People v. Bermudez ( 2020 )

Filed 2/18/20; Opinion following rehearing
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C079168, C079169
Plaintiff and Respondent, (Super. Ct. Nos. CRF130605,
CRF140612)
v.
OPINION ON REHEARING
ADOLFO RODRIGUEZ BERMUDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Yolo County, Stephen L.
Mock and David W. Reed, Judges. Affirmed.
Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior
Assistant Attorney General, and Julie A. Hokans, Supervising Deputy Attorney General,
for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Parts II., III., V. & VI. of the Discussion.
1
This is a consolidation of two appeals from two jury trials of defendant Adolfo
Rodriguez Bermudez. The first trial involved the possession of a concealed dirk. The
second involved an assault with a deadly weapon with a vehicle done to benefit a gang.
Defendant was sentenced to a 21-year four-month aggregate term.
On appeal, defendant contends (1) the statute defining a dirk (Pen. Code,
§ 16470)1 is unconstitutionally vague; (2) the trial court erred in allowing two officers to
testify to the legal definition of a dirk; (3) a gang expert provided improper opinion
testimony that defendant committed a crime to benefit a gang; and (4) insufficient
evidence established the existence of a criminal street gang under section 186.22 because
testimony concerning the predicate felonies was admitted in violation of People v.
Sanchez (2016) 63 Cal.4th 665 (Sanchez). In supplemental briefing, defendant contends
that (5) remand is required so the trial court may consider exercising its discretion under
Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) (SB 1393); and (6) the imposition of
fines and fees violated his right to due process and freedom from excessive fines under
People v. Dueñas (2019) 30 Cal.App.5th 1157. Finally, in a petition for rehearing,
defendant contends (7) his one-year prior prison term enhancement should be struck in
light of Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (SB 136).
In the published portion of this opinion, we hold that the dirk statute is not
unconstitutionally vague. Our high court previously rejected a void for vagueness
challenge to the dirk statute. (People v. Rubalcava (2000) 23 Cal.4th 322 (Rubalcava).)
Defendant, however, raises new arguments, which we reject. Doing so, we first conclude
the statute is definite enough to provide a standard of conduct for those whose activities
are proscribed. We specifically reject defendant’s contention that the term “may” in the
statutory language, “capable of ready use as a stabbing weapon that may inflict great
1 Undesignated statutory references are to the Penal Code.
2
bodily injury,” makes the statute unconstitutionally vague. When read in context with the
rest of the words in the statute, the word “may” is definite enough to place a defendant on
notice of the type of instrument that is prohibited. We also reject defendant’s argument,
based on the vagueness analysis employed by the United States Supreme Court in
Johnson v. United States (2015) 576 U.S. ___ [135 S.Ct. 2551] (Johnson), that the word
“may” connotes an undefined and unconstitutionally vague risk assessment. The Johnson
analysis has no application to laws that require gauging the riskiness of conduct in which
a person engages.
Second, we conclude the knowledge element renders the statute definite enough to
provide a standard for police enforcement and ascertainment of guilt. To be subject to
arrest, a person’s conduct must give rise to probable cause that he knew the concealed
instrument may be used as a stabbing weapon. To be convicted, that knowledge must be
proved beyond a reasonable doubt.
Also in the published portion of this opinion, we hold that a gang expert’s
testimony about gang enhancement predicate offenses does not violate Sanchez, supra,
63 Cal.4th 665, so long as the predicate offenses do not involve defendant or individuals
involved in the defendant’s case. Such predicate offenses are chapters in a gang’s
biography and constitute historical background information, not case-specific
information.
We will strike the one-year prior prison term enhancement and remand to allow
the trial court to consider exercising its discretion under SB 1393. During that remand, as
the People concede, defendant may request a hearing on his ability to pay. In all other
respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Concealed Dirk Case
When a sheriff’s deputy noticed a black Mustang with nonfunctioning break
lights, he followed it until the Mustang made a sudden turn into a driveway, and the
3
deputy lost contact. When the deputy located the Mustang several minutes later, it was
stopped. The deputy saw the driver’s side door open, and defendant was walking around
the front. The deputy asked defendant for his driver’s license. Defendant said he didn’t
have one. The deputy subsequently performed a pat down search and found something in
defendant’s right front pant pocket.
The object was solid metal, about as thick as a pen, and it appeared to have been
broken off a longer piece of metal. One end had been ground down on the sides to form a
point, which had been dulled down. The other end had red tape wrapped around it to
form a handle. The deputy testified the object was completely concealed within
defendant’s pant pocket with the handle up, allowing defendant to retrieve it “with the
point out.” The deputy testified that the object could “most definitely” be used as a
stabbing instrument and further testified it could inflict “injury or death.”
A friend who had been in the Mustang was called as a witness by defendant and
testified that defendant was using the metal object for his stereo to push a button that
wasn’t working. On cross-examination, the friend denied any memory of telling the
arresting officer the metal object was something she used for her hair.
A jury found defendant guilty of carrying a concealed dirk or dagger (§ 21310)
and driving on a suspended or revoked license (Veh. Code, § 14601.2 subd (a)). The trial
court separately found defendant had a prior strike conviction and had served a prior
prison term.
The Assault with a Deadly Weapon Case
The victim was driving in Woodland, with his son in the car, when he saw a black
Honda parked on the side of the road. As he drove by, the Honda suddenly accelerated
hitting him.
Thinking he had been in an accident, the victim pulled over. The Honda collided
into him a second time. The second impact was a “T-bone,” taking off the front and back
doors and breaking windows.
4
The victim recognized defendant as the driver, testifying at trial: “he looked at me
when he crashed and then he flossed his tattoo on his head and . . . I recognized him.”
Defendant had turned, pointed to the back of his head, and yelled “EST,” which the
victim took to mean defendant’s gang, Eastside Trece. Defendant then drove away. The
victim drove to the next block and called 911. In the 911 call, the victim told the operator
he knew defendant’s wife and where she lives.
Shortly after the incident, the victim spoke with a responding officer. He told the
officer he recognized defendant2 and thought the crash had something to do with an
earlier altercation, involving the victim, defendant, and other Sureño gang members.
A couple of months before the assault with a vehicle, the victim was dropping off
his cousin, who associates with Norteños, when a car pulled up and a group of what
looked to be gang members, including defendant, got out of the car and “started talking
gang shit.” The group hurled insults related to Northerners at both the victim and his
cousin. At some point, a security guard showed up and “kicked everyone out.”
The victim had previously associated with southern gangs, but because his family
members are Northerners, he now associates with Northerners. The victim testified,
“since they seen me with him, . . . they thought I was affiliating with Northerners now,
too.” He also testified that he thought defendant felt disrespected.
The victim testified about other altercations. In 2006, he was present when a
group of Southerners he associated with were in a fight with a Northerner — though he
claimed he was not part of the fight. In 2010, the victim was in a fight with an Eastside
Trece member. He explained that several Eastside Trece members had approached him,
and he defended himself.3 An officer who responded to the 2010 incident testified the
2 The victim later identified defendant in a photo lineup.
3 After a break in his testimony, the victim conceded he had been “a bit guarded” in his
earlier testimony about his gang affiliation and knowledge of gangs. But he agreed he
5
victim had been in a fight with several Eastside Trece members and hit one of them with
a tire iron.
An officer who was also involved in the concealed dirk case testified about
contacts he personally had with defendant in 2005, 2007, and 2009. During the first two
contacts, defendant admitted his involvement in the Sureño gang. The officer had also
found “gang music” during a search of defendant’s bedroom and, in 2007, defendant had
a “EST” tattoo on his head. We summarize additional gang evidence, post.
A jury found defendant guilty of two counts of assault with a deadly weapon
(§ 245, subd. (a)(1)) and found both were done for the benefit of, at the direction of, or in
association with a gang (§ 186.22, subd. (b)). It also found defendant guilty of driving on
a suspended license. (Veh. Code, § 14601.2.)
Sentencing
The trial court sentenced defendant to a 21-year four-month aggregate term. For
the assault with a deadly weapon case, the court imposed an eight-year term for one
assault count (the upper term doubled for the strike) along with a five-year gang
enhancement. (§ 186.22 (b)(1).) It also imposed a five-year prior serious felony
enhancement and a two-year on-bail enhancement. (§ 12022.1(b).) A one-year prior
prison term enhancement was stayed pursuant to section 654. Concurrent terms of eight
years for the other assault count, and 180 days for driving on a suspended license were
also imposed.
In the dirk case, the court imposed a consecutive 16-month term for the concealed
dirk (§ 21310) (one-third the middle, doubled for the strike) along with a 30-day
concurrent term for driving on a suspended or revoked license.
would “be truthful” going forward. He also testified he was nervous about testifying
because he feared retaliation for snitching.
6
DISCUSSION
I. The Void for Vagueness Challenge
A. Defendant’s Contentions
Section 21310 proscribes carrying concealed a “dirk or dagger.”4 Section 16470,
in pertinent part, defines a dirk or dagger as “a knife or other instrument with or without a
handguard that is capable of ready use as a stabbing weapon that may inflict great bodily
injury or death.” (Italics added.) Focusing on the italicized text, defendant contends
section 16470’s definition of a dirk is unconstitutionally vague in that it (1) contains
vague terms that fail to give notice of what is prohibited, and (2) grants police and
prosecutors unfettered discretion over who to pursue. We disagree.
In addressing these contentions, we first discuss the statute’s legislative purpose
and how it came to include the language now challenged on appeal. (See People v.
Grubb (1965) 63 Cal.2d 614, 621 (Grubb) [in determining a vagueness challenge related
to statutory terms, consideration of legislative history and statutory purpose is
appropriate].)
B. Purpose and Historical Overview of the Concealed Dirk Statutes
The prohibition against carrying concealed dirks and daggers was enacted to
combat the dangers of concealed weapons. (People v. Mitchell (2012) 209 Cal.App.4th
1364, 1371 (Mitchell).) By prohibiting concealment, third parties are protected from the
risk of surprise attack by a person carrying such weapons. (Ibid.)
The concealed dirk statute was formerly codified in section 12020. Until January
1994, there was no statutory definition of a dirk or dagger; rather, those terms had been
4 In pertinent part, section 21310 provides: “any person in this state who carries
concealed upon the person any dirk or dagger is punishable by imprisonment in a county
jail not exceeding one year or imprisonment.” The terms “[d]irk and dagger are used
synonymously and consist of any straight stabbing weapon.” (People v. Castillolopez
(2016) 63 Cal.4th 322, 327-328 (Castillolopez).)
7
judicially defined. (Rubalcava, supra, 23 Cal.4th at pp. 328-329.) In 1993, “the
Legislature [statutorily] defined ‘ “dirk” or “dagger” ’ to mean ‘a knife or other
instrument with or without a handguard that is primarily designed, constructed, or
altered to be a stabbing instrument designed to inflict great bodily injury or death.’ ”
(Castillolopez, supra, 63 Cal.4th at p. 328, citing § 12020, subd. (c)(24), as added by
Stats. 1993, ch. 357, § 1, p. 2155, italics added.)
This definition proved overly narrow, making it difficult for prosecutors to
establish that the primary purpose of items such as butcher knifes, hunting knifes, or ice
picks was to cause death or great bodily injury when carried for potential use as a
weapon. (Castillolopez, supra, 63 Cal.4th at p. 328.) Concerned that gang members
carrying concealed, lethal knives were “essentially immune from arrest and prosecution,”
the Legislature amended the statute in 1995, replacing “primarily designed, constructed,
or altered to be a stabbing instrument” with “capable of ready use as a stabbing weapon.”
(Rubalcava, supra, 23 Cal.4th at p. 330, citing Sen. Rules Com., 3d reading analysis of
Assem. Bill No. 1222 (1995-1996 Reg. Sess).) “[T]he Legislature recognized that the
new definition may criminalize the ‘innocent’ carrying of legal instruments such as steak
knives, scissors and metal knitting needles, but concluded ‘there is no need to carry such
items concealed in public.’ ” (Rubalcava, at p. 330, citing Sen. Com. on Crim.
Procedure, Analysis of Assem. Bill No. 1222 (1995-1996 Reg. Sess.) as amended May
31, 1995, pp. 3, 5-6.) But the change ultimately raised concerns that the definition was
too broad as applied to legal folding knives and pocketknives. (Ibid.)
So in 1997, the Legislature again amended the statute, this time to provide that
folding knives and pocket knives would qualify as “capable of ready use as a stabbing
weapon” only if the blade was exposed and locked into position. (Castillolopez, supra,
63 Cal.4th at p. 329, citing § 12020, subd. (c)(24) as amended by Stats. 1997, ch. 158,
§ 1, p. 778.) Section 12020 was later repealed and reenacted without substantive change
8
as section 16470 — the statute now challenged on appeal. (Stats. 2010, ch. 711, § 6,
pp. 4146, 4150.)
C. Analysis
1. Void for Vagueness Principles
Due process requires “a reasonable degree of certainty in legislation, especially in
the criminal law . . . .” (People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389;
People v. Custodio (1999) 73 Cal.App.4th 807, 811 (Custodio), italics added.) To satisfy
due process and survive a vagueness challenge, a criminal statute must “ ‘ “ ‘be definite
enough to provide (1) a standard of conduct for those whose activities are proscribed and
(2) a standard for police enforcement and for ascertainment of guilt.’ ” ’ ” (People v.
Morgan (2007) 42 Cal.4th 593, 605 (Morgan).) More specifically, a law must “ ‘provide
adequate notice to those who must observe its strictures’ ” and must not “ ‘
“impermissibly delegate[] basic policy matters to police[] [officers], judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.” ’ ” (Rubalcava, supra, 23 Cal.4th at p. 332.)
When considering a void for vagueness challenge, courts employ a “ ‘strong
presumption that legislative enactments “must be upheld unless their unconstitutionality
clearly, positively, and unmistakably appears.” ’ ” (Morgan, supra, 42 Cal.4th at p. 605;
People v. White (2016) 3 Cal.App.5th 433, 453 (White).) Concomitantly, to prevail on a
vagueness challenge, a defendant must show the statute “ ‘ “is impermissibly vague in all
of its applications.” ’ ” (Morgan, at pp. 605-606; White, at p. 454.)
Merely identifying some instances where the statute’s application is uncertain or
ambiguous is insufficient to sustain a vagueness challenge. (Morgan, supra, 42 Cal.4th
at pp. 604-606 [asportation element in kidnapping requiring moving the victim a
“substantial distance” held not unconstitutionally vague].) Indeed, “ ‘[m]any, probably
most, statutes are ambiguous in some respects and instances invariably arise under which
the application of statutory language may be unclear.’ ” (People v. Ervin (1977) 53
9
Cal.App.4th 1323, 1328 [rejecting vagueness challenge as to “immediately after” and “in
the vicinity” in statute punishing robberies taking place while the victim is using an ATM
“or immediately after the person has used an [ATM] and is in the vicinity of the
[ATM]”].)
Accordingly, as to the requirement that the law be definite enough to provide
notice of a standard of conduct for those whose activities are prescribed, all that is
required is that the statute “ ‘define the proscribed offense “with sufficient definiteness
that ordinary people can understand what conduct is prohibited.” ’ ” (People v. Ledesma
(2017) 14 Cal.App.5th 830, 835 (Ledesma), citing Kolender v. Lawson (1983) 461 U.S.
353, 357 [103 S.Ct. 1855].) A statute is not void for vagueness “ ‘ “if any reasonable and
practical construction can be given to its language.” ’ ” (Morgan, supra, 42 Cal.4th at pp.
605-606.) Nor are statutory terms impermissibly vague if “ ‘their meaning can be
objectively ascertained by reference to common experiences of mankind.’ ” (Id. at
p. 606.)
By these standards, section 16470’s definition of a dirk is not unconstitutionally
vague.
2. Notice of Prohibited Activity
a. The Terms “May” and “Great Bodily Injury”
Defendant contends section 16470’s definition of a dirk is unconstitutionally
vague because it contains vague terms that fail to give notice of what is prohibited. In an
argument not previously addressed by an appellate court, defendant argues the terms
“may” and “great bodily injury,” in the phrase “may inflict great bodily injury” are too
broad and uncertain to inform the public of how to evaluate the risk of harm. He argues
that “may,” as used in section 16470, “either means a likelihood that an event will occur
or means that the event could occur in some hypothetical worst case scenario.” He avers
that individuals, in determining if an item may not be carried concealed, are left to guess
10
whether an item has ever inflicted great bodily injury or could do so in the future. The
People, in turn, contend that “may” means “can” or “is able to.”
While “may” is “used nearly interchangeably with can,” and also “indicate[s]
possibility or probability” (Merriam-Webster’s Collegiate Dictionary (11th ed. 2004)
p. 767), its use does not make section 16470 unconstitutionally vague. The meaning of
“may” can be objectively ascertained by reference to common experiences, particularly
when reading it with other relevant words in the statute. Specifically, the instrument the
Legislature has prohibited when it “may inflict great bodily injury or death” is “a knife or
other instrument . . . that is capable of ready use as a stabbing weapon.” This language
provides sufficient definiteness so that a person of ordinary intelligence can determine
with a reasonable degree of certainty the nature of the instrument one must not carry
concealed. (Cf. Custodio, supra, 73 Cal.App.4th at p. 812 [“a person of ordinary
intelligence would know what is” prohibited by a statute proscribing “sharp
instrument[s]” at penal institutions and “understand that [the statute] does not apply to a
sharpened pencil—which ordinarily is used for a legitimate and necessary purpose—
unless the inmate uses the pencil as a weapon”].)5
5 Nor is the term “great bodily injury” unconstitutionally vague. (People v. Guest (1986)
181 Cal.App.3d 809, 812 [section 12022.7 is not unconstitutionally vague for use of the
term “great bodily injury”]; People v. Roberts (1981) 114 Cal.App.3d 960, 963 [finding
section 245, subdivision (a) not impermissibly vague as the term “great bodily injury” is
sufficiently certain and definite to meet constitutional requirements].) “ ‘[G]reat bodily
injury’ ” means a significant or substantial physical injury.” (§ 12022.7.) We reject
defendant’s argument that the term “great bodily injury” does not aid in making the
proceeding terms in section 16470 “any more certain” because great bodily injury could
simply involve extensive bruising and does not require puncture of skin or any particular
harm that would tell the public whether an instrument is a dirk. In light of the statutory
focus on a weapon that is capable of use as a “stabbing weapon,” it must be obvious that
the type of great bodily injury the Legislature seeks to prevent is one involving the
perforation of the skin.
11
That a statute does not afford mathematical precision is not fatal. Indeed, “ ‘[t]he
law is replete with instances in which a person must, at his peril, govern his conduct by
such nonmathematical standards as “reasonable,” “prudent,” “necessary and proper,”
“substantial,” and the like.’ ” (Morgan, supra, 42 Cal.4th at p. 606.) For example, “a
[person] may be given a speeding ticket if he overestimates the ‘reasonable or prudent’
speed to drive his car in the circumstances” under Vehicle Code section 22350. (Morgan,
at p. 606.) A person may be incarcerated for willful homicide for misjudging the
“reasonable” amount of force that may be used to repel an assault. (Ibid.) Standards
such as “reasonable” are not impermissibly vague so long as “ ‘their meaning can be
objectively ascertained by reference to common experiences of mankind.’ ” (Ibid.) So
too in this way, the term “may” is objectively ascertainable.
Moreover, in defendant’s case, the sharpened object concealed in his pants pocket
was indisputably capable of causing great bodily injury. It was not a recognizable tool or
object with a common alternative use. It was a solid piece of metal broken off from a
larger piece of metal. That the law could be properly applied to defendant’s instrument
demonstrates the law is not “ ‘ “impermissibly vague in all of its applications” ’ ”6 (See
Morgan, supra, 42 Cal.4th at p. 606.)
6 And the fact that certain innocent objects identified by defendant (keys, pens, scissors,
needles, awls) — which are not at issue here — might present uncertainty as to whether
they can cause great bodily injury does not render the statute unconstitutionally vague. “
‘ “[A] statute is not void simply because there may be difficulty in determining whether
some marginal or hypothetical act is covered by its language.” ’ ” (Morgan, supra, 42
Cal.4th at p. 606; see also Rubalcava, supra, 23 Cal.4th at p. 331 [rejecting suggestion
that without a specific intent requirement to use the instrument as a stabbing weapon, the
statute would apply to a tailor who places scissors in his jacket, a shopper who walks out
of a kitchen store with a recently purchased steak knife concealed, and a parent who
wraps a sharp pointed knife in a paper towel and places it in his coat to carry into a PTA
potluck dinner].)
12
Further, to be guilty of carrying a concealed dirk, a defendant must know the
concealed instrument could be readily used as a stabbing weapon. (Rubalcava, supra, 23
Cal.4th at p. 331; see also CALCRIM No. 2501.) And “when a defendant is charged with
an offense that penalizes possession of an instrument that is ordinarily usable for peaceful
purposes, the defendant may justify the possession by showing the possession was ‘in
accordance with [the instrument’s] ordinary legitimate design.’ ” (Mitchell, supra, 209
Cal.App.4th at p. 1372, citing Grubb, supra, 63 Cal.2d at p. 621, fn. 9.) “Consistent with
this principle, . . . [CALCRIM No. 2501] directs that when the instrument may have
innocent uses, the jury should be given an instruction stating: ‘When deciding whether
the defendant knew the object . . . could be used as a stabbing weapon, consider all the
surrounding circumstances, including the time and place of possession. Consider also the
destination of the defendant, the alteration of the object from standard form, and other
facts, if any.’ ” (Mitchell, at p. 1372, italics added.) Defendant’s jury was so instructed.7
b. Risk Assessment under Johnson
Defendant attempts to bolster his argument that “may” is too broad and uncertain
by citing to Johnson, supra, 576 U.S. ___ [135 S.Ct. 2551], and arguing “may,” even if
defined as “can,” “contains a risk assessment on its face” and this “risk assessment is
vague and undefined, leading to a statute that does not guide the public.” We disagree.
7 Carrying a concealed dirk is a general intent crime. (Rubalcava, supra, 23 Cal.4th at
p. 330.) Contending that the general intent requirement of section 21310 is vague,
defendant argues that it is unclear what intent is required because the statute does not
explain whether it is the “carrying or the concealment” that must be intentional. We
reject this contention because the statutory language is clear. Section 21310 applies to
“any person . . . who carries concealed upon the person any dirk or dagger.” (Italics
added.) (See fn. 4, ante.) Thus, one must intend to both carry the dirk on one’s person
and conceal it. Indeed, it is hard to imagine a real life scenario where a person has
concealed a dirk on his person but has not also carried it. This general intent is reflective
of the statutory purpose of “combat[ing] the dangers arising from the concealment of
weapons.” (See Mitchell, supra, 209 Cal.App.4th at p. 1371.)
13
In Johnson, the United States Supreme Court held that part of the federal Armed
Career Criminal Act (ACCA) was unconstitutionally vague. (Johnson, supra, 576 U.S. at
p. ___ [135 S.Ct. at p. 2557].) That act enhances sentences of persons convicted of
certain firearm offenses if they have previously been convicted of a violent felony. (Id. at
p. ___ [135 S.Ct. at p. 2555].) One statutory definition of a violent felony under the act is
a felony that is “burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.” (Id.
at p. ___ [135 S.Ct. at p. 2556.) The italicized language, known as the residual clause,
was the focus of the Court’s vagueness analysis. (Ibid.) But it was not the residual
clause itself that created the vagueness problem — it was the language combined with the
court’s analytical method for determining whether an offense is a violent felony. (Id. at
p. ___ [135 S.Ct. at p. 2557.)
The Supreme Court employs a “categorical approach” to decide whether a
conviction qualifies as a violent felony under the ACCA. (Johnson, supra, 576 U.S. at
p. ___ [135 S.Ct. at p. 2557].) Under that approach, a court does not look at how the
defendant committed the crime. (Ibid.) Rather, in “[d]eciding whether the residual
clause covers a crime” the court pictures the kind of conduct involved in “the ordinary
case” of the crime, and judges whether it presents a “serious potential risk of physical
injury.” (Ibid.)
The Court reasoned that two features of the residual clause combine to make it
unconstitutionally vague. (Johnson, supra, 576 U.S. at p. ___ [135 S.Ct. at p. 2557].)
First, “the residual clause leaves grave uncertainty about how to estimate the risk posed
by a crime. It ties the judicial assessment of risk to a judicially imagined ‘ordinary case’
of a crime, not to real-world facts or statutory elements.” (Ibid., italics added.) Second,
“the residual clause leaves uncertainty about how much risk it takes for a crime to qualify
as a violent felony.” (Id. at p. ___ [135 S.Ct. at p. 2558].) “By combining indeterminacy
about how to measure the risk posed by a crime with indeterminacy about how much risk
14
it takes for the crime to qualify as a violent felony, the residual clause produces more
unpredictability and arbitrariness than the Due Process Clause tolerates.” (Ibid.)
Johnson has no application here. As the Johnson court explained, “It is one thing
to apply an imprecise ‘serious potential risk’ standard to real-world facts; it is quite
another to apply it to a judge-imagined abstraction.” (Johnson, supra, 576 U.S. at p. ___
[135 S.Ct. at p. 2558].) Indeed, the majority in Johnson rejected the concern raised by
the dissent that the majority’s holding would create constitutional doubt for various
federal statutes using terms like “substantial” and “unreasonable” risk. (Id. at p. ___ [135
S.Ct. at p. 2561].) It reasoned that “almost all of the cited laws require gauging the
riskiness of conduct in which an individual defendant engages on a particular occasion.
As a general matter, we do not doubt the constitutionality of laws that call for the
application of a qualitative standard such as ‘substantial risk’ to real-world conduct; ‘the
law is full of instances where a man’s fate depends on his estimating rightly . . . some
matter of degree.’ ” (Ibid.)
Subsequent to Johnson, the high court emphasized Johnson’s limited application:
“The Court’s analysis in Johnson thus cast no doubt on the many laws that ‘require
gauging the riskiness of conduct in which an individual defendant engages on a
particular occasion.’ [Citation] The residual clause failed not because it adopted a
‘serious potential risk’ standard but because applying that standard under the categorical
approach required courts to assess the hypothetical risk posed by an abstract generic
version of the offense.” (Welch v. United States (2016) ___ U.S. ___ [136 S.Ct. 1257,
1262].) Several California cases have recognized this distinction. (See People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1143 [rejecting vagueness challenge based on
Johnson to California’s second degree felony-murder rule requiring commission of an
inherently dangerous felony]; Ledesma, supra, 14 Cal.App.5th 830, 839-840 [rejecting
Johnson vagueness challenge based on the asportation element in aggravated kidnapping
and the one strike law]; White, supra, 3 Cal.App.5th at pp. 453-454 [rejecting Johnson
15
vagueness challenge based on the term “sexually violent criminal behavior” in the
Sexually Violent Predator Act].)
Unlike the residual clause in Johnson, California’s prohibition against carrying
concealed instruments “capable of ready use as a stabbing weapon . . . that may inflict
great bodily injury or death” requires application of a legal standard to real-world facts.
(See Ledesma, supra, 14 Cal.App.5th at p. 838 [recognizing that this distinction is
“crucial”].) No hypothetical case of an underlying crime determines the statute’s
applicability here. (Ibid.) And the elements at issue here are the type of qualitative
standard deemed permissible in Johnson. (See Ledesma, at p. 839; White, supra, 3
Cal.App.5th at p. 455.)
Accordingly, we conclude the language of section 16470 is sufficiently definite to
give people with ordinary intelligence notice of what is prohibited. And the knowledge
requirement further protects against a person’s miscalculation.
3. Standard for Police Enforcement and Ascertainment of Guilt
As noted, the second test for vagueness requires that the statute be definite enough
to provide a standard for police enforcement and for ascertainment of guilt. (Morgan,
supra, 42 Cal.4th at p. 605.) To that, defendant argues section 16470, because of its
broad nature, “grants the police and prosecutors unfettered discretion” over who to
charge with carrying a concealed dirk. He reasons the statute “punishes activity that
ordinary people engage in without thinking about it.” He postulates that a car key could
be a dirk, ergo everyone in a parking lot could be arrested for carrying a concealed dirk.
We disagree.
That the statute is broad does not mean no standard exists for police enforcement
and ascertainment of guilt. Indeed, the statute is intentionally broad in order to achieve
its purpose of addressing the dangers of concealed weapons. (See Mitchell, supra, 209
Cal.App.4th at p. 1371.) And in Rubalcava, supra, 23 Cal.4th 322, our high court
16
rejected the contention that the potentially broad reach of the concealed dirk statute made
the statute unconstitutionally vague. (Id. at p. 331.)
Defendant, nevertheless, argues that without a specific intent requirement, the
statute does not limit police and prosecutorial discretion. In support, he cites Caswell,
supra, 46 Cal.3d 381. There, our high court held section 647, subdivision (d) —
proscribing loitering in or about a public toilet for purposes of engaging in or soliciting a
lewd act — did not provide law enforcement unfettered discretion, in part because the
defendant must loiter with specific intent to engage in or solicit a lewd act. (Id. at
p. 394.) The court reasoned that one is subject to arrest only if one’s conduct gives rise to
probable cause to believe he is loitering with the proscribed intent. (Ibid.) Defendant
notes that here, by contrast, no specific intent requirement limits police discretion. And
though he recognizes that our state’s high court in Rubalcava rejected a vagueness
challenge grounded on the statute’s lack of a specific intent requirement, he argues we
should ignore this part of Rubalcava — and find the statute vague for lack of a specific
intent requirement — because in Rubalcava, the defendant failed to identify vague terms
in the statute, and he has. (See Rubalcava, supra, 23 Cal.4th at pp. 331-332, 325, 328.)
We disagree.
First, a specific intent requirement is not needed to prevent arbitrary enforcement.
(Rubalcava, supra, 23 Cal.4th at pp. 332-333.) The Rubalcava court held that carrying a
concealed dirk is not a specific intent crime. (Id. at p. 331.) But it emphasized that the
statute has a mens rea requirement: a defendant must know he is carrying the concealed
instrument and that the instrument could be used as a stabbing weapon. (Id. at pp. 331-
332.) That requirement allays the concerns raised by defendant. (Id. at p. 332.) To be
subject to arrest, a person’s conduct must give rise to probable cause that he knew the
concealed instrument may be used as a stabbing weapon. (See Caswell, supra, 46 Cal.3d
at p. 394.) Such knowledge can be determined through the surrounding circumstances,
including the time and place of possession, the defendant’s destination, the object’s
17
alteration, and any other facts. (See Mitchell, supra, 209 Cal.App.4th at p. 1372;
CALCRIM No. 2501.) Thus, these factors further guide police, prosecutors, judges and
juries when enforcing the law or determining guilt for a concealed dirk violation. Indeed,
here, the prosecution’s expert testified that in determining what an instrument is used for,
he considered circumstances such as an object’s “manipulation,” where the object is
found, and “the context of how it is carried.”
Second, challenging “may” as vague is no grounds for disregarding Rubalcava.
We have already concluded that the word “may,” upon which defendant primarily
focuses, when read with the rest of the language of the statute is definite enough to place
a defendant on notice of the type of instrument that is prohibited. We similarly conclude,
consistent with Rubalcava, that the statutory definition and previous judicial
interpretations provide adequate standards to avoid arbitrary enforcement. (See
Williams v. Garcetti (1993) 5 Cal.4th 561, 577 [“Although the amendment calls for
sensitive judgment in both enforcement and adjudication, we would not be justified in
assuming that police, prosecutors, and juries are unable to exercise such judgment”].)
As such, section 16470, defining a dirk or dagger, is not unconstitutionally vague.
II. Officer Testimony Regarding a Dirk’s Definition
Defendant next contends the trial court erred in allowing two officers to testify to
the “legal meaning of the dirk statute” because it allowed the officers to usurp the court’s
role in instructing the jury on the applicable law. We disagree.
A. Additional Background
Defendant filed a written in limine motion to preclude the deputy who found the
dirk from testifying that the object in defendant’s pocket was a dirk or dagger “as a
matter of law.” Defendant conceded the deputy could testify to the object’s
18
characteristics but argued that saying, “it is a dirk as matter of law” would invade the
jury’s role.8 Defendant did not object to testimony about the legal definition of a dirk.
During the hearing on the in limine motion, the trial court characterized the motion
as “a request that the arresting officer . . . not to refer to the object he found . . . as a dirk
or a dagger.” The court ruled that if the officer “is simply testifying as an eyewitness,
then I would agree that he can’t offer that opinion, because it is an expert opinion. On the
other hand, if the prosecution manages to qualify [the officer] as an expert, then just like
any other expert, he could give an opinion about the categorization of the object . . . .”9
Counsel registered no further objection to the ruling and mentioned nothing at the hearing
concerning testimony about the legal definition of a dirk.
Early in his testimony, the deputy who found the dirk on defendant was asked by
the prosecutor, “what is a dirk?” The deputy answered: “there’s many different forms of
it. Usually, it’s a metal object with a shaven tip.” Asked about different kinds of dirks,
the deputy explained, “There’s different . . . ways to do it. [D]ifferent handles, different
sizes, how people basically want to grip that object to use it as a weapon.” He further
explained that the “metal part” can be three and one-half to six inches long.
On cross-examination, defense counsel asked about the composition of the object
found in defendant’s pocket and established it was non-magnetic. He then asked, “have
. . . you tried to locate a similar object [to the metal object] . . . .?” When the deputy said
8 In his written motion, defendant asked that the deputy who found the dirk, “not make
any conclusory statements that the item removed from defendant’s pocket was a dirk or
dagger as a matter of law.” The motion read: “[the deputy] can testify to any
characteristics about the item found in the defendant’s pocket, however, he should not be
entitled to say — ‘it is’ a dirk or dagger as a matter of law. To allow the jury to perform
its ultimate fact finding role, this Court should not allow [the deputy who found the dirk]
to give any conclusory statement that the item in defendant’s pocket was a dirk or dagger,
as a matter of law. Since this would be left for the jury to decide.”
9 The trial court granted the request to make all in limine rulings binding at trial.
19
no, counsel asked, “Have you asked anyone in the Department to follow-up and find out
what that was?” When the deputy again said no, counsel asked, “Do you know what it
is?” The deputy replied: “I know that it meets the description of a stabbing device
known as a dirk that can be used as a weapon.” Defense counsel did not object but
responded: “Well, but that is your opinion.”
On redirect, the prosecutor asked, “are you familiar [with] . . . what makes
something a dirk, under the Penal Code?” The deputy said yes, and the prosecutor asked,
“And based on your knowledge of what a dirk is, does it have to be made of a specific
material?” The deputy said no, later explaining it could be made from wood or a
toothbrush. Asked about identifying factors he uses to determine whether an object is a
dirk, the deputy answered: “Basically, an object that you can hold in your hand that can
be used as a stabbing device. [¶] Basically, an object that has an end that’s been sanded
down, grounded down, melted down, formed to a point, that’s going to cause great bodily
harm or death.” The deputy also testified that the object found on defendant could “most
definitely” be used as a stabbing instrument and could inflict “injury or death.”
Next, the prosecution called a Woodland Police Department sergeant who had
previously served on a county gang task force. In the course of seeking to qualify him as
an expert in dirk recognition, the prosecutor asked, “what is a dirk?” The sergeant
answered a dirk is a “manufactured cutting or stabbing weapon . . . made with what’s
available. [¶] Sometimes like a sharpened piece of metal.” He testified that they are
usually small in length, between two to six inches. He explained people who carry them
“don’t want them to be too big, because they’re designed to be, one, a weapon of
convenience; two, a weapon of quick access; and three, and most importantly, something
that’s concealable.” He added that dirks usually have “something porous on them to
grip” such as string or tape. He noted that as a gang investigator, he frequently came
across dirks.
20
When the prosecution offered the sergeant as an expert, defense counsel asked to
question him further. Counsel asked whether “there’s a standard definition for dirk or
dagger in California . . . .?” Prior to this question, there had been no questions of any
witness about the “standard definition” of dirks. The sergeant said there is. Counsel then
asked about the difference between a dirk and a dagger. The sergeant testified that a
dagger has a double-edged blade, while a dirk “if I’m correct, is an instrument with or
without a hand guard that’s capable, one, [of] being concealed; and, two, being a fixed
blade; and, three, capable of stabbing or cutting somebody.”
Counsel responded: “I believe the officer’s wrong. I believe that dirk or dagger
are both synonymous . . . . They’re defined under California law as a knife or other
instrument with or without a hand guard that is capable of ready use as a stabbing weapon
that may inflict great bodily injury or death. That’s the standard definition. And I don’t
think we need an expert to determine what meets the definition.”
The court replied: “I’m baffled; is that a question?” Counsel continued
questioning, eliciting the sergeant’s response: “I know there’s your legal definition, but
there’s also the historical purposes for dirk and daggers and they are distinctly different.”
The sergeant added, “you’re the lawyer, I’m the officer with the history degree” and
ultimately conceded, “I’ll take your advice and I will say that [dirks and daggers] are
synonymous, counsel.”
Thereafter, the trial court permitted the sergeant to testify as an expert, explaining:
“I would permit [the sergeant] to give opinion testimony on the subject of identification
of an object as a dirk or dagger.”
The prosecutor then handed the sergeant the metal object at issue here and asked if
it had “the characteristics that you would see in the dirks that you’ve seen over the 16
years of your career in law enforcement?” The officer said it was similar in design,
noting it was taped to prevent slippage, concealable, and designed to look ordinary and be
quickly accessed. The prosecutor then asked the sergeant if he had encountered an
21
individual in the field and removed that object from the person’s right front pants pocket,
would he consider the item to be a dirk; the sergeant said he would. The prosecutor
asked no questions of the sergeant about the legal definition of a dirk on direct
examination.
On cross-examination, defense counsel asked whether the point on the object at
issue here is as sharp as an ice pick and the sergeant replied, “No . . . it’s close, but no.”
Counsel asked, “what an item is used for also depends upon the circumstances where you
find it, correct?” The sergeant agreed, explaining, “a lot of arrests are on the context of
where do you find it; what the explanation is; what an officer may know about somebody
carrying something like this.” The sergeant disagreed with counsel’s assertion that a
Phillips tip screwdriver could be a dirk even if the tip were not sharpened saying, “if the
screwdriver . . . has not been modified in any way, . . . it would seem safer to assume that
it’s for tightening screws.”
On redirect, the sergeant explained that the “manipulation of a common item” can
bring it closer to being a dirk, and also “the context of how it’s carried, where it’s carried,
who the individual is, what an investigating officer may know about somebody.”
The jury was later instructed with CALCRIM No. 2501: “The defendant is
charged . . . with unlawfully carrying a concealed dirk or dagger . . . . To prove that the
defendant is guilty of this crime, the People must prove that: One, the defendant carried
on his person a dirk or dagger; two, the defendant knew that he was carrying it; three, it
was substantially concealed on the defendant’s person; and four, the defendant knew that
it could readily be used as a stabbing weapon.”
The instruction continued: “A dirk or dagger is a knife or other instrument, with
or without a hand guard, it is capable of ready use as a stabbing weapon, it may inflict
great bodily injury or death. [¶] When deciding whether the defendant knew the object
could be use[d] [as] a stabbing weapon, consider all the surrounding circumstances and
include the time and place of possession. [¶] Consider, also, the destination of the
22
defendant, the alteration of the object from its standard form, and other facts, if there are
any.”
B. Analysis
On appeal, defendant contends the trial court’s in limine ruling was error because
by allowing the officer to opine on the object’s characterization, the officer would
necessarily have to describe what a dirk is under California law. He maintains that
allowing a witness to testify to a legal definition invades the court’s role to instruct the
jury. He adds that the error was exacerbated because both officers misstated the law, and
the jury instructions did not cure the error.
At the outset, we note that this contention is forfeited for failure to make a specific
objection in the trial court. Defense counsel raised no objection to any of the testimony
now challenged on appeal. Our high court has consistently held that a “ ‘ “defendant’s
failure to make a timely and specific objection” on the ground asserted on appeal makes
that ground not cognizable. ’ ” (People v. Partida (2005) 37 Cal.4th 428, 434 (Partida);
See also Evid. Code, § 353, subd. (a) [case shall not be reversed by reason of erroneous
admission of evidence unless the objection or motion to exclude “ma[d]e clear the
specific ground of the objection or motion”]; People v. Ward (2005) 36 Cal.4th 186, 211
[failing to object to expert testimony deprives opposing counsel of a chance to respond,
and the trial court a chance to consider the issue, and therefore forfeits the claim on
appeal].) We review for abuse of discretion, and “a party cannot argue the court erred in
failing to conduct an analysis it was not asked to conduct.” (Partida, at p. 435.)
Defendant, however, maintains the challenge is preserved because the trial court
made its in limine ruling binding at trial and overruled his objection to the arresting
officer testifying as an expert on the classification of the item as a dirk — and therefore
further objection would have been futile. Defendant is mistaken. First, it was defense
counsel who solicited testimony concerning the legal definition of a dirk, not the
prosecution, and counsel did not object to the answers he received to those questions.
23
Second, because the defense only moved in limine to preclude the deputy who found the
dirk on defendant’s person from testifying that the object is a dirk “as a matter of law,”
the court’s ruling was narrowly focused on whether the deputy could testify to the
object’s characterization. The ruling did not extend to testimony regarding a dirk’s legal
definition, because defendant did not object to such testimony. And trial counsel had no
reason to believe a specific objection to such testimony would be futile. It was
incumbent upon counsel to register an objection on the specific grounds he now advances
on appeal. The failure to object to the testimony of both officers concerning the legal
definition therefore forfeits the challenge on appeal. (Partida, supra, 37 Cal.4th at p. 435
[the objection must fairly inform the trial court, and the party offering the evidence, of
the specific reasons for exclusion, so the offering party can respond appropriately and the
court can make an informed ruling; should the objection be overruled, the objecting party
may challenge the ruling on appeal, but it may not argue exclusion was appropriate for a
reason not stated at trial].)
Moreover, the deputy who found the dirk was not tendered as an expert witness or
otherwise deemed qualified by the trial court. Consequently, because the trial court ruled
that a non-expert could not testify to the object’s characterization, counsel had grounds to
object to the deputy’s testimony that the object met the definition of a dirk until he was
qualified as an expert. Defendant’s failure to object on the ground that the deputy was
not qualified as an expert gives rise to an additional reason the contention is forfeited as
to the deputy’s testimony.
In any event, the failure to object was harmless. The testimony to a dirk’s legal
definition, while not precisely correct, generally coincided with the factors the jury was
instructed to consider. The sergeant told the jury that in determining whether an object is
used for a weapon may turn on whether it is modified, where it is found, what
explanation is given for it, and what the officer knows about the person carrying it.
While those factors do not pertain to whether an object is a dirk, they are relevant to
24
whether a defendant knew the object could be used as a stabbing weapon. Indeed, as we
have noted, the jury was instructed that in deciding whether defendant “knew the object
could be use[d] [as] a stabbing weapon” to “consider all the surrounding circumstances
and include the time and place of possession. [¶] Consider, also, the destination of the
defendant, the alteration of the object from its standard form, and other facts, if there are
any.”
Further, we perceive no inherent error in an expert providing a legal definition,
where that definition is necessary to the expert’s properly propounded opinion. Indeed,
under Evidence Code section 801, expert opinion testimony may be “[b]ased on matter
. . . of a type that reasonably may be relied upon by an expert in forming an opinion upon
the subject to which [the expert] testimony relates . . . .” (Id., subd. (b).) The statutory
definition is unquestionably the starting point for an opinion about whether an item’s
characteristics falls within the statutory definition.
III. Expert Testimony that the Crime was Committed to Benefit a Gang
As to the assault with a deadly weapon case, defendant first contends reversal is
required because a gang expert improperly opined that a crime had been committed, and
defendant committed that crime to benefit a gang. We disagree.
A. Additional Background
The prosecution called a detective as an expert on gangs and gang culture. The
detective had responded to the car crash and took the victim’s statement. At trial, the
detective was also designated by the prosecution as the investigating officer.
The defense had moved in limine to preclude the detective from testifying that
defendant is a gang member as a matter of law. The trial court ruled the detective could
not testify that defendant is a gang member “as a matter of law,” but could give an
opinion as to whether defendant is an active member of a criminal street gang.
The detective thereafter testified about the Eastside Trece gang, its background,
symbols, and predicate offenses. She explained that respect (particularly fear and
25
intimidation) is a primary aspect of criminal street gangs. Disrespect is frequently met
with violence.
At one point, the prosecutor asked the detective: “Based on your training and
experience, based on your investigation of this case as well as prior cases, based on your
information that you received from other detectives . . . ., based on your review of other
cases from this county, the pattern of predicate offenses that we’ve spoken about, do you
have an expert opinion as to whether the felony conduct in this case was a gang-related
activity?”
The detective answered: “My opinion is that it was done in retaliation of the
disrespect that the individual, [defendant] received during a contact [with the victim]
months prior to this actual crime that occurred.” The detective also referenced the
victim’s fight with another EST member.
The prosecutor then asked: “Do you have an expert opinion as to whether these
felonies were committed with the specific intent to the benefit of the EST criminal street
gang?” (Italics added.) The detective answered, “Sure. Since this crime was done in
broad daylight, and [defendant] yelling EST as well as pointing to it, that was obviously
visible at that time.” The detective added, “when individuals, communities, see crimes
that occur that these EST gang members are committing, they’re not likely to contact law
enforcement in fear of retaliation.”
The prosecutor later asked about the need to retaliate for disrespect shown to the
gang: “And in this particular case, is it your expert opinion that was one of the reasons
behind this offense?” The detective answered, “I believe so.”
Defense counsel did not object.
B. Analysis
On appeal, defendant challenges the detective’s opinion testimony that defendant
committed the crime with intent to benefit a street gang. He argues it is improper for an
expert to testify to how she would decide the issue of defendant’s guilt. He also
26
challenges the prosecutor’s failure to present the question as a hypothetical as well as the
prosecutor’s reference to defendant’s “specific intent.”
Again, the failure to object below forfeits the challenge on appeal. (See Evid.
Code, § 353; People v. Stevens (2015) 62 Cal.4th 325, 333 [“the failure to object to the
admission of expert testimony or hearsay at trial forfeits an appellate claim that such
evidence was improperly admitted”].) Defendant, nevertheless, argues his in limine
motion sufficed to preserve the issue because an objection would have been futile in light
of the court’s ruling. But that motion — to preclude the detective from testifying that
defendant was a gang member “as a matter of law” — was far afield of the issue raised
on appeal. The challenge is thus forfeited. (Partida, supra, 37 Cal.4th at pp. 434-435.)
Anticipating that conclusion, defendant argues his trial counsel rendered
ineffective assistance in failing to object. To prevail on this claim, defendant must show
(1) his trial counsel’s performance “fell below an objective standard of reasonableness
. . . under prevailing professional norms,” and (2) he was prejudiced by the deficient
performance. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688, 692.) “[I]f
the record contains no explanation for the challenged behavior, an appellate court will
reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation . . . .’”10
(People v. Cudjo (1993) 6 Cal.4th 585, 623.)
10 The reason why Strickland’s bar is high is because “[a]n ineffective-assistance claim
can function as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with scrupulous care,
lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the
right to counsel is meant to serve. [Citation.] . . . It is ‘all too tempting’ to ‘second-
guess counsel’s assistance after conviction or adverse sentence.’ [Citations.] The
question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom. [Citation.]” (Harrington v. Richter (2011) 562 U.S. 86 [131 S.Ct.
788].)
27
Here, a satisfactory explanation exists for not objecting to the prosecutor’s failure
to present the question as a hypothetical. The detective had been designated as the
investigating officer and thus was present throughout trial. (See People v.
Gonzalez (2006) 38 Cal.4th 932, 951.) Having heard the evidence (along with the jury)
from which she would base her opinion, there was little practical need to restate the
evidence as a hypothetical. Indeed, had defense counsel objected, it might well have
resulted in the rehashing of damaging evidence — albeit presented as a hypothetical.
Thus, counsel could have made the tactical decision not to object.
So too, counsel may have opted not to object to the phrasing, “whether these
felonies were committed” because an alternative phrasing, such as “the two alleged
assaults with a deadly weapon” or “the alleged collision” would not have been materially
different. Indeed, because the focus of the prosecutor’s question was the nexus between
defendant’s actions and the gang benefit, the jury was unlikely to interpret it as asking for
an opinion on defendant’s guilt. Accordingly, we cannot conclude that no satisfactory
explanation exists for the failure to object. (See People v. Torres (1995) 33 Cal.App.4th
37, 48 [“Generally, the failure to make objections is a matter of trial tactics which
appellate courts will not second-guess”].)
And in any event, defendant has failed to show that prejudice resulted. To show
prejudice, “[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
(Strickland, supra, 466 U.S. at p. 694 [104 S.Ct. at p. 2068]; People v. Ledesma (1987)
43 Cal.3d 171, 217-218.) “The likelihood of a different result must be substantial, not
just conceivable.” (Richter, supra, 562 U.S. at p. 112 [131 S.Ct. at p. 792].) Defendant
argues a more favorable outcome was probable because the detective’s testimony cast an
aura of credibility on the victim’s story. He maintains the victim’s testimony was
problematic and unsupported, the police never found the black Honda, no surveillance
footage was found, and police failed to canvas the area for witnesses. Further, the victim
28
admitted some of his testimony had been “guarded.” Defendant adds that in closing
argument, the prosecutor relied on the detective’s testimony: “ ‘You also heard [the
detective] tell you on the stand, ‘This was most definitely for the benefit of a gang.’ ’ ”
We disagree with defendant.
Again, it was not probable that the jury would read more into the expert testimony
than an opinion that the criminal conduct benefited a gang. (See People v. Vang (2011)
52 Cal.4th 1038, 1048 [an expert may properly opine on the factfinder’s ultimate issue,
including whether certain criminal conduct benefited a gang].) Moreover, the evidence
of the underlying offense, through the victim’s testimony, needed no bolstering. Though
the victim conceded he had been a “bit guarded” in his testimony regarding his own gang
associations, he was consistent regarding the underlying offense. Immediately after the
collision, he identified defendant as the driver both to 911 and to responding officers. He
also reported a prior altercation with defendant to investigating officers and said the
collision might have been in retaliation. And his trial testimony was consistent with that
contemporaneous reporting. In short, overwhelming evidence beyond the expert opinion
supported the conviction.11
IV. Expert Testimony Regarding the Predicate Offenses
Defendant contends the detective’s expert opinion testimony in the assault with a
deadly weapon case failed to prove the predicate offenses were committed by Eastside
11 We note that the prosecutor’s mention of defendant’s “specific intent,” when asking
“whether these felonies were committed with the specific intent to the benefit of the EST
criminal street gang?” was objectionable. (See In re Frank S. (2006) 141 Cal.App.4th
1192, 1199 [minor’s intent was an issue reserved to the trier of fact]; People v. Killebrew
(2002) 103 Cal.App.4th 644 [expert testimony as to the defendant knowledge and intent
were issues properly reserved to the trier of fact], disapproved of on other grounds in
People v. Vang, supra, 52 Cal.4th 1038, 1047, fn. 3).) Nevertheless, it was harmless
because the testimony that defendant shouted EST and pointed to his tattoo amply
supported a finding of specific intent to benefit a gang.
29
Trece members because testimony concerning those offenses relayed case-specific facts
in violation of Sanchez, supra, 63 Cal.4th 665. We disagree.
A. Additional Background
The gang expert testified that she is familiar with Eastside Trece, noting that it is
one of the predominant Sureño gangs in Yolo County. The gang’s primary activities
include the commission of criminal offenses, including assaults, burglaries, robberies,
and grand theft. The expert opined that the charged offense was committed to benefit
Eastside Trece. She also testified about five predicate offenses establishing Eastside
Trece as a criminal street gang. She had become familiar with these offenses by
reviewing prior reports and speaking with detectives on the gang task force. She noted
that in each case, the offender was an Eastside Trece member. None of the predicate
offenses involved defendant.
The prosecution also submitted certified copies of documents reflecting the
convictions the expert testified about. The documents reflect the convictions and section
186.22, subdivision (b) findings but make no mention of Eastside Trece.12
B. Analysis
To establish that an organization is a criminal street gang, the prosecution must
prove, among other things, that the group has engaged in a pattern of criminal conduct,
which requires a showing that the group has engaged in the requisite number of
enumerated predicate offenses. (§ 186.22, subd. (e).)
12 The prosecutor’s charging documents were properly included in these documents, but
while those documents included section 186.22, subdivision (b) allegations or a section
186.22, subdivision (a) charge, none identified a specific gang; nor did the executed plea
forms also included as part of the record of conviction identify a specific gang. The
contention defendant raises here could have been avoided had those documents
referenced Eastside Trece.
30
Defendant argues that nothing in the documents establish the crimes were
committed by Eastside Trece members as none of the documents actually identify the
gang. He maintains that, under Sanchez, supra, 63 Cal.4th 665, the detective’s opinion is
insufficient to establish the requisite predicate offenses for purposes of the gang
enhancement. We disagree because the predicate offense testimony involved background
facts, not case-specific facts barred by Sanchez.
Sanchez held that “[i]f an expert testifies to case-specific out-of-court statements
to explain the bases for his [or her] 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.” (Sanchez,
supra, 63 Cal.4th at p. 684.) “Case-specific” facts are facts “relating to the particular
events and participants alleged to have been involved in the case being tried.” (Id. at
p. 676.)
Here, however, the expert’s testimony regarding Eastside Trece predicate offenses
involved neither the particular events nor participants involved in the case being tried.
Rather, it pertained to historical facts of the gang’s conduct and activities. A predicate
offense is essentially a chapter in the gang’s biography. Thus, predicate offenses are
background facts relevant to an expert’s opinion about whether a group has engaged in a
pattern of criminal gang activity and is a criminal street gang under section 186.22.
Indeed, Sanchez did “not affect the traditional latitude granted to experts to
describe background information and knowledge in the area of his expertise.” (Sanchez,
supra, 63 Cal.4th at p. 685.) As the court observed, “an expert’s background knowledge
and experience is what distinguishes him from a lay witness, and . . . testimony relating
such background information has never been subject to exclusion as hearsay, even though
offered for its truth.” (Ibid.) Thus a gang expert may relate such background information
regarding his or her knowledge and expertise, as well as premises generally accepted
within her field, even though such testimony is offered for its truth. (Ibid.) And, more to
31
the point, a gang expert may testify concerning general background information relating
to gang culture and the “history and general operations” of a specific gang. (Id. at p. 698,
italics added.) Applying this rule in Sanchez, our high court noted that the gang expert’s
testimony about “general gang behavior or descriptions of the . . . gang’s conduct and its
territory” was “background testimony” based on well-recognized sources in the expert’s
area of expertise. (Id. at p. 698, italics added.)
As recognized in People v. Meraz (2018) 30 Cal.App.5th 768 (Meraz II), review
granted March 27, 2019, S253629, Sanchez’s reference to general background testimony
“plainly includes the general background testimony [the gang expert gives] about [the
gang’s] operations, primary activities, and pattern of criminal activities, which was
unrelated to defendants or the current” crimes. (Meraz II, at p. 781, italics added; accord,
People v. Blessett (2018) 22 Cal.App.5th 903, 943-945, review granted Aug. 8, 2018,
S249250; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411 (Vega-Robles).) Thus, a
gang expert may “testify to non-case-specific general background information about [the
gang], its rivalry with [another gang], its primary activities, and its pattern of criminal
activity, even if it was based on hearsay sources.” (Meraz II, at pp. 781-782, italics
added.)
In defendant’s case, the predicate offenses — none of which involved defendant
— are five chapters in Eastside Trece’s biography. The facts underlying these predicate
offenses are appropriately characterized as background information relevant and
admissible to Eastside Trece’s history and “conduct.” (Sanchez, supra, 63 Cal.4th at
p. 698.)13 We therefore conclude the expert’s testimony concerning the predicate
offenses was not violative of Sanchez.
13 We are aware that a split of authority exists as to whether testimony about predicate
offenses is case-specific information. In People v. Lara (2017) 9 Cal.App.5th 296, 337,
the court did not consider the difference between background facts and case-specific
facts. In People v. Ochoa (2017) 7 Cal.App.5th 575, 588-589, the court treated all
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V. SB 1393
In a supplemental brief, defendant contends remand is appropriate to allow the
trial court to consider exercising its authority under SB 1393. The People agree, and so
do we.
SB 1393 authorizes a trial court to strike a section 667, subdivision (a) prior
serious felony enhancement in the interest of justice under section 1385, effective
January 1, 2019. (Stats. 2018, ch. 1013.) SB 1393 applies retroactively to cases not yet
predicate offense information as case-specific facts. There, the expert testified that
people involved in the predicate offenses had admitted their gang membership. The
Ochoa court concluded that these admissions were case-specific facts. The totality of the
court’s analysis on this is as follows: “It seems clear the hearsay statements at issue in
the present case—out-of-court statements by individuals admitting being members of the
[gang]—are case-specific hearsay rather than general background information about the
[gang]. Sanchez gave the following as one in a series of examples of the distinction:
‘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.’ [Citation.] By analogy, that someone admitted being a gang
member is also a case-specific fact.” (Ochoa, at pp. 588-589.)
But in the Sanchez court’s example, it is not clear whether the court was referencing a
hypothetical “associate” who was a participant in the events “involved in the case being
tried” (Sanchez, supra, 63 Cal.4th at p. 676) or a fellow gang member not involved in the
case, but who had otherwise committed an unrelated predicate offense. We think the
Sanchez court meant the former, as an example of a case-specific fact, because: (1) the
issue before the Sanchez court did not relate to facts underlying predicate offenses, but
rather related to facts establishing the defendant’s gang membership, which included
gang expert testimony concerning the gang affiliations of people defendant had been with
on previous occasions, and (2) the Sanchez court’s explanation of background facts
includes facts related to the conduct, history and operations of the gang. Consequently,
we disagree with the Ochoa court’s conclusion that the Sanchez example applies to
predicate offenses. Accordingly, to the extent that Ochoa can be read as holding that all
predicate offense testimony is case-specific hearsay, we respectfully disagree.
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final. (People v. Jones (2019) 32 Cal.App.5th 267, 273; People v. Garcia (2018) 28
Cal.App.5th 961, 973.)
We agree with the parties that remand is appropriate so the trial court may
consider exercising its authority regarding defendant’s section 667, subdivision (a)
enhancement.
VI. Fines and Fees
In a supplemental brief, defendant contends the imposition of fines and fees
violated his right to due process and freedom from excessive fines.
A. Additional Background
In the dirk case, the trial court imposed a $300 restitution fine (§ 1202.4, subd.
(b)(1)), a stayed $300 parole revocation fine (§ 1202.45), an $80 court operations
assessment (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code, § 70373,
subd. (a)(1)). In the assault with a deadly weapon case, the court imposed a $300
restitution fine, a stayed $300 parole revocation fine, a $30 collection fee (§ 1202.4, subd.
(l)), a $40 court operations assessment and a $30 conviction assessment.
Defendant raised no objection to the fines and fees imposed.14
B. Analysis
Defendant cites Dueñas, supra, 30 Cal.App.5th at page 1164, which held that due
process requires the trial court to stay execution of restitution fines, as well as court
operation and conviction assessments, until the court has held a hearing and determines
the defendant has the present ability to pay. He argues that one who is in prison lacks
meaningful earning capacity, and he asserts no evidence suggests he has the ability to
14 Defendant subsequently moved ex parte to covert his fines to a concurrent sentence,
asserting his status as an indigent prisoner unable to pay outstand fines. The trial court
denied the request.
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pay. He also argues his counsel’s failure to object should not preclude a review on the
merits as the Dueñas decision was unforeseen.
The People respond that defendant has forfeited the contention by failing to raise it
below. The People, nevertheless, allow that because the matter must be remanded in
light of SB 1393, defendant will, on remand, have an opportunity to request a hearing on
his ability to pay.
We decline to find forfeiture because the trial court imposed only the minimum
restitution fines, along with mandatory operation and conviction assessments, and
therefore at the time of sentencing, defendant had no cause to object. (See People v.
Jones (2019) 36 Cal.App.5th 1028, 1034 (Jones) [“[the defendant] could not have been
expected to anticipate Dueñas, even though Dueñas applied principles first articulated in
other contexts long ago”]; cf. People v. Frandsen, supra, 33 Cal.App.5th at p. 1154 [Pre-
Dueñas, the defendant had an obligation to object on ability to pay grounds where the
trial court imposed the maximum restitution fine].)
However, we are cognizant of cases holding harmless the absence of an ability to
pay hearing where the prison sentence imposed afforded the defendant ample opportunity
to pay the fines and fees. (See Jones, supra, 36 Cal.App.5th at p. 1035 [“Given that the
restitution fine is $300 and the assessments are $70, Jones will have sufficient time to
earn these amounts during his sentence, even assuming Jones earns nothing more than the
minimum”]; People v. Johnson (2019) 35 Cal.App.5th 134 [“The idea that he cannot
afford to pay $370 while serving an eight-year prison sentence was unsustainable”].)
And here, defendant, having received only the minimum fines, will presumably have
ample opportunity to pay them through prison wages during his 21-year four-month
sentence.
Nevertheless, defendant may, as the People suggest, raise his ability to pay before
the trial court when it considers exercising its discretion under SB 1393.
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VII. Senate Bill No. 136
Finally, on rehearing, defendant asks that we strike his one-year prior prison term
enhancement in light of SB 136. Effective January 1, 2020, SB 136 eliminates the
section 667.5 one-year prior prison term enhancement for all prior convictions, except
sexually violent offenses. (§ 667.5, subd. (b).) The People agree defendant is entitled to
its ameliorative benefit.
We agree with the parties that because defendant’s sentence is not yet final, and
because his prior offense (possessing a prohibited weapon) was not a sexually violent
offense, he is entitled to the ameliorative benefit of the amendment. (See People v.
Vieira (2005) 35 Cal.4th 264, 306 [“for the purpose of determining retroactive
application of an amendment to a criminal statute, a judgment is not final until the time
for petitioning for a writ of certiorari in the United States Supreme Court has passed”];
In re Estrada (1965) 63 Cal.2d 740, 748 [for a non-final conviction, “where the
amendatory statute mitigates punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter punishment is imposed”].)
We will therefore strike the one-year prior prison term.
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DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement.
And the matter is remanded so the trial court may consider exercising its discretion under
SB 1393, at which time defendant can object to fines and fees on grounds of ability to
pay. In all other respects, we affirm.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
BLEASE, J.
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