Opinion
F076510
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. GUADALUPE RIVERA, JR., Defendant and Appellant.
Jean M. Marinovich, 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, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Christina Hitomi Simpson, and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF309133A)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Jean M. Marinovich, 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, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Christina Hitomi Simpson, and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
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Guadalupe Rivera, Jr., (defendant) was convicted by jury of false imprisonment, second degree robbery, witness intimidation, making criminal threats, and unlawful possession of a firearm and ammunition. The witness intimidation crime was found to be gang related for purposes of Penal Code section 186.22, subdivision (b) (all further statutory references are to this code). Defendant's claims on appeal include allegations of insufficient evidence, instructional error, juror misconduct, and sentencing error.
As we will explain, the gang finding must be reversed for insufficient evidence pursuant to the California Supreme Court's decision in People v. Prunty (2015) 62 Cal.4th 59 (Prunty). The robbery conviction must be reversed for instructional error due to the absence of a unanimity instruction. Although juror misconduct occurred, it did not result in prejudice. The sentencing claims include conceded issues regarding Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) and Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). We affirm in part, reverse in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2014, at approximately 12:26 a.m., Deputy Francisco Perez of the Tulare County Sheriff's Office was dispatched to the home of 19-year-old Kyle C. in Kingsburg. Kyle lived with his parents, and Kyle's father had called 911 on his behalf. At approximately 12:49 a.m., Deputy Perez conducted a recorded interview with Kyle.
Kyle's initial statements were as follows: "I was stopped by an individual at gun point [sic]. He forced me into his garage, put the gun in my mouth, made me suck it, called me a queer, made me strip butt naked and walk down the street, tried to steal my truck. I talked my way out of it. He went inside to get a sweater and I came home. That's all that happened. But he[—]he did tell me that he knows my truck and my dad's truck and that he would kill my family."
As the interview progressed, Kyle explained the incident had occurred hours earlier, beginning at approximately 9:00 p.m. and ending with his escape at around 11:00 p.m. He had been "getting gas" in the neighboring town of Traver and decided to drive home "the back way." After "pulling out of the Shell gas station" and while driving slowly over a "hump" in a residential area, Kyle was accosted by a Hispanic male who had suddenly appeared next to the driver's side window of his truck.
The gunman directed Kyle toward a house, led him into the garage, and ordered him to strip naked. This happened in front of two other people: a person who had identified himself as "Steven" and another man whom Kyle believed to be a neighbor from "across the street." Kyle told the detective, "They're gang members. They're Mexicans. [¶] ... [¶] They're Norteno's [sic]. One has TC tattooed [on his forearm], the Steven guy." Kyle also noted the gunman was wearing "bright red" shoes.
The man with the gun allegedly burned Kyle's credit cards in a fire, "tried to burn [Kyle's] wallet," and "was gonna burn [Kyle's] clothes and make [Kyle] walk home naked," but one of the other men stopped him. However, the person who intervened threatened to strike Kyle with a beer bottle if he did not suck on the barrel of the gun. Kyle also claimed to have been punched in the face and chest, but photographs taken during his reporting of the incident did not corroborate those allegations.
Kyle said his captor was "stumbling drunk." The man eventually asked Kyle "to go get some beer," which allowed Kyle to escape. He explained: "I agreed to take a cruise with him and that's how I got away." Kyle had been unable to call for help as he had left his cell phone at his house because the battery was dead.
Following the interview with Deputy Perez, Kyle spoke with Deputy James Woolem and disclosed that he and his father had driven back to the crime scene before calling 911. Kyle was able to locate the house on "Google maps," and Deputy Woolem knew the address to be the home of defendant Rivera. Using a laptop computer, Deputy Woolem created a series of photographic lineups containing defendant's mugshots from previous arrests. Kyle identified defendant as the principal offender.
At 3:15 a.m., Kyle participated in a recorded interview with Detective Judd Hembree. He changed parts of the original story and added new details. In the new version, Kyle had gone into Traver to pick up his girlfriend, stopped to get fuel for his truck, and discovered the gas station was closed. Realizing he had no way of calling his girlfriend, Kyle decided to "take a block," i.e., drive around the area, and then "park in her yard" until she came outside. Defendant kidnapped Kyle before he got to her house.
Kyle again described an accomplice with a "TC" tattoo, but now the man had called himself "Stevie." Kyle provided a physical description of defendant and alleged defendant had claimed to be 40 years old (defendant's actual age was 33). A third individual, i.e., the neighbor from across the street, was said to have briefly appeared "out of the shadows" before walking away, "kind of like he didn't want any part of it." Stevie "kind of disappeared quick too." Although Kyle "was held at gunpoint for a consistent hour and thirty minutes," after "[a]bout 45 minutes" he "realized it was just [him] and [defendant] alone in his garage."
In Kyle's retelling of the story, defendant and Stevie both entered his truck. He accused Stevie of attempting to steal the vehicle: "I had the keys right, but when they made me strip he picked up my keys and tried to go start my truck, but [the] ignition switch is messed up so you have to raise my steering wheel. [¶] ... [¶] And he couldn't figure out how to start [it]." Defendant entered the truck with Kyle immediately prior to Kyle's escape: "[W]e pull away from his house, [and] he goes, wait, I need my sweater[.] I backed up to his house, he got out, as soon as he shut his door, I punched it and came home."
Kyle continued to allege defendant had burned his credit cards in a fire. He said, "[T]hey forced me to strip, they took everything off and searched my wallet, took both my credit cards out, burned 'em, tried to burn my Social Security [card] and my whole wallet, but I kicked it out from the, the flames ...." This was generally consistent with the earlier story, but Kyle further claimed to have disrobed at least "three separate times." Defendant kept changing his mind about letting Kyle get dressed, which Kyle believed was because "[h]e wanted to check [him] for a wire; he thought [Kyle] was a narc."
Defendant allegedly used gang jargon during the incident, specifically the terms "TVR," "Norteno," and "XIV." Kyle told the detective, "TVR means Traver, XIV is, you obviously know, 14, the gang number for Norteno's [sic], the number[.] I grew up in [the nearby town of] London man, so I know this shit, you know what I mean, but I was never involved in this gang shit. [¶] ... [¶] ... [Defendant] kept saying he's OG, but then he's a family man and, but he's OG, you know, he kept saying the same shit over and over again, that's how intoxicated he was ...."
Later in the day, sheriff's deputies executed a search warrant at defendant's home. A portable metal fire pit was located in front of defendant's garage. There was no evidence of any burned credit cards, but a gold necklace was found near the edge of the driveway. Kyle subsequently claimed ownership of the necklace.
An unloaded revolver and two boxes of ammunition were found hidden inside of defendant's garage. A search of the back yard uncovered a pellet gun, which was determined to have traces of deoxyribonucleic acid (DNA) on its barrel. Forensic testing confirmed the biological material on the pellet gun contained Kyle's DNA.
On December 30, 2014, Sabino Lozano was arrested on suspicion of being the accomplice who had called himself Steven or Stevie. Lozano denied any knowledge of the incident and claimed to have been working on the night in question. When confronted with evidence of his early departure from work on November 7, 2014, Lozano admitted to being an eyewitness and provided his own account of the events.
Lozano claimed he and defendant were drinking beer in front of defendant's house when Kyle pulled up in a truck, got out, and attempted to socialize with them. Lozano initially assumed Kyle and defendant knew each other, but he soon realized they were not acquainted. Kyle offered to "smoke weed" with them, and defendant said, "[A]re you a cop or something, like, I don't even know you, what are you doing at my house[?]" Kyle left and came back with marijuana, and defendant smoked it with him. Lozano did not wish to partake in the activity and departed upon Kyle's return. Lozano denied being involved in, or witnessing, any of the criminal acts Kyle had alleged in his police interviews.
Defendant and Lozano were jointly prosecuted on charges of kidnapping to commit robbery, carjacking, second degree robbery, witness intimidation by means of force or fear, and making criminal threats. Defendant was also charged with unlawful possession of a firearm and ammunition (§§ 29900, subd. (a)(1) [count 6], 30305, subd. (a)(1) [count 7]). Counts 1-5 were alleged to be gang related for purposes of section 186.22, subdivision (b). Defendant was further alleged to have suffered a prior strike and serious felony conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12) and to have served two prior prison terms within the meaning of former section 667.5, subdivision (b).
Sections 209, subdivision (b)(1) (count 1), 215, subdivision (a) (count 2), 211, 212.5 (count 3), 136.1, subdivision (c)(1) (count 4), and 422 (count 5).
On July 11, 2016, the prosecutor conducted a recorded interview with Kyle to discuss the anticipated defense case. During this interview, Kyle contradicted earlier statements by claiming his cell phone was with him in the truck and the battery had died as he was texting his girlfriend on his way to pick her up. Kyle denied leaving defendant's house and coming back with marijuana, but he admitted to being a marijuana user. There was an issue regarding the direction in which Kyle had driven and parked his vehicle, and Kyle insisted his truck was facing south the entire time. In other words, he was driving southbound when stopped at gunpoint, pulled over and parked facing the same direction, and drove south when he escaped. He also told the prosecutor, "I definitely remember them throwing my stuff in the fire."
The matter went to trial in February 2017. The People's case included testimony by Kyle, his girlfriend, Kyle's father, and several sheriff's deputies. Expert witnesses testified with regard to the DNA evidence and the gang allegations. The People's gang evidence is summarized elsewhere in the opinion.
Kyle's testimony repeated the basic version of events outlined in his recorded interviews. However, he gave conflicting testimony as to the whereabouts of his cell phone, the burning of his personal property, and whether defendant had ever entered his truck. Kyle also alleged defendant's family members had shown up during the incident, saw him standing there naked, and simply went about their business. He admitted his prior statements about the "credit cards" were inaccurate; his wallet contained one debit card, and neither it nor any of his belongings had been burned. There were numerous additional discrepancies in his story.
The codefendant, Lozano, testified on his own behalf. Lozano's testimony was generally consistent with his prior custodial statements, including the allegation Kyle had stopped at defendant's house, left to retrieve a bag of marijuana, and returned on his own volition. Lozano said Kyle was driving southbound as he approached the house but made a U-turn and parked facing north. Kyle did the same thing when he returned the second time. Those details were corroborated by the testimony of a defense expert who had analyzed police photographs of tire impressions found at the crime scene.
According to the defense expert, the tires on Kyle's truck had "a very unique tread pattern," and the photographs showed a vehicle with the same "specialty" tires had pulled up to defendant's house at least twice. The multiple sets of tire tracks could not be explained by Kyle's return to the scene with his father because Kyle's father's had driven them in his own vehicle. There was no evidence of Kyle's father having the same brand of tires on his vehicle, and he had testified to driving southbound past the house without stopping. All of the "specialty tire" tracks were made by a vehicle that had traveled in the opposite direction.
Defendant's family members testified to seeing Kyle (or a person matching his description) at defendant's house. None recalled him being naked or in any apparent distress. Defendant elected not to testify.
The jury deliberated for several hours over the course of three days. Toward the end of the second day, the jurors indicated they were deadlocked on nine of the 12 charges (referring to the combined number of counts against defendant and Lozano). After being told to continue deliberating, the jury returned verdicts on all counts.
Defendant and Lozano were found not guilty of aggravated kidnapping (count 1) but were convicted of false imprisonment as a lesser included offense. Both men were acquitted of carjacking (count 2). Lozano was acquitted of all remaining charges except count 5 (criminal threats), and all gang allegations pertaining to him were rejected as not true. Defendant was convicted on the remaining counts, but the gang allegations for counts 1, 3, and 5 were found not true. However, a true finding was made on the gang allegation for count 4 (witness intimidation). The recidivism enhancements were found true in a bifurcated bench trial.
In June 2017, defense counsel moved for a new trial based on revelations of juror misconduct. The motion was denied. Defendant was sentenced to a determinate prison term of 16 years and a consecutive indeterminate term of 18 years to life. Sentencing details and background on the juror misconduct claim are provided in the Discussion, post.
DISCUSSION
I. Robbery
A. Sufficiency of the Evidence
Defendant claims the trial evidence was insufficient to support his robbery conviction. "On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt." (People v. Boyer (2006) 38 Cal.4th 412, 479.) We construe the record in the light most favorable to the judgment and presume "'the existence of every fact the jury could reasonably have deduced from the evidence.'" (People v. Mendez (2019) 7 Cal.5th 680, 702.)
Robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The offense requires a "'specific intent to permanently deprive' the victim of his or her property." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 489.) Defendant alleges a failure of proof as to the required mental state. However, a defendant's intent to destroy the victim's property may be construed as the intent to permanently deprive him or her of the same. (People v. Green (1980) 27 Cal.3d 1, 57-58.) "'"[T]he felonious intent of the party taking need not necessarily be an intention to convert the property to his own use ...."' [Citations]." (Id. at p. 57.)
The evidence is reasonably interpreted as showing defendant used force or fear to take possession of Kyle's clothing by ordering him to strip at gunpoint. According to Kyle's testimony, defendant stated his intention to destroy the clothes: "They told me they were gonna burn 'em." Kyle further testified, albeit vaguely, to an effort made toward actually burning those items: "[My clothes] were kicked to the side .... [¶] ... [¶ [W]hen they put 'em close to [the fire], I kinda, you know, batted 'em away, like no, you're not gonna burn my clothes, you know." Defendant's mens rea was inferable from other behavior seemingly designed to embarrass or humiliate the victim, e.g., making him suck the barrel of a gun. The jury could have concluded, as Kyle alleged in police interviews, defendant intended to burn the clothes and "make [him] walk home naked."
Despite several inconsistencies, Kyle's testimony regarding his wallet further supports the robbery conviction. He said the wallet was inside of his pants when he first disrobed. At some later point in time, defendant "went through it and he threw it in the fire." Kyle was unable to recall how or when defendant took physical possession of the wallet, but he claimed defendant was holding him at gunpoint "[t]he whole time." After repeatedly alleging his wallet was thrown "into the fire," Kyle struggled to explain how he had prevented it from being burned. However, "[i]n deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
In People v. Davis (2009) 46 Cal.4th 539, two robbery convictions were affirmed based on the appellant's theft of clothing from victims who were bound and blindfolded during the offense. (Id. at pp. 553, 608-609.) The appellant argued the evidence was insufficient because his intent to permanently deprive the victims of their garments did not arise until after he had tied them up. (Id. at p. 608.) The opinion explains:
"[The victims] remained blindfolded and bound when defendant carried away the leggings and the nightgown, and they had every reason to believe that they were still being held hostage at knifepoint, given defendant's earlier threat to slit their throats. Because 'a robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away,' the evidence supports the jury's determination that defendant used force and fear to take the property." (Id. at pp. 608-609.)Under the Davis analysis, the robbery conviction in this case is supported by evidence of the victim's clothes and/or wallet being taken by force or fear and with the intent to permanently deprive him of his property.
B. Instructional Error
Criminal defendants are entitled to a unanimous jury verdict. (People v. Bailey (2018) 27 Cal.App.5th 376, 378, 381.) "To protect this right, 'if one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act."'" (People v. Brown (2017) 11 Cal.App.5th 332, 341.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed ..., the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) If the circumstances warrant a unanimity instruction, the trial court has a sua sponte duty to give one. (People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)
The prosecutor argued Kyle was robbed of his "clothes, his wallet and possibly his keys." Because the People did not rely upon a specific act of robbery, defendant contends a unanimity instruction was required and erroneously omitted. We review this claim of instructional error de novo. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
The People contend "there was only the one act of taking the pants with the wallet in the pocket." They also cite the "continuous conduct rule," which "applies when 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.) Both arguments are problematic.
"[A] unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction." (People v. Stankewitz, supra, 51 Cal.3d at p. 100.) "This exception '"is meant to apply not to all crimes occurring during a single transaction but only to those 'where the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victim's testimony in toto.'"'" (People v. Bui (2011) 192 Cal.App.4th 1002, 1011.) Therefore, it is limited to cases in which "no juror could have believed defendant committed one act but disbelieved that he committed the other," or "'there was no evidence ... from which the jury could have found defendant was guilty of' the crime based on one act but not the other." (People v. Davis (2005) 36 Cal.4th 510, 562; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 879-880.)
Kyle testified the initial demand for him to remove his clothing was accompanied by accusations that he was a "narc" or a "snitch," i.e., a police informant. He believed defendant and Lozano were checking to see if he was wearing a "wire." Lozano's testimony gave further context to these events. He said Kyle had shown up at defendant's house uninvited and began talking about gangs and marijuana (which had not yet been legalized for recreational use). Lozano verified part of Kyle's testimony by confirming defendant had asked if he was a "cop" or a "narc." Lozano also claimed Kyle had voluntarily lifted up his shirt to prove there was no "wire." The jury apparently believed Kyle's testimony about being forced to disrobe, but such belief did not establish or necessarily imply findings on the elements of robbery.
Robbery requires asportation, which can be proven by evidence of slight movement of the victim's property. (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) Kyle was asked what happened to his clothes after he was forced to strip, and he testified "[t]hey were kicked to the side ...." Next, he responded affirmatively when asked, "[D]id they put your clothes like anywhere near the fire?" The fire was contained inside of a metal bowl that was raised off the ground by an estimated six to eight inches. Acceptance of Kyle's testimony regarding the movement of his clothing would have satisfied the taking element of robbery, but the jury could have still had a reasonable doubt as to defendant's intent to permanently deprive the victim of his property.
Defendant points out there was no evidence he knew of the wallet's existence when he made Kyle strip. Kyle was unable to say how defendant ended up holding it in his hands, leaving open the possibility Lozano removed it from his pants or it had fallen out onto the ground. His testimony was, "I think one of 'em just reached down and picked it up." Defendant offers an alternative explanation for his alleged handling of the wallet, suggesting the only intention was to confirm Kyle's identity and look for signs of any connections to law enforcement.
Given the unclear and often confusing nature of Kyle's testimony, the jury could only have speculated about the temporal proximity between the alleged taking of his clothes with the intent to burn them and the alleged taking of his wallet with the intent to burn it. The evidence of the first act was meager, and Kyle's testimony regarding the second act was fraught with contradictions. He went from alleging the wallet was thrown "into the flames" to saying it "landed kind of on the edge" of the metal bowl, and at different times he claimed to have "swatted it away" with his hand and kicked it off the edge with his foot. Different jurors could have believed Kyle was robbed of his clothes but not his wallet or vice versa. Therefore, a unanimity instruction was required.
The parties agree the jury rejected any theory of robbery based on the alleged taking of the victim's keys since it found Lozano not guilty of robbery and fully acquitted both men of carjacking.
"There is a split of opinion in the appellate courts as to whether the Chapman standard or Watson standard for harmless error applies in a unanimity instruction case." (People v. Hernandez, supra, 217 Cal.App.4th at p. 576, referencing Chapman v. California (1967) 386 U.S. 18 (Chapman) and People v. Watson (1956) 46 Cal.2d 818 (Watson).) We conclude the error was prejudicial even under the Watson standard, which is met if there is a reasonable probability, i.e., a reasonable chance, of juror disagreement over which acts were committed. (Watson, at pp. 836-837; see People v. Davis, supra, 36 Cal.4th at p. 561 [reversing a robbery conviction due to the possibility of juror disagreement without articulating the test for prejudice].) The evidence was sufficient to support the robbery conviction but far from compelling, especially with regard to the intent to permanently deprive the victim of his property.
As defense counsel emphasized in closing argument, Kyle left defendant's home with his clothes and his wallet and none of those items were burned. Given all of the circumstances, including the fact jurors were deadlocked on most of the charges after several hours of deliberations, it is reasonably probable the jury did not reach a consensus as to the specific act upon which the robbery verdict was based. Since the evidence was sufficient to prove a robbery occurred, the remedy is reversal with the possibility of retrial. (People v. Hallock (1989) 208 Cal.App.3d 595, 607; see Lockhart v. Nelson (1988) 488 U.S. 33, 34 ["where the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial"].)
After the jury had reached verdicts on all counts, the trial court ordered it to deliberate further due to irregularities on the verdict forms. Instead of leaving the lesser included offense forms blank, the jury filled them out, writing "not guilty" on all except for the crime of false imprisonment under count 1. The jury was told to draw a line across the forms that should have been left blank. After receiving those instructions, the jury submitted another question: "To clarify—Do we need to find defendant A [Rivera] guilty/not guilty of a lesser crime on count 3 [robbery]?, based on our decision for Count 1?"
Defendant's attorney remarked, "Sounds to me like they're struggling with Count 3. I mean, I think an inquiry needs to be made are they unanimous on Count 3 as charged?" Counsel for Lozano agreed, but the trial court did not interpret the question as suggesting a lack of unanimity. The trial court answered the jury's inquiry as follows: "[E]ach count is independent of the other. One is not bound to the other. [¶] Secondly, if the defendant hypothetically is convicted on the charged crime and you have already filled out the lesser, you can cross out the completed form for the lesser and initial it."
Trial counsel was obviously referring to unanimity as to guilt or innocence rather than a consensus about the act supporting the verdict, but the incident does show there was at least some degree of uncertainty as to the robbery count even in the final minutes of the jury's deliberations.
II. Criminal Threats
Defendant and Lozano were charged in count 5 with making an unspecified threat "to commit a crime which would result in death and great bodily injury to [Kyle]." Kyle's trial testimony alleged multiple threats, but the People elected to rely on "Lozano threatening to smash a full Corona bottle over Kyle's head if he didn't do what ... [defendant] was telling him and suck on the barrel of the gun." Defendant was alleged to have aided and abetted Lozano by "holding the gun and putting the gun in [Kyle's] mouth." The claim on appeal is insufficient evidence of aiding and abetting.
"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
"A 'person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.'" (People v. Marshall (1997) 15 Cal.4th 1, 40.) Defendant argues he would have needed advance knowledge of Lozano's intention to threaten Kyle in order to be held liable for Lozano's actions. The People refute this argument by citing People v. Nguyen (1993) 21 Cal.App.4th 518, which plainly states, "A person may aid and abet a criminal offense without having agreed to do so prior to the act." (Id. at p. 531.) Moreover, "[a]iding and abetting may be committed 'on the spur of the moment,' that is, as instantaneously as the criminal act itself." (Id. at p. 532.)
Defendant concedes the evidence showed he pointed a gun at Kyle while Lozano was making a criminal threat, which is the act upon which the prosecutor relied. Defendant claims the aiding and abetting theory was untenable because he "did nothing more than he was already doing before the threat was uttered." No authority is cited for this argument, and we are not persuaded. Factors relevant to the determination of aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the offense. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)
The People also rely on the following trial testimony:
"[PROSECUTOR:] Okay. Where was the gun at that point?
"[KYLE:] Still in [defendant's] hand at my head.
"[PROSECUTOR:] Was [Lozano] pulling you towards the guy with the gun or in some other direction?
"[KYLE:] Yes. No, he was—he was pulling me towards them, like shoving the gun farther in my mouth."
The parties dispute whether Kyle's testimony indicated it was defendant or Lozano who shoved the gun farther into his mouth, but "ambiguities in the testimony were matters to be resolved by the jury." (People v. Kessler (1968) 257 Cal.App.2d 812, 815.) An appellate court views the record in the light most favorable to the judgment. (People v. Mendez, supra, 7 Cal.5th at p. 702.) The evidence of aiding and abetting may be tenuous, but we conclude it is legally sufficient to support the jury's verdict.
III. The Gang Enhancement
Defendant claims the People failed to prove an associational or organizational connection between the gang "subset" to which he allegedly belonged and a larger "umbrella" gang known as the Norteños. He relies on the Prunty opinion, which reversed a gang enhancement for insufficient evidence under similar circumstances. The claim has merit.
A. Legal Overview
Section 186.22 provides for a sentencing enhancement when a felony is committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Id., subd. (b).) The enhancement requires proof of the existence of a "criminal street gang." (People v. Vasquez (2016) 247 Cal.App.4th 909, 922.) The statute defines this term as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)
"The phrase 'primary activities,' ... implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony ...." (Id. at p. 324.)
"A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.'" (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e). Prosecutors may rely on evidence of the defendant's commission of a currently charged offense to satisfy this requirement. (People v. Loeun (1997) 17 Cal.4th 1, 10.)
B. The People's Gang Evidence
Two members of the Tulare County Sheriff's Office testified about criminal street gangs. Sergeant Steve Sanchez was called as a percipient witness, but the trial court permitted him to address matters within the scope of his experience as a former gang investigator. Detective Luis Carrillo was the designated gang expert.
According to Sergeant Sanchez, "Norteno is a gang in Tulare County. They claim the color red, the number 14. The word Norte is Spanish for north [and Norteño means Northerner]." When asked about TVR, he said "TVR is the acronym for Traver Vario Rifa.... [¶] ... [¶] That is the Norteno subset of Traver that the Norteno gang claims as their area or their hood."
Sergeant Sanchez further explained, "There's well over 20 Norteno subsets or cliques in Tulare County. All of 'em claim Norteno. It's all under the umbrella." The prosecutor asked, "So are all of the members of these different subsets or cliques, they are all members of the Norteno gang in Tulare County?" The witness answered, "Yes. In Tulare County, all Nortenos align with Nortenos." Shortly thereafter, the following exchange took place:
"[PROSECUTOR:] Q. Are these subsets united by an organizational or associational connection?
"[SERGEANT SANCHEZ:] A. Yes.
"Q. Do they—do the members of these various Norteno gang subsets communicate together—
"A. Absolutely. It's—
"Q. —with members of other subsets?
"A. Yes, it's very common in the course of our duties to contact two Norteno gang members that are from different territories or cliques.
"Q. Do they work together?
"A. Yes.
"Q. In what ways?
"A. Based on my training, experience, I've seen Northerners sell narcotics together. They exchange firearms with each other. They commit crimes together against rival gang members.
"Q. Do they share information or intelligence with members of other subsets?
"A. Oh, absolutely."
Sergeant Sanchez went on to testify about a 2015 wiretapping investigation dubbed "Operation Red Sol," which involved "36 phones of active northern gang members, including one who was basically the shot caller for the county." Through the investigation, he "learned how Norteno gang members from basically the whole county would communicate with each other [and commit crimes together]." The prosecutor asked, "So in that investigation, were there Norteno gang members from, say, Porterville working together with Norteno gang members from Visalia?" The witness responded affirmatively. The next question was, "Did that same sort of connection and cooperation between the various Norteno gang subsets exist in November of 2014?" He again replied, "Yes."
When asked about the structure or hierarchy of the "Norteno gang in Tulare County," Sergeant Sanchez testified:
"The hierarchy is in prison. It's in the prison system. They have NF gang members. NF is the Nuestra Familia, that's the founding prison gang for the Nortenos. [¶] From there, you have shot callers out in the streets who are working under the Nuestra Familia from prison, and then you have—it would be channels or people who are in charge of certain areas or cities, and then from there, you have squads which would be your soldiers going out doing the work."
Sergeant Sanchez also testified to his personal contacts with defendant and Lozano in 2009, approximately five years prior to the events in this case. In August 2009, he arrested Lozano for underage consumption of alcohol and public intoxication. Lozano had a tattoo of the letters TVR on the back of his head and admitted "he was an active Northerner from the Traver area."
Lozano denied making the quoted statement, and the defense argued his hair was grown out and covering the TVR tattoo at the time of the 2014 incident with Kyle. Lozano has a tattoo of the Minnesota Twins' "TC" logo on his arm, which is intended to signify "Tulare County." The People's experts agreed with what the letters represent but opined the tattoo has a Norteño gang connotation.
In November 2009, Sergeant Sanchez contacted defendant during a drunk driving investigation. Defendant has a tattoo of the letters TVR on his left middle finger, which Sanchez observed during the traffic stop. Defendant's passenger, Jose Valencia, "was also intoxicated and arrested for public intoxication." Valencia had a tattoo of the word "London" on his wrist and the letters VCL on his finger. Sanchez testified "VCL stands for Varios Chicos London. It's a Norteno subset out of the community of New London." Valencia reportedly "admitted that he was an active northern [sic] from Varios Chicos London."
Detective Carrillo, the designated expert, was asked if Traver is "claimed as the turf or territory of any gang?" He answered yes and identified "TVR, Traver Vario Rifa." The prosecutor inquired whether TVR is a "stand-alone gang" or a "subset of a larger gang," and Carrillo said it is a subset. He then explained, "Nortenos on the street are affiliated with Nuestra Familia from the jails, prisons, and it doesn't necessarily mean that every—every Norteno, every street gang is associated with Nuestra Familia, but mostly all street gangs that claim north are gonna be affiliated with Nuestra Familia from the prison system."
Detective Carrillo estimated there were 1,500 to 2,000 Norteño gang members in Tulare County. When asked about "the primary activities of the Norteno gang in Tulare County," he testified, "They have—ranges from robbery, murder, mayhem, assault with a deadly weapon, all the way down to identity theft. [¶] It's 33—33 crimes per the legislation in the State of California, but predominantly—or mainly are the first five is assault with a deadly weapon, robbery, murder, stealing cars." The prosecutor asked about witness intimidation, and the expert replied, "It's one of the primary activities of the Norteno gangs, yes."
Defendant notes Detective Carrillo was alluding to section 186.22, subdivision (e), but conflated two different issues. The statute lists 33 qualifying offenses for the required pattern of criminal gang activity. (Id., subd. (e)(1)-(33).) Only those "enumerated in paragraphs (1) to (25), inclusive, [and] (31) to (33), inclusive, of subdivision (e)" are relevant to the primary activities element. (Id., subd. (f).)
To satisfy the predicate offenses requirement, the People introduced certified court records documenting third party convictions of attempted murder and grand theft. The crimes were committed in 2012 and 2014, respectively, by alleged members of "Goshen Familia." Detective Carrillo testified Goshen Familia is "a subset gang from Goshen that have allegiance to the Norteno gang."
The following exchange was apparently intended to satisfy the requirements of Prunty:
"[PROSECUTOR:] Q. Are members of Goshen Familia members of the Norteno gang in Tulare County?
"[Detective Carrillo:] A. Yes.
"Q. Just like VCL or TVR?
"A. Correct.
"Q. Do they all back the same color?
"A. Yes.
"Q. Red?
"A. The color red.
"Q. Do they all identify with the same number or numbers, 4, 14, 1 and 4?
"A. Yes.
"Q. Do they all have a common enemy?
"A. Yes, that's the Surenos.
"Q. And are those subsets united by an associational or organizational connection?
"A. Yes, the Nuestra Familia in the prison system.
"Q. Do the members of all the Norteno gang subsets in Tulare County, do they communicate together?
"A. Yes.
"Q. Do they work together to commit crimes?
"A. They do.
"Q. Do they share information, intelligence with each other?
"A. They do.
"Q. Do they share weapons with each other?
"A. Yes, most definitely."
Detective Carrillo was involved in the 2015 wiretapping investigation, Operation Red Sol. The prosecutor asked if Operation Red Sol was "an example of how the various Norteno subsets or cliques work together even though they're scattered geographically around the county?" The witness answered, "Yes, it was not uncommon to find a Norteno from Goshen communicating with somebody from Porterville."
When presented with hypothetical scenarios tailored to the trial evidence, Detective Carrillo expressed opinions regarding the gang-related nature of the charged crimes. He opined the perpetrators acted in association with a criminal street gang because both men were Norteño gang members. He further opined the crimes were committed to promote or benefit a gang because such conduct "gives notoriety" and "status" to "the Norteno gang and specifically TVR from Traver, sending a message that they're not gonna be messed with."
On cross-examination, Detective Carrillo testified there were five members of TVR in 2014. He identified defendant and two sets of brothers with the surnames Robollero and Pacheco. The expert may have inadvertently excluded Lozano from his tally, which would mean TVR consisted of six people during the relevant time period. Defense counsel's cross-examination on the Prunty issue also included these questions and answers:
"[DEFENSE COUNSEL:] Q. Was any part of your gang investigation in this case focused on TVR in particular?
"[DETECTIVE CARRILLO:] A. I don't—I don't understand the question.
"Q. Okay. When you prepared your gang packet or your workup, did you do any investigation in particular to the subset TVR?
"A. No, it was generic to Norteno, Northerners.
"Q. All right. So you don't know who the chain of command was in 2014 with regard to the TVR subset?
"A. No.
"Q. You didn't know what role my—my client, [defendant], played in 2014 with regard to TVR?
"A. I could only speculate, no.
"Q. Okay. And you have no idea then who the shot caller was in this particular subset TVR at the time that my client is alleged to have committed this crime?
"A. I can only speculate, but no.
"Q. Do you know on a more broad spectrum who the shot callers in Tulare County were with regard to Norteno gangs at that time?
"A. For the northern part of the county at that time, no. [¶] ... [¶]
"Q. What role, if any, does TVR relate—how does TVR relate to the prison gang Nuestra Familia if at all?
"A. They're under the umbrella of the Nuestra Familia.
"Q. What is the chain of communication between members of TVR and Nuestra Familia in the prisons?
"A. When they are in custody, a member of TVR can smuggle a kite.
"Q. Who was the chain of communication?
"A. I wouldn't be able to tell you."
The gang expert was not aware of defendant being connected in any way to the predicate offenses committed by members of Goshen Familia. When pressed to identify a link between Goshen Familia and defendant or TVR, he testified, "They fall under the same umbrella as a northern—Northerners, Nuestra Familia."
C. Analysis
"[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.) In such a case, "the prosecution must show that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." (Id. at p. 81.) Therefore, "when the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang's alleged subsets, it must prove a connection between the gang and the subsets." (Id. at pp. 67-68.)
The Prunty case involved Zackery Prunty, a self-admitted Norteño who claimed membership in a certain Norteño subset, the Detroit Boulevard Norteños. (Prunty, supra, 62 Cal.4th at p. 67.) He was charged with the attempted murder of a perceived rival gang member. At the time of the offense, Prunty was accompanied by "a member of the Varrio Franklin Boulevard Norteños, based out of South Sacramento." (Id. at p. 68.)
The prosecution's theory of liability under section 186.22 was that Prunty acted to benefit an overarching Norteño entity, i.e., a statewide "Hispanic street gang" with approximately 1,500 active members in the Sacramento area. (Prunty, supra, 62 Cal.4th at p. 69.) To establish the existence of an "umbrella" organization, a gang expert testified to a pattern of criminal gang activity by regional Norteño subsets. (Ibid.) The predicate offenses were committed by members of the "Varrio Gardenland" and "Varrio Centro" subsets, but the prosecution failed to establish a connection between those subsets, the subset to which Prunty belonged, and/or the larger Norteño organization. (Id. at pp. 67-69, 82-84.) The expert did testify to a "street gang association" between the Norteños and "the Nuestra Familia, or NF, prison gang," but this was held insufficient to prove the required organizational or associational link. (Id. at pp. 69, 83.)
Defendant's case is similar to Prunty in many ways. Zackery Prunty was wearing red when he committed his crimes and used gang jargon during the incident. (Prunty, supra, 62 Cal.4th at p. 68.) There were roughly 1,500 "Sacramento-area Norteños" affiliated with "'subsets based on different neighborhoods,'" and he self-identified as both a Norteño and a member of a particular subset. (Id. at pp. 68-69.) Prunty's gang ties were further demonstrated by "his previous contacts with law enforcement, and his possession of Norteño graffiti, images, clothing, and other paraphernalia." (Id. at p. 68.) There was evidence of his association with members of other subsets, but not the subsets involved in the predicate offenses. (Id. at pp. 68, 83-84.)
In this case, Kyle testified defendant wore red shoes, identified himself as a Norteño, and may have referenced the number 14. There was a San Francisco 49ers banner hanging in defendant's garage and 49ers clothing and accessories inside of his home, which prosecution witnesses testified was indicative of a Norteño affiliation. Defendant had a tattoo of the letters TVR on his finger, and the gang expert testified TVR is a Norteño subset. Defendant associated with other TVR members and, on at least one occasion, a member of Vario Chicos London or VCL.
We must conclude the evidence was insufficient to establish the required connection between defendant's TVR clique, the Goshen Familia group involved in the predicate offenses, and the alleged countywide Norteño umbrella gang. Evidence of shared colors, shared names, shared symbols, and a common enemy is "not enough." (Prunty, supra, 62 Cal.4th at pp. 72, 74.) "Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Id. at p. 72.) "Prunty ... rejects this sort of bait-and-switch tactic to prove the requisite benefit or association element of the gang enhancement." (People v. Franklin (2016) 248 Cal.App.4th 938, 950.)
"The evidence must demonstrate that an organizational or associational connection exists in fact, not merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization." (Prunty, supra, 62 Cal.4th at p. 79.) Defendant's prior association with a member of VCL was inconsequential because neither TVR nor VCL was shown to have previously engaged in criminal gang activity, nor was there evidence of a connection between those subsets and Goshen Familia or the larger Norteño umbrella gang. (Id. at p. 84.) The People also failed to introduce "specific evidence" of a material link between Goshen Familia and the umbrella gang. (Id. at p. 69.)
Several pages of the Prunty opinion are devoted to examples of how prosecutors can satisfy the associational/organizational requirement in gang subset cases. One way is to introduce evidence "showing collaboration among subset members, long-term relationships among members of different subsets, use of the same 'turf,' behavior demonstrating a shared identity with one another or with a larger organization, and similar proof." (Prunty, supra, 62 Cal.4th at p. 73.) "In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang." (Id. at pp. 78-79.) This does not mean the prosecution can satisfy its burden by eliciting a "yes" response to questions such as, "Do ... various Norteno gang subsets communicate together?" and "Are these subsets united by an organizational or associational connection?" Sergeant Sanchez's answers to those questions and others tracking the examples in Prunty were too generalized and conclusory to meet the standard. "At a minimum, Prunty requires that the prosecution, in a case involving Norteños and testimony that Norteños operate through subsets, introduce evidence specific to the subsets at issue." (People v. Nicholes (2016) 246 Cal.App.4th 836, 848.) Sergeant Sanchez's testimony discussed Tulare County subsets collectively without specifying any particular behavior by particular individuals or groups.
As with Sergeant Sanchez, the direct examination of Detective Carrillo merely paid lip service to the Prunty requirements. The closest the expert came to describing a link between Goshen Familia and the alleged umbrella gang was his testimony regarding Operation Red Sol: "[I]t was not uncommon to find a Norteno from Goshen communicating with somebody from Porterville." Given the estimate of 1,500 to 2,000 Norteños in Tulare County and "well over 20" different subsets with membership as small as five or six people, it cannot be assumed Detective Carrillo was specifically referring to members of Goshen Familia. (See Prunty, supra, 62 Cal.4th at p. 82 ["we should neither speculate to fill evidentiary gaps [citation] nor defer to the jury's findings when there is no reasonable basis to do so"].) Moreover, since Operation Red Sol took place during an unspecified period in 2015, the testimony did not show an associational or organizational connection in 2014, i.e., at the time of the charged offenses. (Cf. People v. Duran (2002) 97 Cal.App.4th 1448, 1458 ["Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity"].) In any event, the sparse testimony about Goshen Familia did not constitute substantial evidence of the required connection between it and the umbrella Norteño gang. (See Prunty, supra, at pp. 85, 92-93 [gang expert's "purely conclusory" testimony was "essentially of no use to the fact finder" and did not prove "that Varrio Gardenland and Varrio Centro were subsets of the umbrella group of Norteños"]; People v. Nicholes, supra, 246 Cal.App.4th at p. 848 [reversal for insufficient evidence "where the gang expert did no more than characterize the relevant individuals as Norteños, explain that Norteños are associated with the Nuestra Familia prison gang, and give general testimony not linked to the particular subsets involved in this case"]; People v. Williams (2008) 167 Cal.App.4th 983, 988 [gang expert's "general references to 'shot callers' answering to a higher authority within the prison system were insufficient, absent any testimony that the group [to which the defendant belonged] contained such a person, or that such a person was a liaison between, or authority figure within, both groups"].)
The dissenting opinion concludes the People met their burden when the gang expert said "yes" in response to being asked if the predicate offenders were "member[s] of the Norteno gang." But merely alleging someone is a Norteño without providing a factual basis for the assertion is insufficient. (See Prunty, supra, 62 Cal.4th at pp. 82 ["Although [the gang expert] characterized [the subsets] as Norteños, he otherwise provided no evidence that could connect these groups to one another, or to an overarching Sacramento-area Norteño criminal street gang"], 84-85.) The two cases relied upon by our dissenting colleague are distinguishable.
In People v. Pettie (2017) 16 Cal.App.5th 23 (Pettie), a gang expert "opined that all three defendants were members of the Norteño criminal street gang." (Id. at p. 37.) The expert testified Norteños "may" identify with a "specific gang clique," (ibid.) i.e., a subset, but apparently there was no evidence any of the defendants belonged to a particular subset (id. at pp. 37-39). More importantly, the prosecution did not rely on the actions of gang subset members to prove the required pattern of criminal gang activity. The gang expert "testified to numerous qualifying predicate offenses committed by Norteño members—who were not identified as members of any subset .... This list included the [currently charged] offenses." (Id. at p. 49.)
In Pettie, the prosecution was not attempting to prove multiple alleged subsets constituted a single criminal street gang. Here, in contrast, defendant was an alleged member of the TVR subset and the predicate offenses were committed by alleged members of the Goshen Familia subset. The second case, People v. Ewing (2016) 244 Cal.App.4th 359, is inapposite for the same reason. The prosecutor in Ewing "did not proffer the predicate crimes of subset gang members to prove the existence of a criminal street gang." (Id., at pp. 372-373.) Therefore, the facts of Ewing "stand[] in stark contrast to the evidence in Prunty," (id., at p. 376) and for the same reasons are distinguishable from this case.
The People submit the gang finding may be affirmed notwithstanding the above analysis. They argue: "Under the theory that the criminal street gang was TVR, there is no Prunty issue because the instant crimes and predicate offenses are committed by the same Norteno subset." The position is untenable. First, the prosecutor exclusively relied on the theory of defendant committing the charged offenses in association with, and for the benefit of, "the Norteno gang." (See People v. Kunkin (1973) 9 Cal.3d 245, 251 ["We, of course, cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule"]; People v. Smith (1984) 155 Cal.App.3d 1103, 1145 ["It would deprive the defendant of his right to a jury trial if an appellate court could [affirm a conviction] on a theory not presented to the jury"].) Second, as defendant correctly argues, the alternate theory would fail for insufficient evidence of the primary activities element.
As noted, "the prosecution must show that the group the defendant acted to benefit, ... and the group whose primary activities are introduced, is one and the same." (Prunty, supra, 62 Cal.4th at p. 81.) The People's gang expert did not testify to the primary activities of TVR. The expert admitted his trial preparation was "generic to Norteno[s]," and his testimony was given in response to questions about "the primary activities of the Norteno gang in Tulare County." Without expert testimony about the primary activities of TVR, the People's evidence needed to show TVR members engaged in more than "the occasional commission" of crimes listed in section 186.22, subdivision (e)(1)-(25) and (31)-(33). (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.) Jurors may rely on currently charged offenses in determining whether the primary activities element has been proven, but a single instance of criminal activity—here the events involving Kyle on November 7, 2014—is insufficient. (Id. at pp. 323-324; see In re Alexander L. (2007) 149 Cal.App.4th 605, 611 ["Isolated criminal conduct ... is not enough"].)
Defendant has demonstrated insufficient evidence of an essential element of the section 186.22 gang enhancement. Therefore, we will order the true finding on the allegation reversed, the enhancement stricken from the judgment, and the charge dismissed. Double jeopardy principles bar retrial of the allegation. (People v. Garcia (2014) 224 Cal.App.4th 519, 526; see Burks v. United States (1978) 437 U.S. 1, 18 ["the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient"].) In light of this disposition, we do not address defendant's claim of error under People v. Sanchez (2016) 63 Cal.4th 665 and his other arguments for reversal.
IV. Denial of Section 995 Motion
A. Background
On May 27, 2015, at the preliminary hearing below, the parties entered into a "stipulation for purposes of preliminary hearing only that the Nortenos are a criminal street gang within the meaning of ... Section[] 186.22 Subsections (e) and (f)." Because of the stipulation, no evidence was presented on the primary activities and predicate offenses requirements of the gang statute. Detective Carrillo, serving as the People's gang expert, testified the Norteño gang is active in Tulare County and has subsets.
Kyle's preliminary hearing testimony alleged defendant "was wearing a lot of red" and used the terms "TVR" and "North side." Kyle understood "North side" to essentially mean Norteño. Regarding the context in which the terms were used, Kyle testified, "[T]hey were saying them towards me, you know, directed at me."
The prosecutor asked Detective Carrillo if he was familiar with any Norteño subsets in the Traver area, and he said, "That would be TVR, and it would stand for Traver Varrio Rifa." The next question was, "Are members of TVR or other Norteno subsets—are they all Norteno gang members?" The witness replied, "They would consider themselves Nortenos, yes."
The gang expert opined defendant was "an active member of the Norteno gang." (Punctuation omitted.) In response to hypothetical questions based on the preliminary hearing evidence, he further opined the charged offenses were committed in association with, and for the benefit of, "the Norteno gang."
Three months later, on August 27, 2015, the California Supreme Court issued its opinion in Prunty. On February 10, 2017, defendant filed a motion pursuant to section 995 to set aside the information. Among other contentions, defendant alleged insufficient evidence of the Prunty requirements. The motion was summarily denied.
Defendant now assigns error to the denial of his motion. The issue is not mooted by defendant's success on his Prunty claim because gang evidence that would have been excluded but for the erroneous denial of a section 995 motion can have a prejudicial impact on the jury. (See, e.g., People v. Ramirez (2016) 244 Cal.App.4th 800, 820-822.)
B. Analysis
The denial of a section 995 motion is most appropriately challenged by a petition for writ of prohibition. (§ 999a; see Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1006.) However, the issue may be raised on appeal from a judgment of conviction. (See People v. Mena (2012) 54 Cal.4th 146, 156 ["Even if a writ is not sought, a defendant may still seek review on appeal following the judgment, although the defendant must establish the error was prejudicial"]; People v. Ramirez, supra, 244 Cal.App.4th at p. 803; People v. Haybron (1980) 108 Cal.App.3d 31, 35; People v. Taylor (1967) 250 Cal.App.2d 367, 370.) The standard of review is de novo, but "we must draw all reasonable inferences in favor of the information." (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1071-1072.)
"A defendant may utilize section 995 to strike invalid enhancement allegations." (Hale v. Superior Court (2014) 225 Cal.App.4th 268, 271.) To prevail on a section 995 motion, the defendant must show the absence of probable cause for at least one element of the enhancement. (§ 995, subd. (a)(2)(B); Curl v. Superior Court (1990) 51 Cal.3d 1292, 1308; see Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148.) "'"Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused."' [Citations.]" (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.)
"[T]he showing required at a preliminary hearing is exceedingly low." (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.) Circumstantial evidence may suffice, and the evidence "need not be sufficient to support a conviction." (Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147.) "Thus, an indictment or information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged." (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.)
Defendant's claim is foreclosed by the parties' stipulation regarding the prerequisites of section 186.22, subdivisions (e) and (f). Those provisions correspond to the primary activities and predicate offenses elements, which together establish the existence of a criminal street gang. As previously explained, the Prunty rule is implicated "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets." (Prunty, supra, 62 Cal.4th at p. 71.) "[T]he prosecution must show that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." (Id. at p. 81.)
The parties' stipulation eliminated the need for the type of predicate offenses evidence at issue in Prunty. Since the existence of the Norteño criminal street gang was presumed true, the People needed only to show probable cause with regard to the gang-related nature of the crimes. At trial, on the other hand, the People had no stipulation and attempted to meet the requirements of section 186.22, subdivision (f) with evidence of offenses committed by a group known as Goshen Familia. The effort failed due to a lack of evidence connecting Goshen Familia to a larger Norteño gang or even to defendant and/or his TVR group.
The Ramirez opinion does not assist defendant because that case did not involve a stipulation. There, the gang expert's preliminary hearing testimony alleged "'[e]very Hispanic gang member that resides south of Bakersfield is affiliated with the Surenos.'" (People v. Ramirez, supra, 244 Cal.App.4th at p. 805.) To prove the existence of the Sureño gang, the prosecutor relied on evidence of crimes committed by self-admitted members of the "Eastside Rivas gang" and the "Eastside Victoria gang." Although the expert testified those gangs "'align themselves with the Surenos,' he otherwise provided no evidence that could connect [them] to one another, or to an overarching Sureño criminal street gang." (Id. at p. 815.) Moreover, when questioned about appellant Jerry Ramirez's gang ties, the expert said, "I was unable to identify any subset he may be related to." (Id. at p. 811.)
The Ramirez case is a rare example of a situation where the evidence of an alleged gang motive is truly nonexistent. "For example, no gang signs were flashed, no gang names were called out, and no gang attire was worn." (People v. Ramirez, supra, 244 Cal.App.4th at p. 819.) The prosecution's gang theory was based on the expert's opinion that certain tattoos on Ramirez's body, "'although discreet'" were "'consistent with membership in a Sureno criminal street gang.'" (Id. at p. 808.) There was also a Facebook photograph of him "'wearing all blue.'" (Ibid.)
Here, the parties stipulated to the existence of the gang for which defendant allegedly acted to promote and benefit. There was evidence defendant considered himself to be a Norteño gang member, held himself out to be a Norteño gang member, wore Norteño colors and used gang jargon during the offense, and committed his crimes with a fellow gang member. We cannot say there was a total absence of evidence to support a necessary element of the gang enhancement. (People v. Superior Court (Jurado), supra, 4 Cal.App.4th at p. 1226.) Therefore, error has not been shown.
V. Jury Instruction on Voluntary Intoxication
Defendant claims the jury was misinstructed on how voluntary intoxication can negate the specific intent required for robbery, criminal threats, and the gang enhancement. Since the robbery conviction and gang enhancement are being reversed on other grounds, we focus on the criminal threats verdict.
"Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent ...." (§ 29.4, subd. (b).) Conversely, section 29.4 makes evidence of voluntary intoxication inadmissible for the purpose of negating the required mental state for a general intent crime, including the element of knowledge. (Id., subd. (a).) However, "evidence of voluntary intoxication is relevant to the extent it establishes whether an aider and abettor knew of the direct perpetrator's criminal purpose and intended to facilitate achieving that goal ...." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 186.)
"[A] trial court has no sua sponte duty to instruct on the relevance of intoxication, but if it does instruct, as the court here did, it has to do so correctly." (People v. Mendoza (1998) 18 Cal.4th 1114, 1134.) In particular, "any instructions to the jury concerning voluntary intoxication should inform the jury of the possible effect of voluntary intoxication upon the aider and abettor's mental state." (People v. Letner and Tobin, supra, 50 Cal.4th at p. 186.) Instructional errors with regard to voluntary intoxication are reviewed for prejudice under the Watson standard. (Letner and Tobin, supra, at p. 187.)
The instruction given below was as follows:
"You may consider evidence, if any, of the defendants' voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the intent to do the act required.
"A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect.
"In connection with the charge of Kidnapping for robbery, the People have the burden of proving beyond a reasonable doubt that a defendant acted with the intent to commit robbery. If the People have not met this burden, you must find the defendant not guilty of Kidnapping for robbery.
"In connection with the charge of Carjacking, the People have the burden of proving beyond a reasonable doubt that a defendant acted with the intent to deprive the other person of possession of the vehicle either temporarily or permanently. If the People have not met this burden, you must find the defendant not guilty of Carjacking.
"In connection with the charge of Robbery, the People have the burden of proving beyond a reasonable doubt that a defendant acted with the intent to deprive the owner of it permanently. If the People have not met this burden, you must find the defendant not guilty of Robbery.
"In connection with the charge of Witness Intimidation, the People have the burden of proving beyond a reasonable doubt that a defendant acted with knowledge that he was trying to prevent or discourage Kyle C[.] from reporting victimization, and intent to do so. If the People have not met this burden, you must find the defendant not guilty of Witness Intimidation.
"In connection with the charge of Criminal Threats, the People have the burden of proving beyond a reasonable doubt that a defendant acted with the intent that his statement be understood as a threat. If the People have not met this burden, you must find the defendant not guilty of Criminal Threats.
"You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to criminal possession of a firearm or criminal possession of ammunition."
Defendant alleges the trial court "made a crucial error in crafting the language of the instruction [by stating] that voluntary intoxication applied to intent to commit the act ...." He takes issue with certain language in CALCRIM No. 3426. The pattern instruction reads, in pertinent part: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with <insert specific intent or mental state required, e.g., 'the intent to permanently deprive the owner of his or her property' or 'knowledge that ...' or 'the intent to do the act required'>."
Defendant argues the phrase "intent to do the act required" is legally incorrect and has the effect of "[e]xcluding intoxication from consideration in the determination of the required mental states." (Italics omitted.) We are not persuaded, since the disputed language is consistent with the principles discussed in People v. Mendoza, supra, 18 Cal.4th 1114:
"'When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent.
When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.' [Citations]." (Id. at p. 1127, italics added.)Where the theory of liability is aiding and abetting, the defendant must intend "the act of encouraging and facilitating" as well as the criminal act of the direct perpetrator. (Id. at p. 1129.)
The disputed language is not incorrect as a matter of law, but it may be susceptible of misinterpretation. "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.) "'Error cannot be predicated upon an isolated phrase, sentence or excerpt from the instructions since the correctness of an instruction is to be determined in its relation to other instructions and in the light of the instructions as a whole.'" (People v. Patterson (1979) 88 Cal.App.3d 742, 753; accord, People v. Holt (1997) 15 Cal.4th 619, 677.) Here, the disputed language is followed by five separate paragraphs, each identifying the acts requiring specific intent in counts 1-5. When read as a whole, there is no reasonable likelihood of the instruction being misconstrued in the way defendant contends.
In a separate argument, defendant notes the omission of any reference to the People's theory of aiding and abetting liability. This aspect of his claim is valid. The instruction says, "In connection with the charge of Criminal Threats, the People have the burden of proving beyond a reasonable doubt that a defendant acted with the intent that his statement be understood as a threat." The next paragraph states, "You may not consider evidence of voluntary intoxication for any other purpose." We agree it is reasonably likely the jury interpreted this language to mean defendant's voluntary intoxication was not relevant for purposes of his derivative liability for Lozano's criminal threat.
Under the standard of review, "'the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant.'" (People v. Mendoza, supra, 18 Cal.4th at pp. 1134-1135.) Despite the trial court's failure to explain how voluntary intoxication could have negated the mental state required for aiding and abetting liability, the jury's verdicts on the counts for which no instructional error occurred shows the omission was harmless. For example, since defendant's intoxication was not found to have negated the specific intent required to commit witness intimidation (count 4), it is not reasonably probable a different finding would have been made with regard to aiding and abetting a criminal threat. (See People v. Wright (2006) 40 Cal.4th 81, 98 [instructional error is harmless when "'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions'"].)
VI. Juror Misconduct
A. Background
The jury returned its verdicts on March 15, 2017. Approximately 12 weeks later, on June 6, 2017, defendant filed a motion for new trial. The motion was based on allegations of juror misconduct and supported by the declaration of Juror 2239628. The declaration states:
"I was a juror on the trial of [defendant] and Sabino Lozano. During the trial we jurors listened to the testimony of the victim and the witnesses. We listened to the testimony of ... Sabino Lozano and were waiting in anticipation of the testimony of Defendant .... I did not believe the testimony of the victim in this case but believed that something had happened that night. I, as well as other jurors wanted to hear Defendant ... give his version of what had happened that night.
"When Defendant ... did not testify in the trial I and other jurors were curious as to why he wouldn't have testified as he could have cleared his name. I suspected the reason why he did not testify was due to his priors and having gone to prison, which I had heard from the testimony of the gang expert, and that the prosecutor would have given him a hard time on cross examination.
"The presentation of evidence had concluded and we jurors started to deliberate the case. The jury was split on a decision of nine guilty and three not guilty on all charges except for the possession of firearm and ammunition by a felon. We immediately found Defendant ... guilty on those charges. One of the jurors was very adamant and wanted to convict [defendant] on everything.
"We deliberated and talked about the merits of the case. There were discussions concerning Defendant ... being in custody and ... Lozano was not in custody. We would see Lozano walking freely in the hallways but never saw [defendant] and knew that he was in custody. We believed that was due to his priors, including going to prison for a year.
"We talked about ... Lozano testifying and Defendant ... not testifying. Lozano gave his version of what happened that night and that is why the jury only found him guilty of the charges that he was convicted of. One female juror, who was the alternate that was brought in the middle of deliberations, had concerns that [defendant] had something to hide and that was why he didn't testify. We all talked about the fact that [defendant] did not testify and commented that the DA would have torn him apart on cross examination and would have brought out his entire past. The jury wanted him to testify and had talked about the fact that if he had testified it could have made a difference. I do not know what the outcome of the trial would have been if Defendant ... had in fact testified but I believe it would have made a big difference in the trial verdict.
"The jury had gone through some of the jury trial instructions while deliberating. The instructions they went through mostly had to do with the verdict forms.
"The court had ordered us to continue to deliberate even as we announced we could not reach a verdict. Some of the jurors were pressuring us jurors about changing our votes so that we could all go home. We did in fact change our vote to compromise. This was the reason we had come to the verdicts on the charges in the case."
On July 17, 2017, the People filed an opposition to defendant's motion. The opposition was supported by the declarations of eight members of the jury. The relevant portions of each declaration are quoted below:
Declaration #1
"One of the jurors mentioned that they thought [defendant] was in custody during the trial. It was mentioned that Lozano was seen outside of
the courtroom, in the elevators, etc. And a few jurors mentioned that they never saw [defendant] outside of the courtroom. This was not discussed further as a part of our deliberations. No one suggested that [defendant] being in custody was evidence of guilt.
"It was brought up that [defendant] didn't testify. I believe it was during the first full day of deliberations. This discussion was brief and lasted a minute or two. This was not a significant part of our deliberations. No one suggested that [defendant] not testifying was evidence of guilt."
Declaration #2
"I knew that one defendant was free to leave every day because I saw him get into his car and drive off. Nobody told me that [defendant] was in custody. I assumed he was in custody based on my observations.
"It may have come up during deliberations that one defendant was in custody and the other wasn't, just based on observation. If this was mentioned, it would have been on the full day of deliberations. It was not on the final day of deliberations. We deliberated two or three days. If it was brought up, it was not a significant part of deliberations. It wasn't really a factor. It was never a discussion; it was maybe a comment.
"One defendant testified (Lozano). [Defendant] did not. I don't recall any discussion that one defendant didn't testify. If that had been a significant part of deliberations, I would have remembered it."
Declaration #3
"I don't recall the jury discussing whether a defendant was in custody or not. It might have been mentioned that [defendant] was never seen outside of the courtroom or in the hallway. I don't recall any jury discussion about one defendant not testifying. I don't recall any comments being made about that."
Declaration #4
"... I believe one of the defendants was in custody. The other one was in and out of the courtroom. We just figured it ourselves. We did not discuss the fact that he was in custody during our deliberations.
"One defendant testified and the other did not. The younger one testified. The fact that the older defendant did not testify was not talked about during deliberations. Nobody mentioned that.
"The judge provided us with a set of the instructions that had been read to us. Nobody suggested disregarding any of the instructions."
Declaration #5
"I noticed that one defendant was out in the hallway during breaks, but the other was never outside of the courtroom. Nobody ever told me that the other defendant was in custody. A juror said that since he was in custody he probably has other charges or priors, but it was never an issue in reaching our decision on these charges. Nobody suggested that he being in custody should affect the deliberations or decision. I believe this was referenced on the first day of deliberations. The discussion about custody status may have lasted 20 seconds.
"One defendant testified during the trial. The other defendant did not testify. The fact that he did not testify may have been brought up during deliberations, but it was not an issue that was discussed in detail. I think it was towards the end of the first day. The context was, we were talking about the defendant that did testify, and many of us found him not credible. I believe someone at that point said something like that is probably why the other defendant didn't take the stand. That is the only comment I remember about the one defendant not testifying. I think there were a couple of jurors who kind of shook their heads agreeing that that was probably why he didn't testify, but the discussion never went further than that. The discussion was no more than 30 seconds, definitely less than a minute. There definitely were not any comments suggesting that the one defendant must be guilty because he didn't testify.
"None of the jurors suggested disregarding any of the judge's instructions. I recall one of the instructions being about the defendants' right not to testify, and not to consider or discuss that. I vaguely remember one of the jurors referring to that instruction when it was brought up that one defendant didn't testify. That juror said something along the lines of 'I don't think that's supposed to be a part of how we decide whether he's innocent or guilty.' We moved on at that point."
Declaration #6
"There were two defendants. I could tell that one defendant, [defendant], was in custody because he wasn't free to move around like the other defendant. I believe it was mentioned in deliberations that one defendant was likely in custody, but the reference was very short. It was not a big deal at all.
"One defendant (Sabino) testified. I don't recall any juror talking about the fact that [defendant] didn't testify. If that had been discussed during deliberations, I believe I would have remembered it. If it was mentioned at all, it would have simply been in passing."
Declaration #7
"I observed that the defendant who wore glasses during the trial was always there before us and always left after us. I didn't know for a fact that he was in custody, but I assumed so based on what I saw in the courtroom. I didn't ask the question, but the fact that one defendant might have been in custody was mentioned among the jurors. I believe this was mentioned on the third day of deliberation, but only briefly, for however long it took to say it—just a few seconds. It was not a discussion and was not a significant part of deliberations. It wasn't like we thought, 'okay, one of them's definitely gotta be locked up, so that's bad, you know, so that's guilty automatically.' We didn't do that.
"One defendant, Sabino, took the stand during the trial, but not the other defendant. 'We just went off of whoever testified.' The fact that the other defendant didn't testify was mentioned during deliberations, at the end. It was questioned as to why he didn't take the stand, but none of us knew the answer so it didn't go any further than that. It was a brief mention, 'maybe five minutes.' No one had anything to say about that. ('We were just past that already. Okay now we have work to do.')
"No one suggested that we ignore or disregard any of the judge's instructions. It was a difficult case but we tried our best to fulfill our responsibility as jurors and be fair."
Declaration #8
"I was the foreperson on the [defendant]/Lozano jury trial in February to March of this year.
"It was brought up during deliberations that one defendant was in custody and one was not because the defendants went in different directions during breaks in the proceedings. I don't recall who mentioned that first, but a couple of jurors chimed in. I believe this was on the first day of deliberations. This discussion was brief. It was not a significant part of deliberations. It was more of a simple, separate conversation.
"I think it was discussed that one defendant didn't testify. A couple of jurors had that discussion. Others were quiet. This discussion lasted probably between 2-3 minutes, and was in the context of other discussion
about the testimony of the defendant who did testify not being very believable. It was not discussed that [defendant] was more guilty or less guilty because he didn't testify. The discussion was directed more towards that Lozano's testimony hurt his case more than it helped. When [defendant] not testifying was brought up, one of the female jurors reminded the other jurors of the instruction that they were not to consider or discuss the fact that a defendant didn't testify."
On August 9, 2017, defendant's motion was heard by the trial court. During the proceeding, defendant requested an evidentiary hearing with the opportunity to question members of the jury under oath. The People conceded the juror declarations were prima facie evidence of misconduct but argued the declarations also showed a lack of prejudice. The hearing ended with the motion being taken under submission.
On August 16, 2017, the request for an evidentiary hearing and the motion for new trial were both denied. The trial court found there were no material conflicts in the evidence to necessitate an evidentiary hearing. The trial court also found misconduct had occurred, but it concluded the juror declarations rebutted the presumption of prejudice.
Defendant's claim on appeal challenges both rulings, i.e., the denial of his motion and his request for an evidentiary hearing.
B. Law and Analysis
"A criminal defendant 'has a constitutional right to a trial by unbiased, impartial jurors.'" (People v. Weatherton (2014) 59 Cal.4th 589, 598.) "An impartial jury is one in which no member has been improperly influenced and every member is capable and willing to decide the case solely on the evidence before it." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1115.) Juror misconduct warrants the granting of a new trial if "a fair and due consideration of the case has been prevented." (§ 1181, subd. 3.) When ruling on a motion for new trial, "a trial court presented with competent evidence of juror misconduct must consider whether the evidence suggests a substantial likelihood that one or more jurors were biased by the misconduct." (People v. Dykes (2009) 46 Cal.4th 731, 809.)
The jury in this case was instructed with CALCRIM No. 355, which explained defendant's absolute right not to testify and warned jurors not to consider, "for any reason at all," the fact he had exercised that right. The instruction further admonished, "Do not discuss that fact during your deliberations." (Ibid.) Several jurors attested to a violation of this directive, and the violation constituted juror misconduct. (People v. Lavender (2014) 60 Cal.4th 679, 686-687.) "Such misconduct, in turn, gave rise to a presumption of prejudice, which may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm resulting from the misconduct." (Lavender, at p. 687.)
In this context, the California Supreme Court uses the terms "reasonable probability" and "substantial likelihood" interchangeably. (See, e.g., People v. Weatherton, supra, 59 Cal.4th at p. 598.)
"'"A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion."'" (People v. Thompson (2010) 49 Cal.4th 79, 140.) Likewise, "[t]he trial court's decision whether to conduct an evidentiary hearing on the issue of juror misconduct will be reversed only if the defendant can demonstrate an abuse of discretion." (People v. Dykes, supra, 46 Cal.4th at p. 810.) However, "the question whether prejudice from juror misconduct has been rebutted" is reviewed de novo. (People v. Lavender, supra, 60 Cal.4th at p. 687.)
Our analysis begins with the jury's discussion of defendant's failure to testify. "Generally, it is more serious misconduct for a juror to discuss information extrinsic to the case (e.g., talking to a testifying witness or a friend about the alleged facts) than to discuss intrinsic information (e.g., pointing out the defendant did not testify, something the other jurors would have noticed)." (People v. Hem (2019) 31 Cal.App.5th 218, 229.) In People v. Hord (1993) 15 Cal.App.4th 711 (Hord), where "'several jurors discussed why the defendant did not take the stand and testify'" (id. at p. 721), this court took into account that "the comments did not interject any new material into deliberations that was not already known by the jury from the trial itself" (id. at p. 727).
In Lavender, the California Supreme Court cited Hord with approval for its conclusion regarding the significance of evidence showing an improper discussion was halted by another juror's reminder of the trial court's admonitions. (People v. Lavender, supra, 60 Cal.4th at p. 688.) "[A] reminder to the jury of the court's instructions to disregard a defendant's decision not to testify is, in the absence of objective evidence establishing a basis to question the effectiveness of the reminder (see Evid. Code, § 1150), strong evidence that prejudice does not exist." (Lavender, at p. 687.) Here, the jury foreperson recalled that "[w]hen [defendant] not testifying was brought up, one of the female jurors reminded the other jurors of the instruction that they were not to consider or discuss the fact that a defendant didn't testify." A second juror "vaguely remember[ed] one of the jurors referring to that instruction when it was brought up that one defendant didn't testify."
The juror declarations arguably suggest there may have been two discussions about defendant not testifying. One juror said it was mentioned "at the end" of the deliberations, while two others remembered it happening on a different day. Four other jurors had no memory of the topic being discussed at all. The estimated length of the conversation(s) was approximately one to five minutes, but even the juror who gave the longest estimate also described it as a "brief mention." "The fact that only some of the jurors recalled the comments tends to indicate that this was not a discussion of any length or significance." (Hord, supra, 15 Cal.App.4th at p. 728; accord, People v. Avila (2009) 46 Cal.4th 680, 727.) Numerous cases have found no reasonable probability or substantial likelihood of prejudice where the improper discussions were fleeting. (E.g., People v. Manibusan (2013) 58 Cal.4th 40, 59 ["any comments about this subject were merely brief and passing observations, and the record offers no basis for concluding otherwise"]; People v. Loker (2008) 44 Cal.4th 691, 749.)
"It is natural for jurors to wonder about a defendant's absence from the witness stand." (People v. Loker, supra, 44 Cal.4th at p. 749.) "When comments go beyond natural curiosity and their content suggests inferences from forbidden areas, the chance of prejudice increases. For example, if a juror were to say, 'The defendant didn't testify so he is guilty,' ... the comments go beyond mere curiosity and lean more toward a juror's drawing inappropriate inferences." (Hord, supra, 15 Cal.App.4th at p. 728.) There were no statements indicative of bias in this case. At most, the declaration of Juror 2239628 suggested some jurors assumed defendant chose not to testify to avoid his criminal history being brought out on cross-examination. The declaration shows one or more jurors were open to believing a plausible explanation from defendant regarding "what had happened that night" and were disappointed not to hear "his version" of the events. (Cf. People v. Leonard (2007) 40 Cal.4th 1370, 1425 ["the comments on defendant's failure to testify mentioned in defendant's new trial motion merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better"].) The jury's not guilty verdicts on the charges of kidnapping and carjacking, plus its rejection of all but one of the gang allegations, further demonstrates a lack of bias. For all of these reasons, we conclude the presumption of prejudice was rebutted.
Defendant's claim is also based on the jury's discussion of his custodial status during trial. However, he fails to provide any authority for the contention that mere reference to such information qualifies as misconduct. As the People argued in their opposition, there were no instructions on this topic because the jury was never told defendant was in custody. The instruction on reasonable doubt said, "You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial," but there is no evidence of any jurors claiming to have drawn negative inferences from those facts.
Were we to assume the jury committed misconduct by discussing defendant's custodial status, we would find the presumption of prejudice rebutted by the juror declarations. Most jurors who recalled the discussions characterized them as insignificant, and none alleged any statements indicative of bias or a lack of impartiality. Defendant has thus failed to show the trial court abused its discretion by denying the motion for new trial.
The remaining issue is the denial of defendant's request for an evidentiary hearing. The applicable law is summarized in People v. Hedgecock (1990) 51 Cal.3d 395: "[T]he defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact." (Id. at p. 415.) Moreover, a hearing "should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing." (Id. at p. 419.)
Defendant argues the jurors' differing memories as to when and for how long the improper discussion(s) took place show a material conflict in the evidence. However, some degree of variance is inevitable when nine people attempt to recall events from several months in the past. The jurors who provided the conflicting estimates signed their declarations during the second week of July 2017, nearly four months after the conclusion of their jury service. They all described the incident(s) as brief and/or insignificant. In addition, as stated above, "[t]he fact that only some of the jurors recalled the comments tends to indicate that this was not a discussion of any length or significance." (Hord, supra, 15 Cal.App.4th at p. 728; accord, People v. Avila, supra, 46 Cal.4th at p. 727.) Given the circumstances, it was not outside the bounds of reason for the trial court to conclude the discrepancies were immaterial.
Defendant cites Lavender as a factually analogous case that resulted in a "remand for an evidentiary hearing." He misreads the opinion. In Lavender, there was proof of juror statements indicative of bias, e.g., "'if the [defendants] were innocent then they should've testified,'" and conflicting evidence as to whether "the foreperson 'immediately admonished that juror that [they] could not consider that issue' and 'there was no further mention' of it." (People v. Lavender, supra, 60 Cal.4th at p. 681.) An appellate court concluded the evidentiary conflict did not matter because, even assuming the foreperson interceded, the presumption of prejudice could not be rebutted. The California Supreme Court found the appellate court "erred in declaring the misconduct ... to be categorically prejudicial without considering whether the jury was promptly reminded of the court's instructions to disregard defendants' decisions not to testify or whether any objective evidence in the record indicated that the reminder of the court's instructions would have been ineffective." (Id. at p. 682.)
The California Supreme Court did not remand the Lavender case for an evidentiary hearing. It instructed the trial court "to resolve the factual disputes underlying the issue of prejudice." (People v. Lavender, supra, 60 Cal.4th at p. 693.) The next sentence of the opinion states:
"Whether that will require an evidentiary hearing is a matter entrusted to the discretion of the trial court. [Citation.] As we have previously explained, 'such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact.' [Citations.]" (Ibid.)Defendant's reliance on Lavender is misplaced and he has failed to show an abuse of discretion by the trial court.
VII. Sentencing Issues
Defendant's life sentence was based on count 4, the witness intimidation conviction. A violation of section 136.1, subdivision (c)(1) is ordinarily punishable by a maximum prison term of four years. However, if the crime is found to be gang related for purposes of section 186.22, subdivision (b), the punishment is an indeterminate life term (id., subd. (b)(4)). Because the true finding on the gang allegation is being reversed for insufficient evidence, defendant must be resentenced accordingly.
Defendant's determinate prison term of 16 years was partially based on the second degree robbery conviction, for which he received the middle term of three years (§ 213, subd. (a)(2)), doubled because of a prior strike and further increased by a five-year prior serious felony conviction enhancement (§ 667, subd. (a)) and a one-year prior prison term enhancement (former § 667.5, subd. (b)). Defendant's robbery conviction is being reversed, but the People have the option of retrial. However, the parties agree the prior prison term enhancements are no longer valid and must be stricken.
On October 8, 2019, Senate Bill 136 was signed into law. (Stats. 2019, ch. 590, § 1.) As a result, effective January 1, 2020, the one-year enhancement provided for in section 667.5, subdivision (b) is inapplicable to all prior prison terms except those served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). The parties contend, and we agree, Senate Bill 136 applies retroactively to cases not yet final on appeal. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.) Because defendant's prior prison terms were not based on a sexually violent offense, the trial court must strike the enhancements at the time of resentencing.
Defendant seeks additional relief based on Senate Bill 1393, which took effect January 1, 2019. (Stats. 2018, ch. 1013, §§ 1-2.) This legislation amended sections 667 and 1385 to give trial courts discretion to strike or dismiss the five-year enhancement prescribed by section 667, subdivision (a) for prior serious felony convictions. It applies retroactively to nonfinal judgments. (People v. Stamps (June 25, 2020, S255843) ___ Cal.5th ___, ___ [2020 Cal. LEXIS 3974, *15].) Therefore, at the time of resentencing, the trial court shall consider whether to exercise its discretion to strike the prior serious felony conviction enhancement.
Defendant's opening brief, filed June 27, 2018, alleged errors in the abstract of judgment concerning the recidivism enhancements. Because he will be resentenced on remand, those claims are moot. We also note the trial court issued an amended abstract of judgment and minute order in May 2019. The minute order reads, in pertinent part: "The Court states, due to new legislation must state findings pursuant to PC 667(a)(1) and will exercise its discretion having knowledge of the facts of this case will impose enhancements pursuant to PC 667(a)(1)." While this may indicate the trial court reevaluated its original sentence in light of Senate Bill 1393, defendant may again seek relief at resentencing due to the changed circumstances.
Lastly, defendant argues the trial court issued an unauthorized order prohibiting him from having any further contact with Kyle "in person, in writing, by telephone, or by Internet." Defendant relies on this court's opinion in People v. Robertson (2012) 208 Cal.App.4th 965, which explains that postjudgment protective orders are authorized only in limited circumstances. (Id. at p. 996.) "In addition, 'even where a court has inherent authority over an area where the Legislature has not acted, this does not authorize its issuing orders against defendants by fiat or without any valid showing to justify the need for the order.'" (Ibid.)
Here, as in Robertson, "the prosecutor did not make an offer of proof or argument justifying the need for a no-contact order. The trial was finished and appellant was sentenced to prison. There was no evidence that after being charged appellant had threatened a witness or had tried to unlawfully interfere with the criminal proceedings. '[A] prosecutor's wish to have such an order, without more, is not an adequate showing sufficient to justify the trial court's action.'" (People v. Robertson, supra, 208 Cal.App.4th at p. 996.) The People argue the no-contact order is authorized by the Victims' Bill of Rights Act of 2008 (Cal. Const., art. I, § 28; Marsy's Law), but Marsy's Law was enacted several years prior to the Robertson opinion. The People also fail to distinguish Robertson by identifying any postarrest conduct that would justify a protective order. We will follow our precedent and instruct the trial court to strike the no-contact order.
DISPOSITION
Defendant's conviction of second degree robbery (count 3) is reversed due to instructional error. The true finding on the gang allegation pleaded pursuant to section 186.22, subdivision (b) is reversed for insufficient evidence; the allegation shall be dismissed and the corresponding sentence is ordered stricken from the judgment. The trial court is further directed to strike the postjudgment protective order and the prior prison term enhancements imposed pursuant to former subdivision (b) of section 667.5. Defendant shall be resentenced accordingly.
At the time of resentencing, the trial court shall determine whether to exercise its discretion to strike or dismiss the prior serious felony conviction enhancement as authorized by section 1385. Once defendant has been resentenced, the trial court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
PEÑA, J. I CONCUR: /s/_________
HILL, P.J. Poochigian, J., dissenting,
To establish the existence of a gang under the Street Terrorism Enforcement and Protection Act, also known as the STEP Act (Pen. Code, § 186.20 et seq.), "the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period. [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley), disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)
To establish the gang enhancement, the prosecution must then show that the relevant crimes were "committed 'for the benefit of, at the direction of, or in association with' " the criminal street gang. (Gardeley, supra, 14 Cal.4th at pp. 609-610.)
The Sameness Requirement
These requirements converge in an important way. "[T]he prosecution must show that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." (People v. Prunty (2015) 62 Cal.4th 59, 81 (Prunty); see also id. at p. 75.) Prunty refers to this as the " 'sameness' requirement." (Id. at pp. 76, 81.)
Gang Organization
Criminal street gangs "vary in size, scope, and degree of informality ...." (Prunty, supra, 62 Cal.4th at p. 80.) As a result, the sameness requirement can be established in different ways, depending on the context. (Ibid.)
Identical Gangs Method of Satisfying the Sameness Requirement
Some gangs are "discrete." (Prunty, supra, 62 Cal.4th at p. 80.) For example, the only gang at issue in a case might have no subsets. Or perhaps the only gang at issue is a subset of a larger "umbrella" gang but has no subsets of its own. In these instances, establishing the sameness requirement is straightforward. As Prunty itself explains, "when a defendant commits a crime to benefit a particular subset, and the prosecution can show that the subset in question satisfies the primary activities and predicate offense requirements, there will be no need to link together the activities of various alleged cliques; nor is there likely to be uncertainty about what the relevant 'criminal street gang' is. Indeed, [Supreme Court] cases suggest that many gang-related prosecutions involve the conduct of discrete criminal street gangs and do not turn on the relationship between alleged gang subsets. [Citations.]" (Ibid., italics added.)
Prunty refers to a "larger umbrella Norteño gang." (Prunty, supra, 62 Cal.4th at pp. 82-83.) We will use the term "umbrella gang" to refer to a gang that has subsets.
Similarly, when a defendant commits a crime to benefit an umbrella gang, and the umbrella gang in question satisfies the primary activities and predicate offense requirements, it is not necessary to establish any connection between subsets of the umbrella gang. (People v. Pettie (2017) 16 Cal.App.5th 23, 49-50.)
Thus, the prosecution can satisfy the sameness requirement by showing that the group the defendant sought to benefit itself satisfies the primary activities and predicate offense requirements. For simplicity's sake, I will refer to this as the "identical gang" method of satisfying the sameness requirement.
Connected Gangs Method of Satisfying the Sameness Requirement
Satisfying the sameness requirement gets more complicated when the prosecution's case "turns on" the existence and conduct of gang subsets. (Prunty, supra, 62 Cal.4th at p. 71.) For example, when the prosecution's theory is that defendant sought to benefit one group, and that the predicate offenses were committed by members of another group, the prosecution must "show some associational or organizational connection" between the two groups. (Ibid.) Again for simplicity's sake, I will refer to this as the "connected gangs" method of satisfying the sameness requirement.
It is important to note that Prunty's holding about associational connection evidence only applies to the connected gangs method. We know this because Prunty is clear about the scope of its holding. The Prunty rule "applies to all STEP Act cases where the prosecution's theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Prunty, supra, 62 Cal.4th at p. 71, fn. 2, italics added.) And under the "identical gang" method, the group the defendant sought to benefit, and the group that committed the predicate offenses and primary activities, is one and the same. Prunty is clear that such cases "do not turn on the relationship between alleged gang subsets. [Citations.]" (Id. at p. 80, italics added.)
Gang Membership/Benefit
An individual can belong to and/or seek to benefit, one or more gangs. Thus, an individual can belong to/seek to benefit (1) an umbrella gang only; (2) a subset only; or (3) both an umbrella gang and a subset thereof.
For example, Prunty himself identified as a member of both the larger umbrella Norteño gang and a subset thereof (i.e., the Detroit Boulevard Norteños). (Prunty, supra, 62 Cal.4th at pp. 82-83.) However, predicate offenders in Prunty belonged to the Varrio Gardenland and Varrio Centro Norteños subsets, and there was "no evidence" they identified as members of the umbrella Norteño gang. (Ibid.)
Important here, where the defendant belongs to/seeks to benefit both the umbrella gang and a subset thereof, the prosecution may rely on the umbrella gang as "the" gang for the sameness requirement. (See Prunty, supra, 62 Cal.4th at p. 82 [permissible for prosecution to use umbrella Norteño gang as "the" gang for sameness requirement with defendant who identified as member of both umbrella gang and subset]; id at p. 85; cf. People v. Pettie, supra, 16 Cal.App.5th at pp. 49-50; People v. Ewing (2016) 244 Cal.App.4th 359, 372-373.) Of course, that choice will "dictate[] the type of evidence the prosecution need[s] to introduce" to satisfy the sameness requirement. (Prunty, supra, at p. 82.) If the prosecution chooses the umbrella gang as "the" gang for the sameness requirement, it has two options. It can employ the identical gang method by introducing evidence the same gang (i.e., the umbrella gang) also committed the predicate offenses/primary activities. (See People v. Pettie, supra, 16 Cal.App.5th at pp. 49-50; see also People v. Ewing, supra, 244 Cal.App.4th at pp. 372-373.) Or, the prosecution can use the connected gangs method by introducing evidence a different gang/subset committed the predicate offenses/primary activities along with evidence showing a sufficient associational connection between the umbrella gang and the other gang/subset (connected gangs method). (Prunty, supra, at p. 82.)
Nothing in Prunty "reflects any skepticism regarding the general factual question of whether the Norteños exist ...." (Prunty, supra, 62 Cal.4th at p. 85.) Indeed, "the" gang in a STEP Act prosecution may be "geographically dispersed." (Prunty, at p. 85.) While the evidence introduced at Prunty's trial was insufficient, "nothing in [the Prunty] opinion reflects doubt that prosecutors can prove the existence of such a criminal street gang when the evidence supports such a conclusion." (Ibid., italics added.)
In Prunty, the prosecution did neither. (Prunty, supra, 62 Cal.4th at p. 82.) The prosecution presented "no evidence" that the predicate offenders' subsets identified as part of the umbrella Norteño gang. (Id. at pp. 82-83.) Thus, the identical gangs method of satisfying the sameness requirement was not an option. Therefore, the prosecution needed to introduce evidence of a sufficient associational connection between the predicate offenders' subset and the umbrella Norteño gang. However, it failed to do so.
Here, as in Prunty, defendant sought to benefit an umbrella gang: the Norteño gang. (See maj. opn., ante, at p. 24.) As a result, the prosecution was permitted to rely on the umbrella Norteño gang as "the" gang for the sameness requirement, so along as it introduced the requisite evidence. (See Prunty, supra, 62 Cal.4th at pp. 82, 85.) Once it chose to rely on the umbrella Norteño gang, the prosecution needed to introduce evidence that (1) the same umbrella Norteño gang defendant sought to benefit also committed the requisite predicate offenses and primary activities (identical gang method), or (2) that a subset of the umbrella Norteño gang committed the requisite predicate offenses and primary activities and that subset is sufficiently associated with the umbrella Norteño gang (connected gangs method). The majority concludes the prosecution evidence does not satisfy the second option. (Maj. opn., ante, at pp. 25-28.) However, that is immaterial because, as explained below, the prosecution evidence clearly satisfied the first option. Thus, this case is different from Prunty because the prosecution here satisfied the sameness requirement through the identical gangs method.
He was also a member of the Traver Varrio Rifa (TVR) clique or subset.
See, e.g., People v. Pettie, supra, 16 Cal.App.5th at pp. 49-50; see also People v. Ewing, supra, 244 Cal.App.4th at pp. 372-373.
For predicate offenses, the prosecution introduced evidence that Juan Reyes had previously been prosecuted and convicted for attempted murder. Reyes was a member of the Norteño gang (as well as the Goshen Familia subset thereof).
The prosecution also introduced evidence that Paul Romo and Jose Rivera assaulted a victim and stole his cell phone among other items. Romo and Rivera were members of the Norteño gang (as well as the Goshen Familia subset).
The prosecution also introduced evidence of the primary activities of the Norteño gang. (Maj. opn., ante, at p. 20.)
The sameness requirement was satisfied here through the identical gangs method. The prosecution introduced sufficient evidence of the following: Defendant sought to benefit the Norteño gang, the predicate offenders were members of the Norteño gang, and the Norteño gang satisfies the primary activities requirement. Unlike in Prunty, the prosecution's case here did not "turn on" the conduct of subsets and no associational evidence was required.
For these reasons, I respectfully dissent.
POOCHIGIAN, J.