Opinion
F085467
10-01-2024
THE PEOPLE, Plaintiff and Respondent, v. DAIQUAN LABARI KELLY, Defendant and Appellant.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 19CR-04148A. Carol K. Ash, Judge.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Appellant Daiquan Labari Kelly was convicted by jury of first degree robbery committed by two or more people (Pen. Code, § 213, subd. (a)(1)(A), count 1) and active participation in a criminal street gang (§ 186.22, subd. (a), count 3.) As to count 1, the jury found that a principal in the crime personally used a firearm in the commission of the offense (§ 12022.53, subds. (b) &(e)(1)), and that Kelly committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1) &(b)(4)). The trial court struck the personal firearm use enhancement and sentenced Kelly to a prison term of 15 years to life.
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
Kelly was tried with a codefendant, Nicholaus Maldonado, who is not a party to this appeal. We further observe that the abstract of judgment indicates that Kelly was convicted on December 16, 2022, in case No. 20CR-00374A for an assault he committed in 2020.
Kelly raises the following claims on appeal: (1) the trial court erred by denying trial counsel's request to empanel a new jury for the gang phase of his trial; (2) there is insufficient evidence to support the jury's true finding on the criminal street gang enhancement and its verdict on the substantive gang offense; (3) the trial court erroneously imposed a sentence on count 2 (robbery), a charge upon which the jury did not return a verdict; (4) Kelly's conviction for robbery on count 2 must be reversed because it is a lesser included offense of robbery in concert, the crime for which Kelly was convicted in count 1; and (5) Kelly's sentence for active participation in a criminal street gang (count 3) must be stayed pursuant to section 654.
We conclude that Kelly's claims of error with respect to count 2 are meritless, as a verdict was not rendered on this count, nor was a sentence ultimately imposed upon it. We further conclude that there is insufficient evidence to support Kelly's conviction for the active participation in a criminal street gang. We will therefore reverse the jury's verdict on count 3. Finding the remainder of Kelly's claims meritless, we otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
On September 1, 2020, the Merced County District Attorney filed an information charging Kelly and Maldonado with robbery committed by two or more people (§ 213, subd. (a)(1)(A), count 1), home invasion robbery (§ 211, count 2), and active participation in a criminal street gang (§ 186.22, subd. (a), count 3). The information further alleged that counts 1 and 2 were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C), (b)(4)(B)), that Maldonado had personally used a firearm in the commission of the offense (§ 12022.53, subds. (b) &(e)(1)), and as to Kelly, that a principal in the crime had personally used a firearm in the commission of the offense (§ 12022.5). Kelly and Maldonado were tried jointly.
On August 25, 2022, the trial court granted the parties' motions to bifurcate the substantive gang offense and the gang enhancements from the remaining charges pursuant to section 1109.
On September 1, 2022, a jury was empaneled.
On September 9, 2022, hours after deliberations began, the jury found Maldonado and Kelly guilty of robbery in concert (count 1). No verdict was rendered on count 2, and that count was subsequently dismissed.
On September 22, 2022, following the conclusion of the gang phase of the trial, the jury convicted Maldonado and Kelly of the substantive gang offense (count 3) and found true the gang enhancement and firearm use enhancement allegations.
On December 16, 2022, the trial court sentenced Kelly to an indeterminate term of 15 years to life on count 1 (see § 186.22, subd. (4)(B)), plus a concurrent term of 16 months on count 3.
A timely notice of appeal followed.
The Home Invasion (Phase I)
In 2019, A.K. lived in a two-story house in Merced. The lower level of the house included a kitchen, the living room, two bedrooms, and a large sliding glass door leading to the backyard, while the upper level housed three or four bedrooms. A.K.'s roommates, who were college students, were away for the summer.
On July 30, 2019, while A.K. was asleep in his upstairs bedroom, he was awakened sometime between 5:00 a.m. and 6:00 a.m. by loud banging sounds downstairs. Peering out of his bedroom window, he observed four to six individuals in his backyard, some of whom were carrying guns. One of the men was wearing a red shirt and tan bottoms, but A.K. could not see the man's face. A.K. described the men as lightskinned, but he could not ascertain whether they were Black or Hispanic.
The men were whispering to each other as they attempted to break through A.K.'s sliding glass door. Following two bangs, an object broke through the door. A.K. dialed 911 and placed his phone on the bed, keeping the line open to a 911 operator. He secured his puppy in his bedroom closet and waited for the intruders to reach his room. Moments later, one of the intruders kicked in A.K.'s bedroom door and entered the room. A.K. overheard one of the intruders ask where" 'the weed [was] at.'" One of the men, who was unmasked, told A.K. to turn around and pressed a gun against A.K.'s spine.
While A.K. was facing the wall, he could hear the house being ransacked. The intruders took a laptop, a PlayStation gaming console, a Nintendo Switch, and some jewelry. They fled through the front door of the home.
Within five minutes of A.K.'s call to 911, Merced police officers arrived on scene, finding A.K. visibly shaken. Simultaneously, Merced Police Officer Brandon Wilkins pursued a brown Chevrolet Impala fleeing the area at a high rate of speed, eventually stopping the vehicle. Four men were inside: Kelly, who was driving, Daevon Motshwane, who was sitting in the front passenger's seat, Maldonado, who was sitting behind Kelly, and Marcelino Lorenzo, who was sitting behind Motshwane.
Following a search of the vehicle, officers located items taken from A.K.'s house. A gun with an extended magazine was found underneath Kelly's seat.
A.K. informed responding officers that the man who had pressed a gun to his back resembled an individual who had robbed him at a nearby park just a few days prior to the home invasion. A.K. explained that the man who had robbed him at the park had a black semi-automatic pistol with an extended magazine, the same type of gun that was pressed against him during the home invasion. However, A.K. was unable to identify anyone involved in the home invasion following an in-field show up.
Despite evidence showing that there were at least five people involved in the home invasion, Kelly's vehicle and the occupants therein were the only individuals apprehended.
At trial, A.K. identified Maldonado from a photograph as an individual that had previously visited his (A.K.'s) home as a guest. A.K. explained that Maldonado had smoked marijuana at his home on at least five prior occasions. Although A.K. could not identify Maldonado as one of the intruders, he had strong suspicions that A.K. had participated in the home invasion. A.K. explained that he had only a handful of people over to his house in the short time he had been living there.
Surveillance footage from the inside of A.K.'s home depicted aspects of the home invasion. Sergeant Jeremy Salyers with the Merced Police Department recognized Kelly, who was unmasked in the surveillance video, and identified him as one of the intruders. The video depicted Kelly walking down the stairs of the home with a white bag.
Sergeant Salyers observed dried mud around the bottom of Maldonado's and Motshwane's shoes, suggesting that they had acted as lookouts during the invasion.
During a recorded jail phone call, Kelly initially admitted to "hitting a lick for some weed," which referred to committing a robbery or a home invasion.
The Gang Allegations (Phase II)
The Merced-Area Norteno Criminal Street Gang
Officer Justin Saldivar with the Merced Police Department testified as a gang expert on behalf of the prosecution. Through his training and experience, including conversations with active Norteno gang members, he learned the following: the Norteno street gang operates through various subsets within the city of Merced, including Rebels Before Locs (RBL), Dead End Locs (DEL), Loughborough Locs, Merced Ghetto Boys, and Nortenos For Life. There are also Norteno subsets specific to the county of Merced.
The Norteno gang operates in a paramilitary framework, characterized by a structured hierarchy. Members in prison, known as the Nuestra Familia, give orders to the Nortenos on the street. Proceeds from criminal activities committed by Nortenos on the street, otherwise known as "taxes," are funneled back to the Nuestra Familia. All of the Norteno subsets within the city and county of Merced pay taxes to the Nuestra Familia. Norteno gang members adhere to the 14 bonds, which are a set of 14 rules that govern their conduct. The payment of taxes is incorporated within those rules.
There are approximately 1,200 documented Norteno gang members in Merced County. Nortenos signify their membership in the gang by wearing red and using common symbols, including: the Huelga bird; one and four dots, denoting the 14th letter of the alphabet; "XIV"; "X4"; and the Washington Nationals' cursive "W."
Rivals of the Nortenos include the Northern Riders, a dropout gang; the Surenos; the Crips; and the Go Bad Bloods. Officer Saldivar opined that the primary activities of the Nortenos include: the possession of weapons, the possession of weapons for sale, the possession of narcotics for sale, robbery, assault, and vehicle theft. To prove that the Nortenos have committed a pattern of criminal gang activity, the prosecutor adduced evidence of two predicate offenses:
On July 8, 2017, Livingston Police Detective Taylor Kollman conducted a traffic stop of a vehicle driven by Irving Castrejon-Gomez. Javier Guardado was seated in the front passenger's seat. Detective Kollman had contacted Guardado on prior occasions and knew him to be an active Livas Norteno gang member. He had previously observed Guardado associating with other known gang members.
Detective Kollman searched the vehicle and located marijuana and three small bindles of cocaine. Both Guardado and Castrejon-Gomez were arrested. As a result of this encounter, police officers obtained a search warrant for Guardado's and Castrejon-Gomez's residences.
In Guardado's residence, Merced Police Detective Steven Odom located two rifles, one of which had been stolen; a bag of ammunition; and some gang indicia, including a Norteno drawing that read "three block," the facility where active Nortenos are housed at the Merced County Jail. Inside Castrejon-Gomez's residence, officers found ammunition and some red Norteno-related clothing. Guardado was convicted of the unlawful possession of a firearm.
With respect to the second predicate offense, Detective Odom testified that on November 11, 2017, he attempted to initiate a traffic stop of a vehicle in Merced. A police pursuit ensued. At some point, both the driver, Ari Gonzalez-Cardenas, and the front passenger, Christian Palomares, exited the vehicle and attempted to run through an orchard before they were apprehended by police.
At the time of his arrest, Gonzalez-Cardenas was carrying a loaded Glock 22 in his waistband and wearing a red belt with a "P" on the buckle. Officer Odom explained that the "P" referenced Planet Varrio X, a Norteno subset in the city of Planada, a city within Merced County. At the time of their arrest, Officer Odom documented both Gonzalez-Cardenas and Palomares as active Norteno gang members. Gonzalez-Cardenas was subsequently convicted of unlawful possession of a firearm with a gang enhancement.
Officer Saldivar opined that Guardado and Castrejon-Gomez were active Varrio Livas Norteno gang members, citing the circumstances of their offense, the firearms found in their residences, and their self-admissions. As to Cardenas and Palomares, Officer Saldivar opined that they were active Norteno gang members based upon the circumstances of their offense and Gonzales-Cardenas's admission.
Kelly and His Accomplices
With respect to Kelly and his accomplices, the prosecutor adduced the following evidence demonstrating their individual membership in the Norteno criminal street gang: Kelly
Kelly had no prior documented gang contacts with police. The record does not show that he had any prior convictions, known gang monikers, or prior associations with known gang members. While in custody for the instant case, Kelly was assigned to a jail housing classification with active gang members. He was removed from that housing assignment after he was assaulted.
Kelly lived a half-of-a-mile away from Motshwane in the city of Livingston.
The jury heard evidence of only one of Kelly's tattoos, the letters "OTM." Merced Police Sergeant Jose Barajas explained that this tattoo may be related to a gang on the East Coast, but he could not be certain that it was gang related. Sergeant Barajas opined that Kelly could be associated with the Nortenos, but he did not have enough information to conclude that Kelly was an active Norteno.
On July 30, 2019, the day of the incident, Sergeant Salyers questioned Kelly about the home invasion. Kelly claimed that he was hanging out at a residence nearby when a group of individuals were discussing a plan to rob A.K.'s home. The group was planning to steal narcotics from A.K.'s home and claimed they had previously robbed A.K. Kelly told Sergeant Salyers that the other individuals with whom he had been detained, whom he referred to as "his little homies," had heard this conversation as well. When Sergeant Salyers asked Kelly to identify everyone he was with, Kelly said "he wasn't going to snitch."
Maldonado
Between his arrest and his trial, Maldonado had acquired multiple gang-related tattoos, including: the St. Louis Cardinals" 'LS'" on his left forearm;" 'LST'" on his left arm;" 'Stone City'" on his forehead, a teardrop underneath his left eye, four separate letter" 'L's'" on his body, including one L on his right hand and one on his left hand; the Louis Vuitton "LV" logo tattooed in an unspecified location; and a Huelga bird on his left hand.
Officer Saldivar explained that the St. Louis Cardinals tattoos were references to Livingston, as were the" 'L' "s across Maldonado's body." 'Stone City'" represented the fact that Maldonado had done time in jail.
According to Officer Saldivar, there are different theories as to the gang significance of Maldonado's teardrop, which was not filled in. One such theory is that the tattoo may signify an unfulfilled goal for the gang. Officer Saldivar opined that Maldonado got these tattoos after he went to jail because he had earned the right to get them. He explained that only a Norteno gang member would be permitted to acquire the tattoos that Maldonado had acquired.
During a recorded jail phone call, Maldonado gave his brother the password to his Snapchat social media account: "LN." Maldonado stated that his password was "VLN" with the V omitted, remarking, "you know what the VLN stands for." He asked an unidentified male participating in the call to post the message, "Free me." Officer Saldivar explained that this message would publicly communicate that Maldonado had put in work for the gang and that going to jail was a significant accomplishment for gang members, analogizing it to going to college.
Immediately after the home invasion, Maldonado was detained wearing a red Cincinnati Reds baseball logo T-shirt and red and black shoes Norteno gang members within Livingston often use the Cincinnati Reds to denote their gang affiliation. Because Maldonado later acquired a St. Louis Cardinal tattoo on his forearm, a rival baseball team, Officer Saldivar surmised that Maldonado's Cincinnati Reds t-shirt symbolized his association with the Norteno gang rather than the baseball team.
Motshwane
Sergeant Salyers had contacted Motshwane between five and seven times prior to Motshwane's arrest for the home invasion. One of those prior contacts occurred in late August 2017, when Sergeant Salyers responded to a report of a domestic disturbance at Motshwane's home. Motshwane's parents reported that they suspected him of being involved in a gang. During one of Sergeant Salyer's subsequent contacts with Motshwane, Motshwane admitted that he was a Norteno.
On March 10, 2019, Merced Police Officer Arturo DeHoyos testified that he was on patrol when he received a call about a group ofjuveniles hanging out in a laundry room in an apartment complex. Inside the laundry room, Officer DeHoyos found a gun with its serial number scratched off. During this encounter, Motshwane admitted that they were Dead End Locs gang members.
Detective Odom worked in the Gang Violence Suppression Unit for four-and-a-half years. He had between five to 10 prior contacts with Motshwane, one of which occurred one month prior to the instant offense.
During a traffic stop in June of 2019, in the city of Merced, Detective Odom observed Motshwane in a vehicle with other known gang members who were wearing clothing commonly associated with members of the Nortenos For Life and the Merced Ghetto Boys criminal street gangs. The vehicle was in a predominately Norteno gang territory.
After obtaining a search warrant for two of the vehicle's occupants' Snapchat accounts, Detective Odom discovered pictures of Motshwane displaying hand signs representing the Dead End Locs. One photograph depicted Motshwane with a documented Rebels Before Locs gang member. The photograph was captioned" 'RBL X DEL,'" which stands for Rebels Before Locs and the Dead End Locs, both Norteno subsets in the city of Merced.
Another photograph depicted Motshwane with three known RBL gang members, all of whom were displaying gang signs. Motshwane was displaying a double pistol with his hands, representing the Dead End Locs. Three other photographs depicted Motshwane displaying the same Dead End Locs gang sign. These photographs also depicted Motshwane with individuals displaying gang signs for the Merced Ghetto Boys, the Nortenos For Life, and the overarching Norteno gang.
Detective Odom also described prior contacts with Motshwane, during which, he observed Motshwane in the company of other Norteno gang members, as well as members of the Bloods.
In May of 2018, Detective Odom documented a contact with Motshwane wherein Motshwane was wearing a black sweater with a red shirt underneath it. Motshwane was in the company of two other documented Norteno gang members and a member of the Players Nation Wide Blood gang. Detective Odom opined that Motshwane was an active Dead End Locs Norteno gang member.
Lorenzo Lorenzo lived within a half-mile radius of Maldonado in the city of Livingston.
In August or September of 2015, Detective Kollman contacted Lorenzo at a park. The park is a known Varrio Livas Norteno hangout. In 2019 or 2020, Detective Kollman observed Lorenzo associating with other known Varrio Livas Norteno gang members.
In January of 2018, Detective Kollman participated in the execution of a search warrant of Lorenzo's residence. At the head of Lorenzo's bed, Detective Kollman found a drawing of a Huelga Bird with the word "Livingston" above it with the S crossed out, signifying disrespect to Surenos.
Lorenzo sported a Mongolian-style haircut, with a ponytail in the back and his head otherwise shaved. This hairstyle is commonly worn by Norteno gang members.
The Gang Expert's Opinion That the Crime Was Gang Related
Based on Maldonado's participation in the home invasion, his attire, and his gang tattoos, Officer Saldivar opined that Maldonado was an active member of the Varrio Livas Nortenos.
With respect to Motshwane, Officer Saldivar asserted that Motshwane was an active Dead End Locs Norteno gang member, citing photographs of Motshwane displaying gang signs, his association with other active gang members, and his prior selfadmissions.
Officer Saldivar asserted that Lorenzo was an active Varrio Livas Norteno, citing the Huelga Bird drawing in Lorenzo's bedroom with the S scratched out and Lorenzo's Mongolian-style haircut.
Finally, regarding Kelly, Officer Saldivar explained that Kelly's use of gang terminology, his refusal to cooperate with law enforcement, and his active participation in the robbery with other known gang members, suggested that Kelly was an active Norteno street gang member. Kelly had only been in Merced for a few months, but he was already associating with known gang members, and he took a leadership role in the home invasion by driving one of the getaway vehicles.
Officer Saldivar explained that Kelly had referred to the robbery as "hitting a lick," which is a common gang or slang term. Additionally, when asked to identify the other participants in the robbery, Kelly responded that he "wouldn't snitch." Officer Saldivar opined that this language demonstrated his awareness of gang culture and what happens to people if they inform on other gang members.
According to Officer Saldivar, Nortenos only commit crimes with other members of the gang. By allowing Kelly to participate in the crime, he was being taken under the wing of the gang. Trust is everything to the gang, and Kelly's participation in the crime meant that he was trusted within the gang.
In response to a hypothetical mirroring the facts of the instant case, Officer Saldivar asserted that the home invasion was executed for the benefit of and in association with the Norteno criminal street gang. Officer Saldivar explained that the proceeds from any valuables obtained during the robbery could be used to pay taxes to the gang, which would benefit the gang. Further, the perpetrators had acted together in the planning and execution of the home invasion. This demonstrated that they were acting in association with the Norteno gang.
DISCUSSION
I. The Trial Court's Failure to Empanel a New Jury for Phase II of Kelly's
Bifurcated Trial
In joining Maldonado's request to empanel a new jury based upon juror misconduct, Kelly argued that the entire jury had been contaminated by juror misconduct, and further, that a new jury should be empaneled to give the defense the opportunity to voir dire prospective jurors for any gang biases. Kelly contends that the trial court abused its discretion by declining his request and denying his motion. We disagree.
A. Background
The trial court granted the parties' motions to bifurcate the non-gang offenses from the gang offenses, remarking that bifurcation was required under the law. During voir dire, the prosecutor requested permission from the court to question the prospective jurors about their biases concerning criminal street gangs. The prosecutor explained that the same jury would ultimately hear and decide both cases, and thus, any potential biases or sympathies by potential jurors about criminal street gangs would be relevant.
Trial counsel opposed the prosecutor's request, arguing that section 1109 requires the exclusion of all gang evidence. Trial counsel further represented that he would object to the admission of any gang evidence during the non-gang phase of the trial. And, in response to the prosecutor's request to voir dire the jury venire about biases toward gangs, trial counsel represented that 99 percent of prospective jurors would have biases against gang members, implying that voir dire by the prosecutor about criminal street gangs would be unnecessary.
As to the admission of gang evidence in the non-gang phase of the bifurcated proceeding, the trial court ruled that an offer of proof would be required before the prosecutor could introduce any gang evidence. With respect to the prosecutor's request to voir dire the jury about gang biases, the court proposed that it would advise the jury that the charges against the defendants did not relate to gang activity, but that the jurors may hear some mention of gangs during the witness's testimony. The court would ask," 'Anyone have any familiarity, knowledge or expertise with gangs,' and if so," 'Could you be fair if you hear testimony a witness was associated with a gang?'" Thereafter, if the parties wish to question the jurors about gangs, they must make a showing of relevancy as to any such questions.
Consistent with its proposed questions, the court questioned the jury venire about their bias related to gangs as follows:
"[The Court:] Now, the charges I read to you do not contain any reference to gang activity or mention of gangs, but you may hear some mention of gangs in the testimony, um, or hear that a witness might be associated with a gang. Um, does anyone have any special familiarity, knowledge, experience or expertise when it comes to gangs?"
In response, the prospective jurors volunteered the following information:
• Juror No. 0392 (Seat No. 7) articulated fears of gang retaliation, adding that they have children. The trial court emphasized that the charges were not gang related, but Juror No. 0392 stated that they would subconsciously exercise caution, not knowing what they were getting themselves into.
• Juror No. 2183 (Seat No. 8) commented, "I do have a young child. I do have a wife and we do live on a street where it is a little populated with gang violence, so I would be a little afraid that word would get out, so something of that nature." When the court asked whether this would prevent them from being impartial and keeping an open mind, Juror No. 2183 replied that it would not.
• Juror No. 9870 (Seat No. 17) expressed a bias against gangs based upon the fact that he had recently lost a cousin due to gang violence.
None of the other prospective jurors indicated an issue in response to the trial court's inquiry. However, two other prospective jurors subsequently volunteered the following information:
• Juror No. 5894 (Seat No. 15) represented that they had been a probation officer for 16 years and had received some basic training related to gangs. Juror No. 5894 was also the father-in-law of one of the prosecution's witnesses, Detective Kollman.
• Juror No. 8567 (Seat No. 10) stated that they had negative feelings about people with tattoos and stated that they would be a poor fit for the jury. At the time of his trial, Maldonado had visible face and hand tattoos.
During a break, trial counsel observed that five of the 18 prospective jurors had expressed negative responses about gangs, and that two of those jurors represented they had extreme fears. Trial counsel moved for a mistrial arguing that the jury panel had been tainted by the prospective jurors articulated fears about gangs.
After the lunch recess, the trial court denied trial counsel's motion, explaining:
"[The Court:] I'm going to deny the motion. I think it was appropriate for the Court to go into that subject matter. Obviously, depending on the outcome of this portion of the case, I can't imagine, . . . either side would want jurors like juror in Seat No. 7 . . . [or] 8 as far as sitting on the bifurcated portion.
"I don't see how else to have a fair jury for both sides in this case without mentioning some topics that will come up; plus, in this case, they're at least going to hear testimony about certain colors and whatever, which is kind of common knowledge to most people, so I don't think a mistrial would be justified, so I'll deny the motion." Subsequently, the following exchange occurred between trial counsel and Juror No. 0392 (Seat No. 7):
"[Trial Counsel]: [T]his whole idea about retaliation or trying to find you or remembering where you live or what you do, ages of your kids, I mean, is any of that going to come into your thought process over the next two weeks as I defend [Mr. Maldonado]?
"[Juror No. 0392]: Um, I mean, I think the judge reassured me enough where I'm, like, that's not a worry anymore."
The trial court excused Jurors Nos. 8567 (Seat No. 10) and 9870 (Seat No. 17).
Juror No. 0392 (Seat No. 7) was excused following a preemptory challenge by the prosecutor, and Juror No. 5894 (Seat No. 15) was excused by a preemptory challenge by trial counsel. The trial court later excused Juror No. 2183 (Seat No. 8) for financial hardship.
Trial counsel asked the remaining prospective jurors about biases related to tattoos. The following exchanges occurred:
• Trial counsel asked Juror No. 5482 (Replacement Seat No. 17) whether he could determine Maldonado's guilt beyond a reasonable doubt based solely upon the evidence, and not any personal feelings he may have about Maldonado. Juror No. 5482 commented on one of Maldonado's tattoos, remarking that it appeared to be a gang tattoo, and stated that his cousin had been killed by a gang member in a drive-by shooting. Based upon this experience, Juror No. 5482 represented that he would have a difficult time finding Maldonado not guilty. The trial court excused Juror No. 5482.
• Juror No. 2261 (Replacement Seat No. 14) expressed a disdain of tattoos and stated that they associated Maldonado's teardrop tattoo with murder or gang membership. Juror No. 2261 was excused by the court.
On September 1, 2022, the jury was sworn in. On September 9, 2022, Kelly and Maldonado were convicted on count 1.
On September 13, 2022, prior to the commencement of the gang portion of the bifurcated trial, trial counsel for Maldonado moved to empanel a new jury to fully question the prospective jurors about their gang biases. The prosecutor opposed the motion, arguing that there was no lawful basis to empanel a new jury. She further observed that the trial court had taken appropriate measures to ensure that the jury panel selected had not been prejudiced by any of the gang evidence, consistent with section 1109. The trial court denied trial counsel's motion, explaining:
The record does not demonstrate that trial counsel for Kelly joined in Maldonado's request to empanel a new jury. We will nonetheless presume that Kelly's claim is preserved.
"[The Court:] [U]nder 1109, there was a bifurcation. The defense counsel objected to me even addressing jurors about the topic of gangs. But I did ask about familiarity. And we did root out - one juror mentioned that made her fearful. So I don't think they would be unduly biased.
"I have advised jurors to follow the law. And I see no grounds for granting the request. And it would take up a lot of time. It took a while for us to pick this jury. So I would think it would take just as long to empanel a new jury. So, at this time, I don't think there's grounds to grant the motion. So, I'll deny it."
The following afternoon, outside of the presence of the jury, the trial court stated that a court bailiff had "overhead [the] jurors discussing gangs." The courtroom bailiff, Deputy Alfred Velasquez, was called to testify. Deputy Velasquez testified that he was walking across the lobby when he heard someone, later identified as the juror in seat No. 8, "talking about gangs, different gangs, southern gangs, northern gangs, [B]lack gangs, Asian gangs." Though he could not be sure, Deputy Vasquez thought that there may have been four or five jurors in the area at the time.
Juror No. 6999 (Seat No. 8) was brought into the courtroom and asked whether he recalled having any conversations with other jurors about gangs. Juror No. 6999 claimed that he could not remember anything specific. He admitted that there "might have been" some general discussion of gangs including there being "six major gangs at Golden Valley High School."
All of the jurors were questioned about the gang conversation. Juror No. 4399 (Seat No. 9), admitted having contributed to a discussion about gangs, stating, "I just remember somebody mentioning..., something about a gang somewhere. ... I made a comment, . 'Well, I didn't know gangs were so prevalent like that.' I can't even remember which [juror] mentioned a gang." Juror No. 4399 explained that his only contribution to the conversation was stating that he had been naive about gangs.
Juror No. 8535 (Seat No. 12) heard some discussion of a gang known as "Levi." Juror No. 1475 (Seat No. 13) reported hearing a discussion in the lobby involving the jurors in seat Nos. 1, 8, 9, and 12, and one of those jurors had remarked that "he didn't know that so many towns have local gangs." None of the other jurors remembered hearing anyone discussing gangs.
The trial court concluded that the gang discussion mainly involved Juror Nos. 6999 (Seat No. 8) and 4399 (Seat No. 9). The court stated, "Maybe some of the other ones were listening. So I don't know how Counsel wants to proceed. It doesn't sound like it was directly on the case, but they were talking about a subject that was involved in this case. And I do feel like perhaps Juror No. 8 was not totally forthcoming."
Trial counsel for Maldonado argued that the jury had been tainted by the jurors' discussion of gangs and moved for a mistrial as to the bifurcated proceeding so that a new jury could be empaneled. The trial court denied trial counsel's motion, excused Juror No. 6999 (Seat No. 8), and replaced them with an alternate juror identified as Juror No. 1475.
B. Standard of Review
"In general, 'a motion for mistrial should be granted only when" 'a party's chances of receiving a fair trial have been irreparably damaged.'" '" (People v. Bell (2019) 7 Cal.5th 70, 121.)" 'A trial court should declare a mistrial only" 'if the court is apprised of prejudice that it judges incurable by admonition or instruction.'" '" (Ibid.; accord, People v. Ramirez (2022) 13 Cal.5th 997, 1126.)
" '[W]e use the deferential abuse of discretion standard to review a trial court['s] ruling denying a mistrial.'" (People v. Clark (2011) 52 Cal.4th 856, 990; accord, People v. Ramirez, supra, 13 Cal.5th at p. 1126.) "[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required." (People v. Medina (1990) 51 Cal.3d 870, 889.) We will find an abuse of discretion only where"' "[the court's] ruling 'falls outside the bounds of reason.'" '" (People v. Thomas (2011) 52 Cal.4th 336, 354-355.)
C. Legal Principles
Under the federal and state Constitution, criminal defendants have the right to a fair trial before an impartial jury. (Cal. Const., art. I, § 16; see People v. Mataele (2022) 13 Cal.5th 372, 402-403.)" 'The Sixth Amendment right to an impartial jury and the due process right to a fundamentally fair trial guarantee to criminal defendants a trial in which jurors set aside preconceptions, disregard extrajudicial influences, and decide guilt or innocence "based on the evidence presented in court." '" (People v. Mataele, at pp. 402403, citing Skilling v. United States (2010) 561 U.S. 358, 438.)
" '[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors. [Citations.] "Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled." '" (People v. Mataele, supra, 13 Cal.5th at pp. 403, quoting Morgan v. Illinois (1992) 504 U.S. 719, 729-730.)
D. Analysis
Subdivision (b) of section 1109 requires the charge of active participation in a criminal street gang to "be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime." (§ 1109, subd. (b).) Although the circumstances of each individual case may dictate whether severance over bifurcation is necessary, the mere fact that a substantive gang offense has been charged does not compel severance.
Prior to the commencement of his trial, Maldonado specifically requested bifurcation rather than severance of the gang allegations from the non-gang allegations.
"' "Bifurcation" of a jury trial, .. .means that different issues in a case will be tried seriatim by the same jury with the jury returning separate verdicts as to the issues bifurcated. There is but one trial. "Severance," on the other hand, means that different issues or different defendants in one case have been split off to be tried separately by different juries.'" (People v. Givan (1992) 4 Cal.App.4th 1107, 1114.)
Kelly only sought to empanel a new jury after an incident of juror misconduct. In so doing, the court explained that he would be requesting a mistrial, since jeopardy had attached. Thus, we are tasked with examination of the trial court's denial of Kelly's request for a mistrial.
Kelly contends that the trial court had discretion to empanel separate juries for the first and second phases of his case upon a showing of good cause. The authority he directs us to is inapt. In People v. Yeoman (2003) 31 Cal.4th 93, 119, the defendant made a pretrial motion to empanel separate juries for the guilt and penalty phases of his capital trial. (See § 190.4, subd. (c).) In People v. Thompson (2016) 1 Cal.5th 1043, 1079, the defendant made a pretrial motion to sever his case from his codefendant's. (See § 1098.) Both cases are factually distinguishable from the instant case, where a motion to empanel separate juries was made, for the first time, halfway through the defendants' trial.
"[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required." (People v. Medina, supra, 51 Cal.3d at p. 889.) "[Discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant." (Ibid.) "[S]uch a drastic remedy is [not] appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks." (Ibid.)
Although Kelly suggests that gang bias polluted the entire jury, he does not direct this court to evidence in the record which supports his assertion. Further, by his own admission, the "[c]hallenges for cause and preemptory challenges eliminated all [of] the prospective jurors who had expressed concerns about gangs." And, with respect to Juror No. 6999 (Seat No. 8), they were dismissed by the trial court following a thorough inquiry into the juror's extrajudicial discussion about gangs. Nothing suggests that the remaining jurors were biased against gangs.
Kelly further contends that his motion should have been granted so that he could fully voir dire the jury about their prospective gang biases. Section 1109 specifically contemplates bifurcation of the gang charges from the non-gang charges pursuant to a unitary trial, rather than severance, a point which Kelly does not dispute. We recognize that bifurcation may present challenges in its execution, particularly during voir dire, where the prospective jurors' biases about gangs would need to be tested without influencing their perspective of the case. However, the trial court here utilized what we consider to be a suitable approach to assess any biases the prospective jurors may have had concerning criminal street gangs, without revealing the gang aspect of the case.
The court clarified that the charges did not reference gang activity, but that jurors may hear some mention of gangs during trial. Following this admonition, the court asked the prospective jurors whether they had any special familiarity, knowledge, experience, or expertise with respect to criminal street gangs, casting a broad net to identify potential biases without informing the jurors what the second phase of the trial would entail. Rather than objecting to the trial court's proposed questions, or requesting severance before the jury was empaneled, trial counsel argued that no mention of gangs should be made during voir dire. The belated nature of trial counsel's request, combined with the absence of good cause demonstrating that the empaneled jury must be discharged, is fatal to Kelly's claim on appeal. We conclude that the trial court did not err in denying Kelly's motion for a mistrial.
II. Sufficiency of the Evidence Supporting the Gang Enhancement and the Substantive Gang Offense
Next, Kelly challenges the sufficiency of the evidence supporting the criminal street gang enhancement and the substantive gang offense. We conclude that while there was substantial evidence to support the criminal street gang enhancement, there was insufficient evidence to support the substantive gang offense. We will therefore reverse the jury's verdict on the substantive gang offense (count 3).
A. Background
Assuming a hypothetical mirroring the facts of the instant case, Officer Saldivar opined that the robbery was committed for the benefit of and in association with the Norteno criminal street gang. He explained that the crime was committed by a well-documented Norteno gang member (Motshwane) with two other Livas Nortenos from Livingston (Maldonado and Lorenzo), and an undocumented Norteno (Kelly). Officer Saldivar added that "[t]his could be an initiation process, getting them their status within the gang."
Officer Saldivar maintained that because proceeds from the home invasion would be funneled back to the gang, the crime would also benefit the gang financially. He explained that the crime was also committed in association with the Norteno street gang because different documented members of the gang had conspired to commit the robbery and then worked together to commit the crime.
B. Legal Principles
On review for sufficiency of the evidence supporting a conviction, we must" 'examine 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 that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.'" (People v. San Nicolas (2004) 34 Cal.4th 614, 657658.)
We must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "The same standard applies when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) "Given this deferential standard of review, a 'defendant bears an enormous burden in claiming there is insufficient evidence' to support a conviction." (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.)
Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Daugherty (1953) 40 Cal.2d 876, 885; People v. Hicks (1982) 128 Cal.App.3d 423, 429.) Thus, the reviewing court must affirm if any reasonable jury could have found sufficient evidence to sustain the conviction, even if the court might have reached a different conclusion if it had been the initial factfinder. (People v. Latham (2012) 203 Cal.App.4th 319, 334.) "The existence of a mere conflict in the evidence provides no basis for reversal" and is resolved in favor of the judgment. (Ibid.)
C. Analysis
1. The Criminal Street Gang Enhancement (§ 186.22, subd. (b))
Section 186.22 provides for a gang enhancement when a defendant is convicted of an enumerated felony committed "for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1).)
"The evidence must establish both of the two prongs to the gang enhancement under section 186.22, subdivision (b)(1)." (People v. Perez (2017) 18 Cal.App.5th 598, 606.)" 'First, the prosecution is required to prove that the underlying felonies were "committed for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22[, subd.](b)(1).) Second, there must be evidence that the crimes were committed "with the specific intent to promote, further, or assist in any criminal conduct by gang members." '" (People v. Perez, at p. 606, citing People v. Rios (2013) 222 Cal.App.4th 542, 561.)
Section 186.22 does not require that the defendant be an active or current member of the criminal street gang that benefits from his crime. (See People v. Sanchez (2016) 63 Cal.4th 665, 698-699; accord, People v. Bragg (2008) 161 Cal.App.4th 1385, 1402; and, In re Ramon T. (1997) 57 Cal.App.4th 201, 207.)
Here, whether Kelly was a full-fledged Norteno gang member or merely an associate of the gang, the evidence adduced at trial demonstrated that he had conspired with and then executed the home invasion with active Norteno gang members. Moreso, the trial evidence showed that Kelly and his accomplices acted in concert to accomplish the robbery, with Maldonado and Motshwane presumably acting as lookouts, and Kelly acting as one of the direct perpetrators of the robbery and a getaway driver. From this evidence, the jury could reasonably conclude that Kelly acted in association with members of the Merced-area Norteno street gang. (See e.g., People v. Vega-Robles (2017) 9 Cal.App.5th 382, 425 [concluding that a defendant, who was not a gang member, acted "in association" with members of a gang, where mutually beneficial arrangement allowed the defendant to use the gang's network to promote his drug trafficking operations], disapproved on other grounds by People v. Valencia (2021) 11 Cal.5th 818.) The jury could conclude that based upon his participation in the home invasion, Kelly might obtain either proceeds from the robbery, initiation into the gang, or both.
There was also substantial evidence that Kelly acted with the intent "to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b); People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [the "specific intent to benefit the gang is not required. What is required is the 'specific intent to promote, further, or assist in any criminal conduct by gang members....' "].) The specific intent to promote, further, or assist in criminal conduct by gang members" 'usually must be inferred from the facts and circumstances surrounding the offense'" and is rarely" 'susceptible of direct proof.'" (People v. Rios, supra, 222 Cal.App.4th at pp. 567-568.)
The circumstantial evidence demonstrated that Kelly knew that his accomplices, whom he referred to as his "little homies," were active Nortenos. Motshwane was a well-known Norteno, and although Lorenzo and Maldonado had not achieved the same notoriety as Motshwane, substantial evidence demonstrated that they were also active Norteno gang members. Notably, when they were detained fleeing from the crime, Maldonado was wearing clothing signifying his affiliation with the Nortenos, including, a red Cincinnati Reds baseball logo T-shirt and red and black shoes. The prosecutor's gang expert testified that Norteno gang members would only commit a crime with trusted individuals, such as those who were being taken under the wing of the gang. Based upon the circumstantial evidence, the evidence demonstrates that Kelly acted with the specific intent to "assist in criminal conduct by gang members.'" (§ 186.22, subd. (b).)
We are persuaded that the evidence was sufficient to support the jury's true finding on the criminal street gang enhancement. We find Kelly's assertion to the contrary unpersuasive.
2. The Substantive Gang Offense (§ 186.22, subd. (a))
The substantive gang offense under section 186.22, subdivision (a) criminalizes "actively participating] in [any] criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and .. .willfully promoting], furthering], or assisting] in any felonious criminal conduct by members of that gang." (§ 186.22, subd. (a).) Subdivision (a) of section 186.22 includes three elements: (1) active participation in a criminal street gang; (2) knowledge the gang's members have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance of any felonious criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.)
"A person who is not a member of a gang, but who actively participates in the gang, can be guilty of violating section 186.22[, subd. ](a)." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130, citing § 186.22, subd. (j).) However, their involvement in the gang must be "more than nominal or passive." (People v. Castenada (2000) 23 Cal.4th 743, 747.)
Kelly contends there was insufficient evidence to support his conviction upon the substantive gang enhancement. Although the issue is close, we agree with Kelly.
Kelly had no known gang moniker, no documented prior contacts with other gang members, and no prior convictions for gang-related offenses. Contrary to the Attorney General's assertion, Kelly's "OTM" tattoo was not definitely proven to be gang related, much less specific to the Norteno street gang. Further, Kelly's use of the phrase "little homies" to describe his accomplices and his unwillingness to "snitch" by identifying the other participants in the home invasion, was not shown to be terminology that is unique to gang members.
The only evidence supporting the conclusion that Kelly was involved in the Norteno street gang was his participation in the instant offense. Sergeant Barajas opined that Norteno gang members would not commit a crime with non-members of the gang and suggested that the instant offense may have been a gang initiation. On crossexamination, however, he conceded that he had no information that the crime was in fact a gang initiation. Officer Saldivar also testified that the fact that Kelly's participation in the crime with three other Nortenos showed that he was "being taken under the wing of the gang," and that he's "a trusted person within the gang." While this testimony is significant to show that Kelly knew his accomplices were active Nortenos, we are not persuaded, without more, that it is sufficient to prove his active participation in the gang.
The prosecutor was not required to prove that Kelly was an active member of the gang. (See People v. Ware (2022) 14 Cal.5th 151, 165, quoting People v. Rodriguez, supra, 55 Cal.4th at p. 1130 [under the gang statutes," '[m]ere active and knowing participation in a criminal street gang is not a crime' "].) He was however required to show that Kelly's participation in the gang was more than "nominal" or "passive." (See People v. Castenada, supra, 23 Cal.4th at p. 747.) Conduct that is more than nominal or passive has been demonstrated where the defendant has current, comprehensive knowledge of the gang's inner workings, combined with expert testimony that gang members would not discuss the inner workings of the gang with non-members. (See People v. Garcia (2007) 153 Cal.App.4th 1499, 1511.) Additionally, evidence showing the defendant was previously contacted in the company of known gang members, was in possession of gang paraphernalia, and committed the charged offense with other known gang members, established active participation in the gang. (See People v. Lara (2017) 9 Cal.App.5th 296, 334.) Beyond his participation in the current offense, no additional evidence of Kelly's participation in the gang was presented here.
While the home invasion may in fact have been Kelly's initiation into the gang, "a mere possibility is not sufficient to support a verdict." (People v. Ramon (2009) 175 Cal.App.4th 843, 853.) We decline to infer, without any further evidence of Kelly's gang association, that he was more than nominally or passively involved with the gang solely based upon the witness's testimony that Norteno gang members only commit crimes with other Nortenos, or individuals who are otherwise trusted by the gang. We will therefore vacate Kelly's conviction on count 3 for active participation in a criminal street gang.
III. Kelly Was Not Convicted on Count 2
Kelly contends that if the jury returned a verdict on count 2 for robbery, the conviction must be reversed because it is a lesser-included offense of robbery in concert (count 1). The record shows that the jury did not return a verdict on count 2. Although the trial court originally sentenced Maldonado on count 2, the minute order dated December 16, 2022, shows that the court recognized its error and subsequently dismissed count 2.
Generally, the oral pronouncements of the trial court are presumed correct. (See People v. Thompson (2009) 180 Cal.App.4th 974, 978.) Under certain circumstances, however, the minute order and abstract of judgment may prevail over contrary statements in the reporter's transcript. (See People v. Cleveland (2004) 32 Cal.4th 704, 768; People v. Smith (1983) 33 Cal.3d 596, 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216 [" 'whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case' "].) Such circumstances are present here, where the minute order demonstrates that the court clearly intended to correct the fact that it had erroneously imposed a sentence on count 2. Based upon the foregoing, we conclude that there is no need to reverse this count.
In light of our conclusion that the jury did not render a verdict on count 2, Kelly's additional claim that count 2 is a lesser included offense of robbery in concert (count 1), and thus, should be reversed, is moot.
DISPOSITION
The jury's verdict on count 3 is reversed. In all other respects, the judgment is affirmed.
[*] Before Levy, Acting P. J., Detjen, J. and Smith, J.