People v. Sandoval CA2/5

Filed 3/7/22 P. v. Sandoval CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304885
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA110719)
EDUARDO SANDOVAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jesus I. Rodriguez, Judge. Affirmed in part,
reversed in part, and remanded.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Colleen M. Tiedemann, Deputy Attorney
General, for Plaintiff and Respondent.
A jury convicted defendant Eduardo Sandoval (defendant)
of murdering a fellow member of the Rancho San Pedro criminal
street gang, albeit one who belonged to a different clique or
subset of the gang. The jury found true an enhancement alleging
the killing was gang related. (Pen. Code,1 § 186.22, subd. (b)(1).)
We consider whether the jury’s gang enhancement finding is
supported by substantial evidence. We are also asked to consider
several other contentions that would affect the validity of
defendant’s convictions (not just his sentence): whether
defendant’s right to confront witnesses was violated when the
prosecutor was allowed to pose leading questions to a recalcitrant
witness based on the witness’s prior out-of-court statements to
police, whether the trial court erred in placing limits on the
testimony of the defense’s video expert and permitting cross-
examination of the expert on work he did in another case, and
whether the court improperly allowed victim impact evidence to
be presented during trial.
I. BACKGROUND
A. The Murder
At approximately 2:20 a.m. on August 17, 2016, Jorge
Pereira (Pereira) and Michael Sambrano (Sambrano) were
walking to a gas station in San Pedro to purchase cigarettes.
They were friends and had spent the day exercising and partying.
Both men were members of the Rancho San Pedro (RSP) criminal
street gang and belonged to RSP’s Santa Cruz clique.
1
Undesignated statutory references that follow are to the
Penal Code.
2
As Pereira and Sambrano walked near a church on Mesa
Street, a dark-colored SUV pulled alongside them and stopped.
Someone from inside the SUV asked where Pereira and
Sambrano were from and Sambrano said, “What?” Sambrano
then moved toward the SUV, and defendant got out of the
vehicle.
Pereira immediately recognized defendant, having seen
him around the neighborhood for years, and knew him as an RSP
member who went by the name “Rhino.” Although defendant
belonged to a different clique of the gang, the “Locos,” Pereira
initially thought there would not be any trouble because both
defendant and Sambrano were older RSP members. But when
defendant asked Sambrano what clique he was from and
Sambrano responded “Santa Cruz,” the two men quickly “got into
each other’s face” and began “chest bumping.” Seconds later,
defendant pulled a gun and began shooting. Pereira fled when
the shooting started and thought Sambrano had escaped
unharmed.
Pereira was wrong. In response to a 911 call placed by a
third party, law enforcement found Sambrano’s dead body in a
parking lot approximately a block and half from the scene of the
shooting. According to the medical examiner, Sambrano died
from a single gunshot that perforated his lungs and other organs
before exiting through his chest.
About an hour after the shooting, officers from the Los
Angeles Police Department (LAPD) stopped a vehicle with
defendant and another man, Joel Diaz (Diaz) (also a member of
RSP’s Locos clique and an owner of a Toyota 4-Runner SUV) in
the back seat. Pereira subsequently identified defendant as the
shooter in a photographic line up (and later during trial).
3
Defendant was charged in an information with one count of
murder (§ 187, subd. (a)) and two counts of possession of a
firearm by a felon (§ 29800, subd. (a)(1)). In connection with the
murder, the information alleged defendant killed Sambrano for
the benefit of, in association with, or at the direction of a criminal
street gang and with the specific intent to promote criminal
conduct by gang members. (§ 186.22, subd. (b)(1).) The
information also alleged a gang enhancement in connection with
the felon in possession of a firearm count pertaining to the
possession that occurred on the day of the murder. Firearm
enhancements (§ 12022.53, subds. (b)-(e)) were also alleged.
B. Trial
1. Diaz’s refusal to testify
At a hearing outside the presence of the jury, the trial court
found Diaz to be in contempt of court for willfully refusing to
answer questions despite being granted immunity.
When the prosecution called Diaz to testify during trial, the
prosecutor asked Diaz 25 questions. Some of the questions were
personal in nature, such as whether he was a member of RSP and
whether he recognized defendant. Other questions concerned his
movements in the hours prior to the shooting, including whether
he told detectives he and defendant left a bar approximately half
an hour before Sambrano was shot. Diaz was also asked about
events after the shooting, including the traffic stop where he was
found in defendant’s company. Certain questions posed by the
prosecution were also directly related to the Sambrano’s death.
For example, Diaz was asked if he told detectives that defendant
“did what he did on his own rather than . . . planning this out,
going hunting for a victim.” Similarly, the prosecutor asked Diaz
4
if he told detectives that if he knew what defendant “was going to
do that night, step out and start blasting,” he would not have
used his SUV.
In response to all these questions, Diaz refused to answer.
During the remainder of the prosecution’s case-in-chief, Diaz was
recalled to the witness stand more than once and on each
occasion he reiterated his refusal to testify despite the court’s
order that he do so.
After Diaz first refused to answer questions, defendant
moved for a mistrial and argued he had been prevented from
cross-examining Diaz because Diaz did not answer any questions.
After denying the motion, the trial court instructed the jury as
follows: “It is imperative that I talk to you about [the questions
put to Diaz]. [The attorneys’] questions are not evidence. The
attorneys’ questions are significant only if they help you to
understand the witness’s answers. Do not—do not assume that
something is true just because one of the attorneys asked a
question that suggested it was true.” By a show of hands, the
court asked if the jurors needed any further instruction on the
matter; none of the jurors indicated such guidance was necessary.
Following additional discussion with counsel, the court
further instructed the jurors to “strike the substance of all
questions that [the prosecutor] asked of Mr. Diaz,
period. [¶] . . . We are asking you to delete from your minds the
substance of the questions that [the prosecutor] asked.” Again,
the court asked for a show of hands if the instruction was
unclear; none of the jurors raised their hands. Later, after the
close of evidence, the court instructed the jury again that
“nothing the attorneys say is evidence” and that they should “not
5
assume that something is true just because one of the attorneys
asked a question that suggests it is true.”
Prior to closing arguments, defense counsel preemptively
objected to the prosecution arguing any inferences that could be
drawn from Diaz’s refusal to testify. The court overruled the
objection. During its closing argument, the prosecution argued
Diaz possessed relevant information about Sambrano’s murder
but refused to disclose that information “to protect the
defendant.” The defense again moved for a mistrial and the trial
court denied the motion.
2. Pereira’s testimony about his police interview
and his reaction to a photograph of Sambrano’s
body
On direct examination, Pereira admitted he initially denied
any knowledge of the shooting when he was interviewed by
police.2 He explained he subsequently decided to be truthful after
the police showed him a photograph of Sambrano’s body “laying
on the ground dead, bled out.”
Over a defense objection that the photograph “assumes
facts not in evidence,” the prosecutor asked Pereira, “When you
saw the picture, how did you feel?” 3 Pereira responded the
photograph made him “sad” because “nobody was going to do
anything about it. It was just, like, they left it like that, dead.
2
Pereira’s testimony regarding his police interview was the
subject of extensive cross-examination.
3
In ruling on the objection, the trial court did not indicate it
understood the objection to mean anything other than what
defense counsel said; the court simply stated, “Overruled.”
6
His family was there. His sisters were crying. And I was
thinking—you know [¶] . . . [¶] That it’s fucked up.” Pereira
then explained that thinking about the situation made him want
“to do something.”
3. Gang expert testimony
The prosecution’s final witness was its gang expert, LAPD
Officer Robert Castruita (Castruita). At the time of the murder,
Castruita was assigned to a gang suppression detail which
included the San Pedro area.
Castruita testified that during his tenure with the gang
unit he had “lots of contact” with RSP members, averaging 20
custodial and/or consensual contacts per week. As a result of his
extensive prior contacts with RSP members, Castruita had
testified previously in other matters as an expert on RSP.
According to Castruita, RSP, which claims the City of San
Pedro as its territory, had approximately 500 members, of which
150 were active. Castruita testified RSP was composed of several
male and female cliques or subsets, with two of the male cliques
being Santa Cruz and Locos. According to Castruita, each RSP
clique claims a separate subdivision of the overall territory
claimed by RSP. He did not identify which parts of the city were
claimed by which cliques or identify which clique claimed the
area around the site of the murder. Castruita did testify that
although RSP cliques lay claim to separate areas of the city, the
members of each clique are “still members of the overall gang,
Rancho San Pedro.” He did not elaborate.4 Nor did he state
4
Castruita did not testify about the history or organizational
structure of RSP or any of its cliques, nor did he specifically
7
whether every member of RSP belonged to a different clique or
whether some members claimed allegiance only to the umbrella
organization.
Castruita testified that RSP’s primary activities were
murder, attempted murder, shootings, firearm trafficking,
narcotic trafficking, robberies, vehicle thefts, and vandalism. He
did not offer an opinion on whether some or all of those primary
activities were shared by all or some of RSP’s constituent cliques.
The prosecution introduced two certified court records
during Castruita’s testimony to establish the predicate pattern of
gang crimes that must be proven for the criminal street gang
enhancement alleged against defendant to be found true. The
first record revealed Arturo Manzanero (Manzanero) was
convicted of murder and possession of a firearm for conduct
occurring in February 2011. The second court certified record
revealed Edward Benavidez (Benavides) was convicted of murder,
attempted murder, and possession of a firearm for conduct
occurring in June 2009. Although Castruita testified he knew
both Manzanero and Benavides through prior contacts and
believed each to be RSP members, he did not testify he had
personal knowledge of the crimes for which Manzanero and
Benavides were convicted.5 In addition, Castruita did not
identify or explain any of the information upon which he relied in
reaching his opinions about the activities and operation of RSP
and its various cliques.
5
Defendant did not object to Castruita’s apparent lack of
personal knowledge of the predicate crimes. After this case was
fully briefed, our Supreme Court held in People v. Valencia (2021)
11 Cal.5th 818 (Valencia) that predicate offenses are case-specific
facts that cannot be established solely by the testimony of an
8
identify the RSP cliques, if any, to which Manzanero or
Benavides belonged.
Turning to defendant himself, Castruita testified defendant
admitted to him that he was a member of RSP. Castruita also
opined defendant was a member of RSP’s Locos clique.
The prosecutor presented a hypothetical scenario to
Castruita that was intended to track the facts of the case, asking
him to assume, among other things, that two Santa Cruz clique
members were walking down Mesa Street when an SUV stops
and the front passenger, a RSP Locos clique member, asks the
two men for their gang affiliation; when one of the Santa Cruz
members answers, “Rancho,” the front passenger inquires further
as to which clique they belong, to which the same Santa Cruz
member replies, “Santa Cruz”; the front passenger responds by
exiting the vehicle and drawing a pistol, causing the two Santa
Cruz members to flee; the front passenger gives chase and opens
fire, striking the Santa Cruz member who replied to the queries
in the back with one round; the wounded man continues running
until he collapses and dies approximately a block and a half from
the scene of the shooting; the detectives investigating the murder
interview the owner of the SUV who is later called as a witness at
trial and, despite being instructed by the judge to answer the
questions put to him by the prosecutor, refuses to do so.
expert who has no personal knowledge of facts necessary to
satisfy the prosecution’s burden. (Id. at 826, 838-839.) As will
become clear, we need not consider Valencia’s impact on this
appeal, nor do we need to consider the impact of Assembly Bill
No. 333 (2021–2022 Reg. Sess.), which the parties also have not
briefed (see generally People v. Lopez (2021) 73 Cal.App.5th 327,
344-346).
9
In response to the hypothetical, Castruita opined the
shooting was for the benefit of and in association with both RSP
and the Locos clique. According to Castruita, the shooter in the
hypothetical “was trying to represent the clique that he was from
when he reacted to the response that was given by the
victim. [¶] He wanted to show that he was—he was willing to
demonstrate how violent his clique is; therefore, shooting the
victim. He knows that that type of conduct will get spread to the
community and not only through the community [but also]
through the gang and other gangs; therefore [the shooting]
promote[d] . . . and elevated his status within the gang.”
Castruita testified that even though he was unaware of any prior
incidents of violence between the Locos and Santa Cruz cliques,
he was aware of violence between other RSP cliques. According
to Castruita, intra-gang violence, including the murder of
another gang member, benefits the gang: “[B]y weeding out the
weak or weeding out different members of the gang that don’t fit
in or don’t go with the rules, it actually makes the group smaller
but yet stronger because you are eliminating people that they
don’t believe belong within that group.” Castruita testified
further that for gang members respect or fear through violence
was paramount: “So if it takes killing another member to
promote within the gang, then that’s what they do. And that’s
how the gang forms its hierarchy . . . by promoting its members.
They don’t get to just promote without doing something for the
gang. So that’s how these types of crimes occur.”
Castruita additionally testified the murder in the
hypothetical was carried out in association with a criminal street
gang because the shooter did not act alone but with another gang
member, who when called to testify refused to do so. Castruita
10
explained one of the guiding rules for Hispanic street gangs,
including RSP, is “you shall not cooperate with the police. You
shall not snitch.” In view of this “code of silence” and the
accompanying fear of retribution, Castruita was not surprised
that a gang member would refuse to testify at another member’s
trial for murder.
During closing argument, the prosecution argued the
criminal street gang allegation should be found true because at
the time of the shooting defendant was with Diaz, “a person
[defendant] trusts because he is a fellow [RSP] gang member
from the same clique” and the victim was from “a different clique
than the defendant’s clique.”
4. Video evidence expert testimony
During its investigation into the murder, police obtained
surveillance video footage from two cameras positioned on a
church near the site of the shooting; portions of the footage were
played for the jury. During the direct testimony of the detective
who recovered the video, defense counsel unsuccessfully objected
to some questions asking the detective to interpret various
images on the video. Counsel, for instance, objected to the
detective offering his opinion on the make and model of an SUV
seen in the surveillance footage minutes before the shooting and
then again at the time of the shooting. The objection was
overruled and the detective testified the vehicle was a Toyota 4-
Runner. During closing argument, the prosecution argued the
vehicle seen in the surveillance video was Diaz’s Toyota 4-
Runner.
The sole witness called by the defense was Michael Jones
(Jones), a court-appointed video expert. Prior to Jones testifying,
11
the court held an Evidence Code section 402 hearing to consider
certain enhancements Jones made to the surveillance footage
obtained from the church’s cameras.6
Although the court ultimately admitted the enhanced
videos prepared by Jones and allowed him to testify about the
enhancements,7 it repeatedly cautioned the defense that Jones
would not be allowed to offer testimony interpreting the videos
because Jones admitted he was not a video identification expert.
When defense counsel complained this limitation on Jones’s
proposed testimony was contrary to the latitude given to the
detective who testified about the videos, the court reaffirmed its
ruling, stating Jones “doesn’t have the expertise in characterizing
any person. [¶] . . . [¶] So that’s off the table, so to speak,
meaning he is not going to be testifying or characterizing any
movements.”
When Jones testified, the trial court sustained the
prosecutor’s objections to direct examination questions asking if
the video showed movement consistent with a person using a
cellphone, if there was a person in a particular video segment,
and if there was light reflecting on a car window. During cross-
6
Among the enhancements were magnification, insertion of
vector shapes and arrows to highlight images and movements,
slowing down selected images, “looping” or replaying certain
images to avoid repeated re-windings of the video, and freezing
certain images.
7
The trial court sustained the prosecution’s objection to one
“experimental” video prepared by Jones which displayed images
from both church cameras side-by-side because the images were
from different moments in time. On appeal, defendant does not
challenge this ruling.
12
examination, the prosecutor questioned Jones, over defense
objection, about his preparation of a video exhibit in another
criminal matter. In that unrelated proceeding, the defense
attorney withdrew the exhibit prepared by Jones after another
trial judge suggested it was misleading. With the trial court’s
permission, the prosecution quoted portions of the reporter’s
transcript in the unrelated case in which the trial judge, during
the colloquy with Jones, asked how his preparation of the video
could not be misleading.
In his closing argument, defense counsel played Jones’s
enhanced version of the church surveillance videos and used it to
argue defendant did not murder Sambrano.
5. Verdict and sentencing
The jury found defendant guilty on all counts charged and
found all alleged gang and firearm enhancements true. The trial
court sentenced defendant to an aggregate sentence of 78 years to
life in prison. In addition, the court imposed a $5,000 restitution
fine, a $5,000 parole revocation fine which was stayed pending
completion of parole, a court security fee, and a court facilities
assessment.
II. DISCUSSION
The jury’s gang enhancement true findings are
unsupported by substantial evidence. The prosecution’s theory
on the gang enhancement was premised on an organizational or
associational connection between defendant’s clique, Locos, and
the umbrella gang, RSP. The sole effort to introduce evidence
offered in support of that theory came from the prosecution’s
gang expert, but the expert put forward no testimony or other
evidence that would explain the relationship between the
13
umbrella gang and defendant’s clique and permit the requisite
connection between RSP and Locos.
Defendant’s remaining contentions lack merit.8
Defendant’s right to confront witnesses was not violated when
the trial court allowed the prosecution to question Diaz because
there was independent evidence of defendant’s guilt (Pereira’s
eyewitness testimony) and the court repeatedly instructed the
jury to disregard counsel’s questions, even going so far as
granting a defense motion to inform the jury that the questions
themselves were stricken and should not be considered. The trial
court did not abuse its discretion in permitting cross-examination
of the defense video expert. The court’s evidentiary rulings
regarding description of video footage by defendant’s expert do
not merit reversal because they were not erroneous in one respect
and, even insofar as there was any error, the error was not
prejudicial: the defense was allowed to present to the jury its
expert’s enhancements to the video surveillance from the church’s
cameras and during closing was further allowed to argue without
constraint that the videos exonerated defendant. Defendant’s
8
Given the need for resentencing, we decline to reach
defendant’s argument pursuant to People v. Dueñas (2019) 30
Cal.App.5th 1157, that the trial court erred by imposing various
fines and fees without first determining his ability to pay those
amounts. On remand, defendant—if he should choose to do so—
may argue his inability to pay fines and fees then. (People v.
Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is
stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed
circumstances’”].)
14
claim that the trial court erred by allowing Pereira to offer victim
impact testimony is forfeited because the theory of reversal now
urged was not raised in the trial court.
A. The Gang Enhancements Fail for Lack of Sufficient
Evidence
1. Standard of review
In considering a challenge to the sufficiency of the evidence
to support a criminal street gang enhancement, “[w]e apply a
deferential standard of review.” (People v. Prunty (2015) 62
Cal.4th 59, 71 (Prunty).) “[W]e review the entire record in the
light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from
the evidence. [Citation.] If the circumstances reasonably justify
the trier of fact’s findings, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.]”
(People v. Albillar (2010) 51 Cal.4th 47, 60.)
15
2. A section 186.22, subdivision (b)(1)
enhancement requires proof of an
organizational or associational connection
between the group that committed the predicate
acts and the group allegedly associated with or
benefitted
Section 186.22, subdivision (b)(1) authorizes enhanced
criminal punishment for “a person who is convicted of a felony
committed for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote,
further, or assist in criminal conduct by gang members.”
(§ 186.22, subd. (b)(1).) A “criminal street gang” is defined as “an
ongoing, organized association or group of three or more persons,
whether formal or informal, having as one of its primary
activities the commission of one or more of [certain enumerated]
criminal acts[,] . . . having a common name or common
identifying sign or symbol, and whose members collectively
engage in, or have engaged in, a pattern of criminal gang
activity.” (§ 186.22, subd. (f).) A “‘pattern of criminal gang
activity’ means the commission of . . . or conviction of, two or
more of [certain enumerated offenses]” that “were committed on
separate occasions or by two or more members.” (§ 186.22, subd.
(e)(1).)
In Prunty, our high court considered “what type of showing
the prosecution must make when its theory of why a criminal
street gang exists turns on the conduct of one or more gang
subsets.” (Prunty, supra, 62 Cal.4th at 67.) The court held that
“where the prosecution’s case positing the existence of a single
‘criminal street gang’ for purposes of section 186.22(f) turns on
the existence and conduct of one or more gang subsets, then the
16
prosecution must show some associational or organizational
connection uniting those subsets.” (Id. at 71.) “The evidence
must demonstrate that an organizational or associational
connection exists in fact, not merely that a local subset has
represented itself as an affiliate of what the prosecution asserts
is a larger organization. [Citation.] Although evidence of self-
identification with the larger organization may be relevant, the
central question remains whether the groups in fact constitute
the same ‘criminal street gang.’ In making the required showing,
moreover, the prosecution must do more than simply present
evidence that various alleged gang subsets are found within the
same broad geographic area. . . . The prosecution must introduce
evidence of the alleged subsets’ activities, showing a shared
identity that warrants treating them as a single group. . . . The
key is for the prosecution to present evidence supporting a fact
finder’s reasonable conclusion that multiple subsets are acting as
a single ‘organization, association, or group.’ (§ 186.22(f).)” (Id.
at 79-80.) The prosecution, in other words, “must show that the
group the defendant acted to benefit, the group that committed
the predicate offenses, and the group whose primary activities
are introduced, is one and the same.” (Id. at 81; see also id. at 76
[the prosecution must present evidence from which the jury can
“reasonably infer that the ‘criminal street gang’ the defendant
sought to benefit—or which directed or associated with the
defendant—included the ‘group’ that committed the primary
activities and predicate offenses”].)
Our Supreme Court reversed the section 186.22,
subdivision (b) enhancement in Prunty because the testimony
offered by the prosecution’s gang expert failed to establish an
organizational or associational connection between the umbrella
17
gang and its subsets. The evidence showed Prunty was a
member of a particular subset of a larger Sacramento-area gang.
(Prunty, supra, 62 Cal.4th at 68-69, 91.) “The prosecution’s gang
expert testified about [the umbrella gang’s] general existence and
origins, its use of shared signs, symbols, colors, and names, its
primary activities, and the predicate activities of two local
neighborhood subsets,” which were different than the subset to
which Prunty belonged. (Id. at 67.) “The expert did not,
however, offer any specific testimony contending these subsets’
activities connected them to one another or to the [umbrella
gang] in general.” (Ibid.; see also id. at 82-83.) Our Supreme
Court accordingly held the testimony offered by the prosecution’s
gang expert was “conclusory and essentially of no use to the fact
finder” because the expert did not “describe any facts tending to
show an organizational or associational connection among
the . . . subsets he described,” “articulate any reasons for
concluding that all such subsets are part of a single criminal
street gang,” or “describe the material he relied on in reaching his
conclusions—implicit or otherwise.” (Id. at 85.)
3. There was little evidence of a connection
between RSP and defendant’s clique, and what
evidence there was is impermissibly conclusory
as in Prunty
Here, just like Prunty, there was a critical disconnect
between what the prosecution was required to show and the
evidence offered by the gang expert. The prosecution sought to
show that Sambrano’s murder was in association with and
benefitted both RSP and its Locos clique. This decision dictated
the type of evidence the prosecution needed to introduce.
18
Castruita, however, did not offer any facts about RSP other
than a generalized description of the territory it claimed, its size,
one shared sign, its primary activities, and the two predicate
crimes. There was no testimony about RSP’s origins, evolution,
or current organizational structure, especially as it related to its
asserted cliques. With regard to the Locos clique, Castruita did
not provide any evidence whatsoever—nothing about the specific
territory it claimed, its size, history, shared signs, colors,
principal enemies, primary activities, organizational structure, or
its purported collaborative connection with the umbrella gang.
Castruita’s testimony was not only devoid of any organizational
facts about RSP and its Locos clique, but it was also bereft of
reasons for why the Locos clique should be considered part of
RSP. Although Castruita testified he had “lots of contact” with
RSP members, he did not offer any testimony about how much
contact, if any, he had with members of the Locos clique. Other
than his tenure on the gang suppression detail, Castruita did not
provide the jury with any other bases for his expertise regarding
RSP and its asserted cliques. Castruita’s testimony, in short, did
not provide evidence that the group defendant acted to benefit or
acted in association with was the same as the group that
committed the predicate offenses.
Because Castruita’s opinions were conclusory regarding
RSP, the Locos clique, and the purported collaborative connection
between the two, the jury’s true finding on the gang enhancement
was not supported by substantial evidence. (Shiffer v. CBS Corp.
(2015) 240 Cal.App.4th 246, 253 [“An expert’s opinion is only as
good as the facts on which it is built”]; accord, CALJIC No. 2.80;
compare People v. Garcia (2017) 9 Cal.App.5th 364, 378
[affirming imposition of gang enhancement because the gang
19
expert’s testimony was “backed by specific evidence. In
scholastically reminiscent detail, he recounted the origins of the
Black P-Stones chapter in Los Angeles, making it clear how and
why the gang developed to include both the Bittys and the
Jungles subsets. This was significant evidence of an
associational connection”], fn. omitted.)
B. The Questioning of Diaz Did Not Violate Defendant’s
Right to Confrontation
Relying on Douglas v. Alabama (1965) 380 U.S. 415(Douglas), and California cases applying Douglas (i.e., People v.
Perez (2016) 243 Cal.App.4th 863 (Perez); People v. Murillo (2014)
231 Cal.App.4th 448 (Murillo); and People v. Shipe (1975) 49
Cal.App.3d 343 (Shipe)), defendant contends the trial court
violated his federal constitutional right to confrontation by
allowing the prosecution to pose leading questions to Diaz.
Defendant’s cases are distinguished from the facts here, however,
and this case is more akin to precedent that rejects a similar
argument for reversal.
In Douglas, the defendant and another man, Loyd, were
charged with assault with intent to murder. (Douglas, supra, 380
U.S. at 416.) The state tried Loyd first and a jury convicted him.
(Ibid.) The prosecutor called Loyd as a witness at the defendant’s
trial, but he asserted a right against self-incrimination and
refused to answer questions about the incident. (Ibid.) “Under
the guise of cross-examination to refresh Loyd’s recollection, the
[prosecutor] purported to read from [a statement Loyd made
earlier to the police], pausing after every few sentences to ask
Loyd, in the presence of the jury, ‘Did you make that statement?’
Each time, Loyd asserted the privilege and refused to answer, but
20
the [prosecutor] continued this form of questioning until the
entire document had been read.” (Id. at 416-417, fn. omitted.)
The statements the prosecutor read from the document “recited
in considerable detail the circumstances leading to and
surrounding the alleged crime; of crucial importance, they named
the [defendant] as the person who fired the shotgun blast which
wounded the victim.” (Id. at 417, fn. omitted.) The prosecution
later “called three law enforcement officers who identified the
document [from which the prosecutor read] as . . . a confession
made and signed by Loyd.” (Ibid.)
The United States Supreme Court reversed the defendant’s
conviction. It held his inability to cross-examine Loyd about the
alleged confession denied him “the right of cross-examination
secured by the Confrontation Clause.” (Douglas, supra, 380 U.S.
at 419.) As the high court explained, “Loyd’s alleged statement
that the [defendant] fired the shotgun constituted the only direct
evidence that he had done so; coupled with the description of the
circumstances surrounding the shooting, this formed a crucial
link in the proof both of [defendant’s] act and of the requisite
intent to murder. Although the [prosecutor’s] reading of Loyd’s
alleged statement, and Loyd’s refusals to answer, were not
technically testimony, the [prosecutor’s] reading may well have
been the equivalent in the jury’s mind of testimony that Loyd in
fact made the statement; and Loyd’s reliance upon the privilege
created a situation in which the jury might improperly infer both
that the statement had been made and that it was true.” (Ibid.)
The facts of Douglas and the related California decisions
upon which defendant relies are different from the facts of this
case. In those cases, the pertinent questions and answers were
not stricken. (Douglas, supra, 380 U.S. at 416-417; Perez, supra,
21
243 Cal.App.4th at 884-885; Murillo, supra, 231 Cal.App.4th at
451-453; Shipe, supra, 49 Cal.App.3d at 346-349.) Here, by
contrast, the trial court struck the substance of the questions
posed to Diaz and instructed the jury not to consider the
prosecution’s questions as evidence. That is an important
distinction because “[t]he assumption that jurors are able to
follow the court’s instructions fully applies when rights
guaranteed by the Confrontation Clause are at issue.” (Tennessee
v. Street (1985) 471 U.S. 409, 415, fn. 6; accord, People v. Smithey
(1999) 20 Cal.4th 936, 962 [distinguishing Douglas and holding
the defendant was not denied his right to confrontation because
the jury was instructed to disregard all questions regarding
defendant’s intent and any answers that may have been given].)
In addition, in Douglas and the other cases upon which
defendant relies, there was no significant independent evidence
of guilt other than what was brought out by the challenged
questioning. (Douglas, supra, 380 U.S. at 419 [“Loyd’s alleged
statement that the [defendant] fired the shotgun constituted the
only direct evidence that he had done so”]; Murillo, supra, 231
Cal.App.4th at 456 [“[T]he independent evidence of Murillo’s guilt
was not strong”]; Shipe, supra, 49 Cal.App.3d at 355 [“The
evidence of appellant’s guilt was entirely circumstantial and the
prosecutor, through the guise of cross-examination, succeeded in
getting before the jury a vivid picture of what he believed
actually occurred on the night of the murder. He also succeeded
in creating the distinct impression that [the recalcitrant
witnesses] had talked to the authorities, that they described the
events vividly depicted in the prosecutor’s questions and that
their statements were true. It stretches the imagination to
believe that the prosecutor’s questions did not influence the
22
verdict”].) Here, the jury was presented with better independent
proof that defendant murdered Sambrano: Pereira testified he
saw defendant (a person with whom he was previously familiar)
confront and then shoot Sambrano. He identified defendant as
the shooter during trial and earlier in a photographic line up.
Diaz’s testimony, in other words, was not the “crucial link” in the
proof of defendant’s guilt. (Douglas, supra, at 419.)
Furthermore, the prosecution’s questioning of Diaz was
more circumscribed than the questioning at issue in Douglas or
the other cases relied on by defendant. Here, the document
memorializing Diaz’s statement to police was not read to the jury
by the prosecution and the questions posed to Diaz were
relatively few in number and did not pertain solely to his
interview with law enforcement. (Compare Perez, supra, 243
Cal.App.4th at 884-885 [prosecution asked the recalcitrant
witness “numerous questions about the statements he had made
to police”]; Murillo, supra, 231 Cal.App.4th at 456 [the prosecutor
asked the recalcitrant witness “over 100 leading questions” while
reading the witness’s police interviews].)
Thus, the facts here are not comparable to the cases on
which defendant relies, and the circumstances we confront are
instead closer to those found in People v. Morgain (2009) 177
Cal.App.4th 454 (Morgain). That case holds a defendant’s right
to confrontation was not violated by questions posed to a
recalcitrant witness who was granted use immunity and ordered
to testify, but refused to answer a handful of questions posed by
the prosecutor, including whether the defendant told her he shot
the victim. (Id. at 459-462.) The trial court in Morgain, like the
trial court here, granted the defense’s motion to strike all of the
witness’s testimony and instructed the jury not to consider the
23
prosecution’s questions as evidence, but the court permitted the
prosecutor to argue to the jury that the witness’s refusal to testify
was done to protect the defendant. (Id. at 462, 465.) Just as
here, the questions posed to the recalcitrant witness in Morgain
“were not the ‘only direct evidence’” that the defendant shot the
victim because other witnesses testified they saw the defendant
shoot the victim. (Id. at 465-466.) The Morgain court held that
because the trial court struck the witness’s testimony and
instructed the jury not to consider the prosecution’s questions as
evidence, and because there was independent evidence of
defendant’s guilt, Douglas did not apply and the defendant was
not denied his right of confrontation. (Id. at 466.) The same
result should obtain here.
C. The Trial Court’s Rulings Regarding the Defense
Video Expert Do Not Warrant Reversal
1. Cross-examination of the expert concerning
proceedings in another case
As already recounted in greater detail, the trial court
permitted the prosecution to cross-examine the defense video
expert Jones about his involvement in video exhibit preparation
in another case that the judge overseeing the case apparently
thought would be misleading. We review a trial court’s ruling on
the permissible bounds of cross-examination for abuse of
discretion (People v. DeHoyos (2013) 57 Cal.4th 79, 122-123
(DeHoyos)) and hold there was no such abuse here. There is good
authority that an expert can appropriately be examined on his or
her work in other cases because that may be relevant to a jury’s
determination of the expert’s care and reliability. (See, e.g.,
People v. Shazier (2014) 60 Cal.4th 109, 136-137; DeHoyos, supra,
24
at 123.) That is what occurred here. We are unpersuaded by
defendant’s contention that the cross-examination was allowed to
exceed permissible bounds because the jury was effectively told
that Jones was untruthful in the prior case. There was no such
finding by the judge in the other case; at most, Jones was
criticized there for his work with counsel in preparing a video
exhibit, and that could appropriately have some bearing on
consideration of how thorough (or objective) his work in this case
was.
2. Assertedly asymmetric evidentiary rulings
Defendant maintains the trial court violated his due
process rights by applying the rules of evidence asymmetrically to
the parties—allowing the detective, but not the defense’s video
expert, to interpret video surveillance evidence.9 Defendant
claims the error was prejudicial because the video recordings
were “critical to the defense theory of the case: [defendant]
attempted to show with the video clips to which [Jones] testified
that [defendant] could not have been the shooter.” Defendant’s
assertion of prejudice is unpersuasive.
The erroneous admission of evidence does not warrant
reversal unless the error is prejudicial. (Cal. Const., art. VI, § 13;
Evid. Code, § 353, subd. (b).) To establish prejudice arising from
9
We reject the Attorney General’s claim that defendant
forfeited his asymmetrical application challenge. During the
preliminary hearing on Jones’s testimony, defense counsel
repeatedly argued Jones should be accorded the same latitude as
the testifying detective with regard to interpreting the
surveillance videos.
25
evidence improperly admitted under state evidentiary rules, a
defendant must show, considering the record as a whole, that “it
is reasonably probable that a result more favorable to the
[defendant] would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see also
People v. Benavides (2005) 35 Cal.4th 69, 91 [Watson standard
ordinarily governs review of errors in applying state evidentiary
rules].) Where the erroneous admission of evidence amounts to
federal constitutional error, reversal is required unless the
reviewing court is convinced the error was “harmless beyond a
reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18,
24 (Chapman); see also People v. Sanchez (2016) 63 Cal.4th 665,
698-699 [applying harmless beyond a reasonable doubt standard
to admission of case-specific testimonial hearsay].)
Assuming the court’s rulings on the defense objections were
erroneous, they do not require a reversal of defendant’s
convictions no matter whether we apply the Watson or Chapman
standard. Jones’s videos were shown to the jury, both during his
direct examination and later during the defense’s closing
argument, and defense counsel had free reign when using Jones’s
video to argue during closing that defendant was not the shooter.
With the jury as the ultimate judge of what the video footage did
or did not show when offered by either side, we are confident the
argument by defense counsel about what was depicted on the
video and its significance means the absence of some measure of
largely if not entirely duplicative testimony from Jones did not
contribute to the verdict obtained—particularly in light of
testimony from Pereira who said he recognized defendant as soon
as he stepped from the vehicle, having seen him in the
neighborhood over a period of years.
26
D. Defendant Forfeited His Claim That Pereira’s “Sad”
Statement Was Improper Victim Impact Testimony
Defendant argues the trial court erred by overruling his
counsel’s objection to the prosecutor’s question asking Pereira
how the photograph of Sambrano’s body affected him because the
question sought victim impact testimony. Victim impact evidence
relates to “the personal characteristics of the victim and the
emotional impact of the crimes on the victim’s family.” (Payne v.
Tennessee (1991) 501 U.S. 808, 817; accord, People v. Vance
(2010) 188 Cal.App.4th 1182, 1199.) Such evidence “may include
the effects on the victim’s friends, coworkers, and the
community.” (People v. Brady (2010) 50 Cal.4th 547, 578.) A
prosecutor’s introduction of victim-impact testimony is
“impermissible” during the guilt phase of a trial. (People v.
Salcido (2008) 44 Cal.4th 93, 150-151 [holding wife’s testimony
regarding last time she saw her husband, the victim, was not
victim-impact evidence because it “scarcely touched upon the
victim’s family life and did not relate the effect of defendant’s acts
upon family members”].)
“Evidence Code section 353, subdivision (a) allows a
judgment to be reversed because of erroneous admission of
evidence only if an objection to the evidence or a motion to strike
it was ‘timely made and so stated as to make clear the specific
ground of the objection.’” (People v. Demetrulias (2006) 39
Cal.4th 1, 20.) “To satisfy Evidence Code section 353, subdivision
(a), the objection . . . must be both timely and specific as to its
ground. An objection to evidence must generally be preserved by
specific objection at the time the evidence is introduced; the
opponent cannot make a ‘placeholder’ objection stating general or
27
incorrect grounds (e.g., ‘relevance’) and revise the objection
later . . . stating specific or different grounds.” (Id. at 22; see also
People v. Abel (2012) 53 Cal.4th 891, 924 [“If the court overrules
the objection, the objecting party may argue on appeal that the
evidence should have been excluded for the reason asserted at
trial, but it may not argue on appeal that the court should have
excluded the evidence for a reason different from the one stated
at trial”].)
At trial, defense counsel did not object to the question of
how the photograph of Sambrano’s body affected Pereira on
relevancy grounds or on grounds it sought unduly prejudicial
information. Instead, the objection was that the photograph
shown to the witness “assumed facts not in evidence.” That did
not reasonably or fairly alert the prosecution or the trial court to
defendant’s present contention that the question sought
testimony which would encourage the jurors to “render a decision
based on sympathy and emotions untethered to the facts of the
case.” The victim impact evidence argument made now on appeal
is therefore forfeited.
E. There Is No Cumulative Error Warranting Reversal
Defendant contends that even if the errors at his trial did
not prejudice him when considered individually, their cumulative
effect deprived him of due process and a fair trial. We have
reversed the jury’s true finding on the gang enhancements, but
that has no bearing on defendant’s other challenges to his
convictions. And as to those, we have not held there was any
error—we assumed error as to the evidentiary ruling concerning
the video footage testimony but held there was no prejudice.
Defendant’s cumulative error contention is accordingly meritless.
28
(People v. Edwards (2013) 57 Cal.4th 658, 767; accord, People v.
Woods (2015) 241 Cal.App.4th 461, 489.)
DISPOSITION
The true findings on the section 186.22, subdivision (b)(1)
enhancements attached to counts 2 and 3 are reversed,
defendant’s sentence is vacated, and the matter is remanded to
the trial court for resentencing without any application of those
enhancements. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
29