People v. Gonzalez CA5

Filed 9/28/20 P. v. Gonzalez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077597
Plaintiff and Respondent,
(Super. Ct. No. 16CR01606)
v.
JUAN CARLOS GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Merced County. Carol K.
Ash, Judge.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer
Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Juan Carlos Gonzalez was convicted of murder, with a gang murder special
circumstance and premeditation and gang enhancements, and attempted murder, with
premeditation and gang enhancements. He argues the prosecution failed to prove the
“primary activities” element of the gang charges, presenting insufficient evidence as to
this element. He challenges admission of his prior conviction for manslaughter (with a
firearm enhancement) as a predicate offense, in connection with the gang charges. He
contends the trial court erroneously admitted evidence of third-party threats aimed at an
eyewitness (i.e., the victim as to the attempted murder charge). He argues the prosecutor
posited an “unduly specific” hypothetical to the People’s gang expert for the purposes of
eliciting an opinion as to gang-related nature of the instant crimes. He contends the court
erred in failing, sua sponte, to give the jury a limiting instruction with regard to the
evidence of his prior conviction for manslaughter. We reject these contentions.
Gonzalez further argues, with respect to his sentence, that the trial court
erroneously imposed two five-year prior serious felony conviction enhancements (one as
to each count) that were never alleged in the operative information. We agree these
enhancements were erroneously imposed and reverse them. The trial court is directed to
prepare a new abstract of judgment reflecting this change and to forward it to the
appropriate correctional authorities. The judgment is otherwise affirmed.
PROCEDURAL HISTORY
Gonzalez was charged, by amended information, with the murder of Abram
Hernandez (count 1; Pen. Code, § 187, subd. (a)1) and the attempted murder of Sheila K.
(count 2; §§ 664, 187, subd. (a)). A gang-murder special circumstance allegation was
attached to the murder count (§ 190.2, subd. (a)(22)), and premeditation allegations were
attached to both counts (§ 189). In addition, the information alleged, as to both counts,
gang enhancement allegations, personal-discharge firearm enhancement allegations,
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
allegations of one prior strike, and allegations that Gonzalez had served a prior prison
term. The information did not include an allegation, as to either count, of a five-year
prior serious felony conviction sentence enhancement, under section 667, subdivision (a).
A jury convicted Gonzalez of both charged counts. All of the enhancement
allegations pleaded in the information were found true as well. Gonzalez was sentenced,
on count 1, to life in prison, without the possibility of parole, plus 30 years to life (25
years to life for the personal-discharge firearm enhancement and five years for an
unpleaded prior serious felony conviction enhancement), and on count 2, a consecutive
term of 30 years to life in prison, with the possibility of parole (including a doubled 15-
year pre-parole minimum in light of the gang enhancement), plus 30 years (25 years to
life for the personal-discharge firearm enhancement and five years for an unpleaded prior
serious felony conviction enhancement).
FACTS
Testimony of Sheila K.
Trial commenced on March 6, 2018. Sheila K. testified for the People about the
events underlying the charges.
On March 4, 2016, during the late evening, Sheila took a short walk with her
boyfriend, Abram Hernandez, to a 7-Eleven near Sheila’s home in Delhi. The 7-Eleven
was “real close” to Sheila’s house, no more than a five or six minute walk away. Sheila
noted, “We were going for a pack of cigarettes and a blunt wrap.”
Sheila described what happened when she and Abram got to the 7-Eleven. The
prosecution also played video from surveillance cameras installed inside and outside the
7-Eleven; the video showed events that took place while Sheila and Abram were at the
store. Sheila began: “Well, when we first walked into the store, it’s, like – when I
opened the doors, it was – everything froze, and I seen him [pointing to defendant]
standing there.” Sheila added, “I seen him right away. [¶] … [¶] He was staring at us.”
Sheila continued: “It felt – like I said, when I first walked in, I could feel – I felt tension.
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It just felt tense in there. It felt very dry.” She testified: “[M]y boyfriend told me just –
just, ‘Let’s go straight to the cash register and get what we’re going to get and then leave.
Just don’t say anything,’ and so that’s what we did.”
Gonzalez (who was wearing a blue shirt in the 7-Eleven surveillance video), was
there with some other men. Sheila had not seen any of them before. She “was just very
nervous because [she] wasn’t quite sure what was going on.” She wondered whether,
unknown to her, there was some history between Gonzalez and Abram. She was scared
and unsettled by the way the men “looked at” her and Abram. She noted that one of the
men “stood right behind” Sheila and Abram at the register, “and he just looked.” She
went on: “He just kept glaring at my boyfriend as if my boyfriend were already dead. It
was a cold look.” Sheila was afraid and did not want to leave the store; she told Abram
they should remain in the store until Gonzalez and his friends left, to avoid any problem.
However, Abram told her not to worry as the men would not do anything to them.
As Sheila and Abram left the store to walk home, Sheila felt “very nervous.”
Gonzalez and his friends followed them out of the store. Sheila testified: “I kept looking
back to see where they were, and [Gonzalez] was watching the whole time where we
were walking.” At one point, Sheila saw Gonzalez and his friends outside the 7-Eleven,
standing on the sidewalk, in front of a truck. Sheila said: “[Gonzalez] was on the
sidewalk watching in our direction.” The prosecutor played a clip from the store’s
surveillance cameras that showed Sheila and Abram walking away from the store and
Gonzalez and his friends pacing outside.
Sheila and Abram walked down Stephens Street and eventually turned up Shell
Street. Just as they were turning on to Shell Street, a truck went by, behind them, on
Stephens; it was the truck that Sheila saw at the 7-Eleven (the one next to which
Gonzalez and his friends were standing). The truck was white, with tinted windows and
a four-door cab. Sheila said, indicating on a map: “It went past us like this real slow.”
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After the truck passed Sheila and Abram on Stephens, it turned up Johnson Street, the
next street over, after Shell.
Sheila and Abram continued walking up Shell Street towards its intersection with
Hillside. There was a stop sign at the intersection of Shell with Hillside. When they
were a couple of houses away from the stop sign at the intersection of Shell and Hillside,
the same white truck drove by on Hillside (it had essentially driven around the block).
Sheila and Abram thought the truck continued down Hillside, but they were wrong.
“[W]ithin seconds,” Gonzalez “came running … around the corner,” on to Shell, from
Hillside. Gonzalez came from the left side (the direction in which the truck had gone),
rounded a fence, and got onto Shell.
Sheila instantly noted it was Gonzalez: “I noticed the same blue shirt that he had
on at the store, and he ran right underneath the streetlight, so I couldn’t help but see who
it was.” He had an “obvious” tattoo that Sheila saw as well. Gonzalez had thrown on a
“gray zip-up hoodie … at this point.” However, the hoodie was “unzipped,” and Sheila
clearly saw his shirt—which was a “bold” shade of blue—under it.
Gonzalez ran up to the first house on Shell (beyond the stop sign at the
intersection of Shell and Hillside), while Sheila and Abram were two houses away from
the stop sign at that point. “And [Gonzalez] said something. He pulled a gun out from
his waist.” Sheila noted: “It’s a black gun. I don’t know what kind of gun it was. All I
know is he was pointing it at us.” Sheila said: “It seemed, like, really slow motion. I
don’t know. At first I thought he was trying to be a bully. I didn’t think he was really
going to pull the trigger.” Abram yelled out: “‘I’m not an active Northerner. I’m not an
active Northerner.’” Sheila added: “I just looked at Abram, and Abram looked at me,
and he pushed me and told me to run, and then that’s [when] – [Gonzalez] started
shooting. I heard him firing just one right after another.”
Sheila testified: “[W]hen I heard the first bullet go off, I closed my eyes, and I
just kept running. I don’t even know where I was running to.” Sheila added: “I just
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could hear the gun shooting … nonstop. It was just repetitive until I got hit.” Sheila was
shot in the right leg and collapsed on the ground. She testified: “I know when I hit the
ground, I opened my eyes, and I looked, and I seen [Gonzalez] running back around the
corner.” Sheila went to look for Abram. She said: “I seen him laying in the road in the
same exact spot he was at when I ran.”
The street was deserted that night. Sheila said: “It was like nobody was around
that neighborhood at that time.” She testified: “I was screaming. I was screaming for
anybody to come outside. I wanted somebody to come help us.” Nobody came. Sheila
tried calling 911, twice – but “they did not answer.” Sheila “just kept screaming” and
“ran towards the stop sign.” She said: “I seen the white truck come back in front of me
again.” The truck “just went by really slow.” The prosecutor asked, “And this would
have been when you’re standing at the end of Shell Street?” Sheila answered: “At the
stop sign, yes. It’s the stop sign at Hillside.” Sheila did not see anyone in the truck.
Sheila testified: “I ran back towards where Abram was because I didn’t want him
– I didn’t want him to die on that blacktop.” She continued to scream. Eventually “one
of the neighbors opened the door and yelled that he had called the cops.” A man who
was working on a car somewhere on Hillside and was passing through Delhi, “came from
around the corner” to help, because he heard Sheila screaming. Sheila testified: “[At that
point], I was standing by Abram listening to the blood gurgle in his chest and his mouth.
That’s all I could hear waiting for somebody to come help.” Sheila added: “I can’t even
describe how I was feeling at that time. I was just – I was so scared.” Finally, a police
officer arrived. Thereafter, it “seemed like everybody showed up.”
The prosecutor asked Sheila: “And how much time passed, by your estimate,
from when you left 7-Eleven – from when you left the store and started walking down the
street and when you and Abram were shot?” Sheila answered: “It was just about – it was
just minutes. My house is only, like, five minutes from [the 7-Eleven].” Once she and
Abram left the store, the shooting would have been a matter of “two or three minutes.”
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She added, “I live right around the corner from where [the shooting] happened.” Sheila
also clarified that during the walk back from the 7-Eleven, down Stephens to Shell, and
up Shell towards where Hillside crossed Shell, no other vehicle went by except the white
truck.
Abram was “medi-flighted” for medical treatment but “died early that morning.”
Sheila was taken by ambulance to the hospital; the prosecutor admitted into evidence,
medical records establishing that Sheila had suffered a gunshot wound to her leg.
Sheila had dated Abram for five or six months but had known him for longer. She
said: “He used to be a Northerner, but then he dropped out, and he moved to Delhi.”
Abram was not an active Northern gang member at the time of the shooting.
The prosecutor asked Sheila whether Sheila was “sure” that Gonzalez was the man
who ran up and shot Abram and Sheila. Sheila responded: “I’m absolutely positive.”
The prosecutor then addressed the events of August 2016, that is, a period five
months after the shooting (which had occurred on March 4, 2016). Sheila identified a
picture of a man who came to her door in August 2016. The man had overlapping “tattoo
letters on his face.” The man was later identified as Luis Prado (Sheila identified him in
a photograph). Sheila explained: “He said that he knew where my whole family lived,
and that if I was to testify – come here to testify, that he was going to kill somebody in
my family. He said he knew where my daughter lived in Stockton, my granddaughter
went to preschool. He said he knew everything about my family.” She added: “He said
it would be in my best interest not to testify on this case.” The man’s words scared
Sheila.
Sheila also reported other incidents: “Small things that had happened since I had
been shot, and I just thought I was maybe reading too much into it. Like, somebody
came in the middle of the night and was spinning the tires out in front of my house
yelling things and pointing their headlights at my house[,] flashing it. I mean, things
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being thrown at my house.” Sheila had cooperated with the police with regard to the
shooting and had also testified at a pre-trial hearing in the matter.
On cross-examination, Sheila acknowledged she had also reported an auto theft
involving her daughter; the theft had occurred before the instant shooting. The auto theft
incident was charged as a carjacking and Sheila had testified in that matter as well.
Sheila also acknowledged she had two felony convictions for receiving stolen property.
Police Investigation
Merced County Sheriff’s Sergeant Raymond Framstad was dispatched to the scene
of the shooting at 10:56 p.m. on March 4, 2016. He saw Sheila and others standing in the
roadway and Abram lying on his back in the middle of the street. Abram appeared to
have a wound on his forehead and blood was pooling under his head, he “also had blood
coming from [the] side area of his sweatshirt.” Sheila had been shot in the back of her
right calf. She was “very distraught.” Seven “9[-]mm gold Winchester cartridge
casings” were found at the scene that night; three more were recovered a few days later,
when improved weather allowed for a more thorough search.
Dr. Mark Super, a forensic pathologist, performed Abram’s autopsy. He located
two gunshot wounds. One was on “the inside surface of the left upper arm,” or armpit
area, exiting out of the “right front of the neck.” The bullet that caused this wound went
through the armpit and hit a major blood vessel and then the larynx or voice box, possibly
impairing Abram’s his ability to breathe. The other bullet wound was to Abram’s
forehead; the bullet in this case “went into the head and resulted in brain injury.” Each
bullet wound was potentially fatal, independently. Both the bullets that entered the body
were atypical and deformed, indicating they hit the ground or ricocheted off the ground
prior to entering the body. Dr. Super also noted that Abram had various tattoos on his
body, including “Merced,” “Forever Forward, and “W.”
Sometime after 11:00 p.m. on the night of the shooting, Merced County Sheriff’s
detectives reviewed surveillance footage at the 7-Eleven and took “still frames” of the
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footage that were shared with other detectives. Fairly quickly, a detective in the
department, Detective Samuel Becerra, identified, based on the still frames, Gonzalez and
the two friends with him, on account of previous contacts with all of them. The two
friends with Gonzalez were identified as Adrian Garcia and Jesus Ivan Mendoza.
Becerra also examined the Facebook accounts of Gonzalez and Adrian Garcia (the latter
two were Facebook “friends”). Becerra testified: “[B]oth Facebook accounts were open
to the public, so I went ahead and went through the pictures and seen that there were
multiple pictures that were gang related and had Mr. Gonzalez in them.” The pictures of
Gonzalez revealed a “Delhi” tattoo on his neck (Becerra noted that “Gonzalez is from
Delhi, went to Delhi High School”). Becerra described one of the photographs: “On the
very top you have the skulls, and it says ‘Delhi’ here on the very top left corner, you can
say. Then it says ‘Ghost Town’ here (indicating).” Ghost Town Sureños (GTS) was a
local criminal street gang in Merced County and surrounding areas.
Another photograph that Detective Becerra described—various versions of this
photograph were admitted into evidence—depicted Gonzalez and Adrian Garcia, along
with three other men (two of whom were identified as Aldo Lepez and Daniel Lizarraga),
at the gravesite of Marcos Naranjo-Servin, a known GTS member.
Detective Becerra further determined, from the Facebook photographs, as well as
post-arrest photographs of Gonzalez, that Gonzalez had a “tattoo of ‘Delhi’” on his neck,
a “2-0-9” tattoo on his chest (with a skull in the “0”),2 and three dots tattooed on the left
side of his wrist, along with tattoos of “Ghost Town” on his back and “Ghost Town
Sureños” on his right forearm. As for Mendoza, based on photographs shown to Becerra
by the prosecutor, Becerra confirmed that Mendoza had a “D” tattooed on the back of his
head and “GTS” tattooed on his right forearm.
2 The telephone area code for the local area is 209.
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Sergeant Clint Landrum drove out to Gonzalez’s residence around 2:00 a.m., on
the night of the shooting, in an unmarked car. As Landrum was approaching a nearby
intersection, Gonzalez drove by him in a white Nissan Frontier and pulled into the
driveway of his house. Landrum had viewed the surveillance footage from the 7-Eleven
as well as a prior booking photograph of Gonzalez. Landrum recognized Gonzalez “from
the huge Delhi tattoo on his neck,” which was clearly depicted in the booking photograph
of Gonzalez that Landrum had consulted earlier. After Gonzalez pulled up to his house,
Landrum “established a fixed point of surveillance on the residence” and remained there
until other officers arrived to execute a search warrant at approximately 5:30 a.m.
Landrum assisted the officers in executing the search warrant.
During the search, the key to the Nissan Frontier was found on a dresser in
Gonzalez’s bedroom. A pay stub from Gonzalez’s place of employment was found in his
room as well. In addition, two blue bandanas were discovered in a box on his nightstand.
Landrum testified that the surveillance footage from the 7-Eleven showed Gonzalez in a
white “long-sleeved thermal type of shirt” with a “blue Polo-style shirt” on top. The
white thermal and blue polo shirt were found together, inside out, and were collected
from Gonzalez’s room. A hat Gonzalez was seen wearing on the surveillance footage
was also collected.
The vehicles on the property were searched. Gonzalez’s driver’s license was
found on the floorboard of the Nissan Frontier truck he was driving earlier that night.
Another truck parked on the property contained a box of nine-millimeter ammunition.
Yet another vehicle contained a backpack holding numerous rounds of ammunition for
various types of rifles and other firearms, metal knuckles, tactical vest attachments, a
drop-leg-style pistol holster, magazine carriers, a multi-tool with screwdrivers and blades,
pistol grips, ammunition holders, a rifle scope, and a laser attachment for a gun.
California Department of Justice Criminalist Kaitlin Bauer tested the blue polo
shirt obtained from Gonzalez’s bedroom and found one gunshot residue particle on,
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respectively, the right sleeve, left sleeve, and shirt front. This was a “low-level positive”
for gunshot residue, but gunshot residue particles are easily displaced or removed, and
samples tested in the lab generally yield low-level positive or negative results. Bauer
explained that an important factor in this context was “the amount of time that has
elapsed between when the incident happened and when [the relevant items] were
sampled,” among other factors.
Testimony of the People’s Gang Expert
Merced County Sheriff’s Deputy Tim Goncalves testified as a gang expert for the
People. He served on the Department of Justice’s “Merced Area Gang and Narcotic
Enforcement Team” for “[a]lmost four years[,] from February 2014 to January of 2018.”
Deputy Goncalves testified: “Primarily in Merced County Hispanic criminal street
gangs are the most prevalent[,] which would consist of Norteño criminal street gangs and
Sureño criminal street gangs.” He added: “[B]eing in Northern California, specific to
Hispanic gangs, Norteños are predominantly what take up territory in Northern
California.”
Deputy Goncalves explained: “So street gangs are a derivative from prison gangs,
California prison gangs, specifically dating back into history in the ‘50s and ‘60s. You
have two of the more predominant Hispanic prison gangs that evolved, one being the
Mexican Mafia[,] [regarding] which the letter ‘M’ in the alphabet is used by Sureño
criminal street gangs to directly pay homage or respect to the Mexican Mafia.” He
continued: “Similar[ly][,] [the] Nuestra Familia being the Norteño prison gang, the letter
‘N’ is synonymous with paying respect to and homage for Nuestra Familia prison gangs.”
He went on: “So that being said, these Sureño and Norteño criminal street gangs are
essentially subsets that are functioning underneath the umbrella of these prison gangs.”
The Sureño and Norteño subsets are rivals with each other and have separate,
identifying colors, numbers, and symbols. “Blue has been a color that’s been adopted
primarily by the Sureño criminal street gangs,” and “red [is] the predominant color
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identified and associated with Norteños or the Nuestra Familia.” Sureños identify with
the number 13 as “M” is the 13th letter in the alphabet; Norteños identify with the
number 14 as “N” is the 14 letter of the alphabet. These numbers are sometimes
represented, respectively, as one dot and three dots (for 13) or one dot and four dots (for
14). The numbers 13 and 14 may also be represented simply by, respectively, three dots
and four dots.
Merced County has numerous Norteño subsets, including West Side Merced or
WSM; Merced Ghetto Boys or MGB; Dead End Locs or DEL; Loughborough Locs or
LBL; Rebels Before Locs or RBL; and Norteños for Life or NFL. There is a subset
known as Livas in the Livingston area. In the Atwater area, there is a subset called North
Side Atwater. In Delhi, there are the Delhi Locs and the Varrio Delhi Locs Norteños.
Deputy Goncalves named additional Norteño subsets in Le Grand, Planada, Dos Palos,
and Los Banos; he noted there were additional subsets in the adjoining areas of Salinas,
Watsonville, and Gilroy.
As for the Sureño subsets in Merced County, Deputy Goncalves noted: “Merced
has never really been known as a stronghold for Sureños. There’s been a lot of transient
activity. There’s been members who have a part of or who had influence with some of
the subsets in and around the Merced city area which would include SSL, South Side
Locs. We have Los Primos, are two of the subsets that some of their members frequent
the Merced area more; however, are more transient.” Goncalves went on to name Sureño
subsets in “Santa Nella/Gustine,” Atwater, Winton, and the “west side” of Merced
County. He also testified: “And then moving north in and around the Livingston, Delhi,
Ballico, Cressey areas we have GTS, which is [an] abbreviation for Ghost Town Sureños.
They have been identified to have transient activity not only in our county but in
Stanislaus [county], to include townships or cities Hughson [and] Waterford.”
Regarding the signs and symbols associated with the GTS gang, Deputy
Goncalves testified: “So as I previously stated, Ghost Town Sureños, short abbreviated
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form of that would be the letters GTS, alongside with the common Sureño symbols 13,
one dot, three dots in a triangle.” Other symbols used by GTS included “a skeletonized
Grim Reaper or skulls.” GTS also identified with the color, blue. Goncalves estimated
there were “around 12-15” active GTS members in Merced County, whereas Sureños in
Merced County, collectively, numbered “in the 75 range.” One source that Goncalves
spoke to in his “patrol career,” self-identified as “one of the founding members” of GTS;
this person told Goncalves that the GTS was formed “around late ‘80s, early ‘90s.”
However, Goncalves himself became aware of GTS in 2008, when he joined the sheriff’s
department, as a court security deputy.
Goncalves testified about predicate offenses, as defined in section 186.22,
subdivision (e), committed by the GTS gang. He noted, with reference to a certified
abstract of judgment dated February 27, 2014, that Jesus Ivan Mendoza (one of the men
who was with Gonzales at the 7-Eleven), was convicted of possession of
methamphetamine for sale, pursuant to Health & Safety Code section 11378. With
reference to photographs of Jesus Mendoza, Goncalves further testified that Mendoza had
a tattoo of the letter “D” that represented the “township of Delhi,” as well as two tattoos
of the letters “GTS” that represented Ghost Town Sureños. Finally, Goncalves testified,
based on Mendoza’s tattoos, his presence in the 7-Eleven with Gonzalez, and his
conviction for drug sales, that he was a member of the Ghost Town Sureños gang.
Deputy Goncalves next testified, with reference to a certified abstract of judgment
dated February 26, 2010, that Aldo Lepez was convicted of assault with force likely to
cause great bodily injury (former section 245, subd. (a)(1)), with a gang enhancement
(section 186.22, subd. (b)(1)(A)). The prosecutor admitted into evidence photographs of
Lepez wearing blue clothing. The photographs also showed Lepez had multiple tattoos
of “Ghost Town Sureños” and the number “13” in numerals and dots, on his body. In
addition, Goncalves identified Lepez in a photograph in which Lepez was with four other
men, including Gonzalez, Adrian Garcia (who was with Gonzalez and Mendoza at the 7-
13
Eleven), and Daniel Lizarraga. Goncalves indicated he knew, from personal experience,
four of the five men in the photograph to be members or associates of the GTS
(Goncalves was referring to Lepez, Gonzalez, Adrian Garcia, and Daniel Lizarraga). The
photograph showed the men at the gravesite of another GTS member, Marcos Naranjo-
Servin, who was “killed in a gang murder”; the gravesite was adorned with blue
decorations and Sureño memorabilia.3 Goncalves opined, based on Lepez’s tattoos, blue
clothing, and presence at the gravesite in a group of known GTS members, that Lepez
was an active GTS member.
Deputy Goncalves further testified, with reference to a certified abstract of
judgment dated January 31, 2011, that Daniel Lizarraga was convicted of carrying a
loaded firearm on one’s person, in violation of section 12031, subdivision (a)(1). With
reference to a photograph of Lizarraga, Goncalves testified that Lizarraga had a black dot
on his right hand and three black dots in a triangle formation on his left hand, signifying,
collectively, the number 13, that in turn represents the letter M, and is a sign of “respect
and homage to the Mexican Mafia.” Another photograph depicted Lizarraga “using his
fingers to make the number 3, which is just a short version of the number 13.” Lizarraga
was also featured in the photograph of the group of GTS members, including Gonzalez,
Adrian Garcia, and Aldo Lepez, at the gravesite, decorated in blue, of the murdered GTS
member, Marcos Naranjo-Servin. Based on these photographs and the crime committed
by Lizarraga, Goncalves opined that Lizarraga was an active member of the Ghost Town
Sureños.4
3 This photograph was previously discussed by Detective Samuel Becerra, as noted
above.
4 We note that earlier, Detective Samuel Becerra, one of the investigating detectives
on the case, testified that he had contacted Lizarraga during a traffic stop on May 4, 2014.
In that interaction, Lizarraga told Becerra that he was an active member of the Ghost
Town Sureños.
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Finally, Deputy Goncalves testified, with reference to a certified abstract of
judgment dated January 29, 2013, that Gonzalez, the defendant, was convicted of
voluntary manslaughter pursuant to section 192, subdivision (a) with a firearm
enhancement under section 12022.5, subdivision (a).5 When Gonzalez went to prison in
2013 for this offense, he was “identified as a Mexican Mafia associate and a Sureño
criminal street gang member specifically with Ghost Town Sureños.” Although
Gonzalez was not required to register as a gang member in connection with the crime,
when he was paroled, he was subject to “gang conditions.” After his release from prison,
Gonzalez appeared in the photograph with fellow GTS members Adrian Garcia, Aldo
Lepez, and Daniel Lizarraga, at the gravesite, bedecked in blue, of the murdered GTS
member, Marcos Naranjo-Servin. Goncalves pointed out that Naranjo-Servin was
murdered in Delhi in June 2015; indeed, the photograph showing Gonzalez, Adrian
Garcia, Aldo Lepez, and Daniel Lizarraga at his gravesite showed his headstone with the
date June 2015 on it. Goncalves clarified that the fact that Naranjo-Servin died in June
2015 meant that Gonzalez and the other men were gathered at the gravesite after
Gonzalez had served his prison term for his manslaughter conviction.
The prosecutor then asked Deputy Goncalves: “So we’ve gone over assaults,
possession of firearm, voluntary manslaughter, use of firearm, drug sales. Are these the
primary activities of the Ghost Town Sureños and [the] larger Sureño criminal street
gang?” Goncalves responded: “Yes.” Without specifically referencing the GTS,
Goncalves added that other gang primary activities would include: “mayhem, various
series of assaults which are being committed with or without weapons, but also to include
firearms, and then also to include the most grave of them being murder.” The prosecutor
5 As to all the predicate offenses, in addition to the relevant abstracts of judgment,
the prosecutor also admitted into evidence the relevant charging documents, specifying
the date of commission of each offense. Gonzalez committed the voluntary manslaughter
offense in 2009, when he was 18 years old.
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asked: “And how does drug sales play into Ghost Town Sureños and the Sureño criminal
street gang?” Goncalves responded: “[A]ffording [to them] the ability to traffic and
distribute narcotics allows for unaccounted income which can be redistributed to
purchase more narcotics and drugs and is also used to purchase firearms. Firearms being
a primary weapon for not only offensive activity by individuals but also defensive against
– I think it’s important to [note], not only rival gang members, but former members of not
only rival gangs but also their own gang.” (Italics added.) Goncalves added: “The
phrase blood in/blood out is not uncommon or is not an exaggeration.” Goncalves
observed that the Ghost Town Sureños subset and the larger Sureño criminal street gang
were both “still ongoing in their pattern of criminal activity.”
The prosecutor then commented, “I want to talk to you now a little bit about the
defendant, Juan Gonzalez.” The prosecutor played the surveillance video from 7-Eleven.
Goncalves noted that, as shown in the video, Gonzalez was wearing a “bright vibrant blue
Polo,” and “that color blue is definitely an identifier” of his gang affiliation. He was also
wearing a hat with a “black D,” which “symbolizes the township of Delhi.”
Deputy Goncalves added: “The fact that [Gonzalez is] with Mr. Mendoza and Mr.
Garcia also plays a part in identifying who it is that he associates with and does so in a
public place and is not only associating with them, but is doing so with what you would
consider as being flamed out, wearing your colors in the gang culture.” Goncalves
observed, with reference to the surveillance video played by the prosecutor, that the
behavior of Gonzalez, Mendoza, and Garcia in the 7-Eleven—after Abram, a Norteño
dropout entered the store—was indicative of gang tactics. He explained: “So the fact
that the three of them triangulate and kind of separate, yeah, it could substantiate that
they were all three looking for … various items in the store; however, if you go to …
when the victim walks in and see how from their three positions when the victim walks
in, how the center of attention transfers from what they’re now doing to now the victim
16
and their triangular positions on the victim, that is not a mistake. That is very calculated,
and that was done with specific intent to focus on [Abram].”
Deputy Goncalves continued, with reference to the surveillance video: “Now, yes,
to the common eye it appears as if Mr. Mendoza has something in his hands and is going
to pay for something, but based on my training and experience and my knowledge
specific to when criminal street gang members are encountered with somebody who is
potentially a threat, i.e., a rival gang member or a rival dropout, it is imperative to try to
position yourself to be in an offensive position or defensive position, and that is what I
believe happened when the victim walked up to the cash register, and then immediately
after doing so walks directly to the exit in which he entered the store.” Goncalves went
on: “[Thereafter,] Mr. Gonzalez walked out of that same south entrance of the store
where he walked in, came around the southwest corner of the 7-Eleven, and put himself
in a vantage point to where he could see [Abram] [¶] … [¶] Mr. Gonzalez and Mr.
Garcia put themselves in a vantage point to where they can watch [Abram] and [Sheila]
walking in a northern direction on Stephens away from the store. That is not done by
accident. That is done tactically and with [an] intent to keep his eye on [Abram].”
Goncalves further explained: “And if you notice … [Abram] … looked back. That was,
I think one of several times where, as he was exiting the store … he kept looking over his
shoulder back in the direction of Mr. Gonzalez, Mr. Garcia and Mr. Mendoza.”
The prosecutor asked Deputy Goncalves: “And so from that, the defendant
following the victim, [Abram], out of the store and watching where he was, in addition to
what he’s wearing in that video, and the fact that he’s with other gang members, does that
continue to contribute to whether or not you have an opinion as to whether Mr. Gonzalez
is a criminal street gang member?” Goncalves answered in the affirmative. Goncalves
added that Gonzalez had multiple tattoos, such as “Delhi,” “209 [the local area code],”
and a skull. Goncalves said the skull symbol was an identifier for the GTS gang and the
skull tattoo was a gang tattoo. Gonzalez had other gang tattoos, including a “Ghost Town
17
Sureños” tattoo and a tattoo of three black dots (a reference to the number 13 and the
letter M).
Deputy Goncalves also discussed a number of photographs of, and Facebook posts
by, Gonzalez, which depicted GTS symbols, including “a skull-type figure.” In one
photograph Gonzalez was wearing blue clothing and a tattoo was clearly visible on his
neck. The prosecutor asked whether the photograph revealed GTS identifiers. Goncalves
responded in the affirmative. The prosecutor showed Goncalves other photographs of
Gonzalez in blue clothing; she also showed him the blue bandanas found in Gonzalez’s
room when the search warrant was executed, as well as a photograph of Gonzalez
throwing gang signs. Goncalves said the clothing, bandanas, and gang signs were
relevant to his determination as to whether Gonzalez was a member of a criminal street
gang.
Finally, the prosecutor showed Goncalves the afore-mentioned photograph of GTS
members at the blue-adorned gravesite (Gonzalez appeared in that photograph). The
prosecutor asked whether the photograph reflected any gang-related identifiers.
Goncalves answered, “Yeah, there’s several.” He explained that the photograph showed
Gonzalez with Aldo Lepez, Daniel Lizarraga, and Adrian Garcia, all of whom were
members or associates of the Ghost Town Sureños. Goncalves continued: “The color
blue here. Obviously, Mr. Lepez is wearing this hat which I previously talked about, the
color blue portrayed and displayed over Mr. Naranjo-Servin’s headstone, and the fact that
I know that Mr. Naranjo-Servin was murdered in a gang-motivated homicide in the Delhi
area; furthermore, was done at the hand of two Delhi Loc Norteño rival gang members,
which [case] I was the expert on as well; and then the fact that they’re collectively
together visiting their friend, their fallen friend, and drinking beer.” Ultimately,
Goncalves opined: “I believe based on my training and experience and the indicators
shown to the jury today that Mr. Gonzalez is an active member of the Ghost Town
Sureño criminal street gang.
18
Deputy Goncalves addressed the status of the victim, Abram Hernandez, as well.
He said that Abram was a Norteño dropout. He said Abram had tattoos to the effect of
“Forever Forward,” “Merced,” and “W.” Goncalves testified: “Based on my training
and experience, ‘Forever Forward’ is common in the Norteño criminal street gang world
and along with the Nuestra Familia. It’s like a salutation when one individual is ending a
conversation to the other. It’s a gesture that is done as a form of reminder of the cause in
terms of what they choose to be a part of.” He added: “The ‘W’ and ‘Merced’ are
synonymous, from my training and experience, to be identifiers with the [Norteño] subset
West Side Merced.” Goncalves further explained: “By the nature of things because he is
a dropout Norteño criminal street gang member there would be several people that if
[they] came into contact with [Abram] … whether it was a Norteño or a rival Sureño
gang member – would put [Abram] into a jeopardizing situation.”
Deputy Goncalves also testified about Luis Prado, who Sheila identified, by means
of a photograph, as the man who came to her door several months after Abram was killed
and attempted to dissuade her from testifying. Based on prior contacts with Prado,
Goncalves testified he had an “LTS” tattoo and was a member of Little Town Sureños, a
Sureño subset “derived out of Stanislaus County, specifically the rural areas, to include,
Hughson and Waterford.” Little Town Sureños had around nine members. Prado also
had a tattoo reflecting the number 13 in the form of X’s and dots, as well as another
tattoo reflecting the number 13 in the form of dots. Goncalves further explained: “Mr.
Prado moved into the township of Delhi back in, like, 2009-2010 and has remained living
in Delhi, and in that time I know from previous contacts he – because of his Sureño ties –
started to associate with Ghost Town Sureño members in the Delhi area, not to limit his
association with just GTS, but that’s how I came to learn about Little Town Sureños.”
The prosecutor presented a hypothetical to Deputy Goncalves—the facts of which
mirrored the facts of the instant case—and asked him to assume the hypothetical facts
were true. At the end of the hypothetical she added: “Several months after this, a Sureño
19
criminal street gang member comes to the home of the girlfriend who survived and says
something to her to make her scared to come and testify in the incident that happened in
which the Sureño street gang member killed her boyfriend.” The prosecutor then asked:
“Would you have an opinion as to whether or not those crimes, both the murder of the
man who was associated with the Norteño criminal street gang and the attempted murder
of his girlfriend who was with him, was done for the benefit of, at the direction of or in
association with the Ghost Town Sureños and the larger Sureño criminal street gang with
a specific intent to promote street gang activity?” Goncalves answered, “Yes.”
Goncalves explained his answer to the hypothetical posed by the prosecutor. He
said: “So the means to get to a point after identifying the victims and then subsequently
doing so dressed in the way that you are and in such a tight-knit community is a means,
based on my training and experience, to be offensive and to prove a point. That is a show
of dominance. That is a show that that act of shooting and killing [a] perceived rival – or
a perceived dropout from a rival gang is done so to maintain and/or reestablish
dominance within that community specific to gang culture.” Goncalves continued:
“Furthermore, the efforts to shoot and kill the female, based on my training and
experience, would be done so in an effort to get rid of any witness, material witness. [¶]
A lot of times in gang crimes citizens of the community are apprehensive to come
forward with information in fear of retaliation by gang members, and history has shown,
my personal experience has shown in this job that it happens quite often. [¶] That being
said, having a Sureño member go to the surviving victim’s house is a prime example of
how those efforts are done in terms of trying to impose fear in a community in an effort
to maintain dominance, and that they continue to do these criminal acts and are done in a
manner that minimize[s] the amount of them who may be detected by law enforcement.”
On a different note, Deputy Goncalves clarified that the process of firing a nine-
millimeter semi-automatic firearm results in the barrel of the gun moving around, a
phenomenon known as “muzzle flip.” He testified: “[T]he concept that I’m trying to get
20
across is that when it’s fired, the gun under recoil rises, dips back down, settles, and then
can be re-engaged however many times there is a bullet or however many bullets are
loaded into a magazine.” The prosecutor asked Goncalves: “So essentially the process
can cause the gun to move around as people are firing it, if they’re firing up to seven to
[ten] shots; is that correct?” Goncalves answered: “Correct.” The prosecutor followed
up: “So that would account for different trajectories that may end up.” Goncalves
replied: “Correct.”
DISCUSSION
I. Sufficiency of Evidence of Primary Activities Element Required to Prove
Existence of a Criminal Street Gang, as Relevant to Proof of Gang Special
Circumstance Allegation Attached to Count 1 and Gang Enhancement
Allegations Attached to Counts 1 and 2
The active gang participation special circumstance allegation (§ 190.2, subd.
(a)(22)) attached to count 1 and the gang enhancement allegations (§ 186.22, subd. (b))
attached to counts 1 and 2, required proof of the existence of a criminal street gang as
defined in section 186.22, subdivision (f).
Section 186.22, subdivision (f) defines “‘criminal street gang’” as “any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of the criminal acts
enumerated in [subdivision (e)], having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in, or have engaged in, a
pattern of criminal gang activity.” (§ 186.22, subd. (f).) The acts set forth in subdivision
(e), include possession of drugs for sale, assaults with a deadly weapon or with force
likely to cause great bodily injury, carrying a loaded firearm, and unlawful homicides and
manslaughter. (§ 186.22, subd. (e).)
“Therefore, the ‘criminal street gang’ component of a [gang special circumstance
or] gang enhancement requires proof of three essential elements: (1) that there be an
‘ongoing’ association involving three or more participants, having a ‘common name or
21
common identifying sign or symbol’; (2) that the group has as one of its ‘primary
activities’ the commission of one or more specified crimes; and (3) the group’s members
either separately or as a group ‘have engaged in a pattern of criminal gang activity.’”
(People v. Vy (2004) 122 Cal.App.4th 1209, 1222 (Vy);6 see In re Alexander L. (2007)
149 Cal.App.4th 605, 610-611.)
Gonzalez argues the evidence presented at trial was legally insufficient as to the
“primary activities” element encompassed in the definition of a criminal street gang. We
reject this contention.
Pursuant to section 186.22, subdivision (f), a criminal street gang must have, “as
one of its primary activities[,] the commission of one or more of the criminal acts
enumerated in [section 186.22,] subdivision (e).” In assessing the nature of the gang’s
primary activities, the trier of fact may look to both the past and present criminal
activities of the gang. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323
(Sengpadychith).) Isolated criminal conduct, however, is not enough. “Sufficient proof
of the gang’s primary activities might consist of evidence that the group’s members
consistently and repeatedly have committed criminal activity listed in the gang statute.”
(Id. at p. 324.) “Also sufficient might be expert testimony” based on an adequate factual
foundation. (Ibid.)
Here, Deputy Goncalves was deeply familiar with gangs operating in Merced
County. He served for almost four years with the Department of Justice’s Merced Area
Gang and Narcotic Enforcement Team, specifically from February 2014 to January 2018.
Goncalves testified: “I have taken no less than a 100 hours of formal training specific to
criminal street gangs ranging from gang-member identification, criminal street gang
identification, prison gangs, gang prosecution, case law … cultural aspects of criminal
6 People v. Vy, supra, 122 Cal.App.4th 1209 was overruled on other grounds by
People v. Sanchez (2016) 63 Cal.4th 665, as recognized in In re Thomas (2018) 30
Cal.App.5th 744, 752-753.
22
street gangs. I have probably over a thousand hours of informal training specific to gangs
for the last four years. Assigned to the DOJ Task Force, every day was spent
investigating gangs or gang members of some sort.” Goncalves added: “I’ve been a part
of no less than seven investigations which are identified as T3 or wiretap investigations
all specific to criminal street gangs ranging from San Joaquin County to Monterey
County, Stanislaus County, Merced County, Madera County, Fresno County, Tulare
County and Kern County.” In 2016, Goncalves was “co-case agent” in “Operation
Scrapbook,” which targeted “Sureño criminal street gangs in and around the Merced
County area which culminated into [law enforcement] identifying and infiltrating
members within the Mexican Mafia.”
Deputy Goncalves estimated he had contacted “hundreds” of gang members in his
career and was very familiar with gangs and gang members in Merced County. He
described his interactions with gang members in the county: “To be specific, all of the
interviews weren’t necessarily just conducted as investigatory. I mean, I wasn’t
necessarily investigating a crime that had occurred in order to facilitate those
conversations. Part of my auxiliary duties as well with the sheriff’s office is for the last
four years I’ve done every gang registration pursuant to Penal Code 186.30, which is
basically that a court has deemed an individual to be a gang member … and that is a
noncriminal interview or conversation. [¶] I have contacted former and current members
in noncriminal situations where talks of culture, their gang activity come up.” Goncalves
named the Sureño subsets in Merced County and said he had “contacted individuals from
all of the Sureño subsets that [he had] previously mentioned.” The prosecutor summed
up Goncalves’s experience: “So you’ve been involved in investigations with gang
members and formally investigated them. It sounds like you’ve registered them, and then
you’ve also had numerous informal conversations with them as well; is that right?”
Goncalves responded: “That’s correct.” Goncalves had also testified as a gang expert in
court “no less than 20 times,” as a “conservative” estimate.
23
Regarding the number of members of the Ghost Town Sureños, Goncalves
testified: “Still active now I would estimate 12 to 15; however, that doesn’t necessarily
identify individuals who are no longer in Merced County that still may be active,
however, are for whatever reason, not in Merced County.” Goncalves testified that the
primary purpose of street gangs was to engage in criminal activity, including committing
crimes such as “mayhem, various series of assaults … with or without weapons, but also
to include firearms, and then also to include the most grave of them being murder.” In
addition to the evidence of the instant crimes (which included murder, a crime that is
enumerated in section 186.22, subdivision (e)(3)), the prosecution introduced evidence of
four specific prior crimes also committed by members of the Ghost Town Sureños, all of
which are similarly enumerated in section 186.22, subdivision (e). These crimes were
possession of methamphetamine for sale committed by Jesus Mendoza on December 12,
2013 (§ 186.22, subd. (e)(4)); assault with force likely to cause great bodily injury (with a
gang enhancement) committed by Aldo Lepez on April 11, 2008 (§ 186.22, subd. (e)(1));
carrying a loaded firearm on one’s person committed by Daniel Lizarraga on May 13,
2010 (§ 186.22, subd. (e)(33)); and voluntary manslaughter committed by Gonzalez on
August 15, 2009 (§ 186.22, subd. (e)(3)).
Goncalves testified—based on his training and experience, the evidence of the
specific, predicate crimes described above, and the charges in the instant case—that
commission of assaults, firearms offenses, drug sales, and manslaughter constituted the
primary activities of the Ghost Town Sureños.7 With respect to drug sales and firearms
7 More specifically, the prosecutor and Goncalves had the following exchange:
“Q. So we’ve gone over assaults, possession of firearm, voluntary
manslaughter, use of firearm, drug sales. Are these the primary activities of
the Ghost Town Sureños and [the] larger Sureño criminal street gang?
“A. Yes.”
24
offenses, moreover, he explained the reason why GTS members committed these crimes.
Goncalves said: “[T]he ability to traffic and distribute narcotics allows for unaccounted
income which can then be redistributed to purchase more narcotics and drugs and is also
used to purchase firearms. Firearms being a primary weapon for not only offensive
activity by individuals but also defensive [activity] – I think [firearm use is] important
[not only with respect to] rival gang members, but former members of not only rival
gangs but also their own gang.” (Italics added.)
Given Goncalves’ extensive experience with Merced County criminal street gangs,
including the Ghost Town Sureños, the evidence regarding the predicate offenses
committed by GTS members, and the evidence in the present case, we have no difficulty
concluding the evidence supporting the “primary activities” element of the definition of a
criminal street gang, as relevant to the gang special circumstance and gang enhancements
charged in the instant case, was readily sufficient. In other words, there was substantial
evidence for the jury to find that GTS members “consistently and repeatedly have
committed criminal activity listed in the gang statute.” (Sengpadychith, supra, 26 Cal.4th
at p. 324.)
Although the prosecutor used the term “voluntary manslaughter” in her question
about the primary activities of the Ghost Town Sureños, it may reasonably be inferred
that, in responding affirmatively, Goncalves had in mind “unlawful homicide and
manslaughter” offenses that are collectively enumerated in section 186.22, subdivision
(e)(3), as relevant to both the “primary activities” and “pattern of criminal gang activity”
elements of the definition of a criminal street gang. (See § 186.22, subd. (f).) In this
vein, Goncalves subsequently clarified that criminal street gangs commonly commit
violent offenses like “mayhem,” “various [types] of assaults,” and “murder.”
Furthermore, the jury was instructed that it could consider the instant murder in assessing
the “primary activities” and “pattern of criminal activity” elements of the definition of a
criminal street gang.
25
II. The Court’s Admission of Gonzalez’s Voluntary Manslaughter Conviction as
a Gang Pattern Prior
Gonzalez argues the trial court prejudicially erred in admitting his prior
manslaughter conviction as a predicate offense for purposes of proving the existence of a
criminal street gang, which is a required element of the gang special circumstance
attached to count 1 and the gang enhancements attached to counts 1 and 2. Gonzalez’s
prior manslaughter conviction was a qualifying predicate offense under section 186.22,
subdivision (e)(3). Predicate offenses need not be gang-related in the sense that there is
no requirement that the offense be shown to qualify for a gang enhancement (People v.
Gardeley (1996) 14 Cal.4th 605, 625, overruled on other grounds by People v. Sanchez
(2016) 63 Cal.4th 665, 686, fn. 13), and proof of a conviction is unnecessary (People v.
Garcia (2014) 224 Cal.App.4th 519, 524).
In addition, evidence of predicate offenses committed by members of a gang is
relevant to proving the gang’s primary activities. (Vy, supra, 122 Cal.App.4th at pp.
1227-1228 [evidence of commission of crimes enumerated in § 186.22, subd. (e) may
“satisfy both the ‘primary activities’ requirement under subdivision (f) and the ‘pattern’
requirement under subdivision (e)”]; Sengpadychith, supra, 26 Cal.4th at p. 324
[evidence that gang members committed predicate offenses by itself may be sufficient
proof of gang’s primary activities]; § 186.22, subd. (f) [evidence of “the commission of”
qualifying predicate offenses establishes proof of the gang’s primary activities].) And, in
a case involving a substantive gang offense under section 186.22, subdivision (a), or a
gang special circumstance under section 190.2, subdivision (a)(22), evidence of the
defendant’s own prior offense provides proof not just of a predicate offense, but also of
the elements that the defendant actively participated in a gang and that the defendant
26
knew the gang engaged in a pattern of criminal gang activity.8 (See People v. Tran
(2011) 51 Cal.4th 1040, 1050 (Tran).)
We review a trial court’s evidentiary ruling for abuse of discretion and will not
overturn the ruling unless it falls “‘“‘outside the bounds of reason.’”’” (People v. Waidla
(2000) 22 Cal.4th 690, 714; People v. Williams (2009) 170 Cal.App.4th 587, 606 [“The
trial court has great discretion in determining the admissibility of evidence, and on
appeal, we find reversible error if the trial court’s exercise of its discretion was arbitrary,
capricious, or patently absurd resulting in a manifest miscarriage of justice.”].) We
cannot say the trial court abused its discretion in admitting proof of Gonzalez’s prior
manslaughter conviction.
In Tran, the California Supreme Court held as follows: “[A] predicate offense
may be established by evidence of an offense the defendant committed on a separate
occasion. Further, that the prosecution may have the ability to develop evidence of
predicate offenses committed by other gang members does not require exclusion of
evidence of a defendant’s own separate offense to show a pattern of criminal gang
activity.” (Tran, supra, 51 Cal.4th at p. 1044.)
8 Section 190.2, subdivision (a)(22) mandates a sentence of death or life in prison
without the possibility of parole, where the defendant is convicted of first degree murder
and the jury finds he or she “intentionally killed the victim while the defendant was an
active participant in a criminal street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the activities of the criminal street
gang.” By its express terms, the gang-murder special circumstance “contains three basic
elements: (1) the defendant must intentionally kill the victim; (2) while an active
participant in a criminal street gang; (3) in order to further the activities of the gang.”
(People v. Mejia (2012) 211 Cal.App.4th 586, 612.) In addition, “there is a constitutional
requirement that, before a defendant can be penalized for being an active participant in a
criminal organization—as section 190.2, subdivision (a)(22), undoubtedly does—the
defendant must be shown to have had knowledge of the gang’s criminal purposes.”
(People v. Carr (2010) 190 Cal.App.4th 475, 487; see CALCRIM No. 736.)
27
However, such admission is still subject to analysis under Evidence Code section
352. “That evidence of a defendant’s separate offense may be admissible to prove a
predicate offense does not mean trial courts must in all cases admit such evidence when
offered by the prosecution. Considerations such as those described in People v. Ewoldt
[1994] 7 Cal.4th [380] at pages 404-405, … will still inform the trial court’s discretion
and in an individual case may require exclusion of the evidence.” (Tran, supra, 51
Cal.4th at p. 1049.) “But 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 … [only] if, broadly stated, it
poses an intolerable “risk to the fairness of the proceedings or the reliability of the
outcome.”’” (Tran, supra, at p. 1047.)
The Tran court reviewed the Ewoldt factors that are relevant to the admission of a
defendant’s prior offense in a gang case, for various purposes. Tran instructs: “The
probative value of the evidence is enhanced if it emanates from a source independent of
evidence of the charged offense because the risk that the witness’s account was
influenced by knowledge of the charged offense is thereby eliminated. [Citation.] On the
other hand, the prejudicial effect of the evidence is increased if the uncharged acts did not
result in a criminal conviction. This is because the jury might be inclined to punish the
defendant for the uncharged acts regardless of whether it considers the defendant guilty
of the charged offense and because the absence of a conviction increases the likelihood of
confusing the issues, in that the jury will have to determine whether the uncharged acts
occurred. [Citation.] The potential for prejudice is decreased, however, when testimony
describing the defendant’s uncharged acts is no stronger or more inflammatory than the
testimony concerning the charged offense.” (Tran, supra, 51 Cal.4th at p. 1047.)
Here, the court carefully examined the prior manslaughter conviction through the
lens of Evidence Code section 352. The court stated: “Well, under Evidence Code
[section] 352, obviously [the prior manslaughter conviction] does have some prejudice,
28
but I do think the [prejudice] is outweighed. I mean, in this whole case before the Court
they’re going to bring in evidence of gang activity. There’s a special circumstance that
this was a gang killing in this case, so I think the fact that he has a prior crime which
qualifies under [section] 186.22 is certainly very relevant and would be admissible to
show a pattern of gang activity even if it doesn’t have an allegation.”
The evidence established that Gonzalez had committed a prior manslaughter, a
qualifying predicate offense, and Deputy Goncalves testified that manslaughter, as a form
of unlawful homicide, was a primary activity of the Ghost Town Sureños. Thus, the
court correctly understood the prior conviction had clear probative value to the
prosecution’s case. The fact that Gonzalez was convicted of the prior manslaughter
limited the potential for confusion of the issues. Moreover, the evidence related to the
prior manslaughter was independent of the instant charges, enhancing its reliability. In
addition, evidence related to the manslaughter conviction consisted of the operative
charging document (as amended in accordance with plea negotiations), a minute order
reflecting that Gonzalez pleaded no contest to a charge of voluntary manslaughter with a
firearm enhancement, and the abstract of judgment issued in the case. The prosecutor
asked Goncalves precisely five questions with reference to the abstract of judgment,
without any digression into the underlying facts. In addition, it was revealed that when
Gonzalez went into prison for the offense, he was identified as a GTS member, and when
he was eventually paroled, he was subject to gang conditions. The relatively quick and
sanitized presentation of evidence related to the prior manslaughter limited the prejudice
arising from it. Finally, although the manslaughter conviction was accompanied by a
firearm enhancement, it was still considerably less inflammatory than the current charges,
a murder and attempted murder under truly chilling circumstances
We recognize the prior manslaughter was admitted as a predicate offense, and,
therefore, was ultimately probative as to multiple elements of the People’s case.
However, Tran explains that the fact that a predicate offense may provide direct evidence
29
of “[multiple] elements of the prosecution’s case … does not weigh against its
admission.” (Tran, supra, 51 Cal.4th at p. 1048.) Tran also explained that where—as
here—“the prosecution is required to establish the defendant was an active participant in
a criminal street gang and had knowledge of the gang’s criminal activities, the jury
inevitably and necessarily will in any event receive evidence tending to show the
defendant actively supported the street gang’s criminal activities. That the defendant was
personally involved in some of those activities typically will not so increase the
prejudicial nature of the evidence as to unfairly bias the jury against the defendant.”
(Ibid.) Indeed, Tran noted that “the use of evidence of a defendant’s separate offense to
prove a predicate offense should not generally create an ‘an intolerable “risk to the
fairness of the proceedings or the reliability of the outcome.”’” (Ibid.)
Here, Deputy Goncalves explained that several local criminal street gangs were
engaged in criminal activities; more specifically, he testified the primary purpose of
criminal street gangs was to commit the types of crimes enumerated in section 186.22,
subdivision (e). Further, the prosecution introduced evidence of multiple predicate
offenses committed by members of the Ghost Town Sureños (of which Gonzalez was a
member). Indeed, Jesus Mendoza, who committed one of the predicate offenses, was
with Gonzalez on the night of the instant shooting. Gonzalez also associated, for gang
purposes, with Aldo Lepez and Daniel Lizarraga, each of whom committed a predicate
offense. And Adrian Garcia, the other GTS associate who was with Gonzalez on the
night of the instant shooting, was also seen hanging out, with Gonzalez, Lepez, and
Lizarraga, at the gravesite, adorned with gang memorabilia, of a slain GTS member. In
addition, there was ample evidence of Gonzalez’s longstanding participation in the Ghost
Town Sureños. Gonzalez’s voluntary manslaughter conviction was admitted against this
backdrop. Under Tran, we cannot say the trial court abused its discretion in admitting
Gonzalez’s prior manslaughter as a predicate offense.
30
Gonzalez argues admission of his prior manslaughter was unnecessary because the
prosecution had other options for proving the requisite predicate offenses. This argument
is foreclosed by Tran, which clarified that the fact that “the prosecution might be able to
develop evidence of predicate offenses committed by other gang members … does not
require exclusion of evidence of a defendant’s own separate offense to show a pattern of
criminal gang activity.” (Tran, supra, 51 Cal.4th at p. 1049 [“the prosecution cannot be
compelled to ‘“present its case in [a] sanitized fashion”’”].) However, Tran also noted:
“[A]lthough the court need not limit the prosecution’s evidence to one or two separate
offenses lest the jury find a failure of proof as to at least one of them, the probative value
of the evidence inevitably decreases with each additional offense, while its prejudicial
effect increases, tilting the balance towards exclusion.” (Id. at p. 1049.) Numerous
cases, though, have upheld the admission of more than two predicate offenses. (People v.
Rivas (2013) 214 Cal.App.4th 1410, 1436 [upholding six predicate offenses]; People v.
Hill (2011) 191 Cal.App.4th 1104, 1137-1139 [upholding eight predicate offenses].) In
short, here, the People had the discretion to admit the predicate crimes committed by
Aldo Lepez, Daniel Lizarraga, and Jesus Mendoza, as well as by Gonzalez himself.
To the extent Gonzalez attempts to argue that the facts underlying his prior
manslaughter conviction somehow negate its probative value and require exclusion of the
conviction as a predicate offense, we cannot evaluate that claim at this juncture, in a
vacuum. Defense counsel did not adduce, in the trial court, the plea colloquy or other
evidence establishing the factual basis of Gonzalez’s no-contest plea in that case. Nor
can we resolve any claim of ineffective assistance of counsel based on counsel’s failure
to do so, as counsel may well have had good reason to not disclose the factual basis of the
plea. Indeed, when the trial court was considering the admissibility of Gonzalez’s prior
manslaughter conviction, the prosecutor indicated the offense had occurred at “a gang
party,” and “gang overtones [were] involved.” Defense counsel responded: “Well – but
that’s not going to be part of the record. That’s not what it’s being introduced for, and I
31
just think it’s confusing – it’s potentially confusing to the jury to have a case that does
not involve gang allegations used against my client in this proceeding to say that this is
proof of gang activity because it’s the charge that is admissible, not the circumstances.”
Even if we were to assume the trial court erred by admitting Gonzalez’s prior
manslaughter conviction, the error would be harmless. Erroneously admitted evidence of
prior crimes is not prejudicial where “it is not reasonably probable that a result more
favorable to defendant would have resulted absent admission of this evidence.” (People
v. Welch (1999) 20 Cal.4th 701, 749-750;9 People v. Watson (1956) 46 Cal.2d 818, 836.)
Gonzales suggests admission of evidence of his prior manslaughter conviction was highly
prejudicial because it falsely painted him as a person who commits crimes for gang
purposes and invited the jury to convict him for the instant charges on propensity
grounds.
However, the instant crimes were classic gang-related crimes. Surveillance
footage from the 7-Eleven showed Gonzalez was dressed in gang clothing; he wore a
“bright vibrant blue Polo” and a hat with “black D.” He had conspicuous gang tattoos,
particularly, a “huge Delhi tattoo on his neck.” He was with Jesus Mendoza, a GTS
member, and Adrian Garcia, a GTS member or associate. When Abram entered the 7-
Eleven with Sheila, as a Norteño dropout with Norteño tattoos, he immediately attracted
Gonzalez’s attention. Gonzalez and his two associates then took up “calculated,” tactical,
“triangular positions” within the 7-Eleven on account of gang-related imperatives. After
Abram and Sheila left the store, Gonzalez followed them outside and took note of the
direction in which they were walking. Ultimately, he and his two associates came after
Abram and Sheila, in Gonzalez’s white truck. The prosecutor described what happened
next in her closing argument: “And once [Gonzalez] spots his prey walking up Shell
9 People v. Welch, supra, 20 Cal.4th 701, was overruled on other grounds by People
v. Blakeley (2000) 23 Cal.4th 82, 91.
32
Street, he decides it’s got going to be enough to stop there and shoot and kill them, no.
He needs the element of surprise and ambush. So what does he do? He drives around the
block, passes the street, and then gets out and runs up to them.” Sheila testified she was
“absolutely positive” it was Gonzalez who ran up and shot multiple times at Abram and
her.10 Gonzalez’s clothes were recovered later that night, and gunshot residue was
detected on the front of his shirt as well as both sleeves. A subsequent search led to the
recovery of nine-millimeter ammunition in two vehicles outside Gonzalez’s residence.
The prosecution also introduced evidence, with respect to the GTS gang, of multiple
predicate offenses and primary activities, even without Gonzalez’s manslaughter
conviction, along with evidence of interconnections between GTS members. Given this
record, it is not reasonably probable that Gonzalez would have obtained a different result
absent the admission of evidence of his prior manslaughter conviction.
In light of our conclusion that the trial court did not abuse its discretion in
admitting evidence of Gonzalez’s prior manslaughter conviction, we also reject
Gonzalez’s contentions to the effect that admission of this evidence by the trial court
violated due process. Nor was this a situation where, irrespective of the propriety of the
trial court’s ruling, admission of the prior manslaughter violated due process because it
rendered the trial fundamentally unfair. (Cf. People v. Albarran (2007) 149 Cal.App.4th
214, 229-230.)
III. Admission of Threats Delivered by Luis Prado to Sheila
Gonzalez argues the trial court erred in admitting evidence of the threats made by
Luis Prado to Sheila, when he came to her house in August 2016, approximately five
10 In her closing argument, the prosecutor said: “To believe the defense theory of
this case that it wasn’t Mr. Gonzalez who killed Abram and tried to kill Sheila, the …
thing that you have to believe is that [Sheila] was mistaken. I want you to ask yourselves
if seeing someone with a tattoo like this (indicating) across their neck coming at you is
something that you’re going to mistake. Someone who gets a tattoo like that (indicating)
gets it because they want to be remembered, and so the tattoo served its purpose.”
33
months after the March 5, 2016 shooting underlying the instant charges. Gonzalez
further argues the evidence of the threats made by Prado was so inflammatory that its
erroneous admission amounted to a due process violation. We reject both these
contentions. The evidence was properly admitted, and in any event, any error was
harmless.
The prosecutor moved in limine to admit evidence showing that Luis Prado went
to Sheila’s house on August 15, 2016, and threatened her and her family in attempting to
dissuade her from testifying in court in the instant matter. Defense counsel, for his part,
moved in limine to “exclude any so-called ‘gang’ evidence which occurred after March 5,
2016.” The trial court concluded the evidence proffered by the People was relevant,
“especially given the charges in this case,” and admitted it.
Sheila subsequently testified that Prado, whom she identified from a photograph,
came to her home several months after the shooting and threatened to kill her family
members, were she to testify in court. He knew where Sheila’s family members lived
and told Sheila it was in her best interest to not testify. Prado also told Sheila that she
would not make it to the courtroom or make it back home from the courtroom. Prado had
overlapping letters tattooed on his face. Prado’s threats to her safety, and his threats to
kill her family members, scared Sheila.
Except as otherwise provided by statute, “all relevant evidence is admissible.”
(Evid. Code, § 351.) “‘[R]elevant evidence’ is all evidence ‘including evidence relevant
to the credibility of a witness or hearsay declarant, having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of the
action’ ([Evid. Code,] § 210).” (People v. Green (1980) 27 Cal.3d 1, 19 (Green),
overruled on other grounds by People v. Martinez (1999) 20 Cal.4th 225.11) “[T]he trial
court is vested with wide discretion in determining relevance under this standard.”
11 People v. Martinez was overruled by People v. Fontenot (2019) 8 Cal.5th 57.
34
(Green, supra, at p. 19.) We review the trial court’s evidentiary rulings for abuse of
discretion. (People v. Sanders (1995) 11 Cal.4th 475, 512.) Here, we detect no such
abuse.
A witness’s testimony at trial that the witness was threatened by a third party is
admissible not for the purpose of proving the truth of the matter stated, but because it is
relevant to the credibility of the witness. (People v. Mendoza (2011) 52 Cal.4th 1056,
1084 [“[E]vidence of a ‘third party’ threat may bear on the credibility of the witness,
whether or not the threat is directly linked to the defendant.” (Italics added.)].) It is
circumstantial evidence that the witness was fearful on account of the threat, in coming
forward to testify, and the witness’s fearfulness, in turn, is relevant to show “the
existence … of bias, interest or other motive” harbored by the witness, or the witness’s
“attitude toward the action in which he testifies or toward the giving of testimony.”
(Evid. Code, § 780, subds. (f) and (j); Green, supra, 27 Cal.3d at pp. 19-20; accord
People v. Burgener (2003) 29 Cal.4th 833, 869 [evidence that a witness is afraid to
testify, and an explanation for the basis of that fear, is relevant to assess the witness’s
credibility]; People v. Malone (1988) 47 Cal.3d 1, 30 [testimony that a witness is fearful
of retaliation is relevant to the witness’s credibility]; People v. Warren (1988) 45 Cal.3d
471, 481 [evidence a witness is afraid to testify is relevant to credibility]; People v.
Olguin (1994) 31 Cal.App.4th 1355, 1367-1369 [that the witness is testifying despite fear
of recrimination, and the facts necessary for the jury to evaluate the fear, is relevant to
credibility].)
In Green, various prosecution witnesses testified about threats they had received
with regard to testifying, their concerns for their personal safety, and ensuing protective
measures taken by the authorities to ensure their safety. (Green, supra, 27 Cal.3d at pp.
19-20.) Green held that, notwithstanding that the threats were not linked to the
defendant, testimony about the threats to the witnesses was admissible in evidence to
enable the jury to fully evaluate witness credibility. (Ibid.)
35
People v. Olguin, supra, 31 Cal.App.4th at pages 1368-1369, explains the rule as
follows: “A witness who testifies despite fear of recrimination of any kind by anyone is
more credible because of his or her personal stake in the testimony. Just as the fact a
witness expects to receive something in exchange for testimony may be considered in
evaluating his or her credibility [citation], the fact a witness is testifying despite fear of
recrimination is important to fully evaluating his or her credibility. For this purpose, it
matters not the source of the threat…. [¶] Regardless of its source, the jury would be
entitled to evaluate the witness’s testimony knowing it was given under such
circumstances. And they would be entitled to know not just that the witness was afraid,
but also, within the limits of Evidence Code section 352, those facts which would enable
them to evaluate the witness’s fear. A witness who expresses fear of testifying because
he [or she] is afraid of being shunned by a rich uncle who disapproves of lawyers would
have to be evaluated quite differently than one whose fear of testifying is based upon
bullets having been fired into her house the night before the trial.”
Here, Sheila testified that Prado’s threatening visit made her fearful to come to
court to testify. Indeed, Prado had threatened she would not make it to the courtroom or
back home if she testified in this case. The jury was entitled to know that Sheila was
threatened and was afraid, along with sufficient facts to be able to evaluate that fear.
Because Sheila was the sole witness who identified Gonzalez as the shooter, and because
the defense elicited testimony that she had previously been convicted of two felonies for
receiving stolen property, her credibility was at issue. In this context, evidence tending to
show that Sheila came to testify despite her fear was highly relevant to the issue of her
credibility.
Evidence of Prado’s visit to Sheila’s house to scare her into not testifying was also
relevant to the gang-murder special circumstance and gang enhancements charged in this
case. Deputy Goncalves testified that although Prado was previously associated with the
Little Town Sureños subset in Stanislaus County, he had relocated to Delhi, where he
36
associated with GTS members. Goncalves further testified: “A lot of times in gang
crimes citizens of the community are apprehensive to come forward with information in
fear of retaliation by gang members, and history has shown--my personal experience has
shown in this job that it happens quite often. [¶] That being said, having a Sureño
member go to the surviving victim’s house is a prime example of how those efforts are
done in terms of trying to impose fear in a community in an effort to maintain
dominance, and that they continue to do these criminal acts and are done in a manner that
minimize[s] the amount of them who may be detected by law enforcement.” The
evidence of Prado’s attempt to dissuade Sheila from testifying was therefore relevant to
showing the Gonzalez’s crimes were for the benefit of his gang. We do not find,
moreover, that admission of evidence of Prado’s conduct was an abuse of discretion
under Evidence Code section 352, given the copious amount of evidence of gang activity
already in the record.
It is true that evidence of a third party’s attempt to suppress testimony is
inadmissible against a defendant to show his consciousness of guilt unless there is
evidence the defendant authorized the action. (People v. Hannon (1977) 19 Cal.3d 588,
599, overruled on other grounds by People v. Martinez (2000) 22 Cal.4th 750.) Here,
however, the evidence was not ultimately used to suggest Gonzalez was personally
behind Prado’s threats. Rather, the prosecution relied on this evidence to explain that
Sheila was afraid to testify but nonetheless overcame her fears in light of the importance
she placed on testifying, and to show that Gonzalez’s crimes were for the benefit of the
gang.
Gonzalez nonetheless argues that the court should have given a “limiting
instruction requiring evidence of authorization by the defendant,” and the lack of such an
instruction was prejudicial. More specifically, he contends the jury should have been
instructed it “may only consider third party attempts to suppress testimony if defendant
was present or authorized the conduct,” pursuant to CALCRIM No. 371. However,
37
Gonzalez did not request any such instruction and has therefore forfeited this contention.
(See People v. Carpenter (1999) 21 Cal.4th 1016, 1050, fn. 6.) In any event, here the
threats were relevant to witness credibility and the gang-related nature of the crimes;
there was no suggestion or argument made to the jury that the threats at issue reflected a
consciousness of guilt on the part of Gonzalez. Thus, a limiting instruction of the kind
described by Gonzalez was not warranted. To the extent Gonzalez argues counsel was
ineffective for not requesting a limiting instruction to this effect, we reject the claim. A
limiting instruction along the lines of CALCRIM No. 371 was not warranted and counsel
was not ineffective in failing to request one. (See People v. Cunningham (2001) 25
Cal.4th 926, 1038 [failure to make a meritless objection does not constitute ineffective
assistance of counsel].)
IV. Gang Hypothetical
Gonzalez next challenges the validity of the prosecutor’s use of a “highly detailed
hypothetical mirroring the prosecution case,” arguing it “effectively directed a verdict,
denying [him] his state and federal rights to a fair trial and a jury determination on all
issues beyond a reasonable doubt.” We reject the contention that the hypothetical was
improper.
During the trial, the prosecutor asked Deputy Goncalves, the People’s gang expert
for his interpretation of a hypothetical set of facts:
“Deputy Goncalves, I’m going to give you a set of hypothetical facts
and ask you to assume that they are true and ask you to render an opinion
on them. I’d like you to assume that an individual who at one time may
have been associated with the Norteño criminal street gang and his
girlfriend enter a store. Inside the store are at least two active Sureños,
specifically, Ghost Town Sureño criminal street gang members, in there
along with one other individual. One in particular is wearing a blue Polo
shirt, wearing a hat with a D on it, and that person makes eye contact with
the individual that was at one time associated with the Norteño criminal
street gang.
38
“After the man and his girlfriend leave the store, the Sureño street
gang member who is wearing the blue shirt and hat with a D on it walk out
of the store and watch them walking down the street. A few minutes later,
the individual who was at one time associated with the Norteño criminal
street gang and his girlfriend are walking down the street, they see a vehicle
pass them that has been associated with the Sureño criminal street gang
member who was wearing the blue shirt, and then a few minutes later drive
right in front of them as they continued to walk on the street.
“Moments after that, the same Sureño criminal street gang member
that they had seen at the store wearing the blue shirt comes running around
the corner and produces a firearm. The man that at one time was associated
with the Norteño criminal street gang yells out, ‘I’m not active. I’m not an
active Northerner. I’m not an active Northerner,’ and then tells his
girlfriend to run, and pushes her out of the way.
“His girlfriend begins to run. The man that was associated with the
Norteño criminal street gang is shot dead in the middle of the street, and his
girlfriend, who had run, is shot while she’s at the front of a nearby
driveway close to the house.
“Several months after this, a Sureño criminal street gang member
comes to the home of the girlfriend who survived and says something to her
to make her scared to come and testify in the incident that happened in
which the Sureño criminal street gang member killed her boyfriend.
“Would you have an opinion as to whether or not those crimes, both
the murder of the man who was associated with the Norteño criminal street
gang and the attempted murder of his girlfriend who was with him, was
done for the benefit of, at the direction of or in association with the Ghost
Town Sureños and the larger Sureño criminal street gang with a specific
intent to promote street gang activity?”
Deputy Goncalves answered, “Yes.” He explained that the GTS gang members
were dressed in gang attire “to prove a point,” and their targeting and shooting of a
dropout from a rival gang amounted to “a show of dominance” within the community.
As for the shooting of the girlfriend, that reflected “an effort to get rid of any witness,
material witness.” Finally, “having a Sureño member go to the surviving victim’s house
is a prime example” of the gang’s witness suppression efforts, the aim of which is to
facilitate the ability of gang members to commit crimes with impunity.
39
Defense counsel did not object to the form or substance of the hypothetical posed
by the prosecutor or the expert’s opinions.
Gonzalez now contends the “unduly specific” hypothetical question, along with
Deputy Goncalves’s response, “effectively asserted the truth of the entire[ty] of the
prosecution[‘s] gang and murder theories,” “reduced the prosecution[’s] burden of
proof,” and “directed a verdict.” Gonzalez acknowledges that our Supreme Court’s
opinion in People v. Vang (2011) 52 Cal.4th 1038, 1047-1050 and footnote 3 (Vang),
forecloses his claim. He explains he raises the claim “for purposes of exhaustion of state
remedies.”
Preliminarily we note that Gonzalez has forfeited the above contentions for failing
to object in the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 590; Evid. Code,
§ 353.) Gonzalez’s contentions also fail on the merits, under the holding of Vang, supra,52 Cal.4th 1038, which, as Gonzalez acknowledges, is controlling here.
In Vang, the prosecutor presented hypotheticals tracking the facts of the case to a
gang expert and elicited the expert’s opinion that the crimes described in the hypothetical
were gang-related. (Vang, supra, 52 Cal.4th at pp. 1042-1043.) The Vang defendant
argued (as Gonzalez does here) that the trial court erred in permitting the prosecutor “‘to
ask a detailed hypothetical question, closely tracking the facts in [the] case, about
whether the assault [at issue there] was gang-motivated.’” (Id. at p. 1044.) The Vang
court rejected this contention, holding that the hypothetical questions were proper. Vang
clarified that hypothetical questions “‘must be rooted in facts shown by the evidence’”
and “‘may not be “based on assumptions of fact without evidentiary support … or on
speculative or conjectural factors.”’” (Id. at pp. 1045-1046.) Vang rejected the notion
that a detailed hypothetical “invades the province of the jury,” explaining that even if the
expert testimony embraces the ultimate issue in contention, the jury nonetheless must
decide whether to credit the expert’s opinion and the accuracy of the facts reflected in the
hypothetical. (Id. at pp. 1049-1050.) Vang concluded that “[h]ypothetical questions must
40
not be prohibited solely because they track the evidence too closely, or because the
questioner did not disguise the fact the questions were based on the evidence.” (Id. at p.
1051.)
Gonzalez argues the hypothetical posed by the prosecutor in the instant was
“unduly specific” because it too closely tracked the facts of his case. Bound as we are by
Vang’s holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we
must reject this contention.
Gonzalez raises, in the alternative, a claim of ineffective assistance of counsel. He
argues that, to the extent defense counsel was required to “do more” to preserve his
instant claims of error related to the hypothetical posed by the prosecutor and Deputy
Goncalves’s response, counsel was ineffective. However, in light of Vang’s holding,
defense counsel’s failure to preserve these claims did not constitute ineffective assistance
of counsel.
V. Limiting Instruction Regarding Gonzalez’s Prior Manslaughter Conviction
Gonzalez argues the trial court prejudicially erred in failing sua sponte to instruct
the jury with a limiting instruction, such as CALCRIM No. 1403, regarding the evidence
of the fact of his prior voluntary manslaughter conviction. He further contends, in the
alternative, that trial counsel was ineffective for not requesting a limiting instruction in
this regard. Here, the trial court was not required sua sponte to give a limiting instruction
with regard to evidence of Gonzalez’s prior conviction. Moreover, the record before us
does not support a finding that trial counsel was ineffective for failing to request such an
instruction.
As discussed in Section II of this opinion, above, an abstract of judgment and
other documents pertaining to Gonzalez’s prior conviction for voluntary manslaughter
with a firearm enhancement, were properly admitted as evidence of a predicate offense,
for purposes of proving the gang enhancements and special circumstance. In this context,
a pattern instruction, CALCRIM No. 1403, would have instructed the jury that it could
41
consider evidence of the prior conviction only for purposes of proof of the elements of
the gang enhancements and gang-murder special circumstance and not for any other
purpose. CALCRIM No. 1403 would have further instructed: “You may not conclude
from this evidence that the defendant is a person of bad character or that [he] has a
disposition to commit crime.” However, a limiting instruction along the lines of
CALCRIM No. 1403 was neither requested by defense counsel nor given on the court’s
own motion.
“[A]lthough a court should give a limiting instruction on request, it has no sua
sponte duty to give one.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1051
(Hernandez); People v. Collie (1981) 30 Cal.3d 43, 63-64 (Collie) [no sua sponte duty to
give limiting instruction on evidence of past criminal conduct].) While the general rule
does not require the court sua sponte to give a limiting instruction, there is an exception
for “an occasional extraordinary case in which unprotested evidence of past offenses is a
dominant part of the evidence against the accused, and is both highly prejudicial and
minimally relevant to any legitimate purpose.” (Collie, supra, at p. 64.) “In such a
setting, the evidence might be so obviously important to the case that the sua sponte
instruction would be needed to protect the defendant from his counsel’s inadvertence.”
(Ibid.)
We cannot say that the voluntary manslaughter conviction (with accompanying
firearm enhancement) at issue here was a “dominant part of the evidence against the
accused” and “both highly prejudicial and minimally relevant to any relevant purpose.”
(Collie, supra, 30 Cal.3d at p. 64.) First, as previously discussed in Section II of this
opinion, the evidence regarding the prior conviction was limited to documentary evidence
establishing the fact of the prior conviction and the jury was not exposed to prolonged
discussion of the prior conviction or any of the facts underlying it. Second, the prior
conviction was introduced to establish a predicate offense, and as a predicate offense, it
was also relevant to establish other elements of the gang enhancements and gang-murder
42
special circumstance. Finally, the evidence of the prior conviction was not a “dominant
part of the evidence against the accused.” (Ibid.) In light of these considerations, we
conclude the trial court was not dutybound sua sponte to give a limiting instruction along
the lines of CALCRIM No. 1403. (See Hernandez, supra, 33 Cal.4th at pp. 1051-1053
[no sua sponte duty to give limiting instruction for gang evidence in trial for robbery with
criminal street gang enhancement]; People v. Hinton (2006) 37 Cal.4th 839, 875 [no sua
sponte duty to give limiting instruction on defendant’s prior murder conviction admitted
in death penalty trial for multiple first degree murders with a firearm].)
Given our conclusion, we must next address Gonzalez’s alternative contention that
trial counsel was ineffective for failing to request a limiting instruction. As noted, the
record does not establish that counsel was ineffective. To establish ineffective assistance
of counsel, Gonzalez must show that his counsel’s performance fell below an objective
standard of reasonableness and that, but for counsel’s error, there was a reasonable
probability of a different result. (Strickland v. Washington (1984) 466 U.S. 668, 687-
688.) Moreover, “[i]f the record does not shed light on why counsel acted or failed to act
in the challenged manner, we must reject the claim on appeal unless counsel was asked
for and failed to provide a satisfactory explanation, or there simply can be no satisfactory
explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
Here, we cannot simply assume that trial counsel overlooked the possibility of
requesting a limiting instruction and was thereby deficient. “A reasonable attorney may
have tactically concluded that the risk of a limiting instruction … outweighed the
questionable benefits such instruction would provide.” (People v. Maury (2003) 30
Cal.4th 342, 394; Hernandez, supra, 33 Cal.4th at p. 1053.) In other words, it reasonably
appears that a limiting instruction in this case would have added little to the jury’s
understanding of the case, while drawing unnecessary attention to the similarities
between the prior conviction offense and the charged offenses. (See, e.g., People v.
Hinton, supra, 37 Cal.4th at p. 878 [failure to request limiting instruction on evidence of
43
prior murder conviction not ineffective assistance because “the instructions given were
adequate to guide the jury’s use of the prior conviction” and “counsel may have deemed
it unwise to call further attention to it”]; People v. Ferraez (2003) 112 Cal.App.4th 925,
934 [no ineffective assistance because a “limiting instruction would have added little to
the jury’s understanding of the case [and] the decision not to request one was a
reasonable tactical choice by defense counsel to avoid directing the jury to focus on the
evidence” at issue]; People v. Freeman (1994) 8 Cal.4th 450, 495 [no ineffective
assistance because “[c]ounsel may well not have desired the court to emphasize the
evidence, especially since it was obvious for what purpose it was being admitted”].)
Since there is a rational, and potentially, tactical, explanation for not requesting a limiting
instruction, Gonzalez cannot establish that he received ineffective assistance of counsel.
In sum, the trial court did not have a duty to sua sponte give a limiting instruction
regarding Gonzalez’s prior voluntary manslaughter conviction and trial counsel was not
ineffective in not requesting such an instruction.
VI. Imposition of Uncharged Five-Year Serious Felony Sentence Enhancements
Gonzalez challenges two five-year serious felony sentence enhancements (one for
each count of conviction) imposed by the trial court. The trial court imposed these
enhancements despite the fact that they were not specifically pleaded in the information.
Gonzalez contends that imposition of the enhancements under these circumstances
contravenes the requirement of fair notice of any and all allegations against him and, in
turn, due process. The People respond that the five-year enhancements were properly
imposed even if not mentioned in the information, because factual allegations in the
information provided sufficient notice to Gonzalez that he was subject to these
enhancements. We agree with Gonzalez and reverse the imposition of the two five-year
enhancements.
As far as recidivist enhancements are concerned, the operative information in this
matter included, as to both counts, only (1) an allegation that Gonzalez had suffered a
44
prior strike conviction and was therefore subject to sentencing under the three strikes law,
and (2) a prison prior allegation. The allegation regarding the prior strike provided: “It is
further alleged that prior to the commission of [the instant offenses], the defendant had
been convicted of the following serious and/or violent felony, as defined in Penal Code
section 667(d) and Penal Code section 1170.12(b), and is thus subject to sentencing
pursuant to the provisions of Penal Code section 667(b)-(j) and Penal Code section
1170.12: [¶] [PC 192(a)/12022.5, 01-29-2013 (date of conviction)].” The prison prior
allegation provided: “It is further alleged that said defendant, Juan Carlos Gonzalez,
served a term as described in Penal Code section 667.5 for said offense(s), and did not
remain free of prison custody for, and did commit an offense resulting in a felony
conviction during, a period of five years subsequent to the conclusion of said term, within
the meaning of Penal Code Section 667.5(b): [¶] [PC 192(a)/12022.5, 01-29-2013 (date
of conviction)].” Notably, the information did not contain any allegation, as to either
count, that the defendant was subject to an additional five-year enhancement under
section 667, subdivision (a).
At sentencing, the trial court imposed, as to count 1 (murder), a sentence of life
without the possibility of parole (in light of the gang-murder special circumstance),
declining to double that sentence pursuant to the strike prior alleged in the information.
The court stated: “[I’m not] doubling the life without possibility of parole because I
don’t think it is mandated or is what the intention of the statute was.” The court further
stated: “And then as to the strike prior …, even though I’m not using it to double it, since
it is a serious and violent felony under [section] 667[, subdivision] (a), I think it would
require me to impose an additional 5-year determinate term to the sentence.” The court
struck the prison prior on grounds it was based on the same conviction as the strike prior.
With regard to the court’s striking of the prison prior, defense counsel stated: “I think
that’s required.” As noted above, the five-year enhancement under section 667,
subdivision (a), imposed by the court, was not specifically pleaded in the information.
45
With regard to count 2 (attempted murder), the court imposed a sentence of “life
with the possibility of parole,” adding that “the minimum [term] of 15 years would be
doubled to 30 years … due to the strike prior.” The court then added an “additional 5-
year term” as a serious felony enhancement under section 667, subdivision (a). The court
once again struck the prison prior on grounds that it was based on the same conviction as
the strike prior. As noted above, the five-year enhancement under section 667,
subdivision (a), imposed by the court, was not specifically pleaded in the information.
“As a rule, all sentence enhancements ‘shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to be true by the trier of fact.’
(Pen. Code, § 1170.1, subd. (e).…].)” (People v. Anderson (2020) 9 Cal.5th 946, 953
(Anderson).) The principle underlying this rule is “a bedrock principle of due process.”
(Ibid.) “‘“No principle of procedural due process is more clearly established than that
notice of the specific charge, and a chance to be heard in a trial of the issues raised by
that charge, if desired, are among the constitutional rights of every accused in a criminal
proceeding in all courts, state or federal.” [Citations.] “A criminal defendant must be
given fair notice of the charges against him in order that he may have a reasonable
opportunity properly to prepare a defense and avoid unfair surprise at trial.”’” (Ibid.)
People v. Nguyen (2017) 18 Cal.App.5th 260 (Nguyen), provides the rule of
decision for the issue before us. In Nguyen, as here, “[t]he information affirmatively
indicated that the prior conviction was being pleaded solely for purposes of the three
strikes law.” (Id. at p. 266.) “Significantly, every prior serious felony conviction is
necessarily also a strike prior. (Compare Pen. Code, § 667, subd. (a)(1) & (4) with Pen.
Code, §§ 667, subd. (d)(1) & (2), 1170.12, subd (b)(1) & (2).)” (Id. at p. 267.) Nguyen
further observed: “Charging language which expressly states that a fact is alleged to
invoke one particular statute[,] does not adequately inform the accused that the People
will use it to invoke a different statute.” (Ibid.) Nguyen noted: “Accordingly, when, as
here, the People allege a prior serious felony conviction, and when they cite the three
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strikes law but do not cite the prior serious felony conviction statute, we can only
conclude that they have made a ‘discretionary charging decision.’” (Ibid.) Nguyen’s
reasoning was recently validated by the California Supreme Court in Anderson, supra, 9
Cal.5th 946, at pp. 956, 958 [“Fair notice requires that every sentence enhancement be
pleaded in connection with every count as to which it is imposed.” (Italics added.)].) We
therefore conclude that the trial court erred by imposing the unpleaded five-year prior
serious felony conviction enhancements.12 Additionally, we reject the People’s argument
that Gonzalez forfeited the instant claim of error by failing to object in the trial court.
(See Anderson, supra, at p. 961 [clarifying that pleading failures related to sentence
enhancements constitute “the type of error we should address even though [the
defendant] did not bring it to the trial court’s attention”].) Applying Nguyen, we reverse
the five-year prior serious felony enhancements imposed here.
VII. Abstract of Judgment
The parties agree that the operative abstract of judgment (second amended abstract
of judgment) reflects an erroneous 30-year-to-life enhancement (under section 1192.7,
subdivision (c)(28)), on count 2. The parties further agree that the second amended
abstract must be corrected to delete the incorrect reference to this enhancement. We will
direct the trial court to do so and to forward the corrected abstract of judgment to the
appropriate correctional authorities.
Gonzalez was sentenced, on count 1, to life in prison without the possibility of
parole, plus a consecutive 25-year-to-life term for the personal use of a firearm
enhancement, plus a consecutive five-year term for the prior serious felony enhancement.
On count 2, he was sentenced to life in prison with the possibility of parole after 30 years,
12 In light of our conclusion, we need not reach Gonzalez’s alternative claim that the
matter must be remanded to give the trial court an opportunity to exercise its newfound
discretion, under recently-enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.), to strike
the two prior serious felony conviction enhancements.
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plus a consecutive 25-years-to-life term for the personal use of firearm enhancement, plus
a consecutive five-year term for the prior serious felony enhancement. The second
amended abstract of judgment reflects each of these sentences and enhancements but
includes an additional “30Y to Life” sentence pursuant to section 1192.7, subdivision
(c)(28), in a section with the heading, “ENHANCEMENTS.”
“Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.” (People
v. Zackery (2007) 147 Cal.App.4th 380, 385.) The parties agree that the additional 30-
year-to-life sentence (pursuant to section 1192.7, subdivision (c)(28)), was not part of the
trial court’s oral pronouncement, and must be deleted from the second amended abstract
of judgment. We will so order.
VIII. Cumulative Error
Finally, Gonzalez argues that reversal of the judgment is required because of the
cumulative effect of errors that occurred during the trial. (See People v. Hill (1998) 17
Cal.4th 800, 844 [“[A] series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error.”].) We are
not persuaded by Gonzalez’s claim of prejudicial error (indeed, here there are no errors to
cumulate). (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 349 [the success of a
claim based on cumulative errors turns on whether “it is reasonably probable the jury
would have reached a result more favorable to [the] defendant in their absence”],
overruled on other grounds by People v. Whitmer (2014) 59 Cal.4th 733, 761-762.)
DISPOSITION
Imposition of the five-year prior serious felony conviction enhancements attached
to counts 1 and 2 are reversed. The trial court must also delete the erroneous reference,
in the existing abstract of judgment, to a 30-year-to-life enhancement (under section
1192.7, subdivision (c)(28)), on count 2. The trial court is directed to prepare a new
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abstract of judgment reflecting the changes and to forward it to the appropriate
correctional authorities. The judgment is otherwise affirmed.
SMITH, J.
WE CONCUR:
HILL, P.J.
DETJEN, J.
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