Opinion
F076612
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. BERTHA RENEE RIVERA, Defendant and Appellant.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. PCF335313, PCF335314, PCF335315)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Antonio A. Reyes, Judge. Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Bertha Renee Rivera of intimidating a witness (Pen. Code, § 136.1, subds. (a) & (b); count 1), finding true that she acted maliciously, and used or threatened to use force (§ 136.1, subd. (c)). The jury also found true that she committed this crime for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The trial court found true that appellant had suffered prior convictions for which she had served prison terms (§ 667.5, subd. (b)).
All future statutory references are to the Penal Code unless otherwise noted.
Appellant's sentencing involved this matter and two companion cases. In one of the companion cases, appellant pleaded to a three-year enhancement under Health and Safety Code section 11370.2, subdivision (a). Altogether for the three cases, she received a determinate term of five years eight months. In this matter, she received a consecutive indeterminate term of eight years to life.
On appeal, appellant claims that the prosecution violated People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) regarding the admission of gang evidence against her, and she also asserts that the evidence was insufficient to support the gang enhancement. She further argues that the trial court erred when it prevented her from introducing evidence of alleged bias of a key prosecution witness. Finally, she raises a claim of prosecutorial misconduct. We reject these claims. We agree with the parties, however, that the one-year prior prison enhancements (§ 667.5, subd. (b)) must be stricken. We also agree with appellant that her three-year enhancement under Health and Safety Code section 11370.2, subdivision (a), must be stricken. We remand this matter for the trial court to resentence appellant, and for further proceedings in the companion cases. Because appellant no longer qualifies for the enhancements, it is impossible to resentence her according to the stipulated sentence. Accordingly, we direct the trial court to vacate the plea bargain in the companion cases, and to allow appellant to withdraw her no contest pleas. In all other respects, we affirm.
BACKGROUND
We summarize the relevant portions of the trial evidence. We provide additional facts later in this opinion when relevant to the issues raised on appeal.
I. Appellant's Son Shoots At A Residence.
In April 2016, someone fired a gun at a particular residence in Porterville, California. Law enforcement believed that Gilberto Amezcua, appellant's adult son, was responsible for that shooting. At trial the prosecution established that, when these events occurred, Amezcua was a gang member with "East Side," a subset of the Norteño street gang.
II. The Search Of Appellant's Residence.
Detective Darin Cardoza investigated this shooting. Cardoza had previous contact with Amezcua, and Cardoza focused on Amezcua as the shooter. Cardoza knew that Amezcua resided with appellant, or frequented her residence.
Cardoza searched appellant's residence. Inside her garage, he found some "taggings" and "monikers" written on a poster. Photographs of that evidence were admitted at trial, and Cardoza explained to the jury how it was gang related. Cardoza told the jury that he believed these gang-related writings probably belonged to Amezcua. Cardoza, however, believed appellant was the "responsible party" at that residence.
III. Appellant Tried To Dissuade A Witness From Testifying Against Her Son.
The prosecution established that appellant threatened a potential witness, M.M., who is the mother of the victim whose residence had been fired upon. M.M. lived next door to her daughter. According to M.M., it was appellant's son, Amezcua, who had fired at her daughter's residence in April 2016.
The jury heard some conflicting testimony about appellant's intimidation of M.M. According to M.M., appellant spoke with her in May 2016. Appellant told M.M. that they "would end up in a bad place" if M.M. went to court about her son's alleged shooting. Appellant told her that, if M.M. was scared of her son because he was in a gang and a "gang banger," then M.M. should really fear appellant. According to M.M., appellant said she and her family were not just gang members, "they were part of the mafia."
M.M. told the jury that she understood "mafia" to mean "someone who is involved with drugs and is more dangerous than just a gang member." She took appellant's threat to mean that, if she went to court, she and her family would be "shot up worse."
According to M.M., appellant had asked her who had given video of the shooting to the police. M.M. had told her that the police took the video. M.M. and appellant went to the victim's residence. M.M. showed appellant where appellant's son had allegedly shot at the residence belonging to M.M.'s daughter. They looked at "bullet holes" left on the outside and inside of that residence.
M.M. told appellant that she had a three-year-old granddaughter who could have been killed. Appellant said, " 'I don't care. I only care about my son.' " Appellant also stated that her son "was an asshole for aiming low instead of higher up." According to M.M., appellant told her that she wanted her son "to have shot higher up so that he would have hit the family inside."
Appellant asked M.M. who had called the police following Amezcua's shooting at the victim's residence. M.M. told her that she did not know who had called the police. According to M.M., appellant said, " 'I know people; lot of people that can hurt badly. They're just a bunch of pigs that care about nothing, but money, and the money that they can get by getting to people.' " M.M. told the jury that appellant was "angry all the time" during their conversation.
In contrast to M.M.'s testimony, appellant denied ever threatening M.M., but she admitted that she had asked M.M. not to testify against her son. Appellant believed that her son was facing a very long prison term. She denied using the words "cholo[,]" "narco[,]" or "mafia" when speaking with M.M. She told the jury that, when she spoke with M.M., she was not trying to benefit the Northern gang. She said she did not realize it was wrong to talk with M.M. She denied that her son had directed her to speak with M.M.
When appellant was arrested in this matter, she spontaneously informed an officer that her son was facing 55 years in prison.
IV. The Evidence Regarding Appellant's Gang Association.
Two detectives, Marciel Morales and Cardoza, testified as gang experts for the prosecution. The two experts discussed the Norteño gang in general, and they explained the various Norteño subsets that operate in and around the City of Porterville. Another prosecution witness, sergeant Mark Azevedo, also provided some testimony about gangs.
Cardoza testified about two predicate offenses involving Norteño gang members. These offenses had occurred in the City of Porterville. According to Cardoza, these predicate offenses showed examples of the primary activities for the Norteño gang in general, and all of its subsets in Porterville.
People's exhibits 18, 19, 20 and 21 were admitted into evidence. These documents were certified copies of the charges and convictions for the two predicate offenses.
Morales had known appellant and some of her sons since 1999. According to Morales, appellant had never admitted that she was a gang member. Likewise, Cardoza told the jury that appellant was not a gang member. Cardoza, however, opined that she was a gang associate.
To establish appellant's gang association, the prosecution demonstrated that appellant had current and/or prior relationships with three men:
1. Her son, Amezcua;
2. A former acquaintance, Armando Zavala. Morales provided testimony establishing that Zavala was a gang member in a Norteño subset called Varrios Central Poros (VCP).
3. A former acquaintance, Jason Macias (Crazy J). Sergeant Azevedo provided testimony that suggested Macias was a gang member. According to Azevedo, he had seen a photograph of the word "Poros" on Macias's chest. Azevedo testified that this was a gang-related tattoo.
At trial, Cardoza opined that, based on the trial testimony from Morales and Azevedo, appellant "affiliates with other gang members." Cardoza opined that appellant is a gang associate. The prosecutor provided Cardoza with a hypothetical that matched some of the facts from this trial. Cardoza opined that appellant acted to benefit the Norteño gang when she threatened M.M. and tried to keep her from testifying against her son, a known Norteño gang member. Based on the hypothetical presented to Cardoza, appellant's threats to M.M. would have benefited all of the Norteño subsets in Porterville.
Cardoza also noted that appellant had informed an officer in 2009 that "scraps" may have been responsible for a particular homicide. Cardoza explained that this is a derogatory term used typically by Norteños to denote Sureños. According to Cardoza, appellant's use of this word showed some affiliation or association with the Norteño gang.
The jury learned that, in 2009, an officer contacted appellant and her son, Amezcua, at appellant's residence. The officer was obtaining statements in a murder investigation. Appellant told the officer that she had heard "scraps" were responsible for shooting that particular victim.
In contrast to the prosecution's evidence, appellant told the jury that she is not part of a gang, and she is not a Norteño gang member. She denied being a Norteño associate. Instead, she associates with her son. She said she has learned that her son is a gang member, and "he does things that I do not like or approve." She testified that she allows her son to go to her residence, but she does not allow him to do gang-related things in her house. When she is away from home, Amezcua will have people there, but "when I come home, I make them leave."
Appellant admitted at trial that she had prior convictions for burglary, evading the police, and using drugs. She had served time in jail and prison. She explained that her drug addiction had been a factor in her prior behavior.
Appellant called a gang expert to testify on her behalf. According to the defense expert, appellant was neither a gang member nor a gang associate. An associate actively helps a gang. It takes more than being a mother to be a gang associate. Likewise, dating a gang member is not enough. Instead, you have to actively do things or help. It was his opinion that this was not a gang crime done for the benefit of a gang.
Appellant told the jury that Amezcua was 26 years old, and she could not stop him from putting up posters in her garage. She said the poster in her garage that contained gang references belonged to Amezcua. She said he does not listen to her, and she had tried to talk to all of her sons about not getting into gangs.
Appellant denied having any gang tattoos. She did have one little tattoo of a heart that she got when she was 14 years old. She denied having any gang-related items in her bedroom.
Appellant testified that Macias (Crazy J) is not a gangster. She said she had an incident with him in 2005 when they argued about another woman. A struggle occurred. During their altercation, Macias had a gun, which discharged. Appellant was shot in her foot and she sought medical attention.
Appellant testified that, in 2006, she spent time with Zavala and they would ingest drugs together. She said she did not date Zavala. Instead, she described her relationship with him was a "bad mistake" and based on "bad choices." Appellant told the jury that she had not dated anyone for 10 or 12 years.
DISCUSSION
I. Sanchez Does Not Require Reversal Of Appellant's Gang Enhancement.
In convicting appellant of intimidating M.M., the jury found true that appellant acted to benefit a criminal street gang. (§ 186.22, subd. (b).) Appellant argues that her gang enhancement must be reversed because the prosecution relied on testimonial hearsay in violation of Sanchez, supra, 63 Cal.4th 665.
Appellant raises ineffective assistance of counsel to the extent her Sanchez claims are deemed forfeited. Respondent, however, does not raise forfeiture. Because we address these issues on their merits, we need not analyze any alleged ineffective assistance of counsel.
A. Standard of review.
In Sanchez, supra, 63 Cal.4th 665, our Supreme Court held that "case-specific" statements related by a gang expert concerning a defendant's gang membership are inadmissible under California law if those statements are based on hearsay. (Id. at p. 684.) Such evidence must be independently established in court. (Ibid.) Further, "testimonial" hearsay statements must also be excluded under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), unless an exception applies. (Sanchez, supra, 63 Cal.4th at p. 685.) Testimonial statements under Crawford "are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, at p. 689.) Improper admission of such evidence is error under the Federal Constitution. (Sanchez, at p. 685.)
"Under Crawford, if an exception was not recognized at the time of the Sixth Amendment's adoption [citation], admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. [Citations.]" (Sanchez, supra, 63 Cal.4th at p. 680.)
Our Supreme Court has clarified a testimonial statement has two requirements. First, the hearsay statement must have been made with some degree of solemnity or formality. Second, the primary purpose of the statement must pertain in some fashion to a criminal prosecution. (People v. Gomez (2018) 6 Cal.5th 243, 297.)
B. Analysis.
Appellant raises a number of Sanchez-related arguments. First, she contends that Cardoza improperly relayed hearsay from her son, Amezcua. She argues that, although her son was not a defendant in this case, he participated in certain events discussed in her trial. As such, she maintains that Cardoza's testimony about Amezcua's gang membership involved case-specific testimonial hearsay.
Second, appellant asserts that Morales used hearsay to opine that Zavala was a gang member. Based on that testimony, appellant asserts that Cardoza improperly opined that appellant affiliated with Zavala.
Third, appellant argues that Azevedo provided case-specific testimonial hearsay from Macias. He maintains that Azevedo improperly testified about the photo of the "Poros" gang tattoo on Macias's chest. As a result, appellant asserts that Cardoza improperly relied on these facts when opining that she was a gang affiliate.
Finally, appellant maintains that the introduction of the two predicate offenses violated Sanchez.
We address, and reject, each of appellant's assertions. We analyze the relevant gang testimony from Cardoza, Morales and Azevedo before turning to the predicate offenses.
1. The testimony from Cardoza.
The trial court designated Cardoza as a gang expert. Cardoza testified that he had investigated the shooting that had occurred at the residence of M.M.'s daughter. Cardoza identified appellant's son, Amezcua, as the shooter. Based on previous contacts with him, Cardoza knew that Amezcua "resided at—or frequented" appellant's residence. Inside appellant's garage, Cardoza located a live .45-caliber round of ammunition. He also found gang indicia consisting of "taggings" and "monikers" on at least one poster.
The jury was shown a series of photographs depicting some of the taggings and monikers found inside appellant's garage. Cardoza explained to the jury that this evidence was gang related. In part, Cardoza found references to East Side Varrio, Norteños, and "scrap killer." The introduction of the gang evidence found inside appellant's garage in no way violated Sanchez because it was based on Cardoza's firsthand knowledge.
Cardoza testified that he was familiar with appellant, but admitted that he had no prior contacts with her before her arrest in this matter. He stated that he had researched whether she had prior contacts with law enforcement. He told the jury that he had talked to other officers about appellant, and he had read reports about her. Cardoza provided three expert gang opinions which are critical in this matter. We examine each of Cardoza's opinions.
a. Cardoza's opinion regarding appellant's gang affiliation.
Cardoza testified that he did not believe appellant was a gang member. He opined, however, that she frequents a known Norteño hangout (her residence), and she affiliates with gang members. He noted that appellant was the "responsible party" for her residence. He stated that his opinion regarding appellant's gang association was based on the trial testimony. Specifically, Cardoza opined that appellant affiliates with Zavala, which was based on Morales's trial testimony. Cardoza also opined that appellant affiliates with Macias, which was based on Azevedo's trial testimony. Cardoza concluded that appellant is a gang associate.
Cardoza was designated as the prosecution's investigating officer for the trial.
Cardoza's opinion did not violate Sanchez. To the contrary, Cardoza made it clear that his opinion about appellant's gang affiliation derived from both his own knowledge and from the trial evidence. Cardoza did not rely on out-of-court statements. Consequently, unless Morales's or Azevedo's testimony was improperly admitted, Cardoza's opinion regarding appellant's gang affiliation was permissible.
b. Cardoza's opinion regarding Amezcua's gang status.
Cardoza testified that he had investigated the shooting that preceded appellant threatening M.M. He stated that he had previously contacted Amezcua. Cardoza testified that Amezcua had admitted being an East Side Varrio gang member. The trial court, however, sustained hearsay objections to this testimony. A short time later, the prosecutor asked if Amezcua met any criteria to be considered a gang member. Cardoza answered that "Amezcua is a validated gang member" with the police department. Cardoza testified that he had reviewed background information regarding Amezcua, including some prior reports on him "here and there." Cardoza also agreed that he had reviewed undisclosed "information" about Amezcua, including field identification cards. Without disclosing the contents of that background information, Cardoza stated his belief that Amezcua "is a self-admitted gang member based on his self-admission, tattoos, clothing and attire, as well as other criminal activity." He determined that Amezcua belonged to the "East Side Varrio" gang.
Cardoza made it clear that he personally knew Amezcua. Cardoza was permitted to use his own personal knowledge to form an opinion about Amezcua's gang status, which did not violate Sanchez. (See Sanchez, supra, 63 Cal.4th at p. 685.) Further, Cardoza did not provide the jury with testimonial hearsay statements involving Amezcua. Instead, Cardoza told the jury in general terms that he had reviewed hearsay sources when researching Amezcua's gang membership. Thus, Cardoza's opinion regarding Amezcua's gang membership did not violate Sanchez. (Id. at p. 685 [an "expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so"].)
c. Cardoza's opinion regarding whether appellant's crime was done to benefit a criminal street gang.
After opining that Amezcua was a gang member, the prosecutor provided Cardoza with a hypothetical that substantially mirrored the facts of appellant's case. Cardoza opined that the hypothetical person in appellant's position would have acted to benefit a criminal street gang. He stated that such a person made a threat in furtherance of the gang because the threat sought to keep the shooter from being prosecuted. Cardoza also opined that the hypothetical person in appellant's position would have been in association with other gang members. The threat would influence the community not to speak with law enforcement, and the person making such a threat was utilizing the "gang status. You can't—you can't do that if you don't have some kind of tie to the gangs." Cardoza believed that the hypothetical person's actions would have benefited the Norteño street gang, including all of its local subsets: (1) the East Side Varrio Poros; (2) VCP; (3) West Side; and (4) West Side Poros.
Finally, Cardoza discussed the testimony from the officer who had interviewed appellant in 2009 during a homicide investigation. Appellant said she had heard "scraps" were responsible for shooting that particular victim. Cardoza explained that this is a derogatory term used typically by Norteños to denote Sureños. According to Cardoza, the fact that appellant previously used the term scraps indicated that she "has some affiliation, some association, or some goings on with the [Norteño] group."
Cardoza's opinion was permissible based on the hypothetical facts. (See Sanchez, supra, 63 Cal.4th at p. 685.) Further, Cardoza relied on appellant's own statement to opine that she had a gang affiliation. In short, none of Cardoza's expert gang opinions violated Sanchez. We turn to the testimony of Morales and Azevedo.
2. The testimony from Morales.
Morales was designated as a gang expert in this trial. Morales testified that, in 2006, he had contact with appellant and Zavala. Morales also had personal contact with Zavala after 2006. Morales said he had researched Zavala's background, including "several cases" involving him. Morales testified that, after reviewing information on Zavala, and based on his prior contact with him, Morales had long ago formed an opinion that Zavala was a gang member. Morales's opinion was based on "[g]ang association, gang clothing, self-admission, committing gang crimes, [and] gang tattoos." Morales said he had dealt with Zavala on "other cases" in the past.
Morales began to testify about the contents of a specific case from 2005 or 2006 involving Zavala. The trial court, however, sustained a hearsay objection because Morales was discussing a specific incident. Morales explained that he had personally observed gang tattoos on Zavala. However, it had been such a long time that he could not recall all of Zavala's gang tattoos. Morales knew that, following an undisclosed "large scale investigation" that had occurred, Zavala had been deemed a gang member based, at least in part, by his gang tattoos.
Morales testified that he had personally heard Zavala admit he was a gang member in the "Varrios Central Poros, VCP." Morales explained that VCP is a Norteño street gang in the City of Porterville. Morales stated that his opinion regarding Zavala's gang membership was also based on his personal contact with Zavala, including "his association with other gang members that I know and had contact with." Morales opined at trial that Zavala is a "Varrios Central Poros, VCP" gang member, which was part of the Norteño street gang in Porterville.
The trial court overruled hearsay objections to this testimony. Morales did not explain the circumstances under which he heard Zavala's admission.
Morales made it clear that he personally knew Zavala, including Zavala's gang tattoos and Zavala's association with other known gang members. Morales was permitted to rely on information within his personal knowledge to form his opinion regarding Zavala's gang status. (See Sanchez, supra, 63 Cal.4th at p. 685.)
Appellant argues that Morales relayed testimonial hearsay when telling the jury that Zavala made a self-admission that he was a gang member. According to appellant, Zavala may have made this admission during a booking process, in which case that evidence would have violated People v. Elizalde (2015) 61 Cal.4th 523. Respondent opposes appellant's position, contending nothing shows Zavala's admission took place during a booking process.
We need not resolve the parties' dispute regarding Zavala's self-admission. Even if Morales's testimony about Zavala's self-admission constituted impermissible testimonial hearsay (whether or not obtained during a booking process), it is clear that its introduction was harmless beyond any reasonable doubt. Morales otherwise presented overwhelming admissible evidence establishing that Zavala was a gang member. Much of Morales's opinion in that regard was based on his personal knowledge. Thus, any presumed error regarding Zavala's self-admission was not prejudicial. Accordingly, Morales's gang opinion about Zavala was proper, and Sanchez did not require its exclusion. Likewise, because Morales's opinion about Zavala was proper, it was likewise permissible for Cardoza to base his opinion regarding appellant's gang affiliation, at least in part, on her past connection with Zavala, a known gang member.
3. The testimony from Azevedo.
As appellant notes, only Cardoza and Morales were designated as gang experts. Sergeant Azevedo was not designated as a gang expert, but he provided testimony about gangs.
Azevedo testified that, in 2005, he had investigated an incident in which appellant suffered a gunshot wound to her foot. He had contacted appellant in the hospital. She provided a statement about the incident, which involved a man she identified as her boyfriend. Appellant, however, provided a false name for that suspect. She said they had struggled together, and her boyfriend's gun had discharged, striking her in the foot. Azevedo subsequently determined that the person who had shot appellant was Jason Macias, also known as "Crazy J."
Appellant never identified Macias as the person who shot her foot. During his investigation, Azevedo had provided appellant with a six-pack photo lineup, but she did not select Macias's photo. According to Azevedo, she only looked at the photos for about "a second."
At the time of this shooting, Azevedo was a member of a special gang investigation unit. He testified that he was familiar with Macias from at least one prior contact. Azevedo testified that he had seen a picture of Macias, which showed a tattoo of "Poros" on his chest. Azevedo stated that Macias's tattoo was gang related.
The trial court overruled a hearsay objection regarding Azevedo's testimony about the picture of Macias's tattoo. The court, however, sustained a hearsay objection when Azevedo testified that, "during this case and in the—prior to this case, I had received information that [Macias] is an active or was an active gang member."
Azevedo explained that he had training and experience regarding gangs, and he briefly detailed his exposure to gangs. He told the jury that the word "Poros" on Macias's chest was "a gang tattoo. There's East Side Poros, West Side Poros, and Varrio Central Poros, gang members, in Porterville. It's a gang tattoo indicating membership to the [Norteño] Criminal Street Gang."
The parties dispute whether or not Azevedo's testimony was proper regarding Macias's tattoo. Appellant argues that Azevedo merely saw a photo of Macias's tattoo, which represented case-specific hearsay in violation of Sanchez. Appellant also contends that Cardoza's subsequent reliance on this testimony violated Sanchez. In contrast, respondent claims that Azevedo personally saw the tattoo, and Azevedo was permitted to explain the tattoo's gang significance.
We agree with appellant and we reject respondent's arguments regarding this evidence. As appellant notes, no testimony established that Azevedo personally saw a tattoo on Macias's chest. To the contrary, Azevedo stated that he saw a photo of such a tattoo. Based on that photo, Azevedo stated that Macias's tattoo was gang related. We need not, however, decide whether the photo of Macias's tattoo represented testimonial hearsay. In any event, this evidence was hearsay. Under Sanchez, an expert may not relate as true "case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.) As appellant notes, the prosecution did not admit the photo into evidence or otherwise authenticate it.
The evidence of Macias's gang tattoo was a "case-specific" fact because it related "to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) Indeed, the prosecution attempted to establish that Macias was a gang member in order to establish, in part, that appellant was a gang associate. Thus, we agree with appellant that, under Sanchez, the prosecution was required to prove by competent evidence the existence of Macias's alleged gang-related tattoo. (See Sanchez, supra, 63 Cal.4th at p. 686.) That did not occur. As such, we agree with appellant that the admission of Azevedo's testimony regarding Macias's gang tattoo violated Sanchez. Thus, we address prejudice regarding this evidence.
a. The admission of Azevedo's testimony regarding Macias's tattoo and/or Macias's gang membership was harmless.
Regardless of whether or not the evidence about Macias's tattoo represented testimonial hearsay, we can nevertheless conclude that any error was harmless beyond a reasonable doubt. (See Sanchez, supra, 63 Cal.4th at pp. 670-671 [setting forth harmless error standard for a constitutional violation].) Setting aside the testimony about Macias's tattoo, the prosecution otherwise established with admissible evidence that appellant had a gang affiliation. Cardoza based his opinion on the evidence recovered from appellant's garage, which referenced East Side Varrio, Norteños, and "scrap killer." Cardoza also focused on appellant's prior use of the word scraps, which indicated that she "has some affiliation, some association, or some goings on with the [Norteño] group." He noted that she had affiliation with two known gang members, her son and Zavala. Based on the hypothetical presented to Cardoza, the admissible evidence also conclusively demonstrated that appellant threatened M.M. in order to benefit the Norteño street gang, including all of its local subsets: (1) the East Side Varrio Poros; (2) VCP; (3) West Side; and (4) West Side Poros. Consequently, we can declare that any error regarding the testimony about Macias's gang-related tattoo, or Macias's alleged gang membership, was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) As such, it was likewise harmless when Cardoza opined that, in part, appellant's gang affiliation was based on her affiliation with Macias. In other words, the error regarding the testimony about Macias's tattoo was unimportant in relation to everything else the jury considered regarding appellant's gang affiliation. Likewise, this error was unimportant regarding whether she committed the charged crime to benefit a criminal street gang. (See People v. Neal (2003) 31 Cal.4th 63, 86 [setting forth standard to review harmless error].) Accordingly, reversal is not required based on Azevedo's testimony about Macias.
4. The predicate offenses.
Appellant argues that Cardoza's testimony about the two predicate offenses violated Sanchez. She contends this evidence represented testimonial hearsay because Cardoza had no personal knowledge of these crimes. In contrast, respondent argues that the testimony about the predicate acts did not involve case-specific hearsay.
We agree with respondent and we reject appellant's arguments. There is a split of authority in California regarding whether a gang expert's testimony about predicate offenses entails "case-specific facts" as contemplated by Sanchez. Our high court has taken this issue under review. One view holds that facts related to predicate offenses are case specific. (People v. Lara (2017) 9 Cal.App.5th 296, 337; People v. Ochoa (2017) 7 Cal.App.5th 575, 583, 588-589.) The other view is that evidence of a gang's pattern of criminal activities by alleged members is only "general background information," permitting a qualified expert to relate hearsay while testifying about predicate offenses. (People v. Blessett (2018) 22 Cal.App.5th 903, 943-945, review granted Aug. 8, 2018, S249250, overruled on other grounds in People v. Perez (2020) 9 Cal.5th 1, 14; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411.) We believe the second view is correct and follows our Supreme Court's holding in Sanchez.
In People v. Meraz (2018) 30 Cal.App.5th 768 (Meraz), review granted March 27, 2019, S253629, the Court of Appeal reiterated the limitations imposed by Sanchez. Meraz stated that "facts are only case specific when they relate 'to the particular events and participants alleged to have been involved in the case being tried.' " (Meraz, at p. 781, quoting Sanchez, supra, 63 Cal.4th at p. 676.) In contrast, background information deals with a gang's history and general operations. (Meraz, at p. 781, citing Sanchez, at p. 698.) The Meraz court concluded that a gang expert's testimony about a gang's "pattern of criminal activities" was "general background testimony" and unrelated to the defendants or offenses tried in that case. (Meraz, at p. 781.) Accordingly, Sanchez did not require exclusion of that testimony.
In People v. Veamatahau (2020) 9 Cal.5th 16 (Veamatahau), the Supreme Court recently clarified the distinction between background facts and case-specific facts for purposes of applying Sanchez. The issue in Veamatahau was whether a drug expert offered case-specific or background testimony when he identified pills in the defendant's possession based on their similar appearance to drugs described on a drug identification database. (Id. at p. 22.) The Supreme Court held: "The focus of the [Sanchez] inquiry is on the information conveyed by the expert's testimony, not how the expert came to learn of such information. Thus, regardless of whether an expert testified to certain facts based on composite knowledge 'acquired from sources too numerous to distinguish and quantify' or if the expert simply looked up the facts in a specific reference as part of his or her duties in a particular case, the facts remain the same. The background or case-specific character of the information does not change because of the source from which an expert acquired his or her knowledge." (Id. at p. 30.)
In deciding the drug database was background information and not case-specific hearsay, the Veamatahau court pointed out that the expert would have employed his " 'special knowledge, skill, experience, training, and education' to (1) select a source to consult, (2) digest the information from that source, (3) form an opinion about the reliability of the source based on [his or her] experience in the field, and (4) apply the information garnered from the source to the (independently established) facts of a particular case." (Veamatahau, supra, 9 Cal.5th at p. 29.) Veamatahau suggests that if an expert employs his or her expertise in evaluating background information before using it to form an opinion, it remains background information even if it originated from a hearsay source and "serve[s] as the basis for the expert's ultimate opinion" about the charged offense. (Id. at p. 31, citing Evid. Code, § 805 ["Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact."].)
Here, Cardoza discussed two predicate offenses. For both, he relayed the pertinent information from the police records. Those records, however, represented background information, and Cardoza relied on his expertise in evaluating these hearsay sources to form his opinion. This is permissible. (See Veamatahau, supra, 9 Cal.5th at p. 31.) Moreover, when testifying about these predicate offenses, Cardoza did not discuss any events or participants alleged to have been involved in appellant's case. In short, he merely provided background information relating to the Norteño gang and its subsets in and around the City of Porterville. Accordingly, Sanchez was not violated. (See Meraz, supra, 30 Cal.App.5th at p. 781.)
5. Appellant's Sanchez claims fail.
Based on this record and the analysis above, we reject appellant's various arguments regarding Sanchez. The prosecution presented admissible evidence establishing appellant's gang affiliation. The prosecution also demonstrated with admissible evidence that appellant committed the charged crime to benefit a criminal street gang. Finally, the introduction of the predicate offenses did not violate Sanchez. Therefore, contrary to appellant's assertions, Sanchez does not require the reversal of her gang enhancement.
II. Substantial Evidence Supports Appellant's Gang Enhancement.
Appellant argues that insufficient evidence supports her gang enhancement.
A. Standard of review.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
B. Analysis.
Appellant raises two arguments. First, she contends the evidence was insufficient to link her gang affiliation to the gangs involved in the predicate offenses. She relies primarily on People v. Prunty (2015) 62 Cal.4th 59 (Prunty). She asserts that the numerous subsets discussed in her trial "were not shown to have the required connection to the umbrella Norteño organization."
In her second argument, appellant asserts that the evidence was insufficient to establish the primary activities of the gang.
1. The legal background on gang enhancements.
A gang enhancement applies when someone commits a felony "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." (§ 186.22, subd. (b)(1).) " 'In addition, 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.' [Citations.]" (Sanchez, supra, 63 Cal.4th at p. 698.)
2. The requirements under Prunty.
In Prunty, the prosecution's gang expert stated that the defendant was an admitted " 'Northerner,' or a Norteño gang member," and a member of the Detroit Boulevard Norteño " 'set[.]' " (Prunty, supra, 62 Cal.4th at p. 68.) According to the expert, the defendant's clothing, previous contacts with police, and possessions were consistent with Norteño gang membership. (Ibid.) The expert described the Norteños as a Hispanic gang, active in Sacramento and throughout California, and it had about 1,500 local members. (Id. at p. 69.) He testified that "Sacramento-area Norteños are not associated with any particular 'turf' but are instead 'all over Sacramento' with 'a lot of subsets based on different neighborhoods.' " (Ibid.) Regarding predicate offenses, the gang expert relied on crimes committed by other gang members from other Norteño subsets, i.e., the Varrio Gardenland Norteños and the Varrio Centro Norteños. The expert testified that these subsets called themselves Norteños. (Ibid.) The prosecution produced no specific evidence showing the subsets identified with a larger Norteño group. The expert also did not testify that the Norteño subsets that committed the predicate offenses shared a connection with each other, or with any other Norteño-identified subset. (Ibid.)
Prunty held that the prosecution's evidence was legally insufficient to prove that the defendant's gang committed the predicate offenses. (Prunty, supra, 62 Cal.4th at p. 85.) Although the subsets who committed the predicate offenses were described as Norteños, no evidence connected these groups to one another, and nothing connected them to the "overarching Sacramento-area Norteño criminal street gang." (Id. at p. 82.) No evidence tended to show "collaboration, association, direct contact, or any other sort of relationship" among the subsets which the expert described. (Ibid.) Nothing permitted an inference of an associational or organizational connection among the subsets. (Ibid.)
In this matter, Cardoza and Morales were both deemed gang experts, and they testified regarding the Norteño gang. Three "clicks" of Norteños operate in Porterville: (1) East Side; (2) Central; and (3) West Side. Each "click" has its own subsets. East Side has (1) the East Side Poros and (2) the East Side Varrio Poros ("ESP"). Central has (1) the Central Poros and (2) the Varrio Central Poros. West Side has (1) the West Side Poros ("WSP") and (2) the Varrio West Side Poros.
The jury learned that the gang members in the Porterville subsets are members of the larger Norteño gang in Tulare County, which is governed by the Nuestra Familia. The prosecutor asked Cardoza if the Norteño subsets in Tulare County "collaborate, communicate and work together in furtherance of the gang as a whole?" Cardoza answered affirmatively. He explained that, during a law enforcement operation known as "Redsol," a particular gang member was identified as the person in charge of "South County" and this person reported to a Nuestra Familia member. During this operation, it was determined that three channels in Tulare County were used to provide information from the Nuestra Familia to the street, or vice versa.
Appellant asserts that Cardoza's testimony about operation Redsol represented inadmissible testimonial hearsay. We disagree. Cardoza's testimony about operation Redsol represented general background information, which is still permissible. (Sanchez, supra, 63 Cal.4th at p. 685.) Under Veamatahau, if an expert employs his or her expertise in evaluating background information before using it to form an opinion, it remains background information even if it originated from a hearsay source. (Veamatahau, supra, 9 Cal.5th at p. 31.)
Defense counsel raised objections under hearsay and Sanchez to this testimony. The trial court overruled those objections. Cardoza testified that Norteño gang members all follow certain rules and orders. A chain of command exists within the Norteño street gang that linked to the Nuestra Familia.
Cardoza said the Norteño subsets in Porterville share and defend the same turf, and they work together to push the Sureños from the city. The three subsets all associate with the color red and the number 14. They share the same rivals, i.e., the Sureños and the Northern Riders dropout gang.
The first predicate offense which Cardoza discussed involved three Norteño gang members. These three were convicted of robbery and assault with a deadly weapon. These crimes occurred in the City of Porterville. Cardoza could not recall in which subset these gang members belonged. He agreed, however, that this predicate offense was an example of the primary activities of the Norteño gang and its subsets.
The second predicate offense which Cardoza discussed involved "an active West Side Poros gang member." This crime occurred in the City of Porterville. This gang member was convicted of assault with a deadly weapon. Cardoza agreed that this defendant belonged to the Norteño street gang, but specifically to the WSP subset. Cardoza also agreed that this crime was an example of the primary activities of the Norteño gang, and its subsets.
Cardoza opined that appellant was a gang associate. After being presented with a hypothetical that mirrored some of the facts in this matter, Cardoza opined that the person in appellant's position acted to benefit and further the Norteño gang. Cardoza agreed that this hypothetical person's conduct would have benefited all of the subsets in the City of Porterville, and not just the shooter's subset, i.e., the East Side Varrio Poros.
In contrast to Prunty, the prosecution established that appellant was affiliated with the same gang, i.e., the Norteños, whose members had committed the predicate offenses. Moreover, sufficient evidence demonstrated an inference of an associational or organizational connection among the three Norteño subsets in Porterville. (See Prunty, supra, 62 Cal.4th at p. 82.) Cardoza and Morales established that these subsets identified with the larger Norteño organization, and those gang members were all considered Norteños. As such, Prunty does not require reversal of appellant's gang enhancement.
3. The primary activities.
In her second argument, appellant asserts that Cardoza was not very experienced when he testified in this matter. She notes that Cardoza had been a police officer for less than five years, and he had only been investigating gang crimes for about two years prior to his testimony. She argues that Cardoza failed to explain how he determined her gang's primary activities. She renews her assertions under Sanchez, contending that Cardoza merely relied upon hearsay. She also cites In re Alexander L. (2007) 149 Cal.App.4th 605. She maintains that Cardoza's testimony was insufficient to establish the required primary activities to establish a criminal street gang. We disagree with appellant's assertions.
To establish a gang's primary activities, the trier of fact may look to both the past and present criminal activities of the gang. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) Isolated criminal conduct, however, is not enough. "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." (Id. at p. 324.) Expert testimony based on an adequate factual foundation might also be sufficient. (Ibid.)
In In re Alexander L., the opinion which appellant cites, a deputy sheriff in a gang enforcement unit contacted a juvenile and questioned him about his status in a particular street gang. The juvenile was wearing gang clothing and he was in a known gang gathering area. (In re Alexander L., supra, 149 Cal.App.4th at p. 609.) The juvenile admitted to the deputy that he had spray painted the name of his alleged gang in three locations. The juvenile also disclosed that he had been given a gang moniker. A petition was filed against the juvenile alleging three counts of vandalism, and alleging that these offenses were committed for the benefit of, at the direction of, or in association with appellant's street gang, with the intent to promote, further, or assist the gang under section 186.22, subdivision (d). (In re Alexander L., supra, at p. 609.) The juvenile court denied a motion to dismiss the gang enhancement. (Ibid.) The appellate court, however, determined that error had occurred.
The appellate court commented that no specifics were elicited about the circumstances of the gang's crimes, or how the deputy had obtained his information. (In re Alexander L., supra, 149 Cal.App.4th at pp. 611-612.) The deputy also did not directly testify that criminal activities constituted the gang's primary activities. Indeed, on cross-examination, the deputy stated that the vast majority of cases connected to this gang that he had experienced were graffiti related. (Id. at p. 612.) The appellate court concluded that the deputy's testimony lacked an adequate foundation. (Ibid.) No information was elicited from him establishing the reliability of his testimony. "It is impossible to tell whether his claimed knowledge of the gang's activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay." (Ibid.)
Finally, the court in In re Alexander L. rejected the respondent's argument that the admission of two predicate crimes had been enough, along with the deputy's general testimony about the gang's crimes, to establish the gang's primary activities. (In re Alexander L., supra, 149 Cal.App.4th at p. 613.) To the contrary, the appellate court reiterated that the deputy had not provided a basis for his testimony that he knew members of the juvenile's alleged gang had been involved in certain crimes. Without more, the two predicate offenses did not provide substantial evidence that gang members had consistently and repeatedly committed criminal activity listed in the gang statute as required under Sengpadychith, supra, 26 Cal.4th at p. 324. (In re Alexander L., supra, 149 Cal.App.4th at p. 614.) The appellate court reversed the true finding as to the gang enhancement allegation. (Ibid.)
In re Alexander L. is factually distinguishable from the present matter. Cardoza explained his background in law enforcement, including his training and experience with gangs. The trial court designated Cardoza as a gang expert. Unlike the deputy in In re Alexander L., Cardoza explained that he was personally familiar with the local gangs operating in Tulare County and the City of Porterville. Part of his job duty was to remain updated on gang activities in Porterville. He had talked to hundreds of Norteño gang members, and he had investigated about 25 crimes, and probably more, in which Norteño gang members were suspects. Cardoza testified that the primary activities of the Norteños include drug sales, fraud, robbery, shootings, stabbings, various assaults, and murder. Cardoza stated that he had investigated these various crimes by Norteño gang members, and he opined that they are repeated and consistent activities of the Norteño gang.
The concerns in In re Alexander L. are lacking here. Cardoza's testimony provided sufficient foundation to make his opinions reliable. Cardoza's testimony about the primary activities of the Norteño gang, coupled with the additional two predicate offenses which Cardoza discussed, provided substantial evidence that Norteño gang members had consistently and repeatedly committed criminal activity listed in the gang statute. (See Sengpadychith, supra, 26 Cal.4th at p. 324.) In re Alexander L. does not dictate reversal of appellant's gang enhancement.
Based on this record, the prosecution presented evidence that was reasonable, credible, and of solid value from which a reasonable trier of fact could find true the gang enhancement beyond a reasonable doubt. As such, substantial evidence supports the gang enhancement imposed against appellant. (See People v. Albillar, supra, 51 Cal.4th at pp. 59-60.) We will not reweigh this evidence nor reevaluate Cardoza's credibility. (Id. at p. 60.) Consequently, appellant's arguments regarding the sufficiency of the evidence are without merit, and this claim fails.
III. The Trial Court Did Not Abuse Its Discretion In Prohibiting Appellant From Introducing Evidence About M.M.'s Family.
Appellant asserts that the trial court violated her constitutional rights to confront and present a defense when the court excluded evidence of M.M's bias. In general, the defense sought to show that M.M. had a motive to lie because at least one of her sons was a Sureño gang member. In addition, the defense wanted to introduce evidence showing that the residence of M.M.'s daughter was a known Sureño gang hangout.
A. The relevant proceedings below.
In pretrial proceedings, the prosecutor moved to suppress evidence that M.M.'s children were in prison. The trial court ruled such evidence was not relevant, but said it would consider the issue later if it arose.
During M.M.'s trial testimony, defense counsel sought to cross-examine her and admit evidence that M.M.'s son is a Sureño gang member. Outside the presence of the jury, defense counsel stated, "We have documented proof that [M.M.] has been contacted by the police regarding her family's involvement in gangs. We know that her son ... is a known gang member and is doing prison time for gang crimes."
The court asked about the relevancy of that evidence. Defense counsel responded that the prosecution was casting doubt on appellant with gang evidence. "How can we then not impeach their witness's credibility when what they're using to cast a bad light on my client, well, that same bad light exists to this witness. So how can what's good for one not be good for the other?"
The court asked if the defense had any evidence that M.M. was involved in gang activity. Defense counsel admitted that no evidence showed M.M.'s active involvement in gangs, but, instead, she was a gang associate. The court sustained the prosecutor's unspecific objection to this evidence.
Defense counsel asked to make a record. The following exchange occurred:
"[DEFENSE COUNSEL]: Here, the testimony of gang expert Cardoza will be that my client is not a gang member, but that she's an associate, and that she's an associate because of her son. She associates with gangs because of her son. Here, [M.M.] is guilty of that same thing. She associates with gangs because her sons are in gangs.
"THE COURT: Okay. The witness is not on trial, [defense counsel]. Objection's sustained."
A short time later, defense counsel noted to the court that M.M.'s involvement or association in gangs would arise when Cardoza (or possibly other witnesses) testified. According to defense counsel, M.M.'s name was in a police report and she was mentioned in a gang incident. Defense counsel stated that M.M. was contacted because her children had a "connection with Southern gangs." The court stated it would deal with that issue if and when it occurred. The prosecutor asked the court to admonish the defense not to ask questions that would violate the court's ruling. The court advised, "The objection was sustained regarding anything having to do with [M.M.'s] family or any allegations regarding her family being involved in, quote, unquote, 'gangs'. That's not before the Court. [M.M.] is not on trial, okay?"
M.M.'s cross-examination resumed. Defense counsel later asked her if it was true that her house had been shot at in the past. The trial court sustained the prosecutor's relevancy objection. Outside the jury's presence, the prosecutor asked the court to make its ruling clear that the defense could not discuss M.M.'s gang association or any prior shootings. Defense counsel responded that this evidence was relevant. Defense counsel also stated his intent to show that M.M. "was getting substantial financial help from the District Attorney to remove her from that home situation." Defense counsel argued that these statements were relevant to M.M.'s credibility and to show her bias. According to defense counsel, M.M. had a reason to possibly mislead the jury and make untruthful statements. Defense counsel said he was allowed to ask questions regarding bias, and M.M. "would clearly have a bias against [appellant]." He believed that past shootings were relevant to why M.M. received compensation from the district attorney. The court stated it understood that the defense wanted to "delve into other incidents regarding apparently [M.M.'s] family." The court said it had previously sustained an objection regarding these issues. "You are instructed not to ask questions regarding any of those incidents that involve this case."
The court noted that, during opening statements, the defense had admitted to the jury that the shooting incident at the victim's house had occurred. According to the court, that shooting was not the issue. Instead, the issue was the alleged intimidation of M.M. The court stated that "anything else is not relevant. Because if we get into that, we're opening the door to an immense number of issues that are not, you know, relevant. Okay? Simple as that." The court instructed the parties to not go into any other incidents except the one shooting that occurred, and appellant's alleged intimidation of M.M.
On redirect, M.M. testified that daily shootings occurred at the house after appellant was arrested. She told the jury that she relocated with state assistance. Outside the jury's presence, defense counsel argued that the prosecutor was asking about shootings that had occurred at M.M.'s house after the alleged intimidation and, thus, he should be allowed to ask about prior incidents. The court observed that it had already ruled on the prior incidents. Defense counsel insisted that "parity" was required. The prosecutor pointed out that "a trial doesn't work to where, well, they were able to get something in, so I can get something in." Instead, the Evidence Code must be followed. The court concluded that the "door" had not been opened regarding prior incidents. However, if the prosecutor delved into subsequent incidents, then the defense could as well.
During cross-examination of Cardoza, defense counsel attempted to elicit testimony that the residence belonging to M.M.'s daughter had been shot at in the past, and it had experienced "gang-related problems." The court sustained the prosecutor's objections based on relevancy. Outside the presence of the jury, defense counsel maintained that this testimony was admissible to impeach M.M.'s credibility. Defense counsel asserted that he should be permitted to impeach M.M.'s character with evidence that she associates with gang members, and she had trouble at her home because of gangs. The court asked if M.M. had any prior gang-related convictions. Defense counsel admitted that M.M. did not have any such convictions. The court denied the defense an opportunity to impeach M.M. The court stated it had gone over these issues before, and M.M. was not on trial. Defense counsel insisted that he should be permitted to ask about prior alleged shootings at the victim's residence. The court asked about the relevancy. Defense counsel stated it was relevant because the victim's residence was a known Sureño hangout, and that evidence would impeach M.M. The court said, "You are not getting into that." A short time later, the prosecutor commented that any evidence suggesting that the victim's house was connected with Sureños was "totally misleading" because the victim "was rumored to be dating an alleged person who associates with [Sureños]. [M.M.'s] kids aren't [Sureños]. There is no evidence of that." Defense counsel countered that M.M's son "is doing time because he's a Southern Gang member." The court said, "You are not getting into that."
B. Standard of review.
We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264; People v. Clair (1992) 2 Cal.4th 629, 660.) We will not disturb a trial court's decision on appeal unless "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis.
Appellant notes that M.M. was impeached during portions of her testimony. The jury learned that M.M. had a prior conviction for petty theft. Cardoza testified that, when he interviewed M.M., she never told him that appellant had used the terms "cholo[,]" "narco[,]" or "mafia" when M.M. reported appellant's threats to her. The jury heard from Cardoza that the Sureños call themselves the "Mexican Mafia" and Norteños would not describe themselves as "mafia." The jury learned that M.M. never told the police that appellant said all police are pigs and they would not help her. The jury also learned that M.M. did not call the police at the time appellant had threatened her.
Appellant observes that M.M. was the only witness regarding appellant's actions. Appellant asserts that, had the trial court permitted the introduction of evidence showing a possible connection between M.M. and the rival Sureño gang, the defense could have impeached her credibility by showing a bias. Appellant argues that the court's evidentiary rulings prejudicially prevented her from confronting M.M. and from presenting a complete defense.
We disagree that the trial court abused its discretion. M.M.'s credibility as a witness was relevant in this trial, and appellant had the right to show her potential bias. (Evid. Code, §§ 351, 780, subd. (f), 785.) However, the defense offered no evidence that M.M. had suffered prior gang-related convictions or that she was a gang member. In fact, the defense conceded that it had no evidence M.M. was even involved in gang activity. Appellant's proposed evidence did not show or reasonably suggest that M.M. had an affiliation with the rival Sureño gang. In short, the defense's proposed gang-related evidence regarding M.M.'s family had very little probative value regarding M.M.'s potential bias. We reject appellant's assertions otherwise.
A trial court may exclude otherwise admissible evidence if its probative value is substantially outweighed by its prejudicial effect; that is, if its admission would result in the undue consumption of time, a danger of undue prejudice, confusion about the issues or the danger of misleading the jury. (Evid. Code, § 352.)
Given the minimal probative value of the evidence offered to establish M.M.'s bias, the trial court acted well within its discretion to exclude this evidence. We agree with the court's implied finding that the defense's proposed evidence was more prejudicial than probative. The court had valid concerns that, permitting the defense to introduce evidence about gang members in M.M.'s family, or how members in her family had a gang connection, would open the door to "an immense number of issues" that were ultimately not relevant.
The trial court was not required "to place on the record the process by which it concluded that the probative value of the evidence outweighed its prejudicial impact, ... " (People v. Catlin (2001) 26 Cal.4th 81, 122.)
Under these circumstances, the court's evidentiary rulings were not arbitrary, capricious or patently absurd. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) Appellant's proposed evidence about M.M.'s alleged bias would have necessitated an undue consumption of time but offered, at best, only marginally probative value regarding M.M.'s credibility. Thus, we cannot declare that the court's evidentiary rulings fell outside the bounds of reason under the applicable law and the relevant facts. (See People v. Williams, supra, 17 Cal.4th at p. 162.) Consequently, an abuse of discretion did not occur. Therefore, appellant's assertions are without merit, and this claim fails.
Because the trial court did not abuse its discretion, we will not address appellant's arguments regarding prejudice.
IV. The Prosecutor Did Not Commit Misconduct During Rebuttal Argument.
Appellant claims that the prosecutor committed prejudicial misconduct during rebuttal closing argument. During rebuttal, the prosecutor stated that the charge in count 1, intimidating a witness in violation of section 136.1, subdivision (a) or (b), was violated "right out the gate" when appellant went to M.M.'s residence. The prosecutor noted that appellant admitted on the witness stand that she did not want M.M. to go to court. The defense objected that the prosecutor was misstating the law. The court overruled that objection.
A. Standard of review.
To prevail on a claim of prosecutorial misconduct based on remarks to the jury, a defendant must show a reasonable likelihood the jury understood or applied the disputed comments in an improper or erroneous manner. (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).) We must examine the prosecutor's entire argument and the jury instructions. (Ibid.)
B. Analysis.
We reject appellant's contention that the prosecutor misstated the law. Appellant's arguments fail to address the entire closing argument and the jury instructions.
The instructions provided to the jury in this matter tracked the statutory elements required to prove a violation in count 1 of section 136.1, subdivision (a) or (b). With CALCRIM No. 2622, the jury was instructed that, to find appellant guilty in count 1, the prosecution had to prove that (1) she "maliciously tried to prevent or discourage" M.M. "from attending or giving testimony at a preliminary hearing or jury trial"; or (2) she "maliciously tried to prevent or discourage" M.M. "from cooperating or providing information so that a Complaint/Information could be sought and prosecuted and from helping to prosecute that action." The jury was further instructed that M.M. had to be a witness. In addition, it was required that appellant knew that she (appellant) "was trying to prevent or discourage" M.M. "from attending or giving testimony or causing the prosecution and intended to do so."
During her initial closing argument, and prior to her disputed statements during rebuttal, the prosecutor reviewed with the jury the required elements in count 1. The prosecutor informed the jurors that she had to prove each of the requirements set forth in CALCRIM No. 2622, and she asserted that the elements were met. She reminded the jury that appellant had admitted going to M.M. and speaking with her. The prosecutor emphasized that appellant made gang references when attempting to dissuade M.M. from testifying. According to the prosecutor, appellant threatened M.M., and it was clear that appellant did not want M.M. to testify in court against her son, Amezcua.
Towards the close of her opening comments to the jury, the prosecutor reviewed the verdict form for count 1. The prosecutor reminded the jurors that she had gone over the elements for that offense with them. The prosecutor argued that, based on the evidence, the jury should find appellant guilty in count 1.
Finally, during her rebuttal argument (and just after she made her disputed statements), the prosecutor reminded the jury that appellant had gone over to M.M.'s residence and told her not to testify. At the end of rebuttal argument, the prosecutor asked the jury to find appellant guilty in count 1, and find true the special allegations. "Hold her responsible for her actions; the threats she made to [M.M.]; the fact that she knew what she was doing and took those conscious deliberate steps and actions to make them effective. I'm asking you to find her guilty. Thank you."
Based on this record, the prosecutor did not misstate the law. Instead, both the prosecutor and the court provided the required elements to the jury for a conviction in count 1. The prosecutor explained to the jury how those elements were met. It is not reasonably likely that the jury understood or applied the prosecutor's isolated disputed comments in an improper or erroneous manner. (See Centeno, supra, 60 Cal.4th at p. 667.) Accordingly, prosecutorial misconduct did not occur, and this claim fails.
V. Appellant's Prior Prison Enhancements Must Be Stricken.
In a bifurcated proceeding, the trial court found true that appellant had suffered prior convictions for which she had served prison terms (§ 667.5, subd. (b)). As part of her indeterminate term, the court imposed a one-year prior prison term enhancement. In her determinate term involving the companion cases, the court stayed the three prior prison term enhancements.
We agree with the parties that all of appellant's prior prison enhancements (§ 667.5, subd. (b)) must be stricken. In October 2019, the Governor signed into law Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). (People v. Lopez (2019) 42 Cal.App.5th 337, 340.) This amended section 667.5, subdivision (b), which deals with prior prison enhancements. Following the amendment, prior prison enhancements only occur if the prior prison term was for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Lopez, supra, 42 Cal.App.5th at pp. 340-341.)
Respondent initially asserted that appellant had forfeited any challenge to the legality of the imposed enhancements under section 667.5, subdivision (b). In supplemental briefing, however, respondent conceded that appellant benefits from Senate Bill 136. As such, we need not address alleged ineffective assistance of counsel.
We agree with the parties that none of appellant's prior prison terms were for sexually violent offenses. We also agree that this amendment applies retroactively to appellant because her case is not yet final. As such, appellant benefits from Senate Bill 136. Thus, we remand this matter for the trial court to strike the enhancements under section 667.5, subdivision (b), and to resentence her in case number PCF335314. As we explain below, however, appellant's plea agreement in the companion cases must be vacated because the stipulated sentence can no longer be imposed.
VI. The Three-Year Enhancements Under Health and Safety Code Section 11370.2 Must Be Stricken And The Plea Agreement Must Be Vacated.
Appellant was sentenced in two companion cases. She had entered no contest pleas to resolve these other matters. She received an aggregate determinate term of five years eight months.
In one of the companion cases, No. PCF335313, appellant pleaded no contest to the possession for sale of a controlled substance in violation of Health and Safety Code section 11378 (count 1). She also pleaded no contest to the transportation for sale of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a) (count 2). For both charges, appellant pleaded to a three-year enhancement under Health and Safety Code, former section 11370.2, subdivision (a). When appellant entered into this plea agreement, the parties noted that appellant's "maximum exposure" in the companion cases would be five years eight months.
In companion case No. PCF335313, appellant was sentenced to prison for five years. This was comprised of the low term of two years for transporting a controlled substance for sale (Health & Saf. Code, § 11379, subd. (a); count 2), along with the three-year enhancement under Health and Safety Code, former section 11370.2, subdivision (a). The court stayed a 16-month sentence in count 1 for possession of a controlled substance for sale (Health & Saf. Code, § 11378), plus an additional three-year enhancement (Health & Saf. Code, former § 11370.2, subd. (a)). The court also stayed a one-year prior prison enhancement (§ 667.5, subd. (b)).
In companion case No. PCF335315, appellant was sentenced to eight months in state prison for illegal possession of ammunition (§ 30305, subd. (a)(1)). This sentence was consecutive to the sentence imposed in the companion case above.
For the present case that went to trial (case No. PCF335314), appellant was sentenced to seven years to life for using force or fear to intimidate M.M. (§ 136.1, subd. (c)(1)). The life sentence resulted because of the gang enhancement (§ 186.22, subd. (b)(4)(C)). She also received a one-year prior prison enhancement (§ 667.5, subd. (b)). This sentence was consecutive to the sentence imposed in companion case No. PCF335315.
While this appeal was pending, the Legislature enacted Senate Bill No. 180 (2017-2018 Reg. Sess.) (Senate Bill 180). Senate Bill 180 became effective on January 1, 2018. (Stats. 2017, ch. 677, § 1.) Senate Bill 180 reduced the number of sentencing enhancements under Health and Safety Code section 11370.2, subdivision (a). Under the current law, a three-year enhancement may now be imposed only for a prior conviction for sales of narcotics involving a minor in violation of Health and Safety Code section 11380.
It is undisputed that, following Senate Bill 180, appellant no longer qualifies for the three-year enhancements under Health and Safety Code section 11370.2, subdivision (a). She asserts that, despite her plea agreement, these enhancements must be stricken from her sentence. In contrast, respondent concedes that Senate Bill 180 retroactively applies to appellant. Respondent, however, argues that this court should not strike appellant's sentence enhancements because appellant entered into a negotiated plea bargain. According to respondent, the prosecution will be prejudiced if appellant is allowed to reduce her sentence by more than half based on an unanticipated change in the law. In the alternative, respondent asserts that, if the three-year enhancements are stricken, then the prosecution should be given an opportunity to restore the original charges and enhancements unaffected by Senate Bill 180, and proceed to trial or a new negotiated disposition.
Appellant raises ineffective assistance of counsel to the extent this claim is deemed forfeited. Respondent, however, does not raise forfeiture for this particular sentencing issue. Because we address this issue on its merits, we need not analyze any alleged ineffective assistance of counsel.
Respondent made these arguments before the parties filed supplemental briefing regarding Senate Bill 136. Following Senate Bill 136 and Senate Bill 180, there are no longer any sentence enhancements involved in the companion cases.
We agree with appellant that, despite the plea agreement, she benefits from Senate Bill 180. The general rule is that a plea bargain implicitly accounts for future changes to the law. (Doe v. Harris (2013) 57 Cal.4th 64, 73.) "If parties to a plea agreement want to insulate the agreement from future changes in the law they should specify that the consequences of the plea will remain fixed despite amendments to the relevant law." (People v. Wright (2019) 31 Cal.App.5th 749, 756.)
Further, effective January 1, 2020, our Legislature enacted section 1016.8. This statute declares that a plea "is not knowing and intelligent" if the bargain requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea. (§ 1016.8, subd. (a)(4).) Under this new law, "[a] provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy." (Id. at subd. (b).)
Nothing in this record demonstrates that appellant's plea agreement required her to forego the right to appeal a sentencing issue. In any event, any such express waiver is now void in California. Consequently, we reject respondent's assertion that, because this was a plea bargain, it is improper to strike the contested enhancements.
Other courts faced with a similar situation have remanded the matter for resentencing, provided that the aggregate term does not exceed the stipulated sentence. (See People v. Wright, supra, 31 Cal.App.5th at p. 756; People v. Calderon (1993) 20 Cal.App.4th 82, 88 ["[i]t is perfectly proper for [the appellate] court to remand for a complete resentencing after finding an error with respect to part of a sentence"]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [remand for resentencing proper where original sentence contained unauthorized enhancement].)
At first glance, it would appear appropriate for the trial court to resentence appellant in the companion cases so long as the aggregate term does not exceed the stipulated sentence. At sentencing, both the court and the prosecutor noted that, if the three-year enhancement under Health and Safety Code section 11370.2 was reversed in companion case No. PCF335313, the stipulated sentence was still reachable. The court specifically stated that, if this three-year enhancement was somehow inappropriate, "my intent is to somehow fashion a term that would be consistent with the total term of [five] years, [eight] months for [the] determinate term if that issue comes up again." However, because of Senate Bill 136 and Senate Bill 180, the parties' stipulated sentence of five years eight months can no longer be imposed.
Without the enhancements, the maximum sentence appellant could receive in the companion cases is five years four months. This is based on an upper term of four years for violation of Health and Safety Code section 11379, subdivision (a); a consecutive one-third the middle term of eight months for violation of Health and Safety Code section 11378; and a consecutive one-third the middle term of eight months for illegal possession of ammunition (§§ 30305, subd. (a)(1), 1170, subd. (h)(1)). This assumes that the sentence for the second violation under the Health and Safety Code must not be stayed under section 654.
In her reply brief, appellant originally took the position that the plea agreement should not be set aside, and she asserted that Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris) controlled. We disagree. The Harris court held that the People were not entitled to set aside a plea agreement when the defendant sought to have his sentence recalled under Proposition 47. (Harris, supra, at p. 993.) We agree with respondent that Harris is distinguishable. Appellant's sentence has not been reduced because of Proposition 47. Instead, because of Senate Bill 136 and Senate Bill 180, the aggregate sentence which the parties negotiated can no longer be imposed.
In her supplemental opening brief, appellant concedes that, if her plea agreement is deemed invalid because the one-year prior prison enhancements are stricken, then this matter should be remanded for resentencing in conformance with the prior stipulated sentence. In the alternative, she contends that she should be allowed to withdraw her plea and proceed to trial in the companion cases.
Contract principles are applied regarding agreements between the prosecution and a criminal defendant. (See People v. Paredes (2008) 160 Cal.App.4th 496, 506-507 [plea agreement].) A promise that is part of the inducement or consideration must be fulfilled in order to have a valid agreement. (Id. at p. 507.) When the agreement cannot be fulfilled, the parties should be returned to their original positions. (People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 577.)
In light of Senate Bill 136 and Senate Bill 180, it is impossible to resentence appellant in compliance with the stipulated sentence. As such, the plea agreement cannot be fulfilled. Thus, we agree with appellant that she should be allowed to withdraw her pleas in the companion cases. Accordingly, we remand this matter for the trial court to vacate the plea bargain in the companion cases, and to allow appellant to withdraw her no contest pleas. The court shall conduct further proceedings as necessary.
DISPOSITION
Appellant's sentence is vacated and this matter is remanded for further proceedings as follows:
For case numbers PCF335313 and PCF335315
In case numbers PCF335313 and PCF335315, the stipulated sentence can no longer be imposed in light of Senate Bill 136 and Senate Bill 180. The trial court shall vacate the plea bargain and allow appellant to withdraw her no contest pleas. The court shall conduct further proceedings as necessary.
For case number PCF335314
In case number PCF335314, the trial court shall resentence appellant. At resentencing, the court shall strike the enhancement imposed under Penal Code section 667.5, subdivision (b). Following resentencing, the court shall forward a new abstract of judgment to the appropriate authorities.
In all other respects, appellant's judgment is affirmed.
LEVY, Acting P.J. WE CONCUR: POOCHIGIAN, J. SNAUFFER, J.