People v. Hargis CA5 ( 2015 )

Filed 8/25/15 P. v. Hargis CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Consolidated Cases Nos.
Plaintiff and Respondent, F067352 & F068398
v. (Super. Ct. No. BF130354B)
DARYL HARGIS,
OPINION
Defendant and Appellant.
THE PEOPLE, F067598
Plaintiff and Respondent, (Super. Ct. No. BF130354A)
v.
SARON GREEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant Daryl Hargis.
Robert Derham, under appointment by the Court of Appeal, for Defendant and
Appellant SaRon Green.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Larenda R. Delaini and R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Daryl Hargis and SaRon Green (Hargis and Green; collectively, defendants) were
indicted by grand jury, along with other individuals, on multiple charges arising out of an
incident in which a police officer was shot and wounded. Prior to trial, the other
individuals apparently resolved their cases. Defendants were then tried together, but
before separate juries.
Hargis’s jury convicted him, as charged, of attempted murder of a peace officer
engaged in the lawful performance of his duties (Pen. Code,1 §§ 187, subd. (a), 664,
subd. (e); count one), assault with a semiautomatic firearm on a peace officer (§ 245,
subd. (d)(2); count two), attempted second degree robbery (§§ 212.5, subd. (c), 664;
count three), conspiracy to commit second degree robbery (§ 182, subd. (a)(1);
count four), and active participation in a criminal street gang (§ 186.22, subd. (a);
count seven). As to counts one through four, the jury found the offense was committed
for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)), and
that a principal in the offense personally and intentionally discharged a firearm, causing
great bodily injury (§ 12022.53, subds. (d) & (e)(1)). Hargis was sentenced to a total
unstayed term of two years plus 57 years to life in prison. His sentence subsequently was
recalled, and he was resentenced to a total unstayed term of 16 months plus 57 years to
life in prison.
1 Further statutory references are to the Penal Code unless otherwise stated.
2.
Green’s jury convicted him, as charged, of premeditated attempted murder of a
peace officer engaged in the lawful performance of his duties (§§ 187, subd. (a), 189,
664, subd. (e); count one), assault with a semiautomatic firearm on a peace officer (§ 245,
subd. (d)(2); count two), attempted second degree robbery (§§ 212.5, subd. (c), 664;
count three), conspiracy to commit second degree robbery (§ 182, subd. (a)(1); count
four), possession of a loaded firearm in public by a gang member (former § 12031,
subd. (a)(2)(C), now § 25850, subd. (c)(3); count five), and active participation in a
criminal street gang (§ 186.22, subd. (a); count seven). As to counts one through four,
the jury found the offense was committed for the benefit of or in association with a
criminal street gang (§ 186.22, subd. (b)), and that Green personally and intentionally
discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)). As to counts
five and seven, the jury found Green personally used a firearm, and personally inflicted
great bodily injury, in commission of the offense. (§§ 12022.5, subd. (a), 12022.7,
subd. (a).) Green was sentenced to a total unstayed term of eight years plus 65 years to
life in prison.
We consolidated defendants’ appeals. We now hold: (1) the evidence was
sufficient to support the attempted robbery convictions; (2) the trial court did not err by
refusing to sever the gang counts and/or bifurcate the gang enhancements; (3) any error in
admitting certain gang evidence was harmless; (4) section 654 does not require that
sentence on count three be stayed; and (5) section 3051 removes any constitutional
infirmity from defendants’ sentences. Accordingly, we affirm the judgments.
FACTS
I
PROSECUTION EVIDENCE
Evidence Heard by Both Juries
3.
On September 20, 2009, Richard San Miguel was living on Edmonton Street by
the alley behind a 7-Eleven store.2 Late that night, he was taking out the trash when he
saw two men in hoodies. The movement caught his eye; there was rarely any activity in
the alley at that time of night, and no one else was around. In addition, it was a warm
night, and the men were wearing sweatshirts with the hoods up. The men quickly took
off toward the 7-Eleven in response to the opening of San Miguel’s garage door, and he
called the police.
At approximately 11:30 that night, Bakersfield Police Officers Aleman and
Stringer heard a radio call about several subjects wearing hooded sweatshirts being seen
to the rear of the 7-Eleven between Stine Road and Edmonton Street, just south of Wilson
Road.3 The store’s location was just down the street, and the officers responded to the
parking lot just west of the store, in front of Cesar’s Delicatessen. Both officers were in
uniform; Stringer was driving their marked patrol vehicle.
Upon exiting the patrol vehicle, the officers found a walkway on the west side of
the 7-Eleven, next to Cesar’s Delicatessen, then a gate that led into an alley and parking
area to the rear (south) of the 7-Eleven. Because the initial call stated a subject was seen
going inside the business, Stringer decided to go toward the front of the store while
Aleman checked the rear. They separated, but were never more than 15 feet apart.
Aleman saw a subject walking northbound toward the open gate. The person was
wearing a dark-colored sweatshirt with the hood up, and his face was also covered.
When he saw Aleman, he turned around and ran. He did not stop when Aleman told him
to do so; Aleman gave chase. The person ran south toward the alley, then disappeared
around a corner.
2 Unspecified references to dates in the statement of facts are to the year 2009.
3 It was warm enough that evening that Aleman and Stringer were wearing short-
sleeved shirts.
4.
Aleman’s attention was drawn to his left (east) by movement that turned out to be
a subject running east toward where the alley intersected Edmonton Street. It appeared
the person was going to turn south. Aleman saw this person only briefly and could only
describe him as wearing a dark-colored sweatshirt.
Aleman’s attention was immediately caught by a third subject about 10 feet to his
left. This person — Green — was also wearing a dark-colored sweatshirt. He had his
hood up and his face covered. He was standing at an angle and bringing up a pistol and
pointing it at Aleman. He fired, and the bullet struck Aleman in the left thigh. Aleman
went down to one knee, drew his weapon, and fired multiple shots as Green turned and
ran.
Aleman was out of Stringer’s field of vision when Stringer heard him yell, “stop.”
As Stringer turned around, he heard a gunshot from a smaller caliber weapon than the
.40-caliber firearms the officers were carrying. Stringer saw Aleman go down on one
knee, raise his firearm, and begin firing. Stringer ran in Aleman’s direction until he could
see Green, who was wearing dark-colored clothing and a hooded sweatshirt.4 Although
Green was moving away in a sideways run, he still had a firearm directed at Aleman.
Stringer began firing. Green turned and began to run, but was shot several times and fell
to the ground in the alley. He dropped his firearm when he fell. The gun, a .380-caliber
semiautomatic pistol, contained three rounds of ammunition in the magazine and one live
round in the firing chamber.
Meanwhile, Bakersfield Police Officers Abshire and Cason also responded to the
7-Eleven. Abshire dropped Cason off on the southwest corner of Wilson and Stine so he
could set up a perimeter if the subjects ran west through the alley. Abshire had originally
planned to set up the east perimeter on Edmonton in case the subjects ran east through the
4 At the same moment he saw Green, Stringer also saw the third individual. That
person was running eastbound, and continued on out of the alley.
5.
alley, but exited her vehicle when she heard one gunshot that sounded like a pop,
followed by a succession of multiple gunshots that were louder than the first shot.
Stringer radioed that there was an officer down and three subjects, one running east, one
running west, and one down.
Abshire ran south on Stine to the west side of Cesar’s Delicatessen and peeked
around the corner into the alley. She saw Stringer and Green farther down the alley.
Green was on the ground. She also saw a male subject — Hargis — wearing a light gray
sweatshirt with a hood pulled over his head, running southbound and making a
westbound turn into the alley. He appeared to be trying to stay low to the ground while
he was running. Abshire stepped out from behind the building and began running toward
him. At some point, she drew her firearm. She told him to get down on the ground.
Eventually, he went prone on the ground. She holstered her weapon and handcuffed him.
She did a quick “protection sweep” of his body to make sure he did not have any
concealed weapons. She found none and had not seen or heard him drop or throw
anything. However, parts of a BB (replica) gun were found near his location in the
alley.5 The device was not operational.
Aleman suffered an entry wound on the upper inside thigh. The bullet traveled
through his leg, passing within millimeters of his femoral artery, and exited his left
buttock. Ten .40-caliber shell casings and one .380-caliber shell casing were located at
the scene.
5 Stringer first saw Hargis rounding the corner of the business to the west of the
7-Eleven. Hargis was running in a westerly direction, and Stringer lost sight of him. As
Stringer was advancing toward Green after Green was on the ground, Hargis came back
into Stringer’s field of vision. Stringer ordered him to get down. Hargis got on the
ground and announced he was down. Hargis also threw something on the ground.
Stringer was aware Cason and Abshire arrived at some point, but did not see them take
Hargis into custody.
6.
In addition to the hooded sweatshirt, Hargis was wearing a tied bandanna partially
covering his chin and neck area. A tied blue and white bandanna was found among
clothing cut off Green by medical personnel at the scene. A black knit ski mask was
found along Edmonton Street, between some bushes. A black hooded sweatshirt was
found on Treanna Avenue, off Edmonton Street. In the front pocket were two socks and
a pillowcase.
Evidence Heard Only by Hargis’s Jury
On September 21, Bakersfield Police Detective Eddy spoke with Green at Kern
Medical Center. Green related that he grew up in the East Side Crips neighborhood, and
that he had been an East Side Crip for several years. Green explained that nearly all his
friends were East Side Crip members, as were a number of his family members. He
named some of them; Eddy was familiar with them and knew them to be East Side Crip
members. Green also said the gang’s color was royal blue, and he named the different
subsets of, or cliques within, the East Side Crips. One was the Spoonie G’s, of which he
said he was a member. Another was the Project Crips, with whom he said he was
associated. Green related that he had been shot at on three different occasions. He
named two of those he said had shot at him; one was a Country Boy Crip, and another
was a West Side Crip. Green said he would not go to particular areas of town because of
his gang affiliation. Asked if he had any gang-related tattoos, Green pointed to a tattoo
on his arm that looked like a Chevrolet emblem with “805” in it and “Kern County”
written in script within the tattoo.
Bakersfield Police Detective Mills interviewed Hargis several hours after the
incident, and again two days later. During the first interview, Hargis was wearing blue
shoes and shorts.
During the first interview, Mills was trying to ascertain the identity of the third
individual who was not apprehended at the scene. Mills ultimately determined this
person was Kristopher Fanning. When Mills asked Hargis if the person was Kristopher
7.
Fanning, however, Hargis gave a physical description and said the person’s name was
Josh. Hargis added that this person was most likely an East Side Crip, because he was an
associate of Green, who was Hargis’s cousin and an East Side Crip before he moved to
Santa Maria. Hargis said Josh was the mastermind of the plot to rob the 7-Eleven.
Hargis said they walked to the store from the bus terminal. While they were walking,
Green showed Hargis that he had a firearm. They all had on hoodies, with bandannas
around their necks to be pulled up over their faces. Hargis had a BB pistol. Josh went
back and forth from the rear of the store to the front several times to see how busy the
store was. Josh said they should rob the customers as well as the store.6
During the second interview, Hargis said they got a ride from Geneva Fanning,
who was Hargis’s girlfriend and Josh’s (Kristopher Fanning’s) sister. Hargis said she
parked east of the store, just south of the alley, and waited in the car. Hargis said they did
not rob the 7-Eleven because the police came.
Hargis first related that when the police arrived and confronted them, Hargis lay
down and discarded his BB pistol, and heard shots being exchanged between the police
and Green. Later, he said Green shot at the officer first and the officer returned fire. In
the second interview, Hargis said the officers shot Green first and Green fired back in
self-defense.7 Hargis said the BB gun he had did not work. Also in the second interview,
Hargis changed from saying they were going to rob the 7-Eleven, to saying they were
there to meet someone to buy marijuana. Because Green did not trust the seller, Hargis
had the BB pistol to scare the person if things did not go right. Hargis said he was
wearing a hooded sweatshirt because it was cold.
6 At one point, Hargis called Josh “Chris,” but said he had misspoken.
7 By the time of the second interview, the Fannings had been arrested. During this
interview, Hargis confirmed the identities of his accomplices.
8.
Bakersfield Police Officer Ronk testified as a gang expert. He explained that the
East Side Crips was by far the largest Black gang in Bakersfield, with close to 1,000
members. Members associated with the color royal blue, and had particular hand signs
that they used for identification. Rival gangs were the West Side Crips, the Country Boy
Crips, and the Bloods. Some of their primary activities were murder, robbery, theft-
related incidents like auto theft, and narcotics transactions. They also liked to engage in
witness intimidation. There were various subsets of the East Side Crips, which were
simply smaller geographical groups within the larger boundaries of the gang as a whole.
Ronk explained that in gang culture, including that of the East Side Crips,
reputation was basically respect, and respect was how the gang was structured. Someone
who had more respect had more rank within the gang. Thus, when a crime was
committed by the gang, respect was the ultimate goal of the crime. Different types of
crimes garnered different degrees of respect, with crimes such as robbery, assaults with
firearms, and murder resulting in greater respect from fellow gang members. Ronk could
think of no greater respect symbol than murdering a police officer.8
According to Ronk, the East Side Crips were engaged in a continuing pattern of
criminal conduct. Based on his training, experience, and conversations with members of
the gang and of the community, he opined this fact was common knowledge to members
of the gang and of the community.
Ronk explained that, in rendering an opinion whether a crime was gang related, he
considered four things with respect to the offense itself and three things with respect to
the offender. With respect to the offense, he looked at whether it was a primary activity
8 Ronk was shown a photograph of Anthony Hodge, an East Side Crip with whom
he was familiar. Hodge had tattoos on his abdomen that read “Fucc the police,” “187”
(the Penal Code for murder), and “BPD.” Ronk explained that the odd spelling was the
result of Crips not putting “c” and “k” together, because “ck” meant “Crip killer” to
Bloods and was used to show disrespect toward Crip gangs.
9.
of the gang, particularly whether it was something that would benefit the gang (for
instance, burglary of a residence that might result in procuring firearms, or an offense that
would intimidate the public); whether the offense was committed alone or with a group,
because involvement of a group increased the chances of success and the brazenness of
those involved, and allowed those involved to witness the actions of the others and report
on that to the gang, thus giving more credence and respect, and also allowed more
experienced gang members essentially to train newer members; who was involved in the
crime, and were any of the people gang members; and the manner in which the
participants chose to carry out the offense (for instance, by wearing a symbolic mask or
bandanna, or colors that represented a gang and so identified and spread the word about
what gang committed the crime). With respect to the perpetrator, Ronk looked at what
the person said (for instance, did he or she admit to being a gang member or somehow
show, in conversation, gang affiliation); whether the person’s actions spoke louder than
his or her words (for instance, if the person denied being a gang member but was wearing
gang clothing, doing a primary offense of the gang, or associating with gang members);
and with whom the person associated (for instance, if the person continually chose to
surround him- or herself with gang members or nongang members).9
Ronk explained that firearms were a respect symbol within the East Side Crips.
Because a lot of the gang’s members were not allowed to have firearms because of their
criminal past, those who possessed firearms were respected. Because a firearm could be
used for offensive and defensive purposes, the members who possessed one were the
ones who were called on to resist, or to defend the gang’s territory from a rival gang’s
encroachment.
9 Ronk explained that every member of a criminal street gang was an associate.
Members were those who chose to become active participants in criminal behavior.
10.
Ronk opined that Geneva Fanning and Kristopher Fanning were active members
of the East Side Crips.10 Geneva Fanning pled guilty to participation in a criminal street
gang, namely the East Side Crips. Kristopher Fanning was depicted in photographs
displaying knowledge of the East Side Crips and the Spoonie G subset, wore clothing
representative of the East Side Crips, and had engaged in criminal activity with others
that was indicative of East Side Crip membership. His moniker was “Lil’ Bone.”
Based on Green’s conversation with Eddy, Ronk also opined Green was a member
of the East Side Crips. In addition, Green had an “805” tattoo on his forearm. The
number was the old area code for Kern County. Ronk had never seen that tattoo worn by
a nongang member. Green’s moniker was “Maniac.”
Hargis (with whom Ronk had had contact in the past) associated himself with
members of the East Side Crips prior to the date of the charged offenses. For instance, he
was contacted with Karl Fanning, Kristopher Fanning’s brother, who was a member of
the East Side Crips and had been arrested for several gang-related offenses.11 In
addition, Geneva Fanning, an admitted member of the East Side Crips, was Hargis’s
girlfriend. In Ronk’s opinion, the moment Hargis actively participated in the charged
offenses, he moved from merely being an associate to being an active participant and a
member. In addition, when Hargis initially was booked into custody in this case, he did
10 The parties stipulated that the ski mask recovered in this case was tested for DNA.
Both defendants were excluded as contributors. However, Kristopher Fanning’s DNA
profile was located on the item.
11 In 2006, Karl Fanning was arrested in the company of Brian Brookfield for
stealing a car. Brookfield, a member of the East Side Crips, murdered someone in West
Side Crip territory a month later. Just prior to the stolen car incident, Karl Fanning,
Kristopher Fanning, Brian Brookfield, Gerald Ward, and another person were in a car in
which two firearms were located. Ultimately, Kristopher Fanning admitted shooting at a
Country Boy Crip’s house. In Ronk’s opinion, Karl Fanning was a member of the East
Side Crips.
11.
not claim affiliation. When he was moved to the jail in 2011, however, he asked to be
housed with Crips.
Ronk explained that an East Side Crip would not commit a violent crime with
someone who was not a member of that gang. Such crimes carry the most risk, and so a
gang member would commit them with someone he or she could trust, namely, another
member.
Ronk testified concerning offenses that were unrelated to this case but committed
by East Side Crip members. On January 21, Tyrone Pogue and four others were in a
vehicle. Police tried to conduct a vehicle stop in the area of Roy’s Market. As the
vehicle stopped, Pogue ran. He was later arrested and found to be in possession of a
firearm. All five who were in the vehicle were convicted of either possession of a
firearm, gang enhancements, or being an accessory. In Ronk’s opinion, those offenses
were committed in association with a criminal street gang.
On December 11, 2007, police found Mikko James, a West Side Crip, who had
been shot and killed. Police determined Jake Ward, an East Side Crip, had killed James
in retaliation for James having killed Joshua Ward, another East Side Crip. Shortly after,
Hargis was in the traditional boundaries of the East Side Crips when he was the victim of
a drive-by shooting.
In response to a hypothetical question based on the prosecution’s evidence in the
present case, Ronk opined the offense was committed in association with known,
admitted members of the East Side Crips, and was committed for the benefit of, in
furtherance of, or in association with the East Side Crips. Ronk pointed to the
involvement of four people; the gang-related clothing; the bandanna around the face, a
“bold statement”; the fact everyone involved had a job; the manner in which the offense
was committed, with a subject being “brazen enough to point a firearm at a police officer
and shoot that police officer point-blank face-to-face”; and the fact robbery was a
primary activity of the East Side Crips and so the perpetrators would gain respect from
12.
the offense. The gang would benefit through the notoriety they would gain in the public
and the intimidation factor. Ronk explained that shooting a police officer was “in a
category of its own” because it did not happen very often. It was “the ultimate thing” a
gang member could do for a gang.
Evidence Heard Only by Green’s Jury
Eddy spoke to Green about gang membership. Green related that he had grown up
on the east side of Bakersfield since he was seven years old. He said he was living in
Santa Maria currently, but came home every weekend and returned to the east side, on
Kincaid Street, with his mother. Green named all the streets on which he had lived; Eddy
knew them to be within East Side Crip territory.
Green said all his friends were East Side Crips, as were a number of his relatives,
and he named some of those people for Eddy. Green said he was a member of the
Spoonie G clique of the East Side Crips, and that he also associated with another East
Side Crip subset, the East 11th Street Project Crips. He explained that he grew up around
the gang and so was allowed to be a member without being jumped in. He named the
various subsets of the East Side Crips. He related that the gang’s color was royal blue,
and talked a little about his involvement in the gang, including how he had been shot at
on at least three different occasions by members of rival gangs, including the Country
Boy Crips and the West Side Crips. Green stated he stayed away from Country Boy Crip
and West Side Crip neighborhoods. Asked if he had any gang-related tattoos, Green
pointed to a tattoo on his forearm in the shape of a Chevrolet emblem with the number
805 and “Kern County” on it.
Eddy asked about what happened in this present case. Green said he had been at
his girlfriend’s residence on Actis Street, just around the corner from the 7-Eleven, when
he decided to go to the store to get a soda. He made his purchase, then when he was
walking out of the store along the west of the business in the back, he saw someone he
recognized as Little Kris, i.e., Kristopher Fanning. Kristopher Fanning was smoking a
13.
marijuana cigar known as a blunt, and the two shared it behind the store. Someone Green
knew as Daryl was standing nearby.
Green related that while he was smoking the blunt with Fanning, he saw a police
officer walking quickly toward him along the side of the business. The officer pointed a
gun at him and told him to get his hands up. Green said he reached into his pocket to get
a dollar out, to show the officer he had a dollar. When he started reaching in the pocket,
the officer shot at him, so he started to run. The officer then shot him again, and Green
started to go down. As he did so, he saw a .380-caliber firearm on the ground. He tried
to tell the officer it was not his.
When Eddy explained a gunshot residue test had already been done on Green’s
hands and, as a ruse, stated gunshot residue had been found, Green responded that he had
fired a shotgun earlier in the day. Asked if his fingerprints or DNA would be found on
the .380, Green replied that he had had a .380 two months earlier, and it was possible the
gun found could have his DNA if it was the same .380 he had owned a couple months
earlier.
Ronk testified as a gang expert. He explained that the actual number of members
of the East Side Crips was unknown, but it was by far the largest Black gang in
Bakersfield, with close to 1,000 members. Rival gangs were the West Side Crips, the
Country Boy Crips, and the Bloods. The East Side Crips got their start from gang
members who came from Los Angeles, so a number of East Side Crip members had
family members in Los Angeles.
Ronk explained that the East Side Crips associated with the color royal or dark
blue. The color was utilized as an identifier, so that, when committing a crime, members
of the gang could identify other members, and people familiar with gang styles would
know that gang was committing the crime. Ronk explained the East Side Crips also used
certain hand signs to identify themselves.
14.
Ronk explained that the East Side Crips had five subsets, known within the gang
as the five nations. The subsets were smaller groupings, by geographical area, within the
large territory of the East Side Crips. Kristopher Fanning and Green were from the
Spoonie G subset.
According to Ronk, the primary activities of the East Side Crips were shootings,
robberies, burglaries, theft-related offenses, and narcotics transactions. They also liked to
engage in witness intimidation and auto theft. Ronk explained that committing such
crimes elevated an individual’s reputation among other members of the gang. The more
crimes an individual committed, the more status that person gained within the gang, so
the more say that person would have as to what went on in the gang. Within the gang,
people with more respect had more rank. Different crimes yielded different amounts of
status; murdering a police officer would be “the ultimate” in that regard. The ultimate
level of respect a person could get among the East Side Crips would be to shoot a cop. 12
Ronk gave examples of other offenses committed by East Side Crip gang members
that were unrelated to this case. On September 11, 2007, Jake Ward, an East Side Crip
12 The jury was shown a photograph of Anthony Hodge, whom Ronk had arrested in
the past but who had no specific involvement in this case. According to Ronk, Hodge
was affiliated with the East Side Crips. On his abdomen were the tattoos “Fucc the
police,” “187,” and “BPD.” Ronk explained that 187 was the Penal Code for murder, and
that “Fucc” was spelled that way because Crip gangs will not use “ck.” “Ck” stands for
Crip Killer and is a sign of disrespect among Blood gang members for Crips.
In response to defense counsel’s question why Hodge would have a “Fucc the
police” tattoo, Ronk explained there was a mindset among East Side Crips, who were
taught from a very young age that resistance against the police was important, and that if
East Side Crip members engaged the police and another East Side Crip did not help them
out, it was a sign of disrespect. Therefore, resistance to the police was almost expected.
As an example, Ronk described how, shortly before trial, he got into a confrontation
where he had to expedite units, because a “mob” of East Side Crip members started
gathering and he thought he was “going to get lynched.” Ronk related that because
Hodge had the tattoo but was arrested without a fight, he was beaten up in prison, as he
had a tattoo representing a certain way, but then “chickened out in the end.”
15.
member, shot and killed Mikko James, a West Side Crip, in retaliation for James
murdering Ward’s cousin a year earlier. Ward was convicted and sentenced to prison. In
Ronk’s opinion, the offense was committed for the benefit of, in furtherance of, or in
association with the East Side Crips.
On January 21, Tyrone Pogue and four others were in a vehicle. When police
officers tried to stop the vehicle, Pogue ran from the vehicle in front of Roy’s Market,
which was in the middle of East Side Crip territory. He was caught and found to be in
possession of a firearm. All those in the car were convicted of firearm possession or
being an accessory. In Ronk’s opinion, the offense was committed for the benefit of, in
furtherance of, or in association with the East Side Crips.
Ronk explained that firearms were very significant in the gang. Because they
were not easy to obtain lawfully if someone had a felony record, they usually were
procured by criminal means, such as residential burglary, and then distributed among the
gang’s members. Firearms were also a status symbol; the person with the firearm was the
one who was expected to defend the gang and take action against a rival gang.
According to Ronk, the East Side Crips engaged in a continuing pattern of
criminal conduct. Based on his training, experience, and conversations with members of
the gang and of the community, that fact was common knowledge to members of the
gang and the community.
In determining whether an offense was gang related, Ronk considered four things.
The first was the type of offense and whether it was a primary activity of the gang. The
second was whether the offense was committed by an individual or a group. With a
group, the chance of success was increased, the group could multitask, the group could
adapt more easily to unexpected contingencies, and other members could watch the
activities of the people involved in the crime, such as older or more experienced members
taking younger members along. In addition, there was the intimidation factor where a
group was involved. The third factor was who committed the crime, particularly if those
16.
individuals were admitted, documented, or known gang members. The final factor was
the manner in which the crime was committed, including whether the participants wore
gang clothing or something symbolic such as a colored bandanna.
With respect to the present case, Ronk found it significant that a group of at least
three people implemented a plan by arriving on scene with dark clothing and bandannas
on their faces, and armed with readily identified firearms.13 The group came prepared to
do a primary activity of the East Side Crips wearing the colors of that gang.
With respect to the perpetrators themselves, Ronk looked at three factors. First,
did the people admit gang affiliation? Second, did their actions speak louder than their
words? And third, with whom did they associate?
Ronk found it particularly significant that Green admitted gang membership. In
addition, a lot of older gang members tended to have an “805” tattoo, and Ronk had never
known a nongang member to have that tattoo. Green’s moniker — the name given him
by the gang or that he earned — was “Maniac.” In addition, when being booked into
custody, Green claimed affiliation with the East Side Crips. Taking everything into
account, Ronk opined that Green was an active member of the East Side Crips at the time
of the present offense.
With respect to Hargis, his gang affiliation was determined by the people with
whom he associated, his involvement in this case, and his involvement in things after this
case. Although initially, Hargis did not want to be housed with anyone separately while
in custody, in 2011, he requested to be housed with Crips. While Ronk considered
Hargis “definitely” an associate of the East Side Crips, there was not enough evidence, in
terms of the factors Ronk identified, to say he was an active member. The moment
13 To Ronk, it did not matter whether the firearm was real, because it would be
perceived as real by the victims.
17.
Hargis chose to become an active participant in the charged crimes, however, he became
an active member.
Hargis opined that Kristopher Fanning was an active member of the East Side
Crips.14 Kristopher Fanning had been arrested for primary activities of the gang, he had
been arrested in the company of several associates, and there was a photograph of him
throwing up the Spoonie G sign and wearing Spoonie G colors.
In response to a hypothetical question that tracked the prosecution’s evidence in
this case, Ronk opined the offense benefitted the East Side Crips, or at least was in
association with gang members.
II
DEFENSE EVIDENCE
Evidence Heard by Both Juries
Jeanne Spencer of the Kern Regional Crime Laboratory examined a gunshot
residue kit taken from Green two hours and 41 minutes after the incident. She did not
detect any gunshot residue.15
The parties stipulated two ballistic items were analyzed by the Kern Regional
Crime Laboratory. The first, a .380 shell casing, was found in the alley behind the
7-Eleven. The second, a bullet, was located along the east wall of the delicatessen next to
the 7-Eleven. Chris Snow of the Kern Regional Crime Laboratory compared the bullet to
14 The parties stipulated the black ski mask recovered in this case was tested for
DNA. Both defendants were excluded as contributors to the DNA. However, Kristopher
Fanning’s DNA profile was found on the ski mask.
15 The laboratory will only examine a kit taken from a live individual within three
hours of when the firearm was used, because gunshot residue — which is simply a light
powdering on the hands that will be lost with any sort of movement or washing of the
hands — is not expected to be found on a live individual after three hours. Even if the
sample is collected within three hours of when the firearm was used, there is no guarantee
gunshot residue will be present in the sample.
18.
some test firings made with the .380-caliber pistol in this case. He determined the test
fires and the bullet evidence were fired by the same firearm.
Evidence Heard Only by Hargis’s Jury
Bakersfield Police Officer Ursery was assigned to the Gang Unit when this case
was first investigated. In part, he interviewed Tryrone Berry, an East Side Crip whom
Ursery had known for some time. Asked if Kristopher Fanning was a gangster, Berry
responded affirmatively. Asked if he considered Green to be an East Sider, Berry said he
considered Green to be associating with the East Side Crips. Asked if he considered
Hargis to be an East Sider, Berry replied, “no. He is a square. He doesn’t gang-bang.”
Nevertheless, Ursery rendered an opinion to the grand jury as an expert that Hargis
was an active member of the East Side Crips. During his investigation, he did not find
that Hargis had a moniker, and did not document any tattoos. However, he found a
number of things that contradicted Berry’s position on the matter, particularly Hargis’s
association with the Fannings and Green, all of whom were active members of the East
Side Crips. In Ursery’s opinion, Hargis associated with the East Side Crips until the
current offenses, whereupon, as a result of his commission of the crimes with known
gang members, he became an active participant in the gang.
Shanika Hargis, Hargis’s sister, was in the kitchen one day in December 2007,
cooking dinner with Hargis.16 Their cousin was visiting, and their little brother was
asleep on the couch. Shanika went into the other room to take a telephone call from her
boyfriend. As she was walking into the room, her cousin called that he was going home
and would see them all later. Almost instantly, she heard someone yell, “East,” and then
she heard gunshots. She and her mother met in the hall, and Hargis pushed their mother
down and told them to stay down because someone was shooting at the house. Shanika
16 For clarity and brevity, we refer to Ms. Hargis by her first name. No disrespect is
intended.
19.
realized she had been shot in the leg. Later, her mother told her Hargis also had been
shot.17
Harlan Hunter, a licensed investigator and adjunct professor at Bakersfield
College, testified as a gang expert. Hunter opined that the East Side Crips are a criminal
street gang as defined in California law. Historically, they have been involved in
homicides, burglaries, robberies, possession and sales of narcotics, carjackings, drive-by
shootings, and other felonies.
After reviewing a number of items in this case, Hunter formed the opinion that on
the day of the events in this case, Hargis was not a member of the East Side Crips. He
based this opinion on the absence of tattoos on Hargis. Historically, East Side Crip
members have tattooed themselves with a number of symbols representing the gang and
its various subsets. Hunter also found no photographs or video recordings in which
Hargis was depicted with other East Side Crip gang members, flashing gang signs.
Hunter likewise found no literature (graffiti or other writing) or paraphernalia tying
Hargis to the East Side Crips. In addition, Hunter based his opinion on Ursery’s report of
his interview of Tryrone Berry. Hunter also considered a report, dated October 29, 2010,
that was generated by a detention officer at the jail. In the report, the officer related that
he was approached by Hargis, who reported he was under threat from Northerners and
Southerners because they wanted to recruit him into their gangs, but he said he did not
gang-bang.18 Finally, Hunter noted that Hargis had a bandanna at the time of the crime.
17 Bakersfield Police Officer Coleman testified in rebuttal that he responded to the
shooting call. When he interviewed Shanika, she stated she was asleep and woke to her
mother screaming to get on the floor. She said when she sat up in bed, she was shot in
the knee. She then lay on the floor until officers arrived. When Coleman asked if she
had seen or heard anything, she said no, because she was asleep before the shooting
occurred. During the course of his investigation, Coleman did not hear anything about
anyone mentioning “East” or “East Side” during the incident.
18 Hunter usually interpreted the terms “Northerner” and “Southerner” to mean
Norteño and Sureño Hispanic gangs. Neither recruits African-Americans into their
20.
It had no relationship to the East Side Crips. In addition, he had a toy gun. Hunter found
it highly unusual for a gang like the East Side Crips to plan an event in which one of their
members was present with a replica or toy gun. Moreover, Hargis appeared to be totally
unprepared for what actually occurred. When the police arrived, he ran and left his
coparticipants, thereby not showing the alliance that would be expected from a criminal
street gang member.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Green contends, with Hargis joining, that the evidence was insufficient to support
a conviction for attempted robbery.19 We disagree.
The legal principles are settled. The test of sufficiency of the evidence is whether,
reviewing the whole record in the light most favorable to the judgment below, substantial
evidence is disclosed such that a reasonable trier of fact could find the essential elements
of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal. 3d 557, 578;
accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that
evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra,
at p. 578.) An appellate court must “presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970)
3 Cal. 3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver
(1973) 10 Cal. 3d 542, 548), reappraise the credibility of the witnesses, or resolve factual
conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96
gangs. Hunter surmised that Hargis may have been approached because he had Hispanic
features to his appearance.
19 In our consolidation order, we deemed defendants to have joined in one another’s
arguments to the extent those arguments are beneficial to them. Although not expressly
stated in the order, we also deem the Attorney General’s responses to apply to both
defendants where such joinder occurs.
21.
Cal.App.3d 353, 367). “Where the circumstances support the trier of fact’s finding of
guilt, an appellate court cannot reverse merely because it believes the evidence is
reasonably reconciled with the defendant’s innocence. [Citations.]” (People v. Meza
(1995) 38 Cal. App. 4th 1741, 1747.) This standard of review is applicable regardless of
whether the prosecution relies primarily on direct or on circumstantial evidence. (People
v. Lenart (2004) 32 Cal. 4th 1107, 1125.)
Defendants were convicted, in count three, of attempted robbery of a clerk at the
7-Eleven. “Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished by
means of force or fear.” (§ 211.) A clerk on duty at a store has constructive possession
of the store owner’s property for purposes of the robbery statute. (See People v. Scott
(2009) 45 Cal. 4th 743, 746, 754-755.)
“An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a;
see § 664 [prescribing punishment for attempt].) Thus, “to be convicted of attempted
robbery, the perpetrator must harbor a specific intent to commit robbery and commit a
direct but ineffectual act toward the commission of the crime. [Citation.]” (People v.
Lindberg (2008) 45 Cal. 4th 1, 27.)
“Other than forming the requisite criminal intent, a defendant need not commit an
element of the underlying offense. [Citations.]” (People v. Medina (2007) 41 Cal. 4th
685, 694.) “‘[A] defendant’s intent … may be inferred from all of the facts and
circumstances disclosed by the evidence. [Citation.]’ [Citation.]” (People v. Castaneda
(2011) 51 Cal. 4th 1292, 1326.) “The act must go beyond mere preparation, and it must
show that the perpetrator is putting his or her plan into action, but the act need not be the
last proximate or ultimate step toward commission of the substantive crime. [Citation.]”
(People v. Kipp (1998) 18 Cal. 4th 349, 376.) “[T]he line between mere preparation and
conduct satisfying the act element of attempt often is difficult to determine; the problem
22.
‘is a question of degree and depends upon the facts and circumstances of a particular
case.’ [Citation.]” (People v. Watkins (2012) 55 Cal. 4th 999, 1021.) “[T]he act must
represent ‘“some appreciable fragment of the crime.”’ [Citations.]” (Ibid.)
Defendants say the evidence at best shows preparation to commit some sort of
crime, but not necessarily robbery and not necessarily robbery of the 7-Eleven. They say
the evidence shows neither a specific intent to rob nor a direct act toward commission of
the crime.
The evidence adduced at trial is set out at length, ante. From it, jurors reasonably
could have concluded defendants were originally in an alley behind the 7-Eleven, where
there rarely was any activity so late at night. Green was armed with a loaded firearm;
Hargis had an inoperable, but realistic-looking, replica BB gun; and Kristopher Fanning
was in possession of a pillowcase that could be used to carry the loot from a robbery.
Hargis and Green were wearing hooded sweatshirts and face coverings, and Kristopher
Fanning was wearing a ski mask, on a night when it was much too warm for such
apparel. Hargis had his face covered as he walked toward the gate in the fence between
the 7-Eleven and neighboring delicatessen. He was walking northbound, the direction of
the 7-Eleven. The 7-Eleven was open, as the police dispatcher was able to contact the
clerk; the delicatessen was closed.
From the foregoing, jurors reasonably could have found defendants intended to
rob the 7-Eleven, and that their conduct went beyond mere preparation.20 Putting on a
hooded sweatshirt, tying a bandanna around one’s neck, and going to the vicinity of the
target may constitute mere preparation. Pulling up the sweatshirt’s hood, covering one’s
20 In addition to the foregoing, Hargis’s jury learned Hargis admitted being part of a
plot to rob the 7-Eleven. From his statement, they reasonably could have concluded
Kristopher Fanning went back and forth from the rear of the store to the front several
times to see how busy it was, and that Geneva Fanning acted as a getaway driver. They
did not rob the 7-Eleven because the police came.
23.
face with the bandanna, and approaching the target with a firearm or what appears to be a
firearm ready for use in enforcing one’s demands (whether through shooting or
intimidation) go beyond merely preparatory acts and are sufficient for attempt. (See, e.g.,
People v. Anderson (1934) 1 Cal. 2d 687, 689-690; People v. Vizcarra (1980) 110
Cal. App. 3d 858, 861-863.) This is so despite the fact neither defendant actually entered
the store. (See People v. Dillon (1983) 34 Cal. 3d 441, 456, fn. 4; United States v.
Stallworth (2d Cir. 1976) 543 F.2d 1038, 1039-1040, 1041.)
II
GANG-RELATED ISSUES
A. Refusal to Sever and Bifurcate
Green contends, with Hargis joining, that the trial court erred and violated due
process by refusing to sever the gang-related counts (counts five and seven) and bifurcate
the gang-enhancement allegations (counts one through four). We find no abuse of
discretion or denial of due process.
1. Background
Hargis moved, in limine, for severance of count seven. He argued the gang
evidence was inadmissible with respect to the remaining counts and unduly
inflammatory, and that the prosecution was using the gang charge to bolster a weak case
against Hargis on the other counts. During the hearing on in limine motions, the court
stated it interpreted the request as seeking bifurcation of “the gang charges from the
substantive offenses.” (Italics added.) Counsel for Hargis confirmed that was correct,
and counsel for Green joined in the motion. Asked to respond, the prosecutor stated:
“Just that gang is alleged as a lesser offense, and it’s relevant to motive. And I believe
that even if the Court bifurcated it, it would come in anyway.”
The court denied the motion, stating: “It does appear to the Court, based on the
Indictment that the People have alleged, not only as enhancements, the gang allegations,
but in addition a substantive offense involving a gang allegation. And consistent with the
24.
People’s theory to prove motive and intent, as just represented by counsel, the Court will
find that the probative nature of this information outweighs the prejudicial effect, since it
is part and parcel of the People’s theory in this case. [¶] Additionally, any substantive
offense of gang involvement is charged in this case, there would be cross-admissibility of
that information, which would minimize the otherwise prejudicial value and heighten the
probative effect of this information.”
Counsel for Hargis argued there would be no cross-admissibility on the attempted
murder charge. The court responded that its ruling would stand. It explained:
“[T]he difficulty that the Court would have, and it’s not from a practical
standpoint, it is recognizing that the Indictment includes an enhancement
involving the gang enhancement. In addition to that there are also weapons
enhancements as related pursuant to Penal Code Section 12022.53(d)
and (e)(1).
“The Court recognizes that, under that particular theory, the jury
must reach a determination and evidence will therefore be presented as it
relates to gang involvement to make that particular enhancement
applicable.
“To the extent that it would be difficult to redact or bifurcate, the
Court acknowledges the People’s theory in this case. And it is upon the
People’s theory, as well as the substantive gang enhancement charge in
Count 7, that the Court spoke of the cross-admissibility.
“If the Court were to separate it, it would be very confusing to the
jury in determining in which manner to receive the evidence, as well as
reaching any potential verdicts, especially as to the enhancements alleged
regarding the gang enhancements involving weapons specifically.”
The gang-related evidence that was admitted at trial is set out in detail in the
statement of facts, ante. While Ronk was testifying before Green’s jury, the trial court
instructed jurors:
“Ladies and gentlemen, as it relates to this witness, Officer Ronk
testifying, you may consider the evidence of gang activity only for the
limited purpose of deciding the gang-related crimes and enhancements
alleged in this case.
25.
“As it relates to statements directly from the defendant to Detective
Eddy at the time it was presented, you can consider that for the truth of the
matter stated since it was a statement directly from the defendant to
Detective Eddy.
“But as it relates to this witness testifying, you can only consider his
testimony as it relates to deciding whether the gang-related crimes and
enhancements have been proven.”
Defendants’ juries were separately instructed at the conclusion of evidence. Each
was told:
“You may consider evidence of gang activity only for the limited
purpose of deciding whether the defendant acted with the intent, purpose,
and knowledge that are required to prove the gang-related crimes and
enhancements charged or the defendant had a motive to commit the crimes
charged.
“You may also consider this evidence when you evaluate the
credibility or believability of a witness and when you consider the facts and
information relied on by an expert witness in reaching his or her opinion.
“You may not consider this evidence for any other purpose. You
may not conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit crime.”21
2. Analysis22
21 The last word of the oral instruction given Hargis’s jury was “crimes.”
22 We reject the Attorney General’s claim of forfeiture based on Green’s failure to
request severance of count five and defendants’ failure to request bifurcation of the
enhancement allegations. It is clear, from the trial court’s comments, that the court
treated the motion as encompassing all gang charges and allegations. Moreover, in light
of the court’s ruling, any further request for severance or bifurcation would have been
futile. (See People v. Suff (2014) 58 Cal. 4th 1013, 1062, fn. 13; People v. Abel (2012) 53
Cal. 4th 891, 916.) Because we find no forfeiture, we need not address Green’s claim, in
which Hargis joins, that if a more specific motion or objection was required, counsel was
ineffective for not making it. (See People v. Coffman and Marlow (2004) 34 Cal. 4th 1,
101, fn. 33.)
To the extent defendants argue the trial court’s denial of their motion had the legal
consequence of violating due process, we further reject the Attorney General’s assertion
defendants’ due process claims were forfeited on appeal by failure to argue them in the
trial court. (See People v. Partida (2005) 37 Cal. 4th 428, 431.)
26.
Technically speaking, substantive counts are severed, while enhancement
allegations are bifurcated. (People v. Burnell (2005) 132 Cal. App. 4th 938, 946, fn. 5.)
Turning first to the legal principles applicable to the issue of severance, there is no
dispute that the offenses charged in the present case satisfied the statutory requirements
for joinder. (§ 954.)23 “When, as here, the statutory requirements for joinder are met, a
defendant must make a clear showing of prejudice to establish that the trial court abused
its discretion in denying the defendant’s severance motion. [Citations.]” (People v.
Mendoza (2000) 24 Cal. 4th 130, 160-161.) In exercising its discretion, the trial court
“weighs ‘the potential prejudice of joinder against the state’s strong interest in the
efficiency of a joint trial. [Citation.]’ [Citation.]” (People v. Merriman (2014) 60
Cal. 4th 1, 37.) In determining whether the trial court abused its discretion, we consider
the following factors: “(1) the cross-admissibility of the evidence in separate trials;
(2) whether some of the charges are likely to unusually inflame the jury against the
defendant; (3) whether a weak case has been joined with a strong case or another weak
case so that the total evidence may alter the outcome of some or all of the charges; and
(4) whether one of the charges is a capital offense, or the joinder of the charges converts
the matter into a capital case. [Citation.]” (People v. Mendoza, supra, 24 Cal.4th at
p. 161.) The burden is on the defendant to establish the trial court’s ruling exceeded the
counts of reason, all of the circumstances being considered. (People v. Merriman, supra,
60 Cal.4th at p. 37; People v. Giminez (1975) 14 Cal. 3d 68, 72.)
A determination the evidence was cross-admissible “ordinarily dispels any
inference of prejudice. [Citations.]” (People v. Marshall (1997) 15 Cal. 4th 1, 28.)
23 Section 954 provides, in pertinent part: “An accusatory pleading may charge two
or more different offenses connected together in their commission, … under separate
counts.… [T]he court in which a case is triable, in the interests of justice and for good
cause shown, may in its discretion order that the different offenses or counts set forth in
the accusatory pleading be tried separately.…”
27.
“‘[T]he issue of cross-admissibility “is not cross-admissibility of the charged offenses but
rather the admissibility of relevant evidence” that tends to prove a disputed fact.
[Citations.]’ [Citation.]” (People v. Capistrano (2014) 59 Cal. 4th 830, 849.) Moreover,
complete (so-called two-way) cross-admissibility is not required. (Ibid.) Conversely,
“‘the absence of cross-admissibility does not, by itself, demonstrate prejudice.
[Citation.]’ [Citation.]” (People v. Vines (2011) 51 Cal. 4th 830, 856.) “The state’s
interest in joinder gives the court broader discretion in ruling on a motion for severance
than it has in ruling on admissibility of evidence. [Citation.]” (People v. Cummings
(1993) 4 Cal. 4th 1233, 1284.)
An appellate court evaluates claims a trial court abused its discretion by denying a
motion for severance “in light of the showings made and the facts known by the trial
court at the time of the court’s ruling. [Citations.]” (People v. Merriman, supra, 60
Cal.4th at pp. 38-39.) Even if the ruling was correct when made, however, reversal will
be required if “the joint trial resulted in such gross unfairness as to amount to a due
process violation. [Citation.]” (People v. Capistrano, supra, 59 Cal.4th at p. 853.)
Turning to bifurcation, section 1044 gives a trial court discretion to bifurcate
proceedings. (People v. Calderon (1994) 9 Cal. 4th 69, 74-75.)24 With respect to
whether bifurcation of gang enhancement allegations generally should be ordered, the
California Supreme Court has distinguished between a prior conviction allegation, which
relates to the defendant’s status and may have no connection to the charged offense, and a
criminal street gang allegation, which “is attached to the charged offense and is, by
definition, inextricably intertwined with that offense.” (People v. Hernandez (2004) 33
24 Section 1044 provides: “It shall be the duty of the judge to control all proceedings
during the trial, and to limit the introduction of evidence and the argument of counsel to
relevant and material matters, with a view to the expeditious and effective ascertainment
of the truth regarding the matters involved.”
28.
Cal.4th 1040, 1048 (Hernandez).) Because of this difference, less need for bifurcation of
a gang enhancement allegation usually exists. (Ibid.)
This does not mean bifurcation should never be ordered, however. (Hernandez,
supra, 33 Cal.4th at p. 1049.) “The predicate offenses offered to establish a ‘pattern of
criminal gang activity’ [citation] need not be related to the crime, or even the defendant,
and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation.
Moreover, some of the other gang evidence, even as it relates to the defendant, may be so
extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the
jury to convict regardless of the defendant’s actual guilt. [¶] In cases not involving the
gang enhancement, [the Supreme Court has] held that evidence of gang membership is
potentially prejudicial and should not be admitted if its probative value is minimal.
[Citation.] But evidence of gang membership is often relevant to, and admissible
regarding, the charged offense. Evidence of the defendant’s gang affiliation — including
evidence of the gang’s territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, rivalries, and the like — can help prove identity, motive, modus
operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt
of the charged crime. [Citations.] To the extent the evidence supporting the gang
enhancement would be admissible at a trial of guilt, any inference of prejudice would be
dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.)
The court went on to say that “[e]ven if some of the evidence offered to prove the
gang enhancement would be inadmissible at a trial of the substantive crime itself — for
example, if some of it might be excluded under Evidence Code section 352 as unduly
prejudicial when no gang enhancement is charged — a court may still deny bifurcation.”
(Hernandez, supra, 33 Cal.4th at p. 1050.) The court analogized the issue to the
severance of charged offenses, in which judicial economy is a factor to be considered.
(Ibid.) “‘When the offenses are joined for trial the defendant’s guilt of all the offenses is
at issue and the problem of confusing the jury with collateral matters does not arise. The
29.
other-crimes evidence does not relate to [an] offense for which the defendant may have
escaped punishment. That the evidence would otherwise be inadmissible may be
considered as a factor suggesting possible prejudice, but countervailing considerations
that are not present when evidence of uncharged offenses is offered must be weighed in
ruling on a severance motion. The burden is on the defendant therefore to persuade the
court that these countervailing considerations are outweighed by a substantial danger of
undue prejudice.’ [Citation.]” (Ibid.) The court recognized that “[t]he analogy between
bifurcation and severance is not perfect” (ibid.), but concluded that “the trial court’s
discretion to deny bifurcation of a charged gang enhancement is … broader than its
discretion to admit gang evidence when the gang enhancement is not charged.
[Citation.]” (Ibid.)
In the present case, there was no evidence of intergang rivalry or retaliation, as is
often seen in cases in which evidence of gang membership is relevant to motive. (See,
e.g., People v. McKinnon (2011) 52 Cal. 4th 610, 654-655; People v. Carter (2003) 30
Cal. 4th 1166, 1194-1195.) Nevertheless, and contrary to Green’s assertions, at least
some of the gang evidence was relevant to show Green’s motive for shooting a police
officer. Moreover, the evidence was relevant to whether the attempted murder was a
natural and probable consequence of robbery, as far as Hargis was concerned, and
whether defendants were guilty of the charged conspiracy. This being the case, the
evidence would have been admissible even if the gang charges and enhancement
allegations had been tried separately. (See, e.g., People v. Montes (2014) 58 Cal. 4th 809,
859; People v. McKinnon, supra, 52 Cal.4th at p. 655; People v. Zambrano (2007) 41
Cal. 4th 1082, 1129, disapproved on another ground in People v. Doolin (2009) 45 Cal. 4th
390, 421, fn. 22; People v. Carter, supra, 30 Cal.4th at p. 1194; People v. Burnell, supra,
132 Cal.App.4th at p. 947; People v. Gonzalez (2005) 126 Cal. App. 4th 1539, 1550;
People v. Funes (1994) 23 Cal. App. 4th 1506, 1518; People v. Superior Court (Quinteros)
30.
(1993) 13 Cal. App. 4th 12, 20-21; but see People v. Memory (2010) 182 Cal. App. 4th 835,
851-852, 858-859.)
Evidence of gang membership has a “highly inflammatory impact” (People v. Cox
(1991) 53 Cal. 3d 618, 660, disapproved on another ground in People v. Doolin, supra, 45
Cal.4th at p. 421, fn. 22) and “creates a risk the jury will improperly infer the defendant
has a criminal disposition and is therefore guilty of the offense charged” (People v.
Carter, supra, 30 Cal.4th at p. 1194). The same is true of gang-related evidence,
particularly regarding criminal activities. (People v. Bojorquez (2002) 104 Cal. App. 4th
335, 345.) Here, however, the gang evidence was no more inflammatory than the
evidence related to the other charged offenses, no evidence of uncharged criminal activity
by defendants was admitted, and only the minimum number of predicate offenses —
which were not unduly inflammatory — were presented. Significantly, both juries were
instructed they could not infer criminal disposition from the gang evidence. Moreover, in
light of the positive eyewitness identifications of defendants by police officers who
responded to the vicinity of the 7-Eleven, this is not a situation in which strong evidence
of gang affiliation and activities was coupled with a weak case on the nongang
offenses.25
In light of the foregoing, the trial court did not abuse its discretion by refusing to
sever the gang charges and/or bifurcate the gang enhancement allegations. (See People v.
Mendoza, supra, 24 Cal.4th at pp. 161-162; People v. Burnell, supra, 132 Cal.App.4th at
pp. 947-948.) For the same reasons, the trial court’s denial of severance and/or
bifurcation did not result in a violation of due process.
25 This was not, of course, a capital case.
31.
B. Testimony Admitted Before Hargis’s Jury Only
Hargis contends the trial court erred by admitting certain gang evidence, which he
says was inflammatory and of minimal relevance, before his jury. We conclude any error
was harmless.
1. Background
The prosecutor began his examination of Ronk, the People’s gang expert, by
eliciting Ronk’s training and experience in the field of gang recognition and suppression.
During the course of that portion of Ronk’s testimony, the following occurred:
“Q Could you give us an idea of sort of what percentage of that
experience is — I don’t want to say devoted to but encompasses work with
East Side Crip gang members?
“A Of the recent past, probably the last year, I’d say the majority of
my job has been focused on the East Side Crips because they’ve been the
most active, and they are definitely, if not the most violent, they are one of
the most violent gangs in Bakersfield. And with all the recent shootings
that we’ve had and the investigations of those —
“[DEFENSE COUNSEL]: Your Honor, I will object to that. That is
beyond the scope and nonresponsive.
“THE COURT: Sustained at this point as nonresponsive.
“Q (By [the prosecutor]) Can you tell us —
“THE COURT: The answer will stand.
“[DEFENSE COUNSEL]: Ask that it be stricken.
“THE COURT: It will stand.
“Q (By [the prosecutor]) Can you tell us what recent experiences
you’ve had with the East Side Crips?
“A I’ve had several experiences. There’s shooting investigations. I
know a person that I’ve contacted several times, Kevin McMahan. He was
recently shot and killed on the freeway. He was in the company of Andrew
Ward, who I have also met on several occasions. He got shot, but he lived.
That was actually right before we started jury selection here.
32.
“Prior to that, say, February, early March, I had an incident
involving three East Side Crips that kind of scared me because I never had
anything like that happen before. Robert Ellis —
“[DEFENSE COUNSEL]: May I take this witness on voir dire as to
whether or not this is part of his opinion?
“THE COURT: You can reserve for cross-examination. [¶] … [¶]
“THE WITNESS: Robert Ellis had admitted membership to the East
Side Crips to me on a prior occasion. I knew Robert Ellis at this point —
particular point in time, he was on parole, and he was absconding from his
parole, and so he had a felony warrant for his arrest.
“Me and my partner were driving in East Side Crip territory, and I
observed Robert Ellis in the company of Tyrobe Lindsey and Brandon
Johnson, both subjects I have contacted on numerous occasions. They have
admitted to me membership in the East Side Crips. Brandon Johnson is a
very good friend of Kevin McMahan, who I said earlier had been shot and
killed.
“Now, when we saw Robert Ellis, he was in the street, and so I
pulled up next to him, and I tried to get him to stop, which he started going
towards the house. Long story short, due to actions that he was doing, I
thought that he had a firearm, and while trying to take him into custody, I
had to go hands on him because he tried to get in the car and take off. So I
wrapped him up.
“At that point Tyrobe Lindsey and Brandon Johnson actually
advanced on our position and basically physically —
“[DEFENSE COUNSEL]: I am going to object, Your Honor. It is a
narrative. It is beyond the scope. 352.
“THE COURT: Sustained as to narrative.
“Q (By [the prosecutor]) Could you tell us more about the
experiences that you’ve had with the East Side Crips. You can pick up
where you left off.
“A So Tyrobe Linds[e]y and Brandon Johnson advanced on our
position, basically put their hands up.
“[DEFENSE COUNSEL]: And it would be a 352 objection, Your
Honor.
33.
“THE COURT: Overruled.
“THE WITNESS: Said that they were going to cause physical harm
to us. Basically without cussing at you guys, they said a lot of things about
beating us up.
“At that point a large crowd had gathered, and it was the only — it
was the first time and the only time that I have ever expedited units on the
radio, got on the radio and asked for help, pretty much. That is the only
time that that’s ever happened, and it was directly related to their
membership within the gang. Normal people are not going to do that. That
was a situation in which —
“[DEFENSE COUNSEL]: Your Honor, I object to that .… It’s
mind reading, and it’s speculation, and it is in violation of the ruling in
People vs. Killebrew.[26]
“THE COURT: Overruled on that ground. [¶] Officer.
“THE WITNESS: That was an account of what recently happened.”
Later, when Ronk was giving his opinion concerning whether Hargis was an
active member of a criminal street gang, the court told jurors: “Ladies and gentlemen,
maybe this is a good time for me to admonish you that the testimony by Officer Ronk at
this time involving evidence of gang-related activity can only be considered by you for
the limited purpose of deciding the gang-related crimes and enhancements in this case.
You cannot consider it for any other purpose except for what I’ve just stated.” As
previously set out, jurors subsequently were instructed they could consider evidence of
gang activity only for the limited purpose of deciding whether Hargis acted with the
intent, purpose, and knowledge required to prove the charged gang-related crimes and
enhancements, or had a motive to commit the charged crimes; in evaluating witness
credibility; and in considering the information relied on by an expert witness in reaching
26 People v. Killebrew (2002) 103 Cal. App. 4th 644. Killebrew was disapproved on
various points in People v. Vang (2011) 52 Cal. 4th 1038.
34.
his or her opinion. Jurors expressly were told they could not conclude from the evidence
that Hargis was a person of bad character or had a criminal disposition.
2. Analysis
Hargis contends the court erred by refusing to strike Ronk’s perception of the
violent nature of the East Side Crips, because the testimony constituted inadmissible
character evidence under Evidence Code section 1101.27 He further says that testimony
and Ronk’s description of his recent violent confrontation — which was unrelated to
defendants — were highly inflammatory and only minimally probative, and so should
have been excluded pursuant to Evidence Code section 352.28 Hargis says admission of
the evidence constituted an abuse of discretion and violated his right to due process.29
The only objections Hargis raised to Ronk’s testimony about the violent nature of
the East Side Crips were “beyond the scope” and “nonresponsive.” Accordingly, he has
27 Subject to exceptions not at issue here, subdivision (a) of Evidence Code
section 1101 provides that “evidence of a person’s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.”
28 Evidence Code section 352 provides: “The court in its discretion 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.”
29 In his discussion of the standard of review, Hargis notes that a criminal defendant
has a constitutional right to present all relative evidence of significant probative value in
his favor, notwithstanding Evidence Code section 352, and so, he says, close scrutiny
must be given to rulings that impinge upon this right by erroneously either admitting or
excluding evidence to a defendant’s detriment. We are not sure what point Hargis is
trying to make, since his complaint does not concern the trial court’s exclusion of
evidence proffered by the defense. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683,
690; People v. Cunningham (2001) 25 Cal. 4th 926, 998-999.) We assume Hargis is
referring to the fact that, as the California Supreme Court has stated, a defendant’s Sixth
Amendment right to present a defense “includes the right not to have the trial court
interfere with a defendant’s ability to receive a fair trial.” (People v. Ramos (2004) 34
Cal. 4th 494, 528.)
35.
forfeited his claims of error under Evidence Code sections 352 and 1101 as to that
specific testimony. (E.g., People v. Jones (2013) 57 Cal. 4th 899, 951 [Evid. Code,
§ 1101]; People v. Edwards (2013) 57 Cal. 4th 658, 709 [Evid. Code, § 352]; People v.
Valdez (2012) 55 Cal. 4th 82, 130 [Evid. Code, § 1101], 138-139 [Evid. Code, § 352];
People v. Thornton (2007) 41 Cal. 4th 391, 430, fn. 6 [Evid. Code, § 1101].)30 We
recognize Ronk testified at an Evidence Code section 402 hearing held to establish his
qualifications as an expert and whether his opinions had a sufficient basis. At the
conclusion of the hearing, counsel for Green objected to the gang evidence in general
under Evidence Code section 352, while counsel for Hargis argued — without citing any
statutory basis — the gang evidence was “tenuous” and the expert had not presented
enough to put in front of the jury. The court undertook a balancing of probative value
versus prejudicial effect, and ruled the People could present Ronk’s testimony to the jury.
Such generalized objections following a foundational hearing are insufficient to preserve
claims of error with respect to specific pieces of testimony, particularly when that
testimony was not given at said hearing. (See People v. Rundle (2008) 43 Cal. 4th 76,
116, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421,
fn. 22; People v. Demetrulias (2006) 39 Cal. 4th 1, 22.)
In any event, assuming the trial court erred in admitting the challenged portions of
Ronk’s testimony, the error was harmless. “‘[A]n appellate court applies the abuse of
discretion standard of review to any ruling by a trial court on the admissibility of
evidence .…’” (People v. Jablonski (2006) 37 Cal. 4th 774, 824.) “Abuse may be found
if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd
manner, but reversal of the ensuing judgment is appropriate only if the error has resulted
in a manifest miscarriage of justice. [Citations.]” (People v. Coddington (2000) 23
30 It is unclear why the trial court declined to strike the response it agreed was
nonresponsive. Evidence Code section 766 requires that “answers that are not responsive
shall be stricken on motion of any party.”
36.
Cal.4th 529, 587-588, overruled on another ground in Price v. Superior Court (2001) 25
Cal. 4th 1046, 1069, fn. 13.) In other words, we apply the standard of People v. Watson
(1956) 46 Cal. 2d 818, 836, under which the erroneous admission of evidence constitutes
reversible error “only if a reasonable probability exists that the jury would have reached a
different result had this evidence been excluded. [Citations.]” (People v. Whitson (1998)
17 Cal. 4th 229, 251; see, e.g., People v. Guerra (2006) 37 Cal. 4th 1067, 1116 [erroneous
limitation of defense cross-examination of witness]; People v. Marks (2003) 31 Cal. 4th
197, 226-227 [error under Evid. Code, § 352]; People v. Prieto (2003) 30 Cal. 4th 226,
247 [erroneous admission of expert testimony]; People v. Cudjo (1993) 6 Cal. 4th 585,
611-612 [erroneous exclusion of defense third-party-culpability evidence]; People v.
Malone (1988) 47 Cal. 3d 1, 22 [error in admitting other-crimes evidence]; People v.
Davis (1963) 217 Cal. App. 2d 595, 599 [erroneous failure to strike unresponsive
answer].)
We see no reasonable probability Hargis’s jury would have reached a different
result had Ronk not been permitted to testify concerning his perception of the relative
violence of the East Side Crips in general, or his recent encounter with certain members
thereof. The gang evidence as a whole was properly admitted and not unduly
inflammatory. The prosecutor did not mention the challenged portions of Ronk’s
testimony in his arguments to the jury. As previously mentioned, jurors were given
instructions limiting their use of the evidence. We presume they followed these
instructions. (People v. Waidla (2000) 22 Cal. 4th 690, 725; People v. Archer (1989) 215
Cal. App. 3d 197, 204.)
We reject Hargis’s claim admission of the evidence had the effect of violating his
right to due process. (See People v. Partida, supra, 37 Cal.4th at p. 431.) In light of the
rest of the evidence (gang and nongang) and the limiting instructions, it simply did not
render his trial fundamentally unfair. (Compare People v. Williams (2009) 170
37.
Cal.App.4th 587, 612-613 with People v. Albarran (2007) 149 Cal. App. 4th 214, 227-
232; see Windham v. Merkle (9th Cir. 1998) 163 F.3d 1092, 1103.)
III
SENTENCING ISSUES
A. Failure to Stay Sentence on Count Three
As previously described, defendants were convicted in count three of attempted
robbery. As to Hargis, the trial court imposed (following the recall of sentence) the lower
term of 16 months, plus a five-year enhancement pursuant to section 186.22,
subdivision (b)(1), which it stayed pursuant to California Rules of Court, rule 4.447, plus
an enhancement of 25 years to life pursuant to section 12022.53, subdivisions (d)
and (e)(1). As to Green, the court imposed the upper term of three years, plus a five-year
enhancement pursuant to section 186.22, subdivision (b)(1), plus an enhancement of 25
years to life pursuant to section 12022.53, subdivision (d). As to each defendant, the
court ordered that the term imposed on count three be served consecutively to that
imposed on count one, because it found the crimes and their objectives were
predominantly independent of each other.
Defendants now contend the sentence on count three should have been stayed
pursuant to section 654.31 We disagree.
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” This statute
“prohibits punishment for two crimes arising from a single, indivisible course of conduct.
[Citation.]” (People v. Islas (2012) 210 Cal. App. 4th 116, 129, citing People v. Latimer
31 Neither defendant raised this issue in the trial court. However, an objection is not
required to preserve a section 654 claim for review on appeal. (People v. Scott (1994) 9
Cal. 4th 331, 354 & fn. 17.)
38.
(1993) 5 Cal. 4th 1203, 1208.) “Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654 depends on
the intent and objective of the actor” (Neal v. State of California (1960) 55 Cal. 2d 11, 19,
disapproved on another ground in People v. Correa (2012) 54 Cal. 4th 331, 334), not the
temporal proximity of his or her offenses (People v. Capistrano, supra, 59 Cal.4th at
p. 886).
“Where a defendant entertains multiple criminal objectives independent of and not
merely incidental to each other, he may be punished for more than one crime even though
the violations share common acts or are parts of an otherwise indivisible course of
conduct. [Citation.]” (People v. Blake (1998) 68 Cal. App. 4th 509, 512.) Whether a
defendant harbored a separate intent and objective for each offense is a factual
determination for the trial court, and its conclusion will be sustained on appeal if
supported by any substantial evidence. (People v. Osband (1996) 13 Cal. 4th 622, 730.)
On review of this issue, we consider the evidence in the light most favorable to the
judgment. (People v. Williamson (1979) 90 Cal. App. 3d 164, 172.)
In addition, even if a defendant “entertained but a single principal objective during
an indivisible course of conduct, he may nevertheless be punished for multiple
convictions if during the course of that conduct he committed crimes of violence against
different victims. [Citations.] As the purpose of section 654 ‘is to insure that defendant’s
punishment will be commensurate with his criminal liability,’ when he ‘commits an act
of violence with the intent to harm more than one person or by means likely to cause
harm to several persons,’ his greater culpability precludes application of section 654.
[Citation.]” (People v. Miller (1977) 18 Cal. 3d 873, 885, overruled on another ground in
as stated in People v. Oates (2004) 32 Cal. 4th 1048, 1067-1068, fn. 8.)
We first examine the trial court’s imposition of a consecutive sentence on count
three as to Green. Green says the shooting of Aleman was indivisible from the attempted
robbery, and so the crimes cannot be separately punished, because the shooting “was a
39.
natural and essential part of the attempted robbery, the avenue towards completion of the
robbery, and not a separate plan with a separate objective.” The Attorney General
disagrees, and argues separate punishment was proper because the two crimes involved
not only a motive of robbery, but also the separate goal of attaining respect within the
East Side Crips criminal street gang by committing the ultimate gang offense, killing a
police officer. The Attorney General also claims the multiple victim exception to
section 654 applies.
We conclude the trial court properly imposed separate punishments on Green for
the two convictions. A reasonable inference from the record is that Green and his
companions initially planned only to rob the clerk, and perhaps customers, of the
7-Eleven. When the police arrived, however, Green came up with a new idea: shooting
Aleman instead of surrendering, thereby committing an act that would garner him a great
deal of respect within his gang. Thus, substantial evidence supports the conclusion that
when Green committed the offenses, he harbored multiple criminal objectives that were
independent of, and not merely incidental to, each other. (People v. Blake, supra, 68
Cal.App.4th at p. 512; see, e.g., People v. Coleman (1989) 48 Cal. 3d 112, 162-163;
People v. Cleveland (2001) 87 Cal. App. 4th 263, 266-267, 271-272; People v. Sandoval
(1994) 30 Cal. App. 4th 1288, 1295-1296, 1299-1300; People v. Porter (1987) 194
Cal. App. 3d 34, 37-39.) Separate punishments thus were proper even assuming the
attempted robbery was not yet complete when Aleman was shot. (See People v. Young
(1992) 11 Cal. App. 4th 1299, 1311-1312.)32
32 We reject Green’s argument the People cannot claim, on appeal, that the attempted
robbery and attempted murder were separate and divisible, when they argued in the trial
court that the shooting was a natural and probable consequence of the attempted robbery.
Although Green’s jury was instructed on the natural and probable consequences theory
with respect to attempted murder, this was done in case jurors had a doubt whether Green
or Kristopher Fanning shot Aleman. In his argument to the jury, the prosecutor relied
almost exclusively on the theory Green was the actual shooter. By finding Green
personally and intentionally discharged a firearm, causing great bodily injury, within the
40.
In addition, we disagree with Green’s assertion the attempted robbery was not a
crime of violence for purposes of applying the multiple victim exception to section 654.
“‘[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim
exception to section 654 depends upon whether the crime … is defined to proscribe an
act of violence against the person.’” (People v. Solis (2001) 90 Cal. App. 4th 1002, 1023.)
Premeditated attempted murder clearly qualifies. (People v. Oates, supra, 32 Cal.4th at
p. 1063.) Pointing to section 667.5, subdivision (c), Green says attempted robbery does
not. It is true that a completed robbery, but not an attempted one, is statutorily defined as
a violent felony. (§ 667.5, subd. (c)(9).) For purposes of section 654, however, courts
have found acts or crimes of violence without reference to section 667.5, subdivision (c).
(See, e.g., People v. McFarland (1989) 47 Cal. 3d 798, 803; People v. Miller, supra, 18
Cal.3d at p. 886; People v. Solis, supra, 90 Cal.App.4th at pp. 1023-1024; People v.
Centers (1999) 73 Cal. App. 4th 84, 99-100.) In any event, section 667.5,
subdivision (c)(22) defines as a “‘violent felony’” “[a]ny violation of Section 12022.53.”
Green’s jury found true an enhancement under subdivision (d) of section 12022.53 with
respect to the attempted robbery as well as the attempted murder.
Hargis’s case stands in a somewhat different posture, because his jury was only
presented with a natural-and-probable-consequence theory of liability (albeit based on
aiding and abetting and conspiracy) on the attempted murder count. Although jurors
were instructed on the requirements for directly perpetrating attempted murder, the
prosecutor made it clear Hargis could only be convicted of that charge and count two
(assault with a semiautomatic firearm on a peace officer) under the natural and probable
consequences theory. Although whether a defendant harbored multiple intents and
objectives is a factual one for the trial court, that court “cannot countermand the jury and
meaning of section 12022.53, subdivision (d), jurors necessarily found he was indeed the
actual shooter. Under the circumstances, the People are not precluded from arguing
divisibility on appeal.
41.
make the contrary finding [defendant] in fact … had both objectives.” (People v. Bradley
(2003) 111 Cal. App. 4th 765, 770 (Bradley); compare People v. McKinzie (2012) 54
Cal. 4th 1302, 1368-1369, disapproved on another ground in People v. Scott (2015) 61
Cal. 4th 363, 391, fn. 3 with People v. Jones (2012) 54 Cal. 4th 350, 359.)
In Bradley, the defendant acted as the “‘bait’” in a scheme to lure a prosperous-
looking customer into leaving a casino so her two male accomplices could rob him. All
went according to plan until one of the men beat the victim with a firearm and then shot
him multiple times. The victim survived. The defendant was convicted of attempted
murder and second degree robbery, for which the trial court imposed consecutive
sentences. (Bradley, supra, 111 Cal.App.4th at pp. 767-768.)
On appeal, the defendant challenged the imposition of consecutive sentences.
(Bradley, supra, 111 Cal.App.4th at p. 768.) The Court of Appeal observed: “Appellant
had only one objective and one intent — to aid and abet a robbery of the victim .… She
was neither tried for nor convicted of the attempted murder charge on the theory she
intended the commission of that crime. Rather she was convicted on a theory this second
offense was a ‘natural and probable’ consequence of the offense she did intend, that is,
the robbery.” (Id. at pp. 768-769.) Under the cirumstances, the court reasoned, “without
a finding appellant at some point entertained as an independent objective the goal of
attempting to murder [the victim], … section 654 denies the trial court discretion to
impose consecutive sentences on appellant for the robbery and attempted murder
convictions. [¶] … [¶] Appellant is clearly less culpable than her male confederate who
shot [the victim] or the other male confederate who aided and abetted that second crime.
Unlike them, she only had a single criminal objective — the robbery .… Indeed she was
unaware that second crime was occurring until after it was completed and thus didn’t
have an opportunity to prevent or even protest its commission. As a result, there simply
was no evidence appellant exhibited the more dangerous mental state warranting a
consecutive sentence under … section 654.” (Id. at pp. 770-771.)
42.
The court distinguished the case of People v. Nguyen (1988) 204 Cal. App. 3d 181
(Nguyen). In that case, the defendant and an accomplice, both of whom were armed,
entered a market. The confederate escorted the clerk to a rear room and took money from
his pockets. The defendant remained up front and opened the cash register. The victim
heard the defendant shout “a Vietnamese battle phrase used when ‘someone was to kill or
be killed.’” (Id. at p. 185.) The confederate then kicked the clerk in the ribs and shot him
in the back. (Ibid.)
On appeal, the defendant claimed the trial court violated section 654 by imposing
consecutive sentences for the attempted murder and the robbery. (Nguyen, supra, 204
Cal.App.3d at p. 189.) Despite the fact the jury found the shooting to have been a natural
and probable consequence of the robbery (id. at p. 190), the Court of Appeal disagreed,
explaining: “[A] separate act of violence against an unresisting victim or witness,
whether gratuitous or to facilitate escape or to avoid prosecution, may be found not
incidental to robbery for purposes of section 654. If the trier of fact determines the
crimes have different intents and motives, multiple punishments are appropriate.” (Id. at
p. 193.)
The Bradley court distinguished Nguyen in part on the basis that there, unlike in
Bradley, “the aider and abettor of the robbery actively encouraged the shooter to kill the
victim.… [¶] As a result, applying the rationale of our opinion to Nguyen, he would still
be subject to consecutive sentencing. Ample evidence in the record of that case would
support a finding Nguyen shared his cohort’s independent objective of attacking the
victim. Indeed he evidently was the instigator of that attack. This contrasts sharply with
appellant’s role — or actually nonrole — in her cohort’s shooting of the victim here. Not
only did she not encourage the attack, she was oblivious this deviation from the original
plan was taking place until the shots rang out and the attempted murder was completed.
[¶] Obviously, Nguyen personally entertained both objectives his principal had — to rob
the store and to attack the victim. In the case before this court, it is equally obvious
43.
appellant only had a single objective — to rob the victim.” (Bradley, supra, 111
Cal.App.4th at pp. 771-772, fns. omitted.)
In the present case, the Attorney General attempts to distinguish Bradley, and
bring Hargis’s situation within the reasoning of Nguyen, by arguing both defendants
simultaneously harbored the dual motives of attempting to rob the 7-Eleven and
committing crimes to gain acceptance and status within the gang. She then says the fact
Hargis gained an elevation in gang status from associate to full member shows he
“benefitted fully from the dual motive to both rob the store and shoot the police officer.”
(Italics added.) Assuming the evidence supports the notion Hargis harbored a motive of
committing crimes to gain acceptance and status within the gang, however, it does not
support the notion he had any motive or intent to shoot a police officer.
Were the victim of the attempted robbery and the victim of the attempted murder
the same in the present case, we would find Bradley controlling. As the Attorney
General further argues, however, the multiple victim exception to section 654 applies in
the present case. Although Hargis may not have specifically intended a police officer
would be shot, the jury found he was a principal in commission of an offense in which
another principal personally and intentionally discharged a firearm, causing great bodily
injury. (§ 12022.53, subds. (d) & (e)(1).) Hargis admitted knowing, before arriving in
the vicinity of the store, that Green was armed with a firearm. Regardless of the theory
of liability, Hargis — like Green — was a principal in the commission of crimes of
violence against different victims. (See People v. Miller, supra, 18 Cal.3d at p. 885.)
Accordingly, he was properly punished for both count one and count three.
B. Cruel and Unusual Punishment
Defendants contend their sentences violate the Eighth Amendment to the United
States Constitution, because they amount to terms of life in prison without the possibility
44.
of parole (LWOP) for nonhomicide offenses, and defendants were juveniles at the time of
the crimes. We conclude section 3051 removes any constitutional infirmity.33
1. Background
Hargis’s date of birth is October 27, 1992, making him 16 years old at the time of
the offenses. Originally, he was sentenced to a total determinate term of two years, with
a consecutive indeterminate term of 57 years to life. He subsequently moved to have his
sentence recalled on the grounds the trial court did not have before it his statement in
mitigation, and imposed a sentence that violated the Eighth Amendment because it was in
effect a sentence of LWOP. The trial court granted the motion for recall. After
argument, the court observed it had not found any case in which a sentence of
approximately 60 years to life for a juvenile had been held unconstitutional. It
determined that if Hargis were sentenced to 57 years to life in prison, he would be
eligible for parole at about age 67, and so would have a substantial life expectancy after
his release. The court did find circumstances in mitigation with respect to count three,
however, and so lowered the sentence imposed on that count. As to count one, the court
imposed a total unstayed term of 32 years to life, comprised of seven years to life for the
offense plus 25 years to life for the section 12022.53 enhancement. As to count three, the
court imposed an unstayed term of 16 months for the offense plus 25 years to life for the
section 12022.53 enhancement. Sentence on the remaining counts was imposed but
stayed pursuant to section 654. Hargis’s total unstayed sentence thus was a determinate
term of 16 months, with a consecutive indeterminate term of 57 years to life.
33 The issues addressed in this portion of our opinion are on review before the
California Supreme Court in a number of cases, including In re Alatriste (2013) 220
Cal. App. 4th 1232, review granted February 19, 2014, S214652, its companion case In re
Bonilla, review granted February 19, 2014, S214960, and People v. Franklin (2014) 224
Cal. App. 4th 296, review granted June 11, 2014, S217699.
45.
Green’s date of birth is October 29, 1991, making him 17 years old at the time of
the offenses. At his sentencing hearing, he objected to imposition of a term that, he
contended, would constitute LWOP. The court rejected the argument, finding a
reasonable likelihood Green someday would be paroled. As to count one, the court
imposed a total term of 40 years to life, comprised of 15 years to life for the offense plus
25 years to life for the section 12022.53 enhancement. As to count three, the court
imposed a determinate term of eight years, comprised of three years for the offense, plus
five years for the section 186.22 enhancement, plus 25 years to life for the section
12022.53 enhancement. Sentence on the remaining counts was imposed but stayed
pursuant to section 654. Green’s total unstayed sentence thus was a determinate term of
eight years, with a consecutive indeterminate term of 65 years to life.
2. Analysis
“The Eighth Amendment to the United States Constitution applies to the states.
[Citation.] It prohibits the infliction of ‘cruel and unusual’ punishment. [Citation.]
Article I, section 17 of the California Constitution prohibits infliction of ‘[c]ruel or
unusual’ punishment.… The distinction in wording is ‘purposeful and substantive rather
than merely semantic. [Citations.]’ [Citation.] As a result, we construe the state
constitutional provision ‘separately from its counterpart in the federal Constitution.
[Citation.]’ [Citation.] This does not make a difference from an analytic perspective,
however [citation] .… The touchstone in each [provision] is gross disproportionality.
[Citations.] Whether a punishment is cruel and/or unusual is a question of law subject to
our independent review, but underlying disputed facts must be viewed in the light most
favorable to the judgment. [Citations.]” (People v. Palafox (2014) 231 Cal. App. 4th 68,
82-83.)
The United States Supreme Court “has adopted categorical bans on sentencing
practices based on mismatches between the culpability of a class of offenders and the
severity of a penalty. [Citation.]” (Miller v. Alabama (2012) 567 U.S. ___, ___ [132
46.
S.Ct. 2455, 2463] (Miller).) In Miller, the high court outlawed, as violative of the Eighth
Amendment, mandatory LWOP for juveniles convicted of murder. (Miller, supra, at
p. ___ [132 S.Ct. at p. 2469].) The court explained: “By making youth (and all that
accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme
poses too great a risk of disproportionate punishment.” (Ibid.)
In Graham v. Florida (2010) 560 U.S. 48 (Graham), the high court banned
imposition of outright LWOP sentences for juveniles convicted of nonhomicide offenses.
(Id. at pp. 52-53, 74-75.) The court stated:
“A State is not required to guarantee eventual freedom to a juvenile
offender convicted of a nonhomicide crime. What the State must do,
however, is give [juvenile] defendants … some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation. It is for
the State, in the first instance, to explore the means and mechanisms for
compliance. It bears emphasis, however, that while the Eighth Amendment
forbids a State from imposing a life without parole sentence on a juvenile
nonhomicide offender, it does not require the State to release that offender
during his natural life. Those who commit truly horrifying crimes as
juveniles may turn out to be irredeemable, and thus deserving of
incarceration for the duration of their lives. The Eighth Amendment does
not foreclose the possibility that persons convicted of nonhomicide crimes
committed before adulthood will remain behind bars for life. It does forbid
States from making the judgment at the outset that those offenders never
will be fit to reenter society.” (Graham, supra, 560 U.S. at p. 75.)
In People v. Caballero (2012) 55 Cal. 4th 262 (Caballero), the California Supreme
Court held that the proscription in Graham against LWOP for nonhomicide offenses
applies equally to sentences that are the functional equivalent of LWOP. (Caballero,
supra, at pp. 265, 268.)34 The court stated:
“[S]entencing a juvenile offender for a nonhomicide offense to a term of
years with a parole eligibility date that falls outside the juvenile offender’s
34 In Caballero, the 16-year-old defendant was convicted of three counts of
attempted murder with various enhancements, and sentenced to a total of 110 years to
life. (Caballero, supra, 55 Cal.4th at p. 265.)
47.
natural life expectancy constitutes cruel and unusual punishment in
violation of the Eighth Amendment. Although proper authorities may later
determine that youths should remain incarcerated for their natural lives, the
state may not deprive them at sentencing of a meaningful opportunity to
demonstrate their rehabilitation and fitness to reenter society in the future.
Under Graham’s nonhomicide ruling, the sentencing court must consider
all mitigating circumstances attendant in the juvenile’s crime and life,
including but not limited to his or her chronological age at the time of the
crime, whether the juvenile offender was a direct perpetrator or an aider and
abettor, and his or her physical and mental development, so that it can
impose a time when the juvenile offender will be able to seek parole from
the parole board. The Board of Parole Hearings will then determine
whether the juvenile offender must be released from prison ‘based on
demonstrated maturity and rehabilitation.’ [Citation.]” (Caballero, supra,
55 Cal.4th at pp. 268-269.)
Hargis was 20 years old at the time of his sentencing. He was awarded credit
(actual plus conduct) for 1,708 days in custody. The credit equates to over four and one-
half years. Thus, he would be incarcerated for slightly less than 54 years after
sentencing, calculated by deducting the 1,708 days of credit from his aggregate term of
58 years 4 months to life, and (leaving aside § 3051) would be eligible for parole at
around 74 years of age.35
Green was 21 years old at the time of his sentencing. He was awarded credit
(actual plus conduct) for 1,532 days in custody.36 The credit equates to slightly over four
years. Thus, he would be incarcerated for slightly less than 69 years after sentencing,
35 We are not sure on what the trial court based its determination as to when Hargis
would become parole eligible. In light of our conclusion concerning section 3051, post,
any errors in our computations concerning defendants’ parole eligibility dates are
immaterial.
36 There was some question at sentencing about when Green was transferred from
juvenile hall to jail, which could have increased his conduct credits. The probation
officer offered to recalculate the credits; upon receiving an update, the court was going to
issue a minute order with the new amount, which then would be included on the abstract
of judgment. The abstract of judgment contained in the record on appeal reflects the
credits stated above. Accordingly, we assume they were determined to have been
correctly calculated.
48.
calculated by deducting the 1,532 days of credit from his aggregate term of 73 years to
life, and (leaving aside § 3051) would be eligible for parole at around 90 years of age.
At Green’s request, we have taken judicial notice of the United States Department
of Health and Human Services Centers for Disease Control and Prevention’s National
Vital Statistics Reports, volume 61, issue 4, which was issued May 8, 2013. That report
shows the life expectancy at birth of a person in the United States in the year 2010 (the
most recent year for which such statistics appear to be available) was 78.7 years.37
According to the Social Security Administration’s Actuarial Life Table,38 the life
expectancy in 2011 for each defendant was slightly under 77 years. Under either figure,
Green, at least, could be expected to die before becoming parole eligible.
Although “[h]ow much life expectancy must remain at the time of eligibility for
parole” has not yet been determined (People v. Perez (2013) 214 Cal. App. 4th 49, 57), it
is apparent that Green’s sentence, at least, is the functional equivalent of LWOP (see,
e.g., People v. Lewis (2013) 222 Cal. App. 4th 108, 119; People v. Thomas (2012) 211
Cal. App. 4th 987, 1014-1016; People v. Argeta (2012) 210 Cal. App. 4th 1478, 1482;
People v. Mendez (2010) 188 Cal. App. 4th 47, 62-63; but see People v. Perez, supra, 214
Cal.App.4th at p. 58), and Hargis’s sentence may be. In each instance, however, the
sentence is saved from unconstitutionality by section 3051, which became effective after
defendants were sentenced. Stripped of all nonessentials, subdivision (b)(3) of that
statute makes both defendants eligible for parole in their 25th year of incarceration.39
37 Available at (as of
Aug. 24, 2015).
38 Available at (as of
Aug. 24, 2015).
39 Section 3051, which was added by Statutes 2013, chapter 312, section 4 provides:
“(a)(1) A youth offender parole hearing is a hearing by the Board of Parole Hearings for
the purpose of reviewing the parole suitability of any prisoner who was under 18 years of
age at the time of his or her controlling offense. [¶] (2) For the purposes of this section,
the following definitions shall apply: [¶] (A) ‘Incarceration’ means detention in a city or
49.
county jail, a local juvenile facility, a mental health facility, a Division of Juvenile Justice
facility, or a Department of Corrections and Rehabilitation facility. [¶] (B) ‘Controlling
offense’ means the offense or enhancement for which any sentencing court imposed the
longest term of imprisonment. [¶] (b)(1) A person who was convicted of a controlling
offense that was committed before the person had attained 18 years of age and for which
the sentence is a determinate sentence shall be eligible for release on parole at a youth
offender parole hearing by the board during his or her 15th year of incarceration, unless
previously released pursuant to other statutory provisions. [¶] (2) A person who was
convicted of a controlling offense that was committed before the person had attained 18
years of age and for which the sentence is a life term of less than 25 years to life shall be
eligible for release on parole by the board during his or her 20th year of incarceration at a
youth offender parole hearing, unless previously released or entitled to an earlier parole
consideration pursuant to other statutory provisions. [¶] (3) A person who was convicted
of a controlling offense that was committed before the person had attained 18 years of
age and for which the sentence is a life term of 25 years to life shall be eligible for release
on parole by the board during his or her 25th year of incarceration at a youth offender
parole hearing, unless previously released or entitled to an earlier parole consideration
hearing pursuant to other statutory provisions. [¶] (c) An individual subject to this
section shall meet with the board pursuant to subdivision (a) of Section 3041. [¶]
(d) The board shall conduct a youth offender parole hearing to consider release. At the
youth offender parole hearing, the board shall release the individual on parole as provided
in Section 3041, except that the board shall act in accordance with subdivision (c) of
Section 4801. [¶] (e) The youth offender parole hearing to consider release shall provide
for a meaningful opportunity to obtain release. The board shall review and, as necessary,
revise existing regulations and adopt new regulations regarding determinations of
suitability made pursuant to this section, subdivision (c) of Section 4801, and other
related topics, consistent with relevant case law, in order to provide that meaningful
opportunity for release. [¶] (f)(1) In assessing growth and maturity, psychological
evaluations and risk assessment instruments, if used by the board, shall be administered
by licensed psychologists employed by the board and shall take into consideration the
diminished culpability of juveniles as compared to that of adults, the hallmark features of
youth, and any subsequent growth and increased maturity of the individual. [¶]
(2) Family members, friends, school personnel, faith leaders, and representatives from
community-based organizations with knowledge about the individual before the crime or
his or her growth and maturity since the time of the crime may submit statements for
review by the board. [¶] (3) Nothing in this section is intended to alter the rights of
victims at parole hearings. [¶] (g) If parole is not granted, the board shall set the time for
a subsequent youth offender parole hearing in accordance with paragraph (3) of
subdivision (b) of Section 3041.5. In exercising its discretion pursuant to paragraph (4)
of subdivision (b) and subdivision (d) of Section 3041.5, the board shall consider the
factors in subdivision (c) of Section 4801. No subsequent youth offender parole hearing
shall be necessary if the offender is released pursuant to other statutory provisions prior
50.
This being the case, they no longer are subject to de facto LWOP sentences, because each
is clearly provided with a meaningful opportunity to obtain release within his expected
lifetime.
In Graham, the United States Supreme Court determined “[i]t [was] for the State,
in the first instance, to explore the means and mechanisms for compliance” with the
requirement that juvenile nonhomicide offenders be given “some meaningful opportunity
to obtain release based on demonstrated maturity and rehabilitation.” (Graham, supra,
560 U.S. at p. 75.) The California Supreme Court followed in Caballero by urging the
Legislature “to enact legislation establishing a parole eligibility mechanism that provides
a defendant serving a de facto life sentence without possibility of parole for nonhomicide
crimes that he or she committed as a juvenile with the opportunity to obtain release on a
showing of rehabilitation and maturity.” (Caballero, supra, 55 Cal.4th at p. 269, fn. 5.)
The Legislature responded by enacting section 3051, the express purpose of which is to
provide a parole eligibility mechanism in accordance with the decisions in Miller,
Graham, and Caballero. (Stats. 2013, ch. 312, § 1; see Historical and Statutory Notes,
51B pt. 2 West’s Ann. Pen. Code (2015 supp.) foll. § 3041, pp. 78-79.)
Defendants claim the enactment of section 3051 does not cure the
unconstitutionality of their sentences because the trial court has the duty of imposing, in
the first instance, a sentence that does not violate the Eighth Amendment. We agree trial
to the date of the subsequent hearing. [¶] (h) This section shall not apply to cases in
which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of
Section 667, or Section 667.61, or in which an individual was sentenced to life in prison
without the possibility of parole. This section shall not apply to an individual to whom
this section would otherwise apply, but who, subsequent to attaining 18 years of age,
commits an additional crime for which malice aforethought is a necessary element of the
crime or for which the individual is sentenced to life in prison. [¶] (i) The board shall
complete all youth offender parole hearings for individuals who become entitled to have
their parole suitability considered at a youth offender parole hearing on the effective date
of this section by July 1, 2015.”
51.
courts have such a duty. (See Caballero, supra, 55 Cal.4th at pp. 268-269; cf. People v.
Gutierrez (2014) 58 Cal. 4th 1354, 1386-1387.) This does not mean resentencing is
required, however. Were we to remand defendants’ cases, the trial court would be
entitled to take into account enactment of section 3051. Defendants fail to convince us
there is any reasonable possibility a remand for resentencing would result in them
receiving an earlier parole eligibility date than is specified in that statute. Accordingly, a
remand for resentencing would be an idle exercise that we decline to order in this day and
age of limited judicial resources.
Defendants also say a parole hearing after the period of time specified in section
3051 is inadequate, because the passage of time may hinder their ability to find and
produce favorable evidence. This is, of course, a problem faced by a number of offenders
subject to lengthy incarceration before they become parole eligible. Again, however,
defendants fail to explain how the trial court could — without imposing a sentence
unauthorized by statute or clearly inappropriate for the serious nature of the offenses —
devise a sentence that would render defendants eligible for parole earlier than section
3051 does. Moreover, we cannot help but note defendants could have — but did not —
present such evidence at their sentencing hearings. (See, e.g., People v. Palafox, supra,
231 Cal.App.4th at pp. 75-78.)
Last, defendants complain there is no guarantee section 3051 will not be repealed
or amended to their detriment, or that it applies to juvenile offenders who — like
defendants — were sentenced prior to its effective date. Subdivision (i) of the statute
appears to us to do away with any question of prospective-only application. Moreover, a
defendant whose sentence violates the Eighth Amendment but for the provisions of
section 3051 clearly would have the right to seek relief by means of a petition for writ of
habeas corpus should section 3051 be repealed or unfavorably amended. (See Caballero,
supra, 55 Cal.4th at p. 269.)
52.
DISPOSITION
The judgments are affirmed.
_____________________
DETJEN, J.
WE CONCUR:
_____________________
GOMES, Acting P. J.
_____________________
FRANSON, J.
53.