People v. Gonzalez CA2/2 ( 2022 )

Filed 11/9/22 P. v. Gonzalez CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302834
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA100818)
v.
RICARDO GONZALEZ et al.,
Defendants and
Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Mark C. Kim and Judith L. Meyer, Judges.
Affirmed in part; vacated in part and remanded with directions.
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant Ricardo Gonzalez.
Laura S. Kelly, under appointment by the Court of Appeal,
for Defendant and Appellant Carlos Alexis Escalante.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Defendants and appellants Ricardo Gonzalez and Carlos
Alexis Escalante1 were convicted of the murder of Enrique Lopez,
Jr. (Pen. Code, § 187, subd. (a))2 (count 1), attempted murder of
David Osuna (§§ 664, 187, subd. (a)) (count 2), and attempted
murder of Jerry Frazier (§§ 664, 187, subd. (a)) (count 4). As to
count 1, the jury found true two special circumstance
allegations—that the murder was perpetrated by means of
discharging a firearm from a motor vehicle at persons outside the
vehicle with the intent to cause death (§ 190.2, subd. (a)(21)) and
that defendants killed Lopez, Jr., while they were active
participants in a criminal street gang and to further the activities
of the gang (§ 190.2, subd. (a)(22)). As to counts 1, 2, and 4, the
jury found true allegations that defendants committed the offense
for the benefit of a gang (§ 186.22, subd. (b)) and that a principal
discharged a firearm causing great bodily injury (§ 12022.53,
subds. (d), (e)(1)). The jury also convicted Gonzalez of
transportation for sale of a controlled substance (Health & Saf.
Code, § 11379, subd. (a)) (count 8) and possession of a controlled
1 Gonzalez and Escalante are referred to collectively as
defendants.
2 All further statutory references are to the Penal Code
unless stated otherwise.
2
substance with a firearm (Health & Saf. Code, § 11370.1, subd.
(a)) (count 9).3
Gonzalez was sentenced to life without parole (LWOP) plus
55 years to life. Escalante was sentenced to LWOP plus 30 years
to life.
Defendants appeal from the judgments. They contend the
trial court erred by (1) improperly admitting into evidence
statements defendants made to undercover agents during a
Perkins4 operation; (2) improperly admitting into evidence
defendants’ hearsay statements implicating each other in the
crimes; (3) improperly limiting discovery and testimony about the
Perkins operation; (4) committing prejudicial judicial misconduct
during jury selection; (5) committing prejudicial judicial
misconduct during a defense expert witness’s testimony, and then
3 An amended 14-count information charged defendants with
offenses arising from three separate shooting incidents and
certain drug-related offenses. Counts 1 through 5 involved a
shooting on May 26, 2014, that is the subject of this appeal.
Counts 6, 7, and 10 involved a shooting on October 23, 2014.
Counts 8 and 9 involved controlled substance charges. Counts 11
through 14 charged only Gonzalez and involved a shooting on
October 17, 2014.
The jury returned a not guilty verdict on count 5 (the
attempted murder of Juan Cortez, who was present during the
May 26, 2014 shooting) and deadlocked on count 3 (attempted
murder of Enrique Lopez, Sr., also present during the May 26,
2014 shooting) and counts 6, 7, 10, 11, 12, 13 and 14. The trial
court dismissed counts 6, 7, 10, 11, 12, 13 and 14.
4 In a “Perkins operation,” a suspect is placed in a cell with
an undercover agent and their conversation is audio recorded.
(See Illinois v. Perkins (1990) 496 U.S. 292.)
3
improperly presiding over Escalante’s new trial motion; and (6)
improperly instructing the jury with CALCRIM No. 315, and
then allowing the prosecutor to make misleading statements
about that instruction. Defendants further contend (7) the
prosecution’s proof of the gang predicate offenses violated section
186.22, as amended by Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (Assembly Bill 333), as well as the hearsay rule and the
confrontation clause; (8) section 1109, which became effective on
January 1, 2022, and allows a defendant to request bifurcation of
a gang enhancement allegation from the underlying offense,
applies retroactively and requires a new trial on the murder and
attempted murder charges; (9) defendants’ LWOP sentences
violate equal protection, Escalante was denied a proper Franklin5
hearing, and his counsel’s failure to present mitigating evidence
constituted ineffective assistance of counsel; (10) defendants’
LWOP sentences constitute cruel and unusual punishment; (11)
the driveby shooting special circumstance is unconstitutional;
(12) the cumulative errors were prejudicial; and (13) Escalante is
entitled to additional presentence custody credit.
The Attorney General concedes that under Assembly Bill
333, the gang sentence enhancements under section 186.22,
subdivision (b) and the gang firearm enhancement under section
12022.53, subdivision (e)(1) must be vacated and that Escalante
is entitled to additional presentence custody credit. We therefore
vacate the gang enhancement findings under section 186.22,
subdivision (b), and the gang firearm enhancement finding under
section 12022.53, subdivision (e)(1) under counts 1, 2, and 4;
remand for the People to elect to retry those allegations under
5 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
4
Assembly Bill 333; and direct the trial court to correct Escalante’s
presentence custody credits. We otherwise affirm the judgments.
FACTUAL BACKGROUND
The shooting
On May 26, 2014, about 12:30 p.m., Lopez, Jr., a Westside
Longo gang member, was standing near his sister Susanna
Lopez’s car near the corner of 65th Street and Paramount
Boulevard in Long Beach. His father, Enrique Lopez, Sr.;
Susanna’s boyfriend David Osuna; neighbor Jerry Frazier; a
mechanic named Juan Cortez; and two children were also
present.
Frazier saw a blue Honda Civic driving east on 65th Street
toward Paramount Boulevard. The car slowed as it approached.
The front passenger had a gun and fired several rounds. When
Frazier saw the gun, he hid behind a blue dumpster. He heard
several bullets hit the dumpster. When the shooting began,
Lopez, Sr., and Cortez ducked and Osuna ran. Osuna suffered a
bullet wound to the leg. Lopez, Jr., was killed by a single
gunshot to his upper middle back.
Lopez, Sr., told police that on the morning of the shooting,
he saw a blue Honda or Toyota drive by. He saw the passenger
make hand signs. Lopez, Sr., later identified Escalante as the
passenger in a Facebook photograph provided by detectives. At
trial, Lopez, Sr., pointed to Escalante, who was seated in the
courtroom, as the person he identified as the vehicle passenger
when he was interviewed by detectives.
Three nine-millimeter bullet casings were found in the
street near the corner of Paramount Boulevard and 65th Street.
Another nine-millimeter casing was found on 65th Street near
5
the blue dumpster, which had a bullet hole. The recovered
casings were fired from the same gun.
Defendants’ arrest
On November 19, 2014, Long Beach Police Officer Andrew
Fox conducted a traffic stop of a blue Honda Civic. Escalante was
driving and Gonzalez was the front passenger. Both were
arrested. Gonzalez was 19 years old at the time. Escalante was
18 years old but would be 19 the following month.
On the day of their arrest, defendants were questioned
separately by Detective Robert Gonzalez about a different
shooting that occurred on October 23, 2014. At the outset of the
interview, Detective Gonzalez advised defendant Gonzalez of his
Miranda6 rights. Defendant Gonzalez indicated he understood
and began talking to the detective. Defendant Gonzalez
subsequently requested an attorney, and the detective stopped
questioning him.
Detective Gonzalez also advised Escalante of his Miranda
rights at the outset of his interview. Escalante indicated that he
understood and continued speaking with Detective Gonzalez
until the interview was concluded.
Perkins operations
On November 20, 2014, Detective Sean Irving conducted a
Perkins operation by placing defendants in separate cells at the
Long Beach jail with paid agents who posed as fellow inmates.
An audio recording of the operation was played for the jury.
Gonzalez
Gonzalez was placed in a cell with two Perkins agents
(designated in the transcript of the operation as PA1 and PA2).
6 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
6
PA1 was a Hispanic male in his mid-30’s, approximately six feet
tall and weighed 300 pounds. PA2 was in his early 30’s,
approximately five feet 10 inches tall, and weighed 180 pounds.
PA2 had visible tattoos on his arms.
While the agents were in his cell, Gonzalez told PA1 that
he was an Unos Sin Verguenzas (USV) gang member known as
“Glock.” Detective Peter Lackovic subsequently entered the cell
area and informed Gonzalez that he was being investigated for a
murder that occurred on 65th Street. Lackovic told Gonzalez,
“Your boy Rascal’s already here. You already know that.” Before
leaving the cell area, Lackovic asked Gonzalez, “You all straight?”
Gonzalez responded, “Cool.” Lackovic said, “If you need
anything, tell one of the jailers.” Gonzalez said, “All right.”
When Lackovic left the cell area, PA1 asked Gonzalez,
“What; you, like, the most live homie from the hood or what?”
Gonzalez replied, “Shit, I didn’t get ‘Glock’ for no reason.” PA1
said, “I need some youngsters like that on my team, fool.” PA1
then asked Gonzalez, “who’s the fool that [Lackovic] was talking
about?” Gonzalez identified him as “the homie” who was arrested
with him and acknowledged that he was Gonzalez’s “crime
partner.”
Detective Gonzalez later entered the cell area to obtain a
DNA sample from defendant Gonzalez. The detective asked
Gonzalez, “How long you doing?” Gonzalez responded, “Good.”
Detective Gonzalez then asked, “They treating you all right?”
Defendant Gonzalez said, “Yeah.”
Defendant Gonzalez told the Perkins agents he was 19
years old, had been “affiliated” with the USV gang since he was
13, and started “banging” at age 16. He said the 65th Street
shooting had occurred during the day and that he had used a
7
Smith and Wesson firearm. Gonzalez told the agents he was
driving his mother’s blue Honda Civic when he and Escalante
passed a group of people, whom they did not know. One member
of the group had a “Longo” tattoo on the back of his neck.
Escalante exited the Honda and started “banging” on the group.
Gonzalez told him to get back into the car because they would
return later. After switching the Honda’s license plates to dealer
plates, Gonzalez and Escalante returned to the victims’ location.
This time, Escalante drove and Gonzalez was the passenger. An
older gang member known as “Lento” accompanied them. When
Escalante stopped the Honda at the victims’ location, Gonzalez
fired nine rounds at the group. Gonzalez saw “four fools down,
but only one down, down.” Gonzalez also shot at a “big old black
guy” who hid behind a trash can. The following day, Gonzalez
sold the gun he had used in the shooting to members of another
gang. When one of the Perkins agents asked Gonzalez whether
he felt any remorse about the shooting, Gonzalez responded, “No.
Hell no.”
Escalante
Escalante was placed in a cell with the same larger Perkins
agent (PA1) who had been in Gonzalez’s cell. At some point
during the operation, Escalante made a telephone call. He asked
the Perkins agent to help him remember some numbers, and the
agent complied. When he finished the call, Escalante asked the
agent, “what they got you for?” The agent responded, “got a
warrant for murder.” Escalante said, “me fucking too.”
Escalante then asked the agent, “where you from?” and stated
that he (Escalante) was “USV.” Later, the Perkins agent also
made a telephone call. During the call, the Perkins agent said,
“hey do me a favor . . . and try to post my bail. Yeah . . . put the
8
house. They got me for that shit over there in L.A. . . . Okay.
Make sure you get it done.”
Detective Lackovic later entered the cell area and told
Escalante he and “Plato” had been arrested for a murder on 65th
Street and that Escalante had been identified as the shooter.
Lackovic said he knew Escalante’s moniker was Rascal and that
Gonzalez was known as Plato. When Lackovic left, the Perkins
agent asked Escalante “who’s Plato?” Escalante identified him as
“[t]he homie” who shot at the victims on 65th Street. Escalante
stated, “He shot. I drove.” Escalante verified that Plato was also
known as Glock. Escalante also acknowledged that his moniker
was Rascal.
Escalante said the shooting had occurred in May during the
day. He and Gonzalez were driving by when they first saw the
victims. Gonzalez and Escalante did not know the victims, who
were “banging” on them, or challenging them. Gonzalez was
driving at the time, a blue “low key ass car.” Gonzalez,
Escalante, and an older gang member known as “Gecko” or
“Gunner” returned to the victims’ location that same day. Before
doing so, Escalante and Gonzalez switched places. Escalante
drove because Gonzalez “wanted to bust” on the victims.
Gonzalez fired eight rounds at the victims. Gonzalez
subsequently sold the gun he had used in the shooting.
Defendants’ jail conversation
After the Perkins operation, defendants were placed in
nearby cells with a recording device in the cell between them. An
audio recording of their conversation was played for the jury.
Escalante told Gonzalez during their recorded conversation
that a detective came to see him about the incident “that
happened on Six-Five.” Escalante said, “I was driving in Six-
9
Five” and “I’ll go down as the driver, . . . but . . . I ain’t gonna be
the shooter.” Escalante further stated, “I’m trippin about the
Honda,” and “they got the car.” Gonzalez reassured him that the
Honda “didn’t have the regular plates” during the shooting.
Escalante asked, “What happened to those plates?” Gonzalez
responded that he threw them away.
Gonzalez said, “[N]obody seen us that . . . day. When the
shots were going off, everybody was gone.” Escalante replied, “I
was driving dog, I don’t know.” Gonzalez responded, “I could
see.” When Escalante asked Gonzalez what kind of gun he had
used, Gonzalez replied, “Smith and Wess. Nina.” Gonzalez and
Escalante discussed fabricating an alibi and alternate locations
where they could say they had been at the time of the shooting.
These included Plaza Mexico, a barbeque, or a cemetery.
Gonzalez pointed out that the police would attempt to verify the
time and location of defendants’ proposed alibi and could use
security camera footage to do so. Gonzalez advised, “Be, like, we
don’t . . . remember.”
Escalante and Gonzalez discussed their respective
encounters with the Perkins agents and determined they had
both been with the same person. Escalante referred to the
Perkins agent as the “[f]at nigga” and said, “That fool’s cool.”
RELEVANT PROCEDURAL BACKGROUND
Gonzalez filed a motion to exclude his statements made
during the Perkins operation, arguing they were obtained in
violation of his constitutional rights to counsel, to remain silent,
and due process. His motion was supported by the declaration of
Martin Flores, a gang expert, who opined in relevant part as
follows:
10
“It is my personal, educational, and
professional opinion that . . . the confidential
informants utilized in this operation made their gang
status and ties to the Mexican Mafia to Mr. Ricardo
Gonzalez by talking about their crimes and
knowledge of gang members. They command a
presence of being very knowledgeable of the gang
dynamics and the jail politics. [¶] . . . [¶] In my
extensive experience with Perkins Operations . . . the
informants are NOT just . . . a very experienced
inmate that upon immediate contact the target
realizes that they are being questioned by somebody
who can impact their jail experience. This tactic
brings an environment of duress and pressure to
either fabricate or exaggerate their role in an alleged
crime.”
The prosecutor opposed the motion.
At a January 4, 2018 hearing, Escalante made an oral
motion to join Gonzalez’s motion to exclude the Perkins
statements. Gonzalez’s counsel indicated he intended to offer
Flores’ testimony, stating:
“He’s an expert in the matter of gangs. He has
an opinion . . . as to the influence of a Mexican Mafia
shot caller in a cell . . . with a 19-year-old person who
is in jail for the first time . . . and as a gang member,
what his mindset would be . . . .”
The trial court (Hon. Mark C. Kim) stated, “The only one
that could tell me whether he was coerced or not is the person
claiming that he was coerced.” The court further stated:
“[I]t does not matter what your expert knows.
The question is at the time of the conversation was
[Gonzalez] aware who these individuals were, that
they were Mexican Mafia members that you allege
because, if he didn’t know, it’s irrelevant.”
11
Gonzalez testified at the hearing. When his attorney asked
him who he thought one of the Perkins agents might be, Gonzalez
replied, “I didn’t know who he was. I just—just another person.”
Gonzalez further testified he had never been in jail before. He
stated: “I felt afraid. I felt I had to go along with it, impress—
say whatever I can, whatever I knew about what had happened,
you know, just to feel like I’m on the same page with them.”
On cross-examination, Gonzalez admitted he was laughing
when he talked to the Perkins agents and that they had also
talked about girls. He further admitted that the agents never
said they were members of the Mexican Mafia or verbally
threatened him. Gonzalez testified that the agents made
threatening gestures, but when asked to explain further he
replied, “I couldn’t—I can’t recall.” Gonzalez also testified that
on the day before the Perkins operation, detectives tried to
question him about a different attempted murder, and he asked
for a lawyer.
Gonzalez’s counsel then sought to call Flores as a witness.
When the trial court asked for a proffer, counsel responded, “The
proffer is the state of mind of [Gonzalez].” The trial court stated:
“He can’t testify as to state of mind of Mr. Gonzalez. He’s not an
expert on state of mind. [H]is designated expertise is gang
membership, gang crimes.” The following exchange ensued:
“[Gonzalez’s counsel]: My proffer is he would
testify to being a gang member. What does that
mean being placed in a cell with older gang members
who have been to prison, and what would that mean
to you as being a gang member in the cell, a young
gang member? How would that affect what or what
you did not say . . . .
12
“The court: I guess the only problem is the
person that would have an effect has already
testified. So how would Mr. Flores add to that?
“[Gonzalez’s counsel]: As I said, he would
add—as far as . . . fleshing out the circumstances of
how gang members react to each other.
“The court: But we have the best source, the
person that just testified. He told us how it affected
him in that circumstances.” (Boldface omitted.)
The court ruled Flores’s testimony not relevant.
Detective Lackovic then testified that the Perkins agents
were Hispanic, in their 30’s, and had tattoos. One of the agents
was about five feet four inches tall, and the other was around six
feet fall. Both were “kind of fat.”
After hearing argument from counsel, the trial court denied
the motion to exclude Gonzalez’s statements. The court found,
based on Gonzalez’s demeanor and testimony, that Gonzalez
lacked credibility and that the motion was without merit.
Escalante then testified. He described the Perkins agent in
his cell as approximately six feet four inches tall and 300 pounds,
in comparison to Escalante, who was five feet seven inches tall.
Escalante testified that he thought to himself, “the guy has not
approached me. Maybe I should stay out of his way.” Escalante
further testified that the Perkins agent said that he had gotten
rid of a witness. Escalante said he was afraid. After overhearing
the Perkins agent’s telephone call in which the agent gave
instructions to post his bail and “put the house up,” Escalante
believed the agent had rank in a gang. He thought, “if this guy
approaches me, I’ll just get on his good side” and say what he
wants to hear.
13
On cross-examination, Escalante admitted that he initiated
the conversation with the Perkins agent and that Escalante
voluntarily disclosed that he had been arrested for murder.
Escalante further admitted that when he made a telephone call,
he asked the agent to help him remember a number.
Escalante testified that the agent never “directly”
threatened him. Escalante explained: “He sent subliminals. He
would tell me things like, you know, as far as there’s no witness.
I mean, that means pretty much he did something to the
witness.”
On January 5, 2018, after hearing argument from counsel,
the trial court denied the motion to exclude Escalante’s
statements to the Perkins agent. The court ruled that Miranda
was not implicated and that, based on the totality of the
circumstances, there was no coercion.
The case was subsequently reassigned to the Honorable
Judith L. Meyer, who presided over the trial. Defendants filed
motions to exclude their Perkins statements, which Judge Meyer
denied.
TRIAL TESTIMONY
Prosecution gang expert testimony
Los Angeles County Sheriff’s Detective Miguel Fuentes, the
prosecution’s gang expert, testified that he was familiar with a
Hispanic gang known as USV. Fuentes opined that members of
the USV gang, individually and collectively, have engaged in a
pattern of criminal gang activity, including assault with a deadly
weapon, attempted murder by use of a firearm, and murder by
use of a firearm. After being presented with a hypothetical based
14
on the facts of this case, Fuentes opined the subject crimes were
committed for the benefit of and in association with a gang.
Fuentes further testified that he was familiar with a
separate case involving USV gang members Jose Rangel, Enrique
Hernandez, and Jesus Hernandez, who were convicted on
August 15, 2014, of the murder of Jonathan Sandoval, a member
of a rival gang.
Defense evidence
Dr. Kathy Pezdek testified as a defense expert on
eyewitness identification. She discussed 10 factors that can
affect the accuracy of eyewitness identification: (1) exposure
time, (2) distance and obstruction, (3) weapon focus, (4) stress, (5)
use of a disguise, (6) cross-racial identification, (7) time delay, (8)
biased identification test, (9) double-blind procedure, and (10)
bias of in-court identification.
Gairy Jackson, who witnessed the shooting through the
window of his apartment, also testified as a defense witness.
Jackson observed a slow-moving black, four-door hatchback
approach the victims and then heard four to five gunshots. He
saw Lopez, Jr., fall to the ground. Jackson further testified he
saw the driver of the car and the passenger, both of whom
appeared to be African-American males.
DISCUSSION
I. Admission of defendants’ statements during the
Perkins operation did not violate their constitutional
rights
A. Miranda
A defendant’s statements made during a custodial
interrogation are inadmissible against him unless he was advised
15
of his Miranda rights7 and did not invoke his right to remain
silent or to be represented by counsel. (People v. Orozco (2019) 32
Cal.App.5th 802, 811 (Orozco).) This rule protects the privilege
against self-incrimination guaranteed by the Fifth Amendment.
(Orozco, at p. 811.) In addition, once a suspect invokes the right
to counsel, he cannot be subjected to further police interrogation
on any crime unless counsel is present or the suspect initiates
further communication with the police. (Edwards v. Arizona
(1981) 451 U.S. 477, 484-485 (Edwards).)
The Miranda rule has a limit, however—it only applies
when the suspect was the subject of a “custodial interrogation.”
(Miranda, supra, 384 U.S. at p. 444; see Orozco, supra, 32
Cal.App.5th at p. 811.) Miranda does not apply when a suspect is
unaware that he is speaking to a law enforcement officer and
gives a voluntary statement. (Perkins, supra, 496 U.S. at p. 294.)
Statements made to an undercover agent posing as a fellow
inmate accordingly are not subject to Miranda. (Perkins, at
p. 296; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 283
[no Miranda violation when defendant spoke to fellow inmate
wearing a recording device]; People v. Williams (1988) 44 Cal.3d
1127, 1141-1142 [Miranda “has never been applied to
conversations between an inmate and an undercover agent”].)
Gonzalez argues that the use of Perkins agents, following
the invocation of his right to counsel the preceding day, violated
7 Miranda requires that a suspect in law enforcement
custody must be advised of the right to remain silent, that
anything the suspect says may be used as evidence against him,
that he has the right to the presence of an attorney, and that an
attorney will be provided if the suspect cannot afford one.
(Miranda, supra, 384 U.S. at pp. 444-445, 473-474, 476.)
16
his constitutional rights to remain silent and to counsel.
Escalante concedes the record does not indicate that he invoked
his Miranda rights before the Perkins operation but nevertheless
asserts a Miranda claim.
Escalante’s claim is without merit. As our state high court
has noted, “the [United States Supreme Court] has held that at
least where no prior invocation [of Miranda rights] is in effect,
[‘][c]onversations between suspects and undercover agents do not
implicate the concerns underlying Miranda. The essential
ingredients of a “police-dominated atmosphere” and compulsion
are not present when an incarcerated person speaks freely to
someone whom he believes to be a fellow inmate.’” (People v.
Fayed (2020) 9 Cal.5th 147, 165, quoting Perkins, supra, 496 U.S.
at p. 296.)
Gonzalez’s prior invocation of his Miranda right to counsel
did not require suppression of his statements to the Perkins
agents. (Orozco, supra, 32 Cal.App.5th at p. 812.) “[A] suspect
who has invoked his Miranda right to counsel may not be
‘subject[ed] to further interrogation by the authorities’ on any
crime at all unless (1) counsel is present ‘at the time of [any
further] questioning,’ or (2) the suspect ‘himself initiates further
communication, exchanges or conversations with the police.’” (Id.
at p. 813, quoting Edwards, supra, 451 U.S. at pp. 484-485.)
“[T]here is no ‘interrogation’ when a suspect speaks with someone
he does not know is an agent of the police.” (Orozco, at p. 814.)
There is accordingly no reason to apply the restriction on further
“interrogation” in such circumstances. (Ibid.) Admission of
Gonzalez’s Perkins statements did not violate his rights under
Miranda.
17
B. Due process
Defendants contend admission of their statements to the
Perkins agents violated their due process rights because the
statements were not made voluntarily. The due process clauses
of the federal and California Constitutions bar the admission of
an involuntary confession. (People v. Rodriguez (2019) 40
Cal.App.5th 194, 199.) To determine the voluntariness of a
confession, we assess the circumstances to see if the defendant’s
will was overborne. (Ibid.) A confession may be involuntary “‘if
extracted by threats or violence, obtained by direct or implied
promises, or secured by the exertion of improper influence.’”
(People v. Wall (2017) 3 Cal.5th 1048, 1066.)
We independently review a trial court’s determination of
voluntariness given the circumstances, including the
characteristics of the accused and the details of the encounter.
(People v. Richardson (2008) 43 Cal.4th 959, 992-993, abrogated
on other grounds by statutory repeal as stated in People v. Nieves
(2021) 11 Cal.5th 404, 509.) In doing so, however, we defer to the
trial court’s factual findings if supported by substantial evidence.
(Ibid.) We therefore “accept the trial court’s resolution of
disputed facts and inferences as well as its evaluations of
credibility if substantially supported, but independently
determine from undisputed facts and facts found by the trial
court whether the challenged statement was legally obtained.”
(People v. Smith (2007) 40 Cal.4th 483, 502.)
Substantial evidence supports the trial court’s
determination defendants’ statements to the Perkins agents were
voluntary and that their claims of intimidation and coercion were
not credible. At the hearing on his motion to suppress, Gonzalez
admitted laughing with the Perkins agents and talking with
18
them about girls. Detectives came to Gonzalez’s cell several
times during the Perkins operation to ask Gonzalez if he was
alright, if he needed anything, and if his cellmates were treating
him all right. Gonzalez never indicated that there was any
problem or that he was afraid of the agents. Gonzalez testified
that the agents never identified themselves as members of the
Mexican Mafia and never threatened him verbally. He could not
recall any threatening gestures by the agents.
Escalante admitted initiating the conversation with the
Perkins agent and voluntarily disclosing that he had been
arrested for murder. He asked the Perkins agent for help in
remembering some numbers while making a phone call.
Escalante admitted that the agent never threatened him
verbally. He further admitted that he never told any of the
detectives who came to his cell during the Perkins operation that
he was afraid of or felt intimidated by the agent. The record does
not support Escalante’s claim that the agent questioned him
“aggressively,” seeking to elicit an admission that he and
Gonzalez had been looking for enemies on the day of the murder.
When the Perkins agent twice asked Escalante whether he and
Gonzalez had been looking for enemies on the day of the shooting,
Escalante replied, “Nah, we drove by and, like, they, they were,
like, banging on us, you know.”
Defendants’ jailhouse conversation with each other after
the Perkins operation further undermines the claim that they
were afraid of the agents. Defendants spoke positively about the
agents, and Escalante stated that the agent in his cell was “cool.”
The record does not support defendants’ claim that they
fabricated their involvement in the crimes. Their separate
statements to the Perkins agents contained corroborating details
19
about the crimes. Both defendants admitted that the shooting
occurred in May during the day, that they did not know the
victims, that Gonzalez was the shooter and Escalante was the
driver, and that Gonzalez thereafter sold the weapon.
Defendants made similar admissions in the conversation between
themselves after the Perkins operation.
Arizona v. Fulminante (1991) 499 U.S. 279, on which
defendants rely as support for the argument that their
statements were coerced, is distinguishable. The informant in
that case told the defendant that he knew the defendant was
“‘starting to get some tough treatment and whatnot’” from other
inmates because the defendant had killed a child. (Id. at p. 283.)
The informant then offered to protect the defendant, stating,
“‘“You have to tell me about it . . . [f]or me to give you any help.”’”
(Ibid.) The Supreme Court concluded that the “fear of physical
violence, absent protection from [the agent]” caused the
defendant’s will to be “overborne in such a way as to render his
confession the product of coercion.” (Id. at p. 288.) No such
circumstances are present here.
Moreover, as the trial court noted, both defendants, though
young, were experienced gang members. Gonzalez, who was 19
years old at the time of the Perkins operation, had been
“affiliated” with a gang from the age of 13 and started “banging”
when he was 16. Escalante was one month shy of his 19th
birthday at the time of the Perkins operation and had been a
gang member since he was 12 or 13 years old.
Cases defendants cite as support for their due process
claims are inapplicable or inapposite. Gonzalez relies on Justice
Brennan’s concurrence and Justice Marshall’s dissent in Perkins,
supra, 496 U.S. 292 and Justice Liu’s dissents from a denial of
20
review in People v. de Jesus Valencia (Aug. 5, 2019, B283588)
(nonpub. opn.), review denied Dec. 11, 2019, S258038, and People
v. Godbolt (Mar. 12, 2021, B302235) (nonpub. opn.), review
denied Jun. 30, 2021, S268148, as support for his argument that
use of undercover agents to elicit his statements following his
request for counsel violated due process.8 Concurring and
dissenting opinions are not binding precedent (see Rosato v.
Superior Court (1975) 51 Cal.App.3d 190, 211), and Gonzalez
cites no authority applying the views expressed in those
concurring and dissenting opinions. To the contrary,
“. . . California courts have uniformly come to the conclusion that
Perkins controls when a suspect invokes his Miranda right to
counsel but later speaks with someone he does not know is an
agent of the police.” (Orozco, supra, 32 Cal.App.5th at p. 815; see
People v. Plyler (1993) 18 Cal.App.4th 535, 544-545; People v.
Guilmette (1991) 1 Cal.App.4th 1534, 1540-1541.)
8 Justice Brennan expressed a belief that “the deception and
manipulation practiced on [Perkins] raise[d] a substantial claim
that the confession was obtained in violation of the Due Process
Clause.” (Perkins, supra, 496 U.S. at p. 301 (conc. opn. of
Brennan, J.).) Justice Marshall noted that “where the suspect is
incarcerated, the constant threat of physical danger peculiar to
the prison environment may make him demonstrate his
toughness to other inmates by recounting or inventing past
violent acts.” (Id. at p. 307 (dis. opn. of Marshall, J.).) In his
dissenting statement to the California Supreme Court’s denial of
a petition for review, Justice Liu stated “[I]t is difficult to see how
the use of deceptive schemes by the police to continue questioning
the suspect can be compatible with ‘“preserv[ing] the integrity of
accused’s choice to communicate with police only through
counsel.”’” (People v. de Jesus Valencia, supra, S258038, review
denied (dis. stmt. of Liu, J.).)
21
Escalante cites no authority to support his argument that
the tactics employed in this case—placing him with an older and
much larger agent posing as a gang “shot caller” who questioned
Escalante “aggressively”—exceeded the bounds of due process.
Miller v. Fenton (1985) 474 U.S. 104, cited by Escalante, did not
involve a Perkins operation but addressed whether the
voluntariness of a confession obtained during a police
interrogation was a factual or legal question for purposes of
appellate review. (Id. at pp. 105-106.) That case accordingly is
inapposite.
The totality of the circumstances leads us to conclude, as
the trial court did, that defendants’ statements to the Perkins
agents were voluntary and not the product of coercion or
psychological pressure.
C. Exclusion of defendants’ gang expert testimony
The trial court properly excluded proposed testimony by
defendants’ gang expert, Flores, as not relevant to determining
whether defendants’ Perkins statements were voluntary. The
trial court has broad discretion to determine the relevance of
evidence. (People v. Jones (2013) 57 Cal.4th 899, 914.) We will
not disturb the exercise of that discretion unless the trial court
acted in an arbitrary, capricious, or patently absurd manner.
(Ibid.)
The record discloses no abuse of discretion. In a
declaration attached to a motion to exclude Gonzalez’s Perkins
statements, gang expert Flores opined that the Perkins agents
used in this case “made their gang status and ties to the Mexican
Mafia to” Gonzalez and “command[ed] a presence of being very
knowledgeable of the gang dynamics and the jail politics.” Flores
further opined that defendants who encounter such agents
22
realize “they are being questioned by somebody who can impact
their jail experience” and that use of this tactic creates “an
environment of duress and pressure to either fabricate or
exaggerate their role in an alleged crime.” The trial court ruled
that Flores’s testimony was not relevant because only defendants
could testify as to the effect the Perkins agents had on them.
The trial court properly concluded that Flores’s testimony
was not relevant to determining whether Gonzalez or Escalante
felt pressured to fabricate their involvement in the crimes. An
expert may not testify regarding an individual’s subjective
knowledge or intent. (People v. Killebrew (2002) 103 Cal.App.4th
644, 647, disapproved on another ground in People v. Vang (2011)
52 Cal.4th 1038, 1049.) The trial court’s exclusion of Flores’
testimony was not an abuse of discretion.
II. Admission of defendants’ Perkins hearsay statements
against each other under Evidence Code section 1230
The trial court did not abuse its discretion by admitting
defendants’ Perkins statements implicating each other under the
hearsay exception provided in Evidence Code section 1230.
A. Proceedings below
At a hearing on a motion by Gonzalez to sever his case from
Escalante’s, the trial court and counsel for defendants discussed
whether Escalante’s statements to the Perkins agent were
admissible as declarations against penal interest. Gonzalez’s
counsel argued the statements were not against Escalante’s
interest because Escalante minimized his role and shifted the
blame for the shootings to Gonzalez. The trial court ruled the
statements were admissible, noting that while Escalante denied
being the shooter, “[h]e admitted to everything else . . . .”
23
At trial, Escalante objected on hearsay and due process
grounds to statements by Gonzalez that implicated Escalante.
Gonzalez also renewed his objection to statements made by
Escalante. The trial court overruled the objections.
B. Applicable law and standard of review
Evidence of a statement made other than by a witness
while testifying and “offered to prove the truth of the matter
stated” is inadmissible unless it comes within a hearsay
exception. (Evid. Code, § 1200.) The exception relevant here, set
forth in Evidence Code section 1230, provides that when the
“declarant is unavailable as a witness and the statement, when
made, . . . so far subjected him to the risk of . . . criminal
liability . . . that a reasonable man in his position would not have
made the statement unless he believed it were true.” (Evid.
Code, § 1230.)
“[A] person’s interest against being criminally implicated
gives reasonable assurance of the veracity of his statement made
against that interest.” (People v. Spriggs (1964) 60 Cal.2d 868,
874.) “‘In determining whether a statement is truly against
interest within the meaning of Evidence Code section 1230, and
hence is sufficiently trustworthy to be admissible, the court may
take into account not just the words but the circumstances under
which they were uttered, the possible motivation of the declarant,
and the declarant’s relationship to the defendant.’” (People v.
Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) “There is no litmus
test for the determination of whether a statement is trustworthy
and falls within the declaration against interest exception.”
(People v. Greenberger (1997) 58 Cal.App.4th 298, 334
(Greenberger).) The trial court should “‘look to the totality of the
circumstances in which the statement was made, whether the
24
declarant spoke from personal knowledge, the possible
motivation of the declarant, what was actually said by the
declarant and anything else relevant to the inquiry.’” (People v.
Arauz (2012) 210 Cal.App.4th 1394, 1400 (Arauz).)
We review the trial court’s decision to admit evidence under
Evidence Code section 1230 for abuse of discretion. (Grimes,
supra, 1 Cal.5th at p. 711.) The decision “‘“‘will not be disturbed
except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.’”’” (People v. McCurdy (2014)
59 Cal.4th 1063, 1108.)
C. No abuse of discretion
The trial court did not abuse its discretion by admitting
defendants’ respective Perkins statements in their entirety. Our
Supreme Court has rejected “a rigid or hypertechnical . . . rule
that would in all cases require exclusion of even those portions of
a confession that are inextricably intertwined with the
declarant’s admission of criminal liability.” (Grimes, supra, 1
Cal.5th at p. 716.) The Supreme Court explained that “the
nature and purpose of the against-interest exception does not
require courts to sever and excise any and all portions of an
otherwise inculpatory statement that do not ‘further incriminate’
the declarant.” (Ibid.)
Gonzalez’s and Escalante’s respective statements
implicating each other in the crimes were inextricably entwined.
Escalante repeatedly stated that he drove and Gonzalez shot at
the victims. He told the Perkins agent: “I remember what
happened that day. We drove around. I was driving. He shot
again, this nigga. I’m not gonna go down for this nigga like that.”
Escalante reiterated, “He shot. I drove.” He later stated: “he
25
[(Gonzalez)] lit them up. And I remember I put the car in
neutral . . . . Then I put it in drive, and we took off.”
Escalante also indicated that he knew Gonzalez intended to
shoot the victims. Escalante told the Perkins agent that when
defendants initially encountered the victims, Gonzalez had been
driving and Escalante was the passenger. They switched places
before returning to the victims’ location “[b]ecause [Gonzalez]
wanted to bust, and I let him . . . . [¶] . . . [¶] . . . He’s like, ‘Let
me bust.’ So I was, like, all right . . . .’”
Escalante’s statements inculpating both himself and
Gonzalez in the driveby shootings, were not, as Gonzalez
contends, purely self-serving. Identifying Gonzalez as the
shooter and himself as the driver necessarily implicated
Escalante as an aider and abettor to murder. People v. Gallardo
(2017) 18 Cal.App.5th 51 (Gallardo), on which Gonzalez relies, is
distinguishable. The declarant in that case told informants that
he waited around the corner in a getaway vehicle while two other
codefendants shot the victims from a separate vehicle. (Id. at
p. 55.) The court in Gallardo concluded the declarant’s
statements, which provided conflicting versions of the crime,
were “too ‘“self-serving and unreliable”’” to qualify as declarations
against penal interest. (Id. at pp. 74-76.) Here, in contrast,
Escalante made no attempt to mitigate his role in the crimes. He
admitted knowing in advance that Gonzalez intended to shoot the
victims and further admitted to driving the vehicle from which
the shots were fired. Escalante’s admissions about his
involvement in the crimes were not conflicting. He consistently
said that he drove and that Gonzalez shot at the victims.
Gonzalez’s statements implicating Escalante as the driver
were similarly entwined with admissions that Gonzalez was the
26
shooter. Gonzalez identified Escalante as his crime partner.
When the Perkins agent asked “who was with you?” during the
shooting, Gonzalez responded, “My boy. [¶] . . . [¶] . . . The
homie’s that right here.” The following exchange then occurred:
“PA 2: Oh, the one you said, Rascal?
“RICARDO GONZALEZ: Yeah.
“PA 2: And he—what—what was he, he was
the shooter or the driver?
“RICARDO GONZALEZ: He was the
driver. . . . [¶] . . . [¶]
“PA 1: Oh, so he let you bust? . . .
“RICARDO GONZALEZ: Well, I told him,
‘Hey, fool, drive.’”
We are unpersuaded by Escalante’s argument that
Gonzalez’s Perkins statements should have been redacted to
exclude not only statements implicating Escalante but also those
portions purportedly irrelevant to the subject crimes, including
statements about a separate shooting in which Gonzalez was the
driver and Escalante was the passenger, and Gonzalez’s
statements about girls. Gonzalez’s conversation with the Perkins
agents, including those portions challenged by Escalante, were
relevant to defendants’ arguments that their admissions were
false or exaggerated because of the Perkins agents’ intimidation.
The transcript of Gonzalez’s conversation with the agents
indicates that the conversation was cordial, that Gonzalez
volunteered information to the agents, and that he often laughed
and joked with them. The nature and tone of Gonzalez’s
conversation with the agents are indicia of the reliability and
inherent trustworthiness of his statements. (See Idaho v. Wright
(1990) 497 U.S. 805, 822-823.)
27
D. No constitutional violation
Defendants’ due process challenge to the admission of their
statements, premised on their alleged unreliability, fails because
the statements qualify as declarations against penal interest.
Such statements “must be genuinely and specifically inculpatory
of the declarant; this provides the ‘particularized guarantee of
trustworthiness’ or ‘indicia of reliability’ that permits its
admission in evidence.” (Greenberger, supra, 58 Cal.App.4th at
p. 329.)
Admission of defendants’ Perkins statements implicating
each other did not violate their Sixth Amendment right to
confront witnesses. The confrontation clause is concerned solely
with hearsay statements that are testimonial. (Davis v.
Washington (2006) 547 U.S. 813, 823-825; People v. Cage (2007)
40 Cal.4th 965, 981.) To be testimonial, the statement must have
been given “under circumstances that imparted, to some degree,
the formality and solemnity characteristic of testimony” given by
witnesses at trial. (Cage, supra, at p. 984.) In addition, “the
statement must have been given and taken primarily for the
purpose ascribed to testimony—to establish or prove some past
fact for possible use in a criminal trial.” (Ibid.) “Although the
declarant and the interrogator’s perspectives are both relevant to
determining the ‘primary purpose’ of the statement [citation], it
is ‘“in the final analysis the declarant’s statements, not the
interrogator’s questions, that the Confrontation Clause requires
us to evaluate.” [Citation.]’ [Citation.] The Sixth Amendment
applies when the statement, rather than the question that
elicited it, was made ‘“with some degree of formality or
solemnity.”’” (Gallardo, supra, 18 Cal.App.5th at pp. 67-68.)
28
Applying these principles, California courts have held that
statements given under similar circumstances as those presented
here were nontestimonial, and therefore not subject to the Sixth
Amendment right to confront witnesses. (See, e.g., Gallardo,
supra, 18 Cal.App.5th at pp. 67-68; Arauz, supra, 210
Cal.App.4th at p. 1399.) The courts in these cases concluded the
defendants’ statements to informants were nontestimonial
because, regardless of the informant’s intent in asking the
questions, there was no evidence the defendants knew or
suspected that the informants were agents of the police, or that
their statements might be used at trial. (Gallardo, at pp. 67-68;
Arauz, at p. 1399.) California law on this issue is in accord with
federal court decisions that have found statements made to
informants under analogous circumstances to be nontestimonial.
(See U.S. v. Dale (8th Cir. 2010) 614 F.3d 942, 956; U.S. v.
Watson (7th Cir. 2008) 525 F.3d 583, 589; U.S. v. Udeozor (4th
Cir. 2008) 515 F.3d 260, 269-270; U.S. v. Underwood (11th Cir.
2006) 446 F.3d 1340, 1347-1348; U.S. v. Hendricks (3d Cir. 2005)
395 F.3d 173, 182-184; U.S. v. Saget (2d Cir. 2004) 377 F.3d 223,
229-230.)
Here there is no evidence that defendants knew they were
speaking to police informants, or otherwise anticipated their
statements would be used prosecutorially. Their statements
accordingly were nontestimonial, and do not implicate the Sixth
Amendment right to confrontation.
E. No prejudice
Finally, defendants fail to establish prejudice resulting
from any allegedly erroneous admission of their Perkins
statements. (See People v. Jennings (2010) 50 Cal.4th 616, 652
[alleged constitutional error under Crawford v. Washington
29
(2004) 541 U.S. 36 subject to harmless error standard].)
Defendants’ respective Perkins statements corroborated each
other in all material respects. (See Idaho v. Wright, supra, 497
U.S. at p. 823 [corroborating evidence appropriate indicator that
any error in admitting statement was harmless].) Both admitted
that Gonzalez was the shooter and Escalante was the driver.
Both stated that Gonzalez subsequently sold the gun he used in
the shooting.
Defendants’ Perkins statements were further corroborated
by their recorded conversation with each other when they were
subsequently placed in nearby cells. Escalante repeatedly
confirmed that he was the driver when the crimes were
committed. Gonzalez reiterated that he had changed the license
plates on the Honda Civic before the shooting and that he had
used a Smith and Wesson “Nina,” or nine-caliber firearm.
In light of the evidence, any error was harmless beyond a
reasonable doubt. (People v. Jennings, supra, 50 Cal.4th at
p. 652.)
III. Limiting discovery and testimony regarding the
Perkins operation
Defendants contend the trial court violated their
constitutional right to present a defense by precluding discovery
of the identity of the Perkins agents, restricting cross-
examination of witnesses regarding the Perkins agents, and
limiting the testimony of their gang expert. The record discloses
no abuse of discretion or constitutional violation. Defendants,
moreover, fail to establish prejudice resulting from any alleged
error.
30
A. Proceedings below
Gonzalez filed a motion pursuant to section 1054.1 seeking
discovery of all documents relating to the Perkins operation. At
the April 25, 2017 hearing on the motion, Judge Kim ruled that
defendants were not entitled to discover the identity of the
Perkins agents unless they could demonstrate the agents were
material witnesses. Judge Kim further ruled, however, that
defendants were entitled to know whether law enforcement
officers met with the Perkins agents, what information was
disclosed to the agents, and the manner in which the Perkins
operation was held.
Gonzalez’s counsel indicated on July 13, 2017, that he had
received a report regarding the Perkins operation, but the report
was insufficient. The trial court advised Gonzalez’s counsel that
he could file a motion attaching the report, and if cause was
shown, the court would issue a further order to produce.
Gonzalez filed a second discovery motion, which Escalante
joined, seeking any reports and notes prepared by the officers
who conducted the Perkins operation, all case names and
numbers of other Perkins operations conducted by the agents
used in defendants’ operation, whether the agents had been
involved in other operations in which there were allegations of
coercion, the identity of the officers who briefed the agents and
where the briefing occurred, and the identity of the officer who
controlled the audio recording device used during the Perkins
operation. The motion stated that Gonzalez’s counsel had
received a report prepared by Detective Lackovic and
summarized the following information from the report: The
Perkins operation was conducted under the direction of
Detectives Lackovic, Cortes, and Irving; the operation lasted for
31
approximately two and a half hours; the Perkins agents were
briefed on the pertinent facts of the case, including that the
murder involved a driveby shooting, Gonzalez’s known gang ties,
and the victims’ identities and known gang ties; the Perkins
agents were not told the caliber of the gun or the type of car used;
the entire operation was audio-recorded, and any breaks in the
recording were initiated by one of the officers after the Perkins
agents were removed from the cell; there was no recorded video
for the operation.
At the October 3, 2017 hearing on the motion, the
prosecutor represented that defense counsel had been provided
all reports regarding the Perkins operation. The trial court
directed the prosecutor to disclose additional information as to
who was present when the Perkins agents were briefed, where
the briefing took place, who controlled the recording device, and
whether detectives listened to the audio as it was being recorded.
The court otherwise denied the motion.
At trial, during cross-examination of Detective Irving, the
trial court sustained relevance objections to defense counsel’s
questions as to whether the larger Perkins agent had previously
been in custody, whether Detective Irving had used that agent
previously, whether the agents had been paid more than
$300,000 in the last four years, whether the agents were known
as “Puppet” and “Bouncer,” and whether they were former gang
members.
Also at trial, the prosecutor objected to possible testimony
by defendants’ gang expert Flores as to whether a gang member
would be afraid of another other gang member during a Perkins
operation, and, because of such fear, confess to a crime he did not
commit. The prosecutor argued that there was no evidence that
32
defendants had confessed because they were afraid of the Perkins
agents.
Escalante’s counsel argued that Flores was a gang expert
who could testify about perceived threats by a young person
placed in a jail setting with a much larger, heavily tattooed
inmate. Flores could also testify about a young gang member’s
mindset in trying to impress such an inmate.
The trial court ruled that Flores could not testify as to the
fear a person would feel in a jail cell with another gang member
“because that’s just common sense . . . . You can just argue it.”
The trial court noted that Flores was not an expert in psychology.
The court further ruled that Flores could not testify about
defendants’ positions in any gang hierarchy, because Flores had
not interviewed defendants. The court indicated that defense
counsel could have Flores opine based on hypothetical facts, “just
like a hypothetical was presented to the [prosecution’s] gang
expert.”
Based on the trial court’s ruling, defendants’ counsel
decided not to call Flores as a witness.
B. No abuse of discretion or constitutional
violation
Section 1054.1 requires the prosecution to disclose to the
defense certain categories of evidence in its possession, including
“[t]he names and addresses of persons the prosecutor intends to
call as witnesses at trial,” and “[a]ny exculpatory evidence.”
(§ 1054.1, subds. (a), (e).) An appellate court generally reviews a
trial court’s ruling on discovery matters for abuse of discretion.
(People v. Thompson (2016) 1 Cal.5th 1043, 1105.)
33
1. Identity of Perkins agents
The record discloses no abuse of discretion. The
prosecution did not intend to call the Perkins agents as witnesses
at trial, and defendants fail to establish that disclosing the
identity of the agents or the agents’ participation in other Perkins
operations would lead to any exculpatory evidence.
Defendants contend the trial court’s rulings impaired their
ability to challenge the reliability of their inculpatory statements
to the Perkins agents. Defendants claim they should have been
allowed to present to the jury the circumstances under which
defendants’ statements were made. According to defendants,
relevant circumstances include the larger agent’s exact height,
the agents’ nonverbal behaviors and demeanor, the agents’
understanding of their instructions for the operation, the layout
of the cells, and the agents’ proximity to defendants during the
operation.
The trial court’s rulings did not preclude defendants from
presenting the evidence they claim to have been denied.
Defendants had the opportunity to elicit testimony concerning
the Perkins operation by cross-examining Detective Irving, who
oversaw the operation and testified at trial. Irving testified on
cross-examination that he watched the entire Perkins operation
via a live video monitor. Defendants had the opportunity to
question Irving about the operation, including any instructions
given to the agents, the agents’ nonverbal behaviors and
demeanor, the cell layout, and the agents’ proximity to
defendants. The agents’ names, their participation in previous
Perkins operations, and whether they were former gang members
were not relevant to the circumstances in which defendants’
statements were made.
34
Defendants were not precluded from presenting evidence
concerning the larger agents’ height relative to that of
defendants. The jury heard through Detective Irving’s testimony
that the larger agent was approximately six feet tall and weighed
300 pounds. The jurors could also see defendants, who were
present in court.
Crane v. Kentucky (1986) 476 U.S. 683, on which
defendants rely, is distinguishable. In that case, which involved
a police interrogation, not a Perkins operation, the Supreme
Court held that the trial court erred in precluding the defendant
from eliciting testimony about the physical circumstances in
which his confession was obtained. (Id. at p. 691.) These
circumstances included the defendant’s detention in a windowless
room for a protracted period of time, surrounded by as many as
six police officers during the interrogation, and repeatedly being
denied permission to telephone his mother. (Id. at p. 685.) The
defendant’s resulting confession encompassed “a host of local
crimes,” including shooting a police officer, several robberies, and
murder committed during a robbery. (Id. at p. 684.) The
defendant’s confession was also full inconsistencies. (Id. at
p. 685.)
Defendants’ inculpatory statements in this case were not
obtained during a police interrogation. Defendants were not
precluded from presenting evidence of the physical circumstances
in which their statements were made. The evidence defendants
were precluded from presenting—the identity of the Perkins
agents—was not relevant to the claim that their statements were
coerced.
35
2. Limitation of expert testimony
The trial court did not abuse its discretion by limiting
proposed testimony by defendants’ gang expert, Flores. “‘A
witness is qualified to testify about a matter calling for an expert
opinion if his peculiar skill, training, or experience enable him to
form an opinion that will be useful to the jury.’ (People v. Davis
(1965) 62 Cal.2d 791, 800.) The question becomes whether the
expert opinion given was helpful to the trier of fact. The
reception of expert opinion testimony is within the sound
discretion of the trial court. (People v. Haeussler (1953) 41 Cal.2d
252, 261, overruled on other grounds in People v. Cahan (1955) 44
Cal.2d 434.) Even though facts may be within the knowledge or
understanding of the trier of fact, the conclusions to be drawn
therefrom may require expert testimony. (Wells Truckways v.
Cebrian (1954) 122 Cal.App.2d 666, 677; 1 Witkin, Cal. Evidence
(3d ed. 1986) The Opinion Rule, § 474, pp. 445-446.) ‘The decisive
consideration in determining the admissibility of expert opinion
evidence is whether the subject of inquiry is one of such common
knowledge that [persons] of ordinary education could reach a
conclusion as intelligently as the witness or whether, on the other
hand, the matter is sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact.’ [Citation.]
An expert’s opinion is admissible when ‘[r]elated to a subject that
is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.’ (Evid. Code, § 801, subd.
(a).)” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227.)
The trial court’s ruling that a young gang member would be
intimidated or afraid when placed in a cell with another gang
member was a matter of “common experience,” obviating the need
for expert testimony and was not an abuse of discretion. (Ibid.)
36
Defendants’ comparison of Flores’s proposed testimony to
that of the prosecution’s gang expert, Detective Fuentes,
underscores the difference between matters of common
knowledge and those that are “sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact.” (Evid. Code, § 801, subd. (a).) Fuentes testified that a
Hispanic gang member in county jail would be expected to align
with “Southsiders.” If he instead aligned with the “paisas,” he
would be beaten. The dynamics of gang alignments and
affiliations is a matter sufficiently beyond common experience
that expert testimony would assist the jury. Fear of another
gang member in a cell, on the other hand, is not beyond the
common knowledge of the jury.
3. No prejudice
Defendants fail to establish prejudice resulting from the
alleged evidentiary errors. (People v. Bacon (2010) 50 Cal.4th
1082, 1104, fn. 4. [“[O]nly evidentiary error amounting to a
compete preclusion of a defense violates a defendant’s federal
constitutional right to present a defense”]; People v. McNeal
(2009) 46 Cal.4th 1183, 1203 [rejection of some evidence
concerning a defense reviewed for harmless error under People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson)].)
Defendants were not precluded from presenting evidence
concerning the gang dynamics in a jail setting. During cross-
examination of Detective Irving, defendants elicited testimony
that gang members do not want to be perceived as a “wimp” in
jail and that, the more serious their crime, the greater respect
they garner.
As discussed earlier, defendants’ inculpatory statements
corroborated each other. Both admitted Gonzalez was the
37
shooter and Escalante the driver. Defendants’ subsequent
conversation with each other corroborated their earlier individual
statements.
In light of the evidence as a whole, defendants fail to
establish that the trial court’s evidentiary rulings denied them
the ability to present a defense or constituted prejudicial error.
IV. Alleged judicial misconduct
Defendants’ claims that judicial misconduct undermined
the credibility of their eyewitness identification expert, and that
the trial court improperly presided over their motions for a new
trial fail because they demonstrate no prejudice as the result of
the alleged misconduct.
A. Proceedings below
Dr. Pezdek testified for the defense as an eyewitness
identification expert. During Pezdek’s testimony, the trial court
interrupted, stating, “No. No examples. You’ve answered the
question.” Later, after overruling an objection, the trial court
told Pezdek, “But let’s just give a short answer, please.” Pezdek’s
response to a previous question had been lengthy. After several
subsequent lengthy responses by Pezdek, the trial court, after
overruling an objection, stated, “But I would like answers that
are under five minutes, so let’s move it along, please.” Pezdek
continued to give lengthy responses. Overruling another
objection, the trial court told Pezdek, “You have one minute to
finish your answer.” Later, after Pezdek answered another
question, the trial court stated, “All right. I’ve heard it twice
now. Next question, please, and then we’re going to take a
break.”
During the break, defendants’ attorneys moved for a
mistrial. Gonzalez’s counsel stated, “The court’s demeanor
38
comments, rushing . . . the defense witness . . . I believe is really
exhibiting a sense of impatience and hostility towards the field of
eyewitness identification and this witness, and . . . I feel it’s being
conveyed to the jury.” The trial court denied the mistrial motion.
When Pezdek’s testimony resumed, Escalante’s counsel
asked about the correlation between a witness’s confidence and
accuracy. The trial court sustained an objection, stating, “I don’t
think that can be given.” Counsel then asked if there was some
correlation between memory and an expressed level of confidence.
Following another objection, the trial court said, “All right. One
moment. Don’t answer that. Excuse me for just a second.”
After a pause in the proceedings, the trial court returned to
the courtroom and apologized to the jury for the interruption.
Escalante’s counsel asked to rephrase the last question. The
court responded: “Well my concern here is that every situation is
different. I don’t think that there could be a correlation. Every
fact situation, every scenario is different, so—” The trial court
then addressed Pezdek: “All right. Are you done shaking your
head at me, madam witness?” Escalante’s counsel objected, and
the court responded:
“No. You will not object. She laughed at me
once, and now she’s shaking her head at me. I
deserve just as much respect as a doctor deserves, so
if you want to rephrase your question, you may
rephrase it, but I don’t deserve to be laughed at from
someone on the witness stand or have a head shaken
at.”
The following sidebar discussion then occurred:
“The court: Your witness laughed at me
earlier, before I got off the bench, which is one of the
reasons why I got off the bench because she was
laughing at me in my ruling. I don’t deserve that. [¶]
39
Just now, when I was making my ruling, I don’t
deserve her shaking her head at me. I’m sorry it
reflects badly on her, but too bad.
“[Counsel]: For the record, Your Honor, I was
looking at Dr. Pezdek. I didn’t see her laughing, nor
did I observe her shaking her head.”
Defendants made another motion for mistrial, which the
trial court denied, stating:
“I’m sorry, but your witness reflects on your
clients’ credibility and your case. If your witness is
not schooled enough not to laugh at the judge or to
not agree with one of my answers, that’s on you and
that’s on her. [¶] As a judge, I demand respect in my
courtroom. . . . [¶] I’m not going to sit here and be
offended by your witness in front of my jury. Now,
your witness has been testifying perfectly fine, but
for the fact that she repeats her answers three times,
and this court does have the right to limit testimony
and move things along. [¶] But I’m sorry, I’m not
granting a mistrial for something your witness did to
me.”
Pezdek resumed her testimony after the sidebar discussion.
After the noon recess, the trial court addressed the jury: “Ladies
and gentlemen, I’d like to just read to you a couple of things prior
to starting. I won’t deny this morning that I was suffering from a
minor health affliction. My patience may have been a tad short,
so I apologize for that.”
The court then instructed the jurors as follows: “Please do
not take anything I say or do during the trial as any indication of
what I think about the facts, the witnesses—I’ll also include the
attorneys—or what your verdict should be.”
The court then read CALCRIM No. 315, the jury
instruction on eyewitness identification.
40
After the verdicts but before sentencing, defendants filed a
motion for a new trial. Escalante also filed a challenge for cause
under Code of Civil Procedure section 170.1, seeking to recuse
Judge Meyer from hearing the motion. Judge Meyer ordered the
cause challenge stricken as untimely and facially insufficient.
The court also denied the new trial motion.
In its written order, the court stated:
“In this case, the Court has not expressed
favoritism for or antagonism against any of the
parties in this case; indeed, as Defendant notes, the
undersigned expressed regret regarding her short
patience during witness testimony and made jury
instructions to that effect. The undersigned believes
that she can preside over this case with impartiality,
and she has an ethical obligation to do so, because
there is no legal reason for her recusal.”
The court also stated under oath, “I am not prejudiced or
biased against or in favor of any party to this proceeding or their
counsel.”
B. No prejudice
A defendant seeking reversal due to alleged judicial
misconduct must establish prejudice. (People v. Abel (2012) 53
Cal.4th 891, 914.) Prejudice must be determined by considering
all the surrounding circumstances, not simply a determination
that “‘“‘the trial judge’s conduct left something to be desired, or
even [that] some comments would have been better left unsaid.
Rather, we must determine whether the judge’s behavior was so
prejudicial that it denied [the defendant] a fair, as opposed to a
perfect, trial.’”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1321
(Seumanu).) Prejudice is established only when it is reasonably
probable the jury would have reached a different verdict had the
court refrained from the challenged conduct. (People v. Harris
41
(2005) 37 Cal.4th 310, 350-351, citing Watson, supra, 46 Cal.2d at
p. 836.) We conclude from our review of the entire record that a
different verdict was not reasonably probable.
The trial court instructed the jury not to take its words or
actions as indicating its view of the facts, the witnesses, or the
attorneys. The court then read the jury instruction on eyewitness
identification. Jurors are presumed to understand and follow the
court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
The crucial and overwhelming evidence against defendants
was their admissions during the Perkins operation and their
subsequent jail conversation between themselves. Based on our
review of the record, we conclude it is not reasonably probable
that the jury would have reached a different result had the trial
court not directed its comments toward Dr. Pezdek.
C. Denial of new trial motions
The trial court did not abuse its discretion in denying
defendants’ motions for a new trial, based on the alleged judicial
misconduct discussed above. A trial court is vested with
considerable discretion in ruling on a motion for mistrial, which
should be granted only if the trial court finds that the defendant’s
chances of receiving a fair trial have been irreparably damaged.
(People v. Dement (2011) 53 Cal.4th 1, 39, disapproved on another
ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) As we
have already rejected defendants’ claim of judicial misconduct
and have found no prejudice, we also find no abuse of discretion.
D. Challenge for cause
Denial of a challenge for cause under Code of Civil
Procedure section 170.1 is reviewable only by writ of mandate.
(Code Civ. Proc., § 170.3, subd. (d); People v. Freeman (2010) 47
Cal.4th 993, 1000.) Defendants did not seek a writ of mandate
42
and therefore forfeited any statutory claim of error. (Freeman, at
p. 1000.) Their basis for seeking appellate review of the recusal
motion is the purported denial of the due process right to a fair
trial. (People v. Peoples (2016) 62 Cal.4th 718, 787 (Peoples)
[appellate court may review order denying motion to disqualify to
the extent it concerns constitutional rights to due process].)
“‘[T]he [federal] due process clause operates more narrowly’
than Code of Civil Procedure section 170.1, subdivision
(a)(6)(A)(iii) and justifies judicial disqualification only under the
‘“most ‘extreme facts.’”’ [Citations.] To establish a federal due
process violation, ‘“there must exist ‘“the probability of actual
bias on the part of the judge.”’”’” (Peoples, supra, 62 Cal.4th at
p. 787.)
The record here discloses no extreme facts or probability of
actual bias on the part of Judge Meyer. Judge Meyer
acknowledged that she had been short on patience and apologized
to the jury. She instructed the jury not to take her statements or
conduct as an indication of the court’s views about the facts, the
witnesses, or the attorneys. At the hearing on the new trial
motions, Judge Meyer acknowledged that her “testy” behavior
may not have been appropriate but stated her belief that the
instructions to the jury had rectified any error. Finally, Judge
Meyer submitted a statement under oath that she was not biased
for or against any party. We find no due process violation under
these circumstances.
V. Trial court’s statements during jury selection
A. Forfeiture
Defendants arguably forfeited their right to challenge the
trial court’s statements during jury selection by failing to object.
(Seumanu, supra, 61 Cal.4th at p. 1357 [challenge to trial court’s
43
comments during voir dire is claimed judicial error, not
instructional error, forfeited by failure to timely object].)
Defendants contend, however, the trial court’s comments
concerning reasonable doubt, the presumption of innocence, and
the right not to testify misinstructed the jury and can be
challenged under section 1259. That statute allows an appellate
court, absent an objection in the trial court, to “review any
instruction given, refused or modified, even though no objection
was made thereto in the lower court, if the substantial rights of
the defendant were affected thereby.” (§ 1259; see People v.
Brown (2003) 31 Cal.4th 518, 539, fn. 7.) We exercise our
discretion under section 1259 to address defendants’ arguments.
B. Proceedings below
On May 7, 2018, at the beginning of jury selection, the trial
court discussed with prospective jurors a criminal defendant’s
right to a trial, the presumption of innocence, and the right
against self-incrimination. The court told the first panel of
prospective jurors that the presumption of innocence “basically
means . . . a person is absolutely presumed innocent up to and
until 12 jurors unanimously decide differently that that person is
guilty.” The court then proceeded to explain what that concept
meant in the prospective jurors’ “everyday lives.”
To illustrate the presumption, the trial court told a story
about a dog that fell out of a friend’s car window onto the
freeway. After the friend pulled over to the freeway shoulder, a
CHP officer pulled up behind him. The court then addressed the
prospective jurors as follows:
“Now, if you had been driving down that
freeway at the time that you saw my friend’s car on
the side of the freeway, and then you saw a CHP
officer on the side of the freeway with lights and
44
sirens on the side, come on, what’s the first thing
you’re going to think, ‘Oh, I bet he was speeding.’
‘Oh, I bet he was in the carpool lane alone.’”
The trial court continued:
“We think the worst, don’t we? We think,
‘What did that person do?’ We’re already making
presumptions that person did something, and
usually, something bad. [¶] Well, that’s not giving
my friend the presumption of innocence at all, is it?
No.”
The trial court then modified its example as a preface to its
explanation of the right not to testify:
“So let’s just say, for argument’s sake, my
friend on the side of the road was charged with some
kind of a charge . . . and he exercises his right to a
trial. [¶] . . . So the evidence shows, throughout the
trial, that . . . a dog had . . . fallen out of the car, and
maybe the charge is animal cruelty.
“But the dog fell out of the car. Even witnesses
testify, you know, it was an accident or it looked like
an accident. . . . [¶] At the end of the prosecution’s
case-in-chief, they say, ‘Thank you, Your Honor. We
have no more witnesses. We rest.’ And you could be
thinking . . . to yourselves, at that point: ‘All right.
There’s no case here. I don’t feel like the
presumption of evidence has been eroded away—and
certainly not to the level of proof beyond a reasonable
doubt.’
“And by the way, the definition of ‘proof beyond
a reasonable doubt’ is sort of that state of the
evidence that leaves you with an abiding conviction of
the truth of that charge. The only other definition
that I allow in court is the idea that it’s a lasting
45
belief in the truth of that charge. . . . [¶] . . . So let’s
just say that’s the state of the evidence.
“Well, if the presumption of innocence is not
gone, it has not been overcome by this very heavy
burden called ‘proof beyond a reasonable doubt,’ then
why on earth should the defendant have to testify to
anything? It’s almost as if they’ve already testified,
and they sat up here, and they said, ‘I’m innocent,’
and then got right back down.
“So the law is sort of already presuming you’ve
heard the other side of the story, which is the
presumption. Now, the presumption can be
overcome, so please don’t get me wrong. I don’t mean
to diminish the prosecution at all. . . . [I]t can be
overcome.
“But the whole point is: if it hasn’t been
overcome, then we don’t make a defendant actually,
physically take a witness stand to have to say, ‘I’m
innocent,’ and then get back down. The law
essentially does it for you.”
The trial court added:
“So sometimes in criminal trials . . . I hear
jurors say, ‘Well, I can’t vote because I will not
necessarily have heard from the defendants.’ . . . [¶]
[I]f they choose not to testify—sometimes I get people
who feel like, ‘Well, I haven’t heard both sides, so I
can’t make a decision if I haven’t heard both sides.’
But the fact is you have. You have heard both sides.
The law has given you the other side. And so in that
respect, we don’t force a person to testify against
themselves, and that’s part of the reason why we
have that particular r[u]le.”
The trial court told the second panel of prospective jurors a
story about her father-in-law, who had Alzheimer’s, to illustrate
46
the presumption of innocence. The court then explained the right
against self-incrimination and the presumption of innocence:
“Let’s just say, for argument’s sake, [the
prosecutor] puts on his case. . . . [W]e have a couple
of weeks’ worth of evidence, and then he says, ‘I’m all
done, Your Honor. I rest,’ and I say, ‘Okay.’
“Now, although you’re not deliberating yet as a
solid jury, you are, individually, maybe thinking to
yourselves, and you’re allowed to ponder
individually—‘. . .where was the crime? I don’t know
that one of these two people did this. I’m still at a
loss here.
“Let’s just say that’s the state of the evidence,
and that’s what the defense feels the state of the
evidence is, as well. So if the state of the evidence is
that the presumption of innocence has not been
overcome, then why on earth do you need to hear
from any of the defendants in a trial because that
presumption has not been overcome?
“It would be as if it was no different than one of
them takes the stand, and says, ‘I’m innocent,’ and
then he goes and sits down again. The law is already
sort of giving you a little bit of what, theoretically,
testimony could be, so you are actually hearing both
sides. It’s just the law gives you the other side, and
the other side is the presumption. So we do not force
defendants to have to testify if they don’t want to.
[¶] . . . [¶]
“But the idea is if the case is not there, and the
defense feels that in that state of the evidence the
presumption has not been overcome, you should not
feel an abiding conviction of the truth of the charge at
that point in time, then why are we bothering to hear
from the defendants at all?
47
“In other words, they don’t have to prove their
innocence. They are already presumed innocent.”
The next day, the trial court told the combined panel of
prospective jurors about the reasonable doubt standard:
“The law does not require [the prosecutor] to
prove this case beyond any shadow of a doubt or
beyond all doubt. The law doesn’t require absolutes.
The law just requires reasonableness, so proof beyond
a reasonable doubt. It doesn’t even say ‘all
reasonable doubt.’ It just says ‘a reasonable doubt.’”
On May 14, 2018, the trial court preinstructed the
impaneled jurors. The court instructed the jury on the
presumption of evidence and the burden of proof in accordance
with CALCRIM No. 220:
“As we discussed during the voir dire, a
defendant in a criminal case is presumed to be
innocent, and this presumption requires that the
People prove the defendant guilty beyond a
reasonable doubt. [¶] Proof beyond a reasonable
doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need
not eliminate all possible doubt because everything in
life is open to some possible or imaginary doubt.”
On May 24, 2018, after the close of evidence, the trial court
instructed the jury pursuant to CALCRIM Nos. 220 and 355 on
the presumption of innocence, the burden of proof beyond a
reasonable doubt, and the right not to testify.
C. No reasonable likelihood the trial court
diminished the burden of proof
In assessing defendants’ argument that the trial court’s
comments diminished the prosecution’s burden of proof, the
relevant question is whether “‘there is a reasonable likelihood
48
that the jury understood the instructions [as a whole] to allow
conviction based on’ insufficient proof.” (People v. Daveggio &
Michaud (2018) 4 Cal.5th 790, 840 (Daveggio).)
1. Presumption of innocence and reasonable doubt
Defendants claim the trial court undermined the
presumption of innocence and the reasonable doubt standard by
suggesting the presumption could be “eroded away” or “overcome”
by proof beyond a reasonable doubt when the prosecution rested.
The presumption of innocence remains until a unanimous jury
verdict finds guilt proven beyond a reasonable doubt. (People v.
Cowan (2017) 8 Cal.App.5th 1152, 1159.) We find no reversible
error.
The trial court told the first panel of prospective jurors that
the presumption of innocence “basically means . . . a person is
absolutely presumed innocent up to and until 12 jurors
unanimously decide differently that that person is guilty.” The
court similarly told the second panel of prospective jurors the
“presumption lasts up to and until 12 jurors decide that that
presumption has been overcome.”
Defendants contend the trial court diminished the
reasonable doubt standard by stating: “The law doesn’t require
absolutes. The law just requires reasonableness, so proof beyond
a reasonable doubt. It doesn’t even say ‘all reasonable doubt.’ It
just says ‘a reasonable doubt.’” Defendants also take issue with
the trial court’s statements that a “blatant accusation” with “no
proof” and “no trial” is the antithesis of the presumption of
innocence; that the presumption of innocence is the equivalent of
the defendant taking the stand and saying, “I’m innocent”; and
the court’s request that jurors “give the presumption of innocence
49
until you have more information” as incorrect statements of the
law.
We reject defendants’ contentions that there is a reasonable
likelihood the jury misapplied the law because of the trial court’s
statements. The trial court’s statements during voir dire were
“merely a portion of the guidance provided to prospective jurors—
let alone seated jurors—and the balance of the court’s
instructions made clear that the People bore the burden of proof
beyond a reasonable doubt.” (People v. Potts (2019) 6 Cal.5th
1012, 1039.) The impaneled jurors were repeatedly instructed on
the principles of reasonable doubt and presumption of innocence
once the trial began. Considering the instructions given and the
evidence presented at trial, it is not reasonably probable that the
jury misapplied the law. (People v. Holt (1997) 15 Cal.4th 619,
662 [trial court’s description of the reasonable doubt standard did
not “create such an indelible impression on prospective jurors”
that they were unable to follow specific instructions given when
case was submitted to the jurors for decision].) “Indeed, even
instructions during trial that misdescribe the burden of proof
may, in light of other instructions, leave no reasonable likelihood
that the jury misunderstood the proof required.” (Daveggio,
supra, 4 Cal.5th at p. 842.)
Defendants next contend the trial court erred by suggesting
jurors could individually reach a conclusion about whether the
presumption of innocence had been overcome when the
prosecution rested, in violation of their duty not to form an
opinion about the case until deliberations. We find no error.
Defendants incorrectly equate thinking about the case with
jury deliberations. “A juror who holds a preliminary view that a
party’s case is weak does not violate the court’s instructions so
50
long as his or her mind remains open to a fair consideration of
the evidence, instructions, and shared opinions expressed during
deliberations.” (People v. Allen and Johnson (2011) 53 Cal.4th
60, 73.) As our Supreme Court stated in People v. Ledesma
(2006) 39 Cal.4th 641, 729, “it would be entirely unrealistic to
expect jurors not to think about the case during the trial and
when at home.” The high court in that case found no error in the
trial court’s comments when excusing the jury for the day that
they could continue to think about the case, but they could not
communicate their thoughts to anyone until they were together
again for deliberation. (Ibid.)
The trial court in this case preinstructed the impaneled
jurors to “keep an open mind throughout the trial” and
admonished, “[d]o not make up your mind about the verdict or
any issue until after you have discussed it with your fellow jurors
and only after deliberations.” We presume the jury followed the
court’s instructions. (People v. Washington (2017) 15 Cal.App.5th
19, 26 (Washington).)
2. Right not to testify
Defendants contend the trial court diminished the right not
to testify by suggesting a defendant need not testify if, at the
close of the prosecution’s case, guilt had not been proven beyond a
reasonable doubt. “By negative implication,” defendants argue,
the trial court suggested that “if the prosecution had provided
proof of guilt beyond a reasonable doubt when it rested, the
defendant would need to testify.”
“A defendant challenging an instruction as being subject to
erroneous interpretation by the jury must demonstrate a
reasonable likelihood that the jury understood the instruction in
51
the way asserted by the defendant.” (People v. Cross (2008) 45
Cal.4th 58, 67-68.) Defendants fail to do so.
The trial court discussed one scenario in which a defendant
may choose not to testify. The court was not obligated, as
defendants claim, to present other scenarios and other reasons
not to testify. The trial court’s comments, moreover, must be
considered in the context of the trial record as a whole to
determine whether there is a reasonable likelihood the jury
misapplied the court’s instructions. (See People v. Houston (2012)
54 Cal.4th 1186, 1229.) The court also told the prospective jurors
that under the Fifth Amendment, “we don’t make someone who is
accused of a crime have to testify against him or herself in a
trial.” The trial court told the second panel, “we do not force
defendants to have to testify if they don’t want to.” The court
also formally instructed the impaneled jurors on the right not to
testify pursuant to CALCRIM No. 355 before deliberations began.
As a general rule, courts presume that juries can and will
dutifully follow instructions they are given. (Washington, supra,
15 Cal.App.5th at p. 26; see Daveggio, supra, 4 Cal.5th at p. 842
[comments made during jury selection are less significant than
instructions at the close of evidence].) The record discloses no
reversible error.
VI. Alleged instructional and prosecutorial error
Defendants contend the trial court erred by instructing the
jury pursuant to CALCRIM No. 315 in effect at the time of the
trial, which contained a “misleading implication” that an
eyewitness who is more certain of his or her identification is more
likely to be accurate. Defendants further contend the prosecutor
exploited this misleading implication during cross-examination of
defendants’ eyewitness expert.
52
We find no judicial or prosecutorial error.
A. Proceedings below
During Dr. Pezdek’s testimony, the trial court instructed
the jury with the then operative version of CALCRIM No. 315,
which asked the jury to consider, among 14 other factors, “how
certain was the witness when he or she made an identification?”9
The prosecutor then cross-examined Dr. Pezdek:
“Q. [Y]ou indicated that percentage or
confidence is only relevant at the initial point of—
right after the crime occurred; is that accurate?
“A. No. . . . Whenever the first identification
occurs, the first time a witness is shown a
photographic lineup or a field show-up or whatever,
at that first opportunity to make an identification,
the expressed confidence of the witness is going to be
indicative of their likely accuracy.
“Q. Okay. And then if they come—I don’t
know, a month later—and they identify in court, and
they say, ‘I’m 100 percent confident,’ you’re saying
that that has no relevance—you shouldn’t even
9 The Judicial Council modified CALCRIM No. 315 in 2022.
The 2022 version states that a trial court should include the
“How certain was the witness” language in its instructions when
there is evidence a witness has expressed certainty about an
identification. (Bench Notes to CALCRIM No. 315 (2022 ed.).)
When the certainty language is included in the trial court’s
instructions, the court must also instruct the jury that “[a]
witness’s expression of certainty about an identification, whether
the identification was made before or at the trial, may not be a
reliable indicator of accuracy” and recite several factors the jury
may consider when evaluating the significance of the witness’s
certainty. (Ibid.)
53
consider the person saying, ‘I’m 100 percent
confident[?]’
“A. Should not even consider it . . . . If the
witness initially said, ‘I think that’s him, but I can’t
really tell,’ and then, in your hypothetical, a month
later, comes to court and looks at that same person,
well heavens, a lot of people would figure out, ‘Hey,
it’s the same person. It must be him. That’s him.
I’m 100 percent confident.’ So . . . it’s the bias of this
in-court identification that can be the total cause of
that high confidence.
“Q. [Y]ou’re familiar with CALCRIM 315;
correct?
“A. Yes.
“Q. And you’re aware that, in CALCRIM
315 . . . the law says that you can consider the
confidence of a witness’s identification of a defendant.
[I]t does say that; correct?
“A. Absolutely . . . . That’s what I’m just saying
right now. The CALCRIM instruction doesn’t say
how to consider the confidence, and that’s what I was
clarifying . . .—how it’s to be considered. [¶] But the
confidence expressed by . . . a witness who comes into
court and says, ‘That’s the person. I’m 100 percent
confident.’ If, in the previous four years, hasn’t ever
said that, . . . the confidence is not going to be a
useful indication of whether they’re really
recognizing the person or not.
“Q. Well, the CACRIM doesn’t say: ‘You can
only consider the first identification of the witness.’
“[Escalante’s counsel]: Objection;
argumentative, Your Honor—
“The court: Overruled.
54
“[Escalante’s counsel]: —Also, calls for a
conclusion.
“The court: . . . Actually, I just read, ladies and
gentlemen, that exact CALCRIM to you. That’s the
same item we were reading. So it says what I said it
says. Go from there sir.”
The prosecutor had no further questions. The trial court
also gave the then current version of CALCRIM No. 315, which
included the certainty factor language, in its final jury
instructions.
B. People v. Lemcke
In People v. Lemcke (2021) 11 Cal.5th 644, 647, 665
(Lemcke), the California Supreme Court acknowledged that
“[c]ontrary to widespread lay belief, there is now near unanimity
in the empirical research that ‘eyewitness confidence is generally
an unreliable indicator of accuracy’” and that “‘jurors . . . tend to
overvalue the effect of . . . certainty . . . in determining the
accuracy of eyewitness identifications.’” The high court noted
that the then current version of CALCRIM No. 315 did not
correct the common misconception that a witness’s high degree of
certainty in an identification correlates to accuracy. (Id. at
pp. 647, 666.) Rather, by “merely directing the jury to consider a
witness’s level of certainty, without any further caveats, [the
instruction] effectively operates to reinforce that misconception.”
(Id. at p. 666.)
The Supreme Court also warned that “[t]he risk of juror
confusion is heightened by the structure of CALCRIM No. 315,
which lists witness certainty among numerous other factors the
jury should consider when assessing the eyewitness testimony.
As written, the instruction implies that each of these factors have
a direct, linear bearing on accuracy. For instance, ‘How well
55
could the witness see the perpetrator’ implicitly prompts the jury
to believe that if the witness could see the perpetrator well, the
identification should be given more weight, and vice versa; ‘How
closely was the witness paying attention,’ ‘Was the witness under
stress when he or she made the observation,’ ‘Did the witness
ever fail to identify the defendants,’ all do the same. Hearing the
certainty instruction in this context increases the risk that the
jury will infer certainty operates the same way—as having some
direct relationship with the accuracy of the identification.”
(Lemcke, supra, 11 Cal.5th at p. 666.)
Despite the risks of allowing a jury to consider the level of
an eyewitness’s confidence to determine the accuracy of an
identification, the court in Lemcke noted that inclusion of the
certainty factor in CALCRIM No. 315 does not, by itself, violate
due process. (Lemcke, supra, 11 Cal.5th at pp. 646-647, 661.) A
due process violation occurs only if the jury instruction—“‘“in the
context of the instructions as a whole and the trial record”’”—
renders the defendant’s trial fundamentally unfair, most often by
lowering the prosecution’s burden of proof. (Id. at pp. 647, 655,
661, quoting People v. Foster (2010) 50 Cal.4th 1301, 1335.)
The Lemcke court’s examination of the record before it also
revealed sufficient safeguards to prevent the jury from
improperly inferring that a witness’s certainty in making an
identification ensures its accuracy. The Supreme Court
concluded, “when considered ‘“in the context of the instructions as
a whole and the trial record”’ [citation], . . . listing the witness’s
level of certainty as one of 15 factors the jury should consider
when evaluating an eyewitness identification did not render
[defendant’s] trial fundamentally unfair or otherwise amount to a
due process violation.” (Lemcke, supra, 11 Cal.5th at p. 661.)
56
Despite the absence of a due process violation in the case
before it, the court in Lemcke nevertheless determined “there is a
risk that the [then] current version of [CALCRIM No. 315] will
prompt jurors to infer that an eyewitness’s certainty in an
identification is generally a reliable indicator of accuracy.”
(Lemcke, supra, 11 Cal.5th at p. 669.) To avoid that risk, the
Supreme Court exercised its supervisory powers to direct
California trial courts to omit the certainty factor language from
CALCRIM No. 315 until the language might be revised to
minimize possible juror misdirection. (Lemcke, at pp. 646-648,
669.)
C. No judicial or prosecutorial error
Defendants do not contend the trial court’s instruction
pursuant to CALCRIM No. 315 or the prosecution’s cross-
examination concerning that instruction deprived them of due
process. We reject defendants’ alternate claim of prejudicial
error.
In determining whether instructing the jurors on
identification certainty was reversible error, we must consider
the jury instructions as a whole. (Lemcke, supra, 11 Cal.5th at
p. 658.) The jury here was instructed that defendants were
presumed innocent and that the prosecutor had the burden of
proving each element of the offenses beyond a reasonable doubt.
The jury was also instructed that the prosecutor had the burden
of proving beyond a reasonable doubt that defendants committed
the crimes. The jury was further instructed it “alone must judge
the credibility or believability of the witnesses” and that “[p]eople
sometimes honestly . . . make mistakes about what they
remember.” In light of the instructions as a whole, we conclude
there was no reversible error. (Ibid.)
57
Even assuming any error by the trial court or the
prosecutor, we see no resulting prejudice. Lopez, Sr., the only
witness who identified Escalante as one of the perpetrators, did
not say he was certain about his identification. Defendants
presented testimony of Dr. Pezdek, an eyewitness identification
expert, “who explained the limited circumstances when certainty
and accuracy are positively correlated.” (Lemcke, supra, 11
Cal.5th at p. 647.) More importantly, the identification was not
the only—or even strongest—evidence connecting defendants to
the crimes. Defendants’ admissions to the Perkins agents and
during their jail conversation with each other were the most
compelling evidence of guilt. Given this evidence, it is not
reasonably probable defendants would have obtained a more
favorable result had the trial court omitted the certainty factor
language from CALCRIM No. 315 and had the prosecutor not
cross-examined Dr. Pezdek about that instruction. (People v.
Sanchez (2016) 63 Cal.4th 411, 463.)
VII. Gang sentencing enhancements
Effective January 1, 2022, the law affecting defendants’
sentences changed. Assembly Bill 333 amended the
requirements for proving the “pattern of criminal gang activity”
necessary to establish the existence of a criminal street gang.
(Assem. Bill 333, § 3; People v. Lopez (2021) 73 Cal.App.5th 327,
345 (Lopez).) As relevant here, Assembly Bill 333 amended
section 186.22, subdivision (e)(2) to preclude use of a currently
charged offense as a predicate offense to establish a “pattern of
criminal gang activity.”
Defendants contend, the Attorney General concedes, and
we agree that the amended statute applies here, as defendants’
judgments are not yet final on appeal. (People v. Delgado (2022)
58
74 Cal.App.5th 1067, 1087 [Assem. Bill 333 amendments to
§ 186.22 apply retroactively to defendant whose judgment was
not yet final]; Lopez, supra, 73 Cal.App.5th at p. 344 [same].)
A. Gang enhancement findings
The Attorney General also concedes that under Assembly
Bill 333, defendants’ current offenses cannot be used to establish
a pattern of criminal gang activity and that the prosecution
proved, at most, only one predicate offense, not two offenses as
required by section 186.22.10 The Attorney General agrees with
defendants that the gang enhancement findings (but not the
gang-murder special circumstance finding) must be vacated.
Defendants further contend their firearm enhancements
imposed pursuant to section 12022.53, subdivision (e)(1) on
counts 1, 2, and 4 must also be vacated because they are
premised on findings that a principal violated section 186.22,
subdivision (b).11 The Attorney General does not dispute this
contention.
10 The Attorney General concedes that the prosecution’s
evidence of the convictions of Jose Rangel, Enrique Hernandez,
and Jesus Hernandez for murder was evidence of a single
predicate offense.
11 Although the trial court struck these enhancements at
sentencing as to Escalante and stayed the enhancements as to
Gonzalez under section 654, even if the punishment for the
enhancement was stricken or stayed, the jury’s “enhancement
finding could impact defendant[s] in a future case: ‘Striking an
aspect of an enhancement does not “operate to defeat the a
factual finding of the truth of the [allegation], instead, such act
merely serves to prohibit a certain purpose for which the
[allegation] may be used.”’” (People v. Fuentes (2015) 1 Cal.5th
218, 225.)
59
We vacate the gang enhancement findings, including the
firearm enhancements imposed pursuant to section 12022.53,
subdivision (e)(1) on counts 1, 2, and 4, and remand the matter to
give the People the option of retrying those allegations under the
law as amended by Assembly Bill 333.12
B. Gang-murder special circumstance finding
Defendants contend the jury’s true finding regarding the
gang-murder special circumstance allegations (§ 190.2, subd.
(a)(22)) must also be vacated under the law as amended by
Assembly Bill 333. The Attorney General disagrees, arguing that
Assembly Bill 333’s amendment of the gang-murder special
circumstance is unconstitutional.13 Appellate courts are divided
on this issue. (Compare People v. Rojas (2022) 80 Cal.App.5th
542 (Rojas), review granted Oct. 19, 2022, S275835, with People
v. Lee (2022) 81 Cal.App.5th 232 (Lee), review granted Oct. 19,
2022, S275449.)
In Rojas, a divided panel in the Fifth Appellate District
held that Assembly Bill 333 is unconstitutional to the extent it
narrowed the scope of conduct made punishable under section
12 Because we conclude the gang enhancements were imposed
in violation of section 186.22, subdivision (e)(2), we do not
address defendants’ other arguments concerning proof of the
gang predicate offenses in connection with the gang allegations.
13 The Attorney General initially agreed with defendants that
the jury’s finding regarding the gang-murder special
circumstance must also be vacated under Assembly Bill 333.
However, in a subsequent supplemental brief, the Attorney
General changed its position and argued that Assembly Bill 333
unconstitutionally amended the gang-murder special
circumstance enacted by voters in Proposition 21 (as approved by
voters, Primary Elec. (Mar. 7, 2000)).
60
190.2, subdivision (a)(22). (Rojas, supra, 80 Cal.App.5th at
p. 555, review granted.) Section 190.2 sets forth a list of special
circumstances in which the punishment for first degree murder is
death or LWOP. (§ 190.2, subd. (a).) Proposition 21, enacted by
California voters in 2000, added a new special circumstance to
this list. (Voter Information Guide, Primary Elec. (Mar. 7, 2000)
text of Prop. 21, § 11, pp. 121-122.) That special circumstance
applies to murders where “[t]he defendant intentionally killed the
victim while the defendant was an active participant in a
criminal street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the activities of
the criminal street gang.” (Ibid.; § 190.2, subd. (a)(22).)
Assembly Bill 333 amended the definition of a “criminal
street gang” in section 186.22, subdivision (f) by narrowing that
definition.14 (Rojas, supra, 80 Cal.App.5th at pp. 552-553, review
granted.) The Rojas majority concluded that the legislative
amendment was unconstitutional as applied because California
14 Assembly Bill 333 narrowed the definition of a criminal
street gang in section 186.22, subdivision (f) in several ways: (1)
It excludes from the definition of a criminal street gang those
associates or groups whose members have individually, but not
collectively, engaged in a pattern of criminal gang activity. (2) It
restricts the definition of a “pattern of criminal activity” by
requiring that prior offenses must have commonly benefitted a
gang, and the benefit must be more than reputational. It also
requires that the last of the offenses used to establish a pattern of
criminal gang activity must have occurred within three years
before commission of the current offense. (3) It excludes from the
definition of a criminal street gang groups or associations whose
primary activities include looting or felony vandalism, but does
not include the crimes listed in section 186.22, subdivision (e).
(Rojas, supra, 80 Cal.App.5th at pp. 552-553, review granted.)
61
voters had restricted the Legislature’s ability to amend the
provisions of Proposition 21 by stating it could only do so with a
two-thirds vote in each house or by a statute that becomes
effective only when approved by the voters. (Rojas, supra, at
p. 553; Voter Information Guide, Primary Elec., supra, text of
Prop. 21, § 39, p. 131.) Because Assembly Bill 333 did not comply
with that requirement, and effectively narrowed the scope of
section 190.2, subdivision (a)(22), the Rojas majority held the
amendment unconstitutional as applied. (Rojas, at pp. 557-558.)
In Lee, Division Four of this appellate district reached the
opposite result. The court in Lee rejected the argument that
Assembly Bill 333 impermissibly narrowed the scope of section
190.2, subdivision (a)(22) by amending the definition of a
“criminal street gang” in section 186.22. (Lee, supra, 81
Cal.App.5th at p. 241, review granted.) Focusing on the voter’s
intent as expressed in the language of Proposition 21, the court in
Lee found no indication that voters intended to prohibit any
future amendment of section 186.22, subdivision (f) from being
incorporated into the gang-murder special circumstance. (Lee, at
pp. 241-242.) The court noted that in enacting Proposition 21,
voters “clearly knew how to express the intent to freeze a
statutory definition” by changing the “‘“lock-in”’” date for
determining the existence of qualifying offenses under the “Three
Strikes” law. (Lee, at p. 243.) “Proposition 21 provided that ‘for
all offenses committed on or after the effective date of this act, all
references to existing statutes in [§§ 667, subds. (c)-(g), 1170.125]
are to those statutes as they existed on the effective date of this
act, including amendments made to those statutes by this act.’”
(Ibid.) Given these express time-specific references, the court in
Lee concluded that “had the voters also intended section 11 of
62
Proposition 21 to make a time-specific incorporation of section
186.22, subdivision (f), they would ‘have said so in readily
understood terms.’” (Ibid.)
We find the court’s reasoning in Lee to be persuasive and
apply it here. Assembly Bill 333 is not unconstitutional as
applied to the gang-murder special circumstance. The jury’s true
finding regarding the gang-murder special circumstance
allegations under section 190.2, subdivision (a)(22) need not be
vacated for that reason.
C. Proof of gang predicate offenses
Because we conclude Assembly Bill 333 did not
unconstitutionally amend section 186.22, subdivision (f) as
applied to the gang-murder special circumstance, we address
defendants’ argument that the gang-murder special circumstance
finding15 must be reversed because the prosecution’s proof of the
“pattern of criminal gang activity” element of that enhancement
constituted inadmissible hearsay and violated their Sixth
Amendment right to confront and cross-examine witnesses.
Defendants further contend the documentary evidence used to
establish the date of the predicate offenses was inadmissible
hearsay and violated their Sixth Amendment right of
confrontation. Alternatively, defendants argue their trial counsel
was ineffective for failing to object to admission of that evidence.
15 Defendants make the same argument to vacate the jury’s
gang enhancement findings. We do not address this challenge to
the gang enhancement findings because, as discussed in part
VII.A., we conclude the gang enhancements were imposed in
violation of section 186.22, subdivision (e)(2) and vacate the jury’s
findings as to those enhancements on that ground.
63
Defendants forfeited their argument concerning the
documentary evidence used to establish the date of the predicate
offense by failing to object to that evidence at trial. The record
discloses no abuse of discretion in the admission of the
prosecution’s gang expert testimony, no violation of defendants’
right of confrontation, and no ineffective assistance by
defendants’ trial counsel.
1. Proceedings below
During the testimony of Detective Fuentes, the
prosecution’s gang expert, the prosecutor offered three certified
court documents to establish the gang predicate offense. Those
documents indicate that on August 15, 2014, in Los Angeles
Superior Court case No. TA127879, Jose Rangel, Enrique
Hernandez, and Jesus Hernandez were convicted of the murder
of Jonathan Sandoval and that the crime was committed on
April 12, 2013. The jury in that case found true the allegation
that Rangel personally discharged a firearm causing death. As to
Enrique and Jesus,16 the jury found true the allegation that a
principal discharged a firearm. As to all three defendants, the
jury found true the allegation that the offense was committed for
the benefit of a criminal street gang. The certified court
documents were admitted into evidence without objection.
Fuentes testified on direct examination that he was
familiar with Rangel, Enrique, and Jesus. He explained that
when he began training with the sheriff department’s gang unit,
“this was a case that was brought to my attention.” Fuentes
opined that Rangel was a gang member at the time of his offense
16 Because they have the same surname, we refer to Enrique
Hernandez and Jesus Hernandez by their first names to avoid
confusion.
64
and that Rangel appeared to be a member of USV 13. Fuentes
based his opinion on tattoos on Rangel’s body. When the
prosecutor asked Fuentes if he observed USV tattoos on Rangel’s
body, Fuentes responded in the affirmative.
Fuentes further opined that Enrique was a USV gang
member, based on a large tattoo of the word “Compton” across
Enrique’s chest, his moniker, and his association with Rangel.
Fuentes also based his opinion on the fact that the murder
victim, Jonathan Sandoval, was a known member of the East
Side Paramount gang, USV’s biggest rival.
Fuentes opined that Jesus was also a USV gang member,
basing his opinion on a “Compton” tattoo on Jesus’s arm, Jesus’s
association with Rangel and Enrique, and the fact that the
murder victim was a rival gang member.
On cross-examination, Gonzalez’s counsel asked Fuentes
how he knew Rangel was a member of USV. Fuentes responded:
“When I first started my assignment at OSS, this was one of the
first cases that was brought to my attention, and it was discussed
amongst the investigators. I know of him. I’d never contacted
him personally.”
The following exchange ensued:
“Q. Okay. So you heard that he was a member
of the USV?
“A. I heard, and I saw documentation, yes, sir.
“Q. You saw documentation?
“A. Yes, sir.
“Q. Well, what documentation?
“A. I believe they were—they were either
booking slips or FIR cards that indicated his
tattoos . . . [¶] . . . [¶]
65
“Q. . . . You basically knew he was a USV gang
member because of what you had heard from other
officers; is that right?
“A. Yes, from known knowledge of other
investigators.
“Q. So it’s what other investigators had told
you?
“A. Yes.”
Gonzalez’s counsel then indicated he had a motion to make,
but asked if he should “hold that in abeyance.” The trial court
responded, “[h]old it for now.”
Gonzalez’s counsel next cross-examined Fuentes about
Enrique:
“Q. And did you know Enrique Hernandez,
personally?
“A. No, sir.
“Q. But you indicated that he was a member of
USV?
“A. A member or an associate.
“Q. . . . And is that also from what other
investigators had told you?
“A. Yes.
“Q. And is it the same thing for Jesus
Hernandez, who was convicted of the same murder in
2013?
“A. Yes, sir.
“Q. Same—same thing that you heard from
other investigators?
“A. Correct.”
66
Fuentes further testified on cross-examination that his
opinion that the victim, Sandoval, was a rival gang member was
based on what other investigators had told him.
Gonzalez’s counsel also asked Fuentes, “So the predicates
for Jose Rangel, he was convicted of—of murder on October 15th
of 2014; is that—is that correct?” Fuentes responded, “I believe
so. I can’t confirm that.”
On redirect examination, the following exchange between
the prosecutor and Fuentes occurred:
“Q. You indicated that part of the basis for
your opinion that [Rangel, Enrique, and Jesus are]
USV gang members at that time, was that you
observed booking photographs for each of these
individuals at the time of their arrest for the murder
charge; is that right?
“A. I believe I viewed those booking photos
when I began training at OSS. I don’t know if that
was around—I believe that was around the same
time they were convicted.
“Q. No. My question is: You’ve seen booking—
you’ve seen booking photos of those individuals that
were taken at the time of their arrest?
“A. Yes.
“Q. I believe that your testimony yesterday
was that part of the basis of your opinion was they
had tattoos that were consistent, in your opinion,
with USV; correct?
“A. In my opinion, yes, sir.
“Q. Okay. And that was part of the basis of
your opinion why they were USV gang members?
“A. Yes, sir.
67
“Q. And the fact that they were associating
together at that time of the crime?
“A. Correct.
“Q. And you indicated, also, that you had
learned that the victim of the—that incident was a—
of the murder was an East Side Paramount gang
member?
“A. Correct.
“Q. And you indicated that that was also the
basis of your opinion, given that East Side
Paramount is the main rival to the USV gang?
“A. It’s the main rival to the USV gang that
belongs to the Paramount clique; correct.”
On recross-examination, Gonzalez’s counsel asked Fuentes
about the booking photographs:
“Q. [Y]ou indicated that you saw these booking
photos with the tattoos of Mr. Rangel sometime in
2014; is that correct?
“A. When I began training in 2014, yes, that’s
around the time I saw those photos.
“Q. Okay. And you haven’t seen them since?
“A. I have—I believe I have, yeah. [¶] . . . [¶]
“Q. [W]hen have you?
“A. When I found out that I was coming to this
case.
“Q. [A]nd you took a look at those booking
photos?
“A. I viewed numerous photos of members from
USV 13. [¶] . . . [¶]
“Q. Okay. And you viewed this photo of Jose
Rangel?
68
“A. That was one of them, yes.”
During a subsequent sidebar conference, Gonzalez’s counsel
moved to strike Fuentes’s testimony about “what he’s heard from
other investigators.”
The trial court denied the motion, stating
“I was listening for this, specifically, on direct
because of Sanchez,[17] and I did hear how he thinks
that the three people in the predicates were gang
members was based on him looking at . . . gang
photos. [¶] That’s how he came to his own opinion,
and the photos, themselves, are not hearsay. So I’m
okay with him giving an opinion that they were gang
members based on those photos.
“Both of you, I believe, elicited from him . . .
that he also spoke to other officers. So you actually
elicited the hearsay under Sanchez. [¶] . . . [¶] [S]o
then to come back and say, ‘Well, I object to the
answers,’ I think that is inappropriate. [¶] And if
there was one answer in direct examination that
elicited hearsay, I think it’s too late. It should have
been asked . . . on direct.”
The trial court then instructed the jury as follows:
“Ladies and gentlemen, I’m going to caution—
that’s all—about when a witness testifies to
something they were told by someone else, one should
be cautious about that. I’m sure many people have
heard the concept of hearsay. [¶] However,
testimony in which someone may have personal
knowledge of things that were directly told to them
by, perhaps, a perpetrator or suspect or a gang
17 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
69
member or directly viewed by them, that is less
cautious.”
2. Applicable law and standard of review
a. Proof of predicate offense
To establish that a group is a criminal street gang for
purposes of gang sentence enhancements, the prosecutor must
prove, among other things, that the group’s members engage in
or have engaged in a pattern of criminal gang activity. (People v.
Lara (2017) 9 Cal.App.5th 296, 326-327.) At the time of trial in
this case, a pattern of criminal gang activity meant “‘the
commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction of two
or more of [enumerated] offenses, provided at least one of these
offenses occurred after the effective date of this chapter and the
last of those offenses occurred within three years after a prior
offense.’” (Lopez, supra, 73 Cal.App.5th at p. 345, quoting former
§ 186.22, subd. (e).) “Taken together the statutory scheme
requires proof that gang members committed at least two
predicate offenses within the statutory timeframe. Such proof
will generally require evidence of who committed the crime and
when they did so, as well as evidence of their gang membership
and the nature of the crimes.” (People v. Valencia (2021) 11
Cal.5th 818, 829-830.)
To prove that a particular gang meets the statutory
requirements, the prosecution usually presents a gang expert to
describe the name or “‘identifying sign[s] or symbol[s]’” of the
promoted gang; the gang’s “‘primary activities’”; and at least two
offenses committed by the defendant or his fellow gang members
to show the gang had engaged in a “‘pattern of criminal gang
activity.’” (People v. Prunty (2015) 62 Cal.4th 59, 75-85.)
70
b. Experts, hearsay, and Sanchez
Hearsay generally is inadmissible, unless it falls under an
exception. (Evid. Code, § 1200, subds. (a), (b); Sanchez, supra, 63
Cal.4th at p. 676.) Although expert witnesses frequently acquire
knowledge in their field of expertise from hearsay sources, “[t]he
hearsay rule has traditionally not barred an expert’s testimony
regarding his general knowledge in his field of expertise.”
(Sanchez, at p. 676.)
In Sanchez, our Supreme Court explained that “[w]hen any
expert relates to the jury case-specific out-of-court statements,
and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay.”
(Sanchez, supra, 63 Cal.4th at p. 686.) The high court defined
“[c]ase-specific facts” as “those relating to the particular events
and participants alleged to have been involved in the case being
tried.” (Id. at p. 676.) The court in Sanchez held that an expert’s
recitation of case-specific facts is prohibited if the facts are
outside the expert’s personal knowledge, do not fall under an
exception to the hearsay rule, or have not been independently
established by competent evidence. (Id. at pp. 676-677, 686.) The
court in Sanchez preserved, however, an expert’s ability to rely on
and cite background information “regarding his knowledge and
expertise and premises generally accepted in his field” and to
“tell the jury in general terms” “the kind and source of the
‘matter’ upon which his opinion rests.” (Id. at pp. 685-686.) To
illustrate the distinction between general background
information and case-specific facts, the court in Sanchez provided
the following example in a gang-related context: “That an
associate of the defendant had a diamond tattooed on his arm
would be a case-specific fact that could be established by a
71
witness who saw the tattoo, or by an authenticated photograph.
That the diamond is a symbol adopted by a given street gang
would be background information about which a gang expert
could testify. The expert could also be allowed to give an opinion
that the presence of a diamond tattoo shows the person belongs to
the gang.” (Id. at p. 677.)
c. Confrontation clause and Crawford
In Crawford, the United States Supreme Court held that
the admission of “testimonial” hearsay against a criminal
defendant violates the Sixth Amendment right to confront and
cross-examine witnesses. (Crawford v. Washington, supra, 541
U.S. at pp. 53-54.) In light of Crawford, the California Supreme
Court in Sanchez held that an additional step of analysis is
required in criminal cases to determine if an expert’s statements
qualify as “testimonial hearsay.” (Sanchez, supra, 63 Cal.4th at
p. 686.) After reviewing the relevant case law, the Sanchez court
concluded hearsay statements are testimonial if they are made
“primarily to memorialize facts relating to past criminal activity,
which could be used like trial testimony. Nontestimonial
statements are those whose primary purpose is to deal with an
ongoing emergency or some other purpose unrelated to
preserving facts for later use at trial.” (Id. at p. 689.)
Conviction records are not barred by the Sixth Amendment.
(U.S. v. Weiland (9th Cir. 2005) 420 F.3d 1062, 1076-1077; People
v. Morris (2008) 166 Cal.App.4th 363, 370-373.) “Conviction
records in general are not testimonial in nature because they are
‘prepared to provide a chronicle of some act or event relating to
the public employee’s duty’ and are not ‘produced to be used in a
potential criminal trial or to determine whether criminal charges
should issue.’” (People v. Thompkins (2020) 50 Cal.App.5th 365,
72
412, quoting People v. Taulton (2005) 129 Cal.App.4th 1218,
1225.)
Under state law, conviction records also fall within a
hearsay exception allowing “admission of qualifying court records
to prove not only the fact of conviction, but also that the offense
reflected in the record occurred.” (People v. Duran (2002) 97
Cal.App.4th 1448, 1460-1461; see Evid. Code, §§ 452.5, subd.
(b)(1) [court record is admissible “to prove the commission . . . of a
criminal offense [or] prior conviction”], 1280 [hearsay exception
for records made by public employees as part of their duties].)
d. Standard of review
We review the trial court’s evidentiary rulings, including
those concerning the hearsay nature of the evidence, for abuse of
discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.) An
abuse of discretion occurs when the trial court makes an error of
law. (People v. Patterson (2017) 2 Cal.5th 885, 894; see People v.
Rowland (1992) 4 Cal.4th 238, 266.)
If error is found, any violation of state evidentiary rules is
reviewed for prejudice under the Watson standard. (Sanchez,
supra, 63 Cal.4th at pp. 685, 698; People v. Fudge (1994) 7
Cal.4th 1075, 1102-1103; Watson, supra, 46 Cal.2d at p. 836.) A
violation of the Sixth Amendment right of confrontation is
reviewed for harmless error under the Chapman standard.
(People v. Amezcua and Flores (2019) 6 Cal.5th 886, 912; see
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [“before
a federal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a
reasonable doubt”].)
73
3. Forfeiture
Defendants forfeited any claim that the records of
conviction for Rangel, Enrique, and Jesus were not admissible to
prove the date the predicate offense was committed by failing to
object to the admission of those documents. (See Seumanu,
supra, 61 Cal.4th at p. 1362.) Defendants also forfeited their
claim that admission of the records of conviction to establish the
date of the predicate offense violated their Sixth Amendment
right of confrontation by failing to raise any objection on that
ground in the trial court below. (People v. Demetrulias (2006) 39
Cal.4th 1, 20.)
Defendants’ alternative argument that their respective
trial attorneys were ineffective for failing to object to admission of
the records of conviction is unavailing. “It is particularly difficult
to prevail on an appellate claim of ineffective assistance. On
direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57
Cal.4th 986, 1009.)
Defendants fail to sustain their burden of demonstrating
that counsel was ineffective for failing to object to admission of
the records of conviction for the purpose of establishing the date
of the predicate offense. As discussed, under California law,
conviction records fall within a hearsay exception allowing
admission of such records to prove that the offense reflected in
the record occurred. (People v. Duran, supra, 97 Cal.App.4th at
74
pp. 1460-1461.) Conviction records are not barred by the Sixth
Amendment. (People v. Thompkins, supra, 50 Cal.App.5th at
p. 412.)
Defendants’ reliance on People v. Garcia (2020) 46
Cal.App.5th 123 as support for their position is unavailing. The
court in Garcia held that the prosecution may use records “to
show the fact of the prior conviction” (id. at p. 171); however, a
complaint from a prior case cannot serve as evidence proving the
date of commission of the predicate offense. (Id. at p. 172 [“the
only competent evidence proving the date of commission of [a]
predicate offense was a copy of the complaint”].) The prosecution
in this case introduced records created by a court employee.
(Evid. Code, §§ 452.5, 1280.) It did not rely on allegations in a
criminal complaint—created by the district attorney’s office for
use at a criminal proceeding—to prove the dates the crimes were
committed. (See Day v. Sharp (1975) 50 Cal.App.3d 904, 914
[court may not accept the truth of allegations in pleadings just
because they are part of a court file].) Garcia is therefore
inapposite. Trial counsel was not ineffective for failing to object
to admission of the certified court records of conviction.
4. No abuse of discretion and no prejudicial error
The trial court did not abuse its discretion by denying
defense counsel’s motion to strike Fuentes’s opinion that Rangel,
Enrique, and Jesus were USV gang members. The record shows
that Fuentes based his opinion in part on tattoos he observed on
Rangel, Enrique, and Jesus in booking photos taken at the time
of their arrest for the predicate offense; their association with
each other; and the fact that the victim was a known member of a
rival gang. These facts constituted general background
information within Fuentes’s knowledge in his field of expertise.
75
(Sanchez, supra, 63 Cal.4th at p. 676.) Fuentes’s opinion, based
on his review of the booking photographs, was admissible expert
testimony. (Id. at p. 677.)
Any error in denying defense counsel’s motion to strike
testimony he elicited from Fuentes that the gang expert’s opinion
was based in part on hearsay statements Fuentes heard from
other law enforcement officers was harmless under either
Watson, supra, 46 Cal.2d 818 or Chapman, supra, 386 U.S. 18.
Fuentes’s opinion that Rangel, Enrique, and Jesus were USV
gang members, based on tattoos he saw on those individuals in
their booking photographs, was admissible expert testimony.
(Sanchez, supra, 63 Cal.4th at p. 676.) After Fuentes’s testimony
concluded, the trial court gave the jury a cautionary instruction
concerning witness testimony based on hearsay statements. We
presume the jury followed this instruction. (People v. Chhoun
(2021) 11 Cal.5th 1, 28.)
VIII. Section 1109
Assembly Bill 333 also enacted section 1109, which took
effect on January 1, 2022. Section 1109 allows bifurcation of a
gang enhancement charge under section 186.22, subdivisions (b)
or (d) from the underlying offense. If requested by a defendant,
the statute requires the defendant’s guilt of the underlying
offense to be determined before the enhancement charges are
tried.18
18 Section 1109 provides:
“(a) If requested by the defense, a case in which
a gang enhancement is charged under subdivision (b)
or (d) of Section 186.22 shall be tried in separate
phases as follows:
76
We reject defendants’ contention that section 1109 applies
retroactively to afford them a new trial on their murder and
attempted murder convictions. There is no language in section
1109 declaring its provisions to be retroactive. “‘“No part of the
Penal Code ‘is retroactive, unless expressly so declared.’ (§ 3.)
‘[T]he language of section 3 erects a strong presumption of
prospective operation, codifying the principle that, “in the
absence of an express retroactivity provision, a statute will not be
applied retroactively unless it is very clear from extrinsic sources
that the [lawmakers] . . . must have intended a retroactive
application.” [Citations.] Accordingly, “‘a statute that is
“(1) The question of the defendant’s guilt of the
underlying offense shall be first determined.
“(2) If the defendant is found guilty of the
underlying offense and there is an allegation of an
enhancement under subdivision (b) or (d) of Section
186.22, there shall be further proceedings to the trier
of fact on the question of the truth of the
enhancement. Allegations that the underlying
offense was committed for the benefit of, at the
direction of, or in association with, a criminal street
gang and that the underlying offense was committed
with the specific intent to promote, further, or assist
in criminal conduct by gang members shall be proved
by direct or circumstantial evidence.
“(b) If a defendant is charged with a violation of
subdivision (a) of Section 186.22, this count shall be
tried separately from all other counts that do not
otherwise require gang evidence as an element of the
crime. This charge may be tried in the same
proceeding with an allegation of an enhancement
under subdivision (b) or (d) of Section 186.22.”
77
ambiguous with respect to retroactive application is construed . . .
to be unambiguously prospective.’”’”’” (People v. Perez (2022) 78
Cal.App.5th 192, 207 (Perez); accord, People v. Ramirez (2022) 79
Cal.App.5th 48, 65 (Ramirez).)
A “‘“limited rule of retroactivity”’” applies to newly enacted
criminal statutes that are intended to ameliorate criminal
punishment for certain crimes. (Perez, supra, 78 Cal.App.5th at
p. 207.) In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the
California Supreme Court “held that amendatory statutes that
lessen the punishment for criminal conduct are ordinarily
intended to apply retroactively.” (People v. Frahs (2020) 9
Cal.5th 618, 627.) The Supreme Court has applied Estrada’s
limited rule of retroactivity to statutes governing penalty
enhancements, statutes governing substantive offenses, statutes
expanding a defense to a crime (Frahs, at pp. 628, 629), and
statutes making reduced punishment possible for a class of
persons (People v. Wright (2006) 40 Cal.4th 81, 95).
Section 1109 does not reduce punishment for a crime,
expand defenses to a crime, or make reduced punishment
possible. Notwithstanding that section 1109 does none of these
things, and the absence of express statutory language giving it
retroactive effect, some appellate courts, applying Estrada, have
held the statute applies retroactively. (See, e.g., People v.
Montano (2022) 80 Cal.App.5th 82; People v. Ramos (2022) 77
Cal.App.5th 1116 (Ramos); People v. Burgos (2022) 77
Cal.App.5th 550 (Burgos), review granted July 13, 2022,
S274743; People v. Rodriguez (2022) 75 Cal.App.5th 816.)
We disagree with these appellate courts’ expansive
application of Estrada’s “limited rule of retroactivity” to section
1109. Instead, we find the courts’ decisions to the contrary in
78
Ramirez, supra, 79 Cal.App.5th 48, Perez, supra, 78 Cal.App.5th
192, and Justice Elia’s dissent to the Burgos majority to be
persuasive. We adopt the analysis in Justice Elia’s dissent in
Burgos and the courts’ holdings in Perez and Ramirez. The
Estrada rule of limited retroactivity applies only when a new law
is ameliorative of criminal liability or punishment. Section 1109
has no such ameliorative effect. It therefore does not apply
retroactively.
IX. Defendants’ LWOP sentences do not violate equal
protection
We reject defendants’ argument that section 3051,
subdivision (h), which denies youth offender parole hearings to
18- to 25-year-olds sentenced to LWOP, violates equal protection.
We also reject Escalante’s claims that he was denied the
opportunity to make a Franklin presentation at sentencing or,
alternatively, that his counsel was ineffective for not making an
adequate presentation.
A. Section 3051
Section 3051 gives certain youth offenders the opportunity
for parole in their 15th, 20th, or 25th year of incarceration,
depending on the length of the sentence they are serving for their
“controlling offense.”19 (§ 3051, subds. (a)(2)(B), (b); see Franklin,
supra, 63 Cal.4th at p. 277.)
As originally enacted, section 3051 afforded a youth parole
eligibility hearing to juvenile offenders only, not to young adults.
(In re Trejo (2017) 10 Cal.App.5th 972, 981 & fn. 6.) The statute
also excluded juveniles sentenced to LWOP, who were already
19 “Controlling offense” is the offense or enhancement for
which the longest term of imprisonment was imposed. (§ 3051,
subd. (a)(2)(B).)
79
eligible for resentencing under section 1170. (People v. Acosta
(2021) 60 Cal.App.5th 769, 776 (Acosta).) In subsequent years,
the Legislature expanded eligibility for youth offender parole
hearings under section 3051, “‘recogniz[ing] that the maturity
process does not end at 18 and in many cases extends to at least
25 years of age.’” (Acosta, at p. 776.) The statutory amendments
recognized that young adults, like juveniles, are not yet fully
matured and have a lower degree of culpability and an increased
potential for rehabilitation compared to adult offenders. (In re
Jones (2019) 42 Cal.App.5th 477, 485.)
The Legislature also amended section 3051 to allow parole
eligibility hearings for juveniles—but not young adult offenders—
sentenced to LWOP. (§ 3051, subd. (b)(4); Stats. 2017, ch. 684,
§ 1.5.) The purpose of this amendment was to bring California
into compliance with federal law articulating the constitutional
limits on sentencing young offenders. (Sen. Com. on Public
Safety, Analysis of Sen. Bill No. 394 (2017-2018 Reg. Sess.)
Mar. 21, 2017, p. 4.) In Miller v. Alabama (2012) 567 U.S. 460(Miller), the Supreme Court held mandatory LWOP sentences for
juveniles unconstitutional.20 In Montgomery v. Louisiana (2016)
577 U.S. 190 (Montgomery), the Supreme Court made the
prohibition on mandatory LWOP sentences for juveniles
retroactive. Montgomery provided, however, that “[a] State may
20 The Supreme Court in Miller allowed LWOP sentences for
juvenile defendants who committed homicide, so long as the
sentence was not mandatory—“that is, only so long as the
sentencer has discretion to ‘consider the mitigating qualities of
youth’ and impose a lesser punishment.” (Jones v. Mississippi
(2021) __ U.S. __ [141 S.Ct. 1307, 1314], quoting Miller, supra,
567 U.S. at p. 476.)
80
remedy a Miller violation by permitting juvenile homicide
offenders to be considered for parole, rather than by resentencing
them.” (Id. at p. 212.) By amending section 3051, the
Legislature sought “to remedy the now unconstitutional juvenile
sentences of [LWOP],” without the need for “a resentencing
hearing, which is time-consuming, expensive, and subject to
extended appeals.” (Sen. Com. on Public Safety, Analysis of Sen.
Bill No. 394 (2017-2018 Reg. Sess.) Mar. 21, 2017, p. 3; People v.
Morales (2021) 67 Cal.App.5th 326, 346-347 (Morales).)
Neither Miller nor Montgomery declared LWOP sentences
for young adults unconstitutional, and section 3051 continues to
exclude from the youth offender parole hearing process several
categories of offenders, including young adults sentenced to
LWOP. (§ 3051, subd. (h).) The statute “‘permit[s] the
reevaluation of the fitness to return to society of persons who
committed serious offenses prior to reaching full cognitive and
emotional maturity,’ unless the person was ‘between 18 and 25
years of age when they committed their offense [and] sentenced
to [LWOP].’ [Citation.] It therefore ‘distinguishes both between
those who committed their offenses under 18 years of age and
those between 18 and 25 years of age, and between offenders 18
to 25 years of age sentenced to prison terms with the possibility
of parole and those in the same age group who have been
sentenced to [LWOP].’” (Acosta, supra, 60 Cal.App.5th at p. 777.)
After enactment of section 3051, the California Supreme
Court decided Franklin, which created a process for offenders
who qualified for a youth offender parole hearing under section
3051 to preserve youth-related mitigation evidence. (Franklin,
supra, 63 Cal.4th at pp. 283-284.) A Franklin proceeding gives
“‘an opportunity for the parties to make an accurate record of the
81
juvenile offender’s characteristics and circumstances at the time
of the offense so that the Board [of Parole Hearings], years later,
may properly discharge its obligation to “give great weight to”
youth-related factors (§ 4801, subd. (c)) in determining whether
the offender is “fit to rejoin society”’” despite having committed a
serious crime while he was a child in the eyes of the law. (In re
Cook (2019) 7 Cal.5th 439, 449.)
B. Equal protection
“Both the Fourteenth Amendment to the United States
Constitution and article I, section 7 of the California Constitution
guarantee to all persons the equal protection of the laws. The
right to equal protection of the laws is violated when ‘the
government . . . treat[s] a [similarly situated] group of people
unequally without some justification.’ [Citations.] ‘The
California equal protection clause offers substantially similar
protection to the federal equal protection clause.’” (People v.
Jackson (2021) 61 Cal.App.5th 189, 195 (Jackson).)
“To succeed on an equal protection claim, appellants must
first show that the state has adopted a classification that affects
two or more similarly situated groups in an unequal manner.”
(People v. Edwards (2019) 34 Cal.App.5th 183, 195.) This initial
inquiry is not whether persons are similarly situated for all
purposes, but whether they are similarly situated for purposes of
the law challenged. (People v. Morales (2016) 63 Cal.4th 399,
408.)
If the appellant can establish a class of criminal defendants
is similarly situated to another class of defendants who are
sentenced differently, we look to determine whether there is a
rational basis for the difference. (People v. Edwards, supra, 34
Cal.App.5th at p. 195.) Under this highly deferential standard,
82
“equal protection of the law is denied only where there is no
‘rational relationship between the disparity of treatment and
some legitimate governmental purpose.’” (People v. Turnage
(2012) 55 Cal.4th 62, 74 (Turnage).)
To raise a successful rational basis challenge, a party must
negate “‘“every conceivable basis”’ that might support the
disputed statutory disparity.” (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 881.) “It is both the prerogative and the
duty of the Legislature to define degrees of culpability and
punishment, and to distinguish between crimes in this regard.
[Citation.] Courts routinely decline to intrude upon the ‘broad
discretion’ such policy judgments entail. [Citation.] Equal
protection analysis does not entitle the judiciary to second-guess
the wisdom, fairness, or logic of the law.” (Turnage, supra, 55
Cal.4th at p. 74.) We independently review defendants’ challenge
to section 3051. (Jackson, supra, 61 Cal.App.5th at p. 195.)
Defendants’ equal protection claim fails because even if we
assume they are similarly situated to juvenile offenders
sentenced to LWOP and to 18- to 25-year-old offenders sentenced
to “de facto” LWOP, they fail to demonstrate that there is no
rational basis for treating them differently from those two
groups. Age is a rational basis for distinguishing juvenile LWOP
offenders from young adults sentenced to LWOP. Drawing the
line at age 18 is “‘the point where society draws the line for many
purposes between childhood and adulthood.’” (People v. Argeta
(2012) 210 Cal.App.4th 1478, 1482; see Roper v. Simmons (2005)
543 U.S. 551, 574.) In criminal sentencing matters, both the
United States Supreme Court and the California Supreme Court
have found the line drawn between juveniles and nonjuveniles to
be a rational one. (See, e.g., Miller, supra, 567 U.S. at p. 471
83
[“children are constitutionally different from adults for purposes
of sentencing”]; Roper v. Simmons, supra, 543 U.S. at p. 574
[“The age of 18 is the point where society draws the line for many
purposes between childhood and adulthood.”]; People v. Gutierrez
(2014) 58 Cal.4th 1354, 1380 [the age of 18 “is the line the
[United States Supreme Court] has drawn in its Eighth
Amendment jurisprudence”].)
Although section 3051 is not a sentencing statute, it
impacts the length of sentence served. (In re Murray (2021) 68
Cal.App.5th 456, 464.) California appellate courts have therefore
concluded that, for purposes of LWOP offenders, the line drawn
at 18 is a rational one when distinguishing juvenile LWOP
offenders from young adult LWOP offenders. (Ibid.; Morales,
supra, 67 Cal.App.5th at p. 347; Jackson, supra, 61 Cal.App.5th
at p. 199; Acosta, supra, 60 Cal.App.5th at pp. 779-780; In re
Jones, supra, 42 Cal.App.5th at p. 482.) We reach the same
conclusion here. The age threshold is rational and not arbitrary.
Young adult offenders sentenced to LWOP may also be
treated differently from young adult offenders serving very
lengthy non-LWOP sentences (the “functional equivalent” of an
LWOP sentence) because, even assuming the two groups are
similarly situated, there is a rational basis for distinguishing
between them—“the severity of the crime committed.” (Acosta,
supra, 60 Cal.App.5th at p. 780.) Although both groups may
involve young adult offenders convicted of first degree murder,
“those sentenced to LWOP have also been found, beyond a
reasonable doubt, to have committed that first degree murder
under one . . . of the special circumstances that reflect that the
particular first degree murder was in some manner aggravated or
reflected a greater risk of harm to persons other than the
84
immediate murder victim or victims. [Citations.] As a result,
[young adult] offenders who have been sentenced to LWOP have
committed an aggravated form of first degree murder that
distinguishes them from [young adult] offenders who have
committed first degree murder but done so in the absence of any
such aggravating factors.” (Jackson, supra, 61 Cal.App.5th at
p. 199.)
The law imposes LWOP sentences for “crimes the
Legislature deems so morally depraved and so injurious as to
warrant a sentence that carries no hope of release for the
criminal and no threat of recidivism for society. In excluding
LWOP inmates from youth offender parole hearings, the
Legislature reasonably could have decided that youthful
offenders who have committed such crimes—even with
diminished culpability and increased potential for
rehabilitation—are nonetheless still sufficiently culpable and
sufficiently dangerous to justify lifetime incarceration.” (In re
Williams (2000) 57 Cal.App.5th 427, 436.)
Defendants here were convicted of a special circumstance
murder. “The Legislature rationally judged this crime to be more
severe and more deserving of lifetime punishment than
nonspecial circumstance first degree murder.” (In re Williams,
supra, 57 Cal.App.5th at p. 436.) “[P]ublic safety, and the desire
to punish those persons who commit first degree special
circumstance murder more harshly than persons who commit
first degree murder without aggravating circumstances, provide a
plausible basis for our Legislature to treat these two
classifications differently for purposes of section 3051.” (Jackson,
supra, 61 Cal.App.5th at p. 200.) Because there is a rational
basis for distinguishing between a young adult LWOP offender
85
and a young adult offender serving a non-LWOP sentence—the
severity of the crime committed—we conclude that no equal
protection violation arose from denying defendants a section 3051
parole hearing. (See In re Williams, at pp. 435-436; see also
Jackson, at pp. 199-200.)
Escalante’s claim that he was improperly denied the
opportunity to make a Franklin presentation fails because he was
statutorily ineligible for a Franklin proceeding. Under section
3051, subdivision (h), Escalante, who was convicted of a first
degree special circumstance murder he committed at age 18, was
ineligible for a Franklin proceeding. The trial court accordingly
had no obligation to provide Escalante with notice of the
opportunity to make a Franklin presentation, and the absence of
such notice did not result in any error. For the same reason,
Escalante’s counsel’s failure to make a Franklin presentation did
not constitute ineffective assistance.
X. Defendants’ LWOP sentences are not cruel and
unusual punishment
Defendants contend their LWOP sentences constitute cruel
and unusual punishment in violation of the Eighth Amendment
and article I, section 17 of the California Constitution. Escalante
claims his mandatory LWOP sentence is disproportionate to his
culpability as an 18-year-old adult aider and abettor who was not
the actual shooter. Gonzalez argues that because the jury’s
verdict did not include a finding that he was the shooter, his
culpability must be assessed as if he were not the shooter.
Neither argument has merit.
A court assessing a claim of cruel and unusual punishment
must “decide whether the penalty given ‘is so disproportionate to
the crime for which it is inflicted that it shocks the conscience
86
and offends fundamental notions of human dignity,’ thereby
violating the prohibition against cruel and unusual punishment
of the Eighth Amendment of the federal Constitution or against
cruel or unusual punishment of article I, section 17 of the
California Constitution.” (People v. Cunningham (2001) 25
Cal.4th 926, 1042.) A defendant “‘“attacking his sentence as
cruel or unusual must demonstrate his punishment is
disproportionate in light of (1) the nature of the offense and
defendant’s background, (2) the punishment for more serious
offenses, or (3) punishment for similar offenses in other
jurisdictions.”’” (In re Williams, supra, 57 Cal.App.5th at p. 437.)
Escalante concedes his Eighth Amendment claim must be
rejected under binding United States Supreme Court authority.
(Roper v. Simmons, supra, 543 U.S. at p. 574 [age 18 is the
appropriate cutoff for death penalty sentence eligibility].)
California courts have similarly held that a mandatory LWOP
sentence imposed on offenders 18 years of age and older does not
violate article I, section 17 of the California Constitution. (In re
Williams, supra, 57 Cal.App.5th at pp. 437-439 [LWOP sentence
not cruel and unusual punishment when imposed on 21-year-old
convicted of intentional first degree murder]; People v. Edwards,
supra, 34 Cal.App.5th at pp. 190-192 [functional equivalent of
LWOP sentences imposed on 19-year-old offenders not cruel and
unusual under state and federal Constitutions]; People v. Perez
(2016) 3 Cal.App.5th 612, 617; People v. Abundio (2013) 221
Cal.App.4th 1211, 1220-1221; People v. Argeta, supra, 210
Cal.App.4th at p. 1482 [mandatory LWOP imposed on defendant
who committed first degree murder five months after his 18th
birthday not cruel and unusual under federal and state
87
Constitutions].) Defendants provide no persuasive reason for
deviating from these cases.
Escalante’s LWOP sentence is not grossly disproportionate
to his culpability. Although Escalante was the driver and not the
shooter, he admitted knowing in advance that Gonzalez would
commit the shooting. As the trial court noted at sentencing,
Escalante was “as culpable as the shooter.”
As to Gonzalez, the jury found true the allegation that a
principal discharged a firearm for purposes of the gang-related
firearm enhancement. That finding, together with Gonzalez’s
admissions, establish that he was the shooter. Gonzalez’s LWOP
sentence is not grossly disproportionate to his culpability.
XI. Driveby special circumstance
In People v. Rodriguez (1998) 66 Cal.App.4th 157, 164, this
court rejected the argument defendants raise in this appeal—that
the driveby shooting special circumstance unconstitutionally fails
to narrow the pool of individuals eligible for LWOP because it
duplicates the elements of driveby first degree murder. We
decline defendants’ request that we reconsider that decision,
which controls here.
XII. Alleged cumulative error
We reject defendants’ contention that the cumulative effect
of the claimed errors identified in their appeals deprived them of
due process of law and a fair trial. Because we have found none
of the claimed errors to constitute individual errors, they cannot
as a group constitute cumulative error. (People v. Richardson,
supra, 43 Cal.4th at p. 1036.)
XIII. Presentence custody credit
The Attorney General concedes Escalante is entitled to
1,876 days of custody credit rather than the 1,869 days he was
88
awarded. On remand, the trial court is directed to recalculate
and award Escalante 1,876 days of presentence custody credit.
DISPOSITION
For each defendant, the gang enhancement allegation
findings under section 186.22, subdivision (b) under counts 1, 2,
and 4, and the gang-related firearm enhancement findings under
section 12022.53, subdivision (e)(1) under those same counts are
vacated. The matter is remanded to the trial court for retrial of
the gang allegations on those counts if the People so elect. We
direct the trial court to recalculate and award Escalante 1,876
days of custody credit and to prepare an amended abstract of
judgment reflecting that presentence custody credit award and to
forward a copy of the amended abstract to the Department of
Corrections and Rehabilitation. In all other respects, the
judgments are affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
89