People v. Alvarez CA4/2

Filed 3/12/21 P. v. Alvarez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073501
v. (Super.Ct.No. RIF1600672)
JOSEPH ALVAREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Affirmed as modified.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Melissa
Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
1
In February 2016, three California Baptist University (CBU) students went to a
well-known student hangout in the orange groves near campus in Riverside to eat
hamburgers and hang out without being subject to the strict on-campus curfew rules.
Defendant, a Hillside Riva gang member; his 16-year-old son (Son); and a fellow gang
member, Jimmy Zamorano, drove up and confronted the three students. Defendant stood
by the vehicle while Son and Zamorano hit one of the students, who immediately ran.
Son and Zamorano then beat up the two remaining students and took a cellular telephone.
Defendant directed Son and Zamorano that it was time to leave. Defendant, Son and
Zamorano were tracked to defendant’s nearby home. Defendant was involved in a stand-
off with police during which he wrestled with a police dog. Defendant was convicted of
one count of robbery, two counts of attempted robbery, making criminal threats, harming
a police dog, and several gang enhancements.
Defendant claims in his opening brief on appeal that (1) the admission of
extensive, cumulative and prejudicial gang evidence was an abuse of discretion and a
violation of his federal Constitutional due process rights; (2) the trial court erred and
violated his federal due process rights by admitting evidence that Zamorano had pleaded
guilty to the same charges prior to trial; and (3) his sentence for making criminal threats
should be stayed pursuant to Penal Code section 654.1
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged by the Riverside County District Attorney’s Office with
robbery (§ 211; count 1); two counts of attempted robbery (§§ 664, 211; counts 2 & 3);
making criminal threats (§ 422; count 4); and interference with a police dog (§ 600, subd.
(a); count 5). In addition, he was charged with the special allegation that the violent
crime in count 1 was committed for the benefit of, at the direction of, and in association
with a criminal street gang (§ 186.22, subd. (b)(1)(C)). It was further alleged that the
crimes in counts 2, 3, and 4 were committed on behalf of a criminal street gang
(§ 186.22, subd. (b)(1)(B)). Finally, he was charged with having suffered one serious and
violent prior conviction (§§ 667, subd. (a), (c)-(e)(1), 1170.12, subd. (c)(1)). The trial
court reduced count 5 to a misdemeanor prior to the case being sent to the jury.
Defendant was found guilty of the charged crimes and gang allegations.
Defendant waived his right to a jury trial on the prior conviction and admitted he had
suffered the prior serious and violent felony conviction. Defendant was sentenced to 23
years 8 months to be served in state prison.2
2 The trial court chose not to strike the section 667, subdivision (a), prior despite
having the discretion to do so. In addition, the trial court determined that defendant had
the ability to pay the fines and fees it imposed.
3
B. FACTUAL HISTORY
1. ROBBERY OF THE CBU STUDENTS
On February 9, 2016, Bryan V.3 was a student at CBU in Riverside. On that night
he was with his friend, Alex T., and his roommate A.L. Since CBU had a strict curfew
on campus, they decided to leave campus and get hamburgers. They took the food to an
area near some orange groves where CBU students oftentimes gathered. Bryan had been
to the location on at least 10 prior occasions and encountered no problems. A.L. and
Alex had been to the orange groves on several prior occasions. The area was down a dirt
road and there were not many houses in the area. There was only one way in and out.
They arrived at the location around 9:30 p.m. They were in a car that belonged to
A.L.’s girlfriend. They stood outside the car eating and talking for about 20 minutes.
While they were talking, a red car drove up and the occupants waved at them. Bryan
thought they may be other CBU students and waved back. A.L. thought they may be
friends until they got closer. Two men approached while one man waited by the car.
Bryan and A.L. realized they did not know the men. One of the men was older than
Bryan and had “burning eyes,” and the other was a young, skinny “kid.”4 One of the men
3 We refer to the victims in this case by their first names to provide them with
some measure of anonymity. (Cal. Rules of Court, rule 8.90(b)(4).) No disrespect is
intended.
4 At trial Alex recalled that three men exited the vehicle and surrounded them.
He also recalled that defendant exited the driver’s seat and asked the other two if they
knew these guys.
4
asked, “You know where you’re at?” One of the men punched Alex hard in the jaw and
he fell to the ground. Alex got up and ran away.
Bryan said “What the hell,” and told the men they had not done anything. Both
men started beating up Bryan. Bryan had his cellular telephone in his hand, which flew
out of his hand when they started beating him up. One of the men took his phone. They
told Bryan “Get on the ground or we’re gonna kill you.” Bryan was able to break free
and started running. The third man by the car, identified as defendant, said to Bryan,
while laughing, “Don’t run, or it’s gonna be worse.” Bryan was afraid for his life. Bryan
was a cross-country athlete so he knew he could outrun them. He ran into the orange
groves.
As Bryan was running, he heard someone yelling to him, “I told you not to run.
We told you not to run. We’re gonna kill you.” Bryan ran deeper into the orange groves
then laid down flat on the ground hoping they would not find him. He heard them getting
closer so he got up and ran again.
A.L., who was still by his girlfriend’s car, heard one of the men tell him it was
“Hillside” territory. A.L. tried to run away but defendant, who was still at his car,
stepped in front of him. Defendant asked him “Where are you trying to run, boy?” or
“Where you going? Get back here.” Defendant started walking toward A.L. A.L. turned
around and went back to his car because he was scared of defendant. The two other men
threw him to the ground and kicked him several times in the face. They reached into his
pockets and tried to grab items. All three of the men asked him for money. A.L. told
5
them he did not have any money. They told him to get in his car and drive away.
Defendant and the two other men got in their car and drove away.
Bryan was able to get to the street, flag down a car, and asked the occupants to call
the police. Around 10:00 p.m. on February 9, 2016, City of Riverside Police Officer Eric
Hibbard5 was working patrol with his police dog. Officer Nicholas Vazquez was also
working patrol. They both received a call regarding a robbery in the area of Madison and
Lenox Avenue in Riverside. Officer Hibbard arrived at approximately 10:15 p.m.
Officer Vazquez also responded and spoke with Bryan, who gave a description of the
suspects and their vehicle.
Officer Hibbard drove in the direction where the suspects had gone. As he was
driving, he saw a vehicle matching the suspects’ vehicle parked in the driveway of a
house located on Lenox Street. Officer Hibbard stopped his vehicle and walked up the
driveway. The garage door was open and defendant was sitting in the garage listening to
music. Defendant jumped up and walked to the garage door. Officer Hibbard asked
defendant to come out of the garage to talk to him. Defendant yelled, “The cops are
here,” and shut the garage door. Officer Hibbard called for more officers. Officer
Hibbard felt the hood of the suspects’ vehicle and it was still warm.
Officer Hibbard went back up the driveway to his car. Officer Vazquez and other
officers arrived to assist Officer Hibbard. Defendant came in and out of the house. He
yelled and cursed at them. He yelled “Fuck you” and “Get off my property.” The
5 Officer Hibbard retired in March 2017.
6
officers yelled to him that they needed to talk to him. Defendant went in and out of the
house at least six times. Defendant flashed what appeared to be gang signs at them. Son
was found hiding in the bushes in the neighbor’s front yard. He matched the description
given by one of the victims and was detained.
After approximately one hour, Officer Hibbard and the other officers decided that
the next time defendant emerged from the house they would detain him. When defendant
came out the front door, Officer Hibbard approached him with his police dog. Another
officer was with him with his rifle. They yelled for defendant to get down on the ground.
Defendant did not comply and, after giving a final warning that he was going to do so,
Officer Hibbard released his dog.
The police dog tried to grab defendant’s leg, but defendant was able to grab the
dog by its collar. Defendant picked the dog up by its collar and held him hanging up by
the collar. The police dog was flailing around and trying to bite defendant. Officer
Hibbard was concerned that defendant was going to hurt the dog so he ran to help it.
Officer Hibbard punched defendant in the face in order to get him to let go of the dog.
Defendant fell to the ground but did not surrender. Defendant kept his hands underneath
him to keep from being handcuffed. The police dog latched on to defendant’s right arm
and Officer Vazquez used his Taser on defendant but defendant still resisted. Defendant
was finally subdued and handcuffed. Defendant spit at the medical personnel who tried
to help him.
Six or seven other individuals were found in the house including Zamorano.
Bryan’s phone case was found hidden under a mattress in one of the bedrooms. The
7
phone was not in the case, which also contained Bryan’s credit card, social security card,
and driver’s license; those items were never found. Shorts and pants, which matched
what defendant and Zamorano had been wearing at the time of the incident, were found
in the house. A grey hat with a “D” on it was found in one of the bedrooms. Graffiti and
photographs were found on the walls of the garage. There was a “Hillside” sign hanging
in the garage. Another item had “VHS Riva” on it.
Bryan identified Zamorano and Son at an in-field lineup as the persons who beat
him up. Bryan also identified their vehicle. A.L. was able to identify defendant as the
driver of the car, and the two other suspects that night; he also identified their car. Alex
identified Zamorano but he could not identify defendant.
Alex’s jaw was dislocated as a result of being hit. Bryan struggled after the
incident. He began drinking heavily and it took him an additional year to graduate. A.L.
testified that defendant appeared to be leading the two men by telling them when to stop
beating him up and when it was time to get back in the car. A.L. suffered a black eye and
several bruises to his torso area. He did not need medical attention.
2. GANG EVIDENCE
Four Riverside County police officers testified regarding prior encounters with
defendant. On July 9, 1998, defendant was contacted in a park and admitted membership
in the Hillside Riva gang. On October 12, 2007, defendant was at Nichols Park in
Riverside at 2:00 a.m. when he was contacted by an officer. Defendant admitted to being
affiliated with the Dukes gang, which was part of Hillside Riva. On November 15, 2007,
defendant was involved in a traffic stop. Defendant admitted gang membership in
8
Hillside Riva, Dukes subset. On December 30, 2015, defendant had contact with officers
at a house, where he admitted to being a member of the Hillside Riva gang.
On December 28, 2004, Riverside County Police Sergeant Matthew Koser was at
his home in Riverside. Around 11:00 p.m., he heard 10 gunshots behind his house. He
called 911 and went out to the area behind his house. He observed a white vehicle
coming down the street. The driver had his left arm out the window and was firing a gun
into the air. The vehicle was stopped by other officers a short distance from Sergeant
Koser’s house. Defendant got out of the passenger’s seat of the car and went with the
driver into the house where they had been apprehended instead of complying with the
police demands to get down on the ground. Defendant and the others in the house
eventually came out. The driver was identified as Andrew Molina. Nine-millimeter
expended shell casings were found on the floor of both sides of the vehicle. A nine-
millimeter handgun and two empty magazines were found in a backpack in a bedroom
that had been occupied by defendant that night.
On May 13, 2005, defendant was convicted of a violation of section 246.3,
willfully discharging a firearm in a grossly negligent manner that could result in injury or
death, for the incident described ante. Defendant admitted that at the time he committed
the crime, he was an active participant in a criminal street gang and willfully promoted,
assisted and furthered criminal conduct of gang member Molina within the meaning of
section 186.22, subdivision (a). Molina entered a guilty plea to the same charges.
City of Riverside Police Sergeant Adam Levesque was assigned to the gang
intelligence unit. In January 2014 he was involved in a search at David Zamorano’s
9
house and seized David’s cellular telephone. David was a documented Hillside Riva
gang member. Defendant’s phone number was in his contacts under defendant’s gang
moniker “Smurf.” Photographs of defendant throwing gang signs were on David’s
phone; he was with Daniel Zamorano and David Zamorano in the photographs.
On January 30, 2014, Sergeant Levesque was involved in a search of defendant’s
residence. Defendant was present and had a Hillside tattoo on his back. He insisted he
was no longer an active member of the gang. Gang graffiti was found in his house and
garage.
Sergeant Levesque explained that the Dukes of the Hillside Riva gang were the
top level of the gang. Jimmy, Daniel, David and Joseph Zamorano were all brothers.
Sergeant Levesque was involved in an investigation of the brothers on August 8, 2013.
When they were contacted, Jimmy was wearing a Duke Blue Devils hat, which was
commonly worn by Hillside Riva gang members who were part of the Dukes subset.
Joseph had an “H” tattooed on his head. Nearby where they were detained a duffel bag
filled with guns was found. In his pocket, Daniel had a part of one of the guns found in
the duffel bag. Jimmy had 19 rounds of .22-caliber ammunition in his backpack.
Defendant was not involved in this incident. On July 3, 2015, Jimmy Zamorano and his
brother Eric Zamorano were arrested in a stolen vehicle.
Defendant was a passenger in a stolen vehicle on July 4, 2013. He was with
another fellow gang member. Defendant was convicted of trying to help the fellow gang
member escape arrest for possessing the stolen vehicle.
10
The jury was advised that Zamorano had pleaded guilty prior to trial to the instant
crimes and the gang allegation.
In February 2016, City of Riverside Police Detective David Johansen was
assigned to the gang unit. He had previously testified as a Hillside Riva gang expert.
Detective Johansen indicated that gangs existed for the purposes of criminal activity. The
gang’s culture relied on fear and intimidation. A gang member earned respect by
committing violent crimes. Violent crimes also helped elevate the status of the gang.
Older members who had already put in the work for the gang no longer had to commit
crimes and became “shot callers.” The gang made money by selling drugs, stealing cars
and committing robberies.
A younger gang member was expected to follow what a older, shot caller gang
member told him to do. Associates and hangouts were younger men who wanted to
become gang members. They were expected to commit violent crimes to gain entry into
the gang. A new member could commit a crime for the gang to gain entry or be
“jumped” in by getting beat up by other members. Many new members were brought in
by family members.
A Hillside Riva gang member would have to earn getting the gang’s tattoo. Gang
graffiti was important to show the gang’s territory and to intimidate. While committing
crimes, gang members would say the name of the gang to get credit for the gang for the
crime. Hillside Riva was not a large gang, but it was known for committing violent
crimes and intimidating people. In Detective Johansen’s experience, it was very rare for
a gang member to leave the gang.
11
Detective Johansen had numerous interactions with Hillside Riva gang members
during his years with the Riverside Police Department. Hillside Riva members
oftentimes hung out in Nichols Park and claimed it as their territory. The Hillside Dukes
were part of the gang. Some of their gang clothing included hats with just an H on them
or D for Dukes. A common gang sign was an “H” made with the hands. The primary
activities of Hillside Riva were shootings, robbery, and witness intimidation. The Dukes
made decisions for the gang and called the shots. There were only six or seven Dukes in
the Hillside Riva gang. The Dukes in the Hillside Riva gang were the highest and most
respected members.
Detective Johansen was aware that Zamorano had been convicted for the crimes
charged against defendant. In his opinion, Zamorano was an active member of the
Hillside Riva gang on February 9, 2016. Stephen Archuleta had a conviction for felony
evading the police on March 22, 2016. He was a known Hillside Riva gang member.
Henry Vasquez, a Hillside Riva gang member was convicted of felony assault with force
likely to cause great bodily injury in September 2015 for crimes he committed in 2013.
He was also convicted of the allegation that he committed the crime for the benefit of and
at the direction of the gang. Jose Flores, a Hillside Riva gang member, was convicted in
November 2010 of attempted murder and discharge of a firearm causing great bodily
injury. The allegation that he was an active participant in a criminal street gang was
found true. These crimes showed a pattern of criminal gang activity by Hillside Riva.
In Detective Johansen’s opinion, Hillside Riva was a criminal street gang.
Detective Johansen knew defendant as Smurf.
12
Detective Johansen went to defendant’s house on February 16, 2016. He met with
defendant’s wife, Melissa, and she told him, “I can’t believe he brought our son into that
shit.” He observed the Hillside Riva graffiti and photographs in defendant’s garage.
Detective Johansen was unaware that Son was a member of the Hillside Riva gang. He
was likely an associate. All five of the Zamorano brothers were documented Hillside
Riva gang members. Joseph, David and Eric were Dukes.
It was Detective Johansen’s opinion that on February 9, 2016, defendant was an
active member of the Hillside Riva gang. He was also a Duke. This was based on the
graffiti in his home, his associations and tattoos. His getting more tattoos between 2004
and 2016 showed he continued to be part of the gang. Further, he admitted being a
member two months prior to the instant crimes. In Detective Johansen’s opinion,
defendant was considered one of the more senior and respected members of the Hillside
Riva gang.
Detective Johansen believed, based on a hypothetical with the same facts of the
instant case, that such a crime was committed on behalf of and in furtherance of the gang.
The crimes furthered the reputation and status of the Hillside Riva gang. In his opinion,
defendant being present with his son and a fellow gang member was a way to bring his
son into the gang. His opinion that this was a gang crime was also based on the fact
Zamorano admitted in court that the crimes were done to benefit the gang.
3. DEFENSE
Defendant recalled Officer Vazquez. Bryan told Officer Vazquez that two persons
exited the rear of the car when the suspects arrived at the orange groves but that no one
13
exited the driver’s seat. Bryan never told him that he had any interaction with defendant
at the orange groves.
Bryan and Alex were at the hospital when they were asked to identify defendant.
They did not identify him.
Melissa Alvarez had been married to defendant for 24 years. They had lived
together at the home on Lenox Street, which belonged to defendant’s father. She and
defendant had been separated off and on since 2000; they were separated in 2016. Son
was 20 years old at the time of trial. The orange groves were not far from their home.
Son spent time at the orange groves with his friends.
In February 2016, Son was having trouble in school and was getting into trouble.
He had been kicked out of high school for smoking marijuana. He was drinking and
ditching his continuation school. Defendant and Son had a good relationship. Son was
headed toward a gang lifestyle and defendant tried to steer him away. Melissa and
defendant wanted to send him away to a program in San Diego to help him finish school
and get a vocation.
On January 27, 2016, Melissa, Son and defendant went to San Diego to try to
enroll in the program. Son was interested. In February 2016, Melissa claimed that
defendant was not going out as much and was trying to get her back. Melissa spoke with
a police officer after the incident and said, “Senior brought our son into that shit.”
Melissa said it out of anger.
14
DISCUSSION
A. ADMISSION OF GANG EVIDENCE
Defendant insists the trial court erred and violated his federal Constitutional due
process rights by admitting extensive and irrelevant gang evidence. Defendant does not
object to any particular gang evidence that was admitted but rather claims the volume of
gang evidence was prejudicial.6
1. ADDITIONAL FACTUAL HISTORY
Prior to trial, the People filed points and authorities in support of the introduction
of gang evidence. They argued such evidence was admissible to prove the elements of
the special allegations pursuant to Penal Code section 186.22, subdivision (b)(1). The
People had to prove that Hillside Riva was a criminal street gang and in order to show a
pattern of criminal street gang activity, prior crimes must be admitted. The People sought
to introduce expert testimony and certified copies of prior convictions. The People
sought to admit a total of five prior convictions. They also wanted to admit defendant’s
prior conviction of violating Penal Code section 186.22, subdivision (a), as direct
evidence that defendant actively participated in the Hillside Riva gang and that he was
aware the gang engaged in a pattern of criminal gang activity. The probative value of
this prior conviction outweighed any prejudice within the meaning of Evidence Code
6 For the first time in the reply brief, defendant refers to specific gang evidence
that should have been excluded. We will not consider such argument raised for the first
time in the reply brief. (People v. Senior (1995) 33 Cal.App.4th 531, 537.)
15
section 352. The People also sought to admit evidence of defendant’s prior law
enforcement contacts wherein he admitted gang membership.
Defendant’s counsel filed opposition to the admission of the gang evidence.
Defendant’s counsel provided a list of the evidence that should be excluded. This
included admission of gang membership by defendant in 1998, 1999, 2001, and 2007
because they were too remote. Further, defendant’s prior conviction should be excluded
because it had been suffered 15 years prior to the trial and was prejudicial. Further,
photographs and drawings that were gang related, including one with an unknown male
holding a shotgun, which were found during a probation search of defendant’s home,
should be excluded as prejudicial. An incident from 2015 in which defendant admitted
gang membership should be excluded as not relevant and prejudicial. Further, prior
crimes committed by Zamorano should be excluded as prejudicial.
The matter was heard prior to trial. The People argued they must submit
numerous instances during which defendant admitted gang membership throughout the
years to show he was an “OG Hillside Riva,” and was a shot caller in the gang. Further,
the People expected defendant was going to claim he was no longer a member of the
gang. It was important to prove that he had been a long-time member and had strong ties
to the Hillside Riva gang. The trial court noted that it could see the relevance of the
continuous gang involvement but at some point the amount of evidence would become
cumulative.
The trial court agreed to exclude the photograph of an unknown male holding a
shotgun, which was found during a search of defendant’s house. The court also limited a
16
December 30, 2015, incident by only allowing the People to admit evidence that
defendant admitted his gang membership.
Defense counsel objected to the prior gang incidents and involvement of
Zamorano and his brothers. Defendant’s counsel argued that they had been involved in
numerous crimes and that information about their criminal history was inflammatory.
The trial court found that since defendant was with Zamorano at the time of the current
crime, that such evidence was relevant, especially because of Zamorano’s numerous gang
contacts.
2. THE ADMITTED GANG EVIDENCE WAS RELEVANT
“The trial court has broad discretion in determining the relevance of evidence.”
(People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) “Under Evidence Code section
352, a trial court may exclude otherwise relevant evidence when its probative value is
substantially outweighed by concerns of undue prejudice, confusion, or consumption of
time. ‘Evidence is substantially more prejudicial than probative [citation] if, broadly
stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of
the outcome.” ’ ” (People v. Riggs (2008) 44 Cal.4th 248, 290.)
“ ‘Section 186.22, subdivision (b)(1) imposes additional punishment when a
defendant commits a felony for the benefit of, at the direction of, or in association with a
criminal street gang.’ ” (People v. Ochoa (2017) 7 Cal.App.5th 575, 581.) “Gang
evidence, including expert testimony, is relevant and admissible to prove the elements of
the substantive gang crime and gang enhancements. [Citation.] Thus, a properly
qualified gang expert may testify about a wide range of issues, including a gang's
17
territory, retaliation, graffiti, hand signals, tattoos, and clothing. [Citation.] [¶] Expert
testimony is also relevant and admissible to . . . prove the gang’s primary activities.”
(People v. Williams (2009) 170 Cal.App.4th 587, 609.) “Gang evidence is relevant and
admissible when the very reason for the underlying crime, that is the motive, is gang
related. [Citations.] ‘ “[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. Samaniego (2009) 172
Cal.App.4th 1148, 1167-1168.)
After People v. Sanchez (2016) 63 Cal.4th 665, an expert cannot “relate as true
case-specific facts asserted in hearsay statements, unless they are independently proven
by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.) As such,
the prosecution must call witnesses to testify regarding case-specific facts such as
admissions of gang membership. (See People v. Ochoa, supra, 7 Cal.App.5th at pp. 588-
589.)
“The admission of gang evidence over an Evidence Code section 352 objection
will not be disturbed on appeal unless the trial court's decision exceeds the bounds of
reason.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
The admission of gang evidence here was relevant to prove the gang enhancement,
to show defendant was aiding and abetting the offenses, and to show motive. The People
had to prove for the gang allegation that defendant committed the crime for the benefit of
or at the direction of the gang. The jury had to conclude that Hillside Riva was a gang,
which was defined as any organization with a group of three or more persons; they had
18
common signs or symbols; one or more of its primary activities was the commission of
robberies or attempted robberies; and whose members engaged in a pattern or criminal
gang activity. The evidence presented as to defendant’s admission of gang membership
was necessary to show that he would not have just quit Hillside Riva before the crimes,
and that he was still an active member. Further, the offenses committed by Hillside Riva
gang members were relevant to show that there was a pattern of gang activity. There is
nothing that supports the People are limited to just two predicate offenses. (See People v.
Hill (2011) 191 Cal.App.4th 1104, 1138-1140 [admission of eight predicate offenses is
not excessively cumulative].) Moreover, the photographs of gang graffiti in defendant’s
garage and in photographs was proper to show both the signs and symbols of the gang,
but also to show defendant continued to be a member. Defendant’s prior crimes
committed with gang members were relevant to show his status in the gang and his
ongoing participation.
Defendant complains that dozens of gang-related photographs were admitted and
13 different law enforcement officers testified regarding the Hillside gang and
defendant’s involvement. However, as noted, after Sanchez any out-of-court statements
that are hearsay cannot be testified to by a gang expert. The People chose to proceed on
the theory that defendant was the shot caller and that he aided and abetted the crimes by
directing Son and Zamorano. The People were entitled to introduce relevant evidence to
support this theory. Further, the People were required to present the testimony of
numerous officers to testify about admissions of gang membership made to them by
defendant pursuant to Sanchez. The testimony of each officer was brief, the nature of the
19
gang contacts was less inflammatory than the charged crimes and “certainly not so
cumulative as to lack probative value.” (See People v. Tran (2011) 51 Cal.4th 1040,
1050.)
Further, the trial court did not err by admitting evidence of predicate crimes
committed by Zamorano and his brothers. The evidence was relevant to show the pattern
of gang activity and also to show that defendant was with a well established Hillside Riva
gang member when he committed the instant offenses. Here, defendant denied that he
was an active member of Hillside Riva and denied that he was seeking to indoctrinate
Son into the gang. The People were properly allowed to admit numerous predicate
offenses, including the prior offenses committed by defendant, to show both a pattern of
gang activity and defendant’s gang involvement. The admission of gang evidence was
probative, and the amount of evidence was not overly prejudicial.
3. HARMLESS ERROR
Defendant contends the admission of the evidence violated his federal
Constitutional right to due process and was prejudicial requiring reversal of his
convictions. “We review evidentiary errors for prejudice by determining whether it was
reasonably probable that a jury would have returned a more favorable verdict for
defendant had the court not admitted the evidence.” (People v. Felix (2019) 41
Cal.App.5th 177, 187, citing to People v. Watson (1956) 46 Cal.2d 818, 836.) “[T]he
admission of evidence, even if erroneous under state law, results in a due process
violation only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37
Cal.4th 428, 439.) “Absent fundamental unfairness, state law error in admitting evidence
20
is subject to the traditional Watson test.” (Ibid.) Here, defendant’s trial was not
fundamentally unfair, and it is not reasonably probable the verdict would have been more
favorable to defendant if the gang evidence had been excluded.
The jury was advised it could only consider the gang evidence for the limited
purpose of deciding if he “acted with the intent, purpose, and knowledge that are required
to prove the gang-related enhancements charged,” to show motive, and judge witness
credibility. The jury was specifically 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.” We presume that the jurors followed the instructions and did not find
defendant guilty based solely on the gang evidence presented. (People v. Franklin (2016)
248 Cal.App.4th 938, 953 [“We presume that the jury followed these limiting
instructions, and there is nothing in this record to rebut that presumption”].)
Finally, the evidence of defendant’s guilt was overwhelming. Defendant was
present while Son and Zamorano approached Alex, and one of the two hit Alex hard in
the jaw. Defendant then observed Zamorano and Son beat up Bryan and A.L. They took
Bryan’s phone, which held his credit card, social security card, and license. Defendant
laughed at A.L. and Bryan, telling them not to run. Defendant told Son and Zamorano to
stop and they all left together. Defendant did not comply with officers who located him,
Zamorano, and Son together at defendant’s house, which was near where the incident
occurred. Defendant refused to surrender to police and attacked a police dog. He
continued to resist even after being handcuffed. Bryan’s phone case was found in
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defendant’s house. The evidence overwhelmingly supported that defendant was present
and aided and abetted Son and Zamorano.
B. ADMISSION OF ZAMORANO’S PLEA
Defendant further contends the trial court erred and violated his federal
Constitutional due process rights by admitting evidence that Zamorano had pleaded
guilty prior to trial to the same charges. He insists the jury relied on Zamorano’s plea to
find defendant guilty in this case.
1. ADDITIONAL FACTUAL HISTORY
Prior to trial, the People sought a ruling on the admission of gang evidence. As
one of the predicate offenses, the People sought the admission of Zamorano’s guilty plea
to the charges in this case. The People argued, “In the current case, co-defendant Jimmy
Zamorano, pled guilty to the court, admitting all counts and allegations, including the
186.22 (b) allegations attached to each count. It is well established that the current crime
can serve as a predicate. (See People v. Loeun (1997) 17 Cal.4th 1.)” The People argued
that in addition to being relevant as a predicate offense, Zamorano’s prior offense was
relevant to prove the section 186.22, subdivision (b), allegation against defendant. The
People had to prove that Zamorano was also a member of the Hillside Riva gang. This
evidence was extremely relevant to establish that defendant was acting in concert with
another gang member at the time he committed the crimes in this case. Further, the
evidence was more probative than prejudicial.
At the hearing on the matter, the trial court ruled that the admission to the section
186.22 allegation by Zamorano would be admitted. Defendant’s counsel objected to the
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admission as a predicate because there were other crimes that could be admitted. The
trial court requested case law supporting that the People were not allowed to use a crime
as a predicate that arose from the same case. Defendant’s counsel was unaware of any
case law but argued it should be excluded pursuant to Evidence Code section 352.
The trial court ruled, “The Court makes the finding that it is not unduly prejudicial
in light of the fact of all the other evidence that is coming in as to defendant’s gang ties
that stretch all the way back to the late ‘90s and it’s highly probative in light of the fact
that the People have to prove current membership. The trial court read to the jury that
Zamorano was convicted of robbery, two counts of robbery, and making criminal threats.
In addition, he admitted to assisting or aiding a criminal street gang, and that the crimes
were committed on behalf of the gang.
2. ANALYSIS
We need not consider if the trial court improperly admitted Zamorano’s plea, as
any conceivable error was harmless. “[W]e determine from the whole record whether it
is reasonably probable that without the error a result more favorable to the defendants
would have occurred.” (People v. Haynes (1984) 160 Cal.App.3d 1122, 1135, discussing
People v. Watson, supra, 46 Cal.2d at p. 836.)
Here, the prosecutor argued that Zamorano admitted the crimes and that the only
question for the jury was whether defendant aided and abetted Zamorano. During
opening argument, the prosecutor argued, “I don’t think the defense is going to argue
those crimes were not committed. We know those crimes were committed. Jimmy
Zamorano pled to them.” The prosecutor further argued, “Again, the fact that the robbery
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occurred is not an issue here. I don’t anticipate defense getting up here and arguing to
you that he wasn’t robbed.” It was not an issue that the crimes were committed by
Zamorano and Son. The prosecutor also relied on the evidence to show that defendant
was an active gang member. Defendant’s counsel admitted in closing that the elements
of robbery and attempted robbery were met in this case and the only issue was whether
defendant aided and abetted the crimes. Defendant had no idea what Son and Zamorano
were planning to do. Defendant did not have the intent to aid and abet; he was just a
concerned dad.
The fact the jury was aware that Zamorano pleaded guilty to the same crimes for
which defendant was on trial did not establish defendant’s guilt. There was no question
Zamorano committed the crimes and defendant was present at the scene. The issue for
the jury was whether defendant aided and abetted Zamorano and Son. This was not
proven by the fact the jury had knowledge Zamorano had pleaded guilty. The jury had to
determine beyond a reasonable doubt that defendant aided and abetted Zamorano and
Son.
Moreover, even without the admission of Zamorano’s plea, other evidence
established the necessary pattern of gang activity to prove the gang enhancement and that
defendant was an active Hillside Riva gang member. As such, any error in admitting the
evidence for this purpose was harmless as even had the trial court excluded Zamorano’s
plea, the result would be the same. Here, the People were required to prove a pattern of
gang activity that included specific predicate crimes. In addition to Zamorano’s plea, the
prosecution admitted defendant’s prior conviction in 2005 of willful discharge of a
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firearm with a gang enhancement. This was relevant as both a predicate crime and to
show that defendant was a Hillside Riva gang member. The jury could also rely on
defendant’s own commission of robbery in this case to establish the pattern of
committing robberies. (People v. Tran, supra, 51 Cal.4th at p. 1046.) The prosecutor
also presented evidence that there were prior crimes committed by other Hillside Riva
gang members including Henry Vasquez, who committed felony assault in 2015, and
Jose Flores who was convicted of attempted murder in 2010. Substantial evidence
without Zamorano’s pleas supported the true finding by the jury on the gang allegations
without reliance on Zamorano’s plea.
Moreover, as discussed ante, the evidence of defendant’s guilt without the gang
evidence, including Zamorano’s plea, was overwhelming. Any conceivable error in
admitting Zamorano’s plea was harmless.
C. 654 STAY
Defendant contends the sentence on his criminal threat conviction for threats made
to Bryan must be stayed pursuant to section 654.
1. ADDITIONAL FACTUAL HISTORY
Defendant was prosecuted as an aider and abettor. The jury was instructed, “The
defendant is charged in Count 1 with robbery and in Counts 2 and 3 with attempted
robbery and in Count 4 with criminal threats. [¶] You must first decide whether the
defendant is guilty of robbery or attempted robbery. If you find the defendant is guilty of
either of those crimes or any of those crimes, you must then decide whether he is guilty
of criminal threats. [¶] Under certain circumstances, a person who is guilty of one crime
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may also be guilty of other crimes that were committed at the same time.” The jury was
further instructed that they must determine if making criminal threats was a natural and
probable consequence of aiding and abetting the robbery. They were then instructed on
the crime of criminal threats against Bryan.
The prosecutor argued in closing argument that defendant was also guilty of aiding
and abetting the criminal threat to Bryan. The prosecutor contended, “That’s [a] strong
probable consequences, talking about the criminal threats. Robbery requires force and/or
fear that’s required to prove the robbery. [¶] Well, it’s logical, then, that during the
robbery somebody is likely to be threatened. That’s the criminal threat.” The prosecutor
further argued that a robbery requires force or fear and a “threat is what gets this.” The
prosecutor identified the threats as ordering Bryan to get down on the ground or they
would kill him, and also if he ran they would kill him.
At the time of sentencing, the trial court sentenced defendant on count 1, the
robbery of Bryan, to the midterm of three years (doubled due to the strike). Counts 2 and
3, the attempted robberies, were ordered to run consecutive to count 1 based on multiple
victims. As for count 4, the trial court ordered that “[t]he 422, the defendant is ordered to
serve the low term of 16 months in state prison. That will be doubled because of the
strike prior, and that will run concurrent to the time imposed in any and all other counts.”
The trial court did not provide any reasons for imposing the concurrent sentence.
2. ANALYSIS
Section 654, subdivision (a), provides in pertinent part, “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
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provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” Concurrent
sentences on convictions subject to section 654 are prohibited. (People v. Deloza (1998)
18 Cal.4th 585, 592.)
“Where a defendant entertains multiple criminal objectives independent of and not
merely incidental to each other, he may be punished for more than one crime even though
the violations share common acts or are parts of an otherwise indivisible course of
conduct.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.) “Only if we conclude that
the case involves more than a single act—i.e., a course of conduct—do we then consider
whether that course of conduct reflects a single ‘intent and objective’ or multiple intents
and objectives.” (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)
Here, the trial court gave no indication as to its reasons for imposing concurrent
sentences on the robbery and criminal threat convictions. The trial court had to impliedly
determine that the course of conduct (1) did not involve a single physical act, and
(2) reflected multiple intents and objectives. (People v. Corpening, supra, 2 Cal.5th at p.
311.) Whether a defendant harbored a separate intent and objective for each offense is a
factual determination for the trial court, and its conclusion will be sustained on appeal if
supported by any substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622,
730.)
Defendant relies on People v. Bradley (2003) 111 Cal.App.4th 765 (Bradley) to
support his claim that the criminal threats sentence should have been stayed. The
defendant in Bradley was part of a scheme to lure a customer away from a casino for the
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purpose of robbing him. (Bradley, at p. 767.) The defendant successfully located a
victim and she drove him away from the casino in his car. She pulled over and two other
males entered the vehicle. One of the males had a gun, which he pointed at the victim.
(Ibid.) The victim was taken to a location and robbed. He was ordered into the trunk of
his car but claimed to not know how to open the trunk. (Id. at pp. 767-768.) One of the
men beat up the victim and shot him eight times. (Id. at p. 768.)
The victim survived and the defendant was convicted of attempted murder and
robbery based on aider and abettor liability. Liability for the attempted murder was
premised on the natural and probable consequences doctrine. (Bradley, supra, 111
Cal.App.4th at p. 768.) The trial court imposed consecutive sentences for the crimes. On
appeal, the defendant raised a challenge under section 654. (Ibid.)
On appeal, the Bradley court held that it was error to impose consecutive
sentences for the two crimes. (Bradley, supra, 111 Cal.App.4th at p. 772.) The court
concluded that defendant “was neither tried nor convicted of the attempted murder charge
on the theory she intended the commission of that crime. Rather she was convicted on a
theory this second offense was a ‘natural and probable’ consequence of the offense she
did intend, that is, the robbery.” (Id. at p. 769.) The court noted the prosecutor could
have elected to have the jury determine the defendant had the specific intent to attempt to
murder the victim but did not do so. (Id. at p. 770.) Under such circumstances, “the trial
court cannot countermand the jury and make the contrary finding [the] appellant in fact
personally had both objectives. Indeed there is a complete absence of any evidence in
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this record to support such a finding had the trial judge attempted to do so.” (Ibid., fn.
omitted.)
We agree with defendant that, here, there is no evidence defendant personally
harbored multiple intents and objectives. The prosecutor argued to the jury that the
threats were part of the robbery. “Well, it’s logical, then, that during the robbery
somebody is likely to be threatened. That’s the criminal threat.” There was no evidence
that the criminal threats served another objective other than to facilitate the robbery of
Bryan or that defendant possessed another intent other than to aid and abet the robbery.
The People rely on People v. Nguyen (1988) 204 Cal.App.3d 181, to support their
claim that section 654 does not necessarily preclude multiple punishment where one
crime was the natural and probable consequence of another. In Nguyen, the defendant
and an accomplice armed themselves and entered a market. The defendant’s cohort took
the clerk to the back room and took money from his pockets. The defendant took money
from the cash register. The victim heard the defendant shout “a Vietnamese battle phrase
used when ‘someone was to kill or be killed.’ ” (Id. at p. 185.) The defendant’s cohort
proceeded to kick the clerk in the ribs and shot him in the back. (Ibid.) The defendant
was convicted of robbery and attempted murder and the trial court imposed consecutive
sentences. On appeal, the defendant argued that section 654 applied because he was
convicted of the attempted murder based on it being a natural and probable consequence
of the robbery. (Nguyen, at pp. 189-190.) The Court of Appeal disagreed, explaining:
“[A] separate act of violence against an unresisting victim or witness, whether gratuitous
or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for
29
purposes of section 654. If the trier of fact determines the crimes have different intents
and motives, multiple punishments are appropriate.” (Id. at p. 193.)
The Bradley court distinguished Nguyen in that, “the aider and abettor of the
robbery actively encouraged the shooter to kill the victim. . . . [¶] . . . [¶] As a result,
applying the rationale of our opinion to Nguyen he would still be subject to consecutive
sentencing. Ample evidence in the record of that case would support a finding Nguyen
shared his cohort’s independent objective of attacking the victim. Indeed he evidently
was the instigator of that attack. This contrasts sharply with appellant’s role—or actually
nonrole—in her cohort’s shooting of the victim here. Not only did she not encourage the
attack, she was oblivious this deviation from the original plan was taking place until the
shots rang out and the attempted murder was completed. [¶] Obviously, Nguyen
personally entertained both objectives his principal had—to rob the store and to attack the
victim. In the case before this court, it is equally obvious appellant only had a single
objective—to rob the victim.” (Bradley, supra, 111 Cal.App.4th at pp. 771-772, fns.
omitted.)
The People claim that the threat here was gratuitous and made against a fleeing,
unresisting victim, and that defendant shared the separate intents and objectives of
Zamorano and Son to make criminal threats. However, the evidence does not establish
that there were separate intents and objectives. As argued by the prosecutor, the threats
were part of the robbery. There simply was no evidence presented that the threats to kill
Bryan had a separate objective. As in Bradley, there is an absence of evidence in the
record that defendant personally possessed dual objective and unlike Nguyen, where
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defendant clearly intended to facilitate the attempted murder and robbery, no such
evidence appears and is contradicted by the prosecutor’s argument. The criminal threats
conviction should have been stayed and we will so order.
DISPOSITION
The sentence for the conviction of criminal threats is stayed pursuant to section
654. The trial court is directed to correct the abstract of judgment and forward a certified
copy of the amended abstract to the appropriate authorities. (People v. Quinonez (2020)
46 Cal.App.5th 457, 467.) We otherwise affirm the judgment in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
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