People v. Salvador ( 2017 )

Filed 5/5/17
Opinion following transfer from Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A142488
v.
HUMBERTO SALVADOR, (Contra Costa County
Super. Ct. No. 05-12-00815)
Defendant and Appellant.
On the evening of December 13, 2008, Jane Doe stepped out of her car and met
defendant Humberto Salvador and three other men, who dragged her into a brutalized
nightmare. For his participation, defendant was convicted of 15 felonies with 98
enhancements,1 and sentenced to 425 years and four months to life in state prison.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for partial publication. The portion of this opinion to be deleted from
publication are those portions enclosed within double brackets, [[ ]].
1
Statutory references are to the Penal Code unless otherwise indicated. Defendant
was convicted of one count of kidnapping for sexual purposes (§ 209, subd. (b)(1)); one
count of kidnapping during a carjacking (§ 209.5, subd. (a)); one count of carjacking
(§ 215, subd. (a)); one count of second degree robbery (§§ 211, 212.5, subd. (c)); active
participation in the criminal conduct of a criminal street gang (§ 186.22, subd. (a)); two
counts of forcible sexual penetration (§ 289); two counts of forcible sodomy in concert
(§ 286, subd. (d)(1)); two counts of forcible rape in concert (§ 264.1, subd. (a)); and four
counts of forcible oral copulation in concert (§ 288a, subd. (d)(1)).
Each of the two kidnapping counts, the carjacking count, and the robbery count
included allegations found true by the jury that the offense was committed for the benefit
of a criminal street gang (§ 186.22, subd. (b)), and involved the personal use of a deadly
1
Defendant contends the testimony of the prosecution’s expert on criminal street gangs
was based on improper hearsay material, and that defendant’s cross-examination was
unduly restricted. Defendant also contends the trial court erred when it instructed the
jury that defendant’s possible intoxication was not relevant to the issue of whether he
formed the specific intent required for conviction on the kidnapping counts and two other
charges where he was alleged to have aided and abetted others. Finally, defendant
contends the trial court erred when it imposed consecutive ten-year gang enhancements
terms on the ten counts carrying indeterminate life terms under section 667.61, the
so-called “One Strike” law.
weapon (§ 12022, subd. (b)(1)) and the personal infliction of great bodily injury
(§ 12022.7, subd. (a)).
The gang participation count included sustained allegations of the personal use of
a deadly weapon and the personal infliction of great bodily injury.
Each of the two forcible sexual penetration counts included sustained allegations
that it was a hate crime (§ 422.75) and that defendant committed the offenses for the
benefit of a criminal street gang, and while he was armed with and personally used a
deadly weapon (§§ 12022, subd. (b)(1), 12202.3, subd. (b)).
Each of the two forcible sodomy counts included sustained allegations that it was
a hate crime and committed in concert (§ 422.75, subd. (b)); that defendant was armed
with and personally used a deadly weapon, and personally inflicted great bodily injury
(§§ 667.61, subd. (d)(6), 12022.7, 12022.8); that the offense involved a kidnapping that
substantially increased the risk to the victim (§ 667.61, subds. (d)(2)); and that it was
committed for the benefit of a criminal street gang.
Each of the two forcible rape counts included sustained allegations that it was a
hate crime and committed in concert; that defendant was armed with and personally used
a deadly weapon; that the offense was committed for the benefit of a criminal street gang;
and that the offense involved a kidnapping that substantially increased the risk to the
victim.
Three of the four forcible oral copulation counts included sustained allegations
that it was a hate crime and committed in concert, for the benefit of a criminal street
gang; that defendant was armed with a deadly weapon; and that the offense involved a
kidnapping that substantially increased the risk to the victim. In addition, the fourth
count also included the sustained allegation that during the commission of the offense
defendant personally used a deadly weapon.
2
Having reconsidered defendant’s first contention in light of People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez), we conclude there was some improper expert testimony
heard by the jury, but it was harmless. We further conclude that all other claims of trial
error are without merit. In the published portion of this opinion, we conclude that the
inescapable logic of People v. Lopez (2005) 34 Cal.4th 1002 establishes that the gang
enhancements are not authorized by section 186.22, and must be stricken. We remand
for resentencing, but otherwise affirm the judgment of conviction.
[[Begin nonpublished portion]]
BACKGROUND
The parties’ briefs disclose a thorough knowledge of the trial record. Defendant
does not contend the evidence in that record is insufficient to support any of his
convictions. Defendant did not testify or call witnesses on his behalf, thus narrowing the
scope for clash or differing interpretation. In any event, most of the salient details are not
in material dispute, so not every detail need be reiterated here. The following narrative
abbreviates the trial record in the light most favorable to the prosecution and in support of
the judgments. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Defendant was a senior member of the Sureno criminal street gang, who lived in
Richmond. On the evening of December 13, 2008, Josue Gonzalez was in San Rafael, on
his way to church, when he received a telephone call from defendant, who said: “Let’s
go do a couple of carjack[s], licks [break-ins, robberies].” Gonzalez changed his plans,
and telephoned Darryl Hodges and Robert Ortiz—both of whom Gonzalez had been
instructing about gang rules and practices—to meet him in Richmond. Gonzalez had
been a Sureno for nine years, but was still only a junior member of Surenos, so he felt he
had no choice but to obey defendant. Hodges (age 16) and Ortiz (age 15) wanted to
become Surenos, and thus would have even less inclination to disobey defendant.2
Gonzalez, Hodges, and Ortiz had previously gone carjacking with defendant. Gonzalez,
Hodges, and Ortiz met defendant in Richmond which, because it was “his
2
Ortiz lived next door to defendant.
3
neighborhood,” increased defendant’s authority. They drank beer, and set out. They
broke into a number of cars, but “just took what was inside.” The four were congregated
by one of those vehicles when the victim drove up.
The victim testified that when she drove up to her Richmond home after work, she
noticed a group of four men—three Latino and one Black—standing near a parked car.
After she parked her car, she called her father on a cell phone “[b]ecause . . . I was
scared.” While she was talking to her father, and walking to her house, defendant3
approached, and, in Spanish, demanded money and her keys. The victim told the man
she had no money. Defendant grabbed the phone, smashed her head with a flashlight,
and repeated “give me everything you have.” The victim surrendered her money, wallet,
and keys, but refused defendant’s demand that she take off her clothes. After being hit
for a second time in the head with the flashlight, she began disrobing.
Down to her underwear, the victim hesitated to go further until defendant “lifted
his hand up as if he were going to hit me again if I didn’t take it off.” When the victim
was naked, defendant ordered her to “get on the ground.” After Gonzalez picked up the
victim’s clothing, defendant—in the victim’s words—“started to touch me from behind.”
Defendant then digitally penetrated her anus for two or three minutes, ignoring her
protest that it was hurting her. Defendant then told her get up, marched her over to her
car, and told her to get in.4
When the victim handed over her car keys, defendant had thrown them to Ortiz.
Ortiz stayed in the car with Hodges and Gonzalez until defendant brought over the victim
to her car, and commanded Ortiz to start the engine. Once the car was underway, with
the victim in the middle of the back seat, defendant told the driver (Ortiz), “Take us
somewhere where all of us can have a good time.” Defendant asked the victim “if I liked
men.” “I told him yes” because “I thought he would kill me . . . .” After defendant
3
The victim remembered the man as Latino, recalled some physical details, but at
trial did not identify defendant. That identification was made by Gonzalez.
4
The jury was advised that defendant had three convictions for felony car theft
(Veh. Code, § 10851).
4
“asked me if I was sure that I liked men,” he told her “that if I did like men that I needed
to show him.”5 Defendant unbuttoned his pants, and said, “Give me some head.”
The victim testified that defendant asked her did she “like dick.” Defendant
“grabbed me by the head and pushed me towards his part,” and forced her to put her
mouth over his erect penis. “He . . . told me we were going to go to a place to have fun.”
Gonzalez heard defendant say “You like it you know. Do you like it?”
After about five blocks, the car stopped at the abandoned home of a Sureno in “a
burned-out apartment complex.” After her car had been driven into the carport,
defendant ordered the naked victim out. Once out of her car, defendant “told me to bend
over,” and then “[h]e penetrated me” “[i]n the backside.” “I yelled, and I told him that it
hurt me,” whereupon defendant taunted: “See, you like men. I’m going to set you
straight.” And, “You like boys. Tell me you like boys.”
Defendant then ordered the victim underneath an exterior staircase. Again she
was sodomized on her feet, while defendant kept asking “if I was sure that I liked men.”
While still standing behind the victim, defendant raped her. While doing so, he again
inquired “[w]hether . . . I liked it.” Defendant ordered the victim to her knees and to
orally copulate him again. His comments this time were “whether . . . I liked men and
that I should show him that I did,” and “You like sucking dick, don’t you?” When
finished, defendant told Gonzalez “It’s your turn next.” Gonzalez refused, but Ortiz did
not, forcing the victim to orally copulate him. Defendant and Gonzalez drove away in
the victim’s car, about the time Hodges was forcing the victim to orally copulate him.
The victim’s ordeal ended when Ortiz and Hodges left on foot. Disregarding their
command not to move, she ran to a nearby home, and police were summoned.
Defendant drove himself and Gonzalez for a number of blocks, when they
abandoned the victim’s car. Defendant’s pants and shirt were soaked in blood. He
removed them, and set them afire in the middle of the sidewalk.6 Defendant and
5
It is unclear precisely how defendant came to identify the victim as a lesbian.
6
The victim’s ID was found in the partially burned pants.
5
Gonzalez were picked up by a cousin of defendant, who drove them away. Gonzalez told
the jury that rape was not tolerated by the Surenos: the prohibition against it was almost
as strong as the ban on snitching.7
Defendant’s DNA was found in swabs taken from the victim. Defendant’s
fingerprints, and the victim’s blood, were found on the flashlight that was found in the
victim’s car.
Richmond Police Detective Reina was one of the two prosecution expert witnesses
who testified during the prosecution’s case-in-chief on criminal street gangs, including
the Central Side Locos ( ), a subset of the Surenos. Reina testified that “CSLs were
formed . . . in the early ‘90s”; that defendant was one of “the founding individuals”; that
in about 2000 “their numbers started to diminish, started to decline. In 2008, they had
approximately . . . ten members”; and that “in December of 2008” the CSLs were one of
“the subsets . . . of the Sureno criminal street gang” that were “operating together under
the umbrella of Surenos.” In Reina’s opinion, the CSLs met the statutory definition of a
criminal street gang,8 and defendant was an active participant, as were Ortiz and Hodges.
7
The jury learned from Gonzalez that he had been “arrested for this offense” on
January 1, 2009; that he had been incarcerated up to the time he testified in December
2013; and that he had not been promised anything for his testimony. Gonzalez testified
that “ever since I caught this case,” he considered his membership in the Surenos at an
end.
The jury did not learn that Hodges and Ortiz resolved the charges against them
prior to defendant’s trial. In 2011, Hodges entered a plea of no contest to one count of
forcible oral copulation in concert, and admitted some enhancements, and was sentenced
to 24 years in state prison. Ortiz was set to be tried with defendant, but, as the joint trial
was starting, the trial court—with the prosecution’s concurrence—granted Ortiz’s motion
for separate trials. In January 2014, shortly after defendant’s trial ended, Ortiz entered
pleas of no contest to forcible oral copulation in concert, forcible rape in concert, and
carjacking, for which he would be sentenced to 31 years in state prison. Gonzalez
entered pleas of no contest to one count of carjacking, and three counts of second degree
robbery, but the ultimate disposition is not shown by the record on appeal.
8
Subdivision (f) of section 186.22 defines “criminal street gang” as “any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of the criminal acts
enumerated in . . . subdivision (e), having a common name or common identifying sign or
6
The following occurred on Reina’s cross-examination:
“Q. . . . So it’s fair to say that . . . you’re not sure who [of the CSLs] was around
in 2008?
“MS. SMITH: Objection. Misstates his testimony.
“THE COURT: Sustained.
“BY MS. FULLERTON:
“Q. Well, who was around in 2008 other than my client and his two brothers that
you know were there and around in 2008?
“MS. SMITH: Objection. Relevancy.
“THE COURT: Sustained.
“MS. FULLERTON: It goes to the whole gang thing. I mean, if there were
members that were actually—
“THE COURT: Come forward.
“(Whereupon, an off-the record discussion was held at sidebar between Court and
counsel.)
“BY MS. FULLERTON:
“Q. When you were talking about the 50 early on, you said that a lot of those
people have gotten locked up, correct?
“A. Yeah, some of them did get locked up, yes.
“Q. And some of them just moved out of the gang life?
“A. Correct.
“Q. Some moved out of the area maybe and went to a gang life someplace else?
“A. Yes.
“Q. And that left you, and correct me if I’m wrong, with 10 active gang members
on the street in 2008?
“MS. SMITH: Objection. Compound.
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.”
7
“THE COURT: Sustained.
“BY MS. FULLERTON:
“Q. How many active gang members of CSL were on the street in 2008?
“MS. SMITH: Objection. Relevancy.
“THE COURT: Overruled.
“THE WITNESS: Approximately 10.
“BY MS. FULLERTON:
“Q. And of those approximate 10, the three that you know about for sure are my
client and his two brothers, correct?”
“A. Correct.”
The other expert was San Pablo Police Sergeant Palmieri, who worked with Reina
in collecting information about the CSL in Richmond. Sergeant Palmieri did not reiterate
Detective Reina’s testimony; his apparent allotted role was to answer hypothetical
questions as to whether the repugnance for rape (see text accompanying fn. 7, ante) could
be overridden by gang discipline and respect for hierarchy that would compel junior gang
members to participate, not challenging the conduct and orders of a senior member, thus
making the junior members active participants in an offense committed “for the benefit
of, in association with, or at the direction of a criminal street gang.”
Defendant called no witnesses on his behalf.
Defense counsel’s closing argument to the jury essentially conceded many of the
substantive crimes alleged but insisted that defendant was a solo actor. Thus, by
challenging whether there was sufficient credible evidence that Gonzalez, Ortiz, and
Hodges had the mental state to be aiders and abettors, counsel hoped to persuade the jury
the crimes had not been committed in concert, and not for a hate-motivated or gang-
related purpose. And the blows to the victim’s head did not qualify as great bodily
injury. The defense conceded that defendant was a CSL member in 2008.
8
REVIEW
Evidentiary Error
In our initial opinion, we analyzed defendant’s claims relating to the prosecution’s
gang expert witnesses as follows:
Defendant’s first claim of error requires an understanding of how a criminal street
gang is defined. The governing statutory language is that “ ‘criminal street gang’ means
any ongoing organization, association, or group of three or more persons, whether formal
or informal, having as one of its primary activities the commission of one or more of the
criminal acts enumerated in . . . subdivision (e), having a common name or common
identifying sign or symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
The relevant caption in defendant’s brief states: “The trial court erred regarding
the gang officer’s testimony (1) when it admitted—for the truth—hearsay evidence which
helped form the basis for the officer’s opinion, and (2) when it improperly restricted his
cross-examination.” This contention has several component arguments.
(1) Defendant submits that the prosecutor agreed not to introduce certain “hearsay
statements” from either Detective Reina or Sergeant Palmieri, and then broke that
agreement in these particulars: “[T]he prosecutor caused officer Reina to testify that
separately tried co-defendant Ortiz admitted that he was a Sureno. [Citation.] Then the
prosecutor caused officer Palmieri to testify that McLenehan [sic] admitted that he was a
CSL member. Then the prosecutor caused officer Reina to testify that Manuel Manzo
admitted he was a CSL member. [Citation.] Those statements were all hearsay. The
admission of such hearsay testimony was error. It violated Appellant’s 6th and 14th
Amendment cross-examination rights, because those statements were testimonial, and
because neither Ortiz, nor McLenehan [sic], nor Manuel Manzo testified. Crawford v.
Washington (2004) 541 U.S. 36, 52 [(Crawford)]. Accordingly, that testimony should
have been barred pursuant to the defense [in limine] motion.”
(2) In addition, the prosecutor’s conduct amounted to misconduct.
Several significant details must be added to defendant’s narrative.
9
First, we are not considering the actual violation of a court order. The court
refused to grant the defense’s in limine request that “their statements be kept out”
because “this is more of a trial issue than an in limine, and I say that because I don’t
know how the questioning of the expert is going to go. I know that Ms. Smith [the
prosecutor] is not going to raise the issue of the codefendant . . . [Ortiz’s] statements. So
it may be that . . . you can ask to approach the bench and we can talk about it, and I think
that’s how we’re going to do it. We’ll see how that happens.”
Second, and most importantly, when the prosecutor supposedly “violated” her
representation—supposedly by eliciting testimony from Reina that Ortiz “admitted to
being a Sureno,” that McClenahan admitted to being a Sureno and a CSL, and that
Manzo “told me himself” that he was a gang member—there was no objection by the
defense. In fact, when Detective Reina testified on direct examination about gang-related
information he gleaned from speaking with active gang member Anthony Salazar, there
was no objection by the defense. Nor does the trial transcript show any objection by the
defense when, on direct examination, Reina testified about information he gained about
the Surenos and CSLs from speaking with active CSL member Joseph McClenahan. Or
when Reina testified on direct examination about active CSL member Manuel Manzo,
defendant’s step-brother. Or when Reina testified about what he learned from Ortiz’s
possessions. Moreover, most of the questioning was about the significance of the tattoos
worn by Salazar, McClenahan, and Manzo, and what Reina learned from Ortiz’s cell
phone.
Third, when Detective Reina uttered two of the statements defendant now
condemns, it was in response to questions seeking his expert opinion. On the face of it,
this was proper. It is an established principle that experts may base opinions on
inadmissible hearsay, so long as the hearsay is not admitted for its truth. (People v.
Gardeley (1996) 14 Cal.4th 605, 618–619.) If defendant thought this principle was at
10
risk of being ignored, he was free to ask for an instruction reminding the jury of the
limited use that could properly be made of Reina’s statements.9
In sum, if there was a breach of the prosecutor’s agreement, the defense did not
protest it with a timely and specific objection to preserve the issue for review.10 (Evid.
Code, § 353, subd. (a).) The same is true for the claimed misconduct by the prosecutor.
(People v. Thomas (2011) 51 Cal.4th 449, 492.)
(3) Defendant concludes his first contention by claiming the trial court violated
his constitutional right of confrontation by restricting his cross-examination of Detective
Reina, as quoted above (pp. 7–8, ante), in order that he could disprove the membership of
McClenahan and two others (Ramon Cruz and Hector Sin Charon). Not so.
9
Defendant presumes this limitation was ignored, hence his claim of constitutional
error. (See People v. Hill (2011) 191 Cal.App.4th 1104, 1131 [“we must follow
Gardeley and the other California Supreme Court cases in the same line of authority. We
conclude that the trial court here properly determined that the challenged basis evidence
related by Chaplin was not offered for its truth but only to evaluate Chaplin’s opinions.
Therefore, its admission did not violate the . . . confrontation clause.” fn. omitted].) We
are not permitted to presume error, constitutional or otherwise. (E.g., People v. Giordano
(2007) 42 Cal.4th 644, 666; People v. Douglass (1893) 100 Cal. 1, 4.)
10
Even if the prosecutor had elicited evidence in breach of her agreement,
defendant could not show prejudicial error. The apparent premise of his contention is to
disqualify Salazar, McClenahan, and Manzo from being counted as among the ten or so
current CSLs. But defendant does not dispute, as quoted above, that he elicited from
Detective Reina that he and his two brothers were active CSL members “in 2008.” As
this is the statutory minimum, the disqualification of others by demonstrating their
incarceration would not prevent conviction under section 186.22. Moreover, Gonzalez,
Ortiz, and Hodges could still be counted even if they were not formal CSL members.
(See People v. Johnson (2013) 57 Cal.4th 250, 259 [“ ‘A person who is not a member of
a gang, but who actively participates in the gang, can be guilty of violating section
186.22 . . . .’ ”]; People v. Albillar (2010) 51 Cal.4th 47, 67–68 [“The enhancement set
forth in section 186.22(b)(1) . . . . does not depend on membership in a gang at all.
Rather, it applies when a defendant has personally committed a gang-related felony with
the specific intent to aid members of that gang.”].) Indeed, they could still be counted
even if they were incarcerated at the time of the charged offenses. (See People v.
Merriman (2014) 60 Cal.4th 1, 25; People v. Gonzales (2015) 232 Cal.App.4th 1449,
1465 [“After his arrest, defendant asked to be placed in the jail housing unit for active
Norteno gang members. This evidence was sufficient to show that defendant was a
Norteno gang member.”]; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1509.)
11
“ ‘ “[A] criminal defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of the
witness, and thereby, ‘to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.’ ” [Citations.]
However, not every restriction on a defendant’s desired method of cross-examination is a
constitutional violation. Within the confines of the confrontation clause, the trial court
retains wide latitude in restricting cross-examination that is repetitive, prejudicial,
confusing of the issues, or of marginal relevance. [Citations.] California law is in
accord. [Citation.] Thus, unless the defendant can show that the prohibited
cross-examination would have produced “a significantly different impression of [the
witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this regard
does not violate the Sixth Amendment. [Citation.]’ [Citation.]” (People v. Virgil (2011)
51 Cal.4th 1210, 1251.)
Defendant again presumes the occurrence of constitutional error. (See fn. 9, ante.)
All the record shows is that a number of prosecution objections were sustained by the
court. Defendant makes no genuine attempt to show that those rulings were erroneous.
Collectively, the rulings do not establish anything like a restriction of legitimate
cross-examination, much less an improper restriction of constitutional magnitude. Again,
there is nothing in the record like a timely response, or an offer of proof that would
preserve the issue for review. (Evid. Code, § 354, subd. (a).) Defendant states “the issue
here was whether there were three or more active members . . . .” of the CSLs in 2008,
but the issue really was not open to further development because defendant had already
obliquely established the point (“Q. [t]he three that you know about for sure are my
client and his two brothers, correct?”11 “A. Correct.”). Even now, defendant looks to
disprove only the 2008 membership of others besides Salvador and his brothers. Thus,
11
Actually, the references is to defendant’s stepbrothers, Manuel and Eduardo
Manzo. (See fn. 13 and accompanying text, post.)
12
the trial court was, if anything, exercising its “ ‘wide latitude in restricting cross-
examination that is … of marginal relevance.’ ” (People v. Virgil, supra, 51 Cal.4th
1210, 1251.) Defendant has not established that further cross-examination would have
given the jury “ ‘ “a significantly different impression of [Reina’s] credibility.” ’ ” (Ibid.)
The preceding analysis was in our initial opinion filed in February of last year.
The California Supreme Court granted review and held the matter for decision in
Sanchez. When the opinion in Sanchez was filed, the cause was remanded for our
reconsideration in light of Sanchez, supra, 63 Cal.4th 665, a decision involving experts
providing gang-related testimony and the confrontation clause principles of Crawford,
supra, 541 U.S. 36. The parties filed supplemental briefing to aid our reconsideration.12
The Sanchez court was addressing the problem with experts and what it called
“case-specific facts.” Existing law was summarized as follows: “[A]n expert has
traditionally been precluded from relating case-specific facts about which the expert has
no independent knowledge. Case-specific facts are those relating to the particular events
and participants alleged to have been involved in the case being tried. Generally, parties
try to establish the facts on which their theory of the case depends by calling witnesses
with personal knowledge of those case-specific facts. An expert may then testify about
more generalized information to help jurors understand the significance of those
12
The remand order from the Supreme Court, and our order for supplemental
briefing, was limited to the application of Sanchez. However, in his supplemental briefs,
appointed counsel for defendant ranges far beyond this limitation to advance new reasons
why the expert testimony of Detective Reina and Sergeant Palmieri should have been
excluded, and to reargue his claims of prosecutorial misconduct and violation of the trial
court’s supposed ruling. These arguments will be ignored because they were addressed
in our initial opinion, and allowing defendant to reargue them would exceed the
single-issue scope of the Supreme Court’s remand order. Specifically, we do not address
defendant’s efforts to insert People v. Prunty (2015) 62 Cal.4th 59 and People v. Elizalde
(2015) 61 Cal.4th 523 into this appeal because neither of these decisions are mentioned in
the Supreme Court orders granting review or remanding the cause to us for
“reconsideration in light of the decision in People v. Sanchez (2016) 63 Cal.4th 665.”
13
case-specific facts. An expert is also allowed to give an opinion about what those facts
may mean. The expert is generally not permitted, however, to supply case-specific facts
about which he has no personal knowledge.” (Sanchez, supra, 63 Cal.4th 665, 676.)
But Crawford and succeeding decisions have significantly reduced the scope of
hearsay that is now compatible with the constitutional principle that a criminal defendant
“shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S. Const.,
6th Amend.) Crawford called for a new approach. Accordingly, the court adopted the
following rule: “When any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true and accurate to support the
expert’s opinion, the statements are hearsay. It cannot logically be maintained that the
statements are not being admitted for their truth. If the case is one in which a prosecution
expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless
(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th
665, 686, fn. omitted.)
“In the present case, when the gang expert testified to case-specific facts based
upon out-of-court statements and asserted those facts were true because he relied upon
their truth in forming his opinion, he was reciting hearsay. Ordinarily, an improper
admission of hearsay would constitute statutory error under the Evidence Code. Under
Crawford, however, if that hearsay was testimonial and Crawford’s exceptions did not
apply, defendant should have been given the opportunity to cross-examine the declarant
or the evidence should have been excluded. Improper admission of such prosecution
evidence would also be an error of federal constitutional magnitude.” (Sanchez, supra,
63 Cal.4th 665, 685, fn. omitted.)
“Gang experts, like all others, can rely on background information accepted in
their field of expertise under the traditional latitude given by the Evidence Code. They
can rely on information within their personal knowledge, and they can give an opinion
based on a hypothetical including case-specific facts that are properly proven. They may
also rely on nontestimonial hearsay properly admitted under a statutory hearsay
14
exception. What they cannot do is present, as facts, the content of testimonial hearsay
statements. ‘[T]he confrontation clause is concerned solely with hearsay statements that
are testimonial, in that they are out-of-court analogs, in purpose and form, of the
testimony given by witnesses at trial.’ [Citation.] Thus, only when a prosecution expert
relies upon, and relates as true, a testimonial statement would the fact asserted as true
have to be independently proven to satisfy the Sixth Amendment.” (Sanchez, supra,
63 Cal.4th 665, 685.)
“In light of our hearsay rules and Crawford, 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 665, 680.)
Precisely what qualifies as “testimonial” is far from settled. The Sanchez court
noted that the United States Supreme Court “has offered various formulations of what
makes a statement testimonial but has yet to provide a definition of that term of art upon
which a majority of justices agree.” (Sanchez, supra, 63 Cal.4th 665, 687.) Exactly a
year and a day before Sanchez, the court stated “we have discerned two requirements.
First, ‘the out-of-court statement must have been made with some degree of formality or
solemnity.’ [Citation.] Second, the primary purpose of the statement must ‘pertain[] in
some fashion to a criminal prosecution.’ ” (People v. Leon (2015) 61 Cal.4th 569, 603,
quoting People v. Lopez (2012) 55 Cal.4th 569, 581 & 582.) But to return to Sanchez,
which is still the most recent expression from our Supreme Court: “When the People
offer statements about a completed crime, made to an investigating officer by a
nontestifying witness, Crawford teaches those hearsay statements are generally
testimonial unless they are made in the context of an ongoing emergency . . . or for some
15
primary purpose other than preserving facts for use at trial.” (Sanchez, supra,
63 Cal.4th.665, 694.)
The statements singled out by defendant for challenge concern only one
point—whether the CSL had at least three members in order to satisfy the statutory
definition of a criminal street gang. (See § 186.22, subd. (f) quoted at fn. 8, ante.) The
statements are these:
Officer Reina testified that he believed Anthony Salazar was a CSL member in
2008 because “he told me himself, his tattoos that he has, . . . individuals he associates
with,” and his criminal history. With the aid of photographs of Salazar’s tattoos that
were shown to the jury, Reina told the jury how Salazar explained the meaning of the
tattoos.
Officer Reina testified that Joseph McClenahan had admitted that he was a CSL
member. This admission was corroborated by his criminal history and Reina’s personal
observation of McClenahan’s tattoos (photographs of which were shown to the jury).
According to Reina, McClenahan was also a CSL member in 2008.
Officer Reina testified that Manuel Manzo, who is defendant’s stepbrother,
admitted to being a CSL member in 2008. This conclusion was the result of Manzo’s
criminal history and tattoos, again, photographs of which were shown to the jury.
Another stepbrother, Eduardo Manzo, was also identified as a CSL member.
Officer Reina testified that Robert Ortiz was an active CSL member in 2008,
based on “his self-admission during Juvenile Hall booking” and material recovered from
his cell phone, which showed that he knew defendant at the relevant time. Eduardo
Manzo sent Ortiz a letter while Ortiz was in jail.
Officer Reina answered a hypothetical question about Darryl Hodges with his
opinion that “he would be an active participant.”
Officer Palmieri, who took the stand immediately after Reina, testified that he
interviewed McClenahan in San Quentin, at which time McClenahan “admitted to me
that he was . . . a CSL gang member.”
16
The Attorney General contends that no challenge to testimony about McClenahan
or Manuel Manzo need be entertained because defendant made no timely and specific
objection as required by Evidence Code section 353 to preserve the issue for review. The
Attorney General also contends that the challenged parts of Reina and Palmieri’s
testimony did not qualify as the sort of fact-specific testimonial hearsay, and in any event
any error was harmless. We agree only with the final point.
Given the distinct doctrinal shift made by Sanchez, we are not inclined to insist on
the strictest compliance with Evidence Code section 353. An objection would most
likely have been rejected on the basis of People v. Gardeley, supra, 14 Cal.4th 605,
which was overruled in Sanchez. Nor can we treat the experts’ conclusions as
nontestimonial. Reina clearly gave the impression that, although gang intelligence was
his general assignment and responsibility, what put him in the witness stand was what he
learned from investigating this case. This conclusion was corroborated by Palmieri: it
was after he started investigating the charged offenses that he began collaborating with
Reina and “acquiring information.” These are the defining conditions for eliciting
statements that are deemed testimonial. (See, e.g., Sanchez, supra, 63 Cal.4th 665, 689,
694 [“information gathered during an official investigation of a completed crime”], 697
[“produced in the course of an ongoing criminal investigation”]; People v. Livingston
(2012) 53 Cal.4th 1145, 1158–1159, citing Davis v. Washington (2006) 547 U.S. 813,
822.) The statements are more pointed than the “background information about which a
gang expert could testify” (Sanchez, at p. 677), and are patently case-specific “facts . . .
relating to the particular events and participants alleged to have been involved in the case
being tried.” (Id. at p. 676, italics added.)
Defendant does not dispute the evidence identifying him as a CSL member, nor
the evidence identifying Salazar as a CSL member. So we have two of the three
members necessary to satisfy the statutory requirement. Only one more is needed. But
defendant does not identify any authority requiring the prosecution to satisfy the statutory
definition of a criminal street gang by specifying members by name. In short, the
premise of his argument does not appear sound. Thus, the undisputed testimony of Reina
17
that there were approximately ten CSL members at the time of the charged offenses
would be sufficient to satisfy the statutory definition and requirement. Nor do we think it
significant whether one or more of those ten was incarcerated at the time of the charged
offenses, a point on which defendant places considerable emphasis, because as
established in our initial opinion, the statutory definition of gang members does not
require that they be in society at large. (See fn. 10, ante.) In any event, Reina testified
that the ten were “active gang members on the street in 2008.” And when defense
counsel asked of Reina, “And of those approximate 10, the three that you know about for
sure are my client and his two brothers,[13] correct?”, Reina answered “Correct.” That
makes four. And the hypothetical about Darryl Hodges would provide a fifth. (See
Sanchez, supra, 63 Cal.4th 665, 676–677, 685.)
Moreover, we note that Sanchez itself helps demonstrate why the error would be
harmless beyond a reasonable doubt. Our Supreme Court provided several examples to
illustrate the distinction between case-specific facts and proper expert testimony. One
was “[t]hat an associate of the defendant had a diamond tattooed on his arm would be a
case-specific fact that could be established by a witness who saw the tattoo, or by an
authenticated photograph. That the diamond is a symbol adopted by a given street gang
would be background information about which a gang expert could testify. The expert
could also be allowed to give an opinion that the presence of a diamond tattoo shows the
person belongs to the gang.” (Sanchez, supra, 63 Cal.4th 665, 677.)
The association between criminal street gangs and distinctive group tattoos is a
matter of common knowledge. (See, e.g., People v. Ochoa (2001) 26 Cal.4th 398,
437–439; People v. Williams (2009) 170 Cal.App.4th 587, 609.) Given the amplitude of
testimony about the tattoos on McClenahan and the Manzo brothers, there is no question
that proper hypotheticals could have been framed and answered, thereby in effect
establishing them as CSL members. Thus, the Sanchez dispute here is more about form
than substance, because the substance—gang membership—would be heard by the jury.
13
An apparent reference to Manuel and Eduardo Manzo.
18
Accordingly, the receipt of the testimonial hearsay qualifies as harmless beyond a
reasonable doubt. (Sanchez, supra, 63 Cal.4th 665, 698.)
Instructional Error
The trial court instructed the jury with a modified version of CALCRIM No. 3426,
relating to voluntary intoxication, as follows:
“You may consider evidence, if any, of the defendant’s voluntary intoxication
only in a limited way. You may consider that evidence in deciding whether the defendant
had the specific intent to deprive the other person of her vehicle either temporarily or
permanently as required in Counts Two and Eleven.
“In Count Fourteen you may consider that evidence only in deciding whether the
defendant acted with the specific intent to permanently deprive the owner of her property
as required for robbery.
“You may also consider it in deciding whether the defendant acted with the
specific intent to promote, further or assist criminal conduct by gang members, as
required by the gang charge in Count Fifteen and the gang enhancement to Counts One
through Fourteen.
“You may consider it in determining whether the defendant had the bias required
in the hate crime enhancements alleged in Counts One and Three through Thirteen.
“A person is voluntarily intoxicated if he or she becomes intoxicated by willingly
using any intoxicating drug, drink or other substance knowing that it could produce an
intoxicating effect or willingly assuming the risk of that effect.
“In connection with the charges of kidnapping for carjacking, carjacking and
robbery, the People have the burden of proving beyond a reasonable doubt that the
defendant acted with the intent to deprive the other person of her vehicle. If the People
have not met this burden, you must find the defendant not guilty of robbery, kidnapping
for carjacking and carjacking.
“In connection with the gang charge, and with the gang enhancement, the People
have the burden of proving beyond a reasonable doubt that the defendant acted with the
specific intent to promote, further or assist criminal conduct by gang members. If the
19
People have not met this burden, you must find the defendant not guilty of the gang
charge and/or the gang enhancements.
“In connection with the hate crime enhancement, the People have the burden of
proving beyond a reasonable doubt that the defendant was motivated by bias to commit
the crimes in whole or in part because of her sexual orientation or her gender.
“You may not consider evidence of voluntary intoxication for any other purpose.
Voluntarily [sic] intoxication is not a defense to general intent crimes. Please refer to
CALCRIM number 252 for the list of General Intent Crimes.”14
Defendant contends these instructions are defective and erroneous with respect to
the two counts of aiding and abetting Hodges and Ortiz when they committed forcible
14
The version of CALCRIM No. 252 told the jury:
“The following crimes and allegations requires general criminal intent:
Kidnapping, the lesser offense to Counts One and Two, Forcible Oral Copulation in
Concert as charged in Counts Three and Eight, Forcible Oral Copulation, the lesser
offenses to Counts Three, and Eight, Forcible Rape While Acting in Concert as charged
in Counts Four and Six, Forcible Rape, the lesser offenses in Counts Four and Six,
Sodomy in Concert as charged in Counts Five and Seven, Sodomy, the lesser offense to
Counts Five and Seven, Simple Battery, the lessor offence to Counts Twelve and
Thirteen and the enhancement of Personally Armed with a Deadly Weapon, Personally
used a Deadly Weapon, Personally Inflicting Great Bodily Injury and Kidnapping for
Sexual Offense . . . . [¶] . . . [¶]
“The following crimes and allegations require a specific intent or mental state:
Kidnapping For Sexual Purposes as charged in Count One, Kidnapping For Carjacking as
charged in Count Two, Forcible Oral Copulation in Concert as charged in Counts Nine
and Ten, Forcible Oral Copulation, the lesser offense to Counts Nine and Ten, Carjacking
as charged in Count Eleven, Forcible Sexual Penetration as charged in Counts Twelve
and Thirteen, Attempted Forcible Sexual Penetration, the lesser offense to Counts Twelve
and Thirteen, Second Degree Robbery as charged in Count Fourteen, Grand theft, the
lesser offense to Count Fourteen and Street Terrorism as charged in Count Fifteen and the
enhancements of Hate Crime and Crimes committed for the Benefit of, at the Direction of
or in Association with a Criminal Street Gang. [¶] For you to find a person guilty of
these crimes or to find the allegations true, that person must not only intentionally
commit the prohibited act, but must do so with a specific intent and/or mental state. The
act and the specific intent and/or mental state required are explained in the instruction for
that crime or allegation.”
20
oral copulation (counts nine and ten), and the two counts of kidnapping (counts one and
two).15
To be guilty of aiding and abetting, the defendant must be shown to have the
specific intent to knowingly encourage or facilitate the principal’s perpetration of a
criminal act. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123, 1131.) Because the
kidnapping was to facilitate a particular purpose, each of the kidnapping counts was
likewise a specific intent offense. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151,
fn. 6 [rape]; People v. Perez (2000) 84 Cal.App.4th 856, 860 [carjacking].) Thus,
intoxication could, if credited by the trier of fact, negate the specific intent required for
conviction. (People v. Mendoza, supra, at pp. 1131–1133.)
The Attorney General does not disagree. In fact, she concurs with defendant, but
nevertheless urges that there was no error, at least in the sense meant by defendant: “We
agree with appellant that counts 1, 2, 9, and 10 require specific intent not addressed by
the modified instruction. However, we disagree that appellant was prejudiced by the
allegedly misleading sentence, because we believe the trial court erred in instructing on
voluntary intoxication for any of appellant’s crimes.” (Italics added.) On this point, we
cannot agree with the Attorney General that there was no basis for instructing on
intoxication.
“[T]he trial judge has a duty to instruct as to defenses ‘ “that the defendant is
relying on . . . , or if there is substantial evidence supportive of such a defense and the
defense is not inconsistent with the defendant’s theory of the case.” ’ ” (People v. San
15
In light of the express language of the instruction (“You may consider
evidence . . . of the defendant’s voluntary intoxication . . . in deciding whether the
defendant had the specific intent to deprive the other person of her vehicle either
temporarily or permanently as required in Count[] Two”), it is somewhat puzzling to see
count two included by defendant as among those where the jury was not told that it could
consider defendant’s intoxication in determining whether he had the requisite specific
intent necessary for conviction of kidnapping for the purpose of carjacking. The
instruction further told the jury to consult CALCRIM No. 252, which explicitly included
“Kidnapping for Carjacking as charged in Count Two” among the specific intent crimes
charged. (See fn. 14, ante.)
21
Nicolas (2004) 34 Cal.4th 614, 669.) The Attorney General asserts there was not
sufficient evidence that defendant was voluntarily intoxicated at the relevant times.
On this, the Attorney General appears not to appreciate that the test for this trial
court duty is framed in the disjunctive. Here, as the Attorney General implicitly
concedes, defendant was relying on the partial defense of intoxication, as evidenced by
his requesting instruction on the issue, and further by his closing argument.16 With
neither defendant, nor Ortiz, nor Hodges taking the stand, the only relevant testimony
came from Gonzalez and the victim. Gonzalez testified that before they set out to “do a
couple of carjacks,” defendant was so drunk he “[c]ouldn’t stand straight,” and the victim
testified that defendant was sufficiently intoxicated that “it was difficult for him to
speak.”
“ ‘ “In evaluating the evidence to determine whether a requested instruction should
be given, the trial court should not measure its substantiality by weighing the credibility
[of the witnesses] . . . . Doubts as to the sufficiency of the evidence to warrant
instructions should be resolved in favor of the accused. [Citations.]” [Citation.]’
[Citation.]” (People v. Tufunga (1999) 21 Cal.4th 935, 944.) The trial court obviously
accepted that this testimony was sufficiently substantial to warrant instruction on
intoxication. We see no basis for overturning that decision.
The record does not explain why the instruction told the jury intoxication could be
considered for some crimes and enhancements but not others. “[A] trial court has no sua
sponte duty to instruct on the relevance of intoxication, but if it does instruct . . . it has to
16
We do not have defendant’s written request for instructions, but we do have the
prosecution’s, which has no mention of any intoxication instruction. Similarly, there was
no transcription of discussions between the court and counsel concerning instructions,
only some brief remarks by the court thanking “the attorneys for the time they have
devoted” to the instructions; agreeing with the prosecution’s statement that defense
counsel “has elected specific lesser-included offenses which meet her theory of the case
and her argument in the case, and there’s no other request for further lesser-included
offenses by the defense”; and noting that the sole defense objection to the instructions
about to be delivered was to CALCRIM No. 1401, which concerned the gang
enhancement allegations.
22
do so correctly” (People v. Mendoza, supra, 18 Cal.4th 1114, 1134), and not
incompletely (People v. Castillo (1997) 16 Cal.4th 1009, 1015). Thus, by omitting any
charged offense requiring specific intent, the modified version of CALCRIM No. 3426
was error.
But was the instruction prejudicial? To determine whether it was we do not
confine ourselves to the challenged instruction alone, but consider it in the context of all
the instructions. “ ‘[N]ot every ambiguity, inconsistency, or deficiency in a jury
instruction rises to the level of a due process violation. The question is “ ‘whether the
ailing instruction . . . so infected the entire trial that the resulting conviction violates due
process.’ ” [Citation.] “ ‘[A] single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall charge.’ ” [Citation.] If the
charge as a whole is ambiguous, the question is whether there is a “ ‘reasonable
likelihood that the jury has applied the challenged instruction in a way’ that violates the
Constitution.” ’ ” (People v. Huggins (2006) 38 Cal.4th 175, 192, quoting Middleton v.
McNeil (2004) 541 U.S. 433, 437.) We also recall what we said recently: “ ‘Jurors do
not sit . . . parsing instructions for subtle shades of meaning in the same way that lawyers
might. Differences among them in interpretation of instructions may be thrashed out in
the deliberative process, with commonsense understanding of the instructions in the light
of all that has taken place at the trial likely to prevail over technical hairsplitting.’ ”
(People v. Mackey (2015) 233 Cal.App.4th 32, 108, quoting Boyde v. California (1990)
494 U.S. 370, 380–381.)
We do not know precisely when the victim arrived home from her job where she
worked nights, but we are informed by the record that after speaking with the victim on
her cell phone, her father called the victim’s partner sometime between 9:30 p.m. and
10:00 p.m. It was shortly after 10:00 p.m. when the victim reached the sanctuary of the
occupied apartment. The jury could reasonably conclude that no more than 45 minutes
elapsed between when the victim stepped out of her car until she escaped from her
attackers and reached safety.
23
During that 45 minutes, the victim experienced the offenses committed on the
street after she parked her car; the offenses committed in her car as it was being driven to
the abandoned apartment building; and the offense committed at the apartment building
before defendant and the attackers fled. Excluding the three counts put at issue by
defendant’s contention, there were 12 felonies that, for present purposes, defendant
accepts as valid. These include the specific intent crimes of kidnapping for the purpose
of carjacking (count two); carjacking (count eleven); forcible sexual penetration (counts
twelve and thirteen); robbery (count fourteen); and gang membership (count fifteen).
It strains credulity to think that the jury considered—and rejected—the idea that
defendant’s intoxication prevented him from having the specific intent necessary for
kidnapping for carjacking, but would have reached the opposite conclusion on the
kidnapping for the purpose of committing sexual offenses. This reasoning is reinforced
by considering that the jury also found true the allegations that defendant had committed
both kidnapping counts for the benefit of, at the direction of, or in association with a
criminal street gang, allegations that required specific intent. (See second par. of
CALCRIM No. 252, quoted at fn. 14, ante; People v. Albillar, supra, 51 Cal.4th 47, 67
[“section 186.22(b)(1) requires the specific intent to promote, further, or assist a
gang-related crime.”])
The same is true with respect to counts nine and ten, for which defendant was
accused of being an aider and abettor to the forcible oral copulation committed by Ortiz
and Hodges. For each of these counts the jury could only convict defendant if, according
to CALCRIM No. 401, it determined that he knew that Ortiz and Hodges intended to
forcibly compel the victim to orally copulate either Ortiz or Hodges, “and
he . . . specifically intend[ed] to, and [did] in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.” Not only did the jury make those
determinations, it further decided that for each count defendant had acted with the
specific intent to further or assist a gang-related crime. Moreover, in accordance with
CALCRIM Nos. 252 and 1354, the jury also decided that defendant had acted with the
specific mental state of a “bias motivation” “against the victim based on the victim’s
24
actual or perceived gender or sexual orientation,” and “[t]he bias motivation caused the
defendant to commit the alleged acts.” In short, for each count the jury made three
determinations that defendant had acted with specific intent or motivation, his claimed
intoxication notwithstanding. It is fanciful, and far-fetched, to conceive that none of
these determinations would have been made had counts nine and ten not been included in
CALCRIM No. 3426.
Again, this conclusion finds additional support when considered from a different
perspective. Chronologically, the forcible oral copulation in concert charges in counts
nine and ten were the last to occur. The 13 preceding offenses commenced with robbery,
a specific intent crime, for which defendant conceded his guilt. Then came some of the
sexual offenses, the carjacking and the kidnapping, and then more sexual offenses, all of
which—with the exception of the substantive charge of active gang participation (count
fifteen)—the jury determined were committed with the specific intent to benefit or assist
a criminal street gang-related crime. For all but the robbery, carjacking, and kidnapping
counts, the jury found that defendant had acted with a specific bias motivation against the
victim. Finally, proof that the jury comprehensively rejected defendant’s intoxication as
mitigation is shown by their rejecting every opportunity to convict him of a lesser
included offense. Such a jury would not be receptive to the argument that defendant’s
mind was only intermittently unable to focus because of intoxicants.
We therefore conclude that the omission of counts one, nine, and ten from
CALCRIM No. 3426 can be deemed harmless because “ ‘the factual question posed by
the omitted instruction was necessarily resolved adversely to the defendant under other,
properly given instructions. In such cases the issue should not be deemed to have been
removed from the jury’s consideration since it has been resolved in another
context . . . .’ ” (People v. Wright (2006) 40 Cal.4th 81, 98), and was harmless according
to any standard of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24; People v.
Watson (1956) 46 Cal.2d 818, 836.)
[[End nonpublished portion]]
Sentencing Error
25
Defendant was sentenced to life without the possibility of parole on each of the
kidnappings (counts one and two); 15 years to life for the carjacking count (count
eleven); 19 years for the robbery (count fourteen); and two years for the substantive
offense of active gang participation (count fifteen). He received terms of 15 years to life
for each of the forcible sexual penetration counts (counts twelve and thirteen).
On each of the remaining eight counts—the two rape counts (counts four and six),
the two sodomy counts (counts five and seven), and the four oral copulations counts
(counts three, eight, nine, and ten)—the trial court imposed a consecutive term of 25
years to life specified by section 667.61. The jury having found true the allegations that
each of the offenses had been committed for the benefit of a criminal street gang (see
fn. 1, ante), the trial court imposed a separate consecutive ten-year term in accordance
with section 186.22, subd. (b)(1)(C)17 to the 25 years to life term for each of the two
forcible rape counts, the two forcible sodomy counts, and forcible oral copulation counts,
and to the 15 years to life term for each of the two forcible sexual penetration counts. In
other words, defendant was given 100 years of gang enhancements to be served
consecutively to two indeterminate terms of 15 years to life pursuant to section 667.61,
subdivision (b), and eight indeterminate terms of 25 years to life pursuant to section
667.61, subdivision (a).18
17
Which, in pertinent part, provides: “[A]ny person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal conduct by
gang members, shall, upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which he or she has been
convicted, be punished as follows: [¶] . . . [¶] If the felony is a violent felony, as defined
in subdivision (c) of Section 667.5, the person shall be punished by an additional term of
10 years.” The subdivision further provides that “any person who violates this
subdivision in the commission of a felony punishable by imprisonment in the state prison
for life shall not be paroled until a minimum of 15 calendar years have been served.”
(§ 186.22, subd. (b)(5).)
18
The probation officer advised the trial court of the extensive criminal history
defendant had amassed by the time he was 36: “[D]efendant has twenty felony
convictions, three of which are for auto theft, three for receiving stolen property, two for
26
Defendant contends that we must apply the logic of People v. Lopez, supra,34 Cal.4th 1002 (Lopez) and remand for resentencing because “[t]he trial court erred
when it imposed separate 10-year gang enhancements on each of ten counts carrying
indeterminate life terms; instead, as to each such count, the trial court should have
imposed a minimum parole eligibility term of 15 years.” This appears to be an issue of
first impression.
As framed by the Supreme Court, the sole issue in Lopez was “whether a
gang-related first degree murder, which is punishable by a term of 25 years to life, carries
an additional 10-year enhancement under . . . section 186.22(b)(1)(C) or, alternatively, a
15-year minimum parole eligibility term under section 186.22(b)(5).” (Lopez, at 1004.)
The starting point of the court’s analysis was that “Section 186.22, subdivision (b)(1)(C)
(section 186.22(b)(1)(C)) imposes a 10-year enhancement when such a defendant
commits a violent felony. Section 186.22(b)(1)(C) does not apply, however, where the
violent felony is ‘punishable by imprisonment in the state prison for life.’ ” (Ibid.) After
examining the history and purpose of the statute, particularly the words “punishable by
imprisonment in the state prison for life” in subdivision (b)(5), and its own decisions, the
court concluded: “It therefore appears that the Legislature intended section 186.22(b)(5)
to encompass both a straight life term as well as a term expressed in years to life (other
than those enumerated in subdivision (b)(4)) and therefore intended to exempt those
crimes from the 10-year enhancement in subdivision (b)(1)(C).” (Id. at p. 1007.)
In doing so, the court rejected the Attorney General’s argument that “the phrase
‘punishable by imprisonment . . . for life’ in section 186.22(b)(5) is ambiguous in that it
could apply to all life terms (including terms of years to life), as defendant contends, or
merely ‘straight’ life terms, which require only a minimum of seven years of
kidnapping [in addition to the current convictions] . . . . [¶] He has eight misdemeanor
convictions, three of which are for possessing a controlled substance and one each for
assault, vandalism, receiving stolen property, hit and run, and evading police. [¶] As a
juvenile, the court sustained one felony charge of attempted robbery. [¶] The juvenile
court sustained four misdemeanor charges of weapon on a school campus, attempted auto
theft, vandalism, and unlicensed driver.”
27
incarceration before a defendant becomes eligible for parole (§ 3046). The Attorney
General claims that . . . section 186.22(b)(5) applies only to straight life terms and
therefore does not apply to first or second degree murder.” The court similarly rejected
the argument of amicus California District Attorneys Association that “section
186.22(b)(5) could apply to a term of years to life, but only as long as the minimum term
is less than 15 years, and therefore does not apply to first or second degree murder.”
(Lopez, at p. 1007.)
“The more relevant legislative history, in our view, is that surrounding the
enactment of the STEP Act [the Street Terrorism Enforcement and Prevention Act]
in 1988, which stated repeatedly that section 186.22, former subdivision (b)(3) (now
subdivision (b)(5)) applied to ‘any life prison term.’ ” (Lopez, at 1010.)
“In sum, at the time the STEP Act was enacted, the predecessor to section
186.22(b)(5) was understood to apply to all lifers, except those sentenced to life without
the possibility of parole. Contrary to the People’s naked assertion, we find no indication
that the voter-approved amendment in June 1998 to section 190, subdivision (e), which
eliminated postsentence credits and thereby increased the MEPD [minimum eligible
parole date] for first and second degree murderers, impliedly altered the meaning of
‘a felony punishable in the state prison for life’ in that predecessor provision. [Citation.]
We likewise find no indication that Proposition 21, which reenacted the predecessor
provision without substantive change and renumbered it as subdivision (b)(5), impliedly
restricted its reach. Finally, we find no support for CDAA’s contention that the
Legislature or the voters intended the applicability of subdivision (b)(1)(C) and
subdivision (b)(5) to ‘shift, depending upon the current minimum parole eligibility term
for murder, and whether or not section 3046 can have an effect.’ We find instead that the
plain language of section 186.22(b)(5) governs and therefore conclude that the Court of
Appeal erred in applying the 10–year gang enhancement to defendant’s first degree
murder conviction.” (Lopez, at 1010–1011.)
The Attorney General concedes that for the ten counts “application of the One
Strike law made the sentence for each . . . an indeterminate life term.” Nevertheless the
28
Attorney General initially labored heroically to persuade us that Lopez does not doom the
ten-year gang enhancements.
The Attorney General first pointed to People v. Montes (2003) 31 Cal.4th 350(Montes), arguing that it supports imposition of the ten-year enhancements. This reliance
is misplaced. Montes plainly holds “section 186.22(b)(5) applies only where the felony
by its own terms provides for a life sentence.”19 (Id. at p. 352.) In other words, a life
term cannot be created by aggregating the imprisonment for the felony and an
enhancement (which in Montes was a 25 years to life enhancement for personally
inflicting great bodily injury with a firearm added to a term of seven years for attempted
murder). But just as the first degree murder in Lopez provided for a 25 years to life term,
so do “alternative sentencing scheme[s]” such as the Three Strikes law and section
19
The Supreme Court in Montes also spoke of the “punishable by imprisonment in
the state prison” language of section 186.22, subdivision (b)(5) as being limited to “the
underlying felony itself” (Montes, at pp. 353, 357) and “the felony provision itself.”
(Id. at pp. 358–359.) The Attorney General placed considerable stress on these
formulations, the clear implication being that rape, sodomy, oral copulation, and sexual
penetration do not qualify because sections 261, 286, 288a, and 289 do themselves
specify that any of these offenses is punishment by a life term (e.g., “appellant was
convicted of ten counts that were . . . . all felonies that by themselves are punished by
determinate sentences. [Citations.] [A]pplication of the One Strike Law made the
sentence for each of these counts an indeterminate life term.”). The Penal Code is
peppered with statutes defining crimes, with the punishment for those crimes being laid
down in other statutes. The most obvious example is murder, which is defined in
section 187, divided into degrees in section 189, and punished according to sections 190,
190.03, 190.05, 190.2, and 190.25. If the Attorney General was suggesting that the
statutes defining and specifying the punishment for an offense cannot be read together,
such an approach is patently unreasonable and unworkable. We do not believe in Montes
the Supreme Court intended to endorse anything this impractical when it made the
statement quoted in the text.
It is true that in Montes the Supreme Court disapproved of the Court of Appeal
“look[ing] to a different section of the Penal Code . . . not incorporated in the language of
the felony provision . . . , in order to find that the felony provided for a life term.”
(Montes, at pp. 358–359.) However, we believe this language was meant to apply to the
penalty vs. enhancement dichotomy (discussed post), and not to situations where an
offense is defined in one statute and punished according to another.
29
667.61 (People v. Anderson (2009) 47 Cal.4th 92, 102), the latter being used here to
impose eight 25 years to life terms and two 15 years to life terms.
The Attorney General next saw assistance in People v. Jones (2009) 47 Cal.4th
566 (Jones), but that decision is no more helpful than Montes. As the Supreme Court
explained: “[T]he life term imposed in Montes under section 12022.53 was a sentence
enhancement, whereas in this case the life term was imposed under section 186.22(b)(4),
a penalty provision.”20 (Id. at p. 577, fn. 5.) “The difference between the two is subtle
but significant. ‘Unlike an enhancement, which provides for an additional term of
imprisonment, [a penalty provision] sets forth an alternate penalty for the underlying
felony itself . . . .’ ” (Id. at p. 578.) Here, the “alternate penalty for the underlying felony
itself” comes from section 677.61, making the additional 10 years under section 186.22,
subdivision (b)(1)(C) indisputably an enhancement.
This was largely the approach taken in People v. Williams (2014) 227 Cal.App.4th
733 (Williams), which involved a number of 25 years to life Three Strikes sentences
20
The subdivision provides: “Any person who is convicted of a felony
enumerated in this paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members, shall, upon conviction of that felony, be
sentenced to an indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of: [¶] (A) The term determined by the
court pursuant to Section 1170 for the underlying conviction, including any enhancement
applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any
period prescribed by Section 3046, if the felony is any of the offenses enumerated in
subparagraph (B) or (C) of this paragraph. [¶] (B) Imprisonment in the state prison
for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215;
a felony violation of Section 246; or a violation of Section 12022.55. [¶] (C)
Imprisonment in the state prison for seven years, if the felony is extortion, as defined in
Section 519; or threats to victims and witnesses, as defined in Section 136.1.”
This was the basis for the 15 years to life sentence for the carjacking. Concerning
that count, the jury sustained the allegation that the offense was committed for the benefit
of a gang, but the trial court did not impose a ten-year enhancement on top of the
indeterminate term.
30
enhanced with 10-year enhancements under section 186.22, subdivision (b)(1)(C). The
Court of Appeal construed Lopez to prohibit the enhancements:
“In this case, defendant received sentences of 25 years to life. These sentences
of 25 years to life constitute life sentences within the meaning of section 186.22,
subdivision (b)(5). [(Lopez, supra, at 1007.)] These life sentences resulted from the
application of the Three Strikes law. The Three Strikes law is a penalty provision, not an
enhancement. It is not an enhancement because it does not add an additional term of
imprisonment to the base term. Instead, it provides for an alternate sentence (25 years to
life) when it is proven that the defendant has suffered at least two prior serious felony
convictions. . . .
“In light of Jones’s direction that the phrases ‘[a]ny felony punishable
by . . . imprisonment in the state prison for life’ (§ 12022.53, subd. (a)(17)) and ‘a felony
punishable by imprisonment in the state prison for life’ (§ 186.22, subd. (b)(5)) ‘should
be construed similarly’ (Jones, at 577), it follows that because defendant’s life sentences
are the result of a penalty provision, he has been convicted of ‘felon[ies] punishable by
imprisonment in the state prison for life’ (§ 186.22, subd. (b)(5)). The trial court
therefore erred in imposing the 10-year gang enhancements pursuant to section 186.22,
subdivision (b)(1)(C).” (Williams, at 744–745.)
The Attorney General attempts to distinguish Williams as “inapplicable” because it
did not involve section 667.61, and because it “followed Jones’s penalty versus
enhancement paradigm without inquiry into the objectives of the Three Strikes Law, thus
failing to take into account that its decision precludes recidivists who commit violent
offenses from being punished for also committing those offenses on behalf of a gang.
[Citations.] This court should decline to adopt that analysis in the context of the One
Strike Law. Because the STEP Act and the One Strike Law serve separate objectives,
applying Jones without more would ignore one of the statutes even though appellant
meets the criteria of both.” And as for Lopez, the Attorney General distinguished it on
the grounds that it “analyzed the language at issue for an entirely different purpose,” and
did not “apply” section 667.61.
31
In light of the double-handful of consecutive life terms to which defendant was
sentenced under section 667.61, it can hardly be said that he is escaping punishment in
any genuine sense. In sentencing defendant according to the terms of that statute, the
trial court was obviously attempting to comply with the directive in subdivision (f) that
defendant be sentenced in such a manner as to receive the “greater penalty.” The
objective of punishing violent sex offenders who have a gang connection or motivation is
no less important than punishing murderers who have a gang connection or motivation.
It is not soft-heartedness or myopia that led the Lopez, Jones, and Williams courts to
reach the conclusion they all did. Those results were the product of the “plain and
unambiguous” language of section 186.22 concerning what qualifies as a life term.
(See Lopez, at 1006–1007; Williams, at 742.) We think Williams is soundly reasoned, no
surprise given that its author, Justice Willhite, is a noted authority on sentencing. And we
note that other authorities appear to agree. (See Couzens et al., Sentencing California
Crimes (The Rutter Group 2013) ¶ 21:7, p. 21-5 (rev. 7/2015) [“The enhancement
provisions of section 186.22(b)(1) may not be applied when the defendant receives a life
sentence . . . .”].)
As for the junction between sections 186.22 and 667.61, and the enhancement vs.
penalty distinction of Jones,21 the Supreme Court already had considered it as applied to
section 667.61: “[T]he One Strike law is not . . . a sentence enhancement. ‘A sentence
enhancement is “an additional term of imprisonment added to the base term.”
[Citation.]’ ([People v. Jefferson (1999) 21 Cal.4th 86,] 101.) The 25-year minimum
term of the One Strike law ‘does not fall within [this] definition of an enhancement,
because it is not an “additional term of imprisonment” and it is not added to a “base
term.” ’ (Ibid. [holding that 15-year minimum term under § 186.22, subd. (b)(4), is not
21
Which, we note, the Supreme Court reiterated in another decision filed on the
same day as Jones: “Nothing in this opinion should be read as undermining the validity
of the strict distinction this court has drawn in the past between sentence enhancements
and penalty provisions in other contexts.” (People v. Brookfield (2009) 47 Cal.4th 583,
595.)
32
an enhancement].) Rather, it ‘sets forth an alternate penalty for the underlying felony
itself, when the jury has determined that the defendant has satisfied the [statute’s]
conditions . . . .’ (Jefferson, supra, at p. 101.) Thus, the One Strike law does not
establish an enhancement, but ‘sets forth an alternative and harsher sentencing scheme
for certain enumerated sex crimes’ when a defendant commits one of those crimes under
specified circumstances. [Citations.]” (People v. Acosta (2002) 29 Cal.4th 105, 118.)
Moreover, “relevant legislative history confirms that the Legislature did not intend the
One Strike law to establish an enhancement.” (Id. at p. 119.)
The Attorney General naturally drew our attention to two passages from that
opinion: “[T]he One Strike law establishes a floor—a minimum term a qualifying
defendant must serve—but does not require sentencing under the statute to the exclusion
of any other sentencing provisions, or preclude imposing a total sentence that is greater
than the term of the One Strike law when other factors warrant greater punishment.”
(People v. Acosta, supra, 29 Cal.4th 105, 124.) “[B]ecause the Three Strikes law and the
One Strike law serve separate objectives, ignoring one of these statutes where a defendant
meets the criteria of both would defeat one of the Legislature’s objectives.” (Id. at
p. 127.) Replace “the Three Strikes law” with “the STEP Act,” and the Attorney General
sees the latter passage as clearly allowing the 10-year enhancements to remain on the life
terms.
If these constituted the only words, or the last ones, from our Supreme Court, they
would cause us to pause. But they are neither. These expressions were not made with
any consideration of section 186.22, much less the impact of its subdivision (b)(5). The
language precedes Lopez, and frankly cannot be squared with Lopez’s construction of
subdivision (b)(5) as precluding a 10-year enhancement to a life term. If the Supreme
Court meant these passages to have the meaning attributed by the Attorney General, it
would have figured prominently in a Lopez opinion that reached the opposite conclusion.
In plain effect, because it is an alternative sentencing scheme, section 667.61
establishes penalties for specified offenses. It identifies a number of situations which,
depending on the number of circumstances in aggravation, will be punished with a base
33
term of either 15 or 25 years to life. (§ 667.61, subds. (a) & (b); People v. Anderson,
supra, 47 Cal.4th 92, 102.) Thus, section 667.61 addresses situations “where the felony
by its own terms provides for a life sentence,” meaning that section 186.22,
subdivision (b)(5) does apply. (See Montes, supra, at 352.) Unlike Montes, this is a
situation where one statute defines the crime and specifies the penalties, all of which are
life terms. We reject the Attorney General’s former reasoning that subdivision (b)(5) is
immaterial because defendant’s “ten convictions . . . were not themselves life offenses,
but [only] made life offenses by the One Strike Law.” (See fn. 20, ante.) Those ten
sentences constitute terms “punishable by imprisonment in the state prison for life,”
language construed in Lopez as precluding a 10-year enhancement under section 186.22,
subdivision (b)(1)(C). We are therefore compelled to conclude that the trial court erred
in sentencing defendant to a consecutive 10-year term of imprisonment on each of the life
terms to which defendant was sentenced.22
There remains the issue of remedy. In Lopez the Supreme Court decided that “the
sentence must be modified to delete the 10-year gang enhancement imposed under Penal
Code section 186.22(b)(1)(C).” (Lopez, at 1011.) Because the defendant in Lopez had
been convicted of a single substantive offense, the modification could be accomplished at
the appellate level. (Cf. People v. Arauz (2012) 210 Cal.App.4th 1394, 1405 [judgment
affirmed as modified after Court of Appeal struck 10-year enhancements on two counts].)
Here, however, we are dealing with a sentence enhancement attached to at least 10
counts. Perhaps in recognition of this complicating reality, defendant asks that the cause
22
Nevertheless, we acknowledge that the issue was a novel and thorny one with
which the court and both counsel grappled. The prosecutor stated that “it took about five
district attorneys and a representative from the AG’s Office to try to calculate the correct
sentence for Mr. Salvador . . . .” Defendant’s sentencing was originally set for February,
but was continued to May so that all concerned could try to find the solution. It is clear
from the sentencing hearing that the trial court’s ten-page statement of reasons was
written in advance and read into the record. The court erred, but it was certainly not from
lack of diligence or reflection.
34
be remanded for resentencing. The Attorney General does not oppose this procedure.23
We also believe that providing the trial court with a fresh opportunity for sentencing is
most efficient and respectful solution.
DISPOSITION
The sentence is vacated and the cause is remanded for the sole purpose of
resentencing in accordance with this opinion. The judgment of conviction is affirmed in
all other respects.
23
The careful reader may have noted that the past tense has been used with respect
to the Attorney General’s position on this sentencing issue. The reason for the unusual
phrasing requires explanation. Both sides waived oral argument. Because we were
concerned that an issue of this magnitude should receive the most consideration possible,
we directed the parties to present oral argument on the sentencing issue. Upon further
reflection on the matter, Senior Assistant Attorney General Jeffrey M. Laurence advised
that, “after careful reconsideration,” the Office of the Attorney General was withdrawing
its opposition to defendant’s argument. “Instead, we agree with appellant’s claim that the
sentences on the counts in question are indeterminate life terms as a consequence of the
application of section 667.61, and that section 186.22, subdivision (b)(5) governs. We
therefore acknowledge the trial court erred in imposing the ten 10-year terms pursuant to
section 186.22, subdivision (b)(1)(C).” We commend the Office of the Attorney General,
and Mr. Laurence, for this approach to their professional responsibilities to this court and
to the People of the State of California.
35
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A142488; People v. Salvador
36
Trial Court: Contra Costa Superior Court
Trial Judge: Honorable Susanne M. Fenstermacher
Attorneys for Plaintiff and Respondent: Kamala D. Harris, Attorney General,
Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Catherine A.
Rivlin, Supervising Deputy Attorney
General, and Roni Dina Pomerantz, Deputy
Attorney General
Attorneys for Defendant and Appellant: Stephen B. Bedrick, under appointment by
the Court of Appeal
37