People v. Silva CA4/2

Filed 11/8/21 P. v. Silva CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E069863
v. (Super. Ct. No. FVI1500835)
DOMENIC DELANO SILVA, Jr., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed in part, reversed in part with directions.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B.
Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
A jury convicted defendant and appellant, Domenic Delano Silva, Jr., of one count
1
of first degree murder (Pen. Code, § 187, subd. (a)) and found true the special allegation
that he personally and intentionally discharged a firearm, which resulted in the victim’s
death (§ 12022.53, subd. (d)). The trial court sentenced defendant to consecutive terms
of 25 years to life in prison for the murder and 25 years to life in prison for the special
allegation.
On appeal, defendant argues: (1) the trial court erred by admitting a rap video
featuring him; (2) the trial court erroneously allowed the prosecution to ask a police
detective about whether defendant was a gang member; (3) the trial court failed to give a
limiting instruction to the jury; (4) substantial evidence does not support his conviction;
(5) the trial court erroneously instructed the jury on eye witness credibility with
CALCRIM No. 315; (6) these errors cumulatively require reversal; and (7) his trial
counsel was ineffective. Defendant also argues the matter must be remanded for various
sentencing issues.
In a previous opinion, we affirmed defendant’s convictions but remanded the
matter for resentencing. In doing so, we held that the trial court did not err by instructing
the jury with CALCRIM No. 315. After that opinion was filed, our Supreme Court
granted review and deferred the matter pending its decision in People v. Lemcke (2021)
1
Unless otherwise indicated, all statutory references are to the Penal Code.
2
11 Cal.5th 644 (Lemcke), which “acknowledged the current version of [CALCRIM No.
315] might confuse jurors about the relationship between confidence and accuracy” of an
identification. (Id. at p. 666.) The court then transferred the matter back to this court
with directions to vacate our initial opinion and reconsider the cause in light of Lemcke.
After considering supplemental briefs on Lemcke from the parties, we conclude
CALCRIM No. 315 did not violate defendant’s state or federal due process rights and did
not prejudice him.
The People agree with defendant that a remand is appropriate as to the
resentencing matters, as do we. We thus reverse defendant’s sentence and remand for
resentencing. We agree the trial court erred by admitting the rap video, but conclude the
error was harmless. We reject defendant’s remaining contentions, and otherwise affirm
the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2014, police responded to a reported burglary at defendant’s residence.
Defendant reported that when he had returned home the night before, he noticed his
PlayStation and about $1,000 in cash were missing. Defendant gave the officers the
PlayStation’s serial number, and did not contact the police again.
About seven months later, Emmitt Burns was shot and killed. The backpack he
was wearing contained a PlayStation. Its serial number matched the serial number of
defendant’s missing PlayStation.
3
About 10 minutes after police were dispatched to respond to the shooting,
defendant was pulled over by a California Highway Patrol (CHP) officer for speeding
about a mile away from where Burns was shot. Defendant was alone and told the officer
he was heading to pick up his girlfriend, who was getting off of work.
The morning after the shooting, Detective Sergeant Andrew Espinoza interviewed
M.F., who lived on the second floor of a building near the crime scene. M.F. told
Detective Espinoza that she was standing on her balcony, which “provided a clear view”
of the crime scene, when she heard several shots. She called 911 and then went
downstairs, where she found Burns lying in the street. Detective Espinoza noted the
vantage point from M.F.’s balcony and asked her if she looked at the area where the shots
came from. M.F. hesitated and said, “I went inside to check on my son.”
During her interview, M.F. “was looking around at everybody in the area.”
Detective Espinoza asked her again whether she looked at the area where the shots came
from after they were fired, but she appeared to be “more concerned about who was
walking around” the crime scene investigation. Detective Espinoza thought M.F. “was
holding back information” and that “she had possibly seen something regarding th[e]
shooting,” so he stopped questioning her and assigned detectives to come back and talk
with her later.
On the same day while investigating an unrelated matter, Detective Espinoza
encountered defendant. When defendant was near the investigating officers, he looked
up and saw them, but stopped in the middle of the street and stared at them, so Detective
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Espinoza approached him. They recognized each other from previous contacts.
Defendant reminded Detective Espinoza of his name, and they briefly engaged in small
talk.
Detective Espinoza told defendant that he was investigating “‘the incident that
happened last night,’” and asked defendant if he had heard about it. Defendant did not
respond, but instead stared off without making eye contact. After about five seconds of
silence, Detective Espinoza again asked defendant whether he knew anything about the
shooting, and defendant responded by saying, “‘I know it’s gang related.’” Detective
Espinoza was not surprised to learn that the shooting was gang-related because he knew
Burns associated with a gang, but he was surprised that defendant acknowledged
knowing about the incident. When asked how he knew the shooting was gang-related,
defendant did not answer and again stared off without making eye contact. Defendant
then said something along the lines of, “‘I knew Emmitt Burns. We used to play
basketball when we were kids.’” Detective Espinoza again asked defendant how he knew
the shooting was gang-related, but they were distracted by the sound of a car’s door
slamming shut and additional officers arriving. Defendant then said he had to go pick up
a family member and left the scene of the incident.
The next day, Detective Reyes went back to M.F.’s apartment and conducted an
audiotaped interview. When Detective Reyes told M.F. that he was investigating Burns’s
murder, M.F. began crying and said she witnessed the entire incident while standing on
her balcony. M.F. said she was on her balcony smoking a cigarette with her friend when
5
she saw Burns walking in the street. She had never met him, but she was an acquaintance
of his sister. A silver Honda with tinted windows drove past Burns and pulled into
M.F.’s apartment complex parking lot “really fast.” The passenger exited the car,
approached Burns, and started shooting at him repeatedly without saying anything. M.F.
described the shooter as a light-skinned Hispanic male, average build, with a short faded
haircut, and about 22 years old. He was wearing a big, mostly blue Letterman-style
jacket with red and white stripes, and blue, faded washed or blue with white style jeans.
She had never seen him before, but thought she would be able to identify him if she saw
him again.
The next day, the police conducted a videotaped interview of M.F. Detective
Reyes went over M.F.’s statement in more detail because he did not think she was
comfortable talking about the incident the day before. M.F. confirmed what she had
previously told Detective Reyes, and added additional details, including that the shooter
was “probably” wearing black “Jordan” shoes, and that she thought the gun was a 9-
millimeter.
M.F. then met with a sketch artist, who asked her several questions about the
shooter’s appearance. According to Detective Espinoza, the description of the shooter
M.F. provided matched defendant’s appearance from Detective Espinoza’s encounter
with him the day before. Upon seeing the completed sketch, M.F. began crying and said
it looked like the man who shot Burns.
6
A few days later, M.F. was shown a live lineup and two six-pack photographic
lineups. M.F. confirmed that the person in the live lineup was not the shooter.
Defendant’s photograph was in the first six-pack, but M.F. said that someone else looked
like the shooter. She did not select any photographs from the second six-pack, which did
not have a photograph of defendant. She later informed the police that the photograph
she had selected in the first six-pack was not the shooter.
About a week later, M.F. met with Detective Reyes again. M.F. informed
Detective Reyes that Burns’s brother had contacted her on Facebook and sent her
photographs of several people, including defendant, and that she recognized defendant as
the shooter. Burns’s brother had given the police a picture of defendant, which Detective
Reyes showed M.F. Upon seeing the photograph, M.F. said that it was the person who
shot Burns. Detective Reyes asked M.F. about the person she had previously identified
in the first six-pack lineup. M.F. confirmed that that individual was not the shooter and
that “there was no doubt in her mind” that defendant was the shooter.
Two weeks after Burns’s murder, Detectives Leo Griego and Reyes spoke to
defendant at his home, which is near where Burns was shot. Defendant confirmed that he
owned a Honda Accord. When asked where he was on the night of the murder, he said
he was at home with his girlfriend. He said he did not hear the shooting and did not
know anything about it other than seeing police arriving. Defendant then
“spontaneously” told the detectives that he had received a speeding ticket on the night of
Burns’s murder. He stated that he was picking up cough syrup for his grandmother and
7
that he had lied to the officer who pulled him over that he was picking up his girlfriend
from work.
When asked about his PlayStation, defendant said that he knew that R.C. had
stolen it. He said he was not mad about it anymore because R.C.’s brother paid him back
for it. However, R.C. and his brother denied knowing anything about defendant’s
PlayStation or paying him any money for it.
C.L. owned the same gun as defendant and fixed defendant’s gun when it had a
problem. About two months later, C.L. and defendant went shooting together near
Hodge Road. C.L. took Detective Reyes and a crime scene technician to the location
where he went shooting with defendant. C.L. directed them to where defendant was
shooting, and they recovered about 200 casings. All of the casings were the same, and
had the same color and “headstamp” as the seven casings recovered at the scene of
Burns’s murder. All but one of the casings had been fired from a 9-millimeter. About
nine or 10 guns were represented within the remaining casings, seven of which were
matched to C.L.’s Hi-Point.
The seven casings found at the crime scene were determined to have been shot
from the same weapon, and were consistent with having been fired from a Hi-Point .9-
millimeter handgun. C.L.’s Hi-Point was ruled out. Thirteen of the casings found at the
Hodge Road location were matched with the seven casings at the crime scene, and all of
these casings were determined to have been fired from the same gun.
8
Shortly afterward, police executed a search warrant of defendant’s residence.
They found a pair of Jordans with black laces that appeared to be brand new, a
Letterman-style jacket, and a pair of faded blue jeans. The police did not find any
firearms in defendant’s residence, nor did they ever find the murder weapon.
III.
DISCUSSION
A. The Trial Court Did Not Prejudicially Err By Admitting the “No Way” Rap
Video
Defendant contends his conviction must be reversed because the trial court
erroneously admitted his rap video into evidence. We conclude the trial court erred by
admitting the video, but find that any resulting error was harmless.
1. Additional background
The People filed a motion in limine seeking to admit into evidence a rap music
video. The video is for a song titled “No Way” by “Chop Gang,” lasts just under three
minutes long, and features defendant (aka Nikko Real 1) and Tracy Venable (aka Trocc)
rapping. In the video, defendant can be seen wearing a blue jersey and a blue hat.
Defendant also throws up hand signs and holds a gun at one point. Part of defendant’s
rap is as follows:
“Self-made ni--a from the desert and we dirty.
“Got some warriors that will shoot a ni--a,
“Stephen Curry.
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“Police on my ass,
“Got a ni--a nervous.
“We on a mission, seven deep up in this ‘Burban.
“Robbery and homicide is all that we knowin. . . .”
“I am the Connect, you can go check the wifi.
“Then have respect, in this status since Jr. High.
“With my ni--a Trocc and you know we got the burner,
“Let that bitch sing, shells hot like a furnace.
“With my ni--a Trocc and you know we got the burner,
“We some Westside Ni—as
“[L]ose your feelings because we will hurt em.”
Defendant argued that, aside from the portion of the video showing him
touching a gun, the video was not relevant and otherwise inadmissible under
Evidence Code section 352. The People, on the other hand, argued it was relevant
and admissible to show defendant’s motive and intent. The trial court agreed,
finding that the video was “highly relevant” as to defendant’s intent and motive
and was not unduly prejudicial. The trial court noted, however, that its ruling on
the motion in limine was subject to change during trial.
The parties revisited the issue of the video’s admissibility at trial. Defense
counsel argued it was “pure disposition evidence” unrelated to defendant’s motive
or intent. Counsel also argued that the People could show the jury screenshots
10
from the video showing defendant touching the gun instead of showing the jury
the entire video. The People argued the video was relevant because (1) the gun
defendant touches in the video was the gun he used to shoot Burns, (2) defendant
told an investigating officer that he raps about his real life with Chop Gang, and
(3) the video would help establish defendant’s motive and intent in that it would
show that, as a gang member, it was important for defendant to take retaliatory
action when disrespected, and defendant felt disrespect by Burns’s stealing his
PlayStation. The People also argued the video was relevant to contradict
defendant’s statements to the police that he rapped by himself and did not own a
gun.
The trial court ruled that the video was admissible. The court reasoned that
it was “powerful” in contradicting defendant’s statements to the police that he was
a solo rapper and did not own a gun. The court also concluded that the video was
relevant to show defendant’s intent and motive and was not unduly prejudicial.
After the jury saw the video and the parties were discussing jury
instructions, defendant reiterated his objection to the video. The People again
argued that the video was relevant to defendant’s motive because it showed that
gang members, such as defendant, violently retaliate when disrespected. The trial
court explained that it had “strongly consider[ed]” defendant’s objection, but
continued to believe that the video was admissible.
2. Applicable Law and Standard of Review
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“Under Evidence Code section 352, the probative value of the proffered evidence
must not be substantially outweighed by the probability that its admission would create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(People v. Cole (2004) 33 Cal.4th 1158, 1195.) Evidence “adverse to a defendant’s case
does not render it prejudicial within the meaning of [Evidence Code] section 352.
[Citation.] In applying this statute we evaluate the ‘risk of “undue” prejudice, that is,
“‘evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues,’” not the prejudice “that
naturally flows from relevant, highly probative evidence.”’ [Citations.]” (People v.
Albarran (2007) 149 Cal.App.4th 214, 223.)
Because the decision to admit or exclude evidence under Evidence Code section
352 is committed to the trial court’s discretion, we will not disturb a trial court’s exercise
of that discretion “‘“except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.” [Citations.]’” (Uspenskaya v. Meline (2015) 241 Cal.App.4th 996, 1000-1001.)
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3. Analysis
At the outset, we reject defendant’s suggestion that the No Way video was
inadmissible because there were no gang allegations and there was insufficient evidence
that Chop Gang is a criminal street gang, not just a rap group. Detective Griego
unequivocally testified that “Chop Gang is a criminal street gang.” And as our Supreme
Court has held, gang evidence may be relevant even in the absence of a gang allegation.
(People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
That said, in cases without any gang allegations, “evidence of gang membership is
potentially prejudicial and should not be admitted if its probative value is minimal.”
(People v. Hernandez, supra, 33 Cal.4th at p. 1049.) “Gang evidence is admissible if it is
logically relevant to some material issue in the case other than character evidence, is not
more prejudicial than probative, and is not cumulative. [Citations.] . . . [¶] However,
gang evidence is inadmissible if introduced only to ‘show a defendant’s criminal
disposition or bad character as a means of creating an inference the defendant committed
the charged offense. [Citations.]’ [Citations.] Even if gang evidence is relevant, it may
have a highly inflammatory impact on the jury. Thus, ‘trial courts should carefully
scrutinize such evidence before admitting it. [Citation.]’” (People v. Avitia (2005) 127
Cal.App.4th 185, 192.)
There is limited authority about the admissibility of rap videos and rap lyrics.
(See People v. Coneal (2019) 41 Cal.App.5th 951, 964 (Coneal) [“Two published
California cases have considered the admissibility of rap lyrics.”].) The parties have
13
cited only two published cases, People v. Olguin (1994) 31 Cal.App.4th 1355 and People
v. Zepeda (2008) 167 Cal.App.4th 25, and a third, Coneal, was published after the People
submitted their respondent’s brief and shortly before defendant’s reply brief was due.
In People v. Olguin, supra, 31 Cal.App.4th 1355, “gang graffiti written by one of
the defendants was crossed out and replaced with another gang’s logo. [Citation.] When
the two defendants went looking for the culprit, the victim yelled out the name of the
other gang; one of the defendants punched him and the other shot him. [Citation.] On
appeal, the defendants challenged the admission of written rap lyrics found in a search of
one of their homes. [Citation.] After concluding the lyrics were ‘adequately
authenticated as the work of’ this defendant, the Court of Appeal found the admission
proper: ‘they demonstrated his membership in [his gang], his loyalty to it, his familiarity
with gang culture, and, inferentially, his motive and intent on the day of the killing.’
[Citation.] Because the ‘crime [was] alleged to be gang related[,] [g]ang membership
was obviously important, and evidence tending to show it was highly relevant.’
[Citation.] Although the lyrics contained ‘general threats of violence,’ ‘[t]he mere fact
the lyrics might be interpreted as reflective of a generally violent attitude could not be
said “substantially” to outweigh their considerable probative value.’ [Citation.]”
(Coneal, supra, 41 Cal.App.5th at pp. 964-965.)
In People v. Zepeda, supra, 167 Cal.App.4th 25, “the defendant shot a rival gang
member and his son. [Citation.] At trial, the jury heard two tracks from a gangster rap
CD that the defendant had written. [Citation.] The Court of Appeal found no abuse of
14
discretion: ‘The evidence was probative of defendant’s state of mind and criminal intent,
as well as his membership in a criminal gang and his loyalty to it. The songs showed that
defendant’s gang had the motive and intent to kill [members of the rival gang]. . . . [¶]
While lyrics and poems do not often establish their author’s true state of mind [citation],
the gang expert here testified that gangs communicate through music. Defendant’s
communications here were not ambiguous or equivocal. These lyrics, coupled with the
other evidence of defendant’s gang membership and his animosity towards [members of
the rival gang], go beyond mere fiction to disclosing defendant’s state of mind, his
motives and intentions, and his fealty to furthering his criminal gang’s activities,’ and
‘provided noncumulative evidence of defendant’s state of mind and his gang association,
differing in context from his tattoos, drawings, notebooks, and pictures of himself
flashing gang signs.’ [Citation.] The court further found the tracks were not ‘unduly
prejudicial. . . . The language and substance of the lyrics, although graphic, did not rise
to the level of evoking an emotional bias against the defendant as an individual apart
from what the facts proved.’ [Citation.]” (Coneal, supra, 41 Cal.App.5th at p. 965.)
In Coneal, the appellate court held that the trial court erred by admitting rap
videos featuring the defendant rapping for two reasons. (Coneal, supra, 41 Cal.App.5th
at pp. 965-970.) First, the videos were cumulative of other evidence. (Id. at p. 966.) The
dozen-plus screenshots from the videos that the People showed the jury “completely or
largely captured” the probative value of the videos, which rendered the videos with
“minimal” evidentiary value. (Ibid.) Second, the videos’ lyrics—“the only new
15
‘information’ provided by the videos”—had “no probative value” and were “extremely
prejudicial.” (Id. at p. 968.) The lyrics described “graphic, widespread violence” that the
People argued should be taken literally because the lyrics were about actual crimes the
defendant and his gang committed or intended to commit. (Ibid.) The Coneal court held
the videos should not have been admitted because there was no evidence suggesting that
the lyrics depicted actual events the defendant or his gang “committed or intended to
commit.” (Id. at pp. 969-970.)
The Coneal court then held that the videos were unduly prejudicial. Even though
a detective, the defendant, and the defendant’s fellow gang member and rapper testified
“that not all lyrics describe actual events, the rap videos paint a picture of [the defendant]
and his fellow gang members as eagerly and ruthlessly seeking out and engaging in
violence, with no empathy for their victims.” (Coneal, supra, 41 Cal.App.5th at pp. 970-
971.) The Coneal court held that, even if “this picture is accurate, it poses a significant
danger that the jury will use it as evidence of [the defendant’s] violent character and
criminal propensity.” (Id. at p. 971.) The court reasoned that some of the reasons the
People proffered the video—to prove that defendant “‘embraced the gang lifestyle’” and
was a violent gang member—“skirt[ed] dangerously close to advocating the use of the
videos as evidence of [the defendant’s] violent character.” (Ibid.) Finally, the videos
contained misogynistic lyrics, which had “no probative value yet were highly
inflammatory.” (Ibid.) In sum, the Coneal court held the videos should not have been
admitted because their probative value was minimal given that they were cumulative of
16
other evidence and there was no “persuasive basis to construe specific lyrics literally.”
(Id. at p. 972.)
Under Coneal, we conclude the trial court abused its discretion by admitting the
No Way video in its entirety. The People correctly argued the video was admissible to
2
contradict defendant’s statement that he did not own a gun. But this could have been
accomplished by admitting the video without sound and, as defense counsel suggested,
by showing the jury screenshots of the video where defendant touches a gun. Similarly,
to the extent the People wanted to admit the video to show defendant’s undisputed
affiliation in Chop Gang, this also could have been accomplished through showing the
jury screenshots from the No Way video, playing the video without sound, or witness
testimony. The song’s lyrics were immaterial to that purpose. Moreover, the lyrics were
irrelevant to the undisputed evidence that defendant rapped with Chop Gang.
As the People explain in their respondent’s brief, the People sought to introduce
the No Way video for the additional reason of showing “the means and modus operandi
of the charged crime” by emphasizing the allegedly literal nature of the song’s lyrics.
The People argue that defendant “rapped about his real life,” including “lyrics espousing
murder and shooting guns, while demanding ‘respect’ for his ‘status.’” The People also
claim that defendant rapped about owning a “burner” (i.e., a firearm) and being familiar
2
The trial court also found the video was admissible to establish defendant lied to
police about only rapping alone. This finding was based on its understanding of the
evidence at the beginning of trial. However, Detective Reyes subsequently testified that
defendant told him he rapped by himself as well as with Chop Gang.
17
with “‘robbery and homicide,’” which “tended to show that he was an actual gun-toting
gang member.” In short, the People argued below—and argue again on appeal—that the
No Way lyrics should be taken literally, and that the lyrics show defendant is a member
of a violent gang.
We conclude the No Way video was improperly admitted for this purpose. As the
Coneal court explained, “[o]ur Supreme Court recently reiterated its advisement that
‘gang-related evidence “creates a risk the jury will improperly infer the defendant has a
criminal disposition” and that such evidence should therefore “be carefully scrutinized by
trial courts.”’ [Citation.] This caution applies with particular force to rap songs that
promote and glorify violence. Trial courts should carefully consider whether the
potential for prejudice posed by these songs outweighs their probative value. In
particular, where the rap lyrics are cumulative of other evidence, like screenshots, or
where the probative value rests on construing the lyrics literally without a persuasive
basis to do so, the probative value will often be ‘substantially outweighed by [the]
prejudicial effect.’ [Citation.]” (Coneal, supra, 41 Cal.App.5th at pp. 971-972.)
“This was such a case.” (Coneal, supra, 41 Cal.App.5th at p. 972.) The No Way
video was cumulative of other evidence insofar as it was admitted to show defendant’s
undisputed membership in Chop Gang. The lyrics had limited, if any, probative value
because there was no evidence that defendant wrote them or that they should be taken at
face value. Admitting the video in its entirety and allowing the People to argue its lyrics
reflect “everyday life experiences” and that they should be construed literally posed “a
18
significant danger” that the jury would impermissibly use the video as evidence of
defendant’s “violent character and criminal propensity.” (Id. at p. 971.) In the absence
of any persuasive reason to construe the No Way lyrics literally, we conclude the
admission of the video was an abuse of discretion under Evidence Code section 352.
(Coneal, supra, at p. 972.)
4. Harmless error
Even though we conclude the admission of the No Way video was error, any error
resulting from its admission was harmless. “[R]eversal is required only if it is reasonably
probable the defendant would have obtained a more favorable result had the evidence
3
been excluded.” (People v. Carrillo (2004) 119 Cal.App.4th 94, 103.)
Here, it is not reasonably probable that defendant would have obtained a more
favorable result had the No Way video been excluded because the evidence of his guilt
was overwhelming. First, defendant’s stolen PlayStation was found on Burns’s person
when he was killed, which suggested a motive for the shooting, particularly given that
Burns was affiliated with another gang. When asked about the PlayStation, defendant
said he was no longer upset about it because he knew that R.C. had stolen it, but R.C.’s
3
We reject defendant’s argument that the admission of the No Way video
amounted to a violation of his federal constitutional rights. “[T]he routine application of
provisions of the state Evidence Code law does not implicate a defendant’s constitutional
rights.” (People v. Jones (2013) 57 Cal.4th 899, 957.) “[O]nly evidentiary error
amounting to a complete preclusion of a defense violates a defendant’s federal
constitutional right to present a defense.” (People v. Bacon (2010) 50 Cal.4th 1082,
1104, fn. 4, italics added.)
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brother had paid him back. However, both R.C. and his brother denied knowing anything
about the PlayStation.
Second, defendant’s gun was forensically linked to the crime. Shell casings found
at the crime scene matched shell casings found where defendant and C.L. went shooting
together, which suggested that the casings at the crime scene came from defendant’s gun.
Third, defendant was pulled over about a mile from the crime scene shortly after
the shooting, and told the CHP officer that he was on his way to pick up his girlfriend.
But when the police later asked about his whereabouts on the night of the crime,
defendant said he was at home with his girlfriend and told the officers that he had lied to
the CHP officer that he was picking up his girlfriend, and that he was actually on his way
to pick up cough syrup for his grandmother. (See CALCRIM No. 362 [false or
inconsistent statements can be indicative of guilt].)
Fourth, M.F. witnessed Burns’s shooting and identified defendant as the shooter.
Her description of what the shooter was wearing matched clothing items found in
defendant’s room. She also testified that he drove up to Burns in a silver Honda, which
matched the description of defendant’s car.
In light of this evidence, it is not reasonably probable that defendant would have
received a more favorable outcome had the No Way video been excluded.
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B. The Trial Court Did Not Err By Allowing Detective Griego to Testify About
Whether Chop Gang Is a Criminal Street Gang
Defendant contends the trial court erroneously allowed Detective Griego to testify
about his opinion that Chop Gang is a criminal street gang. We disagree.
1. Additional background
Sergeant Cortinas testified as the People’s gang expert, and he briefly testified
generally about gangs and their culture. When asked whether he had heard of Chop
Gang, defense counsel objected, and the court held a sidebar. The trial court explained
that it would sustain an objection if Sergeant Cortinas were asked about whether Chop
Gang was a rap group, but indicated “if you want to have him testify that this is a gang,
that’s different.” After concluding the sidebar, the People then asked whether Sergeant
Cortinas had come into contact with Chop Gang members. Defense counsel objected, the
trial court sustained the objection, and Sergeant Cortinas was excused shortly thereafter.
Detective Griego testified later in the trial. While questioned by defense counsel,
he testified that he knew “several gang members” in the area and was familiar with the
“PGN” gang. He believed that Burns “was claiming PGN,” that is, that he was a PGN
gang member.
At a sidebar before the People cross-examined Detective Griego, defense counsel
argued the People should not be permitted to ask him whether Chop Gang is a criminal
street gang because the People had no evidence that it was. Noting that defense counsel
21
asked Detective Griego whether PGN was a gang, the trial court stated it would allow the
People to ask him whether Chop Gang was a criminal street gang.
On cross-examination, the following colloquy took place:
“[PROSECUTOR]: In addition you spoke about—on direct examination with
[defense counsel]—that you identified the gangs. I believe your wording was, the gangs
of the victim and the defendant; is that correct?
“[DETECTIVE GRIEGO]: That’s correct.
“[PROSECUTOR]: Is Chop Gang a gang?
“[DEFENSE COUNSEL]: Objection for the reasons previously
stated.
“[THE COURT]: Overruled for the reasons previously stated.
“[DETECTIVE GRIEGO]: In my opinion working in Barstow as a gang
investigator and major crimes investigator, I believe Chop Gang is a criminal street
gang.”
22
2. Analysis
Defendant argues the trial court erred by allowing the People to ask, and Detective
Griego to opine, about whether Chop Gang is a criminal street gang. We disagree.
At the outset, we reject the People’s argument that defendant forfeited the
argument by failing to object. During the sidebar before Detective Griego’s cross-
examination, defense counsel unequivocally stated that he objected to Detective Griego
testifying about whether Chop Gang is a criminal street gang because, in his view, the
People had no evidence that Chop Gang is such a gang. Although defense counsel did
not explicitly state that his objection was due to a lack of foundation, the substance of his
objection and the nature of the discussion counsel had with the trial court during the
sidebar makes it clear that he was lodging a foundation objection. When defense counsel
objected again “for the reasons previously stated,” the trial court overruled the objection
“for the reasons previously stated,” which indicates that the trial court understood the
basis for the objection and did not require any further input from the parties.
Accordingly, defendant did not forfeit his objection to Detective Griego’s testimony
about whether Chop Gang is a criminal street gang.
“Evidence of gang activity and affiliation is admissible where it is relevant to
issues of motive and intent,” and “[t]he admission of gang evidence over an Evidence
Code section 352 objection will not be disturbed on appeal unless the trial court’s
decision exceeds the bounds of reason.” (People v. Olguin, supra, 31 Cal.App.4th at p.
1369.) Here, Detective Griego’s testimony about Chop Gang being a criminal street gang
23
was relevant to show defendant’s motive and intent. There was testimony that (1) respect
is crucial to gang members, (2) gang members violently retaliate when they feel
disrespected, and (3) gang members believe they earn respect by violently retaliating
against those who have disrespected them. Whether Chop Gang was a gang, and thus
whether defendant was a gang member, was relevant to proving the People’s theory that
defendant retaliated against Burns for stealing his PlayStation and about $1,000. More
specifically, defendant’s gang membership was relevant to showing why, in the People’s
view, defendant responded so extremely—by killing Burns—over a stolen video game
console and relatively small sum of money. We therefore conclude the trial court did not
abuse its discretion in allowing Detective Griego to testify that Chop Gang is a criminal
street gang.
Regardless, even if the trial court erred by admitting Detective Griego’s testimony,
as outlined above, there was overwhelming evidence defendant murdered Burns.
Although evidence of defendant’s gang membership makes Burns’s murder make slightly
more sense, even in the absence of any such evidence, (1) an eye witness identified
defendant as the shooter, (2) defendant’s gun was linked to the murder weapon, (3) Burns
had defendant’s stolen laptop when he was shot, which suggested a motive for the
shooting, and (4) defendant gave conflicting statements about his whereabouts before,
during, and after the crime. We therefore conclude that any resulting error from the
admission of Detective Griego’s testimony was harmless.
24
Because we find Detective Griego’s testimony was properly admitted and not
prejudicial, we reject defendant’s argument that his trial counsel was ineffective for
failing to move to strike his testimony. We further conclude that trial counsel was not
ineffective for failing to do so because the motion would have been futile. The trial court
thoroughly considered the issue and twice disagreed with defendant’s objection to
Detective Griego’s testimony. It is highly unlikely that the trial court would have
changed its mind had trial counsel objected for a third time. “Counsel is not required to
proffer futile objections” to avoid an ineffective assistance of counsel claim. (People v.
Anderson (2001) 25 Cal.4th 543, 587.)
C. The Trial Court Did Not Err by Failing to Give a Limiting Instruction
Defendant contends the trial court erred by failing to sua sponte give the jury a
limiting instruction related to the limited purpose for which the jury could use gang
evidence. We need not address the merits of this argument because we agree with the
People that defendant forfeited the issue by failing to request a limiting instruction and by
failing to object to the jury instructions as given. As our Supreme Court has
unambiguously held, “a defendant who fails to ask the trial court to give a limiting
instruction may not raise the issue on appeal.” (People v. Valdez (2012) 55 Cal.4th 82,
149; accord, People v. Clark (2011) 52 Cal.4th 856, 942 [“Because defendant failed to
request a limiting instruction below, he has forfeited his claim that it was error for the
court not to so instruct.”].)
25
Defendant alternatively argues that his trial counsel was ineffective for failing to
request a limiting instruction. To prevail on an ineffective assistance of counsel (IAC)
claim, the defendant must show that (1) counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel’s
deficient performance was prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to the defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 694; accord, People v. Johnson
(2015) 60 Cal.4th 966, 979-980; see People v. Mbaabu (2013) 213 Cal.App.4th 1139,
1148.) A “‘“reasonable probability”’” is a probability sufficient to undermine confidence
in the outcome of the proceeding. (People v. Mbaabu, supra, at p. 1149; Strickland v.
Washington, supra, at p. 697.) The defendant bears the burden of demonstrating by a
preponderance of the evidence that defense counsel’s performance was deficient and it
resulted in prejudice. (People v. Centeno (2014) 60 Cal.4th 659, 674.) If we can
determine an IAC claim on the ground of lack of prejudice, we need not decide whether
defense counsel’s performance was deficient. (People v. Mbaabu, supra, at p. 1149;
Strickland v. Washington, supra, at p. 697.)
“[R]arely will an appellate record establish ineffective assistance of counsel.”
(People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on
counsel’s actions, the claim must be rejected unless no satisfactory explanation exists or
counsel was asked for an explanation and failed to provide one. (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266.) We will not find ineffective assistance of counsel
26
“unless there could be no conceivable reasonable for counsel’s acts or omissions.”
(People v. Weaver (2001) 26 Cal.4th 876, 926.)
As for not requesting a limiting instruction, defense counsel may have had a
legitimate tactical reason to do so. Defense counsel “may well not have desired the court
to emphasize the [gang-related] evidence.” (People v. Freeman (1994) 8 Cal.4th 450,
495.) Defense counsel may have reasonably concluded that asking for a limiting
instruction on the gang-related evidence would have drawn more attention on it, which
could have been harmful to defendant’s overall defense. (People v. Ferraez (2003) 112
Cal.App.4th 925, 934 [“[T]he decision not to request [a limiting instruction] was a
reasonable tactical choice by defense counsel to avoid directing the jury to focus on the
evidence that proved the gang-related charges.”].) Defense counsel therefore could have
reasonably “deemed it unwise to call further attention” to the gang-related evidence by
asking for a limiting instruction. (People v. Hinton (2006) 37 Cal.4th 839, 878.)
Accordingly, we conclude defense counsel was not ineffective for failing to request a
limiting instruction. Even if defense counsel was ineffective, defendant cannot show
prejudice because, as previously discussed, the evidence of defendant’s guilt was
overwhelming. We therefore conclude defendant’s IAC claim fails.
27
D. Substantial Evidence Supports Defendant’s Conviction
Defendant contends substantial evidence does not support his conviction. We
disagree.
To determine whether there is sufficient evidence to uphold a conviction, we
review the entire record to determine whether it discloses reasonable and credible
evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt.
(People v. Smith (2005) 37 Cal.4th 733, 738-739.) The conviction must be based on
substantial evidence—evidence that is reasonable, credible, and of solid value. (People v.
Cravens (2012) 53 Cal.4th 500, 508.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the [trier of fact’s] verdict.” (People v. Zamudio (2008)
43 Cal.4th 327, 357.)
Defendant’s principal argument is M.F.’s testimony was so unreliable and riddled
with inconsistencies and perjury that his conviction must be reversed. He devotes a
substantial portion of his opening brief outlining the alleged problems with M.F.’s
testimony. But whether M.F.’s testimony was credible and accurate was for the jury to
decide. (People v. Miranda (2016) 2 Cal.App.5th 829, 838.) Even if M.F.’s testimony
was as problematic as defendant suggests, the jury was free to assign whatever weight to
her testimony. (Ibid.)
As an eye witness, M.F.’s testimony alone provided substantial evidence to
support defendant’s conviction. (Evid. Code, § 411 [“the direct evidence of one witness
28
who is entitled to full credit is sufficient for proof of any fact”]; People v. Young (2005)
34 Cal.4th 1149, 1181 [testimony of one witness can be sufficient to sustain a
conviction].) Regardless, as outlined in more detail above, there was additional evidence
beyond M.F.’s testimony. There was evidence that Burns stole defendant’s PlayStation,
which provided a motive, particularly in light of his and defendant’s gang membership.
When asked about the PlayStation, defendant said R.C. stole it and his brother had
resolved the dispute, which both R.C. and his brother denied. Defendant gave conflicting
statements about his whereabouts at the time before, during, and shortly after the
shooting. Finally, there was forensic evidence suggesting that defendant’s gun was the
murder weapon. All of this evidence was more than sufficient for a rational jury to
conclude beyond a reasonable doubt that defendant murdered Burns.
E. The Trial Court Did Not Improperly Instruct the Jury With CALCRIM No. 315
The trial court instructed the jury with CALCRIM No. 315, which directed the
jury to consider a number of questions to evaluate an eye witness’s testimony, including
“[h]ow certain was the witness when he or she made an identification?” Defendant
contends this particular question violated his federal and state constitutional due process
rights because it erroneously allows juries to equate an eye witness’s certainty with the
witness’s accuracy.{AOB 131}
The People assert defendant forfeited the argument by failing to object to
CALCRIM No. 315 below. Even if defendant did not forfeit the argument, we reject it
on the merits because Lemcke confirms that the trial court’s instructing the jury with
29
CALCRIM No. 315 did not violate defendant’s state or federal constitutional due process
rights. In Lemcke, our Supreme Court rejected the defendant’s argument, which is
identical to the argument defendant advances here, that CALCRIM No. 315’s eye witness
“certainty instruction violated his federal and state due process rights to a fair trial.”
(Lemcke, supra, 11 Cal.5th at p. 646.) Although the Lemcke court noted problems with
the eye witness certainty instruction, the court held that the instruction “did not render
[the defendant’s] trial fundamentally unfair or otherwise amount to a due process
violation.” (Id. at p. 661.)
Given Lemcke’s holding, we conclude the trial court did not err by instructing the
jury with CALCRIM No. 315. There Was No Cumulative Error
Defendant asserts that even if the errors outlined above do not individually warrant
reversal, their cumulative effect does. “‘[A] series of trial errors, though independently
harmless, may in some circumstances rise by accretion to the level of reversible and
prejudicial error.’” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Here, we find
error only in the admission of the No Way video, but conclude it was harmless in light of
the overwhelming evidence of defendant’s guilt. Because there were no other errors,
much less a series of errors that warrants reversal, we reject defendant’s contention that
there was cumulative error. (People v. Reed (2018) 4 Cal.5th 989, 1018 [“Because we
have found but one error—which was harmless—there is no prejudice to cumulate.”].)
30
F. Senate Bill No. 620
Defendant contends, and the People agree, that the matter should be remanded to
allow the trial court to exercise its discretion under Senate Bill No. 620, which allows the
trial court to exercise discretion with respect to striking firearm enhancements. We
agree. Accordingly, we vacate the sentence and remand for resentencing.
On January 12, 2018, the trial court sentenced defendant to a term of 25 years to
life for the murder, plus a term of 25 years to life for the section 12022.53, subdivision
(d) firearm enhancement.
However, shortly before defendant’s sentencing, the Legislature enacted Senate
Bill No. 620, which became effective on January 1, 2018. (Sen. Bill No. 620 (2017-2018
Reg. Sess.).) This bill amended sections 12022.5 and 12022.53 to give trial courts
discretion, “in the interest of justice pursuant to [s]ection 1385,” to “strike or dismiss an
enhancement otherwise required to be imposed” by those statutes (former § 12022.5,
subd. (c), as amended by Stats. 2017, ch. 682, § 1, former § 12022.53, subd. (h), as
amended by Stats. 2017, ch. 682, § 2.) The discretion conferred by the statute “applies to
any resentencing that may occur pursuant to any other law.” (§ 12022.5, subd. (c).)
When sentencing defendant, however, the trial court believed it lacked the
authority to strike the firearm enhancement. The trial court explained that there was
“really no discretion” for the court to exercise when sentencing defendant.
31
“Defendants are entitled to sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that ‘informed discretion’ than
one whose sentence is or may have been based on misinformation regarding a material
aspect of a defendant’s record. [Citation.]” (People v. Belmontes (1983) 34 Cal.3d 335,
348, fn. 8.) Accordingly, when a trial court proceeds “with sentencing on the erroneous
assumption it lacked discretion, remand is necessary so that the trial court may have the
4
opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People
v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
Because the trial court was not aware of its discretion under Senate Bill No. 620 to
strike defendant’s firearm enhancement at the time of sentencing, we vacate the sentence
and remand for resentencing.
G. Fines and fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant
argues the trial court unconstitutionally imposed various fines and fees without
considering his ability to pay them. He further argues that this case should be remanded
so that defendant may request a hearing on his ability to pay the fines and fees. The
People do not oppose defendant’s request.
4
An exception to this rule, not applicable here, is when the record conclusively
establishes that the trial court would not have exercised its discretion even if the court
were aware of its discretion. (People v. Leon (2016) 243 Cal.App.4th 1003, 1026.)
32
We need not address defendant’s Dueñas challenge because this case is being
remanded for resentencing. On remand, defendant may request a hearing on his ability to
pay any fines or fees. (People v. Castellano (2019) 33 Cal.App.5th 485, 490-491
[affirming conviction and remanding for hearing on defendant’s Dueñas challenge and
ability to pay fines and fees].)
H. Youth Offender Parole Hearing
Defendant argues that this matter be remanded so defendant can make a record
relevant to his future youth offender parole hearing. The People do not oppose
defendant’s request. We agree with the parties that defendant is entitled to this limited
remand.
“The Legislature ‘enacted sections 3051, 3046, subdivision (c), and 4801,
subdivision (c), to provide a parole eligibility mechanism for juvenile offenders.’
[Citation.] The Legislature intended ‘to create a process by which growth and maturity
of youthful offenders [could] be assessed and a meaningful opportunity for release
established.’ [Citation.] With some exceptions not applicable here, the Board of Parole
Hearings is required to conduct youth offender parole hearings for qualifying offenders
during their 15th, 20th, or 25th year of incarceration, depending on the sentence for their
‘controlling offense.’ [Citations.] The controlling offense is the offense or enhancement
for which the court imposed the longest term of imprisonment. [Citation.] Offenders
who receive a sentence of 25 years to life for their controlling offense are entitled to a
youth offender parole hearing during their 25th year of incarceration. [Citation.] As
33
originally enacted in 2013, only persons under 18 at the time of their controlling offense
were entitled to a youth offender parole hearing. [Citation.] But as of January 1, 2016,
persons under 23 at the time of their controlling offense are entitled to a youth offender
parole hearing. [Citations.]” (People v. Costella (2017) 11 Cal.App.5th 1, 8.)
In People v. Franklin (2016) 63 Cal.4th 261 (Franklin), our Supreme Court
emphasized the importance of section 3051. The court explained that section 3051
requires the parole board to consider “youth-related factors, such as [the juvenile
offender’s] cognitive ability, character, and social and family background at the time of
[his] offense,” when making parole decisions. (Franklin, supra, at p. 269.) The court
also noted that section 3051 “provides that ‘[f]amily members, friends, school personnel,
faith leaders, and representatives from community-based organizations with knowledge
about the individual before the crime . . . may submit statements for review by the
board.’” (Id. at p. 283.) The Franklin court further noted that “[a]ssembling such
statements ‘about the individual before the crime’ is typically a task more easily done at
or near the time of the juvenile’s offense rather than decades later when memories have
faded, records may have been lost or destroyed, or family or community members may
have relocated or passed away.” (Id. at pp. 283-284.)
Defendant was 20 years old when he committed the offense, so he will be entitled
to a youth offender parole hearing during the twenty-fifth year of his sentence. Although
defendant’s sentencing occurred long after Franklin, supra, 63 Cal.4th 261, he argues he
was not afforded an adequate opportunity to make a record of information relevant to his
34
future youth offender parole hearing. The record does not indicate whether defendant
had a sufficient opportunity at sentencing to make such a record. As the People correctly
observe, “the record is devoid of evidence about [defendant’s] characteristics and
circumstances at the time of the offense that may be relevant to [defendant’s] future
parole hearing.” Further, the trial court denied defendant’s request for a sentencing
continuance, and there is no indication that defendant’s counsel ever requested to make a
record relevant to defendant’s future youth offender parole hearing. We therefore agree
with the parties that a limited remand is appropriate “to permit the parties the opportunity
to present evidence bearing on the factors discussed in Franklin.” (People v. Tran (2018)
20 Cal.App.5th 561, 570; accord, People v. Costella, supra, 11 Cal.App.4th at p. 9 [“[A]
limited remand is in order for the trial court to determine whether defendant had an
adequate opportunity to make a record of information relevant to his eventual youth
offender parole hearing, as required by Franklin.”].)
IV.
DISPOSITION
The judgment of conviction is affirmed. Defendant’s sentence is vacated. The
matter is remanded for the trial court (1) to exercise its discretion as to whether to strike
the firearm enhancement, (2) to allow defendant to request a hearing on his ability to pay
the fines and fees imposed by the trial court, and (3) to give defendant a sufficient
opportunity to make a record relevant to his future youth offender parole hearing. If the
35
trial court elects to reimpose fines, fees, or assessments, we urge the trial court to
consider Dueñas, supra, 30 Cal.App.5th 1157, when doing so.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
FIELDS
J.
36