People v. Meraz ( 2016 )

Filed 12/21/16 On transfer from Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B245657
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA065446)
v.
JUAN RAMON MERAZ et al.,
Defendants and
Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Daniel B. Feldstern, Judge. Affirmed as
modified.
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant Juan Ramon Meraz.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant Juan M. Chambasis.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts 1 and 3 through 7 of the Discussion.
Robert E. Boyce, under appointment by the Court of
Appeal, for Defendant and Appellant Victor Bibiano.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Joseph P. Lee and Jonathan J. Kline, Deputy
Attorneys General, for Plaintiff and Respondent.
Codefendants Juan Ramon Meraz, Juan M. Chambasis,
and Victor Bibiano separately appeal their convictions and
sentences for murder, attempted murder, and discharging a
firearm at an inhabited dwelling following a gang-related
shooting that killed two victims and seriously injured a third. We
previously affirmed the judgments with certain corrections to
their sentences. Our high court granted review and transferred
the case to us for reconsideration of defendants’ confrontation
clause challenges to the gang expert’s testimony in light of People
v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In the published
portion of this opinion, we conclude reversal is not warranted
under Sanchez, so we once again affirm the judgments as
modified.
PROCEDURAL HISTORY
Appellants were jointly charged with the murders of Javier
Zamora and Justin Curiel (Pen. Code, § 187, subd. (a); counts 1 &
2),1 the attempted premeditated murder of Jose Santa Ana
(§§ 187, subd. (a), 664; count 3), and discharging a firearm at an
1 Undesignated statutory citations are to the Penal Code
unless otherwise noted.
2
inhabited dwelling (§ 246; count 4). For the murder counts,
multiple-murder and gang-murder special circumstances were
alleged. (§ 190.2, subd. (a)(3), (22).) A variety of firearm and
gang enhancements were also alleged.2 A first trial ended in a
mistrial after the jury deadlocked. On retrial, the jury found
appellants guilty on all counts and found all special
circumstances and enhancements true. At separate sentencing
hearings, the trial court sentenced each appellant to life without
the possibility of parole, a consecutive life sentence, and an
additional 50 years to life in state prison as follows: life without
the possibility of parole for count 1, plus 25 years to life pursuant
to section 12022.53, subdivision (d); and a consecutive life
sentence on count 3, plus 25 years to life pursuant to section
12022.53, subdivision (d). The court imposed concurrent
sentences on counts 2 and 4 and stayed the remaining
enhancements for counts 1 and 3.3 The court imposed various
fines, fees, and custody credits discussed further, post, as
necessary. Appellants separately appealed.
STATEMENT OF FACTS
The shooting in this case was part of a long-standing
rivalry between two gangs in Pacoima: Pacoima Terra Bella
(Terra Bella) and the Pacoima Project Boys (Project Boys). The
rivalry reached a heated point on May 5, 2008, when Project Boys
member Jose Avila shot and killed Terra Bella member Alejandro
Villa. Avila was convicted of the murder. The shooting by
2 It was alleged Chambasis had a prior strike conviction,
which the trial court ultimately found not to be true.
3 The court struck the firearm enhancements for count 4 on
dual-use grounds.
3
appellants here—all Terra Bella members—was viewed as
retaliation for Villa’s murder.
On September 20, 2009, the day of the shooting, 16-year-old
Project Boys member Santa Ana lived at the San Fernando
Gardens housing project, which was in Project Boys gang
territory. Santa Ana and fellow Project Boys member Zamora
were on the porch of Rosemary Hurtado’s apartment when Curiel
joined them. Curiel was not a gang member and had just moved
into San Fernando Gardens. About five minutes after Curiel
arrived, three males approached, carrying firearms. Santa Ana
recognized them and identified them at trial as Bibiano, also
known as “Blacky”; Meraz, also known as “Curley”; and
Chambasis, also known as “Bash.” Bibiano asked the trio where
they were from, which Santa Ana knew was gang parlance
asking which gang they were from. Curiel tried to say he “wasn’t
from anywhere.” One of the appellants said they were from Terra
Bella. Meraz told a group of young children playing nearby,
including Curiel’s brother, to leave. When the children left,
appellants began shooting.
Before the shooting, 12-year-old S.B. was playing near the
porch where the shooting took place. She noticed three males
approaching the victims on the porch. One of the approaching
males had a gun in his hand, and S.B. identified him at trial as
Chambasis. As the shooting began, she grabbed her younger
brother and carried him inside her house.
Zamora was shot seven times, three of which were fatal.
Curiel was shot four times, two of which were fatal. Santa Ana
was shot five times, and although he survived, he acted like he
was dead. After appellants fled back the way they had come,
4
Santa Ana saw his friends were dead, so he tried to walk toward
a nearby fire station but collapsed on the way.
Hurtado heard the gunshots, emerged from her apartment
to investigate, and saw Santa Ana and the other two victims. As
she checked on her children, Santa Ana walked away. When she
found him heading toward the fire station, he repeatedly told her
“Terra Bella” shot him.
Several Los Angeles police officers arrived at the scene.
One officer approached Santa Ana and said to him, “You’re going
to die. Who shot you? What happened?” Santa Ana responded,
“Blacky from Terra Bella Street,” i.e., Bibiano, shot him. He told
another officer “Blacky” had tattoos of a “1” and a “3” on his
forearms.4 At the hospital, Santa Ana was shown a series of
photographs and he identified all three appellants as the
shooters.
Thirteen shell casings, eight bullets, and two partial bullets
were recovered from the scene. A ballistics expert linked one of
the casings to a gun used by Timothy Jenkins in a shooting eight
days earlier. Jenkins was a member of the Pacoima Pirus gang,
which had a friendly relationship with Terra Bella. He told
police he traded the gun to Chambasis for marijuana on the day
before the shooting at San Fernando Gardens.
All three appellants were arrested the day after the
shooting. When officers contacted Meraz, he briefly attempted to
flee but was apprehended. Officers recovered a cell phone and a
belt buckle with the letter “T” on it. Chambasis and Bibiano were
4 When Bibiano was arrested the following day, he had
tattoos matching Santa Ana’s description, although by the time of
trial he had turned the “1” into a “T” and the “3” into a “B.”
5
arrested when officers stopped the car they were riding in
together. Bibiano gave officers a false name. A search of
Chambasis’s residence yielded two Pittsburgh Pirates baseball
caps with “RIP, Bones” and “TBST” written on them, a rifle, a
shotgun, and other items with his name on them.
While in custody, Bibiano and Meraz were placed in a cell
together and their conversation was secretly recorded. Bibiano
said he was going to “do life.” He said officers got him in “Bash’s
car” about an hour before. He claimed he did not know anything
because he “was not even there.” Meraz also claimed he “wasn’t
even there” and said he did not know Bash. Bibiano responded,
“Me neither.” Bibiano said, “The rest of my life has gone to
waste,” to which Meraz responded, “All because of some stupid
shit.” Bibiano said Bash had told him, “Don’t trip, dude,” and
Bibiano had responded, “I’m no fuckin’ rat, man.” Meraz
commented, “If you rat, foo’, they’ll make paperwork on you,” and
“when you get to the big house, they fuck you up, foo’. Don’t say
anything.” Bibiano said, “Yeah, I know. It doesn’t matter ain’t
gonna happen. I don’t even got nothing. Shit, I was not even
there, man. What the fuck I’m gonna tell you?” Meraz claimed
all the police had was “a bunch of gossip.” Meraz said, “What
saved me foo’, is that they asked me what I was doing. And I told
him that—that I was with Paula. And they called her and she
said yes.” Bibiano responded, “Hopefully my girl will also say
yes.” They talked about serving life in prison and Meraz said he
had “lost everything . . . [a]ll because of one thing.” Bibiano said,
“We’ll never get out, dude. Never.” Bibiano said something
about leaving the house and “I wasn’t even gonna go out, foo’. I
should’ve stayed, I should’ve stayed.” Meraz agreed. When
6
Bibiano said the police showed him a picture of Meraz, Meraz
responded, “We should’ve worn masks. Stupid ass, Bash.”
During an interview about the murders, Bibiano began to
cry. He denied knowing Chambasis.
At an interview with the police after appellants were
arrested, Luis E. Orozco said Bibiano “jumped” him into the gang
and Terra Bella had “problems” with Project Boys after Villa’s
murder. Orozco was with appellants at a park three to five miles
away from the San Fernando Gardens at around 5:00 p.m. the
day of the shooting. He let Bibiano borrow his cell phone and
Bibiano left the park around 5:20 p.m. After Bibiano left the
park, he called Orozco later at home and told him, “Don’t go
outside there’s too much cops.” At some point, Bibiano returned
to say goodbye to his girlfriend and gave Orozco his phone back.
Bibiano began to watch the news, which Orozco found suspicious.
In response to a story showing “ladies crying” in “the Projects
right here,” Bibiano seemed nervous and said, “Man, fuck. I got
to get the fuck out of here.” He said he had “fucked up” and he
was “going to hell.” A recording of the news broadcast from that
day showed photographs of Zamora and Curiel with signs reading
“Rest in peace, Javier, Pimps” and “Rest in peace, Justin.”
A search of the phone Orozco said he lent Bibiano and the
phone recovered from Meraz revealed a text message was sent
from Meraz’s phone to Orozco’s phone at 1:17 p.m. the day after
the shooting reading, “I’m going to Sinaloa tonight. I already got
my ticket.” At 1:27 p.m., Orozco’s phone responded, “Can I go
with you, or what[?]” At 7:05 p.m. on the day of the shooting,
Meraz’s phone sent a text message to a different number reading,
“On the run.”
7
Officer Tyler Adams testified as a gang expert for the
prosecution. He was assigned to monitor Terra Bella and he
gathered information by talking to gang members, both in and
out of custody, as well as interviewing them as part of conducting
probation and parole services. Terra Bella had approximately 30
members and their symbols included “13” to signify affiliation
with the Mexican Mafia and the hand signals and initials “TB”
and “TBS.” The gang’s primary activities were burglary, grand
theft, carrying loaded and concealed firearms, assault with
firearms, assault likely to cause great bodily injury, and felony
vandalism. Officer Adams identified convictions of several Terra
Bella gang members for those types of crimes. He confirmed the
rivalry between Terra Bella and Project Boys, which became
heated after Avila murdered Villa in May 2008.
Officer Adams confirmed all three appellants were Terra
Bella gang members. Meraz had previously admitted he was a
Terra Bella gang member, and when Officer Adams had
previously stopped him, he had been with other gang members,
had been wearing gang attire, and had a “PTB” tattoo inside his
bottom lip. During one stop, Meraz said he was trying to get into
Terra Bella and had to “smoke somebody” to do so. Bibiano had
gang tattoos and when Officer Adams previously stopped him, he
had been with other gang members. Officer Adams had also
obtained a photograph showing Bibiano throwing gang hand
signals. Chambasis also had gang tattoos and Officer Adams had
previously stopped him in the presence of other Terra Bella gang
members. Since his arrest, Chambasis had added tattoos to his
face and neck.
Officer Adams testified to the importance of respect in a
gang and “putting in work” by typically committing crimes to
8
move up in the gang. He believed the shooting in this case was
bold within Terra Bella, given it occurred during the day in rival
gang territory. When given a hypothetical question tracking the
facts of the shooting, Officer Adams opined the shooting was
retaliatory for Villa’s murder. He also opined the murders were
associated with, committed for, and likely committed at the
direction of Terra Bella.
Appellants did not testify. In his defense, Chambasis
offered evidence that no fingerprint analysis was done on the
casings recovered at the scene of the shooting. He elicited
testimony that when police interviewed S.B. at the police station
after the shooting, she said the gunman she remembered was
shorter than the officer interviewing her, who was about five feet
10 inches tall, and had hair. She said the other men did not have
guns. When she was shown two books of photographs, she
pointed to someone who was not Chambasis and said, “Kind of
No. 11 . . . but only had hair.” Chambasis also elicited testimony
that at the scene of the shooting and later in the hospital, Santa
Ana claimed he did not know one of the assailants. In his
defense, Bibiano elicited testimony that Santa Ana initially said
at the scene of the shooting that he did not know from which
direction the gunmen had come. He also said appellants all wore
black and Meraz was the one who said, “Where you vatos from.”
He did not see them in a car.
DISCUSSION
1. Santa Ana Impeachment Evidence*
During a break in Santa Ana’s direct examination, the
parties and the court discussed four possible areas for
* See footnote, ante, page 1.
9
impeaching Santa Ana’s credibility: a prior sustained juvenile
petition for being a minor in possession of a firearm (former
§ 12101, subd. (a)(1), now § 29610); a sustained petition for
contempt of court relating to a gang injunction (§ 166, subd.
(a)(4)); a sustained petition for identity theft (§ 530.5); and a
recent arrest for battery of a cohabitant and criminal threats
(§§ 243, subd. (e), 422). After hearing argument from the parties,
the court admitted the identity theft petition for impeachment
purposes, but excluded the contempt and firearm possession
petitions because they were not crimes of moral turpitude. The
court postponed ruling on the domestic violence incident, but
eventually excluded it as discussed more fully below. Appellants
argue the trial court abused its discretion and violated their due
process rights to confront witnesses and present defenses by
excluding evidence of the juvenile firearm possession and the
domestic violence incident. We disagree.
A. Juvenile Petition for Firearm Possession
Appellants argue Santa Ana’s juvenile petition for
possession of a firearm was a crime of moral turpitude, so the
court erred and violated their constitutional rights by excluding it
for impeachment purposes. Respondent assumes state law error
and argues appellants’ constitutional rights were not violated and
any state law error was harmless. We will also assume state law
error because we find no constitutional violation and find any
state law error harmless.
Limitations to a defendant’s cross-examination of a witness
do not violate the confrontation clause “ ‘unless the defendant can
show that the prohibited cross-examination would have produced
“a significantly different impression of [the witnesses’]
credibility.” ’ ” (People v. Smith (2007) 40 Cal.4th 483, 513.)
10
Similarly, “the ‘[a]pplication of the ordinary rules of evidence . . .
does not impermissibly infringe on a defendant’s right to present
a defense.’ [Citations.] Although completely excluding evidence
of an accused’s defense theoretically could rise to this level,
excluding defense evidence on a minor or subsidiary point does
not impair an accused’s due process right to present a defense.
[Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling
was an error of law merely; there was no refusal to allow
[defendant] to present a defense, but only a rejection of some
evidence concerning the defense.’ ” (People v. Fudge (1994) 7
Cal.4th 1075, 1102-1103.) If the trial court erred under state law
only, we review the record to determine whether a more favorable
outcome was reasonably probable in the absence of the error. (Id.
at pp. 1103-1104.)
The trial court’s exclusion of Santa Ana’s juvenile petition
for firearm possession did not deprive appellants of their
confrontation and due process rights because the jury heard
significant other evidence calling Santa Ana’s veracity into doubt.
The trial court admitted evidence of Santa Ana’s juvenile petition
for identity theft, and he was questioned about it in front of the
jury. Santa Ana also admitted he had been a gang member and
had placed gang graffiti on a bench at the scene of the shooting,
and he admitted he had previously lied under oath that he was
not a gang member and he had not done the graffiti. Santa Ana’s
juvenile petition for firearm possession was therefore only a
subsidiary point that would not have given the jury a
significantly different impression of his credibility.
Further, any state law error was harmless because other
evidence beyond Santa Ana’s testimony overwhelmingly
demonstrated appellants’ guilt. S.B. identified Chambasis as one
11
of the gunmen, and ballistics and other evidence linked
Chambasis to one of the guns used in the shooting. Meraz and
Bibiano were caught on a jail recording making incriminating
statements, including Meraz telling Bibiano, “We should’ve worn
masks,” which the trial court properly admitted against Bibiano
as an adoptive admission as we discuss below. Meraz sent text
messages after the shooting that he was “[o]n the run” and he
was “going to Sinaloa tonight,” to which Bibiano responded, “Can
I go with you, or what[?]” Meraz briefly fled from police before he
was arrested. When Bibiano watched a news story on the
shooting, he said he had “fucked up,” he was “going to hell,” and
he had “to get the fuck out of here.” Finally, there was significant
evidence of a retaliatory motive for the shooting to avenge the
shooting death of a fellow gang member.
B. Domestic Violence Incident
Two days after trial began, Santa Ana was arrested for
domestic violence and criminal threats. During the parties’ and
the court’s initial discussion of impeachment for Santa Ana, the
prosecutor objected to the admission of the incident under
Evidence Code section 352, arguing the evidence would be too
time consuming and confusing because there was no conviction
and because the woman involved in the incident had a “history”
that would require the prosecution to “drag[] in the lady so that
we can have a little minitrial within a trial.” The court expressed
concern that it did not have enough information and postponed
ruling. The following day the prosecution turned over the police
report for the incident to defense counsel.
At a later hearing, Meraz’s counsel argued that Santa Ana
“went to great lengths to distance himself from his prior life” and
repeatedly testified “he no longer is that person that he was
12
before” and “[t]hat was his greatest mistake he has made,”
leading the jury to believe he was living a crime-free life.
According to Meraz’s counsel, the recent domestic violence
incident “directly impeaches that. This is only a couple years out
from when he last supposedly was” a gang member. The court
questioned how the incident involving domestic violence related
to Santa Ana distancing himself from being a gang member, but
postponed ruling pending further investigation.
Later, Meraz’s counsel brought the victim into court, who
was reluctant but willing to testify consistent with the police
report. Meraz’s counsel proffered that she would testify Santa
Ana went to her home, jumped out at her from the bushes, and
punched her multiple times in the face, head, and body, causing
her to fall to the ground. He grabbed her by the hair and pulled
her across the concrete several feet until she screamed for help
and ran away. Meraz’s counsel indicated he planned to ask her
about other incidents with Santa Ana as well.
The court noted the police report indicated she had bruising
around her eye that looked healed and possibly predated the
incident, and she had no other injuries indicating the incident
occurred. The report also contained statements from Santa Ana
that he was home at the time, the victim had threatened to have
him arrested if he did not take care of his children, and she was
intoxicated. The court also discussed a “DCFS report” in which
the victim was identified “as a perpetrator with 18 prior closed
referrals for general neglect and emotional abuse of her children.”
The court further noted other reports involving the victim
returning to Santa Ana’s house intoxicated and belligerent in the
days following the domestic violence incident. On one occasion,
the victim claimed Santa Ana threw her to the floor and began
13
strangling her, but she was able to get away. She told the police
at the time she was able to breathe and did not lose
consciousness, but later changed her story. Santa Ana denied the
incident and according to his mother, the victim jumped over a
six-foot-high fence to argue with Santa Ana, and the
confrontation did not become physical. Finally, there was a
report claiming Santa Ana threatened the victim over the phone,
which Santa Ana denied. Instead, he claimed he told the victim
to leave him alone and she threatened him, saying he should
“watch his back because she was going to have him killed.” The
court noted these reports created “huge credibility conflicts” in a
“he-said/she-said reporting environment where there’s an ongoing
domestic-related conflict between these two people.”
The court explained that the prosecution filed a motion to
exclude this evidence pursuant to Evidence Code section 352
because it was not clear who was telling the truth and it was a
“messy situation.” Meraz’s counsel argued the jury could believe
Santa Ana was a violent person, contradicting how he presented
himself on the stand, and another witness was available to
corroborate the threats he made over the phone. The prosecutor
responded that Santa Ana had not yet been convicted and
presenting the evidence would entail numerous witnesses,
shifting the jury’s focus away from the main issues.
The court ruled the evidence went to the “collateral” issue
of impeachment based on misdemeanor conduct and presented a
“classic trial within a trial if I’ve ever seen one” that would
require an “array” of witnesses. Further complicating matters,
the victim may have had a valid basis to refuse to testify, and
even if she testified, the court could not simply limit the evidence
to her testimony in order to be fair to both sides. The court also
14
noted the allegations had not been proven in any court. Thus,
because this evidence would consume an undue amount of time
and would risk confusing the jury, the court excluded it.
“A trial court has broad discretion under Evidence Code
section 352 to ‘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.’ This discretion allows the trial court
broad power to control the presentation of proposed impeachment
evidence ‘ “ ‘to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues.’ ” ’ ”
(People v. Mills (2010) 48 Cal.4th 158, 195.) While impeachment
evidence of conduct involving moral turpitude not amounting to a
felony is admissible, it “is a less forceful indicator of immoral
character or dishonesty than is a felony. Moreover, impeachment
evidence other than felony convictions entails problems of proof,
unfair surprise, and moral turpitude evaluation which felony
convictions do not present. Hence, courts may and should
consider with particular care whether the admission of such
evidence might involve undue time, confusion, or prejudice which
outweighs its probative value.” (People v. Wheeler (1992) 4
Cal.4th 284, 296-297.) We review the trial court’s exclusion of
impeachment evidence for abuse of discretion. (Mills, supra, at
p. 195.)5
5 Meraz suggests our review is de novo because the evidence
was admissible under Evidence Code section 1101. Whether or
not correct, the trial court excluded the evidence pursuant to
Evidence Code section 352, so our review is for abuse of
discretion.
15
The trial court acted within its discretion in excluding
evidence of Santa Ana’s recent domestic violence arrest under
Evidence Code section 352. The probative value of this evidence
was low. Appellants emphasize that Santa Ana gave the
impression to the jury that he was fully reformed from his
criminal past as a gang member, so evidence of the recent
domestic violence incident would have brought his credibility into
doubt. If the jury did get this impression, it was weak at best.
Santa Ana called being in the gang “a mistak[e in] life that I
made” and said, “There was a few times where I did lie. But after
I realized I made a big mistake I came clean with the truth to
this day.” Appellants have not pointed to any testimony where
he claimed to be currently crime-free or that he had reformed
completely. Moreover, as discussed above, there was other
evidence questioning Santa Ana’s credibility, so evidence of the
domestic violence incident had only limited additional
impeachment value. On the other side of the scale, the trial court
correctly recognized the reports created a “he-said/she-said
reporting environment where there’s an ongoing domestic-related
conflict between these two people,” which the jury would have
had to resolve following a substantial minitrial with numerous
witnesses, consuming significant time during an already lengthy
trial and creating a risk of jury confusion.6
6 Meraz cites Andrews v. City and County of San Francisco
(1998) 205 Cal.App.3d 938, but it is distinguishable. In that case,
the Court of Appeal faulted the trial court for excluding all
evidence of a witness’s past misconduct, thereby leaving the
witness’s testimony “untarnished,” whereas the jury in this case
heard other evidence impeaching Santa Ana’s credibility. (Id. at
p. 947.)
16
Nor did the trial court violate appellants’ constitutional
rights to confrontation and due process. As we concluded with
the trial court’s exclusion of Santa Ana’s juvenile petition for
firearm possession, the admission of evidence underlying the
domestic violence incident would not have given the jury a
significantly different impression of Santa Ana’s credibility and
appellants were free to cross-examine him and offer other
impeachment evidence, so they were not prevented from putting
on a defense.
Finally, for reasons already discussed, any error in
excluding this impeachment evidence was harmless because the
evidence of appellants’ guilt was overwhelming.
2. Gang Expert Testimony
Appellants jointly contend the trial court violated their
Sixth Amendment rights to confrontation by allowing Officer
Adams to give expert opinions based on out-of-court testimonial
hearsay from declarants whom appellants did not have an
opportunity to cross-examine. Before our high court decided
Sanchez, we found no error. Reevaluating appellants’
contentions in light of Sanchez, we conclude a narrow portion of
Officer Adams’s testimony was barred by the confrontation clause
and state law, but the erroneous admission of that testimony was
harmless beyond a reasonable doubt.7
7 Respondent argues appellants forfeited this issue by failing
to object on confrontation clause grounds in the trial court. Any
objection would likely have been futile because the trial court was
bound to follow pre-Sanchez decisions holding expert “basis”
evidence does not violate the confrontation clause. (See, e.g.,
People v. Hill (2011) 191 Cal.App.4th 1104, 1128-1131.) We will
therefore address the merits of this claim.
17
A. Sanchez
In Sanchez, our high court considered the extent to which
Crawford v. Washington (2004) 541 U.S. 36 (Crawford) limits an
expert witness from relating case-specific hearsay in explaining
the basis for an opinion, and it clarified the application of state
hearsay rules to that kind of expert testimony. It held the case-
specific out-of-court statements conveyed by the prosecution’s
gang expert constituted inadmissible hearsay under state law
and, to the extent they were testimonial, ran afoul of Crawford.
(Sanchez, supra, 63 Cal.4th at pp. 670-671.)
As is typical in gang-related prosecutions, the gang expert
in Sanchez testified to his background and experience
“investigating gang-related crime; interacting with gang
members, as well as their relatives; and talking to other
community members who may have information about gangs and
their impact on the areas where they operate. As part of his
duties, [he] read reports about gang investigations; reviewed
court records relating to gang prosecutions; read jail letters; and
became acquainted with gang symbols, colors, and art work.”
(Sanchez, supra, 63 Cal.4th at p. 671.) He also testified about the
gang to which the defendant allegedly belonged, including its
primary activities and the convictions of two gang members
demonstrating the gang’s pattern of criminal activity. (Id. at
p. 672.) As to the defendant specifically, the expert testified
about five contacts defendant had with police reflected in a
STEP8 notice, police reports, and a field identification (FI) card.
8 This acronym is a reference to the California Street
Terrorism Enforcement and Prevention Act. (Pen. Code, § 186.20
et seq.; Sanchez, supra, 63 Cal.4th at p. 672, fn. 3.)
18
The expert was not present during any of the contacts and only
related the information recorded by other officers. Based on this
information, the expert opined the defendant was a gang
member. (Id. at p. 673.)
The defendant challenged the admission of the gang
expert’s testimony describing the defendant’s prior contacts with
police, arguing it was testimonial hearsay that violated his
confrontation clause rights. (Sanchez, supra, 63 Cal.4th at
p. 674.) The defendant did not challenge the admission of the
background testimony from the expert, such as his description of
“general gang behavior or descriptions of the . . . gang’s conduct
and its territory.” (Id. at p. 698.)
The court explained under Crawford and the confrontation
clause, a hearsay statement is inadmissible unless it falls within
an exception recognized at the time of the Sixth Amendment’s
adoption or the declarant is unavailable to testify and the
defendant had a previous opportunity for cross-examination or
that opportunity was forfeited. (Sanchez, supra, 63 Cal.4th at
p. 680.) Thus, a court’s task in evaluating out-of-court
statements under hearsay rules and Crawford is two-fold: “The
first step is a traditional hearsay inquiry: Is the statement one
made out of court; is it offered to prove the truth of the facts it
asserts; and does it fall under a hearsay exception? If a hearsay
statement is being offered by the prosecution in a criminal case,
and the Crawford limitations of unavailability, as well as cross-
examination or forfeiture, are not satisfied, a second analytical
step is required. Admission of such a statement violates the right
to confrontation if the statement is testimonial hearsay, as the
high court defines that term.” (Sanchez, supra, at p. 680.)
19
On the state law question, the court drew a line between an
expert’s testimony as to general background information and
case-specific facts. Traditionally, “an expert’s testimony
concerning his general knowledge, even if technically hearsay,
has not been subject to exclusion on hearsay grounds,” but
experts have not been permitted to convey case-specific hearsay
about which the expert has no personal knowledge. (Sanchez,
supra, 63 Cal.4th at p. 676.) The court defined case-specific facts
as “those relating to the particular events and participants
alleged to have been involved in the case being tried.” (Ibid.) An
expert may “testify about more generalized information to help
jurors understand the significance of those case-specific facts. An
expert is also allowed to give an opinion about what those facts
may mean. The expert is generally not permitted, however, to
supply case-specific facts about which he has no personal
knowledge.” (Ibid.) The court gave several examples of this
distinction, one of which pertained directly to gang experts:
“That an associate of the defendant had a diamond tattooed on
his arm would be a case-specific fact that could be established by
a witness who saw the tattoo, or by an authenticated photograph.
That the diamond is a symbol adopted by a given street gang
would be background information about which a gang expert
could testify. The expert could also be allowed to give an opinion
that the presence of a diamond tattoo shows the person belongs to
the gang.” (Id. at p. 677.)
The court explained that courts frequently avoided any
confrontation issues with this kind of expert basis evidence by
“concluding that statements related by experts are not hearsay
because they ‘go only to the basis of [the expert’s] opinion and
should not be considered for their truth.’ ” (Sanchez, supra, 63
20
Cal.4th at pp. 680-681.) The court disapproved this reasoning
when the expert bases an opinion on case-specific facts about
which he or she has no personal knowledge: “If an expert
testifies to case-specific out-of-court statements to explain the
bases for his opinion, those statements are necessarily considered
by the jury for their truth, thus rendering them hearsay. Like
any other hearsay evidence, it must be properly admitted
through an applicable hearsay exception. Alternatively, the
evidence can be admitted through an appropriate witness and the
expert may assume its truth in a properly worded hypothetical
question in the traditional manner.” (Id. at p. 684, fn. omitted.)
Because this testimony is hearsay, it implicates Crawford and
the confrontation clause if the statements are also testimonial
and none of Crawford’s exceptions apply. (Sanchez, at p. 685.)
The court thus crafted the following rule: “When any
expert relates to the jury case-specific out-of-court statements,
and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay. It
cannot logically be maintained that the statements are not being
admitted for their truth. If the case is one in which a prosecution
expert seeks to relate testimonial hearsay, there is a
confrontation clause violation unless (1) there is a showing of
unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.”
(Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) Canvassing
confrontation clause cases, it concluded hearsay statements are
testimonial if they are made “primarily to memorialize facts
relating to past criminal activity, which could be used like trial
testimony. Nontestimonial statements are those whose primary
purpose is to deal with an ongoing emergency or some other
21
purpose unrelated to preserving facts for later use at trial.” (Id.
at p. 689.)
Turning to the facts of the case, the court concluded the
police reports, the STEP notice, and potentially the FI card were
case-specific testimonial hearsay, violating the confrontation
clause. First, the three contacts with the defendant reflected in
police reports compiled by the investigating officers during the
investigations of those crimes were “statements about a
completed crime, made to an investigating officer by a
nontestifying witness,” which “are generally testimonial unless
they are made in the context of an ongoing emergency . . . or for
some primary purpose other than preserving facts for use at
trial.” (Sanchez, supra, 63 Cal.4th at p. 694.) It did not matter
that the officers summarized the statements or that the
defendant himself was not accused of the crimes. (Id. at pp. 694-
695.) Second, the sworn STEP notice retained by police recording
the defendant’s biographical and other information was
testimonial because it was a formal sworn statement from a
police officer that the information was accurate, and its primary
purpose was to collect information for later use at trial.
(Sanchez, at p. 696.) Finally, the FI card memorializing the
contact with the defendant could be testimonial, but the court did
not decide the issue because the expert’s testimony was unclear
and confusing on this point. It noted “[i]f the card was produced
in the course of an ongoing criminal investigation, it would be
more akin to a police report, rendering it testimonial.” (Id. at
p. 697.)
The court found the confrontation clause violation
prejudicial as to the gang enhancements because the main
evidence of the defendant’s intent to benefit the gang was the
22
expert’s recitation of testimonial hearsay. (Sanchez, supra, 63
Cal.4th at p. 699.) In doing so, it took care to note the defendant
was not challenging the expert’s “background testimony about
general gang behavior or descriptions of the . . . gang’s conduct
and its territory,” which was “based on well-recognized sources in
[the expert’s] area of expertise. It was relevant and admissible
evidence as to the . . . gang’s history and general operations.” (Id.
at p. 698.)
B. Officer Adams’s Testimony
Like the expert in Sanchez, Officer Adams testified to his
extensive training on gangs generally and how he gathered
background information about Terra Bella. For training, he had
attended gang courses and conferences; he had trained in the
field with an officer who pointed out active gang members; he had
responded to gang-related crimes; and he had spoken with gang
officers and detectives. He had also been assigned to a gang
crime-prevention task force responding to hot spots around Los
Angeles, during which he would speak to gang officers and
detectives about the gangs involved. As part of the gang unit in
the Foothill Division monitoring Terra Bella, he had gathered
intelligence on gang membership and rivalries to allow him “to
respond more effectively in response to a shooting or any other
gang-related crimes.” He received the “majority of our
intelligence” by “speak[ing] with gang members of all levels and
ages, both in and out of custody, whether they’re suspects,
victims, witnesses, or none of the above. We conduct probation
and parole services, at which time we would interview them
about just general gang life.”
Based on this experience and background, he described the
size of Terra Bella, its symbols, and its primary activities, and he
23
identified the convictions of several Terra Bella members based
on court records. He also described the rivalry between Terra
Bella and Project Boys, which became heated after Avila
murdered Villa in May 2008. He further testified to the
importance of respect in a gang and “putting in work” by typically
committing crimes to move up in the gang, and he believed the
shooting in this case was bold because it occurred during the day
in rival gang territory. When given a hypothetical question
tracking the facts of the shooting, Officer Adams opined the
shooting was retaliatory for Villa’s murder and was committed in
association with, for, and at the direction of Terra Bella.
As to appellants specifically, he opined all three appellants
were Terra Bella gang members. Critically and in contrast to
Sanchez, he based his opinion on his personal interactions with
each of them, which were recorded on FI cards intended to
“document the basics of the stop for any future investigative use.”
For example, Officer Adams stopped Meraz two months before
the shooting in this case, and Meraz told him he was trying to
become a full-fledged member of Terra Bella, and to do so, he
needed to “smoke” someone. Officer Adams interpreted this to
mean he needed to shoot someone. Meraz also wore Terra Bella
gang attire during this encounter and had a Terra Bella gang
tattoo inside his bottom lip. Officer Adams contacted Bibiano
several times while in the company of other Terra Bella gang
members. He identified Bibiano in photographs in which he was
displaying gang hand signals and gang tattoos. And Officer
Adams contacted Chambasis twice in the presence of other gang
members. He took photographs of Chambasis’s gang tattoos and
belt buckle.
24
Officer Adams did, however, also testify regarding FI cards
filled out by other officers. In one, Meraz said he was a member
of the Pierce Street gang, not Terra Bella. In another, it was
noted Meraz was present with another gang member. In a third,
it was noted Meraz was with a “gang member associate.” Officer
Adams also testified about an arrest report from other officers
related to another gang member indicating Meraz was with him
when the gang member was arrested.
C. Analysis
Appellants argue almost all aspects of Officer Adams’s
general background testimony were case specific and testimonial,
including his opinion that the shooting in this case was in
retaliation for Villa’s murder, how Terra Bella operates, the
gang’s primary activities, and the gang’s pattern of criminal
activity based on convictions of other gang members. In doing so,
appellants attack the sources of Officer Adams’s testimony,
namely “out-of-court statements made by both police officers and
other gang members.” They also focus on how the prosecution
used Officer Adams’s testimony to prove both the gang
enhancements and the retaliatory motive for the shooting in this
case. Appellants fundamentally misunderstand the scope and
import of Sanchez.
Under Sanchez, facts are only case specific when they
relate “to the particular events and participants alleged to have
been involved in the case being tried,” which in Sanchez were the
defendant’s personal contacts with police reflected in the hearsay
police reports, STEP notice, and FI card. (Sanchez, supra, 63
Cal.4th at p. 676, italics added.) The court made clear that an
expert may still rely on general “background testimony about
general gang behavior or descriptions of the . . . gang’s conduct
25
and its territory,” which is relevant to the “gang’s history and
general operations.” (Id. at p. 698.) This plainly includes the
general background testimony Officer Adams gave about Terra
Bella’s operations, primary activities, and pattern of criminal
activities, which was unrelated to defendants or the current
shooting and mirrored the background testimony the expert gave
in Sanchez. It also falls in line with the Sanchez court’s
hypothetical example that an expert may testify that a diamond
tattoo is “a symbol adopted by a given street gang” and the
presence of the tattoo signifies the person belongs to the gang.
(Id. at p. 677.) By permitting this type of background testimony,
the court recognized it may technically be based on hearsay, but
an expert may nonetheless rely on it and convey it to the jury in
general terms. (Id. at p. 685.) Thus, under state law after
Sanchez, Officer Adams was permitted to testify to non-case-
specific general background information about Terra Bella, its
rivalry with Project Boys, its primary activities, and its pattern of
criminal activity, even if it was based on hearsay sources like
gang members and gang officers.9
9 Even if we assume Officer Adams’s opinion that the
shooting was retaliatory for Villa’s murder by the rival Project
Boys gang was case specific and beyond his personal knowledge,
his opinion was still admissible. Another gang officer who
assisted in the investigation of the Villa murder testified to the
feud between Terra Bella and Project Boys. Officer Adams was
permitted to rely on those independently proven facts to opine
the current shooting was retaliatory for Villa’s murder. (See
Sanchez, supra, 63 Cal.4th at p. 686 [expert cannot rely on case-
specific hearsay unless it is “independently proven by competent
evidence”].)
26
We also conclude that none of this background information
was testimonial. Unlike the STEP notice, police reports, and FI
card in Sanchez, nothing in the record suggests Officer Adams
obtained any of this information “primarily to memorialize facts
relating to past criminal activity, which could be used like trial
testimony.” (Sanchez, supra, 63 Cal.4th at p. 689.) Officer
Adams described the sources of his background information on
Terra Bella and the rivalry with Project Boys in only the most
general terms. He conveyed no specific statements by anyone
with whom he spoke, and reached only general conclusions based
on his education, training, and experience. As we explained in a
case before Sanchez, “[d]ay in and day out such information
would be useful to the police as part of their general community
policing responsibilities quite separate from any use in some
unspecified criminal prosecution.” (People v. Valadez (2013) 220
Cal.App.4th 16, 36.) To conclude otherwise would eviscerate the
role of gang experts in gang-related prosecutions, a consequence
the court in Sanchez neither contemplated nor likely intended.10
Some portions of Officer Adams’s testimony were case
specific under Sanchez, namely, his interactions with appellants
memorialized on FI cards. But unlike the hearsay documents in
Sanchez, this testimony was not barred under state or federal
law because Officer Adams was present during these contacts,
had personal knowledge of the facts, and was subject to cross-
10 The certified records of the convictions of other gang
members also were not testimonial under Crawford. (People v.
Taulton (2005) 129 Cal.App.4th 1218, 1225 [documents showing
“acts and events relating to convictions and imprisonments” are
not testimonial under the confrontation clause].)
27
examination at trial. (Sanchez, supra, 63 Cal.4th at pp. 676,
680.)
Respondent concedes, and we agree, state hearsay rules
barred the admission of Officer Adams’s testimony on the FI
cards and arrest report completed by other officers outside his
presence, all of which conveyed the same type of case-specific
information the court barred in Sanchez. Respondent also
concedes, and we also agree, the arrest report was testimonial
because it was most likely made during an investigation of a
completed crime, like the police reports in Sanchez. Respondent
disagrees, however, that the FI cards were testimonial because
they were “not produced in the course of an ongoing criminal
investigation, but rather were produced as investigative tools to
help police solve crimes that may not have even occurred at the
time F.I. card was produced.” Yet, Officer Adams testified FI
cards are created “to document the basics of the stop for any
future investigative use.” (Italics added.) Although the court in
Sanchez did not decide whether the FI card at issue there was
testimonial, it noted the FI card might be if it “was produced in
the course of an ongoing criminal investigation.” (Sanchez,
supra, 63 Cal.4th at p. 697.) It seems the FI cards here fall close
to that line.
In any case, we will assume the FI cards at issue here were
testimonial because we conclude their admission and the
admission of the arrest report was harmless beyond a reasonable
doubt. (Sanchez, supra, 63 Cal.4th at p. 698 [applying federal
harmless error standard to confrontation clause violation].) The
FI cards and arrest report purported to show Meraz’s
membership in Terra Bella, which could be relevant to the
retaliatory motive and gang enhancements in this case. (Id. at
28
pp. 698-699 [noting gang membership was not element of gang
enhancement but could be relevant to intent to benefit gang
element].) But the evidence was duplicative of and weak
compared to the other evidence that overwhelmingly
demonstrated his Terra Bella membership. He admitted his
gang affiliation to Officer Adams, explaining he was trying to
become a full-fledged member of Terra Bella, and to do so, he
needed to “smoke” (i.e., shoot) someone. And he wore Terra Bella
gang attire and had a Terra Bella gang tattoo inside his bottom
lip. To the extent the FI cards and arrest report tended to show
Meraz harbored a gang retaliation motive for the shooting, the
evidence of retaliation was already overwhelming. Meraz
committed the shooting with fellow gang members Bibiano and
Chambasis in the heart of Project Boys territory, the gang
responsible for Terra Bella gang member Villa’s murder. And
just before the shooting Bibiano asked the victims where they
were from, which everyone understood to be a gang challenge.
On this record, any state or federal error in admitting the FI
cards and arrest report was harmless beyond a reasonable doubt.
3. Admission of Meraz’s “Masks” Statement*
Before trial, the trial court held a hearing on the
admissibility of Meraz’s secretly recorded statement to Bibiano
while they were in custody, “We should’ve worn masks. Stupid
ass, Bash.” Bibiano coughed, but did not respond to the
comment. In seeking its admission, the prosecution argued the
statement was an adoptive admission. The trial court agreed. It
explained at the time of the recording Meraz and Bibiano knew
they were in custody for a double homicide, they spoke in
* See footnote, ante, page 1.
29
“hushed, secretive tones, often in Spanish designed to mask their
conversation and keep it secretive,” and no one from law
enforcement was present. During the conversation, they spoke
freely and each was “adopting the statements of the other with no
disagreements between them.” The trial court believed it was
“very clear to the court that both defendants are implicating
themselves and their co-defendant, Mr. Chambasis.” Thus, the
“masks” statement was admissible against Bibiano as an
adoptive admission.
Bibiano argues on appeal the trial court erred in admitting
Meraz’s statement against him as an adoptive admission. We
review the trial court’s ruling for abuse of discretion (People v.
DeHoyos (2013) 57 Cal.4th 79, 132), and we find none.
“Evidence of a statement offered against a party is not
made inadmissible by the hearsay rule if the statement is one of
which the party, with knowledge of the content thereof, has by
words or other conduct manifested his adoption or his belief in its
truth.” (Evid. Code, § 1221.) “ ‘If a person is accused of having
committed a crime, under circumstances which fairly afford him
an opportunity to hear, understand, and to reply, and which do
not lend themselves to an inference that he was relying on the
right of silence guaranteed by the Fifth Amendment to the
United States Constitution, and he fails to speak, or he makes an
evasive or equivocal reply, both the accusatory statement and the
fact of silence or equivocation may be offered as an implied or
adoptive admission of guilt.’ [Citations.] ‘For the adoptive
admission exception to apply, . . . a direct accusation in so many
words is not essential.’ [Citation.] ‘When a person makes a
statement in the presence of a party to an action under the
circumstances that would normally call for a response if the
30
statement were untrue, the statement is admissible for the
limited purpose of showing the party’s reaction to it. [Citations.]
His silence, evasion, or equivocation may be considered as a tacit
admission of the statements made in his presence.’ ” (People v.
Riel (2000) 22 Cal.4th 1153, 1189 (Riel).) “ ‘To warrant
admissibility, it is sufficient that the evidence supports a
reasonable inference that an accusatory statement was made
under circumstances affording a fair opportunity to deny the
accusation; whether defendant’s conduct actually constituted an
adoptive admission becomes a question for the jury to decide.’ ”
(Id. at pp. 1189-1190.)
The trial court did not abuse its discretion in admitting
Meraz’s “masks” statement as an adoptive admission by Bibiano.
Riel is instructive. In that case, a witness testified that the
defendant and two others came to her home, and the defendant
told her “ ‘they had gotten fucked up and that there was a man in
a coma.’ ” (Riel, supra, 22 Cal.4th at p. 1188.) When the witness
asked the defendant what happened, the other two individuals
“did the talking,” and one made various statements about what
“they” did. (Ibid.) On appeal, the defendant argued the
statements were not adoptive admissions because it was unclear
whether the references to “they” included the defendant. The
court found the circumstances supported an inference that the
references to “they” included defendant because all three
individuals were present, the defendant spoke first, the
individual making the “they” statements did so in response to a
question directed to the defendant, and if the reference to “they”
did not include the defendant, one would have expected the
defendant to have clarified that. “The circumstances warranted
31
presenting the evidence to the jury and letting the jury decide
what weight to give it.” (Id. at p. 1189.)
Here, Bibiano was sitting with Meraz while they were in
custody alone, there was no indication he did not understand
what Meraz meant by the “masks” comment, and the comment
called for a denial if Bibiano was not part of the “we” in “We
should’ve worn masks.” Meraz’s comment also came well into
their conversation, during which they spoke freely in hushed
tones about their arrests for a double homicide, their potential
sentences, and their potential alibis. As the trial court noted, at
no point did they disagree with one another. As in Riel, the
circumstances supported admitting Meraz’s “masks” statement
against Bibiano and allowing the jury to decide what weight to
give it.
4. Cumulative Trial Error
We have found only one minor error and assumed one
other, but have concluded both were harmless. The cumulative
effect of those errors does not warrant reversal.
5. Chambasis’s Motion to Represent Himself at Sentencing
On the day of Chambasis’s sentencing, he moved pursuant
to People v. Marsden (1970) 2 Cal.3d 118 to substitute his
counsel. In an in camera hearing, he expressed dissatisfaction
with his counsel’s performance during trial. The court asked why
he had not brought this up during trial, and he responded, “I
don’t know anything about law. I didn’t. I been researching it
now.” He said he would like to “go pro per for my Sixth
Amendment.” When the court told him he was going to be
sentenced that day, he indicated he wanted to exercise his Sixth
Amendment rights. The court responded, “I think I understand
what you’re trying to do here.” Chambasis’s counsel addressed
32
the complaints and the court indicated it did not “see any issues”
with counsel’s performance. Chambasis asked if the court was
denying him his “Sixth Amendment pro per.” The court asked if
he was asking to represent himself, and he responded, “Or get
another attorney.” The court said, “Well, it’s a little late in the
game for that.” It explained, “You have had [defense counsel] on
your case for years now. You have been through two trials with
him. This is the first time you’ve mentioned something like this
in years. And I’m going to say another thing. I have been
watching you and watching your conduct during the trial. You’re
an extremely manipulative person. And I view part of this effort
that you’re making right now to avoid being sentenced in this
case at this point. And I’m making note of that.”
The court asked him to explain why he had not made a
complaint about his attorney before now. He responded that he
had no one to complain to and he did not know about the law. He
said he “look[ed] into it” and discovered he could talk to the court.
He raised one of the issues he thought his counsel should have
raised at trial, but the court said his counsel was experienced and
the court was not going to “second-guess” his decisions. When the
court said it understood Chambasis wanted to represent himself,
he disagreed, saying he was asking for another lawyer “or I’m
going to have to represent myself.” The court said his request for
another attorney was not timely, so he said, “I’ll go pro per.” The
court explained: “[I]f you want to represent yourself for the
sentencing, which will be today, I’m not going to deprive you of
that; but you will lose the advocate that you have here who
knows more about your case than anybody. And I’m not going to
continue the matter, because your request is not timely.”
33
The court gave Chambasis two options: “based on the fact
that so much time has gone by and you are bringing this up on
the very moment of your sentence, that you can have [defense
counsel] represent you for the sentencing today or, if you feel so
disturbed by that that you want to represent yourself for the
sentencing hearing today, you can do that.” Chambasis said he
wanted to represent himself, but that he would need “[a]t least a
month” to prepare for sentencing. The court responded, “Well, if
you want time, I’m finding that your request is untimely. I’m
prepared and everyone else is prepared to go forward with your
sentencing today. I’m not going to grant a continuance. There is
not good cause to grant a continuance at this point based upon
this late notice. [¶] So my suggestion is you have [defense
counsel] represent you for the sentencing, or you can represent
yourself today if you’re so inclined and want to do that for this
sentencing today.” Chambasis reiterated that he needed to
“study.” The court reiterated it would not continue the matter
and recommended against Chambasis representing himself. It
explained, “I could just as easily deny your request to have you
represent yourself pro per, but that puts me between a rock and a
hard place in the sense that if you are so inclined to represent
yourself for today’s purpose, then that would be it. For the
sentencing you’d have to waive your right to have an attorney
represent you, with all of my counseling you to not do that. Or
you can have [defense counsel] represent you.” The court gave
him a Faretta11 waiver form and repeated that it believed
Chambasis was trying to manipulate the court. In the exchange
that followed, Chambasis repeatedly said he was not going to
11 Faretta v. California (1975) 422 U.S. 806 (Faretta).
34
proceed with the case, and the court repeatedly told him it would
not grant him a continuance. Chambasis ultimately decided
against representing himself and his counsel represented him at
sentencing.
Later in open court, the court further explained it would
not have granted Chambasis’s request to represent himself due to
the “disruptions in my court that were caused by Mr. Chambasis,
that throughout the trial proceedings I had received continuous
information from the bailiffs of Mr. Chambasis’ disruptive
behavior and failure to conform to the rules of the court and
through the bailiff. He, Mr. Chambasis, during one point in the
trial attempted to attack one of the witnesses who was being
brought back, had to be brought down, caused a melee in the
courtroom. And these would be reasons why the court would not
feel comfortable in granting pro per status to a defendant under
those circumstances, one not willing to conform to the rules and
etiquette of the court. [¶] Also, just for the record,
Mr. Chambasis’ requests for pro per status, which he has now
withdrawn, were equivocal, in that he wanted to go pro per only
after being told that he was not going to have a change of lawyers
and that his decisions were more of a reaction to that than a
sincere desire to represent himself.”
Chambasis argues the court abused its discretion in finding
his request to represent himself untimely and forcing him to
choose between keeping his current counsel for sentencing or
representing himself without a continuance. We disagree.
A criminal defendant has a constitutional right to represent
himself at trial if he makes a timely and unequivocal request to
do so. (People v. Scott (2001) 91 Cal.App.4th 1197, 1203.) But
“ ‘when a defendant has elected to proceed to trial represented by
35
counsel and the trial has commenced, it is thereafter within the
sound discretion of the trial court to determine whether such a
defendant may dismiss counsel and proceed pro se.’ ” (People v.
Miller (2007) 153 Cal.App.4th 1015, 1021, quoting People v.
Windham (1977) 19 Cal.3d 121, 124 (Windham).) The factors a
trial court must consider in determining whether to grant a
midtrial request include “the quality of counsel’s representation
of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the
proceedings, and the disruption or delay which might reasonably
be expected to follow the granting of such a motion.” (Windham,
supra, at p. 128.) The trial court need not expressly address all
the relevant factors so long as the record reflects the court
implicitly considered them. (Scott, supra, at p. 1206.)
In arguing that his request to represent himself was timely,
Chambasis relies on People v. Miller. In that case, the defendant
requested to represent himself after the trial ended but two
months before his sentencing, and the trial court denied the
request as untimely. (People v. Miller, supra, 153 Cal.App.4th at
pp. 1019-1020.) The Court of Appeal reversed, reasoning that
sentencing is a posttrial proceeding, so the defendant’s request
was timely made before that proceeding, and Faretta compelled
the trial court to grant the defendant’s request as long as it was
knowing and intelligent. (People v. Miller, at pp. 1023-1024.)
Later, however, the California Supreme Court in People v. Doolin
(2009) 45 Cal.4th 390 (Doolin) found a Faretta request untimely
when the defendant made it on the day scheduled for sentencing
and requested a continuance to prepare. (Doolin, at p. 452.) The
court distinguished People v. Miller, noting the defendant made
the request in that case two months before sentencing, whereas
36
in Doolin, under the facts the “defendant’s right to self-
representation at sentencing was not absolute but subject to the
court’s discretion.” (Doolin, at p. 455, fn. 39.)
We find Doolin controlling and find Chambasis’s request to
represent himself on the day of sentencing was untimely. Doolin
makes clear that a request on the day of sentencing, like a
request on the first day of trial, is untimely. (Doolin, supra, 45
Cal.4th at pp. 454-455; see Windham, supra, 19 Cal.3d at p. 128,
fn. 5.) People v. Miller, on the other hand, involved a request
made two months before sentencing, clearly not the circumstance
here. Chambasis attempts to analogize to People v. Miller and
distinguish Doolin by arguing he did not appear before the court
during the seven weeks between the jury’s verdict and his
sentencing, so he moved to represent himself at his first
opportunity before the court. But Doolin involved a similar four-
week period between the verdict and sentencing, yet the court
still found appellant’s request at sentencing “manifestly
untimely.” (Doolin, supra, at pp. 452, 454.) Moreover,
Chambasis has not explained why he could not have told his
attorney during the period between the verdict and his
sentencing that he wanted to represent himself, who could have
then informed the court of his request.
Turning to the factors in Windham, we find no abuse of
discretion. Although Chambasis had not shown a proclivity to
substitute counsel, the court was reasonably concerned he was
trying to “manipulate” the court to delay his sentencing.
Throughout the proceeding, Chambasis showed a complete
disrespect for the judicial process. As the trial court noted,
during trial he attacked a witness, which caused a melee in the
courtroom and resulted in him and the other defendants being
37
restrained during trial. The record further reflects that, after the
verdicts were read, he said, “Fuck all you motherfuckers. This is
Terra Bella gang, fool”; and at sentencing, he told the prosecutor,
“Shut your bitch ass up.” Moreover, Chambasis’s disagreement
with his counsel was largely over trial tactics and the trial court
could not identify any issues with counsel’s performance. Finally,
Chambasis’s request would have caused at least a month delay in
his sentencing. (People v. Valdez (2004) 32 Cal.4th 73, 103 [“ ‘[A]
midtrial Faretta motion may be denied on the ground that delay
or a continuance would be required.’ ”].) Thus, the trial court
acted within its discretion in denying Chambasis’s untimely
Faretta request.
6. Meraz’s and Bibiano’s Sentences to Life Without Parole
Because Meraz was 16 years old and Bibiano was 17 years
old at the time of the shooting, they challenge their sentences for
life without parole as violating the Eighth Amendment
prohibition against cruel and unusual punishment. Specifically,
Bibiano argues the Eighth Amendment categorically bans all life
without parole sentences for juveniles and they both argue
California’s life without parole scheme violates the United States
Supreme Court’s recent decision in Miller v. Alabama (2012) __
U.S. __ [132 S.Ct. 2455] (Miller), which prohibited the mandatory
imposition of life without parole sentences for juveniles who
commit homicide offenses. Bibiano further argues he was not
among the category of juvenile offenders for which a life without
parole sentence would be appropriate, and Meraz argues the trial
court failed to consider his individual circumstances in
sentencing him to life without parole. We reject each of these
challenges.
38
A. Legal Background
The Eighth Amendment to the United States Constitution
provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” In
recent years, the United States Supreme Court has narrowed the
available punishments for juveniles under the Eighth
Amendment. In Roper v. Simmons (2005) 543 U.S. 551, it held
the Eighth Amendment bars capital punishment for juvenile
offenders, and in Graham v. Florida (2010) 560 U.S. 48, it held
the Eighth Amendment bars a sentence of life without parole for
juveniles who commit nonhomicide offenses. (Miller, supra, __
U.S. at p. __ [132 S.Ct. at p. 2463].) Most recently, Miller held
the Eighth Amendment “forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile
offenders.” (Id. at p. ___ [132 S.Ct. at p. 2469].) It reasoned,
“Mandatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark features—
among them, immaturity, impetuosity, and failure to appreciate
risks and consequences. It prevents taking into account the
family and home environment that surrounds him—and from
which he cannot usually extricate himself—no matter how brutal
or dysfunctional. It neglects the circumstances of the homicide
offense, including the extent of his participation in the conduct
and the way familial and peer pressures may have affected him.
Indeed, it ignores that he might have been charged and convicted
of a lesser offense if not for incompetencies associated with
youth—for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to
assist his own attorneys. [Citations.] And finally, this
mandatory punishment disregards the possibility of
39
rehabilitation even when the circumstances most suggest it.” (Id.
at p. ___ [132 S.Ct. at p. 2468].)
In California, section 190.5, subdivision (b) provides that
the penalty for 16- or 17-year-old juveniles who commit special
circumstance murder “shall be confinement in the state prison for
life without the possibility of parole or, at the discretion of the
court, 25 years to life.” (See People v. Gutierrez (2014) 58 Cal.4th
1354, 1360 (Gutierrez).) “For two decades . . . , section 190.5(b)
has been construed by our Courts of Appeal and trial courts as
creating a presumption in favor of life without parole as the
appropriate penalty for juveniles convicted of special
circumstance murder.” (Ibid.) In light of Miller, the California
Supreme Court in Gutierrez overruled that line of authority and
construed section 190.5, subdivision (b) to “confer[] discretion on
a trial court to sentence a 16- or 17-year-old juvenile convicted of
special circumstance murder to life without parole or to 25 years
to life, with no presumption in favor of life without parole.”
(Gutierrez, at p. 1360.) The court further held that “Miller
requires a trial court, in exercising its sentencing discretion, to
consider the ‘distinctive attributes of youth’ and how those
attributes ‘diminish the penological justifications for imposing
the harshest sentences on juvenile offenders’ before imposing life
without parole on a juvenile offender.” (Id. at p. 1361.) As
discussed in Miller, those attributes include (1) a juvenile
offender’s “ ‘chronological age and its hallmark features—among
them, immaturity, impetuosity, and failure to appreciate risks
and consequences’ ”; (2) “any evidence or other information in the
record regarding ‘the family and home environment that
surrounds [the juvenile]—from which he cannot usually extricate
himself—no matter how brutal or dysfunctional,’ ” including
40
“evidence of childhood abuse or neglect, familial drug or alcohol
abuse, lack of adequate parenting or education, prior exposure to
violence, and susceptibility to psychological damage or emotional
disturbance”; (3) “any evidence or other information in the record
regarding ‘the circumstances of the homicide offense, including
the extent of [the juvenile defendant’s] participation in the
conduct and the way familial and peer pressures may have
affected him’ ”; (4) “any evidence or other information in the
record as to whether the offender ‘might have been charged and
convicted of a lesser offense if not for incompetencies associated
with youth—for example, his inability to deal with police officers
or prosecutors (including on a plea agreement) or his incapacity
to assist his own attorneys’ ”; and (5) “any evidence or other
information in the record bearing on ‘the possibility of
rehabilitation,’ ” including the extent or absence of criminal
history. (Gutierrez, at pp. 1388-1389.)
B. Challenges to California’s Sentencing Scheme
In their appellate briefs filed before Gutierrez, Meraz and
Bibiano attacked the constitutionality of section 190.5,
subdivision (b) based on Miller. Gutierrez now forecloses those
arguments. Bibiano argues the Eighth Amendment as construed
in Miller bars life without parole sentences for all juvenile
offenders. The court in Miller left that issue open, although it
noted, “[G]iven all we have said in Roper, Graham, and this
decision about children’s diminished culpability and heightened
capacity for change, we think appropriate occasions for
sentencing juveniles to this harshest possible penalty will be
uncommon. . . . Although we do not foreclose a sentencer’s ability
to make that judgment in homicide cases, we require it to take
into account how children are different, and how those differences
41
counsel against irrevocably sentencing them to a lifetime in
prison.” (Miller, supra, __ U.S. at p. __, citation omitted [132
S.Ct. at p. 2469, citation omitted].) In Gutierrez, our Supreme
Court interpreted Miller as holding that “a state may authorize
its courts to impose life without parole on a juvenile homicide
offender when the penalty is discretionary and when the
sentencing court’s discretion is properly exercised in accordance
with Miller.” (Gutierrez, supra, 58 Cal.4th at p. 1379.) We are
bound by Gutierrez’s interpretation of Miller and reject Bibiano’s
challenge. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
Meraz and Bibiano both argue section 190.5, subdivision (b)
violates the Eighth Amendment because it creates a presumption
in favor of life without parole for juvenile homicide offenders. As
noted, before Miller, this provision was judicially construed to
create such a presumption. (Gutierrez, supra, 58 Cal.4th at
p. 1360.) However, Gutierrez construed the statute to eliminate
any presumption, thereby avoiding any constitutional infirmity.
(Id. at p. 1387.)12
12 Bibiano further argues section 190.5 is not saved by the
recent enactment of section 1170, subdivision (d)(2), which
generally allows a person sentenced to a crime committed while
he was under 18 years of age to petition for resentencing after
serving at least 15 years, provided certain requirements are met.
(§ 1170, subd. (d)(2); Gutierrez, supra, 58 Cal.4th at pp. 1384-
1385.) The court in Gutierrez agreed the enactment of this
provision did not remedy the problem with a presumptive life
without parole sentence for juveniles pursuant to section 190.5,
subdivision (b). (Gutierrez, supra, at pp. 1385-1387.)
42
C. Challenges to Meraz’s and Bibiano’s Sentences
Meraz further argues the trial court in this case failed to
take into account the relevant factors under Miller and Gutierrez
in sentencing him to life without parole and Bibiano contends he
was not among the category of juvenile homicide offenders for
whom life without parole is a constitutionally permissible
sentence. They were sentenced after Miller but before Gutierrez.
Nevertheless, we find the trial court was aware of the relevant
factors related to their youth and acted within its discretion given
the limited record before it in sentencing both of them to life
without parole.
In a prehearing sentencing memorandum filed after Miller,
the prosecutor requested life without parole for both appellants,
citing their violent natures and the violent nature of the crimes.
Although the memorandum acknowledged the trial court had
discretion to impose life without parole on Meraz and Bibiano as
minors, it did not mention Miller or any of the other factors set
forth in Miller. Neither counsel for Meraz nor Bibiano submitted
a sentencing memorandum. At both Meraz’s and Bibiano’s
sentencing hearings, the trial court indicated it had read their
preplea probation reports. Those reports described the
circumstances of the current crimes and noted each appellant’s
juvenile criminal history: Meraz had a juvenile history of assault
and assault with great bodily injury, and Bibiano had a juvenile
history of vehicle theft, receiving stolen property, and criminal
threats. The report contained no discussion of the other youth-
related factors set out in Miller, but when asked after trial,
counsel for both Meraz and Bibiano declined to request
presentence reports and stipulated to the trial court using the
preplea reports for sentencing. At both sentencing hearings,
43
neither defendant nor any witnesses gave statements, although
the trial court provided the opportunity to do so.
At Meraz’s hearing, his counsel argued against life without
parole because Meraz was 16 years old at the time of the offense
and “under the new case law it would be cruel and unusual
punishment to sentence him as such.” The prosecutor responded,
“the People are asking for [a life without parole] sentence, given
the double homicide. The case law that [Meraz’s counsel] is
referring to does not apply in this case, and the appropriate
sentence is life without possibility of parole.” The court stated it
had reviewed Miller, as well as People v. Caballero (2012) 55
Cal.4th 262, and People v. Moffett (review granted Jan. 3, 2013,
S206771, remanded by, superseded by, sub nom. Gutierrez,
supra, 58 Cal.4th 1354),13 and that it was “aware of” section
190.5, subdivision (b), all of which was “part of my thought
process in terms of arriving at the appropriate sentence.”
The court then extensively described the circumstances of
the current crimes:
“[O]n the date of these offenses Mr. Meraz possessed a
firearm, loaded, conspired with two other fellow gang members.
Each of them possessed additional firearms. And they entered
13 People v. Caballero held that imposing an aggregate term of
over 100 years on a juvenile for a nonhomicide offense violated
the Eighth Amendment. (People v. Caballero, supra, 55 Cal.4th
at p. 265.) People v. Moffett was one of the two appeals the
Supreme Court considered in Gutierrez. The Court of Appeal in
that case remanded the defendant’s life without parole sentence
in light of Miller to allow the trial court to consider the
defendant’s murder count without reference to a presumption in
favor of life without parole. (Gutierrez, supra, 58 Cal.4th at
p. 1365.)
44
into rival gang territory seeking a revenge killing in retaliation
for a previous murder of one of their own that was believed to
have been perpetrated by a rival gang. That, I think, was the
logical interpretation of the evidence.
“And in committing these crimes, all of the three
defendants, including Mr. Meraz, walked directly into the heart
of their rival’s territory in broad daylight, without any disguises
or cover, and approached a porch where the three victims were
standing or seated, unarmed, caught by surprise, and completely
defenseless.
“The defendant and his two companions surrounded each of
those victims from all sides to prevent escape. In the manner of a
firing squad execution essentially is what it was, each of them
together, they simultaneously fired multiple rounds at these
three victims, killing two and severely wounding one. There were
young children at play at the time and other persons who were in
the house directly behind where the victims were standing or
seated on that porch.
“The manner in which these killings took place, in this
court’s view, was brazen and meant to send a clear message to
their rivals. And in the perpetration of these crimes the
defendant was an actual shooter, having personally discharged a
firearm, causing death, for the benefit of his gang. And these are
consistent with the jury’s findings. The evidence clearly
established in this court’s view that in each of the murders and
the attempted murder the defendant was an active participant
and intended to kill his victims, having fired at close range, firing
multiple times at all victims who were in close proximity to one
another on that porch.
45
“The court further derives from the evidence that the
defendant’s actions were planned, they were premeditated, and
they demonstrated a high degree of cruelty, viciousness, and
callousness. I’ve also reviewed the probation report and note that
the defendant has a criminal history, which also includes
previous acts of violence and threat of violence as one could read
from that report.
“All of these factors that I have just spoken of together
warrant in my view the imposition of a sentence of life without
the possibility of parole, and that is notwithstanding that the
defendant was 16 years of age at the time that he committed
these crimes. In that process the court has reviewed and weighed
and considered lesser penalties, including life sentences with
substantial custody time but with the possibility of parole. But in
light of—and it has reviewed the cases that I just talked about
earlier. But I do find that these factors in aggravation so far
outweigh anything that would mitigate to a lesser sentence that
it causes me to believe that a life sentence without the possibility
of parole is the appropriate sentence in this case.”
At Bibiano’s hearing, Bibiano’s counsel briefly delved into
Bibiano’s upbringing, pointing out he had a “very bad
childhood. . . . His mother left him in Mexico, came to L.A. and
then sent for him several years later. And within three months
of him arriving in L.A., he was in foster care and part of the
system. [¶] He then came out of foster care, stayed with his
mother about two or three months; and she sent him to Atlanta
to live with his father. His father sent him back to his mother,
and then he went back into foster care. [¶] And as a result of not
having a nurturing mother, who chose her boyfriend over her
children, my client drifted into the gang lifestyle. So—which
46
showed his poor judgment and ended up resulting in this
conviction because of the poor choices he made, which I think
were attributable to the fact that he was 17 when the crimes
were committed and at 17 he didn’t have a fully developed mind.
He had the mind-set of an adolescent, of a person under the age
of 18.” Bibiano’s counsel reminded the court of its discretion
under section 190.5, subdivision (b) and argued “in light of Miller
versus Alabama and some other recent cases that have come up,
saying that [life without parole] for juveniles is cruel and unusual
punishment under the Eighth Amendment and a sentence of [life
without parole] for a juvenile and somebody Mr. Bibiano’s age is
basically a death sentence. He’s right now 21 years old. And
that leaves no room for him to show any rehabilitation or
maturity or anything that he might attain at this point forward
showing that he should be given a chance to have some
meaningful opportunity for rehabilitation and re-entry into
society.”
The prosecutor responded, “[D]espite whatever adversity,
the choice was made to go into the gang and the choice was made
to ambush two—three defenseless victims and slaughter them.
And, given that choice, [a life without parole] sentence is
appropriate.”
The court acknowledged it was “aware of the cases that
you’re citing and the statutes that you’re citing for the defense
and has reviewed those. I would indicate that none of those cases
preclude a life without parole sentence for a person between the
ages of 16 and 18; but most importantly it requires the court to
exercise discretion and consider lesser punishment, which, of
course, I have done. I’m also taking into account the statements
that you just addressed with regard to Mr. Bibiano’s background.
47
So I have taken, I believe, everything that I’ve had before me into
consideration in making this decision.”
Then, as it had done at Meraz’s sentencing, the court
extensively described the circumstances of the current crimes:
“Balancing what you’ve said about his background with
what are very obviously patent aggravating factors here, I just
want to go over some of those to put this in proper context. When
these offenses were committed, we start out with Mr. Bibiano
having taken possession of a loaded firearm. We also have him
having conspired with two other fellow gang members of the
Terra Bella gang, who themselves each possessed additional
firearms. They entered into rival gang territory seeking revenge
and retaliation for a previous murder that had occurred, the
murder of one of their own and which they believed to have been
perpetrated by a rival, this rival gang. So that is the background
context.
“But in committing these crimes, all three defendants,
Mr. Bibiano as active as any of the others, walked directly into
the heart of their rival’s territory in broad daylight, without any
disguises or cover, and approached a porch where there were
three young men standing or sitting. They were, these victims,
unarmed at the time. They were completely caught by surprise
and completely defenseless at the time of the shootings in this
case.
“The defendant, Mr. Bibiano, and his two companions, all
armed at the time, surrounded their victims from all sides to
prevent escape; and in the manner of a firing squad execution,
each and together they simultaneously fired numerous,
numerous rounds at the three victims, killing two of them and
severely wounding the third.
48
“There were children at play, young children at play at the
time. And there were other civilians inside of the house at the
time of the shootings, and that house was directly behind where
the three victims were standing or seated near the front door of
that location.
“Very clearly, these murders were carried out in a brazen
way, meant to send a very clear message to their rivals. This was
not of the type that took place in the dark of night or with
disguises. This was, as I said, in broad daylight, three of them,
Mr. Bibiano included, committing these horrendous crimes for
the benefit of their gang and with Mr. Bibiano personally
discharging a firearm, causing death. These are findings that
were made by the jury.
“The evidence that I listened to and that the jury listened
to established that, as to each of these murders and the
attempted murder, that Mr. Bibiano was an active rather than a
passive participant and that he intended to kill his victims at the
time these crimes were committed, having fired at close range,
multiple times at all victims, who were in close proximity to one
another on that porch.
“These are aggravating factors that cannot be ignored by
this court because the actions of Mr. Bibiano demonstrate a very
high degree of cruelty and viciousness and a callous disregard for
life. And when you take these facts all together and you balance
them with the factors in mitigation that you’ve referred to
and . . . also take into consideration that he was not of an age of
majority at the time . . . . [¶] . . . [¶]
“The court considered an array of choices or options. In
considering the life without the possibility of parole option, I also
considered lesser punishments, as I’m required to do. Those
49
lesser punishments, in and of themselves would be severe,
including life sentences with substantial amounts of prison time.
But notwithstanding that, the court does believe that the
sentence of life without the possibility of parole, in light of these
aggravating factors that far outweigh any of the mitigating
factors in my view, the court believes that a life sentence without
the possibility parole is the appropriate sentence in this case.”
We conclude this record sufficiently supported the trial
court’s exercise of discretion to sentence both defendants to life
without parole. While the hearings took place before Gutierrez,
that case would not have significantly impacted the trial court’s
review. Gutierrez eliminated the presumption of life without
parole in section 190.5, but the trial court here already
understood it had discretion under section 190.5. Further,
Gutierrez simply reiterated the relevant youth factors from
Miller, and the trial court acknowledged the existence of Miller
and other related cases.
For Meraz, it is true the court did not discuss any specific
information bearing on his youth, but the record reflects that
information was not presented to the court, given counsel
declined to request an updated sentencing report from probation,
present a sentencing memorandum, or argue any factors other
than Meraz’s age. On this limited record, we cannot fault the
trial court for not considering these factors. (See Gutierrez,
supra, 58 Cal.4th at p. 1390 [“To be sure, not every factor will
necessarily be relevant in every case. For example, if there is no
indication in the presentence report, in the parties’ submissions,
or in other court filings that a juvenile offender has had a
troubled childhood, then that factor cannot have mitigating
relevance.”].) The court stated that it had considered Meraz’s
50
age, but placed significant weight on the circumstances of the
crime, which were unquestionably heinous—a calculated,
execution-style retaliatory shooting of three unarmed individuals
in broad daylight with children around. There was also
significant evidence all the appellants were shooters and
therefore active participants in the crimes. (Id. at p. 1389
[considering “ ‘the extent of [the juvenile defendant’s]
participation in the conduct’ ”].) The court also considered
Meraz’s violent criminal history. While Meraz points to the fact
that peer pressure might have affected him during the shooting
(ibid.), given Chambasis was 22 years old at the time of the
shooting and may have been the “shot caller” giving orders, the
trial court was aware of that evidence from the trial. Again, on
this record, we are satisfied the court understood and acted
within its discretion in sentencing Meraz to life without parole.
Unlike with Meraz, Bibiano does not argue the trial court
failed to consider the proper factors in sentencing him to life
without parole; instead, he argues the information before the
court demonstrated he was not the uncommon type of juvenile
offender for which life without parole could be constitutionally
imposed. We disagree. In contrast to Meraz’s sentencing, at
Bibiano’s sentencing, his counsel argued mitigating factors
related to Bibiano’s traumatic upbringing and immature mindset.
On appeal, Bibiano points to evidence at trial that might have
demonstrated his youth, such as possible peer pressure from
Chambasis, his comment that he was “going to hell” as he
watched the news broadcast of the shooting, and his crying in
response to officers questioning him about the murders. He also
suggests his youth might have caused him to reject a 30-year plea
offer before trial, only to then ask after trial whether the offer
51
was still available. The trial court was aware of all this
information, yet as with Meraz, the court found the heinous
circumstances of the crime outweighed any mitigating
circumstances. It is also important to note at the time of the
crimes in this case, Bibiano was two months shy of his 18th
birthday. The evidence relevant to the Miller youth factors was
not so overwhelming that the trial court could not
constitutionally impose life without parole on Bibiano. Thus, we
find no error.
7. Remaining Sentencing Issues
Appellants raise various errors in their sentences. We find
several of their arguments meritorious, so we will modify their
abstracts of judgment to correct the errors.
A. Sentences on Count 4
Joined by Meraz, Chambasis argues the trial court should
have stayed his sentence on count 4 for shooting at an inhabited
dwelling, rather than imposing a concurrent term of life without
parole, because count 4 was directly related to the murders and
attempted murder in counts 1, 2, and 3. In a sentencing
memorandum, the prosecution recommended the sentence on
count 4 be stayed. At Chambasis’s sentencing, the court
explained it was imposing a concurrent sentence for count 4
because “the court believes that primarily it was the same
victims in counts 1, 2, and 3 that were the targets of
Mr. Chambasis’ actions on that date.” We find the trial court was
not required to stay the sentence on count 4.
Under section 654, subdivision (a), “[a]n 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
52
act or omission be punished under more than one provision.”
“There is a multiple victim exception to . . . section 654 which
allows separate punishment for each crime of violence against a
different victim, even though all crimes are part of an indivisible
course of conduct with a single principal objective. [Citation.] An
assailant’s greater culpability for intending or risking harm to
more than one person precludes application of section 654.”
(People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631 (Felix).)
Our decision in Felix is directly on point. In that case, the
defendant attempted to murder one victim by firing gunshots
through a bedroom window. Relatives of the victim were staying
in other rooms in the house. (Felix, supra, 172 Cal.App.4th at
p. 1623.) The defendant was convicted of attempted murder of
the intended victim, shooting at an inhabited dwelling, and
several counts of assault with a firearm against the intended
victim and his two daughters, but not the other relatives in the
house. The sentence for the shooting at an inhabited dwelling
count was ordered to run concurrent with the sentence on the
attempted murder count. (Id. at pp. 1623-1624.) The defendant
argued the sentence for the shooting at an inhabited dwelling
count should have been stayed because it was based on the same
act, committed during a single indivisible course of conduct. We
disagreed because, “where the crime of shooting at an inhabited
residence is involved, a defendant need not be aware of the
identity or number of people in the house to be punished
separately for each victim.” (Id. at p. 1631.) Section 654 did not
apply because the intended victim’s houseguests “were victimized
by the shooting into the dwelling but were not named victims in
any other count.” (Felix, at p. 1631.)
53
Here, appellants opened fire on Zamora, Curiel, and Santa
Ana while they sat on the porch of Hurtado’s apartment. Some of
the bullets struck the front door and the wall next to it. Hurtado
and her children were inside at the time, but they were not
named in any of the four counts against appellants. At
sentencing, the trial court noted the shooting at an inhabited
dwelling count “primarily” involved victims Zamora, Curiel, and
Santa Ana, suggesting other victims were involved. By shooting
at Hurtado’s occupied apartment, appellants committed a
separate act of violence against different victims, so the trial
court was not required to stay their sentences on count 4
pursuant to section 654.
B. Section 186.22, Subdivision (b)(1)
For counts 1 and 2, the court imposed and stayed a gang
enhancement pursuant to section 186.22, subdivision (b)(1) for all
appellants. Appellants argue the court was not permitted to
impose any additional term under section 186.22, subdivision
(b)(1) because section 186.22, subdivision (b)(5) applied. We
agree.
Section 186.22, subdivision (b)(1) states: “Except as
provided in paragraphs (4) and (5), 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, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or
attempted felony of which he or she has been convicted, be
punished” to an additional term of imprisonment. For murder,
that additional term is 10 years. (§ 186.22, subd. (b)(1)(C).)
Section 186.22, subdivision (b)(5) provides, “any person who
54
violates this subdivision in the commission of a felony punishable
by imprisonment in the state prison for life shall not be paroled
until a minimum of 15 calendar years have been served.”
Appellants contend their life without parole sentences
triggered section 186.22, subdivision (b)(5), so the trial court
improperly imposed enhancements under section 186.22,
subdivision (b)(1). In People v. Lopez (2005) 34 Cal.4th 1002(Lopez), the California Supreme Court struck a section 186.22,
subdivision (b)(1) enhancement for a 25-years-to-life sentence for
first degree murder, concluding section 186.22, subdivision (b)(5)
exempts crimes carrying with them both straight life terms and
years-to-life terms. (Lopez, at p. 1007.) The court did not address
whether life without parole sentences fall within section 186.22,
subdivision (b)(5), but in discussing the legislative history of the
provision, it noted without analysis that, at the time the
predecessor to that provision was enacted, it “was understood to
apply to all lifers, except those sentenced to life without the
possibility of parole.” (Lopez, at p. 1010.)
Respondent cites this passage and argues that finding
section 186.22, subdivision (b)(5) applicable “would make little
sense” because life without parole means appellants will never be
eligible for parole. The court in Lopez rejected a similar
argument. In that case, the Attorney General argued against
applying section 186.22, subdivision (b)(5) to first or second
degree murderers because it would have “no practical effect,”
given the minimum parole eligibility term for first degree
murderers is 25 years and for second degree murderers is 15
years. (Lopez, supra, 34 Cal.4th at p. 1009.) Citing legislative
history providing that “ ‘if any provision in this act conflicts with
another section of law which provides for a greater penalty or
55
longer period of imprisonment that the latter provision shall
apply,’ ” the court reasoned it was “neither an absurdity nor an
anomaly” that section 186.22, subdivision (b)(5) would apply even
if a first degree or second degree murder sentence carried the
same or a longer minimum parole term. (Lopez, at p. 1009.)
Following the plain language of section 186.22, subdivision
(b)(5) and the reasoning in Lopez, rather than its passing dicta
about life without parole sentences, we find the trial court
improperly imposed and stayed additional terms pursuant to
section 186.22, subdivision (b)(1). Section 186.22, subdivision
(b)(5) applies to “a felony punishable by imprisonment in the
state prison for life” and life without parole plainly qualifies. As
Lopez explains, although section 186.22, subdivision (b)(5) will
not set the minimum parole term for appellants’ life without
parole sentences here, it still applies. Thus, we will modify each
appellant’s judgment to delete the section 186.22, subdivision
(b)(1) enhancement.
C. Parole Revocation Fine
Appellants contend and respondent concedes the trial court
erred in imposing parole revocation fines in light of their
sentences to life without parole. (§ 1202.45.) They are correct.
Section 1202.45 requires assessment of a parole revocation
restitution fine “[i]n every case where a person is convicted of a
crime and his or her sentence includes a period of parole.” It does
not apply to a sentence with no determinate term. (People v.
Brasure (2008) 42 Cal.4th 1037, 1075; People v. Oganesyan (1999)
70 Cal.App.4th 1178, 1183.) It also does not apply when any
determinate term is stayed. (People v. Carr (2010) 190
Cal.App.4th 475, 482, fn. 6.) Here, appellants were sentenced to
indeterminate terms on all counts and the determinate terms for
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the enhancements were stayed. Therefore, we will strike the fine
for each appellant.
D. Custody Credits
Each appellant argues he should have received additional
presentence custody credit. Respondent concedes the errors.
Chambasis is therefore entitled to 1,173 days of presentence
custody credit, Meraz is entitled to 1,166 days of presentence
custody credit, and Bibiano is entitled to 1,167 days of
presentence custody credit.14 We will correct the abstracts of
judgment to reflect the correct presentence custody credit.
E. Fees
We have identified two errors in the fees imposed in the
abstracts of judgment. They incorrectly reflect an $80 court
security fee when the trial court imposed a $160 court security
fee at each appellant’s sentencing hearing. The court’s oral
pronouncement controls so we will order each appellant’s
abstract of judgment corrected to reflect a $160 court security fee.
(People v. Sharret (2011) 191 Cal.App.4th 859, 864.) At
appellants’ sentencing hearings, the trial court also imposed a
$30 criminal conviction assessment on each appellant. Each
abstract of judgment reflects a $60 criminal conviction
assessment. Neither is correct. The trial court was required to
impose a $30 assessment per count, for a total assessment of
$120. (Gov. Code, § 70373; People v. Sencion (2012) 211
Cal.App.4th 480, 483.) We will order the abstracts of judgment
corrected accordingly.
14 Bibiano contends he is entitled to 1,166 days of presentence
custody credit, but by respondent’s and our calculations, he is
entitled to 1,167.
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DISPOSITION
We modify each appellant’s judgment to strike the section
186.22, subdivision (b)(1) enhancement, to strike the section
1202.45 parole revocation fine, to impose a $160 court security
fee, and to impose a $120 criminal conviction assessment. We
further modify Chambasis’s abstract of judgment to reflect 1,173
of presentence custody credits, modify Meraz’s abstract of
judgment to reflect 1,166 days of presentence custody credit, and
modify Bibiano’s abstract of judgment to reflect 1,167 days of
presentence custody credit. The trial court is directed to forward
the corrected abstracts of judgment to the Department of
Corrections and Rehabilitation.
We affirm the judgments as modified.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
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