People v. Francisco-Castro CA2/4 ( 2016 )

Filed 8/15/16 P. v. Francisco-Castro CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B262307
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA130990)
v.
ANTONIO FRANCISCO CASTRO et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County, Raul A.
Sahagun, Judge. Affirmed in part, reversed in part, and modified.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Steven
E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant Antonio Francisco Castro.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and
Appellant Randy Daniel Ortiz.
______________________________
Appellants Antonio Francisco Castro and Randy Daniel Ortiz appeal from their
convictions by jury verdict of first degree murder with findings that each personally used
a deadly weapon in the commission of the crime and that it was gang related. They
contend the court’s failure to instruct the jury on the elements of the deadly weapon
enhancement constitutes constitutional structural error requiring reversal. In the
alternative, they argue that if subject to harmless error review, the error was not harmless.
Castro also challenges the sufficiency of the evidence supporting the jury’s finding that
the crime was gang related. He also claims entitlement to 18 additional days of custody
credit.
Ortiz challenges the admission of gang evidence which he contends exposed the
jury to improper character evidence based on inadmissible hearsay. He argues the trial
court’s admonition was insufficient to cure the resulting prejudice thus depriving him of
his due process right to a fair trial. He also contends the court erred by finding five prior
prison term enhancements true. Each appellant joins in the contentions raised by the
other. Both seek modification of the abstract of judgment and minute orders to reflect
that restitution was ordered on a joint and several basis.
Respondent argues the instructional error was harmless, that substantial evidence
supports the jury’s finding that the offense was committed for the benefit of a criminal
street gang, and that Ortiz’s argument concerning the gang expert’s testimony was
forfeited as well as meritless in light of the trial court’s curative admonition. Respondent
also contends that imposition of five one-year enhancements for prior prison terms was
proper as to Ortiz, and concedes that the appellants should be awarded additional days of
presentence custody credit and that their abstracts of judgment should be corrected to
reflect that the restitution award was imposed jointly and severally.
We conclude the court’s error in failing to instruct the jury on the elements of the
use of a deadly weapon enhancement was not harmless beyond a reasonable doubt as to
Ortiz and reverse the enhancement as to him on that ground. We also conclude that this
instruction was harmless error as to Castro. The jury was properly instructed that
appellants’ convictions of the present murder charge could be used as a predicate offense
2
to establish a pattern of gang activity for the gang enhancement under Penal Code section
1
186.22. Ortiz forfeited his argument that a statement by the prosecution’s gang expert
could not be cured by the curative admonition given by the court. Even if the issue had
been preserved, we conclude that the admonition was sufficient, and find no violation of
Ortiz’s rights to due process under the federal and state constitutions. We also conclude
that the trial court properly imposed five one-year enhancements for Ortiz’s prior prison
terms. Castro is entitled to a total of 599 days of presentence custody credit, and the trial
court is directed to amend the abstract of judgment to reflect that amount. In addition, the
abstracts of judgment for both appellants are to be corrected to reflect that the trial court’s
restitution order is joint and several.
FACTUAL AND PROCEDURAL SUMMARY
On October 7, 2012, Shane Cook was found by his friend Charles Chatterton,
beaten to death in his house in Bellflower. There was blood on the floor, walls, and
ceiling of the kitchen where Cook was found.
2
Alicia Doolan testified under a grant of use immunity from the district attorney.
Doolan spent the day of the murder with Cook and Ortiz at Cook’s house, smoking
methamphetamine at times. At some point, Cook left the house, then returned 10 minutes
later. Ortiz used Doolan’s cell phone throughout the day. When Cook returned, he and
Ortiz started arguing about an iPad. Doolan heard Ortiz make a telephone call in which
he said “‘Come and get me. I’m at the homie’s pad.’” Ortiz was holding a piece of
3
plumbing pipe. There was a similar piece of pipe on the kitchen table. Doolan described
the two pipes as about as long as the distance from her elbow to her fingers. She never
1
All further statutory references are to the Penal Code unless otherwise indicated
2
Doolan was relocated for her safety to Las Vegas by the Los Angeles County
Sheriff’s Office. She failed to appear pursuant to a subpoena and was in custody at the
time of her trial testimony.
3
Charles Chatterton testified that he unsuccessfully attempted to connect Cook’s
house to the city water supply the morning of the murder.
3
saw any other weapon. She heard Cook say, “‘Come on dude. We don’t need that. Why
are you disrespecting?’” At that point, Ortiz put the pipe down on the kitchen table. A
short bald man Doolan identified as Castro came to the house. When Castro arrived,
Ortiz said “‘Oh, the homies are here.’” Doolan recalled Cook saying “‘Who is that?
Now you got people coming to my house. Come on, man. That’s not cool.’”
Castro asked Doolan to put her phone away and to excuse them so he and Ortiz
could speak to Cook. She went to the bathroom, then heard arguing. When Doolan
eventually came out of the bathroom she saw the men fighting in the kitchen and saw
Cook fall to his knee. She returned to the bathroom. When she came out a few minutes
later, Ortiz and Castro were in the kitchen. Cook was on the floor. Doolan could not
recall whether he was moving. She saw blood. Ortiz told her to wait outside by Cook’s
car and handed her the car key. As Doolan walked to the kitchen door, she stepped on
blood. Doolan got into the driver’s seat.
Five to ten minutes later, Ortiz walked down the driveway and got into the front
passenger seat of Cook’s car. Castro followed a minute later and got into the rear
passenger seat. Doolan did not recall either man carrying anything. She complied with
Ortiz’s demand that she drive. Ortiz asked Castro if Cook was still alive. Castro said,
“‘He was still breathing but I cracked him pretty hard.’” After driving for a short period
of time Castro said he had left his phone at Cook’s house. Doolan pulled the car over,
got out, and told appellants she would wait for them. They drove off. Doolan walked
away. She did not report what she had seen to the police.
Doolan identified Ortiz from a photographic array. From another array, she
eliminated all photographs except one of Castro. Castro’s photograph depicted him with
hair. Doolan said that the man at Cook’s house had been bald. After being shown
another photograph of Castro, Doolan began sobbing and said that it was the man who
had come into Cook’s kitchen before the murder.
Emmanuel Chin testified that he went to Cook’s home on the day of the murder.
He knocked on the metal screen door. A man Chin did not know came to the doorway
and said Cook was busy. Chin did not like associating with the people who visited
4
Cook’s house, so he said he would come back later. Chin was shown a photographic
lineup and told the police that a photograph of Ortiz looked most like the man who came
to the door of Cook’s house. At trial he testified that there was no one in the courtroom
who looked like the man at the door. Margaret Fowler was at Cook’s house on the day of
the murder. She saw a woman there whom she later identified as Doolan. When
interviewed by investigating officers, Fowler said she heard someone refer to a man who
was in Cook’s living room as “Boxer,” which is Ortiz’s gang moniker.
The medical examiner testified that Cook died from multiple blunt force trauma to
the head. There were numerous injuries to his head, back, chest, and arms, including 14
separate head wounds. Some injuries were consistent with being caused by a long, hard
instrument. Cook also had defensive wounds.
Ortiz’s fingerprints were found on the window of an exterior door leading to the
kitchen of Cook’s house. His palm print was found on the kitchen counter. The
plumbing pipes described by Doolan were never found. No other weapons were
recovered. A forensic search of the scene did not reveal genetic material matching either
appellant. When arrested, in late November 2012, Ortiz was wearing shoes matching
shoes identified by witnesses as Air Jordan Nike shoes worn by Cook.
Appellants were charged with one count of murder with allegations that the crime
was gang related and that each personally used a deadly weapon in the commission of the
crime. (§§ 187, subd. (a), 186.22, subd. (b)(1)(C), 12022, subd. (b)(1).) The information
alleged that Castro had one prior serious or violent conviction under the “Three Strikes”
law (§§ 667, subds. (a)(1) & (b)-(i), 1170.12, subds. (a)-(d)). It alleged that Ortiz had one
prior strike conviction and five prior convictions for which he had served prison terms.
The jury convicted each appellant of first degree murder and found true the
allegations that the crime was gang related and that each appellant personally used a
deadly weapon in the commission of the murder. The court denied Ortiz’s motion for
new trial. In bifurcated court trials, the court found the prior conviction allegations true.
Ortiz was sentenced to the term of 25 years to life on the murder count, with an additional
consecutive year for the use allegation. The court also imposed five one-year
5
enhancements under section 667.5, subdivision (b) for an additional five years. The court
stayed the sentence for the gang enhancement. Ortiz’s total sentence was 31 years to life.
Castro was sentenced to a term of 25 years to life for murder, doubled to 50 years
to life under the Three Strikes law. He was sentenced to an additional consecutive term
of five years for the prior prison term and an additional one year for personal use of a
deadly weapon, for a total of 56 years to life.
Each appellant filed a timely appeal from his judgment of conviction. After the
appeal was filed, counsel for Ortiz asked the trial court to correct the custody credits
awarded. The trial court granted the request, awarded 591 days of custody credit, and
directed the clerk to issue an amended abstract of judgment to the Department of
Rehabilitation and Corrections. Ortiz then withdrew his appellate challenge to the
custody credits on the ground of mootness. We granted Ortiz’s motion to augment the
record on appeal with the minute order and amended judgment. Counsel for Castro did
not seek the same relief in the trial court.
DISCUSSION
I
The information alleged that each appellant personally used a deadly weapon in
the commission of the murder (§ 12022, subd. (b)(1)). The jury found the enhancement
true as to each, although the trial court failed to instruct the jury on the elements of the
enhancement either orally or by written instruction. Appellants argue that this omission
constitutes structural error of a federal constitutional dimension that demands reversal per
se. Respondent concedes the error, but contends that it is subject to harmless error
analysis under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
“‘The trial court has a sua sponte duty to give correct instructions on the basic
principles of the law applicable to the case that are necessary to the jury’s understanding
of the case,’ including the elements of a charged enhancement. [Citation.] ‘“An
appellate court reviews the wording of a jury instruction de novo” [citation], and
determines whether “the instructions are complete and correctly state the law”
[Citation].’ (People v. Bell (2009) 179 Cal. App. 4th 428, 435.)” (People v. Camino
6
(2010) 188 Cal. App. 4th 1359, 1380; Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
“[A] trial court’s failure to instruct the jury on an element of a sentence enhancement
provision (other than one based on a prior conviction), is federal constitutional error if the
provision ‘increases the penalty for [the underlying] crime beyond the prescribed
statutory maximum.’ [Citation.] Such error is reversible under Chapman, supra, 386
U.S. at page 24, unless it can be shown ‘beyond a reasonable doubt’ that the error did not
contribute to the jury’s verdict.” (People v. Sengpadychith (2001) 26 Cal. 4th 316, 326.)
Appellants argue that the instructional error is structural and thus reversible per se, citing
Sullivan v. Louisiana (1993) 508 U.S. 275, 279-282; and People v. Cummings (1993)
4 Cal. 4th 1233, 1315.
The pattern instruction on the enhancement for personal use of a deadly or
dangerous weapon, CALCRIM No. 3145, would have instructed the jury on the
definition of deadly or dangerous weapon and the requirements for finding a defendant
personally used such a weapon: “A deadly [or dangerous] weapon is any object,
instrument, or weapon that is inherently deadly [or dangerous] or one that is used in such
a way that it is capable of causing and likely to cause death or great bodily injury. [¶] [In
deciding whether an object is a deadly weapon, consider all the surrounding
circumstances, including when and where the object was possessed[,] [and] [where the
person who possessed the object was going], [and] [whether the object was changed from
its standard form] [and any other evidence that indicates whether the object would be
used for a dangerous, rather than a harmless, purpose.]] [¶] . . . . [¶] Someone personally
uses a deadly [or dangerous] weapon if he or she intentionally does any of the following:
[¶] [1] Displays the weapon in a menacing manner (./;) [¶] [OR] [¶] [2. Hits someone
with the weapon(./;)] [¶] [OR [¶] (3/2). Fires the weapon.] [¶] The People have the
burden of proving each allegation beyond a reasonable doubt. If the People have not met
this burden, you must find that the allegation has not been proved.” (See People v. Bland
(1995) 10 Cal. 4th 991, 997.)
“An error is ‘“structural,” and thus subject to automatic reversal, only in a “very
limited class of cases,”’ such as the complete denial of counsel, a biased decision maker,
7
racial discrimination in jury selection, denial of self-representation at trial, denial of a
public trial, and a defective reasonable-doubt instruction. (Neder [v. United States (1999)
527 U.S. 1,] 8.)” (People v. Mil (2012) 53 Cal. 4th 400, 410 (Mil).) As long as the
defendant had counsel and was tried by an impartial adjudicator, “‘“there is a strong
presumption that any other [constitutional] errors that may have occurred are subject to
harmless-error analysis.”’ (Neder, supra, 527 U.S. at p. 8.)” (Ibid.) Instructional error
involving multiple elements “will be deemed harmless only in unusual circumstances,
such as where each element was undisputed, the defense was not prevented from
contesting any of the omitted elements, and overwhelming evidence supports the omitted
element.” (Id. at p. 414.) The court in Mil determined that such instructional error is
subject to harmless error analysis under the California constitution as well. (Id. at
p. 415.)
Each appellant was represented by counsel and there is no claim the jury was not
impartial, giving rise to the presumption that the instructional error here does not come
within the narrow class of errors which are structural. We therefore determine whether
the instructional error was harmless beyond a reasonable doubt under Chapman, supra,
386 U.S. at page 24.
As to whether a deadly or dangerous weapon was used in Cook’s murder, we find
the error harmless beyond a reasonable doubt. Overwhelming and uncontested evidence
established that Cook was killed by blunt force through repeated blows to his head from
an object or objects consistent with the pipes described by Doolan in her testimony. Each
appellant’s defense was misidentification rather than that a deadly weapon was not used.
In closing argument, counsel for Ortiz conceded the crime was “an extraordinarily
vicious and brutal beating.” He argued that there was no testimony that Ortiz or anyone
else had used the pipes to hit anyone. He pointed out that the pipes were not recovered
and therefore there was no DNA evidence recovered from them. He also argued there
was no evidence of what the weapon looked like. Counsel for Castro did not address the
pipe issue in his closing argument. On this record, no rational factfinder could have
concluded that the murder was committed without the use of a deadly weapon.
8
Appellants point out that the jury was instructed that defendants could be found
guilty as aiders and abettors of the crime rather than the actual perpetrator. As we have
noted, Doolan testified that Castro said that he had “‘cracked [Cook] pretty hard.’” There
was no eyewitness testimony as to which appellant struck Cook, or whether both did.
Since the murder weapon or weapons were not recovered, there was no evidence linking
appellants to their use. Ortiz’s fingerprints on the window of an exterior door at Cook’s
house and palm print on the kitchen counter establish his presence at the murder scene
but do not prove his personal use of a deadly weapon.
Under the evidence presented, the blow or blows that killed Cook could have been
struck by Castro, by Ortiz, or by both of them. Castro’s statement that he “‘cracked
[Cook] pretty hard’” established that he personally administered a fatal blow. But there
is no such evidence as to Ortiz. We therefore shall uphold the section 12022, subdivision
(b)(1) enhancement as to Castro, but must reverse it as to Ortiz.
II
Castro and Ortiz also challenge sufficiency of the evidence supporting the jury’s
finding that the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang. (§ 186.22, subd. (b)(1).)
Section 186.22, subdivision (b)(1) provides for a sentence enhancement as to “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members.” (People v. Ramirez (2016)
244 Cal. App. 4th 800, 818.) The prosecution must prove that the members of the gang
have individually or collectively engaged in a pattern of criminal gang activity.
(§ 186.22, subd. (f).) Under section 186.22, subdivision (e), a “‘pattern of criminal gang
activity’” is defined as “the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of
the offenses [enumerated in subdivision (e)], provided at least one of these offenses
occurred after the effective date of this chapter and the last of those offenses occurred
9
within three years after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons. . . .”
The basis of appellants’ argument is that one of the two predicate gang crimes
advanced by the prosecution did not qualify as a predicate offense under section 186.22,
subdivision (e). Respondent concedes the point. At trial, the prosecution presented
evidence that East Side Paramount gang member Erik Heredia was convicted of
possession of a deadly or dangerous weapon in May 2010 under former section 12020,
subdivision (a)(1). No evidence of Heredia’s conduct which led to the conviction was
introduced, only the record of conviction was presented. While some forms of
4
possession of a deadly or dangerous weapon might have qualified under section 186.22,
respondent concedes that “there was insufficient evidence from which the jury could
conclude that Heredia’s conviction for ‘possession of a dangerous or deadly weapon’
qualified as a predicate gang offense.”
We agree with this analysis. But that conclusion does not end our discussion. An
error in instructing the jury on the criminal gang enhancement requires reversal of the
gang enhancement unless the error is shown to be harmless beyond a reasonable doubt.
(People v. Bragg (2008) 161 Cal. App. 4th 1385, 1401 (Bragg), citing People v.
Sengpadychith, supra, 26 Cal.4th at p. 324.)
The charged crime may serve as a predicate offense. (Bragg, supra,
161 Cal.App.4th at p. 1400.) In that case Bragg was convicted of three counts of
attempted murder. The jury found that the offenses were committed for the benefit of or
in association with a criminal street gang within the meaning of section 186.22,
subdivision (b)(1). The jury instruction on the enhancement listed two predicate
offenses, one of which (battery with serious bodily injury) was not a qualifying crime
4
Castro points out that section 186.22, subdivision (e) lists certain qualifying gun
possession crimes, including possession of a firearm capable of being concealed, offender
in possession of a firearm, carrying a concealed firearm, or carrying a loaded firearm.
(§ 186.22, subd. (e)(23), (31-33).)
10
enumerated in section 186.22, subdivision (e). It was conceded on appeal that this was
error. (Bragg, at p. 1400.)
The first predicate offense in Bragg was uncontested, and the court concluded that
the jury had found commission of that offense true beyond a reasonable doubt. In
addition, the jury’s conviction of the defendant for the charged offenses established that
the jury found them true beyond a reasonable doubt. The jury was instructed that the
charged offenses qualified as predicate crimes within the meaning of section 186.22. On
that record, the Bragg court concluded that the error in instructing the jury on the
elements of a predicate offense which did not qualify under section 186.22 was harmless
beyond a reasonable doubt. (Bragg, supra, 161 Cal.App.4th at p. 1401.)
Our case is similar. Castro argues that the standard instruction on the gang
enhancement was not sufficient to advise the jury that it could consider Cook’s murder as
a predicate crime for the gang enhancement because “it did not list the present crime—
murder—when it came to providing the very definition—and a tailored one, at that—of a
‘pattern of criminal gang activity.’”
As modified, the version of CALCRIM No. 1401 given here informed the jury that
“A pattern of criminal gang activity, as used here, means: [¶] 1. The conviction of any
combination of two or more of the following crimes: assault with a deadly weapon and
illegal weapon possession.” But the instruction continued: “If you find the defendant
guilty of a crime in this case, you may consider that crime in deciding whether one of the
group’s primary activities was commission of that crime and whether a pattern of
criminal gang activity has been proved. [¶] You may not find that there was a pattern of
criminal gang activity unless all of you agree that two or more crimes that satisfy these
requirements were committed, but you do not have to all agree on which crimes were
committed. [¶] The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find that the
allegation has not been proved.”
11
Castro asserts that the jury could not have used the current murder charge as
pattern evidence because of the wording of the instruction, and therefore argues we may
not look to the present offense in considering the claim of error.
We disagree. The instruction clearly informed the jury that it could consider
appellants’ convictions for Cook’s murder in determining whether a pattern of criminal
gang activity had been proven beyond a reasonable doubt. The prosecutor did not
identify the predicate offenses for the gang enhancement in his opening statement,
closing argument, or rebuttal. He thus avoided confusing the jury by relying on the
Heredia conviction to the exclusion of the present charge of murder. Similarly, in Bragg,
the prosecutor did not argue that a pattern of gang activity could be established by
conviction of the present offenses. The court reasoned: “However the prosecutor chose
to argue the matter, the jury knew that it could consider the current offenses as a
predicate offense under the statute.” (Bragg, supra, 161 Cal.App.4th at p. 1402.) In
addition, the Bragg court concluded that a unanimity instruction was not required
because commission of predicate crimes falls within the “‘continuous-course-of-conduct’
exception to the rule requiring unanimity. [Citation.]” (Ibid.) As in Bragg, the jury in
this case was instructed that the Cook murder was a qualifying predicate offense for
imposition of the gang enhancement under section 186.22, as was the other uncontested
predicate crime. The error in instructing the jury that the Heredia conviction was a
qualifying offense was harmless beyond a reasonable doubt.
III
Ortiz claims the court’s admonition to the jury to disregard a statement by the
prosecution gang expert, Deputy Sheriff Kasey Woodruff, did not cure the prejudice,
requiring reversal as a violation of his state and federal rights to due process and a fair
trial. The argument is based on Deputy Woodruff’s statement that Ortiz was “willing to
. . . assault, shoot, kill for the gang.” Ortiz argues that the statement was so prejudicial
that he may raise the issue on appeal despite the failure of his defense counsel to move
for mistrial.
12
A. Trial Proceedings
Deputy Woodruff testified about his experience and training regarding gangs,
including hundreds of contacts with East Side Paramount gang members. He outlined the
territory of the East Side Paramount gang, its membership, and its enemies. Deputy
Woodruff testified that Cook’s murder occurred near the gang’s territory. He explained
the concept of “putting in work” for a gang. According to Deputy Woodruff, the primary
activities of the East Side Paramount gang “that I’ve seen over the years” includes
narcotics offenses, weapons violations, attempted murder, and murder. He described
common signs and symbols used by the gang in tattoos and graffiti.
Deputy Woodruff testified he knew Castro’s name and moniker, but had no prior
contact with him. He learned about Castro through the present case. He had one prior
contact with Ortiz. Deputy Woodruff identified tattoos on the bodies of each appellant as
associated with the East Side Paramount gang. In his opinion, Castro and Ortiz are
members of that gang.
Based on hypothetical questions drawn from the evidence in the case, Deputy
Woodruff opined that a beating murder committed by two members of the same street
5
gang was for the benefit of the gang.
During direct examination the prosecutor asked Deputy Woodruff his opinion as
to whether Ortiz held any rank within the East Side Paramount gang. He answered:
“From my experience and knowledge, . . . he is not, he is not low-level. He is somebody
that’s not afraid to put in the work. He is somebody that will, that’s willing to, you know,
assault, shoot, kill, for the gang.” Counsel for Ortiz did not object at that time. Deputy
Woodruff then was asked whether one of the appellants outranked the other within the
gang. He said that in his opinion, Castro outranked Ortiz based on Castro’s time in the
neighborhood and in prison. Deputy Woodruff said he was familiar with Castro from the
5
The two hypotheticals asked Deputy Woodruff to assume that two members of the
same street gang commit a crime together (the second hypothetical specified beating a
man to death), near their territory, in the presence of a person not in their gang.
13
6
current murder case and from “intelligence.” At that point, counsel for Castro asked to
approach and pointed out that the witness had referred to Castro’s prison record. The
judge said he had missed the statement because he was thinking about why counsel for
Ortiz had not objected to the expert’s testimony that Ortiz was willing to shoot or kill for
the gang. The court observed that this was character evidence under Evidence Code
section 1101, and that there had been no objection. The court offered to entertain an
objection to the testimony about Ortiz, and to give a curative admonition. Counsel for
Ortiz objected and asked for the admonition. The court said it was inclined to strike the
7
statement that Ortiz was willing to shoot and kill for the gang.
The court admonished the jury: “There was a previous statement made by the
witness in his opinion to ‘a defendant would shoot and be prepared to shoot and kill for
the gang.’ You are to disregard that statement and not consider it for any purpose
whatsoever.” Counsel for Ortiz did not move for mistrial.
B. Forfeiture
Respondent argues that Ortiz has forfeited the challenge to the sufficiency of the
curative admonition given by the court, citing the general rule that “a defendant who
receives a curative admonition, but who makes no other objection and seeks no other
action, may not complain on appeal. Defendant may not argue that the court should have
granted a mistrial he did not request . . . .” (People v. Chatman (2006) 38 Cal. 4th 344,
368 (Chatman).) Ortiz acknowledges the rule, but claims that it does not apply in an
exceptional case where “‘“the improper subject matter is of such a character that its
effect . . . cannot be removed by the court’s admonitions.”’” (People v. Olivencia (1988)
204 Cal. App. 3d 1391, 1404, quoting People v. Allen (1978) 77 Cal. App. 3d 924, 934-
935.) He distinguishes Chatman, supra, at page 368, on the ground that it involved
spectator misconduct (blurting out comments) during the penalty, rather than guilt, phase
6
Deputy Woodruff was not asked to explain what he meant by “intelligence.”
7
Counsel for Castro stated that he did not want the reference to Castro’s prison
record stricken and did not want a curative admonition on the theory that this would draw
more attention to the brief reference by the witness.
14
of a trial. He points out that the statement in this case was made during the guilt phase of
trial by a law enforcement officer. In People v. Hill (1992) 3 Cal. 4th 959, the court
concluded that because a spectator “does not wear the same cloak of official authority as
a prosecutor, most instances of spectator misconduct will likely be more easily curable
than those of a prosecutor.” (Id. at p. 1000, overruled on another ground in Price v.
Superior Court (2001) 25 Cal. 4th 1046, 1069.)
“‘It is only in the exceptional case that “the improper subject matter is of such a
character that its effect . . . cannot be removed by the court’s admonitions.” [Citation.]’
[Citation.]” (People v. McNally (2015) 236 Cal. App. 4th 1419, 1429.) The California
Supreme Court has found a timely admonition to the jury sufficient to cure any prejudice
in situations involving even more inflammatory statements.
In People v. Ledesma (2006) 39 Cal. 4th 641, a prosecution witness mentioned that
the defendant had been on death row. In an effort to explain this reference, the defense
counsel asked questions making it clear that the defendant’s prior conviction on the same
charges had been reversed on grounds that trial counsel had been ineffective. The
Supreme Court found the trial court did not err in denying a motion for mistrial because
there was no basis for concluding that the statement was incurably prejudicial. (Id. at pp.
682-683.)
In People v. Avila (2006) 38 Cal. 4th 491, 573-574, the Supreme Court found the
trial court did not abuse its discretion by denying a mistrial motion after a witness
testified that Richard Avila, one of the three co-defendants, warned him to “[k]eep cool”
because appellant Johnny Avila was crazy and would kill the witness. (Id. at p. 572.)
The trial court instructed the jury that this statement could be considered for Richard
Avila’s state of mind (at Richard’s request) but that they “‘[could] not consider those
statements for their truth or as against any other defendant in this case.’” (Id. at p. 573.)
The Supreme Court presumed the jury followed this instruction. (Id. at p. 574.)
In People v. Valdez (2004) 32 Cal. 4th 73, the court instructed a police officer to
avoid revealing that he interviewed the defendant while the defendant was in custody. In
response to the prosecutor’s question about how the interview was conducted, the officer
15
said it was while the defendant was at Chino Institute. (Id. at p. 124.) Defense counsel’s
motion for a mistrial was denied because the court found no intentional misconduct.
Defense counsel agreed there was no intentional misconduct. (Id. at p. 124, fn. 25.) The
Court of Appeal held that the defendant forfeited a claim of prosecutorial misconduct
based on this statement because although his counsel objected, he rejected the trial
court’s offer to admonish the jury. (Id. at pp. 124-125.) The court found the isolated
reference to the Chino Institute was not so grave that a curative instruction would not
have mitigated any possible prejudice to the defendant. (Id. at p. 125.)
Ortiz has failed to demonstrate that the statement by Deputy Woodruff was so
inflammatory that the court’s admonition could not mitigate any prejudice. The court
promptly admonished the jury to disregard the statement. In the concluding instructions,
the court gave CALCRIM No. 222, which in part reminded the jury, “If I ordered
testimony stricken from the record you must disregard it and must not consider that
testimony for any purpose.” Furthermore, “absent some indication to the contrary, we
assume a jury will abide by a trial court’s admonitions and instructions. [Citation.] We
conclude defendant forfeited this issue.” (People v. Seumanu (2015) 61 Cal. 4th 1293,
1336 [defense counsel failed to object to statements made by the prosecutor in closing
argument, defendant claimed objection would have been futile].) The issue was not
preserved for appeal.
In any event, even had it been preserved, we find no due process violation. Ortiz
argues that the stricken statement that he was willing to shoot and kill for the gang
violated his rights to due process under the federal and state constitutions. He reasons
that the court’s admonition could not have cured the harm because the evidence against
him was weak, Deputy Woodruff’s testimony was improper character evidence based on
inadmissible hearsay, and the statement was highly inflammatory with only marginal
relevance to the factual situation. He cites Woodruff’s testimony that he had had contacts
with hundreds of East Side Paramount gang members, including Ortiz himself in 2008.
He also cites Deputy Woodruff’s testimony about his experience investigating gangs
during which he spoke to hundreds of self-admitted and documented gang members.
16
The record does not support Ortiz’s assertion that Deputy Woodruff’s testimony
was based on inadmissible hearsay. The California Supreme Court recently clarified the
principles governing testimony by a gang expert witness based on hearsay. An expert
may testify about his general knowledge, but may not testify about case-specific facts
8
about which he has no personal knowledge. (People v. Sanchez (2016) 63 Cal. 4th 665,
676-677 (Sanchez).) Hypotheticals based on case-specific facts for which there is
independent competent evidence may be used to elicit an expert’s opinions. (Id. at p.
677.) The Sanchez court determined that under Crawford v. Washington (2004) 541 U.S.
36 (Crawford), if hearsay relied upon by an expert witness was testimonial and an
exception did not apply, the defendant should be given the opportunity to cross-examine
the declarant or the evidence should be excluded. (Sanchez, supra, at p. 685.) It
concluded: “What an expert cannot do is relate as true case-specific facts asserted in
hearsay statements, unless they are independently proven by competent evidence or are
9
covered by a hearsay exception.” (Id. at p. 686.)
No hearsay objection was raised during Deputy Woodruff’s testimony by either
defense counsel. Woodruff testified that both appellants are members of the East Side
Paramount gang. The only specific basis for this opinion explored at trial was evidence
of the appellants’ tattoos, which Deputy Woodruff described as related to that gang. The
Sanchez court expressly condoned the admission of an expert’s opinion that a defendant
is a gang member based on tattoos. (Sanchez, supra, 63 Cal.4th at p. 677.) The court
admonished the jury to disregard Deputy Woodruff’s case-specific testimony that Ortiz
8
The Sanchez court held that a gang expert may testify that a tattoo depicted in an
authenticated photograph may be the basis for a gang expert’s opinion that the presence
of the tattoo, associated with a particular gang, shows that the person belongs to the gang.
(Sanchez, supra, 63 Cal.4th at p. 677.)
9
The Supreme Court adopted a two-step analysis to determine the admissibility of
out-of-court statements: 1) is the statement hearsay offered for the truth, which does not
fall within a hearsay exception; and 2) if the statement is testimonial, its admission
violates the right to confrontation unless a Crawford exception applies. (Sanchez, supra,
63 Cal.4th at pp. 680-681.)
17
was willing to shoot and kill for the gang. Unlike the gang expert in Sanchez, Deputy
Woodruff did not say that his testimony was based on material which may violate the
right to confrontation under Crawford, supra, 541 U.S. 36, including police reports, field
10
identification cards, or STEP notices. (See Sanchez, supra, at pp. 694-698.)
The record does not establish that Deputy Woodruff relied on inadmissible
hearsay for his testimony. The jury was admonished to disregard his statement
concerning Ortiz’s willingness to shoot and kill for the gang. Ortiz points out that the
trial court “‘has discretion “to weigh the probative value of inadmissible evidence relied
upon by an expert witness . . . against the risk that the jury might improperly consider it
as independent proof of the facts recited therein.” [Citation.]’ [Citation.]” (People v.
Bell (2007) 40 Cal. 4th 582, 608.) We note that the trial court concluded that the
statement about Ortiz’s willingness to shoot and kill for the gang violated Evidence Code
section 1101’s prohibition on the admission of character evidence. Counsel for Ortiz did
not state the basis for his objection in response to the court’s statement. He did not cite
Evidence Code section 352, which confers discretion on the trial court to exclude
evidence which is more prejudicial than probative. Failure to make a specific objection
on the ground asserted on appeal makes that ground not cognizable. (People v. Chism
(2014) 58 Cal. 4th 1266, 1292-1293; People v. Partida (2005) 37 Cal. 4th 428, 434-435.)
As we have concluded, the court’s prompt admonition was sufficient to mitigate
any prejudice arising from Deputy Woodruff’s statement. There was substantial evidence
of Ortiz’s guilt. We infer from the guilty verdicts that the jury credited Doolan’s
testimony. Witnesses Chin and Fowler gave testimony placing Ortiz at Cook’s house on
the afternoon of the murder. The medical examiner testified that a pipe such as the one
10
STEP is the acronym for California Street Terrorism Enforcement and Prevention
Act. (§ 186.20.) STEP notices are issued by police officers to individuals associating
with known gang members. The portion retained by the officer in People v. Sanchez,
supra, 63 Cal.4th at page 696 included the defendant’s biographical information, whom
he was with, and statements he made. The Supreme Court noted that the officer swore to
the accuracy of the representations in the notice, and concluded it was testimonial within
the meaning of Crawford, supra, 541 U.S. 36. (Sanchez, at pp. 696-697.)
18
Doolan saw Ortiz holding during the argument with Cook was consistent with Cook’s
injuries.
“[A]dmission of evidence, even if erroneous under state law, results in a due
process violation only if it makes the trial fundamentally unfair.” (People v. Partida,
supra, 37 Cal.4th at p. 439.) We conclude that the court’s admonition was sufficient to
cure any prejudice arising from Deputy Woodruff’s statement about Ortiz. Ortiz received
a fair trial. His federal and state constitutional rights were not violated.
IV
Ortiz argues the trial court erred by imposing five one-year enhancements for five
11
prior prison terms he served. (§ 667.5.) He claims that due to revocation of his parole,
the prison term for prior 1 overlapped with prior 2, prior 2 overlapped with priors 3, 4,
and 5, prior 3 overlapped with priors 4 and 5, and prior 4 overlapped with prior 5. He
concludes that he served only a single period of incarceration within the meaning of
section 667.5, subdivision (g), and therefore imposition of five enhancements was error.
Section 667.5, subdivision (b) provides for imposition of an additional one-year
term for each prior separate prison term. Subdivision (g) of section 667.5 defines a “prior
separate prison term” as “a continuous completed period of prison incarceration imposed
for the particular offense alone or in combination with concurrent or consecutive
sentences for other crimes, including any reimprisonment on revocation of parole which
is not accompanied by a new commitment to prison, and including any reimprisonment
after an escape from incarceration.” (Italics added.) As respondent asserts, Ortiz’s
argument ignores the italicized language of section 667.5, subdivision (g). Punishment
with the additional enhancement provided for in section 667.5, subdivision (b) is
11
Prior 1 (case No. TA073502) was a March 12, 2004 conviction for violation of
Vehicle Code section 10851. Prior 2 (case No. VA091336) was a September 26, 2005
conviction for a violation of Vehicle Code section 10851. Prior 3 (case No. TA087919)
was a December 4, 2006 violation of Health and Safety Code section 11370.1,
subdivision (a). Prior 4 (case No. TA097607) was a June 22, 2009 conviction for
violation of section 245, subdivision (a)(1). Prior 5 (case No. VA115635) was an August
26, 2010 conviction for violation of Vehicle Code section 2800.2.
19
appropriate where the defendant failed to remain free of custody by committing new
offenses of sufficient severity to warrant parole revocation and a return to custody. (In re
Preston (2009) 176 Cal. App. 4th 1109, 1117; In re Kelly (1983) 33 Cal. 3d 267, 270-271,
partially overruled on another ground in People v. Langston (2004) 33 Cal. 4th 1237,
1245-1246.)
The trial court properly imposed the five separate one-year enhancements.
V
Originally, both appellants challenged the court’s calculation of presentence
custody credits. As we noted above, Ortiz sought and obtained a correction in the trial
court and has withdrawn this issue on appeal. Castro did not seek relief in the trial court.
He was arrested on July 2, 2013. He remained in custody until sentenced on February 20,
2015, a period of 599 days. The trial court gave Castro credit for 581 days. Respondent
concedes that Castro was entitled to an additional 18 days of credit, for a total of 599
days. We agree with this calculation and direct the trial court to amend the abstract of
judgment to reflect that Castro is credited with 599 days of presentence custody credit.
VI
The parties agree that at the sentencing hearing, the trial court said that it was
imposing a restitution fine of $7,812.50 on Ortiz, but said nothing about whether it was
joint or several. Moments later, Castro was sentenced. The trial court said “You’re to
make restitution to the victim in the amount of—that will be joint and several with your
co-defendant—$7,812.50.” The abstracts of judgment state that the fine is $7182.50
(Castro) and $7,812.50 (Ortiz), but do not reflect that the award is joint and several.
We may correct a clerical error in an abstract of judgment. Where there is an
inconsistency between the court’s oral order and the minute or abstract of judgment, the
oral order controls. (People v. Mitchell (2001) 26 Cal. 4th 181, 185.)
We direct the trial court to correct the abstract of judgment to reflect the correct
amount of restitution fine ($7,812.50) and that it is imposed jointly and severally.
20
DISPOSITION
The enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)) is
reversed as to Ortiz but affirmed as to Castro. The trial court is directed to correct the
abstracts of judgment for each appellant to reflect the correct amount of restitution fine
and that it is imposed jointly and severally. It also is directed to correct the amount of
presentence custody credit awarded Castro to 599 days. As modified, the judgments are
affirmed in all other respects. The trial court is to serve copies of the amended abstracts
of judgment on the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
MANELLA, J.
COLLINS, J.
21