(Super. Ct. No. SF106859B)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was convicted by a jury of first degree murder (Pen. Code, § 187), attempted robbery (id. § 664/211), and active participation in a criminal street gang (id. § 186.22, subd. (a)). (Further undesignated section references are to the Penal Code.) The jury also found the murder was committed during the attempted robbery (§ 190.2, subd. (a)(17)(A)), both the murder and the attempted robbery were committed for the benefit of a criminal street gang (§§ 186.22, subd. (b), 190.2, subd. (a)(22)) and a principal in the offenses discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)).
On the murder conviction, defendant was sentenced to life without the possibility of parole (LWOP) plus consecutive terms of 25 years to life and 10 years for the firearm discharge and gang enhancements respectively. On the attempted robbery, defendant received a consecutive, one-third middle term of one year, plus enhancements of 25 years to life and 10 years for the firearm discharge and gang enhancements, to run concurrently to the terms on the murder charge. Finally, on the gang offense, defendant received a concurrent middle term of two years.
Defendant appeals contending: (1) the trial court erred in denying his motion for mistrial after a prosecution gang expert presented improper testimony; (2) he received ineffective assistance of counsel when his attorney elicited testimony from a witness suggesting, incorrectly, that another witness had provided damaging testimony during the preliminary hearing; (3) there is insufficient evidence to support the robbery special circumstance; (4) there is insufficient evidence to support the gang charge and enhancements; (5) the jury was not properly instructed on the gang special circumstance; (6) the jury was not properly instructed on the firearm enhancement; (7) the LWOP sentence constitutes cruel and unusual punishment; (8) the 10-year gang enhancements were improperly imposed in addition to the 25-to-life firearm enhancements; and (9) the court was required to stay the sentences on the attempted robbery and gang charges.
We agree with defendant that the gang special circumstance findings on the murder and attempted robbery offenses must be reversed due to instructional error, the gang enhancements on those offenses must be stricken because they cannot be imposed in addition to the firearm use enhancements, and the separate punishments for the robbery and gang charges must be stayed pursuant to section 654. In all other respects, we affirm the judgment.
On the afternoon of December 9, 2007, defendant, Jose Cardenas, Martha M., and Carina G., along with several others, attended a gathering at the home of Jose P. in Stockton. All of the attendees were members of the Surenos criminal street gang. Defendant and Cardenas were members of the Vickystown subset of the Surenos, while Martha and Carina were members of the Playboys subset.
Cardenas, Martha M. and Carina G. arrived in a car driven by Carina, who parked in an alley behind Jose P.'s home. Defendant arrived separately. At some point during the afternoon, defendant and Cardenas stood among a group of men who were passing around a handgun. Defendant had the gun in his pocket or waistband either before or after it was passed around.
Later in the afternoon, Cardenas, Martha and Carina got into Carina's car to leave and were waiting for defendant to join them. About that time, 19-year-old Francisco Montejo walked passed them down the alley talking on a cell phone. Cardenas made a comment to the effect that he liked the man's phone and should take it from him. A couple of minutes later, Cardenas asked to be let out of the car and walked to the back of it. Defendant joined him there and they talked for a couple of minutes. The two then walked up the alley in the direction of Montejo.
Defendant and Cardenas approached Montejo and announced they were Surenos. Cardenas held Montejo at gunpoint, while defendant attempted to search him. However, before defendant could take anything, Cardenas shot Montejo in the chest.
Defendant and Cardenas fled and shortly thereafter were picked up by Carina G. and left the area. Montejo later died from the bullet wound.
Defendant and Cardenas were charged with murder, attempted robbery and active participation in a criminal street gang, along with various special circumstances and enhancements, as described above. They were tried together before separate juries. Defendant was convicted as charged and sentenced as previously indicated.
During cross-examination of the prosecution's gang expert, Officer James Ridenour, counsel for co-defendant Cardenas asked how the offenses charged in this matter could have benefited the Surenos gang in light of the fact the defendants had not been wearing gang clothing, they did not flash gang signs, and no graffiti was produced proclaiming responsibility. Ridenour answered:
"Since this crime has happened, all the way up Cinco de Mayo, or actually it was May 3rd of this year, when I have talked to Norteno gang members, especially on May 3rd, I actually stopped and talked to them on the alley off Charter, okay, this alley that enters off MLK is actually a spot I stopped and talked to this kid. We were just talking and I was asking him what was going on with his gang, what's going on with the fighting, has he been shot at lately, has he been--what's going on with him, the Nortenos, with the Nortenos and Surenos. We talked for a while, and I said--."
At that point, counsel for defendant objected on hearsay grounds, and counsel for Cardenas objected that the answer was not responsive to the question. The trial court overruled the objections.
Ridenour continued: "We talked for a while, and he said the Surenos are starting to step it up. I asked him what he meant by that."
Counsel for Cardenas again objected, this time based on Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). The trial court again overruled the objection.
Ridenour then completed his answer: "And he said they are starting to step it up and that they have been killing a lot of us lately. I said, what are you talking about, and he said they killed their own people here in the alley a couple of years ago. During that same year, they were driving around in a truck just shooting Nortenos like they were nothing, and then they were talking about the homicide that happened at AM/PM, when they stabbed and shot the guy at AM/PM. He said they're just stepping up. They're not playing no more with us, they're trying to make a move. That's one way.
"I have also talked to citizens in that area, right after this homicide happened, a couple of months, and since then going through that area, asking them--I see people standing, mowing their yards and stuff like that, I just ask them what the neighborhood is like, they tell me they're tense, they're tense because of the shootings, they're tense because--and they say both Nortenos and Surenos, both Nortenos and Surenos seem like they are getting more violent, they're shooting people in the alley, they're shooting people in the streets."
At that point, counsel for defendant objected that the answer was not responsive and asked that it be stricken and to approach the bench. After an unreported bench conference, questioning moved on to other matters.
At the next break, counsel for defendant moved for a mistrial. Counsel indicated that, while the answer may have been responsive to the question, defendant "shouldn't be saddled with bad questions" asked by a co-defendant's counsel. Cardenas's counsel again asserted the testimony violated Crawford.
The trial court denied the motion. The court explained the question was legitimate and the answer was responsive, but "probably went too far." The court indicated the answer did not suggest that either defendant was involved in the other crimes described by the officer but instead the reference was to Sureno crimes in general.
Defendant contends admission of the foregoing testimony was so prejudicial as to render his trial fundamentally unfair, in violation of state and federal due process. He argues the trial court therefore erred in denying his motion for mistrial. Of course, implicit in this argument is that the trial court erred in overruling counsels' objections to the testimony in the first place. Defendant raises a number of separate arguments in this regard, including a claim that admission of the evidence violated his constitutional right of confrontation as recognized in Crawford.
Inexplicably, the People respond only to this Crawford argument, thereby apparently conceding the others. However, we do not accept that implicit concession and shall consider each argument in turn.
Defendant first contends the court erroneously reasoned there was no prejudice from the foregoing testimony because it was not directed at him personally, but only at the Surenos gang generally. He points out: "The unidentified Norteno directly referred to the charged crimes ('they killed their own people here in the alley a couple of years ago'). Similarly, the neighbors' statements that they were tense because of the 'shootings' was solicited from those witnesses by Ridenour 'right after the homicide happened.' " Defendant argues the unidentified Norteno stated "they killed" rather than "they accidentally shot" the victim, thereby going to "one of the most hotly disputed issues in the trial."
The foregoing arguments do not suggest any misuse of the indicated testimony. The question asked of Officer Ridenour was how the gang could benefit from the crime. The fact that people on the street were aware of the crime and that it was perpetrated by Surenos answered that question. The fact neighbors may have been tense following the crime is no surprise, since tension and anxiety is exactly what such gang crimes are intended to create. Officer Ridenour was essentially explaining how the crimes caused their intended result. There is no suggestion either defendant was tied to any of the other described crimes.
Defendant also takes issue with the trial court's suggestion that he would not be prejudiced by the mention of other crimes committed by Surenos in general. He argues: "It is well established that improperly admitted gang evidence creates a substantial danger of undue prejudice precisely because it creates a risk that the jury will improperly infer that the defendant has a criminal disposition."
Defendant cites as support People v. Cardenas (1982) 31 Cal.3d 897 (Cardenas), where the Supreme Court found an abuse of discretion under Evidence Code section 352 in the admission of evidence that the defendant and several of his witnesses were members of the same criminal street gang. In that case, there were no gang charges; the evidence was admitted instead to show bias of the witnesses. The high court concluded such evidence was cumulative in light of other evidence showing the close relationship between the defendant and the witnesses. Hence, the minimal probative value of the evidence was outweighed by its prejudicial effect. (Cardenas, at pp. 904-905.)
Cardenas is clearly inapposite. The court there concluded the evidence was improperly admitted under Evidence Code section 352 because its slight probative value was outweighed by its prejudicial effect. Defendant here did not raise an Evidence Code section 352 objection, so there was no occasion for the trial court to weigh probative value against prejudicial effect. Defendant did not initially object to the evidence as unduly prejudicial. He asserted it should be excluded because it was hearsay and not responsive.
Defendant's argument that "improperly admitted gang evidence creates a substantial danger of undue prejudice" merely begs the question of whether the evidence was improperly admitted. And while improperly admitted evidence could create a substantial danger of prejudice, so too could properly admitted evidence.
"The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay." (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209.) "Evidence Code section 801 permits an expert to testify to an opinion '[b]ased 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, unless an expert is precluded by law from using such matter as the basis of his opinion.' (Evid. Code, § 801, subd. (b) . . . .)" (People v. Coleman (1985) 38 Cal.3d 69, 90 (Coleman), disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.)
The questioning by defense counsel went to the expert's opinion that the shooting of Montejo was for the benefit of the Surenos gang. Ridenour was asked an open-ended question about how the crime could have benefited the gang, thus inviting an open-ended answer. Ridenour explained how the public, and the Nortenos in particular, came to view the crime as part of an increase in violent criminal activity by the Surenos. The answer was responsive.
Defendant argues evidence of other crimes committed by someone else, such as the AM/PM stabbing and shooting mentioned by Ridenour, is not admissible to prove defendant's guilt of the charged offenses. However, while that may be true as far as it goes, the evidence here was not admitted to prove defendant committed the offense but to prove that such offense was for the benefit of the gang. Defense counsel's questioning suggested no such connection existed and challenged the witness to explain otherwise. The witness did so by indicating word on the street was that the murder was part of a pattern of increased gang violence.
Defendant next contends "an expert 'may not under the guise of reasons bring before the jury incompetent hearsay evidence,' " quoting from Coleman, supra, 38 Cal.3d at page 92. According to defendant, "[i]n cases 'where the risk of improper use of the hearsay outweighs its probative value as a basis for the expert opinion it may be necessary to exclude the evidence altogether.' " Defendant argues this is such a case, because the trial court placed no restriction on the jury's use of the evidence. Hence, the jury was not restricted to using the evidence only to test the basis of the expert's opinions.
In Coleman, the high court cautioned: "California law gives the trial court discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness as a partial basis for his opinion against the risk that the jury might improperly consider it as independent proof of the facts recited therein." (Coleman, supra, 38 Cal.3d at p. 91.) The court continued: "[W]hile an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. [Citation.] Ordinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis of the opinion and not for the truth of the matter cures any hearsay problem involved, but in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem." (Id. at p. 92.) Finally, the court stated: "[T]he trial court must exercise its discretion pursuant to Evidence Code section 352 in order to limit the evidence to its proper uses. The exercise of this discretion may require exclusion of portions of inadmissible hearsay which were not related to the expert opinion. [Citation.] Or it may be necessary to sever portions of the testimony in order to protect the rights of the defendant without totally destroying the value of the expert witness' testimony. [Citation.] In still other cases where the risk of improper use of the hearsay outweighs its probative value as a basis for the expert opinion it may be necessary to exclude the evidence altogether." (Id. at pp. 92-93.)
Defendant's argument that an expert may not present incompetent hearsay evidence under the guise of explaining the basis for his opinions again begs the question of whether this was incompetent hearsay evidence. Likewise as to defendant's further argument that an expert cannot base an opinion on unreliable hearsay. Defendant asserts "[s]tatements made to police by victims and witnesses are not considered trustworthy." However, these are the very things gang experts are reasonably expected to rely upon. In this instance, for example, how else would Officer Ridenour have learned about the perception in the community regarding the charged crime. While the hearsay evidence may not have been admissible to prove a stabbing and shooting occurred at an AM/PM, it would nevertheless be admissible to show how the public viewed the charged crime in context, thereby supporting the expert's opinion that the crime was gang-related. Defendant points to nothing to suggest the indicated information was any more or less competent or reliable than other such evidence routinely relied upon by gang experts.
Lastly, defendant contends introduction of the hearsay evidence violated his right of confrontation. "In all criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, 'to be confronted with the witnesses against him . . . .' " (People v. Thomas, supra, 130 Cal.App.4th at p. 1208.) "In Crawford, the Supreme Court held that out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant." (Ibid.)
The People contend defendant has forfeited this argument by failing to object below on the basis of Crawford. However, because the issue was raised by co-counsel, we conclude it is properly before us.
The initial question in any Crawford analysis is whether the out-of-court statements were testimonial in nature. The United States Supreme Court did not provide a comprehensive definition in Crawford of what would be considered testimonial, but did provide the following examples: (1) " 'ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' " and (2) "statements . . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (Crawford, supra, 541 U.S. at pp. 51-52 [158 L.Ed.2d at p. 193].)
There can be no reasonable dispute that the statements at issue here fall outside the examples mentioned by the United States Supreme Court. These were not custodial examinations of percipient witnesses to the crimes but merely general statements regarding the word on the street as to the effect of the crimes. There is nothing to suggest the individuals questioned by Officer Ridenour would reasonably have expected their comments to be used in court.
Defendant cites United States v. Mejia (2d Cir. 2008) 545 F.3d 179, to support his contention that the statements at issue here were testimonial. However, Mejia is clearly inapposite, as it involved an expert who was also the investigating officer in the case and who recited to the jury information that was obtained from a gang member who had been interrogated while in police custody. (See id. at p. 199.)
" 'Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned.' [Citations.] 'The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay. [Citations.]' [Citation.] . . . [A]dmission of expert testimony based on hearsay will typically not offend confrontation clause protections because 'an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion.' " (People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154.)
The question here is whether the trial court erred in denying defendant's motion for mistrial. "In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard. [Citation.] 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)
Any prejudice to defendant was minimal, inasmuch as the expert recounted other Surenos crimes as the basis for his opinion that a primary purpose of the gang was committing crimes.
Furthermore, contrary to defendant's assertions, this was not a close case. Defendant relies on his own self-serving statements to police that he tried to talk Cardenas out of the crime and only followed behind him as he approached the victim. But even accepting this as true, the fact remains that, after defendant was unable to talk Cardenas out of it, he accompanied Cardenas up the alley knowing full well Cardenas's intent. Other evidence also shows defendant readily participated in the crime thereafter.
We conclude the trial court did not abuse its discretion in denying defendant's motion for mistrial.
During her trial testimony, Martha M. testified that, when defendant and Cardenas returned to Carina's car after the shooting, they were laughing. She also acknowledged telling the police that, when defendant and Cardenas got into the car, they were a little jumpy as if they were in shock. She further testified nobody said anything in the car about anyone being shot and claimed not to remember telling police otherwise. She did not testify that defendant said anything about going through the victim's pockets before the shooting.
During the defense case, counsel for defendant questioned Detective Rodriguez about his interview of Martha M. and Carina G. Rodriguez testified that both Carina and Martha told him that when Cardenas got back in the car he said he thought he shot someone. He further testified that they confirmed this in their preliminary hearing testimony. Rodriguez indicated Martha did not say anything to him about hearing defendant say he went through the victim's pockets before the shot. Counsel then continued along this line:
"BY [counsel for defendant]: Q. You had a discussion with Martha [M.] ...