California Court of Appeals, First District, Second Division
Costa County Superior Court No. 05-12-00815 Honorable Susanne
M. Fenstermacher Trial Judge.
Attorneys for Plaintiff and Respondent: Kamala D. Harris,
Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney
General, Catherine A. Rivlin, Supervising Deputy Attorney
General, and Roni Dina Pomerantz, Deputy Attorney General.
Attorneys for Defendant and Appellant: Stephen B. Bedrick,
under appointment by the Court of Appeal
CERTIFIED FOR PARTIAL PUBLICATION
evening of December 13, 2008, Jane Doe stepped out of her car
and met defendant Humberto Salvador and three other men, who
dragged her into a brutalized nightmare. For his
participation, defendant was convicted of 15 felonies with 98
enhancements,  and sentenced to 425 years and four
months to life in state prison. Defendant contends the
testimony of the prosecution's expert on criminal street
gangs was based on improper hearsay material, and that
defendant's cross-examination was unduly restricted.
Defendant also contends the trial court erred when it
instructed the jury that defendant's possible
intoxication was not relevant to the issue of whether he
formed the specific intent required for conviction on the
kidnapping counts and two other charges where he was alleged
to have aided and abetted others. Finally, defendant contends
the trial court erred when it imposed consecutive ten-year
gang enhancements terms on the ten counts carrying
indeterminate life terms under section 667.61, the so-called
“One Strike” law.
reconsidered defendant's first contention in light of
People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez), we conclude there was some improper
expert testimony heard by the jury, but it was harmless. We
further conclude that all other claims of trial error are
without merit. In the published portion of this opinion, we
conclude that the inescapable logic of People v.
Lopez (2005) 34 Cal.4th 1002 establishes that the gang
enhancements are not authorized by section 186.22, and must
be stricken. We remand for resentencing, but otherwise affirm
the judgment of conviction.
parties' briefs disclose a thorough knowledge of the
trial record. Defendant does not contend the evidence in that
record is insufficient to support any of his convictions.
Defendant did not testify or call witnesses on his behalf,
thus narrowing the scope for clash or differing
interpretation. In any event, most of the salient details are
not in material dispute, so not every detail need be
reiterated here. The following narrative abbreviates the
trial record in the light most favorable to the prosecution
and in support of the judgments. (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
was a senior member of the Sureno criminal street gang, who
lived in Richmond. On the evening of December 13, 2008, Josue
Gonzalez was in San Rafael, on his way to church, when he
received a telephone call from defendant, who said:
“Let's go do a couple of carjack[s], licks
[break-ins, robberies].” Gonzalez changed his plans,
and telephoned Darryl Hodges and Robert Ortiz-both of whom
Gonzalez had been instructing about gang rules and
practices-to meet him in Richmond. Gonzalez had been a Sureno
for nine years, but was still only a junior member of
Surenos, so he felt he had no choice but to obey defendant.
Hodges (age 16) and Ortiz (age 15) wanted to become Surenos,
and thus would have even less inclination to disobey
defendant. Gonzalez, Hodges, and Ortiz had
previously gone carjacking with defendant. Gonzalez, Hodges,
and Ortiz met defendant in Richmond which, because it was
“his neighborhood, ” increased defendant's
authority. They drank beer, and set out. They broke into a
number of cars, but “just took what was inside.”
The four were congregated by one of those vehicles when the
victim drove up.
victim testified that when she drove up to her Richmond home
after work, she noticed a group of four men-three Latino and
one Black-standing near a parked car. After she parked her
car, she called her father on a cell phone
“[b]ecause... I was scared.” While she was
talking to her father, and walking to her house,
defendant approached, and, in Spanish, demanded
money and her keys. The victim told the man she had no money.
Defendant grabbed the phone, smashed her head with a
flashlight, and repeated “give me everything you
have.” The victim surrendered her money, wallet, and
keys, but refused defendant's demand that she take off
her clothes. After being hit for a second time in the head
with the flashlight, she began disrobing.
her underwear, the victim hesitated to go further until
defendant “lifted his hand up as if he were going to
hit me again if I didn't take it off.” When the
victim was naked, defendant ordered her to “get on the
ground.” After Gonzalez picked up the victim's
clothing, defendant-in the victim's words-“started
to touch me from behind.” Defendant then digitally
penetrated her anus for two or three minutes, ignoring her
protest that it was hurting her. Defendant then told her get
up, marched her over to her car, and told her to get
the victim handed over her car keys, defendant had thrown
them to Ortiz. Ortiz stayed in the car with Hodges and
Gonzalez until defendant brought over the victim to her car,
and commanded Ortiz to start the engine. Once the car was
underway, with the victim in the middle of the back seat,
defendant told the driver (Ortiz), “Take us somewhere
where all of us can have a good time.” Defendant asked
the victim “if I liked men.” “I told him
yes” because “I thought he would kill
me....” After defendant “asked me if I was sure
that I liked men, ” he told her “that if I did
like men that I needed to show him.” Defendant
unbuttoned his pants, and said, “Give me some
victim testified that defendant asked her did she “like
dick.” Defendant “grabbed me by the head and
pushed me towards his part, ” and forced her to put her
mouth over his erect penis. “He... told me we were
going to go to a place to have fun.” Gonzalez heard
defendant say “You like it you know. Do you like
about five blocks, the car stopped at the abandoned home of a
Sureno in “a burned-out apartment complex.” After
her car had been driven into the carport, defendant ordered
the naked victim out. Once out of her car, defendant
“told me to bend over, ” and then “[h]e
penetrated me” “[i]n the backside.”
“I yelled, and I told him that it hurt me, ”
whereupon defendant taunted: “See, you like men.
I'm going to set you straight.” And, “You
like boys. Tell me you like boys.”
then ordered the victim underneath an exterior staircase.
Again she was sodomized on her feet, while defendant kept
asking “if I was sure that I liked men.” While
still standing behind the victim, defendant raped her. While
doing so, he again inquired “[w]hether... I liked
it.” Defendant ordered the victim to her knees and to
orally copulate him again. His comments this time were
“whether... I liked men and that I should show him that
I did, ” and “You like sucking dick, don't
you?” When finished, defendant told Gonzalez
“It's your turn next.” Gonzalez refused, but
Ortiz did not, forcing the victim to orally copulate him.
Defendant and Gonzalez drove away in the victim's car,
about the time Hodges was forcing the victim to orally
victim's ordeal ended when Ortiz and Hodges left on foot.
Disregarding their command not to move, she ran to a nearby
home, and police were summoned.
drove himself and Gonzalez for a number of blocks, when they
abandoned the victim's car. Defendant's pants and
shirt were soaked in blood. He removed them, and set them
afire in the middle of the sidewalk. Defendant and
Gonzalez were picked up by a cousin of defendant, who drove
them away. Gonzalez told the jury that rape was not tolerated
by the Surenos: the prohibition against it was almost as
strong as the ban on snitching.
DNA was found in swabs taken from the victim. Defendant's
fingerprints, and the victim's blood, were found on the
flashlight that was found in the victim's car.
Police Detective Reina was one of the two prosecution expert
witnesses who testified during the prosecution's
case-in-chief on criminal street gangs, including the Central
Side Locos (), a subset of the Surenos. Reina testified that
“CSLs were formed... in the early ‘90s”;
that defendant was one of “the founding
individuals”; that in about 2000 “their numbers
started to diminish, started to decline. In 2008, they had
approximately... ten members”; and that “in
December of 2008” the CSLs were one of “the
subsets... of the Sureno criminal street gang” that
were “operating together under the umbrella of
Surenos.” In Reina's opinion, the CSLs met the
statutory definition of a criminal street gang,
and defendant was an active participant, as were Ortiz and
following occurred on Reina's cross-examination:
So it's fair to say that... you're not sure who [of
the CSLs] was around in 2008?
SMITH: Objection. Misstates his testimony.
Well, who was around in 2008 other than my client and his two
brothers that you know were there and around in 2008?
SMITH: Objection. Relevancy.
FULLERTON: It goes to the whole gang thing. I mean, if there
were members that were actually-
COURT: Come forward.
an off-the record discussion was held at sidebar between
Court and counsel.)
When you were talking about the 50 early on, you said that a
lot of those people have gotten locked up, correct?
Yeah, some of them did get locked up, yes.
And some of them just moved out of the gang life?
Some moved out of the area maybe and went to a gang life
And that left you, and correct me if I'm wrong, with 10
active gang members on the street in 2008?
SMITH: Objection. Compound.
How many active gang members of CSL were on the street in
SMITH: Objection. Relevancy.
WITNESS: Approximately 10.
And of those approximate 10, the three that you know about
for sure are my client and his two brothers, correct?”
other expert was San Pablo Police Sergeant Palmieri, who
worked with Reina in collecting information about the CSL in
Richmond. Sergeant Palmieri did not reiterate Detective
Reina's testimony; his apparent allotted role was to
answer hypothetical questions as to whether the repugnance
for rape (see text accompanying fn. 7, ante) could
be overridden by gang discipline and respect for hierarchy
that would compel junior gang members to participate, not
challenging the conduct and orders of a senior member, thus
making the junior members active participants in an offense
committed “for the benefit of, in association with, or
at the direction of a criminal street gang.”
called no witnesses on his behalf.
counsel's closing argument to the jury essentially
conceded many of the substantive crimes alleged but insisted
that defendant was a solo actor. Thus, by challenging whether
there was sufficient credible evidence that Gonzalez, Ortiz,
and Hodges had the mental state to be aiders and abettors,
counsel hoped to persuade the jury the crimes had not been
committed in concert, and not for a hate-motivated or
gang-related purpose. And the blows ...