Premo, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTSCalifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 211398)
Following a lengthy investigation into a conspiracy by the Nuestra Familia gang to sell methamphetamine, defendant Felipe Yanez was convicted after two jury trials of conspiracy to sell methamphetamine (Pen. Code, § 182, subd. (a); Health & Saf. Code, § 11379) with a gang enhancement (§ 186.22, subd. (b)(1)(A)). After Yanez's first trial, the jury found him guilty of conspiracy to sell methamphetamine but was unable to reach verdicts on a gang enhancement allegation attached to that count and a count of active participation in a criminal street gang (§ 186.22, subd. (a)). The prosecutor decided to retry Yanez solely on the gang enhancement allegation and voluntarily dismissed the count of active participation in a criminal street gang. After Yanez's second trial, the jury found the gang enhancement allegation attached to the conspiracy charge to be true. During both of Yanez's trials, multiple gang experts testified and provided evidence of Nuestra Familia's violent history and practices. Yanez was sentenced to a total term of 21 years in state prison.
Unspecified statutory references are to the Penal Code.
We reverse the judgment. We agree with Yanez that the matter should be remanded for resentencing pursuant to Senate Bill No. 1393. We also find that the three-year enhancement imposed under Health and Safety Code section 11370.2, subdivision (c) and the one-year enhancement imposed under section 667.5, subdivision (b) must be stricken due to recent legislative changes. We reject Yanez's other claims of error.
Yanez has filed in propria persona a petition for writ of habeas corpus asking us to correct inaccuracies in his probation report that create a misleading impression that he was a member of the Nuestra Familia gang. As summarized in our recitation of facts below, evidence was introduced during both of Yanez's trials that indicated that he was an associate of the gang. We have disposed of the habeas corpus petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
BACKGROUND1. The Indictment
On April 23, 2009, an indictment was filed charging Yanez and 28 other codefendants with various offenses stemming from an alleged conspiracy to sell methamphetamine for the benefit of the Nuestra Familia gang. Yanez was charged with active participation in a criminal street gang (§ 186.22, subd. (a); count 1) and conspiracy to sell methamphetamine (§ 182, Health & Saf. Code, § 11379; count 2). As to count 2, it was alleged that Yanez committed the crime at the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)). The indictment further alleged that Yanez had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), a prior narcotics offense (Health & Saf. Code, § 11370.2, subd. (c)), and served a prior prison term (§ 667.5, subd. (b)).
By the time of Yanez's trial, he was the last remaining defendant from the original indictment. His 28 codefendants had either resolved their cases out of court or had gone to trial.
a. Expert Testimony on Narcotics Sales and Nuestra Familia
i. Sergeant Livingston's Testimony
Campbell Police Department Sergeant Dan Livingston testified as an expert in sales, possession for sale, and manufacture of controlled substances including methamphetamine. Livingston testified that drug dealers make money either by purchasing large quantities of methamphetamine, breaking the large quantity of drugs down into smaller quantities, and selling the smaller quantities for a profit, or by adding a cutting agent to the drug.
Drug dealers sometimes "front" drugs by giving drugs to subdealers. If a subdealer does not pay back the drugs that were "fronted," he or she may face consequences such as extortion or physical assault. A subdealer may also find that the person who initially fronted the drugs will refuse to provide drugs in the future. Drug dealers use intimidation and violence to collect drug debts, and drug dealers tend to have multiple drug sources.
Sergeant Livingston testified about searches of various Nuestra Familia members and their associates. During the searches, officers found guns, and, in one case, found evidence indicating that someone was "smashed" or assaulted in connection with collecting a drug debt. According to Livingston, a Nuestra Raza member, Isaac Lastra, was slashed on the face after he testified before a grand jury.
ii. Sergeant Lewis's Testimony
San Jose Police Department Sergeant T.J. Lewis testified as an expert on the Nuestra Familia gang. Lewis testified generally about his experiences as an officer, the training that he had completed in connection with gangs, and his experience with Nuestra Familia. In 2004 and 2005, Lewis was involved in an investigation into John Mendoza, a Nuestra Familia member. The investigation resulted in 20 members arrested with 14 indictments, with crimes including sales of controlled substances, money laundering, assaults with deadly weapons, auto theft, and conspiracy to commit murder. Lewis also investigated the current case involving Yanez, which began in 2007 and resulted in the indictments of 29 defendants, including Yanez, with crimes including sales of controlled substances, assaults with deadly weapons, smuggling controlled substances into jail, and making terrorist threats for the benefit of the Nuestra Familia gang. In 2009, Lewis investigated a Nuestra Familia regiment that committed home invasion robberies and two kidnappings. Finally, in 2012, Lewis investigated a different regiment that committed sales of controlled substances, homicide, extortion, home invasion, and bank robberies, which ultimately led to 48 indictments.
The Nuestra Familia gang, which identifies with the Norteño gang, was formed in the 1960s in the California prison system as a means of protection against the rival Mexican Mafia gang. Nuestra Familia and Mexican Mafia have a 45-year-old violent feud. To join the Nuestra Familia, members are required to " 'blood in' " by proving themselves to the gang by committing a violent assault. Prospective members have been ordered to kill in order to join the organization, but murder is not a "hard-and-fast requirement" to becoming a member.
Nuestra Familia also has a "blood-out" philosophy, meaning that it is understood by members that leaving the gang will result in "some kind of punishment." According to Sergeant Lewis, it used to be understood that leaving the gang resulted in a death sentence; however, some gang members have been able to leave without getting killed. Commonly, members may be punished by getting a " 'puto mark,' " a slash across the face, which alerts anyone who is aware of Nuestra Familia or their lifestyle that the member is "no longer any good."
In prison, gang members may assault other inmates and force them into protective custody by telling them that they need to leave or by physically assaulting them. Members can also be put on a "bad news list," meaning they can be targeted and killed by other members. Gang members communicate with each other through "kites," small notes that are folded or rolled tightly.
Nuestra Familia has a written "constitution" that describes its organizational structure. The Nuestra Raza organization is considered the gang's second-tier. After some internal conflicts, Nuestra Familia restructured Nuestra Raza and changed its name. Now, Nuestra Raza members are known as "hermanos," "B's," or "bros."
There is a hierarchy within the Nuestra Familia organization. At the top, there are three generals. One of the generals, Antonio Guillen, is presently incarcerated for a homicide that he committed in 1999. Below, there are "category 3" members, "category 2" members, "category 1" members, Nuestra Raza members, Northerners, and associates. Associates are individuals that assist the organization by facilitating three-way phone calls or three-way mailings, holding gun stockpiles or drugs, or supplying illegal drugs.
Nuestra Familia members commonly commit homicide, assault with deadly weapons with or without firearms, possession for sale of controlled substances, extortions, witness intimidations, kidnappings, illegal firearms possessions, grand thefts, credit card scams, robberies, forgery, and identity theft.
iii. Correctional Officer Valdez's Testimony
Correctional Officer Marcelino Valdez, a gang investigator at the Salinas Valley State Prison, testified as a prosecution gang expert. According to Valdez, prison gangs are responsible for a "tremendous amount of violence." Nuestra Familia members will murder others if ordered to do so by the gang, and failure to carry out gang orders may result in a member being killed. Inmates that do not follow Nuestra Familia's rules may be killed, and Nuestra Familia may even kill its own members if they violate their responsibilities to the gang. Members who are ordered to stab other inmates commonly do not know why they have been ordered to do so. Inmates that are placed on the bad news list are targeted for assault.
iv. Predicate Offenses
The trial court admitted evidence of various predicate offenses committed by Nuestra Familia members. The trial court admitted a certified copy of Nuestra Familia member Antonio Guillen's conviction for the murder of Robert Viramontes (Brown Bob). The trial court also admitted the certified convictions for three Nuestra Familia members that arose after the 2007 indictment of Nuestra Familia member John Mendoza and the certified conviction of Nuestra Familia member James Cramer for conspiracy to sell methamphetamine.
b. Sammy Ramirez's Testimony
Sammy Ramirez was indicted along with Yanez and had been in custody since his arrest in February 2008. He was designated as an expert in prison gangs and the Nuestra Familia gang.
After 20 months of incarceration, Ramirez decided to cooperate with the prosecution. Ramirez testified that he realized that staying loyal to the gang "wasn't the life for [him]." When Ramirez decided to cooperate, he knew that he was placing himself in danger. Before he entered into an agreement with prosecutors, he knew that he faced a maximum sentence of 175 years to life consecutive to 36 years, and a minimum of 150 years to life consecutive to 30 years. As part of his plea agreement, the district attorney's office agreed to dismiss a gang enhancement that was alleged in connection with a charged count of extortion, and Ramirez was required to plead guilty to the remaining charges and counts.
Ramirez grew up in San Jose and started selling narcotics when he was around 16 years old. When Ramirez was 19, he shot and killed a man who assaulted his brother. In connection with that case, Ramirez was convicted of voluntary manslaughter and assault with a deadly weapon. Ramirez was sent to jail, where he was approached by individuals who were "affiliated with the Norteño movement." Over time, Ramirez earned a reputation within the gang. Gang members would show him lists of names of individuals who were gang dropouts or informants, and when Ramirez went to court, he would slip off his waist chains and beat any dropouts or informants that he saw.
Later, Ramirez was sent to San Quentin State Prison. While in prison, Ramirez became more involved with the Nuestra Familia organization. He "called the hit on the removal of" a Sureño gang member. He gave another prisoner a weapon, and the prisoner stabbed a rival gang member. While Ramirez was waiting for his disciplinary hearing following this incident, he was involved in a yard fight. In total, Ramirez participated in multiple yard fights, numbering 12 or 13, while in prison. Ramirez was labeled as a "Norteño" and was educated by other gang members on various subjects.
After San Quentin, Ramirez was transferred to the secured housing unit at Pelican Bay. At Pelican Bay, Ramirez was ordered to kill two high-ranking gang dropouts after he left the secured housing unit. Ramirez, however, was unable to complete this task because the two dropouts were no longer "on [the] mainline." Ramirez learned "mini-writing" and wrote in "kites" that were transmitted to high ranking members of Nuestra Familia. In 1995, he was sponsored by two other individuals to become a Nuestra Raza member. In 1997, he became a Nuestra Familia member.
According to Ramirez, Nuestra Familia is selective about who can join the organization. Ramirez estimated that in 1997, there were about 300 to 500 Nuestra Familia members. Leaving the gang was tantamount to an "automatic death sentence." Brown Bob, a formerly high-ranking member of Nuestra Familia, was killed after he dropped out of the gang and tried to encourage young people not to join.
Ramirez met Lorenzo Guzman when they were both housed in Pelican Bay State Prison. Guzman was released from prison in 2005, and upon his release, started his own street regiment. Ramirez was also released on parole in 2005 and started to work with a Nuestra Familia street regiment.
Guzman was arrested in 2007. After Guzman's arrest, Ramirez spoke with other Nuestra Familia members, including Clayton Clark, about how it was difficult to obtain illegal drugs. Guzman had been obtaining drugs for the gang from two men, Jack Ochoa and Jesse Vanegas. Ramirez met with Jack Ochoa, but Ochoa refused to supply him with drugs.
Two or three weeks after Guzman's arrest, Yanez reached out to Ramirez about supplying methamphetamine. Ramirez believed that Yanez was a "very close associate" of the Nuestra Familia gang. Guzman had previously told Ramirez that Yanez knew how to cook, clean, and cut methamphetamine. Ramirez met with Yanez in person. During the meeting, Yanez relayed messages to Ramirez from incarcerated Nuestra Familia members. Ramirez asked Yanez if he could supply the gang with drugs. Yanez responded that he had just been released from custody, and he would get back to Ramirez about supplying drugs. Yanez asked Ramirez if any money had been seized from Guzman's house after his arrest. Yanez told Ramirez that he had fronted Guzman four pounds of methamphetamine worth $40,000 through David Bermudez; thus, any money found in Guzman's house was his. Ramirez told Yanez that money had not been seized from Guzman's house.
The next time Ramirez met with Yanez, Yanez told him that he was being "shut down" by the "five major plugs," and he could not supply any methamphetamine. Yanez then asked Ramirez if he could collect the drug debt from the methamphetamine that had been fronted to Guzman. Ramirez gave Yanez permission to collect the drug debt. Ramirez also told Yanez that he knew that Clark had already collected $5,000 of the same debt.
Subsequently, Yanez asked Ramirez for "dope" to sell. Ramirez started Yanez with a half pound of methamphetamine, but Yanez "got rid of [the drugs] so fast" that he "couldn't keep up with him." Ramirez obtained the methamphetamine from another Nuestra Familia member, Charlie Campa. Yanez told Ramirez that he was not satisfied with the quality of the drugs received from Campa and described the methamphetamine as "too cut."
Under an arrangement with Campa, Campa gave Ramirez $200 for every pound of methamphetamine that Yanez sold. Campa told Ramirez that he lost track of how much money he owed Ramirez because Yanez was selling so much methamphetamine.
Ramirez testified about an incident where someone named "G" was going to be disciplined by the gang. Yanez put in a good word for G. Later, G was verbally reprimanded during a meeting that took place inside Yanez's car.
After he decided to cooperate with law enforcement, Ramirez was asked to listen to jail phone calls involving Yanez. Ramirez listened to a call between someone named "Ears" and Yanez. Ramirez had met Ears several times, and Ears was someone that would pick up "dope" or drop off money for Ramirez.
Yanez had previously tried to contact Ramirez in 2006, but at that time, Ramirez did not want anything to do with Yanez because he believed that Yanez was being investigated by the police. Ramirez admitted that he did not previously disclose Yanez's prior attempt to contact him. He also admitted that he previously told the police that Yanez was "nothing but a drug dealer" and was not a Nuestra Familia member.
Ramirez acknowledged that he had a criminal history. He previously put a "green light" on the West Side Mob gang for personal reasons. He also previously placed a hit on Jack Ochoa.
c. Clayton Clark's Testimony
Clayton Clark was also indicted along with Yanez in 2009. He had been a Nuestra Familia member but decided to drop out and enter protective custody. He testified for the prosecution under an immunity agreement.
Clark first became involved in gang activity around 1990, when he was 11 or 12 years old. At the time, he was involved with the "Northerners." When he was 16 or 17 years old, he became associated with a Norteño gang. Eventually, he became a Nuestra Familia member. Clark started selling methamphetamine when he was around 18 years old.
When he was 20 years old, Clark was arrested and housed as an inmate in the Santa Clara County Jail. While in jail, Clark engaged in gang-related activity, including participating in "removals" where he would physically assault other inmates. Later, Clark was incarcerated at San Quentin State Prison, where he continued to participate in gang activity, including removals and assaults of members who were on the bad news list. Clark became a Nuestra Raza member sometime in 2002.
After Clark was released from prison in 2005, he became involved with the West Side Gardens, a Norteño gang. In the beginning of 2006, he ran into Guzman's brother, who told him that Guzman was being released from prison and wanted to talk to Clark. Clark spoke with Guzman, and Guzman asked him for money. Guzman told Clark how he wanted his street regiment to be run and that he was waiting for drug connections. Around this time, Clark became involved with another gang, San Jose Grande. Clark testified that he was familiar with an incident in 2006 where a member of the San Jose Grande was killed.
Towards the end of 2006 and the beginning of 2007, Clark operated as Guzman's second-in-command. Clark received methamphetamine from Guzman, and he knew Guzman was being supplied by Jack Ochoa. Guzman also told Clark that he had been given four pounds of methamphetamine from Bermudez, who was Yanez's subordinate. Guzman told Clark that Bermudez fronted him drugs using Yanez's name.
After Guzman's arrest, it became difficult for Clark's regiment to get drugs. It also became difficult for Clark to collect drug debts. Clark tried to collect money owed from the drugs supplied by Yanez. Later, Clark was contacted by someone with the nickname "Stranger." Stranger told Clark that they were collecting the same debt. Clark learned that Yanez had asked Stranger to get in touch with Clark. In turn, Clark told Guzman that he had an issue with Yanez because they were collecting the same drug debt. Clark also believed that Yanez had supplied low-quality drugs.
While Guzman was incarcerated, Clark met with Ramirez and Campa. Guzman had directed Clark to use Jack Ochoa as a drug supplier, but Ochoa refused to supply Clark with methamphetamine. During the meeting, Clark relayed Ochoa's refusal to Ramirez and Campa. Eventually, Campa supplied Clark with methamphetamine. Ramirez and Campa also told Clark that they were also supplying Yanez with methamphetamine. Ramirez and Campa believed that if they helped Yanez, Yanez would eventually "plug back in with his big connections" and help them obtain drugs in the future. Ramirez told Clark that Campa was supplying Yanez with small amounts of methamphetamine to "hold him over" until Yanez could reestablish himself in the drug community.
Later, Clark got into an argument with Ramirez after he found out that Ramirez had given Yanez permission to collect Guzman's drug debt. Clark believed that Guzman's drug debt was his to collect.
Clark recalled that Ramirez wanted to kill Ochoa. Ramirez even took Clark to Ochoa's house. Clark, however, did not take action against Ochoa.
In July 2007, Clark fled to Mexico after he fired gunshots at Sureño gang members. After the shooting, a warrant was issued for Clark's arrest for a count of murder and a count of attempted murder. Clark was arrested in Mexico and brought back to the United States. He was housed in the Santa Clara County Jail in late July 2010. He decided to cooperate with law enforcement sometime in September or October 2010.
Clark decided to leave the Nuestra Familia gang when he was in Mexico. Clark explained, "Being in Mexico I was allowed to look at the organization outside the box and see it for what it really was, the [g]reed, and pushing people to follow rules that [sic] didn't follow the rules themselves. All the things going on behind close[d] doors I was not okay with." Clark was aware that leaving Nuestra Familia would have serious consequences.
In exchange for his cooperation, the murder and attempted murder charges against him were dismissed and a count of voluntary manslaughter was added. Clark agreed to plead guilty to several other offenses in connection with this current case.
During cross-examination, Clark was asked about a telephone conversation he had with Guzman's wife, Debbie. During the call, Debbie remarked that everyone was arrested except for "that stupid Flip [(Yanez)]." Clark responded that Yanez was "a nobody anyways." Clark explained that he was referring to the fact that Yanez was not a Nuestra Familiar member. Clark, however, recalled that he previously gave a statement where he said that Yanez was Guzman's drug supplier.
One time, Clark called Campa because he was upset that Yanez was collecting gang "dues." During their conversation, Clark told Ramirez that Yanez was not a Nuestra Familia member. At the time, Clark was angry because Campa and Ramirez were permitting Yanez to run "drug deals in [the gang's] drug business," and he believed Yanez was taking money out of the Nuestra Familia gang.
After his arrest, Clark was housed with some of the other cooperating witnesses in Yanez's trial, including Ramirez and Ruel Atwell. While housed together, they spoke about the deals that they received in exchange for their cooperation and some of the facts of Yanez's case.
d. Ruel Atwell's Testimony
Ruel Atwell was arrested in 2009. At the time of his arrest, he was a "Norteño bro," which is the equivalent to a Nuestra Raza member. He decided to cooperate with law enforcement after his arrest because he just had a daughter and was "tired of that life."
Atwell first became associated with street gangs when he was around 15 years old. He became drawn to the Nuestra Raza when he was in his twenties. Later, he acted as a security enforcer for Nuestra Familia and Nuestra Raza while incarcerated at San Quentin State Prison. He was arrested in 2003 and sent to Santa Clara County Jail, where he remained an active Nuestra Raza member.
Atwell was released from prison in January 2007. When he was released, there were street regiments run by Marco Abundiz, Campa, Ramirez, and Guzman. First, Atwell reported to Guzman. Later, he reported to Ramirez.
At some point, Ramirez and Campa were arrested. After their arrest, Ramirez's regiment "didn't all function at that time." Regiment members, however, continued to sell drugs and tried to be discrete about their activities.
In 2008, Atwell had a meeting with Guzman's brother. Guzman's brother brought Yanez and another individual to the meeting. Yanez sat in his parked truck during the meeting, and the men discussed their drug dealing business. Atwell described Yanez as having the role of the "driver" during the meeting. Atwell, however, testified that only those who are "trusted associates" of the gang are brought to these types of meetings. Before the meeting, Atwell had heard about Yanez from Ramirez. Atwell also spoke with Robert Perez, another gang member, about Yanez, and Perez told him that Yanez was Guzman's drug dealer.
Later, Atwell was arrested in connection with this case and was charged with numerous crimes. He was aware that if he was convicted of all charges, he faced a maximum of 14 years to life in state prison. As part of his agreement with the prosecution, some of the charges were dismissed and Atwell agreed to plead guilty to other charges. As a result, Atwell now faced a maximum sentence between 15 years and eight months to 24 years in state prison.
During cross-examination, Atwell testified he was involved in assaults and other acts of violence when he was previously incarcerated. Atwell had also assaulted and threatened to assault others over drug debts and had once been involved in a kidnapping. Atwell admitted that he occasionally used drugs and frequently drank alcohol.
While Atwell was incarcerated, he spoke with some of the other cooperating witnesses, including Ramirez, when they were housed together. Sometimes they would speak about what had happened during the various grand jury and trial proceedings.
e. Jail Phone Calls
Audio recordings of multiple jail phone calls were introduced into evidence by the prosecution. During the phone calls, Yanez and others are heard using coded communication to discuss drug dealing and other issues. In one phone call, Yanez discussed how someone he knew was "robbed," which Sergeant Lewis testified was a term used by drug dealers to describe not getting paid for certain transactions. Yanez also made multiple jail phone calls following Bermudez's arrest. In one phone call, he asked his girlfriend, China, about the weight and quantity of drugs that Bermudez was caught with.
f. The Verdict in the First Trial
On September 23, 2013, the jury found Yanez guilty of conspiracy to sell methamphetamine but was unable to reach verdicts on the gang enhancement or the count of active participation in a criminal street gang.
3. The Second Trial
The prosecutor decided to retry Yanez solely on the gang enhancement allegation and voluntarily dismissed the count of active participation in a criminal street gang.
a. Expert Testimony on Nuestra Familia
i. Sergeant Lewis's Testimony
Sergeant Lewis testified as an expert in Nuestra Familia, Norteño, and Hispanic criminal street gangs. First, Sergeant Lewis testified about some of the earlier prosecutions of Nuestra Familia gang members and associates. He testified that in 2004 or 2005, there was a case where 14 individuals were indicted for various crimes including money laundering, extortion, and conspiracy to commit murder. And in 2007, 49 individuals were indicted for various offenses related to controlled substances, assaults with deadly weapons, smuggling drugs into county jails, terrorist threats, and other offenses. In 2009, there was another case that included various crimes, including sales of methamphetamine, home invasion robberies, and kidnappings to collect drug debts.
Sergeant Lewis also began to testify about another case from 2012, but defense counsel objected on the grounds of relevancy. The trial court had a discussion with counsel off the record and instructed the jury that the information about indictments in prior matters should be considered only to assess Lewis's qualifications.
Sergeant Lewis testified that the Nuestra Familia prison gang was formed in the mid-to-late 1960s, serving as a protection against Mexican Mafia, another prison gang. Northerners are associated with Nuestra Familia and southerners associate with Mexican Mafia. Nuestra Familia identifies with the color red and the number 14.
In Sergeant Lewis's opinion, Nuestra Familia is an ongoing criminal organization with 200 to 300 members and thousands of members that are considered Nuestra Raza, "bros," or "brothers." The gang has thousands of members that are identified as Northerners, street level associates, or gang members. The gang's primary activities include murder, sale of controlled substances, felony assaults, extortion, and felony possessions of firearms.
Nuestra Familia is a "blood-in organization" that bases its reputation on violence. Joining Nuestra Familia is a lifelong commitment, and leaving the organization means risking your life. Members who leave may get killed or get slashed on the face. A majority of Nuestra Familia members are serving life sentences in prison.
Nuestra Familia created another criminal organization, Nuestra Raza, to facilitate their criminal activities. Nuestra Raza was later "stripped" by Nuestra Familia. Nuestra Raza changed names and its members are now called Norteños, with everyone else below them considered a "Northerner."
Gang members who have issues with the organization are deemed to have bad standing. Once a member is in bad standing, they can end up on a bad news list. If someone is on the bad news list, they will be "removed off the floor" when they arrive in jail, which means that they will be physically assaulted or killed.
Sergeant Lewis opined that Nuestra Familia's primary criminal activities include murder, assault with deadly weapons with firearms, counterfeiting, forgery, fraud, kidnappings, extortions, prostitution, and robberies. The gang's primary source of money is the sale of illegal drugs, typically methamphetamine.
Sergeant Lewis testified about the consequences of leaving Nuestra Familia. A former Nuestra Familia member who left the organization, Brown Bob, was shot and killed. A high-ranking member of Nuestra Familia was subsequently convicted of Brown Bob's murder.
Sergeant Lewis described the structure of street regiments and distinguished between members and associates of Nuestra Familia. According to Lewis, an associate of Nuestra Familia has "an actual direct relationship and understanding of roles and responsibilities" for the gang. Sergeant Lewis defined gang associates as "those that are doing things for the benefit of that organization or the group. They aren't innocent bystanders that don't know what's going on. They know exactly what they're doing."
Sergeant Lewis described the structure of Nuestra Familia, which included generals who oversaw the prisons and street regiments. Nuestra Raza members are given a significant amount of education and learn things like where and how to stab, where vital organs are, and how to write kites. Northerners are required to follow rules and directives set forth by Nuestra Familia, but are generally not required to carry out removals or assaults on inmates that are deemed threats to the organization.
The prosecutor asked Sergeant Lewis if Nuestra Familia members would follow directives from their generals asking them to immediately start violently attacking African-American inmates with knives or weapons. Defense counsel objected to the question, which the trial court sustained on Evidence Code section 352 and foundational grounds.
Sergeant Lewis testified that the investigation into Guzman's street regiment began in 2007. Another Nuestra Familia member, John Mendoza, started to cooperate with law enforcement. At the time, officers were primarily targeting three individuals, Guzman, Campa, and Ramirez. In Lewis's opinion, Guzman was a Nuestra Familia member. Lewis investigated Guzman's regiment and another officer, Sergeant Livingston, investigated Campa's and Ramirez's regiments. As part of his investigation, Lewis listened to numerous jail phone calls between Guzman and his wife, Debbie. Over time, Lewis determined that Guzman was discussing illegal activities with Debbie.
Officers searched Guzman's house and explained to Debbie that they were "comfortable" that she could be prosecuted for her involvement with the conspiracy. Debbie later decided to cooperate with the police. She learned that Guzman's son was obtaining methamphetamine from a supplier named Bermudez.
Sergeant Lewis later became aware that Yanez was a potential suspect in his investigation. Debbie did not provide Sergeant Lewis with Yanez's phone number because Yanez always called her using a blocked number. There was, however, evidence that Guzman worked with Yanez. In a recorded phone call that Sergeant Lewis listened to, Guzman was told that Yanez did not have money to pay Guzman's defense attorney. In response, Guzman became upset and said, "Fuck [Yanez] in the neck."
In Sergeant Lewis's opinion, Guzman was affiliated with Nuestra Familia and belonged to the Varrio Horseshoe gang. Clark was a Nuestra Familia member and belonged to the West Side Guards and San Jose Grande gangs. Bermudez was a Northerner.
Sergeant Lewis opined that Yanez was an associate of Nuestra Familia. Lewis based his opinion on his investigation in this case, including the existence of multiple jail phone calls where Yanez spoke with Guzman and facilitated communication for Guzman, the fact that Yanez spoke about doing "homework" while incarcerated, and the fact that Yanez was able to reach out to Ramirez, a Nuestra Familia member. Lewis further opined that the conspiracy in this case was committed for the benefit of the gang. Lewis testified that the gang's primary goal is to make money, and one of the easiest ways to make money is through the sale of illegal drugs. Illegal drug sales also enhance the gang's reputation.
During cross-examination, Sergeant Lewis acknowledged that Yanez did not have gang tattoos and that there was no evidence that he owned any gang paraphernalia. Lewis further acknowledged that Guzman's brother, Yanez, and Bermudez were close friends. Lewis also testified that during a phone call with Guzman's wife, Debbie, Clark described Yanez as a "fucking nobody."
ii. Correctional Officer Valdez's Testimony
Correctional Officer Valdez testified as an expert in Nuestra Familia and prison gangs as they function inside prison institutions. Valdez attributed 95 percent of inmate violence to prison gangs. Valdez testified that Norteño inmates follow the directives sent by Nuestra Familia. Most of the high-ranking members of Nuestra Familia are currently in state prison. Communication from incarcerated gang members are passed to other inmates and to gang members who are on the streets. According to Valdez, the "bad news list" is a list of individuals that are targeted for assault by Nuestra Familia. Those who are on the bad news list may have cooperated with law enforcement in the past or may have committed an "undesirable offense."
iii. Sergeant Gillotte's Testimony
Santa Clara County Sheriff's Sergeant Dennis Gillotte testified as an expert in gang activity in jails. Gillotte testified that Nuestra Familia leaders sometimes order "removals" where an inmate's face or neck is slashed with a razor blade. He identified several bloody photographs showing slashed faces.
iv. Sergeant Livingston's Testimony
Sergeant Livingston testified as an expert in the sale and possession for sale of methamphetamine. First, Livingston described the process of "fronting" drugs. The drug dealer will give a certain quantity of methamphetamine to the seller and will expect repayment by a certain deadline. There is some risk to the drug dealer to front drugs, but the risk is lessened if the drug dealer is known for violence or if they are associated with a gang. If a drug dealer that is associated with a gang is "robbed," the gang will often send out gang members to seek retribution. Gang members also help drug dealers collect debts.
Drug dealers may sometimes allow other drug dealers to use their name to get drugs. This sometimes happens when the drug dealer is in custody and needs to generate income. The drug dealer will have an associate use his or her name to pick up drugs, and the person whose name is used will get a "kickback" in return. The person whose name is used is responsible to pay the drug source.
According to Sergeant Livingston, four pounds of methamphetamine is a large quantity of drugs, and drug dealers do not get "fronted" with four pounds of methamphetamine unless they have been in "the gang a while" and have built up trust with a drug source.
Sergeant Livingston described his participation in searches of several Nuestra Familia gang members and their associates, including John Mendoza and Rudy Miramontes. During the searches, officers found narcotics and firearms.
v. Predicate Offenses
The trial court admitted evidence of several predicate offenses committed by Nuestra Familia members. The first certified conviction was the conviction of Antonio Guillen and three other Nuestra Familia members for the 1997 murder of Brown Bob. The trial court also admitted certified copies of the 2005 indictments resulting from the investigation into John Mendoza's regiment that alleged multiple counts related to the sale and possession of drugs and weapons, and certified copies of James Cramer's 2008 conviction for conspiracy to sell drugs and participating in a gang.
Defense counsel objected to the admission of the certified convictions on Evidence Code section 352 grounds. The trial court overruled the objection and admitted evidence of the three certified convictions.
b. Sammy Ramirez's Testimony
Ramirez testified at Yanez's second trial. Ramirez again described his history with Nuestra Familia gang. According to Ramirez, he became involved with gangs when he was a teenager and was sent to prison after he committed a shooting in retaliation for an assault committed against his brother. He was ultimately convicted of voluntary manslaughter and assault with a deadly weapon and was sentenced to 19 years in prison.
Ramirez was recruited by Nuestra Familia members when he was in prison. The fact that he was in prison for shooting someone made him an attractive recruit because it showed that he did not shy away from violence. As part of his education with the gang, he learned that he had to commit acts of violence without asking questions. Ramirez used to slip off his waist chains and beat other inmates while waiting to go to court. Most of the inmate victims did not report the assaults out of fear. In 1995, Ramirez became a Nuestra Raza member. A Nuestra Raza member is considered a "foot soldier" for Nuestra Familia and is required to do tasks for the gang.
In 1997, Ramirez became a Nuestra Familia member. He knew that if he ever decided to walk away from the organization, he would be killed. Ramirez was a Nuestra Familia member until he decided to leave the organization and cooperate with law enforcement in 2009.
Ramirez testified as an expert in Nuestra Familia and Norteño gangs. According to Ramirez, Nuestra Familia's primary goal is to make money. Nuestra Familia has been in a state of constant rivalry with the Mexican Mafia prison gang. If a member of Nuestra Familia is in the same yard as a Mexican Mafia member, the Nuestra Familia member is required to immediately assault the rival gang member.
According to Ramirez, Antonio Guillen, a top-ranking member of Nuestra Familia, was incarcerated for a life sentence after he killed Brown Bob, a former Nuestra Familia member that turned his back on the gang. Brown Bob had changed one of his Nuestra Familia tattoos and had spoken at community events aimed at steering children and youth away from gangs. Following Brown Bob's murder, Guillen was promoted within the gang.
After Ramirez was released from prison, he contacted members of the Nuestra Familia organization. Marcos Abundiz, a Nuestra Familia member, invited Ramirez to meet some of the other Nuestra Familia members in the area. Abundiz told Ramirez that there were two other functioning Nuestra Familia members with regiments in the area, Campa and Paqui Amarro. Over time, Ramirez set up his own regiment, and he received methamphetamine from Campa.
Guzman was released from prison sometime in 2005. Shortly after his release, Ramirez met with Guzman, Abundiz, and Campa to discuss the gang's drug business. Campa had methamphetamine connections, and Guzman had PCP connections. Guzman was also involved with methamphetamine sales.
When Ramirez ran his street regiment, he used to get around five pounds of methamphetamine at a time from Campa. Between 2006 and 2008, the supply of methamphetamine available to the regiments fluctuated. It was common for the gang to have multiple drug sources, so if one connection did not have methamphetamine, the gang would still be able to get a supply. Drug dealers benefitted from being in a relationship with Nuestra Familia; they received money and security.
In 2007, Guzman and Abundiz were arrested on an unrelated case. Guzman had previously told Ramirez that one of his methamphetamine sources was a man named Jack Ochoa. After Guzman's arrest, the gang had trouble maintaining a methamphetamine supply. Ramirez contacted Clark, Guzman's second-in-command. Campa, Clark, and Ramirez spoke about contacting Ochoa to get a supply of drugs. Ochoa, however, refused to sell the gang drugs. Ramirez took that as a sign of disrespect and put out a hit on Ochoa with the intent to have him killed. Ochoa, however, was not killed.
Ramirez met Yanez in 2007, shortly after Yanez was released from jail. Yanez contacted Ramirez and said he wanted to discuss some money that had gone missing when Guzman was arrested. Ramirez thought Yanez would be a useful drug connection. During the meeting, Yanez asked about the missing money, which he believed may have been confiscated by the police when Guzman's house was raided. Yanez said that he had fronted four pounds of methamphetamine to Guzman worth about $40,000. Ramirez told Yanez that money had not been taken during the police raid of Guzman's house. He offered to show Yanez the police report.
A few days later, Ramirez spoke with Yanez again. Yanez told Ramirez that his drug connections had "shut him down." Ramirez told him he could get Yanez some "crumbs," or small amounts of drugs. Afterwards Ramirez gave Yanez a pound of drugs that he had gotten from Campa, which Yanez quickly sold. At the time, the gang was still struggling with its methamphetamine supply. Clark, Campa, and Ramirez received a total of five pounds a week, which they shared.
Ramirez knew that Clark was actively trying to collect Guzman's drug debt from the four pounds of methamphetamine fronted by Yanez—the same debt that Yanez was trying to collect. Ramirez had given Yanez permission to collect the debt, which made Clark upset. Ramirez told Clark that once Yanez was back on his feet, Yanez could help the gang.
About a month and a half to two months after Ramirez started supplying Yanez with methamphetamine, Yanez called Ramirez and told him that he could supply Ramirez with methamphetamine. Ramirez arranged for Yanez and Clark to deal with each other directly, and Yanez began supplying large quantities of methamphetamine. Ramirez received $200 per pound for every transaction between Campa and Yanez. Campa did not tell Ramirez how much methamphetamine Yanez supplied him with, but Campa told Ramirez, " 'I can't keep up with this dude.' "
In January 2008, Ramirez had another interaction with Yanez. Ramirez said that there was someone named "G" who was boasting and "running his mouth" by falsely representing that he was a Nuestra Raza member. Yanez brought G to a meeting and asked Ramirez not to do anything because G was "his boy." Ramirez granted Yanez's request because he was "really cool" with Yanez at the time.
During cross-examination, Ramirez admitted that he knew that the judge who sentenced him had sentenced other witnesses who cooperated with law enforcement. Ramirez also stated that during interviews, Sergeant Livingston had told him that there was "a judge who has been helping [the officers] and a judge who takes their word . . . in helping or to help sentence cooperators."
Ramirez admitted during cross-examination that during Yanez's first trial, he testified that Yanez did not supply his regiment with methamphetamine because he was unable to obtain any drugs. He recalled that he told police officers that Yanez was "nothing but a drug dealer."
c. Jail Phone Calls
Sergeant Lewis reviewed numerous jail phone calls between Yanez, Guzman, and other individuals, and some of the calls were played for the jury. In one phone call, Yanez referenced having to do "homework" and talked about responsibilities within the county jail. Sergeant Lewis opined that Yanez's comments were consistent with the educational process that gang members must go through as described by Ramirez in his earlier testimony.
In another phone call, Yanez spoke with Guzman's brother, Guzman, and his girlfriend, China. During the call, Yanez referred to two individuals as "homies," which Sergeant Livingston explained was a term used for someone with status within Nuestra Familia. Guzman asked Yanez where Nuestra Familia member Rudolfo (Rudy) Miramontes was and asked Yanez to "tell him [Miramontes]" something. Lewis opined that this meant that Guzman wanted Yanez to pass on information about a Nuestra Familia activity. Lewis also opined that Guzman told Yanez that John Mendoza, another Nuestra Familia member, was no good. Lewis testified that in his expert opinion, this type of information would have been given only to someone who was trusted within the Nuestra Familia organization or trusted by the individuals involved in the conversation.
Sergeant Lewis identified phone calls between Guzman and his wife, Debbie, where they discussed the four pounds of methamphetamine that was provided to Guzman by Bermudez. In the phone call, Guzman referred to Yanez as "his other half," and Debbie indicated that when Yanez was released from custody, he was going to come speak to her. Guzman told Debbie to tell Yanez that law enforcement took all of the money. He then asked Debbie if Yanez knew of any good lawyers. In another phone call, Guzman told Debbie in coded communication that he ran into Yanez while in custody and had told him that law enforcement took $30,000, and there was $8,000 waiting for him. The drug debt was discussed in another recorded phone call. In that call, Debbie told Guzman that Yanez had told her that Guzman needed to get in touch with Clark about the money owed for the four pounds of methamphetamine.
Sergeant Lewis also identified coded phone calls between Yanez and Bermudez, where they discussed the $40,000 drug debt and Guzman's failure to pay back the debt. In another call, Guzman told China that Yanez was upset with him about the money, which Guzman claimed was seized by law enforcement.
Multiple other phone calls were also introduced that purportedly demonstrated that Yanez communicated with Nuestra Familia members and used coded communication to discuss gang business.
4. The Verdict and the Motion for a New Trial
On August 12, 2014, the jury found the gang allegation attached to the conspiracy charge to be true. Subsequently, Yanez waived his right to a jury trial on his prior conviction allegations, which the trial court found to be all true.
On February 11, 2015, Yanez filed a motion for a new trial, arguing that the prosecutor did not disclose exculpatory evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Yanez also filed a motion to dismiss the charges because the prosecutor violated section 1054.5. After a hearing, the trial court denied both motions.
5. Sentencing
On April 3, 2015, the trial court declined to strike any of Yanez's prior strike convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court also declined to strike the punishment associated with Yanez's gang enhancement. (§ 186.22, subd. (g).) The trial court sentenced Yanez to an aggregate term of 21 years in state prison, which included a high term of four years for the conspiracy conviction, doubled to eight years under section 667, subdivision (c), an additional four years for the gang enhancement under section 186.22, subdivision (b)(1)(A), five years for the serious felony enhancement under section 667, subdivision (a), three years for the prior controlled substance conviction enhancement under Health and Safety Code section 11370.2, subdivision (c), and one year for the prior prison term enhancement under section 667.5, subdivision (b).
DISCUSSION1. Excessive and Unduly Prejudicial Gang Evidence
Yanez argues that the trial court erred when it admitted excessive, cumulative gang evidence, depriving him of a fair trial. Alternatively, he argues that defense counsel rendered ineffective assistance to the extent his appellate arguments are forfeited by her failure to object below.
a. Background and Defense Counsel's Objections Below
Before Yanez's first trial, defense counsel moved to limit or exclude gang evidence and requested that the trial court hold a hearing pursuant to Evidence Code section 402 to determine which predicate offenses would be admitted.
The trial court held a hearing on the matter. During the hearing, defense counsel asked to limit Ramirez's testimony as cumulative, given that the prosecution intended to have law enforcement experts testify about the gang. Ultimately, the trial court decided not to limit Ramirez's testimony. The trial court then limited the prosecution to five predicate offenses. The trial court, however, clarified that it was distinguishing between expert witnesses and percipient witnesses, and expert witnesses could "give an opinion based on anything that any expert may reasonably rely on." The trial court further stated that it would listen closely to percipient witnesses, and the trial court would interpose its own objection if cumulative evidence was presented.
The trial court did not identify specific predicate offenses and told the prosecutor, "Just pick whatever five [predicate offenses] you want."
Before Yanez's second trial, defense counsel again moved to limit or exclude gang evidence and requested that the trial court hold a hearing pursuant to Evidence Code section 402 to determine which predicate offenses would be admitted.
The trial court held a hearing on the matter and tentatively admitted some of the prosecutor's proffered predicate offenses, including: a conspiracy involving John Mendoza's regiment in 2004 and 2005, a conspiracy to sell methamphetamine involving James Cramer's regiment in 2006 and 2007, an assault with a deadly weapon by Rudolfo Miramontes, an extortion committed by Rudolfo Miramontes, the murder of Brown Bob, and the attempted murder of Carlos Mejia by Guzman and Victor Esquibel. The trial court clarified that its tentative decision was based on its evaluation of whether the predicate offenses were more probative than prejudicial and expressly reserved ruling on whether the predicate offenses would be unduly cumulative or constitute an undue consumption of time.
During Yanez's second trial, Sergeant Lewis testified about the origins of the investigation into the current conspiracy involving Yanez. At one point, he began to describe a 2012 conspiracy involving another street regiment. Defense counsel objected, and the trial court gave the jury the following limiting instruction: "In his opinion, a gang expert in this case, Sgt. Lewis, may testify that he has considered information received from other officers, other experts, police reports, statements made by gang members, and other sources, documenting out-of-court statements. [¶] In formulating his opinion an expert may rely upon out-of-court statements. These documents or statements are only to be considered by you in evaluating the basis of the expert's opinion, and are not to be considered for the truth of the matter asserted. So they come in only, not as substantively [sic], but as the basis of Sgt. Lewis's opinion." Lewis did not continue to testify about the 2012 conspiracy.
Later, Sergeant Livingston testified about several searches that he conducted on gang members. Defense counsel objected to his testimony on relevancy, cumulativeness, on Evidence Code section 352 grounds. The trial court reserved ruling on the issue and informed defense counsel that she could object when the evidence was elicited at trial. No objection was made after Livingston testified about the searches.
After the prosecutor argued that the searches were admissible, the trial court commented to the prosecutor that it was having difficulty "connecting all of this [evidence] up."
Finally, the trial court admitted evidence of various predicate offenses committed by Nuestra Familia members. Defense counsel objected to the admission of the certified convictions on Evidence Code section 352 grounds. The trial court overruled the objection and admitted evidence of three certified convictions, the certified indictment and convictions for Antonio Guillen for the murder of Brown Bob, certified indictments and convictions from the investigation into John Mendoza's regiment, and the certified indictment and convictions for James Cramer from the investigation into his regiment.
b. Summary of Yanez's Challenges to the Gang Evidence
We acknowledge that some of the evidence challenged by Yanez was elicited by defense counsel during cross-examination. For example, although some of Atwell's history of violence came up during his direct examination during Yanez's first trial, defense counsel also cross-examined Atwell about his history of violence. Nonetheless, the vast majority of the evidence cited by Yanez was elicited by the prosecution during direct examination of the various witnesses.
On appeal, Yanez challenges much of the gang evidence that was introduced at his first and second trials as excessive and cumulative.
Yanez argues that the following prejudicial evidence was introduced at his first trial: (1) Sergeant Lewis's testimony about Nuestra Familia gang members slashing and killing people on the "bad news list" and his testimony about the gang's primary activities, which included homicides, (2) Sergeant Livingston's testimony about searches of various Nuestra Familia members and associates and his testimony about a gang-related "slashing" that occurred after a gang member testified before a grand jury, (3) Ramirez's description of his history of gang violence, including how he beat other inmates with waist chains and committed jail assaults, (4) Clark's testimony about his history of gang violence, which included assaults, (5) Atwell's testimony about his history of gang violence, (6) Correctional Officer Valdez's testimony attributing much of the violence in prison to gang members, and (7) certified copies of convictions of Nuestra Familia gang members that were admitted as exhibits.
Next, Yanez argues that the following prejudicial evidence was introduced at his second trial: (1) Sergeant Lewis's testimony about Nuestra Familia's history of violence and his testimony about previous investigations into Nuestra Familia and the current investigation, (2) Lewis's testimony that Nuestra Familia requires its members to commit violence to become part of the organization, and his testimony about removals and violence in prison perpetrated by gang members, (3) Lewis's testimony that the primary activities of Nuestra Familia include murder and his description of the murder of former Nuestra Familia member Brown Bob, (4) Correctional Officer Valdez's testimony attributing violence in prison to gang members, (5) Sergeant Livingston's testimony about searches and investigations of Nuestra Familia members, (6) Sergeant Gillotte's testimony about gang-related violence in jail, (7) Ramirez's testimony about his history of gang violence, and (8) certified copies of convictions of Nuestra Familia members that were admitted as exhibits.
c. Forfeiture and Ineffective Assistance of Counsel
Yanez raised some of the evidentiary objections that he now raises on appeal in the trial court. For example, defense counsel objected during Yanez's second trial to the introduction of certified convictions under Evidence Code section 352. And before both trials, defense counsel sought to limit the number of predicate offenses and criminal offenses offered by the prosecution. However, most of Yanez's arguments have not been preserved for appeal because he did not raise timely, specific objections to the challenged evidence below. (Evid. Code, § 353.)
Evidence Code section 353, subdivision (a) specifies that a verdict or finding will not be set aside by reason of an erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." The California Supreme court has " ' "consistently held that the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable." ' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)
Here, defense counsel generally did not object when the prosecutor elicited evidence about Nuestra Familia's violent activities from law enforcement experts such as Sergeant Livingston or Sergeant Lewis, including evidence of Nuestra Familia members' commission of various jail assaults and the gang's reputation for violence within the community. Nor did she object when Ramirez and other prosecution witnesses testified about their violent history with the gang, or when Sergeant Gillotte and Correctional Officer Valdez testified about Nuestra Familia's violent activities in jail and prison.
Furthermore, the trial court expressly reserved ruling on the admissibility of certain evidence. The trial court stated that it was going to reserve ruling on the admissibility of Sergeant Livingston's testimony during the second trial about the searches that he conducted on Nuestra Familia members, and further stated that it was going to reserve ruling on whether the predicate offenses introduced at the second trial were unduly cumulative or constituted an undue consumption of time. Defense counsel chose not to press the trial court for rulings after the evidence was elicited. (People v. Holloway (2004) 33 Cal.4th 96, 133 [tentative pretrial ruling will not preserve issue for appeal if appellant could have, but did not, renew objection and press for ruling].)
However, we reach the merits of Yanez's claims because he alternatively argues that defense counsel was prejudicially ineffective to the extent she failed to object to the challenged gang evidence. "Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish that counsel's performance was deficient and that there was prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that counsel's representation was objectively unreasonable "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
d. Governing Principles and Admissibility of Gang Evidence
"Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative." (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) "California courts have long recognized the potentially prejudicial effect of gang membership." (People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran).) Under Evidence Code section 352, a trial court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." " 'The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) " 'In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction.' " (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
Generally, the trial court's ruling to admit or exclude expert testimony under Evidence Code section 352 is reviewed for an abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Erroneous admission of evidence that is unduly prejudicial under Evidence Code section 352 requires reversal of the judgment only if it is reasonably probable that the defendant would have received a more favorable verdict absent the error. (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida); People v. Watson (1956) 46 Cal.2d 818.)
e. Application to Yanez's Case
Yanez's claims of error must be rejected because the trial court did not abuse its discretion in admitting some of the gang evidence, and, even if we assume that some of the challenged gang evidence should have been excluded, Yanez cannot demonstrate that he was prejudiced.
During both of his trials, Yanez faced a gang enhancement charge, and during the first trial, he also faced a count of active participation in a gang. Thus, evidence concerning the Nuestra Familia gang was relevant to prove the gang's existence, including its primary activities, defining characteristics, and its pattern of criminal activity in both trials. (Albarran, supra, 149 Cal.App.4th 214 [evidence of gang membership and activity admissible if relevant to material issue in case].)
The Attorney General argues that Yanez was not prejudiced by the gang evidence introduced at his first trial because the jury did not ultimately convict him of participation in a criminal street gang and did not find the gang enhancement to be true. We disagree with the Attorney General that a complete lack of prejudice can be inferred from the fact that Yanez was not ultimately convicted of the gang-related charges in his first trial. Yanez's position is that the excessive gang evidence in his first trial was prejudicial because it inflamed the jury against him, resulting in the jury convicting him of conspiracy to sell methamphetamine. (See People v. Branch, supra, 91 Cal.App.4th at p. 286.) The jury's decision not to convict Yanez of the gang-related charges in his first trial does not necessarily foreclose the possibility that he was prejudiced by the erroneous admission of excessive and inflammatory gang evidence.
Yanez argues that the trial court admitted far more evidence of prior crimes than necessary and permitted witnesses to repeatedly reference Nuestra Familia's violent history. Yanez maintains that the drug conspiracy charge in his case was nonviolent, and the prosecutor could have established the existence of a criminal street gang without introducing inflammatory evidence.
We are troubled by the amount of excessive, cumulative gang evidence that was introduced at Yanez's trials, and we agree that some of the evidence risked the potential for prejudice. In both trials, Brown Bob's murder was referenced multiple times as evidence of Nuestra Familia's predicate offenses and of Nuestra Familia's propensity to kill former members who leave the gang. And, as summarized in our recitation of the facts, gang experts and witnesses in both trials extensively discussed violent Nuestra Familia activities, such as removals, jail assaults, and homicides, even though there is no evidence that Yanez was involved in gang violence. As the California Supreme Court has recognized, gang evidence creates the risk the jury will improperly infer a defendant's guilt based on his or her criminal disposition and "should be carefully scrutinized by trial courts." (People v. Carter (2003) 30 Cal.4th 1166, 1194.)
Yet under either an ineffective assistance of counsel analysis or an evidentiary error analysis, reversal is required only if Yanez can demonstrate prejudice. (See Strickland, supra, 466 U.S. at p. 694 [prejudice is demonstrated for ineffective assistance of counsel claims if it is reasonably probable that absent counsel's errors, result of the proceeding would have been different]; Partida, supra, 37 Cal.4th at p. 439 ["state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error"].) Aside from the allegedly inflammatory gang evidence, there was overwhelming evidence of Yanez's involvement in the conspiracy to sell methamphetamine in his first trial and overwhelming evidence that he committed the conspiracy for the benefit of Nuestra Familia in his second trial.
First, the evidence that Yanez conspired to sell methamphetamine was strong. At Yanez's first trial, Ramirez testified extensively about Yanez's involvement in selling methamphetamine. Ramirez testified that Guzman previously told him that Yanez knew how to cook, clean, and cut methamphetamine. Ramirez also testified that after Guzman's arrest, Yanez contacted him about the $40,000 drug debt owed by Guzman and told Ramirez that he had "fronted" Guzman four pounds of methamphetamine. Ramirez said that he gave Yanez methamphetamine to sell, and Yanez sold the methamphetamine so quickly that he "couldn't keep up with [Yanez]." Ramirez testified that Campa said that Yanez was so efficient with his drug sales that he sometimes lost track of how much money he owed Ramirez under their financial arrangement.
Clark also testified at Yanez's first trial and provided evidence of Yanez's role in the conspiracy to sell methamphetamine. Clark testified that he knew that he and Yanez were trying to collect the same drug debt, and Clark corroborated Ramirez's testimony that Yanez had fronted drugs to Guzman, testifying that he believed the four pounds of methamphetamine Yanez had supplied to Guzman was "garbage." Also consistent with Ramirez's testimony, Clark said that he spoke with Ramirez and Campa, and they told him that they were supplying Yanez with methamphetamine in the hopes that Yanez would eventually "plug back in with his big connections" and be able to help the gang in the future.
At Yanez's first trial, the prosecution also introduced audio recordings of multiple jail phone calls that were introduced into evidence by the prosecution where Yanez is heard using coded communication to discuss drug dealing.
Likewise, there was overwhelming evidence that Yanez conspired to sell methamphetamine either for the gang's benefit or at its direction. During Yanez's second trial, Ramirez, a Nuestra Familia member, testified about how Yanez fronted drugs to Guzman and about how he provided drugs to Yanez to sell. Multiple jail phone calls were admitted into evidence. In one phone call, Yanez refers to having to do "homework" while in county jail, which Sergeant Lewis described was the educational process that gang members must go through while incarcerated. Yanez is also heard in another phone call refer to two individuals as "homies," which Sergeant Livingston opined meant individuals who had "status within [the Nuestra Familia] organization." The prosecutor introduced phone calls where Guzman asked Yanez to pass on information for Nuestra Familia, a task that Sergeant Lewis opined would be entrusted only to certain individuals. Other phone calls purportedly demonstrated that Yanez communicated with Nuestra Familia members and used coded communication to discuss gang business. Based on this evidence, Sergeant Lewis opined that Yanez was an associate of the Nuestra Familia gang. Lewis further testified that the conspiracy to sell methamphetamine was committed for the gang's benefit because the gang's primary goal is to make money, which can be readily achieved through the sale of illegal drugs.
Given the strong evidence of Yanez's guilt, Yanez does not meet his burden to demonstrate that any alleged evidentiary error or ineffective assistance of counsel claim requires reversal of his conviction. We do not believe there is a reasonable probability that he would have received a more favorable verdict had the challenged evidence been excluded or had his counsel made appropriate, timely objections below. (Strickland, supra, 466 U.S. at p. 694; Partida, supra, 37 Cal.4th 428.)
We also note that the jury could have convicted Yanez of conspiracy to sell methamphetamine without finding that he did so for Nuestra Familia's benefit or that he actively participated in the Nuestra Familia gang. In fact, that is exactly what the jury did at Yanez's first trial; the jury convicted Yanez of the conspiracy charge but did not find him guilty of the active gang participation charge or the gang enhancement.
Finally, Yanez argues that admission of the excessive gang evidence violated his right to due process. In Albarran, supra, 149 Cal.App.4th 214, the Second Appellate District concluded that its case was "one of those rare and unusual occasions where the admission of evidence . . . violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232.) The Albarran court determined that the inflammatory gang evidence served no legitimate purpose and was not relevant to the charged offenses. (Id. at pp. 227-228.) Unlike Albarran, the gang evidence introduced in Yanez's case was not wholly irrelevant to the charged offenses. Therefore, there was no violation of Yanez's due process rights.
2. Exclusion of Evidence Impeaching Sammy Ramirez and Ruel Atwell During Yanez's First Trial
Yanez argues that the trial court erroneously excluded evidence of a jail fight involving Ramirez and Atwell and evidence of a 2013 battery involving Atwell. Yanez insists that admitting evidence of these two events would have impeached Ramirez's and Atwell's credibility when they testified at his first trial. He argues that the trial court's decision to exclude the evidence deprived him of his federal constitutional rights to present a defense and to cross-examine witnesses.
a. Background
i. Evidence of January 28, 2011 Jail Fight Excluded at First Trial
Before Yanez's first trial, the prosecutor filed a motion in limine seeking to exclude evidence of a January 28, 2011 jail fight that involved Ramirez and Atwell. The prosecutor's motion described the incident as follows: Correctional officers responded to a fight in a jail dormitory that housed Ramirez and Atwell and found two injured inmates, David Jacobs and Paul Castillo. The responding officers smelled the odor of "pruno," a type of alcohol, on the inmates and believed that most of the inmates were intoxicated. The inmates did not cooperate with the investigation of the fight, and no other specific details were provided.
Defense counsel filed a supplemental motion in limine in response to the prosecutor's motion. According to defense counsel, the fight broke out in a cell that housed gang dropouts and cooperating witnesses, and Castillo, one of the victims, said that the incident occurred while the inmates were drinking "pruno" and discussing their plea bargains. John Mendoza, one of the inmates in the dormitory, told the investigating officer that the fight broke out after Castillo confronted Ramirez about providing law enforcement information about his brother. The investigating officer concluded that Ramirez and another inmate "committed assault under Penal Code section 243(d) [Felony Battery with Serious Injury]." Ramirez did not cooperate with officers and told them that he was blind without his glasses. Defense counsel attached the investigating officer's report as an exhibit to his motion. According to the investigating officer's report, the officer spoke with John Mendoza, and Mendoza "slipped up" and said that "Castillo got into 'Sammy's' face and started it all." The only "Sammy" in the dorm was Ramirez; thus, officers inferred that the fight originated between Castillo and Ramirez.
Based on these facts, defense counsel argued that the incident was admissible against Ramirez as an act of moral turpitude because he assaulted another inmate and was later untruthful with law enforcement when he said that he did not know what happened because he was blind without his glasses. Furthermore, the incident demonstrated that several of the witnesses at Yanez's trial were housed together, socialized together, and discussed their statements with each other.
After a hearing, the trial court granted the prosecutor's motion to suppress the evidence, concluding that the probative value of the evidence was "minimal at best." The trial court reasoned, "Mr. Ramirez's and Mr. Atwell's credibility is already seriously at issue because they're criminals who have become, as the popular word is, snitches so whether or not they got involved in a brawl as well as turning state's evidence is not going to add much to the jury's assessment of their credibility." The trial court described the investigating officer's findings as a "simple conclusion" made by someone with "no personal knowledge of the incident." The trial court further determined that the incident did not involve a crime of moral turpitude.
Before Yanez's second trial, the prosecutor again moved to exclude evidence of the same jail fight which the trial court granted. Yanez does not challenge this ruling on appeal.
ii. Ruel Atwell's 2013 Arrest for Battery of Another Inmate
In 2013, shortly before the hearing on the motions in limine in Yanez's first trial, Atwell was arrested for committing a battery with serious bodily injury (§ 243, subd. (d)) after he allegedly assaulted another inmate. Defense counsel argued that this evidence should be admissible to impeach Atwell because it was a crime of moral turpitude and was relevant to Atwell's credibility.
At the hearing on the matter, the trial court asked the prosecutor if there were other incidents that could be used to impeach Atwell's credibility. The prosecutor responded, "What I can indicate to the Court is that Mr. Atwell is currently pending sentencing on a kidnapping, a 211, a 245. He was facing life charges before he began cooperating against his co-defendants as well as cooperating with other investigations. He has numerous moral-turpitude crimes. I can bring those back when we come back, including numerous violent acts." Subsequently, the trial court concluded that the probative value of this evidence was minimal and would require an undue consumption of time.
b. Governing Principles and Standard of Review
"Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352." (People v. Harris (2005) 37 Cal.4th 310, 337.) As we have previously described, a trial court may exclude evidence under Evidence Code section 352 if its probative value is substantially outweighed by the probability that its admission will require an undue consumption of time or create a substantial danger of prejudice.
Acts can be admitted as impeachment evidence even if the alleged misconduct did not result in a criminal conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7 (Wheeler).) However, "additional considerations may apply when evidence other than felony convictions is offered for impeachment." (Id. at p. 296.) "Problems of proof, unfair surprise, and moral turpitude are minimized when felony convictions are the sole proffered basis for impeachment." (Id. at p. 297, fn. 7.) "A felony conviction reliably establishes that the witness committed corresponding criminal acts; a party or witness is unlikely to be surprised by use of felony convictions for impeachment; and the court must determine moral turpitude solely from the 'least adjudicated elements' of the conviction." (Ibid.) However, when acts of misconduct that do not result in criminal convictions are considered, "circumstances, fairness, efficiency, and moral turpitude become more complicated issues," and "[c]ourts may take these facts into account when deciding under Evidence Code section 352 whether to admit evidence other than felony convictions for impeachment." (Ibid.)
"The trial court has broad discretion in determining the admissibility of evidence." (People v. Bedolla (2018) 28 Cal.App.5th 535, 555.) "A trial court's ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld 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. Ledesma (2006) 39 Cal.4th 641, 705.) A trial court's erroneous evidentiary ruling is harmless if the record demonstrates that it is not reasonable probable that the defendant would have received a more favorable outcome in the absence of the error. (Bedolla, supra, at p. 555.)
Additionally, "[a]lthough the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' " (People v. Quartermain (1997) 16 Cal.4th 600, 623 (Quartermain).) Thus, "notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (Id. at pp. 623-624.) And in general, "[a]pplication of the ordinary rules of evidence, such as Evidence Code section 352, generally does not deprive the defendant of the opportunity to present a defense." (People v. Snow (2003) 30 Cal.4th 43, 90 (Snow).)
c. The Exclusion of the January 2011 Jail Fight
Assuming without deciding that the January 2011 jail fight and Ramirez's alleged attempt to cover up his involvement in the fight constituted acts of moral turpitude, the trial court did not abuse its discretion when it excluded the evidence under Evidence Code section 352.
First, no criminal convictions resulted from the jail fight, and additional considerations of fairness and efficiency must be taken into account when deciding whether such evidence is admissible under Evidence Code section 352. (Wheeler, supra, 4 Cal.4th at p. 297, fn. 7.) The fact that the jail fight did not result in a criminal conviction makes the alleged misconduct more speculative and less relevant to credibility. "In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony." (Id. at p. 296.)
Second, the underlying facts of what transpired remained in dispute. Yanez argues that it is improper to exclude evidence based on the assumption that inmate witnesses may be uncooperative or that law enforcement investigators may be less credible because they did not personally witness what happened. He insists that the credibility of these witnesses should be left for the jury to assess. But whether admission of such evidence will necessitate undue consumption of time is properly considered under the Evidence Code section 352 analysis. Conclusively determining the facts of the incident—and Ramirez's involvement—would likely require calling witnesses. The amount of time this would take would not be insignificant.
Moreover, the trial court reasonably determined that the probative value of the evidence was minimal at best. Yanez argues that the jail fight evidence was particularly probative because it demonstrated that Ramirez continued to participate in gang crimes even after he allegedly left the gang. Ramirez's credibility, however, was already impeached by other evidence in the record. During the first trial, Ramirez himself testified at length about his criminal history and the benefits he received in exchange for his cooperation with the prosecution. Ramirez described that as part of his plea agreement, the district attorney's office agreed to dismiss the gang enhancement that was alleged in connection with Ramirez's extortion charge, and Ramirez was required to plead guilty to the remaining charges and counts.
We reach the same conclusion with respect to Atwell. Atwell recounted his extensive criminal history when he testified at Yanez's first trial. He acknowledged that he received benefits as part of his plea agreement with the prosecution. Moreover, he admitted that when he was incarcerated, he spoke with some of the other cooperating witnesses, including Ramirez, when they were housed together. Atwell testified that he and the other inmates talked about what happened during the grand jury proceedings and during the trial. Thus, evidence that the cooperating witnesses were housed together and had the opportunity to speak to each other about Yanez's case was already before the jury.
Based on the record before us, we find that the trial court's determination that the evidence would be more prejudicial than probative under Evidence Code section 352 and would consume an undue amount of time was not arbitrary, capricious, or patently absurd. (People v. Ledesma, supra, 39 Cal.4th at p. 705.) And as a result, Yanez does not demonstrate that the trial court abused its discretion. Furthermore, given the marginally probative nature of this evidence, Yanez was not deprived of his constitutional rights to confront and cross-examine witnesses or to present a defense. (Quartermain, supra, 16 Cal.4th at pp. 623-624; Snow, supra, 30 Cal.4th at p. 90.)
d. The Exclusion of Atwell's Battery of Another Inmate
For the same reasons outlined above, even if we assume that Atwell's battery of another inmate is properly considered an act of moral turpitude, we find that the trial court did not abuse its discretion in excluding it.
Like the excluded evidence of the 2011 jail fight, Atwell's battery did not result in a felony conviction. Thus, the likelihood that presenting this evidence would require an undue consumption of time was elevated. And, like his involvement in the 2011 jail fight, evidence that Atwell was involved in the 2013 battery was of limited probative value. There was an abundance of evidence that cast doubt on Atwell's credibility. The jury was presented with evidence that Atwell received a benefit from the prosecution for testifying at Yanez's trial, and there was evidence that he previously committed numerous criminal offenses.
We do not believe that the trial court's decision that admitting this evidence would be more prejudicial than probative was arbitrary, capricious, or patently absurd. (People v. Ledesma, supra, 39 Cal.4th at p. 705.) And for these same reasons, Yanez was not deprived of his constitutional rights to confront and cross-examine witnesses or to present a defense. (Quartermain, supra, 16 Cal.4th at pp. 623-624; Snow, supra, 30 Cal.4th at p. 90.)
3. Brady Violation
Next, Yanez argues that the prosecutor violated Brady, supra, 373 U.S. 83 when he failed to timely disclose a supplemental investigation into Atwell's 2013 battery and several recorded statements made by Ramirez that indicated that he knew he would be sentenced by a particular judge.
a. Background
On February 11, 2015, after the jury returned its verdict in Yanez's second trial, Yanez filed a motion for a new trial on the ground that the prosecutor did not disclose exculpatory evidence in violation of Brady, supra, 373 U.S. 83. According to defense counsel's motion, a supplemental investigation had been conducted into Atwell's 2013 battery, which indicated that Atwell and Ramirez were members of the "Northern Riders gang." According to the report, Michael Ochoa, the victim, believed he was attacked because he stole methamphetamine from a "Northerner gang member," and he thought that Atwell and the two other men who were involved in the incident were members of the "Northern Riders." Despite Ochoa's statements, the investigating officer concluded, "There is no evidence at this time to suggest that the assault occurred for any reason other than a personal conflict." This information was not disclosed to the defense until April 28, 2014, over six months after Yanez's first jury trial concluded.
The prosecutor moved to exclude this supplemental investigation before Yanez's second trial, which the trial court granted. Yanez does not challenge this ruling on appeal.
Defense counsel also argued that previously undisclosed recorded statements made by Ramirez demonstrated that he committed perjury. According to defense counsel, Ramirez testified at his first trial that he did not know which judge was going to sentence him and that he did not know what his sentence would be. However, in a recorded phone call with his wife, Ramirez said that the district attorney had spoken with a particular judge, and Ramirez believed that the judge would not be " 'coming up' " until after Yanez's trial.
The trial court held a hearing on defense counsel's new trial motion. During the hearing, the trial court rejected defense counsel's characterization that Atwell claimed that he had left the gang life and had changed his life. The trial court further noted that aside from Michael Ochoa's unsworn statement, there was "little evidence" that Atwell was a "Northern Rider" gang member. Moreover, the trial court concluded that "[t]here was tons of really appalling information . . . from the witnesses who turned state's evidence against [Yanez] which this alleged membership in an insignificant group called Northern Riders absolutely pales in comparison."
Finally, the trial court disagreed with defense counsel's characterization that Ramirez's previously undisclosed phone call established that he thought that a specific judge would sentence him. The trial court further concluded that even if Ramirez expressed a belief that a specific judge would sentence him, "[Ramirez] had no control over his sentencing. That was made clear at the trial that nobody knew who would sentence him."
During cross-examination, Ramirez testified that he did not know which judge would sentence him, but he was told either it would be " 'the sentencing judge or the indictment or one of the actual jury trial cases.' " Ramirez was also asked if, prior to Judge Brock's retirement, he was told that he would be sentenced by Judge Brock. Ramirez answered, " 'Yes.' "
The trial court denied the new trial motion, concluding: "Basically, what the defense invited me to do is look at equivocal conduct by a fight or where someone is housed or passing along a message and then attribute to it very specific motives that it must have been because of this Northern Rider membership solidarity. [¶] And there's nothing to prove that Mr. Atwell or Mr. Ramirez were Northern Riders. And even if they were, it's insignificant in the extreme compared to the impeachment material that they offered for themselves at great length when they took the trial. I do not think that it undermines confidence in the guilty verdict."
b. Governing Legal Principles and Standard of Review
In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) " 'For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies.' " (People v. Verdugo (2010) 50 Cal.4th 263, 279.)
In Kyles v. Whitley (1995) 514 U.S. 419 (Kyles), the United States Supreme Court emphasized four aspects of materiality relevant to a claim of Brady error. First, "a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal . . . ." (Id. at p. 434.) "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." (Ibid.)
Second, materiality "is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." (Kyles, supra, 514 U.S. at pp. 434-435.)
Third, "once a reviewing court . . . has found constitutional error there is no need for further harmless-error review." (Kyles, supra, 514 U.S. at p. 435.) A finding that there is " 'a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,' [citations], necessarily entails the conclusion that the suppression must have had 'substantial and injurious effect or influence in determining the jury's verdict.' " (Ibid.)
Fourth, suppressed evidence must be considered collectively, and the cumulative effect of all suppressed evidence must be considered together when evaluating its materiality. (Kyles, supra, 514 U.S. at pp. 436-437.)
On appeal, "[w]e utilize independent review in deciding whether Brady error occurred." (People v. Uribe (2008) 162 Cal.App.4th 1457, 1473.)
c. Application to Yanez's Case
Yanez argues that the supplemental investigation into Atwell's 2013 battery and Ramirez's recorded statements were material because they could have been used as impeachment evidence during his first trial. Yanez argues that contrary to the trial court's assertion at trial, Atwell claimed that he had left the gang life and had changed his life. Yanez further argues that the trial court erroneously determined that Ramirez's recorded statements did not reflect that he understood that he would be sentenced by Judge Brock.
Although we agree with Yanez that the supplemental investigation into Atwell's battery may have been marginally probative, we disagree with his assessment of the evidence's materiality. The investigative report from the 2013 battery contained Michael Ochoa's statements that he believed Atwell was a Northern Rider gang member, which could have impeached Atwell's credibility had it been introduced during the first trial. Michael Ochoa's credibility, however, was tarnished by the fact that he gave multiple accounts of what precipitated the attack. That Atwell was a Northern Rider was the fourth reason for his assault that he relayed to investigators.
First, Michael Ochoa said that Atwell punched him because Atwell thought he stole a purse from Atwell's sister. Ochoa then said that he believed he was assaulted because he stole methamphetamine from an active Northern gang member. Subsequently, he claimed that he was assaulted because his older brother testified against murder suspects, causing both him and his brother to drop out of Northern gangs for fear of retaliation. In Ochoa's fourth version of events, he insisted that he was assaulted by Northern Riders members.
Furthermore, as we discussed in the preceding section of our opinion, other evidence was introduced at trial that cast doubt on Atwell's credibility. Atwell testified about his former gang membership and the crimes that he committed when he was incarcerated and when he was out of custody, which included assaults and kidnapping. Atwell also acknowledged that he received benefits from cooperating with the police, and some of his charges were later dismissed as part of his plea bargain. The fact that Atwell may not have been telling the truth when he testified that he decided to cooperate with law enforcement because he was tired of the gang life was not particularly probative. The jury was already presented with evidence that Atwell was motivated to cooperate with law enforcement because he received benefits from his plea bargain, not because of a supposed personal transformation.
Likewise, the fact that Ramirez's recorded statements could have been used to impeach his credibility did not render the evidence material. Ramirez already testified that he received benefits in exchange for cooperating with the police. He also testified about his extensive criminal history, which included convictions for voluntary manslaughter and assault with a deadly weapon.
After collectively considering the allegedly suppressed evidence, we do not find that the evidence was material under Brady. Given that extensive impeachment evidence was introduced against both Atwell and Ramirez, we believe that Yanez still received a fair trial that resulted in a "verdict worthy of confidence" even in the absence of the additional evidence. (Kyles, supra, 514 U.S. at p. 434.)
4. Sergeant Lewis's Testimony Defining the Term "Associate"
Yanez argues that defense counsel rendered ineffective assistance when she failed to object to Sergeant Lewis's testimony defining an "associate" of the Nuestra Familia gang during his second trial. Yanez claims that Lewis's testimony amounted to an improper opinion on his guilt.
a. Background
Before Yanez's second trial, defense counsel argued that the prosecution's gang experts should not be permitted to testify that Yanez "intended to associate or be a member of the gang." Defense counsel argued that she believed that Yanez's intent was an issue that should be reserved for the jury. The trial court granted the request to exclude such expert testimony.
Defense counsel subsequently moved to exclude expert testimony defining the term "associate." The prosecutor objected, arguing that he believed that defining the term "associate" was "perfectly within the purview of an expert opinion." After observing that section 186.22 uses the term "association" with a criminal street gang, the trial court determined that testimony defining the term "associate" was appropriate expert testimony.
During Yanez's second trial, Sergeant Lewis testified and described associates as follows: "[A]ssociates are those that are doing things for the benefit of that organization or the group. They aren't innocent bystanders that don't know what's going on. They know exactly what they're doing. It could be somebody that is holding guns for the organization. They know outright what they're holding guns for. They're not gonna sit there and hold 5, 10, 15 guns without doing it. [¶] It can be guys supplying drugs for the organization. They know what they're doing and they know how to participate. It can be people getting drugs for the organization. It can be people doing mail drops. [¶] . . . [¶] Those people know what they're doing. There's no doubt that they know what they're doing. You can't be involved in the organization, or be involved, or asked to do things without knowing what you're getting involved in." Later, Lewis opined that Yanez was an associate of the Nuestra Familia organization. Defense counsel made no objection when Lewis defined the term "associate" or when he opined that Yanez was a Nuestra Familia associate.
b. Application to Yanez's Case
Yanez argues that defense counsel rendered ineffective assistance when she failed to object to Sergeant Lewis's testimony that gang associates know that their activities benefit the gang. (Strickland, supra, 466 U.S. at p. 697.) Yanez argues that Lewis's testimony purported to establish Yanez's knowledge or mental state and impermissibly rendered an opinion on his guilt, citing People v. Killebrew (2002) 103 Cal.App.4th 644.
Even assuming that Sergeant Lewis's testimony was improper, Yanez cannot demonstrate that he was prejudiced under the Strickland standard. (Strickland, supra, 466 U.S. at p. 697 ["if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed"].) As we have explained, under Strickland, a defendant must show prejudice by demonstrating that "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
During Yanez's second trial, Sergeant Lewis was asked by the prosecutor, "[I]n looking at this particular case do you have an expert opinion as to whether or not the conspiracy to sell methamphetamine that took place, that the defendant was convicted of the conspiracy between April 25, 2002 and April 23, 2009 was committed for the benefit of a criminal street gang?" Lewis answered, "Yes it was." Yanez raised no objection to this testimony below and makes no argument about this testimony on appeal.
Yanez did not object to Sergeant Lewis's expert opinion that Nuestra Familia's primary goal is to make money, and one of the easiest ways to make money is through the sale of illegal drugs. Furthermore, the jury heard evidence, including testimony from Ramirez that Yanez fronted drugs to Guzman, and there was evidence that Guzman was a Nuestra Familia member. Ramirez, also a Nuestra Familia member, testified that he gave Yanez drugs, and Yanez sold the drugs quickly. Multiple jail phone calls were also introduced into evidence. During the phone calls, Guzman is heard asking Yanez to pass on gang information about Nuestra Familia. The prosecution also introduced phone calls that demonstrated that Yanez communicated with Nuestra Familia members and used coded communication to discuss gang business.
As a result, we do not believe that there is a reasonable probability that without Sergeant Lewis's testimony defining a gang associate, the jury would have reached a different verdict. (Strickland, supra, 466 U.S. at p. 694.) There was ample evidence in the record that showed that Yanez had ties to Nuestra Familia and that he participated in the conspiracy in association with or for the benefit of the gang. Yanez's claim of ineffective assistance of counsel fails.
5. Sanchez Error
Yanez argues that during his second trial, Sergeant Lewis improperly testified about case-specific testimonial hearsay, violating the Confrontation Clause as described in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
In his opening brief, Yanez argues that Sergeant Livingston and Ramirez also testified about case-specific testimonial hearsay in violation of Sanchez. Yanez, however, cites to no specific instances where Livingston's and Ramirez's respective testimonies violated Sanchez. Yanez only provides examples where he believes that Sergeant Lewis provided improper testimony. Therefore, his claims of error with respect to the testimony of Livingston and Ramirez are forfeited. (People v. Hovarter (2008) 44 Cal.4th 983, 1029 [failure to support argument with legal analysis forfeits issue on appeal].)
During Yanez's second trial, Sergeant Lewis testified that he believed that Yanez was an associate of the Nuestra Familia gang.
Sergeant Lewis gave the following explanation for his opinion: "The basis of the opinion is based on the totality of investigations; based on listening to phone calls and context; conversations he has with Lorenzo Guzman; the messages that are being passed back and forth. You can tell in the context of the conversations he's well aware that there's an issue with John Mendoza. The fact that he tries to follow up and make sure that message[s] got passed out. The fact that he then tries to make sure that Lorenzo Guzman is aware that Rudy Miramontes got out of custody, who's another NF member. The fact that he was facilitating the communication through someone that was on the tier with—that left custody with three folders, and that that needed to get to [Greg Guzman's] brother. Again, facilitating communications to Lorenzo Guzman, who's on the street.
"It's based on—sorry. It's based on the totality of the investigation. It's based on what I've known about the defendant in the past, compared to now. It's based on the communication of talking about doing homework in reference to doing work on the tier. Basically getting educated. I listened to the—some of the conversations on the deck. The deck being the tier. We knew—talking to other members of [the] organization like Sammy. His interactions with Sammy on the streets when he is trying to get at Sammy to get the police reports.
"The fact that he can reach out to somebody at the NF level like that. The fact that he then started working with Sammy, taking the drugs to sell them. And when he got back on his feet he started taking stuff and passing it back and forth to Charlie [Campa].
"So, basically, he's interacting with three different NF members on the street at one point; he's facilitating communications involving one of the generals, which is highly sensitive; his education reference on doing homework; the fact that he needs to focus on what he's doing while he's in custody.
"So when you take all that, you take the interactions, you take the totality of what all of the cooperating witnesses that knew of [Yanez] and what he was doing. That's the basis of my expertise for my opinion."
Sergeant Lewis also stated that he formed his opinion from conversations that he had with Debbie Guzman, Clark, and Ramirez.
b. People v. Sanchez
Hearsay is an out of court statement that is offered for the truth of its content. (Evid. Code, § 1200, subd. (a).) Hearsay is generally inadmissible unless it falls under an exception provided by law. (Id., subd. (b).)
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford v. Washington (2004) 541 U.S. 36, 53-54.) This bar applies only to testimonial statements; the admission of nontestimonial statements is subject to hearsay rules but are not subject to exclusion under the Confrontation Clause. (Id. at p. 53.)
In Sanchez, the California Supreme Court described that "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
"In Davis v. Washington [(2006)] 547 U.S. 813, the court explained the difference between testimonial and nontestimonial statements made to the police. 'Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.' " (People v. Livingston (2012) 53 Cal.4th 1145, 1158-1159.)
Sanchez held that case-specific statements made by a gang expert constituted inadmissible hearsay when it was not established that the defendant had a prior opportunity for cross-examination and that the declarant was unavailable. (Sanchez, supra, 63 Cal.4th at p. 686.) Sanchez also held that "statements about a completed crime, made to an investigating officer by a nontestifying witness . . . are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Id. at p. 694.) Thus, Sanchez concluded that, like a police report, the information in a field identification card memorializing police contact with gang-related individuals is testimonial if generated during the course of an ongoing criminal investigation. (Id. at p. 697.)
We review de novo whether a statement is testimonial and implicates the Confrontation Clause. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.) We apply the abuse of discretion standard of review to the trial court's rulings on the admissibility of evidence, including hearsay. (People v. Waidla (2000) 22 Cal.4th 690, 723.)
c. Application to Yanez's Case
The Attorney General argues that Yanez forfeited his appellate arguments because he did not object to Sergeant Lewis's testimony on hearsay or confrontation clause grounds below. (Evid. Code, § 353.) The California Supreme Court recently decided that failure to object to pre-Sanchez gang expert testimony that related case-specific hearsay does not forfeit the issue on appeal. (People v. Perez (2020) ___ Cal.5th ___ .)
Yanez argues that Sergeant Lewis's expert opinion constituted inadmissible hearsay and violated the Confrontation Clause because he relied on case-specific testimonial hearsay as described in Sanchez, supra, 63 Cal.4th 665. As we explain, we disagree.
Here, Sergeant Lewis testified that he based his expert opinion on his personal knowledge of the case—including his own conversations with some of the cooperating witnesses and his investigation into Nuestra Familia. (People v. Meraz (2018) 30 Cal.App.5th 768, review granted on another issue, Mar. 27, 2019, S253629, and cause transferred to Second Appellate District with directions on Aug. 29, 2018 [gang expert testimony were not barred under Sanchez because expert was present during contacts with defendants, had personal knowledge of facts, and was subject to cross-examination at trial]; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 413 (Vega-Robles) ["it is not error for a gang expert to testify about case-specific facts about which he has personal knowledge"].)
Furthermore, Sergeant Lewis's testimony and his opinion, which generally relied on his conversations with some of the cooperating witnesses, his investigation into the case, and his knowledge of Yanez, did not relay case-specific facts. Lewis broadly testified that he listened to "some of the conversations on the deck" and relied on conversations that he had with Debbie Guzman, Clark, and Ramirez. He did not convey any out-of-court statements. As articulated in Sanchez, "[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.)
Sergeant Lewis also testified that some of his expert opinion was based on evidence that was adduced at Yanez's trial—including Ramirez's testimony about his interactions with Yanez and recorded phone conversations between Yanez and various individuals that were admitted into evidence and played for the jury. This testimony was not improper. (Sanchez, supra, 63 Cal.4th at p. 686 [expert cannot relate as true case-specific facts asserted in hearsay statements unless they are covered by hearsay exception or independently proven by competent evidence].)
Moreover, even if admitting Sergeant Lewis's expert testimony constituted error, the error is harmless because other admissible evidence supported the conclusion that Yanez was an associate of Nuestra Familia. (See Vega-Robles, supra, 9 Cal.App.5th at p. 414 [admission of inadmissible hearsay during expert testimony harmless given "plethora of admissible evidence" of defendant's gang affiliation]; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510 [prejudice resulting from Sanchez error reviewed under the Watson standard of prejudice].) Ramirez testified that Yanez sold and supplied drugs for Nuestra Familia members, and recorded conversations reflected that Yanez was asked to convey messages on behalf of Nuestra Familia and spoke about gang-related business. As a result, it is not reasonably probable that absent Lewis's testimony, Yanez would have received a more favorable result.
6. Presentence Custody Credits
The indictment charging Yanez with conspiracy to sell methamphetamine alleged that he committed the crime on or about and between April 25, 2002 and April 23, 2009. Yanez, however, claims his presentence custody credits should have been calculated under the version of section 4019 applicable to crimes committed after October 1, 2011, because the evidence at trial established that the conspiracy to sell methamphetamine continued well after his arrest and into the present time. Section 4019, subdivision (h) expressly provides that the amended version of section 4019 applies to those defendants imprisoned for a crime "committed on or after October 1, 2011."
We find no merit in Yanez's contentions. The dates alleged in the indictment controlled what the prosecution was required to prove in their case in chief to convict Yanez of the underlying conspiracy. In Yanez's case, the dates of the conspiracy were not alleged with exactness in the indictment, but exactness is not required under the law. "The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." (§ 955.) In these situations, " '[t]he burden [is] on the People to prove that the offenses occurred within the period of limitation but they are not required to prove the date with exactness. [Citation.] A variance is immaterial unless time is of the essence of the offense. [Citation.] "An immaterial variance should be disregarded [citations]. The test of the materiality of a variance is whether the indictment or information so fully and correctly informs the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense." ' " (People v. Mack (1959) 169 Cal.App.2d 825, 829.) "[W]hen a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304.)
In other words, an indictment serves to inform the defendant of the charged criminal act so that he or she can appropriately mount a defense. Under these circumstances, we do not believe that Yanez himself would have reasonably believed that he needed to present a defense against a conspiracy that continued well after the dates described in the indictment. Although there may have been evidence introduced at trial that indicated that Nuestra Familia's conspiracy to sell methamphetamine continued past Yanez's arrest, the jury's verdict reflects that the jury found Yanez guilty of committing a crime that occurred between April 25, 2002 and April 23, 2009, not of a crime that extended past October 1, 2011, the effective date of the amended version of section 4019.
Citing People v. Gann (2011) 193 Cal.App.4th 994, Yanez argues that the last date of a conspiracy is controlled by the evidence admitted at trial, not by the information in the indictment. Gann does not aid Yanez. In Gann, the Fourth Appellate district concluded that the trial court did not err when it found certain statements admissible under the hearsay exception for coconspirator statements based on evidence of a conspiracy introduced during the defendant's trial for first degree murder. (Id. at pp. 999, 1005-1007.) The Gann defendant was not charged with a conspiracy, and Gann does not stand for the proposition that the dates of a conspiracy are not tied to a charging indictment. (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 ["It is axiomatic that cases are not authority for propositions not considered."].)
Yanez also relies on People v. Palacios (1997) 56 Cal.App.4th 252, arguing that Palacios holds that the evidence presented at trial controls an offense's date when determining which custody credit statute applies. Yanez misreads Palacios. In Palacios, the First Appellate District considered whether section 2933.1, which reduced custody credits, could be applied to the defendant without violating the constitutional prohibition against ex post facto laws. (Palacios, supra, at p. 256.) By its terms, section 2933.1 applied to those offenses that were committed after its operative date of September 21, 1994. (Palacios, supra, at p. 256.) The defendant in Palacios pleaded no contest to continuous sexual abuse of a child (§ 288.5) that was committed " '[o]n or between July, 1993 and October, 1994.' " (Palacios, supra, at p. 256.) The First Appellate District concluded that section 2933.1 could be applied to the defendant without violating the ex post facto clause because section 288.5 punishes a continuous course of conduct. (Palacios, supra, at p. 257.) In other words, Palacios held that the applicable custody credit statute was the statue in effect at the time the Palacios defendant committed the offenses—which was, in turn, determined by the dates set forth in the defendant's plea of no contest. If anything, Palacios supports our conclusion that the dates of Yanez's conspiracy is determined by the indictment.
Finally, citing People v. Ramirez (2014) 224 Cal.App.4th 1078, Yanez argues that under the rule of lenity, we should construe any ambiguity over the application of section 4019 in his favor. In Ramirez, the defendant pleaded no contest to multiple offenses that were alleged to have occurred after October 1, 2011, and multiple other offenses that were alleged to have occurred before October 1, 2011. (Ramirez, supra, at pp. 1084, 1085.) The defendant argued that the more generous version of section 4019, effective October 1, 2011, should apply to his case. This court acknowledged that section 4019, subdivision (h) provides that the amended version of the conduct credits statute applied to crimes committed on or after October 1, 2011. (Ramirez, supra, at p. 1084.) We concluded, however, that an ambiguity arose over the application of section 4019 to the defendant's particular set of facts because the defendant pleaded no contest to offenses that arose both before and after the effective date of the statute. (Ramirez, supra, at pp. 1085-1086.) We therefore applied the rule of lenity in favor of the defendant's interpretation that he was entitled to the newer, more generous version of section 4019. (Ramirez, supra, at pp. 1085-1086.)
Unlike Ramirez, there is no ambiguity over the application of section 4019 to Yanez's case. As alleged in the indictment and as proven at trial, the conspiracy that Yanez was convicted of occurred well before the effective date of the amended version of section 4019. There is no occasion for us to apply the rule of lenity in Yanez's favor. Accordingly, we find that the trial court did not err when it declined to apply the amended version of section 4019 when it calculated Yanez's presentence credits.
7. Senate Bill No. 1393
Yanez argues that we must remand the matter for resentencing so that the trial court may exercise its discretion to strike or dismiss the five-year enhancement that was imposed under section 667, subdivision (a) for his prior serous felony conviction. At the time Yanez was sentenced, the trial court did not have the discretion to strike such enhancements. On September 20, 2018, the Governor signed Senate Bill No. 1393, which became effective January 1, 2019. (Stats. 2018, ch. 1013, §§ 1-2.) Senate Bill No. 1393 amended sections 667, subdivision (a) and 1385, subdivision (b) to permit a court to exercise its discretion to strike or dismiss enhancements imposed under section 667, subdivision (a). Senate Bill No. 1393 retroactively applies to Yanez's case because his case was not final at the time it took effect. (People v. Garcia (2018) 28 Cal.App.5th 961, 972; see In re Estrada (1965) 63 Cal.2d 740, 744.)
Generally, "when the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The rationale for this general rule is that "[d]efendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (Ibid.) There is an exception to this rule, however, where " 'the record shows that the trial court would not have exercised its discretion even if it believed it could do so,' " in which case, " 'remand would be an idle act and is not required.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
In People v. McDaniels (2018) 22 Cal.App.5th 420, the appellate court addressed the appropriate standard to "apply in assessing whether to remand a case for resentencing in light of Senate Bill [No.] 620," which granted trial courts with the discretion to strike firearm enhancements. (McDaniels, supra, at p. 425.) Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894, which dealt with reconsidering Three Strikes sentences in light of Romero, McDaniels determined that a "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (McDaniels, supra, at p. 425.) McDaniels concluded that the salient question is whether the trial court "express[ed] its intent to impose the maximum sentence permitted." (Id. at p. 427.) "When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Ibid.)
Senate Bill No. 620 gave trial courts the discretion to strike firearm enhancements. We find that the same standard applies in cases involving Senate Bill No. 1393. (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.)
For example, in People v. McVey (2018) 24 Cal.App.5th 405, 419, the appellate court determined that remand for resentencing under Senate Bill No. 620 was unnecessary based on the "trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement . . . ." And in People v. Jones, supra, 32 Cal.App.5th 267, the appellate court determined that remand for resentencing under Senate Bill No. 1393 was unnecessary after observing that the trial court denied the defendant's new trial motion and commented during sentencing that it had " 'great satisfaction in imposing the very lengthy sentence here today.' " (Id. at p. 274.)
The Attorney General argues that the record shows that the trial court would not have exercised its discretion to strike Yanez's prior serious felony conviction enhancement. Before sentencing, Yanez filed a motion asking that the trial court exercise its discretion to dismiss his prior strike conviction for assault with a semi-automatic firearm and the gang enhancement that was found true in his current case. (§§ 1385, 186.22, subd. (g); Romero, supra, 13 Cal.4th 497.) The trial court declined to dismiss either the prior strike or the gang enhancement, concluding that Yanez did not fall outside the spirit of the Three Strikes law and there were no unusual circumstances that would justify nullifying the jury's verdict on the gang enhancement. During the sentencing hearing, the trial court noted that the probation report reflected that "[v]irtually all of the defendant-related factors in rule 4.421 are applicable and none of them [are] mitigators."
Based on the record before us, the trial court was not inclined toward leniency in this case. However, the trial court's decision not to grant Yanez's Romero motion and its decision not to strike the gang enhancement do not clearly indicate that it would not have chosen to strike Yanez's prior serious felony conviction had it had the discretion to do so.
The trial court's decision on Yanez's Romero motion focused on whether he fell outside the purview of the Three Strikes law, which requires a different analysis. (See People v. Williams (1998) 17 Cal.4th 148, 161 [describing factors court must consider when deciding whether defendant falls outside spirit of Three Strikes law].) Moreover, the trial court's consideration of whether Yanez's case is the "unusual case where the interests of justice would best be served" (§ 186.22, subd. (g)) by striking the additional punishment for the gang enhancement does not unequivocally indicate that it would decline to strike Yanez's prior serious felony conviction enhancement in the "furtherance of justice" (§ 1385) under the discretion granted by Senate Bill No. 1393. We can conceive of situations where a trial court may be inclined to strike an enhancement associated with a prior conviction but would not be inclined to strike a punishment associated with an enhancement found true by the jury in the case at bench.
Generally, "speculation about what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111.) Thus, out of an abundance of caution, we agree with Yanez that remand for resentencing is appropriate.
8. The Three-Year Enhancement Imposed Under Health and Safety Code Section 11370.2
Yanez claims that the three-year enhancement imposed under former Health and Safety Code section 11370.2 should be stricken because of amendments that were made to that section that became effective in 2018, after he was sentenced to prison but before his sentence became final. The Attorney General concedes that the enhancement should be stricken, and we find the concession appropriate.
Effective January 1, 2018, Health and Safety Code section 11370.2, subdivision (c) now provides that a three-year enhancement applies only if a defendant's prior drug conviction was for a violation of Health and Safety Code section 11380. (People v. Millan (2018) 20 Cal.App.5th 450, 454.) The amended version of Health and Safety Code section 11370.2 retroactively applies to those cases that are not yet final. (Millan, supra, at pp. 455-456; In re Estrada, supra, 63 Cal.2d at p. 745.) Here, Yanez's three-year enhancement was imposed on his prior drug conviction in violation of Health and Safety Code section 11378. As a result, the enhancement no longer applies and must be stricken.
As a result, we do not reach Yanez's alternative argument that the trial court erred when it imposed enhancements for Health and Safety Code section 11370.2, subdivision (c) and section 667.5, subdivision (b) for the same prior offense.
9. The One-Year Enhancement Imposed Under Section 667.5, subdivision (b)
Yanez contends that the one-year enhancement imposed under section 667.5, subdivision (b) no longer applies to him in light of the recent passage of Senate Bill No. 136.
Effective January 1, 2020, Senate Bill No. 136 amends section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) Under the newly-amended version of section 667.5, subdivision (b), a one-year sentencing enhancement will apply only if defendant served a prior prison term "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." Yanez's prior prison term does not qualify for the one-year enhancement under the amended version of section 667.5, subdivision (b). The Attorney General concedes that if Yanez's sentence is not yet final as of Senate Bill No. 136's effective date, the one-year enhancement must be stricken. We agree with the parties that Senate Bill No. 136 applies retroactively to Yanez's case. (People v. Lopez (2019) 42 Cal.App.5th 337, 886-887; see In re Estrada, supra, 63 Cal.2d at p. 742.) Since his sentence is not yet final, the one-year enhancement imposed under section 667.5, subdivision (b) must be stricken.
Yanez filed his supplemental brief before January 1, 2020, the effective date of Senate Bill No. 136. In his supplemental brief, the Attorney General initially argued that Yanez's claim was not ripe because Senate Bill No. 136 had not yet taken effect. However, the Attorney General conceded that Senate Bill No. 136 applied to Yanez retroactively, assuming his case was not final before January 1, 2010. --------
DISPOSITIONThe judgment is reversed. On remand, the trial court is directed to resentence Yanez in light of Penal Code sections 667, subdivision (a) and 1385, subdivision (b) as amended by Senate Bill No. 1393, strike the three-year enhancement imposed under Health and Safety Code section 11370.2, subdivision (c), and strike the one-year enhancement imposed under Penal Code section 667.5, subdivision (b).
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.
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