Opinion
E065727
01-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOAQUIN GRANADOS, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1100160) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed as modified. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Robert (Bobby) Granados, a member of the North Side Beaumont gang, stabbed Scott F. outside his home in 2010. Defendant was arrested and released on bail when he attacked Willie D. and Ian R. at a Halloween party, stabbing Ian. Three weeks later, defendant stabbed Isidro F., who was arguing with Isidro F.'s girlfriend. Defendant was convicted of two counts of aggravated assault, one count attempted murder, and of being an active participant in a street gang. The jury also made true findings as to enhancements for knife use, great bodily injury and that the assault on Scott was committed for the benefit of a gang. Defendant was sentenced to a determinate term of 22 years, consecutive to an indeterminate term of life for the attempted murder. Defendant then appealed.
In pronouncing sentence, the trial court imposed a term of "7 years to life" for the attempted murder. However, the statutory term for attempted murder is life with possibility of parole (Pen. Code, §§ 664, 187, subd. (a)). Of that indeterminate term, a defendant must serve a minimum of 7 years. (Pen. Code, § 3046, subd. (a)(1).)
On appeal, defendant challenges his attempted murder conviction on the ground that the out-of-court statements of Isidro F. did not qualify as spontaneous declarations, and that the admission of the statements violated his constitutional right to confront witnesses; he also challenges his conviction for active participation in a street gang, the court's failure to give a unanimity instruction as to count 4 (a second count alleging active participation in a street gang), the imposition of concurrent terms for counts 2 and 3 (involving the assaults on victim Ian R. and Willie D.), the imposition of a fee for drug education, and the order prohibiting defendant from possessing deadly or dangerous weapons for life. We affirm as modified.
BACKGROUND
At trial, many of the witnesses experienced memory lapses, so we will summarize the facts that support the verdicts returned by the jury.
The witnesses failed to recall key facts due to fear of retaliation. Thus, at trial, the People offered their prior statements made to police as inconsistent statements. Insofar as the jury's verdicts rested upon these out-of-court statements, we recount them here, with appropriate note taken of discrepancies.
1. The Scott F. Incident, November 23, 2010, Count 1
On November 23, 2010, at approximately 5:30 p.m., Scott F.'s mother and sister returned to his mother's apartment with groceries, which Scott helped unload. Scott lived with his mother in an apartment in the complex, and his sister Sarah M. lived in a different apartment in the same complex. As Scott brought in the groceries, he was passed by a group of Hispanic males, walking single file. He squinted trying to recognize them. The last person to pass him said something to him about mad-dogging them, and then stabbed Scott from behind.
Sarah M. heard her brother scream that he had been stabbed and called 911. She was familiar with defendant because her oldest brother was a friend of defendant's. In the 911 call, which was played for the jury, defendant was identified as the person who stabbed Scott. Officer Ditty responded to the scene and contacted Sarah, who was reluctant to speak out of fear of retaliation. However, at that interview, she eventually disclosed that it was defendant who stabbed her brother. At trial, she did not remember her brother telling her who had stabbed him, or telling police she was afraid of retaliation.
In the hospital, Officer Cruz contacted Scott, who gave a summary of the incident as described above. Officer Cruz asked if defendant was the person who stabbed him, and Scott answered in the affirmative after first stating he did not know who stabbed him. Scott had known defendant for most of his life. He picked defendant's picture out of a photographic lineup while still in the hospital. He also recognized one of the other people with defendant as defendant's uncle, Ali.
At trial, Scott testified he did not get a good look at the person and did not know who stabbed him. He did not recall identifying defendant as the stabber, picking his picture out of the photographic lineup, or telling the officer he knew one of the other men in the group. However, he did recall hearing something about a threat after the incident.
While defendant was in custody, a letter was found during the execution of a search warrant at the residence of Carlos Montes, a member of the Northside Beaumont gang to which defendant belonged. The letter was dated February 13, 2011, and was signed by "Sicko." A gang expert testified that defendant's gang moniker was "Sicko." In the letter, Sicko sought to have "Smoke" (Carlos Montes) and "Shorty" go with Sicko's dad to pay a visit to Scott with "Wacko" to scare Scott with a "strap" (gun).
The defendant objected to admission of the letter into evidence during Scott's testimony, when asked if he had been informed of a threat, and later during the gang expert's testimony, on grounds of hearsay and lack of foundation. Although the letter was initially ruled admissible for the limited purpose of showing its effect on Scott, it was later admitted as evidence that defendant was an active participant in the Northside Beaumont street gang.
Defendant was released on bail for the Scott F. incident on May 3, 2011.
2. The Willie D. Incident, October 15, 2011, Count 3
On October 15, 2011, Willie D. was at his ex-wife's house to act as security at a party for his son, Willie D., Jr. on Grace Street in Beaumont. There were approximately 50 to 100 people at the party, of different races and ethnicity. For the most part, it was a friendly party. But there was a group of Hispanics wearing hoodies off to the side. Shawnshana I. (Shawnie), a friend of Willie's daughter Sheree, was dancing near the group of Hispanics and bumped into one of them, resulting in an argument. Willie D., Jr. informed his father, Willie D., that some uninvited guests were present and there were arguments. Willie D., Jr., asked his father to ask the group to leave.
When he got outside, Willie D. saw a person wearing a tank top who was "huffing and puffing" and looking upset. Willie D. went up to the individual, later identified as defendant, tapped defendant on the arm, and asked defendant what was going on. Defendant was upset, so Willie asked defendant to leave. Defendant punched Willie in the face. Willie began fighting with defendant and was being hit from all sides. Willie was struck on the back of the head and in the face with the butt of a knife. He suffered a black eye and a gash on the back of his head. Shawnie told police she was three feet away and could see the man who struck Willie D. clearly.
Another incident occurred at the party, involving Ian R., who was stabbed after the altercation with Willie D., which formed the basis for count 2 of the second amended information. However, defendant was acquitted of that count.
Willie told Officer Ditty, who was dispatched to the scene, that the chubby Hispanic male who punched him also swung a knife at him; Willie did not mention other people behind him who swung a knife, except after he fell to the ground trying to dodge the knife. Willie D. told Officer Ditty at the scene that he could identify the attacker with the knife, so, based on other information obtained at the scene, Officer Ditty went to the police station and to prepare a six-pack photographic lineup. He showed the lineup to Willie in the kitchen of the house where the party had been held, in the presence of Shawnie. Willie pointed to defendant's photograph but was not a hundred percent sure. Shawnie pointed to defendant's picture and identified him by name.
At trial, Willie insisted that the person who struck him with the knife was someone other than the defendant. He denied telling Officer Ditty at the scene that the same person who punched him also pulled a knife on him. Also at trial, Shawnie denied personally being involved in the argument with defendant or that she personally saw anything, explaining that it was her friend Sheree who was involved, and that later, when Willie was shown the lineup, it was Sheree who got into the argument with the men who hit Willie D., and pointed out defendant's picture; Shawnie just relayed the information to the officer. Contrary to Shawnie's testimony that Sheree was present for the interview on the night of the incident, Officer Ditty testified that he interviewed Shawnie alone.
3. The Isidro F. Incident, November 1, 2011, Count 5
On November 1, 2011, Isidro F. was stabbed twice in the ribs and once in the bicep. Officer Velasquez responded to scene where Isidro was lying on the ground, bleeding from his chest, moaning in pain. Officer Velasquez accompanied Isidro F. in the ambulance to the hospital because he was unsure if Isidro would survive. In the ambulance, Officer Velasquez asked Isidro F. who stabbed him, but Isidro stated he was not a snitch. The officer kept questioning Isidro in case Isidro died, until finally Isidro stated it was a "Southsider," referring to the South Side Beaumont gang. Officer Velasquez relayed this information to his watch commander at the police station.
As the officer relayed this information to the watch commander, Isidro volunteered that he was not a gangster, and then said something to the effect of, "You know who did this to me; Bobby, South Side Beaumont Fourth Street." The officer continued to press Isidro for identifying information, but Isidro would not say defendant's last name, only that he "kicked it" with Eighth Street, referring to another gang, North Side Beaumont, that claimed Eighth Street. When asked if Bobby had family in Beaumont, Isidro explained that the whole city was his family, and Isidro described Bobby as being bald, and wearing a black tank top.
At the hospital, Officer Velasquez accompanied Isidro to the emergency room where he resumed questioning after Isidro had been stabilized. During this conversation, Isidro explained that he had been arguing with his girlfriend, who appeared to see something behind Isidro. Isidro was sucker-punched in the face, and then stabbed in the left side of his chest. When he dropped his arm to protect himself, he was stabbed in the bicep, but continued to fight a little until he felt a sharp pain on the left side of his body, at which point he collapsed. Isidro told Officer Velasquez it was a Granados.
Isidro said, "You know who did this. It's a Granados homie." It is unclear if Isidro meant it was a homie of a member of the Granados family, or if he meant it was a member of the Granados family.
Officer Velasquez continued to press Isidro for information, asking him why defendant would stab him. Isidro explained it was a "beef" that when "way back" to a time which Isidro had accused defendant of raping a female, leading to a fight. Isidro believed the stabbing was done in retaliation. Based on all the information obtained from Isidro, which was relayed to the watch commander, a six-pack photographic lineup was prepared and brought to the hospital at about 1:30 a.m. Isidro pointed to defendant's photograph, but refused to circle or sign the lineup.
Other officers who had responded to the scene reported that defendant had run into an apartment complex. It was learned that defendant had a cousin, Ernie Granados, who lived in that complex. Because Ernie was on probation, the officers knew they could search his apartment without a warrant. The officers made entry to the apartment where defendant was observed; defendant jumped out of the second story window to the ground below, where he was pursued by other officers and taken into custody after a brief struggle. During the struggle, defendant was struck with an officer's knee on his left side and with a forearm on the side of defendant's face. A search of Ernie's apartment revealed a black tank top and a knife inside a shirt on the floor.
At the station, defendant was treated by paramedics in a temporary holding cell. During the paramedics' examination of defendant, one of them asked defendant if he knew why he was there. Defendant explained that he had stabbed someone and had run from the police. In the videotape of the contact, this statement by defendant is not audible.
At trial, Isidro did not recall anything about the incident, claiming he had been drinking heavily. Isidro also denied knowing defendant or defendant's family, being familiar with Beaumont gangs, or telling the officer that the stabbing was payback for accusing defendant of raping a woman. He also did not recall telling the police that he did not want to be a snitch, or identifying defendant from a photographic lineup.
4. Gang Evidence, Counts 4 and 6
Officer Liam Doyle, who had participated in defendant's apprehension at the apartment of Ernie Granados, testified as a gang expert. He described the origins of the North Side and South Side Beaumont gangs, as it devolved after a gang known as Los Midnighters split along the Interstate 10 Freeway or the railroad tracks just south of the freeway. In 2010 and 2011, both the North Side and South Side gangs were on friendly terms, but currently the two sides are at war.
The three incidents forming the basis for the charges against defendant took place in the territory of the two separate gangs. The incident involving Willie D. (and Ian R.) occurred in the territory of the South Side Beaumont gang, while the other two incidents occurred in the territory claimed by North Side Beaumont. Fourth Street was on the south side of the boundary, while Eighth Street was on the north side, and was a subset of South Side. Thus, Isidro F.'s statement referred to the fact that South Side and North Side were trans-territorial at the time.
The primary activities of the North Side Beaumont gang comprise violent felony assaults, thefts, robberies, attempted murders, assaults with deadly weapons, and vandalism. Gang members frequently go to other territories to commit crimes. As predicate crimes, the expert offered a prior conviction of Vincent Lucero, a member of North Side Beaumont, for assault by means likely to produce great bodily injury, with an enhancement for knife use, committed in 2010, and defendant's prior conviction for robbery with an enhancement alleging the robbery was committed for the benefit of a criminal street gang, in 2008.
The gang expert began to come across defendant in 2008. Defendant has tattoos of "MDS" (for Midnighters) on his right tricep, as well as "NSB" (for North Side Beaumont) on his left tricep, and "B" for Beaumont on his chest. A photograph taken of defendant in 2011 shows the tattoos he had upon arrest. Between the time of defendant's booking in jail in 2011, and 2013, defendant acquired a new tattoo in his hairline, which says "Beaumont," while in custody.
The expert did not say and was not asked how he began to "come across" defendant, but there is nothing in the record to indicate that the source of his information was hearsay, offered for the truth of the matter. (Ref. People v. Sanchez (2016) 63 Cal.4th 665, 685 [expert may not present as facts the content of testimonial hearsay statements].)
Also, while defendant was in custody, a search warrant was executed on the house of another gang member, Carlos Montes, whose moniker is "Smoke." In the course of that search, a letter dated February 13, 2011, sent by "Sicko" and addressed to "Smoke" was found. Based on his tattoos, the letter sent to Montes, and the individuals defendant hung out with, as well as the fact he had a prior gang related robbery conviction, Officer Doyle was of the opinion that defendant was an active member of the North Side Beaumont gang in 2011.
The letter was not authenticated by someone familiar with his handwriting to show that defendant was the person who wrote it, and was admitted into evidence over defendant's foundational objections. The court ruled in limine that the letter was admissible because there was circumstantial evidence to support the proponent's position as the identity of the author. The circumstantial evidence was that the letter was signed "Sicko," defendant's moniker. The letter was dated February 13, 2011, and refers to the author returning to court on the 25th; defendant had a court date on February 25th, 2011.
Considering the hypothetical situation where a documented member of North Side Beaumont was walking with other Hispanic males, passed by a white male and said, "Don't be mad-dogging my homies," the gang expert was of the opinion that the assault with a deadly weapon of Scott F. was committed for the benefit of a gang.
Defendant was charged by way of an amended information with assault with a deadly weapon, a knife, in count 1 (Pen. Code, § 245, subd. (a)(1)), attempted murder of Ian R. in count 2, assault with a deadly weapon of Willie D. in count 3 (§ 245, subd. (a)(1)), two counts of active participation in a criminal street gang (§ 186.22, subd. (a), counts 4, 6), and attempted murder of Isidro F. (§§ 664, 187, subd. (a).) It was further alleged with respect to count 1 that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), and that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
Respecting counts 2 and 5, it was further alleged that the attempted murder was committed with premeditation and deliberation, that the defendant personally used a knife (§ 12022, subd. (b)(1)), and that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) It was also alleged that defendant committed the offenses charged in counts 2 through 6 while on bail. (§ 12022.1.) Defendant was tried by a jury. The parties agreed to bifurcate the allegation relating to the on-bail enhancement. The jury acquitted defendant on count 2 (attempted murder of Ian R.), but returned guilty verdicts and true findings on the remaining counts and special allegations.
Defendant made a motion for new trial, which was granted as to count 6, the second charge of active participation in a street gang, resulting in dismissal of count 6. A hearing conducted with respect to the on-bail enhancement resulted in the court finding the allegation to be true.
The court proceeded with sentencing, where it imposed an indeterminate term of life with possibility of parole for the attempted premeditated murder conviction in count 5, to run consecutive to the determinate terms. The determinate portion of the sentence comprised the middle term of 3 years for count 1, the principal term, plus 10 years consecutive thereto for the gang enhancement, and an additional 3-year term for the great bodily injury enhancement. The court imposed a concurrent term of 3 years for count 3, and a concurrent term of 2 years for count 4. The court also imposed terms for the enhancements for count 5, the attempted murder count, of 1 year for the knife use, and 3 years for the great bodily injury enhancement. The total determinate term came to 22 years in prison, plus an indeterminate term of life, of which defendant will have to serve a minimum of 7 years before being eligible for parole.
Additional penalties included booking fees, conviction assessments, victim restitution, a restitution fine and a parole revocation restitution fine, and an order prohibiting defendant from possessing or owning any firearm, deadly weapon, ammunition or related paraphernalia for life. Defendant timely appealed.
DISCUSSION
1. Admissibility of the Out of Court Statements of Isidro F. and whether Admission Violated Defendant's Confrontation Rights.
In related arguments, defendant challenges the attempted murder conviction in count 5, relating to Isidro F. In the first argument, defendant argues for reversal on the ground that the trial court erroneously ruled that Isidro F.'s statements were admissible as spontaneous declarations. In the second argument, defendant argues that the admission of the statement violated his constitutional rights to due process and confrontation. While we agree that the statements did not qualify as spontaneous declarations, we do not agree that they violated his constitutional rights or otherwise compel a reversal.
a. Background
At trial, Isidro F. asserted a lack of recall of any of the events leading up to or during or after his stabbing on November 1, 2011. In fact, the only reason he mentioned a fight was because his brother Marcus, who was with him at the time of the incident, told him about it the next day. He also did not recall making any statements to Officer Velasquez after the incident. He denied telling the officer he had accused defendant of raping a woman in the past, and that the stabbing was payback for that accusation. He recalled testifying at the preliminary hearing, but reviewing the transcript did not refresh his recollection. He could not recall anything because he was inebriated on the date of the incident, and drunk when he testified in the prior proceeding.
In chambers, defendant objected to the prosecutor's examination of the witness and argued that the court needed to find the witness was either lying or being evasive before a police officer could testify as to defendant's statements as prior inconsistent statements. Defense counsel argued that the jury could start to accept the prosecutor's questions as substantive evidence, in violation of defendant's confrontation rights. The trial court noted that the witness had not drawn a complete blank on everything, so it had not reached the point where it could determine whether the witness was being evasive or dishonest. The balance of Isidro F.'s testimony followed the same pattern of non-recollection, even after reviewing the police report. He maintained he was not afraid; he just could not remember because he was so drunk.
After Isidro F. left the stand, the court and counsel revisited defendant's objection. Defendant argued that his Sixth Amendment confrontation rights were violated because Isidro's failure of recollection precluded defense counsel from cross-examining him. He further argued that the People had not laid adequate foundation to admit the testimony of officers who interviewed him after the stabbing to impeach the witness. The People argued that Isidro F.'s forgetfulness was contrived, and that his prior statements to police were inconsistent. The court ruled that the prosecutor's questions did not violate defendant's right of confrontation. However, the court could not find that Isidro was being deliberately evasive, so his statements to officers would not be admissible as inconsistent statements.
The People then proffered the theory that the statements were admissible as dying declarations, or, alternatively, as spontaneous declarations. The court conducted an Evidence Code section 402 hearing, after which, the court found the statements were admissible as spontaneous declarations.
b. Analysis
Defendant argues that the trial court erred in admitting the statement as a spontaneous declaration because the information was elicited through protracted questioning by the police officer. Defendant also argues that Isidro's failure of recollection deprived him of his right to confront and cross-examine his accuser. We agree that Isidro F.'s statements were not spontaneous, but find the error was harmless. Further, we conclude there was no constitutional violation.
(i) Spontaneous Declaration
Under the spontaneous declaration hearsay exception, hearsay testimony is admissible if it "(a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception." (Evid. Code, § 1240; People v. Chism (2014) 58 Cal.4th 1266, 1288.) "'To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.'" (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).)
If the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 416.) The basis for this assumption of trustworthiness is that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief. (Poggi, supra, 45 Cal.3d at p. 318.)
The point in time when the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. (Poggi, supra, 45 Cal.3d at p. 319.) However, "'[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.'" (Ibid., quoting People v. Washington, supra, 71 Cal.2d at p. 1176.)
Whether the requirements of the spontaneous statement exception are satisfied in any given case is a question of fact. (People v. Banks (2014) 59 Cal.4th 1113, 1163 [disapproved on a different ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3] citing People v. Washington (1969) 71 Cal.2d 1170, 1176.) "The determination of the question is vested in the court, not the jury." (Poggi, supra, 45 Cal.3d at p. 318.) "Thus, if supported by substantial evidence, we must uphold the trial court's determination of preliminary facts." (People v. Banks, supra, 59 Cal.4th at p. 1163, citing People v. Brown (2003) 31 Cal.4th 518, 541.)
As indicated, the lapse of time between the event and the statement, although a factor in determining whether a statement is spontaneous or not, is not determinative. (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234.) Thus, a lapse of two days between the event and the statement did not preclude a finding that the statement was spontaneous where the child witness was in a mental state of extreme agitation when she told of defendant's assault on the witness's mother. (Trimble, supra, 5 Cal.App.4th at p. 1234.) There, the court noted that the witness did not have an opportunity to speak about the incident until after the defendant had left the cabin, where, up to that point, the child had been sequestered with no one in whom to confide.
The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception is the mental state of the speaker. "'"The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. . . . [U]ltimately, each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter."' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 880.)
Here, Isidro experienced pain, stress, and fear, not only because he had just been stabbed, but also because the person who stabbed him was a gang member who would seek retribution against Isidro if he "snitched." We agree with the trial court that Isidro was under stress. However, as the product of extended questioning, the statements were not spontaneous. And, given Isidro's initially expressed fear of retaliation if he "snitched," and the officer's persistent questioning, there is not the usual assurance of reliability inherent in a spontaneous declaration.
There was an alternative basis for admission of Isidro's prior statement. Although the preliminary hearing transcript where Isidro F. testified is not included in this record (the count relating to Isidro F. was originally filed in a separate action, which was consolidated with the action charging defendant with the assault against Scott F. shortly before trial), his prior testimony would likely have been admitted as past recollection recorded pursuant to Evidence Code section 1237, in light of his failure of recollection even after reviewing his prior testimony and the police report of his interview.
However, the admission of the statement was harmless under any standard of prejudice. Other officers responding to the scene saw defendant run into an apartment building where it was learned that defendant's cousin, Ernie, a probationer with search conditions, lived. After defendant was taken into custody and transported to the station, he was examined by paramedics for injuries he sustained when he jumped from the second-floor window of his cousin's apartment. A black tank top and knife were found in the apartment. And when asked why he was there, defendant volunteered, within earshot of police officers, that he had stabbed someone and run from the police. Even without the statement, defendant would have been pursued when he fled the scene, and the defendant's own statement would have been sufficient to support the conviction.
(ii) Confrontation
The Confrontation Clause prohibits the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and defendant had a prior opportunity for cross-examination. (Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177, 124 S.Ct. 1354].) "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police to meet an ongoing emergency." (Davis v. Washington (2006) 547 U.S. 813, 822, 828 [165 L.Ed.2d 224, 126 S.Ct. 2266]. In Davis, the questions asked by the 911 operator did not render the victims' statements as testimonial, even the operator's effort to establish the identity of the assailant, because it would allow the dispatched officers to know whether they would be encountering a violent felon. (Davis, supra, 547 U.S. at p. 827.)
Here, other officers had responded to the dispatch relating to Isidro's stabbing and were aware that the suspect had entered into a nearby apartment complex. Knowing the identity of the perpetrator, relayed to the pursuing officers along with information about the address and identity of defendant's cousin, Ernie, was necessary to inform those dispatched officers who they would encounter and how to proceed.
More significantly, defendant acknowledges that Isidro was present at trial, focusing on his inability to recall forming the basis for his inability to effectively cross- examine the witness. The admission of a prior out-of-court statement does not violate the confrontation clause so long as the declarant is present at trial and the defense is provided an opportunity for effective cross-examination, even if the witness is unable to recall making the prior statement or the circumstances described by the statement. (People v. Clark (2011) 52 Cal.4th 856, 927.) "'[T]he Confrontation Clause guarantees only the "opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."' [Citations.]" (United States v. Owens (1988) 484 U.S. 554, 559 [98 L.Ed.2d 951, 108 S.Ct. 838].)
There was no confrontation violation.
2. Sufficiency of the Evidence to Support the Conviction for Count 4, Active Participation in a Street Gang.
Defendant contends his conviction for active participation in a criminal street gang (§ 186.22, subd. (a)), as alleged in count 4, must be reversed because the evidence was insufficient to support a finding either that defendant committed a felony with another gang member, or that defendant aided and abetted another gang member in the commission of a felony. The active participation in a street gang offense was alleged in connection to the incident occurring on October 15, 2011, pertaining to counts 1 through 3. We disagree.
In determining whether there is sufficient evidence to support a conviction, we review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson 1980) 26 Cal.3d 557, 578, relying on Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [99 S.Ct. 2781, 61 L.Ed.2d 560].)
Section 186.22, subdivision (a), operative until January 1, 2017, provided that any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail, or in state prison. The elements of the offense defined by section 186.22, subdivision (a) are: (1) active participation in a criminal street gang, which is more than nominal or passive; (2) knowledge that the gang members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any criminal conduct by members of that gang. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) A person who is not a member of a gang, but who actively participates in the gang, can be guilty of active participation. (Ibid.)
To establish that a defendant actively participated in a street gang, the evidence must show that he willfully did an act that "promotes, furthers, or assists in any felonious criminal conduct by members of that gang." (§ 186.22, subd. (a).) The "felonious conduct" need not be gang related. (People v. Albillar (2010) 51 Cal.4th 47, 51, 59.) However, in advancing, encouraging, contributing to, or helping members of the gang commit felonious conduct, that felonious conduct must be committed by at least two gang members, one of whom can include the defendant if he is a gang member. (People v. Rodriguez, supra, 55 Cal.4th at p. 1132.) It is not necessary that anyone sustain a conviction for that conduct. (People v. Valenzuela (2016) 5 Cal.App.5th 449, 453.) "Gang evidence, including expert testimony, is relevant and admissible to prove the elements of the substantive gang crime and gang enhancements." (People v. Williams (2009) 170 Cal.App.4th 587, 609.)
Defendant's argument centers on the fact that while there were other North Side Beaumont gang members at the party, there was no indication that any of those other gang members were involved in the fight, because no one testified that any gang members were in the crowd of people who started hitting Willie D. while he was fighting with defendant. Thus, he argues, although his fellow gang members were present at the party, he was acting alone, and not guilty of committing an underlying felony with at least one other gang member. (People v. Rodriguez, supra, 55 Cal.4th at p. 1134.)
Defendant appears to have confused the act of helping gang members with the predicate offense needed to establish that the pattern of gang activity, in turn required to establish that a gang is a criminal street gang, as defined in section 186.22, subdivision (e). A "predicate offense" is not an element of the crime of active participation unless the issue involves whether the association to which defendant belongs qualified as a street gang. Defendant has not presented that argument here.
We disagree. Defendant assaulted Willie D., knocking Willie to the ground. Willie D. was struck from behind by a person with a knife. Willie was struck from all sides. Shawnshana I. testified that this was the first incident at the party involving a group of Hispanic males. The group of Hispanic males then walked down the driveway, toward the street, followed by Ian R.
Although the jury found defendant not guilty of stabbing Ian R., Ian R. testified that Willie D. announced the party was over so everyone started to leave. As Ian started to walk out, he saw his friend Daniel Gonzalez L. fighting with a group of kids that included defendant and his friends. Defendant, Ernie Granados, and Gilbert V. circled his friend in the street. Ian saw Daniel Gonzalez L. fighting with Gilbert V. and Ernie Granados, and Ian started fighting as well. He was stabbed when he tried to pull his friend away.
Ian R. mentioned to two different names, Daniel Gonzalez and Daniel L., during his testimony. However, Shawnshana I. was asked if she knew a person named Daniel Gonzalez L., who was Ian's friend, and she responded in the affirmative. From this we glean that Daniel G. and Daniel L. are the same person.
The gang expert testified that in addition to defendant, his cousin Ernie was also a gang member. There was substantial evidence presented to the jury that defendant acted in concert with at least one other gang member while engaged in the fights that led to the injuries of Willie D.
3. Lack of Unanimity Instruction Respecting Count 4, Active Participation in a Street Gang.
Defendant argues, in the alternative, that count 4, pertaining to active participation in a street gang, must be reversed because the court failed to give a unanimity instruction to the jury. Defendant posits that because the prosecutor proceeded upon the theory that Willie D. was the victim of the assault and Ian R. was the victim of the attempted murder, the prosecutor was required to elect which of the two possible "predicate offenses" formed the basis for the active participation count. Instructional error is reviewed de novo. (People v. Hamilton (2009) 45 Cal.4th 863, 948; People v. Gjersvold (2014) 230 Cal.App.4th 746, 749.) We find no error.
As we pointed out previously, the elements of active participation in a street gang do not include a requirement of proving a "predicate offense." That element pertains to whether there has been a "pattern of criminal gang activity" by which an association qualifies as a criminal street gang. (§ 186.22, subd. (e).) Defendant does not argue that North Side Beaumont is not a criminal street gang, and there was no requirement that the jury determine whether predicate offenses were established, so we need not decide whether the court erred in not instructing the jury to determine the existence of predicate offenses.
Our Constitution (Cal. Const., art. I, § 16) requires that each individual jury be convinced, beyond a reasonable doubt, that the defendant committed the specific offense he is charged with. (People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Hernandez (2013) 217 Cal.App.4th 559, 569.) "[W]hen the evidence suggests more than one discrete crime, either (1) the prosecution must elect among the crimes or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act. [Citations.]" (Hernandez, supra, 217 Cal.App.4th at p. 569.)
However, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis, or the "theory," whereby defendant is guilty, even if the theories are based on different facts. (People v. Grimes (2016) 1 Cal.5th 698, 727; People v. Jenkins (2000) 22 Cal.4th 900, 1025.) Thus, in a situation where defendant argues the facts would support aiding and abetting liability and liability as a direct perpetrator, the jury need not unanimously agree on the precise factual details of how a killing under one or the other theory occurred in order to convict defendant of first degree murder. (Ibid.)
Additionally, "'[n]either an election nor a unanimity instruction is required when the crime falls under the "continuous conduct" exception.' [Citations.]" (People v. Jo (2017) 15 Cal.App.5th 1128, 1178.)
Under the "continuous conduct" rule, a unanimity instruction is not required when "the acts are so closely connected as to form part of one transaction" or "the defendant offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them." (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) This specific offense does not involve a "discrete crime" or "act;" it only requires that defendant promote, further, or assist in any felonious criminal conduct by members of that gang.
Here, the crime of active participation is conceptually similar to liability as an aider and abettor, particularly where the gravamen of the crime is the promotion, furtherance, or assistance of the felonious conduct by other gang members, and not proof of the commission of a specific offense by defendant. It was not necessary for the jury to agree on the precise factual details of either assault crime to determine whether defendant was promoting, furthering or assisting in any felonious conduct by members of the gang. Thus, the court was not required to instruct the jury on unanimity. There was no error.
4. Whether the Concurrent Term for Count 4 Constituted Multiple Punishment for a Single Act.
Defendant argues that the trial court erred at sentencing by imposing a three-year term for count 3, the assault on Willie D., concurrent with the middle term on count 4, the active participation in the criminal street gang. The People agree that the term for count 4 should be stayed pursuant to section 654.
"Section 654 applies where the 'defendant stands convicted of both (1) a crime that requires . . . the intentional commission of an underlying offense, and (2) the underlying offense itself.' [Citation.]" (People v. Mesa (2012) 54 Cal.4th 191, 197-198.)
We direct the trial court to modify the sentence to reflect that the sentence for count 4 is stayed pursuant to section 654, and we direct the clerk to prepare an amended abstract of judgment reflecting that modification.
5. Error in Imposing a Three-Year Term for the Great Bodily Injury Enhancement to Count 1.
Defendant was tried and convicted in count 1 of aggravated assault (§ 245, subd. (a)(1)) committed upon Scott F., along with enhancements for great bodily injury (§ 12022.7, subd. (a)) and a gang enhancement. (§ 186.22, subd. (b).) At sentencing, the trial court imposed the middle term of 3 years for the substantive crime, plus 3 years for the great bodily injury enhancement, and another 10 years for the gang enhancement. The People argue that the court improperly imposed the term for the great bodily injury enhancement. Although defendant has not addressed this issue, we see no reason why he would oppose a modification.
Subdivision (g) of section 1170.1 provides that when two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a deadly weapon or a firearm.
Section 12022.7, subdivision (a), provides for a three-year enhancement for the infliction of great bodily injury in the commission of a felony or attempted felony. Section 186.22, subdivision (b)(1), provides for an enhancement where the felony is committed for the benefit of a criminal street gang. For non-violent felonies, the gang enhancement is 2, 3 or 4 years. (§ 186.22, subd. (b)(1)(A).) Where the underlying crime is a serious felony, the enhancement is 5 years. (§ 186.22, subd. (b)(1)(B).) However, where the underlying felony is a violent felony within the meaning of section 667.5, subdivision (c), the enhancement is 10 years. (§ 186.22, subd. (b)(1)(C).)
Section 667.5, subdivision (c) lists crimes that qualify as violent felonies. Included in the list is "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7." (§ 667.5, subd. (c)(8).)
The infliction of great bodily injury on Scott F. thus gave rise to two separate penal consequences: first, it made the underlying offense a violent felony which permitted the imposition of the 10-year gang enhancement, instead of the 2, 3, or 4 year enhancements. Second, it added three years to the sentence for the infliction of the great bodily injury.
Subdivision (g) of section 1170.1 prohibits the imposition of more than one enhancement for the infliction of great bodily injury on the same victim in the commission of a single offense. (People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1331-1332.) The trial court properly imposed the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), but it could not, however, also impose and leave unstayed the 3-year great bodily injury enhancement under section 12022.7, subdivision (a). (People v. Vega (2013) 214 Cal.App.4th 1387, 1395; see also People v. Rodriguez (2009) 47 Cal.4th 501, 508-509 [applying same principles to an enhancement for gun use and a 10-year enhancement gang allegation under § 186.22, subd. (b)(1)(C)].)
Because the imposition of the great bodily injury enhancement was unauthorized, the error can be corrected at any time. (People v. Landry (2016) 2 Cal.5th 52, 127, fn. 22; see also, People v. Preston (2015) 239 Cal.App.4th 415, 425.) Insofar as the gang enhancement provides for the greater term (§ 654, subd. (a)), we direct the trial court to modify the sentence to stay the great bodily injury enhancement. The clerk is directed to prepare a minute order and an amended abstract reflecting the modification.
6. Errors in the Abstract of Judgment and the Propriety of the Order Prohibiting Defendant from Possessing Deadly Weapons for Life.
In sentencing defendant, the trial court imposed an order prohibiting defendant from knowingly owning, possessing, or having under his control, any firearm, deadly weapon, ammunition or related paraphernalia for life. The abstract of judgment includes an ambiguous order to pay $120 on the line referencing a drug education fee pursuant to Health and Safety Code section 11372.7. However, there is no checkmark in the box associated with that order. Defendant argues that the order prohibiting defendant's ownership or possession of deadly weapons or related paraphernalia are unauthorized and must be stricken. He also contends the reference in the abstract of judgment to the drug education fee is unauthorized because that term was not orally imposed by the trial court.
The People agree that the abstract of judgment should be corrected to accurately reflect the fines and fees imposed, because the court did not orally impose the drug education fee. We agree. A court's oral pronouncement of judgment is controlling as against any discrepancies in the clerk's minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Zackery (2007) 147 Cal.App.4th 380, 385; People v. Martinez (2002) 95 Cal.App.4th 581, 586-587.) We direct the clerk to modify the abstract of judgment to conform to the oral pronouncement of sentence by deleting the $120 drug education fee.
To the extent the insertion of $120 on the drug education fee line can be read as an order, it is inconsistent with the oral pronouncement of judgment.
However, as to the order imposing a lifetime prohibition on possession of weapons, ammunition, and paraphernalia, only the portion relating to possessing a deadly weapon or related paraphernalia was improper and should be struck.
Section 29800 (formerly section 12021) makes it a felony for any person who has been convicted of a felony, or an offense enumerated in section 23515, subdivisions (a), (b), or (d), or who is addicted to narcotic drugs, to own, purchase, receive, or have in his or her possession or under his or her control any firearm.
Section 30305 makes it a crime for anyone who is prohibited from owning or possessing a firearm under section 29800 to own or possess or have under custody or control any ammunition. Section 29810 requires that the court give notice to a defendant of the prohibitions regarding firearms at the time judgment is imposed. Although the notice requirement does not extend to the ammunition prohibition, defendant cannot complain that the court gratuitously provided the advisement.
The admonition relating to the ownership or possession of firearms and/or ammunition was proper and required. However, neither section 29810 nor 30305 prohibits the possession of a "deadly weapon" or "related paraphernalia for life." We observe that the terms "deadly weapons," and "related paraphernalia" are vague and so broad and may encompass many lawful items (hands, kitchen utensils, and common tools, among a wide array of other implements, can all be used as deadly weapons), such that a parolee or ex-felon would not know what is required of him. (In re Sheena K. (2007) 40 Cal.4th 875, 890, citing People v. Rienertson (1986) 178 Cal.App.3d 320, 324-325.) Because that portion of the order is vague and overbroad, it must be stricken.
DISPOSITION
The trial court is directed to modify the sentence as follows: (1) Impose and stay the term on count 4 pursuant to section 654; (2) stay the 3-year great bodily injury enhancement (§ 12022.7, subd. (a)) to count 1 pursuant to section 1170.1, subdivision (g), and section 654, subdivision (a); (3) amend the abstract of judgment to delete reference to the drug education fee, and (4) strike the reference to possession of deadly weapons and related paraphernalia from the sentencing minutes. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.