People v. Price CA4/1

Filed 3/5/21 P. v. Price CA4/1
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COURT OF APPEAL FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076731
Plaintiff and Respondent,
v. (Super. Ct. No. SCD277378)
MARCEL DESEAN PRICE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
David M. Gill, Judge. Affirmed and remanded with directions.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L.
Garland, Senior Assistant Attorneys General, Michael Pulos and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Marcel Desean Price of premeditated attempted
murder (Pen. Code,1 §§ 664, 187, subd. (a), 189; counts 1-3), assault with a
firearm (§ 245, subd. (a)(2); counts 4-6), and possession of a firearm by a felon
(§ 29800, subd. (a)(1); count 7). It found true allegations that as to counts 1
and 4 Price personally inflicted great bodily injury on the victim (§ 12022.7,
subd. (a)); as to all counts that he personally used a firearm within the
meaning of section 12022.5, subdivision (a); and as to counts 1 through 3 he
personally and intentionally used a firearm within the meaning of section
12022.53, subdivision (b), intentionally and personally discharged a firearm
(§ 12022.53, subd. (c)), and did so causing great bodily injury to a person
other than an accomplice (§ 12022.53, subd. (d)). Price admitted allegations
that he committed the offenses while on felony probation (§ 1203, subd. (k)).
The court sentenced him to an indeterminate term of 96 years to life in
prison, and imposed various fines, fees and assessments.2
Price contends the trial court prejudicially erred by (1) admitting
irrelevant gang evidence, which violated his due process rights and rendered
the trial fundamentally unfair; (2) permitting a detective to testify based on
surveillance videos that Price was the shooter; and (3) permitting the
prosecutor to elicit testimony from a witness about his fear of testifying due
1 Undesignated statutory references are to the Penal Code. The court
declared a mistrial as to Price’s co-defendant, Michael Hune, after the jury
hung on charges against Hune.
2 Specifically, Price’s sentence consists of seven years to life on counts 1
through 3, plus 25 years to life on each of those counts for the firearm
enhancement under section 12022.53, subdivision (d); the upper four-year
term on each of counts 4 through 6, stayed pursuant to section 654; and the
upper term of three years on count 7 stayed pursuant to section 654. The
court imposed but stayed under section 654 sentences on all remaining
enhancements.
2
to the defendants’ gang membership. Price contends his counsel was
prejudicially ineffective if he forfeited either or both of the latter two
contentions. Price further contends the fines, fees and assessments must be
vacated because they violated his federal and state due process or equal
protection rights, and were cruel and/or unusual, without a finding he had
the ability to pay them. Price further contends the required sentence for his
attempted premeditated murder convictions in counts 1 through 3 is life with
the possibility of parole, not seven years to life. He maintains the combined
errors require reversal of the judgment.
The People concede we should correct Price’s sentence on the attempted
murder convictions without remand. We agree the proper sentence on counts
1 through 3 is life with the possibility of parole and direct the court to correct
the abstract of judgment accordingly. Otherwise, we reject Price’s
contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Price does not challenge the sufficiency of the evidence of his
underlying convictions, so we summarize the underlying facts as necessary to
address questions of prejudice.
During the night of June 8, 2018, and the early morning hours of June
9, 2018, Price, a Skyline (also known as East Side) Piru gang member, and
three other men, two of whom were associated with the O’Farrell Park gang,
were at a North Park bar drinking and socializing when Price and one of his
companions, Ted Mercer, got into an altercation and fight with others.
Mercer was associated with the O’Farrell Park gang. A security guard heard
Mercer say, “Fuck you and Fuck East Side,” before the initial punch.
Afterwards, Mercer yelled that they had gotten “maxed out,” meaning they
got beat up or lost the fight. He was injured and angry, feeling that the
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bouncers had thrown him back into the fight. When the fight was over,
security guards would not let Price or Mercer back into the bar. When Price
and Mercer tried to reenter, two of the guards grabbed Price and tried to flip
him over a railing. Mercer slapped one of the guards and the guard
responded by punching him a few times in the face. Price and Mercer finally
left the bar with their group, angry about what had happened there. While
in the car driving away from the bar, Mercer exchanged calls with Hune
using the phone of a friend who was at the bar that night.
At about 2:50 a.m., two of the security guards were standing outside
the bar when they heard gunshots. One of the guards was shot in the upper
chest area. Witnesses hearing the gunshots saw a black Chrysler 300, later
determined to be registered to Hune, speeding down an adjacent street. One
witness saw an individual run into the car after the gunshots and described
him as an African-American male, five feet nine inches to six feet one inch
tall, with a medium build on the slender side, wearing baggy clothes and a
dark sweatshirt with a hood over his head.3 The man appeared to be shoving
something inside his waistband.
San Diego Police Department Detective Andrew Tafoya was assigned to
the matter. He contacted the bar’s manager and sought out surveillance
video from surrounding businesses. He identified the men in the bar video by
asking a gang unit detective if she recognized the men from the bar that
night, and from that he was able to identify Price and Jordan Bingham.
Detective Tafoya also viewed surveillance footage from the bar on June 8
showing Price and his colleagues entering the bar and the fight that ensued.
The video showed the clothing and shoes Price was wearing that night.
3 Price fit this description, as he is six feet one inch tall and weighed 165
pounds around the time of his sentencing.
4
Detective Tafoya obtained surveillance footage from other local businesses
that showed a black Chrysler 300 pull up and a male exit the car and commit
the shooting, which occurred around 2:52 a.m. The video showed the vehicle
pull up at 2:51 a.m. and a man exit the passenger side within 10 seconds. It
also showed the first six numbers of the car’s license plate, leading to records
establishing that the car was Hune’s. Detective Tafoya compared still
photographs of the surveillance footage from the bar with the other business,
and testified based on the similarities in clothing and shoe markings, as well
as Price’s height, stature and gait, that he believed the male who exited the
Chrysler 300 was Price.4 The detective also obtained a photograph from
Jordan Bingham’s Facebook page showing Bingham and Price together on
June 8, throwing what appeared to be gang signs.
Officers arrested Price about 12 days after the shooting. In a jail
telephone call later that month, Price told the call recipient, “I’m done.”
Though he said he “didn’t do nothing,” he also said he had “fucked up” and
was “fucked right now . . . but it’s my fault. The only person I’m mad at is
me. I’m not upset with nobody else but myself.” The Chrysler 300 was later
located in the Rancho Cucamonga area.
4 The detective testified about Price’s clothing depicted in the bar
footage: “[A]round the waist area going down appearing [sic] to be an
identical match to the pants and shoes that are seen on the video from [the
neighboring business]. Just the bulkiness of the pants around the thigh area
and then it comes down and slims down some and then kind of goes straight
down. And the shoes, the description of the shoes being an Adidas shoe, like
a mesh material almost with, like, a plastic three stripe for the Adidas logo
on the sides.” When asked what he noticed when he compared the two
portions of video, he said: “Just the bagginess or lack thereof around the leg
area, the thigh. It appeared to be similar. It wasn’t a baggie, it wasn’t a
super-tight fit. And then as you come down the leg, again, it’s more like a
fitted look than a baggie or skinny jeans. And then as you keep going down,
just the way the pants sit on the shoe and then the actual shoe itself.”
5
I. Admission of Expert Gang Evidence
A. Background
Before trial, when the case was proceeding against both Price and
Hune, the People moved to admit evidence of Price’s and Hune’s gang
affiliations and gang culture—specifically, among other things, the
significance of June 8 as a day of celebration and the importance of respect—
to prove motive, Price and Hune’s shared intent, and knowledge. They
argued that while motive was not an element of any crime, the gang evidence
could be admitted as relevant to that issue and others such as identity and
modus operandi. They also argued gang affiliation could be relevant to
proving the codefendants’ relationship with one another and their
involvement in the charged crime. The People argued that the evidence was
relevant to help explain why the defendants would react so violently to a
“seemingly innocuous situation at a bar”; that in the present case, “there is
no other explanation for the crime but the fact that Price felt the need to
retaliate and intimidate the security guards due to his affiliations and the
culture of gang criminal behavior.” Price moved to exclude the evidence on
grounds its probative value, if any, was outweighed by its prejudicial effect.
At arguments on the motions, Price’s counsel objected to admission of
testimony concerning Price’s documented gang member status, arguing Price
was not provided due process as the documentation oftentimes is done
without a person’s knowledge. Counsel pointed out there was no gang
connection to the victims, the location or why the incident started; that the
occurrence was completely unrelated to any gang activity. He argued that
the reference to June 8 “would be to paint the picture of a day of mayhem or
just a lawless day,” and unfairly depicted his client as a “monster” on that
day. He argued Facebook posts showing his client throwing gang signs shed
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an unfairly prejudicial light on Price. The People acknowledged they did not
allege a section 186.22 gang allegation because no gang rivals were involved.
The prosecutor argued, however, that “the gang mentality, the gang
connection, that association and that sense of needing to ban together to
retaliate in obligation to one another is what makes it relevant.” She argued
it was evidence that “helps to explain really the unexplainable” to the jury.
The court granted the motion, finding the gang evidence had “some
significant probative value” on motive and intent that was not outweighed by
its prejudicial effect in misleading or confusing the jury, or prolonging the
trial. In response to further argument from codefendant Hune’s counsel, the
court explained it would not permit the expert to opine that on the particular
day Hune had a certain intent or motive, but it was proper for the expert to
testify that the gang allegiance meant individuals had a sense of obligation to
help fellow gang members or associates under certain circumstances.
At trial, San Diego Police Department Detective Joseph Castillo, a gang
detective responsible for monitoring the East Side/Skyline Piru and O’Farrell
Park Banksters street gangs, testified about the Skyline and O’Farrell Park
gangs’ history and territory, as well as the importance of respect and loyalty
in the gang culture. Detective Castillo testified that the two gangs were
allies: the same gang with different boundaries. He explained that based on
the significance of the numbers 6 and 8, June 8 was a Skyline and O’Farrell
Park gang “holiday” on which the members would have parties or barbeques.
Detective Castillo testified that in June 2018, Price was a Skyline gang
member going by the moniker Baby AB. The detective identified Price and
others, including Jordan Bingham, in photographs throwing gang signs.
Detective Castillo testified that Hune was known to be an O’Farrell Park
gang associate going by the moniker YG Boolin or Boolin YG. The detective
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recalled that in October 2017, he and his partner had seen Hune driving a
black Chrysler 300.
The prosecutor gave Detective Castillo a hypothetical, asking him if a
Skyline gang member would feel disrespected if he were at a bar and got into
a fight but was on the losing end, and then was beaten up and physically
ejected by security guards. The detective responded that “[w]ithout a doubt”
he would feel disrespected and would be expected to do something as a gang
member to retaliate or else be chastised as a “buster”—a gang member
unwilling to commit crimes. When asked whether an accompanying gang
member who ran away when his colleague got beat up by security guards
would have a bigger concern about respect among his gang members,
Detective Castillo testified that he also would be expected to retaliate. The
disrespect would be more intensified if the incident occurred on the gang
“holiday.” The detective also agreed that if an O’Farrell Park gang associate
was getting beaten up and was accompanied by a Skyline gang member, the
Skyline gang member would be expected to back him up, or also get involved
in the fight. If the gang member ran away from the fight, he could be in a
position of getting beat up by the gang or worse, for not helping out.
Detective Castillo was asked about his experience investigating drive-
by shootings, and testified that at times gang members in a car participating
in a shooting took individuals along who were unaware of what was going to
happen. He explained the others in the car would be expected to take a role,
such as the driver, shooter, or look-out. He agreed that a gang member who
had been a snitch might need to prove himself by committing a serious crime,
including by driving other gang members to a location.
In closing arguments, the prosecutor explained that the defendants had
a particular mentality that caused them to retaliate against the guards:
8
“People get kicked out of bars every weekend, probably every day in this city,
but they don’t return to that bar and open fire on the security guards who
have ejected them. It takes a person with a particular mentality to choose
that response, a person who comes from a world where retaliation is the type
of response that’s warranted in that circumstance, a world and a mentality
that is shared by these two defendants, a world where the retaliation in the
form of returning to that bar and opening fire is not only the expected
response, it’s the revered response.” She explained that motive was “huge”
and could be explained by the fact that defendants were on the losing end of
the fight, got “pummel[ed]” and manhandled by the guards, and it occurred
on their gang celebration day. The prosecutor argued she established
defendants committed the crimes not only with evidence of their “shared
mentality,” but also other direct and circumstantial evidence: the video
surveillance evidence and the timeline of events, partly established by the
cell phone activity after the fight.
As to the evidence of “gang activity,” the court gave the jury
instructions that it could consider the evidence on the defendants’ intent to
kill or Hune’s intent to aid Price, their motive to commit the offense, and
Hune’s knowledge that Price intended to commit the crime. It instructed
that the evidence could be considered “when you evaluate the credibility or
believability of a witness . . . .” The instruction reads: “You may not consider
this evidence for any other purpose” or “conclude from [it] that the defendant
is a person of bad character or that he has a disposition to commit crime.”5
5 The jury instruction, CALCRIM No. 1403, has a stamp on its face
indicating it was “given.” But the court did not read every jury instruction to
the jury; it told jurors it would “cover a few of the instructions and a
concluding instruction” and then gave jurors a complete set of written
instructions for their deliberations.
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B. Legal Principles and Standard of Review
Under California law, all relevant evidence is admissible except as
otherwise provided by statute. (Evid. Code, § 351.) Evidence is relevant if it
has “any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code, § 210.)
“ ‘Gang evidence is admissible if it is logically relevant to some material
issue in the case other than character evidence, is not more prejudicial than
probative, and is not cumulative. [Citations.] . . . [¶] However, gang
evidence is inadmissible if introduced only to “show a defendant’s criminal
disposition or bad character as a means of creating an inference the
defendant committed the charged offense.” ’ ” (People v. Coneal (2019) 41
Cal.App.5th 951, 964.) In People v. Franklin (2016) 248 Cal.App.4th 938, the
court explained that “ ‘[e]vidence related to gang membership is not insulated
from the general rule that all relevant evidence is admissible if it is relevant
to a material issue in the case other than character, is not more prejudicial
than probative, and is not cumulative.’ [Citations.] Indeed, gang evidence is
‘relevant and admissible when the very reason for the underlying crime, that
is the motive, is gang related.’ [Citation.] ‘ “[B]ecause a motive is ordinarily
the incentive for criminal behavior, its probative value generally exceeds its
prejudicial effect, and wide latitude is permitted in admitting evidence of its
existence.” ’ ” (People v. Franklin, at p. 953; see also People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1167-1168; People v. Albarran (2007) 149
Cal.App.4th 214, 223 [“gang evidence may be relevant to establish the
defendant’s motive, intent or some fact concerning the charged offenses other
than criminal propensity as long as the probative value of the evidence
outweighs its prejudicial effect”].) Though the California Supreme Court has
advised that “gang-related evidence ‘creates a risk the jury will improperly
10
infer the defendant has a criminal disposition’ and that such evidence should
therefore ‘be carefully scrutinized by trial courts’ ” (People v. Mendez (2019) 7
Cal.5th 680, 691), the evidence is nevertheless admissible when relevant to
identity or motive and not substantially outweighed by its prejudicial effect.
(People v. Carter (2003) 30 Cal.4th 1166, 1194.)
Evidence Code section 352 provides, “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” “ ‘ “Prejudice” as contemplated by [Evidence Code]
section 352 is not so sweeping as to include any evidence the opponent
finds inconvenient. Evidence is not prejudicial, as that term is used in
a[n Evidence Code] section 352 context, merely because it undermines the
opponent’s position or shores up that of the proponent. The ability to do so is
what makes evidence relevant. The code speaks in terms of undue prejudice.
Unless the dangers of undue prejudice, confusion, or time consumption
“ ‘substantially outweigh’ ” the probative value of relevant evidence, a[n
Evidence Code] section 352 objection should fail. [Citation.] “ ‘The
“prejudice” referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying
[Evidence Code] section 352, “prejudicial” is not synonymous with
“damaging.” ’ [Citation.]” [Citation.] [¶] The prejudice that [Evidence Code]
section 352 “ ‘is designed to avoid is not the prejudice or damage to a defense
that naturally flows from relevant, highly probative evidence.’ [Citations.]
‘Rather, the statute uses the word in its etymological sense of “prejudging” a
person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]”
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[Citation.] In other words, evidence should be excluded as unduly prejudicial
when it is of such nature as to inflame the emotions of the jury, motivating
them to use the information, not to logically evaluate the point upon which it
is relevant, but to reward or punish one side because of the jurors’ emotional
reaction. In such a circumstance, the evidence is unduly prejudicial because
of the substantial likelihood the jury will use it for an illegitimate purpose.’ ”
(People v. Doolin (2009) 45 Cal.4th 390, 438-439; accord, People v. Bell (2019)
7 Cal.5th 70, 105; People v. Tran (2011) 51 Cal.4th 1040, 1048.)
“The trial court enjoys broad discretion in determining the relevance of
evidence and in assessing whether concerns of undue prejudice, confusion, or
consumption of time substantially outweigh the probative value of particular
evidence. [Citation.] ‘The exercise of discretion is not grounds for reversal
unless[, as set forth previously,] “ ‘the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.’ ” ’ ” (People v. Clark (2016) 63 Cal.4th 522, 572;
accord, People v. Johnson (2019) 8 Cal.5th 475, 521; People v. Jackson (2016)
1 Cal.5th 269, 320-321.) On appeal, we presume the evidentiary ruling is
correct and Price bears the burden of demonstrating error. (People v.
Giordano (2007) 42 Cal.4th 644, 666; People v. Anthony (2019) 32 Cal.App.5th
1102, 1139-1140.)
C. Analysis
Price contends the trial court erred by permitting Detective Castillo to
testify because the gang evidence was not relevant to any material disputed
issue in the case. Recounting his charges, he argues “[t]here were no gang
charges or gang allegations. None of the elements of the charged offenses
required the prosecutor to prove that appellant was a member of a criminal
street gang. . . . The victims in this case were not rival gang members and
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the prosecutor did not argue that any of the crimes were committed to benefit
a gang.” Price states the prosecutor “repeatedly emphasized” the gang
evidence and their gang “ ‘mentality’ ” in her closing argument,
characterizing it as saying “in effect, that [he] and Hune were predisposed to
commit the instant shooting because of their gang ties.” Price asserts there
was no direct evidence that he planned with other gang members to retaliate
against the guards or that he shared the “mentality” that required retaliation
and a disproportionate response. According to Price, there was no
evidentiary link between the gang evidence and his offenses. He compares
his case to People v. Memory (2010) 182 Cal.App.4th 835 and People v.
Albarran, supra, 149 Cal.App.4th 214, in which gang evidence was held
inadmissible.
We do not perceive any abuse of discretion. First, the fact this was not
a typical gang-on-gang situation, or that the shooting did not occur for the
“typical” gang motive, i.e., retaliation against another gang, does not render
gang evidence irrelevant. (Accord, People v. Flores (2020) 9 Cal.5th 371, 397-
402 [gang expert testimony admissible even where no gang enhancement
alleged]; People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Here, the gang
evidence was introduced via Detective Castillo, a gang expert, who was
qualified to offer opinions on the subject matter of the culture and habits of
criminal street gangs, and specifically the Skyline and O’Farrell gangs.
(Accord, Flores, at p. 398.) Flores explained an expert opinion may be
rendered in the form of responses to hypothetical questions, as here, which
ask the expert to assume the truth of certain facts rooted in the evidence.
(Ibid.) Here, Detective Castillo’s testimony about the gang-related motives
for the hypothetical shooting was grounded in evidence: it rested on his
knowledge of gang culture, norms and expectations; the fact Price was a
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member and Mercer an associate of related gangs; and they were out on their
gang “holiday.” This was combined with other evidence that Price and
Mercer were angry about being disrespected and punched by the security
guards. The detective was properly permitted to testify about the intent and
possible gang-related motives for this kind of shooting, namely that it could
be retaliation for how the security guards treated them earlier in the evening.
The prosecution was entitled to present its theory of the case based on
circumstantial evidence, and introduction of the gang evidence gave the jury
context necessary to understand it. (People v. Franklin, supra, 248
Cal.App.4th at p. 953; People v. Pettie (2017) 16 Cal.App.5th 23, 44 [evidence
of defendant’s gang membership was probative and properly admitted on
motive for defendants to participate in an assault on the boyfriend of the ex-
wife of one defendant, where there was no evidence they had any involvement
in the incident that caused the victim to call police, triggering the attack]; see
People v. Booker (2011) 51 Cal.4th 141, 171 [“prosecution may present a
persuasive and forceful case”]; People v. Roberts (1992) 2 Cal.4th 271, 299
[introduction of gang evidence unconnected to the defendant is not
fundamentally unfair where evidence was relevant to prosecutor’s theory of
the case and provided jury with context necessary to understand it].) The
absence of direct evidence that Price and the others were celebrating the
gang holiday at the bar is not fatal to the court’s ruling when it could be
reasonably inferred from Detective Castillo’s testimony.
Additionally, as summarized above, the jury was given limiting
instructions on the evidence, telling it to consider it only on the issues of
Hune’s knowledge, the defendants’ intent and motive, or the credibility and
believability of witnesses. Jurors were specifically instructed not to conclude
from it that Price had a “bad character or that he has a disposition to commit
14
crime.” We presume the jury followed these limiting instructions, and Price
has not pointed to anything in the record to rebut that presumption. (Accord,
People v. Franklin, supra, 248 Cal.App.4th at p. 953.) Indeed, the record
shows the jury carefully considered application of the evidence generally, as
evidenced by its inability to reach a verdict as to Price’s codefendant Hune.
In part because the jury’s use of the gang evidence was expressly
limited, we cannot say the trial court abused its discretion when it
determined that the probative value of the gang evidence was not
substantially outweighed by its prejudicial effect. (Accord, People v. Flores,
supra, 9 Cal.5th at p. 402 [detective’s testimony about gang culture—
including particularly the importance of recruitment and the significance of
disrespect—was highly relevant to defendant’s possible motive for the
charged crimes and any prejudice “was far outweighed by its probative value”
particularly where court limited the scope of testimony to exclude any
mention of specific crimes committed by other members of gang]; People v.
Tran, supra, 51 Cal.4th at p. 1047 [to be excluded under Evidence Code
section 352, probative value of evidence must be substantially outweighed by
its prejudicial effect].)6
This case is unlike People v. Albarran, supra, 149 Cal.App.4th 214, in
which the court admitted in addition to gang evidence on the defendant’s
motive and intent, “other extremely inflammatory gang evidence . . . which
had no connection to the[ ] crimes.” (Id., at p. 227.) Specifically, an officer
“testified at length about the identities of other [gang] members, the wide
variety of crimes they had committed and the numerous contacts between the
6 Price argues the central disputed issue was his identity, and the gang
evidence lacked any evidentiary link to that issue. But identity was not the
sole issue in the case, and as we have concluded, the prosecution was entitled
to present the evidence on the issues of intent and motive.
15
various gang members (other than [the defendant]) and the police. He
described a specific threat [the gang] had made in their graffiti to kill police
officers” and there were “references to the Mexican Mafia.” (Id. at pp. 227-
228, fn. omitted.) The Court of Appeal concluded the gang evidence was
irrelevant, cumulative, and presented a substantial risk of undue prejudice,
in part because the “paramount function of this evidence was to show [the
defendant’s] criminal disposition.” (Id. at p. 228.) In this case, the gang
evidence pertained to the People’s motive theory that Price committed the
shooting in retaliation for the security guards’ conduct against him and
Mercer at the bar. Though Detective Castillo gave some history of the
Skyline or O’Farrell gangs including generally the kinds of crimes the gang
was involved with over the years, there was no discussion of other unrelated
gang members’ arrests, identities or specific criminal activities as in
Albarran, so we cannot say the gang evidence in this case was unduly
inflammatory. Further, Albarran’s outcome was compelled by the fact there
was insufficient evidence to support the contention that a shooting was done
with intent to gain respect and enhance the shooter’s reputation. (Id. at pp.
217, 222, 227.)7 Here, the People presented evidence of the fact the incident
with the security guards occurred the morning after the gang’s “holiday,”
7 In Albarran, the appellate court observed that the motive for the
shooting “was not apparent from the circumstances of the crime.” (People v.
Albarran, supra, 149 Cal.App.4th at p. 227.) Though the subject of the party
at which the shooting occurred was a gang member, that gang did not have
known or relevant gang rivalries, there was no evidence the shooters
announced their presence, and there was no evidence any gang members had
bragged about the crime or took credit for it. (Ibid.) “In the final analysis,
the only evidence to support the respect motive is the fact of Albarran’s gang
affiliation.” (Ibid.) The court concluded that the introduction of the
inflammatory gang evidence having nothing to do with the issues, and
allowing no permissible inferences, violated the defendant’s due process
rights and rendered his trial fundamentally unfair. (Id. at pp. 229-230.)
16
which would enhance the disrespect in getting roughed up and expelled by
the security guards. That evidence reasonably permitted an inference of a
retaliatory motive for the shooting. This case does not present the “rare and
unusual occasion[ ]”—as in Albarran—where the admission of gang-related
evidence resulted in fundamental unfairness to the defendant.
It is also unlike People v. Memory, supra, 182 Cal.App.4th 835. In
Memory, the defendants were charged with various crimes after stabbing
others during a bar fight. (Id. at pp. 837-838.) There, after holding an
Evidence Code section 402 hearing, the court excluded the testimony of an
expert about a motorcycle gang called the Jus Brothers, of which the
defendants were members, in part finding his opinion that it was a criminal
enterprise was unsupported. (Id. at pp. 837, 848-852.) But the prosecutor in
opening statements repeatedly referred to the gang as an “outlaw motorcycle
group” and a “one-percent club,” indicting it meant the men were “warrior[s].”
(Id. at pp. 852, 861.) He also told the jury that a one-percenter had to
support the Hell’s Angels and many of them wore a Hell’s Angel’s support
patch. (Id. at p. 853.) Though the Court of Appeal observed that gang
evidence could be relevant to identity and motive, identity was not disputed,
and in the absence of the expert’s testimony, there was no foundation for a
conclusion that the defendants were conforming to club practices. (Id. at p.
858.) The court held the gang evidence—evidence of the gang’s culture and
organization, the concept of one-percenters and warrior spirit, the support for
Hell’s Angels and criminal activity by certain members—lacked foundation,
was inflammatory, and was improperly admitted via the prosecutor on the
defendants’ criminal disposition or character as if the expert had testified.
(Id. at pp. 838, 858 [“Where the People were unable to introduce evidence on
these topics because none of the Jus Brothers called as witnesses testified as
17
the expert had, the trial court nevertheless allowed the prosecutor to argue
and insinuate as if such evidence had been admitted. The effect was to admit
the expert’s opinion on these aspects of the Jus Brothers without actual
testimony”], 860 [“The trial court recognized the lack of evidence regarding
the criminal nature of the Jus Brothers and properly excluded expert opinion
that the Jus Brothers was a criminal gang. The court also excluded expert
testimony as to other aspects of the club, finding it too prejudicial,
particularly as to credibility. The prosecutor was allowed, nonetheless, to
attempt to introduce ‘[p]retty much everything [the expert] testified to’
through other witnesses and argue the Jus Brothers’ and defendants’
criminal disposition”].)
Here, there is no question Detective Castillo was qualified and testified
about the Skyline and O’Farrell gangs, and thus the People presented
foundation for his conclusions concerning the nature and importance of
disrespect, and the gang-related motive for the shooting. Importantly, in
Memory the court acknowledged that “with an appropriate foundation and
limitations, testimony regarding the beliefs and practices of an organization
may be relevant to explain the conduct of a member on a particular occasion.”
(People v. Memory, supra, 182 Cal.App.4th at p. 862.) Such is the case here.
Nor did Detective Castillo bring in inflammatory evidence concerning other
unrelated violent street gangs, as the prosecutor did in Memory with
references to the Hell’s Angels. We see no indication Detective Castillo’s
testimony was used by the prosecutor to suggest Price was generally
predisposed to commit crimes, as opposed to explaining his motivation for
retaliating against the guards. In sum, we are not persuaded the court’s
decision to allow the gang evidence was so “ ‘ “ ‘arbitrary, capricious or
18
patently absurd . . . that [it] resulted in a manifest miscarriage of justice.’ ” ’ ”
(People v. Montes (2014) 58 Cal.4th 809, 869.)
Price nevertheless maintains the admission of the evidence was
erroneous and deprived him of a fair trial, since it had no bearing on his
identity, which he asserts was the “central disputed issue” in the case. Even
where gang evidence is improperly admitted, the error does not necessarily
deprive a defendant of the right to due process, or constitute prejudicial error.
“ ‘To prove a deprivation of federal due process rights, [a defendant] must
satisfy a high constitutional standard to show that the erroneous admission
of evidence resulted in an unfair trial.’ [Citation.] ‘ “The dispositive issue is
. . . whether the trial court committed an error which rendered the trial ‘so
“arbitrary and fundamentally unfair” that it violated federal due process.’ ” ’ ”
(People v. Covarrubias (2011) 202 Cal.App.4th 1, 20; see also People v.
Merriman (2014) 60 Cal.4th 1, 70.) “ ‘Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate due
process. Even then, the evidence must “be of such quality as necessarily
prevents a fair trial.” [Citations.] Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper
purpose.’ ” (People v. Hunt (2011) 196 Cal.App.4th 811, 817.) The gang-
related evidence here allowed the jury to draw inferences as to Price’s motive
and intent, and thus does not meet this standard.
II. Admission of Detective’s Opinion on Identity From Surveillance Videos
Price contends the admission of Detective Tafoya’s testimony
identifying Price as the shooter based on surveillance video violated his state
and federal constitutional rights to a fair trial. He first argues that the
investigating detective’s testimony could not be admitted as expert
testimony; it was based entirely on what the detective saw in the surveillance
19
videos and was thus not related to a subject sufficiently beyond common
experience so as to assist the trier of fact or based on his specialized
knowledge, skill or training, but rather it consisted of inferences and
conclusions that the jury could have drawn as easily as him. The People did
not present Detective Tafoya as an expert, so this argument fails on that
ground.
Price further contends the testimony was inadmissible as lay testimony
because (1) oral testimony is inadmissible to prove the content of a video; (2)
the detective’s opinion was not based on his personal knowledge; and (3) the
opinion invaded the province of the jury on identity, and constituted an
inadmissible opinion on the issue of his guilt.
The People respond that such lay testimony is common. They point out
the jurors saw the video themselves and were instructed they alone were to
decide the facts. They also point out that the jury was instructed with
CALCRIM No. 333, in part telling it they “may but are not required to accept
those opinions as true or correct” and “may give the opinions whatever weight
you think appropriate.” The People argue the detective’s testimony had
sufficient foundation, did not invade the jury’s province, and any error was
harmless in any event in view of the instruction, arguments and opportunity
for cross-examination, as well as the jurors’ ability to reach their own
conclusions.
Though Price forfeited the issue given his counsel’s failure to object (see
Evid. Code, § 353 [party may not complain on appeal that evidence is
inadmissible absent a timely and specific objection on that ground below]), we
nevertheless reach it in view of his ineffective assistance of counsel claim.
We review the court’s decision for abuse of discretion. (People v. Leon (2015)
61 Cal.4th 569, 600.)
20
Doing so, we perceive no error. A lay person may properly offer an
opinion on the identity of a person—including from surveillance footage—if it
is rationally based on the witness’s perception, helpful to a clear
understanding of the witness’s testimony, and not more prejudicial than
probative. (People v. Leon, supra, 61 Cal.4th at p. 601, in part quoting People
v. Perry (1976) 60 Cal.App.3d 608, 612 [proper for officers to identify
defendants in surveillance footage or photographs where they had contacts
with the defendant, were aware of his physical characteristics on the day of
the offense, and predicated their identification on their perception of film
taken of the events]; People v. Mixon (1982) 129 Cal.App.3d 118, 130-131
[upholding admission of officers’ lay opinion identifying the defendant from
surveillance photos where officers had requisite personal knowledge having
previously seen the defendant on numerous occasions and one familiarized
himself with defendant’s features; the testimony aided the jury because the
photos were not a clear depiction of the subject; and officers did not depict the
defendant as being under police scrutiny such that prejudice did not outweigh
probative value]; see also People v. Ingle (1986) 178 Cal.App.3d 505, 513
[admission of such lay identification testimony is “clearly established”].)
Admission of such testimony is proper even when the familiarity occurs after
the crimes (accord, People v. Leon, at p. 600) and even where the witness only
becomes familiar with the defendant’s appearance from photographs, not
personal contact. (People v. Larkins (2011) 199 Cal.App.4th 1059, 1065-1068
[loss prevention manager of gym who saw defendant’s picture from driver’s
license and booking photo could properly identify him in videos from other
clubs; “It does not matter at what point in his viewing of the videos—either
before, during or after—that he saw what were indisputably photos of
defendant, and then could put a name to the images he saw”].)
21
The trial court did not abuse its discretion in permitting Detective
Tafoya’s testimony because it meets these foundational requirements. The
detective was aware of Price’s appearance via still photographs from the bar
surveillance video that same evening and morning, then reviewed the local
business surveillance video of the shooting to render his opinion that it was
Price in the latter video exiting the car. Because Detective Tafoya was
familiar with Price’s appearance on the evening/morning in question, and the
surveillance video of the shooting did not clearly depict the man exiting the
car, his testimony aided the jury in determining the critical issue of his
identity, and was therefore admissible. (See People v. Leon, supra, 61 Cal.4th
at p. 600; People v. Mixon, supra, 129 Cal.App.3d at p. 128.)
We disagree with Price’s argument that the detective’s testimony that
Price was the person exiting the Chrysler 300 amounted to an impermissible
opinion on his guilt. The detective did not say Price was guilty, or that he
was the shooter, or offer any opinion on the ultimate fact of Price’s guilt.
(Compare People v. Brown (1981) 116 Cal.App.3d 820, 829 [officer’s testimony
that the defendant “was working as a runner”—given jury instructions
defining a runner—was tantamount to an opinion that the defendant was
guilty of the charged crime]; People v. Torres (1995) 33 Cal.App.4th 37, 48
[officer’s volunteered opinion that robbery “is what happened in this
particular case” was an improper opinion on what crimes were committed
and whether defendant was guilty of them].) Were we to hold otherwise,
courts could never admit into evidence any lay opinion identifying a person
based on a photograph or video of that person in the act of a crime.
Nor was Detective Tafoya’s testimony admitted to prove the content of
the video, as Price asserts. In the case he relies on, People v. Panah (2005) 35
Cal.4th 395, the court explained a video is a writing for the purposes of the
22
best evidence rule, but “[t]he purpose of the best evidence rule is ‘to minimize
the possibilities of misinterpretation of writings by requiring the production
of the original writings themselves, if available.’ ” (Id. at p. 475.) The video
at issue here was admitted into evidence, and Detective Tafoya’s testimony
was not used to prove the video’s content, but rather to assist the jury in
identifying the individual seen exiting the vehicle before the shooting. Courts
have upheld the admission of police officers’ testimony identifying defendants
in surveillance footage without best evidence concerns. (See People v. Leon,
supra, 61 Cal.4th at p. 601.)
III. A.T.’s Testimony
At trial, the People called A.T., one of the security guards present
during the shooting. A.T. was working at the bar and observed the aftermath
of the fight and Price and his group’s exit. However he was unable to identify
Price as one of the men involved in the fight. Afterwards, outside the jury’s
presence, the prosecutor asked A.T. if he had messaged an investigator about
his belief that the defendants were from Skyline or O’Farrell, and he
explained the investigator had told him the defendants were from those
gangs and if anything happened, they could do witness protection.
Afterwards, the prosecutor asked the court to pursue that issue before the
jury as going to A.T.’s “state of mind as to why he is being hesitant to identify
anyone.” Hune’s counsel responded: “If she goes into it, then I think we can
go into how he received that information." The court said, “Well, of course,”
and he replied, “No problem.”
The prosecutor thereafter asked A.T. whether he was reluctant to call
the investigator back, and he confirmed he “didn’t want to be involved.” She
asked: “Do you have any concerns for your personal safety coming to court to
testify?” A.T. responded: “Well, I mean, [the investigator] had mentioned
23
that the guys were possibly gang members and . . . the paperwork alone says
you are reporting to the gang part of the court, and then—the gang
prosecution part, you know. So that’s a little, you know, odd, makes you not
want to really show up. And then he also said, you know, we are not worried
about it but we can offer witness protection and things if it seems like
something might happen. So once people start saying those kind of things,
yeah, it does make you concerned. I have kids that are with me all the time.”
Price contends his due process right to a fair trial was violated when
the prosecutor elicited this testimony from A.T. He maintains there was no
evidence A.T. was threatened by either defendant, or that the witness was in
danger of retaliation. He argues the prosecutor’s questions implied he and
Hune were dangerous individuals with a propensity for violence, and it was
particularly prejudicial given her argument that their gang mentality
required them to retaliate against anyone who disrespected or harmed them.
Price argues the questions were irrelevant and designed only to prejudice the
jury against them.
We reject the contention. First, Price’s counsel forfeited it by failing to
object. (Accord, People v. Flinner (2020) 10 Cal.5th 686, 719; People v. Mora
and Rangel (2018) 5 Cal.5th 442, 502.) Even if that were not the case, the
court did not abuse its discretion in permitting the prosecutor’s questions.
Because A.T. did not identify Price as one of the men involved in the fight,
admission of his knowledge and concern about the fact the defendants were
gang members was probative to explain his reluctance or fear in testifying
against them, and the credibility of his testimony in that respect. (See People
v. Pettie, supra, 16 Cal.App.5th at p. 44 [where victim and other prosecution
witnesses testified they could not recall details of assault, and victim
admitted he had been “living watching over my shoulder” and expressed
24
concerned for the well-being of his family, evidence of defendants’ gang
involvement was probative to explain why the witness might be reluctant or
afraid to testify against defendants]; see also People v. Harris (1985) 175
Cal.App.3d 944, 957 [evidence of gang membership was relevant to witness’s
credibility where witness failed to respond to questions or refused to answer,
and had earlier told a detective he was afraid to testify because the
defendants would shoot up his mother’s house if he did].) The probative
value of A.T.’s testimony in this regard was not affected by the absence of
evidence A.T. was threatened or in actual danger, as long as it is reasonable
to infer A.T.’s hesitance or inability to identify Price may be impacted by his
knowledge of defendants’ gang status.
IV. Claim of Ineffective Assistance of Counsel
Price contends that as to any claims his counsel forfeited concerning
A.T.’s or Detective Tafoya’s testimony, he received constitutionally ineffective
assistance, requiring reversal. The People respond that he has not
established his counsel was ineffective in part because the evidence was
admissible, and therefore defense counsel was not ineffective in foregoing any
objection to it.
Again we agree with the People. To succeed on such a claim, Price
must show his counsel’s “omission ‘fell below an objective standard of
reasonableness’ [citations] in light of ‘the professional norms prevailing when
the representation took place’ [citations].” (In re Long (2020) 10 Cal.5th 764,
773.) This court indulges “ ‘a “strong presumption” that counsel’s conduct
falls within the wide range of reasonable professional assistance because it is
all too easy to conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight.’ ” . . . [W]e must ‘reconstruct
the circumstances of counsel’s challenged conduct, and . . . evaluate the
25
conduct from counsel’s perspective at the time.’ ” (In re Long, at p. 774.)
Price must overcome the presumption that under the circumstances,
counsel’s “ ‘challenged action “might be considered sound trial strategy.” ’ ”
(In re Gay (2020) 8 Cal.5th 1059, 1073.) He cannot make the requisite
showing or overcome the presumption, because counsel cannot be faulted for
failing to make unmeritorious or futile objections. (People v. Maury (2003) 30
Cal.4th 342, 419.)
V. Imposition of Fines, Fees and Assessments
The trial court ordered Price to pay a $10,000 restitution fine (§ 1202.4,
subd, (b)), stayed a section 1202.45 restitution fine in the same amount, and
imposed a court operations fee in the amount of $280 (§ 1465.8), a criminal
justice administration fee of $154 (Gov. Code, § 29550.1), and a criminal
conviction assessment of $210 (Gov. Code, § 70373). Price’s counsel did not
object based on Price’s ability to pay.
Price contends the court’s imposition of assessments, fees and fines
without considering his ability to pay them violated his due process rights
under the federal and state constitutions and People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas).8 He maintains the record does not support an
inference he had or would have in the future any ability to pay them; nothing
8 Cases have held that Dueñas was wrongly decided; that restitution
fines should be reviewed not under due process principles but under the
Eighth Amendment’s excessive fines clause, as this court held in People v.
Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.
The California Supreme Court will resolve two issues in Kopp: “(1) Must a
court consider a defendant’s ability to pay before imposing or executing fines,
fees, and assessments? [and] (2) If so, which party bears the burden of proof
regarding defendant’s inability to pay?” Because we conclude any error was
harmless, we need not address the areas of disagreement with Dueñas by this
and other courts. (See, e.g., People v. Allen (2019) 41 Cal.App.5th 312, 318,
326-327; People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26,
2019, S258946.)
26
shows he is anything other than indigent now that he has been sentenced to
multiple potential life prison terms. He also argues imposition of the fines,
fees and assessments violated his Eighth Amendment protection against
excessive fines.
Pointing out Price’s counsel raised no objection on any of these grounds,
and that trial courts can consider a defendant’s ability to pay a restitution
fine above the statutory maximum as here, the People respond that Price
forfeited his appellate challenge. They further argue that even if that were
not the case, imposition of the restitution fine did not violate Price’s
constitutional rights. The People finally argue that to the extent imposition
of the non-punitive assessments implicates due process concerns, any due
process violation is harmless beyond a reasonable doubt even with a
minimum prison wage, given Price’s young age, employment history and the
length of time he will serve.
We agree Price forfeited his due process and excessive fines arguments
given his counsel’s failure to object on those specific grounds, or on his client’s
alleged inability to pay. (See, e.g., People v. Oliver (2020) 54 Cal.App.5th
1084, 1102; People v. Smith (2020) 46 Cal.App.5th 375, 395-396; People v.
Keene (2019) 43 Cal.App.5th 861, 863-864; People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1033.) Because the court imposed a restitution fine
greater than the statutory minimum, Price had every incentive to assert an
inability-to-pay objection. (Oliver, at p. 1102; Smith, at p. 395 [“It is well
established that a defendant forfeits a challenge to the trial court’s
imposition of a restitution fine above the statutory minimum for failing to
consider his or her ability to pay if the defendant did not object in the trial
court”].) Price’s ability to pay is a fact specific inquiry that must be raised
below to preserve it on appeal. (See People v. Baker (2018) 20 Cal.App.5th
27711, 720 [claims requiring a fact specific inquiry are forfeited if not raised
below].)
As the People argue, we agree any assumed error was harmless beyond
a reasonable doubt given future wages Price may earn in prison. (People v.
Jones (2019) 36 Cal.App.5th 1028, 1035 [Dueñas error subject to harmless
error analysis under Chapman v. California (1967) 386 U.S. 18]; People v.
Johnson (2019) 35 Cal.App.5th 134, 139-140 [same]; see People v. Jenkins
(2019) 40 Cal.App.5th 30, 41, review granted Oct. 23, 2019, S258729, review
dismissed and cause remanded July 29, 2020 [court may consider wages
defendant may earn in prison on his ability to pay fines and assessments];
People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [court may consider
defendant’s future ability to pay]; People v. Hennessey (1995) 37 Cal.App.4th
1830, 1837; § 2085.5 [outlining how a restitution fine balance may be
collected from prison wages].) At the time of his sentencing in September
2019, Price was 28 years old. He previously worked in construction and
warehousing, and was employed as a framer in the months before his arrest,
earning approximately $500 per week.
“[E]very able-bodied” prisoner must work while imprisoned. (§ 2700.)
“Wages in California prisons currently range from $12 to $56 a month.”
(People v. Jones, supra, 36 Cal.App.5th at p. 1035, citing in part Cal. Code
Regs., tit. 15, § 3041.2, subd. (a)(1).) “ ‘The state may garnish between 20 and
50 percent of those wages to pay the section 1202.4, subdivision (b)
restitution fine.’ ” (People v. Lowery (2020) 43 Cal.App.5th 1046, 1060; see
also Jones, at p. 1035, citing § 2085.5, subd. (a) & Cal. Code Regs., tit. 15,
§ 3097, subd. (f).) While Price’s fees, assessments and fines are substantial
and it may take some time for him to pay this amount, that circumstance
does not support his inability to make payments on these amounts from
28
prison wages. (People v. Aviles, supra, 39 Cal.App.5th at p. 1077.) Nothing
in the record suggests Price is unable to work a prison job; rather, given his
past work history, inferences may be drawn to the contrary. “In our view,
this forecloses a meritorious inability to pay argument.” (Jones, at p. 1035.)
Though Price maintains the record is insufficient to make this finding, we
disagree, and the length of time he faces in prison belies this argument. “It is
illogical to conclude that [Price] will not have an ability to begin paying at
least some of the imposed fees, fines and assessments while [he] is
incarcerated.” (Lowery, at p. 1061.)
VI. Correction of Abstract of Judgment
The trial court imposed at Price’s sentencing, and Price’s abstract of
judgment indicates, sentences of “seven years to life” for his attempted
murder convictions in counts 1 through 3. Price argues these sentences are
unauthorized; that the correct sentence on those counts is life with the
possibility of parole. (§ 664, subd. (a).) The People concede the abstract of
judgment should be corrected. We agree with that concession, and direct the
trial court to correct the abstract of judgment accordingly.
29
DISPOSITION
The matter is remanded with directions that the trial court correct the
abstract of judgment to reflect that Price’s sentence on counts 1, 2 and 3 is
life with the possibility of parole, and forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation. In all other
respects the judgment is affirmed.
O’ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
30