People v. Miranda

Filed 8/23/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. Nos. B257245, B258930
(Super. Ct. No. PA062376)
Plaintiff and Respondent, (Los Angeles County)
v.
HUMBERTO MIRANDA, ET AL.,
Defendants and Appellants.
This case involves a razor-blade-shank attack by “Southside” gang
members on a Los Angeles County jail inmate who refused to stab another inmate at the
gang’s behest. Humberto Miranda, Felix Vega, and Isaac Rangel appeal from the
judgment entered after a jury trial. All were convicted of assault with a deadly weapon
(count 1 - Pen. Code, § 245, subd. (a)(1));1 assault by means of force likely to produce
great bodily injury (count 2 - § 245, former subd. (a)(1), now subd. (a)(4)); and battery
with serious bodily injury (count 3 - § 243, subd. (d)). Codefendant Chris DeLeon was
acquitted. As to each appellant, the jury found true great bodily injury allegations
(§ 12022.7, subd. (a)) and gang enhancements (§ 186.22, subds. (b)(1)(A) & (C)). As to
Miranda, the jury found true an allegation that, in the commission of battery with serious
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for partial publication. The portions of this opinion to be deleted from
publication are identified as those portions between double brackets, e.g., [[/]].
1
All statutory references are to the Penal Code unless otherwise stated.
bodily injury, he had personally used a “knife and razor.” (§ 12022, subd. (b)(1).) Vega
and Rangel admitted prior felony convictions.
Miranda was sentenced to prison for 17 years, to be served first before the
service of life sentences in another case. (See § 669.) Vega was sentenced to prison for
11 years, 4 months, to be served consecutively to a prior sentence in another case of 37
years, 4 months. The aggregate term for both cases was 48 years, 8 months. Rangel was
sentenced to prison for 7 years, 4 months, to be served consecutively to a prior sentence
in another case of 25 years. The aggregate term for both cases was 32 years, four
months.
Appellants argue that the evidence is insufficient to support the gang
enhancements. In addition, they argue that the trial court erroneously (1) denied their
Wheeler-Batson motions, (2) instructed the jury during jury selection, and (3) excluded
evidence of the guilty pleas of three codefendants. Vega claims that the trial court
erroneously limited his closing argument to the jury. Finally, Vega and Rangel contend
that the trial court erroneously sentenced them and failed to calculate the custody credits
to which they are entitled. Only the final contention has merit. Miranda makes no claim
of sentencing error, but his sentence is also erroneous. We vacate appellants’ convictions
on count 2 and reverse their sentences on counts 1 and 3. We remand the matter with
directions to resentence them and calculate Vega’s and Rangel’s custody credits. In all
other respects, we affirm.
Facts
Appellants and DeLeon were members of different Southern California
local criminal street gangs. Estuardo Tobias, the victim, claimed that he was not a gang
member. In June 2008 Tobias, appellants, and DeLeon were inmates in Dorm 816 at the
North County Correctional Facility (NCCF) of the Los Angeles County Jail. The dorm
housed approximately 65 inmates, all of whom were Hispanic.
In the presence of Miranda, Rangel, and DeLeon, Vega ordered Tobias to
cut another inmate with a knife. Tobias refused. Vega replied, “‘All right. If you don’t
do it, you got that coming.’” Later that same day, Vega told Tobias that someone wanted
2
to speak to him upstairs. Tobias understood that he was going to see “Puppet,” “the gang
member who was running the jail.” According to Tobias, “Puppet was the one who
would give orders about who should get beat up and what should happen among the gang
members . . . .”
After Tobias walked upstairs, Vega started fighting with him and “tried to
take [him] down on the ground.” Miranda, Rangel, DeLeon, and “not less than another
five [persons]” ran toward Tobias. The other persons included gang members Edgar
Centeno, Skary Paredes, and Ivan Toscano.
Appellants cut Tobias with razor blades attached to toothbrushes. Tobias
was punched and kicked. “There were blows, but there were so many of them [that
Tobias] couldn’t tell . . . who did what.” Someone said, “‘Cut him, but make sure that
you’re getting him on the neck.’” “The last thing [Tobias] remember[ed] was that
someone said, ‘Hide. They’re coming.’”
Sheriff’s deputies arrived and stopped the fight. A deputy testified that he
“saw five people attacking one person.” The deputy subsequently testified: “There could
have been more.” “[I]t looked like there was approximately five or more.” Another
deputy testified that he “saw approximately five inmates” surrounding Tobias and
“punching him repeatedly in a violent manner.” “It could have been more, but I’m pretty
certain that it was at minimum five.” Neither deputy saw the beginning of the fight.
Tobias was “drenched in blood.” Blood was “squirting from his wrist onto
the walls.” He had “six or seven different injuries.”
Appellants had blood on their clothing and bodies. The DNA profile of
blood found on Vega and Rangel matched the DNA profile of Tobias’s blood.
[[Wheeler-Batson Motions
Appellants contend that the trial court erroneously denied their Wheeler-
Batson motions. (People v. Wheeler (1978) 22 Cal. 3d 258 (Wheeler ); Batson v.
Kentucky (1986) 476 U.S. 79 [106 S. Ct. 1712, 90 L. Ed. 2d 69] (Batson ).) The motions
were based on the prosecutor’s use of peremptory challenges to strike four prospective
jurors because of their race.
3
“The applicable law is well settled. ‘[Under Wheeler,] [a] prosecutor’s use
of peremptory challenges to strike prospective jurors on the basis of group bias—that is,
bias against “members of an identifiable group distinguished on racial, religious, ethnic,
or similar grounds”—violates the right of a criminal defendant to trial by a jury drawn
from a representative cross-section of the community under article 1, section 16 of the
state Constitution. [Citations.] [Under Batson,] [s]uch a practice also violates the
defendant’s right to equal protection under the Fourteenth Amendment. [Citations.]’”
(People v. Zambrano (2007) 41 Cal. 4th 1082, 1104, disapproved on another ground in
People v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.)
“When a defendant claims a prosecutor has challenged a prospective juror
based on an impermissible ground, the following procedures apply: ‘First, the defendant
must make out a prima facie case “by showing that the totality of the relevant facts gives
rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant
has made out a prima facie case, the “burden shifts to the State to explain adequately the
racial exclusion” by offering permissible race-neutral justifications for the strikes.
[Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved purposeful racial
discrimination.”’ [Citation.]” (People v. Hensley (2014) 59 Cal. 4th 788, 802.)
Standard of Review
The trial court found that appellants had made a prima facie showing of
purposeful discrimination as to the four prospective jurors in question. We assume,
without deciding, that the court’s finding was correct. We review only its subsequent
finding that the prosecutor made an adequate showing of the absence of purposeful
discrimination.
“‘“‘We review a trial court’s determination regarding the sufficiency of a
prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.’”
[Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and
4
reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions
are entitled to deference on appeal.’”’ [Citation.] ‘When the prosecutor’s stated reasons
are both inherently plausible and supported by the record, the trial court need not
question the prosecutor or make detailed findings.’ [Citation.]” (People v. Hensley,
supra, 59 Cal.4th at pp. 802-803.) We will uphold the trial court’s ruling if “[s]ubstantial
evidence supports [its] determination that the prosecutor’s reasons for challenging [the
prospective jurors] were honestly stated and race neutral.” (Id., at p. 805.)
Juror No. 7655
Juror No. 7655, an African-American, was a church pastor. He had
conducted funerals for victims of gang violence and had “ministered” to at least one gang
member. He had “some knowledge” as to why young men join gangs. He believed that
the system of justice works “sometimes.”
The prosecutor declared that he had struck juror no. 7655 because the juror
had said that the criminal justice system works only “sometimes.” In addition, the
prosecutor did not like “pastors, men of faith, because their job involves forgiveness far
more so than judgment, and I find that it can be very difficult for them [to convict].”
“[S]ubstantial evidence supports the trial court’s decision that the
prosecutor’s reasons for excusing the pastor were legitimate and race-neutral. The pastor
is in the business of forgiveness . . . .” (People v. Semien (2008) 162 Cal. App. 4th 701,
708.) Furthermore, by stating that the criminal justice system works only “sometimes,”
the pastor conveyed a distrust of that system. “A prospective juror’s distrust of the
criminal justice system is a race-neutral basis for his excusal. [Citation.]” (People v.
Clark (2011) 52 Cal. 4th 856, 907.)
Juror No. 0268
Juror no. 0268 was also African-American. Since 1998, she had lived near
the University of Southern California and had noticed gang activity in the neighborhood.
She was close to a cousin who was a gang member and had “been in . . . trouble with the
law.” It is not clear whether, at the time of jury selection, the cousin was a former or
active gang member. The juror said: “One of my relatives is a [gang] member. Well, he
5
used to be. I don’t know now.” When the prosecutor asked whether she had tried to
“distance” herself from her cousin’s gang activities, she replied: “What you mean,
‘distance myself from it’? I’m not around him like that, you know.”
The prosecutor declared that he had struck juror no. 0268 because “she
[had] a close family member who was a gang member” and lived in a neighborhood
where gang activity occurred. The prosecutor further stated: “I didn’t like the fact that
she’s wearing a hat in court and during court proceedings. I noticed she wore a hat
yesterday and today during the entire proceedings and she did not remove it. And I
didn’t personally love her overall demeanor. I felt she had a strong personality that could
cause overall dissension amongst the jury.”
In denying appellants’ Wheeler-Batson motion, the trial court explained: “I
don’t think the hat is a dramatic issue, and so I wouldn’t normally accept that, but it’s the
other context: that she had a relationship with a gang member, her cousin. And I also
agree with [the prosecutor], that she was a really strong personality, and those are race
neutral reasons to excuse somebody.”
Substantial evidence supports the trial court’s acceptance of the
prosecutor’s race-neutral reasons for striking juror no. 0268. “‘[N]othing in Wheeler
disallows reliance on the prospective jurors’ . . . manner of answering questions as a basis
for rebutting a prima facie case’ of exclusion for group bias. [Citation.]” (People v.
Reynoso (2003) 31 Cal. 4th 903, 917.) “‘Obviously, we cannot, on the cold record, verify
the prosecutor’s . . . stated reason [i.e., “overall demeanor” and “strong personality”] for
challenging [juror no. 0268]. This is, of course, one reason why appellate courts in this
area of law generally give great deference to the trial court, which saw and heard the
entire voir dire proceedings.’ [Citation.]” (Id., at pp. 917-918, fn. omitted.) In any
event, the jurors’ closeness to her gang-member cousin is by itself a sufficient race-
neutral reason for the peremptory challenge.
Juror No. 8885
Juror no. 8885, of Hispanic origin, initially said she was a “community
mental health social worker.” (Italics added.) She later said she was a “community
6
health specialist.” She had visited three persons either in court or in jail. The persons
were “a friend, a relative, and an ex-boyfriend.” She had gone to court for the relative
and had seen him in jail. She believed that the relative had been fairly treated.
Juror No. 8885 had “mixed feelings” about gangs. When the jury was
asked if anyone had “positive feelings when you hear the name ‘gang member,’” she
responded, “some people don’t have families and so [gang membership is] a way for
them to have a family.”
The prosecutor said that he had struck juror no 8885 because she was a
“social worker” and social workers “are dismissed . . . by the D.A. in almost every case.”
Furthermore, “[s]he indicated that gangs are positive in the case, or at least can be at
times. She indicated a number of friends, family, and relatives who have been arrested
for crimes. She said they were treated fairly, but there were a number of them. All of
those things are red flags . . . .”
The court ruled: “I’m going to find that the prosecutor has offered race-
neutral reasons. I totally agree with him.” Substantial evidence supports the court’s
ruling.
Juror No. 8338
Juror no. 8338 was also of Hispanic origin. She “had friends that were
gang members.” One of her close friends was a former member of a Hispanic gang. He
“had tattoos that he’s trying to cover up.” She assured the court that she “can be fair.”
The gang issue would not “affect [her] impartiality.”
The prosecutor said that he had struck juror no. 8338 for two reasons. First,
“she did indicate the close friend who was the gang member. I felt that that would sway
her attitude.” Second, “as the rest of [the] panel has bonded together while they sit in the
box, she did not speak to anyone else. She looks away from the other jurors. I have a
primary concern having a hung jury, and I didn’t feel comfortable with her based on that
performance.”
The trial court responded, “I don’t know whether she was or was not
bonding with the jury.” “I didn’t see any of that.” But the court “accept[ed] [that] the
7
reasons given were race neutral.” It noted that the prosecutor had left six Hispanics on
the jury. “That does not suggest that he’s just knocking off Hispanics.”
“Substantial evidence supports the trial court’s determination that the
prosecutor’s reasons for challenging [juror no. 8885] were honestly stated and race
neutral.” (People v. Hensley, supra, 59 Cal.4th at p. 805.) The juror’s close friendship
with a former gang member was alone sufficient to support the court’s ruling. Even if the
prosecutor’s “bonding” explanation were without foundation, “this fact . . . [would] not
undermine the ‘genuineness’—or the sufficiency—of the other ‘neutral explanation[].’”
(People v. Alvarez (1996) 14 Cal. 4th 155, 198.) The prosecutor’s acceptance of six
Hispanic jurors indicates that his peremptory challenge of juror no. 8885 was not racially
motivated. (See People v. Huggins (2006) 38 Cal. 4th 175, 236 [“We also note that the
prosecutor accepted three African–American jurors, which we find here to be ‘an
indication of the prosecution’s good faith in exercising his peremptories’”].)
Comparative Juror Analysis
In arguing that the trial court erroneously denied their Wheeler-Batson
motions, appellants undertake comparative juror analysis. They compare the four
prospective jurors who were peremptorily challenged to other jurors who were allowed to
remain on the jury. Our Supreme Court has “held that ‘evidence of comparative juror
analysis must be considered in the trial court and even for the first time on appeal if relied
upon by defendant and the record is adequate to permit the urged comparisons.’
[Citation.]” (People v. Cruz (2008) 44 Cal. 4th 636, 658.)
“[C]omparative juror analysis on a cold appellate record has inherent
limitations. [Citation.]” (People v. Lenix (2008) 44 Cal. 4th 602, 622.) “This is true
because ‘[o]n appellate review, a voir dire answer sits on a page of transcript. In the trial
court, however, advocates and trial judges watch and listen as the answer is delivered.
Myriad subtle nuances may shape it, including attitude, attention, interest, body language,
facial expression and eye contact. “Even an inflection in the voice can make a difference
in the meaning.”’ [Citation.]” (People v. Chism (2014) 58 Cal. 4th 1266, 1318.)
8
“Our review of the record taken as a whole demonstrates that substantial
evidence supports the trial court’s finding that the prosecutor’s peremptory excusal[s] of
[the four prospective jurors] were not motivated by discriminatory intent. [Citation.]
[Appellants’] reliance on comparative juror analysis does not undermine this conclusion.
We find that [their] Batson–Wheeler motion[s] [were] properly rejected below.” (People
v. Cruz, supra, 44 Cal.4th at p. 661.)
Appellants Forfeited Their Claim that the Trial Court
Gave Erroneous Instructions during Jury Selection
Appellants argue that, during jury selection, the trial court gave erroneous
instructions on the reasonable doubt standard and the presumption of innocence.
Appellants contend, “[I]t is immaterial that the judge gave accurate model instructions at
the close of evidence.”
The allegedly erroneous instructions are threefold. First, the trial court
said: “[T]here are no [percentage] numbers,” such as “96 percent, 88 percent, 77”
percent, “that describe beyond a reasonable doubt. . . . [S]o forget the numbers . . . .
[The reasonable doubt standard is] much, much higher than the civil standard. It’s the
highest standard we have.” Second, when a juror said he assumed that appellants were
innocent, the trial court replied: “[Y]ou are not to assume anything about [appellants].
You are to wait for the evidence to come forward.”2 Third, upon sustaining the
prosecutor’s objection to defense counsel’s assertion that “the prosecution must prove
each fact beyond a reasonable doubt,” the trial court told the jury: “They have to prove
elements of a crime. Circumstances, although they have to do that, it’s trickier than
you’re making it out to be. It’s more complicated.”
The trial court’s statements were not formal instructions on the law.
Instead, they were comments on legal issues. Because appellants did not object to these
2
Later on during jury selection, the trial court told the jury that appellants are
“presumed to be innocent as we start the case and actually throughout the case. That
presumption only changes if and when the People are able to prove them guilty beyond a
reasonable doubt.”
9
comments, their claim of error is forfeited. People v. Seumanu (2015) 61 Cal. 4th 1293, is
on point. There, the defendant asserted for the first time on appeal that during voir dire
the trial court had “injected ambiguity into the trial” by his comments about a particular
jury instruction. (Id., at p. 1357.) Our Supreme Court “conclude[d] the issue was not
preserved for appeal by a timely and specific objection to the trial court’s comments.
[Citation.]” (Ibid.) The Supreme Court explained: “Although defendant relies on
[Evidence Code] section 1259 to excuse his failure to object, the argument cannot be
sustained. That statute permits a defendant to raise on appeal a claim challenging ‘any
instruction . . . even though no objection was made thereto in the lower court, if the
substantial rights of the defendant were affected thereby.’ Defendant is not, however,
challenging the correctness of a jury instruction . . . . [H]is claim is one of judicial error,
not misinstruction of the jury, and that claim is subject to the requirement that a
defendant make a timely and specific objection in order to preserve the issue for appeal.”
(Ibid.)
In any event, if the trial court’s comments were erroneous, the error was
harmless. “‘[A]s a general matter, it is unlikely that errors or misconduct occurring
during voir dire questioning will unduly influence the jury’s verdict in the case. . . .’
Because the . . . jury was later properly instructed with the standard . . . instructions, we
find that even if error occurred, it was not reasonably possible it affected the . . . verdict.
[Citation.]” (People v. Seumanu, supra, 61 Cal.4th at p. 1358; see also People v. Pearson
(2013) 56 Cal. 4th 393, 414 [assuming that trial court’s comments to prospective jurors
during jury selection were erroneous, the error was harmless because the comments
“were not the full instructions regarding the jury’s deliberative process,” the full
instructions “came only after the evidence portion of trial,” and “[w]e presume that jurors
understand and follow the court’s instructions”].)]]
Sufficiency of the Evidence to Support the Gang Enhancements
Appellants contend that the evidence is insufficient to support the criminal
street gang enhancements. The People were required to prove that the crimes for which
appellants were convicted had been “committed for the benefit of, at the direction of, or
10
in association with any criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).)
Standard of Review
“In considering a challenge to the sufficiency of the evidence to support an
enhancement, we 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.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v.
Albillar (2010) 51 Cal. 4th 47, 59-60.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio
(2008) 43 Cal. 4th 327, 357.)
Gang Evidence
Deputy Francis Hardiman testified for the People as a gang expert. He had
qualified “about 60 times” in Los Angeles County Superior Court as an expert on the
Mexican Mafia or the Southside criminal street gang. The following summary of the
gang evidence is primarily based on his testimony.
Appellants and DeLeon were members of both Southside and different
Southern California Hispanic local criminal street gangs. Other inmates who participated
in the assault upon Tobias - Edgar Centeno, Skary Paredes, and Ivan Toscano - were also
gang members. Centeno was a member of the Pasadena Latin Kings gang and Southside,
11
Paredes was a member of Southside, and Toscano was a member of the North Side
Longos’ gang and Southside.3
Dorm 816, where the inmates were housed, was “a Southside dorm.” An
inmate was assigned there only if he had identified himself as a Southsider or jail
officials had “designated [him as a] possible Southsider.”
Southside was created by the Mexican Mafia in the early 1990s. The
Mexican Mafia is a Hispanic prison gang. It and a rival Hispanic prison gang, Nuestra
Familia, agreed to divide California into two territories. Hispanic gang members south of
Delano are considered to be “Southsiders.” Hispanic gang members north of Delano are
considered to be “Nortenos.” Southsiders owe their allegiance to the Mexican Mafia,
while Nortenos owe their allegiance to Nuestra Familia.
If you are a Southern California Hispanic gang member, “[w]hen you
come in from the street into [Los Angeles County jail], your gang rivalries out on the
street end, and you are a member of the Southside” criminal street gang. When Tobias
arrived at Dorm 816, Vega told him that, “since they were working for the South, there
was no fighting among them.”
A Southern California Hispanic gang member who did not want to be a
Southsider always had the option of informing jail authorities that he “can’t do this
anymore.” The gang member would then “become a protective custody inmate.”
Southsiders have an obligation to attack protective custody inmates if the opportunity
arises.
A Mexican Mafia member in the Los Angeles County jail “is in control of
all of the Southsiders within the . . . jail.” He is at the top of “a pyramid-like structure of
leadership within the jail that controls the actions of the individual Southsiders.” The Los
Angeles County jail is divided into seven facilities, and a “Southsider shot caller . . . is in
3
Centeno, Paredes, and Toscano were appellants’ codefendants. They pleaded
guilty before trial. In the unpublished portion of this opinion, we reject appellants’
contention that the trial court erroneously refused their request to take judicial notice, in
the jury’s presence, of the guilty pleas.
12
charge” of each facility. “The next step down from the facility shot caller [is] the floor
shot caller.” Each floor is divided into modules or dorms, and each module or dorm has a
Southside shot caller. If a Southsider wants to use violence against an inmate, he
generally must get permission “from the various shot callers above [him].”
Every week, each dorm shot caller collects “taxes” from the Southsiders in
his dorm. The taxes are forwarded to the Mexican Mafia. “So each dorm each week . . .
generate[s] income” for the Mexican Mafia.
A set of rules called “the Southside rules” applies to all Southsiders in jail.
“The rules are designed to strictly control violence by the Southside[rs].” “[E]ach
individual member of the Southside is expected to keep an eye on the other members and
help enforce those rules.” Hardiman gave several examples of the Southside rules.
Any Hispanic from Southern California, regardless of whether he is a gang
member, who “comes into the jail . . . falls under the control of the Southside. And they
have to follow the [Southside] rules.” “Paisa,” “Resident,” and “Christian” are
“designation[s] by the Southside of a person who is not a member of the Southside but
has to follow the rules.” When Tobias arrived at Dorm 816, Vega informed him of the
rules.
Vega testified that in June 2008, when the incident involving Tobias
occurred, he was the “bar man” for Dorm 816. Deputy Hardiman defined “bar man” as
“a person within the Southside who is designated to be a contact point in a dorm with the
staff of the facility.” The bar man also “communicates with the hierarchy of the
Southside.” The bar man sometimes “give[s] out the orders about who gets beat up, who
gets kicked . . . .”
Raymond Cuevas worked for Hardiman as an informant. His gang moniker
was “Puppet.” When Vega told Tobias that someone wanted to speak to him upstairs,
Tobias understood that he was going to see “Puppet,” “who would give orders about who
should get beat up and what should happen among the gang members . . . .” Hardiman
testified that in about August 2009 Cuevas became “the shot caller for the entire
13
facility . . . .” Cuevas said that “Vega had status within the Southside and eventually
became the shot caller for the entire facility . . . .” Deputy Christian Lopez, who worked
at NCCF and had frequent contact with Vega, testified that Vega had “worked his way up
from bar man” to “facility shot caller, for a short period of time” between October and
December 2009.
Deputy Hardiman saw “roll call lists,” which were generated by Southside
and listed its members as well as inmates under its control. Vega’s, Miranda’s, and
DeLeon’s names were on the lists. Rangel “appear[ed] on roll calls with [his] name,
booking number, and moniker [“Evil”] and [local street] gang.”
The prosecutor asked Deputy Hardiman a hypothetical question
incorporating the facts of the assault committed upon Tobias. Deputy Hardiman opined
that the assault “was committed at the direction of, for the benefit [of], and in association
with a criminal street gang, to wit, the Southside.” Hardiman explained that the assault
benefited Southside because “it tells both other Southsiders, people that aren’t
Southsiders but fall under the control of the Southside, and the other groups within the
jail -- like the black inmates, the white inmates . . . -- that the Southside is . . . so strong
and so committed that they’re willing to attack their own because their own in this
instance wouldn’t follow their rules.” This creates fear and intimidation among other
inmates and “causes [Hispanic inmates] to follow the rules.” The fear and intimidation
deter “other organizations from trying to influence or stick their nose into the interests of
the Southside, such as extortion, money laundering, drug dealing.”
Vega testified that he was a member of a gang called Pacoima Project
Boys, not a gang called Southside. “Sureno” or “Southside” means “like saying you’re
from Southern California.” Vega claimed that Tobias had said he was a member of the
Langdon Street gang in the San Fernando Valley.
Rangel testified that he was a member of a gang called Compton Varrio
Tres. He identified himself as a “Sureno,” which means a “gang member from the south”
of California.
14
DeLeon testified that, when he “was younger,” he had been a member of a
gang called La Mirada Locos. But DeLeon told Vega that he was a current member of
the La Mirada gang. Vega heard other inmates address DeLeon by his gang moniker,
“Capone.” DeLeon testified that “Southsiders” means “Hispanic from down south.” He
was asked, “Does everyone who is Hispanic who is a member of a gang south of Delano,
a member of Southside?” DeLeon replied, “Only when you’re in jail.”
Miranda did not testify. Deputy Hardiman opined that Miranda had “a
leadership rol[e] within [the] San Fer” criminal street gang in the San Fernando Valley.
Miranda told Vega that he was from San Fer.
Expert Gang Testimony
Miranda and Rangel assert that the evidence is insufficient to support the
gang enhancements because Deputy Hardiman’s “conclusions were spun out of whole
cloth” and “are not worthy of any assignment of value or credibility.” They allege that
his “conclusions are based upon matters which are not reasonably relied upon by other
experts, and upon factors which are speculative, remote or conjectural.” (Bold and
capitalization omitted.)
Miranda and Rangel impugn Deputy Hardiman’s gang expertise. They
claim that he “concluded South Side was a criminal street gang, upon his arrival at the
Los Angeles County Sheriff’s Department, without any prior gang experience or
training.” They also impugn his motives, accusing him of going over the head of his
superior, Sergeant Meade, to “OSJ leader[,] Gregory Thompson, soon to be indicted on
corruption then occurring at the jail, to test the waters and in so doing, to advance up the
ladder.”4 They attempt to tarnish Hardiman’s character by linking him with Thompson:
“This self[-]made expert climbed up the ladder after 7 months at OSJ with the blessings
of its leader at a time when the FBI was investigating corruption at the jail which led to
conviction of its OSJ leader.”
4
“OSJ” is an abbreviation for Operation Safe Jails, “an intelligence-gathering unit
within the Los Angeles County jail system.”
15
For four reasons, we reject Miranda’s and Rangel’s allegations concerning
Deputy Hardiman’s testimony. First, they are not supported by meaningful analysis with
record citations to evidence before the jury. (In re S.C. (2006) 138 Cal. App. 4th 396,
408.) Second, by not objecting to Hardiman’s qualifications as a gang expert, Miranda
and Rangel forfeited this issue. (People v. Bolin (1998) 18 Cal. 4th 297, 321.) Third,
Hardiman’s credibility was a matter for the jury to decide, and it impliedly found him to
be credible. “‘“Conflicts and even testimony which is subject to justifiable suspicion do
not justify the reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.]” . . . .’ [Citation.]” (People v. Barnes (1986)
42 Cal. 3d 284, 306.)
Fourth, Hardiman’s “conclusions were [not] spun out of whole cloth.” Nor
were they based on speculation. Hardiman listened to a recorded “face-to-face
conversation” between Miranda and two other inmates “about the conduct and operations
of the Southside.” Miranda had a “‘thirst for blood’ tattoo,” which is “an earned tattoo
within the Southside.” Hardiman’s opinion that Vega was a member of Southside was
based on “his actions, his conduct,” his tattoos, “admissions that he made to Deputy
Christian Lopez,” and Hardiman’s conversations with the informant Raymond Cuevas.
Hardiman conversed with Cuevas “at least 30 times.” In addition to having been the
Southside “shot caller for the entire facility,” Cuevas was also “a crew chief for a
member of the Mexican Mafia.” Hardiman was familiar with the “Southside rules” in
force at NCCF. He saw “hundreds” of Southside “roll call lists,” some of which included
appellants’ and DeLeon’s names. He spoke to “hundreds of Southsiders” and to several
members of the Mexican Mafia, plus more than 100 “dropouts” from the Mexican Mafia
and Southside. He listened to “hundreds of hours of recorded conversations . . . between
Southsiders talking to other Southsiders and . . . sometimes members of the Mexican
Mafia about their criminal enterprise.” He spoke to police officers who were working in
an undercover capacity within the Mexican Mafia or Southside.
16
Hardiman’s conclusions are supported by Tobias’s and codefendant
DeLeon’s testimony. When Tobias arrived at Dorm 816, Vega told him that “they were
working for the South” and explained the rules to him. DeLeon testified that Southern
California Hispanic local gang members are members of Southside “[o]nly when [they
are] in jail.”
Hardiman’s conclusions are also supported by the nature of the attack upon
Tobias. The attack involved concerted, apparently preplanned action by members of
different local street gangs against an inmate who had refused to follow the command of
a Southside “shot caller.”
Appellants argue that the Los Angeles County Sheriff’s Department’s
“classification system created a gang it called South Sider making membership
mandatory” for “any Hispanic geographically from southern California regardless of
whether or not he was a gang member before incarceration . . . .” This constituted “an
unlawful classification system which was based on ethnicity.” “In the context of whether
a finding is supported by substantial evidence, opinion evidence based on ethnic
discrimination is not reasonable, credible, and of solid value.”
Appellants’ argument is not supported by the evidence. Hardiman testified
that, upon entry into the Los Angeles County jail, only Southern California Hispanic
gang members become members of Southside. Incarcerated Southern California
Hispanics who are not gang members are not members of Southside, although they “fall[]
under [its] control.” “[Y]ou really don’t have to be a member of a street gang to be
subject to the power [Southside] hold[s] over you . . . .”
The Sheriff’s Department did not create Southside. Southside was created
by the Mexican Mafia. Hardiman testified: “[T]he Sheriff’s Department doesn’t
designate anybody as a Southsider. That’s for the Southside and for the individual.”
Elements of Statutory Definition of a Criminal Street Gang
Vega and Rangel claim that the evidence is insufficient to establish the
elements of the statutory definition of a criminal street gang. “‘[C]riminal street gang’
means any ongoing organization, association, or group of three or more persons, whether
17
formal or informal, having as one of its primary activities the commission of one or more
of [statutorily enumerated] criminal acts . . . , having a common name or common
identifying sign or symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
Common Name or Common Identifying Symbol
Vega and Rangel assert that “Southside did not have its own unique
symbolism. Rather, it used the same iconic Mayan imagery and the number 13 used by
the Mexican Mafia.” But the gang statute does not require “unique” symbolism. It
requires only a “common identifying sign or symbol.” (§ 186.22, subd. (f).)
Furthermore, the statute provides that a criminal street gang must have “a common name
or common identifying . . . symbol,” not both. (§ 186.22, subd. (f), italics added.) Either
is sufficient. Deputy Hardiman testified that the Southside gang had a common name:
the terms “Sureno, Sur, Southside, [and] Southsider” were all “synonymous” with the
gang. “Sur” is Spanish for “south,” and “Sureno” is Spanish for “a person who is from
the south.” Southside also had a “common identifying . . . symbol.” (Ibid.) It had “a
symbol called the Kampol, . . . which is two horizontal lines with three dots above the
horizontal lines which is a Mayan representation of the number 13.” The thirteenth letter
of the alphabet is “M,” which stands for the Mexican Mafia. Hardiman’s testimony
constitutes substantial evidence of “a common name or common identifying . . . symbol.”
(People v. Gardeley (1996) 14 Cal. 4th 605, 620 [gang expert’s testimony was sufficient
to satisfy most of the elements of definition of a criminal street gang, including that the
gang “shares ‘a common name or common identifying . . . symbol’”].)
Primary Activities
Vega and Rangel maintain that the evidence is insufficient to show that
“one of [Southside’s] primary activities” was “the commission of one or more” of the
“criminal acts” enumerated in the gang statute. (§ 186.22, subd. (f).) Deputy Hardiman
testified that the “most common” activities of Southside were “extortion, drug dealing,
assault with deadly weapons, [and] conspiracies to [commit] murder.” These activities
are among the criminal acts enumerated in the statute. (§ 186.22, subds. (e)(1), (3), (4),
18
(19).) Deputy Hardiman’s testimony constitutes substantial evidence of the “primary
activities” element of the definition of a criminal street gang. (People v. Prunty (2015)
62 Cal. 4th 59, 82 [gang expert’s testimony “that ‘the Nortenos’ in the area engage in
various criminal practices” was “likely sufficient” to establish “primary activities”
element]; People v. Sengpadychith (2001) 26 Cal. 4th 316, 324; People v. Gardeley,
supra, 14 Cal.4th at p. 620.)
Pattern of Criminal Gang Activity
Finally, Vega and Rangel allege that the evidence is insufficient to show
that Southside “members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (§ 186.22, subd. (f).) The prosecution has “the choice
of proving the requisite ‘pattern of criminal gang activity’ by evidence of ‘two or more’
predicate offenses committed ‘on separate occasions’ or by evidence of such offenses
committed ‘by two or more persons’ on the same occasion.” (People v. Loeun (1997) 17
Cal. 4th 1, 10.) The prosecution may “rely on evidence of the defendant’s commission of
the charged offense and the contemporaneous commission of a second predicate offense
by a fellow gang member.” (Ibid.)
The People contend that the predicate offenses were sufficiently proved by
Hardiman’s testimony that two other named individuals had been convicted of assault
with a deadly weapon and murder and had committed these crimes while they were
members of Southside, although they were also members of different local criminal street
gangs. Hardiman was the investigating officer in the assault with a deadly weapon case
and testified at the trial in the murder case. The People also contend that the predicate
offenses requirement was proved by all of the appellants’ contemporaneous commission
of the charged offenses. (See People v. Loeun, supra, 17 Cal.4th at p. 14 [“Through
evidence of defendant’s commission of the charged crime of assault with a deadly
weapon on Ivan Corral and the separate assault on Corral seconds later by a fellow gang
member, the prosecution established the requisite ‘pattern of criminal gang activity’”].)
But appellants argue that the evidence is insufficient to show that they and
the two other named individuals belonged to the same “umbrella” Southside gang. “[I]t
19
is axiomatic that those who commit the predicate acts must belong to the same gang that
the defendant acts to benefit.” (People v. Prunty, supra, 62 Cal.4th at p. 76.) Where, as
here, “the prosecution’s case positing the existence of a single ‘criminal street gang’
[Southside] for purposes of section 186.22(f) turns on the existence and conduct of one or
more gang subsets [the different local street gangs at NCCF], then the prosecution must
show some associational or organizational connection uniting those subsets. That
connection may take the form of evidence of collaboration or organization . . . .
Alternatively, it may be shown that the subsets are part of the same loosely hierarchical
organization, even if the subsets themselves do not communicate or work together.” (Id.,
at p. 71.) The associational or organizational connection may be “formal or informal.”
(Id., at p. 74.) The People acknowledge that the different Southern California Hispanic
local criminal street gangs at NCCF “were subsets of South Side.”
“The most straightforward cases [of an associational or organizational
connection] might involve subsets connected through formal ways, such as shared bylaws
or organizational arrangements. Evidence could be presented, for instance, that such
subsets are part of a loose approximation of a hierarchy. Even if the gang subsets do not
have a formal relationship or interact with one another . . . the subsets may still be part of
the same organization if they are controlled by the same locus or hub. For example,
Norteño gang subsets may be treated as a single organization if each subset contains a
‘shot caller’ who ‘answer[s] to a higher authority’ in the Norteño chain of command.
[Citations.]” (People v. Prunty, supra, 62 Cal.4th at p. 77.)
The evidence here shows that this is one of “[t]he most straightforward
cases” of an associational or organizational connection. (People v. Prunty, supra, 62
Cal.4th at p. 77.) The Southern California Hispanic gang subsets at NCCF were
“controlled by the same locus or hub.” (Ibid.) Deputy Hardiman described in detail the
“pyramid-like structure of leadership within the jail that controls the actions of the
individual Southsiders,” with a Mexican Mafia member at the top and Southside shot-
callers at different levels of the pyramid. The subset gang members were governed by “a
set of rules” called “the Southside rules.” “[P]roof that different Norteño subsets are
20
governed by the same ‘bylaws’ may suggest that they function . . . within a single
hierarchical gang. [Citation.]” (Ibid.)
In proving the requisite associational or organizational connection,
prosecutors may “show that members of the various subsets collaborate to accomplish
shared goals.” (People v. Prunty, supra, 62 Cal.4th at p. 78.) The prosecutor in the
instant case made such a showing. When Tobias arrived at Dorm 816, Vega told him
that, “since they were working for the South, there was no fighting among them.”
Prosecutors may establish collaboration by showing “that members of different subsets
have ‘work[ed] in concert to commit a crime,’ [citation] . . . .” (Id., at p. 78, fn. omitted.)
Here, the evidence shows that members of different gang subsets worked in concert to
commit the aggravated assault upon Tobias. The subsets were “united by their
activities.” (Id., at p. 75.)
Accordingly, “‘“viewing the evidence in the light most favorable to the
People”’” and “presum[ing] in support of the judgment the existence of every fact the
trier of fact reasonably could infer from the evidence” (People v. Lindberg (2008) 45
Cal. 4th 1, 27), we conclude that a reasonable trier of fact could have found beyond a
reasonable doubt “that those who commit[ted] the predicate acts . . . belong[ed] to the
same gang that [appellants] act[ed] to benefit.” (People v. Prunty, supra, 62 Cal.4th at p.
76.)
[[The Trial Court Did Not Erroneously Exclude
Evidence of the Guilty Pleas of Appellants’ Codefendants
Four defendants - appellants and DeLeon - were on trial before the jury.
Without objection, the trial court informed the jury that seven defendants were present at
the preliminary hearing. Three codefendants - Edgar Centeno, Skary Paredes, and Ivan
Toscano - pleaded guilty before the trial began. Appellants maintain that the trial court
erroneously denied their request to take judicial notice, in the jury’s presence, of the
codefendants’ guilty pleas. Appellants told the trial court that the two deputies who
witnessed the fight had testified that five persons assaulted Tobias, so “it would be
21
unfair . . . not to bring in the fact that these three other people had admitted to the
participation in the attack.” The implication was that if only five persons were involved
in the attack and three had pleaded guilty, then only two of the four defendants on trial
could be guilty.
The trial court did not err in denying the request for judicial notice. Only
relevant evidence is admissible (Evid. Code, § 350), and the codefendants’ guilty pleas
were irrelevant. “‘Relevant evidence’ means evidence . . . having any tendency in reason
to prove or disprove any disputed fact that is of consequence to the determination of the
action.” (Id., § 210.) The codefendants’ guilty pleas proved only that they had admitted
assaulting Tobias or aiding and abetting the assault. The pleas had no tendency in reason
to prove or disprove that appellants had participated in the assault. “[A] guilty plea or
conviction of a participant is irrelevant to whether another person was positively and
correctly identified as a coparticipant, and merely invites the inference of guilt by
association. [Citation.]” (People v. Neely (2009) 176 Cal. App. 4th 787, 795.)
We recognize that “it is always proper to defend against criminal charges
by showing that a third person, and not the defendant, committed the crime charged.”
(People v. Hall (1986) 41 Cal. 3d 826, 832.) But the guilty pleas of the three
codefendants did not have a tendency in reason to prove that they, in lieu of appellants,
had committed the charged assault. Tobias testified that no fewer than nine inmates had
assaulted him. The deputies, who did not see the beginning of the attack, testified that
they had observed “approximately five or more” and “at minimum five” inmates
assaulting Tobias. The DNA profile of blood on Rangel’s clothing and body matched his
own and Tobias’s blood. The DNA profile of blood taken from Vega’s shirt and chin
matched Tobias’s blood. Miranda had “a deep cut on one of his fingers.” Bloodstains
from his pants matched his own DNA profile.
Even if the guilty pleas were relevant evidence, the trial court did not err in
excluding the evidence because its minimal probative value was substantially outweighed
by the probability that its admission would cause undue prejudice to codefendant
DeLeon, who was on trial with appellants. (Evid. Code, § 352.) DeLeon objected to the
22
request for judicial notice. We assume that his objection was based on the reasonable
concern that the guilty pleas “invite[] an inference of guilt by association . . . .” (People
v. Leonard (1983) 34 Cal. 3d 183, 188.)
We reject appellants’ contention that, instead of granting their request for
judicial notice of the codefendants’ guilty pleas, the trial court erroneously gave CALJIC
No. 2.11.5. “[T]he instruction accurately states the law and does not appear to have been
misleading.” (People v. Farmer (1989) 47 Cal. 3d 888, 919, disapproved on another
ground in People v. Waidla (2000) 22 Cal. 4th 690, 724, fn. 6.) The instruction provided:
“There has been evidence in this case indicating that a person other than a defendant was
or may have been involved in the crime for which that defendant is on trial. [¶] There
may be many reasons why that person is not here on trial. Therefore, do not speculate or
guess as to why the other person is not being prosecuted in this trial or whether he . . . has
been or will be prosecuted. Your sole duty is to decide whether the People have proved
the guilt of each defendant on trial.” We presume that the jury followed this instruction.
(People v. Zavala (2013) 216 Cal. App. 4th 242, 249.)
The Trial Court Properly Limited
Closing Argument by Vega’s Counsel
Vega claims that, during closing argument, the trial court erroneously
refused to permit his counsel to comment about the dirty clothes that Tobias, who was in
custody, had worn to court. Tobias’s dirty clothes allegedly supported Vega’s testimony
that a fight had broken out between him and Tobias over the latter’s slovenly habits.
According to Vega, other inmates complained that Tobias was “sloppy.” He confronted
Tobias and reproached “him about being sloppy and not wanting to clean.” Tobias got
angry, and they started fighting. Codefendant DeLeon, who had bunked with Tobias,
testified that he had asked Tobias to move to another bunk because he would not “clean
after himself” and had poor “grooming standards.”
During closing argument, Vega’s counsel told the jury that it was “brought
to his [client’s] attention . . . that Estuardo Tobias is [a] filthy dirty nasty guy.” Counsel
continued, “[E]verywhere he goes people complain because he’s dirty. You saw the way
23
he came to court with the filthy undershirts. He could have changed. But he chose to
come to court with that dirty coffee-stained undershirt.” The prosecutor objected, and the
trial court sustained the objection because the argument assumed a fact not in evidence:
that Tobias “could have changed” his undershirt. The trial court instructed the jury to
disregard the argument. It said to counsel in the jury’s presence, “Move on to another
argument. This one is a losing one. Move on to another argument. Forget about the T-
shirt.” Counsel then declared to the jury: “You saw him in court, you saw the way he
came with that shirt. Just because the judge thinks it’s a losing argument, doesn’t mean
you have to agree with him.”
The trial court immediately conducted a sidebar conference. The
prosecutor protested that he had provided street clothes for Tobias, but “the sheriffs did
not dress him. . . . It was not in his control.” The trial court told counsel: “[Tobias]
asked to put him in street clothes, and the sheriffs wouldn’t let him.” After the sidebar
conference, the court instructed the jury: “[T]he clothing that Mr. Tobias wore was not in
his control. . . . [S]o you are to forget about the clothing that he was wearing in court. It
is not germane evidence in this case.”
Vega argues that, in limiting his counsel’s closing argument, the trial court
committed reversible error: “[T]he court’s limitation of [counsel’s] argument deprived
[Vega] of the ability to persuade the jury of a legitimate inference from the evidence that
supported his defense to the charge of orchestrating a gang hit on Tobias.” Vega further
complains that the court’s “derogation of [counsel’s argument] as a ‘losing one,’ borders
on judicial misconduct.”
We disagree. Counsel’s argument was a “losing one” because she was not
entitled to make it. She assumed a fact not in evidence: that Tobias had “chosen” to
wear a dirty undershirt to court and could have changed into a clean one if he had wanted
to do so. “While counsel is accorded ‘great latitude at argument to urge whatever
conclusions counsel believes can properly be drawn from the evidence [citation],’
counsel may not assume or state facts not in evidence [citation] . . . .” (People v. Valdez
(2004) 32 Cal. 4th 73, 133-134; see also People v. Mincey (1992) 2 Cal. 4th 408, 442 [“A
24
defendant’s rights to due process and to present a defense do not include a right to present
to the jury a speculative, factually unfounded inference”].)
Sentencing of Vega and Rangel and
Calculation of their Custody Credits
Vega and Rangel claim that they were erroneously sentenced on all three
counts.
Count 1
On count 1, Vega and Rangel were found guilty of assault with a deadly
weapon. (§ 245, subd. (a)(1).) The jury found true great bodily injury and gang
enhancements. (§§ 12022.7, subd. (a), 186.22, subd. (b)(1)(C).)
Vega admitted one prior “strike” within the meaning of California’s Three
Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), one prior serious felony
conviction within the meaning of section 667, subdivision (a)(1), and one prior prison
term within the meaning of section 667.5, subdivision (b). The court sentenced him to
two years for the assault with a deadly weapon (one-third the three-year midterm doubled
because of the strike), plus one year for the great bodily injury enhancement (one-third of
three years), plus three years, four months for the gang enhancement (one-third of 10
years), plus five years for the prior serious felony conviction. The trial court did not
impose an enhancement for both the prior serious felony conviction and the prior prison
term because they were based on the same offense. (People v. Jones (1993) 5 Cal. 4th
1142, 1144-1145.) Thus, Vega’s total sentence on count 1 was 11 years, 4 months, which
was ordered to run consecutively to a previously imposed sentence in another case of 37
years, 4 months.
Rangel admitted one prior strike, one prior serious felony conviction, and
two prior prison terms. The trial court sentenced him to one year for the assault with a
deadly weapon, doubled because of the strike, plus one year for the great bodily injury
enhancement, plus three years, four months for the gang enhancement, plus one year for
one of the prior prison terms. Thus, Rangel’s total sentence on count 1 was seven years,
four months, which was ordered to run consecutively to a previously imposed 25-year
25
sentence in another case. The trial court did not impose an enhancement for the prior
serious felony conviction because it had already been imposed in calculating the 25-year
sentence. Enhancements for prior felony convictions are “status enhancements” that can
be imposed only once on the aggregate sentence. (People v. Edwards (2011) 195
Cal. App. 4th 1051, 1057.)
We accept the People’s concession that the trial court erroneously imposed
both the great bodily injury enhancements and the gang enhancements. The gang
enhancements were aggravated because Vega and Rangel were convicted of a violent
felony as defined in subdivision (c) of section 667.5. (§ 186.22, subd. (b)(1)(C).) They
were therefore subject to a 10-year gang enhancement instead of the standard two, three,
or four-year enhancement. (§ 186.22, subd. (b)(1)(A) & (C).) The felony was violent
only because it had “been charged and proved as provided for in Section 12022.7” that
they had inflicted great bodily injury upon Tobias. (§ 667.5, subd. (c)(8).) Thus, “the
trial court imposed two enhancements for [Vega’s and Rangel’s] infliction of great bodily
injury on the same victim in the commission of a single offense. . . . [T]he trial court
should have imposed only the greatest of those enhancements [i.e., the aggravated gang
enhancement] as required by section 1170.1, subdivision (g). [Citation.]” (People v.
Gonzalez (2009) 178 Cal. App. 4th 1325, 1332.) “The proper remedy . . . [is] not to strike
the punishment under section [12022.7] but to reverse the trial court’s judgment and
remand the matter for resentencing. [Citation.]” (People v. Rodriguez (2009) 47 Cal. 4th
501, 509.)
Count 2
On count 2 Vega and Rangel were convicted of assault by means of force
likely to produce great bodily injury. (§ 245, former subd. (a)(1), now subd. (a)(4).) The
trial court imposed the identical consecutive sentences that it had imposed on count 1.
The court stayed the sentences on count 2 pursuant to section 654.
The sentences on count 2 are invalid because in June 2008, when the
offense was committed, assault with a deadly weapon, as charged in count 1, and assault
by means of force likely to produce great bodily injury, as charged in count 2, were
26
alternative statements of the same offense: a violation of section 245, subdivision (a)(1).
In other words, in counts 1 and 2 Vega and Rangel were convicted of committing the
same offense in different ways. Accordingly, the conviction on count 2 must be vacated.
(See People v. Ryan (2006) 138 Cal. App. 4th 360, 371.)
Count 3
On count 3, Vega and Rangel were convicted of battery with serious bodily
injury. (§ 243, subd. (d).) Count 3 alleged a standard gang enhancement under section
186.22, subdivision (b)(1)(A). Count 3 did not allege a great bodily injury enhancement
“[b]ecause the ‘great bodily injury’ contemplated by section 12022.7 is substantially the
same as the ‘serious bodily injury’ element of section 243, subdivision (d) [citation]
. . . .” (People v. Hawkins (2003) 108 Cal. App. 4th 527, 531.) Thus, pursuant to the
pleadings, Vega and Rangel were subject to the standard two, three, or four-year term for
the gang enhancement. At the time of sentencing, the prosecutor told the court that the
gang enhancement “might be mispled” and is “at least a five-year gang enhancement.”
Nevertheless, the court imposed consecutive sentences of one-third the aggravated 10-
year term under section 186.22, subdivision (b)(1)(C). The court stayed the sentences on
count 3 pursuant to section 654.
The People concede that the 10-year aggravated gang enhancement does
not apply to count 3. They argue that Vega and Rangel are subject to the five-year
enhancement of section 186.22, subdivision (b)(1)(B), which applies when the defendant
is convicted of a serious felony as defined in section 1192.7, subdivision (c). We agree.
Vega’s and Rangel’s convictions of battery with serious bodily injury qualify as serious
felonies under section 1192.7, subdivision (c)(8), which applies to “any felony in which
the defendant personally inflicts great bodily injury on any person.” (Ibid.) Section
1192.7, subdivision (c)(8), unlike section 667.5, subdivision (c)(8), does not require that
the infliction of great bodily be “charged and proved as provided for in Section 12022.7.”
We recognize that the information specifically pleaded, and the jury found
true, that the gang enhancements on count 3 were pursuant to section 186.22, subdivision
(b)(1)(A). But “[a] reference to an incorrect penal statute can be overcome by factual
27
allegations adequate to inform the defendant of the crime [or enhancement] charged.
[Citations.]” (People v. Haskin (1992) 4 Cal. App. 4th 1434, 1439.) The great bodily
injury allegations in counts 1 and 2 put Vega and Rangel on notice that they were subject
to a five-year gang enhancement based on the commission of a serious felony pursuant to
section 186.22, subdivision (b)(1)(B) and section 1192.7, subdivision (c)(8). The trial
court should have imposed consecutive sentences of one year, eight months (one-third of
five years) for the gang enhancements on count 3.
Prior Serious Felony Conviction
Vega and Rangel argue that, on each of counts 2 and 3, the trial court
erroneously imposed a prior serious felony conviction enhancement pursuant to section
667, subdivision (a)(1). The argument as to count 2 is moot because we are vacating
their convictions on that count. We accept the People’s concession that, as to count 3,
Vega’s argument has merit. Enhancements for prior felony convictions can be imposed
only once on the aggregate sentence. (People v. Edwards, supra, 195 Cal.App.4th at p.
1057.) Since the trial court imposed a prior serious felony conviction enhancement on
count 1, it could not impose the same enhancement on count 3.
Rangel’s argument, on the other hand, is devoid of merit because the trial
court did not impose a prior serious felony conviction enhancement on any of the three
counts against him.
Aggregate Sentence
Vega and Rangel argue that, instead of ordering that the sentence imposed
in the instant case shall run consecutively to the sentence imposed in a prior case, the
trial court should have imposed a single aggregate sentence for both cases. We agree.
Rule 4.452 of the California Rules of Court provides: “If a determinate sentence is
imposed under section 1170.1(a) consecutive to one or more determinate sentences
imposed previously in the same court or in other courts, the court in the current case must
pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of
combining the previous and current sentences. In those situations: [¶] (1) The sentences
on all determinately sentenced counts in all of the cases on which a sentence was or is
28
being imposed must be combined as though they were all counts in the current case. [¶]
(2) The judge in the current case must make a new determination of which count, in the
combined cases, represents the principal term, as defined in section 1170.1(a). [¶] (3)
Discretionary decisions of the judges in the previous cases may not be changed by the
judge in the current case. Such decisions include the decision to impose one of the three
authorized prison terms referred to in section 1170(b), making counts in prior cases
concurrent with or consecutive to each other, or the decision that circumstances in
mitigation or in the furtherance of justice justified striking the punishment for an
enhancement.” On remand, the trial court must pronounce a single aggregate term
pursuant to rule 4.452.
Custody Credits
The trial court did not award custody credits to Vega or Rangel because
“they’re getting credits” in the other cases for which they had previously been sentenced
and were currently serving time. The court later declared, “They’re not entitled to any
credits because it’s a consecutive sentence.” We accept the People’s concession that
“because . . . the trial court imposed a single aggregate term for each appellant that
included the sentence in the other case, the court was required to calculate the credits
appellants had earned against those aggregate terms.” Accordingly, on remand the trial
court must calculate and award Vega’s and Rangel’s custody credits and include them in
the Abstract of Judgment. (See People v. Phoenix (2014) 231 Cal. App. 4th 1119, 1129-
1130; People v. Saibu (2011) 191 Cal. App. 4th 1005, 1012-1013.)
Sentencing of Miranda
Miranda makes no claim of sentencing error. But the trial court made some
of the same mistakes that it made in sentencing Vega and Rangel. On count 1, Miranda
was sentenced to four years for assault with a deadly weapon, plus three years for the
great bodily injury allegation, plus 10 years for the gang enhancement pursuant to section
186.22, subdivision (b)(1)(C). The trial court should have imposed only the 10-year gang
enhancement.
29
On count 2 the trial court sentenced Miranda to prison for 17 years, but
stayed the sentence pursuant to section 654. The conviction on count 2 must be vacated.
On count 3, the trial court sentenced Miranda to four years for battery with
serious bodily injury, plus 10 years for the gang enhancement, plus one year for the
enhancement of using a deadly or dangerous weapon. (§ 12022, subd. (b)(1).) The court
stayed the sentence pursuant to section 654. The court should have imposed a five-year
gang enhancement instead of the 10-year enhancement.]]
Disposition
The convictions on count 2 are vacated and the sentences on counts 1 and 3
are reversed. The matter is remanded to the trial court with directions to resentence
appellants on counts 1 and 3 in accordance with this opinion. The court shall calculate
Vega’s and Rangel’s custody credits. In all other respects, the judgments are affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
30
Stephen A. Marcus, Judge
Superior Court County of Los Angeles
______________________________
James Crawford, Linn Davis, under appointment by the Court of Appeal,
for Defendant and Appellant, Humberto Miranda.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and
Appellant, Felix Vega.
David M. Thompson, under appointment by the Court of Appeal, for
Defendant and Appellant, Isaac Rangel.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney
General, for Plaintiff and Respondent.