forfeited his challenge to Gutting's testimony that, in his opinion, Gonzalez was referring to himself and Garcia when he said "we just . . . took care of him good," during his phone call with Grajiola as being beyond the proper scope of expert testimony, we would nevertheless conclude that the error in admitting the testimony does not require reversal.
"California law permits a person with 'special knowledge, skill, experience, training, or education' in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801)." (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley), disapproved of on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) An expert's opinion must be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) An appellate court reviews the trial court's decision to admit expert testimony for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1223 (Prince).)
" '[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness" ' [citation]." (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.)
In addressing Garcia's argument on this point, the People argue that "even if the jury could have reached its own determination as to the meaning of Gonzalez's statement without the expert opinion testimony, the gang expert's opinion was helpful to the jury in evaluating the statement Gonzalez made to Grajiola," and further assert that "[i]n his direct testimony, the detective explained that gang members commonly brag about and take credit for the violent crimes they commit because they want the gang to know that they ' "actually put in work for the gang." ' . . . He further explained that multiple gang members are often present during gang crimes because members act as 'backup' to assist or facilitate gang crimes and that it was common for members of NSI to commit crimes together."
Although it is true that the subject matter of the culture and habits of criminal street gangs is beyond a jury's common experience and meets the criteria of Evidence Code section 801 (see People v. Vang (2011) 52 Cal.4th 1038, 1044), the People's argument fails to specifically address the issue of whether the question as to whom Gonzalez was referencing when he used the term "we" was actually a matter involving the culture and habits of criminal street gangs, or rather, something much more simple—i.e., a basic factual question regarding to whom Gonzalez was referring when he said "we." It is clear that while it may have been appropriate for Detective Gutting to testify as an expert as to the unique nature of bragging in gang culture or the fact that gang members often work with each other to commit crimes, the factual question about to whom Gonzalez was referring when he said, "we just . . . took care of him good," was one "of such common knowledge that men of ordinary education could reach a conclusion as intelligently as" (People v. Cole (1956) 47 Cal.2d 99, 103) Detective Gutting. Simply put, the jury was as sufficiently equipped as Detective Gutting to determine the meaning of the word "we" uttered by Gonzalez; this was therefore not a proper subject of expert testimony.
Although it was an abuse of the court's discretion to permit Detective Gutting to provide an expert opinion regarding to whom Gutting believed Gonzalez was referring when Gonzalez used the word "we," we conclude that this error was not prejudicial under the Watson standard of prejudice review for evidentiary errors. Specifically, Garcia cannot demonstrate that it is reasonably probable that he would have achieved a more favorable outcome if the complained of testimony had been excluded. (See People v. Prieto (2003) 30 Cal.4th 226, 247 (Prieto) [erroneous admission of expert testimony warrants reversal only if Watson standard of prejudice review is met].)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
In considering the effect of Detective Gutting's expert testimony on this matter, it is clear that Gutting's initial opinion testimony regarding the meaning of the phone call was relatively brief. It was defense counsel who cross-examined him extensively regarding the basis for his opinion. Gutting explained that he based his opinion on the timing of the two calls, but he ultimately agreed that he was engaging in "speculation." Gutting thus undercut the value of his own opinion on the matter. Further, members of the jury clearly could have determined for themselves whether they thought that the word "we" included Garcia. Beyond this, there was ample evidence of Garcia's role in the offense, including the victim's identification of him as one of the perpetrators and as someone the victim had known prior to the assault. Given all of this, it is not reasonably probable that the jury would have reached a result more favorable to Garcia if the court had excluded Gutting's opinion regarding to whom Gonzalez was referring when he said "we just . . . took care of him good." C. The trial court did not err in allowing the gang expert to testify to his opinion that Garcia's jailhouse telephone call was an attempt to get other gang members to intimidate a witness
Garcia contends that the trial court erred in allowing the gang expert to give his opinion that Garcia used coded language during a jailhouse phone call to request that other NSI members intimidate the victim to discourage him from appearing as a witness at trial.
1. Additional background
Before trial, the prosecution sought to introduce evidence of a phone call that Garcia made from jail on March 8, 2016, to Ferial Awad. During that phone call, Awad, connected Julio Gomez, another NSI gang member, to the call. The prosecutor argued that during this conversation, Garcia urged Awad and Gomez to help make sure that the victim did not come to court to testify against him.
Defense counsel objected to the admission of the evidence under Evidence Code section 352, and also objected that Detective Gutting's proffered opinion that Garcia was using coded language during that phone call in an attempt to encourage other gang member to attempt to intimidate the witness to prevent him from testifying would be improper opinion testimony.
At a pretrial hearing, Detective Gutting explained that he had reviewed "jail calls [and/]or communications by gang members to fellow gang members regarding witness intimidation." In Gutting's experience, most of the time, the communications between gang members are in code. In deciphering the meaning of those calls, Gutting considers the entirety of the circumstances of the call, and in particular, pays attention to phrases such as "talk to" or "make sure" that might be used as a specific message to the person on the other end of the call. Detective Gutting explained that he listened to the call that Garcia initiated to Awad several times, and found the use of the terms "pastor," "prayer group," and "church" to be significant. Gutting opined that the conversation between Garcia and another NSI gang member was an attempt by Garcia to have other members of the gang dissuade or prevent the victim from testifying at trial. Defense counsel objected to Gutting's opinion as lacking foundation.
Detective Gutting explained that, in general, there are no specific words used as code words among gang members. He further noted that the call was made as a three-way call; three-way calls are often used by inmates as a way to hide from jail investigators the identity of the third person connected to the call. Gutting then recounted what was said during the call and discussed what stood out to him.
During the call, Garcia first spoke to Awad and asked her to speak to " 'the pastor.' " Given that Garcia never mentioned " 'the pastor' " to Gomez after Gomez was linked into the call, Gutting believed that Garcia was talking about Gomez when he referred to " 'the pastor.' " Garcia also told Awad that his attorney had said that it would be "real nice" if the victim did not show up for trial. Appellant went on to say, "So, um, you know, let's just, let's just pray for that. You know, that uh, that maybe that the victim doesn't show up. You know?" When Gomez was brought into the call, Garcia told Gomez that his trial was going to start the next day and that it would be good if the witness did not show up. In Gutting's opinion, Garcia's reference to a " 'prayer group' " was intended to refer to other members of NSI. According to Gutting, Garcia's message, " 'You know I send my love, and my boy, codefendant, sends his love too,' " was Garcia showing respect to another gang member who was out of custody, and perhaps was someone who was higher in rank. Gomez responded that he would " 'talk to, you know, everybody and make sure, you know.' " Gutting opined that Gomez was agreeing to talk to other gang members and let them know what Garcia wanted done. In his opinion, Garcia's request for "prayers" or a "prayer group" was an effort to let other gang members know that it would be good for Garcia's case if the victim did not testify at the trial, and that he was asking his fellow gang members to do what they could to ensure that the victim did not show up for trial.
Detective Gutting regularly listens to jail phone calls as part of his investigations into gang activity. Gutting had heard other efforts to intimidate witnesses during jail phone calls on only two or three occasions. However, he testified that, in his experience, criminal street gangs commonly engage in witness intimidation and gang members often try to contact witnesses before trial to intimidate them.
The parties stipulated that no one from NSI or on behalf of NSI had contacted the victim from the day of the phone call to the time of trial.
After the attorneys and the court discussed the contents of Garcia's telephone conversation with Awad and Gomez, the trial court concluded that what was said during the call would be admitted in evidence. The court explained:
"I understand, Counsel, there are different interpretations of this, but as the People stated, that will be up to the jury to figure out what interpretation they want to apply to this. But it does appear that he is contacting other gang members and expressing his desire that the victim not show up and how it would benefit his case. So it appears under the totality of the circumstances there is that possible interpretation, and I believe that is relevant. It is prejudicial in a sense, but I think the relevance to this case outweighs the prejudicial effect. And it will be up to the jury then to provide it whatever importance or interpretation they feel is appropriate.
"There are a couple other sections where it's stated by [the prosecutor] regarding statements that Ms. Awad made as to her
understanding—apparent understanding as to what Mr. Garcia was asking for, and then the terms 'pastor' and 'church' are not—are not terms that Officer Gutting has heard before. However, he did state that there are certain things they try to get by, and so in his interpretation, he does believe this was an intent to dissuade a victim or witness.
"So for all those reasons, I'll go ahead and allow it in."
At trial, a redacted version of the recorded conversation was played for the jury. Detective Gutting gave his opinion regarding the meaning of the call and explained the basis for his opinion. For example, Gutting testified, consistent with his pretrial evidentiary proffer, that he regularly reviews jail phone calls related to cases that he is investigating, that he had reviewed over a thousand jail calls that contained hundreds of hours of communications, and that on two or three occasions, he had listened to calls that discussed intimidation of a witness. Gutting explained that gang members often speak in "code" during these calls, using language that only the person spoken to might understand. There is no particular code that all gang members or inmates use during recorded calls; rather, the inmates tend to use subtle hints instead of speaking directly about a subject.
Detective Gutting explained that he found it significant that Garcia mentioned his upcoming trial immediately before asking Awad to speak to the "pastor" about a "prayer group." In his opinion, the reference to a pastor "could possibly be [to] Gomez who we hear later on in the call or a higher up within the North Side Indio gang." Gutting thought that Garcia's reference to "the church" and "prayer group" might relate to the gang, and that Garcia's request for prayers was a veiled request for NSI members to intimidate the victim in this case to try to get him not to testify.
Defense counsel objected that Detective Gutting's testimony on this issue was "just speculation." The court sustained an objection on the ground of speculation to Gutting's opinion that, at some point, Awad seemed to take a little while before understanding the code from Garcia, but later overruled an objection on the ground that the testimony constituted speculation as to Gutting's opinion that, since females often act as couriers, Awad would need to confirm the information that she was being asked to convey as a courier of information.
As part of the jury instructions, the trial court instructed the jury with CALCRIM No. 371, which states, "If the defendant tried to discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
2. Analysis
As we have already outlined in section III.B.2.b, an appellate court reviews the trial court's decision to admit expert testimony for abuse of discretion. (Prince, supra, 40 Cal.4th at p. 1223.) We rely on the same relevant legal standards provided in that section of this opinion in assessing whether the trial court abused its discretion in admitting Detective Gutting's opinion regarding whether Garcia was using coded language and what he may have been trying to communicate through that coded language during the phone call with Awad and Gonzalez. In addition, an expert's opinion based on assumptions of fact must have evidentiary support. (People v. Wright (2016) 4 Cal.App.5th 537, 546.) Further, expert testimony may be premised on material that is not admitted in evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Sanchez, supra, 63 Cal.4th at p. 685.)
The question whether a jail inmate's recorded telephone conversation with a fellow gang member contains an attempt to engage in coded communications about possible witness intimidation is a matter reasonably beyond common lay experience. A layperson might not be aware of patterns in gang communications over recorded telephone lines, or be aware of the fact that gang members may use women as "couriers" for information, or in particular, be aware of the habits of prisoners or the meaning of particular coded language, especially when the language used is constantly evolving to evade detection. Detective Gutting's opinion on this matter would reasonably assist the trier of fact, and was properly admitted as expert opinion testimony. (Evid. Code, § 801; see, e.g., People v. Ochoa (2001) 26 Cal.4th 398, 438-439, abrogated on other grounds as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. `14 [meaning of defendant's "187" tattoo; meaning of gang graffiti, hand signs]; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 [meaning of gang graffiti, tattoos, hand signs, attire]; People v. Gamez (1991) 235 Cal.App.3d 957, 965 [similar], disapproved on other grounds in Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.)
Garcia argues that Detective Gutting's opinion on this matter should not have been admitted because it was speculative and lacked foundation. We disagree. With respect to the factual basis for Gutting's opinion, at the pretrial hearing, Gutting explained that he regularly listens to jail phone calls between gang members, and that gang members frequently use coded or veiled language in order to obscure the meaning of their conversations. He testified that, in general, there is no specific code lexicon used by gang members. Gutting further noted that based on his knowledge and experience, three way calls, like the one ultimately placed to Gomez by Garcia, through Awad, are commonly used by inmates as a way to conceal from jail investigators the identity of the person called. The detective explained that criminal street gangs commonly engage in witness intimidation. All of this provides a foundation to support Gutting's opinions about the phone call at issue. Further, Gutting explained which portions of the call were significant to him and why. For example, Garcia mentioned his upcoming trial immediately before asking Awad to talk to the "pastor." Gutting noted that Garcia's references to requesting a pastor, prayers, or a prayer group, juxtaposed with his comments about his upcoming trial, and the fact that it would be better for him if the victim did not show up for trial, supported Gutting's opinion that Garcia was asking Gomez to contact other gang members to help ensure that the victim did not show up to testify.
Given Detective Gutting's expertise in gang culture, as well as common methods employed by gang members in their communications from jail and the language and context of the phone calls themselves, Gutting's opinion was not unsupported or based on improper speculation, even if the unique code words used by a particular gang member might not be the same in every instance and, thus, may be impossible to pin down in any particular proceeding. We conclude that the trial court acted within its discretion in determining that the unique meaning of jail communications between gang members is outside a juror's common experience, and that expert opinion testimony would assist the trier of fact in determining the significance of the jailhouse phone call.
Finally, we reject Garcia's reliance on Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, to suggest that Detective Gutting's opinion lacked foundation and was based solely on speculation. Hyatt is an automobile personal injury case in which the plaintiff successfully moved in limine to exclude a defense expert's anticipated testimony about the probable speed of the plaintiff's vehicle that was to be based on the alleged skidding or rolling of the vehicle. (Id. at p. 337.) On appeal, the court found that the trial court had not abused its discretion in excluding the defense expert's opinion because there was no evidence supporting the foundational facts that the expert intended to rely on—i.e., there was no evidence that the car had skidded or rolled, thereby rendering the expert's proposed testimony "speculative, conjectural and remote in nature and . . . confus[ing] the jury." (Id. at p. 338.) The court noted that a hypothetical question to an expert must be based on facts shown by the evidence, and that the expert therefore "could not testify with sufficient foundation" as to the speed of the plaintiff's vehicle. (Id. at p. 339.) The court explained that an expert opinion must not be based on speculative or conjectural data, and that "an expert's assumption of facts contrary to the proof destroys the opinion." (Id. at p. 338.) Unlike the basis of the expert's proffered opinion in Hyatt, the expert opinion here was not based on speculation and conjecture or facts contrary to evidence. Given the investigator's expertise and experience with jailhouse phone calls between gang members, coupled with the language and context of the phone call itself, his opinion that the call was consistent with an effort to discourage the victim from testifying was not based solely on conjecture or speculation and did not lack foundation. There is nothing in the underlying evidentiary support or the conclusion that the gang expert drew from it that was speculative or conjectural. The trial court's admission of Detective Gutting's expert opinion regarding the meaning of Garcia's communications with Awad and Gomez on the recorded jail phone call was thus not an abuse of discretion.
However, even if we were to presume error in the admission of Detective Gutting's testimony regarding this recorded jail phone call, we would nevertheless conclude that any such error was harmless. Again, a trial court's erroneous admission of expert testimony warrants reversal only if " 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Prieto, supra, 30 Cal.4th at p. 247.) Garcia cursorily asserts that the prejudicial effect of this evidence outweighed its probative value. We disagree. Even if Detective Gutting had not been permitted to opine on what Garcia meant when he referred to a "pastor," "prayers," and a "prayer group," Gutting still could have testified that gang members often use three-way calls in order to avoid detection by investigators as to the intended targets of their calls, and that gang members often speak in code during jailhouse calls. Given all of this information, the jury would have been free to decide whether Garcia was using code during the phone call at issue, and if so, for what purpose. Garcia's oral emphasis on certain words, such as "prayers," Awad's seeking to clarify the person to whom Garcia was referring when he mentioned the "pastor," and the connection that Garcia seemed to draw between his upcoming trial, the benefit that he might receive if the victim did not show up for trial, and his desire for "prayers" and a "prayer group," could have led jurors to independently conclude that Garcia was using coded language for precisely the reason that Gutting himself surmised—i.e., to indicate to his gang that he wanted their assistance in preventing the victim from testifying at trial. In other words, even absent Gutting's opinion as to Garcia's intended meaning, the jury reasonably could have concluded that he was requesting illicit help from fellow NSI members. Further, the jurors could have understood the People's concession that no attempted intimidation took place after this phone call as undermining the expert's opinion that Garcia had been seeking gang assistance to intimidate the victim.
Most importantly, even if the entire recorded jailhouse call had not been admitted and if Gutting therefore had not opined on the meaning of that call, it is still not reasonably probable that Garcia would have achieved a more favorable outcome in this case, given the fact that the victim, who knew Garcia prior to the incident, specifically identified Garcia as one of his attackers. In light of this evidence, and the evidence from the telephone calls that occurred shortly after the attack, during which Garcia was identified as being with another perpetrator who admitted to participating in the crime and implicated others who had been with him, it is simply not reasonably probable that the jury would have reached a different result with respect to any of the charged offenses. D. There was no cumulative error
Garcia contends that the cumulative effect of all of these errors constitutes a due process violation requiring reversal. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) We have determined that there was only one error, with respect to the court permitting Detective Gutting to testify regarding to whom Gonzalez was referring when he used the word "we" in stating, "we just . . . took care of [the victim] good." Any challenge to that error was forfeited by Garcia's failure to object to Gutting's testimony on the ground that it constituted improper expert testimony. Further, we have determined that this error was harmless. Given the lack of multiple errors, there could be no cumulative prejudicial effect from the existence of multiple errors. E. The People concede that this court should vacate Garcia's sentence and remand the matter for resentencing
1. The section 667 .5, subdivision (b) enhancements
In his opening brief on appeal, Garcia argued that the trial court erred in imposing a one-year prior prison term enhancement under section 667.5, subdivision (b), for his 2010 conviction for possession of a controlled substance because that term was served concurrently with his 2011 conviction for robbery. According to Garcia, because he served his sentence for the possession of a controlled substance offense concurrently with the robbery offense, the prior prison term for the possession of a controlled substance offense was not a separate prior prison term for purposes of a section 667.5, subdivision (b) prison prior. After the parties completed full briefing in this appeal, Garcia sought leave to file a supplemental brief in order to apprise this court of a recent amendment to the law regarding his prison prior enhancements. We granted Garcia's request. In his supplemental brief, Garcia contends that three of the one-year enhancements imposed under section 667.5, subdivision (b) must be vacated based on recently-enacted legislation. The People concede that this court should remand the matter to the trial court for that court to strike the enhancements found true by the trial court pursuant to section 667.5, subdivision (b).
The People point out that the trial court found that Garcia had suffered four prior prison term convictions under section 667.5, subdivision (b) that should be vacated and reconsidered by the court on remand: (1) a 2010 conviction for possession of a controlled substance in case number INF1000325; (2) a 2011 conviction for robbery in case number INF1101472; (3) a 2012 conviction for forgery in case number INF1101856; and (4) a 2013 conviction for possession of drugs or alcohol in prison in case number RIF1300924. The court imposed but stayed execution of a one-year term for the section 667.5 subdivision (b) prior prison term enhancement based on the 2011 robbery conviction, and imposed a one-year term each for the three remaining prior prison term enhancements. Thus, there are four prior prison term convictions under section 667.5, subdivision (b) that must be stricken.
At the time Garcia was sentenced, section 667.5, subdivision (b) provided that "the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170." However, effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) Section 667.5, subdivision (b) limits one-year prior prison term enhancements to cases in which the prior prison term was imposed for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). It is undisputed that Garcia's prior offenses do not qualify as sexually violent offenses under the amended section 667.5, subdivision (b). The People concede that because Garcia's judgment is not yet final, he is entitled to the benefit of the change in the law. (People v. Jennings (2019) 42 Cal.App.5th 664, 682; see also In re Estrada (1965) 63 Cal.2d 740 (Estrada).) We agree with the People's analysis.
We therefore conclude that Garcia's sentence must be vacated. The case is remanded to the trial court with directions that the trial court strike all four of the prior prison term enhancements and resentence Garcia to a term that does not exceed the originally imposed term. (See People v. Keene (2019) 43 Cal.App.5th 861, 865; People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].)
2. The section 667 , subdivision (a)(1) enhancement
Garcia also argues that Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393), which became effective during the pendency of Garcia's case, requires that this court remand to allow the trial court to consider whether to dismiss the prior serious felony enhancement imposed under section 667, subdivision (a)(1). The People concede that the trial court should be given the opportunity to exercise its discretion with respect to striking the prior serious felony enhancement.
On September 30, 2018, the Governor signed Senate Bill No. 1393, which, as of January 1, 2019, amended sections 667 and 1385 to give a trial court the discretion to dismiss five-year sentence enhancements under section 667, subdivision (a). (See Legis. Counsel's Dig., Sen. Bill No. 1393 ["This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of [a] 5-year enhancement . . ."]. ) The People concede that because Garcia's case was not yet final as of the date that Senate Bill No. 1393 became effective, its provisions are applicable in this case. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973 [Sen. Bill No. 1393 applies to all cases not yet final when Sen. Bill No. 1393 becomes effective on Jan. 1, 2019, pursuant to the authority of Estrada, supra, 63 Cal.2d at pp. 744-745].) We agree with the People's assessment.
Remand in such circumstances is required unless "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement" even if it had the discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [concluding that no purpose would be served by remand because the record "clearly indicated" that the trial court would not, in any event, have exercised its discretion to lessen the sentence].) As the People further concede, the record in this case does not demonstrate that remand would be futile, given that the record is silent as to whether the trial court would have imposed the enhancement if its imposition had not been statutorily mandated. Accordingly, on remand, the trial court shall have the opportunity to exercise its discretion pursuant to recently-amended section 1385.
IV.
DISPOSITION
Garcia's convictions are affirmed. The sentence is vacated, and the case is remanded to the trial court for resentencing. On remand, the trial court shall strike all four of Garcia's one-year prior prison term enhancements, and shall exercise its discretion with respect to whether to impose Garcia's prior serious felony enhancement. The term of any new sentence imposed shall not exceed the term originally imposed by the court.
AARON, J. WE CONCUR: MCCONNELL, P. J. DATO, J.