People v. Gonzalez CA6

Filed 5/19/22 P. v. Gonzalez CA6
On rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046836
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 214496)
v.
JAMES GONZALEZ,
Defendant and Appellant.
A multi-agency police investigation into drug trafficking and other crimes
committed in Santa Clara County by Norteño criminal street gangs, operating under the
umbrella of the Nuestra Familia prison gang, led to the indictment of appellant James
Gonzalez and 23 others. A jury convicted Gonzalez of numerous crimes including street
terrorism, attempted murder, assault with a deadly weapon, dissuading a witness or
victim by force, robbery, burglary, criminal threats, conspiracy, possession of
methamphetamine for sale, and illegal possession of a firearm by a felon. The jury also
found true several sentence enhancements. The trial court sentenced Gonzalez to 14
years to life in prison, consecutive to 38 years.
On appeal, Gonzalez raises 16 claims of error. Stated broadly, he challenges the
sufficiency of the evidence for his robbery and conspiracy convictions, certain jury
instructions, evidentiary rulings, the failure to bifurcate trial on the gang sentence
enhancement allegations, and rulings on his motion for new trial, and his sentence.1
For the reasons explained below, we reverse the convictions for street terrorism
(count 1), criminal threats (count 11), and conspiracy (counts 12 & 13). We also reverse
the true findings on several of the gang enhancement allegations (counts 5–11).
Accordingly, we vacate Gonzalez’s sentence in its entirety and remand the matter for
further proceedings.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In March 2015, the grand jury of Santa Clara County returned a 34-count
indictment charging appellant Gonzalez, codefendant Carlos Roman, and 22 other
individuals.2 In December 2017, the Santa Clara County District Attorney filed a third
amended indictment (hereafter indictment) against the same 24 people. That indictment
alleged 14 crimes against Gonzalez: Street terrorism (Pen. Code, § 186.22, subd. (a)3;
count 1), attempted murder (§§ 187, 664, subd. (a); count 5), assault with a deadly
weapon (§ 245, subd. (a)(1); count 6), dissuading a witness or victim by force or threat
(§ 136.1, subd. (c)(1); counts 7 & 8), robbery (§ 211; count 9), burglary (§ 460, subd. (a);
1
We originally filed an opinion in this case on April 19, 2022. Thereafter, on
May 9, 2022, we granted Gonzalez’s petition for rehearing, which sought rehearing to
address a claim (not raised in Gonzalez’s prior briefing) that under Penal Code section
1109, the failure to bifurcate the gang sentence enhancement allegations requires reversal
of his convictions. We provided the parties the opportunity to stand on their rehearing
briefs or submit supplemental briefing. Gonzalez submitted a supplemental letter brief.
The Attorney General asked us to treat his answer to the petition for rehearing as his brief
on the merits. Our grant of the petition for rehearing vacated our prior opinion, and this
opinion constitutes the opinion of this court in this matter. (See People v. Murphy (1980)
108 Cal.App.3d 475, 478.)
2
Gonzalez and Roman were ultimately tried together. Roman was convicted on
three counts, and this court has already decided Roman’s direct appeal. (See People v.
Roman (Mar. 10, 2021, H046210) [nonpub. opn.].)
3
Unspecified statutory references are to the Penal Code.
2
count 10), criminal threats (§ 422; count 11), conspiracy to sell methamphetamine (§ 182,
subd. (a)(1); Health & Saf. Code, § 11379, subd. (a); count 12), conspiracy to sell
marijuana (§ 182, subd. (a)(1); Health & Saf. Code, § 11360, subd. (a); count 13),
conspiracy to bring contraband into a custodial facility (§§ 182, subd. (a)(1), 4573; count
14), possession of methamphetamine for sale (Health & Saf. Code § 11378; count 15),
and illegal possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 16 & 17).
The indictment further alleged as to all counts except count 1, that Gonzalez’s
crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)); as
to counts 5 and 6, that Gonzalez personally inflicted great bodily injury (§§ 12022.7,
subd. (a), 1203, subd. (e)(3)); as to count 5, that Gonzalez personally used a deadly
weapon (§ 12022, subd. (b)(1)); as to counts 7, 8, and 10, that a principal was armed with
a firearm (§ 12022, subd. (a)(1)); as to count 9, that Gonzalez was a principal in the
charged crime and a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1));
as to counts 12 and 15, that the quantity of methamphetamine exceeded one kilogram
(Health & Saf. Code § 11370.4, subd. (b)); and as to count 15, that Gonzalez personally
was armed with a handgun (§ 12022, subd. (c)).
In January 2018, the jury found Gonzalez guilty as charged, including that the
robbery in count 9 was in the first degree. The jury also found all of the sentence
enhancement allegations true except for the firearm enhancement in count 9.
Following the jury’s verdict, Gonzalez, through new defense counsel, filed a
motion for new trial. Pursuant to the motion, the trial court found there was insufficient
evidence to support the guilty verdict on count 14 for conspiracy to bring contraband into
a custodial facility. The court thus vacated that conviction. The court also ordered the
first degree robbery conviction on count 9 reduced to second degree robbery, finding that
the jury should not have been permitted to convict Gonzalez on a degree of robbery that
had not been charged in the indictment.
3
In March 2019, the trial court sentenced Gonzalez to an aggregate determinate
sentence of 36 years. That sentence included the upper term of nine years for attempted
murder (count 5), and consecutive terms of one year and four months for first degree
burglary (count 10), eight months for criminal threats (count 11), one year for each
conspiracy (counts 12 & 13), and eight months for each firearm possession (counts 16 &
17). Pursuant to section 654, the court stayed the determinate terms imposed on count 1
(upper term of three years), count 6 (upper term of four years), and count 15 (middle term
of two years). The court also ordered that the three-year determinate term imposed on
count 9 run concurrently.
As for the sentence enhancement allegations, the trial court imposed consecutive
terms of one year for the gang enhancements attendant to counts 12, 13, 16, and 17;
consecutive terms of one year and eight months for the gang enhancements attendant to
counts 10 and 11; a consecutive term of four months for the arming enhancement
attendant to count 10; and, on count 5, consecutive terms of three years for the great
bodily injury enhancement, one year for the deadly weapon enhancement, and 10 years
for the gang enhancement.
Consecutive to the determinate sentence, the trial court imposed for counts 7 and 8
consecutive indeterminate terms of seven years to life (for a total of 14 years to life) plus
consecutive one-year terms (for a total of two years).
Gonzalez timely appealed.
B. Factual Overview
The evidence at trial generally concerned three subjects. One topic related to
Gonzalez’s involvement in drug dealing and other activity with Norteño gang members
between January 2013 and October 2014. Another concerned Gonzalez’s stabbing of
Curtis Garza in January 2013 over a drug debt Garza owed to Gonzalez. The third topic
related to a November 2013 home invasion committed by Gonzalez and two other gang
4
members to obtain a letter that indicated Gonzalez had been keeping drugs and money in
a safe at a friend’s home.
As described above, the prosecution of Gonzalez was part of a larger investigation
into gang activity in Santa Clara County. Detective Justin Harper was the lead
investigator in the case against Gonzalez and testified as an expert in “criminal street
gangs, the Nuestra Familia, controlled substance recognition, usable amounts of
controlled substances, and sales of controlled substances.” He testified that, while the
organizational structure of the Nuestra Familia (NF) prison gang has changed over the
years, everyone within the gang during the relevant time period for this case was
considered a Norteño regardless of rank. The highest-ranking NF members (“carnals”)
“put[] people in place out on the streets . . . to bring all the Norteño criminal street gangs
within [a] region [] under the NF umbrella.” Detective Harper used the descriptor
“Norteño criminal street gang interchangeably with the Nuestra Familia” because, under
“new [NF] directives,” “everybody’s a Norteño.”
The primary activities of the NF/Norteños included homicides, attempted murders,
kidnappings, extortion, assaults with deadly weapons, drug sales, robbery, burglary,
prostitution, and identity theft. Individual Norteño gangs in a given region were required
to pay a monthly tax of $200 or $250 to the regional “street regiment.” The street
regiment also imposed a 25 percent tax on all illegal activity within their region. The
money generated from all these taxes was placed in a “regiment bank” and “reinvest[ed]
[] into guns, into drugs, and other illegal endeavors to make a profit.” Ultimately, the
profits were “funnel[ed] [] back into the county jails and the state prison system,” to
support the carnals, along with “contraband, narcotics[, and] . . . cell phones, so that the
carnals could have open lines of communication out on the streets.” Detective Harper
testified that there were “probably more than 100 [Norteño street gangs] . . . within San
Jose,” all of which the NF sought to control. The San Jose gangs fell under the authority
5
of the NF street regiment assigned to Santa Clara County. Street regiments were “made
up of trusted members from multiple different Norte[ñ]o gangs.”
Detective Harper opined that Gonzalez was a Norteño gang member between
January 1, 2013, and October 30, 2014, based on Gonzalez’s prison records,
identification of Gonzalez as someone who worked under gang member Frank Cruz,
Gonzalez’s authorship of reports to NF leadership, that Gonzalez was tasked by the
regiment to oversee a street gang and eventually took on a leadership role in the regiment,
Gonzalez’s tattoos, and the clothing and gang-related paperwork found by police in
Gonzalez’s residence.
Gonzalez did not testify or present any witnesses to the jury. Roman, too, did not
testify at trial, but he did present some evidence related to him by way of a stipulation.
II. DISCUSSION
Gonzalez raises 16 claims of error. For ease of exposition, we have grouped the
issues primarily by the procedural phase of the trial to which they correspond.
A. Pre-trial Evidentiary Rulings
With respect to evidentiary error, Gonzalez contends the trial court erred by (1)
allowing evidence of Gonzalez’s attack on Arlindo Silva and (2) denying Gonzalez’s
request for a separate trial and choosing instead to redact portions of codefendant
Roman’s out-of-court statements to police.
1. Gonzalez’s Attack on Arlindo Silva
The district attorney presented evidence that in December 2015, pending trial,
Gonzalez beat fellow gang member Arlindo Silva with waist-chain restraints while the
two were in a courthouse holding cell. Gonzalez objected to this uncharged-misconduct
evidence under Evidence Code section 352.4
4
Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
6
On appeal, Gonzalez contends the trial court abused its discretion and violated his
due process rights by allowing evidence about this attack. Gonzalez asserts that the
probative value of the evidence was substantially outweighed by the danger of undue
prejudice and rendered his trial fundamentally unfair. He argues the probative value was
“severely limited” because “the incident occurred so long after the dates of the charged
offenses” and the evidence was cumulative. He further maintains that the attack on Silva
was “particularly prejudicial” because “it was the same crime (assault with a deadly
weapon)” for which he was charged in count 6 (involving Curtis Garza).
a. Legal Principles
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Evidence of
crimes or misconduct committed after the charged crimes may be relevant. (See People
v. Balcom (1994) 7 Cal.4th 414, 425–426.) “ ‘ “The test of relevance is whether the
evidence tends ‘logically, naturally, and by reasonable inference’ to establish material
facts such as identity, intent, or motive.” ’ ” (People v. Jones (2013) 57 Cal.4th 899, 947
(Jones); see also Evid. Code, §§ 210, 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th
380, 404 (Ewoldt).)
“A trial court has ‘considerable discretion’ in determining the relevance of
evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code
section 352 to exclude even relevant evidence if it determines the probative value of the
evidence is substantially outweighed by its possible prejudicial effects.” (People v.
Merriman (2014) 60 Cal.4th 1, 74 (Merriman).)
Evidence Code section 352 “ ‘requires the exclusion of evidence only when its
probative value is substantially outweighed by its prejudicial effect. “Evidence is
substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code,
§ 352.)
7
an intolerable ‘risk to the fairness of the proceedings or the reliability of the
outcome.’ ” ’ ” (Jones, supra, 57 Cal.4th at p. 948.) “ ‘The admission of relevant
evidence will not offend due process unless the evidence is so prejudicial as to render the
defendant’s trial fundamentally unfair.’ ” (Id. at p. 949.)
“An appellate court reviews a court’s rulings regarding relevancy and
admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We
will not reverse a court’s ruling on such matters unless it is shown ‘ “the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.” ’ ” (Merriman, supra, 60 Cal.4th at p. 74.)
b. Analysis
We are not persuaded that the trial court erred by admitting evidence of
Gonzalez’s attack on Silva. Gonzalez believed Silva was a “snitch” and Gonzalez tried
to get “charges brought” within the NF against Silva. The attack was relevant to show
Gonzalez’s prolonged and enduring membership and active participation in the
NF/Norteño gang, his intent to benefit the gang by his criminal conduct, and his loyalty
to the gang. That the attack occurred around 13 months after the last date alleged in the
indictment (i.e., October 30, 2014) does not significantly reduce the attack’s probative
value. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1388; see also Ewoldt,
supra, 7 Cal.4th at p. 405.) The attack also was not cumulative because it was relevant to
issues that otherwise were disputed by Gonzalez at trial. (See id. at p. 406.)
Furthermore, the evidence was not unduly prejudicial because the testimony about
the attack was relatively brief and not particularly graphic or detailed. Thus, the evidence
was not of such a nature that it would inflame the emotions of the jurors or mislead them
from their task of deciding whether the district attorney proved Gonzalez’s guilt of the
charged crimes. (See People v. Cowan (2010) 50 Cal.4th 401, 475; People v. Bolin
(1998) 18 Cal.4th 297, 320.) Moreover, although there is an inherent risk of prejudice
with evidence of uncharged misconduct (see Ewoldt, supra, 7 Cal.4th at p. 404), the
8
probative value of the evidence here is significant and the trial court instructed the jurors
not to conclude from the “evidence of gang activity” that “the defendant is a person of
bad character or that he has a disposition to commit crime.” We presume that the jurors
followed the court’s limiting instruction. (People v. Case (2018) 5 Cal.5th 1, 32.)
Likewise, there was no violation of Gonzalez’s constitutional rights to due
process. The admission here of probative evidence was both appropriate and
unexceptional, and it did not render Gonzalez’s trial fundamentally unfair. (See Jones,
supra, 57 Cal.4th at p. 949; see also People v. Lindberg (2008) 45 Cal.4th 1, 26; Jammal
v. Van de Kamp (9th Cir.1991) 926 F.2d 918, 920.)
For these reasons, we conclude the trial court did not abuse its discretion in
admitting the evidence of Gonzalez’s attack on Silva; we also decide no constitutional
violation occurred.
2. Codefendant Roman’s Out-of-Court Statement to Police
Gonzalez contends the trial court erred and prejudicially violated his right to
confrontation when it denied his request for a separate trial and chose instead to
insufficiently redact and admit into evidence portions of Roman’s out-of-court statements
to police.
a. Background
Gonzalez moved in the trial court for a severance and separate trial from
codefendant Roman based on the district attorney’s intent to admit Roman’s out-of-court
statements to police. Gonzalez maintained that a joint trial would deprive him of his
constitutional rights to confront witnesses and to due process under Bruton v. United
States (1968) 391 U.S. 123 (Bruton) and also would violate principles set forth in section
1098 and People v. Aranda (1965) 63 Cal. 2d 518 (Aranda). Gonzalez argued that the
detailed statements Roman made to Detective Justin Harper (the lead investigator and
prosecution’s gang expert) inculpating Gonzalez could not be effectively redacted from
the interview given their nature and content. The district attorney opposed Gonzalez’s
9
motion, arguing, among other things, that Roman’s statements could be admitted with
appropriate redaction.
Pretrial, the trial court and parties reviewed Roman’s recorded interview line-by-
line, and the court order certain redactions and modifications to Roman’s statements.
The trial court then denied Gonzalez’s motion.5
Gonzalez highlights for this court certain statements that were admitted into
evidence. The pinpointed statements include Roman’s assertions (1) about getting
“dope” from an unidentified male gang member (whom Roman had referred to as “he”
during this portion of the interview), (2) that Roman found out a person (who is referred
to as “he,” pursuant to a redaction of Gonzalez’s gang moniker from the original
statement) was operating in the NF/Norteños regional street regiment after Roman started
dealing with him, and (3) that Roman had dealings with gang members Arlindo Silva,
Raymond Garcia, and Lorenzo Guzman.
Gonzalez also notes that Detective Harper testified—in accord with Roman’s
statements—that Roman had admitted to buying “dope from someone that could have
gotten him caught up in a gang case” and to buying methamphetamine from someone he
knew to be a member of a NF street regiment.
In its final instructions to the jury, the trial court instructed that the evidence of
Roman’s out-of-court statements could only be considered “against him, not against
defendant James Gonzalez.”
b. Legal Principles
“There is a statutory preference for joint trials of jointly charged defendants.
(§ 1098.) ‘ “The court may, in its discretion, order separate trials if, among other reasons,
there is an incriminating confession by one defendant that implicates a codefendant, or if
the defendants will present conflicting defenses. [Citations.] Additionally, severance
5
The trial court also denied Roman’s own motion for a separate trial.
10
may be called for when ‘there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.’ ” ’ ” (People v. Masters (2016) 62 Cal.4th 1019,
1048.)
Relatedly, the confrontation clause of the Sixth Amendment to the United States
Constitution provides that “ ‘[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him . . . .’ (U.S. Const., 6th Amend.)
As the United States Supreme Court recognized in Bruton . . . and as [our high court]
recognized in [Aranda], . . . admitting in a joint trial out-of-court statements made by a
nontestifying codefendant that incriminate the defendant poses a severe ‘hazard’ to the
defendant’s confrontation rights. [Citation.] For that reason, courts ‘cannot accept
limiting instructions as an adequate substitute for [the] constitutional right of cross-
examination.’ ”6 (People v. Mendez (2019) 7 Cal.5th 680, 700–701.)
“The United States Supreme Court ‘limited the scope of the Bruton rule in
Richardson v. Marsh (1987) 481 U.S. 200 [(Richardson)] . . . . The court explained that
Bruton recognized a narrow exception to the general rule that juries are presumed to
follow limiting instructions, and this narrow exception should not apply to confessions
that are not incriminating on their face, but become so only when linked with other
evidence introduced at trial. [Citation.] That is because, “[w]here the necessity of such
linkage is involved, it is a less valid generalization that the jury will not likely obey the
instruction to disregard the evidence.” ’ ” (People v. Homick (2012) 55 Cal.4th 816,
874.)
The parties agree that Roman’s statements to Detective Harper are “testimonial”
6
hearsay for the purposes of Gonzalez’s confrontation clause claim. We concur. (See
People v. Cortez (2016) 63 Cal.4th 101, 129; People v. Hopson (2017) 3 Cal.5th 424,
432.)
11
Whether editing a statement to retain references to a coparticipant in the crime but
remove references to the coparticipant’s name will “sufficiently protect[] a nondeclarant
defendant’s constitutional right of confrontation may not be resolved by a ‘bright line’
rule of either universal admission or universal exclusion. Rather, the efficacy of this
form of editing must be determined on a case-by-case basis in light of the other evidence
that has been or is likely to be presented at the trial. The editing will be deemed
insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors
could not avoid drawing the inference that the defendant was the coparticipant designated
in the confession by symbol or neutral pronoun.” (People v. Fletcher (1996) 13 Cal.4th
451, 456 (Fletcher).) “When, despite redaction, the statement obviously refers directly to
the defendant, and involves inferences that a jury ordinarily could make immediately,
even were the confession the very first item introduced at trial, the Bruton rule applies
and introduction of the statement at a joint trial violates the defendant’s rights under the
confrontation clause.” (People v. Burney (2009) 47 Cal.4th 203, 231 (Burney).) If a
codefendant’s confession cannot be edited to avoid a violation of the defendant’s
confrontation rights, “severance is required.” (Ibid.)
We review de novo a claim of entitlement to severance involving a trial court’s
decision to redact a nontestifying codefendant’s statement under the Aranda/Bruton
doctrine. (People v. Washington (2017) 15 Cal.App.5th 19, 26.)
c. Analysis
Gonzalez concedes that he was not mentioned by name in any of Roman’s
admitted, edited statements. Nevertheless, Gonzalez contends that Roman’s statements
referred to a regiment member selling drugs and Gonzalez was one of “just a handful of
individuals who actually were members of the regiment.” Gonzalez further asserts that
even if Roman’s statements were sufficiently redacted to avoid incriminating him directly
in the sale of drugs, “they nonetheless were incriminating because they still established
the existence of a NF regiment that was involved in a conspiracy to sell drugs.”
12
We are not persuaded by Gonzalez that the introduction of Roman’s edited
statements violated Gonzalez’s constitutional right to confrontation. The jury heard
evidence that the street regiment, over time, comprised multiple and different members
from various Norteño gangs. Roman’s edited statements did not obviously refer to or
implicate Gonzalez, and a reasonable juror could have concluded from the challenged
statements that Roman was referring to a person who was not Gonzalez but some other
member of the street regiment. Thus, Roman’s edited statements do not violate the
confrontation clause. (See Burney, supra, 47 Cal.4th at pp. 231–232; People v. Lewis
(2008) 43 Cal.4th 415, 467 (Lewis); Fletcher, supra, 13 Cal.4th at p. 466.)
Further, there is no merit to Gonzalez’s additional assertion that Roman’s admitted
statements violated Gonzalez’s right to confrontation because the statements incriminated
him generally with regard to the regiment’s conspiracy to sell drugs. Such general
statements do not implicate Gonzalez’s constitutional rights. “Ordinarily, a witness
whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a
defendant if the jury is instructed to consider that testimony only against a codefendant.”
(Richardson, supra, 481 U.S. at p. 206.) Bruton recognized a narrow exception to the
power of a limiting instruction when a nontestifying codefendant’s statements
“powerfully incriminate the defendant on their face because they directly implicate the
defendant by name or do so in a manner the jury could not reasonably be expected to
ignore.” (Lewis, supra, 43 Cal.4th at p. 506; see also Richardson, at p. 207; Gray v.
Maryland (1998) 523 U.S. 185, 195–196.)
Here, Roman’s statements about his dealings with other NF/Norteño gang
members did not place any incriminating focus on Gonzalez. Like the situation
addressed in Richardson—where the codefendant’s confession was not incriminating on
its face and became so only when linked with evidence introduced later at trial
(Richardson, supra, 481 U.S. at p. 208)—it is a “less valid generalization” that
Gonzalez’s jurors would have disobeyed the trial court’s instruction to disregard
13
Roman’s statements when determining Gonzalez’s guilt. (Ibid.) We thus conclude that
the challenged statements fall outside the ambit of the Aranda/Bruton exception and
Gonzalez’s assertion regarding incrimination in the drug conspiracy fails to demonstrate
a violation of the confrontation clause. (See People v. Hajek and Vo (2014) 58 Cal.4th
1144, 1177, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192,
1216 (Rangel); People v. Mitcham (1992) 1 Cal.4th 1027, 1047.)
For these reasons, we decide the trial court did not err in denying Gonzalez’s
motion for a severance and separate trial or by admitting Roman’s edited out-of-court
statements to police.
B. Jury Instructions
With respect to instructional error, Gonzalez contends (1) the trial court erred by
failing to instruct on whether there was a single conspiracy; (2) the trial court erred by
failing to instruct on the lesser included offense of attempted criminal threat; (3) the trial
court erred by failing to instruct on all of the elements for witness or victim dissuasion;
(4) the trial court erred by including felonies that did not qualify as felonious criminal
conduct in its instruction on street terrorism; and (5) the jury instructions for the gang
enhancements on counts 5–11 did not satisfy recent, retroactively applicable changes
made to section 186.22 by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill
333).
As described below, we agree that the trial court erred in the instructions identified
by Gonzalez on appeal. Nevertheless, we conclude only the errors in the instructions for
conspiracy (counts 12 and 13), criminal threats (count 11), and street terrorism (count 1)
require vacatur of Gonzalez’s convictions for those crimes. We further decide that the
district attorney is not barred from retrying those crimes. We also decide that the changes
made to section 186.22 by Assembly Bill 333 require reversal of the true findings on the
gang enhancement allegations attached to counts 5–11 and that the district attorney may
retry the allegations.
14
1. Conspiracy
At trial, Gonzalez did not request that the jury be instructed to decide the number
of conspiracies proven by the prosecution. However, on appeal, Gonzalez contends the
trial court erred by not sua sponte instructing the jury to decide whether, as a matter of
fact, there was a single conspiracy underlying counts 12 and 13. Alternatively, Gonzalez
asserts that his trial counsel provided constitutionally ineffective assistance of counsel by
failing to request an instruction on the number of conspiracies.
The Attorney General counters that the trial court did not have a sua sponte duty to
instruct on the number of conspiracies because “the question of whether multiple
conspiracies or a single conspiracy exists is not a factual one for the jury.” The Attorney
General argues further that Gonzalez forfeited his claim of error and has failed to
demonstrate any ineffective assistance of counsel. In addition, the Attorney General
concedes the following: “We do not assert [], on this record, that there was conclusive
evidence of either of a single, or multiple, conspiracies. [Citation.] Accordingly, should
this Court rule that the instruction was required, [this court’s decision in People v. Jasso
(2006) 142 Cal.App.4th 1213, 1223 (Jasso)] ruled that the proper remedy would be to
remand the case to the trial court for further proceedings.”
a. Procedural Background
In count 12, Gonzalez and 16 other people were charged with conspiring to sell
methamphetamine on or about and between January 1, 2013, and October 30, 2014. In
count 13, Gonzalez and four others—who also were charged in count 12—were accused
of conspiring to sell marijuana during the same period. Additionally, the four overt acts
alleged in each count were nearly identical, except that two of the four overt acts in each
count involved different but overlapping groups of people; two overt acts in each count
respectively specified the different drug relevant to that count (i.e., methamphetamine or
marijuana); and one overt act in each count respectively referenced “the sale of
methamphetamine” or “the sale of drugs.”
15
The prosecution presented evidence through numerous witnesses regarding the
structure and activities of the NF/Norteños during the relevant period. The witnesses
included Detective Harper and five witnesses who had been part of the NF/Norteños
before cooperating with law enforcement, Ulises Jimenez, Aaron Mendoza, Jacob
Dominguez, Joshua Morreira, and Albert Lee.7 The witnesses described the gang’s and
Gonzalez’s involvement in the sale of methamphetamine and marijuana.
The trial court gave the jury several instructions related to the conspiracy counts.
The instructions under CALCRIM No. 415 described each of the three conspiracies
charged in counts 12, 13, and 14 as separate conspiracies and separately instructed the
jury on the elements for each count. The court further provided instructions on the
underlying crimes of selling methamphetamine, selling marijuana, and bringing
contraband into a jail facility. In addition, the court instructed with CALCRIM No. 3515,
which told the jury that each of the counts charged is a separate crime. None of the
instructions gave the jurors the authority to decide that only one conspiracy existed.
b. Analysis
We turn first to the question whether the trial court had a sua sponte duty to
instruct on the number of conspiracies in this case. “ ‘[A] trial court in a criminal case is
required—with or without a request—to give correct jury instructions on the general
principles of law relevant to issues raised by the evidence.’ [Citation.] [¶] California
courts are divided on whether a trial court has a sua sponte duty to instruct the jury to
determine how many conspiracies were committed. [Citation.] Most decisions,
including the most recent cases, have held that the trial court has a duty to instruct the
jury to determine the number of conspiracies committed where there is evidence to
support alternative findings.” (People v. Kopp (2019) 38 Cal.App.5th 47, 84 (Kopp),
7
The five witnesses had pleaded guilty to criminal charges leveled against them.
They did not receive any promises from law enforcement on the outcome of their cases
but testified under a grant of immunity.
16
review granted on another issue Nov. 13, 2019, S257844; see People v. Meneses (2008)
165 Cal.App.4th 1648, 1668–1669 (Meneses); see also People v. Williams (2015) 61
Cal.4th 1244, 1270.) Those decisions include two by different panels of this court. (See
Jasso, supra, 142 Cal.App.4th at p. 1220; People v. Vargas (2001) 91 Cal.App.4th 506,
554 (Vargas).)
In Vargas, this court stated: “A trial court is required to instruct the jury to
determine whether a single or multiple conspiracies exist only when there is evidence to
support alternative findings.” (Vargas, supra, 91 Cal.App.4th at p. 554.) In Jasso, this
court explained further: “Specifically, an instruction is warranted where the evidence
could support a finding that there was one overall agreement among the various parties to
perform various functions in order to carry out the objectives of the conspiracy.” (Jasso,
supra, 142 Cal.App.4th at p. 1220.) The defendant in Jasso did not request an instruction
on the number of conspiracies at trial, and the Attorney General “d[id] not argue that the
court has no duty to give such an instruction.” (Ibid., fn. 5.)
In the present case, we are not persuaded by the Attorney General to reject the
reasoning of our colleagues in Vargas and Jasso on the duty to instruct in favor of an
earlier approach taken by other Courts of Appeal in People v. Liu (1996) 46 Cal.App.4th
1119, 1133, and People v. McLead (1990) 225 Cal.App.3d 906, 921 (McLead). We agree
with the Court of Appeal in Kopp “that the better reasoned decisions are those concluding
that the number of conspiracies is a question of fact and imposing a duty upon the trial
court to instruct the jury, sua sponte, to determine the number of conspiracies ‘where the
evidence supports alternative findings.’ ”8 (See Kopp, supra, 38 Cal.App.5th at p. 85,
review granted.)
8
We note that CALJIC contains an instruction titled “Conspiracy—Issue Whether
One or Several Conspiracies” (CALJIC No. 17.05). CALCRIM, however, does not
include a corresponding instruction. To aid our trial courts in dealing with this potential
issue, the Advisory Committee on Criminal Jury Instructions may wish to consider
adding an instruction like CALJIC No. 17.05 to CALCRIM.
17
Having concluded that the trial court had a sua sponte duty to instruct the jury to
determine the number of conspiracies if the evidence could support a finding of a single
conspiracy, we must next decide whether such evidentiary support exists in this case. As
noted above, the Attorney General concedes that there is support in this record for the
instruction Gonzalez proposes and the failure to instruct on the number of conspiracies
was prejudicial to Gonzalez. Based on our review of the record, we accept the Attorney
General’s concession and conclude the trial court prejudicially erred by failing to instruct
the jury to decide whether there was one or more conspiracies underlying counts 12 and
13.9
c. Remedy
In light of this conclusion that prejudicial error occurred and Gonzalez’s separate
claim that there was insufficient evidence to show the existence of more than one
conspiracy, we must ascertain whether there is sufficient evidence to support both
conspiracy convictions, such that the district attorney may have the option following
remand of retrying both conspiracy counts. (See Jasso, supra, 142 Cal.App.4th at
p. 1223.)
“A conspiracy consists of two or more persons conspiring to commit any crime.
(§ 182, subd. (a).) ‘A conviction of conspiracy requires proof that the defendant and
another person had the specific intent to agree or conspire to commit an offense, as well
as the specific intent to commit the elements of that offense, together with proof of the
commission of an overt act “by one or more of the parties to such agreement” in
furtherance of the conspiracy. [Citations.] [¶] Criminal conspiracy is an offense distinct
from the actual commission of a criminal offense that is the object of the conspiracy.’ ”
(People v. Joseph (2021) 63 Cal.App.5th 1058, 1065.) However, “[c]ommission of the
target offense in furtherance of the conspiracy satisfies the overt act requirement.”
9
Given our conclusion on the merits of Gonzalez’s claim, we need not address the
alternative issue of ineffective assistance of counsel.
18
(People v. Jurado (2006) 38 Cal.4th 72, 121.) Moreover, “[t]he act of one conspirator is
the act of all. Each is responsible for everything done by his coconspirators, including
those things that follow as the probable and natural consequence of the execution of the
conspiracy.” (People v. Zacarias (2007) 157 Cal.App.4th 652, 657.) “It is well-settled
that the essence of the crime of conspiracy is the agreement, and thus it is the number of
the agreements (not the number of the victims or number of statutes violated) that
determine the number of the conspiracies.” (Meneses, supra, 165 Cal.App.4th at
p. 1669.)
“ ‘Where two or more persons agree to commit a number of criminal acts, the test
of whether a single conspiracy has been formed is whether the acts “were tied together as
stages in the formation of a larger all-inclusive combination, all directed to achieving a
single unlawful end or result.” ’ [Citation.] ‘Relevant factors to consider in determining
this issue include whether the crimes involved the same motives, were to occur in the
same time and place and by the same means,’ and targeted a single or multiple victims.”
(Meneses, supra, 165 Cal.App.4th at p. 1672, quoting McLead, supra, 225 Cal.App.3d at
p. 920; ibid. [“[T]hese factors are not determinative, and we may consider other facts.”].)
“ ‘ “Performance of separate crimes or separate acts in furtherance of a conspiracy is not
inconsistent with a ‘single overall agreement.’ [Citation.] The general test also
comprehends the existence of subgroups or subagreements.” ’ ” (Kopp, supra, 38
Cal.App.5th at p. 84, review granted.)
We consider the question whether multiple conspiracies have been proved as an
issue of the sufficiency of the evidence. (See People v. Vega-Robles (2017) 9
Cal.App.5th 382, 419, disapproved of on other grounds by People v. Valencia (2021) 11
Cal.5th 818; see also United States v. Montgomery (9th Cir. 1998) 150 F.3d 983, 990.)
We review the entire record in the light most favorable to the verdict to determine
whether it contains substantial evidence supporting the conviction. (See People v. Powell
(2018) 5 Cal.5th 921, 944 (Powell).)
19
Gonzalez argues that the NF only had one objective in selling methamphetamine
and marijuana, i.e., “to generate revenue.” He acknowledges that “methamphetamine
appears to have been the main drug that made the most money for the NF” and
“[m]arijuana appears to have been a secondary drug,” but he contends “only one crime
was intended – the sale of drugs; the only difference being the type of drug.” In support
of his argument, Gonzalez points to the similarity of the overt acts alleged in the
indictment and statements made by Detective Harper in his testimony and the prosecutor
in his closing argument about the NF’s sale of drugs.10
We conclude there is sufficient evidence for a finding of more than one conspiracy
under counts 12 and 13. Generally speaking, drug dealers—be they gang members or
not—sell drugs because they want to make money. Hence, the fact that NF members had
the universal objective of generating revenue through drug sales does little to bolster
Gonzalez’s argument that there was a single conspiracy here. Mindful of the universality
of the goal of drug dealing, we examine the record for evidence about the way the NF
executed its operations to sell methamphetamine and marijuana. (See Meneses, supra,
165 Cal.App.4th at p. 1672.)
The evidence showed that the NF utilized different supply lines for their
methamphetamine and marijuana sales operations. The prosecution proved that Frank
10
In his briefing, Gonzalez emphasizes a four-factor test for deciding his claim,
which was mentioned by a different panel of this court in Vargas, supra, 91 Cal.App.4th
at p. 554. The four factors derive from United States v. Zemek (9th Cir.1980) 634 F.2d
1159. They are: “the nature of the scheme; the identity of the participants; the quality,
frequency and duration of each conspirator’s transactions; and the commonality of time
and goals.” (Id. at p. 1169.) In Vargas, this court applied the Zemek factors, upon
defendant’s suggestion, and ultimately rejected defendant’s claim of multiple
conspiracies. This court, however, noted that it had “not [been] pointed to any California
case adopting the Zemek factors, nor ha[d] our own research disclosed such a case.”
(Vargas, at p. 554.) The same is true currently. For this reason, we do not apply the
Zemek factors in this case. We instead rely on the relevant factors described in Meneses,
supra, 165 Cal.App.4th at p. 1672.
20
Cruz (one of the gang members charged in counts 12 and 13) had five live marijuana
plants growing outside his home and possessed 12 pounds of marijuana in his home when
it was searched on October 30, 2014. Similarly, Gonzalez told Albert Lee that he
(Gonzalez) had an outdoor grow operation and wanted Lee to sell some of that product.
By contrast, according to Ulises Jimenez, the methamphetamine sold by the street
regiment was not manufactured by the NF. Rather, the NF purchased their
methamphetamine from Mexican cartels and other suppliers. Thus, the NF’s sales
operations were not wholly dependent on each other and one operation could remain
successful despite a disruption in the other’s supply line. Furthermore, a few witnesses
testified about their own use of different drugs at different times, supporting the inference
that not all drug purchasers would buy both marijuana and methamphetamine. Thus,
there is evidence demonstrating a difference in the means by which the NF and its street
regiment procured the marijuana and methamphetamine they sold and a difference in
their target purchaser population. For these reasons, we conclude there is substantial
evidence to support two separate conspiracy convictions on counts 12 and 13.
As we have decided that there is sufficient evidence to support both conspiracy
convictions, but the evidence also could support a finding of a single conspiracy and thus
the trial court failed to properly instruct the jury on counts 12 and 13, we conclude “the
jury should have been directed to decide the factual issue that would have been posed by
the omitted instruction” regarding the number of conspiracies. (Jasso, supra, 142
Cal.App.4th at p. 1223.)
Given these determinations, Gonzalez contends that we should reverse one of the
two conspiracy convictions, namely, count 13 for conspiracy to sell marijuana. By
contrast, the Attorney General requests that we provide the district attorney the option to
either retry both counts or accept the jury’s verdict on one of the two counts. Adhering to
the approach of this court in Jasso, supra, 142 Cal.App.4th at page 1223, we agree with
21
the Attorney General and reverse the convictions on counts 12 and 13 and remand the
matter with directions.
On remand, the district attorney shall have the option to either retry counts 12 and
13 or accept the jury’s conviction and any true findings on attached allegations on one of
those two counts, after which the other count and its attached allegations shall be
dismissed.
In light of the vacatur of these convictions, we vacate Gonzalez’s sentence entirely
and direct the trial court to fully resentence Gonzalez upon the conclusion of any further
proceedings. (See People v. Navarro (2007) 40 Cal.4th 668, 681 (Navarro).)
2. Attempted Criminal Threat
The trial court instructed the jury under CALCRIM No. 1300 on the criminal
threat made to Vidal Santellano, charged in count 11. The jurors convicted Gonzalez on
that count, finding a violation of section 422. On appeal, Gonzalez contends the trial
court erred by failing to instruct the jury sua sponte on the lesser included offense of
attempted criminal threat.
Factual Background
Cecilia Lozano and Gonzalez were close friends who had known each other since
childhood. Gonzalez kept some things in a safe at Lozano’s house. Lozano was married
to but separated from Gabriel Zavala, who had been accused of molesting their children.
Lozano learned from her friend, Ida Santellano, that Santellano’s mother, Dorothy Ybarra
(who had a relationship with Gabriel Zavala), possessed a letter accusing Lozano of
storing Gonzalez’s property at her house. Ybarra had plans to turn the letter over to
Gabriel Zavala’s lawyer to besmirch Lozano and get Zavala “off the hook” on the
molestation case. Lozano told Gonzalez about the letter and said Gonzalez needed to get
his things from her house. Gonzalez then removed the safe from Lozano’s house. Both
Lozano and Gonzalez were worried about the letter, and Gonzalez said that he was going
to try to get it.
22
Ida Santellano’s husband, Vidal Santellano, testified that in November 2013 Ida
told him that Ybarra had gotten a letter about Lozano. Vidal Santellano was a former
gang member. He contacted Lozano because he was concerned about “the kids” and told
her that the letter would “most likely” be used against her. Later that night Vidal
Santellano received a phone call about the letter from Lozano and a man who identified
himself as Lozano’s cousin. It was a “serious conversation” and the man “was saying it
was important to get the letter back, pretty much.” Santellano testified that he “wasn’t, at
any time, threatened at all” during the phone call.
Dorothy Ybarra testified that she obtained the letter about Lozano sometime in
November 2013 and told Ida Santellano about it. Later that month, Ybarra’s daughter,
Crystal Martinez, told Ybarra that a couple of men had come to their home trying to get
the letter. Martinez, Damien Zavala, their child, and a neighbor girl were in the home at
the time the men entered. The men pushed the door in and chased Zavala into a
bedroom. The men asked for Ybarra and then for the letter; they told Martinez that they
were going to keep coming back until they got the letter. One of the men had a gun. On
their way out of the home, the men stole Martinez’s purse and a tablet computer (tablet).
Later, Ida Santellano told her husband Vidal about the home invasion, which he
thought was “very serious” and scared him. That night, Vidal Santellano obtained the
letter and took it to Lozano. Santellano admitted having told Detective Harper that he
was “ ‘scared shitless’ ” and testified that he was fearful for “[n]ot that long. It was more
of a shock type of thing to hear” about the home invasion. Santellano further testified
that he feared retaliation for testifying because he knew that gangs retaliate against
people who report crimes to police or testify.
Detective Harper testified that when he spoke to Vidal Santellano in December
2014, Santellano seemed to know who Gonzalez was and indicated he had been told of
Gonzalez’s name by Lozano. Santellano told Harper that the man on the phone “sounded
threatening” but did not make any express threats. Santellano also said he knew “it was
23
serious” from the way the man spoke, and that the situation was “not a game.”
Santellano “took the conversation” to be “aggressive” and “intimidating.” Santellano
also assumed, based on his gang experience, that the people who wanted the letter were
“beyond the street level.”
At the time of gang member Ulises Jimenez’s arrest in April 2014, police seized a
kite written by Gonzalez about the home invasion (hereafter “the kite” or “Gonzalez’s
kite”).11 The kite was entered into evidence at trial. It said that Ybarra had had a letter
regarding Gonzalez’s storage of a safe containing drugs and money at Lozano’s home,
and Ybarra was going to provide the letter to her boyfriend’s lawyer. The kite also
detailed the actions Gonzalez and others had taken to obtain the letter. The kite stated: “I
began to threaten [Vidal Santellano’s] life and his family members[,] [s]pecifically
[Dorothy Ybarra’s,] if she so much as thinks to turn that letter in. I told [Santellano]
before the night[’]s over she will be a victim and that was entirely up to her depending on
the decisions she makes. He said okay I’ll get the letter back.” The kite also documented
that Gonzalez had gone to the home with two Norteños, Peter Avila (“Payaso”) and Juan
Garcia (“Monster”). Gonzalez recounted telling Martinez during the incident that he
“was there to talk” and asking about Ybarra and the letter “she was going to give to the
cops.” Regarding Martinez’s purse, Gonzalez wrote, “On the way out monster grabbed
her [purse]. As soon as we got back to [the] car I said we didn’t go there for that. Get rid
of it.”
Legal Principles
Based on these facts, Gonzalez contends the trial court erred by failing to give a
jury instruction on the lesser included offense of attempted criminal threat. “A trial court
has a sua sponte duty to ‘instruct on a lesser offense necessarily included in the charged
offense if there is substantial evidence the defendant is guilty only of the lesser.’
Detective Harper described a “kite” as a gang incident report or other written
11
communication between gang members inscribed in micro-writing on strips of paper.
24
[Citation.] Substantial evidence in this context is evidence from which a reasonable jury
could conclude that the defendant committed the lesser, but not the greater, offense.”
(People v. Shockley (2013) 58 Cal.4th 400, 403 (Shockley).) In reviewing the sufficiency
of the evidence for this purpose, we resolve any doubts in defendant’s favor and do not
weigh the credibility of the witnesses. (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
Section 422 (criminal threats) requires proof of the following elements: (1) the
defendant willfully threatened to commit a crime that would result in death or great
bodily injury to another person; (2) the defendant made the threat with the specific intent
that the statement be taken as a threat, even if he or she had no intent to actually carry it
out; (3) the threat was, on its face and under the circumstances in which it was made, so
unequivocal, unconditional, immediate, and specific as to convey to the person threatened
a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat
actually caused the person threatened to be in sustained fear for his or her own safety or
for his or her immediate family’s safety; and (5) the threatened person’s fear was
reasonable under the circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221,
227–228 (Toledo).)
The sustained fear element of section 422 refers to the victim’s state of mind in
response to the defendant’s threat. (People v. Fierro (2010) 180 Cal.App.4th 1342,
1349.) The element “has a subjective and an objective component. A victim must
actually be in sustained fear, and the sustained fear must also be reasonable under the
circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The term
“ ‘sustained’ ” “means a period of time that extends beyond what is momentary, fleeting,
or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Attempted criminal threat is a lesser included offense of the crime of criminal
threats under section 422. (Toledo, supra, 26 Cal.4th at p. 230.) “[A] defendant properly
may be found guilty of attempted criminal threat whenever, acting with the specific intent
25
to commit the offense of criminal threat, the defendant performs an act that goes beyond
mere preparation and indicates that he or she is putting a plan into action.” (Ibid.)
By way of example, our Supreme Court in Toledo explained that an attempted
criminal threat would exist where a defendant “acting with the requisite intent, makes a
sufficient threat that is received and understood by the threatened person, but, for
whatever reason, the threat does not actually cause the threatened person to be in
sustained fear for his or her safety even though, under the circumstances, that person
reasonably could have been placed in such fear.” (Toledo, supra, 26 Cal.4th at p. 231.)
In this circumstance, “only a fortuity, not intended by the defendant, has prevented the
defendant from perpetrating the completed offense of criminal threat itself.” (Ibid.)
We review independently whether the trial court improperly failed to instruct on a
lesser included offense. (People v. Banks (2014) 59 Cal.4th 1113, 1160, overruled on
other grounds by People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
In a noncapital case, a failure to instruct sua sponte on a lesser necessarily
included offense that is supported by the evidence is state law error that we review for
prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Breverman
(1998) 19 Cal.4th 142, 169 (Breverman).) “ ‘[U]nder Watson, a defendant must show it
is reasonably probable a more favorable result would have been obtained absent the
error.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 955 (Beltran).) “[T]he Watson test
for harmless error ‘focuses not on what a reasonable jury could do, but what such a jury
is likely to have done in the absence of the error under consideration. In making that
evaluation, an appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.’ ” (Id. at p. 956, italics
omitted; see also People v. Larsen (2012) 205 Cal.App.4th 810, 831.)
26
Analysis
Gonzalez asserts there is substantial evidence supporting his guilt of an attempted
criminal threat but not a completed criminal threat. He acknowledges that the kite
documents his threat to Vidal Santellano’s life and the life of his family and concedes
there is “substantial evidence that Vidal was threatened.” But he claims that there is no
substantial evidence that Santellano was “actually placed in sustained fear.” Gonzalez
maintains that Santellano was not made afraid by the person he spoke to on the phone and
“to the extent [Santellano] felt fear, it had nothing [to] do with the phone call.” Hence,
according to Gonzalez, the jury could have concluded that his threat, “for whatever
reason,” did not cause Santellano “to subjectively be in sustained fear.” Thus, the jury
would have convicted Gonzalez of only attempted criminal threat. Gonzalez further
contends that if the failure to instruct on attempted criminal threat is deemed state law
error, he suffered prejudice because it is reasonably probable the jury would have found
him guilty of attempted criminal threat if presented with that alternative.12
The Attorney General counters that the evidence did not support an inference that
“Santellano was never in fear, nor . . . that his fear was not sustained.” The Attorney
General further contends that any error in failing to instruct on attempted criminal threat
was harmless under Watson.
We agree with Gonzalez that the trial court should have instructed the jury on the
lesser included offense of attempted criminal threat. Vidal Santellano testified that he
was not expressly threatened during the phone call and did not feel threatened by the
call—which he described as a “serious conversation” about obtaining the letter.
Moreover, Santellano testified that the fear he felt after the call was not based on the call
12
Gonzalez also argues that the instructional error here violated his constitutional
right to due process. His argument, however, is foreclosed in this court by our Supreme
Court’s decision in Breverman, supra, 19 Cal.4th at page 169. (See Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
27
itself. Rather, Santellano explained that his fear stemmed from the subsequent “very
serious” home invasion incident—after which he proceeded to collect the letter and
deliver it to Cecilia Lozano.
This evidence supports a conclusion that Santellano was not actually placed in
sustained fear by Gonzalez’s admitted threat during the phone call and the evidence is
sufficient to have warranted an instruction on attempted criminal threat. (See Shockley,
supra, 58 Cal.4th at pp. 403–404.) Given this evidence, and the lack of any direct
evidence that Santellano was placed in sustained fear, we further conclude that Gonzalez
has established there is a reasonable probability of a different outcome had the instruction
been given. (See Beltran, supra, 56 Cal.4th at p. 955.)
However, we agree with the Attorney General that substantial evidence supports
the conviction of the greater offense when the entire record is viewed in the light most
favorable to the verdict. We know from the jury’s verdict that the jurors credited
Gonzalez’s admission about threatening Santellano over Santellano’s testimony and other
statements that no express threat was uttered during the phone call. Furthermore, there
was evidence upon which the jurors could reasonably conclude that Gonzalez’s threats
actually caused Santellano to be in sustained fear for his or his family’s safety, despite his
statements to the contrary. (See People v. Davison (1995) 32 Cal.App.4th 206, 214–
215.)
The evidence supporting a finding that Santellano experienced actual (and
reasonable) sustained fear as a result of the threatening phone call includes how
Santellano acted after the call. (See People v. Brugman (2021) 62 Cal.App.5th 608, 634–
635 [concluding that a victim’s actions after the threatening incident supported a finding
of sustained fear].) Gonzalez’s kite states that after he made his threats to Santellano,
Santellano said he would obtain the letter. Later, when Santellano received a call from
his wife, he learned about the home invasion incident. Santellano testified that he was
28
scared after this, though “[n]ot [for] that long.” He then went out, obtained the letter, and
took it to Lozano.
In light of our conclusions that the court should have instructed on the lesser
included offense and sufficient evidence supports the greater offense, we decide the
appropriate remedy on remand is that the prosecutor must be given the option of retrying
the greater offense, or accepting a reduction to the lesser offense. (People v. Richards
(2017) 18 Cal.App.5th 549, 560–561.)
3. Witness or Victim Dissuasion
The trial court instructed the jury with modified versions of CALCRIM Nos. 2622
and 2623 on the offense of witness or victim dissuasion by force or threat of force or
violence (§ 136.1, subd. (c)(1)), as charged in counts 7 and 8. The jurors convicted
Gonzalez on those counts, relating to Damien Zavala and Crystal Martinez, respectively.
On appeal, Gonzalez contends the trial court erred because it “effectively failed to
instruct the jury on all of the elements of the offense of witness dissuasion.”13 We agree
that the trial court erred but conclude that the error was harmless.
a. Factual Background
As described above, there was substantial evidence presented at trial from which
the jury could infer that Gonzalez learned that Ybarra possessed a letter indicating that
Gonzalez was involved in illegal drugs. Ybarra planned to turn the letter over to a lawyer
for use in an unrelated criminal case, presumably to use as a bargaining chip with the
13
Trial counsel failed to object to or request modification of the trial court’s
instructions on witness or victim dissuasion. Gonzalez, however, raised a claim of
instructional error in his motion for new trial, and the trial court summarily rejected it.
On appeal, Gonzalez asserts that his claim is not forfeited because his substantial rights
were affected by the court’s instructions. (See § 1259.) Alternatively, he asserts that his
trial counsel was ineffective for failing to object to the instructions. The Attorney
General does not argue forfeiture. We conclude that Gonzalez’s claim is properly raised
in this appeal. (See People v. Mil (2012) 53 Cal.4th 400, 409; § 1259.) Because we
decide Gonzalez’s claim on the merits, we need not address his alternate ineffective
assistance of counsel claim.
29
district attorney. Thereafter, three men (Gonzalez, Peter Avila, and Juan Garcia; one of
whom was armed) entered Ybarra’s house without permission, asked for the
incriminating letter, and stole a purse and tablet. Crystal Martinez and Damien Zavala
were in the home at the time, and the men specifically demanded the letter.14
b. Legal Principles
“In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.)
That obligation includes instructing on all elements of a charged offense. (People v.
Cummings (1993) 4 Cal.4th 1233, 1311, overruled on another ground in People v. Merritt
(2017) 2 Cal.5th 819, 831 (Merritt).)
“An appellate court reviews the wording of a jury instruction de novo and assesses
whether the instruction accurately states the law.” (People v. O’Dell (2007) 153
Cal.App.4th 1569, 1574 (O’Dell).) “In considering a claim of instructional error we must
first ascertain what the relevant law provides, and then determine what meaning the
instruction given conveys. The test is whether there is a reasonable likelihood that the
jury understood the instruction in a manner that violated the defendant’s rights. In
making this determination we consider the specific language under challenge and, if
necessary, the instructions as a whole.” (People v. Andrade (2000) 85 Cal.App.4th 579,
585 (Andrade); see also People v. Rivera (2019) 7 Cal.5th 306, 329 (Rivera).) “ ‘ “The
absence of an essential element in one instruction may be supplied by another or cured in
light of the instructions as a whole.” ’ ” (People v. Castillo (1997) 16 Cal.4th 1009,
1016.)
14
Damien Zavala admitted to having friends who were affiliated with a gang and
that he previously considered himself as “northern Hispanic” or a “Northerner.” Zavala
also admitted that he did not want to testify in this case and that calling the police or
testifying about what happened would be considered snitching.
30
“When a court fails to instruct the jury on an element of an offense, the error
violates the federal Constitution because a jury must find the defendant guilty of every
element of the crime of conviction beyond a reasonable doubt.” (People v. Gonzalez
(2018) 5 Cal.5th 186, 198–199 (Gonzalez); see Neder v. United States (1999) 527 U.S. 1,
8–15 (Neder).) Accordingly, “[w]e must determine whether it is clear beyond a
reasonable doubt that a rational jury would have rendered the same verdict absent the
error.” (Merritt, supra, 2 Cal.5th at p. 831; see also Neder, at pp. 17, 19.)
Section 136.1, subdivision (c)(1) (hereafter section 136.1(c)(1)) provides that
every person who knowingly and maliciously commits an act described in section 136.1,
subdivision (a) or (b), where the act is accompanied by force or by an express or implied
threat of force or violence, is guilty of a felony.15 Based on counts 7 and 8 of the
indictment, the underlying acts required here, under section 136.1(c)(1), are those
described by section 136.1, subdivision (b)(1) and (2).
Section 136.1, subdivision (b)(1) and (2) provide, in pertinent part: “[E]very
person who attempts to prevent or dissuade another person who has been the victim of a
crime or who is witness to a crime from doing any of the following is guilty of a public
offense . . .: [¶] (1) Making any report of that victimization to any peace officer or state
or local law enforcement officer or probation or parole or correctional officer or
prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment,
information, probation or parole violation to be sought and prosecuted, and assisting in
the prosecution thereof.” (§ 136.1, subd. (b)(1), (2).) Under section 136.1, subdivision
(b), the “prosecution must [] establish that ‘the defendant’s acts or statements [were]
15
Section 136.1, subdivision (c) states, in relevant part: “Every person doing any
of the acts described in subdivision (a) or (b) knowingly and maliciously under any one
or more of the following circumstances, is guilty of a felony punishable by imprisonment
in the state prison for two, three, or four years under any of the following circumstances:
[¶] (1) Where the act is accompanied by force or by an express or implied threat of force
or violence, upon a witness or victim or any third person or the property of any victim,
witness, or any third person.” (§ 136.1(c)(1).)
31
intended to affect or influence a potential witness’s or victim’s testimony or acts.’
[Citation.] In other words, ‘section 136.1 is a specific intent crime.’ ” (People v.
Navarro (2013) 212 Cal.App.4th 1336, 1347; see also People v. McDaniel (1994) 22
Cal.App.4th 278, 284.)
c. Procedural Background
In this case, the jury instruction on section 136.1(c)(1)—provided through a
modified version of CALCRIM No. 2623—stated, in full: “James Gonzalez is charged in
Counts 7 and 8, with dissuading a witness or victim of a crime by use of force or threat of
force [citation to section 136.1(c)(1)]. [¶] To prove the defendant is guilty of this crime,
the People must prove that: [¶] 1. The defendant acted maliciously; [¶] AND [¶] 2.
The defendant used force or threatened, either directly or indirectly, to use force or
violence on the person or property of a witness, a victim, or any other person; [¶] A
person acts maliciously when he or she unlawfully intends to annoy, harm, or injure
someone else in any way, or intends to interfere in any way with the orderly
administration of justice.”16
Following the modified CALCRIM No. 2623 instruction, the trial court instructed
the jury on the firearm allegations attendant to counts 7 and 8 (among other counts) using
CALCRIM No. 3115. (See § 12022, subds. (a)(1), (c).) Thereafter, the court instructed
the jury on section 136.1, subdivision (b) with a modified version of CALCRIM No.
2622.17 The court’s instruction stated, in relevant part: “Dissuading or attempting to
dissuade a witness or victim of a crime [citation to section 136.1, subdivisions (a) and
(b)] is a lesser included offense to dissuading a witness or victim of a crime by use of
force or threat of force, as charged in Counts 7 and 8, against James Gonzalez. [¶] To
16
The written instruction was titled “2623. Intimidating a Witness: Sentencing
Factors [¶] (Pen. Code, § 136.1(c))” (some capitalization omitted).
17
This written instruction was titled “2622. Dissuading a Witness [¶] (Pen. Code,
§ 136.1(a) & (b))” (some capitalization omitted).
32
prove [the defendant] is guilty of this crime, the People must prove that: [¶] 1. The
defendant maliciously tried to prevent or discourage, or prevented or discouraged Damien
Zavala (Count 7) and/or Crystal Martinez (Count 8) from making a report that he or she
and/or someone else was the victim of a crime to any state or local law enforcement
officer, or prosecuting agency; [¶] 2. Damien Zavala and/or Crystal Martinez was a
witness and/or crime victim; [¶] AND [¶] 3. The defendant knew he was trying to
prevent Damien Zavala (Count 7) and/or Crystal Martinez (Count 8) from making a
report that he or she and/or someone else was the victim of a crime to any state or local
law enforcement officer, or prosecuting agency and intended to do so.” The jury
instruction also restated the definition of “maliciously” identically to that in the modified
CALCRIM No. 2623 instruction. Further, as for who is a witness, the instruction under
CALCRIM No. 2622 read, “witness means someone or a person the defendant reasonably
believed to be someone: [¶] Who knows about the existence or nonexistence of facts
relating to a crime.”
The trial court did not instruct the jury regarding the additional charged act of
dissuading a victim or witness from “[c]ausing” a charging instrument to be sought and
prosecuted, and from assisting to prosecute that action. (§ 136.1, subd. (b)(2).) The
court, however, did provide the jury a modified copy of the indictment (along with the
jury instructions) that included language in counts 7 and 8 alleging this particular
underlying act. Further, despite having provided this additional language to the jury in
writing, the court did not read that language to the jury when it orally read the indictment
during its instructions.
The prosecutor argued to the jury on counts 7 and 8 that Gonzalez “intimidated
both Damien Zavala and Crystal Martinez” and “maliciously tried to discourage them
from making a report [that] they were victims of crime to the police,” namely about “the
home invasion.” The prosecutor also argued that the charged crimes were otherwise
proved because Gonzalez “maliciously tried to discourage them from cooperating or
33
providing information that a criminal charge could be sought and prosecuted and from
helping to prosecute that action.” The prosecutor explained that the latter theory applied
to the home invasion and “also to the drug dealing, [because Gonzalez was] discouraging
them from turning over this letter or providing information that they know about his
activities.” In addition, the prosecutor described the definition of maliciously in accord
with the jury instructions (i.e., that Gonzalez “intended to interfere with the orderly
administration of justice”) and argued that “Mr. Gonzalez knew what he was doing and
he intended to do it, which, again, in this case, is not really at issue.”
Gonzalez’s trial counsel argued to the jury that the instructions provided for a
greater crime involving the use of force or threat of force and a “lesser included” crime.
Counsel maintained that there was no evidence from either Zavala or Martinez that “force
or violence [was] used in any way to get them not to come forward if they believed that
that was appropriate.” As for the “lesser included crime,” counsel similarly argued there
was no evidence that Gonzalez tried to prevent Zavala or Martinez from making a report
to authorities. Counsel noted Zavala’s intoxication at the time of the home invasion and
Martinez’s memory problems, asserted based on the kite that “the perpetrator told
[Martinez] that he was only there to talk,” and maintained that the prosecutor had failed
to meet his burden to prove guilt on either count 7 or 8.
The jury’s verdicts on counts 7 and 8 stated that Gonzalez was guilty under section
136.1(c)(1), “in that . . . the defendant did knowingly and maliciously prevent or
dissuade, or attempt to prevent or dissuade a witness or victim, [Zavala and Martinez], by
use of force or threat of force.”
d. Analysis
Gonzalez contends the modified CALCRIM No. 2623 instruction purported to
comprise the elements for the charged crimes of dissuasion by force or threat under
section 136.1(c)(1). Gonzalez argues that the instruction did not include the requisite
elements for the underlying offense stated in section 136.1, subdivision (b)(1), namely
34
that Gonzalez intentionally tried to prevent Damien Zavala and Crystal Martinez from
making a report. Gonzalez acknowledges that the instruction under CALCRIM No. 2622
included the elements that he contends were missing from the modified CALCRIM No.
2623 instruction. However, he notes that the CALCRIM No. 2622 instruction described
itself as “a lesser included offense” of the greater crimes for which he was convicted
(§ 136.1, subd. (c)(1)). He further asserts that nothing in the instructions told the jurors to
“impute the elements listed in CALCRIM [No.] 2622 into CALCRIM [No.] 2623.” In
addition, Gonzalez points out that, as to the jury’s deliberations on any lesser included
offenses, the jurors were instructed that it was up to them “ ‘to decide the order’ ” in
which they would “ ‘consider each crime and the relevant evidence,’ ” and the prosecutor
argued that the jurors should “ ‘only consider lesser included offenses if [they] find that
the charged offenses were not proven.’ ” Gonzalez finally contends the erroneous
instruction on the charged dissuasion offenses was prejudicial under both Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman) and Watson, supra, 46 Cal.2d at page 836.
The Attorney General counters that “there was no substantial likelihood that the
jury misunderstood the required elements” of section 136.1(c)(1) and, under the
Chapman test, “there is no reasonable possibility that this jury would have decided the
case differently had it been instructed differently.”
We agree with Gonzalez that the trial court’s instructions on the charged violations
of section 136.1(c)(1) are flawed in ways that make it reasonably likely the jurors
understood the instructions in a manner violating Gonzalez’s rights. Contrary to the
CALCRIM pattern instruction, the trial court modified CALCRIM No. 2623 in a way
that failed to require proof of the requisite elements of the underlying acts of dissuasion,
i.e., those acts set forth in section 136.1, subdivision (b), which were necessary to find
Gonzalez guilty of violating section 136.1(c)(1), i.e., that he had acted knowingly and
maliciously when committing the underlying acts and did so with force or a threat of
force or violence. (See § 136.1(c)(1).) The trial court’s modified CALCRIM No. 2623
35
instruction did not mention any underlying act of dissuasion specifically. Rather it said
the People had to prove that Gonzalez “acted maliciously” and further defined
maliciously as including when one “intends to interfere in any way with the orderly
administration of justice.” This direction was insufficient because simply acting with an
intent to interfere with the orderly administration of justice does not equate to acting with
an intent to try and prevent Damien Zavala or Crystal Martinez from making a report of
victimization, as the People were required to prove for counts 7 and 8.
It is true that the trial court’s instruction under CALCRIM No. 2622 included as
elements both the underlying act of dissuasion from making a report of victimization and
the requirement that Gonzalez acted intentionally when attempting to prevent or dissuade
Zavala and Martinez from making such a report. But that separate jury instruction was
described as pertaining to “a lesser included offense” to the charged crime and the jury
was not instructed on the legal definition of a lesser included offense. Further, there is an
inconsistency in the instructions regarding exactly what underlying act or acts formed the
basis of the charges in counts 7 and 8. As described above, the trial court gave the jurors
a copy of the indictment that mentioned both the act of dissuasion from making a report
of victimization and the act of dissuasion from causing a charging instrument to be
sought and prosecuted. But the court did not include the latter act in its oral recitation of
the indictment or in its instruction under CALCRIM No. 2622. Although the prosecutor
mentioned in his closing argument the act of dissuasion from causing a charging
instrument to be prosecuted, Gonzalez’s trial counsel did not. Moreover, neither counsel
addressed in argument the discrepancy between the indictment and the trial court’s
instruction under CALCRIM No. 2622. And neither counsel made it completely clear
that the elements stated in the modified CALCRIM No. 2622 instruction had to be proved
in order to find Gonzalez guilty under the modified CALCRIM No. 2623 instruction.
Given the imprecision and discrepancies in the trial court’s instructions on the
underlying acts for counts 7 and 8, the lack of definition on the legal doctrine of lesser
36
included offenses and possibility the jurors did not consider the lesser offense before
considering the greater offense, and the lack of clear explanation in the parties’ closing
arguments regarding the requisite elements for the charged crimes, we decide there is a
reasonable likelihood that the jurors did not understand they needed to impute the
elements provided them in the CALCRIM No. 2622 instruction into the modified
CALCRIM No. 2623 instruction in order to find Gonzalez guilty of violating section
136.1(c)(1).
Having concluded that the trial court erroneously failed to instruct the jury on the
requisite elements of the charged dissuasion offenses, we must decide whether the error
was harmless beyond a reasonable doubt. (See Gonzalez, supra, 5 Cal.5th at pp. 198–
199.) “[A] Chapman harmless error analysis for instructional error typically includes
review of the strength of the prosecution’s case. [Citation.] Indeed, the harmless error
inquiry for the erroneous omission of instruction on one or more elements of a crime
focuses primarily on the weight of the evidence adduced at trial. Under Neder, . . . such
an error is deemed harmless when a reviewing court, after conducting a thorough review
of the record, ‘concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence.’ ” (People v. Aranda (2012) 55
Cal.4th 342, 367; see also Neder, supra, 527 U.S. at pp. 17, 19.)
We are convinced that Gonzalez was not prejudiced by the trial court’s
instructional error. We acknowledge there is no evidence demonstrating that Gonzalez or
his cohorts explicitly tried to prevent or discourage Zavala or Martinez from reporting the
home invasion to law enforcement. However, “ ‘[t]here is, of course, no talismanic
requirement’ ” that a defendant explicitly state a warning to a victim or witness about not
reporting victimization or a witnessed crime. (See People v. Mendoza (1997) 59
Cal.App.4th 1333, 1344.) There is no serious dispute that Gonzalez’s actions (and those
of his two cohorts) during the home invasion were forceful, intimidating, and fear-
inducing. Gonzalez was motivated to get the incriminating letter (that he understood
37
revealed his storage of drugs and money) from Dorothy Ybarra before she could disclose
it. Although Ybarra was not home at the time of the home invasion, Gonzalez menaced
Martinez and Zavala with a gun and demanded the letter that he believed Ybarra was
going to “give to the cops.” As documented by Gonzalez’s kite, Martinez admitted to
knowing about the letter, and Gonzalez believed Zavala knew about it, too. Gonzalez
also wrote that he and his cohorts “were very effective in the message [they] sent” during
the home invasion.
The prosecution’s evidence demonstrated that Gonzalez reasonably believed
Martinez and Zavala knew about the incriminating letter and that Gonzalez tried to
prevent or discourage them (along with Ybarra) from cooperating with law enforcement
authorities or disclosing any information about the letter that could cause him to be
prosecuted for his drug dealing. Moreover, as to the home invasion incident more
generally, by making it clear that he did not want the letter to be disclosed, Gonzalez
betrayed a further intention that he did not want Martinez and Zavala to report his and his
cohort’s criminal effort to get the letter by forcibly entering their home with a gun. Thus,
there is overwhelming evidence here that Gonzalez acted during the home invasion with
the concurrent intention to prevent or dissuade Martinez and Zavala from reporting his
criminal victimization to law enforcement authorities and causing a prosecution of his
drug dealing and crimes related to the home invasion. In addition, the evidence
demonstrates that Gonzalez committed these acts while using force or a threat of force or
violence on Martinez and Zavala.
Under these circumstances, we conclude, beyond a reasonable doubt, that the
omitted elements for violation of section 136.1(c)(1) were uncontested and were
supported by overwhelming evidence, such that the jury’s verdicts on counts 7 and 8
would have been the same absent the instructional error. (See Neder, supra, 527 U.S. at
p. 17.)
38
4. Street Terrorism Offense
The trial court instructed the jury with a version of CALCRIM No. 1400 on the
offense of street terrorism (§ 186.22, subd. (a)), as charged in count 1 of the indictment.
The instruction told the jurors that “felonious criminal conduct” under section 186.22,
subdivision (a) meant the commission or attempted commission of murder, assault with a
deadly weapon, identity theft, and/or possession of methamphetamine for sale. On
appeal, Gonzalez contends his conviction for street terrorism should be reversed because
the trial court erred by listing four felonies that did not qualify as felonious criminal
conduct under section 186.22.18 We agree that the trial court’s instruction was erroneous
and reverse the conviction on count 1.
a. Background and Legal Principles
In count 1, the indictment charged Gonzalez (and others, including codefendant
Roman) with violating section 186.22, subdivision (a) (hereafter section 186.22(a)).19
18
Trial counsel failed to object to or request modification of the trial court’s
instruction on street terrorism. Gonzalez, however, raised a similar claim of instructional
error and a related claim of ineffective assistance of counsel in his reply to the district
attorney’s opposition to the motion for new trial. The trial court did not address
Gonzalez’s claims in its written ruling on the new trial motion. On appeal, Gonzalez
asserts that his current claim is not forfeited because his substantial rights were affected
by the court’s instruction. (See § 1259.) Alternatively, he asserts that his trial counsel
was ineffective for failing to object to the instruction. The Attorney General does not
argue forfeiture in his respondent’s brief. Under these circumstances, we will review
Gonzalez’s claim on the merits. (See People v. Townsel (2016) 63 Cal.4th 25, 59–60;
People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; People v. Mitchell (2008) 164
Cal.App.4th 442, 465; § 1259.) Because we decide Gonzalez’s claim on its merits, we
need not address Gonzalez’s alternate ineffective assistance of counsel claim.
19
At the time of the charged crimes, section 186.22, subdivision (a) (section
186.22(a)) provided: “Any person who actively participates in any criminal street gang
with knowledge that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished by imprisonment in a county jail for
a period not to exceed one year, or by imprisonment in the state prison for 16 months, or
two or three years.” (See Stats. 2011, ch. 361, § 1.) The Legislature has not made any
39
Regarding “felonious criminal conduct,” the indictment alleged “a violation of California
Penal Code Section 182[, subd.] (a)(1) (conspiracy between defendant and others), in that
on or about and between January 1, 2013 and October 30, 2014, . . . they did conspire
together and with others to commit a crime, a violation of section [] 11379[, subd.] (a) of
the Health & Safety Code of the State of California (selling methamphetamine); . . . a
violation of section [ ] 11360[, subd.] (a) of the Health & Safety Code of the State of
California (selling marijuana), and . . . a violation of section 4573 of the Penal Code of
the State of California (bringing contraband into a custodial facility)” (some
capitalization omitted).
“The elements of the gang participation offense in section 186.22(a) are: First,
active participation in a criminal street gang, in the sense of participation that is more
than nominal or passive; second, knowledge that the gang’s members engage in or have
engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) “[L]iability under this
provision is limited ‘to those who promote, further, or assist a specific felony committed
by gang members and who know of the gang’s pattern of criminal gang activity.’
[Citation.] In other words, the provision ‘requir[es] the promotion or furtherance of
specific conduct of gang members and not inchoate future conduct.’ ” (People v.
Valenzuela (2019) 7 Cal.5th 415, 422.) “Following the Supreme Court’s decision in
Rodriguez, a conviction for gang participation under section 186.22(a) requires the
prosecution to prove the alleged gang member engaged in felonious conduct with another
member of his or her gang.” (People v. Strike (2020) 45 Cal.App.5th 143, 149–150.)
substantive changes to the wording of this provision since the period relevant to this case,
i.e., January 1, 2013 through October 30, 2014. (See Stats. 2011, ch. 361, § 1; Stats.
2013, ch. 508, § 1; Stats. 2016, ch. 887, § 1; Stats. 2017, ch. 561, § 178; Stats. 2021, ch.
699, §§ 3, 4.)
40
Regarding the felonious criminal conduct element of section 186.22(a), the trial
court here instructed “the People must prove” “[t]he defendant willfully assisted,
furthered, or promoted felonious criminal conduct by members of the gang either by: [¶]
a. directly and actively committing a felony offense; [¶] OR [¶] b. aiding and abetting a
felony offense. [¶] At least two members of that same gang must have participated in
committing the felony offense. The defendant may count as one of those members if you
find that the defendant was a member of the gang.” The court also instructed that
“[f]elonious criminal conduct means committing or attempting to commit the following
crime: murder ([§§] 187, 664/187), assault with a deadly weapon ([§] 245), unlawful use
of personal identifying information ([§] 530.5), and/or possession for sale of
methamphetamine ([Health & Saf. Code, §] 11378).” The court referred the jurors to the
separate instructions it provided for the listed offenses, in order for the jurors to decide
whether a member of the gang committed any of those offenses.
Relatedly, in count 15, the indictment charged Gonzalez (alone) with a violation of
Health and Safety Code section 11378, “in that on or about October 30, 2014, . . . he did
possess methamphetamine, a controlled substance, for sale.” The jurors found Gonzalez
guilty on that count and found true the allegation that the quantity of methamphetamine
exceeded one kilogram (Health & Saf. Code § 11370.4, subd. (b)).20
“A trial court must instruct the jury on every theory that is supported by
substantial evidence, that is, evidence that would allow a reasonable jury to make a
determination in accordance with the theory presented under the proper standard of proof.
[Citation.] We review the trial court’s decision de novo. In so doing, we must determine
whether there was indeed sufficient evidence to support the giving of a [particular]
instruction. Stated differently, we must determine whether a reasonable trier of fact
20
The indictment also charged Gonzalez with conspiring to sell methamphetamine
on or about and between January 1, 2013, and October 30, 2014 (count 12).
41
could have found beyond a reasonable doubt that defendant committed” the charged
offense based on the theory advanced. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
However, “[i]t is error to give an instruction which, while correctly stating a
principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4
Cal.4th 1116, 1129 (Guiton).) “[I]nstructions not supported by substantial evidence
should not be given.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1050.) “We
consider the challenged instruction in the context of the instructions and record as a
whole to ascertain whether there is a reasonable likelihood the jury impermissibly applied
the instruction.” (Rivera, supra, 7 Cal.5th at p. 329.)
When the jury has been instructed on “ ‘a factually inadequate theory,’ or, also
phrased slightly differently, cases in which there was an ‘insufficiency of proof’ ”
(Guiton, supra, 4 Cal.4th at p. 1128), reversal is not required “if at least one valid theory
remains.” (Ibid.) Put differently, “instruction on an unsupported theory is prejudicial
only if that theory became the sole basis of the verdict of guilt; if the jury based its
verdict on the valid ground, or on both the valid and the invalid ground, there would be
no prejudice, for there would be a valid basis for the verdict.” (Id. at p. 1130.) Thus, in
cases where the inadequacy of a theory is factual, “the appellate court should affirm the
judgment unless a review of the entire record affirmatively demonstrates a reasonable
probability that the jury in fact found the defendant guilty solely on the unsupported
theory.” (Ibid.; see also People v. Canizales (2019) 7 Cal.5th 591, 612–613.)
b. Analysis
Gonzalez contends the trial court erred by including in its instruction on count 1
the offenses of attempted murder (§§ 187, 664, subd. (a)) and assault with a deadly
weapon (§ 245, subd. (a)(1))—crimes presumably relating to the stabbing of Curtis
Garza—because those offenses were committed by him alone. He further asserts that the
“same is true” for the possession of methamphetamine for sale offense (Health & Saf.
Code § 11378), because “there was no evidence of any other gang members present at the
42
time” of his possession who were “in joint possession” of the methamphetamine he
possessed. Regarding the identity theft offense (§ 530.5) listed in the trial court’s
instruction, Gonzalez claims he is unaware of any evidence showing that he was guilty of
that offense and, even if his “possession of debit and identification cards could be
construed as evidence of identity theft, there was no evidence that [he] committed this
offense in conjunction with another person as required by Rodriguez.” As to prejudice,
Gonzalez contends that the erroneous inclusion of these four offenses as felonious
criminal conduct amounts to a misdescription of an element under section 186.22(a) and
implicates his Sixth Amendment right to have the jury determine every element of the
charged offense. Hence, according to Gonzalez, the Chapman harmless error standard
applies to his claim of error.
The Attorney General counters that Gonzalez’s claim does not assert a legal error
in the instruction. Rather, the Attorney General views the claim as one asserting that
“there was no factual basis for finding the [listed] offenses.” The Attorney General
concedes that there was no evidence Gonzalez committed identity theft and no evidence
proving that Gonzalez committed the attempted murder and assault with a deadly weapon
with another gang member. However, the Attorney General argues there is substantial
evidence Gonzalez “committed the methamphetamine-related offense in league with
other gang members.” The Attorney General asserts further that Gonzalez has not shown
any prejudice, under Watson, from the trial court’s instruction on the three factually
unsupported theories of liability and one valid, factually supported theory.
We begin by stating our agreement with the parties that the trial court erred by
including in its instruction the three predicate offenses of attempted murder, assault with
a deadly weapon, and identity theft. As for the nature of the court’s error, we concur with
the Attorney General that the error is one of factual inadequacy for the felonious criminal
conduct instruction, not one of a legal inadequacy. (See Rivera, supra, 7 Cal.5th at
p. 329 [“A factually inadequate theory involves a mistake about a fact that the ‘jury is
43
fully equipped to detect’ [citation] or a theory that ‘while legally correct, has no
application to the facts of the case’ ”]; People v. Aledamat (2019) 8 Cal.5th 1, 7–8
(Aledamat).) The trial court correctly instructed on the felonious criminal conduct
element, generally, and listed predicate offenses that, on their face, could qualify as such
conduct. Thus, as to all four theories of liability for the felonious criminal conduct
element, the court’s instruction was not contrary to law or an incorrect statement of law.
Rather, the instructional error here occurred only because the evidence did not support all
the theories provided for the jury’s consideration. (See Guiton, supra, 4 Cal.4th at
p. 1129; cf. People v. Lamas (2007) 42 Cal.4th 516, 525–526.)
We turn next to the disputed issue regarding whether there was a sufficient factual
basis for including the possession of methamphetamine for sale offense in the instruction
on count 1. Having considered the evidence and governing law, we agree with Gonzalez
that there is no substantial evidence showing the offense was committed along with
another gang member.21 As alluded to above, “[t]he plain meaning of section 186.22(a)
requires that felonious criminal conduct be committed by at least two gang members, one
of whom can include the defendant if he is a gang member.” (Rodriguez, supra, 55
Cal.4th at p. 1132.) “[W]ith section 186.22(a), the Legislature sought to punish gang
members who acted in concert with other gang members in committing a felony
regardless of whether such felony was gang-related.” (Id. at p. 1138.)
Here, by contrast, the evidence showed that Gonzalez had a large quantity of
methamphetamine in his residence when police searched it on October 30, 2014.
Although Gonzalez’s brother was present at the time of the search, there was no evidence
that the brother was a gang member or that any gang member had a connection to
Gonzalez’s residence. Furthermore, there was no evidence supporting that a gang
21
We note that Gonzalez does not make any separate claim challenging the
sufficiency of the evidence for his conviction on count 1. Rather, he frames his claim as
one of instructional error.
44
member other than Gonzalez had some control or right to control the methamphetamine
seized from Gonzalez’s residence. Thus, no one else had constructive possession of the
methamphetamine. (See People v. Morante (1999) 20 Cal.4th 403, 417; see also People
v. Rushing (1989) 209 Cal.App.3d 618, 621–622.)
Moreover, although there was evidence that Gonzalez was part of the regiment
and selling methamphetamine in October 2014, there was no evidence that Gonzalez
involved another gang member in the acquisition of the methamphetamine he possessed
in the residence that day. (See People v. Johnson (2014) 229 Cal.App.4th 910, 922.) In
addition, there was evidence that gang members sometimes sold methamphetamine
obtained from a source other than the gang.
Nevertheless, the Attorney General contends there was substantial evidence
showing that Gonzalez possessed methamphetamine for sale “in complicity with
numerous other gang members.” In support of his argument, the Attorney General refers
generally to the evidence of Gonzalez’s deep involvement “in the primary activities of
the gang, including the sale and possession for sale of methamphetamine.” The Attorney
General also points to the prosecutor’s closing argument, which focused on Gonzalez’s
involvement in the conspiracy to sell methamphetamine with members of his gang. We
acknowledge that there is ample evidence in the record of Gonzalez’s active involvement
in the gang’s drug-sales activities. However, the felonious criminal conduct at issue in
the trial court’s instruction on count 1 was a possession of methamphetamine for sale
offense, which in turn was based on the methamphetamine found in Gonzalez’s residence
on October 30, 2014. The listed predicate conduct was neither the sale of
methamphetamine nor conspiracy to sell methamphetamine. Thus, the Attorney
General’s reliance on general evidence that the gang members acted together to sell
methamphetamine is not persuasive to show that the listed predicate conduct of
possession for sale was committed by at least two gang members.
45
Under the circumstances here, we conclude there was no substantial evidence
showing that the possession of methamphetamine for sale offense listed in the instruction
on count 1 was “felonious criminal conduct” under section 186.22(a).
Having concluded that none of the four offenses listed in the instruction was
factually adequate to prove the requisite element, we decide that the trial court should not
have included those offenses in its instruction. Because there was no factually adequate
theory of liability presented to the jury for the felonious criminal conduct element under
section 186.22, we must reverse Gonzalez’s conviction on count 1. (See Guiton, supra, 4
Cal.4th at pp. 1128, 1130.)
Regarding the remedy for this error, the general rule is that where evidence is
insufficient to support a jury’s finding, retrial is barred. (See Burks v. United States
(1978) 437 U.S. 1, 17–18; People v. Seel (2004) 34 Cal.4th 535, 550.) But if reversal is
predicated on instructional error, then retrial is not barred. (See People v. Hallock (1989)
208 Cal.App.3d 595, 607.) As noted, Gonzalez has only raised a claim of instructional
error, not a claim of insufficiency of the evidence, and he does not make any argument
that he cannot be retried on count 1. Under these circumstances, we conclude the proper
remedy in this circumstance is remand for retrial on count 1 if the district attorney so
elects.
5. Gang Enhancements
Gonzalez contends post-trial legislative changes to section 186.22 require reversal
of the jury’s findings on the gang enhancement allegations for counts 5 and 6 (the counts
based on Gonzalez’s stabbing of Curtis Garza) and counts 7–11 (the counts related to the
November 2013 home invasion) due to what amounts to instructional error.22 The jury
Although we have already decided to vacate Gonzalez’s sentence entirely and
22
reverse the conviction on count 11 for criminal threats (giving the prosecutor the option
of retrying that offense or accepting a reduction to the lesser offense of attempted
criminal threat), we will address the merits of Gonzalez’s claim for the benefit of the trial
court at Gonzalez’s resentencing.
46
found true the allegations that Gonzalez committed the crimes of attempted murder
(§§ 187, 664, subd. (a); count 5), assault with a deadly weapon (§ 245, subd. (a)(1); count
6), dissuading a witness or victim by force or threat (§ 136.1, subd. (c)(1); counts 7 & 8),
robbery (§ 211; count 9), burglary (§ 460, subd. (a); count 10), and criminal threats
(§ 422; count 11) “for the benefit of, at the direction of, or 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) & (4) (hereafter § 186.22(b)).23
With respect to the section 186.22(b) enhancements, the trial court instructed the
jury that the prosecution must prove beyond a reasonable doubt that “1. The defendant
committed or attempted to commit the crime for the benefit of, at the direction of, or in
association with a criminal street gang; [¶] and [¶] 2. The defendant intended to assist,
further, or promote criminal conduct by gang members” (some capitalization omitted).
In October 2021, while Gonzalez’s appeal was pending in this court, the Governor
approved Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which
amended section 186.22.24 (Stats. 2021, ch. 699, §§ 3, 4.) Taking effect on January 1,
2022, section 186.22, as amended, includes a redrafted subdivision (g), which provides,
“As used in this chapter, to benefit, promote, further, or assist means to provide a
common benefit to members of a gang where the common benefit is more than
reputational. Examples of a common benefit that are more than reputational may include,
but are not limited to, financial gain or motivation, retaliation, targeting a perceived or
actual gang rival, or intimidation or silencing of a potential current or previous witness or
23
The jury also found true the gang enhancement allegations attached to counts
12, 13, 15, 16, and 17, but Gonzalez makes no argument challenging the validity of those
findings under the recent changes to section 186.22.
24
Assembly Bill 333 did not alter the relevant language of the section 186.22(b)
enhancement itself, but it did, as explained post, alter the definition of terms in section
186.22(b).
47
informant.” (§ 186.22, subd. (g) (hereafter § 186.22(g)), added by Stats. 2021, ch. 699,
§ 3.)
Prior to this amendment, section 186.22 had not defined the term “benefit” or the
phrase “promote, further, or assist,” as used in section 186.22(b), and courts had read the
subdivision broadly. The California Supreme Court had underscored that the first prong
of section 186.22(b) could encompass reputational effects: “Expert opinion that
particular criminal conduct benefited a gang by enhancing its reputation for viciousness
can be sufficient to raise the inference that the conduct was ‘committed for the benefit of
. . . a[] criminal street gang’ within the meaning of section 186.22(b)(1).” (People v.
Albillar (2010) 51 Cal.4th 47, 63.) Under the new subdivision (g) added by Assembly
Bill 333, such evidence is no longer sufficient (or relevant) proof of the benefit element
of section 186.22(b).
a. Retroactivity of Assembly Bill 333
Gonzalez contends that the new section 186.22(g) enacted by Assembly Bill 333
applies to his case under In re Estrada (1965) 63 Cal.2d 740 (Estrada) as an ameliorative
statute that creates the potential for lesser punishment.25 The Estrada rule, which applies
to enhancements as well as substantive offenses, “rests on the presumption that, in the
absence of a savings clause providing only prospective relief or other clear intention
concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that are not.’ ” (People v.
Buycks (2018) 5 Cal.5th 857, 881 (Buycks).)
We agree with Gonzalez that the text of Assembly Bill 333 does not demonstrate
any clear legislative intent that the statute should not apply retroactively. We further
agree that the Estrada presumption applies because, by narrowing the scope of benefit
As Assembly Bill 333 has gone into effect, we need not address Gonzalez’s
25
contention that the applicability of section 186.22(g) is ripe for our review.
48
element of section 186.22(b)(1), Assembly Bill 333 reduces the possibility the
enhancement will apply. (See People v. Lopez (2021) 73 Cal.App.5th 327, 344; see also
People v. Vinson (2011) 193 Cal.App.4th 1190, 1197.) As Gonzalez’s conviction is not
yet final on appeal, he is entitled to the benefit of the new section 186.22(g). (Lopez, at
p. 344.)
b. Prejudice
Unsurprisingly (because section 186.22(g) had not then been enacted), the trial
court did not include in the jury instructions for the gang enhancement the subdivision’s
directive that the prosecution must prove beyond a reasonable doubt that the common
benefit to the gang was “more than reputational.” In light of our conclusion that section
186.22(g) applies retroactively here, this omission amounts to error, and we must decide
its effect. With respect to the appropriate analytical framework, Gonzalez suggests that it
either constitutes structural error, requiring automatic reversal, or is subject to the
Chapman, supra, 386 U.S. 18, standard of harmlessness beyond a reasonable doubt.
We reject Gonzalez’s contention of structural error, because there is no contention
that the instructional omission was so severe that it amounted to “the total deprivation of
a jury trial.” (Merritt, supra, 2 Cal.5th at p. 830, italics omitted.) Indeed, Gonzalez does
not contend that the jury was misinstructed on any aspect of section 186.22(b) other than
failure to include the new language drawn from section 186.22(g).
When the trial court fails to instruct a jury on an element of an offense, “[w]e must
determine whether it is clear beyond a reasonable doubt that a rational jury would have
rendered the same verdict absent the error.” (Merritt, supra, 2 Cal.5th at p. 831.)
Similarly, under “alternative-theory error” (where the jury is properly instructed both on
a legally valid theory and on an erroneous one), a “reviewing court must reverse the
conviction unless, after examining the entire cause, including the evidence, and
considering all relevant circumstances, it determines the error was harmless beyond a
49
reasonable doubt.” (Aledamat, supra, 8 Cal.5th at p. 13.) As the prejudice standard is the
same, we need not resolve the precise nature of the error here.
As to counts 5 and 6, Gonzalez asserts this court cannot conclude the error was
harmless beyond a reasonable doubt because it is “likely” the jury concluded that the
benefit the Norteños received by Gonzalez stabbing Garza was reputational. Gonzalez
cites Detective Harper’s testimony that the stabbing would send a message and an
arguably similar statement by the prosecutor in closing argument. Gonzalez
acknowledges that section 186.22(g) includes “ ‘financial gain or motivation’ ” in its
definition of “ ‘common benefit’ ” for the gang but asserts that Gonzalez did not stab
Garza to steal money from him because Garza had no money. Instead, in Gonzalez’s
view, the direct benefit to the gang flowing from the stabbing was enhancement of the
gang’s reputation for violence.
Regarding counts 7–11, Gonzalez again cites Detective Harper’s testimony about
the reputational nature of the benefit to the gang stemming from the home invasion
incident. Gonzalez acknowledges that he and his gang “served to gain by retrieving the
incriminating letter,” which was a “specific and tangible benefit in addition to the more
general reputational benefit.”
To determine whether the erroneous instruction requires reversal of the true
findings on the gang enhancement, we examine “all relevant circumstances” (Aledamat,
supra, 8 Cal.5th at p. 13) and in particular the evidence and arguments heard by the jury.
(Id. at p. 15.)
i. Trial Testimony and Closing Arguments
Curtis Garza testified that he sold methamphetamine obtained from Gonzalez, who
would “front” the drugs to Garza. Prior to the stabbing, Garza had obtained drugs from
Gonzalez three to five times. Leading up to the stabbing, Gonzalez had supplied Garza
methamphetamine on credit, and Garza owed him $300 to $500. Gonzalez approached
Garza, and Gonzalez asked for his money. Garza told him he did not have it. Gonzalez
50
looked around and began stabbing Garza. Garza did not testify that Gonzalez said
anything to him prior to or during the stabbing other than the request for money.
At the time of the stabbing, Garza believed Gonzalez to be a Norteño. Garza
thought Gonzalez “had status” in the gang and was of a higher status in the gang than
Garza. Garza himself was not paying taxes or monetary dues to any gang. Garza was
addicted to methamphetamine during the period in which he bought drugs from
Gonzalez.
Testifying as a gang expert, Detective Harper gave the following testimony about
the benefit to the gang of Gonzalez’s stabbing of Garza, “if you’re a drug dealer and a
Norte[ñ]o and striving to advance within the gang, and you allow people to take
advantage of you, not pay their debts, disrespect you, that’s not going to be looked upon
very well within the gang leadership and gang community.”26 The prosecutor asked,
“Does it also benefit the NF to have it known on the street that they do not tolerate people
not paying their debts?” Harper responded, “Absolutely, as well as the acts of violence to
basically show that it’s not going to be tolerated. They exert control over people,
including their own membership, through fear of violent acts and retaliation for not
falling in line.”
With respect to the gang enhancement allegations for counts 5 and 6, the
prosecutor contended in closing argument, “it benefits the gang when people are in fear
of members of the NF or Norte[ñ]os, when people know basically not to mess with them,
and they know that they need to pay their drug debts. So we’ve heard a lot about how the
NF relies on fear. They basically have to be a fear organization to maintain their control
of the streets. [¶] And it was intended to assist, further, or promote criminal conduct by
gang members, in that criminal conduct is the drug-trafficking conspiracy. Basically, you
26
According to Detective Harper, Gonzalez was not part of the “regiment” at the
time of the stabbing.
51
cannot have a drug-trafficking conspiracy if people who are drug addicts don’t pay their
drug debts.”
Regarding the home invasion incident (the facts of which are detailed ante (see
section II.B.2.a.)), Detective Harper testified that the incident could benefit the gang by
demonstrating its desire for “some level of respect and authority” and opposition to
“let[ting] people take advantage of you and subject your criminal activities to law
enforcement detection and prosecution.” Harper also testified that the incident was
committed with the intent to promote criminal conduct by gang members because unless
a gang member “can control [his] surroundings and basically show people that
cooperation and snitching isn’t tolerated, it’s going to weaken the gang’s position.”
In the same vein, the prosecutor argued to the jury that the incident benefited the
gang by “stop[ping] witnesses from cooperating with law enforcement” and getting
“word . . . out on the street that if you try to mess with the NF or you try to go to the cops,
they’ll bust into your home with a gun, put a pillowcase over your head, [and] threaten
your life in front of your child.” Further, the prosecutor maintained that there was an
intent to assist, further, or promote criminal conduct by gang members because the
crimes were committed “to maintain control over the streets.”
Gonzalez’s trial counsel argued in closing argument that there was insufficient
evidence of the gang allegations because the crimes alleged in counts 5 and 6 occurred
prior to Gonzalez’s joining the regiment and “before he had any gang activity.”
Gonzalez’s trial counsel also argued generally that there was insufficient evidence to
establish that the stabbing and home invasion incident “were done to benefit, aid, assist
criminal street gangs” because the crimes were committed before Gonzalez met Jimenez
or was “closely associated with the street gang.”
ii. Analysis
Having reviewed the record, we conclude that the failure to include the limitation
added by section 186.22(g) was not harmless beyond a reasonable doubt. Although there
52
was substantial evidence that the stabbing of Garza involved a “financial . . . motivation”
(§ 186.22(g)) and that the home invasion incident was committed for the purposes of
“intimidation or silencing of a potential current or previous witness or informant” (id.),
Detective Harper’s testimony and the prosecutor’s argument to the jurors regarding the
enhancement allegations underscored the reputational benefit that would flow to the gang
from commission of the underlying crimes.
The Attorney General argues that, on this record, a rational jury instructed under
new section 186.22(g) would have returned the same verdict, i.e., finding that the
stabbing and home invasion-related crimes were not merely reputational. We
acknowledge that the evidence related to the gang enhancements went beyond reputation,
in that debt collection and the suppression of cooperation and enforcement were noted by
Detective Harper. However, the primary focus of Detective Harper’s testimony and the
prosecutor’s argument was on the general reputation of the gang as it related to the
crimes. Regarding the Garza stabbing, Harper and the prosecutor emphasized how a
failure to collect a debt would be “looked upon” poorly by the “gang community” and
how the gang benefits “when people know basically not to mess with” the gang.
Similarly, regarding the home invasion, Harper talked about the “gang’s position” in the
community, and the prosecutor argued about the gang getting the word “out on the street”
that cooperation with police will be met with violence. Under the stringent test for error
we must apply, we cannot determine “that the error did not contribute to the verdict”
(Aledamat, supra, 8 Cal.5th at p. 12) or that it is “clear beyond a reasonable doubt that a
rational jury would have rendered the same verdict absent the error.” (Merritt, supra, 2
Cal.5th at p. 831.) This case is like People v. E.H. (2022) 75 Cal.App.5th 467 (E.H.),
where another Court of Appeal found prejudice even though there was testimony at trial
about financial benefits to the gang that were not merely reputational. (Id. at pp. 479–
480.)
53
Accordingly, we decide the instructional error regarding the section 186.22(b)
sentence enhancement allegations attached to counts 5–11 was not harmless. We
therefore reverse the true findings on the gang enhancement allegations on counts 5–11.
Given our conclusion that there was prejudicial error, when resentencing Gonzalez
on remand, the trial court cannot—absent a retrial on the allegations—impose enhanced
sentences on counts 5–11 based on the jury’s findings on the attendant section 186.22(b)
allegations. However, our conclusion does not bar the district attorney from retrying
Gonzalez on the gang enhancement allegations in counts 5–11, should he choose to do so.
(See E.H., supra, 75 Cal.App.5th at p. 480; People v. Sek (2022) 74 Cal.App.5th 657,
669–670.)
Having reviewed all of Gonzalez’s claims of instructional error, we now turn to
his assertions that insufficient evidence supports his conviction for robbery.27
C. Sufficiency of Evidence of Robbery
Gonzalez contends there was insufficient evidence for his second degree robbery
conviction on count 9, which relates to the November 2013 home invasion committed by
Gonzalez and two other gang members, the evidence of which we have recounted above
in our discussion of the criminal threat instruction (see section II.B.2.a.).
Gonzalez argues the evidence does not support that the taking of Crystal
Martinez’s purse by Juan Garcia was “a natural and probable consequence of the object
of the conspiracy” between himself, Garcia, and Peter Avila to obtain the incriminating
27
Gonzalez also contends there was insufficient evidence, as a matter of law, to
show the existence of more than one conspiracy. As explained above (section II.B.1.c.),
we have determined that the conspiracy convictions on counts 12 and 13 must be vacated
for instructional error, but those counts were supported by substantial evidence and are
subject to retrial. Having already rejected Gonzalez’s insufficiency claim, we do not
address it further.
54
letter from Dorothy Ybarra. Gonzalez further asserts that “the evidence was insufficient
to show a causal connection between the taking of the purse and Crystal Martinez’s fear.”
1. Background and Legal Principles
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, 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.’ ” (Powell, supra, 5 Cal.5th at p. 944; see
also Jackson v. Virginia (1979) 443 U.S. 307, 318–319; People v. Jimenez (2019) 35
Cal.App.5th 373, 392.) “In applying this test, we . . . presume in support of the judgment
the existence of every fact the jury could reasonably have deduced from the evidence.”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) “We ‘must accept logical inferences
that the jury might have drawn from the circumstantial evidence.’ ” (Ibid.) “ ‘We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ 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.” (Ibid.)
“Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) The final element “ ‘is cast in the alternative; it may be
accomplished either by force or by fear.’ ” (People v. Montalvo (2019) 36 Cal.App.5th
597, 611 (Montalvo).)
“ ‘[T]he “force” required for robbery is not necessarily synonymous with a
physical corporeal assault.’ [Citation.] However, ‘[t]he law does require that the
perpetrator exert some quantum of force in excess of that “necessary to accomplish the
mere seizing of the property.” ’ [Citation.] ‘[T]he force need not be great.’ [Citation.]
‘An accepted articulation of the rule is that “[a]ll the force that is required to make the
55
offense a robbery is such force as is actually sufficient to overcome the victim’s
resistance.” ’ ” (Montalvo, supra, 36 Cal.App.5th at p. 618.)
The fear element “may be either: [¶] 1. The fear of an unlawful injury to the
person or property of the person robbed, or of any relative of his or member of his family;
or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of
anyone in the company of the person robbed at the time of the robbery.” (§ 212.) “ ‘To
establish a robbery was committed by means of fear, the prosecution “must present
evidence ‘that the victim was in fact afraid, and that such fear allowed the crime to be
accomplished.’ ” ’ [Citation.] Thus, the fear element is subjective in nature. [Citation.]
However, the victim need not explicitly testify that he or she was afraid of injury where
there is evidence from which it can be inferred that the victim was in fact afraid of injury.
[Citation.] ‘The fear is sufficient if it facilitated the defendant’s taking of the property.
Thus, any intimidation, even without threats, may be sufficient.’ [Citation.] However,
given the language of section 212, the intimidation must not only produce fear, but the
fear must be of the infliction of injury.” (Montalvo, supra, 36 Cal.App.5th at p. 612.)
Here, the indictment charged Gonzalez, Peter Avila, and Juan Garcia with robbery
for taking a purse from Martinez. The jury instructions and prosecutor’s arguments
addressed Gonzalez’s liability for robbery based on the natural and probable
consequences doctrine as applied to the acts of coconspirators. Specifically, the jury was
instructed with CALCRIM No. 417 that “the People must prove that: [¶] 1. [Gonzalez]
conspired to commit burglary; [¶] 2. A member of the conspiracy committed robbery to
further the conspiracy; [¶] AND [¶] 3. Robbery was a natural and probable
consequence of the common plan or design of the crime that the defendant conspired to
commit.” (See In re Hardy (2007) 41 Cal.4th 977, 1025–1026; People v. Guillen (2014)
227 Cal.App.4th 934, 998 (Guillen).) The jury was further instructed that “[a] natural
and probable consequence is one that a reasonable person would know is likely to happen
56
if nothing unusual intervenes” (italics omitted). (See People v. Prettyman (1996) 14
Cal.4th 248, 291 (conc. & dis. opn. of Brown, J.).)
Under the natural and probable consequences doctrine, “ ‘the ultimate factual
question is one of foreseeability.’ [Citation.] Thus, ‘ “[a] natural and probable
consequence is a foreseeable consequence”. . . .’ [Citation.] But ‘to be reasonably
foreseeable “[t]he consequence need not have been a strong probability; a possible
consequence which might reasonably have been contemplated is enough. . . .”
[Citation.]’ [Citation.] A reasonably foreseeable consequence is to be evaluated under
all the factual circumstances of the individual case [citation] and is a factual issue to be
resolved by the jury.” (People v. Medina (2009) 46 Cal.4th 913, 920.)
2. Analysis
Applying the foregoing principles to the facts of this case, we reject Gonzalez’s
challenge to the evidence supporting a robbery. Gonzalez rightly asserts that “the object
of the conspiracy was clear – to retrieve the incriminating letter.” However, we are not
convinced it was unforeseeable that one of Gonzalez’s coconspirators “would break rank
and steal something when that was not the purpose of the mission.”
Based on the facts presented to Gonzalez’s jury, and by contrast to the
circumstances in People v. Leon (2008) 161 Cal.App.4th 149, 159–161, there is a close
connection between the target crime (i.e., burglary to steal the incriminating letter and
dissuade a witness from disclosing information about the actions of gang members) and
the taking of other items from the victims during this intimidating home invasion.
Gonzalez, Juan Garcia, and Peter Avila forcibly entered Ybarra’s and Martinez’s home
armed with a gun that they put to the head of Damien Zavala. Detective Harper testified
that a primary activity of the Norteños is robbery. There also was evidence presented
about Norteño gang members routinely violating laws and not abiding by their gang’s
dictates—causing the gang to bring them “in line.” That one of Gonzalez’s gang-member
coconspirators would avail himself of the opportunity created by this home invasion to
57
take some other property—including a purse—against an occupant’s will by means of
force or fear is reasonably foreseeable when judged objectively in this case.
Furthermore, in his kite about this crime, Gonzalez recounted telling Martinez that
they were “going to keep coming back till [Ybarra] gives [] up” the letter. Gonzalez also
wrote that he and his cohorts “were very effective in the message [they] sent.” In this
context, Juan Garcia’s taking of the purse at the tail end of a bid to get the letter
reinforced the coconspirators’ message that they would not be deterred from getting what
they wanted from Ybarra and her family. In addition, that Gonzalez (after the crime) told
Garcia that they did not go to the house to get the purse and he should get rid of it is only
marginally germane to the foreseeability issue because the foreseeability test is an
objective one, not subjective. (Guillen, supra, 227 Cal.App.4th at p. 998.) Moreover, the
jurors could have reasonably deduced from Gonzalez’s statement that he wanted to avoid
being caught with evidence of a robbery, not that he was surprised by Garcia’s taking.
This is especially so given that Gonzalez admitted to compensating Garcia for his
assistance in the crime despite his theft of the purse. For these reasons, we conclude
there is substantial evidence upon which the jurors could find, beyond a reasonable
doubt, that a reasonable person would know one of the coconspirators on this gang
“mission” to acquire the incriminating letter would take other property in furtherance of
the conspiracy.
Similarly, we are not persuaded by Gonzalez that there was insufficient evidence
for the jurors to find that the purse was taken by means of force or fear. Although
Martinez testified that she could not recall the home invasion, soon after the incident
Martinez reported to her mother (Ybarra) and sister (Ida Santellano) that the men pushed
their way into the home, chased Damien Zavala into a bedroom, demanded the letter, had
58
a gun, pointed it at Martinez, and stole her purse and the tablet on the way out.28
Similarly, Damien Zavala testified that Martinez was emotional and crying immediately
after the incident and told him that she saw a gun and the men took her purse and their
daughter’s tablet.
Gonzalez asserts that “[t]here certainly was no evidence that the purse was taken
by force.” He acknowledges the evidence that one of the men pointed a gun at Martinez,
but maintains that occurred “upon entry into the house, not when the purse was taken as
they were leaving.” Based on our review of the trial testimony, it is not clear that the
gun-pointing, in fact, occurred when the men first entered the home. Furthermore,
Gonzalez wrote the following about the gun in his kite: “For the record there was only 1
firearm used in the room to contain Damien Zavala.” Gonzalez also wrote that he then
directed Martinez to enter the room, demanded the letter, and told Martinez they were
going to keep coming back until Ybarra gave them the letter. “Then we [(the intruders)]
left. On the way out [Garcia] grabbed her purse.” In light of this evidence, Gonzalez’s
contention that there was no support for a taking by force is contrary to precedent
defining that element of robbery.
Robbery is a continuing offense. “All the elements must be satisfied before the
crime is completed. However, . . . no artificial parsing is required as to the precise
moment or order in which the elements are satisfied.” (People v. Gomez (2008) 43
Cal.4th 249, 254, fn. omitted.) Furthermore, although “ ‘the act of force or intimidation
by which the taking is accomplished in robbery must be motivated by the intent to steal’ ”
(People v. Anderson (2011) 51 Cal.4th 989, 994), “ ‘[t]he elements of force and fear do
28
Martinez testified that she did not remember “any of that day.” She explained
that she was in a “bad car accident about five years ago and . . . do[es]n’t remember a lot
of stuff.” Martinez also testified that she did not want to be at the trial. In addition,
before trial, Martinez refused to speak to Detective Harper. The district attorney
presented testimony from other witnesses about statements Martinez had made to them
about the home invasion.
59
not need to be extreme for purposes of constituting robbery. [Citations.] [¶] This means
that the threat of bodily harm can frequently exceed the minimum requirement necessary
for purposes of establishing robbery.’ ” (People v. Garcia (1995) 32 Cal.App.4th 1756,
1776.) Here, the jurors could reasonably conclude from the evidence that the threat
posed by the gun and other intimidating acts committed during the home invasion
amounted to a use of force by the intruders to, at minimum, prevent Martinez from
resisting the taking of the purse as they left. (See People v. Flynn (2000) 77 Cal.App.4th
766, 771 (Flynn) [taking by force or fear includes “ ‘simply deterring a victim from
preventing the theft or attempting to immediately reclaim the property’ ”].)
Similarly, the victim’s fear “need not be the result of an express threat” (Flynn,
supra, 77 Cal.App.4th at p. 771), and “[r]esistance by the victim is not a required element
of robbery.” (People v. Morehead (2011) 191 Cal.App.4th 765, 775.) “Intimidation of
the victim equates with fear,” and “[i]f there is evidence from which fear may be inferred,
the victim need not explicitly testify that he or she was afraid.” (Ibid.) Here, the jurors
heard evidence about Martinez crying and being highly emotional after the home
invasion. This testimony, when viewed in the context of the other evidence about the
incident, provides substantial evidence from which the jurors could reasonably infer that
Martinez feared injury to herself or the others in the home or their property, and her fear
facilitated Garcia’s taking of the purse on his way out. Moreover, the jurors could have
reasonably deduced from the evidence that the property—which was located inside the
home with Martinez—was taken from her immediate presence. (See People v. Hayes
(1990) 52 Cal.3d 577, 627.)
“If the record demonstrates adequate evidence from which the jury might have
inferred the existence of either force or fear, the appellate court must affirm.” (People v.
James (1963) 218 Cal.App.2d 166, 170.) Viewing the trial evidence in the light most
favorable to the conviction, we conclude there is sufficient evidence from which a
60
reasonable juror could find beyond a reasonable doubt that Gonzalez was guilty of
robbery as charged in count 9.
D. Bifurcation of Gang Enhancement Allegations
Assembly Bill 333 did not only amend section 186.22 (see section II.B.5., ante).
It also added section 1109, which provides that, upon request of the defendant, a gang
enhancement allegation under section 186.22 shall be tried after the defendant’s guilt on
the underlying offense has been determined.29 (Stats. 2021, ch. 699, § 5, eff. Jan. 1,
2022.)
Gonzalez contends that section 1109 applies retroactively to his nonfinal
judgment. He asserts further that the failure to bifurcate the gang enhancement
allegations from the substantive offenses for which he was convicted is structural error
and, thus, all the counts that were accompanied by a gang enhancement allegation (i.e.,
counts 5–13 and 15–17) must be reversed.30 To support his arguments, Gonzalez relies
principally on the recent decision of a different panel of this court in People v. Burgos
29
Section 1109 provides: “(a) If requested by the defense, a case in which a gang
enhancement is charged under subdivision (b) or (d) of [s]ection 186.22 shall be tried in
separate phases as follows: [¶] (1) The question of the defendant’s guilt of the
underlying offense shall be first determined. [¶] (2) If the defendant is found guilty of
the underlying offense and there is an allegation of an enhancement under subdivision (b)
or (d) of [s]ection 186.22, there shall be further proceedings to the trier of fact on the
question of the truth of the enhancement. Allegations that the underlying offense was
committed for the benefit of, at the direction of, or in association with, a criminal street
gang and that the underlying offense was committed with the specific intent to promote,
further, or assist in criminal conduct by gang members shall be proved by direct or
circumstantial evidence. [¶] (b) If a defendant is charged with a violation of subdivision
(a) of [s]ection 186.22, this count shall be tried separately from all other counts that do
not otherwise require gang evidence as an element of the crime. This charge may be tried
in the same proceeding with an allegation of an enhancement under subdivision (b) or (d)
of [s]ection 186.22.” (§ 1109, subds. (a), (b).)
30
Gonzalez makes no argument regarding the potential applicability of section
1109, subdivision (b), to his conviction on count 1 for street terrorism (§ 186.22, subd.
(a))—a count that we reverse based on instructional error unrelated to Assembly Bill 333
(see section II.B.4., ante).
61
(2021) 77 Cal.App.5th 550 (Burgos). In addition, Gonzalez argues that even if the error
here is not structural, at least his convictions and the attached gang enhancements on
counts 5 through 10 should be reversed because the error implicated his constitutional
right to due process and was not harmless under Chapman or Watson.
The Attorney General counters that: (1) Gonzalez forfeited his current claim by
failing to request bifurcation at trial; (2) the majority opinion in Burgos incorrectly
applied the rule of Estrada, supra, 63 Cal.2d 740, and section 1109 is not retroactive; and
(3) contrary to the majority’s suggestion in Burgos, supra, 77 Cal.App.5th at page 568,
structural error principles are inapposite to section 1109 and any error for lack of
bifurcation here is harmless under the appropriate error standard, i.e., Watson, supra, 46
Cal.2d 818.
1. Analysis
Assembly Bill 333 does not expressly address whether section 1109 was intended
to apply retroactively or only prospectively. (See Stats. 2021, ch. 699.) The majority in
Burgos, however, concluded that section 1109 applies retroactively. (Burgos, supra, 77
Cal.App.5th at p. 568; see also People v. Ramos (Apr. 27, 2022, F080916)
___Cal.App.5th___ [2022 Cal.App. LEXIS 355, 26] (Ramos).) The dissent disagreed
with the majority’s conclusion regarding retroactivity (Burgos, at p. 575 (dis. opn. of
Elia, J.)), and another Court of Appeal recently decided that section 1109 does not apply
retroactively. (People v. Perez (May 2, 2022, B300396) ___Cal.App.5th___ [2022
Cal.App. LEXIS 374, 28].)
We need not decide here whether section 1109 operates retroactively, or whether
Gonzalez forfeited his claim of error by failing to request bifurcation at trial, because
even assuming retroactive application and no forfeiture, the failure to bifurcate in this
case is harmless error.
Our Supreme Court recently summarized the concepts of harmless and structural
error: “ ‘When the error is one of state law only, it generally does not warrant reversal
62
unless there is a reasonable probability that in the absence of the error, a result more
favorable to the appealing party would have been reached. [Citation.]’ [Citation.]
Federal constitutional errors require reversal unless the beneficiary of the error can show
it was ‘harmless beyond a reasonable doubt.’ [Citation.] [¶] But not all errors are
amenable to harmless error analysis. We have, ‘in a number of contexts, [found] that
certain errors, by their nature, result in a “miscarriage of justice” within the meaning of
the California harmless-error provision requiring reversal without regard to the strength
of the evidence received at trial.’ . . . [¶] The same is true under federal law. In holding
that some errors of a constitutional dimension are amenable to harmless error analysis,
the court in Chapman also recognized that ‘there are some constitutional rights so basic
to a fair trial that their infraction can never be treated as harmless error.’ ” (In re
Christopher L. (2022) 12 Cal.5th 1063, 1073; see also Cal. Const., art. VI, § 13; People v.
Cahill (1993) 5 Cal.4th 478, 493; McCoy v. Louisiana (2018) 584 U.S. ___ [200 L.Ed.2d
821, 833, 138 S.Ct. 1500, 1511] (McCoy) [“Structural error ‘affect[s] the framework
within which the trial proceeds,’ as distinguished from a lapse or flaw that is ‘simply an
error in the trial process itself.’ ”].)
Although the Burgos majority stated that a failure to bifurcate under section 1109
“likely constitutes ‘structural error’ because it ‘def[ies] analysis by harmless-error
standards’ ” (Burgos, supra, 77 Cal.App.5th at p. 568), it did not so hold. Instead, the
majority assumed an assessment of prejudice was required and ultimately concluded that
the defendants there suffered prejudice under either Watson or the more rigorous
Chapman standard. (Id. at pp. 568–569.)
Considering the principles of harmless and structural error, we are not persuaded
that a failure to bifurcate under section 1109, if error, is unamenable to harmless error
review. The admission of evidence on gang enhancement allegations in an unbifurcated
proceeding does not affect the framework of the trial (see McCoy, supra, 584 U.S. at p.
___ [138 S.Ct. at p. 1511] [listing errors deemed structural]), and the effect of such
63
admission on the outcome of a trial can be quantitatively assessed. (See E.H., supra, 75
Cal.App.5th at p. 480 [applying Watson harmless error analysis to section 1109]; Ramos,
supra, ___Cal.App.5th at p. ___ [2022 Cal.App. LEXIS 355, 27–30] [same]; see also
People v. Pinholster (1992) 1 Cal.4th 865, 931–932 [applying Watson to a failure to
sever a count], disapproved on another ground in People v. Williams (2010) 49 Cal.4th
405, 459; People v. Burch (2007) 148 Cal.App.4th 862, 868–869 [applying Watson to a
failure to bifurcate trial on a prior conviction].)
Moreover, we are not convinced that the Chapman harmless error standard applies
under the circumstances of this case. As explained further below, much of the gang
evidence presented at trial was relevant to the substantive offenses and not particularly
inflammatory. Thus, we cannot conclude that the failure to bifurcate the gang
enhancement allegations from the substantive offenses violated Gonzalez’s federal
constitutional due process rights by rendering his trial fundamentally unfair. (See Ramos,
supra, ___Cal.App.5th at p. ___ , fn. 7 [2022 Cal.App. LEXIS 355, 27]; cf. People v.
Albarran (2007) 149 Cal.App.4th 214, 228–232.)
Instead, we conclude that the failure to bifurcate trial on the gang enhancement
allegations, if error, amounts in this case to state law error subject to the Watson standard.
(See E.H., supra, 75 Cal.App.5th at p. 480; Ramos, supra, ___Cal.App.5th at pp. ___
[2022 Cal.App. LEXIS 355, at 27–30].) Under that standard, Gonzalez fails to
demonstrate that it is reasonably probable he would have obtained a more favorable result
on the substantive offenses charged in counts 5 through 10 had they been bifurcated from
the gang enhancement allegations.
The evidence supporting Gonzalez’s convictions on those counts—as described
throughout this opinion—was considerable. For the convictions of attempted murder
(count 5) and assault with a deadly weapon (count 6), Curtis Garza convincingly
identified Gonzalez as his attacker, and the serious nature of the stabbing was supported
by medical records. Further, the prosecution presented overwhelming evidence of
64
Gonzalez’s actions related to the November 2013 home invasion (including his kite),
supporting his convictions for witness or victim dissuasion on Damien Zavala and Crystal
Martinez (counts 7 & 8), robbery (count 9), and burglary (count 10). All told, the
prosecution presented strong evidence that Gonzalez was guilty of the substantive
offenses in counts 5 through 10 regardless of the gang evidence.
Furthermore, “nothing in Assembly Bill 333 limits the introduction of gang
evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying
charges.” (Ramos, supra, ___Cal.App.5th at p. ___ [2022 Cal.App. LEXIS 355, 28].)
Here, Gonzalez’s gang connection was relevant to contested issues related to several of
the substantive offenses, including Gonzalez’s motive. Thus, it is likely much of the
evidence concerning Gonzalez’s gang membership and activities would have been
admitted at a bifurcated trial on those offenses. (See id. at pp. ___ , [28–29].) Moreover,
other gang evidence that might not have been admitted had the trial been bifurcated was
not so inflammatory that it likely biased the jurors against Gonzalez on the question of
guilt.31 Additionally, the trial court provided a limiting instruction to the jurors regarding
their consideration of the gang evidence.
For these reasons, we conclude—even assuming that section 1109 applies to him
and he did not forfeit the issue by failing to request bifurcation—that Gonzalez was not
prejudiced by the failure to bifurcate the gang enhancement allegations from his trial on
the underlying substantive offenses.
E. Motion for New Trial
Gonzalez raises several claims on appeal with respect to the trial court’s denial of
his motion for new trial. Gonzalez contends that the trial court erred by denying the
31
The gang evidence that might have been excluded from a separate trial on the
underlying offenses includes evidence of Gonzalez’s attack on fellow gang member
Arlindo Silva, the general structure and activities of the NF/Norteños and its membership,
and the predicate offenses of attempted murder and assault with a deadly weapon related
to an August 2013 attack by two Norteños on a fellow gang member in the county jail.
65
motion for new trial on three grounds: (1) ineffective assistance of counsel for failing to
impeach Curtis Garza; (2) witness misconduct by Detective Harper and related
ineffective assistance of counsel; and (3) ineffective assistance of counsel for failing to
object or otherwise remedy the prosecutor’s misstatement of law in closing argument.
For the reasons explained below, we reject Gonzalez’s claims of error related to the
motion for new trial.
1. Impeachment of Curtis Garza
Gonzalez contends the trial court erred by denying his motion for new trial on
count 5 (attempted murder) and count 6 (assault with a deadly weapon) because his trial
counsel was ineffective for failing to impeach Curtis Garza with prior statements that he
did not owe Gonzalez money for a drug debt when Gonzalez stabbed him.
a. Background
Garza testified that Gonzalez had provided him methamphetamine on credit a
handful of times in the weeks prior to the stabbing. Before the stabbing happened, Garza
owed Gonzalez about $300 to $500 for drugs Gonzalez had provided and Garza had
missed an appointment to pay Gonzalez. On the day of their missed appointment,
Gonzalez spotted Garza, approached him, and asked for the money. Garza told Gonzalez
he did not have the money because he had been robbed. Gonzalez then suddenly stabbed
Garza. On cross-examination of Garza, Gonzalez’s trial counsel (Koller) did not ask
Garza anything about a prior statement to the police about the stabbing.
In his closing argument on counts 5 and 6, the prosecutor contended that Gonzalez
acted with an intent to kill because he had “a motive” to kill Garza, “in that [Gonzalez]
was mad about the drug debt that Mr. Garza owed him. He went and found [Garza]. He
went to his neighborhood.” The prosecutor argued further that Gonzalez did not just try
to “send a message” or “just . . . scar” Garza. Rather, Gonzalez stabbed Garza in the
chest, close to his heart, “trying to kill him.” Regarding the gang enhancement
allegations attendant to counts 5 and 6 (§ 186.22, subd. (b)(1)(C)), the prosecutor argued
66
that the NF/Norteños benefitted from Gonzalez’s crimes because the gang instills fear
and maintains control by letting people know “they need to pay their drug debts” and
“not to mess with” the gang. In addition, the prosecutor asserted that the crimes were
intended to promote, further, or assist the gang’s “drug-trafficking conspiracy,” because
such conspiracy cannot exist if “drug addicts don’t pay their drug debts.”
Gonzalez’s trial counsel (Koller) argued to the jury that Garza was an unreliable
witness, there was insufficient proof of Gonzalez’s identity as Garza’s assailant or that
the assailant had an intent to kill, and, in any event, the stabbing happened before
Gonzalez became a member of the gang’s street regiment.
During their deliberations, the jurors requested a transcript of Garza’s testimony
and the “testimony of Det. Harper related to the alleged stabbing of Curtis Garza by
James Gonzalez or any statements or interviews with Det. Harper by Curtis Garza.” No
prior police interview of Garza had been admitted or used at trial.32
Prior to trial, (on January 5, 2015) Detective Harper and another detective had
interviewed Garza. At the time, Garza had been in jail for a month on a “45 day
[probation] violation.” Garza told the detectives that Gonzalez was an ex-boyfriend of
Garza’s girlfriend (Alexis Grijalva), to whom Garza had recently become engaged.
Garza first met and spoke to Gonzalez about two years earlier (in 2012). Garza told
Gonzalez that he (Garza) was “from Southside San Jose, Sick-Minded” Norteños, even
though Garza had “disbanded from them [] like the year before that” and was “chillin’ [in
a] different hood.” Gonzalez told Garza that he (Gonzalez) was “slinging dope” (i.e.,
methamphetamine) and gave Garza his phone number. Gonzalez did not tell Garza that
he (Gonzalez) “had status” in the Norteños at that time.
32
After the jury returned its verdicts, Gonzalez filed a motion for new trial that
included a transcript of a pretrial police interview of Garza. The trial court admitted the
interview into evidence at a hearing on the new trial motion.
67
After they first met, Garza received drugs from Gonzalez about five to seven times
under an arrangement in which Garza paid Gonzalez up front for one-half of the drugs
provided, with the other half provided on credit which Garza would pay off when
Gonzalez provided the next batch of drugs. The amounts provided by Gonzalez during
an approximately two-week period before the stabbing occurred quickly increased from a
quarter ounce, to a half ounce, and to a full ounce (which cost $600). This made Garza
nervous, and Gonzalez did not ask Garza about taking larger amounts of
methamphetamine.
Garza told the detectives that the stabbing occurred about two or three weeks after
he first met Gonzalez.33 Regarding the stabbing, Garza gave the following account to the
detectives, which forms the basis of Gonzalez’s ineffective assistance of counsel claim:
“Um, the night before I was supposed to pick - actually the - I was supposed to pay him
on - on, uh, I forget. I mean it was – it’s been a minute too like after that. But during that
- that three day period it was just like I got - I can barely remember I - it like - from - to
the day after the hospital. Um, it was, uh, we kind of got - he got mad ‘cause like, uh, I -
I gave - I gave him 600 bucks right, for the zip [(i.e., a batch of drugs)]. [¶] [Detective
Harper says, “Mm-hm.”] [¶] And, you know, obviously I expected another zip right?
And he was like: ‘Well I don’t - I don't have a zi- I don’t have a zip right now.’ Um,
‘cause he was chillin’ with some broad right? [¶] [Detective Harper says, “Mmm.”] [¶]
And so I was like, ‘All right well how about check this out. I have my boy go down there
and - and give you 300,’ and he said - and I - and I told him, or I, you know, ‘Will you
bring that other zip? I’ll shoot you 300,’ ‘cause at that - that was - that was - that was the
verbal contract. Was, you know, half - half and half. You know? Do half and shoot me
33
In the interview, Garza said the stabbing happened in February 2012. At trial,
Garza testified that he was stabbed and taken to the hospital on January 11, 2014.
However, other trial evidence (including testimony from a responding police officer)
demonstrates that Garza was in fact stabbed on January 11, 2013.
68
the other half. You know? And so I - I kept on 300 bucks. He said, ‘All right.’ He said,
‘All right,’ you know, ‘I’ll see you tomorrow.’ ” They then agreed to meet the next day
at 12:30.
Garza slept that night at a drug user’s house (after having been “awake for like six
days straight”). Someone stole Garza’s phone, three grams of “dope,” and the $300 he
had. Garza overslept and missed his scheduled meeting with Gonzalez. Garza later
walked around the neighborhood trying to find Gonzalez. Gonzalez spotted Garza, exited
his car, approached Garza, and they had a short conversation during which Garza
apparently told Gonzalez “I ain’t tryin’ to jack you homie.” Gonzalez did not make eye
contact with Garza and suddenly stabbed him. No one was with Gonzalez when he
stabbed Garza, but Garza thought two guys were in the area at the time (although they
had walked away).
Garza told the detectives that he did not talk to police after the stabbing because he
did not know whom he could trust; the incident made him paranoid.
b. Gonzalez’s Motion for New Trial
In a new trial motion (motion), Gonzalez, through newly appointed counsel
(Upton), asserted multiple grounds challenging his convictions on counts 5 and 6,
including ineffective assistance of counsel because trial counsel (Koller) “was unaware of
the prior inconsistent statements by Garza regarding whether he owed a drug debt to
Gonzalez at the time of the stabbing” in January 2013 (some capitalization omitted).34
34
Gonzalez also alleged Koller was ineffective for “not presenting a defense of
self-defense,” as requested by Gonzalez. In a declaration filed in support of his motion,
Gonzalez declared, among other things: “I stabbed Curtis Garza on January 11, 2013.”;
“When I stabbed Curtis Garza on January 11, 2013, Garza did not owe me any money.”;
and “When I stabbed [] Curtis Garza on January 11, 2013, I acted in self-defense.” In his
motion, Gonzalez alleged that he admitted the stabbing to Koller and told Koller it was
done in self-defense. Regarding the failure to present a defense of self-defense, Gonzalez
maintained that “[t]here is no tactical reason why [his] counsel failed to use Garza’s tape-
recorded statements to impeach Garza at trial” (some capitalization omitted). Gonzalez
does not raise any claim regarding self-defense in this appeal.
69
Gonzalez argued further that evidence demonstrating Garza “did not owe a drug debt to
Gonzalez on the day of the stabbing would have been devastating to the People’s theory
for the motive for the stabbing” and “would also have impeached Detective Harper.”
The district attorney opposed Gonzalez’s motion. Gonzalez filed a reply to the
opposition, reiterating his claim of ineffective assistance of counsel for failing to impeach
Garza and Detective Harper with what Gonzalez characterized as Garza’s prior
inconsistent statements. Gonzalez argued that the prejudice from trial counsel’s failure
“was obvious” because Garza and Harper “fabricate[d] a motive for the stabbing.”
Gonzalez also asserted that Garza’s “entire interview is exculpatory” and its admission
into evidence “would have illuminated” Harper’s false testimony.
At a hearing on the motion, Upton called Koller as a witness. Koller
acknowledged that his strategy to defend against the Garza stabbing included that Garza
was an unreliable witness, there was a lack of corroboration regarding Gonzalez being the
assailant, and Garza had failed to report the stabbing to the Norteño gang. Koller
testified that, prior to trial, he had reviewed all discovery, the prior testimony of
witnesses, and the interviews of witnesses and victims, including Garza’s January 5, 2015
interview.
When asked to explain why he rejected self-defense in favor of a defense that
Garza was an unreliable witness, Koller said that “in reviewing Garza’s transcript, it
appears he’s all over the map with regard to things that had happened. My concern was
in pursuing certain avenues, I would open up doors that would hurt us in other areas. For
example, the gang aspect, because as it stood, there wasn’t as much evidence
. . . presented at trial as what [Garza] talks about within the transcript. And so I was
trying to show also that this was not gang-related.” Further, when asked if Garza’s
changing story would be considered a prior inconsistent statement, Koller acknowledged
that it would but reiterated that he “didn’t really want to get into the transcript aspect of
things, because it opened up a lot of other doors and avenues for [Garza] to say things
70
that could be harmful.” In addition, Koller testified that Garza’s prior statement about his
interaction with Gonzalez leading up to the stabbing evinced Garza’s confusion and, thus,
Koller did not “know if [Garza] met with [Gonzalez] the day before” the stabbing.
In a written decision, the trial court denied Gonzalez’s motion for new trial as to
counts 5 and 6 and the attendant sentence enhancements. Regarding Gonzalez’s
argument that there was no support for the prosecutor’s theory that the stabbing was
committed to collect a drug debt, the court found that “Garza’s [interview] statement was
not clear. As Koller testified, Garza’s statement was confusing and he was not sure
regarding when he’d met with [Gonzalez], though current counsel asserts that it was
clearly the day before the stabbing. Also, contrary to [Gonzalez]’s assertion that no drug
debt existed, Garza’s testimony at trial was that he did owe money to [Gonzalez] for
drugs. At best, Koller could only have attempted to impeach Garza’s testimony with the
prior statement. Koller was concerned that such questioning could have led to Garza
being questioned on other areas, including gang activity by [Gonzalez], which Koller
stated would have been detrimental to [Gonzalez]’s interests. The court finds that
Koller’s decision not to cross examine Garza on this issue to be reasonable and not IAC”
(ineffective assistance of counsel).
c. Standard of Review and Other Legal Principles
The parties disagree on the standard we should use to review the trial court’s
denial of Gonzalez’s new-trial motion claim of ineffective assistance of counsel (IAC).
Gonzalez urges us to follow a “two-step process” set forth by a sister Court of Appeal in
People v. Taylor (1984) 162 Cal.App.3d 720 (Taylor). Under that approach, we defer to
any express or implied factual finding supported by substantial evidence and accept that
“all presumptions favor the trial court’s exercise of its power to judge the credibility of
witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual
inferences.” (Id. at p. 724.) From there, we exercise our independent judgment to
71
measure the facts as found by the trial court against the constitutional standard for IAC
claims. (Id. at p. 725.)
By contrast, the Attorney General asks us to use the abuse of discretion standard
when reviewing Gonzalez’s IAC-based claim. The California Supreme Court recently
applied that standard in People v. Hoyt (2020) 8 Cal.5th 892 (Hoyt). There, our Supreme
Court reviewed a trial court’s denial of a new trial motion that included IAC claims. (Id.
at p. 957.) The court stated, “ ‘ “ ‘ “We review a trial court’s ruling on a motion for a
new trial under a deferential abuse-of-discretion standard.” [Citations.] “ ‘A trial court’s
ruling on a motion for new trial is so completely within that court’s discretion that a
reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of
that discretion.’ ” ’ ” ’ ” (Ibid.) In Hoyt, our Supreme Court did not mention Taylor
when describing its standard of review or deciding the defendant’s challenge to the denial
of his IAC claims. (See id. at pp. 957–962.)
In the present case, each party contends he should prevail regardless of the
standard of review we choose to apply. Under these circumstances, we will apply
Taylor’s two-step, mixed standard of review to Gonzalez’s IAC-based new-trial motion
claim (rather than the abuse of discretion standard), without deciding whether our
Supreme Court in Hoyt overruled, sub silentio, the standard set forth in Taylor.
Although IAC claims are “[u]sually . . . ‘more appropriately decided in a habeas
corpus proceeding[,]’ . . . a defendant may raise the issue of counsel’s effectiveness as a
basis for a new trial, and, to expedite justice, a trial court should rule ‘[i]f the court is able
to determine the effectiveness issue on such motion.’ [Citation.] To make out a claim
that counsel rendered constitutionally ineffective assistance, ‘the defendant must first
show counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.’ ” (Hoyt, supra,
72
8 Cal.5th at p. 958; see also Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland).) We can reject an IAC claim if the defendant fails to establish either
element of the Strickland standard. (See Strickland, at p. 687; People v. Kirkpatrick
(1994) 7 Cal.4th 988, 1008, disapproved on another ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.)
“[T]o what extent and how to cross-examine witnesses” are among “the wide
range of tactical decisions competent counsel must make.” (People v. Cleveland (2004)
32 Cal.4th 704, 746 (Cleveland).) “ ‘As to whether certain witnesses should have been
more rigorously cross-examined, such matters are normally left to counsel’s discretion
and rarely implicate inadequacy of representation.’ ” (People v. Williams (1997) 16
Cal.4th 153, 217 (Williams).) A “ ‘trial counsel’s tactical decisions are accorded
substantial deference’ ” and “ ‘[a] reviewing court will not second-guess trial counsel’s
reasonable tactical decisions.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1185 (Riel);
Strickland, supra, 466 U.S. at pp. 689–690.) When the reason for counsel’s actions
appears in the record, “the court will determine whether that reason reflects reasonably
competent performance by an attorney acting as a conscientious and diligent advocate.”
(People v. Coddington (2000) 23 Cal.4th 529, 652 (Coddington), overruled on another
ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
d. Analysis
We reject Gonzalez’s contention that Koller’s failure to cross-examine Garza with
his prior statements regarding the state of his drug dealings with Gonzalez before the
stabbing amounted to deficient performance. To be sure, Garza testified (and the district
attorney argued) that Garza owed Gonzalez about $300 to $500 for methamphetamine
that Gonzalez had provided, and Garza intended to meet with Gonzalez to pay him
money. We also acknowledge that if Koller had cross-examined Garza about his
statements on the state of the drug transactions, that examination would not necessarily
have opened the door to other statements made by Garza that were irrelevant to
73
rehabilitation on the contested point. (See People v. Riccardi (2012) 54 Cal.4th 758,
802–803, abrogated on other grounds by Rangel, supra, 62 Cal.4th at p. 1216.)
Nevertheless, we agree with Koller’s and the trial court’s assessment that Garza’s
prior statements were “confusing” and “all over the map.” Garza claimed in the police
interview that he could “barely remember” the days surrounding the stabbing and he did
not clearly state when he gave Gonzalez “600 bucks . . . for the zip.” Garza also did not
make clear exactly what the $600 covered. Was it a full payment for an ounce of
methamphetamine previously provided completely on credit? Or did the $600 comprise a
$300 credit payment for one-half of a previously provided batch of drugs, and a $300
upfront payment for one-half of the next batch of drugs, under their “pay half now, half
later” arrangement? After stating that he “gave” Gonzalez “600 bucks,” Garza made
more opaque statements about expecting “another zip” (which Gonzalez could not then
provide) and proposing to have his unidentified “boy” meet with Gonzalez and give him
$300. But it is not clear from Garza’s statement whether this delivery occurred. Garza
also proposed “shoot[ing]” Gonzalez $300 as half payment for more drugs and further
said that he (Garza) “kept on 300 bucks.” Again, the meaning of this statement is not
clear.
We do not agree with Gonzalez that Garza’s prior statements show that he did not
owe Gonzalez any money for previously provided methamphetamine at the time of the
stabbing. Thus, Garza’s prior statements about the circumstances leading up to the
stabbing were not clearly inconsistent with Garza’s trial testimony about owing some
$300 to $500 to Gonzalez. Regardless of whether Koller unreasonably harbored
concerns about opening the door to other potentially harmful information, there is a
significant lack of clarity in Garza’s prior statements. Given the opacity of Garza’s
statements, we conclude that Koller acted within an objective standard of reasonableness
for a conscientious and diligent advocate when he declined to impeach Garza with his
74
prior statements to police about the state of his drug dealings with Gonzalez leading up to
the stabbing.
Because Gonzalez has failed to demonstrate that Koller’s performance was
deficient with regard to Garza’s prior statements, we reject Gonzalez’s claim that the trial
court erred in denying his motion for new trial on that IAC ground for counts 5 and 6.
2. Detective Harper’s Testimony
Gonzalez contends the trial court erred by denying his motion for new trial on
counts 5 and 6 “because the jury never should have heard from [Detective] Harper that
Garza told him that he was warned not to mess with [Gonzalez] because he was a
member of the NF.” According to Gonzalez, “[Detective] Harper was at fault for
injecting inadmissible information into his answer that was not responsive to defense
counsel’s question” (i.e., “witness misconduct”) and “counsel was also at fault for even
asking the question in the first place and then in failing to correct the misleading nature of
[Detective] Harper’s response” (i.e., IAC).
a. Background
Detective Harper testified on direct examination that he did not believe Gonzalez
was a member of Ulises Jimenez’s street regiment at the time of the Garza stabbing (in
January 2013), but Gonzalez was then a Norteño gang member. Detective Harper also
said that, in his expert opinion, the stabbing benefited Gonzalez and the gang because it
demonstrated that disrespect or a failure to pay debts to the gang would not be tolerated
and the gang used fear of violence and retaliation against people who did not “fall[] in
line.” On cross-examination, Koller asked if Detective Harper knew “whether Mr.
Gonzalez was actually selling regimental dope” at the time of the stabbing. Detective
Harper answered, “I do not. I know that Mr. Garza was warned not to mess with Mr.
75
Gonzalez or his money for that reason.”35 Koller then asked, “Because it’s regimental
dope?” And Detective Harper answered, “Because he was working with the NF.”
Thereafter, Koller posed additional questions that prompted Detective Harper to confirm
his understanding that, even after the subsequent home invasion (in November 2013),
Gonzalez was not “part of” or “a member of” the street regiment.
During his January 2015 police interview, Garza stated that his fiancée’s sister
Risa had told him not to “ ‘fuck with’ ” Gonzalez’s money because Gonzalez presumably
was getting it from others. Risa, however, did not specifically say that Gonzalez’s source
was the “Regiment.” Garza also said that Gonzalez “wasn’t pickin’ it up” from
“Southsiders” or “paisas”—presumably meaning that Garza believed Gonzalez was
getting his money and supply of methamphetamine from the Norteño gang. Gonzalez
never told Garza that he (Gonzalez) “was working with the Regiment.”
In his motion for new trial, Gonzalez asserted that Koller was ineffective for
failing to object to Detective Harper’s “false” responses to Koller’s cross-examination
questions and that Detective Harper’s answers amounted to “People v. Sanchez [(2016)
63 Cal.4th 665] error,” in that they were non-responsive, violated a prior in limine ruling,
were hearsay, and violated Gonzalez’s right to confrontation.36 In his reply to the
prosecution’s opposition to the motion, Gonzalez further faulted the prosecutor for not
moving to strike Detective Harper’s false answers.
35
Koller’s entire question posed to Detective Harper read: “Now, during one of
the hypotheticals, you were asked about the stabbing of Mr. Garza, and one of the
hypotheses -- or one of the facts that was given to you was that if a person is selling
regimental dope. Do you know, at that time, whether Mr. Gonzalez was actually selling
regimental dope?” We are not aware of any hypothetical question in the record that
asked Harper to assume a person was selling regimental dope at the time of a stabbing.
36
Gonzalez moved in limine for the prosecution to admonish its witnesses to
“make no statements that would be inadmissible” (capitalization and bolding omitted).
The trial court apparently granted Gonzalez’s in limine request to the extent that “[a]ll
parties are required to advise their witnesses of the Court’s in limine rulings.”
76
At the hearing on the new trial motion, Koller confirmed that his “defense theory”
was that Gonzalez “had no relationship with the NF, that [Gonzalez], if anything, was
freelancing selling drugs,” and that there was no evidence “Gonzalez ever paid the NF
any taxes or any contributions, and at the very best, he was an inactive Norte[ñ]o, who
may or may not have been selling drugs.” Koller did not otherwise provide any specific
testimony on the reason he had asked Detective Harper the specific questions at issue in
this claim.
Additionally, Gonzalez’s new counsel Upton argued variously at the hearing that
Gonzalez was prejudiced by Detective Harper’s improper, false responses to Koller’s
questions and that, if Koller had been aware of related information in Garza’s interview
and Detective Harper’s police report, Koller would not have asked the initial question
about regimental dope or, alternatively, would have objected to Detective Harper’s
response or attempted to impeach him.
During the hearing, the trial court noted its view that, “at least for argument’s
sake,” Detective Harper’s initial answer “perhaps[] implied” that Gonzalez “was selling
regimental dope.” However, the court explained that Koller specifically followed up on
the issue of regimental dope and Detective Harper clarified that he knew Garza had been
warned not to mess with Gonzalez “ ‘[b]ecause he was working with the NF.’ ”
In its written denial of Gonzalez’s motion, the trial court found Gonzalez’s claims
regarding Detective Harper’s testimony about Garza’s statements “not persuasive.” The
court concluded there was sufficient evidence that Garza’s identification of Gonzalez “as
the stabber was credible” and “to support a finding the stabbing was gang related.”
Further, the court explained that there was evidence to support that Gonzalez “was
working with the NF and that Garza had been warned not to deal with [Gonzalez]
because [he] was with NF.”
77
b. Standard of Review and Other Legal Principles
As discussed, ante, we review the trial court’s denial of a new trial motion alleging
an IAC claim using Taylor’s mixed standard of review. (Taylor, supra, 162 Cal.App.3d
at pp. 724–725.) For other alleged claims, “a trial court’s ruling on a motion for new trial
is subject to review for abuse of discretion.” (People v. Clair (1992) 2 Cal.4th 629, 667.)
Regarding a claim of “witness misconduct,” our Supreme Court has stated that,
“[a]lthough most cases involve prosecutorial or juror misconduct as the basis for [a
mistrial] motion, a witness’s volunteered statement can also provide the basis for a
finding of incurable prejudice.” (People v. Wharton (1991) 53 Cal.3d 522, 565
(Wharton).) “ ‘A mistrial should be granted if the court is apprised of prejudice that it
judges incurable by admonition or instruction. [Citation.] Whether a particular incident
is incurably prejudicial is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions.’ ” (Ibid.)
Regarding IAC claims, a failure to object generally “is a matter of trial tactics as to
which we will not exercise judicial hindsight.” (People v. Kelly (1992) 1 Cal.4th 495,
520.) The same is true for challenges to a trial counsel’s questions on cross-examination.
(See Cleveland, supra, 32 Cal.4th at p. 746; Williams, supra, 16 Cal.4th at p. 217.) There
is a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” (Strickland, supra, 466 U.S. at p. 689.) “If the record on appeal
‘ “ ‘sheds no light on why counsel acted or failed to act in the manner challenged[,]
. . . unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,’ the claim on appeal must be rejected.” ’ ”
(People v. Vines (2011) 51 Cal.4th 830, 876, overruled on other grounds by People v.
Hardy (2018) 5 Cal.5th 56, 104; see also Hoyt, supra, 8 Cal.5th at pp. 958–960.)
c. Analysis
Gonzalez asserts that Detective Harper’s answer to Koller’s yes-or-no question
about whether Detective Harper knew Gonzalez was selling regimental dope amounted to
78
witness misconduct because the answer was non-responsive and provided inadmissible
hearsay to prove that Gonzalez “had ties to the regiment or, at least, the NF.”37 In
addition, Gonzalez contends that Koller performed deficiently because he
misremembered Detective Harper’s direct examination and failed to correct the
misimpression “that Garza was given a warning that expressly linked [Gonzalez] to the
[NF] gang.” Gonzalez claims that Koller could have “alleviated the prejudice stemming
from [Detective] Harper’s answer by clarifying that Garza was, in fact, not told that
[Gonzalez] was working with the NF.” For this reason, according to Gonzalez, it was
reasonably probable that, given the otherwise limited evidence of Gonzalez’s Norteño
membership status in January 2013, the jury’s verdicts on counts 5 and 6 and the
attendant gang enhancements would have been different if Koller had pursued the alleged
clarification.
We are not persuaded by Gonzalez’s arguments. As to his claim of witness
misconduct, Gonzalez relies on precedent that is inapposite for two reasons. First,
Gonzalez cites California Supreme Court cases addressing alleged witness misconduct
that was contemporaneously challenged by defendants at trial through mistrial motions.
(See, e.g., Wharton, supra, 53 Cal.3d at pp. 564–566; People v. Harris (2013) 57 Cal.4th
804, 847–849; People v. Dement (2011) 53 Cal.4th 1, 37–40, abrogated on other grounds
by Rangel, supra, 62 Cal.4th at p. 1216; Williams, supra, 16 Cal.4th at pp. 211–212; but
see People v. Schiers (1971) 19 Cal.App.3d 102, 112.) Here, by contrast, Gonzalez did
not move for a mistrial (or even object) after Detective Harper provided his answers.
Gonzalez makes no argument why the witness misconduct protections addressed by our
Supreme Court in the cited cases should extend to a case like his, in which no objection
37
We note that the Attorney General makes no argument that Gonzalez’s witness
misconduct claim is not properly preserved for appellate review because it was not raised
in the trial court. Because the Attorney General does not assert forfeiture, we will
assume arguendo that forfeiture is inapplicable here and address the merits of Gonzalez’s
claim.
79
or mistrial motion was made at the time of the alleged misconduct. Second, and more
importantly, Gonzalez fails to provide any convincing reason why Detective Harper’s
testimony was so prejudicial that the harm it caused could not have been cured by a
contemporaneous admonition or instruction to the jury. Given the lack of a motion for
mistrial and the inadequate showing of incurable prejudice flowing from Detective
Harper’s answers, we conclude that the trial court did not abuse its discretion when it
denied Gonzalez’s new-trial motion claim of witness misconduct.
Turning to Gonzalez’s IAC claim, at the hearing on the new trial motion, Koller
was not asked why he cross-examined Detective Harper the way he did. In the absence
of an explanation from Koller, we discern a plausible reason for Koller’s initial question,
his failure to object to Detective Harper’s answer, and his follow-up questions. Namely,
Koller may have been trying to show that Gonzalez was not connected to the regiment at
the time of the stabbing—despite the fact that Detective Harper had testified Gonzalez
was then a Norteño gang member. Koller’s actions in this regard were consistent with his
overall strategy to show that there was little evidence of Gonzalez’s direct involvement
with the NF/Norteños gang or the regiment until a later point in 2014. Accordingly, we
must reject Gonzalez’s IAC claim. (See Williams, supra, 16 Cal.4th at pp. 217–218.)
Even assuming for the sake of argument that Koller performed deficiently when he
cross-examined Detective Harper, and further assuming that Detective Harper committed
misconduct when he volunteered knowing that Garza had been warned not to mess with
Gonzalez or his money because he was either “selling regimental dope” or (as clarified)
“working with the NF,” we are not convinced that Detective Harper’s testimony
prejudiced Gonzalez. This portion of Detective Harper’s testimony was brief and
unaccompanied by any basis for Detective Harper’s knowledge of the warning Garza had
received. Further, we agree with the trial court that Garza’s testimony credibly
established that Gonzalez was the stabber and there was other evidence (beyond
Detective Harper’s challenged testimony) to support that Gonzalez was an active Norteño
80
gang member at the time of the stabbing. On this record, we conclude there is no
reasonable probability that the outcome of the trial on counts 5 and 6 and the attendant
gang enhancements would have been different absent the challenged testimony. We
further conclude that there is no reasonable probability of a different result if Koller had
questioned Detective Harper further using Garza’s interview statements that Risa did not
tell him Gonzalez was working with the regiment or that Garza surmised Gonzalez was
getting his money and methamphetamine from the Norteño gang.
Accordingly, we reject Gonzalez’s claim that the trial court erred in denying his
motion for new trial as to counts 5 and 6 on the grounds of witness misconduct or
ineffective assistance of counsel.
3. Prosecutor’s Alleged Misstatement of Law on Lesser Included Offenses
Gonzalez contends the trial court erred by denying his motion for new trial
because his trial counsel was ineffective for failing to object to or otherwise clarify the
prosecutor’s alleged misstatement of law regarding how the jurors should consider the
lesser included offenses.
a. Background
The trial court instructed the jurors on several lesser included offenses, including
for counts 6 through 9, and 15. The court also instructed the jurors with CALCRIM No.
3517, which listed the offenses/counts covered by the instruction and told the jurors, inter
alia: “It is up to you to decide the order in which you consider each crime and the
relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have
found the defendant not guilty of the corresponding greater crime.”
Near the end of his closing argument, the prosecutor addressed the issue of lesser
included offenses. He told the jurors that the prosecution had proven all of the counts
and allegations against both Gonzalez and his codefendant Roman and said the following
about the lesser included offenses: “I’m going to make it simple for you and tell you
don’t consider the lesser included offenses, because what I’m going to ask you to do is to
81
follow the evidence. If you follow the evidence, there is enough evidence to convict of
the charged offenses. And the judge explained to you, you only consider lesser included
offenses if you find that the charged offenses were not proven. [¶] So if you determine
there’s enough evidence to convict of the charged offenses in the indictment, you don’t
even need to consider the lesser included offenses.” Additionally, using assault with a
deadly weapon (count 6) as an example, the prosecutor explained that if the jurors found
the greater offense proven, they “move on” and “don’t get to [the] lesser included of
simple assault. [¶] Now, if you look at it and you say it was not proven, that’s the only
time you need to consider the lesser included offense of assault, which in this case would
be kind of odd” given the evidence. Koller did not object to the prosecutor’s remarks.
During Koller’s testimony at the hearing on the new trial motion, Upton raised the
issue of alleged prosecutorial error in argument based on People v. Kurtzman (1988) 46
Cal.3d 322, 335 (Kurtzman).38 Upton asked Koller if he had a tactical reason for not
objecting to the prosecutor’s “misstatement” of CALCRIM No. 3517. Koller responded,
“I believe that the Court had properly instructed on that issue, and felt that highlighting
[the prosecutor]’s [remarks] was not necessary.”
Later, when orally arguing the motion, Upton reiterated that the prosecutor’s
remarks “constitute[d] a Kurtzman error, and it had a prejudicial impact on this case,
particularly with regard to the [offenses in counts 7 and 8 under section] 136.1(c)(1).”
Gonzalez does not point us to any mention of Kurtzman error made in his written
new trial motion or reply to the district attorney’s opposition. Moreover, the trial court
did not address this particular claim of error in its written decision on Gonzalez’s motion.
However, the court stated in its written ruling: “As to any claim or argument or basis
38
In Kurtzman, the California Supreme Court addressed a situation in which the
trial court told the jury “that it must unanimously agree on whether defendant was guilty
of second degree murder before ‘considering’ voluntary manslaughter.” (Kurtzman,
supra, 46 Cal.3d at p. 324.)
82
asserted in support of the motion for new trial not specifically discussed herein, the
motion is denied.”
b. Standard of Review and Other Legal Principles
As discussed, ante, we use the Taylor mixed-standard of review when evaluating a
trial court’s denial of a new trial motion alleging an IAC claim. (Taylor, supra, 162
Cal.App.3d at pp. 724–725.)
In Kurtzman, the California Supreme Court held “that a court may ‘restrict [] a
jury from returning a verdict on a lesser included offense before acquitting on a greater
offense’ but may not ‘preclude [it] from considering lesser offenses during its
deliberations.’ (Italics in original.) We thereby impliedly rejected a ‘strict acquittal-first
rule under which the jury must acquit of the greater offense before even considering
lesser included offenses.’ ” (People v. Berryman (1993) 6 Cal.4th 1048, 1073 [quoting
Kurtzman, supra, 46 Cal.3d at p. 333], overruled on another ground by People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1.)
As for prosecutorial error, “it is misconduct for a prosecutor, during argument, to
misstate the law.” (People v. Whalen (2013) 56 Cal.4th 1, 77, disapproved of on another
ground by People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) “ ‘A defendant
whose counsel did not object at trial to alleged prosecutorial misconduct can argue on
appeal that counsel’s inaction violated the defendant’s constitutional right to the effective
assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) We
accord “ ‘substantial deference’ ” to counsel’s tactical decisions and “ ‘will not second-
guess trial counsel’s reasonable tactical decisions.’ ” (Riel, supra, 22 Cal.4th at p. 1185;
see also Coddington, supra, 23 Cal.4th at p. 652.)
c. Analysis
Gonzalez asserts that Koller acted unreasonably when he withheld objection to the
prosecutor’s argument for the reasons he articulated, i.e., because the trial court’s
instruction on lesser included offenses was proper and he believed it was unnecessary to
83
highlight the prosecutor’s remarks. Gonzalez further maintains that Koller’s failure to
object was prejudicial as to the convictions on counts 7, 8, and 9.
We are not persuaded that the reasons Koller provided for his failure to object
places his performance outside the range of reasonably professional assistance. As
Gonzalez concedes, the trial court’s instruction with CALCRIM No. 3517 was correct.
Further, the trial court instructed the jurors that if they “believe that the attorneys’
comments on the law conflict with [the court’s] instructions, you must follow [the
court’s] instructions.” (CALCRIM No. 200.) Although the prosecutor arguably
contradicted the court’s instruction by arguing that the jurors should only consider the
lesser included offenses if they first decided to acquit on the charged offenses, the
prosecutor concurrently urged the jurors to “follow the evidence” to a conclusion that the
People proved Gonzalez’s guilt on the offenses as charged. In this circumstance, it would
not be unreasonable for an attorney to conclude that the jurors would follow the direction
in CALCRIM No. 3517 that they could decide the order for consideration of the offenses
and relevant evidence. (See Centeno, supra, 60 Cal.4th at p. 676.)
Moreover, in his closing argument, Koller did not ask the jurors to return a guilty
verdict on any lesser included offense. Rather, Koller urged the jurors to find Gonzalez
not guilty on counts 6 through 9, and further asked the jurors to “look at that evidence
and make [a] determination” on count 15 (methamphetamine possession for sale). Given
the chosen strategies of persuading the jurors to completely acquit Gonzalez on counts 6
through 9, given the People’s failure of proof, and essentially conceding guilt on count
15, from the defense perspective the importance of the prosecutor’s remarks regarding
the jury’s consideration of the lesser included offenses was minimal. Under these
circumstances, we conclude that Gonzalez fails to show Koller’s reason for withholding
an objection is unreasonable or that Koller’s inaction—evaluated “from counsel’s
perspective at the time”—amounts to deficient performance. (See Strickland, supra, 466
U.S. at p. 689.)
84
We thus reject Gonzalez’s claim that the trial court erred by denying his new-trial
motion IAC claim grounded on prosecutorial error in argument.
F. Sentencing Claims
Although we have already concluded that Gonzalez’s sentence should be vacated
in its entirety based on our reversal of some of his convictions, for the benefit of the trial
court at resentencing we address Gonzalez’s claims of sentencing error with respect to
counts and enhancements that we have not ordered vacated. Gonzalez contends (1) the
concurrent sentence imposed for his robbery conviction (count 9) must be stayed under
section 654; and (2) a post-trial change made to section 1170, subdivision (b), by Senate
Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) requires vacatur of the sentence
for his attempted murder conviction (count 5).39
1. Robbery
Gonzalez contends the trial court erred under section 654 by imposing an unstayed
concurrent sentence on count 9 for his robbery conviction related to the home invasion.
a. Legal Principles
“Section 654 precludes multiple punishments for a single act or indivisible course
of conduct.” (People v. Assad (2010) 189 Cal.App.4th 187, 200.) Even concurrent
sentences on convictions subject to section 654 are prohibited; the sentence on one of the
two applicable convictions must be imposed and then stayed. (People v. Deloza (1998)
39
Gonzalez also contends that the enhanced seven-years-to-life sentences imposed
on counts 7 and 8 must be vacated because the jury did not expressly find that the
dissuasion underlying his convictions on those counts was accompanied by “threats” (in
contrast to “force”), as allegedly required by section 186.22, subdivision (b)(4)(C).
Because we have already concluded that, under Assembly Bill 333, the jury’s section
186.22(b) gang enhancement findings on counts 7 and 8 cannot stand (section II.B.5.,
ante), we need not address Gonzalez’s additional claim about the need for a jury finding
under section 186.22, subdivision (b)(4)(C). We express no opinion on this issue and
leave it to the parties and trial court to address as necessary on remand, should the district
attorney decide to retry the enhancement allegation under section 186.22, subdivision
(b)(4)(C).
85
18 Cal.4th 585, 591–592.) “[T]he purpose of section 654 ‘is to insure that a defendant’s
punishment will be commensurate with his culpability.’ ” (People v. Latimer (1993) 5
Cal.4th 1203, 1211.)
Application of section 654 “requires a two-step inquiry, because the statutory
reference to an ‘act or omission’ may include not only a discrete physical act but also a
course of conduct encompassing several acts pursued with a single objective.” (People v.
Corpening (2016) 2 Cal.5th 307, 311.) Only if the case involves more than one act does
a court consider whether the case involves a course of conduct. (Ibid.) “At step one,
courts examine the facts of the case to determine whether multiple convictions are based
upon a single physical act.” (Id. at p. 312.) “Whether a defendant will be found to have
committed a single physical act for purposes of section 654 depends on whether some
action the defendant is charged with having taken separately completes the actus reus for
each of the relevant criminal offenses.” (Id. at p. 313.) If the convictions involve more
than one act, the court reaches “step two of the section 654 analysis: whether the [course
of conduct] involved multiple intents and objectives.” (Id. at p. 316.)
At step two, whether crimes arise from an indivisible course of conduct turns on
the perpetrator’s intent and objective, not the temporal proximity of his or her crimes.
(People v. Harrison (1989) 48 Cal.3d 321, 335.) “If all of the offenses were incident to
one objective, the defendant may be punished for any one of such offenses but not for
more than one.” (Neal v. State (1960) 55 Cal.2d 11, 19, overruled in part on another
ground in People v. Correa (2012) 54 Cal.4th 331, 341.) Whether a defendant harbored a
single intent—and thus a single objective—is a factual question; the applicability of
section 654 to settled facts is a question of law. (Harrison, at p. 335.) We review the
record for substantial evidence to support implied findings sufficient to uphold the
sentence under section 654. (See People v. Osband (1996) 13 Cal.4th 622, 730–731.)
86
b. Analysis
At trial, Gonzalez requested that his punishment on count 9 be stayed under
section 654, as related to count 7. For count 9, the trial court imposed a midterm
sentence of three years and ten years consecutive for the gang enhancement under section
186.22, subdivision (b)(1)(C), for a total of 13 years concurrent. The court explained that
it imposed a concurrent midterm sentence because the offense involved “the same course
of conduct as in Count[s] 7 and 8 and did appear to be an afterthought as the parties were
leaving the residence.” Regarding count 10 (burglary), the court imposed a consecutive
sentence “because the purpose of the entry of the home was to commit a theft”—
presumably referring to the intent to steal the incriminating letter.
On appeal, Gonzalez relies principally on People v. Bradley (2003) 111
Cal.App.4th 765 (Bradley) to argue that, because his liability for the robbery committed
by his coconspirator Juan Garcia was based on the theory that the robbery was a
foreseeable consequence of the objective of the conspiracy (i.e., “to ensure that the letter
did not wind up in the hands of the authorities”), Gonzalez may not be separately
punished for the robbery offense.
In Bradley, the defendant was a young woman who agreed to participate in a
scheme to entice a “prosperous looking customer” at a casino into leaving with her “so
her two male accomplices could rob him” and their plan was for her “to persuade the
target to take her in his car” and “then get him to stop somewhere along the way.”
(Bradley, supra, 111 Cal.App.4th at p. 767.) The defendant was convicted of robbery as
an aider and abettor and of attempted murder as a natural and probable consequence of
the robbery she aided and abetted. (Id. at pp. 767–769.) The trial court imposed
consecutive sentences for the two offenses. (Id. at p. 767.) The appellate court explained
that the defendant “had only one objective and one intent—to aid and abet a robbery of
the victim” (id. at p. 768) and, because she was waiting in another vehicle when the
victim was shot, she was “unaware that second crime was occurring until after it was
87
completed and thus didn’t have an opportunity to prevent or even protest its commission.
As a result, there simply was no evidence [defendant] exhibited the more dangerous
mental state warranting a consecutive sentence under [section] 654.” (Id. at p. 771.) The
court concluded that “[section] 654 denies the trial court discretion to impose consecutive
sentences on [defendant] for the robbery and attempted murder convictions.” (Id. at
p. 770.)
We are not persuaded that the present case is like Bradley. Here, Gonzalez wrote
in his kite that “[o]n the way out [Garcia] grabbed her [purse].” From this admission and
other evidence concerning Crystal Martinez’s descriptions of the home invasion, the trial
court could have reasonably inferred that Gonzalez was aware of the robbery as it
occurred and could have done something about it before he and his cohorts left the home.
Simply put, the trial evidence includes substantial evidence of separate objectives
harbored personally by Gonzalez during the home invasion. (See People v. Cummins
(2005) 127 Cal.App.4th 667, 682; People v. Nguyen (1988) 204 Cal.App.3d 181, 189–
190.)
Accordingly, we conclude the trial court’s implied determination that section 654
did not bar multiple punishment for the robbery conviction is sufficiently supported by
the evidence and the robbery sentence on count 9 need not be stayed.
2. Attempted Murder
Gonzalez contends a post-trial legislative change to section 1170, subdivision (b)
(hereafter section 1170(b)) requires vacatur of the sentence on count 5.
For that count, the trial court instructed the jury “James Gonzalez is charged in
Count 5 with attempted murder. [¶] To prove that he is guilty of attempted murder, the
People must prove that: [¶] 1. James Gonzalez took at least one direct but ineffective
step toward killing Curtis Garza; [¶] AND [¶] 2. James Gonzalez intended to kill Curtis
Garza.” The instruction also defined “direct step,” but did not specify that the jury must
find more than one direct step. In connection with the allegation attached to count 5 that
88
Gonzalez personally used a deadly weapon (§ 12022, subd. (b)(1)), the jury was
instructed that it needed to determine whether Gonzalez “personally used a deadly
weapon” during the commission of the attempted murder.
With respect to the sentence on count 5, the trial court stated it was imposing the
upper term of nine years. It selected the upper term “because of the violence involved,
multiple stab wounds, and that the victim was not armed.”
In October 2021, while Gonzalez’s appeal was pending in this court, Senate Bill
567 amended section 1170. (Stats. 2021, ch. 731, § 1.3.) Taking effect on January 1,
2022, section 1170, as amended, includes a new subdivision, (b)(2), which provides,
“The court may impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).)
The Attorney General concedes that the amendments made by Senate Bill 567 to
section 1170, subdivision (b) apply to Gonzalez. We agree. (See People v. Flores (2022)
73 Cal.App.5th 1032, 1038–1039 (Flores); see also People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 308.)
Regarding the remedy, Gonzalez contends that we should vacate his sentence and
remand for a new sentencing hearing because, in the absence of a jury finding, his upper-
term sentence on count 5 “cannot stand no matter what the evidence may show in the
record.” By contrast, the Attorney General argues that no remand for resentencing is
necessary because the record shows, beyond a reasonable doubt, that the jury, if properly
instructed, would have found true the aggravating factors relied on by the trial court.
Because we otherwise vacate Gonzalez’s sentence entirely and remand the matter for full
resentencing (see Navarro, supra, 40 Cal.4th at p. 681; Buycks, supra, 5 Cal.5th at
p. 893), we need not address the dispute between the parties regarding whether the
89
absence of a jury finding on the circumstances in aggravation here requires a remand for
resentencing or was harmless error.
Furthermore, we need not address the Attorney General’s assertion that, on
remand, the district attorney should be “given the election of proceeding under the new
version of Penal Code section 1170, subdivision (b), or accepting resentencing.” Rather,
we direct the trial court at Gonzalez’s resentencing to impose a new sentence on count 5
in accordance with Senate Bill 567. We express no opinion regarding the district
attorney’s potential elections at resentencing or the trial court’s application of new
section 1170, subdivision (b), leaving it to the trial court to determine Gonzalez’s
appropriate sentence in the first instance. (See Flores, supra, 73 Cal.App.5th at p. 1039.)
G. Summary of Conclusions
For the benefit of the parties and trial court, we summarize our conclusions:
Count 1 (street terrorism) is reversed for instructional error and, on remand, the
district attorney may elect to retry Gonzalez this count. (See section II.B.4., ante.)
Count 11 (criminal threats) is reversed for instructional error and, on remand, the
district attorney may elect to retry Gonzalez on this count as charged or accept a
reduction of the conviction to the lesser offense of attempted criminal threat. (See
section II.B.2., ante.)
Counts 12 and 13 (conspiracy) are reversed for instructional error and, on remand,
the district attorney may either retry both counts 12 and 13 or accept the jury’s conviction
and any true findings on attached allegations on one of those two counts, after which the
other count and its attached allegations shall be dismissed. (See section II.B.1., ante.)
The convictions on the remaining counts are affirmed.
The true findings on the gang enhancement allegations attached to counts 5–11
(§ 186.22, subd. (b)) are reversed. On remand, the district attorney may retry these gang
enhancement allegations under the law as amended by Assembly Bill 333. (See section
II.B.5., ante.)
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Gonzalez’s sentence is vacated entirely, and the trial court must fully resentence
Gonzalez upon the conclusion of any further proceedings on remand. (See section
II.B.1.c., ante.)
Regarding the sentence on count 5, we direct the trial court at Gonzalez’s
resentencing to impose a new sentence on that count under the law as amended by Senate
Bill 567. (See section II.F.2., ante.)
As the gang enhancements attached to counts 5–11 have been reversed, they
cannot be used to enhance Gonzalez’s sentence on those counts at his resentencing absent
retrial and in accordance with the jury findings at that proceeding.
III. DISPOSITION
The convictions on counts 1, 11, 12, and 13 are reversed. The true findings on the
gang enhancement allegations attached to counts 5–11 are reversed. The convictions on
the remaining counts and the true findings on the remaining enhancements are affirmed.
Gonzalez’s sentence is vacated in its entirety, and the matter is remanded to the
trial court for a possible retrial on counts 1, 11, 12, and/or 13 and the gang enhancement
allegations (Pen. Code, § 186.22, subd. (b)) attached to counts 5–11. As to counts 12 and
13 (conspiracy), if the prosecutor elects not to retry those counts, the trial court shall
provide the prosecutor the opportunity to accept the jury’s previous conviction and true
allegation findings on either count 12 or count 13 and then reinstate the conviction and
allegation findings on the count the prosecutor accepts and dismiss the other count and its
attendant allegations. If the prosecutor elects not to retry Gonzalez, or at the conclusion
of any retrial, the trial court is directed to resentence Gonzalez in a manner consistent
with this opinion.
91
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Danner, J.
WE CONCUR:
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Elia, Acting P.J.
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Grover, J.
H046836
People v. Gonzalez