People v. Vejar CA6
H044486
| Cal. Ct. App. | Jul 28, 2021Background
- Joseph Vejar was severed from a 49-defendant racketeering-style indictment and tried alone on: (1) active participation in a criminal street gang (Pen. Code § 186.22(a)) and (2) conspiracy to sell methamphetamine with a gang enhancement (§§ 182, 11379; § 186.22(b)(1)(A)). Jury convicted; trial court sentenced to 25 years to life plus additional determinate terms and prior enhancements.
- Prosecution's proof: gang expert testimony about Nuestra Familia (NF) structure and violent activity; phone and text logs linking Vejar to NF members (including Albert Larez); sequential money orders and C-payroll payments; meth residue and scales found at Vejar’s residence; cooperating witnesses (Cervantes, Cruz) who bought meth from Vejar and described NF connections.
- Central uncharged incident: Martin Chacon’s August 13, 2012 execution-style murder by other NF associates (Larez, Oakes, Cruz). Cooperating witnesses testified Larez referenced a comment by “Fat Joe” (Vejar) as contributing to Larez’s decision; no testimony that Vejar ordered or directly participated in the killing.
- Defense conceded drug dealing but disputed NF membership/leadership role and any role in Chacon murder. Trial court admitted substantial testimony about the murder over a § 352 objection; jury received limiting CALCRIM 1403 instruction.
- On appeal Vejar raised multiple claims: evidentiary error admitting murder evidence, ineffective assistance for failure to object to expert opinion that Vejar committed the gang-related conspiracy, cumulative prejudice, sentencing errors (stay under § 654 for the § 186.22(a) term), and resentencing remand under SB 1393 and SB 136.
- Decision: Court reversed and remanded limitedly to permit the trial court to (1) decide whether to strike prior serious-felony enhancements under Penal Code § 1385 (post–SB 1393), (2) strike prior prison-term enhancements per SB 136, and (3) stay the sentence for active gang participation under § 654. All other convictions and rulings were affirmed; any assumed evidentiary error was harmless; ineffective-assistance claim denied.
Issues
| Issue | People’s Argument | Vejar’s Argument | Held |
|---|---|---|---|
| Admissibility of evidence about Chacon murder | Evidence about the murder and related phone calls was probative of Vejar’s high-level NF involvement and intent to promote gang activity; not unduly prejudicial | Evidence was irrelevant / improper character evidence and unduly prejudicial under Evid. Code § 352 | Some objections forfeited; preserved objections (phone calls and Cervantes’s testimony linking Vejar to Larez’s decision) were admissible; any assumed error harmless given strong gang/drug proof and limiting instructions |
| Ineffective assistance for failing to object to expert saying Vejar committed the gang-related conspiracy | No prejudice; prosecutor later elicited substantially similar admissible hypothetical and counsel may have had tactical reasons not to object | Counsel should have objected to expert opining that defendant committed charged offense for gang purposes | Denied: record does not show no possible tactical reason; no reasonable probability of a different result |
| Cumulative prejudice from the above errors | Not applicable beyond addressed issues | Combined errors deprived Vejar of fair trial | Denied — no reversible cumulative error because no prejudicial errors proved |
| Stay of § 186.22(a) sentence under § 654 | § 654 does not bar punishment for the conspiracy (longer term); stay the concurrent § 186.22(a) sentence because it arises from same conduct | § 186.22(a) sentence duplicates punishment for the underlying conspiracy | Agreed with defendant: stay the § 186.22(a) sentence under § 654; punish under count carrying longest term (the conspiracy with gang enhancement) |
| Remand for SB 1393 sentencing discretion (strike prior serious felonies) | Trial court now should be allowed to decide whether to strike prior serious-felony enhancements | Remand required to permit exercise of discretion under amended § 667 & § 1385 | Remand ordered for the limited purpose of allowing the trial court to consider striking prior serious-felony enhancements |
| Strike prior prison-term enhancements under SB 136 | SB 136 retroactive; prior prison-term enhancements no longer apply to non-sexually violent offenses | Enhancements should be stricken | Ordered: prior prison-term enhancements under § 667.5 stricken pursuant to SB 136 |
Key Cases Cited
- People v. Partida, 37 Cal.4th 428 (Cal. 2005) (timely and specific objection required to preserve evidentiary challenges on appeal)
- People v. Tran, 51 Cal.4th 1040 (Cal. 2011) (Evid. Code § 352 balances probative value against prejudicial effect)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective-assistance standard: deficient performance and prejudice)
- People v. Vang, 52 Cal.4th 1038 (Cal. 2011) (expert may not opine that defendant committed charged offense for gang purposes)
- People v. Mesa, 54 Cal.4th 191 (Cal. 2012) (§ 654 prohibits separate punishment for substantive offense that is the basis of a § 186.22(a) conviction)
- People v. Stamps, 9 Cal.5th 685 (Cal. 2020) (Senate Bill No. 1393 applies retroactively to nonfinal judgments)
- People v. Waidla, 22 Cal.4th 690 (Cal. 2000) (abuse of discretion standard for evidentiary rulings)
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless-beyond-a-reasonable-doubt standard for federal constitutional error)
- People v. Jennings, 42 Cal.App.5th 664 (Cal. Ct. App. 2019) (SB 136 retroactivity and limiting application of prior-prison-term enhancements)