People v. Buchanan CA2/5 ( 2022 )

Filed 4/11/22 P. v. Buchanan CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305671
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA464579)
v.
ORDER MODIFYING OPINION
MIKELL BUCHANAN,
[There is no change in judgment]
Defendant and Respondent.
BY THE COURT:
It is ordered that the opinion filed herein on March 16,
2022, is modified as follows: On page 63, in the first full
paragraph, delete from the first sentence “the predicate offenses
must have been committed by two or more gang members; (3)”
and change “(4)” to “(3)”.
The sentence, as modified by this order, shall read as
follows: To prove a “pattern of criminal gang activity” as defined
in subdivision (e)(1), under the amended law: (1) the last of the
predicate offenses used to demonstrate a pattern of criminal
activity must have occurred within three years of the date the
current offense is alleged to have been committed; (2) the
predicate offenses must have commonly benefitted a criminal
street gang; and (3) the common benefit of the predicate offenses
must be more than reputational.
There is no change in judgment.
____________________________________________________________
RUBIN, P. J. MOOR, J. BAKER, J.
2
Filed 3/16/22 P. v. Buchanan CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305671
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA464579)
v.
MIKELL BUCHANAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed in part,
vacated in part, and remanded.
The Law Office of J. Blacknell and Kellen I. Davis for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and Michael
R. Johnsen, Supervising Deputy Attorneys General, Michael
Katz, Deputy Attorney General, for Plaintiff and Respondent.
________________________
A jury convicted defendant and appellant Mikell Buchanan
of the first degree premeditated murder of Davion Gregory (Pen.
Code, § 187, subd. (a) 1 [count 3]), five counts of premeditated
attempted murder (§§ 187/664 [counts 5–9]), one count of
shooting from a motor vehicle (§ 26100, subd. (c) [count 4]), and
five counts of possession of a firearm by a felon (§ 29800, subd.
(a)(1) [counts 28–32]). The jury found true the special
circumstance allegations that the murder was accomplished by
lying in wait (§ 190.2, subd. (a)(15)) and shooting from a motor
vehicle (§ 190.2, subd. (a)(21)), and that Buchanan intentionally
killed Gregory while Buchanan was an active participant in a
criminal street gang (§ 190.2, subd. (a)(22)).
As to counts 3 through 9, the jury found true the
allegations that Buchanan personally discharged a firearm
causing great bodily injury or death (§ 12022.53, subds. (b)–(d)),
that a principal discharged a firearm causing great bodily injury
and death (§ 12022.53, subds. (b)–(e)), and that Buchanan
committed the offenses at the direction of, in association with, or
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
It found true the allegations that Buchanan committed the five
firearm possession offenses (counts 28–32) at the direction of, in
association with, or for the benefit of a criminal street gang (§
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
186.22, subd. (b)(1)(A)).2
Prior to the jury’s deliberations, the court dismissed the
charge that Buchanan attempted to murder Chad Jones
(§§ 187/664 [count 13]), and the associated charge of possession of
a firearm by a felon (§ 29800, subd. (a)(1) [count 34]).
At the sentencing hearing, the trial court dismissed the five
charges of felon in possession of a firearm in the interests of
justice. (§ 29800, subd. (a)(1) [counts 28–32].) As relevant here,
the trial court also struck the firearm allegations in counts 7, 8,
and 9. (§12022.53, subds. (b)–(d), (e)(1).) The trial court imposed
firearm use enhancements in counts 3, 5, and 6. As to count 4,
the sentence and all allegations were imposed and stayed
pursuant to section 654. Buchanan was sentenced to life without
the possibility of parole plus a consecutive term of 135 years to
life.
In his opening brief, Buchanan contends that (1) the trial
court dismissed two jurors in violation of his due process rights,
(2) the trial court improperly admitted the statement of a co-
participant in the shooting crimes, (3) the trial court improperly
excluded evidence of a prosecution witness’s prior acts relating to
dishonesty, thereby prohibiting cross-examination on that
evidence, (4) the prosecution failed to disclose exculpatory
evidence in violation of Brady v. Maryland (1963) 373 U.S. 83(Brady) and elicited evidence that it knew to be false, (5) the
possession of a firearm by a felon charges in counts 28–31 were
2 Buchanan was tried with co-defendants Darrell Caldwell
and Devante Caldwell. The jury acquitted Buchanan of
conspiracy to murder in count 1, dissuading a witness in count
10, and the attempted murder of Victor Miller in count 12.
3
barred under Kellet v. Superior Court (1966) 63 Cal.2d 822(Kellet), and (6) there was insufficient evidence to support
Buchanan’s convictions relating to the December 10, 2016
shootings.3
On January 1, 2022, while Buchanan’s appeal was pending,
Assembly Bill No. 333 (Stats. 2021, ch. 699, §§ 1–5) (Assembly
Bill 333) became effective. The legislation imposes additional
elements, beyond the elements that were required at the time of
Buchanan’s trial, to impose gang enhancements charged
pursuant to section 186.22. The Legislation also adds section
1109, which, as relevant here, provides for the bifurcation at
trial, upon a defendant’s request, of the gang enhancement
allegations charged under section 186.22, subdivisions (b) and the
other charged offenses. We invited the parties to file
supplemental briefing regarding the effect, if any, of Assembly
Bill 333 on Buchanan’s case.
The parties filed letter briefs. Buchanan argues, and the
People concede, that the amendments Assembly Bill 333 made to
section 186.22 apply to his case, as the new law became effective
while the case was still pending on direct appeal. Based on the
amendments, Buchanan asserts that the gang allegations, as well
as the gang special circumstance (§190.2, subd. (a)(22)) and gang-
related firearm enhancements (§ 12022.53, subd. (e)) that
incorporate section 186.22, must be vacated and the case
remanded. The People respond that remand is unnecessary,
because there is no reasonable doubt that the jury would have
3 Buchanan also argued that the trial court abused its
discretion by admitting evidence of predicate offenses and other
criminal conduct to prove the gang allegations. In light of our
disposition, it is not necessary for us to address the issue.
4
found the gang allegations true under the new requirements.
The parties also disagree regarding whether section 1109 has
retroactive effect. While Buchanan asserts that section 1109
must be applied to his case, the People argue that the newly
enacted legislation does not alter the substantive requirements
for imposition of gang enhancement allegations, and therefore
applies prospectively only, not retroactively to cases pending on
direct appeal, such as Buchanan’s case.
We affirm the convictions for murder, attempted murder,
shooting from a motor vehicle, and possession of a firearm by a
felon. We vacate the sentence enhancements imposed under
sections 186.22 and section 12022.53, subdivision (e), and the
section 190.2, subdivision (a)(22) special circumstance allegation,
and remand for further proceedings consistent with this opinion.
The firearm enhancements imposed for Buchanan’s personal
firearm use under section 12022.53, subdivision (d) in counts 3, 5,
and 6, and imposed and stayed in count 4 are unaffected by
Assembly Bill 333, and remain intact.
FACTS
Prosecution Evidence
The Offenses
In 2015, Daveion Ervin became part of a group of rappers
who called themselves Too Greedy Family/STINCC Team (Too
Greedy). Ervin used the moniker Solo. He discovered the group
after he became familiar with Darrell Caldwell, who was a
popular underground rapper known as Drakeo the Ruler. Too
Greedy had about 20 to 30 members when Ervin was part of the
5
group. Too Greedy members belonged to several different Crips
gangs. Buchanan, who was a member of the Rollin 100’s Crips
gang (Rollin 100’s) and went by the moniker Kellz, was also a
member of Too Greedy and a close friend of Darrell Caldwell.
Devante Caldwell, Darrell’s brother, was a member of Too
Greedy, and went by the moniker Ralfy the Plug.4 Joshua Torres
was also a member of Too Greedy, and was known as Too Shitty.
Jaidan Boyd, who was younger than most of the Too Greedy
members, started hanging out with Too Greedy members in the
summer of 2016. Boyd wanted to be a rapper. He was a member
of the Rollin 40’s Crips gang (Rollin 40’s) and used the moniker
AB.
Too Greedy members were “flockers,” which is a term for a
burglary crew. They often stole from Asians. They were also
known as the STINCC Team; STINCC is a derogatory term for
Asians. Too Greedy members had a hand sign that they used and
had Asian and money-themed tattoos.
Too Greedy had problems with people in several Bloods
gangs. In December of 2016, Darrell Caldwell had a rivalry with
“RJ”, a member of the Athens Park Bloods, who was also a
popular rapper. They disagreed about who was the better rapper
and agreed to fight at one point, though the fight never occurred.
On December 10, 2016, Ervin went to a pajama party in
Carson with Buchanan and approximately ten other Too Greedy
members. They caravanned to the party in four or five cars.
Darrell Caldwell drove Ervin and Buchanan to the party. Ervin
sat in the front passenger seat and Buchanan sat in the back
passenger seat. Boyd joined the group in a separate car as they
4 Darrelland Devante Caldwell were tried with Buchanan
but are not parties to this appeal.
6
were leaving. The group pulled into the parking lot at the party
but did not go inside. They were sitting in their vehicles when a
group of six males walked past quickly. Ervin recognized one of
the males as Gregory (the murder victim) or “Red Bull” from
Inglewood Family Gangsters, a Bloods gang.5 Inglewood Family
Gangsters were rivals of Boyd’s gang, the Rollin 40’s.
Just as the group reached the front of Darrell Caldwell’s
car, Ervin heard gunfire and ducked down. When Ervin looked
up again there was a lot of commotion—people were running and
the gunfire was ongoing. Ervin thought they were under attack
from a Bloods gang. He saw Buchanan holding a .40 caliber
Glock pistol. Buchanan said, “I emptied the clip on the nigga.”
Boyd was standing outside of his vehicle and still shooting a .38
caliber revolver. When the shooting stopped, most of the group
drove to Darrell Caldwell’s house. When they arrived, no one
knew if anyone had been hit by the gunfire. Ervin went to sleep,
but Torres woke him up at about 3:00 a.m., and told Ervin that
Red Bull had been killed.
Sometime after the shootings, Ervin saw Buchanan in a
video on social media. He was drinking and said that he was
“sipping on some dead bull.” On another occasion, Ervin heard
Buchanan imply that anyone who spoke about the shootings
would be killed. When Buchanan and Ervin were in jail together,
Buchanan told Ervin, “If you basically don’t say anything, we’re
gonna be okay.”
5 Theother males were Travis Harvey-Broom, Kwentin
Polk, Terance Harvey, Steve Lawhorn, and Kemoni Rich, the
named victims in counts 5–9.
7
Boyd’s Statement to a Confidential Informant
Los Angeles County Sheriff’s Department’s Homicide
Detective Francis Hardiman investigated the crimes. After Boyd
was arrested, Detective Hardiman placed him in a cell with a
confidential informant and recorded their conversation. Boyd
told the informant he was from the Rollin 40’s and known as
Arlington Blue or AB. He said he’d been caught on video
“smoking somebody.” He said he was with “a gang of niggas
that’s all in jail right now.” Boyd thought someone was snitching
on him because out of the many people arrested, the police
accused him of shooting with Buchanan, who was, in fact, the
other shooter. He said, “We really wasn’t to be going on a
mission. It’s just when we got there, we was there for a nigga
from Athens.” “But in the parking lot, I seen the nigga I was
beefing with from Inglewood.” He agreed with the informant’s
statement that the victim was at the wrong place at the wrong
time and “fell in [their] glove.”
Boyd said that he used a .38 caliber revolver, which would
not leave behind shells. The other shooter “cracked with a 40 or
something.” Boyd told the informant no one got caught with a
gun afterward. Darrell Caldwell had a very distinctive car that
witnesses probably recognized at the scene, so the police raided
his house. They found several guns, but not the ones used in the
shootings.
Boyd told the informant, “I popped cuh, and then he was
limping out of the paddy, and I went to the car with the blower,
but you can’t see none of this on video, because I had moved my
car . . . .” The informant asked whether Boyd shot the victim in
the head, and Boyd replied, “I shot the nigga . . . the last two
8
times. He might’ve got shot in the head, though. I don’t know.”
Boyd said, “On the hood, me and Kellz the last two niggas [the
police] got. They got everybody else and they got us two last.
That’s why I know they got something.” He and the confidential
informant speculated as to who the snitch might be.
Ballistics Evidence
Several .40 caliber cartridge cases and .38 special-fired
rounds were recovered from the crime scene. Los Angeles County
Sheriff’s Department Deputy Ivan Chavez, a firearms examiner
from the scientific services bureau, determined that all the .40
caliber cartridge cases were fired from the same Glock pistol.
Officers later recovered a Glock pistol, which Deputy Chavez fire
tested and determined to be the pistol that fired the .40 caliber
cartridge cases found at the scene.
A video filmed about two months before the shootings
showed Buchanan pointing the pistol. The serial number was
visible in the video. Darrell and Devante Caldwell appeared in
the video with Buchanan. Other people possessed the pistol
between the date the video was made and the shootings.
About a month after the crimes, another video showed
Buchanan holding a .40 caliber Glock pistol. Printed words on
the video indicated a member of Inglewood Family Gangsters had
been killed. Someone in the video mentioned “Red Bull.”
Gang Evidence
Detective Hardiman testified that Too Greedy was a
criminal street gang. He identified Buchanan and about 19 other
9
members of the gang and testified regarding their tattoos and the
primary activities of the gang.
Other Crimes Evidence from Ervin (Dismissed
Counts 13 & 34)
Detective Hardiman identified Ervin as someone present at
the shootings through surveillance camera footage. Ervin agreed
to cooperate in exchange for a reduced sentence on other charges
against him. To test the veracity of Ervin’s information
concerning the December 10, 2016 shootings, Detective
Hardiman asked him to provide information on other shootings.
Ervin did so, and Detective Hardiman was able to verify the
information that Ervin gave him regarding seven different
shooting incidents. Ervin told Detective Hardiman that
Buchanan told him he shot “7 Flame” in the hand somewhere
near Crenshaw and Manchester. Information that Detective
Hardiman was given by other law enforcement agencies
corroborated that Chad Jones, who went by the moniker 7 Flame,
had been shot in the hand on January 9, 2015.
Defense
Buchanan’s counsel confronted Detective Hardiman with
the fact that California Department of Corrections records
showed Buchanan was incarcerated on January 9, 2015, and
could not have committed the crimes charged in counts 13 and 34
(i.e., the shooting of 7 Flame on that date). Both charges were
dismissed prior to the jury’s deliberations.
Detective Hardiman testified that, prior to reaching an
10
agreement with Ervin, he told Ervin that he knew Ervin lied and
he believed that Ervin was a shooter. Detective Hardiman also
told Ervin that his potential sentence was 75 years to life.
An expert witness for co-defendant Darrell Caldwell opined
that Too Greedy was not a criminal street gang. He testified,
“This is the very first case that I’m aware of that a rap
entertainment group is considered a criminal street gang in the
presence of the court.”
DISCUSSION
I. Dismissal of Jurors
Buchanan first contends that the trial court violated his
right to an impartial jury by excusing two sworn jurors prior to
deliberations without substantial cause. We reject the
contention. The record demonstrates that the trial court
discharged Jurors No. 3 and 12 after they repeatedly disregarded
the trial court’s admonitions not to discuss the case. Juror No. 3
also removed his notebook from the courtroom and
misrepresented his arrest record.
Legal Principles
“Under Penal Code section 1089, ‘[i]f at any time, whether
before or after the final submission of the case to the jury, a juror
. . . upon . . . good cause shown to the court is found to be unable
to perform his or her duty, . . . the court may order the juror to be
discharged and draw the name of an alternate’ to replace the
discharged juror. A failure to follow the court’s instructions is
11
misconduct and a basis for dismissal. (People v. Williams (2015)
61 Cal.4th 1244, 1262 [(Williams)]; People v. Linton (2013) 56
Cal.4th 1146, 1194 [(Linton)].) This extends to the obligation not
to discuss a case prematurely . . . . ‘A juror’s violation of these
directions constitutes serious misconduct.’ (Williams, at p. 1262;
see People v. Sandoval (2015) 62 Cal.4th 394, 437; People v.
Weatherton (2014) 59 Cal.4th 589, 599 & fn. 10; People v.
Ledesma (2006) 39 Cal.4th 641, 743; People v. Daniels (1991) 52
Cal.3d 815, 863–866.)” (People v. Peterson (2020) 10 Cal.5th 409,
472, fns. omitted (Peterson).)
“‘“The . . . ultimate decision whether to retain or discharge
a juror . . . rests within the sound discretion of the trial court.”’
(People v. Sattiewhite (2014) 59 Cal.4th 446, 486 [(Sattiewhite)];
see People v. Williams, supra, 61 Cal.4th at p. 1262.) ‘“In
determining whether juror misconduct occurred, ‘[w]e accept the
trial court’s credibility determinations and findings on questions
of historical fact if supported by substantial evidence.’”’ (People v.
Linton, supra, 56 Cal.4th at p. 1194; see People v. Nesler (1997)
16 Cal.4th 561, 582.) We will uphold the trial court’s decision if
the record supports the basis for that decision as a
‘“demonstrable reality.”’ (Williams, at p. 1262.) This means
simply that the record must reveal the reason for the court’s
decision to discharge a juror and in turn substantial evidence
must support that reason. (People v. Duff (2014) 58 Cal.4th 527,
560.) So long as it does, ‘“the court’s action will be upheld on
appeal.”’ (Sattiewhite, at p. 486.)” (Peterson, supra, 10 Cal.5th at
pp. 472–473.)
12
Proceedings
In voir dire, the court asked if any of the jurors had been
arrested. Juror No. 3 responded that he had been arrested for
Marijuana possession in 1999. He did not have a trial, and felt
that he was treated unfairly because the court found that the
officer was qualified to smell Marijuana in Juror No. 3’s car as it
passed him. Juror No. 3 also stated that the ultimate outcome
was positive, however, because he was ordered to participate in a
rehabilitation program and had not smoked cigarettes, drunk
alcohol, or ingested drugs since. Juror No. 3 also indicated that
he had positive experiences with law enforcement. His next door
neighbor, with whom he had a close relationship, was a retired
sheriff’s deputy. His sponsors during the rehabilitation program
were a former sheriff and a juvenile probation officer.
Prior to opening statements, the trial court admonished the
jury not to “talk about the case or about any of the people or any
subject involved in the case with anyone, not even your family,
friends, spiritual advisors, or therapists”, not to discuss the trial
with other jurors prior to deliberations, to keep an open mind
throughout the trial and not decide any charge or issue until
deliberations, and not to remove their notebooks from the
courtroom.
The court repeatedly advised the jury not to discuss the
case before excusing the jurors for recesses.
First Hearing on Juror Misconduct
On July 8, 2019, after weeks of witness testimony, Juror
No. 6 called the clerk over the lunch break to report that some
13
jurors had been discussing the case despite the court’s
admonitions. The court again reminded the jury not to discuss
the case before their afternoon break. The court had given the
admonition throughout the trial and, in particular, several times
on that same day. After the court released the jurors for the day,
Alternate Juror No. 4 called the clerk to inform the court that
Juror No. 12 was continuing to speak about the case both in the
jury room and as she was “walking out of the courtroom in front
of the audience members, which could include the defendants’
families, by making loud remarks, including ‘I don’t believe these
gang allegations,’ and other comments stating that she has
already decided the case. [¶] Several other jurors have asked her
not to talk about the case, but she continues to do so and is
making other jurors uncomfortable, especially when she speaks
about it in front of family members.” The court stated that,
because Juror No. 12 continued to disregard the court’s
admonitions, it was necessary to conduct a hearing in which it
asked each juror about the issue separately.
In the hearing, Juror No. 6 stated that a few jurors were
concerned because approximately two to four other jurors were
discussing the case during breaks, and had been doing so for
approximately five days. Juror No. 6 identified Jurors No. 3 and
12 as “pretty much the main two, and then everybody else,
whoever is around, responds to questions.” Both jurors had
discussed “certain witnesses, whether they are telling the truth
or not.” Their discussion about the case had increased over time.
Other jurors were “not really initiating it.” Juror No. 6 could not
recall which other jurors had participated in the conversations.
Alternate Juror No. 4 stated that he or she had observed
Juror No. 12 speaking about the case in the jury room at least 10
14
times. This began the first week of trial, but her comments had
grown more detailed. Juror No. 12 talked about “how she feels
about the particular charge and which way she plans to vote.”
Alternate Juror No. 4 heard Juror No. 12 speaking about the case
outside of the jury room three or four times. She had been
talking about the case in the jury room the day before. Another
juror made a comment to the effect of “‘Oh, hope this room isn’t
bugged.’ And she did not take the hint.” Juror No. 12 talked
both inside and outside the jury room “a lot” about not believing
the gang allegations. Other jurors would respond to her, but in a
less detailed manner. To Alternate Juror No. 4’s knowledge,
none of the other jurors had indicated how they would vote. The
court inquired as to whether Juror No. 3 spoke about the case,
and Alternate Juror No. 4 responded, “Yeah, a little bit, yeah. He
will not talk as much as her, but he will talk some.” Juror No. 3
made a comment about how slang terms were being defined, but
Alternate Juror No. 4 did not recall the substance of the
comment.
Juror No. 1 noticed that Juror No. 3 brought his notes into
the jury room. Juror No. 3 had opened a pad of paper and
showed another juror something. Juror No. 1 did not hear what
Juror No. 3 said to the other juror.
Juror No. 3 stated that the only comments jurors had made
were that they were confused about which defendants each of the
many charges applied to. Juror No. 3 had taken his notes into
the jury room to study them because he was under the
impression that “we can’t take our notes into the deliberation”.
The court advised Juror No. 3 that he would have access to his
notes during deliberations.
Juror No. 12 denied hearing any juror make comments
15
about the case.
Juror No. 8075 overheard part of a discussion between two
jurors. She could not remember exactly what was said but “[she
thought] it was an agreement between just two of the jurors.”
Although she could not be certain, she thought that the jurors
who were talking were Jurors No. 5 and 12.
All of the jurors were questioned, but no other jurors
reported discussion of the charges or voting; some reported more
general comments. After questioning ended, the court stated:
“So after interviewing the jurors and having at least three jurors
identify Juror No. 12, that would be the two jurors that called in,
Juror No. 6, one of the alternates, and another juror that I
inquired with this morning who said Juror No. 12 had been
making comments and statements about the case, the court finds
that there has been judicial [sic] misconduct and Juror No. 12
will be excused from the jury.”
Devante Caldwell’s counsel objected to the dismissal of
Juror No. 12. He argued there was no evidence that her
comments had an effect on other jurors, and he did not believe
that the comments indicated that she would be unable to serve as
a juror because of bias or prejudice. Juror No. 12 had not been
asked about her own comments, and she may not have
understood that the comments she made constituted discussion of
the case.
Darrell Caldwell’s counsel argued that he did not believe
the other jurors’ statements that Juror No. 12 made comments in
front of the defendants’ families were credible in light of where
they were seated in the courtroom.
Buchanan’s counsel argued that a less severe response,
such as a stern admonition, was appropriate.
16
The court brought Juror No. 12 back into the courtroom for
further questioning. The court confronted Juror No. 12 with the
statements the other jurors had made about her. She denied
talking about the case. She said that Juror No. 2 had started
talking to her about gangs, and she thought he was “bipolar or
something” because she had not been speaking about anything
pertaining to gangs.
Outside of the presence of the jurors, the court stated that
it did not believe that the issue was whether Juror No. 12
indicated that she could be fair; the misconduct itself warranted
dismissal. Other jurors discussed confusion about the charges
and how many there were, the length of the process, and their
general confusion. Juror No. 12 made comments of a different
nature, concerning her views on the case. The trial court stated
that it had to “make a credibility call.” The court ruled that
Juror No. 12’s continued disregard of the court’s admonitions was
grounds for dismissal, and then dismissed her.
Second Hearing on Juror Misconduct
On the afternoon of July 11, 2019, the clerk received a call
from Alternate Juror No. 4694, asking for clarification of the
admonition not to talk about the case. Alternate Juror No. 4694
stated that several jurors made comments in the jury room and
the hallway about the attorneys, the defendants’ physical
appearances, witnesses, and witness testimony. The comments
were not necessarily discussing the case, but related to their
confusion or were comments made aloud in the jury room but not
addressed to another juror.
On July 12, 2019, Buchanan’s counsel proffered evidence
17
that Buchanan was in custody at the time Chad Jones was
allegedly shot and could not have committed the offenses charged
against him in counts 13 and 34. Defense counsel called
Detective Hardiman to the stand. Detective Hardiman testified
that Ervin had not told him Jones was shot on January 9, 2015,
but instead that the shooting occurred in August of 2016.
Detective Hardiman assumed that Ervin misremembered the
date, and he had mistakenly testified that Ervin told him the
shooting occurred on January 9, 2015.
After Detective Hardiman’s testimony concluded, the trial
court discussed the issue of possible juror misconduct with
counsel outside the presence of the jury. The court then
conducted another hearing to ascertain whether juror misconduct
had occurred again. Buchanan’s counsel and counsel for Devante
Caldwell and Darrell Caldwell objected to holding the hearing.
At the hearing, newly seated Juror No. 12 stated that
comments had been made about the volume of the attorney’s
voices in sidebar, and about Detective Hardiman’s manner.
Juror No. 12 heard one of the jurors make the comment, “I hope
they brought some gloves,” while sitting in the jury box during
sidebar. Juror No. 12 did not know which juror had commented.
Juror No. 10 stated that “[t]here was an outburst today
while you guys were at sidebar about corruption and stuff like
that. [Juror No. 3] had personal feelings . . . [he was] referring to
a point in time where [he was] treated unfair. So [he] had a
really passionate outburst while you guys were at sidebar.” Juror
No. 10 said other jurors had to calm Juror No. 3.
Juror No. 9 confirmed that Juror No. 3 had an outburst
that day. Juror No. 3 said personal things, but nothing about the
case.
18
Juror No. 7 thought that Juror No. 3 was upset about the
case because of his body language. Juror No. 7 did not hear Juror
No. 3 comment on the case.
Juror No. 6 stated that Juror No. 3 had made a lot of
comments about Detective Hardiman and other law enforcement
officers over the past several days. The court asked, “As Juror
No. 3 is making these comments, is he making comments about
the credibility, the believability of Detective Hardiman or the
evidence that is presented through him?” Juror No. 6 responded,
“I would say so. He doesn’t call him Detective Hardiman. He
calls him Fur[h]man, Mark Fur[h]man.”
Juror No. 4 had heard other jurors make comments about
the case that week, but could not recall the substance of the
comments.
Juror No. 3 denied hearing other jurors discuss the case
that week. Juror No. 3 disclosed that he had cried that day. He
explained, “I cry because I’ve been arrested over 50 times, and
I’m not in prison. And I -- by law I should be doing three strikes.
. . . the defense witness, more or less, put one of the defendants
up for life in prison. And I was very moved by this when the man
was not guilty whatsoever.” Juror No. 3 denied referring to
Detective Hardiman as Fuhrman or Detective Fuhrman. He told
the trial court that he could be a fair and impartial juror.
Alternate Juror No. 4694 stated that someone had made a
mean joke about Buchanan and Darrell Caldwell. The jurors had
laughed because the attorneys were bickering at sidebar. Juror
No. 7 participated in the comments. Jurors No. 2 and 7 also
made comments about the hip hop scholar and the gang expert
the day before. Juror No. 7 said the hip hop scholar was “on
point.” Juror No. 5 and possibly Juror No. 9 had been discussing
19
whether they liked the gang expert’s testimony as they exited the
courtroom.
Alternate Juror No. 9994 stated that the jurors commented
that the attorneys did not get along. Juror No. 3 made comments
about the attorney’s conversations in sidebar “all the time. And
I’m, like, looking at him, like, dude. Hold it together.” “Just the
other day [the prosecutor] said, ‘We’re gonna bring our last
witness up.’ And I’m sure you guys heard it. [Juror No. 3] said
‘Good.’ I don’t need to hear that.” Alternate Juror No. 9994 said
that while the attorneys were at sidebar and Detective Hardiman
was on the witness stand, “[Juror No. 3] is over here telling this
guy, you know -- you know, something about how many white
people have you seen pay for the price of this and that. And how
many white people have you seen go to prison . . . .” Juror No. 3
also said, “‘I’m glad I’m here so I can interject my -- my opinion
into this corrupt society.’”
Alternate Juror No. 9222 told the court that Juror No. 3
said something about Detective Hardiman’s testimony while in
the jury box. Alternate Juror No. 9222 did not remember the
comment verbatim, and stopped listening to Juror No. 3. Juror
No. 3 was emotional when he made the remark. Juror No. 3 also
told Alternate Juror No. 9222 that the court said Juror No. 3
could take his notebook with him outside of the jury room and
outside of the courthouse. The court responded that Juror No. 3
was not told he could take the notebook outside.
The court again questioned Juror No. 3. Juror No. 3 denied
taking the notebook outside of the courthouse. The court asked if
he took the notebook outside of the jury room. Juror No. 3
responded that he took his notebook with him to lunch, but kept
it in his bag. He said he had asked the court if he could take the
20
notebook and study it. The court responded, “Yes, you did ask
that, and I told you you could take it into the jury room to review
your notes. . . . But otherwise, the juror notebooks are to remain
either in this courtroom or inside the jury room.” Juror No. 3
responded, “I usually carry a bag and the book was in my bag all
the time.”
Outside the presence of the jury, the court noted that
“[Juror No. 3] claims that he’s had [his notebook] in his backpack
or some protective thing that he cares, [sic] and has taken them
to lunch. But it was Alternate Juror No. 9222 who’s noticed that
-- and had to observe him with that notebook outside of the
courtroom as well as the court’s jury room.”
The court did not deem the other juror’s comments about
raised voices at sidebar to be misconduct. With respect to the
mean joke that Alternate Juror No. 4694 reported, the court did
not consider that serious, but would inquire if the parties were
concerned. The court noted that Alternate Juror No. 4694 had
heard other statements about the gang experts, but had not
reported specifics. Again, the court offered to inquire further if
the parties wished, but did not feel that this would cause any of
the jurors involved to be impartial. All of the parties agreed that
Jurors No. 2, 7, and 9 did not need to be questioned further. No
party requested that Juror No. 5 be questioned again.
The court excused Juror No. 3 because, even assuming
Juror No. 3 was exaggerating when he said he was arrested over
50 times, he did not disclose that he had been arrested even five
times, let alone 50 times, during voir dire, although he was asked
the question directly. Juror No. 3 made comments to other jurors
about society being corrupt and compared Detective Hardiman
with Mark Fuhrman. Juror No. 3 admitted he took his notebook
21
outside of the jury room and into the cafeteria at lunch, which
another juror observed.
Analysis
The trial court did not abuse its discretion by dismissing
Jurors No. 3 and 12 for misconduct. The trial court excused
Juror No. 12 because she repeatedly disregarded its admonition
not to speak about the case. The record shows that three other
jurors stated that Juror No. 12 had been talking about the case.
Two of those jurors indicated that she had done so many times,
both inside the jury room and while exiting the courtroom. Both
jurors indicated that she had discussed the gang allegations
repeatedly and indicated how she planned to vote. One juror
described Juror No. 12 as instigating discussion about the
witnesses and their credibility. That juror stated that other
members of the jury had requested that Juror No. 12 stop
speaking about the case, but she continued to do so. Juror No.
12’s behavior continued for a substantial period of time, despite
the fact that the trial court admonished the jurors, before
opening statements and each time that it excused the jury, not to
speak with anyone about the case.
When questioned about her behavior, Juror No. 12 denied
speaking about the gang allegations. She said that Juror No. 2
had approached her and started talking about gangs. The court
made a “credibility call” and credited the statements of the three
jurors who identified Juror No. 12 as making comments about the
case over Juror No. 2. We defer to the trial court’s credibility
determination, which was based on its direct observations of the
jurors and their demeanor. (Peterson, supra, 10 Cal.5th at p. 473;
22
Williams, supra, 61 Cal.4th at p. 1262.) “[A trial] court’s
determination that [a juror] was being less than fully truthful . . .
[is] a determination the court could rely on in deciding to excuse
the juror.” (Peterson, supra, at p. 473.)
Given the number of times that the jury was admonished
not to talk about the case and the number of times Juror No. 12
ignored these admonitions, the trial court’s finding appears on
the record as a demonstrable reality, and a valid reason for
excusal. (Peterson, supra, 10 Cal.5th at p. 472 [dismissal
appropriate where other jurors testified that juror had violated
directive not to talk about case]; Williams, supra, 61 Cal.4th at p.
1262; Linton, supra, 56 Cal.4th at p. 1194.)
The trial court’s finding that Juror No. 3 committed
misconduct also appears on the record as a demonstrable reality.
Two other jurors identified Juror No. 3 as making inappropriate
comments about the case. One juror testified that Juror No. 3
made multiple comments about Detective Hardiman, including
calling him “Furman,”—a comment on the detective’s credibility.
Another juror confirmed that Juror No. 3 made a comment
concerning the detective, although that juror did not remember
the substance of the comment. Juror No. 3 made these comments
after the court had already held a hearing at which the jurors
were each informed that there were allegations that jurors were
disobeying the court’s admonition not to talk about the case and
then questioned about other jurors’ behavior in this regard.
Juror No. 12 had been dismissed immediately following that
hearing. Several more days passed, during which the trial court
continued to admonish the jury not to speak about the case. As
with Juror No. 12, Juror No. 3 denied having made any
comments; and, as with Juror No. 12, we defer to the trial court’s
23
determination that Juror No. 3 was not forthcoming about
disregarding the court’s admonitions. (Peterson, supra, 10
Cal.5th at p. 472; Williams, supra, 61 Cal.4th at p. 1262.)
The misconduct was compounded when Juror No. 3
explained that he had become emotional because of the numerous
times that he himself had been arrested. Although it is highly
likely that Juror No. 3 exaggerated when he said he had been
arrested 50 times, his explanation stands in stark contrast to his
testimony in voir dire that he had been arrested once, and had
positive experiences with law enforcement officers. As the trial
court pointed out during the hearing, whether Juror No. 3 was
truthful in voir dire or during the juror misconduct hearing was
irrelevant—in either case he had not been honest with the court.
Finally, Juror No. 3 had also disobeyed the court’s
directions by removing his notebook from the courtroom. The
court was informed that Juror No. 3 had his notebook in the jury
room with him and was showing another juror something in the
first juror misconduct hearing. At the second juror misconduct
hearing, a different juror informed the court that Juror No. 3 had
taken his notebook to the jury room and outside both the jury
room and the courtroom. Juror No. 3 confirmed that he had
taken the notebook to lunch every day. This was a violation of
the court’s instructions.
The trial court stated its reasons for dismissing both jurors
on the record, and in both instances juror misconduct is a
demonstrable reality. The trial court did not abuse its discretion
by dismissing them.6
6 Buchanan forfeited any complaints that other jurors
should have been dismissed for misconduct. The trial court
offered to question the jurors more extensively if counsel desired
24
II. Admission of Boyd’s Statements Against Penal Interest
Buchanan next contends that the trial court violated
California evidentiary law and his constitutional right to due
process by admitting hearsay statements that Boyd made to the
confidential informant. His contention is without merit.7
Legal Principles
“Although hearsay statements are generally inadmissible
under California law (Evid. Code, § 1200, subd. (b)), the rule has
a number of exceptions. One such exception permits the
admission of any statement that ‘when made, was so far contrary
to the declarant’s pecuniary or proprietary interest, or so far
subjected him to the risk of civil or criminal liability, or so far
tended to render invalid a claim by him against another, or
created such a risk of making him an object of hatred, ridicule, or
social disgrace in the community, that a reasonable man in his
position would not have made the statement unless he believed it
that it do so, but Buchanan declined, and did not seek a mistrial
on this basis. (People v. Russell (2010) 50 Cal.4th 1228, 1250 [“A
claim of prejudicial misconduct is waived when the defendant
fails to object to a juror’s continued service and fails to seek a
mistrial based upon prejudice.”].)
7 Buchanan also challenges the trial court’s admission of
statements that he and Devante Caldwell made to informants.
These challenges are forfeited because Buchanan failed to object
at trial. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 416–417.)
25
to be true.’ (Evid. Code, § 1230.) As applied to statements
against the declarant’s penal interest, in particular, the rationale
underlying the exception is that ‘a person’s interest against being
criminally implicated gives reasonable assurance of the veracity
of his statement made against that interest,’ thereby mitigating
the dangers usually associated with the admission of out-of-court
statements. [Citation.]
“To demonstrate that an out-of-court declaration is
admissible as a declaration against interest, ‘[t]he proponent of
such evidence must show that the declarant is unavailable, that
the declaration was against the declarant’s penal interest when
made and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.’ [Citation.] ‘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.’ [Citation.]”
(People v. Grimes (2016) 1 Cal.5th 698, 710–711, fn. omitted
(Grimes).)
“[O]ur Supreme Court has admonished that ‘[o]nly
statements that are specifically disserving to the hearsay
declarant’s penal interests are admissible as statements against
penal interests. [Citations.]’ [Citations.] [Evidence Code]
[s]ection 1230 does not authorize the admission of ‘those portions
of a third party’s confession that are self-serving or otherwise
appear to shift responsibility to others.’ [Citation.]” (People v.
Gallardo (2017) 18 Cal.App.5th 51, 70–71 (Gallardo).) “A
‘statement “which is in part inculpatory and in part exculpatory
26
(e.g., one which admits some complicity but places the major
responsibility on others) . . . is . . . inadmissible.” [Citations.]’
[Citation.] Thus, ‘“an approach which would find a declarant’s
statement wholly credible solely because it incorporates an
admission of criminal culpability is inadequate.” [Citation.]’
[Citation.]” (Id. at p. 71.)
“‘That a hearsay statement may be facially inculpatory or
neutral cannot always be relied upon to indicate whether it is
“truly self-inculpatory, rather than merely [an] attempt[ ] to shift
blame or curry favor.” [Citation.] Even a hearsay statement that
is facially inculpatory of the declarant may, when considered in
context, also be exculpatory or have a net exculpatory effect.’
[Citation.]” (Gallardo, supra, 18 Cal.App.5th at p. 71.) However,
“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. Ultimately, courts must consider each statement
in context in order to answer the ultimate question under
Evidence Code section 1230: Whether the statement, even if not
independently inculpatory of the declarant, is nevertheless
against the declarant’s interest, such that ‘a reasonable man in
[the declarant’s] position would not have made the statement
unless he believed it to be true.’” (Grimes, supra, 1 Cal.5th at p.
716.)
“We review a trial court’s decision whether a statement is
admissible under Evidence Code section 1230 for abuse of
discretion. [Citations.]” (Grimes, supra, 1 Cal.5th at pp. 711–
712.)
27
Proceedings
Prior to trial, the prosecutor sought to admit excerpts of
statements that Boyd made to the confidential informant.
Buchanan’s counsel suggested that it would be prudent to review
all of the statements in the transcripts in light of the holding in
Gallardo, supra, 18 Cal.App.5th 51, that transcripts are not to be
admitted wholesale. The prosecutor provided copies of the
excerpts for the parties and the court so that the transcripts
could be reviewed and argued in detail. The court stated that it
would set aside time to review the statements and then re-visit
the prosecution’s motion after jury selection had begun.
At a hearing on the matter, the trial court stated that it
had reviewed the 58 pages of transcript excerpts. Counsel for
each of the defendants was given the opportunity to contest
specific statements, and did so. Buchanan’s counsel objected to
the statements Boyd made that implicated Buchanan on the
general ground that the transcripts contained multiple levels of
hearsay.
Specifically, he cited Boyd’s statement regarding the other
shooter that “[h]e cracked with a 40 or something.” Counsel
argued that the particular statement related to Buchanan, whom
Boyd had identified as the second shooter. Although counsel
assumed that the prosecution would proffer other evidence that
Buchanan used a .40 caliber gun in the shooting, the information
still had to be sufficiently reliable to be admitted through Boyd’s
statement. Counsel expressed concern that it was unclear “where
the information came from.” The wording of his statement
suggested that Boyd did not know what caliber weapon
Buchanan had used.
28
The trial court ruled that the statement was reliable and
admissible. The court reasoned that whether Boyd was stating
that he knew the caliber of the gun, or just that he thought he
knew the caliber of the gun but was not certain, was a question
for the jury. The phrasing could simply be Boyd’s manner of
speaking. The People had other evidence that the gun was, in
fact, a .40 caliber.
Counsel next objected to statements the informant made as
he and Boyd were discussing who may have snitched on Boyd:
“U/C: Okay. Solo, Shitty and Drake The
Drooler.
“Boyd: Either one of them niggas telling or
they told somebody to tell.
“U/C: Yeah, because I don’t think Kellz going to
say, hey, man, I had the .40 . . .
“Boyd: Huh uh.
“U/C: And AB had the eight ball, you feel me?
“Boyd: Yeah, exactly. That’s why that’s why I
know it’s not him, on wood. . . .” (Italics added.)
...
“U/C: Yeah, because I don’t think the nigga
Kellz going to say I don’t even think Kellz is going to
tell nobody like man, me and the homey went on a
mission, you know. I had the .40; he had the eight
ball. I don’t think Kellz that type of nigga. I don’t
think he going to do nothing. But, like you said, that
nigga Solo, Shitty, Drake The Drooler or whoever . . .”
(Italics added.)
29
Counsel argued that the statements were hearsay because
they were made by the undercover informant, not Boyd. The
informant was not present at the shooting and did not personally
know what kinds of guns were used.
The court ruled that the informant’s characterization of the
gun as a “40” did not add facts or shift blame; the informant was
simply repeating information Boyd had already shared with him.
The court offered to instruct the jury that the informant was not
present, and that it could not consider his statements for their
truth, only for context.
Counsel objected that Boyd’s statement in the following
excerpt was unreliable because Boyd was trying to shift the
blame and distance himself from the crime.
“U/C: You shot that nigga in the head?
“Boyd: I shot the nigga at -- the last two times.
He might’ve got shot in the head, though. I don’t
know.” (Italics added.)
The court responded that it did not view the statement as
shifting the blame. Boyd admitted to shooting Gregory twice and
did not deny that he might have shot him in the head, he was
simply stating that he was not certain if he had.
Counsel also argued that Boyd’s statement that Torres’s
girlfriend was probably the snitch was hearsay:
“Boyd: You know, the only thing that, like,
what I know is who telling on who, it’s the nigga
girlfriend. They just showed me a picture of her too.
“U/C: Who?
30
“Boyd: The nigga Too Shitty girlfriend.
“U/C: Too Shitty?
“Boyd: They got her in jail so she in custody. So
she probably just like, I know who did it and she told
on me and the nigga Kellz because she wanted to get
out.” (Italics added.)
The court ruled the statement admissible. Boyd was
speculating as to who the snitch was, not speculating regarding
the other shooter’s identity. Throughout the conversation Boyd
had identified two shooters – himself and Buchanan. The court
did not view the statement as hearsay, because Torres’s girlfriend
had not given Boyd information that he was repeating. He was
simply speculating himself.
Finally, the court ruled that all of the statements in the
excerpts were non-testimonial, because Boyd believed that the
undercover informant had been arrested and did not realize that
he was an agent of the police.
The transcripts were admitted at trial.
Analysis
“Bulk” Statements
Buchanan relies on Gallardo, supra, 18 Cal.App.5th 51, to
support his claim that the trial court erred by admitting Boyd’s
statements to the confidential informant in bulk, without
individually assessing whether each statement was admissible as
a declaration against interest. We reject the contention.
In Gallardo, the trial court admitted a transcript of a
31
declarant’s conversation with undercover informants in its
entirety “because it found certain details [the declarant] had
provided to the informants regarding the crime (including his
identification of [one of the defendants] as the shooter, his
description of the vehicles used and the route they drove) showed
his entire statement was sufficiently trustworthy to warrant its
inclusion as a declaration against interest.” (Gallardo, supra, 18
Cal.App.5th at p. 72.) The Court of Appeal held that the trial
court abused its discretion because it failed to assess whether
each individual statement the declarant made that implicated
the defendants was against the declarant’s penal interest at the
time that he made the statement. (Ibid.)
Gallardo is inapposite in this regard. In this case, the trial
court admitted excerpts from a confidential informant’s
conversation with Boyd. The trial court held a hearing at which
it considered each of the statements Boyd made that implicated
Buchanan and his co-defendants, and heard argument from the
parties regarding whether the statements should be admitted on
an individualized basis. The process the trial court followed did
not contravene Gallardo.8
8 Although he cites to the hearing regarding the
admissibility of Boyd’s statements multiple times in the opening
brief, Buchanan complains that the trial court did not hold a
hearing. This is obviously incorrect. Buchanan also claims that
the transcripts were admitted in their entirety. The record shows
that the prosecution sought to admit only the portions of the
conversation that had been presented to the grand jury, and the
transcripts clearly indicate where one excerpt ends and the next
begins.
32
Self-Serving, Unreliable Statements
Buchanan also relies on Gallardo to argue that the
statements Boyd made to the confidential informant were “too
‘“self-serving and unreliable”’ [citation] to qualify as declarations
against his penal interest.” (Gallardo, supra, 18 Cal.App.5th at
p. 74.) In Gallardo, the court identified specific circumstances
indicating a lack of reliability. The court found unreliable
statements that followed questions by the confidential informants
suggesting that something occurred or was a fact when that
occurrence or fact had not been first introduced by the declarant.
(Id. at p. 73.) For example, the informants asked the declarant if
one of the defendants was the shooter, although the declarant
had never stated that was the case. (Ibid.) The problem was
compounded when the informants asked questions that led the
declarant to contradict his earlier statements. (Ibid.) The
statements became even more problematic when the confidential
informants suggested the declarant’s role was minimal, asked
leading questions designed to shift the blame to the defendants,
and elicited a response minimizing the declarant’s role and
shifting the blame to the defendants. (Id. at p. 74.) The Gallardo
court emphasized that the declarant had already implicated
himself as a participant in the crime in an unspecified capacity
when he identified the defendants as the major participants,
which “did little to increase [the declarant’s] criminal culpability,
and served primarily to ‘minimize [his] role and place the blame .
. . on [his] accomplice[s].’ [Citation.]” (Ibid.)
Buchanan interprets Gallardo to hold that a statement is
unreliable when the confidential informant asks a question or
summarizes an event. This is not what Gallardo held. The
33
Gallardo court carefully analyzed the circumstances presented in
that case and found the declarant’s statements unreliable when
prompted by a question by the informants that introduced a fact
or event for the first time in the conversation, eliciting a response
from the declarant that contradicted his earlier admissions
and/or minimized his role in the crimes and shifted the blame to
the defendants. Buchanan also argues a declarant’s self-
inculpatory statements that precede the declarant’s statements
regarding the defendant’s culpability are unreliable. However,
the order in which the declarant in Gallardo made his statements
was not significant in isolation. It was significant because the
declarant in Gallardo began by incriminating himself, but then
identified the defendants as the central perpetrators of the crime
and minimized his own involvement.
As we discuss post, in this case the exact opposite occurred.
The confidential informant only mentioned facts and occurrences
that Boyd had first introduced into the conversation, and
summarized only occurrences that Boyd had previously
described. Neither the informant nor Boyd attempted to
minimize Boyd’s role in any way. From the very start of the
conversation Boyd implicated himself as a shooter who worked in
concert with one other shooter—Buchanan. Boyd’s statements
remained consistent throughout the conversation. He did not
attempt to shift blame for his own actions to others.
Specific Statements
Buchanan specifically challenges the admission of three
portions of the transcript, which we address in turn:
First, Buchanan appeals from the trial court’s admission of
34
an exchange between himself and Detective Hardiman followed
by excerpts from a conversation between Buchanan and the
confidential informant shortly after Detective Hardiman left the
jail cell:
“[Detective] Hardiman: Hey, Jaidan, you and
Kellz killed that boy from Inglewood Family.
“Boyd: I didn’t kill nobody.
“[Detective] Hardiman: Okay. You did it in
front of a bunch of people, dude, okay.
“Boyd: I didn’t do shit.
“[Detective] Hardiman: There were a bunch of
people there; Too Greedy Family, from a whole bunch
of people, they saw it.
“Boyd: Guess what? I ain’t did shit.
. . . [Detective Hardiman leaves the jail cell.]
“U/C: What happened homey?
“Boyd: They got me on video.
...
“U/C: They got you on video smoking
somebody?
“Boyd: Yea.”
...
“Boyd: . . . And I know somebody snitching for
sure because they saying me and the nigga that really
did it. They saying we did it . . . They says you and
Kellz killed him . . . He says, ‘You and Kellz killed
him.’” (Italics added.)
Buchanan challenges the admission of the above
35
statements, arguing that Boyd implicated Buchanan after
implicating himself, thereby shifting the blame to Buchanan. To
make this argument, Buchanan selectively omits a portion of the
conversation where Boyd told the confidential informant that at
the time of the shooting he was with a large group of people, and
that all of those people had been arrested. Boyd knew that
someone had snitched on him because out of the numerous people
who were in custody, the police had accused him of committing
the shooting with Buchanan—who was, in fact, the only other
shooter.
Further, the order in which statements are made may
matter in context, but in and of itself, the fact that the speaker’s
inculpatory statement precedes a statement implicating the
defendant does not have significance. Here, the fair reading of
the transcript is that Boyd did not minimize his role or shift
blame. He admitted that he committed the crime in concert with
Buchanan, a fact that was against Boyd’s own penal interest.
(See People v. Cervantes (2004) 118 Cal.App.4th 162, 176
[statements that the defendant shot a man was against the
declarant’s interest because it showed that declarant was acting
“in concert” with the shooter].) Buchanan also complains that,
because Boyd had already admitted that he was a shooter, the
statement was cumulative. However, Buchanan cites no
precedent barring the use of statements against penal interest
that contain cumulative evidence of the declarant’s guilt, and he
does not support the assertion with argument. Courts are not
required to “sever and excise any and all portions of an otherwise
inculpatory statement that do not ‘further incriminate’ the
declarant.” (Grimes, supra, 1 Cal.5th at p. 716.)
Second, Buchanan objects to the following portions of
36
Boyd’s conversation with the confidential informant:
“U/C: So, do you think the nigga, uh, Kellz, you
think he got caught with the burner?
“Boyd: Huh uh (negative). Nobody got caught
with the blower. This is this is what happened. The
nigga Drakeo had the nigga Drakeo got like a
distinctive car bro, like a car you can’t miss, so all
them bitches that were in the parking lot, I didn’t
know nobody was there, but the bitches that were in
the parking [lot] knew cuh car. So they caught
Drakeo. And when they caught Drakeo, they raided
cuh house. They found a gang of blowers, they found
a Draco, they found an AK and all that but neither
one of them was the blowers we used, you feel me?
But, little regular, bro. I wasn’t there.
...
“U/C: So they going to say . . . AB and Kellz,
man, was the shooters.
“Boyd: On wood, that’s exactly how it went. I
know it is. I know exactly how we did it, 40 Crip.”
(Italics added.)
Buchanan contends that these statements are unreliable
because the informant was prompting Boyd for new information.
As we have explained, the fact that the declarant is responding to
a question does not render his response unreliable. In Gallardo,
the informants interjected new information into the conversation
by way of their questions, and also suggested an answer that
would minimize the declarant’s role, which the declarant then
37
adopted. Here, the informant asked a question based on facts
that Boyd had already introduced. Boyd did not disavow his role;
he instead described what he knew about whether the guns were
recovered.
Buchanan complains that Boyd’s statement that Buchanan
disposed of the gun he used was speculation. But Boyd did not
state that Buchanan disposed of his gun; he stated that the police
had not recovered the other gun, based on his knowledge that the
gun had not been recovered when the police searched Drakeo’s
home or when they searched Buchanan. When the informant
asked if Boyd knew whether Buchanan disposed of the gun, Boyd
responded that he had not spoken to Buchanan about it. Boyd
further implicated himself by demonstrating that he knew details
of the police investigation. As with the other statements, it is
irrelevant that this statement was made after Boyd had already
incriminated himself in some other respects, because Boyd did
not attempt to shift the blame to someone else.
Finally, Buchanan claims that the trial court was
concerned about the statement that Gregory may have been shot
in the head (“He might’ve got shot in the head, though. I don’t
know.”), because it implies that someone other than Boyd shot
Gregory in the head. As is clear from the discussion at the
hearing recounted above, the court did not view Boyd’s statement
as implicating someone else in the shooting or suggesting that
someone else may have shot Gregory in the head. As the court
interpreted the statement, Boyd admitted to shooting Gregory
twice, and conceded that he may have shot Gregory in the head,
but was not sure if he had.
The trial court’s admission of the specific statements that
Buchanan challenges under the exception for statements against
38
penal interest was not an abuse of discretion, nor was it a
violation of his right to due process.9 (See Linton, supra, 56
Cal.4th at p. 1202 [“‘“[A]s a general matter, the ordinary rules of
evidence do not impermissibly infringe on the accused’s [state or
federal constitutional] right to present a defense.”’”].)
Coercion
Buchanan alternatively argues that Boyd’s statement was
inadmissible because Boyd was young and felt pressure to comply
with the confidential informant.10 We reject the contention, as
the record contains no suggestion that Boyd’s statement was
coerced.
“In Miranda v. Arizona[, (1966) 384 U.S. 436 (Miranda)],
9 At oral argument, appellate counsel argued that the
prejudice caused by admission of Boyd’s statements was
compounded by the trial court’s refusal to instruct the jury under
CALCRIM No. 335 that Boyd was an accomplice as a matter of
law and his statements must be corroborated. This argument
was mentioned in the opening brief in the context of
compounding prejudice, but was not developed or supported by
legal authority. As we have concluded that the trial court did not
abuse its discretion, we need not reach arguments relating to
prejudice. Regardless, our Supreme Court has held that where
statements are properly admitted as statements against the
declarant’s interest, corroboration is not required, as such
statements are sufficiently trustworthy to permit their admission
into evidence despite the hearsay rule. (People v. Brown (2003)
31 Cal.4th 518, 555-556.)
10 Boyd was 17 years old when he committed the offenses,
but 18 years old when he spoke with the confidential informant.
39
the [Supreme] Court [of the United States] held that the Fifth
Amendment privilege against self-incrimination prohibits
admitting statements given by a suspect during ‘custodial
interrogation’ without a prior warning. Custodial interrogation
means ‘questioning initiated by law enforcement officers after a
person has been taken into custody. . . .’ (Id. 384 U.S., at 444.)”
(Illinois v. Perkins (1990) 496 U.S. 292, 296.) “Miranda forbids
coercion, not mere strategic deception by taking advantage of a
suspect’s misplaced trust in one he supposes to be a fellow
prisoner.” (Id. at p. 297.) “Conversations 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. Coercion is determined from the
perspective of the suspect. [Citations.] When a suspect considers
himself in the company of cellmates and not officers, the coercive
atmosphere is lacking. [Citation.] There is no empirical basis for
the assumption that a suspect speaking to those whom he
assumes are not officers will feel compelled to speak by the fear of
reprisal for remaining silent or in the hope of more lenient
treatment should he confess.” (Id. at pp. 296–297.)
“Although a defendant lacks standing to complain about a
violation of a third party’s Fifth Amendment privilege against
self-incrimination, a defendant does have standing to assert that
a violation occurred of his or her own due process right to a fair
trial because of an asserted violation of a third party’s Fifth
Amendment right. [Citation.]” (People v. Clark (2016) 63 Cal.4th
522, 580.) “‘[However,] it is not enough for a defendant who seeks
to exclude trial testimony of a third party to allege that coercion
40
was applied against the third party, producing an involuntary
statement before trial. In order to state a claim of violation of his
own due process rights, a defendant must also allege that the
pretrial coercion was such that it would actually affect the
reliability of the evidence to be presented at trial.’ [Citation.]”
(Ibid.)
Buchanan argues that Boyd’s youth placed him at a
disadvantage because youthful offenders have a “‘limited
understanding of the criminal justice system and the roles of the
institutional actors within it.’” This argument strikes at unfair
play, but the issue here is whether the statements were reliable.
Buchanan’s argument that, because of his youth, Boyd was less
likely to understand that he was having a conversation with a
confidential informant cuts against him in this context. If Boyd
was less likely to comprehend that the informant was gathering
information about the crimes, he was more likely to be truthful.
Recognizing that it is likely Boyd believed he was speaking
with a fellow gang member, Buchanan asserts that the informant
intimidated Boyd into making incriminating statements by
asking Boyd where he was from and what he was called.
Buchanan argues that the prosecution’s expert witness testified
that these questions were “absolutely a gang ‘challenge[,]’” and
that Boyd would feel compelled to elaborate because if he did not
the informant would believe he was “a cooperator.” Buchanan
distorts the record. On the very page he cites, Detective
Hardiman testified that, “in this context, it’s a question.” The
detective explained that the informant asked Boyd which gang he
was from and then offered that he, too, was in a Crips gang—i.e.
that they were aligned and not rivals. There is simply nothing in
the record to indicate that the informant was pressuring Boyd.
41
The questions the informant asked established a rapport between
them, and encouraged Boyd to believe that he could speak freely
with his cell mate.
III. Claims Related to Offenses That Occurred when
Buchanan was Incarcerated (Dismissed Counts 13 and 34)
Buchanan claims that the prosecution violated his
constitutional rights under Brady, supra, 373 U.S. 83, by failing
to disclose that he was incarcerated on January 9, 2015, when
the crimes in counts 13 (attempted murder) and 34 (possession of
a firearm by a felon) were allegedly committed. He further
contends that the prosecution committed misconduct by failing to
correct Detective Hardiman’s false testimony that Ervin told him
Buchanan shot Chad Jones on January 9, 2015, and by eliciting
Detective Hardiman’s false testimony that he believed the
shooting occurred on a different date.
We conclude that there was no Brady error, as Buchanan
was aware that he was incarcerated when Jones was shot in the
hand. Buchanan forfeited his contentions that Detective
Hardiman’s testimony was not corrected and that the prosecution
elicited false testimony, because he failed to object on either
ground at trial, but even if Buchanan had preserved these issues
for appeal, they are not supported by the record.
Proceedings
The indictment charged Buchanan with the attempted
murder of Chad Jones on January 9, 2015 (count 13), and with
possession of a firearm by a felon on the same date (count 34). It
42
also charged Buchanan with two prior first degree burglary
convictions sustained in July of 2013, which it alleged were prior
strikes, prior serious felony convictions, and prison priors.
At trial, Ervin testified that he told Detective Hardiman
that Buchanan told him about another shooting Buchanan
committed. Buchanan told Ervin he had been riding through
Inglewood when a car started chasing him. Buchanan shot at the
car and hit the finger or hand of a member of the Inglewood
Family Bloods who went by the moniker 7 Flame. The shooting
occurred somewhere between Crenshaw and Manchester around
August of 2016. Ervin also testified that when he first joined Too
Greedy Family/STINCC Team in 2015 he did not see Buchanan
at Darrell Caldwell’s house because Buchanan was still
incarcerated. Ervin thought Buchanan was released from prison
at the end of 2015.
Officer Robert Swenson testified that he and his partner
responded to a call reporting a shooting at 8005 South Van Ness
Boulevard in Inglewood on January 9, 2015. When they arrived
they discovered blood in a parking lot and bullet casings in an
alley. There were no victims of the shooting at the scene.
Also on January 9, 2015, Officer Daniel Lee received a
report of multiple shooting victims being treated at a hospital in
Inglewood. One of the victims, Chad Jones, had been grazed by a
bullet on his hand.
Detective Hardiman testified that Ervin told him that
Buchanan said he shot Chad Jones in the hand on January 9,
2015, near Crenshaw and Manchester. The detective
corroborated the information Ervin gave him by contacting the
police agency with jurisdiction over the area in which the
shooting occurred, and confirming that a crime matching the
43
circumstances as described by Ervin in fact occurred. In addition
to the Jones shooting, Ervin provided Detective Hardiman with
information about six other shootings. The detective was able to
corroborate that there were in fact shootings matching all of the
circumstances that Ervin described. Although Detective
Hardiman attempted to discuss the shooting with Jones, Jones
was not cooperative.
A few days after Detective Hardiman testified in the
People’s case-in-chief, Buchanan’s counsel stated that he
intended to call Detective Hardiman as a witness for the defense.
After counsel had a discussion off the record, the prosecution
informed the court that it had just received documents from the
California Department of Corrections and Rehabilitation
establishing that Buchanan was in custody at the time Chad
Jones was alleged to have been shot. The prosecution requested
additional time to question Detective Hardiman about the
documents before he testified for the defense. Buchanan’s
counsel informed the court that he could delay questioning
Detective Hardiman until the following day, as waiting “will not
change what the facts are.”
Buchanan’s counsel called Detective Hardiman to the stand
and confronted him with the fact that, in light of Buchanan’s
incarceration at the time, Buchanan could not have shot Jones on
January 9, 2015, as charged. Detective Hardiman admitted that
it was impossible for Buchanan to have shot Jones on the date
alleged. The detective stated that he had made the mistake, not
Ervin. He explained that Ervin told him the shooting occurred in
July or August of 2016, but that he thought Ervin had gotten the
date wrong, because the other facts were consistent with the
shooting that occurred on January 9, 2015. Detective Hardiman
44
testified that he still believed the shooting happened, but on a
different date. He had been able to corroborate the rest of the
information Ervin gave him, and Buchanan had indicated in jail
calls that he and Jones had been in some sort of altercation.11
On cross-examination, the prosecution elicited that, after
learning Buchanan was in prison on January 9, 2015, Detective
Hardiman contacted the Inglewood Police Department to see if
there were other reports of Jones being shot. There were no
reports of Jones being shot on a date other than January 9, 2015.
Detective Hardiman testified that not all gang shootings are
reported.
The charges in counts 13 and 34 were dismissed on the
prosecution’s motion, and the jury was instructed not to consider
those counts.
Failure to Disclose Exculpatory Evidence (Brady
Error)
Buchanan first contends that the prosecution violated its
constitutional duty to provide exculpatory evidence of which it
knew or should have known, because it failed to disclose that
Buchanan was incarcerated on January 9, 2015, and could not
have shot Chad Jones or illegally possessed a firearm on that
date, as alleged in counts 13 and 34, respectively.
11 Several phone calls that Buchanan made from prison
were recorded and played for the jury. He stated that 7 Flame
was housed in the same prison and that he told 7 Flame he was
going to fight with him, but that he was waiting for the right
time. 7 Flame had fought with someone else and his hand was
injured.
45
“Under the Fourteenth Amendment’s due process clause,
prosecutors must disclose evidence to a criminal defendant when
it is ‘“both favorable to the defendant and material on either guilt
or punishment.” [Citations.] Evidence is “favorable” if it hurts
the prosecution or helps the defense. [Citation.] “Evidence is
‘material’ ‘only if there is a reasonable probability that, had [it]
been disclosed to the defense, the result . . . would have been
different.’”’ (People v. Earp (1999) 20 Cal.4th 826, 866; see also
Brady, supra, 373 U.S. at p. 87.) Evidence probative of a
testifying witness’s credibility, including the potential for bias, is
evidence favorable to the accused. (See United States v. Bagley
(1985) 473 U.S. 667, 676.)” (People v. Morrison (2004) 34 Cal.4th
698, 714 (Morrison).)
In this case, there is no question that, at the time of trial,
Buchanan knew, and his counsel either knew or should have
known, that Buchanan was in prison on January 9, 2015.
‘“‘[W]hen information is fully available to a defendant at the time
of trial and his only reason for not obtaining and presenting the
evidence to the Court is his lack of reasonable diligence, the
defendant has no Brady claim.’ (United States v. Brown (5th Cir.
1980) 628 F.2d 471, 473; see also United States v. Stuart (8th Cir.
1998) 150 F.3d 935, 937 [‘Evidence is not suppressed if the
defendant has access to the evidence prior to trial by the exercise
of reasonable diligence.’]; United States v. Slocum (11th Cir.
1983) 708 F.2d 587, 599.) In any event, evidence that is
presented at trial is not considered suppressed, regardless of
whether or not it had previously been disclosed during discovery.
(United States v. Martinez–Mercado, supra, 888 F.2d at p. 1488;
see United States v. Slocum, supra, 708 F.2d at p. 600 [newly-
discovered evidence does not warrant a new trial unless, inter
46
alia, the evidence is discovered following trial and the movant
demonstrates due diligence to discover the evidence prior to
trial].)” (Morrison, supra, 34 Cal.4th at p. 715.)
Failure to Correct False Testimony and Presentation
of Additional False Testimony
Buchanan next argues that the prosecution committed
misconduct when it failed to correct Detective Hardiman’s
testimony that Ervin told him Buchanan shot Jones in the hand
on January 9, 2015, and then elicited his irrelevant testimony
suggesting the shooting occurred on another date. Buchanan
forfeited both contentions by failing to raise the issues at trial.
“[H]is failure to make proper objections, request appropriate
sanctions, or seek any continuance on the matter is fatal to his
contentions on appeal. (See People v. Carpenter (1997) 15 Cal.4th
312, 411 [Brady claim found not cognizable on appeal]; cf. People
v. Marshall (1996) 13 Cal.4th 799, 830–831 [claim that conviction
was based on false testimony found waived]; People v. Arias
(1996) 13 Cal.4th 92, 151 [failure to seek sanctions or a
continuance found fatal to claim that prosecutor had misled the
defense concerning the content of a witness’s testimony].)”
(Morrison, supra, 34 Cal.4th at p. 714.) Regardless, both
contentions are without merit.
“When the prosecution fails to correct testimony of a
prosecution witness which it knows or should know is false and
misleading, reversal is required if there is any reasonable
likelihood the false testimony could have affected the judgment of
the jury. This standard is functionally equivalent to the
‘“harmless beyond a reasonable doubt”’ standard of Chapman v.
47
California (1967) 386 U.S. 18. (In re Jackson (1992) 3 Cal.4th
578, 597–598.)” (People v. Dickey (2005) 35 Cal.4th 884, 909.)
In this case, the detective’s false testimony was corrected at
trial—Detective Hardiman repeatedly testified that he was
mistaken and that Buchanan could not have shot Jones on
January 9, 2015. Detective Hardiman also admitted that Ervin
told him Buchanan shot 7 Flame in July or August of 2016, but
that he testified the shooting occurred on January 9, 2015,
because the other details of the shooting matched, and he
assumed Ervin was mistaken about the date. Ervin, who
testified before Detective Hardiman, consistently stated that
Buchanan told him he shot 7 Flame in the hand in August of
2016, and that Buchanan was incarcerated in early 2015.
With respect to his contention that the prosecution elicited
Detective Hardiman’s false testimony that the shooting took
place on a different date, Buchanan’s representation of the record
is inaccurate. Buchanan’s counsel elicited Detective Hardiman’s
testimony that he believed there was another occasion on which
Buchanan shot Jones. On cross-examination, the prosecutor
questioned Detective Hardiman on the subject, which had
already been broached by the defense.
Detective Hardiman conceded that there had been no other
reported shootings in which 7 Flame was the victim, although
some gang shootings are not reported. It was the jury’s role to
determine the plausibility and credibility of his statements.
Finally, Detective Hardiman’s testimony was relevant
because it reflected on both his credibility and Ervin’s. The
detective incorrectly testified that Buchanan committed the
January 9, 2015 shooting. It was helpful for the jury to know
why Detective Hardiman reached that erroneous conclusion and
48
that the detective was the source of the misinformation when
evaluating whether to rely on Detective Hardiman’s and/or
Ervin’s testimony. The prosecution did not violate Buchanan’s
constitutional rights by allowing false testimony to stand
uncorrected or by eliciting highly implausible testimony that had
no relation to the issues.
IV. Exclusion of Evidence of Deputy Chavez’s Alleged Past
Misconduct
Buchanan next contends that the trial court abused its
discretion by excluding evidence of alleged past misconduct of the
testifying firearms examiner, Deputy Chavez, and violated the
Confrontation Clause by impermissibly restricting the scope of
cross-examination of the deputy. We conclude that the trial
court’s exclusion of evidence of past misconduct allegations was
within its discretion. Buchanan did not move to impeach specific
testimony by Deputy Chavez, and has therefore forfeited his
challenge on that ground, made for the first time on appeal.
Regardless, exclusion of evidence with marginal impeachment
value under Evidence Code section 352 does not violate the
Confrontation Clause.
Legal Principles
“[T]he law provides that any criminal act or other
misconduct involving moral turpitude suggests a willingness to
lie and is not necessarily irrelevant or inadmissible for
impeachment purposes. (People v. Wheeler (1992) 4 Cal.4th 284,
295–296 (Wheeler); see id. at pp. 297–299 [misdemeanor
49
conviction itself is inadmissible over a hearsay objection to prove
misconduct bearing on credibility]; see also Cal. Const., art. I,
§ 28, subd. (f)(2) (truth–in–evidence provision).) However, to the
extent such misconduct amounts to a misdemeanor or is not
criminal in nature, it carries less weight in proving lax moral
character and dishonesty than does either an act or conviction
involving a felony. (Wheeler, supra, 4 Cal.4th at p. 296; see Evid.
Code, § 788 [authorizing prior felony convictions for
impeachment].) Hence, trial courts have broad discretion to
exclude impeachment evidence other than felony convictions
where such evidence might involve undue time, confusion, or
prejudice. (Wheeler, supra, 4 Cal.4th at pp. 296–297; accord,
People v. Lightsey (2012) 54 Cal.4th 668, 714; People v. Clark
(2011) 52 Cal.4th 856, 931–932.)” (People v. Contreras (2013) 58
Cal.4th 123, 157, fn. 24 (Contreras).)
“[T]he latitude section 352 allows for exclusion of
impeachment evidence in individual cases is broad. The statute
empowers courts to prevent criminal trials from degenerating
into nitpicking wars of attrition over collateral credibility issues. .
. . [¶] When exercising its discretion under Evidence Code section
352, a court must always take into account, as applicable, those
factors traditionally deemed pertinent in this area. [Citations.]
But additional considerations may apply when evidence other
than felony convictions is offered for impeachment. In general, a
misdemeanor—or any other conduct not amounting to a felony—
is a less forceful indicator of immoral character or dishonesty
than is a felony. Moreover, impeachment evidence other than
felony convictions entails problems of proof, unfair surprise, and
moral turpitude evaluation which felony convictions do not
present. Hence, courts may and should consider with particular
50
care whether the admission of such evidence might involve undue
time, confusion, or prejudice which outweighs its probative
value.” (Wheeler, supra, 4 Cal.4th at pp. 296–297, fn. omitted.)
“[I]mpeaching misconduct now may, and sometimes must, be
proven by direct evidence of the acts committed. These acts
might not even constitute criminal offenses. Under such
circumstances, fairness, efficiency, and moral turpitude become
more complicated issues. Courts may take these facts into
account when deciding under Evidence Code section 352 whether
to admit evidence other than felony convictions for
impeachment.” (Id. at p. 297, fn. 7.)
“Cross-examination is subject to restriction under Evidence
Code section 352 if it is cumulative or if it constitutes
impeachment on collateral issues. (People v. Mincey (1992) 2
Cal.4th 408, 439–440; People v. Morse (1992) 2 Cal.App.4th 620,
641–642.) The trial court’s wide discretion under Evidence Code
section 352 to limit cross-examination is not abused by the
exclusion of impeachment evidence which has only marginal
probative value. (Wheeler, supra, 4 Cal.4th 284, 295–296; People
v. Dyer (1988) 45 Cal.3d 26, 48; People v. Bento (1998) 65
Cal.App.4th 179, 195.) ‘Moreover, reliance on Evidence Code
section 352 to exclude evidence of marginal impeachment value
that would entail the undue consumption of time generally does
not contravene a defendant’s constitutional rights to
confrontation and cross-examination.’ (People v. Brown[ (2003)]
31 Cal.4th 518, 545.)” (People v. Ardoin (2011) 196 Cal.App.4th
102, 122 (Ardoin) disapproved of on another ground by People v.
Dalton (2019) 7 Cal.5th 166 (Dalton).)
51
Proceedings
Before trial, the prosecution sought to exclude prior
allegations against Deputy Ivan Chavez that had been presented
to the grand jury. Deputy Chavez had been employed by the Los
Angeles Sheriff’s Department (LASD) for 29 years, and began
working in the crime lab in 2007. The deputy performed the
firearms analysis in this case, and his work had been reviewed
and confirmed by other firearms experts.
The prosecution had previously disclosed “out of an
abundance of caution” several remote prior allegations against
Deputy Chavez relating to dishonesty. The allegations included a
claim that Deputy Chavez committed perjury during a
preliminary hearing in 1998, made false statements in an LASD
internal investigation involving complaints of excessive force and
false reporting in 2003, and sexually abused his sister-in-law
between 1988 and 1990. The alleged sexual abuse was reported
in 2013.
At a hearing on the matter, the prosecution argued that
admission of the prior allegations would result in “a trial within a
trial” given the age of the allegations, lack of supporting
evidence, the absence of findings, and the fact that the
allegations did not result in criminal charges. With respect to the
2003 allegation of false statements, Deputy Chavez was briefly
discharged from his position with LASD, but later reinstated.
The court asked the defense attorneys whether they
intended to use the allegations as impeachment. Buchanan’s
counsel stated that he had not made a final determination, but
that he believed the allegations should be “in play” for
impeachment purposes.
52
The prosecutor asked for an immediate ruling. She argued
that the allegations were prejudicial and should be excluded. If
the court ruled them admissible, she would not call Deputy
Chavez to the stand but would instead call witnesses who had
reviewed the deputy’s work. Deputy Chavez conducted all of the
firearms analysis, and various experts confirmed his findings.
The People could either call Deputy Chavez or five or six other
experts.
The prosecutor agreed to provide all information regarding
the allegations, but advised the court that it comprised only a few
pages. She requested that any information be subject to a
protective order because the information was akin to that sought
in a Pitchess motion.12 The court instructed the prosecutor to
turn over all the information in her possession to the court and
defense counsel, subject to a protective order that the information
could be used only in connection with the present case.
Subsequently, the prosecutor asked the trial court to
review the documents in camera, as they included attorney work
product. The court held an in camera hearing, and discussed the
issue with the parties afterward. The in camera review revealed
the following: The allegation of sexual abuse was reported 25
years after the alleged abuse took place, and no charges were
filed. The allegation of perjury in a preliminary hearing in 1998
was presented to the District Attorney’s office and rejected.
Finally, although Deputy Chavez had been discharged in 2003 for
making false statements during an internal investigation
involving complaints of excessive force and false reporting, he
was reinstated following an appeal to the Civil Service
12 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
53
Commission in 2004. The allegation was reviewed by the District
Attorney’s office, which determined there was insufficient
evidence to file charges. The Sheriff’s Department had purged all
records regarding the alleged false statements due to their age in
the normal course of business.
The trial court ruled that the remote allegations, which
variously did not lead to a criminal filing, a civil filing, and
resulted in reinstatement, would not be admitted. The court
stated: “It’s 16 years ago. Had there been other more recent
issues, I think you would have a better argument. But it’s to
question [Deputy Chavez] based on what ifs. There are no police
reports. It has been purged from the file. [¶] So at this time it
would just be a fishing expedition for which the defense, at this
point, couldn’t even corroborate without any file. So whatever
answer [Deputy Chavez] gave, you will be stuck with. I think it
is completely irrelevant. It’s been 16 years. There have been no
other allegations based on the prosecution’s research of [Deputy
Chavez] since the most recent in 2003. [¶] We’re not going to
have a semi trial within this trial. The court has deemed, due to
the passage of time, due to the fact that there’s been no recent
allegations since the 16-year-old allegation, for which the District
Attorney’s office declined to file, for which [Deputy Chavez]
administratively was rehired back and there’s been no allegations
since then, that it is irrelevant to this particular case.”
In testimony before the jury, Detective Chavez stated he
had been a Deputy Sheriff for 29 years. On cross-examination,
Darrell Caldwell’s counsel inquired whether Deputy Chavez had
worked as a Deputy Sheriff continuously for 29 years, and the
deputy confirmed that he had. The following day, outside the
presence of the jury, Darrell Caldwell’s counsel stated that he
54
believed Deputy Chavez lied when he stated that he had worked
for LASD continuously for 29 years, because the deputy had been
fired in 2003, and reinstated in 2004.
The prosecutor responded that, although she was not
certain, she believed that a person is viewed as having worked
during the period of suspension if reinstated. Reinstatement is
an admission that the decision was incorrect, so the person’s
prior status is restored. The prosecutor further argued that the
issue was irrelevant to the case.
Darrell Caldwell’s counsel responded that the prosecution
elicited that Deputy Chavez worked for LASD for 29 years, which
bolstered his credibility. The defense was entitled to question
Deputy Chavez on an issue raised in direct examination.
Buchanan’s counsel did not join in counsel’s objections.
The trial court ruled that the defense could not cross-
examine Deputy Chavez on the issue. The court’s understanding
of reinstatement (with which Darrell Caldwell’s other counsel
concurred) was consistent with the prosecution’s understanding,
and even if that were incorrect, the issue was irrelevant.
Analysis
Here, the 16-year-old allegations were extremely remote,
which created serious issues of proof. There were minimal
records still in existence, so it would be necessary for the defense
to call witnesses to the alleged incidents, who could be difficult to
locate, or possibly deceased. (Wheeler, supra, 4 Cal.4th at p. 296,
fn. 7 [in the absence of a conviction impeaching conduct may
require proof by direct evidence].) Any recall the witnesses may
have had would likely be degraded by the passage of time. As the
55
trial court noted, proof of the allegations would require “a semi
trial within this trial”, and devotion of time to collateral,
potentially confusing, matters within already lengthy
proceedings. The age of the allegations also diminished their
probative value. Even if Deputy Chavez had been dishonest in
the past, there was no evidence of dishonesty in the 16 years
preceding the trial.
Furthermore, the probative value of the proffered evidence
here was diminished because of the lack of a conviction, charges,
and sustained employment consequences. (See Contreras, supra,
58 Cal.4th at p. 157 [prior misconduct that does not result in a
felony conviction carries less probative value].) The District
Attorney had deemed the evidence underlying the allegations of
sexual abuse and perjury insufficient to warrant charges, and the
Civil Service Commission had reinstated Deputy Chavez
following the false statement allegations.
In sum, the allegations had only limited probative value,
and would have required evidence on collateral matters that
could have been time consuming and confusing to the jury. The
trial court acted within its discretion when it ruled the prior
allegations against Deputy Chavez inadmissible under Evidence
Code section 352. (See Wheeler, supra, 4 Cal.4th at pp. 296–297
[trial court has broad discretion to exclude evidence of prior
misconduct for impeachment purposes].)
Buchanan’s contention that the exclusion of evidence
impinged on his right to confront witnesses lacks merit. Counsel
made no request to confront Deputy Chavez with prior acts
evidence regarding the testimony of which he now complains, and
therefore forfeited that challenge on appeal. (People v. Redd
(2010) 48 Cal.4th 691, 730 [failure to raise an objection below
56
based upon the confrontation clause forfeits claim on appeal].)
Regardless, the court had discretion to prohibit the defense from
impeaching Deputy Chavez on collateral issues. (Ardoin, supra,
196 Cal.App.4th at p. 122.) The trial court’s exclusion of evidence
of prior alleged misconduct that had only marginal probative
value and would entail undue consumption of time did not violate
Buchanan’s constitutional right to confront witnesses.13 (Ibid.)
V. Kellet Error
Buchanan argues that the charges for possession of a
firearm by a felon in counts 28 through 31 were barred under
Kellet, supra, 63 Cal.2d 822, at page 827, which held that “When .
. . the prosecution is or should be aware of more than one offense
in which the same act or course of conduct plays a significant
part, all such offenses must be prosecuted in a single proceeding
unless joinder is prohibited or severance permitted for good
cause. Failure to unite all such offenses will result in a bar to
subsequent prosecution of any offense omitted if the initial
proceedings culminate in either acquittal or conviction and
sentence.” Buchanan contends that he pleaded no contest to
possession of a firearm by a felon in a prior case, in which he was
charged with possessing the same firearms, which barred the
prosecution from filing the possession of a firearm by a felon
charges in this case. The prosecution explained that the charges
13 Buchanan’s claims that the trial court prohibited him
from cross-examining Deputy Chavez and limited his attack on
the deputy’s credibility to the presentation of a competing expert
witness are not supported by the record.
57
in the other case related to possession of different firearms on
separate occasions. The trial court ruled in the prosecution’s
favor.
Even if we were to assume the prosecution committed
Kellet error, Buchanan was not prejudiced. The trial court struck
counts 28 through 31 and all associated allegations at the
sentencing hearing pursuant to section 1385 at the prosecution’s
request. (See § 1385, subd. (a) [“The judge or magistrate may,
either of his or her own motion or upon the application of the
prosecuting attorney, and in furtherance of justice, order an
action to be dismissed”].)
VI. Sufficiency of the Evidence
Buchanan contends that the evidence was insufficient to
support his convictions related to the shootings that occurred on
December 10, 2016. Buchanan’s challenge amounts to an attack
on the credibility of Ervin’s testimony and the reliability of Boyd’s
statement to the confidential informant, and the corroborating
forensic evidence. We reject these challenges as impermissible
attempts to persuade us to evaluate witness credibility and re-
weigh the evidence, which we will not entertain on appeal.
When reviewing for sufficiency of the evidence, we consider
“‘“‘the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—
that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’”’ [Citation.]”
(People v. Casares (2016) 62 Cal.4th 808, 823 (Casares),
disapproved of on another ground in Dalton, supra, 7 Cal.5th at
58
p. 214; People v. Clark (2011) 52 Cal.4th 856, 942–943.) “As a
general matter, juries may accept some parts of a witness’s
testimony and reject other parts . . . .” (People v. Collins (2021)
65 Cal.App.5th 333, 345.) “‘Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.] Moreover, unless the testimony is
physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction.’ [Citations.]”
(People v. Brown (2014) 59 Cal.4th 86, 106.) “‘. . . [I]t is the jury
rather than the reviewing court that weighs the evidence,
resolves conflicting inferences and determines whether the
People have established guilt beyond a reasonable doubt.’
[Citation.]” (Casares, supra, at p. 823.) “Thus, if the verdict is
supported by substantial evidence, we must accord due deference
to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder.” (People v. Jones (1990) 51
Cal.3d 294, 314.)
Here, the People presented substantial evidence to
establish Buchanan’s guilt. As we have discussed, Boyd’s
statements to the confidential informant were against his penal
interest and therefore reliable and admissible. Boyd identified
himself and Buchanan as the shooters. He identified the gun
that Buchanan shot as “a .40 or something.” The ballistics
evidence that the prosecution presented was consistent with
Boyd’s statements. Bullet casings recovered from the scene were
determined to have been fired from the same .40 caliber Glock
pistol that Buchanan was holding in a video filmed
approximately two months before the shooting (verified by the
pistol’s serial number). A video taken approximately 16 days
prior to the shooting depicted Buchanan with a .40 caliber Glock
59
pistol, as did a third video that was posted to Buchanan’s
Facebook page a month after the shooting. The third video
included written comments that a member of the Inglewood
Family Gangsters had been killed, and a person in the video
mentioned “Red Bull,” the moniker of victim Gregory. Boyd’s
statements to the confidential informant were amply supported
by other evidence presented to the jury.
Ervin testified that on the night of the shootings he went to
the party in the same car as Buchanan, who sat directly behind
him in the passenger side back seat. Ervin ducked when he
heard gunfire. Although he did not see Buchanan fire a gun,
immediately afterward, Buchanan, who was holding a firearm,
stated, “I emptied the clip on the nigga.” Later, Ervin saw
Buchanan drinking on social media. Buchanan said that he was
“sipping on some dead bull,” another play on Gregory’s gang
moniker, “Red Bull.” On another occasion, Ervin heard
Buchanan say that anyone who talked about the shootings would
be killed. In jail, Buchanan told Ervin, “If you basically don’t say
anything, we’re gonna be okay.” Ervin’s testimony was
consistent with Boyd’s statement. Substantial evidence supports
Buchanan’s convictions related to the December 10, 2016
shootings.
VII. Assembly Bill 333
The jury found true the allegations that (1) Buchanan
intentionally killed Gregory while Buchanan was an active
participant in a criminal street gang (§ 190.2, subd. (a)(22)), (2)
Buchanan committed the offenses in counts 3 through 9 at the
direction of, in association with, or for the benefit of a criminal
60
street gang (§ 186.22, subd. (b)(1)(C)), and (3) a principal
discharged a firearm causing great bodily injury and death (§
12022.53, subds. (b)–(d), (e)(1)) in counts 3, 4, 5 and 6.
Assembly Bill 333 became effective on January 1, 2022,
after briefing had concluded in this case, but while Buchanan’s
appeal was still pending with this court. The legislation amends
section 186.22 and adds section 1109 to the Penal Code. As
relevant here, the amendments to section 186.22 impose new
elements to prove a gang enhancement under subdivision (b) of
the statute. These new elements, in turn, also result in the
imposition of additional elements to prove gang participation
special circumstance findings (§ 190.2, subd. (a)(22)), and gang-
related firearm use enhancements (§ 12022.53, subd. (e)). (People
v. Lopez (2021) 73 Cal.App.5th 327, 346–347 (Lopez).) Newly
enacted section 1109 provides for bifurcation at trial, upon the
defendant’s request, of gang enhancement allegations from the
underlying offenses. (§ 1109, subd. (a).) Neither amended
section 186.22 nor new section 1109 states whether the recently
enacted laws apply retroactively to cases pending on appeal. In
light of the jury’s findings, we invited the parties to file
supplemental briefing on the impact of Assembly Bill 333 in this
case.
Amendments to Section 186.22
Section 186.22 provides for enhanced punishment when the
defendant is convicted of an enumerated felony committed “for
the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members.” (§ 186.22,
61
subd. (b)(1).) Prior to the amendments made by Assembly Bill
333, to prove that a group was a “criminal street gang” the
prosecution was required to show: “(1) the group [was] an ongoing
association of three or more persons sharing a common name,
identifying sign, or symbol; (2) one of the group’s primary
activities [was] the commission of one or more statutorily
enumerated criminal offenses; and (3) the group’s members . . .
have engaged in, a pattern of criminal gang activity.” (People v.
Ochoa (2017) 7 Cal.App.5th 575, 581; former § 186.22, subd. (f).)
Former section 186.22, subdivision (e), provided that a “‘pattern
of criminal gang activity’ means the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of two or more [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, and the offenses
were committed on separate occasions, or by two or more
persons . . . .” “Thus, ‘the requisite “pattern of criminal gang
activity” [[could] be proved] by evidence of “two or more”
predicate offenses committed “on separate occasions” or by
evidence of such offenses committed “by two or more persons” on
the same occasion.’ [Citation.] ‘[A] predicate offense [could] be
established by evidence of the charged offense.’ [Citation.]”
(Menifee v. Superior Court of Santa Clara County (2020) 57
Cal.App.5th 343, 362.)
Assembly Bill 333 amended section 186.22 in several
fundamental ways. The term “criminal street gang” has been
redefined under section 186.22, subdivision (f) to mean “an
ongoing, organized association or group of three or more persons,
whether formal or informal, having as one of its primary
62
activities the commission of one or more of the criminal acts
enumerated in subdivision (e), having a common name or
common identifying sign or symbol, and whose members
collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (Italics added.)
To prove a “pattern of criminal gang activity” as defined in
subdivision (e)(1), under the amended law: (1) the last of the
predicate offenses used to demonstrate a pattern of criminal
activity must have occurred within three years of the date the
current offense is alleged to have been committed; (2) the
predicate offenses must have been committed by two or more
gang members; (3) the predicate offenses must have commonly
benefitted a criminal street gang; and (4) the common benefit of
the predicate offenses must be more than reputational. Certain
crimes that previously qualified as predicate offenses may no
longer be used to demonstrate a pattern of criminal activity.
(§ 186.22, subd. (e)(1).) The prosecution is prohibited from using
the currently charged offense to establish a pattern of criminal
activity. (§ 186.22, subd. (e)(2).)
Finally, subdivision (g) of section 186.22 defines “to benefit,
promote, further, or assist” a criminal street gang to mean “to
provide a common benefit to members of a gang where the
common benefit is more than reputational,” which may include
“financial gain or motivation, retaliation, targeting a perceived or
actual gang rival, or intimidation or silencing of a potential
current or previous witness or informant.” Previously, proof of a
reputational benefit to the gang would suffice. (People v. Ramirez
(2016) 244 Cal.App.4th 800, 819.)
Although Assembly Bill 333 does not directly address either
gang participation special circumstance findings (§ 190.2, subd.
63
(a)(22)) or gang-related firearm use enhancements (§ 12022.53,
subd. (e)), the special circumstance allegation and enhancement
incorporate concepts defined in section 186.22 in their elements.
Section 190.2, subdivision (a)(22), requires that the prosecution
prove, beyond a reasonable doubt that “[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.” Under section 12022.53,
subdivision (e), firearm use enhancements imposed under
subdivisions (b)–(d) may be imposed on the defendant for gun use
by a principle if the defendant violated subdivision (b) of section
186.22. (§ 12022.53, subd. (e)(1).) As we discussed, “criminal
street gang,” “pattern of criminal activity,” and what it means to
“further the activities” of a criminal street gang—which must be
proven to impose a special circumstance allegation under section
190.2, subdivision (a)(22), and section 12022.53, subdivision (e)—
have all undergone significant substantive changes following the
enactment of Assembly Bill 333. The amendments to section
186.22 necessarily alter the elements of proof for gang
participation special circumstances and gang-related firearm use
enhancements.14 (See Lopez, supra, 73 Cal.App.5th at p. 346–
348.)
Retroactivity
Amended section 186.22 does not specify whether the
14 The People did not address the effect of Assembly Bill
333 on the gang participation special circumstance or the gang-
related firearm use enhancements in their supplemental briefing.
64
changes to the statute apply retroactively to cases still pending
on appeal. We agree with the parties that they do. Recently, the
Court of Appeal, Second District, Division Eight held that the
amendments Assembly Bill 333 made to section 186.22 are
retroactive to non-final judgments: “ ‘In In re Estrada (1965) 63
Cal.2d 740, 744–746 [(Estrada)], the California Supreme Court
held that, absent evidence to the contrary, the Legislature
intended amendments to statutes that reduce punishment for a
particular crime to apply to all whose judgments are not yet final
on the amendments’ operative date. (People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 307–308; People v. Brown (2012) 54
Cal.4th 314, 323.) This principle also applies when an
enhancement has been amended to redefine to an appellant’s
benefit the conduct subject to the enhancement. (People v.
Figueroa (1993) 20 Cal.App.4th 65, 68, 70–71 (Figueroa).) . . .
Assembly Bill 333 increases the threshold for conviction of the
section 186.22 offense and the imposition of the enhancement . . .
‘[A] defendant is entitled to the benefit of an amendment to an
enhancement statute, adding a new element to the enhancement,
where the statutory change becomes effective while the case was
on appeal, and the Legislature did not preclude its effect to
pending case[s].’ (Id. at p. 68.)” (See Lopez, supra, 73
Cal.App.5th at pp. 343–344.) We agree with the appellate court’s
reasoning and hold that the amendments Assembly Bill 333
made to section 186.22 are retroactive.
Necessity for Remand
Although the parties agree that the amendments to section
186.22 apply retroactively, they disagree regarding whether the
65
issue is subject to harmless error analysis, and thus disagree as
to whether the case must be remanded to the trial court for
further proceedings. Buchanan relies on Lopez, supra, 73
Cal.App.5th 327, in which the court, citing People v. Ramos
(2016) 244 Cal.App.4th 99, 104 (Ramos), and People v. Figueroa
(1993) 20 Cal.App.4th 71 (Figueroa), held that the defendant had
a constitutional right to a jury trial on every element of the
charged gang enhancement. (Id. at p. 346.) To the extent that
Buchanan is arguing that the omission of an element of an
offense may never be subject to harmless error analysis, he is
incorrect. The Court of Appeal, Second District, Division One has
applied the harmless beyond a reasonable doubt standard
articulated in Chapman v. California (1967) 386 U.S. 18 in this
exact context. (People v. Sek (2022) 74 Cal.App.5th 657, 668–670
(Sek).) Our Supreme Court has held that a trial court’s failure to
instruct on elements of robbery was harmless when the only issue
the defendant contested was identity. (People v. Merritt (2017) 2
Cal.5th 819; see also People v. Mil (2012) 53 Cal.4th 400, 411
[“[w]here an instruction omits some elements of the offense or
allegation, but the elements were uncontested and supported by
overwhelming evidence, it would not necessarily follow that the
trial was fundamentally unfair or an unreliable vehicle for
determining guilt or innocence”].)
Moreover, neither Lopez nor the cases Lopez cites address
whether harmless error analysis is appropriate when an element
of an offense has not been submitted to the jury. In Lopez, the
People argued that “the omission of proof that the predicate
offenses commonly benefitted a criminal street gang in a way
that was more than reputational was harmless.” (Lopez, supra,
73 Cal.App.5th at p. 346.) The appellate court rejected the
66
argument because the evidence that the People relied upon to
demonstrate harmlessness was never presented to the jury.
(Ibid.) The Lopez court did not discuss whether the error was
harmless or structural. (Ibid.) In Ramos, the Court of Appeal
held that it need not decide the proper rubric for assessing the
error because, in that case, the omission of an element of the
offense could not be deemed harmless beyond a reasonable doubt
even if that standard applied. (Ramos, supra, 244 Cal.App.4th at
p. 104.) Finally, in Figueroa, the People argued that the court
could take judicial notice of facts outside the record to establish
an element of the offense that had been added by subsequent
legislation, or alternatively, that the court could rely on evidence
presented at the preliminary hearing. (Figueroa, supra, 20
Cal.App.4th at p. 71.) The court declined to rely on evidence that
was not presented at trial to establish an element of the offense.
(Ibid.) The court did not discuss whether the error was harmless
or structural. (Ibid.)
Here, we need not decide whether the error was structural
or subject to harmless error analysis, because even if viewed
under the Chapman lens, it could not be deemed harmless. As
Buchanan argues in his supplemental briefing, the prosecution
used several of the offenses charged in this very case as predicate
offenses. The jury may have relied upon those charged offenses
to establish the pattern of criminal activity, and we have no way
of determining whether those currently charged offenses were the
basis for the jury’s true findings. “To rule that the existence of
evidence in the record that would permit a jury to make a
particular finding means that the jury need not actually be asked
to make that finding would usurp the jury’s role and violate
[Buchanan’s] right to a jury trial on all the elements of the
67
charged allegations.” (Lopez, supra, 73 Cal.App.5th at p. 346.)
We decline to do so.
Even if we were inclined to rely on the other evidence of
prior offenses that was presented to the jury, we could not do so
because those offenses do not fall within the time period for
predicate offenses set forth in the amended statute. The People
contend that the last predicate offense used to demonstrate a
pattern of criminal gang activity occurred within three years of
the current offenses, citing to Darrell Caldwell’s commission of
felon with a firearm in January 2017. The charged offenses
occurred in December 2016, however. It is well-established that
crimes committed after the charged offense cannot serve as
predicate offenses. (People v. Duran (2002) 97 Cal.App.4th 1448,
1458.) The Legislature has given no indication that it intended to
dispense with this requirement through the amendments to
section 186.22, and the People make no argument that the
statutory language is amenable to such an interpretation.
The People argue that, although Detective Hardiman
testified that Too Greedy realized reputational benefits from the
current offenses, he also testified that Too Greedy benefitted from
its prior robberies, which conferred financial benefits. While this
might be sufficient to establish the “benefitted” prong of the
definition of pattern of criminal activity to establish that Too
Greedy was a criminal street gang (an issue we do not decide), it
fails to address the requirement that the current offenses be
committed to benefit the gang in a manner other than
reputational. Section 186.22 now, and always, has required that
the current offense was committed to benefit a gang. (§ 186.22,
subd. (b)(1).) It is irrelevant that the gang produced revenue
through prior robberies if the only benefit of the murder and
68
other current offenses to the gang was reputational. The People
have not demonstrated that Buchanan committed the crimes
charged in the instant prosecution “for the benefit of” a criminal
street gang.
The prosecution also failed to show that Buchanan
committed the crimes “in association with” a criminal street gang
under the amended laws. To prove that Too Greedy was a
criminal street gang, an issue that was hotly contested at trial,
the prosecution would have had to sufficiently establish a pattern
of criminal activity, which, as we have already discussed, it did
not do. It is not sufficient that Buchanan committed the
shootings in association with another member of Too Greedy
absent sufficient evidence that Too Greedy was the gang that
both sought to benefit.15
In light of the numerous deficiencies of proof, we would not
hold the errors harmless under any standard. We vacate the
special circumstance finding that Buchanan was an active
participant in a criminal street gang when he committed the
murder (§ 190.2, subd. (a)(22)), the gang enhancement allegation
findings under section 186.22, and the gang-related firearm
enhancement findings under section 12022.53, subdivision (e).
Buchanan argues that if we vacate the jury’s gang-related
findings, we must also reverse his convictions relating to the
December 10, 2016 shootings because “[b]ut for the gang
evidence, there would be no reasonable possibility that the jury
could have believed that Mr. Buchanan fired the shots that were
the basis for all of the convictions other than the charges in
15 The People do not argue that the prosecution established
that Buchanan committed the crimes “at the direction of” a
criminal street gang.
69
counts 28-32 . . . .” We disagree. The elements of the December
10, 2016 offenses have not been impacted by the amendments to
section 186.22. Buchanan is incorrect to assume that none of the
gang evidence would be admissible to prove those offenses.
Assembly Bill 333 does not bar the admission of gang evidence
related to the underlying charges. Regardless, as we discussed in
Section VI, substantial evidence supports Buchanan’s convictions
for the December 10, 2016 crimes. Buchanan has provided no
precedent for his assumption that the evidence detailed in
Section VI would be inadmissible under the amended laws. We
affirm Buchanan’s convictions.
“‘Because we do not reverse [the special circumstance and
enhancements] based on the insufficiency of the evidence
required to prove a violation of the statute as it read at the time
of trial, the double jeopardy clause of the Constitution will not
bar a retrial. [Citations.] “‘Where, as here, evidence is not
introduced at trial because the law at that time would have
rendered it irrelevant, the remand to prove [the additional]
element[s] is proper and the reviewing court does not treat the
issue as one of sufficiency of the evidence.’ [Citation.]”
[Citation.]’ [Citations.]” (Sek, supra, 74 Cal.App.5th at pp. 669–
670.) We remand the matter to the trial court to permit the
People to elect to retry the special circumstance and
enhancements or, if the People do not elect to do so, for the court
to proceed with resentencing Buchanan in conformance with this
opinion.
Section 1109
As relevant to Buchanan’s case, new section 1109 provides
70
that, upon the defendant’s request, the trial court must bifurcate
an enhancement charged under section 186.22, subdivision (b)
from the underlying charges, and hold separate proceedings, with
the defendant’s guilt in the underlying offenses determined first
and the truth of any gang enhancements determined only after
guilt has been established. (§ 1109, subd. (a).) The statute is
silent as to whether it applies retroactively, or prospectively only.
Buchanan contends that section 1109 applies retroactively
to his case under the rule articulated in Estrada, supra, 63
Cal.2d 740, that absent evidence to the contrary, the Legislature
intended amendments to statutes that reduce punishment for a
particular crime to apply to all whose judgments are not yet final
on the amendments’ operative date. The People respond that
section 1109 operates prospectively. Citing to People v. Cervantes
(2020) 55 Cal.App.5th 927 (Cervantes), and People v. Sandee
(2017) 15 Cal.App.5th 294 (Sandee), the People assert that
Estrada is inapplicable to section 1109, because the statute is
procedural and does not convey a substantive benefit. Buchanan
counters that, unlike the legislation at issue in Cervantes and
Sandee, the benefits that section 1109 creates for defendants are
substantive as well as procedural.
“‘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 ambiguous with respect to retroactive application
is construed . . . to be unambiguously prospective.”’”’ ([People v.]
71
Buycks[ (2018)] 5 Cal.5th [857,] 880 [(Buycks)].)
“Despite the foregoing, a ‘limited rule of retroactivity’
applies to newly enacted criminal statutes that are intended to
ameliorate criminal punishment. (Buycks, supra, 5 Cal.5th at p.
881 [discussing [ ]Estrada[, supra,] 63 Cal.2d 740].) ‘The Estrada
rule rests on the presumption that, in the absence of a savings
clause providing only prospective relief or other clear intention
concerning any retroactive effect, “a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as
broadly as possible, distinguishing only as necessary between
sentences that are final and sentences that are not.”’ (Buycks, at
p. 881.)” (Cervantes, supra, 55 Cal.App.5th at pp. 937–938.)
In Cervantes, the court rejected the defendant’s argument
that amendments to section 859.5, which was silent on the issue,
were retroactive. The Cervantes court emphasized, “Ultimately,
the applicability of the Estrada rule to a particular legislative
change depends on whether the statute at issue is ‘“analogous” to
the Estrada situation’ and whether the logic of Estrada applies.
[Citation.]” (Cervantes, supra, 55 Cal.App.5th at p. 940.) “The
2017 amendments to section 859.5 are not analogous to the
statute at issue in Estrada. To the contrary, their effect is to
impose requirements on certain interrogations, and to
circumscribe the admissibility of those statements if those
requirements are not met or excused. . . . The amendments do
not . . . alter the substantive requirements for conviction, nor
affect the available punishments in the event of conviction. They
do not alter or reduce criminal punishment or treatment.” (Ibid.,
fn. omitted.)
In Sandee, the court rejected the defendant’s argument
that a law enforcement search of her cell phone violated the
72
Electronic Communications Privacy Act (Pen. Code, § 1546 et
seq.) (ECPA), which became effective after the challenged search
was conducted. (Sandee, supra, 15 Cal.App.5th at p. 304.) The
court held that Estrada did not apply, because ECPA did not
lessen the punishment for a crime, decriminalize conduct, or
expand criminal defenses. (Id. at p. 305, fn. 7.)
Buchanan likens section 1109 to the legislation at issue in
Lara, supra, 4 Cal. 5th 299, in which the Supreme Court held
that Proposition 57’s provisions regarding juvenile transfer
hearings applied retroactively to cases filed in adult court before
the proposition took effect. (Id. at p. 305.) The Lara court
explained, “Proposition 57 prohibits prosecutors from charging
juveniles with crimes directly in adult court. Instead, they must
commence the action in juvenile court. If the prosecution wishes
to try the juvenile as an adult, the juvenile court must conduct . .
. a ‘transfer hearing’ to determine whether the matter should
remain in juvenile court or be transferred to adult court. Only if
the juvenile court transfers the matter to adult court can the
juvenile be tried and sentenced as an adult. (See Welf. & Inst.
Code, § 707, subd. (a).)” (Id. at p. 303, fn. omitted.) “The
possibility of being treated as a juvenile in juvenile court—where
rehabilitation is the goal—rather than being tried and sentenced
as an adult can result in dramatically different and more lenient
treatment. Therefore, Proposition 57 reduces the possible
punishment for a class of persons, namely juveniles. For this
reason, Estrada’s inference of retroactivity applies.” (Id. at p.
303.)
We agree with Buchanan that section 1109 does not bear a
superficial likeness to the statutes discussed in Cervantes and
Sandee. However, the conclusion in those cases that Estrada was
73
inapplicable because the legislation at issue did not alter the
substantive requirements for conviction, lessen punishment,
decriminalize conduct, or expand criminal defenses, is equally
applicable here. Section 1109 does not reduce punishment or
create a possibility of reduced punishment for a class of persons
as Proposition 57 does. The statute alters the procedure for
sequencing the portions of a trial relating to substantive crimes
and gang enhancements. Significantly, the bifurcated portions of
the trial remain before the same tribunal and the same trier-of-
fact.16 Moreover, section 1109 does not alter the punishment for
16 The impact of section 1109 is not at all like the impact of
Proposition 57, addressed in Lara. Proposition 57 dramatically
changed the possibility that an individual will be tried in juvenile
court, where rehabilitation and more lenient treatment are
express goals. “‘A “juvenile court” is a separate, civil division of
the superior court. (§ 246.) A prosecutor charges a minor with an
offense by filing a juvenile petition, rather than a criminal
complaint. (See §§ 653.7, 655.) Minors “admit” or “deny” an
offense, rather than plead “guilty” or “not guilty.” (§ 702.3.)
There are no “trials,” per se, in juvenile court, rather there is a
“jurisdictional hearing” presided over by a juvenile court judge.
(§ 602.) The jurisdictional hearing is equivalent to a “bench trial”
in a criminal court. (See Cal. Rules of Court, rule 5.780.)
Although a juvenile court judge adjudicates alleged law
violations, there are no “conviction[s]” in juvenile court. (§ 203.)
Rather, the juvenile court determines—under the familiar beyond
the reasonable doubt standard and under the ordinary rules of
evidence—whether the allegations are “true” and if the minor
comes within its jurisdiction. (See § 602 et seq.)’
“‘There is no “sentence,” per se, in juvenile court. Rather, a
judge can impose a wide variety of rehabilitation alternatives
after conducting a “dispositional hearing,” which is equivalent to
a sentencing hearing in a criminal court. (§ 725.5; In re Devin
74
gang-related special circumstances or enhancements, let alone
alter the punishment for any of the underlying offenses charged
in a case. Section 1109 does not change the elements of any
crime. For all of these reasons, Buchanan cannot overcome the
strong presumption set forth in section 3 that section 1109
operates prospectively and is not applicable to his case. (See
Cervantes, 55 Cal.App.5th at p. 941.)
DISPOSITION
We affirm the convictions. The firearms enhancements
imposed for Buchanan’s personal firearm use under section
12022.53, subdivision (d) in counts 3, 5, and 6, and imposed and
stayed in count 4, remain intact. We vacate the special
circumstance finding that Buchanan was an active participant in
a criminal street gang when he committed the murder in count 1
(§ 190.2, subd. (a)(22)), the gang enhancement allegation findings
under section 186.22, subdivision (b) in counts 3 through 9, and
J. (1984) 155 Cal.App.3d 1096, 1100.) In the more serious cases,
a juvenile court can ‘commit’ a minor to juvenile hall or to the
Division of Juvenile Justice (DJJ), formerly known as the
California Youth Authority (CYA). In order to commit a minor to
the DJJ, the record must show that less restrictive alternatives
would be ineffective or inappropriate. (In re Teofilio A. (1989)
210 Cal.App.3d 571, 576.) The DJJ, rather than the court, sets a
parole consideration date. DJJ commitments can range from one
year or less for nonserious offenses, and up to seven years for the
most serious offenses, including murder. (See Cal. Code Regs.,
tit. 15, §§ 4951–4957.) A minor committed to DJJ must generally
be discharged no later than 23 years of age. (§ 607, subd. (f).)’
[Citation.]” (Lara, supra, 4 Cal.5th 299, 306–307, quoting People
v. Vela (2017) 11 Cal.App.5th 68, 73–74.)
75
the gang-related firearm enhancement findings under section
12022.53, subdivision (e) in counts 3, 4, 5, and 6. We remand the
matter to the trial court to permit the People to elect to retry the
gang special circumstance and gang-related enhancements or, if
the People do not so elect, for the trial court to proceed with
resentencing Buchanan in conformance with this opinion. The
trial court is advised that the current abstract of judgment does
not properly reflect the trial court’s oral pronouncement of
judgment that firearm use enhancements were imposed under
section 12022.53, subdivision (d) in counts 3 and 5.
MOOR, J.
I concur:
RUBIN, P. J.
76
The People v. Mikell Buchanan
B305671
BAKER, J., Concurring
I agree the true findings on the gang enhancements and
the related special circumstance must be reversed. But I would
not permit retrial because I believe there was insufficient
evidence of both even under prior law. (People v. Prunty (2015)
62 Cal.4th 59, 76.) I also decline to join the majority’s discussion
of Penal Code section 1109, as I believe it is unnecessary to
decide the retroactivity of that statute in light of the reversal of
the gang enhancements and the related special circumstance—
essentially for the reasons mentioned at pages 69–70 of the
opinion for the court. With these caveats, I join the balance of
the majority’s opinion.
BAKER, J.