Opinion
G052162
11-09-2017
THE PEOPLE, Plaintiff and Respondent, v. BENITO HERNANDEZ TELLO et al., Defendants and Appellants.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant Benito Hernandez Tello. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Brian Santiago Zuniga. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne McGinnis and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13HF3448) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed as modified as to Defendant and Appellant Benito Hernandez Tello. Reversed as to Defendant and Appellant Brian Santiago Zuniga. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant Benito Hernandez Tello. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Brian Santiago Zuniga. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne McGinnis and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
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A group of men armed with knives attacked three victims. A jury found codefendants Benito Hernandez Tello and Brian Santiago Zuniga guilty of two counts of attempted murder, an aggravated assault, and other associated crimes. The jury also found true several related gang, weapons, and great bodily injury (GBI) enhancements.
On appeal, Tello argues there was substantial evidence that raised a reasonable doubt as to his mental competence to stand trial. Zuniga argues that the trial court unduly restricted the testimony of his eyewitness identification expert and the prosecution's gang expert related inadmissible hearsay statements to the jury. Both Tello and Zuniga also argue that their sentences for the crime of actively participating in a criminal street gang should be stayed.
As to Tello, we find no substantial evidence supporting a reasonable doubt that he was mentally incompetent to stand trial. Accordingly, we affirm his convictions. The Attorney General concedes that the trial court should have stayed Tello's sentence for the crime of actively participating in a criminal street gang. We agree and will direct the trial court to correct the abstract of judgment.
As to Zuniga, we find that the trial court did not abuse its discretion by restricting the testimony of his eyewitness identification expert. However, we do find—and the Attorney General concedes—that the prosecution's gang expert improperly related inadmissible testimonial hearsay statements to the jury in violation of Zuniga's constitutional rights. (People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).) Further, we do not find the error to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Accordingly, we reverse Zuniga's convictions. For this reason, we need not address Zuniga's remaining argument concerning his sentence.
I
FACTUAL AND PROCEDURAL BACKGROUND
On October 8, 2013, Raul had just come home from work at about 10:45 p.m., and was walking through a breezeway to get to his apartment in San Juan Capistrano. A person, later identified as Tello, came up from behind Raul on a bicycle. Tello said, "Excuse me, excuse me." As Raul tried to move out of the way, the handlebars bumped him. Tello said, "What, don't you hear me?" Tello got off the bike and punched Raul in the face. Raul, who is a bigger and older man, grabbed Tello by the shirt, and told Tello that he did not want to get into a fight. Tello kicked Raul in the leg. As he rode away, Tello told Raul, "Respect the barrio." Raul reported the incident to the police.
We are omitting the last names and/or initials of Raul, his brother Javier, and his father Lucio, for reasons of privacy and clarity.
On November 6, 2013, in the early evening, Raul was outside his garage while his brother Javier was inside the garage. Inside the apartment were Lucio, Raul's elderly father, and other family members. Tello walked up to Raul and said, "What are you looking at?" Raul told Tello that he did not want any problems. Tello whistled and an unidentified Hispanic man came out of the darkness. Javier came out of the garage to see what was happening.
Tello whistled again and a man with a dark complexion, short hair, and a thick mustache, who Raul later identified as Zuniga, and at least one another individual appeared. Zuniga was holding a knife or a blade in his hand. Tello was also holding an open pocketknife in his hand, pulling it in and out of his pocket. Tello was arguing with Raul, telling him. "I'm going to get you. I'm going to get you."
Lucio heard the argument, came outside, and asked what was happening. Tello punched Lucio in the face, fracturing his nose, and sending him to the ground. As Raul went to help his father, he felt blows to his chest and to his face. Zuniga was hitting Raul on his side; Raul later discovered that he had been stabbed. Javier tried to help his brother by hitting Zuniga in the face. At some point, Javier got knocked down. As he lay on the ground, Zuniga and Tello hit and kicked Javier, who later discovered that he too had been stabbed. During the melee, someone yelled, "Call the police." The group of attackers took off running when the sounds of approaching police sirens could be heard. Emergency personnel transported Javier, Raul, and Lucio to the hospital.
Police Investigation
Later that night, Orange County Sheriff's Deputy David Pultz compiled a photographic lineup, which contained an older photograph of Tello. Deputy Richard Covington, who later testified at trial as the prosecution's gang expert, compiled a photographic lineup, which contained a dark photograph of Zuniga, who has a mustache and a dark complexion. None of the witnesses initially identified either Tello or Zuniga.
Covington's expert testimony will be covered more thoroughly later in this opinion.
The following day, gang enforcement officers went to Zuniga's home because he matched the description of one the suspects (darker complexion with a thick mustache) and to conduct a probation search. Deputy Pultz knew Zuniga to be a member of the Varrio Viejo gang. When the police arrived, Tello was seated in the front patio area. The police searched Tello and found a folding knife in his front pocket. The police took a photograph of Tello. The police asked Zuniga's mother if he was home and she said he was not. The police searched the home anyway, Pultz testified that it is very common for family members of gang members to provide "cover." The police found Zuniga hiding in a closet. The police arrested Zuniga and booked him for an unrelated probation violation.
Later that day, the police compiled a second set of photographic lineups using Tello's photograph from earlier that day and Zuniga's new booking photo. Raul and Javier were able to identify Tello from the photographic lineup; Javier was not able to identify Zuniga. Lucio made no identifications; neither did Raul's mother, or his 12-year-old daughter, who were also apparently present during the melee outside of the garage.
Deputy Pultz conducted a sequential (one at a time) photographic lineup with Raul using Zuniga's new booking photo. Raul first went through all six photographs without making an identification; during a second time through, Raul hesitated on number four, which was Zuniga's photograph. Pultz asked Raul, "See you stop at a photo, I just want. Does he look familiar to you?" Raul responded, "Yeah. Looks like almost the same guy." When asked to explain, Raul made a motion with his hand like a person with a knife. Raul said, "It looks almost the same face, you know, but I can't remember, like, in my mind." Pultz told Raul, "Okay. We're going to have you circle it. Circle the entire picture, and just put your initials."
An audio recording of the sequential photographic lineup procedure was played for the jury at trial. Because the parties could not agree on a single transcript, the trial court gave the juries copies of two transcripts.
About a month after the assault, the police arrested Tello in his home. Tello waived his rights and spoke to the officers. Tello admitted that he had an earlier encounter with an older man who had kicked his bike. Tello said that on the night of the assaults, he was on his bike in the same area, when he came to an open garage and recognized the man. Tello initially said that "he noticed a large fight as he went by and then he just continued on his way." Tello later said that he and the man got into a verbal altercation and agreed to fight.
Tello said that before the fight, each man had emptied his pockets and taken off their shirts, indicating an agreement to have a "fair fistfight." Tello indicated that he had taken a silver knife out of his pocket and placed it on the ground. Tello said that after he started fighting, other people became involved and a bigger fight broke out. Tello did not identify the other people involved in the fight, but he said they were his friends and that they were "backing him up." Tello said that he did not stab anyone.
Court Proceedings
The prosecution charged Tello and Zuniga with two counts of attempted murder (Raul and Javier), two counts of assault with a deadly weapon (Raul and Javier), one count of assault with force likely to cause GBI (Lucio), and one count of active participation in a criminal street gang (Varrio Viejo). (Pen. Code, §§ 664, subd. (a), 187, subd. (a), 245, subd. (a)(1), 245, subd. (a)(4), 186.22, subd. (a).) The prosecution further alleged that the attempted murder and the assault charges were committed for the benefit of a criminal street gang, that Tello and Zuniga personally used a knife, and had personally inflicted GBI. (§§ 186.22, subd. (b)(1), 12022, subd. (b)(1), 12022.7, subd. (a).)
Further undesignated statutory citations will be to the Penal Code.
When the case was assigned to the Honorable Judge Cheri T. Pham for a jury trial, Tello's counsel expressed a doubt concerning Tello's competency to stand trial. After conducting an inquiry, the trial court found no "objective substantial evidence to raise a reasonable or bona fide doubt regarding" Tello's competency to stand trial. The trial court did not hold any further hearings on the matter.
The jury found Tello and Zuniga guilty of the attempted murder of Javier, the assault charges, and the substantive gang charge, but did not find either defendant guilty of the attempted murder of Raul. The jury found true all of the enhancements, except for the allegation that Tello personally inflicted GBI as to Javier. The trial court sentenced Tello to a 19-year eight month prison term, followed by an indeterminate life sentence. The court sentenced Zuniga to a 19-year prison term, followed by an indeterminate life sentence.
II
DISCUSSION
Tello argues that the trial court erred by failing to hold a full competency hearing and that his sentence for the substantive gang crime should be stayed. Zuniga argues that the court erred by restricting the testimony of his eyewitness expert and that the prosecution's gang expert related inadmissible testimonial hearsay to the jury in violation of Sanchez, supra, 63 Cal.5th at page 674.
We shall address each contention in turn. A. Failure to Hold Competency Hearing
Tello argues that "there was substantial evidence he was not competent to stand trial" and therefore "the trial judge erred by failing to hold a hearing . . . to ensure [he] was in fact competent." We disagree.
1. Legal Principles
"A person cannot be tried . . . while that person is mentally incompetent. A defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) "'"Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial."'" (People v. Sattiewhite (2014) 59 Cal.4th 446, 464-465.)
Generally, when counsel express a doubt as to a defendant's competence, the trial court "shall" suspend criminal proceedings. (§ 1368, subd. (c).) Ordinarily, the court must then appoint one or more mental health professionals to examine the defendant and report back to the court at a full competency hearing. (See §§ 1368.1; 1369, subd. (a).) However, a counsel's expressed belief that a defendant is mentally incompetent does not automatically trigger a full competency hearing. (People v. Mai (2013) 57 Cal.4th 986, 1033.) "Counsel's assertion of a belief in a client's incompetence is entitled to some weight. But unless the court itself has declared a doubt as to the defendant's competence . . . counsel's assertions that his or her client is or may be incompetent does not, in the absence of substantial evidence to that effect, require the court to hold a competency hearing." (Ibid.) The determination "is based on the consideration of all the relevant circumstances, including the behavior of the defendant and the comments of counsel." (People v. Smith (2003) 110 Cal.App.4th 492, 505.)
"On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence . . . ." (People v. Mickel (2016) 2 Cal.5th 181, 195.) Substantial evidence is not "'synonymous with "any" evidence. It must be reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires . . . .'" (People v. Bassett (1968) 69 Cal.2d 122, 139.) Absent substantial evidence, "the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial." (People v. Mai, supra, 57 Cal.4th at p. 1033.)
2. Relevant Portions of the Record
In January 2014, Tello first appeared in trial court with his appointed counsel, Deputy Alternate Public Defender Ray Chen, who represented Tello from that point forward. A month later, just prior to a preliminary hearing, Tello asked the court to relieve Chen and replace him with another attorney. The Honorable Judge Gregory W. Jones conducted a Marsden hearing and denied Tello's request.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On April 20, 2015, the case was assigned for jury trial with the Honorable Cheri T. Pham as the presiding judge. After a pretrial informal chambers conference between the court and the attorneys, Tello requested a second Marsden hearing. After clearing the courtroom, the trial court began by asking Tello, "So can you tell me what Mr. Chen has not done that you feel should have been done in your case." Tello responded, "I said first, most of all, he's a piece of s**t. He hasn't done s**t for me. He hasn't done anything for me." When asked for specifics, Tello said Chen had told him that, "I ain't got no offer. Like I ain't got no chance. I'm going to do prison for the rest of my life, you know."
We summarize the second Marsden hearing at length because Judge Pham largely relied on Tello's statements and behavior at that hearing when she determined the following day there was no substantial evidence raising a reasonable doubt that Tello was mentally incompetent. However, we are not summarizing the first Marsden hearing because Judge Pham did not preside over it. (People v. Mickel, supra, 2 Cal.5th at p. 197 ["We do not require a trial court to evaluate a defendant's competence based on evidence not before it at the time of its decision"].)
The trial court asked Tello what he was charged with, and he responded, "I'm charged with attempted murder." The court asked Tello, "why do you feel that Mr. Chen has not helped you?" Tello responded, "Because he hasn't done anything for me. He hasn't tried to get me a deal or anything." The court asked Tello what Chen had told him, he responded, "All the time . . . it's the same thing, you're going to do life in prison if you don't try to do anything for me to try and help you." The court asked Tello if Chen had gone over the facts of the case, and Tello responded, "Yeah." Tello said, "I tried to tell him to postpone and he doesn't want to postpone, he wants to go to trial, but I don't have anything."
Chen spoke to the trial court and said that he had been an attorney for 20 years and had done somewhere close to 100 felony trials. Chen explained that he had represented Tello since his arraignment, but for the first two months, Tello "absolutely refused to speak with me whatsoever about his case." Chen said that this conduct continued until the preliminary hearing, but at that time, "Mr. Tello realized actually what I was talking about." The court asked Tello if he had refused to speak with Chen at the beginning, Tello confirmed that he had. The court asked Tello, "How is he supposed to help you? Tell me?" Tello said, "Well, I don't know. He has to help me, he's my lawyer." After a lengthy discussion, the court denied the motion. "So based on what I've heard today I find that Mr. Chen has properly represented Mr. Tello and will continue to do so in spite of his client's non-cooperation."
Tello asked, "What about if I go pro per, would I still have to go to trial?" The trial court explained that Tello would need to fill out a form, "But just because you represent yourself doesn't mean that these charges are going to go away." The court then asked Tello: "Q: Did you have a law degree, sir? [¶] A: Yeah. [¶] Q: Did you go to law school? [¶] A: Yeah. [¶] Q: You went to law school? [¶] A: Yeah. [¶] Q: When? [¶] A: A long time ago. [¶] Q: All right. [¶] A: Oh, did I go into law school? No. No, I never did but I know enough." After a brief recess, Chen asked the court for "further assistance" with Tello. The court and Tello engaged in another lengthy colloquy. The court then trailed the case to the following day.
The following morning, Chen said, "in light of Mr. Tello's responses to the court's questioning yesterday, and in attempting to speak to him again today, I'm increasingly concerned that based on Mr. Tello's completely inappropriate responses [to] my questioning, strange affect, various other things, I'm beginning to truly believe that he is unable to assist me in my defense." Chen said that since he first started representing Tello, "I have been very concerned that there is some kind of cognitive defect above and beyond Mr. Tello not being a particularly well formally educated person. I believed right from the start that there are some kind of cognitive issues wherein he's simply unable to fully grasp what it is that I'm talking to him about and understanding it. At the same time that was tempered by uncertainty as to how much of those of his actions were deliberate, whether or not they were some kind of posturing or bravado, or simply denial on his part about the reality of the situation." Chen said, "So at this time your honor, again based on the kind of conversations I have had with Mr. Tello both from the onset of this case and very recently I have concerns about whether or not he is competent at this point and able to assist me in the course of the trial."
After citing relevant statutes, cases, and court rules, the trial court asked Chen "to state for the record the specific reasons why you think this is a result of mental incompetence or some mental deficiencies and not just a delaying tactic and the desire to get a new attorney and/or judge on the case." Chen told the court that in 2014, when he had attempted to visit Tello in jail, he had been told that Tello had been placed on a suicide hold for week, but Tello had refused to discuss the matter and had refused to sign a release so that Chen could obtain the medical records. Chen indicated that Tello also had an open case for assaulting jail staff and again had refused to discuss the matter with him. Chen said that at that point he had attempted to talk to Tello for an hour and a half, but Chen was more withdrawn than normal, and "responded to my questioning in an even more disrespectful and inappropriate manner that he usually does." Chen indicated that as the trial date approached, Tello's "affect has become even more bizarre that it has normally been. I have never observed him laughing in an inappropriate manner, but that is something that has been happening basically over the last week." Chen said that "the manner in which he responds to questions on the one hand can be interpreted as being recalcitrant on his part, bravado, or just simply trying to ignore advice given to him. On the other hand, it could also be that he genuinely has a cognitive issue that has been left unaddressed."
Chen said that based on information he had gathered from others, he had learned that Tello had not obtained a high school diploma, although he had been going to a continuation school. Chen learned that Tello had been living with various relatives and "has not had a consistent educational history." Chen said that he did not know if Tello had ever been diagnosed with a cognitive or mental disability. The trial court confirmed with Chen that after Tello's psychiatric hold he had been returned to general population after a week. The court inquired of Tello directly and learned that he had not been prescribed medication. The court also inquired of Chen and learned that there were no doctor's reports or any documented evidence of any mental illnesses or mental deficiencies.
The trial court said that based on the Marsden hearing a day earlier, "the court heard nothing to raise any doubt in the court's mind concerning defendant's ability to understand the nature of the criminal proceedings. And the court finds that the reasons stated by Mr. Chen today are also insufficient for the court to suspend criminal proceedings and institute [section] 1368 proceedings." The court noted that Chen had been representing Tello for over a year and "there has never been any doubt expressed regarding defendant's mental competence."
The trial court found that "the one suicidal threat incident mentioned by Mr. Chen which result[ed] in the defendant's one week transfer to the psychiatric ward without more is not substantial evidence of incompetency." Further, the court said that Tello's "refusal to answer counsel's questions directly or giving evasive answers taken together with all of his statements and behavior over the last day and a half is simply the result of his refusal to cooperate with his counsel and not of any mental deficiencies. [¶] So based on what the court has seen and based on the findings that the court has made, I'm sorry Mr. Chen, I'm going to at this time find that there is no objective substantial evidence to raise a reasonable or bona fide doubt regarding your client's mental competence, and I'm going to deny your request."
3. Legal Analysis
Here, after reviewing the entire record, we find no substantial evidence that raises a reasonable doubt that Tello was mentally incompetent to stand trial. Chen represented and interacted with Tello for well over a year, and it was only when the case was on the eve of trial that Chen expressed a concern about Tello's competence. The trial court responded appropriately by conducting a brief inquiry. However, Chen's specific reasons that he offered at the inquiry did not constitute substantial evidence to trigger a full competency hearing. (People v. Mai, supra, 57 Cal.4th at p. 1033.)
To start off with, we note that throughout the trial court's inquiry, Chen remained ambivalent. That is, while Chen opined that his client's "bizarre" behavior may have been based some unspecified cognitive issue, Chen also frankly admitted that Tello may be engaging in "some kind of posturing or bravado, or simply denial on his part about the reality of the situation."
"The opinion of counsel, without a statement of specific reasons supporting that opinion, does not constitute substantial evidence." (Cal. Rules of Court, rule 4.130(b)(2).) Here, when pressed by the trial court, Chen offered the following specific reasons for his tentative declaration of doubt: Tello's psychiatric or suicide hold for a week; Tello's open case for assaulting jail staff; Tello's more "bizarre" behavior as the date of the trial approached, including profanity and laughing inappropriately; and Tello's general refusal to cooperate and communicate with counsel about a variety of matters.
Regarding Tello's suicide hold, "[a]ctual suicide attempts or suicidal ideation, in combination with other factors, may constitute substantial evidence raising a bona fide doubt regarding a defendant's competence to stand trial." (People v. Rogers (2006) 39 Cal.4th 826, 848.) However, suicidal tendencies, standing alone, do not constitute substantial evidence. (Ibid.) Here, just like the trial court, we have no evidence indicating that Tello actually attempted to kill himself or had suicidal ideation. That jail staff released Tello from a psychiatric hold after only a week and apparently did not prescribe any medications upon his release would appear to suggest otherwise.
Chen also said that Tello had an "open case" against him for assaulting jail staff, but there were no further details suggesting that this was the result of any mental disorder or developmental disability. As far as Tello's "bizarre" behavior as the trial date approached, again we cannot say that this evidence raised a reasonable doubt as to Tello's mental competence. (See People v. Medina (1995) 11 Cal.4th 694, 735 ["more is required to raise a doubt of competence than the defendant' mere bizarre actions or statements"].)
Again, a defendant is mentally incompetent "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, italics added.) Based on the record of the second Marsden hearing, it is clear that Tello understood that he was on trial for two counts of attempted murder, that he faced life sentences for both crimes, and that he was charged with gang offenses. Indeed, the record indicates that Tello had a somewhat nuanced understanding of the gang charges. Tello questioned the strength of the prosecution's gang evidence because he had "no tattoos or anything" and the remaining evidence, in Tello's view, was just that he "got busted with someone else. I live in the neighborhood." Tello also briefly requested to go "pro per," and expressed concern about the amount of his "bail," indicating that he had some broader understanding of criminal proceedings in general. Further, throughout the Marsden hearing, Tello appeared to be able to understand and respond appropriately to each of the trial court's inquiries.
As far as Tello's refusal to communicate and cooperate with Chen, we agree with the trial court that there was no evidence in the record indicating this was the result of any mental disorder or developmental disability. (People v. Medina, supra, 11 Cal.4th at p. 735 ["Defendant's cursing and disruptive actions displayed an unwillingness to assist in his defense, but did not necessarily bear on his competence to do so"].) Tello's profane comments were directed exclusively at Chen. This behavior indicates that Tello was angry and upset at counsel, but there was no evidence indicating that Tello was unable to cooperate with Chen if he had chosen to do so. Indeed, Chen indicated that at the time of the preliminary hearing, Tello had apparently been somewhat more cooperative. Finally, neither Chen nor the court ever renewed any concern regarding Tello's competence during the course of the trial.
Thus, having found no substantial evidence raising a doubt as to Tello's mental competence, we defer to the trial court's finding that Tello's "behavior towards the court and his counsel [was] driven purely by a desire for new counsel and to postpone the trial, not any mental incompetence."
In his reply brief, Tello's appellate counsel argues that Tello's responses during the second Marsden hearing regarding his attendance at law school "illustrates [Tello's] irrational and confused mental state." We disagree. Towards the end of the hearing, Tello initially responded, "Yeah," to the trial court's questions regarding whether he had attended law school. But then Tello almost immediately clarified, "Oh, did I go to law school? No. No, I never did but I know enough." When we look at Tello's statements in context, we think a more reasonable interpretation of the record is that Tello either misunderstood the court's questions, or perhaps Tello was attempting to demonstrate bravado or a cavalier attitude towards the matter.
In sum, after our review of the entire record of these proceedings, we find no substantial evidence giving rise to "'"a reasonable or bona fide doubt concerning the defendant's competence to stand trial."'" (People v. Sattiewhite, supra, 59 Cal.4th at p. 464.) Accordingly, we find that the trial court did not commit error by not holding a full competency hearing under section 1368. B. Stay of Sentence for Active Participation in a Criminal Street Gang
Tello argues that the trial court should have stayed his two-year sentence for the crime of actively participating in a criminal street gang. The Attorney General concedes the point. We agree.
Zuniga joined in the same argument, but we are reversing his underlying convictions on other grounds. Thus, the section 654 issue is moot as to Zuniga.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) In People v. Mesa (2012) 54 Cal.4th 191 (Mesa), the California Supreme Court held section 654 precludes separate punishment for both street terrorism (§ 186.22, subd. (a)), and the underlying felony used to prove the "'felonious criminal conduct'" element of that offense. (Id. at pp. 197-198.)
Thus, section 654 bars the imposition of additional punishment for street terrorism; Tello's sentence for that count must be stayed. C. Eyewitness Identification Expert Testimony
Zuniga argues that "the trial court's ruling limiting the testimony of [eyewitness identification expert] Dr. Shomer was an abuse of discretion that violated [his] right to due process and right to present a defense . . . ." We disagree.
1. Legal Principles
"If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter . . . perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . ." (Evid. Code, § 801.)
"The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based." (Evid. Code, § 802.) "The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion." (Evid. Code, § 803.) "A trial court's determination to admit [or to exclude] expert evidence will not be disturbed on appeal absent a showing that the [trial] court abused its discretion in a manner that resulted in a miscarriage of justice. [Citations.]" (People v. Robinson (2005) 37 Cal.4th 592, 630.)
2. Relevant Portions of the Record
Before trial, Zuniga filed a document informing the trial court and the prosecutor that he intended to present the testimony of Robert Shomer, Ph.D., a purported expert in eyewitness identification. During the prosecution's case-in-chief, Deputy Covington and Deputy Pultz testified about the photographic identification procedures in this case, and both Raul and Javier identified Zuniga in court. Before Zuniga began his defense, the prosecution asked for an offer of proof. The prosecutor said, "It appears to me [Dr. Shomer is] going to talk in a general sense about eyewitness identifications, but I just want to clarify that he's not going to be getting into making interpretations specific to this case . . . ."
Dr. Shomer was examined outside the presence of the jury. After hearing his proffered testimony, and argument from counsel, the trial court ruled that Shomer could testify in general about eyewitness identifications, but the court would not allow Zuniga's counsel "to present any hypothetical based on this case, so that's the bottom line." The court told the prosecutor that if Shomer "were to venture into any specifics of this case and you make the objection, I will sustain it."
In front of the jury, Dr. Shomer testified that lighting, distance, and duration are critical factors in accurate eyewitness identifications. He said that stress "significantly lowers an already low level of reliability of stranger identification if a person is seen in a highly stressful situation." Shomer testified that the way in which an identification procedure is carried out is also "absolutely critical. Anybody can be identified; the issue is whether it's accurate. The accuracy depends on the type of procedure and whether the way it's done suggests an answer or whether the answer comes from what the witness saw and remembered."
Dr. Shomer testified that a photographic lineup typically includes one suspect and five fillers. He said that a "double-blind" procedure is when both the witness and the administrator of the procedure are "blind," or do not know which individual has been tentatively identified as the suspect. Shomer testified it is important that the person who administers the procedure tells the witness that he does not know which of the six photographs is the suspect. Otherwise, according to Shomer, the witnesses will "tend to read into various gestures and body language and pauses and all kinds of other inadvertent behavior" by the administrator of the lineup procedure. Shomer testified that a double-blind procedure decreases the possibility of misidentification.
At one point, Zuniga's counsel asked Dr. Shomer, "What is an in-court identification?" Shomer responded, "It's a confirmation of a prior choice. It is done in the most egregiously . . . ." The prosecutor immediately interposed an objection; the trial court then held a brief sidebar conference outside the presence of the jury. The prosecution argued, "Your honor, this is outside the scope of the [Evidence Code, section] 402 that we conducted. It's not referenced in the letter provided by counsel. And I think that any testimony that's going to be offered by the witness is going to be lacking in foundation." After hearing argument from both counsel, the court ruled that, "I am going to exclude this line of questioning. You are not to ask your expert any questions regarding in-court identifications."
3. Legal Analysis
In People v. Sanders (1995) 11 Cal.4th 475, 508 (Sanders), the California Supreme Court summarized its earlier landmark decision in People v. McDonald (1984) 37 Cal.3d 351 (McDonald): "In . . . McDonald . . ., we acknowledged that scholarly research had uncovered a set of psychological principles concerning eyewitness identifications that had become widely accepted in the scientific community. We concluded that the Kelly-Frye rule was inapplicable to expert testimony on psychological factors affecting eyewitness identification. We also observed that the body of information available on psychological factors bearing on eyewitness identification was '"sufficiently beyond common experience" that in appropriate cases expert opinion thereon could at least "assist the trier of fact." [Citation.]' [Citation.]"
"We held that, in the appropriate case, exclusion of expert testimony concerning eyewitness identification would constitute error. [Citation.] We stressed that '[w]hen an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.'" (Sanders, supra, 11 Cal.4th at pp. 508-509.)
The Supreme Court's holding in McDonald did not specifically address the use of hypothetical questions rooted in the facts of the case and left the admissibility of such expert testimony to the discretion of the trial court. In People v. Sandoval (1994) 30 Cal.App.4th 1288 (Sandoval) and People v. Brandon (1995) 32 Cal.App.4th 1033 (Brandon), the trial courts had excluded specific comments by the eyewitness identification expert on the fairness of the particular photographic lineups that had been presented to the eyewitnesses. The reviewing courts held that a trial court has the discretion to exclude such testimony. The two appellate courts explained that the fair selection of persons in a lineup is an issue likely to be fully known and understood by the jury, and for that reason "completely within the task of the trier of fact to resolve." (Sandoval, supra, 30 Cal.App.4th at p. 1298; Brandon, supra, 32 Cal.App.4th at p. 1053.) The courts also held that the limitation of an expert's testimony to "general factors" that might have "affected" or "influenced" the accuracy of the identifications was well within the trial court's discretion. (Sandoval, supra, 30 Cal.App.4th at p. 1297; Brandon, supra, 32 Cal.App.4th at pp. 1052-1053.)
Here, the trial court did not abuse its discretion by allowing Dr. Shomer to testify generally about eyewitness identifications, while also limiting his testimony concerning the particular photographic and in-court identifications that had occurred in this case. Similar to the reasoning in Sandoval and Brandon, Zuniga had not established that Shomer's proffered testimony required expertise beyond the common knowledge possessed by the jurors. Further, Zuniga was able to cross-examine Deputy Pultz about the disputed sequential photographic lineup he had conducted with Raul. Indeed, the jury was able to listen an audio recording of the procedure so that it could judge for itself the fairness and reliability of the procedure.
As far as the in-court identifications, Dr. Shomer had not observed them. As the trial court stated, the proposed expert testimony concerning in-court identifications would simply have asked Shomer "to express an opinion about what these witnesses said during the trial." In other words, Zuniga again did not establish Shomer's proffered testimony was beyond the "common experience" of the jury and "would assist the trier of fact." (Evid. Code, § 801.)
Zuniga argues that "the trial court's ruling limiting the testimony of Dr. Shomer was an abuse of discretion that violated [his] right to due process and right to present a defense . . . ." We disagree. The court's limitations on Shomer's testimony did not prevent Zuniga from presenting a defense. The jury heard Shomer's opinion regarding the problems with eyewitness identifications generally. Further, the jury also heard Shomer's opinion regarding the problems inherent when identification procedures are not conducted in a double-blind fashion; that is, when the administrator of the lineup knows which photograph depicts the suspect. During closing argument, Zuniga's counsel was then able to argue that the out-of-court eyewitness identification procedure in this case was not reliable because Deputy Pultz "knew that Brian Zuniga was a suspect and so he really should not have been the one conducting these photographic lineups."
In sum, we find that the trial court did not abuse its discretion by limiting Dr. Shomer's expert testimony. D. Gang Expert Testimony
Zuniga argues that Deputy Covington's gang expert "testimony was based substantially on inadmissible testimonial hearsay and was inadmissible under the Confrontation Clause of the Sixth Amendment, under the California Hearsay Law and violated [his] right to Due Process." We agree. Accordingly, we reverse Zuniga's underlying convictions for reasons we shall explain.
Tello did not join in Zuniga's argument concerning Deputy Covington's hearsay testimony. We presume this is because Covington testified that he had personally spoken to Tello, who admitted that he was a member in good standing of the Varrio Viejo gang, his moniker was "Rowdy," and that he would back up the gang if called upon to do so. Thus, Covington's testimony as to Tello does not appear to constitute a Sanchez violation. (Sanchez, supra, 63 Cal.4th at pp. 665-666.)
1. Legal Principles
Generally, California law permits an expert witness to relate to the jury the "matter" upon which his or her opinion relies, even if that matter would otherwise be inadmissible. (Sanchez, supra, 63 Cal.4th at p. 679.) Prior to Sanchez, an expert witness was permitted to relate even "case-specific hearsay" to the jury, on the theory it was not being admitted for the truth of the matter asserted, but instead merely to explain the basis for the expert's opinion. (Id. at pp. 673, 683.)
However, in Sanchez the California Supreme Court held that "this paradigm is no longer tenable." (Sanchez, supra, 63 Cal.4th at p. 679.) The court stated that, "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Id. at p. 684, fn. omitted.) Further, Sanchez also noted that the admission of testimonial hearsay through an expert witness is also subject to the Sixth Amendment's confrontation clause, which may be violated, "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.]" (Id. at p. 680.)
"[A] court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception?" (Sanchez, supra, 63 Cal.4th at p. 680.) While an expert can, in a general sense, communicate hearsay statements to a jury to establish the basis of his opinion, "[w]hat an expert cannot do is 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." (Id. at p. 686.)
The second step of the Sanchez analysis concerns statements offered against criminal defendants. "If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford [v. Washington (2004) 541 U.S. 36 (Crawford)] limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay . . . ." (Sanchez, supra, 63 Cal.4th at p. 680.) The United States Supreme Court has not always been entirely clear as to what constitutes testimonial hearsay under the Sixth Amendment's confrontation clause. (People v. Holmes (2012) 212 Cal.App.4th 431, 437.) Nevertheless, testimonial hearsay includes formalized testimony, "statements made in response to police interrogations if there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution [citations]; and sworn affidavits that are admitted in lieu of live testimony [citation]." (Ibid.)
Sanchez discussed three forms of evidence typically relied upon by gang experts to form the basis of their opinions: police reports, Street Terrorism and Enforcement and Protection (STEP) notices, and Field Interview (FI) cards. Police reports are testimonial hearsay because they relate "information gathered during an official investigation of a completed crime" and not "made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) STEP notices are testimonial hearsay because they are prepared primarily "to establish facts to be later used against [the defendant] or his companions at trial." (Id. at p. 696.) FI cards may also constitute testimonial hearsay, but only to the extent they are made in an ongoing criminal investigation. (Id. at p. 697.)
As far as analyzing the prejudicial impact of improperly introduced hearsay evidence under Sanchez, if the expert's testimony violates the Evidence Code alone, we are to apply the reasonable probability of a more favorable result standard of review. (People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).) But if the error also implicates a defendant's federal constitutional rights, we must apply the more rigorous harmless beyond a reasonable doubt standard. (Chapman, supra, 386 U.S. at p. 24; Sanchez, supra, 63 Cal.4th at p. 698.)
2. Relevant Portions of the Record
Deputy Covington testified both as investigating officer in the underlying crimes as well as the prosecution's gang expert. Covington had received over 150 hours of specialized gang training. He had been a law enforcement officer for more than 16 years and had been assigned to the gang enforcement team for about two years. Covington had investigated over 90 gang-related cases and had written nine gang-related search warrants. Covington had interviewed over 200 gang members and had testified twice before as a gang expert.
Deputy Covington testified as to the importance of "respect" in gang culture. Covington said that when "gang members talk about respect, they talk about fear. They want and expect to be feared by the rival gang members, the victims of the crimes, the witnesses, and people within the community." Covington said that when a person disrespects a gang member the usual response is an assault. Covington testified that gang members perceive that they will lose respect if they fail to retaliate. Covington said that gang members usually have "backup" present to "support that person, to assist them in any way. It's a show of force." Covington testified that a "backup" could assist a gang member in an assault, including "jumping in and joining in their efforts." Covington said that gang members generally claim an area or territory as turf. Covington testified that gang members "feel like they own and possess" the turf and are "able to deal with it in whatever ways they want." Covington said he had heard gang members sometimes refer to their turf as "the barrio."
Deputy Covington opined that Varrio Viejo is a criminal street gang. According to Covington, the gang has over 200 members and claims as turf the entire area of San Juan Capistrano. Covington said that Varrio Viejo gang members commonly congregate in four areas, one of them being the Villas, the apartment complex where the instant crimes occurred. Covington testified that the Varrio Viejo has certain names, signs, and symbols that they use to challenge other gang members or to show their gang membership. Covington said that at the time of the instant offenses, the primary activities of the gang included assaults with deadly weapons, robbery, and felony vandalism. Covington testified as to "predicate" crimes that had been committed by other Varrio Viejo gang members (not Tello or Zuniga).
Deputy Covington opined that Tello and Zuniga were both active members of Varrio Viejo at the time of their offenses. As to Zuniga, Covington was shown photographs and identified several gang tattoos on Zuniga's body, including on his knees, hands, finger, stomach, wrists, and arms. Covington also identified a gang tattoo on Zuniga's neck that was visible in court. Covington said that if a person was not a gang member and displayed such gang tattoos in certain areas of San Juan Capistrano that person "would definitely be assaulted."
Deputy Covington said that his opinion regarding Zuniga's gang membership was also "[b]ased on my training and experience, speaking with other gang investigators I work with, reviewing [Zuniga's] gang background, which was compiled and I reviewed." Covington said that the documents he had reviewed included STEP notices, crime reports, and FI cards. Covington said that based on his background investigation he had learned that Zuniga's moniker was "Hitman."
Deputy Covington testified as to seven prior contacts Zuniga had with the police that had been memorialized in either police reports or STEP notices. The information included the following. First, on February 8, 2011, Zuniga had gone into rival gang territory with another Varrio Viejo gang member, he had wrote gang-related graffiti, and the two individuals were found in possession of a brass knuckles and spray paint. Second, on February 12, 2011, Zuniga assaulted a person with another Varrio Viejo gang member and had yelled out "Old Town" (another name for the gang) while committing the assault. Third, on February 18, 2011, Zuniga was arrested for vandalism and admitted that he was "putting in work," for the gang. Zuniga had also said that "he was aware that Varrio Viejo commits violent crimes, and he learned that from his family members." Fourth, on April 9, 2011, Zuniga had assaulted a 13-year-old boy by punching him in the head until he lost consciousness and, while doing so, he yelled out "Varrio Viejo." Zuniga said that the assault and going to juvenile hall for the crime would enhance his reputation. Fifth, on September 20, 2011, Zuniga had told another deputy that he was walked into a gang by another gang member, that he had tagged gang graffiti in rival gang territory, and that he had "posted up" or represented the gang "by standing in a specific area to be seen by the community." Sixth, on December 16, 2012, Zuniga was seen with another gang member during a probation search and was found in possession of methamphetamine. Finally, on June 13, 2013, Zuniga had violated a gang injunction and "was previously served notice that he is an active participant or subject to the gang injunction."
Deputy Covington also discussed the contents of three FI cards. On March 25, 2011, Zuniga was contacted with another Varrio Viejo gang member. On October 1, 2011, Zuniga was contacted with two other gang members and they were found in possession of two-way radios, which are used "to inform each other whether law enforcement or rival gang members arrive." And on October 14, 2011, Zuniga was contacted with another Varrio Viejo gang member.
Deputy Covington testified that he had investigated the instant offenses. He said that when he found out that description of one of the attackers was a person with a dark complexion and moustache, he suspected two Varrio Viejo gang members, either Zuniga or his family member S. Hernandez. However, Hernandez was in custody on the day of the offenses. In a hypothetical question summarizing the prosecution's evidence against Zuniga and Tello, including Covington's opinions regarding their gang membership, Covington opined that the charged crimes were committed for the benefit of, to promote, and in association with the Varrio Viejo criminal street gang.
3. Legal Analysis
The Attorney General generally maintains Zuniga forfeited his claims of error under Sanchez because his counsel failed to object on hearsay grounds as to those aspects of Deputy Covington's testimony that implicated Sanchez. However, Zuniga's trial took place about a year before the Sanchez opinion was filed. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237-238.) Our Supreme Court's decision in Sanchez represented a "paradigm" shift in substantive law regarding expert testimony. (Sanchez, supra, 3 Cal.4th at p. 679.) Thus, Zuniga did not forfeit his Sanchez claims under these circumstances.
For similar reasons, we are summarily denying Zuniga's related petition for a writ of habeas corpus in case No. G053256. In the writ proceeding, Zuniga argued that he was denied effective assistance of counsel because counsel failed to object to Deputy Covington's testimony on Sanchez grounds.
Arguing in the alternative, the Attorney General concedes that "Deputy Covington's testimony conveyed to the jury the contents of STEP notices, police reports, and FI cards, upon which he relied in forming his expert opinion. . . . Because those materials were case-specific . . . and were hearsay . . . , their admission was erroneous. However, the error was harmless." We disagree.
Here, Deputy Covington testified that he had never spoken to Zuniga directly. Therefore, all of Covington's expert testimony concerning Zuniga's gang membership (with the exception of Zuniga's visible gang tattoos) Covington learned through the statements of other police officers. Covington related that information to the jury and he relied on those hearsay statements to form the basis of his opinion that Zuniga was a Varrio Viejo gang member and the underlying crimes (attempted murder and assault) were committed for the benefit of the gang. Thus, under the first step of Sanchez, all of Covington's testimony as to Zuniga's prior contacts with the police constituted case-specific inadmissible hearsay.
As far as the second step of the Sanchez analysis (whether the hearsay statements were testimonial or not), seven of Zuniga's prior 10 contacts with the police were memorialized either in police reports or STEP notices, which Sanchez classified as necessarily testimonial. (Sanchez, supra, 63 Cal.4th at pp. 694-696.) Further, it was from these seven contacts that Deputy Covington communicated all of Zuniga's admissions regarding his prior assaultive offenses and his admissions regarding his gang membership. Three of Zuniga's prior 10 contacts with the police were memorialized in FI cards, which are only testimonial if they are "produced in the course of an ongoing criminal investigation." (Id. at p. 697.) In this case, it is not clear whether the three subject FI cards were completed during ongoing criminal investigations; however, having concluded that the bulk of Covington's testimony regarding defendant's gang membership was admitted in violation of the federal Constitution's confrontation clause, we need to evaluate the cumulative effect of these errors under the Chapman standard of review. (See People v. Woods (2006) 146 Cal.App.4th 106, 117 ["Because some of [the prosecutor's] improper arguments were of federal constitutional magnitude, we assess the cumulative effect of the misconduct under the standard applicable to federal constitutional errors . . ."].)
Under Chapman, "before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman, supra, 386 U.S. at p. 24.) "Respondent has the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict." (People v. Woods, supra, 146 Cal.App.4th at p. 117.) "'To say that an error did not contribute to the . . . verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86.) Under these circumstances, "the harmless error inquiry is directed at determining whether the error actually contributed to the jury's verdict at hand. The test is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the conviction in this case. If such a possibility exists, reversal is required." (People v. Lewis (2006) 139 Cal.App.4th 874, 887, italics added.)
Here, we have no doubt in concluding that there is a reasonable probability that Deputy Covington's testimony might have contributed to the jury's guilty verdicts on each of Zuniga's underlying convictions (attempted murder, assault, and gang participation). In making this determination, we take particular note of the prosecution's closing arguments concerning Zuniga's identity as one of the perpetrators, as well as the jury's inquiries concerning the eyewitness identifications during its deliberations. (See People v. Fletcher (1996) 13 Cal.4th 451, 471 ["[t]he prejudicial effect of the error was compounded by the prosecutor's argument to the jury . . ."]; see also Kyles v. Whitley (1995) 514 U.S. 419, 444 ["[t]he likely damage is best understood by taking the word of the prosecutor, . . . during closing arguments . . ."]; People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 ["[j]uror questions and requests to have testimony reread are indications the deliberations were close"].)
In his initial closing argument, after discussing Zuniga's gang tattoos, the prosecutor said, "Before I move on, I would be remiss if I didn't mention one thing that I sort of breezed through. We heard [']Rowdy['] is the moniker for Mr. Tello. Let's not forget this moniker which is better earned by Mr. Zuniga is [']Hitman.['] . . . [¶] . . . He assaulted a 13-year-old child, yelling 'Varrio Viejo' during the assault."
"During a search of his house, [Zuniga's] had other members of Varrio Viejo hanging out with him. That sounds familiar, too, because that's exactly what Tello was doing within 24 hours of the stabbing in this case. And he admitted in that previous assault that when he punched and kicked the victim in the head - actually this is a different assault I'm talking about now -- punched and kicked the victim in the head while yelling 'Old Town,' which he has tattooed across the stomach with another gang member, he did that because of perceived -- and I know I sound like a broken record - disrespect." (Italics added.) [¶] "So what did he do in response to the disrespect in that case? He did exactly the same thing that he did on November the 6th, 2013. He committed a violent assault." (Italics added.)
During Zuniga's closing argument, his counsel Todd Anderson, focused almost exclusively on what he argued was a lack of identification evidence against his client. Again, only Raul had identified Zuniga prior to the trial, and counsel largely focused on the perceived issues with that photographic identification procedure. Zuniga's counsel also said, "Now, I mentioned in my opening that Mr. Zuniga has no violent history--." The prosecutor imposed an objection, "I'm going to object again as not arguing facts in evidence." The trial court responded, "The objection is sustained. Please move on, Mr. Anderson."
During his rebuttal closing argument, the prosecutor responded, "This is not, ladies and gentlemen, a single ID case, as Mr. Anderson tried to argue to you. This is an ID before court, two out of two ID's in court, that are not suggestive, and all that corroborating evidence to put it together. . . . [¶] Last thing I want to touch upon, the judge told Mr. Anderson to move on, so I'm not going to spend a lot of time on it, but he mentioned that Hitman Zuniga is not a violent person. [¶] Well, I just want to remind you, I talked about the history of what we are looking at there. Aside from the moniker of Hitman, let's not forget about the assault on the 13-year old, where he said he did it, [section] 245, the same charges here." (Italics added.)
During its deliberations, the jury submitted six written inquiries to the court, three of them involved potential identification issues. One inquiry said: "Knowledge as to whether the police reports and documents included any pictures of the defendants when the victims reviewed the case pre-trial with Mr. Hicks." The court responded: "You are to rely on your recollection of the evidence that was presented at trial." Another inquiry requested: "A readback of testimony made by Javier in reference to Javier's pre-trial meeting with Larry Hicks." And another inquiry requested: "A readback of the court ID's made by both Javier and Raul."
Javier testified that a few weeks prior to the trial he had met with District Attorney Investigator Larry Hicks at the police station. Javier said that Hicks had shown him the underlying police reports and they talked about the case. Javier identified Hicks in court, but he was not called as a witness by any party.
Here, Zuniga's entire defense was based on identity. His counsel vigorously challenged Raul's out-of-court photographic identification as well as Raul and Javier's in-court identifications. The prosecutor responded by arguing and relying, in part, on Deputy Covington's (now improperly admitted) testimonial hearsay statements for the purpose of corroborating the identification of Zuniga as a perpetrator. (See United States v. Alvarado-Valdez (5th Cir. 2008) 521 F.3d 337, 342-343 ["We cannot see how the government can conclusively show that the tainted evidence did not contribute to the conviction, because the government's closing argument relied on that very evidence"].)
Further, the jurors' inquires indicate that they may have been closely split on the issue of Zuniga's identification as one of the perpetrators, which would have gone directly to the issue of Zuniga's guilt, not only as to the substantive gang charge, but also as to the attempted murder and assault charges, as well as their associated sentencing enhancements. Simply put, based on this record, it is reasonably probable that the error—the admission of testimonial hearsay statements through Deputy Covington's expert testimony in violation of Zuniga's constitutional rights—contributed to each of the jury's guilty verdicts.
The Attorney General argues that the trial court's Sanchez error was not prejudicial to the substantive crimes of assault and attempted murder because the jury was instructed on the limited purposes of the gang evidence. (CALRIM No. 1403.) We are not persuaded. The jury was instructed, in relevant part, as follows: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancement charged; [¶] OR [¶] The defendant had a motive to commit the crimes charged; [¶] . . . [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime." (CALCRIM No. 1403, italics added.)
Here, the jurors were not instructed that they could use Deputy Covington's improperly admitted testimonial hearsay statements only for the purpose of evaluating his expert opinion. The trial court's instruction told the jurors that they could also consider the improperly admitted evidence when determining whether Zuniga had a motive to commit the "gang-related" crimes that had been charged (the substantive gang crime as well as the charged crimes of attempted murder and assault with the attached gang enhancements). (CALCRIM No. 1403.) Further, the court's instruction told the jurors that they could also use the testimonial hearsay evidence to evaluate the credibility of the testifying witnesses, Raul and Javier. Again, the credibility of these two witnesses' identifications were at the core of Zuniga's defense and the inadmissible evidence was repeatedly raised and argued by the prosecutor in support of these identifications.
Finally, the Attorney General also argues that there was "ample other evidence [that] showed appellant Zuniga's identity as the second assailant." We agree. For example, the two in-court identifications, Zuniga's gang tattoos, and the fact that Tello was at Zuniga's apartment on the day after the assaults arguably constitute "ample" evidence of Zuniga's identity as one of the perpetrators. And were this a question of substantial evidence, or a question of whether it is likely that a jury would return the same verdicts in the absence of the improperly admitted evidence, we would undoubtedly uphold Zuniga's convictions. (See Watson, supra, 46 Cal.2d at p. 837.)
We are mindful that we cannot consider Tello's out-of-court admissions in our analysis. In this case, the trial court instructed the jury: "You have heard evidence that defendant [Brian Tello] made a statement out of court. You may consider that evidence only against him, not against any other defendant." (CALCRIM No. 305.)
But our task under Chapman is quite different. (Chapman, supra, 386 U.S. at p. 24.) Again, the test for us "is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error," rather the question is "whether there is any reasonable possibility that the error might have contributed to the conviction in this case." (People v. Lewis, supra, 139 Cal.App.4th at p. 887, italics added.) Based on the entirety of the record, including in particular the prosecutor's closing arguments and the jury's inquires during its deliberations, we find in this case a reasonable probability that the constitutional error might have contributed to this jury's convictions of Zuniga for the underlying offenses. Thus, we must reverse.
III
DISPOSITION
As to Tello, we order the judgment modified to stay the two-year sentence for being an active gang member. (§ 186.22, subd. (a).) The trial court is directed to prepare a corrected abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, Tello's judgment is affirmed.
As to Zuniga, his convictions (and all of the sentencing enhancements attached to each of those convictions) are reversed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.