People v. YanezPeople v. Yanez
On March 11, 2015, Gilbert Lopez died from gunshot wounds following a verbal argument with defendant and appellant, Salvador Yanez IV. Defendant was charged and convicted by a jury of the second degree murder of Lopez (
On appeal, defendant contends: (1) the trial court abused its discretion in admitting expert gang testimony which should have been excluded as unduly prejudicial under
II. FACTS AND PROCEDURAL HISTORY
A. Facts
On March 11, 2015, Gilbert Lopez became involved in a verbal argument with defendant. Gilbert was visiting his brother, Angel Lopez, and the two were hanging out on the balcony of Angel‘s apartment when two men approached and called out to them from below.2 Defendant was one of the two men.
Defendant looked up and initiated a verbal conversation with Angel by asking if Angel had seen an individual named “Stoner.” When Angel responded that he had not seen “Stoner,” defendant then asked Angel where he was from. Angel understood this to be a question regarding what gang he was in, and in response replied: “‘I don‘t bang.‘”
In response to Gilbert, defendant identified himself as “Downer” from “JT.” Gilbert proceeded to walk downstairs to confront defendant and a verbal argument ensued. Gilbert was heard saying: “‘Why are you coming over here gangbanging to my brother?‘” and “‘Let‘s get down then.‘” In response, defendant stated: “‘Nah, not with all of these kids here.‘” At some point, Gilbert pulled out a gun, to which defendant responded: “‘What the fuck is wrong with you?‘” Their verbal confrontation escalated to a point where others in the apartment complex called their children inside. Eventually, Gilbert returned to Angel‘s apartment and explained he had been arguing with defendant about gang-related activities like “not representing his hood.”
While in Angel‘s apartment, Gilbert exchanged text messages with a friend. During this text exchange, Gilbert asked if his friend knew “Downer from J-T“; explained that he had been in a confrontation with Downer; stated that “I pulled out my strap ‘cause I didn‘t know who it was“; and expressed concern stating “on the real homes if anything is—if anyone has beef to get at me on the street, Polfast.” Shortly after his text exchange, Gilbert left Angel‘s apartment.
Angel watched from the balcony of his apartment as Gilbert walked towards the parking area of the apartment complex. Angel heard someone call out, “‘[h]ey,‘” watched as Gilbert turned in the direction of the voice, and watched Gilbert walk out of sight. Angel exited his apartment to follow Gilbert and heard several gunshots while
Gilbert had been shot five times, with gunshot wounds in his neck, torso, pelvis, right thigh, and left arm. The shots appeared to have been fired at close range and most of them indicated Gilbert had been shot from the backside. Gilbert died from these gunshot wounds.
B. Charges
On December 31, 2015, defendant was charged in an information with one count of murder (count 1;
Because the only evidentiary issue raised on appeal relates to the testimony of the People‘s gang expert,3 we summarize only those trial proceedings relevant to this issue.
1. Pretrial Motion on Gang Evidence
Prior to trial, the People requested that the court determine the admissibility of gang monikers pursuant to
In response, defense counsel asserted the following objection: “I would initially make an
2. Expert Gang Testimony
At trial, the People called a detective with the street crimes unit of the Indio Police Department as an expert to testify on Riverside County gangs. The detective opined that criminal street gangs are three or more people in an ongoing association or organization that share a name, common symbol or sign, and participate together in criminal activity. The detective explained that tattoos bore particular significance in the street gang culture because they signify that an individual has earned his place within the gang. He further explained that street gangs use monikers or nicknames to identify individuals within a gang, convey fear and intimidation, and to identify which individual committed a crime without using real names.
The detective testified that in gang terminology, the phrase “hit up” refers to a challenge which can be used to determine the identity of rival gang members or allies, or show dominance over another gang member, or as a prelude to violence. A “hit up” is alternatively referred to as “banging” or “gang-banging” and is typically initiated by asking someone where they are from. The typical responses to the question range from disclaiming any gang membership, identification of a gang affiliation, or immediate violence.
The detective personally knew defendant, knew defendant to be affiliated with the Jackson Terrace Street Gang, knew defendant bore tattoos associated with the Jackson
Finally, the detective testified that in his experience, when crimes occur that are gang related, witnesses can be reluctant to assist. He further explained that gang members in custody who are known to have assisted police often face the prospect of being assaulted or killed.
On cross-examination, defense counsel elicited further testimony clarifying that both Sur Town Locos and Jackson Terrace Street Gang were active street gangs in Indio, that the gangs were separate gangs, and that no known rivalries existed between the two gangs. The detective identified defendant as a longtime gang member or “OG,” and that gang-related crimes include homicide, theft, and the sale of drugs. The detective reconfirmed that the use of gang tattoos or verbal affiliation with a gang would be unacceptable absent membership in the gang. He was asked to confirm that a “hit up” was a challenge that could result in a verbal argument, physical confrontation, the use of weapons, a shooting, or a homicide. He also conceded that it is possible nothing violent occurs, depending on the reaction of the person being challenged.
D. Verdict and Sentencing
On March 1, 2018, a jury found defendant guilty of second degree murder on count 1. The jury also found true the allegation that defendant discharged a firearm causing great bodily harm or death in the commission of the murder. In a bifurcated proceeding, the trial court found true the special allegations that defendant had been previously convicted of a serious felony and strike offense.
Defendant requested that the court exercise its discretion to strike the firearm enhancement and prior strike conviction pursuant to
A. Defendant Has Not Shown Error in Admission of Gang Expert Testimony
Defendant contends the trial court erred in allowing the introduction of gang evidence, arguing that the evidence was more prejudicial than probative. The argument was forfeited for failure to assert sufficiently specific objections below and we would find no error even if we were to consider the argument on the merits.
1. Defendant Failed to Preserve the Challenge Below
“[A] court may not reverse a judgment based on error in admitting evidence unless ‘an objection to or a motion to exclude or to strike the evidence . . . was timely made and so stated as to make clear the specific ground of the objection or motion.’ ‘. . . [W]e have consistently held that the “defendant‘s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable. [Citations.]’ [Citation.] ‘Although no “particular form of objection” is required, the objection must “fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.“‘” (People v. Valdez (2012) 55 Cal.4th 82, 130.)
“‘The objection requirement is necessary in criminal cases because a “contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.‘“‘” (People v. Williams (2008) 43 Cal.4th 584, 620.) Thus, a general objection to the admission of gang evidence prior to trial without identification of the specific evidence or testimony at issue is insufficient to preserve the objection on appeal. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208.)
Here, defendant did not file any pretrial motions seeking to exclude any gang-related evidence on the ground that it was more prejudicial than probative. Nor does the record disclose that defendant asserted this objection at any time during the testimony of the People‘s gang expert. In his opening brief, defendant directs us to a single instance in which an objection to gang-related evidence was asserted on the basis that it could be more prejudicial than probative. However, when viewed in context, this objection cannot be reasonably interpreted as sufficient to preserve the issue on appeal.
First, the objection was prompted by the trial court‘s statement that: “We discussed [the prosecution‘s] second [
Second, even if the objection was intended to extend to all gang evidence generally, such an objection was not sufficiently specific. When the trial court expressed the opinion that “we all agree” at least some testimony about gangs would be admitted,
Finally, even if the objection had been properly raised, the record discloses that a significant amount of the testimony which defendant now argues was unduly prejudicial was, in fact, elicited by defense counsel on cross-examination. The testimony regarding the role of “hit ups” in the gang culture and defendant‘s status as a veteran or “OG” was elicited on cross-examination by defense counsel. Accordingly, “the testimony about which defendant now complains was elicited by his own counsel . . . [and] any error was invited, and defendant may not challenge that error on appeal.” (People v. Williams (2009) 170 Cal.App.4th 587, 620.) For all of the above reasons, we conclude that any challenge to the admission of expert gang testimony was forfeited for failure to assert a proper objection below.
Furthermore, even in the absence of forfeiture, we would conclude that the admission of expert gang testimony here was not erroneous.
(a) General Legal Principles and Standard of Review
“California courts have long recognized the potential prejudicial effect of gang evidence. . . . Because gang evidence creates a risk that the jury will infer that the defendant has a criminal disposition and is therefore guilty of the charged offense, ‘trial courts should carefully scrutinize such evidence before admitting it.’ [Citation.]” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) “Nonetheless, evidence 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.” (Ibid.) A trial court‘s decision to admit gang evidence is reviewed for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) “‘The admission of gang evidence over an
(b) Analysis
“Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related.” (People v. Samaniego, supra, 172 Cal.App.4th at p. 1167.) “Since at least 1980, our courts have recognized that evidence
This case arose out of a homicide which occurred following a rapidly escalating series of interactions involving defendant and Gilbert. The interaction between these two apparent strangers was permeated by references to words and phrases which would be entirely unknown by those unfamiliar with gang culture. Given such, the People introduced expert testimony which identified Gilbert and defendant as members of different gangs, explained the general relationship between their respective gangs, explained the meaning attributed to certain phrases in the gang subculture, and explained the importance and means of earning respect through confrontation within the gang subculture. This testimony was clearly relevant to the issue of motive. Such testimony could assist the jury in making sense of the facts, explained a potential reason why defendant‘s otherwise innocuous question to Angel would trigger such a seemingly disproportionate response from Gilbert, and explained why the verbal interaction could
Given that the expert gang testimony here was directly relevant to the issue of motive, admission of this evidence was not an abuse of discretion unless its probative value was outweighed by the risk of prejudice. While the admission of any gang evidence comes with some degree of prejudice, the expert here did not offer any specific opinion on defendant‘s motives based on the facts of the case, did not discuss any specific prior criminal history of defendant, and did not discuss any prior criminal history involving the gang with which defendant was affiliated.
Furthermore, the trial court gave the jury a limiting instruction in the form of CALCRIM No. 1403, instructing the jury of the limited purpose for which they could consider any gang evidence. “Because the gang evidence was highly probative in this case, and the trial court gave a limiting instruction designed to lessen the risk of undue prejudice, we cannot say the trial court‘s decision to allow the gang affiliation evidence exceeded the bounds of reason.” (People v. Montes (2014) 58 Cal.4th 809, 860.) Accordingly, even if defendant had preserved this challenge on appeal, we find no abuse of discretion in the trial court‘s decision to admit the gang evidence at issue. Since we find no error, we need not discuss defendant‘s arguments that he would have obtained a more favorable verdict in the absence of such evidence.
Defendant also argues that the prosecutor engaged in reversable misconduct by referencing information gathered about the jury‘s deliberative process during oral argument on defendant‘s motion to strike his firearm enhancement pursuant to
“‘“A prosecutor‘s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ . . . [T]he misconduct must be ‘of sufficient significance to result in the denial of the defendant‘s right to a fair trial.‘”‘” (People v. Tully (2012) 54 Cal.4th 952, 1009.) “A prosecutor‘s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.‘” (Id. at pp. 1009-1010.) Furthermore, “‘[a] defendant‘s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. . . .‘” (Id. at p. 1010.)
Here, the single statement by the prosecutor that 11 members of the jury believed the crime was first degree murder, which defendant now contends constituted misconduct, was a reference made during oral argument on a motion before the trial
There is nothing in this record which demonstrates that the trial court relied on the prosecutor‘s reference to the jury‘s initial vote regarding first degree murder in exercising its discretion whether to strike the firarm enhancement. The prosecutor argued and the trial court heard many appropriate factors to consider in the exercise of its discretion, including, but not limited to, defendant‘s violent criminal past and the egregious circumstances of the crime. Thus, regardless of whether the reference to jury deliberation was proper, we presume the trial court properly performed its judicial duty and
C. Defendant Knowingly Waived the Right to a Jury Trial on the Prior Conviction Allegations
Defendant also argues the trial court failed to properly obtain a waiver of his right to a jury trial on the prior conviction enhancement allegations, requiring reversal on that issue. There is no question that defendant expressly stated on the record that he gave up his right to a jury trial on the prior conviction enhancements. However, defendant argues that the record does not affirmatively disclose proper admonishment or advisement by the trial court when putting his waiver on the record. Thus, the issue before us is not whether the waiver was voluntary, but rather whether the waiver was knowing and intelligent. While the process used here to confirm defendant‘s waiver on the record was not ideal, we find no error given the totality of the circumstances.
“Under the federal Constitution and our state Constitution, a defendant in a criminal prosecution has a right to a jury trial. [Citations.] However, a ‘jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant‘s counsel.’ [Citation.] Waiver must be ‘expressed in words . . . and will not be implied from a defendant‘s conduct.’ [Citation.] . . . ‘[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.‘” (People v. Sivongxxay (2017) 3 Cal.5th 151, 166.) Given the importance of ensuring a voluntary, knowing, and intelligent waiver, our Supreme Court has strongly suggested that trial courts use a “robust oral colloquy” which specifically advises a defendant “of the basic mechanics of a jury trial.” (Id. at p. 169.)
Nevertheless, our Supreme Court has continued to affirm that no specific colloquy or admonishments are required, explaining: “‘[T]he United States Supreme Court has never held that a defendant, when waiving the right to a jury, constitutionally is entitled to be canvassed by the trial court, let alone to require a specifically formulated canvass’ [citations] and we have never insisted that a jury waiver colloquy invariably must discuss juror impartiality, the unanimity requirement, or both for an ensuing waiver to be knowing and intelligent.” (People v. Sivongxxay, supra, 3 Cal.5th at p. 168.) We have similarly expressed the same view that “there is no requirement that the trial court explain to a defendant every aspect that he is giving up in entering a waiver to a jury trial.” (People v. Doyle (2016) 19 Cal.App.5th 946, 952-953.) Instead, we look to the totality of the circumstances unique to each case in order to determine whether a waiver was knowing and intelligent. (People v. Sivongxxay, supra, at pp. 166-167.)
We initially note that defendant expressly waived his right to a jury trial on the record. Despite the fact that the waiver placed on the record did not itself include any specific mention of the mechanics of a jury trial, we cannot ignore the fact that the waiver was taken almost immediately following the conclusion of defendant‘s jury trial on the underlying offense. Defendant was present and personally witnessed every aspect of his
Given the unique timing of the waiver in the context of this case, it would be unreasonable to conclude that defendant was unaware of the basic mechanics of a jury trial at the time his waiver was otherwise voluntarily given. Defendant has not shown that his waiver in this case was unknowing or unintelligent given the timing and circumstances presented in this case.
D. Remand of the Firearm Enhancement Sentence Is Not Warranted
Defendant requested that the trial court exercise its discretion to strike his firearm enhancement pursuant to
Thus, the question we consider here is whether the statute, as amended, provides authority for a trial court to exercise discretion to impose a lesser included, uncharged enhancement in the interests of justice pursuant to
“‘“When we interpret a statute, ‘[o]ur fundamental task . . . is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.‘”‘” (Hassell v. Bird (2018) 5 Cal.5th 522, 540.) In construing any statute, “we may not broaden or narrow the scope of the provision by reading into it language that does not appear in it or reading out of it language that does. ‘Our office . . . “is simply to ascertain and declare” what is in the relevant statutes, “not to insert what has been omitted, or to omit what has been inserted.“’ [Citation.] ‘“‘A court . . . may not rewrite the statute to conform to an assumed intention which does not appear from its language.’”’” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545.)
Here, nothing in the plain language of
Further, even if the wording of
Here, the People charged defendant with a sentencing enhancement pursuant to
Finally, we note that even if we were to adopt a different interpretation and find
E. Remand to Exercise Discretion to Strike the Prior Conviction Enhancement
Finally, defendant contends that his sentencing should be remanded to permit the trial court to exercise its discretion to strike a five-year enhancement pursuant to recent
“We are not required to remand to allow the court to exercise its discretion if ‘the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement’ even if it had the discretion.” (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) “The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court‘s statements and sentencing decision to infer what its intent would have been.” (Id. at p. 273.)
However, we are not convinced that the record here allows us to draw that inference. The trial court‘s denial of defendant‘s motion to strike his prior strike conviction and denial of defendant‘s motion to strike his firearm enhancement certainly allows us to infer that the trial court intended to impose a significant sentence. However, when sentencing on the unlawful possession conviction, the trial court imposed only the middle term and further allowed the sentence to run concurrently with the sentence on the
IV. DISPOSITION
The conviction is affirmed. The matter is remanded to permit the trial court to determine whether to strike the enhancement under
CERTIFIED FOR PARTIAL PUBLICATION
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.