P. v. Flores CA6 ( 2013 )

Filed 4/3/13 P. v. Flores CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H037031
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS102699)
v.
JESSE ANTHONY FLORES,
Defendant and Appellant.
Defendant Jesse Anthony Flores was convicted by jury trial of carrying a loaded
1
firearm on his person in a public place (former Pen. Code, § 12031, subd. (a)(1)), having
a concealed firearm on his person (former § 12025, subd. (a)(2)), possessing a firearm in
violation of a probation condition (former § 12021, subd. (d)(1)), and active participation
in a criminal street gang (§ 186.22, subd. (a)). The jury also found true gang allegations
(§ 186.22, subd. (b)(1)) attached to the carrying and concealed firearm counts. The court
found true allegations in connection with the carrying and concealed firearm counts that
defendant was prohibited by a probation condition from possessing a firearm (former
§§ 12025, subd. (b)(4), 12031, subd. (a)(2)(D)) and that he was not the registered owner
of the firearm (former §§ 12025, subd. (b)(6), 12031, subd. (a)(2)(F)). Defendant was
committed to state prison for a four-year term.
1
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, he contends that (1) the active participation in a criminal street gang
count (the gang count), the gang enhancements, and the former section 12021 count are
not supported by substantial evidence, (2) the court violated his constitutional rights by
admitting into evidence statements he made during booking without finding that the
statements were voluntary, (3) the instructions on the gang count erroneously failed to
advise the jury that it required specific intent, (4) the jury was misinstructed on the
specific intent element of the gang allegations, (5) the court gave an inadequate limiting
instruction on hearsay evidence relied on by the gang expert, (6) his trial counsel was
prejudicially deficient in failing to object to the admission of prejudicial and irrelevant
evidence, and (7) these errors were cumulatively prejudicial. Defendant also asserts that
the concurrent term imposed for the gang count should have been stayed under section
654, that he should have been granted additional presentence conduct credit under a
revised version of section 4019 that took effect after he was sentenced, and that the
2
restitution fines were erroneously imposed. We conclude that the gang count and the
former section 12021 count are not suppported by substantial evidence. We also find that
a remand is required with respect to the restitution fines. Consequently, we reverse the
judgment.
I. Factual Background
On December 8, 2010, Salinas Police Officer Scott Sutton was informed at that
day’s “briefing” that defendant was “a person that may be wanted” by the police. While
he was on patrol at about 4:10 p.m. that afternoon, Sutton saw defendant about to enter
the gate to a large apartment complex and pulled his patrol car over about 100 feet in
front of defendant. The area surrounding this apartment complex was a “stronghold for
2
Defendant also filed a petition for a writ of habeas corpus, which we dispose of by
separate order.
2
the Norteno gang in Salinas,” and the “vast majority” of Salinas Nortenos reside in this
area. There had been “a significant amount of violence” in this area, including
“shootings” and “robberies.”
As no backup units were available, Sutton decided to make casual contact with
defendant to confirm his identity. Sutton initiated a conversation by asking defendant if
he could talk to him about a car parked on the street. Defendant was “nervous” and
“fidgety,” and, when Sutton asked his name, he falsely told Sutton that his name was
3
“Steven Anthony Sotelo.” Sutton also asked defendant where he lived, and defendant
replied that he lived with his girlfriend in the apartment complex. Defendant gave a
nonexistent address for his residence. Defendant asked Sutton if Sutton wanted
defendant to find out who owned the car, and Sutton said “that would be great.”
Defendant walked away into the apartment complex.
Sutton then confirmed defendant’s identity (by examining a photograph of him).
He also confirmed that there was a warrant out for defendant, that defendant “was on
probation with search and seizure,” and that defendant “had removed the probation
department’s ankle bracelet.” Less than half an hour after his initial contact with
defendant, Sutton saw defendant walking through the apartment complex and called out
to him through his car window “Hey.” Defendant looked at him and kept walking.
Sutton got out of his car and said to defendant: “Hey, I just want to talk to you about the
car again.” Sutton saw defendant place his forearm against his waistband, a “press
check” gesture that Sutton knew a person carrying a weapon often did subconsciously.
By now, Sutton’s backup was en route. Defendant agreed to talk to Sutton about
the car, and he walked over to Sutton. Sutton asked defendant to have a seat on the
3
The information also alleged that defendant had given false information to a peace
officer (§ 148.9, subd. (a)), but this count was dismissed by the prosecution before the
case was submitted to the jury.
3
ground, and defendant did so. Defendant again claimed that his name was Sotelo. When
the other officer arrived and Sutton went to handcuff defendant, defendant revealed that
he had a gun. Sutton asked about the gun’s location, and defendant said it was in his
pocket. Sutton searched defendant and found the gun in his waistband. The gun had a
clip in it with 13 rounds of live ammunition. Sutton arrested defendant and again asked
defendant for his name. This time, defendant accurately identified himself.
Defendant was arrested and taken to the police station. Sutton did a “record
check” on the gun, and “[t]here was no record” of it. At the station, Sutton advised
defendant of his constitutional rights, and defendant acknowledged that he understood his
rights. Defendant told Sutton that he had the gun because “[h]e heard a shot being fired
at some point, and knows the [C]ity of Salinas is dangerous, and he carries it for his
protection.” He said he had bought the gun six months earlier from a field worker.
Sutton “asked if he knew he’s a convicted felon and that precludes him from carrying a
weapon or owning a firearm. He stated that he knew.” Defendant claimed that he had
removed the ankle bracelet “because he had smoked weed, and he knew he was going to
be tested by his probation officer.” He said he had lied about his name because he “knew
there would be a warrant for him for removing the ankle bracelet, and he also had the
gun.” Defendant told Sutton that he “does not associate anymore” with the Norteno
gang. Sutton observed that there were four dots on defendant’s elbow. A tattoo with four
dots is associated with the Norteno gang.
At the jail, defendant made “a specific housing request,” which was “[t]o be
placed with the northerners.” While in jail awaiting trial, defendant obtained a prominent
tattoo of the letter M on his neck. The letter M “stands for Salinas East Market, which is
one of the biggest and probably the most powerfull [sic] Norteno criminal street gang in
the city of Salinas.”
II. Procedural Background
4
Defendant asked that the allegation that he was prohibited by a probation
4
condition from possessing a firearm be bifurcated, and the court granted his request.
Only the substantive counts and the gang allegations were submitted to the jury.
Defendant waived his right to jury trial on the remaining allegations, and they were tried
5
to the court.
Salinas Police Officer Robert Zuniga testified at trial as the prosecution’s gang
expert. To establish that the Norteno gang qualified as a criminal street gang, Zuniga
described three predicate crimes committed by Norteno gang members. One was
committed in March 2009. A loaded revolver was found in a vehicle driven by a Norteno
gang member during a traffic stop that prompted a search due to the odor of marijuana.
Zuniga stated that the March 2009 crime was committed for the benefit of the Norteno
4
It was not clear whether this bifurcation was intended to include the element of the
former section 12021 count.
5
Immediately after the jury retired to deliberate, the court made the following
statement: “Another thing, the parties have entered into a fairly detailed stipulation as to
various facts, and I did not read the stipulation to the jurors because we’ve agreed that a
number of these facts pertain to the various allegations that qualify the gun charges in
Counts 1 and 2 as felonies, and it’s agreed that the Court will make that decision
assuming there is a guilty verdict. The Court will make the determination based on the
stipulation that, in fact, those additional allegations have been established.” Defendant’s
trial counsel responded: “Correct, your Honor. The defendant gives up his right to a jury
trial as to those sentencing enhancements.”
After the jury had reached its verdicts, but before it was excused, the following
colloquy occurred: “THE COURT: Just as a matter of abundance of caution, I wanted to
get a personal waiver from the defendant as to the issue of whether or not he is in the
class of persons prohibited from possessing a firearm, and whether that firearm was not
registered to him. [¶] MR. DZUBAY [defendant’s trial counsel]: Mr. Flores, are you
willing to stipulate that the firearm you were caring [sic] was not registered to you? [¶]
THE DEFENDANT: Yes. [¶] THE COURT: So you’re willing to waive the jury on
that issue and have it decided by me? [¶] THE DEFENDANT: Yes. [¶] THE COURT:
Defendant waives jury on that issue.” Defendant does not challenge the adequacy of this
waiver.
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gang. During a December 2009 traffic stop, a firearm was found concealed on the person
of a Norteno gang member. Zuniga opined that the December 2009 crime was also
committed for the benefit of the Norteno gang. A September 2010 probation search of a
Norteno gang member’s house resulted in the discovery of a firearm. Again, Zuniga
opined that the crime was committed for the benefit of the Norteno gang.
Zuniga also opined that defendant was an active participant in the Norteno gang at
the time of his arrest. Zuniga explained that his opinion was based on the police reports
in this case, defendant’s tattoos, his “housing request” and “housing at the jail,” and
“prior contacts with [defendant] that are documented in the Salinas Police Department
records, as well as the current offense.” Zuniga described three prior police contacts with
defendant. In September 2008, defendant was in a car with four Norteno gang members
when the car was stopped by the police. A firearm and gang indicia were found in the
car. In November 2008, police responding to a trespassing complaint made contact with
three Norteno gang members and defendant at a “known Norteno hangout.” Defendant
provided the police with a false name on that occasion. In November 2010, a probation
search of defendant’s residence turned up several items of gang indicia, one of which was
specifically associated with the Salinas East Market subset of the Norteno gang.
Defendant was arrested for violating his juvenile probation. He was released from
custody on November 8, 2010, just a month before the current offense.
Zuniga testified that defendant’s possession of the firearm “does promote and it
does further the Norteno criminal street gang” because “[a] gun is a tool of the trade for
Norteno gang members” and “should the opportunity arise where a Norteno gang
member who is possessing a firearm has the ability to commit a crime, such as a shooting
or a robbery, they have that tool readily accessible to use.” The firearm is also available
for protection purposes if the gang member is approached by a member of a rival gang.
“That enhances that individual’s reputation to carry a firearm. It also enhances the
gang’s reputation for that particular individual to be carrying a firearm. It shows how
6
dangerous these gang members can be.” This causes intimidation and fear. For similar
reasons, Zuniga testified, defendant’s possession of the firearm benefitted the gang
because the firearm was “readily accessible should the opportunity arise to commit a
crime.”
Defendant’s trial counsel did not argue to the jury that defendant was not guilty of
the three firearm counts. He argued only that the prosecution had failed to prove the
gang count and the gang allegations. The jury returned guilty verdicts on the four
substantive counts and found the gang allegations true. The court found the remaining
allegations true. It imposed a two-year prison term for the carrying a loaded firearm
6
count and a consecutive two-year term for the gang allegation attached to that count. It
imposed a concurrent term for the gang count. For the other two counts, the court
imposed and stayed terms under section 654. The remaining enhancements were ordered
stricken under section 1385. Defendant timely filed a notice of appeal.
III. Discussion
A. Substantial Evidence Challenges
Our standard of review is well established. “ ‘[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”
(People v. Johnson (1980) 26 Cal. 3d 557, 576, quoting Jackson v. Virginia (1979) 443
U.S. 307, 318-319.) “[The] appellate court must view the evidence in the light most
favorable to respondent and presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3
6
The court did so after first sending defendant for a diagnostic evaluation by the
Department of Corrections and Rehabilitation. The diagnostic study recommended a
prison term.
7
Cal. 3d 421, 425; accord People v. Pensinger (1991) 52 Cal. 3d 1210, 1237.) “A
reasonable inference, however, ‘may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact
must be an inference drawn from evidence rather than . . . a mere speculation as to
probabilities without evidence.’ ” (People v. Morris (1988) 46 Cal. 3d 1, 21.) A trier of
fact may rely on inferences to support a conviction only if those inferences are “of such
substantiality that a reasonable trier of fact could determine beyond a reasonable doubt”
that the inferred facts are true. (People v. Raley (1992) 2 Cal. 4th 870, 890-891.)
“Evidence is sufficient to support a conviction only if it is substantial, that is, if it
‘ “reasonably inspires confidence” ’ and is [citation], ‘credible and of solid value.’
[Citation.]” (Id. at p. 891.)
1. Gang Count
Defendant contends that the jury’s verdict on the gang count is not supported by
substantial evidence because he acted alone in committing the offense, and therefore did
not promote, further, or assist any other gang member in his commission of the
underlying criminal conduct. This precise issue was recently resolved by the California
Supreme Court in People v. Rodriguez (2012) 55 Cal. 4th 1125 (Rodriguez). A gang
member acting alone does not violate section 186.22, subdivision (a). The Attorney
General concedes that Rodriguez supports defendant’s contention. Hence, defendant’s
conviction on the gang count cannot be upheld due to insufficiency of the evidence.
2. Gang Enhancements
Defendant challenges the sufficiency of the evidence to support the specific intent
element of the gang enhancement allegations.
a. Background
Counsel agreed during in limine motions that the gang expert “should not be
allowed to testify as to what [defendant’s] intent was at that time,” and the court so
ordered. On direct examination, the prosecutor asked Zuniga: “Now, if an individual is a
8
gang member and carrying a firearm, what is your opinion as to whether or not that
person, individual, is car[r]ying that firearm their intent to assist, further, or promote
criminal conduct by the gang?” Zuniga replied: “It’s my opinion that they’re furthering
and promoting the Norteno criminal street gang.” Defendant’s trial counsel did not
interpose any objection. Zuniga went on to testify that, by possessing a firearm, “they’re
furthering the gang’s reputation to be violent” and benefitting the gang by enabling the
individual “to commit crimes should the opportunity [arise].” Again, defendant’s trial
counsel interposed no objection.
b. Analysis
Defendant contends that Zuniga’s testimony regarding the specific intent element
was insufficient to support the jury’s finding because his opinion was not based on an
adequate factual foundation but was instead merely speculation.
Defendant relies on a series of cases, all of which relied at least in part on the Fifth
District Court of Appeal’s decision in People v. Killebrew (2002) 103 Cal. App. 4th 644(Killebrew), disapproved in part in People v. Vang (2011) 52 Cal. 4th 1038, 1047, fn. 3
7
(Vang). Killebrew did not involve a gang enhancement allegation. Killebrew was
convicted of conspiring to possess a handgun even though he had not been seen anywhere
near the handgun. (Killebrew, at pp. 647-650.) The prosecution’s theory was that
Killebrew had been in a vehicle that was travelling with other vehicles and that someone
in these vehicles possessed a handgun. An expert was permitted to testify that “when one
gang member in a car possesses a gun, every other gang member in the car knows of the
gun and will constructively possess the gun.” (Killebrew, at p. 652.) Killebrew claimed
on appeal that testimony about the “subjective knowledge and intent of each occupant in
7
Defendant’s reliance on People v. Albarran (2007) 149 Cal. App. 4th 214 is
misplaced, as that case did not concern the sufficiency of the evidence to support gang
enhancement allegations (which were dismissed), but the admissibility of gang evidence.
9
the car” should not have been admitted. (Ibid.) The Fifth District agreed. It opined that
no prior case “permitted testimony that a specific individual had specific knowledge or
possessed a specific intent,” although the court acknowledged that a court had previously
upheld the admission of similar opinion testimony “framed in terms of gangs in general,
not a specific defendant’s subjective expectation.” (Killebrew, at p. 658.) Because the
expert in Killebrew had, in the Fifth District’s view, explicitly testified that specific
individuals “knew” of the presence of the guns and “jointly possessed” them, his
testimony was “an improper opinion on the ultimate issue and should have been
8
excluded.” (Killebrew, at p. 658.)
In re Frank S. (2006) 141 Cal. App. 4th 1192 (Frank S.), like the case before us and
unlike Killebrew, concerned the sufficiency of the evidence to support the specific intent
element of a gang enhancement allegation. Frank was stopped by police after he ran a
red light on his bicycle. He gave a false name, and the officer found a concealed knife, a
bindle of methamphetamine, and a red bandana in Frank’s possession. (Frank S., at
p. 1195.) Frank admitted that he carried the knife to protect himself against
“ ‘Southerners,’ ” as he was allied with northern street gangs. (Frank S., at p. 1195.) The
gang expert was permitted to testify that Frank had possessed the knife to protect himself,
and she opined that gang members use knives to protect themselves from rival gang
members and to assault rival gang members. (Frank S., at pp. 1195-1196.) On appeal,
Frank challenged the sufficiency of the evidence to support the specific intent element of
the gang enhancement. (Frank S., at p. 1196.) Relying on Killebrew, the Fifth District
concluded that the expert should not have been permitted to testify “that a specific
8
The holding in Killebrew was subsequently limited by the California Supreme
Court’s decision in Vang, supra, 52 Cal. 4th 1038. In Vang, the court held that an expert
may offer an opinion regarding intent in support of a gang enhancement allegation so
long as the expert’s response to a hypothetical question regarding intent is based on the
facts of the case. (Vang, at p. 1046.)
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individual possessed a specific intent.” (Frank S., at p. 1197.) As the expert’s testimony
was, in the Fifth District’s view, “the only evidence” of Frank’s intent, the true finding on
the enhancement allegation was not supported by substantial evidence. (Frank S., at
pp. 1197-1199.)
People v. Ramon (2009) 175 Cal. App. 4th 843 (Ramon), like Frank S., was a Fifth
District case concerning the sufficiency of the evidence to support the specific intent
element of gang enhancement allegations. Ramon, a gang member, was stopped by
police in his gang’s territory while driving a stolen truck. A fellow gang member was his
passenger, and an unregistered firearm was found under the driver’s seat. (Ramon, at
pp. 846-847, 849.) The prosecution’s gang expert testified at trial that the stolen truck
and the unregistered firearm could be used to commit gang crimes. (Ramon, at p. 847.)
He offered an opinion that possession of a gun and driving of a stolen truck in gang
territory therefore benefitted the gang and that the perpetrators of these offenses would
intend to promote the gang. (Ramon, at p. 848.) The expert testified that stolen trucks
and firearms were “tools” that the gang needed to commit other crimes. (Ibid.)
Ramon argued on appeal that the facts of his offenses plus the fact of his gang
membership and presence in gang territory were insufficient to support the expert’s
opinion on benefit and intent. (Ramon, supra, 175 Cal.App.4th at pp. 849-850.) The
Fifth District, relying on Killebrew and Frank S., agreed. (Ramon, at p. 851.) “These
facts, standing alone, are not adequate to establish that Ramon committed the crime with
the specific intent to promote, further, or assist criminal conduct by gang members.
While Ramon may have been acting with this specific intent, there is nothing in the
record that would permit the People’s expert to reach this conclusion.” (Ibid.) “The facts
on which [the gang expert] based his testimony were insufficient to permit him to
construct an opinion about Ramon’s specific intent in this case. His opinion, therefore,
cannot constitute substantial evidence to support the jury’s finding on the gang
enhancement.” (Ramon, at p. 852.) “While the People’s expert’s opinion certainly was
11
one possibility, it was not the only possibility. And, as stated ante, a mere possibility is
not sufficient to support a verdict.” (Ramon, at p. 853.)
People v. Ochoa (2009) 179 Cal. App. 4th 650 (Ochoa) was a Fourth District Court
of Appeal case in which Ochoa challenged the sufficiency of the evidence to support the
gang benefit element of the gang enhancement allegations attached to carjacking and
felon in possession of a firearm counts. (Ochoa, at p. 652.) Ochoa, a gang member, had
acted alone in committing a carjacking with a shotgun. (Ochoa, at p. 653.) The offense
had not occurred in Ochoa’s gang’s territory. (Ochoa, at p. 662.) A divided Fourth
District found the evidence insufficient to sustain the benefit element of the gang
enhancements. “[N]othing in the circumstances of the instant offenses sustain[s] the
expert witness’s inference that they were gang related.” (Ochoa, at pp. 661-662.) “[The
gang expert’s testimony] was based solely on speculation, not evidence. An appellate
court cannot affirm a conviction based on speculation, conjecture, guesswork, or
supposition.” (Ochoa, at p. 663.) On the other hand, the Ochoa court disagreed with the
Ramon court’s assessment of the evidence in Ramon and said that it would have found
that evidence sufficient to support the specific intent element. (Ochoa, at p. 661, fn. 6.)
In re Daniel C. (2011) 195 Cal. App. 4th 1350 (Daniel C.) was a First District
Court of Appeal case in which Daniel challenged the sufficiency of the evidence to
support the specific intent element of the gang enhancement allegation. Daniel and three
other young men, all wearing red, went into a store. Two of Daniel’s companions were
gang members, and he was an “affiliate.” After his companions left the store, Daniel
took a bottle of liquor and left without paying for it. A store employee confronted him,
and Daniel broke the bottle and attacked the employee with the broken bottle. He then
escaped in a vehicle with the other young men. (Daniel C., at pp. 1353-1355, 1362.) A
gang expert testified that the robbery was “gang-related” based on gang membership, the
coordinated actions of the young men, the fact that they were wearing red, and the fact
that crow bars and a baseball bat were found in the vehicle. (Daniel C., at p. 1356.) The
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First District found the evidence insufficient to support the specific intent element of the
gang enhancement allegation because there was no evidence that defendant had acted “in
concert” with his companions. Consequently, as Daniel was not himself a gang member,
he could not have intended to assist “gang members” in committing the robbery (which
the First District concluded he perpetrated alone), and the specific intent element
therefore lacked evidentiary support. (Daniel C., at pp. 1361-1362.)
The Attorney General acknowledges these cases but claims that they are all
distinguishable. It is true that almost all of these cases may be distinguished from the
9
case before us. Killebrew had nothing to do with gang enhancement allegations and was
founded on the inadmissibility of evidence rather than the insufficiency of the evidence.
The opinion in Frank S., which relied heavily on Killebrew, also seemed to turn on the
alleged inadmissibility of the expert’s testimony due to the expert inappropriately
testifying about Frank’s intent rather than in response to a hypothetical. Ochoa did not
concern the specific intent element, but the gang benefit element. The holding in Daniel
C. was based on the court’s finding that Daniel was not a gang member and therefore,
because it found that he acted alone, could not have intended to assist gang members.
Although the Attorney General attempts to distinguish Ramon, this attempt is not
entirely successful. Unlike in Ramon, Zuniga testified that possession of firearms was
9
Both the Attorney General and defendant, and some courts, make the mistake of
using the term “gang-related” as a shorthand reference to the specific intent requirement.
The gang enhancement’s specific intent requirement does not require that the offense
itself be “gang-related.” (People v. Albillar (2010) 51 Cal. 4th 47, 55-56.) If the
defendant committed the offense with the intent to promote criminal activity by gang
members, not the gang, the specific intent element is satisfied. The gang benefit element,
which is separate from the specific intent element, requires that the offense be committed
for the benefit of, in association with, or at the direction of the gang. The gang benefit
element, but not the specific intent element, could properly be referred to as a “gang-
related” requirement. The imprecision of the “gang-related” reference interferes with
attempts to evaluate the sufficiency of the evidence to support the specific intent element.
We avoid this misnomer in our analysis.
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among the Norteno gang’s primary activities. While there was no such evidence in
Ramon, and the Ramon court mentioned that it might have made a difference, the other
evidence of intent in Ramon, which the court found insufficient, was far stronger than it
is in this case. Ramon committed his offenses in the company of a fellow gang member,
which raised significant inferences in favor of finding the specific intent element true that
are not present here. Evidence that it is a primary activity of the Norteno gang to possess
firearms does not by itself provide significant support for an inference that defendant’s
solo possession of a firearm was actually intended to promote, further, or assist in
criminal activity by gang members.
Nevertheless, we are not persuaded that the evidence in this case was insufficient
to support the jury’s finding on the specific intent element. “Evidence of a defendant’s
state of mind is almost inevitably circumstantial, but circumstantial evidence is as
sufficient as direct evidence to support a conviction.” (People v. Bloom (1989) 48 Cal. 3d
1194, 1208.) We do not agree with defendant that the only facts supporting specific
intent were his gang membership and the fact that the offense was committed in his
gang’s territory. First, it was significant that the area where defendant committed this
offense was not just gang territory but also known for shootings and robberies, both of
which may be substantially promoted, furthered, and assisted by possession of a firearm.
Second, defendant admitted that he had had the gun for six months for “protection.”
Given his gang membership, defendant’s intent to use the gun for “protection” implied
his involvement with fellow gang members in criminal activity that would prompt such a
need. Third, defendant admitted removing his ankle bracelet, knowing a warrant would
be out for his arrest as a result, and knowing that he was precluded from possessing a
firearm. This concurrence of circumstances strongly suggested that his firearm
possession was not for merely personal “protection” use but was intended to further some
greater end that would justify the heightened risks he knew he was taking. While
Zuniga’s highly generalized (and somewhat ambiguous) opinion testimony alone might
14
well not be sufficient to support the jury’s true finding on the specific intent element, as
suggested by the cases on which defendant relies, the totality of the circumstantial
evidence of defendant’s intent was not so lacking in substantiality that it could not
support the jury’s finding. We reject defendant’s challenge.
3. Former Section 12021 Count
Defendant contends that the former section 12021 count cannot be upheld because
the prosecution produced no evidence that his possession of a firearm was “[p]rohibited
by an [e]xpress [c]ondition of [p]robation.” (Boldface omitted.)
Defendant was charged with violating former section 12021, subdivision (d)(1).
“Any person who, as an express condition of probation, is prohibited or restricted from
owning, possessing, controlling, receiving, or purchasing a firearm and who owns,
purchases, receives, or has in his or her possession or under his or her custody or control,
any firearm but who is not subject to subdivision (a) or (c) is guilty of a public
offense . . . .” (Former § 12021, subd. (d)(1), italics added.) Although evidence was
presented at trial that defendant was on juvenile probation at the time of the current
offense, there was no mention of the conditions of his probation other than the search
condition. The prosecution and the defense entered into a written stipulation that “[a]
court had previously ordered [defendant] not to possess firearms.” The stipulation said
nothing about any probation conditions. The jury was instructed that it was an element of
this count that “a Court has ordered the defendant not to possess a firearm.” This
instruction also told the jury that “[t]he defendant and the People have stipulated or
agreed that the Court ordered the defendant not to possess a firearm. This stipulation
means that you must accept this fact as proved. Do not consider this fact for any other
purpose. Do not speculate about why the Court’s order was made.”
The Attorney General’s very brief response to this contention is that “[t]he jury
could readily infer from this evidence [(that is, evidence that defendant was on probation
with a search condition)] that the prior court order [mentioned in the stipulation] was a
15
probation condition.” The Attorney General’s chain of reasoning assumes that the jury
engaged in unsupported speculation, rather than that it drew reasonable inferences from
the evidence. The record provides no foundation whatsoever for such an inference. The
stipulation contained no reference to probation or probation conditions, and no evidence
was before the jury to suggest that the probation search condition was in any way related
to the court’s order that defendant was “not to possess a firearm.” The prosecution
simply failed to supply a necessary element of proof. Consequently, we agree with
defendant that the former section 12021 count cannot be upheld due to the lack of
substantial evidence.
B. Booking Statements
Defendant contends that the trial court erred in denying his request for an
Evidence Code section 402 hearing on the admissibility of statements he made during
booking on four separate occasions and in admitting those statements over his objection.
1. Background
The prosecution’s exhibit list, filed at the commencement of trial, specified that it
10
intended to introduce “Jail housing documents.” Defendant made an in limine motion
seeking to exclude evidence of defendant’s statements “to the [J]ailer” unless the
prosecution established at an Evidence Code section 402 hearing that the “questioning
did not violate Miranda and was within the exception noted in People v. Gomez
10
During in limine motions, the defense asserted that evidence of where the jailers
actually housed defendant was “irrelevant.” When it was explained that the prosecution
was actually seeking to show that defendant had not been attacked by his fellow
prisoners, the defense asked only that “adequate foundation be laid before that comes in.”
16
11
[citation].” The defense characterized what it sought as “a 402 voluntariness hearing”
to determine whether the jailer was aware of “what [defendant] was in on.” The
prosecution asserted that there was no need for such a hearing because “every single
person who comes into the jail goes through the same booking process” and is asked “the
same questions” so that housing determinations can be made. The court concluded that
no hearing was necessary because it was irrelevant whether the jailer knew of the
charges, since the same questions would have been asked in any case.
Defendant’s trial counsel thereafter stipulated to the admission of the four “intake
screening questionnaire[s]” without foundational testimony. He agreed that he would
prefer to “cross-examine the experts” with respect to these documents rather than “calling
the specific deputy that took the statements.” Zuniga therefore testified about the four
questionnaires, which were admitted into evidence.
Four forms entitled “CLASSIFICATION INMATE INTAKE SCREENING
QUESTIONNAIRE” were admitted into evidence. These form questionnaires were
dated December 8, 2010, November 13, 2010, August 3, 2010, and July 26, 2010. Each
form consisted of preprinted questions that were to be answered primarily by circling “Y”
or “N.” Some questions were followed by blanks where the requested information was to
be recorded. Each form was signed by defendant and a sheriff’s deputy.
The upper section of the form was preceded by the instruction “Ask the inmate
the following:” This was followed by about 20 questions. Two of these questions
explicitly concerned gangs. The question “Have you or any family member ever been
associated with a gang?” was followed by “(I)nmate / (F)amily / (N)o.” The question “If
so, what gang, and what was the status in the gang and length of time?” was followed by
11
Defendant also sought an in limine ruling precluding, on Sixth Amendment
grounds, “any testimonial hearsay evidence coming into evidence through any [expert]
witness” as the basis for the expert’s opinion.
17
a blank to be filled in with the information. The lower section of the form was preceded
by the instruction: “Deputy to answer:” This was followed by about a dozen questions,
including “Are the charges violent?,” “Officer’s observation for housing?,”
“Scars / Marks / Tattoos? List all:,” and “Clothing.”
On the upper section of the December 2010 form, “(I)nmate” was circled after the
question about gang association, and the deputy had recorded defendant’s response to the
question about the identity of the gang as “stated, ‘I associate w/Nor.’ ” It also recorded
that defendant said he had previously been housed in “K-POD,” would like to be housed
12
in “(G).P.,” was on probation, and had no enemies. On the lower section of the
December form, the deputy had responded “Y” to the question “Are the charges violent?”
and had written in “WEAPONS” next to that question. The deputy’s response regarding
13
housing was “(G).P.” The deputy had also recorded that defendant had “4-DOTS” on
his left elbow and that his clothing was a black and white jacket, a black shirt, black
pants, and white shoes.
The November 2010 form reported that defendant identified his gang association
as “Salinas,” said that he wanted to be housed in “K-POD,” and reported that his enemies
were “Surenos.” His clothing was identified as black and brown, and the deputy reported
14
no tattoos.
The August 2010 form reported that defendant said he “associates” “w/nortenos,”
15
and wanted to be housed “w/nortenos,” and his “enemies” were “Surenos.” None of
his clothing was red.
12
Apparently “G.P.” refers to general population.
13
An attachment to the December form recorded that defendant had actually been
housed in K-POD on December 9, 2010.
14
An attachment recorded that defendant was housed in K-POD.
15
Defendant was apparently booked and released.
18
The July 2010 form similarly reported that defendant had identified his gang
association as “NORTENO ASSOCIATE” and asked to be housed in “(G).P.” The
deputy reported on the July form that defendant had no tattoos and was wearing all black
clothing.
Zuniga testified that someone who is not a gang member would not be permitted
by the other gang members to remain housed in a gang “pod” at the jail. The other gang
members would tell the person to leave or assault the person to cause the person’s
removal.
During trial, the defense renewed its objection to the admission of the booking
questionnaires without a voluntariness inquiry. The questionnaires were admitted into
evidence over this objection. In his closing argument, defendant’s trial counsel expressly
invited the jury to look at the “booking sheet” in support of his argument that defendant
was not wearing any gang clothing at the time of his arrest and that he was wearing a
jacket that would have concealed his four dots tattoo. He also asked the jury to examine
the booking questionnaires on other issues.
The trial court instructed the jury with CALCRIM No. 358: “You have heard that
the defendant made oral statements before the trial. You must decide whether the
defendant made any of these statements in whole or in part. If you decide that the
defendant made such statements, consider the statements along with the other evidence in
reaching your verdict. It is up to you to decide how much importance to give to the
statements. Consider with caution any statement made by the defendant tending to show
his guilt unless the statement was written or otherwise recorded.”
Shortly after giving CALCRIM No. 358, the court also gave CALCRIM No. 360.
“Officer Zuniga testified [that] in reaching his conclusions as an expert witness, he
considered statements made by jail classification deputies. You may consider those
statements only to evaluate the expert’s opinion. Do not consider those statements as
proof that the information contained in the statements is true.”
19
2. Analysis
Defendant seems to be making both procedural and substantive contentions. He
claims that the trial court erred in failing to hold the requested hearing, and he asserts that
the trial court erred in admitting the evidence because the prosecution failed to establish
that he had waived his Fifth Amendment rights and voluntarily responded to the deputies’
questions.
We can find no merit in his procedural contention. “[I]n a criminal action, the
court shall hear and determine the question of the admissibility of a confession or
admission of the defendant out of the presence and hearing of the jury if any party so
requests.” (Evid. Code, § 402, subd. (b).) This statute applies “[w]hen the existence of a
preliminary fact is disputed.” (Evid. Code, § 402, subd. (a).) It is designed to prevent
evidence from being disclosed to the jury prior to a ruling on its admissibility. Here, the
trial court correctly “hear[d] and determine[d]” the admissibility of defendant’s
statements outside the presence of the jury as requested by defendant. While no
evidentiary hearing was held on this issue, the statute does not explicitly require that such
a hearing be held. Here, the trial court plainly concluded that there were no material
factual disputes as to any preliminary facts.
Defendant’s substantive contention also lacks merit. Below, relying on People v.
Gomez (2011) 192 Cal. App. 4th 609 (Gomez), defendant contended that the statements
were inadmissible in the absence of proof of two preliminary facts: (1) the statements
were “voluntar[y]”; and (2) the deputies who filled out the forms were not aware of the
charges against defendant when they did so.
In Gomez, the Fourth District stated that “whether a question about a suspect’s
gang affiliation during a booking interview is encompassed by the booking question
exception depends upon whether, under all the facts and circumstances, the question was
designed to elicit an incriminating response.” (Gomez, supra, 192 Cal.App.4th at p. 627.)
“In determining whether a question is within the booking question exception, courts
20
should carefully scrutinize the facts surrounding the encounter to determine whether the
questions are legitimate booking questions or a pretext for eliciting incriminating
information. [Citation.] Courts have considered several factors, including the nature of
the questions, such as whether they seek merely identifying data necessary for booking
[citations]; the context of the interrogation, such as whether the questions were asked
during a noninvestigative, clerical booking process and pursuant to a standard booking
form or questionnaire [citations]; the knowledge and intent of the government agent
asking the questions [citations]; the relationship between the question asked and the
crime the defendant was suspected of committing [citations]; and any other indications
that the questions were designed, at least in part, to elicit incriminating evidence and
merely asked under the guise or pretext of seeking routine biographical information
[citations].” (Gomez, at pp. 630-631.)
We review the trial court’s ruling under a primarily deferential standard of review.
“ ‘ “[W]e accept the trial court’s resolution of disputed facts and inferences, and its
evaluations of credibility, if supported by substantial evidence. We independently
determine from the undisputed facts and the facts properly found by the trial court
whether the challenged statement was illegally obtained.” [Citation.]’ ” (Gomez, supra,
192 Cal.App.4th at p. 627.) The forms themselves were substantial evidence supporting
the trial court’s decision. The trial court could reasonably conclude from the forms
themselves that the two standardized questions regarding gang associations were routine
inquiries for the purpose of making appropriate jail housing assignments. Defendant was
asked: (1) “Have you or any family member ever been associated with a gang?”; and (2)
“If so, what gang, and what was the status in the gang and length of time?” The fact that
these questions appeared on standardized forms clearly used for every person booked into
the jail and that they were plainly essential to the purpose of obtaining vital information
necessary to ensure the safety of jail inmates eliminated any possibility that the questions
were pretextual or designed for an investigative purpose. As the trial court recognized,
21
the subjective state of mind of the deputy asking these necessary, standardized questions
was therefore irrelevant. The trial court did not err in admitting into evidence
defendant’s answers to these questions.
C. Instructional Error Assertions
Defendant claims that the court made three instructional errors. The first of these
alleged errors concerns the gang count, which we have already determined must be
reversed due to insufficiency of the evidence. We therefore need not address that
contention. Defendant’s remaining claims of instructional error concern the instructions
on the gang enhancement allegations and the court’s limiting instruction.
1. Gang Enhancements
Defendant contends that the trial court gave conflicting instructions on the specific
intent element of the gang allegations.
When the court initially instructed the jury as to which counts and allegations
required specific intent and which required general intent, the court told the jury that each
of the gang enhancement allegations “requires a specific intent or mental state: That the
crimes charged in Counts 1 and 2 [the carrying and concealed firearm counts] were
committed for the benefit of a criminal street gang. For you to find this allegation true,
that person must not only intentionally commit the prohibited act, but must [do] so with a
specific intent. The act and the specific intent required are explained in the instruction
for that allegation.” (Italics added.) When the court thereafter instructed the jury on the
gang allegations, it told the jury: “To prove this allegation, the People must prove that,
one, the defendant committed the crime for the benefit of, at the direction of, and in
association with a criminal street gang; and two, the defendant intended to assist, further,
or promote criminal conduct by gang members.” (Italics added.)
When a criminal defendant challenges the propriety of a jury instruction, we
inquire “ ‘whether there is a reasonable likelihood that the jury has applied the challenged
22
instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S.
62, 72, quoting Boyde v. California (1990) 494 U.S. 370, 380 (Boyde).) We evaluate the
challenged instruction in the context of all the instructions given by the trial court.
(Boyde, at p. 378.) We will find error only if it is reasonably likely that the jury
misunderstood the law. (People v. Kelly (1992) 1 Cal. 4th 495, 525-526.)
Here, the trial court’s initial instruction identifying the gang allegations as ones
requiring a specific intent did not purport to be itself an instruction on the nature of the
required specific intent. Instead, this instruction, which referred to the gang allegations
generally as the allegations that the crimes were “committed for the benefit of a criminal
street gang,” explicitly told the jury that the required specific intent for these allegations
would be “explained in the instruction for that allegation.” Consistent with this initial
instruction, the required specific intent was thereafter accurately explained in the
instruction on the elements of the gang allegations. When the two instructions are
considered together, it is clear that it was not reasonably likely that the jury would
misunderstand the nature of the specific intent element of the gang allegations. We find
no error.
2. Limiting Instruction
Defendant complains that the trial court gave an inadequate limiting instruction
regarding the hearsay evidence relied on by the gang expert.
a. Background
The defense made in limine request for a limiting instruction on any hearsay
evidence relied upon by a witness to support an opinion. “We request the instruction
include advising the jury that hearsay cannot be admitted for its truth, that any facts
encompassed in the hearsay must be independently proven by admissible evidence before
the facts can be accepted as true or not.” A “requested limiting instruction” was attached
to the in limine motion. The attached instruction read: “You are about to hear hearsay
testimony from this witness about certain events which the witness will rely upon to
23
arrive at his opinion. None of this hearsay testimony you will hear is proof that the facts
stated are true. Any facts contained in the hearsay must be independently proven before
you may accept them as true. Otherwise you may use them only in evaluating the
witnesses [sic] opinion testimony.”
At the in limine hearing, defendant’s trial counsel asked the court to give a
limiting instruction before the expert’s testimony about hearsay “that the things they are
about to hear are to be received only for the purpose of evaluating the expert’s opinion.”
The court asked if the defense was requesting “CALCRIM 1403,” and defendant’s trial
counsel confirmed as much. The court then said: “The Court grants the motion. I think
you’re entitled to the instruction. And as far as reading it before the expert testifies, let
me take a look at it. I may very well do that.”
The trial court did not give a limiting instruction before Zuniga testified, and
defendant’s trial counsel did not renew his request that it do so. At the conclusion of
trial, the court instructed the jury with CALCRIM No. 1403. “You may consider
evidence of gang activity only for the limited purpose of deciding whether the defendant
acted with the intent, purpose, and knowledge that are required to prove the gang-related
crimes and enhancements charged, or the defendant had a motive to commit the crimes
charged. You may also consider this evidence when you evaluate the credibility or
believability of a witness, and when you consider the facts and information relied on by
an expert witness in reaching his opinion. [¶] You may not consider this evidence for
any other purpose. You may not conclude from this evidence that the defendant is person
of bad character, or that he has a disposition to commit crime. [¶] Membership in a
gang, by itself, is not unlawful.” The court also instructed the jury with CALCRIM No.
332 that it should consider, in evaluating the expert’s testimony, “the facts or information
on which the expert relied in reach that opinion. [¶] You must decide whether
information on which the expert relied was true and accurate. You may disregard any
24
opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
Defendant’s trial counsel never requested any modification of either of these instructions.
b. Analysis
Defendant now claims that the trial court’s use of CALCRIM No. 1403 did not
adequately advise the jury regarding the limited use it was permitted to make of hearsay
testified to by Zuniga. Defendant does not claim on appeal that the timing of the
instruction was erroneous. Instead, defendant’s appellate claim is that the trial court
should have modified CALCRIM No. 1403 “to include all of the hearsay ‘facts’
introduced by the gang expert.”
The Attorney General contends that defendant forfeited any challenge to the
adequacy of the limiting instruction since his trial counsel confirmed to the trial court that
his request was for CALCRIM No. 1403, the trial court gave precisely that instruction,
and defendant’s trial counsel did not request any modification of that instruction. We
agree.
A trial court has no obligation to give a sua sponte limiting instruction. (People v.
Hernandez (2004) 33 Cal. 4th 1040, 1051.) Nor does it have any duty to modify an
instruction in the absence of a request. (People v. Holloway (2004) 33 Cal. 4th 96, 154.)
Here, although defendant’s trial counsel initially requested a nonstandard limiting
instruction, in response to the trial court’s inquiry, he confirmed that he was actually
requesting CALCRIM No. 1403. And he never requested that this standard instruction be
modified in any respect. Consequently, this claim has been forfeited.
Defendant alternatively contends that his trial counsel was prejudicially deficient
in failing to preserve this issue for review. The appellate record fails to establish that his
trial counsel did not act strategically in choosing to accept CALCRIM No. 1403 as an
adequate limiting instruction. (Cf. People v. Maury (2003) 30 Cal. 4th 342, 394 [“A
reasonable attorney may have tactically concluded that the risk of a limiting
instruction . . . outweighed the questionable benefits such instruction would provide.”].)
25
Zuniga testified about three categories of hearsay: (1) defendant’s booking
statements, which, as defendant’s admissions, were admissible for their truth, and were
independently admitted when the questionnaires were admitted into evidence after
defendant’s trial counsel expressly waived any foundational objections; (2) defendant’s
prior contacts with the police; and (3) the gang’s predicate offenses, documentary
evidence of which was also introduced into evidence.
Defendant’s trial counsel could reasonably have concluded that there was nothing
to be gained in limiting the jury’s consideration of defendant’s prior police contacts in
light of the undisputed nonhearsay evidence that defendant was on probation and had cut
off his ankle bracelet. The jury could readily infer from this undisputed nonhearsay
evidence that defendant had had some prior contacts with the police. His prior contacts,
which consisted of being found with gang members and with gang indicia, had little
relevance to anything other than Zuniga’s opinion testimony that defendant was a gang
member, an issue upon which the jury could properly consider this evidence. As the
other two categories of evidence were not introduced solely though Zuniga’s testimony,
but were before the jury as documentary evidence, the proposed limiting instruction
would have been ineffective to restrict the jury’s consideration of Zuniga’s testimony
regarding them. Moreover, defendant’s trial counsel could have concluded that it would
only confuse the jury to ask it to perform the mental gymnastics that would be required to
consider whether this evidence supported Zuniga’s opinion without considering its truth.
The record before us does not sustain defendant’s claim that his trial counsel was
deficient in failing to preserve this issue.
D. Ineffective Assistance of Counsel
Defendant claims that his trial counsel was prejudicially deficient in failing to
object to the admission of evidence that defendant: (1) was a “convicted felon,” (2) had
prior felony arrests, (3) was wanted on a warrant for removing an ankle bracelet, (4) had
26
been mentioned at a police “briefing” as “a person that may be wanted” by the police, (5)
was on probation and subject to a search condition, and (6) had committed a current
offense that was considered “violent” by a jail deputy.
When a defendant challenges his conviction based on a claim of ineffective
assistance of counsel, he must prove that counsel’s performance was deficient and that
his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal. 3d
171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “First, the
defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” (Strickland, at p. 687.) “Judicial scrutiny of counsel’s performance
must be highly deferential . . . a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” (Strickland, at
p. 689.) Thus, whenever counsel’s conduct can be reasonably attributed to sound
strategy, a reviewing court will presume that the conduct was the result of a competent
tactical decision, and defendant must overcome that presumption to establish ineffective
assistance. (Ibid.)
We see no deficiencies in defendant’s trial counsel’s failure to object to these
snippets of evidence because defendant had admitted most of these facts at the time of his
arrest, and his admissions were relevant to his state of mind at that time. Defendant
admitted to Sutton that he “knew” he was “a convicted felon” who was not allowed to
possess a firearm. He also told Sutton that he had removed the ankle bracelet in an
attempt to avoid contact with his probation officer. Defendant also said he “knew there
would be a warrant for him for removing the ankle bracelet.” Since defendant’s
admissions were properly before the jury as relevant evidence of his state of mind,
27
defendant’s trial counsel’s decision to forgo objecting to other evidence of these same
16
facts was a reasonable strategic decision. Because the trial court instructed the jury that
it could consider “statements made by jail classification deputies . . . only to evaluate the
expert’s opinion” and could not consider them “as proof that the information contained in
the statements is true,” defendant’s trial counsel reasonably could have decided that there
would be no tactical advantage in seeking redaction of the deputy’s affirmative response
to the question as to whether defendant’s offense was “violent,” particularly since it was
explained by the deputy’s having written in “weapon.”
E. Cumulative Prejudice
As there are no errors that could have led to cumulative prejudice, we reject this
contention.
F. Sentencing Error Assertions
1. Section 654
Defendant contends that the trial court erred in failing to stay his sentence for the
gang count. Since his conviction on that count must be vacated due to insufficiency of
the evidence, we need not reach this issue. We note that the California Supreme Court
recently decided in People v. Mesa (2012) 54 Cal. 4th 191 that section 654 precludes
punishment for both the gang crime and the underlying felony.
16
Defendant suggests in his reply brief that his admissions should have been
excluded as overly prejudicial and not relevant. Since his state of mind was the critical
issue at trial, his admissions were highly relevant and not unduly prejudicial. His trial
counsel could not reasonably expect to succeed in obtaining exclusion of defendant’s
admissions, so his failure to object was not deficient.
28
2. Section 4019
Defendant maintains that the trial court should have awarded him additional credit
under the amended version of section 4019 that took effect in October 2011.
Defendant’s crimes occurred in December 2010. At his June 2011 sentencing,
defendant was given credit for 183 days of actual presentence custody and 91 days of
17
conduct credit.
At the time of defendant’s crimes and sentencing, the September 2010 version of
section 4019 was in force, and it provided that a defendant would receive two days of
conduct credit for every four days of actual custody credit. (Stats. 2010, ch. 426, § 2.) At
that same time, the September 2010 version of section 2933 provided that,
“[n]otwithstanding Section 4019 and subject to the limitations of this subdivision,” some
defendants were eligible for one day of conduct credit for every one day of actual custody
credit. (Stats. 2010, ch. 426, § 1; former § 2933, subd. (e).) The “limitations” were that
“Section 4019, and not this subdivision, shall apply if the prisoner . . . was committed for
a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious
felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.”
(Stats. 2010, ch. 426, § 1; former § 2933, subd. (e)(3).)
Defendant was ineligible for an award of conduct credit under that version of
section 2933, which provided for one-for-one conduct credit, because he was being
committed for two serious felonies. “[A]ny felony offense, which would also constitute a
felony violation of Section 186.22” is a serious felony. (§ 1192.7, subd. (c).) This
includes felony offenses to which gang enhancement allegations are attached. (People v.
Briceno (2004) 34 Cal. 4th 451, 456.) Defendant’s current carrying and concealed
17
At the beginning of the sentencing hearing, the probation officer told the court that
defendant “is not entitled to custody credits in this case” because he “was being sought as
a probation absconder” at the time of his arrest. The court rejected this argument.
29
firearm offenses were therefore serious felonies, and the provisions of the September
2010 version of section 2933 were inapplicable to him. Consequently, only the two-for-
four conduct credit provision in the September 2010 version of section 4019 was
applicable to him.
In April 2011, section 4019 was amended to provide for two days of conduct
credit for every two days of actual custody. (Stats. 2011, ch. 15, § 482.) However, this
amended version explicitly provided that it was prospective only and applied only to
crimes committed on or after July 1, 2011. In June 2011, before those prospective
provisions took effect, section 4019 was again amended. This version changed the
18
prospective date to October 1, 2011. (Stats. 2011, ch. 39, § 53.) Defendant was
sentenced in June 2011. In September 2011, section 2933 was amended. (Stats. 2011,
1st Ex. Sess., 2011-2012, ch. 12, § 16.) The provisions for one day of conduct credit for
every day of actual custody credit were deleted along with the limitations attached to that
provision, effective October 1, 2011. (Stats. 2011, 1st Ex. Sess., 2011-2012, ch. 12,
§ 16.)
Defendant argues that the trial court violated his right to equal protection by
applying the September 2010 version of section 4019 to him. He contends that even
though his crime and all of his presentence custody occurred prior to the October 1, 2011
prospective date upon which conduct credit was increased by the Legislature, he was
entitled to have the two-for-two conduct credit scheme applied to him.
Both the federal and state Constitutions guarantee the right to equal protection of
the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “ ‘ “The concept of the
equal protection of the laws compels recognition of the proposition that persons similarly
situated with respect to the legitimate purpose of the law receive like treatment.” ’
18
Section 4019 was amended again in September 2011, but this amendment made no
relevant changes. (Stats. 2011, 1st Ex. Sess., 2011-2012, ch. 12, § 35.)
30
[Citation.]” (Cooley v. Superior Court (2002) 29 Cal. 4th 228, 253.) Since the
amendments to section 4019 do not involve a “ ‘ “ ‘suspect classification’ ” ’ ” or a
“ ‘ “ ‘fundamental interest,’ ” ’ ” courts apply the rational basis test to determine whether
the “distinction drawn by the challenged statute bears some rational relationship to a
conceivable legitimate state purpose.” (In re Stinnette (1979) 94 Cal. App. 3d 800, 805.)
Defendant maintains that he is similarly situated to a defendant whose crime was
committed after October 1, 2011, and whose custody time occurred after October 1,
2011. In People v. Brown (2012) 54 Cal. 4th 314, the California Supreme Court rejected
a similar argument with respect to a previous version of section 4019. It found that
prospective only application of the new version of the statute did not violate equal
protection because the purpose of the statute was to create an incentive for good
behavior, which could not be done retroactively. The same is true here. We therefore
reject defendant’s contention.
3. Restitution Fines
Defendant correctly points out that, at the sentencing hearing, the trial court did
not impose mandatory restitution fines. The minutes signed by the judge state that the
restitution fines were $200 multiplied by the number of years of imprisonment and
multiplied by the number of felony counts. The minutes do not calculate the amount or
specify the numbers necessary to make the calculation. The abstract of judgment states
that the restitution fines were $3,200 each (four years times $200 times two counts (not
19
subject to section 654)). The Attorney General concedes that a remand is required to
provide the trial court with an opportunity to calculate the appropriate amount of the
mandatory restitution fines. We agree. “An abstract of judgment is not the judgment of
19
Because we reverse the gang count, the number of counts not subject to
section 654 has been reduced to one. This may impact the court’s calculation of the
fines.
31
conviction; it does not control if different from the trial court's oral judgment and may not
add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell
(2001) 26 Cal. 4th 181, 185.) As the trial court’s oral pronouncement did not mention the
mandatory fines, the abstract could not simply add the fines. A remand is required.
IV. Disposition
The judgment is reversed and remanded to the trial court with directions to (1)
strike the gang count and the former section 12021 count, and (2) impose the mandatory
restitution fines. The trial court shall prepare an amended abstract of judgment and
forward a certified copy to the Department of Corrections and Rehabilitation.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P. J.
_____________________________
Duffy, J. 

Retired Associate Justice of the Court of Appeal, Sixth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
32