People v. Villasenor CA5 ( 2023 )

Filed 5/5/23 P. v. Villasenor CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082847
Plaintiff and Respondent,
(Super. Ct. No. LF012047A)
v.
RICARDO VILLASENOR, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Darren
K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Ricardo Villasenor was charged in counts 2, 3, and 4 with assault with a firearm
(Pen. Code, § 245, subd. (a)(2))1 ; in counts 5, 6, and 7 with false imprisonment by
violence (§ 237); in count 8 with active participation in a criminal street gang (§ 186.22,
subd. (a)); and in count 9, with misdemeanor carrying a concealed weapon (§ 25400,
subd. (a)(1)). It was alleged that the charged felonies were for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)) and involved personal use of a firearm (§ 12022.5,
subd. (a)).2
A jury found Villasenor not guilty of the assault with a firearm charges, but guilty
of the remaining charges and the alleged enhancements were found true. Villasenor was
sentenced to 12 years in prison, consisting of nine years for count 5 (the middle term of
two years, plus three years for the gang enhancement and four years for the gun
enhancement) plus three years consecutive for count 6 (one-third the middle term of eight
months, plus one year for the gang enhancement and 16 months for the gun
enhancement). On count 7, the trial court imposed nine years (the middle term of two
years, plus three years for the gang enhancement and four years for the firearm
enhancement), to be served concurred with count 5. On count 8, the trial court imposed
but stayed 6 years (the midterm of two years plus four years for the firearm
enhancement).3 On count 9, the trial court imposed a concurrent 180 days in jail.
On appeal, we reject Villasenor’s claims that the trial court erred when it admitted
statements of an earlier incident in violation of Miranda4 ; when it denied his motion for
1 All further statutory references are to the Penal Code unless otherwise stated.
2 Codefendant Daniel Ulloa was charged with the same seven felonies, gang and
gun enhancements, plus attempted murder in count 1, along with various gang and gun
enhancements. Ulloa has filed a separate appeal (case No. F082814).
3 The minute order is incorrect as to count 8, but is correct in the reporter’s
transcript.
4 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2.
mistrial; when it denied his motion to bifurcate the gang enhancements and sever the
gang allegation from the substantive offenses; and when it did not allow the defense to
question the immigration status of the victims. We disagree that he received ineffective
assistance of counsel and that there was insufficient evidence of the gang enhancements
under law as it existed at the time. We agree that the gang enhancement allegations and
gang substantive offense must be reversed in light of newly amended law and remand to
allow the prosecutor to retry those allegations. We also agree that remand is necessary to
allow the trial court to use its discretion in sentencing Villasenor pursuant to newly
amended sections 1170 and 654. We find no cumulative error and in all other respects
affirm.
STATEMENT OF THE FACTS
July 26, 2018, Incident at the Corral
On July 26, 2018, Luis S. and brothers Roberto H. and Juan H. went to a corral on
Fallbrook Avenue in Arvin so that Roberto could tend to his chickens. Luis and Juan
helped Roberto maintain and clean the area where the chickens were kept. 5 After they
finished cleaning, the three continued to talk and drink.
Villasenor came over with one or two others from an adjacent stall in the corral
and joined them in drinking beer. At some point, Villasenor left and returned with Ulloa.
Villasenor showed off a firearm, which he unloaded and reloaded. The men were arm
wrestling. Some of the men attempted to make the loser pay for more beer, but not all
agreed to that. According to Roberto, Luis won all the matches. But after one of the
matches, someone claimed Luis lost and owed them more beer. Luis, Roberto and Juan
were ready to go home. Luis did not want to pay for more beer, so declined and prepared
to leave with Roberto and Juan.
5 There was conflicting evidence at trial as to whether the men were engaged in
rooster fighting, which is not relevant to incident at issue.
3.
Suddenly, Ulloa hit Luis in the jaw with a closed fist. Roberto then hit Ulloa once,
after which Villasenor hit Roberto in the face. Roberto tried to defend himself, but
Villasenor kept hitting him. When Luis went over to Ulloa to try to find out why he had
hit him, Ulloa pulled out a gun and pointed it at Luis’s chest. Luis ran and hid. Ulloa ran
out of the area.
Roberto and Villasenor stopped fighting, and Villasenor made a phone call and
then told Luis that Ulloa would come back to fight him. Luis, Roberto and Juan wanted
to leave, but Villasenor stood by the exit with his gun “pointing it but lower down,” and
told them they had to stay to fight Ulloa.
When Ulloa returned a few minutes later, he brought Loreto Mosqueda 6 with him.
Ulloa pointed at Roberto and said, “It’s him,” and Mosqueda then started hitting Roberto
in the face. During the fight, Ulloa moved behind Roberto and tried to shoot him in the
back, but Luis intervened. Villasenor still had the gun in his hand and told Luis and the
others not to get involved in the fight. Luis was told that, if he did, Ulloa would “fill
[him] up with bullets.”
Ulloa then turned towards Luis and pointed the gun at his chest. Luis pushed
Ulloa’s arm down to lower the gun, but Ulloa fired the gun, missing Luis. Luis ran and
hid.
Within a few seconds, Ulloa pointed the gun at Roberto, who had Mosqueda on
the ground. Roberto attempted to get Ulloa to calm down, but Ulloa shot Roberto in the
leg, which broke the leg. Villasenor, Ulloa, and Mosqueda then fled. Roberto told his
brother Juan to call 911, but Juan did not speak English, so Roberto then told Juan to call
Jose Cisneros, the owner of the corral, who in turn called 911.
6 By the time of trial, Mosqueda was deceased.
4.
Juan showed police officers a cell phone video recording of the men arm
wrestling.7 One of the officers, who had been a resource officer at Ulloa’s middle school
from 2013-2017, recognized Ulloa in the video. When officers spoke to Luis after the
incident, Luis did not know if the perpetrators were gang members, but he referred to
them as gang members.
Two spent .45-caliber shell casings were found on the ground in the corral area.
Officers were provided a license plate of a vehicle associated with the suspects,
and Villasenor was arrested at a gas station three hours after the incident. A search of
Villasenor’s vehicle turned up a black baseball cap with “Arvin” on it, two cell phones, a
live .40-caliber bullet, and a loaded .40-caliber pistol.
Ulloa was arrested on October 3, 2018, by the U.S. Marshals Fugitive
Apprehension Team.
The Arvina Gang
Gang expert Officer Ryan Calderon testified that the only active criminal street
gang in Arvin is Arvina, also known as Arvina 13, Arvin 13, Arvin Poorside, and
Poorside Locos. Calderon testified that gangs commit crimes to instill fear, which
obstructs rivals or citizens from reporting the gang’s activity. Gang members gain
respect by committing crimes.
Officer Calderon described the Arvina gang as a southern Hispanic gang whose
rivals are the northern Hispanic gangs. Arvina’s main rival is the Lamont 13 gang.
Arvina members commonly wear dark blue, and often display the letter A and number
13. Arvina’s primary activities include felony vandalism, felony assault, narcotic sales,
vehicle theft, burglary, grand theft, illegal possession of firearms, assault with deadly
weapons, attempted murder, and killings.
7 The video was played for the jury.
5.
Officer Calderon testified that he came into contact with Arvina members about 10
times a week, making him familiar with gang clothing, signs, tattoos, their criminal
histories and personal lives. Calderon had personally investigated at least 100 crimes
committed by Arvina members.
Officer Calderon testified that a person could become an Arvina gang member by
being “jumped in,” which involved committing a crime, or by being “born into the gang,”
by family members already in the gang. Calderon opined that Arvina was an active
criminal street gang at the time of the July 26, 2018, incident.
Gang Evidence Regarding Villasenor
The prosecution presented evidence of at least 11 prior crimes and/or gatherings
involving Arvina gang members. Only one incident, in September of 2014, involved
Villasenor.
On September 3, 2014, Joe Martinez, Jesse Ruiz, and Villasenor were at Alshaif
Market (at times referred to as camel store or market). Ruiz was 14 years old at the time;
Villasenor was 17. Martinez, who went by “Shadow” and was wearing a black baseball
hat with the letter “A”, approached a man who had an “LA” tattoo and asked where he
was from. A fight ensued and the male was stabbed, suffering injuries to his nose, both
arms, left shoulder, and back.8
Officers contacted Villasenor the following day, and he explained that a friend had
asked the man where he was from, a fight started, and he got involved. Villasenor
declined to name the friend. Villasenor had an “A” tattooed on his left hand, which he
said he had gotten the previous day. Villasenor claimed not to know what the “A” meant,
but agreed that the Arvina gang represented with the letter A. Villasenor said he was not
affiliated with any gang, but confirmed that he was friends with Martinez.
8 The jury was admonished that Villasenor did not possess any weapons at the time
or stab anyone.
6.
Villasenor allowed officers to search his cell phone. The night of the stabbing,
“Lil Isac Wyno” had texted Villasenor that somebody had been jumped at the market.
Villasenor responded, “We jumped him, ese, haha.” Later that night, another individual
texted Villasenor and asked who let him “do the A.” Villasenor responded, “I put in
work and Posadas did them for me.” In response to further inquiries, Villasenor sent
texts indicating he, “Jay” and Martinez had “pop[ped] the fool from L.A.,” at the market.
Officer Calderon believed Martinez and “Lil Wyno” were active members of the
Arvina gang at the time.
At the time of trial in this matter, Villasenor no longer had the “A” tattoo on his
hand. When photographed before trial, he had numerous other tattoos, including a water
tower with the letter “A” and the word “Poorside” and another tattoo with the letter “A”
and “Poorside.” Officer Calderon believed these tattoos, and the fact that some were
obtained after 2018, were consistent with ongoing membership in the Arvina gang.
Officer Calderon opined that Villasenor was an active participant in the Arvina
gang on July 26, 2018. His belief was based on the 2014 incident, Villasenor’s tattoos,
the fact that the crime at the corral was committed with other gang members, and the
location of the crime in Arvina territory.
Gang Evidence Regarding Mosqueda
Officer Calderon had contacted Mosqueda 10 to 15 times.
On May 7, 2008, Mosqueda, Javier Lopez, and Andrew Carrera were contacted
while drinking outside of Lopez’s residence. All three had gang monikers, and Officer
Calderon believed Lopez and Carrera were Arvina gang members at the time.
On July 28, 2008, Mosqueda was contacted in the presence of Jose Moreno,
Alfredo Cardena, and Leonel Nunez. Officer Calderon was familiar with the crimes
Moreno, Cardenas, and Nunez were suspected of committing and believed all three were
Arvina gang members.
7.
On January 22, 2009, Mosqueda left the residence of Alejandro Diaz, with Manual
Pantoja in his car. Officers stopped Mosqueda, searched Diaz’s home, and found a stolen
vehicle, a large quantity of methamphetamine, and indicia of drug sales. Officer
Calderon believed Pantoja was an active Arvina gang member at the time, but not Diaz.
On December 28, 2013, officers stopped a vehicle driven by Mosqueda; Edwardo
Mosqueda, Pantoja, Oscar Partida, and Fabian Zuniga were also in the car, along with
three loaded firearms, gloves, bolt cutters, and a hammer. Mosqueda had numerous
Arvina gang tattoos, and officers believed Zuniga, Pantoja, and Partida were active
Arvina gang members at the time.
On July 28, 2014, Mosqueda was in his garage when Miguel Arrendondo and
Efrain Chocoteco began to drive away. Mosqueda remained in the garage, where officer
found his wallet, a cell phone, keys, a lighter, and a .25-caliber bullet. Arredondo had an
“A” tattooed on his neck, and Officer Calderon opined that he was an active Arvina gang
member. Chocoteco had a “W” tattooed on his cheek and was a member of the
Weedpatch 13 gang, a gang that is friendly with the Arvina gang. Officer Calderon
opined that Arrendondo and Chocoteco were both active Arvina gang members.
Officer Calderon opined that at the time of the current offense, July 26, 2018,
Mosqueda was an active participant in Arvina 13, based on his being brought to the corral
and directed, by Ulloa, to assault somebody, his tattoos, his past participation in the
Arvina gang, and the presence of Ulloa and Villasenor.
Gang Evidence Regarding Ulloa
On February 5, 2015, officers responded to a suspected burglary and detained
Ulloa, who was 15 years old at the time. Others detained were Guadalupe Cerna,
Hermina Cerna, and “Lil Wyno.” Ulloa, who had a three-dot tattoo on his finger, was in
possession of stolen electronic equipment at the time. Officer Calderon believed Lil
Wyno was an active Arvina gang member at the time.
8.
On February 1, 2017, Officer Calderon found Ulloa in possession of a loaded gun
and loaded spare magazine. Officer Calderon opined that Ulloa was an active Arvina
gang member at the time.
When Ulloa was photographed just prior to trial, he had three dots tattooed on the
inside of a finger, a tattoo that means “my crazy life,” and can be considered gang-
related, although it is also common among people with no gang connection.
Officer Calderon opined that Ulloa was an active Arvina gang member on July 26,
2018, based on Ulloa’s history, possession of a firearm, association with two other
Arvina gang members, and responding to disrespect by instigating an assault and
summoning help.
Predicate Gang Offenses
On August 24, 2014, active Arvina gang members Edgar Garcia and Jose Valencia
shot at three males who were in a pickup truck at a car wash. A police officer was nearby
and a high-speed chase ensued. Garcia was convicted of attempted murder, assault with a
firearm, and active participation in a street gang.
On January 30, 2017, Saul Ramirez drove by and shot at the residence of a known
Arvina gang dropout. Ramirez was an active Arvina gang member at the time and pled
guilty to assault with a firearm and a gang enhancement.
Officer Calderon opined that the charged crimes on July 26, 2018, were committed
for the benefit of, at the direction of, and in association with the Arvina gang. The crimes
benefitted the Arvina gang by instilling fear in the community, deterring disrespect and
discouraging people from reporting crimes.
DISCUSSION
I. MIRANDA VIOLATION
Villasenor contends the trial court erroneously admitted statements he made
during the investigation of a 2014 assault at Alshaif Market in violation of Miranda. As
argued by Villasenor, the 2014 incident at the Alshaif Market was “crucial” to the
9.
prosecution’s case, as it was the only prior instance of Villasenor spending time with
gang members or engaging in behavior that might have been gang-related, and
Villasenor’s involvement in that incident was erroneously established by his own
statements. Villasenor’s claim is twofold: first, that his statement made to an officer at
school about getting a tattoo the night of the 2014 incident was made in response to law
enforcement questioning and should have been excluded; and second, he claims his
statements from a subsequent interview at the police department should have been
excluded because he had unambiguously invoked his right to counsel. We find no merit
to his claim.
Relevant Background
Prior to trial, Ulloa filed motions in limine to exclude any reference to or evidence
of his or Villasenor’s alleged pretrial statements under Miranda, specifically defense
motions in limine No. 6 and No. 13. Villasenor joined Ulloa’s motions in limine.
In addressing motion No. 6, as to the Miranda issue, the trial court found the issue
moot as to Ulloa, and stated an Evidence Code section 402 hearing would be held as to
“the juvenile incident,” meaning the 2014 incident involving Villasenor. The trial court
also found motion No. 13 moot.
Multiple officers testified pursuant to Evidence Code section 402 for various in
limine purposes. The following recites the testimony relevant to the 2014 incident
involving Villasenor.
Evidence Code Section 402 Hearing
As noted previously, on September 3, 2014, when Villasenor was 17 years old, he
engaged in a fight at the Alshaif Market. Officer Calderon testified that he was not
present for Villasenor’s interview with law enforcement involving the incident.
Following Officer Calderon’s testimony, the trial court explained that additional
foundation testimony would be required before evidence concerning Villasenor’s
statements involving the September 3, 2014, incident would be admitted.
10.
Sergeant Patricia Stewart testified at the Evidence Code section 402 hearing that,
on the morning after the incident, she and Officer Jose Vasquez went to Arvin High
School and contacted Villasenor near the dean’s office to question him about the previous
day’s assault. According to Sergeant Stewart, Villasenor was not und er arrest at that
time, nor was he detained, but she did not tell him he was free to leave if he wished.
Villasenor was not told to sit in any particular place or stay in the office where they were.
She did not read him his Miranda rights.
During their conversation, Sergeant Stewart noticed that Villasenor’s hand looked
bruised and that he had a tattoo on it, but she did not ask him about it. Villasenor said it
was “ink from the tattoo that he had just gotten the evening prior.” Sergeant Stewart
subsequently asked Villasenor to accompany her to the police department, which he did.
As to the exchange at the high school, the trial court ruled that Villasenor had been
subject to a custodial interrogation and was not free to go. However, the trial court ruled
that Villasenor’s statement about getting a tattoo the night before was admissible because
Villasenor was not asked any questions about the tattoo. Instead, the trial court ruled that
“it was something [Villasenor] said without being asked.”
Officer Vasquez testified that he and Sergeant Stewart interviewed Villasenor at
the police station on September 4, 2014. Before questioning Villasenor, Officer Vasquez
read Villasenor his Miranda warnings verbatim from a department form. When asked,
Villasenor indicated that he understood his rights. Before questioning began, Villasenor
stated that he wanted his attorney or his mother present, after which questioning stopped.
Once Villasenor’s mother was present, Villasenor was again asked if he wanted to speak
to the officers and he said he would. Villasenor then admitted that he was present at the
Alshaif Market on September 3, 2014, to cash a check. A friend had driven him there.
Once he had cashed the check, Villasenor stepped outside and “a friend,” whom
Villasenor would not identify but was later identified as Joe Martinez, started fighting
with another man.
11.
Later in the interview, Sergeant Stewart asked Villasenor about his tattoo, and he
stated he “woke” up with it on the morning of September 4, 2014. When asked about the
meaning of the tattoo, Officer Vasquez reviewed his report and stated that the tattoo was
the letter “A” and Villasenor claimed he did not know what it was and that he was not
involved in any gang. Villasenor did acknowledge that the letter “A” was normally used
by the Arvina gang. When asked, Villasenor admitted that he joined in the fight at the
market.
On cross-examination, Villasenor’s counsel questioned Officer Vasquez about his
police report of the interview. After refreshing his memory, Officer Vasquez
acknowledged that, in his report, after being Mirandized, Villasenor had said, “I ain’t
going to answer anything until my attorney is here.” Officer Vasquez had then asked,
“So you’re refusing to talk,” and Villasenor had then said, “yeah, unless my mom is here
or my attorney I’ll speak.”
On redirect, Officer Vasquez testified that, once Villasenor’s mother was present,
he again asked Villasenor if he “still want[ed] to talk about the case.” Once Villasenor’s
mother was present, the interview was audio recorded.
At the Evidence Code section 402 hearing, Sergeant William Funderburk testified
that he was provided a cell phone on September 4, 2014, belonging to Villasenor.
According to Sergeant Funderburk, Villasenor had been earlier Mirandized, although
Sergeant Funderburk was not present at the time. Sergeant Funderburk spoke to
Villasenor when he was already arrested and booked and asked if he could search his cell
phone. Villasenor said he could and signed a consent form. Sergeant Funderburk located
text conversations made September 3, 2014, between Villasenor and Juan Martinez in
which Villasenor bragged about jumping and stabbing “some fool” at the camel store. In
the text messages, Villasenor said he got an “A” tattoo that he “put in [the] work” in for.
Following testimony, the trial court listened to the relevant portions of the
recorded interview and found that the interview with Villasenor had been “a
12.
conversational discussion,” and while Villasenor was not free to leave, he was not
“badgered or threatened.” The trial court described Villasenor as first wanting an
attorney and then clarifying that he wanted either an attorney or his mother. At this point,
the interview was terminated until his mother was located. At that point, the interviewer
asked Villasenor if he wanted to proceed because his mother was now present.
Villasenor said he would. As summarized by the trial court in finding that Villasenor had
waived his Miranda rights:
“It’s about an hour and a half gap, but it’s clear he was reminded of his
rights and he was specifically asked. It wasn’t, well, here’s your mom, let’s
get going. He was asked. It was reiterated. You said before you wanted an
attorney or your mom. Your mom is here. Do you want to talk now?”
Trial Evidence
At trial, Sergeant Stewart testified that, on September 4, 2014, she contacted
Villasenor at school, where he told her he had gotten a tattoo on his hand the night
before.
Sergeant Stewart and Officer Vasquez subsequently conducted an interview of
Villasenor at the police station. Villasenor’s mother was present and he waived his
Miranda rights. During the interview, Villasenor stated that he had gone to the market to
cash a check, and saw one of his friends get into a fight with someone with an “LA”
tattoo. Villasenor joined in the fight. Villasenor also explained that he got an “A” tattoo
on his hand later that night, and he admitted the tattoo represented the Arvina gang, but
claimed he was not affiliated with any gang. Villasenor also described the clothing he
was wearing at the time, which matched the clothing of one of the perpetrators as shown
on a surveillance video.
Cell phone evidence showed that Villasenor bragged to another gang member
about committing the crime. Villasenor texted “Lil Wyno” that “we
jumped him” during the September 3, 2014, assault. When asked by Juan Martinez in
another text “who let you do the A?”, referring to Villasenor’s new tattoo, Villasenor
13.
replied he “put in work and Posadas did them for me.” According to the text, Villasenor
“rushed with Jay and Shadow” at the market to “pop the fool from LA.” Officer
Calderon believed that Villasenor was allowed to get the tattoo as a reward for the
assault.
Standard of Review and Applicable Law
Generally, when reviewing a Miranda dispute “ ‘ “we accept the trial court's
determination of disputed facts if supported by substantial evidence, but we
independently decide whether the challenged statements were obtained in violation of
Miranda.” ’ ” (People v. Henderson (2020) 9 Cal.5th 1013, 1023.) When part or all of
the questioning was recorded, the facts are undisputed and we independently review the
trial court’s factual determinations. (People v. Jackson (2016) 1 Cal.5th 269, 339.)
Miranda requires that, before a custodial interrogation, law enforcement must
advise a suspect of certain rights, such as the right to remain silent and the right to the
presence of an attorney. (People v. McCurdy (2014) 59 Cal.4th 1063, 1085-1086.) “A
statement obtained in violation of a suspect’s Miranda rights may not be admitted to
establish guilt in a criminal case.” (People v. Jackson, supra, 1 Cal.5th at p. 339.)
Whether a person is in custody hinges on whether a reasonable person would feel
free to leave. (Howes v. Fields (2012) 565 U.S. 499, 508-509; Miranda, supra, 384 U.S.
at p. 444.) An interrogation is defined as express questioning or other words and actions
on the part of law enforcement that law enforcement should know are reasonably likely to
elicit an incriminating response from a suspect. (Rhode Island v. Innis (1980) 446 U.S.
291, 299-301.)
Villasenor’s Statement Regarding the Tattoo
Villasenor first claims that his statement to Sergeant Stewart made at the high
school that he had gotten a tattoo the night before the 2014 incident was impermissible.
Villasenor argues that, even if Sergeant Stewart did not directly ask Villasenor about the
14.
tattoo, her remarks to him noting a bruise on his hand constituted interrogation for
Miranda purposes as it was likely to elicit an incriminating response. We disagree.
For Miranda to apply, the defendant must be subject to interrogation. (Miranda,
supra, 384 U.S. at p. 479.) As stated above, interrogation under Miranda “refers not only
to express questioning, but also to any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v.
Innis, supra, 446 U.S. at p. 301.) The “reasonably likely to elicit an incriminating
response” test focuses primarily upon the perceptions of the suspect. (Ibid.) The warning
applies only when police conduct an actual interrogation or engage in conduct reasonably
likely to induce a response, and voluntary conversation and “small talk” unrelated to the
suspected offense are permitted. (People v. Gamache (2010) 48 Cal.4th 347, 387-388.)
Here the trial court, in its ruling on the suppression motion, expressly found that
Villasenor’s statement at the high school about his tattoo was not given in response to
any police questioning. While Villasenor claims the court misunderstood Sergeant
Stewart’s testimony, the trial court rejected this interpretation. “In reviewing the trial
court’s ruling on a claimed Miranda violation, ‘ “we accept the trial court’s resolution of
disputed facts and inferences, and its evaluations of credibility, if supported by
substantial evidence. We independently determine from [those facts] whether the
challenged statement was illegally obtained.” ’ ” (People v. Elizalde (2015) 61 Cal.4th
523, 530.) Because the trial court’s resolution of the disputed facts and inferences is
supported by substantial evidence, we accept the trial court’s determination, and find no
Miranda error at this stage. (People v. Martinez (2010) 47 Cal.4th 911, 949.)
Villasenor’s Statement at the Police Department
Villasenor also contends that his longer statement at the police station (which
followed the high school conversation) was also inadmissible under Miranda because
15.
Officer Vasquez continued to question him after he clearly invoked both his right to
counsel and his right to remain silent. We find no prejudicial error.
To reiterate, the rule of Miranda requires that before police may question a suspect
during a custodial interrogation, the suspect must be advised of the right to remain silent
and to an attorney and that any statements may be used against him or her in court.
(Miranda, supra, 384 U.S. at p. 479.) “If the individual indicates in any manner, at any
time prior to or during questioning, that he wishes to remain silent, the interrogation must
cease.” (Id. at pp. 473-474; accord People v. Davis (2009) 46 Cal.4th 539, 585; see
Dickerson v. United States (2000) 530 U.S. 428, 435-443.) When a suspect has exercised
his or her option to terminate questioning, officers may not persist “in repeated efforts to
wear down [the suspect’s] resistance and make him change his mind.” (Michigan v.
Mosley (1975) 423 U.S. 96, 105-106.) “[T]he admissibility of statements obtained after
the person in custody has decided to remain silent depends under Miranda on whether his
‘right to cut off questioning’ was ‘scrupulously honored.’ ” (Id. at p. 104.)
Here, after Officer Vasquez read Villasenor his Miranda rights, the following
occurred:
“VASQUEZ: OK, um, Just gonna ask some simple questions. All we want
is the honest truth. That’s it. That’s the best thing you can do right now is
just be truthful and honest. OK? Ah, last night, uh, where, where were
you?
“VILLASENOR: I ain’t gonna answer anything until my attorney is here.
“VASQUEZ: Sir, are you refusing to talk?
“VILLASENOR: Yeah, Unless my mom’s here, or my attorney, I don’t
speak.
“VASQUEZ: Ok, so, uh, you want us to call your mom then?
“VILLASENOR: Whatever you guys like, but she’s at work, she’s not
gonna get here.”
16.
Officers stopped the interview, contacted Villasenor’s mother and brought her to
the police station. About 90 minutes after the first conversation, Officer Vasquez asked
Villasenor if he would talk now that his mother was present, and Villasenor said he
would. Villasenor’s mother spoke only in Spanish and no interpreter was provided.
Questioning then continued and Villasenor admitted that he drove to the Alshaif
Market the night before with a friend, intervened in a fight involving the friend, and got
the “A” tattoo on his hand at some point in the night. Although Villasenor said that he
did not know what the tattoo meant and that he was not involved in any gangs, he did
admit that the Arvina gang normally uses a similar “A” borrowed from the Atlanta
Braves.
Edwards v. Arizona (1981) 451 U.S. 477, 484-485 established that, once a suspect
unambiguously asserts his Miranda rights, the interrogation must cease and further
questioning is impermissible until counsel is present. “This is ‘designed to prevent police
from badgering a defendant into waiving his previously asserted Miranda rights .…”
(McNeil v. Wisconsin (1991) 501 U.S. 171, 177, quoting Michigan v. Harvey (1990) 494
U.S. 344, 350.) As explained in Smith v. Illinois (1984) 469 U.S. 91, “Edwards set forth
a ‘bright-line rule’ that all questioning must cease after an accused requests counsel
[Citation.] In the absence of such a bright-line prohibition, the authorities through
‘[badgering] or ‘overreaching’ – explicit or subtle, deliberate or unintentional – might
otherwise wear down the accused and persuade him to incriminate himself
notwithstanding his earlier request for counsel’s assistance.” (Smith v. Illinois, supra, at
p. 98.)
Villasenor contends that since he unequivocally invoked his Miranda rights by
stating he was not going to answer “anything until my attorney is here,” Officer
Vasquez’s subsequent question—“Sir, are you refusing to talk?”—was badgering and not
merely “clarification,” as ruled by the trial court. Villasenor argues that, since his
statement required no clarification, Officer Vasquez’s question was improper and was
17.
used to “test [Villasenor’s] resolve and induce him to retract or qualify his invocation,”
which was “successful” but “improper.” As noted above, following Officer Vasquez’s
statement, Villasenor said he would not talk “Unless my mom’s here, or my attorney, I
don’t speak.” At that point, questioning stopped, Villasenor’s mother was called, and
questioning resumed when Villasenor’s mother was present and Villasenor said he would
talk.
We agree with respondent that, even if Villasenor’s statement was sufficiently
clear and ambiguous and Officer Vasquez should not have asked any “clarifying”
questions, any error in admitting Villasenor’s subsequent statements was harmless.
(People v. Bradford (2008) 169 Cal.App.4th 843, 854; Chapman v. California (1967) 386
U.S. 18, 26.) The evidence introduced at trial of Villasenor’s statements during his police
interview consists of the following: that Villasenor went to the camel market to cash a
check, there he saw one of his friends get in a fight with someone outside with an “LA”
tattoo, and that Villasenor joined the fight and got an “A” tattoo, commonly representing
the Arvina gang, following the fight. However, other “properly” introduced evidence
included Villasenor’s statement at school and his text messages about participating in the
assault and getting a tattoo as a reward. Thus, the offense arising from the September 3,
2014, conduct was proven regardless of Villasenor’s statements during the interview at
the police department.9
In finding the evidence harmless beyond a reasonable doubt, we also reject
Villasenor’s assertion that the cell phone evidence would have been inadmissible but for
the erroneous denial of his Miranda motion. Villasenor’s text messages were obtained
after Villasenor consented to a search of his cell phone. Miranda is not violated when an
officer asks for and obtains consent to search after the defendant has invoked his Miranda
9 We will address the impact of newly amended law on the section 186.22
enhancements and offense in part III., post.
18.
rights. (People v. Johnson (2022) 12 Cal.5th 544, 568, fn. 1, citing People v. James
(1977) 19 Cal.3d 99, 115.) We also note that Villasenor never challenged the admission
of the cell phone evidence on Miranda grounds below. To the extent that Villasenor is
claiming that his consent to search his cell phone was not freely and voluntarily given,
that issue was not raised by Villasenor below and has been forfeited on appeal. (People
v. Tully (2012) 54 Cal.4th 952, 992 [only argument made in trial court was statement
taken in violation of defendant’s invocation of counsel].)
II. MOTION FOR MISTRIAL
Villasenor next contends the trial court erred when it denied his mistrial motion
after a police officer, in violation of a court ruling, informed the jury that the victim in the
2014 Alshaif Market incident was stabbed multiple times. We disagree.
Background
Prior to Officer Jeffrey Packebush’s testimony, the trial court and the parties held
a sidebar to discuss the prosecution’s desire to ask the officer questions about the injuries
he observed to the victim of the September 4, 2014, assault as Alshaif Market. The
parties agreed that Officer Packebush could indicate the victim suffered lacerations, but
he could not specifically mention “stab wounds,” because there was no evidence
Villasenor stabbed anyone with a knife. The prosecution informed Officer Packebush of
the trial court’s ruling.
During Officer Packebush’s testimony, the prosecutor asked him what he
personally observed about the victim. Officer Packebush answered, “That he was
injured. He was holding a blood-soaked paper towel to his forehead.” When the
prosecutor asked Officer Packebush what injuries he noticed, the officer replied, “They
appeared to be multiple laceration stab wounds.”
Villasenor’s counsel objected. The trial court overruled the objection, but
admonished the jury that the testimony should be considered in conjunction with other
testimony it would hear later that day or the next, and then clarified, “Any stab wounds or
19.
puncture wounds that is being testified to by this officer were not inflicted by either of
these defendants.”
Officer Packebush continued his testimony, stating that he observed a vertical
laceration on the bridge of the victim’s nose, injuries to the victim’s arms, his left
shoulder, and his back, and observed blood outside the front of the store.
At the next court recess, the trial court addressed the objection that had been made.
The trial court acknowledged that Officer Packebush had violated its ruling, but that he
did not do so intentionally, and that was why the trial court chose to simply tell the jury
that any stabbing or puncture injuries were not inflicted by either Villasenor or Ulloa.
Villasenor’s counsel moved for mistrial as the testimony was “highly
inflammatory and prejudicial” to Villasenor. Counsel argued that the jury would
consider that the victim had been stabbed in a fight Villasenor had been involved in.
Ulloa’s counsel joined in the motion for mistrial, on grounds that the evidence had
violated the trial court’s ruling as well as Evidence Code section 352.
The prosecutor stated he specifically told Officer Packebush “to not say the word
stab or stab wounds in any way and just to describe the injuries that he saw.” The
prosecutor also noted that the co-perpetrator of the 2014 incident, Joe Martinez, was
convicted of assault with a deadly weapon as a result of that incident, which was being
offered as a predicate offense to prove the gang allegation. The prosecutor further argued
that the testimony about the stabbing was not unduly inflammatory, and that the trial
court cured the prejudicial impact by admonishing that neither Villasenor nor Ulloa
engaged in that conduct.
The trial court denied the motion for mistrial, agreeing with the defense that
“jurors don’t unhear things,” but that jurors were presumed to follow the trial court’s
instructions. The trial court precluded the prosecution from admitting the video of the
incident into evidence, although the defense could do so if it wished.
When the jury returned, the trial court again instructed the jury as follows:
20.
“I’m going to read to you an admonition. This means you must consider
what I’m telling you. There’s another jury instruction that I read at the end
of the case that is something like it’s up to you to decide what the evidence
is. [¶] I’m not the judge of the facts. Do not consider any comments I
have made in regard to what I may think about the case. That’s absolutely
true. I’m not telling you what to think about the case, but I’m telling you
this and you must consider this along with all the rest of the other evidence
and the jury instructions a[t] the end and the ones I read at the beginning.
[¶] In regard to the incident outside the entrance to the Alshaif Market in
2014 that you just heard about, Mr. Daniel Ulloa was not present and had
zero involvement. You have heard from another witness later on in this
trial that Mr. Ricardo Villasenor was present; however, Mr. Villasenor did
not possess any knife or weapon on that date and did not stab anyone.”
Applicable Law and Analysis
The trial court should grant a mistrial “ ‘ “if the court is apprised of prejudice that
it judges incurable by admonition or instruction. [Citation.] Whether a particular incident
is incurably prejudicial is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions. [Citation.]” [Citation.] A
motion for a mistrial should be granted when “ ‘ “a [defendant’s] chances of receiving a
fair trial have been irreparably damaged.” ’ ” ’ [Citation.] ” (People v. Edwards (2013)
57 Cal.4th 658, 703.)
“A witness’s volunteered statement can, under some circumstances, provide the
basis for a finding of incurable prejudice.” (People v. Ledesma (2006) 39 Cal.4th 641,
683.) However, the improper subject matter will rarely be “ ‘of such a character that its
effect ... cannot be removed by the court’s admonitions.’ ” (People v. Allen (1978) 77
Cal.App.3d 924, 935.) Deciding “whether the error can be cured by striking the
testimony and admonishing the jury rests in the sound discretion of the trial court.”
(People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) Reversal is required only if it is
reasonably probable that the volunteered comments could have affected the outcome of
the trial. (Ibid.)
21.
Villasenor relies on People v. Turner (2021) 73 Cal.App.5th 117, to support his
argument of prejudice. In that case, two murders were initially joined for trial before the
trial court severed the second murder, struck the evidence related to it as inadmissible,
instructed the jury not to consider it in its deliberations on the first murder, and denied a
motion for mistrial. (Id. at pp. 123-124.) Evidence of the second murder had
encompassed approximately 15 percent of the testimony at trial, and included extensive
and graphic details about the second murder. (Id. at pp. 124, 129-130.) The Court of
Appeal found an abuse of discretion in denying the mistrial because evidence of the
second murder had been extensive; malice was a contested issue at trial; defendant’s
defense was that he committed only voluntary manslaughter, and evidence of the second
murder would have irreparably damaged his credibility; and the jury was not admonished
to not to consider it until a week after hearing the evidence. (Id. at pp. 129-130.)
Here, only one instance of improper testimony occurred. The trial court
immediately admonished the jury to consider the evidence in conjunction with other
testimony it would hear later at trial, and then clarified that neither Villasenor nor Ulloa
had inflicted the stab wounds Officer Packebush testified to. The trial court repeated this
instruction immediately after it denied Villasenor’s motion for mistrial.
We must presume that the jury followed those instructions. (People v. Boyette
(2002) 29 Cal.4th 381, 436.) “Juries often hear unsolicited and inadmissible comments
and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial
effect of these comments may be corrected by judicial admonishment; absent evidence to
the contrary the error is deemed cured.” (People v. Martin (1983) 150 Cal.App.3d 148,
163; see also People v. Seiterle (1963) 59 Cal.2d 703, 710 [it is only in “exceptional
cases” where “the improper subject matter is of such a character that its effect on the
minds of the jurors cannot be removed by the court's admonitions”].) Here, nothing
suggests the jury failed to follow the trial court's admonitions and instructions.
22.
Furthermore, it is unlikely Villasenor would have realized a more favorable result
had the jury not heard reference to the 2014 incident victim’s stab wounds. The fact that
the victim in the September 2014 incident had been stabbed was not more inflammatory
than the circumstances of the charged offenses. Evidence at trial was that, when Ulloa
started a fight with Luis, Villasenor jumped in and repeatedly hit Roberto; Villasenor
held a gun in order to keep the victims in the corral until Ulloa returned with Mosqueda;
and when Ulloa returned, Villasenor continued to display his gun to keep the Luis and the
others from interfering when Luis attacked and then shot Roberto in the leg.
We are also not persuaded by Villasenor’s claim of a “high likelihood that the jury
would convict [him] not based on the evidence relevant to this case but to punish him for
his conduct in 2014.” This is especially so since the trial court specifically instructed that
Villasenor did not stab the victim in 2014, or even possess any knife or weapon on that
occasion. We also note that the verdict in this case demonstrates that Villasenor did not
suffer prejudice, as Villasenor was acquitted of the assault with a firearm counts, showing
that the jury was not, as Villasenor claims, “irreparably biased against” him and did not
convict him solely based on his participation in the 2014 assault.
We conclude the record “demonstrates the absence of any incurable prejudice of
the sort that would require the granting of a motion for mistrial.” (People v. Jenkins
(2000) 22 Cal.4th 900, 986.) The trial court could reasonably conclude that the
references to the 2014 victim’s stab wounds did not irreparably damage Villasenor’s
chances of receiving a fair trial, and it did not abuse its discretion by denying the mistrial
motion.
III. GANG ALLEGATIONS
Villasenor makes several related contentions concerning the true findings on the
gang enhancement allegations and conviction of the gang substantive offense. He
contends that the trial court erred when it denied his motion to bifurcate the gang
evidence; that the enactment of Assembly Bill No. 333 (Assembly Bill 333), which
23.
amended section 186.22, requires reversal of the gang enhancements and gang
substantive offense; and that Assembly Bill 333’s newly added section 1109 (Stats. 2021,
ch. 699, §§ 3, 5) requires reversal of the entire judgment. The new laws became effective
January 1, 2022. (See Cal. Const., art IV, § 8, subd. (c)(1); Gov. Code, § 9600, subd.
(a).)
We conclude Villasenor is entitled to reversal of the gang enhancements attached
to counts 5, 6, and 7, and substantive conviction for active participation in a criminal
street gang, count 8, which the People are entitled to retry under the amended law. We
further conclude the failure to bifurcate the gang allegations was harmless as to
Villasenor’s other convictions.
Relevant Procedural History
Before trial Ulloa moved to bifurcate the gang enhancements; Villasenor joined in
the motion.10 Villasenor was charged with assault with a firearm, false imprisonment,
active gang participation, and carrying a concealed firearm within a vehicle, along with
various firearm and gang enhancements.
The prosecutor moved in limine to admit gang evidence and objected to any
bifurcation or severance of gang allegations, stating the “motive, intent, and plan of the
criminal activity are so interconnected and intertwined with the gang evidence” that the
gang evidence was necessary “for the jury to fully understand the incident.” The
prosecutor further argued that the gang evidence was admissible under Evidence Code
section 352 and that emphasis should be placed on economy of judicial resources.
10 Villasenor’s opening brief generally refers to bifurcation, which would technically
apply to the gang enhancements and not the active gang participation charge. However,
the motion in the trial court requested the court to “sever/bifurcate the gang charges,” and
we thus presume Villasenor’s claim on appeal includes severance of the active gang
participation offense as well.
24.
At the hearing on the motion, the prosecution argued that Villasenor and Ulloa had
worked together to commit the crimes and secure the presence of Mosqueda, an active
Arvina gang member, who assisted at Ulloa’s direction. The prosecution acknowledged
that no gang slurs were uttered nor gang signs flashed during the crimes, but that
Mosqueda did have visible gang-related facial tattoos.
Ulloa’s counsel argued that none of the victims knew whether the crimes were
gang-related or that Mosqueda’s tattoos were gang-related. He further argued that there
was no graffiti at the scene to indicate the Arvina gang took credit for the crimes, and
there was no indication that anyone’s gang status increased based on the crimes.
The prosecutor then referred to the preliminary hearing transcript, which described
the purported testimony of a “victim”11 and that he knew Ulloa’s moniker. The
prosecutor believed the victims were aware the defendants may be gang members, which
affected how the victims reacted to the defendants’ actions. The prosecutor argued that
the crimes “turn[ed] into being motivated by gang and gang culture, particularly the
underlying facts in this case when it comes to respect, losing a fight, maybe losing a bet,
then going and getting [a] more senior gang member of Arvina and bringing him into the
fight. As argued by the prosecutor, Ulloa “assert[ed] himself to become even more
associated with Arvina 13 in order to commit the escalation of these crimes from a simple
possible mutual combat to now assault with a deadly weapon, a firearm, false
imprisonment, and attempted murder.”
Ulloa’s counsel argued that the victims had “no idea who [Ulloa] was” at the time
of the crimes. Villasenor’s counsel argued that the statement from the preliminary
hearing only references Ulloa’s moniker and said nothing about Ulloa being a gang
member.
11 See part VII. of the Discussion, post, on the prosecutor’s use of the term “victim”
in this context.
25.
The trial court reviewed the preliminary hearing testimony and, citing applicable
law, determined the gang evidence was relevant and admissible. In denying the motion,
the trial court stated the following:
“Based on the People’s theory and the information that I know, at this
point, I am not going to bifurcate. [¶] … [¶] … I will say, after the gang
expert for the People testifies this afternoon, I will think more. If there’s
something that changes, I will tell everybody, but, at this point, I do not
believe it is appropriate to bifurcate with the appropriate instruction given
to the jury as to how this information can be considered.”
Later, during the hearing Ulloa’s counsel renewed his request for bifurcation and
severance, citing People v. Albarran (2007) 149 Cal.App.4th 214, which held that
“certain extremely prejudicial gang evidence was not relevant to the underlying charges;
the People failed to present sufficient evidence these crimes were gang motivated.” (Id.
at p. 217.)
The trial court explained that “some of the evidence” at the preliminary hearing
and police reported relied on by Officer Calderon had to do with identity, motive, and
intent, “which is why they’re intrinsically linked, which is why I’m not bifurcating.” The
trial court noted that, while one of the victims at the preliminary hearing did not mention
believing Villasenor, Ulloa or Mosqueda were gang members, the victim “then said
something like that in a report that was taken.”
Assembly Bill 333
While Villasenor’s appeal was pending, the Legislature enacted Assembly Bill
333, which, in part, amends section 186.22 to impose new substantive and procedural
requirements for proving gang allegations. The legislation went into effect on January 1,
2022.
Section 186.22 prohibits unlawful participation in a criminal street gang, as set
forth in subdivision (a), and includes sentencing enhancement provisions found in
subdivision (b), both at issue here. (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)
26.
At the time of the underlying events, a criminal street gang was defined as “any
ongoing organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more of the
criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), having a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have engaged in a pattern of
criminal gang activity.” (Former § 186.22, subd. (f), as amended by Stats. 2016, ch. 887,
§ 1; see Stats. 2013, ch. 508, § 1.)
A “pattern of criminal gang activity” was previously defined as “the commission
of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of the [offenses listed in paragraphs (1) to (33)],
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 ....” (Former
§ 186.22, subd. (e), 1st ¶, as amended by Stats. 2016, ch. 887, § 1; see Stats. 2013, ch.
508, § 1.)
Assembly Bill 333 amended section 186.22 in several ways:
“First, it narrowed the definition of a ‘criminal street gang’ to require that
any gang be an ‘ongoing, organized association or group of three or more
persons.’ [Citation.] Second, whereas section 186.22, former subdivision
(f) required only that a gang’s members ‘individually or collectively engage
in’ a pattern of criminal activity in order to constitute a ‘criminal street
gang,’ Assembly Bill 333 requires that any such pattern have been
‘collectively engage[d] in’ by members of the gang. [Citation.] Third,
Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal
activity’ by requiring that (1) the last offense used to show a pattern of
criminal gang activity occurred within three years of the date that the
currently charged offense is alleged to have been committed; (2) the
offenses were committed by two or more gang ‘members,’ as opposed to
just ‘persons’; (3) the offenses commonly benefitted a criminal street gang;
and (4) the offenses establishing a pattern of gang activity must be ones
other than the currently charged offense. [Citation.] Fourth, Assembly Bill
27.
333 narrowed what it means for an offense to have commonly benefitted a
street gang, requiring that any ‘common benefit’ be ‘more than
reputational.’ ” (People v. Tran (2022) 13 Cal.5th 1169, 1206.)
Finally, Assembly Bill 333 also added section 1109, which requires gang
enhancements charged under section 186.22, subdivision (b) or (d) to be tried separately
from the underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.)
Section 1109 also requires that the substantive offense of active participation in a
criminal street gang (§ 186.22, subd. (a)), be tried separately from all other counts that do
not require gang evidence as an element of the crime. (§ 1109, subd. (b).)
Villasenor is Entitled to Reversal of His Substantive Gang Conviction and Gang
Enhancements
Assembly Bill 333’s amendments to section 186.22 apply retroactively to cases
not yet final as of the legislation’s effective date. (People v. Tran, supra, 13 Cal.5th at
pp. 1206-1207.) Thus, as to Villasenor’s contention that Assembly Bill 333’s recent
changes to section 186.22 require reversal of the gang substantive offense and gang
enhancements, Villasenor claims the evidence at trial failed to support Assembly Bill
333’s new requirements in three ways: it fails to show that (1) the Arvina gang was an
“organized” association or group; (2) that gang members “collectively” engage in or have
engaged in patterns of criminal activity; and (3) that the predicate offenses were
committed within the required time frame. The People disagree on the first and second
points, but concede evidence on the third point is lacking. We accept the People’s
concession and reverse the gang enhancements allegations attached to count 5, 6, and 7,
and the gang conviction in count 8.12 “The proper remedy for this type of failure of
proof—where newly required elements were ‘never tried’ to the jury—is to remand and
give the People an opportunity to retry the affected charges.” (People v. E.H. (2022) 75
12 Because we reverse the substantive gang offense in count 8, the firearm
enhancement (§ 12022.5, subd. (a)), attached to that count is also reversed.
28.
Cal.App.5th 467, 480; accord, People v. Rodriguez (2022) 75 Cal.App.5th 816, 822-823
& fn. 19.)
The Failure to Bifurcate was Harmless
As for Villasenor’s contention that the trial court erred when it denied his motion
to bifurcate and that Assembly Bill 333 requires reversal of the entire judgment because
the new section 1109, concerning bifurcation and severance, applies retroactively to his
case, the People disagree, arguing that section 1109 does not apply retroactively and,
even if it does, Villasenor was not prejudiced by the denial of his motion to bifurcate. We
address those issues below and find no prejudicial error occurred.
The courts of appeal are split on whether section 1109 applies retroactively.
(Compare People v. Burgos (2022) 77 Cal.App.5th 550, 565-568 [holding § 1109
applies retroactively under Estrada], review granted July 13, 2022, S274743, and People
v. Ramos (2022) 77 Cal.App.5th 1116, 1128-1131 [same], with People v. Ramirez (2022)
79 Cal.App.5th 48, 65 [holding § 1109 is not retroactive], review granted Aug. 17, 2022,
S275341, People v. Boukes (2022) 83 Cal.App.5th 937, 947-948 [same], review granted
Dec. 14, 2022, S277103, and People v. Perez (2022) 78 Cal.App.5th 192, 207 [same],
review granted Aug. 17, 2022, S275090.) Furthermore, in People v. Tran, supra, 13
Cal.5th at page 1208, the California Supreme Court declined to resolve the split,
concluding any failure to bifurcate the gang allegations was harmless. ,
In reviewing for prejudice in Tran, the California Supreme Court concluded the
failure to bifurcate in that case did not render the trial fundamentally unfair such that it
required review under the standard for federal constitutional error articulated in Chapman
v. California, supra, 386 U.S. 18. (People v. Tran, supra, 13 Cal.5th at p. 1209.)
Accordingly, the court considered whether the defendant was prejudiced under the state
law standard of review articulated in People v. Watson (1956) 46 Cal.2d 818 and
concluded the defendant had failed to establish prejudice as to his guilty verdicts. (Tran,
29.
at p. 1209.) In so holding, the Tran court rejected the contention the failure to bifurcate
as required under section 1109 constitutes structural error. (Tran, at p. 1208.)
Here, as in Tran, it is unnecessary to address the parties claims regarding
retroactivity because we conclude the failure to bifurcate the proceedings was harmless.
In so holding, and for the reasons discussed further, post, we cannot conclude the
admission of the gang evidence rendered the trial “fundamentally unfair” such that it
resulted in a due process violation requiring us to review for prejudice under the
Chapman standard for constitutional error. (See People v. Tran, supra, 13 Cal.5th at p.
1209.)
“[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could
do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is so relatively strong, and
the evidence supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result.’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 956.) “The Supreme Court has emphasized
‘that a “probability” in this context does not mean more likely than not, but merely
a reasonable chance, more than an abstract possibility.’ ” (People v. Soojian (2010) 190
Cal.App.4th 491, 519.)
Applying the Watson standard for state law error, we cannot conclude it is
reasonably probable Villasenor would have obtained a more favorable verdict in the
absence of the gang evidence that would not have been presented had the gang
enhancements and substantive gang offense been bifurcated. (See People v. Watson,
supra, 46 Cal.2d at p. 836.) As in Tran, “[t]he case for guilt here was strong.” (People v.
Tran, supra, 13 Cal.5th at pp. 1209-1210.)
30.
Two of the victims, Luis and Roberto, identified Villasenor and Ulloa at trial as
involved in the incident.13 Both testified that Villasenor stood by the door of the corral,
gun in hand, and told them that they had to stay until Ulloa returned so he could fight
them. Photographs at trial showed physical evidence of Ulloa present at the scene prior
to the incident and Roberto’s wound to his leg as a result of being shot. When Villasenor
was arrested at a gas station later that day, he had in his possession a black baseball cap
with “Arvin” on it, two cell phones, a live.40-caliber bullet, and a loaded .40-caliber
pistol.
Nothing in Assembly Bill 333 limits the introduction of gang evidence in a
bifurcated proceeding where the gang evidence is relevant to the underlying charges.
“The People are generally entitled to introduce evidence of a defendant’s gang affiliation
and activity if it is relevant to the charged offense.” (People v. Chhoun (2021) 11 Cal.5th
1, 31.) Gang evidence, “ ‘including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help
prove identity, motive, modus operandi, specific intent, means of applying force or fear,
or other issues pertinent to guilt of the charged crime.’ ” (Ibid., quoting People v.
Hernandez (2004) 33 Cal.4th 1040, 1049.) Additionally, “[e]vidence that a witness is
afraid to testify or fears retaliation for testifying is relevant to the credibility of that
witness and .... An explanation of the basis for the witness's fear is likewise relevant to
her credibility ....” (People v. Burgener (2003) 29 Cal.4th 833, 869.)
“But, ‘even where gang membership is relevant, because it may have a highly
inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence
before admitting it.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 294.) “Such evidence
should not be admitted if only tangentially relevant” (People v. Gurule (2002) 28 Cal.4th
13 The record indicates that Roberto’s brother Juan, the third victim, was in Mexico
and unavailable as a witness at trial.
31.
557, 653), or “where its sole relevance is to show a defendant’s criminal disposition or
bad character as a means of creating an inference the defendant committed the charged
offense” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449; accord, People v.
Cardenas (1982) 31 Cal.3d 897, 904-905). “Erroneous admission of gang-related
evidence, particularly regarding criminal activities, has frequently been found to be
reversible error, because of its inflammatory nature and tendency to imply criminal
disposition, or actual culpability.” (People v. Bojorquez (2002) 104 Cal.App.4th 335,
345.)
Here, at least some gang evidence would have been admissible to prove the
underlying charges even if the gang allegations had been bifurcated and severed. Luis
referred to his attackers as gang members when he spoke to law enforcement. Mosqueda
had definite visible gang tattoos on his face. As testified to by the gang expert, the more
visible the gang tattoos, the more fear is instilled in the community by their actions. At
trial, Luis testified that he was nervous and felt “panic” in looking at the two defendants,
and he had “anxiety attacks because of what happened” and did “not live the same way
anymore.”
Thus, even if section 1109 required bifurcation of the gang enhancements and
substantive gang offense allegations, it is likely some, though not all, of the gang
evidence would have come in at a trial on the other substantive offenses. (See People v.
Hernandez, supra, 33 Cal.4th at pp. 1049-1050 [“To the extent the evidence supporting
the gang enhancement would be admissible at a trial of guilt, any inference of prejudice
would be dispelled, and bifurcation would not be necessary”]; People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1167 [“evidence related to gang membership is not
insulated from the general rule that all relevant evidence is admissible if it is relevant to a
material issue in the case other than character, is not more prejudicial than probative, and
is not cumulative”].)
32.
We further note the jury was given a limiting instruction regarding its
consideration of the gang evidence, both before closing arguments and after, which we
presume it followed. (See People v. Franklin (2016) 248 Cal.App.4th 938, 953 [“We
presume that the jury followed these limiting instructions [regarding considering gang
evidence for limited purpose], and there is nothing in this record to rebut that
presumption”].) Consequently, on this record, we cannot conclude Villasenor was
prejudiced by the failure to bifurcate the substantive gang offense and gang enhancement
allegations from the other charges. (See People v. Hernandez, supra, 33 Cal.4th at p.
1051 [“Any evidence admitted solely to prove the gang enhancement was not so
minimally probative on the charged offense, and so inflammatory in comparison, that it
threatened to sway the jury to convict regardless of defendants’ actual guilt”].) Thus,
Villasenor is not entitled to reversal and retrial of his remaining convictions on this basis.
Finally, we note that the jury’s verdict, which acquitted Villasenor of all assault
with a firearm charges, demonstrates that it was not improperly affected by the admission
of the gang evidence. Instead, the verdict demonstrates that the jury considered each
piece of evidence separately, and it was not swayed by any prejudice that might have
flowed from the gang evidence. (People v. Ramos, supra, 77 Cal.App.5th at pp. 1131-
1132; People v. Williams, (2009) 170 Cal.App.4th 587, 613.)
In sum, we find that it is not reasonably probable Villasenor would have received
a more favorable result if the gang allegations had been severed and bifurcated, and
therefore any error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.) And
because we find no prejudicial error in the trial court’s failure to bifurcate the gang
allegation pursuant to newly added section 1109, we need not address Villasenor’s claim
that the trial court erred in denying his motion to sever or bifurcate those allegations at
trial as the law stood at the time, pre section 1109. (People v. Bean (1988) 46 Cal.3d
919, 940.)
33.
IV. VICTIMS PRECLUDED FROM CROSS-EXAMINATION ABOUT
IMMIGRATION STATUS
Villasenor next contends the trial court improperly precluded cross-examining the
victims about their awareness of possible immigration relief, ostensibly through the U
visa program which generally provides temporary immigration benefits to victims of
specified crimes if a law enforcement agency certifies the victim was helpful in the
prosecution of the crime. (8. U.S.C. § 1101 et seq.; see Lee v. Holder (9th Cir. 2010) 599
F.3d 973, 974 [discussing general qualifications for and benefits of U visas].) We find no
abuse of discretion in excluding the issue from cross-examination. Even if the exclusion
was error, it was harmless under the circumstances of this case.
Background
On cross-examination of Luis, Ulloa’s counsel asked Luis if he was in the United
States on a work visa. The prosecutor objected on grounds of relevance, which was
sustained. Ulloa’s counsel stated the evidence was relevant to bias and credibility, and a
sidebar held.
Outside the jury’s presence, Ulloa’s counsel argued that Luis might have been
involved in cockfighting, a felony that would potentially impact his ability to remain in
the United States, if he were here illegally, and that his involvement could have led him
to be deceptive about the case. Villasenor’s counsel added that she had received
information that Roberto had applied for either legal residency or some form of “victim
of a crime” residency as a result of his involvement in the case, and she requested the
prosecutor investigate further.
The trial court explained that, at the time the question was posed, it had not
believed there was a basis to ask it, “particularly in light of current law.” But it did
permit an investigating officer to ask Luis, off the record, if he was a United States
citizen or on a work visa. Luis declined to answer any of the officer’s questions. As a
result, the trial court tentatively ruled there would be no questions asked of Luis “as to his
34.
status in this country, whether he’s a citizen, whether he’s on a work Visa, whether it’s
something different.” However, the trial court did allow the parties to brief the issue.
The following week, the trial court revisited the issue and ruled that the fact that
someone may not be a legal resident, on its own, was not admissible under Evidence
Code sections 351.4 and 352. But, it held that, if there was some benefit provided to the
witness by the government, discovery of that benefit would be provided to the defense
and the trial court would reconsider its ruling.
The following day, the prosecutor sent an e-mail to the court and parties stating
that Roberto was aware of the possibility that a “status benefit” might arise based on his
being a victim, but he claimed he had not formally inquired about it or followed through
with anything. According to the prosecutor, the police department denied Roberto’s
request for a copy of the police report in the case, but it had not received any immigration
status requests from him. The prosecutor believed Luis was aware at that time of the visa
procedure, as likely brought to his attention by the victim advocate, but he had not filed
an application for it.
The trial court then held an in-camera hearing with Luis, who denied being offered
any money or a visa by any government agency in connection with this case. He also
denied having applied for a visa or for residency in the United States as a victim of a
crime.
The trial court also held an in-camera hearing with Roberto, who denied being
offered any money or compensation by the government for testifying in this case. He
also denied looking into or applying for a visa or residency as a result of his involvement
in this case. Roberto testified that he had “just found out” that applying for a visa or
residency as a result of his status as a victim in this case was an option for him, but he
had not applied for it.
The trial court then ruled that it was prohibiting any questions about the issue.
No Abuse of Discretion on the Part of the Trial Court
35.
A trial court’s order is presumed correct and the appellant has the burden to
demonstrate the court committed reversible error. (People v. Alvarez (1996) 49
Cal.App.4th 679, 694.) Relevant evidence is admissible evidence (Evid. Code, §§ 350,
351), and can include “evidence relevant to the credibility of a witness.” (Evid. Code,
§ 210.) “As a general matter, a defendant is entitled to explore whether a witness has
been offered any inducements or expects any benefits for his or her testimony, as such
evidence is suggestive of bias.” (People v. Brown (2003) 31 Cal.4th 518, 544.) Indeed,
statutory authority provides that impeachment evidence regarding a witness’s motivation
to lie can be deemed relevant to prove a disputed material fact. (See Evid. Code, §§ 210,
780, subd. (f).)
However, although “ ‘[c]ross-examination to test the credibility of a prosecuting
witness in a criminal case should be given wide latitude’ [citation], such latitude does not
‘prevent the trial court from imposing reasonable limits on defense counsel's inquiry
based on concerns about harassment, confusion of the issues, or relevance’ [citations].”
(People v. Brown, supra, 31 Cal.4th at p. 545.) It is well established that a trial court has
substantial discretion to exclude collateral evidence used to attack witness credibility
(People v. Thornton (2007) 41 Cal.4th 391, 428-429), and “a trial court’s [evidentiary]
ruling will not be disturbed, and reversal of the judgment is not required, unless the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.” (People v. Guerra (2006) 37 Cal.4th 1067,
1113, overruled on another point by People v. Rundle (2008) 43 Cal.4th 76, 151.)
We find the circumstances shown by the record do not support an argument that
the trial court abused its discretion in making its ruling. We acknowledge that a witness’s
desire to obtain a visa could color his testimony and, under some circumstances, be
compelling evidence of bias. Here, however, the evidence to support an inference of bias
or motive was weak.
36.
There was no evidence that either Luis or Roberto applied, or intended to apply,
for a U visa, nor is there any evidence either was aware of the U visa program at the time
they met with the investigating officer, or that their testimony at trial was materially
inconsistent with their initial statements to police or their preliminary hearing testimony.
The issue of whether Luis and Roberto were aware of or intended to apply for a U visa
was therefore a collateral one and had no direct relationship with the facts surrounding
the alleged crimes. (See People v. Rodriguez (1999) 20 Cal.4th 1, 9.) The relationship
between Luis and Roberto’s credibility as a witness and a potential motivation to testify
untruthfully based upon benefits theoretically available through a U visa was too tenuous
to make the issue relevant for cross-examination at trial.
Villasenor cites to three out-of-state cases to argue error occurred. We find the
cases unpersuasive because their circumstances bare little similarity to the material
circumstances of this case. First and foremost, all of the cases cited to by Villasenor
involved circumstances in which the alleged victim had already applied for a U visa by
the time of the defendant’s trial. (Romero-Perez v. Commonwealth (Ky.Ct.App. 2016)
492 S.W.3d 902, 904 (Romero-Perez) [At trial, during prosecution's case-in-chief,
defendant sought to cross-examine alleged domestic violence victim about the fact that
she had applied for a U visa]; State v. Del Real-Galvez (Or.Ct.App. 2015) 270 Or.App.
224, 226 (Del Real-Galvez) [“As defendant’s case proceeded to trial, [sexual abuse
victim's] mother applied for a U visa to remain in the United States and based her
application on [victim's] allegations that defendant had sexually abused and coerced
[victim]”; State v. Valle (Or.Ct.App. 2013) 255 Or.App. 805, 807 (Valle) [“During the
trial in this case, defendant sought to cross-examine [alleged sexual abuse victim] about
the fact that she had applied for the U visa”].) Indeed, in Romero–Perez, the fact that the
victim’s U visa application was pending before the trial court at the time of trial was cited
by the appellate court as the primary basis for finding error in the trial court's exclusion
37.
of cross-examination regarding the U visa. (Romero-Perez, supra, 492 S.W. at p. 903.)
In contrast here, neither Luis nor Roberto had applied for a U visa.
In sum, the cases cited by Villasenor do not persuade us that the trial court
committed error when it ruled to prohibit cross-examination about Luis or Roberto’s
possible intention to apply for a U visa or some sort of immigration relief.
Evidence Code Section 352
A balancing of the probative value of the cross-examination at issue against its
potential prejudice, pursuant to Evidence Code section 352, also supports our conclusion
to affirm the trial court’s ruling. Evidence Code section 352 authorizes a court to
exercise its discretion to exclude evidence if the evidence’s probative value is
substantially outweighed by its prejudicial impact.
In People v. Villa (2020) 55 Cal.App.5th 1042 (Villa), the Fourth District affirmed
a trial court's decision to exclude evidence that a victim had an outstanding application
for a U visa at the time of trial. (Id. at pp. 1047-1048.) At an Evidence Code section 402
hearing, the victim stated that she learned about the U visa program after she testified at
the preliminary hearing. (Villa, at p. 1048.) She completed the U visa application and
“understood she would have to cooperate with the prosecution of the case, testify if she
was subpoenaed, and testify truthfully.” (Ibid.) The trial court excluded the evidence
under Evidence Code section 352, finding that its probative value was “far outweighed by
‘the tendency of that particular item to open up a massive inquiry requiring an undue
consumption of court time and tending to confuse issues and invite jury speculation.’ ”
(Villa, at p. 1048.) Recognizing that the victim’s application for a U visa was relevant
impeachment evidence, the trial court observed that the victim’s trial testimony was
similar in all material respects to her preliminary hearing testimony during which she was
unaware of the U visa process. (Id. at p. 1052.) The trial court then balanced the limited
probative value of the evidence against the “ ‘huge chunk of time’ ” necessary to evaluate
the victim’s motivation, such as whether she changed her story after the preliminary
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hearing when she learned of the U visa program, her beliefs about what the prosecution
expected from her, and the status of her application. (Id. at p. 1053.) The trial court
affirmed the exclusion of the evidence, explaining that, among other reasons, the
evidence could prejudice the jury against the undocumented victim. (Ibid.)
Villasenor attempts to distinguish Villa from his own case, noting that the trial
court in Villa conducted an analysis on the record pursuant to Evidence Code section 352,
which was not done here. However, even if a trial court does not conduct such an
analysis, the section provides grounds to affirm the correctness of the trial court's ruling
on appeal. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Accordingly, we find the marginal probative value of cross-examining Luis and
Roberto about any possible intention to apply for a U visa was substantially outweighed
by the probability that the issue would have created a substantial danger of undue
prejudice at trial. (Evid. Code, § 352.) First, the collateral nature of the issue, by itself,
minimized its probative value and emphasized the possibility of it prejudicing or
confusing the jury. (See People v. Lavergne (1971) 4 Cal.3d 735, 742.) It is also clear
the proffered cross-examination issue presented a significant potential for prejudice
because it would have involved discussing Luis and Roberto’s right to be present in this
country. (Romero-Perez, supra, 492 S.W.3d at p. 906 [“In short, the U visa creates a
pathway whereby an illegal immigrant may be able to obtain lawful permanent residency
within three years”]; cf. Evid. Code, § 351.4 [“[E]vidence of a person's immigration
status shall not be disclosed in open court” prior to an in camera hearing conducted to
determine the admissibility of the evidence].) Indeed, our Legislature, enacting Evidence
Code section 351.4 (Stats. 2018, ch. 12, § 2), recognized that the issue of illegal
immigration is a sensitive one in this state. (Id. § 3, reprinted at Historical and Statutory
Notes, 29B pt. 1A, West’s Ann. Evid. Code (2019 supp.) foll. Evid. Code, § 351.4, p. 53
[“In order to immediately help protect undocumented residents of California and their
ability to participate in the California justice system, it is necessary that this act take
39.
effect immediately”].) Accordingly, we find no abuse of discretion on the trial court’s
part in ruling to exclude the evidence, because the probable prejudicial effect of the
proposed cross-examination issue substantially outweighed its probative value pursuant
to Evidence Code section 352.
V. ENACTMENTS TO SECTION 1170 REQUIRE REMAND
Villasenor next claims that his case must be remanded to the trial court for
resentencing under amended section 1170, subdivision (b)(6). The People concede the
issue, and we remand for resentencing.
Background
As applicable here, Villasenor was sentenced to state prison for an aggregate
determinate term of 12 years, which included the middle term of two years on count 5,
the middle term of four years on the corresponding firearm enhancement, and the middle
term of three years on the corresponding gang enhancement. Villasenor was also
sentenced to the middle term of two years on count 7, the middle term of four years on
the corresponding firearm enhancement, and the middle term of three years on the
corresponding gang enhancement, to be served concurrent with count 5. Villasenor was
21 years old at the time he committed the offenses.
Applicable Law and Analysis
Effective January 1, 2022, our determinate sentencing law, section 1170, was
amended in several fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.);
Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats. 2021, ch.
695, § 5.) Relevant here, Senate Bill No. 567 amended section 1170, former subdivision
(b) by making the middle term the presumptive sentence for a term of imprisonment
unless certain circumstances exist. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd.
(b)(1), (2).) This bill also created a presumption in favor of a low prison term when a
defendant is under 26 years of age at the time of the offense. (Stats. 2021, ch. 695, § 4,
adding § 1016.7; Stats. 2021, ch. 695, § 5.1, adding § 1170, subd. (b)(6)(B).)
40.
Section 1170, subdivision (b)(6) provides: “[U]nless the court finds that the
aggravating circumstances outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice, the court shall order imposition
of the lower term if any of the following was a contributing factor in the commission of
the offense: [¶] ... [¶] (B) The person is a youth, or was a youth as defined under
subdivision (b) of Section 1016.7 at the time of the commission of the offense.” (§ 1170,
subd. (b)(6); see § 1016.7, subd. (b) [“A ‘youth’ for purposes of this section includes any
person under 26 years of age on the date the offense was committed”].)
Section 1170, subdivision (b)(6)(B) does not require imposition of the lower term
in every case in which the defendant was under age 26 at the time the crime was
committed. Rather, this provision establishes a presumption of the lower term if the
defendant’s youth was “a contributing factor” in his or her commission of the crime
“unless the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the interests of
justice.” (§ 1170, subd. (b)(6).)
The People correctly concede the amended version of section 1170, subdivision
(b) that became effective on January 1, 2022, applies retroactively in this case as an
ameliorative change in the law applicable to all nonfinal convictions on appeal. (People
v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Under established law, we “assume,
absent evidence to the contrary, that the Legislature intended an ‘amended statute to
apply to all defendants whose judgments are not yet final on the statute’s operative
date.’ ” (People v. Lopez (2019) 42 Cal.App.5th 337, 341.) “For the purpose of
determining the retroactive application of an amendment to a criminal statute, the finality
of a judgment is extended until the time has passed for petitioning for a writ of certiorari
in the United States Supreme Court.” (Id. at pp. 341-342, citing People v. Vieira (2005)
35 Cal.4th 264, 305-306.)
41.
Villasenor was 21 years old at the time he committed the offenses in July of 2018.
Because the trial court imposed the middle terms for Villasenor’s sentences on counts 5
and 7, as well as the corresponding firearm enhancements14 , we agree with the parties
that under section 1170, subdivision (b), Villasenor’s sentence must be vacated and
remanded to the trial court to decide under the newly amended law whether he is entitled
to the lower term on count 5 and 7.
VI. SECTION 654
Villasenor contends that the matter must also be remanded to permit the trial court
to exercise new sentencing discretion provided by Assembly Bill No. 518 (2021-2022
Reg. Sess), which amended section 654 and passed while this appeal was pending.
(Stats. 2021, ch. 441, § 1.) The People agree the new law applies here, but contend that,
since this case is being remanded already, we need not address the issue further and
Villasenor can raise the claim at the time of resentencing. We agree with the parties that
Assembly Bill No. 518 applies retroactively to Villasenor’s nonfinal sentence and remand
the matter.
Applicable Law and Analysis
Effective January 1, 2022, “Assembly Bill 518 amended Penal Code section 654,
subdivision (a) to provide, in pertinent part: ‘An act or omission that is punishable in
different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than
one provision.’ (Italics added.) Previously, where Penal Code section 654 applied, the
sentencing court was required to impose the sentence that ‘provides for the longest
potential term of imprisonment’ and stay execution of the other term. (Pen. Code, § 654,
former subd. (a).) As amended by Assembly Bill 518, Penal Code section 654 now
14 As addressed in part III., ante, the gang enhancements attached to counts 5 and 7
are reversed.
42.
provides the trial court with discretion to impose and execute the sentence of either term,
which could result in the trial court imposing and executing the shorter sentence rather
than the longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
Assembly Bill No. 518 applies retroactively to Villasenor’s nonfinal sentence.
(See People v. Mani, supra, 74 Cal.App.5th at p. 379.)
Defendants “ ‘are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant's record.’ [Citation.] In such circumstances, [our Supreme
Court has] held that the appropriate remedy is to remand for resentencing unless the
record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion
‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1391.)
At Villasenor’s 2021 sentencing, the trial court followed the then relevant
statutory dictate by staying the shorter sentence on the section 186.22, subdivision (a)
offense and corresponding firearm enhancement in lieu of the greater punishment for the
false imprisonment convictions. Although the trial court gave no reason for selecting the
longer term, it did state at sentencing that it had reviewed and considered the probation
officer’s report which recommended the sentence on count 8 be stayed pursuant to
section 654 as it “arise[s] from the same set of operative facts as other counts with a
greater punishment being recommended.” Thus, the trial court was “unaware of the
scope of its discretionary powers” and the appropriate remedy is to remand for
resentencing. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) We express no opinion
on how the trial court should exercise its discretion.
We note, however, that here, as discussed in part III., ante, we reverse the section
186.22, subdivision (a) substantive offense due to the changes in Assembly Bill 333 and
43.
remand to allow the prosecution to retry the offense if they so choose. Taking the section
186.22, subdivision (a) out of the sentencing equation essentially moots the issue as now
framed by Villasenor. However, on remand, Villasenor is able to raise his sentencing
claims at resentencing, as the trial court may revisit all of its prior sentencing decision
under section 654, as amended. (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425
[“[T]he full resentencing rule allows a trial court to revisit all prior sentencing decisions
when resentencing a defendant”]; see also People v. Jones (2022) 79 Cal.App.5th 37, 46
[where a defendant’s sentence is potentially affected by recent amendments to sections
654 and 1170, subdivision (b), remand for a full resentencing is appropriate].)
VII. PROSECUTORIAL MISCONDUCT/INEFFECTIVE ASSISTANCE OF
COUNSEL
Villasenor joins Ulloa’s argument that the prosecutor engaged in deception, which
caused the trial court to improperly deny the motion to sever and bifurcate the gang
allegations. Villasenor also contends that, if we find the issue of prosecutorial
misconduct has been waived, defense counsel was ineffective for failing to object to the
prosecutor’s alleged misstatement.
Background
At the preliminary hearing, Cisneros, the owner of the corrals where the incident
took place, testified that he first noticed “something unusual” on the evening of July 26,
2018, when he saw a truck belonging to Villasenor leave the corral. The truck was being
driven by Ulloa, whom Cisneros knew as “little Casper,” because that was what
“[e]verybody in Arvin” called him. Cisneros had known Ulloa since he was a child.
Prior to trial, as addressed in part III., ante, Ulloa filed a written motion, joined by
Villasenor, asking that the gang allegations and evidence be severed or bifurcated. At the
hearing on the motion to bifurcate, the prosecutor explained that, while she was not aware
of anything said or any gang signs displayed at the time of the incident about Arvina 13,
Mosqueda had visible gang-related tattoos “plastered on his face and his head”, which
44.
would have been apparent to the victims. Ulloa’s counsel countered that neither Ulloa
nor Villasenor had any visible tattoos, none of the victims knew Mosqueda’s tattoos to be
gang-related, none of them had any idea whether the crime was committed by gang
members, and there was no other evidence to indicate to the victims that the perpetrators
were gang members. Villasenor’s counsel joined in these comments.
The prosecutor then cited page 215 of the preliminary hearing transcript and
referred to testimony “of a victim” who knew Ulloa was known as “Lil Casper,” his gang
moniker. The prosecutor reasoned that “these victims know who these individuals are,
they know what their monikers are” and, because the victims were aware the perpetrators
were gang members, bifurcation was not appropriate. The prosecutor argued against
bifurcation, reasoning that, “Based on the fact that at least one victim knows of Mr.
Ulloa’s moniker does show that they are aware that these people may be gang members
and goes to the fear and whether or not they fight back or not.”
Ulloa’s counsel repeated that the evidence showed the victims “said they had no
idea who [Ulloa] was.” Villasenor’s counsel also noted that the page in the preliminary
hearing transcript cited by the prosecutor did not reference Ulloa being a gang member or
demonstrate any knowledge that he was a gang member, only that Ulloa had a moniker.
The trial court reviewed and recited the relevant pages of the preliminary hearing
transcript and then discussed relevant case law and legal concepts applicable to a
bifurcation motion. In denying the motion to bifurcate, the trial court found that gang
evidence, generally speaking, was relevant, admissible, and, “at this point,” was not more
prejudicial than probative.
Applicable Law and Analysis
Villasenor alleges the prosecutor’s labeling of Cisneros as a “victim” and his
knowledge of Ulloa’s gang moniker as evidence that the victims knew the perpetrators
were gang members was intentionally deceptive. The People argue Villasenor failed to
object to the prosecutor’s designation of Cisneros as a victim and thereby forfeited the
45.
claim. To the extent this claim is forfeited, Villasenor claims he received ineffective
assistance of counsel, which we will address.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Mendoza (2007) 42
Cal.4th 686, 700.) “The focus of the inquiry is on the effect of the prosecutor’s action on
the defendant, not on the intent or bad faith of the prosecutor.” (Mendoza, supra, at p.
700.) “ ‘A defendant’s conviction will not be reversed for prosecutorial misconduct,
however, unless it is reasonably probable that a result more favorable to the defendant
would have been reached without the misconduct.’ ” (People v. Tully, supra, 54 Cal.4th
at p. 1010.)
As a threshold matter, Villasenor acknowledges that a defendant may not
complain on appeal of prosecutorial misconduct unless he objected on the same ground
and timely requested an adequate remedy. (People v. Samayoa (1997) 15 Cal.4th 795,
841.) However, he argues that, to the extent his claim regarding prosecutorial
misconduct is forfeited, his counsel provided ineffective assistance in failing to object.
“ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct
can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to
the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674; see
People v. Lopez (2008) 42 Cal.4th 960, 966.)
A criminal defendant has a Sixth Amendment right to the effective assistance of
counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To prove ineffective
assistance of counsel, a defendant must satisfy Strickland's two-part test requiring a
showing of counsel’s deficient performance and prejudice. (Ibid.) A defendant bears the
46.
burden of showing by a preponderance of the evidence that (1) counsel’s performance
was deficient because it fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice. (Id. at
pp. 688, 694; People v. Centeno, supra, 60 Cal.4th at p. 674; People v. Ledesma, supra,39 Cal.4th 641, 746.)
As to deficient performance, a defendant “must show that counsel's representation
fell below an objective standard of reasonableness” measured against “prevailing
professional norms.” (Strickland v. Washington, supra, 466 U.S. at p. 688.) “Unless a
defendant establishes the contrary, we shall presume that ‘counsel's performance fell
within the wide range of professional competence and that counsel's actions and inactions
can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no
light on why counsel acted or failed to act in the manner challenged,’ an appellate claim
of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation.’ ” (People v. Ledesma, supra, 39 Cal.4th at p. 746.) A “mere failure to
object to evidence or argument seldom establishes counsel’s incompetence.” (People v.
Ghent (1987) 43 Cal.3d 739, 772; see People v. Centeno, supra, 60 Cal.4th at pp. 674-
675.)
The prejudice prong requires a defendant to establish “there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Ibid.) Prejudice must be affirmatively proved. (People v. Maury (2003) 30
Cal.4th 342, 389.) Where a defendant fails to show prejudice, a reviewing court may
reject a claim of ineffective assistance of counsel without reaching the issue of deficient
performance. (See Strickland, at p. 697.)
47.
Here, the record reflects that Villasenor’s counsel was aware of the prosecutor’s
inaccurate description of the evidence, but instead of formally objecting, relied on Ulloa’s
counsel’s argument, which addressed the inaccuracy of the prosecutor’s comment and
highlighted the evidence that the victims “had no idea who [Ulloa] was.” Villasenor’s
counsel then further noted to the court that the statement referenced by the prosecutor did
not establish Ulloa was a gang member, only that he was referred to by his moniker.
Furthermore, the remarks were not made to the jury but to the trial court, which
was aware and specifically reviewed the preliminary hearing testimony. Villasenor’s
counsel could have reasonably determined that the trial court was not misled by the
prosecutor’s statement – perhaps the trial court was not so focused on Cisneros as being a
“victim,” (as the preliminary hearing transcript was clear that Cisneros was not present at
the time of the shooting), but rather on Cisneros’s comment that “[e]verybody in Arvin”
called Ulloa by his moniker, meaning his gang membership was well known.
Even if Villasenor’s counsel should have formally objected, we find Villasenor
was not prejudiced by this failure. Villasenor incorrectly focuses his prejudice analysis
on whether it is reasonably probable he would have received a different verdict at trial.
But the appropriate analysis is whether it is reasonably probable he would have received
a more favorable outcome on the trial court’s bifurcation ruling.
To the extent Villasenor reiterates arguments that were made to support his
bifurcation claim, we have addressed that issue in part III., ante, and affirm our decision.
We therefore reject Villasenor’s claim of ineffective assistance of counsel.
VIII. SUFFICIENCY OF THE EVIDENCE ON GANG ENHANCEMENTS
Villasenor, joining Ulloa’s argument, contends there was insufficient evidence to
support the gang-related enhancements. Specifically, he argues that, under the law as it
existed at the time of the trial, there was “insufficient evidence he committed any crime
for the benefit of, at the direction of, or in association with a criminal street gang, and/or
48.
with the specific intent to promote, further, or assist in criminal conduct by gang
members.” We disagree.15
“The standard of appellate review for determining the sufficiency of the evidence
supporting an enhancement is the same as that applied to a conviction.” (People v.
Weddington (2016) 246 Cal.App.4th 468, 483 (Weddington).)
We address this issue in accordance with the law applicable at the time of trial. To
establish the gang enhancement under section 186.22, subdivision (b), the prosecution
must establish “that the underlying felonies (1) were committed for the benefit of, at the
direction of, or in association with any criminal street gang and (2) were committed with
the specific intent to promote, further, or assist in any criminal conduct by gang
members.” (People v. Roberts (2017) 13 Cal.App.5th 565, 572.)
“Because the first prong is worded in the disjunctive, a gang enhancement may be
imposed without evidence of any benefit to the gang so long as the crime was committed
in association with or at the direction of another gang member.” (Weddington, supra,
246 Cal.App.4th at p. 484.)
The second prong applies to any criminal conduct and can include the conduct
underlying the charged offense. (People v. Albillar (2010) 51 Cal.4th 47, 66 (Albillar)
[“ ‘There is no statutory requirement that this “criminal conduct by gang members” be
distinct from the charged offense, or that the evidence establish specific crimes the
defendant intended to assist his fellow gang members in committing’ ”]; see also People
v. Vasquez (2009) 178 Cal.App.4th 347, 354.) Because intent is rarely susceptible of
15 Although we agree with the People’s concession that the ameliorative changes
wrought by Assembly Bill 333 require we reverse the true findings on the gang
enhancements (see, part III., ante), and allow the prosecution to retry Villasenor under
the Assembly Bill 333’s new requirements, we address Villasenor’s contention here
because a successful challenge on sufficiency of the evidence would bar retrial (People v.
Sek (2022) 74 Cal.App.5th 657, 669-670 [noting that double jeopardy clause would bar
retrial if evidence is deemed insufficient under statute as it read at the time of trial, but
not where prosecution failed to prove elements under statute amended after trial].)
49.
direct proof, it must be inferred from the surrounding facts and circumstances. (People v.
Kopp (2019) 38 Cal.App.5th 47, 72.) “For this reason, ‘we routinely draw inferences
about intent from the predictable results of action.’ ” (People v. Miranda (2011) 192
Cal.App.4th 398, 411.)
Proof of association with a gang may be established with substantial evidence that
two or more gang members committed the crime together, unless there is evidence that
they were on a frolic and detour unrelated to the gang. (Weddington, supra, 246
Cal.App.4th at p. 484.) In the instant matter, the prosecution presented substantial
evidence that Villasenor, Ulloa, and Mosqueda were all members of the Arvina gang.
Both Villasenor and Mosqueda had gang tattoos; Mosqueda had multiple gang tattoos on
his head, and the incident took place in gang territory. In fact, Mosqueda was summoned
to “help” assault the victims. (Albillar, supra, 51 Cal.4th at p. 62 [evidence that
defendants came together as gang members to commit crimes constituted substantial
evidence the crimes were committed in association with a gang].) Under these
circumstances, Villasenor, Ulloa and Mosqueda “not only actively assisted each other in
committing these crimes, but their common gang membership ensured that they could
rely on each other's cooperation in committing these crimes.” (Id. at pp. 61-62.)
Accordingly, there was more than sufficient evidence to satisfy the “in association”
requirement of the first statutory prong. (Id. at p. 62; see also People v. Morales (2003)
112 Cal.App.4th 1176, 1198 [“the jury could reasonably infer the requisite association
from the very fact that defendant committed the charged crimes in association with
fellow gang members”].)
The California Supreme Court further concluded in Albillar, supra, 51 Cal.4th 47,
that, “if substantial evidence establishes that the defendant intended to and did commit
the charged felony with known members of a gang, the jury may fairly infer that the
defendant had the specific intent to promote, further, or assist criminal conduct by those
gang members.” (Id. at p. 68.) Accordingly, the evidence outlined above also satisfies
50.
the jury's finding that the second prong of section 186.22, subdivision (b)(1) was
satisfied. (Ibid.; see also People v. Miranda, supra, 192 Cal.App.4th at p.
412 [substantial evidence supported finding of specific intent to benefit gang where
defendant gang member committed crimes with two other members or associates of the
gang in gang territory]; cf. People v. Franklin, supra, 248 Cal.App.4th 938, 949 [noting
“scienter requirement may be satisfied with proof ‘that the defendant intended to and did
commit the charged felony with known members of a gang,’ ” but concluding intent
requirement not met where defendant committed crimes with members of a different
gang].)
We thus conclude sufficient evidence supported the gang-related enhancement
under section 186.22, subdivision (b) under the law as it existed at the time of trial.
IX. CUMULATIVE ERROR
Villasenor finally contends cumulative error resulted from the combined effect of
the individual errors alleged in his opening and reply briefs, as well as those adopted
from Ulloa’s briefs. “Cumulative error is present when the combined effect of the trial
court’s errors is prejudicial or harmful to the defendant.” (People v. Capers (2019) 7
Cal.5th 989, 1017.) “The ‘litmus test’ for cumulative error ‘is whether defendant
received due process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785,
795.)
We have already concluded Villasenor’s substantive gang offense and gang
enhancement allegations must be reversed and remanded for retrial if the prosecutor
chooses to do so. We also remand for resentencing. In all other respects, we have either
rejected Villasenor’s claims of error and/or found any errors, presumed or not, were not
prejudicial. (People v. Stitely (2005) 35 Cal.4th 514, 560.) We therefore find no
cumulative error.
DISPOSITION
51.
We reverse the gang enhancements attached to count 5, 6, and 7, and the count 8
gang substantive offense (along with the section 12022.5 firearm enhancement attached
to that count) and remand to allow the People the option of retrying the gang
enhancements and gang substantive offense under the amended law. We also remand for
resentencing in accordance with sections 654 and 1170 as amended. We reject
Villasenor’s other claims of error, and affirm the judgment in all other respects.
FRANSON, J.
WE CONCUR:
HILL, P. J.
SMITH, J.
52.