The opinion
Filed 3/6/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H043870
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1247403)
v.
JAVIER RUBEN RODRIGUEZ
GARCIA,
Defendant and Appellant.
THE PEOPLE, H044073
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1247403)
v.
DEANGELO JOSEPH AUSTIN,
Defendant and Appellant.
Appellants Javier Ruben Rodriguez Garcia and Deangelo Joseph Austin appeal
from judgments entered after a jury found them guilty of first degree murder and other
crimes related to a home invasion robbery.
Between their two appeals, which we have considered together for oral argument
and disposition, Garcia and Austin raise 26 issues. Stated broadly, Garcia and Austin
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I(D), II, III, and IV.
challenge the sufficiency of the evidence presented at trial, certain evidentiary rulings and
jury instructions, the constitutionality of one of the crimes of conviction, the effectiveness
of their defense counsel, and aspects of their sentences.
We find no reversible error for Garcia’s conviction. Nevertheless, we vacate
Garcia’s sentence because the one-year prior prison term enhancement imposed on him
must be stricken under currently applicable law. Hence, we remand Garcia’s case for
resentencing. We also remand his case pursuant to People v. Franklin (2016) 63 Cal.4th
261, for a determination by the trial court whether Garcia was afforded sufficient
opportunity to make a record for his eventual youth offender parole hearing.
For Austin, we vacate the special circumstance finding and sentence and remand
his case to the trial court so that the People may elect whether to retry Austin on the
special circumstance allegation. At Austin’s resentencing, the trial court shall strike the
10-year gang enhancement imposed under Penal Code section 186.22, subdivision
(b)(1)(C) and must decide whether it will exercise its discretion to strike the prior
conviction enhancements under Penal Code section 667, subdivision (a). We reject all of
Austin’s other claims of error.
FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In September 2014, the Santa Clara County District Attorney filed an information
charging Garcia and Austin with six counts related to the November 2012 home invasion
robbery of Raveesh K. and Harinder K. and the murder of Raveesh.1
Specifically, count 1 alleged that, on or about November 30, 2012, Garcia and
Austin killed Raveesh with malice aforethought (Pen. Code, § 187)2 while engaged in the
1
To protect the victims’ privacy, we here refer to them by their first names and the first
initial of their last name and, in the rest of the opinion, by their first names only. (Cal.
Rules of Court, rule 8.90(b)(4).)
2
Unspecified statutory references are to the Penal Code.
2
commission of a robbery (§ 190.2, subd. (a)(17)). Count 2 alleged robbery of an
inhabited place while acting in concert (§§ 211, 213, subd. (a)(1)(A)). Count 3 alleged an
assault on Harinder with a deadly weapon (§ 245, subd. (a)(1)). Count 4 alleged criminal
threats on Harinder (§ 422). Counts 5 and 6 alleged false imprisonment of Raveesh and
Harinder, respectively (§§ 236, 237). All counts included gang allegations for Garcia and
Austin (§ 186.22, subd. (b)(1)(A)). In addition, the information alleged that Garcia had a
prior felony conviction under Health and Safety Code section 11351 (§ 667.5, subd. (b)),
and Austin had a prior strike conviction (§§ 667, subd. (b)–(i), 1170.12) and a prior
serious felony conviction (§ 667, subd. (a)) for violating sections 459 and 460,
subdivision (a).
The trial began on April 18, 2016. The trial court empaneled a single jury to hear
evidence regarding both defendants.
On June 7, 2016, the jury found Garcia guilty of first degree murder, robbery,
misdemeanor battery (§ 242) as a lesser included offense of assault with a deadly
weapon,3 making criminal threats, and both counts of false imprisonment. The jury
deadlocked on the robbery-murder special circumstance allegation under section 190.2,
subdivision (a)(17), and found not true the gang allegation attendant to the murder
charge.4 The jury also found not true the gang allegation regarding the battery conviction
and deadlocked on the gang allegations regarding the remaining counts. 5 The trial court
separately found Garcia’s prior felony conviction allegation true.
3
Under the elements test, simple battery (§ 242) is not a lesser included offense of assault
with a deadly weapon (§ 245, subd. (a)(1)). (In re Robert G. (1982) 31 Cal.3d 437, 439–
441; People v. Jones (1981) 119 Cal.App.3d 749, 754.) However, Garcia does not
challenge his conviction for battery as a lesser included offense, and we therefore do not
further address it.
4
We note that the minute order for June 7, 2016, incorrectly states that the jury found
true the gang allegation for count 1. In fact, the jury found the allegation to be not true.
In our disposition we order the minute order corrected.
5
The record does not indicate that the trial court took any further action with respect to
the allegations on which the jury deadlocked.
3
That same day, the jury found Austin guilty of first degree murder, robbery,
assault with a deadly weapon, making criminal threats, and both counts of false
imprisonment. The jury also found true the robbery-murder special circumstance
allegation under section 190.2, subdivision (a)(17), and the gang allegations as to all
counts. In addition, the trial court separately found Austin’s prior strike conviction and
prior serious felony conviction allegations true.
The trial court sentenced Garcia to 25 years to life for his first degree murder
conviction on count 1, which was imposed consecutive to nine years for the robbery
conviction on count 2, eight months consecutively for each conviction for criminal
threats and false imprisonment on counts 4, 5, and 6, and one year for the prior felony
conviction enhancement, for a total term of 37 years to life in prison. The trial court also
imposed various fines and fees.
The trial court sentenced Austin consecutively to indeterminate terms of life
without the possibility of parole for the first degree murder conviction with special
circumstances on count 1 and 30 years to life for the robbery conviction on count 2, and
determinate terms of eight years for the assault with a deadly weapon conviction on count
3, and one year and four months for each of the criminal threats and false imprisonment
convictions on counts 4, 5, and 6. The court imposed a term of five years for the gang
allegation in count 3, one year and eight months for the gang allegation in count 4, and
one year and four months for the gang allegations in counts 5 and 6. The trial court also
imposed a five-year term pursuant to section 667, subdivision (a), for Austin’s
determinate sentence and five-year terms for the prior conviction on each of the
indeterminate terms. The trial court stayed the term of the gang allegation on count 1.
The total determinate term was 36 years and four months, consecutive to the
indeterminate terms of 30 years to life and life without the possibility of parole. The trial
court also imposed various fines and fees.
4
B. The Evidence Presented at Trial
1. The Prosecution Evidence
Katrina Fritz is Austin’s older sister.6 Fritz worked as a prostitute and met
Raveesh around 1999, when she was 19 years old and Raveesh became a customer of
hers. Between 1999 and 2011, Fritz visited Raveesh over 100 times at his home in Monte
Sereno, which he shared with his ex-wife Harinder.7 Raveesh compensated Fritz well for
sex and companionship, giving her hundreds of thousands of dollars and three cars over
the years. Fritz had brought Austin to Harinder and Raveesh’s house about two or three
times between approximately 2003 and 2008. Fritz was familiar with the layout of the
house and knew that Harinder and Raveesh typically left the doors unlocked. Fritz last
saw Raveesh about one year before the robbery.
Shortly after Thanksgiving in 2012, Austin called Fritz and asked her if she was
still involved with Raveesh and whether he had money and jewelry at the house. Austin
said that he was thinking of going there, which Fritz understood to mean Austin was
contemplating robbery. Fritz told Austin not to commit the robbery, but Austin said
something “like, [c]ome on, it’s okay.” Fritz also offered to call or visit Raveesh to get
him out of the house, but Austin told her not to do so because Raveesh would suspect she
was involved, given the lack of recent contact.
6
The district attorney charged Fritz with murder and robbery for her involvement in the
crime against Harinder and Raveesh. In February 2014, during the preliminary hearing,
Fritz agreed to be interviewed by the police. Later that year, Fritz entered into a plea
agreement with the district attorney. Fritz pleaded guilty to robbery and false
imprisonment and admitted that she committed the crimes for the benefit of a criminal
street gang, with a maximum sentence of 17 years. The district attorney agreed to
dismiss the murder charge against Fritz in exchange for her cooperation and testimony.
In addition to testifying at the trial of Garcia and Austin, Fritz testified at the trial of
Marcellous Drummer, who was tried separately for the crimes against Harinder and
Raveesh and whose appeal we previously decided. (See People v. Drummer (June 15,
2017, H041826) [nonpub. opn.].)
7
Harinder and Raveesh divorced in 2010. At the time of the crimes, Harinder was living
at the Monte Sereno house and Raveesh was staying there in a guest room.
5
Later in November 2012, Austin called Fritz from Monte Sereno and asked for
directions to Harinder and Raveesh’s house. When Austin arrived at the house, he told
Fritz that he saw a lot of cars. Cell phone records confirmed that Austin’s phone was in
the vicinity of Harinder and Raveesh’s house in the early afternoon of November 29,
2012.
Later that day, Austin called Fritz again and asked for a drawing of the home’s
layout. Fritz and Austin arranged to meet in north Oakland. They met in the
midafternoon, and Fritz gave Austin a map of the residence. Marcellous Drummer was
with Austin, and Fritz saw a black man inside the car (Fritz’s BMW X5) that Austin had
driven to the meeting. Fritz explained the map to Austin and Drummer, who were both
excited, and they discussed gold and money. When Fritz asked Austin who was going
with him to commit the crime, Austin said “his partner from West Oakland.” Austin
described the partner as “This nigger from Ghost Town.” Fritz was surprised by this
statement because she did not know that Austin had any friends in Ghost Town. During
the meeting, Fritz told Austin and Drummer to be careful. Drummer responded, “I got
this,” and Austin said, “Sis, you know I know what I’m doing.”
After leaving Austin and Drummer, Fritz drove to a hotel in San Francisco to meet
with a customer. Fritz planned to borrow a hotel room rented by Summer Sawyer, who
was dating Austin at the time. As Fritz was entering an elevator at the hotel she saw
Austin, Drummer, and a third man step out. Fritz did not get a good look at their faces,
but she observed that the third man was a black male who was shorter than Austin. Fritz
did not speak with them, and she could not say whether the third man was Garcia.
Later that day, after 10:00 p.m., Austin called Fritz and told her he was “on his
way out there” to Harinder and Raveesh’s house. Austin called again later and said he
was at the house and was watching Raveesh, who had been drinking alcohol. Austin said
he was about to enter the house. Fritz told Austin not to do too much, to be careful, and
to stop calling her phone. Cell phone records showed that, at approximately 12:03 a.m.
6
on November 30, 2012, Austin made a one-minute-and-seven-second call to Fritz from
the vicinity of Harinder and Raveesh’s house.
On November 29, 2012, Harinder went to bed around 10:00 p.m. After Harinder
had fallen asleep, she awoke to a knock on her master bedroom door and someone
entering the room. The intruder was Austin.8 Austin got onto the bed with an
illuminated cell phone in his hand. Harinder screamed for Raveesh, and Austin hit her in
the face with something hard, cutting her lip. Austin directed Harinder to stop screaming
and told her to march to the kitchen if she wanted Raveesh. Harinder testified that no one
threatened her during the incident.9 Austin gave her a piece of laundry to wipe the blood
from her face.
Harinder walked to the kitchen with Austin following her. In the kitchen,
Harinder saw Raveesh’s back and the shadow of a hand on his shirt trying to push him
down. Raveesh’s hands were tied, and he was struggling to free himself. He was
standing, and Harinder saw his desperation and heard him say “Please help me.”
Harinder had also told the police shortly after the crime that she saw people beating
Raveesh. When the men were putting Raveesh down to the floor, Harinder told them not
to tie him up. She told them that Raveesh was a heart patient and would die. The men
did not respond to her. She eventually saw Raveesh—who was a large man—go down to
the floor, face down.
Someone wrapped tape over Harinder’s eyes and mouth and tied her hands. They
asked her to get down on the floor and then bound her legs with a blanket. Harinder had
told the police that when she twice moved her hands, someone hit her, once on her leg
8
Harinder identified Austin at trial and had previously identified him in a photographic
lineup less than a month after the crime.
9
A police detective, however, testified that Harinder had told him the person on her bed
said that he was going to shoot her. Harinder also had told the detective that, at another
time, the intruders said they would “kill her” and told her to keep quiet if she wanted to
live.
7
and once on her hands. At one point, someone tried to remove gold bangles from her
wrist; it hurt, so Harinder took the bangles off herself and handed them over. Two men
asked her where the safe and money was, and Harinder told them the money, jewelry, and
other valuables were in the master bedroom. After about an hour or two, Harinder told a
man who was sitting in a chair beside her that Raveesh had not moved. The man got up,
said he would look at Raveesh, and then came back and told her not to worry and that
they would call 911 if needed. Based on the voices she heard, Harinder was not sure
whether the man who stayed beside her was the same person who struck her face. She
heard the voices of two or three different people roaming around the house.
Sometime later, a man told Harinder that they would be leaving soon and that she
should not move. Eventually Harinder freed her legs, got up, and looked for a phone.
She found one and called 911. All other phones in the house had been disconnected by
the perpetrators. Harinder asked for help and said that she believed Raveesh was dead.
Harinder had told the police that she shook Raveesh before and after she called 911.10
The police arrived at Harinder and Raveesh’s house around 1:42 a.m. on
November 30. They found Raveesh lying face down, cold to the touch, and unresponsive
in the family room adjacent to the kitchen. His hands and legs were bound together,
hogtied. Raveesh’s face was masked with a distinctive mustache-patterned duct tape. A
police officer testified that the “tape had been wrapped around [Raveesh’s] head several
times covering his mouth and almost up to his nasal passage.” The officer “tried to
remove the tape from around his mouth” in an effort to “clear the airway,” and he rolled
Raveesh over on his back. Harinder asked the police to show her Raveesh, and she saw
that “they had already turned him over” and there “was so much mask on him that even
his nose, everything was masked. His whole face was masked.” An empty cardboard
10
Harinder testified at trial that she “never touched” Raveesh before the police arrived.
8
tape roll and a pair of tan pants with a piece of the duct tape on them that matched the
duct tape on Raveesh’s face were found in the family room.
The interior of the large house had been ransacked, but there were no signs of
forced entry. Jewelry, money, coins, and cameras were missing. A number of latex
gloves were found in the kitchen sink.11 Other latex gloves were found in the kitchen
cabinets and drawers. Police also discovered another latex glove and an empty latex
glove box on an embankment alongside a road adjacent to the house’s fence.
The morning after the crime, Fritz heard a television news report about a home
invasion homicide in Monte Sereno. This news scared Fritz, and she called Sawyer in an
effort to reach Austin. Austin was sleeping, but he called Fritz back later. The two
arranged to meet for brunch at a restaurant in Berkeley. Austin arrived at the restaurant
with Drummer and Sawyer. Fritz asked Drummer what had happened, and he said, “Shit
went bad.” While they were sitting at a table, Austin gave Fritz $2,000.
After their meal, in the restaurant’s parking lot Fritz asked Drummer and Austin
what happened. Austin said that “shit went crazy” and that “somebody” was hitting
Raveesh and Raveesh tried to fight back. Austin said that Harinder was “screaming,
saying that, whatever [Raveesh] owes, I’ll pay it.” Drummer said that he had not done
anything and had just sat there “watching them.” Austin acknowledged knowing
Raveesh was dead.
When Fritz asked if Austin and Drummer had left anything at the house that could
tie them to the crime, Austin responded that they had gotten rid of everything, including
gloves, clothes, and a crowbar. Austin told Fritz that if anything happened, they would
confess, and Fritz would not have to go to jail. Fritz asked what they had done with the
stolen goods, and Austin said that they had pawned them at a pawnshop in San Francisco.
11
Harinder testified that the latex gloves in the sink did not belong to her.
9
Austin denied using Fritz’s BMW to commit the crime and said he had taken “the other
dude’s car.”
On a later date, Austin gave Fritz $40,000 to hide for him. At some point after
giving Fritz this money, Austin called Fritz and asked her to check whether the name
“Javier Garcia” was listed on Santa Clara County’s online inmate locator. This was the
first time Fritz had heard Garcia’s name. Fritz told Austin that the inmate locator
indicated Garcia was in custody for murder. Fritz asked Austin, “Does this have anything
to do with that thing?” and Austin said, “Yes.” On another day, Fritz met Austin and
Drummer at an auto detail shop and they laughed about “random people” being arrested
for the crime.12
Forensic pathologist Michelle Jorden performed an autopsy on Raveesh’s body.
Dr. Jorden concluded that the manner of Raveesh’s death was homicide and that the
cause of his death was probable asphyxia due to suffocation by the duct tape over his
mouth. Dr. Jorden also found several contributory conditions to the cause of death,
including sleep apnea, deviated nasal septum, coronary atherosclerosis, and hypertensive
cardiovascular disease. Dr. Jorden observed duct tape wrapped around Raveesh’s head
three times “at the level of the eyes, including portions of the eyes.” When Dr. Jorden
observed Raveesh’s body, there was no tape at or near Raveesh’s nose or mouth. There
was a dangling portion of duct tape along one side of his body. Dr. Jorden swabbed the
duct tape that was wrapped around Raveesh’s head to preserve any trace evidence.
12
Lukis A. was arrested and charged for the crime based on DNA found in fingernail
clippings collected from Raveesh. The charges were later dismissed when law
enforcement determined that he was in the hospital at the time of the incident and could
not have been present at the crime scene. Emergency medical personnel who had
attended to Raveesh at the crime scene had treated Lukis hours earlier.
In addition, Raven D. was arrested in connection with the crime. Raven was a prostitute
whom Fritz knew through Raveesh. The record suggests her case may have been
dismissed.
10
Dr. Jorden observed fabric binding Raveesh’s ankles and wrists. Dr. Jorden
explained that Raveesh had an enlarged, “very, very bad heart.” Because enlarged hearts
require more oxygen, the tape over Raveesh’s mouth, his obstructed nasal passages, and
the physiological stress and terror of the crime would have placed additional stress on
Raveesh’s diseased heart. Dr. Jorden observed petechial hemorrhages in Raveesh’s
eyelids, which are indicative of asphyxia or heart attack, and petechial hemorrhages in his
distal trachea and bronchi, suggesting suffocation. Dr. Jorden also determined that
Raveesh had been struck at least three times on his head based on three blunt-force-
trauma injuries to his scalp and skull. One of the head injuries was a patterned bruise to
Raveesh’s right temple, suggesting he had been struck by an object. In addition, Raveesh
had several lacerations and abrasions on his face; a bruise on his inner left arm; an
abrasion on his abdomen; and a hemorrhage in his neck muscle.
During the investigation of the crime, Santa Clara County criminalist Tahnee
Mehmet received 67 items of evidence for analysis. The police department requested
DNA analysis of 20 evidence items (including the multiple latex gloves as one item); 13
of the 20 items were analyzed for DNA. Mehmet determined that Garcia was a possible
contributor to the major component of the DNA mixtures found on 4 of the 21 gloves
collected from Harinder and Raveesh’s kitchen sink. Specifically, Mehmet concluded
that Garcia was a possible contributor to the DNA mixtures detected on the exterior of
the fourth, ninth, seventeenth, and twenty-first gloves recovered from the sink.13 Mehmet
also found a DNA mixture of at least two individuals on the exterior of a glove found in a
kitchen cabinet and determined that Garcia was a possible contributor to that mixture.
13
As to the fourth glove, the mixture contained DNA from at least three individuals,
including Raveesh. Regarding the three other gloves, Mehmet’s analysis revealed that
the mixtures on the ninth and seventeenth gloves contained DNA from at least three
individuals, and the mixture on the twenty-first glove contained DNA from at least four
individuals.
11
Mehmet detected a DNA mixture of at least two individuals on the piece of tape
found on the tan pants recovered from the family room. Mehmet determined that Austin
was the source of the major DNA profile found on the tape, and that Raveesh was a
possible contributor to the minor DNA profile. Mehmet concluded that Austin was also
the source of the major DNA profile in a mixture swabbed from the edge of a duct tape
roll, which Mehmet described as “an empty cardboard tape roll with a small piece of tape
still adhering.” Raveesh and Harinder were possible contributors to this mixture as well.
In addition, Austin and Raveesh were possible contributors to the major DNA component
of a mixture that included at least three people swabbed from the inner area of the tape
roll. Reddish brown stains on the tape roll tested presumptively but not conclusively for
blood.
Mehmet did not provide specific testimony of any DNA analysis she conducted on
the tape recovered from Raveesh’s body, including the tape found on his head. Mehmet
tested areas of the duct tape she thought it was likely someone had touched.
Mehmet determined that Drummer was a possible contributor to the DNA mixture
of at least four individuals found in swabs taken from Raveesh’s right hand. Raveesh and
Harinder contributed to this mixture as well. In addition, Mehmet developed a DNA
profile for Garcia’s cousin, Eddiebo Rodriguez. Mehmet did not detect Rodriguez’s
DNA on any of the analyzed evidence items.
Mehmet said that, other than those items about which she specifically testified, she
did not find any DNA evidence on the items that she analyzed that matched the known
profiles of the approximately 20 people for which she tested, other than DNA associated
with the victims.
Garcia was arrested for this crime in Oakland on December 27, 2012. At the time,
Garcia was in the company of Rodriguez and another person. Garcia told the police that
he had never been to Monte Sereno or the Los Gatos area and had never seen Harinder or
Raveesh. During his police interview, Garcia said that he did not know the case was “so
12
serious” and that the officers had “said people were dying,” but the officers had not
previously mentioned that anyone had died.
Austin was arrested in Sacramento on December 29, 2012. At the time of his
arrest he was driving a car that had been rented by Fritz.
Cell phone records revealed that, from November 25, 2012, through December 7,
2012, there were a total of 84 calls and nine texts between Austin’s phone and Garcia’s
phone. There were also a total of 74 contacts between Austin’s phone and another phone
associated with Garcia from November 25, 2012, through December 8, 2012. Between
December 8 and December 27, 2012, Garcia’s phone was in contact 23 times with a
phone associated with Austin.
More specifically, from around the time of the crime, the phone records revealed:
Between 5:13 a.m. on November 29 to 8:05 p.m. on November 30, 2012, there were 10
calls between Austin’s phone and Garcia’s phone, 20 calls between Austin’s phone and
Fritz’s phone, and 12 calls between Austin’s phone and Sitteruiet T.’s phone.14 Between
8:05 p.m. on November 30 and 4:14 p.m. on December 1, 2012, there were nine calls
between Austin’s phone and Garcia’s phone, six calls between Austin’s phone and
Sitteruiet T.’s phone, and none between Austin’s phone and Fritz’s phone.
Cellular phone expert Jim Cook reviewed the cell phone information that had been
collected and determined that Austin’s phone and Garcia’s phone were in the vicinity of
Oakland until after 9:00 p.m. on November 29, 2012. Garcia’s and Austin’s phones then
traveled south toward the crime scene. Garcia’s phone and Austin’s phone were in the
vicinity of Harinder and Raveesh’s house around and after midnight on November 30.
Garcia’s phone called Austin’s phone at 12:44 a.m. on November 30, and both phones
connected to cell towers Cook would have expected them to, had the phones been at
14
Sitteruiet T. is Garcia’s cousin.
13
Harinder and Raveesh’s house.15 The next activity on Garcia’s phone was at 5:34 a.m.,
when it was in the area of the Francisco Bay Inn in San Francisco. Austin’s phone also
was in the vicinity of the Francisco Bay Inn from 2:32 a.m. to 8:39 a.m. on November 30,
2012.
Oakland police officer Daniel Bruce testified as an expert on Oakland’s criminal
street gangs.16 Bruce opined that Austin and Drummer were members of the ENT gang
at the time of the charged crime.17 In addition, Bruce opined that ENT had engaged in a
pattern of criminal activity. Bruce identified certified court records showing convictions
of two alleged ENT members, Ronny Flenaugh and Gregory Jefferson.18 In response to a
hypothetical based on the facts of the charged crime, Bruce opined that the depicted
robbery would be typical of how a criminal street gang would conduct a home invasion
robbery. In addition, Bruce opined that that acts were done for the benefit of, at the
direction of, or in association with a criminal street gang.19
2. The Defense Evidence
Garcia testified in his own defense. Garcia was 25 years old at the time of trial.
He was raised in Oakland and had lived in several neighborhoods including Ghost Town.
Garcia denied any gang affiliation or that “Ghost Town” is a gang. Garcia admitted that
15
Drummer’s cell phone was also in the vicinity of the crime scene at the time of the
incident.
16
Another Oakland police officer, Roberto Garcia, testified as a gang expert and opined
that defendant Garcia was a member of the Ghost Town gang. Because the jury did not
find any gang allegations against Garcia to be true, we do not describe the gang evidence
relating to him.
17
Bruce also testified that Garcia was a member of the ENT gang and Rodriguez was a
member of both the Ghost Town gang and the ENT gang. Bruce explained that Ghost
Town is aligned with ENT and it is possible to be a member of two gangs.
18
Flenaugh’s first name also appears in the trial record as “Ronnie.”
19
We describe Bruce’s testimony in more detail when discussing Austin’s challenges to
the alleged gang enhancements, post.
14
he had gone to prison in 2010 for selling drugs and that he was supervised by a probation
officer until the end of October 2012.20
Garcia testified that Rodriguez had introduced him to Austin about three months
before the charged crime and that they had friends in common. Garcia talked with Austin
two or three times a week and used drugs and played video games with him. Garcia did
not know Fritz or Drummer prior to their prosecution for this crime. Garcia denied
committing any residential burglaries with Rodriguez, Austin, or any of Austin’s friends.
Garcia said he had never been to Monte Sereno or Los Gatos, and he denied committing
the charged crime.
In November 2012, Garcia was selling and using drugs and living at the house of
Marquez Slaton, whom he knew as Gwiizy. Garcia used latex gloves to package the
drugs he sold because he did not want to test positive for drugs. Garcia would throw the
gloves away if they ripped, but he would sometimes return used gloves to the box, so he
could reuse them.
On November 29, 2012, Garcia was at Gwiizy’s house when Rodriguez arrived
around 8:00 or 9:00 p.m. “talking about wanting to use some stuff.” Rodriguez stayed at
Gwiizy’s house for approximately 10-15 minutes before leaving with a “bipper” (a type
of hole puncher), Garcia’s cell phone, and an open box of latex gloves that was similar to
the box found by police outside of Harinder and Raveesh’s residence. Rodriguez had
borrowed the bipper before, and it was not unusual for him to borrow or take Garcia’s
phone. Rodriguez said that his own phone “was messing up that day,” but he did not say
whether his phone was working or not.21 Rodriguez did not tell Garcia how long he
wanted to keep Garcia’s phone.
20
On cross-examination, Garcia said he had pleaded guilty to the drug offense but he
denied committing it, explaining that he took the blame for someone else.
21
Cell phone records indicated that, on November 29, 2012, Garcia’s phone called
Rodriguez’s phone at 9:32 p.m. (for 41 seconds) and 9:38 p.m. (for 112 seconds).
15
Garcia next saw Rodriguez the following day. Rodriguez gave Garcia his phone
back but did not tell Garcia what he had done the previous night. Garcia first learned of
the crime when he overheard Rodriguez talking about it around a week or so before
Garcia’s arrest on December 27. Garcia testified that Rodriguez had died on January 11,
2013. Prior to Rodriguez’s death, Garcia had sought to have Rodriguez speak with
Garcia’s defense counsel about the case and Garcia’s cell phone.
Austin also testified in his own defense. Austin admitted that he was one of the
people who robbed Harinder and Raveesh. He said he wanted to get money for his
family and that he came up with the idea to rob them. But Austin denied that he wanted
anyone to die. He acknowledged that Fritz had told him Raveesh was old and had asked
him to be careful and not to hurt Raveesh. However, Fritz had not mentioned anything
about Raveesh’s medical conditions. Austin gave Fritz his “word” that he was not going
to hurt anyone. He did not think Raveesh would resist; he thought the robbery would be
an “easy situation.” Austin claimed that he “specifically told people that it was no need
[sic] for no gun or no knife.” He was unaware whether any of his coperpetrators had
killed people before. He also did not know for sure if the others were armed, but he saw
no weapons before, during, or after the robbery.
Austin refused to identify the individuals who had participated in the robbery with
him, and he claimed not to recall who was there. But he acknowledged there were
multiple males involved in the crime.
Austin admitted to watching Raveesh “swigging at the alcohol” from a position
outside the house. Austin denied that he supplied the duct tape used on Harinder and
Raveesh. He admitted, however, that he grabbed the duct tape from the car, “because it
was forgotten,” and then handed it over to a coperpetrator knowing it would be used to
bind and gag Raveesh. When asked if he put on gloves before or after he retrieved the
duct tape, Austin said, “This was before I got the duct tape. No. After. I mean after.”
Austin went to the home’s master bedroom upon entry and was surprised to find Harinder
16
there. Austin admitted that he hit Harinder (but only with his fist) and wanted her to stop
screaming, but he denied threatening to kill Harinder.
Austin said that when he brought Harinder to the family room, he told the others to
be careful with her. He also saw individuals restraining and trying to tape Raveesh, who
was yelling and fighting and “struggling back.” Austin denied hearing Harinder say
anything about Raveesh having a medical condition, weak heart, or difficulty breathing.
In addition, Austin denied applying duct tape or any restraints on Raveesh or Harinder,
and he said he did not direct or suggest how they should be restrained. Austin left the
family room and went back to the master bedroom where he thought he would find a
safe. He claimed he only ransacked the master bedroom area of the house.
Austin returned to the family room area near the end of the incident. He saw that
Raveesh was dead and that Harinder was moving around, crying, and in bad shape.
Austin said he was at the house for 40 minutes. He left the house and returned to his
hotel room at the Francisco Bay Inn after midnight. He acknowledged meeting with Fritz
at the restaurant later that day, and he corroborated much of Fritz’s testimony, including
confirming his many statements to her, giving her money, pawning the stolen goods, and
asking her to search the online inmate locater for Garcia’s name. Austin said that he had
“never hung out with” Garcia and Drummer at the same time.
In addition to testifying about his participation in the charged crime, Austin
testified about his involvement with the ENT gang, which he formed when he was 20
years old as a memorial to friends who had died. When Austin created ENT, he did not
consider it to be a gang. Austin denied committing any crimes at the direction of
someone associated with ENT or directing others to commit crimes for his benefit as a
founder of ENT. Austin said he committed crimes for his own benefit and that of his
family.22
We set forth additional details from Austin’s testimony regarding his gang activity
22
when discussing Austin’s challenges to the gang enhancements, post.
17
Austin admitted that he had been convicted of residential burglary in 2011 and
sentenced to state prison. He also acknowledged having been convicted of being a felon
in possession of a firearm in 2012. He was released from prison in August 2012. He
testified that he had participated in other residential burglaries in the past.
DISCUSSION
In their briefs, Austin and Garcia raise 12 and 14 issues, respectively. Below, we
address their claims under four general topic headings: (1) insufficient evidence; (2)
instructional error; (3) Garcia’s due process and confrontation clause claims; and (4)
sentencing error.23
I. CLAIMS RELATED TO INSUFFICIENT EVIDENCE
In this section, we address Austin’s challenges to the felony murder special
circumstance finding and the gang enhancements. As to Garcia, we examine a variety of
claims he makes related to recent modifications to the felony murder rule and the natural
and probable consequences doctrines effected by Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Sen. Bill No. 1437) (Stats. 2018, ch. 1015), and arguments Garcia advances
related to accomplice testimony.
A. Austin’s Challenges to the Robbery-Murder Special Circumstance Finding
Austin does not challenge his culpability for first degree murder. Instead, he
contends that he was erroneously found guilty of special circumstance murder under
section 190.2. Section 190.2 sets forth a series of special circumstances that, when found
to be true for a defendant convicted of first degree murder, impose a minimum sentence
of life without parole and a potential sentence of death. Section 190.2, subdivision
(a)(17)(A) (section 190.2(a)(17)(A)) defines as a felony murder special circumstance
23
We note that Garcia and Austin contend that, if this court finds they forfeited certain
appellate claims of error, then, alternatively, defense counsel provided ineffective
assistance by failing to make the necessary objections in the trial court. Because we do
not resolve any specified appellate claims based on forfeiture, we need not address
appellants’ claims of ineffective assistance of counsel.
18
when “[t]he murder was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the immediate flight after
committing, or attempting to commit . . . [¶] [r]obbery in violation of Section 211 or
212.5.” The jury found true this allegation in connection with Austin’s conviction for
murder. Austin challenges this finding on factual and legal grounds.
Specifically, Austin contends that the evidence was insufficient to prove that the
special circumstance was true on the theory that he either personally killed Raveesh by
taping him or was a major participant in the robbery who acted with reckless indifference
to human life.
Austin claims legal error in the jury instructions that applied to the prosecution’s
contention that Austin was liable as the “actual killer.” Austin contends that the
prosecutor’s argument that the definition of “actual killer” extends to anyone who
commits an act in the chain of events leading to a death was an erroneous statement of
the law under section 190.2, subdivision (b) because it rested on a legally invalid theory
of special circumstance liability, and the trial court erred in failing to instruct the jury on
the correct meaning of actual killer. Austin also argues that the instructions given to the
jury on the special circumstance should have included CALCRIM No. 240 regarding
causation. Finally, Austin contends that trial court erred by instructing with CALCRIM
No. 730 because the jury would have found no basis in the evidence to conclude that
Austin was the actual killer.
1. Legal and Factual Background
Section 190.2, the special circumstance statute, distinguishes between an “actual
killer” and a “person, [who is] not the actual killer.” (Compare §§ 190.2, subd. (b) and
190.2, subds. (c) & (d).) Section 190.2, subdivision (b) (section 190.2(b)) does not define
“actual killer” but states that “unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an actual killer . . . need
not have had any intent to kill at the time of the commission of the offense.” The
19
California Supreme Court has stated, “when the defendant is the actual killer, neither
intent to kill nor reckless indifference to life is a constitutionally required element of the
felony-murder special circumstance.” (People v. Jackson (2016) 1 Cal.5th 269, 347.)
With respect to a person who is not an actual killer, section 190.2 requires either
that the person had the intent to kill (§ 190.2, subd. (c)), or acted with reckless
indifference to human life and was a major participant in the underlying felony (§ 190.2,
subd. (d) (section 190.2(d)). These provisions—which apply when the person is not the
actual killer—extend to any individual who “aids, abets, counsels, commands, induces,
solicits, requests, or assists any actor in the commission” of either the murder or the
felony that results in death. (§ 190.2, subds. (c) & (d).) Section 190.2(d) “was added to
existing capital sentencing law in 1990 as a result of the passage of the initiative measure
Proposition 115, which, in relevant part, eliminated the former, judicially imposed
requirement that a jury find intent to kill in order to sustain a felony-murder special-
circumstance allegation against a defendant who was not the actual killer.” (People v.
Estrada (1995) 11 Cal.4th 568, 575 (Estrada).)
The prosecutor told the jury here that there was no evidence of an intent to kill
Raveesh. But the prosecutor argued that the jury could find the special circumstance true
either on the theory that Austin was an actual killer under section 190.2(b) or,
alternatively, that Austin was a major participant in the robbery who had acted with
reckless indifference to human life under section 190.2(d).
For the “actual killer” special circumstance under section 190.2(b), the trial court
instructed the jurors with CALCRIM No. 730 (instruction No. 730).24 This instruction
required the People to prove that Austin had committed robbery and that he “did an act
that caused the death of another person.” For the “major participant” theory under
24
Although instruction No. 730 does not use the phrase “actual killer,” the parties’
arguments are premised on the assumption that this instruction subsumes the
requirements of sections 190.2(a)(17)(A) and 190.2(b).
20
section 190.2(d), the trial court gave the additional instruction CALCRIM No. 703, which
told the jurors in part: “If you decide that a defendant is guilty of first degree murder but
was not the actual killer, then, when you consider the special circumstance, you must
also decide whether the defendant acted either with intent to kill or with reckless
indifference to human life.” (Italics added.)
We first examine Austin’s contention that there was insufficient evidence of the
special circumstance finding under either of the prosecution’s theories—i.e., that Austin
was the “actual killer” or was a “major participant” in the robbery who had acted with
reckless indifference to human life.
2. Sufficiency of the Evidence Claims
“[T]he critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction must be . . . to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia
(1979) 443 U.S. 307, 318.) “ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that is, evidence
that is reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Powell (2018) 5
Cal.5th 921, 944.) A reviewing court “presumes in support of the judgment the existence
of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft
(2000) 23 Cal.4th 978, 1053.) “An appellate court may not substitute its judgment for
that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing
court may not reverse the judgment merely because it believes that the circumstances
might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139
(Ceja).) We do not reweigh the evidence or resolve conflicts in the testimony when
determining its legal sufficiency. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Rather, before we can set aside a judgment of conviction for insufficiency of the
21
evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient
evidence to support [the jury’s finding].” (People v. Rehmeyer (1993) 19 Cal.App.4th
1758, 1765.)
a. Actual Killer
We first examine whether there was substantial evidence that Austin was the
“actual killer” of Raveesh. In the context of the facts of this case (and as discussed
further below in our examination of Austin’s claims of legal error), for Austin to have
been the “actual killer,” the record must contain substantial evidence from which the jury
could reasonably have concluded beyond a reasonable doubt that Austin himself placed
tape on Raveesh’s face, resulting in Raveesh’s asphyxiation.
Having reviewed the record and presuming in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence, we conclude
that there was sufficient evidence from which a reasonable juror could find that Austin
was an actual killer of Raveesh. The DNA evidence suggested that Austin participated in
taping Raveesh. In particular, Austin’s DNA was found on a piece of duct tape located
on the tan pants in the family room; the duct tape was the same kind that had been used
on Raveesh’s mouth; and Austin’s DNA was found on an empty duct tape roll that
included a brownish stain that presumptively tested positive for blood. There is direct
evidence, therefore, that Austin personally handled the roll of duct tape from which the
tape placed over Raveesh’s face was taken. 25
DNA analyst Mehmet testified that she tested the areas of the duct tape that she
thought someone had touched. Mehmet testified about all DNA evidence (other than
DNA from the victims) that she was able to find on the evidence. From her testimony,
25
In arguing the sufficiency of the evidence that Austin participated in the taping of
Raveesh, the prosecutor contrasted the evidence for Austin with that for Garcia.
Speaking of Garcia, the prosecutor stated, “[t]here’s no evidence that he’s the one that
taped.”
22
the jury could infer that Mehmet did not find any DNA associated with any of the
perpetrators on any duct tape taken from Raveesh’s face, even though one or more of the
perpetrators must have placed the tape there. The jury could infer that the person or
people who put the duct tape on Raveesh’s face (which caused his death) were wearing
gloves. Austin himself told the jury that he put gloves on during the course of the
robbery and after he initially retrieved the duct tape from the car.
Moreover, there is significant circumstantial evidence from which a reasonable
jury could infer that Austin personally participated in the actions of placing the tape on
Raveesh’s face. Austin was in the kitchen/family room area when Raveesh was being put
down and before his mouth was taped. It is undisputed that Austin played the central role
in planning the robbery, and he told the jury that he retrieved from the car the duct tape
used to commit the crimes. Harinder, the only surviving eyewitness who testified about
the taping of Raveesh (other than Austin himself), was unable to identify the people who
were binding Raveesh, in part because the perpetrators also wrapped tape over her eyes
and mouth and tied her hands. This act ensured that no eyewitness who was not a party
to the crime could identify who was taping up Raveesh.
While Austin’s DNA was not found on the tape over Raveesh’s face, the
prosecutor argued that the jury could reasonably infer from the DNA on the tape on the
tan pants that Austin first taped Raveesh’s legs, before putting gloves on. There also was
significant evidence that all the perpetrators, including Austin, used gloves during the
robbery, to which the jury could reasonable ascribe the lack of DNA evidence from
Austin on Raveesh’s body. It is true Austin denied having taped Raveesh’s face, but the
jury was entitled to disbelieve Austin on this point, as it clearly did with respect to other
parts of his testimony.
In sum, Austin’s central role in the crime, his personal handling of the roll of duct
tape used to cover Raveesh’s face, the absence of DNA evidence on the tape on
Raveesh’s face from any of the other perpetrators, and Austin’s presence in the
23
kitchen/family room area before Raveesh was taped, provide substantial evidence from
which a reasonable jury could conclude beyond a reasonable doubt that Austin himself
placed tape on Raveesh’s mouth, resulting in Raveesh’s asphyxiation.26
b. Major Participant
At trial, Austin conceded that he was a major participant in the crime but disputed
that he acted with reckless indifference to human life under section 190.2(d).27 On
appeal, Austin argues that the evidence was insufficient to prove reckless indifference,
principally because he did not actually kill or intend to kill, no deadly weapons were used
in the robbery, he did not know about Raveesh’s inability to breathe through his nose, he
was not present when Harinder mentioned that Raveesh was a heart patient or when
Raveesh was struggling to breathe, he did not want anyone to get hurt or die, and he
thought the robbery would be an easy one.
Reckless indifference to human life “requires the defendant be ‘subjectively aware
that his or her participation in the felony involved a grave risk of death.’ ” (People v. Mil
(2012) 53 Cal.4th 400, 417, italics omitted.) Recklessness “encompasses both subjective
and objective elements. The subjective element is the defendant’s conscious disregard of
risks known to him or her. But recklessness is not determined merely by reference to a
defendant’s subjective feeling that he or she is engaging in risky activities. Rather,
recklessness is also determined by an objective standard, namely what a ‘law-abiding
person would observe in the actor’s situation.’ ” (People v. Clark (2016) 63 Cal.4th 522,
617 (Clark), [quoting Model Pen. Code, § 2.02, subd. (2)(c)].)
26
Because we find that there was sufficient evidence presented to find that Austin was an
actual killer, we reject Austin’s argument that instructing the jury with instruction No.
730 was improper because there was no evidence that Austin actually killed Raveesh.
27
In his motion for new trial, Austin argued insufficiency of the evidence for this element
of the special circumstance. The trial court denied the motion.
24
In Clark, the California Supreme Court set forth a nonexclusive list of factors to
consider when determining whether reckless indifference to human life has been
proved. 28 (Clark, supra, 63 Cal.4th at pp. 614–621.) Generally, the greater the
defendant’s participation in the felony murder, the more likely he or she acted with
reckless indifference to human life. (Id. at p. 615.) With the parameters of reckless
indifference in mind, we decide whether the prosecution presented substantial evidence to
support a finding that Austin had the requisite mental state.
By his own admission, Austin conceived the idea to rob Harinder and Raveesh and
planned the crime. Austin knew Raveesh was older, and he saw Raveesh (who was
overweight) drinking alcohol before invading the home. Austin rejected Fritz’s offer to
lure Raveesh out of the house so that he would not be present during the robbery for fear
Raveesh would suspect Fritz of involvement in the crime. Austin thus consciously chose
to commit the robbery at a time Raveesh would likely be home, and he proceeded to enter
the house at a time he knew Raveesh was home and had been drinking alcohol.
Austin retrieved the duct tape from the car after it had been left behind
inadvertently and, in his account, he provided the tape to an accomplice knowing it would
be used to bind and gag Raveesh. Austin saw Raveesh being bound and beaten as he
fought back. Although Austin denied hearing Harinder say that Raveesh was a heart
patient and would die, and he denied participating in the taping, the jury could have
disbelieved him on these points. Austin’s DNA was found on the duct tape roll and on
the duct tape on the tan pants in the family room.
Presence at the scene of the murder is a particularly important aspect of the
reckless indifference inquiry. (Clark, supra, 63 Cal.4th at p. 619.) The jury could have
28
The factors include: (1) the defendant’s knowledge of weapons and use of a weapon;
(2) the defendant’s presence at the scene of the crime and failure to aid the victim; (3) the
duration of the felony; (4) the defendant’s knowledge of a cohort’s likelihood of killing;
and (5) the defendant’s efforts to minimize risk of violence during the felony. (Clark,
supra, 63 Cal.4th at pp. 618–623.)
25
reasonably concluded that Austin was in the kitchen/family room area of the house, the
site of the murder, for a time after he brought Harinder there. The jury could also have
reasonably concluded that he played a role in the taping or, at least, was present when
Raveesh was being put down on the floor and taped, despite Harinder’s caution about his
medical condition. In addition, Austin admitted hitting Harinder to keep her quiet,
showing his willingness to use violence on the occupants of the house. Harinder had to
receive stitches to the wound Austin inflicted on her lip. The hospital had a plastic
surgeon do the stitching because of the extent of the injury and the amount the wound had
bled before Harinder was taken to the hospital. Harinder also told the police that Austin
threatened to shoot her.
Austin and his accomplices were in the house for at least 40 minutes—possibly
longer—and Austin did not restrain the actions of his accomplices or check on the
condition of his victims as he went about ransacking the house. As part of the crime, the
defendants disconnected the phones in the house to prevent the residents from calling for
help. The jury could have inferred that Austin, the mastermind of the robbery, planned
this detail.
These facts constitute substantial evidence of Austin’s reckless indifference. A
law-abiding person in Austin’s position would have perceived that beating, binding, and
gagging Raveesh with duct tape created a grave danger to his life, and Austin knowingly
and actively participated in this prolonged robbery in disregard of that risk. Viewing the
entire record in the light most favorable to the judgment, we conclude that the evidence is
sufficient to support the jury’s finding that Austin was a major participant who acted with
reckless indifference to human life. (See In re Loza (2017) 10 Cal.App.5th 38, 51–54;
People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1385–1386; People v. Medina (2016)
245 Cal.App.4th 778, 791–793; cf. Clark, supra, 63 Cal.4th at pp. 618–623.)
Having rejected Austin’s factual challenges to the special circumstance finding,
we turn now to his claims of legal error.
26
3. Legal Error in CALCRIM No. 730
In his closing argument, the prosecutor argued that the jury could find the robbery-
murder special circumstance for Austin as an actual killer because Austin did an act that
caused the death of another person by giving the duct tape, “the instrumentality of death,”
to a coperpetrator. The prosecutor suggested in the alternative Austin was an actual killer
because the DNA evidence showed that he personally participated in the taping of
Raveesh, directly resulting in Raveesh’s death.
Austin’s defense counsel did not object to the prosecutor’s arguments on the actual
killer theory. However, defense counsel argued to the jury in closing argument that
Austin could not be found liable as the actual killer—that is, one who did an act that
caused the death of the another—based solely on giving of duct tape to a coperpetrator.
In rebuttal, the prosecutor reiterated that Austin could be found guilty of special
circumstance murder under instruction No. 730 as an actual killer because he “did an act
that caused the death of another person either by handing over the tape [to someone] who
used the tape or by taping it himself.”
The jury instructions given by the court in instruction No. 730 read in relevant
part:
“CALCRIM No. 730. Special Circumstances: Murder in Commission
of Felony (Pen. Code, § 190.2(a)(17))
“Each defendant is charged with the special circumstance of murder
committed while engaged in the commission of robbery in violation of
Penal Code section 190.2(a)(17).
“To prove that this special circumstance is true, the People must prove that:
“1. The defendant committed or aided and abetted, or was a member of a
conspiracy to commit robbery.
“2. The defendant intended to commit, or intended to aid and abet the
perpetrator in committing, or intended that one or more of the members of
the conspiracy commit robbery.
27
“AND
“3. The defendant did an act that caused the death of another person.
[¶] . . . [¶]
“The defendant must have intended to commit or aided and abetted or been
a member of a conspiracy to commit the felony of robbery before or at the
time of the acting causing the death.
“In addition, in order for this special circumstance to be true, the People
must prove that the defendant intended to commit robbery independent of
the killing. If you find that the defendant only intended to commit murder
and the commission of robbery was merely part of or incidental to the
commission of that murder, then the special circumstance has not been
proved.”
Austin contends that the prosecution’s theory that merely providing duct tape to
another person can make one an “actual killer” is legally insufficient because section
190.2(b), when used with the special circumstance of section 190.2(a)(17)(A), requires
that the actual killer personally kill the victim. Austin further argues that instruction No.
730—which required only that the “defendant did an act that caused the death of another
person”—failed to properly limit the special circumstance liability to a defendant who
actually killed and erased the difference between liability for first degree felony murder
and the special circumstance. We agree and conclude that, under the facts of this case,
only the person (or people) who placed the duct tape on Raveesh’s mouth were actual
killers under section 190.2(b).29
29
Austin also contends that instruction No. 730 should have included the causation
definition set out in CALCRIM No. 240, which includes a discussion of proximate cause.
Austin’s jury did receive the language contained in CALCRIM No. 240 in CALCRIM
No. 540C, which defined causation in the context of first degree felony murder when
“another person did the act that resulted in the death.” CALCRIM No. 540C stated “An
act causes death if the death is the direct, natural, and probable consequence of the act
and the death would not have happened without the act. A natural and probable
consequence is one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and probable, consider
28
a. An “Actual Killer” Must Have “Personally Killed” the Victim
Although section 190.2(b) does not define the phrase “actual killer,” the California
Supreme Court has used the term “personally killed” when describing liability of an
“actual killer” for the felony murder special circumstance under section 190.2. For
example, the Supreme Court has stated, “[a] felony-murder special circumstance is
established even absent intent to kill, premeditation, or deliberation, if there is proof
beyond a reasonable doubt that the defendant personally killed the victim in the
commission or attempted commission of, and in furtherance of, one of the felonies
enumerated in subdivision (a)(17) of section 190.2.” (People v. Jennings (1988) 46
Cal.3d 963, 979 (Jennings); see also People v. Taylor (2010) 48 Cal.4th 574, 661
(Taylor) [stating when a defendant is charged with a felony murder special circumstance,
the prosecution need not prove “intent to kill or reckless indifference to life” as a required
element of the special circumstance so long as “the defendant is the actual killer” of the
victim]; People v. Belmontes (1988) 45 Cal.3d 744, 794 [“The United States Supreme
Court has made clear that felony murderers who personally killed may properly be
subject to the death penalty in conformance with the Eighth Amendment . . . even where
no intent to kill is shown.”], overruled on other grounds in People v. Cortez (2016) 63
Cal.4th 101.)
all the circumstances established by the evidence.” This language is identical to that in
CALCRIM No. 240, and the jury must necessarily have considered causation to convict
Austin of robbery felony-murder.
Under the felony murder instructions, the jury had to find that Austin either caused the
death (under CALCRIM No. 540A) or intentionally committed or intentionally aided and
abetted or conspired to commit a robbery whose commission was a substantial factor in
causing the death (under CALCRIM No. 540C). Austin does not challenge his first
degree murder conviction.
In addition, Austin’s argument that there was legal error for failing to instruct on
proximate cause fails because, as we explain below, proximately causing the death of
another does not fall within the actual killer prong of section 190.2(b). For these reasons,
we reject Austin’s argument that his jury should have been separately instructed with
CALCRIM No. 240 on the special circumstance allegation.
29
In addition, in another context, the California Supreme Court has explained that
“[p]roximately causing and personally inflicting harm are two different things.” (People
v. Bland (2002) 28 Cal.4th 313, 336; id. at pp. 337–338 [“If defendant did not fire the
bullets that hit the victims, he did not personally inflict, but he may have proximately
caused, the harm.” (Italics omitted.)]. The Courts of Appeal have agreed. (See e.g.,
People v. Rodriguez (1999) 69 Cal.App.4th 341, 347–348 [“To ‘personally inflict’ an
injury is to directly cause an injury, not just to proximately cause it. The instruction was
wrong because it allowed the jury to find against [defendant] if the . . . injury was a
‘direct, natural and probable consequence’ of [defendant’s] action, even if [defendant]
did not personally inflict the injury.”]; People v. Slough (2017) 11 Cal.App.5th 419, 423
[“ ‘ “[T]he meaning of the statutory requirement that the defendant personally inflict the
injury does not differ from its nonlegal meaning. Commonly understood, the phrase
‘personally inflicts’ means that someone ‘in person’ [citation], that is, directly and not
through an intermediary, ‘cause[s] something (damaging or painful) to be endured’
[citation].” [Citation.]’ ”].)
The California Supreme Court has also distinguished the concept of “actual killer”
under section 190.2(b) from an aider and abettor under section 190.2(d). For example, it
has stated “[s]ection 190.2(d) was designed to codify the holding of Tison v. Arizona
(1987) 481 U.S. 137 [(Tison)] . . ., which articulates the constitutional limits on executing
felony murderers who did not personally kill.” (People v. Banks (2015) 61 Cal.4th 788,
794 (Banks).) In Banks, the California Supreme Court declared “the standards we
articulate, although developed in death penalty cases, apply equally to cases like this one
involving statutory eligibility under section 190.2(d) for life imprisonment without
parole.” (Id. at p. 804; see also Estrada, supra, 11 Cal.4th at pp. 575–576.)
Describing the Tison standard codified by section 190.2(d), the California
Supreme Court declared, “[w]ith respect to conduct, Tison and Enmund [v. Florida
(1982) 458 U.S. 782] establish that a defendant’s personal involvement must be
30
substantial, greater than the actions of an ordinary aider and abettor to an ordinary
felony murder.” (Banks, supra, 61 Cal.4th at p. 802, italics added; see also Estrada,
supra, 11 Cal.4th at p. 575 [noting that section 190.2(d) was added after elimination of
the former “intent to kill [requirement] in order to sustain a felony-murder special-
circumstance allegation against a defendant who was not the actual killer”].)
The clear import of these cases and the statutory scheme set out in section 190.2 is
that the meaning of “actual killer” under section 190.2(b) is literal. The actual killer is
the person who personally kills the victim, whether by shooting, stabbing, or—in this
case—taping his mouth closed, resulting in death by asphyxiation.
In arguing that section 190.2(b) does not require that the “actual killer” be the
person who personally kills but rather one who proximately causes a death, the Attorney
General relies on People v. Pock (1993) 19 Cal.App.4th 1263 (Pock). In that case, the
evidence showed that the defendant shot the victim in the upper chest and in the stomach.
One of the other coperpetrators also fired shots, one of which hit the victim in the left
shoulder. (Id. at p. 1270.) The subsequent investigation did not determine the order in
which the shots were fired. The deputy medical examiner stated the wound to the chest
would have been “more rapidly fatal,” and the other gunshot wounds contributed to the
death. (Id. at p. 1271.)
Given the multiple concurrent bullet wounds and the lack of clarity over which
shot was fatal, the trial court in Pock had instructed the jury that “ ‘[t]he term actual killer
is defined as follows: Any person whose conduct proximately causes the death of
another is an actual killer.’ ” (Pock, supra, 19 Cal.App.4th at pp. 1272–1273.) The trial
court also instructed with CALJIC No. 3.41 regarding concurrent causes. (Pock, at
p. 1273.) In rejecting Pock’s challenge to the giving of CALJIC No. 3.41, the Court of
Appeal concluded that, “even to the extent that there was some doubt as to whether
appellant fired the actual fatal shot, the jury was properly instructed that, as under a
31
vicarious liability theory, if appellant was substantial factor [sic] in the death of [the
victim], he would be liable as an actual killer.” (Pock, at p. 1275.)
Although we have serious doubts that the trial court’s jury instruction on
proximate cause upheld by the Court of Appeal in Pock accurately states the law with
respect to the definition of an actual killer as used in section 190.2(b), Pock does not
stand for the proposition that Austin should be considered an actual killer based on the
act of handing a roll of duct tape to another person. The evidence in Pock established
that the defendant actually shot the victim and its “unique facts” involve multiple
concurrent causes. (Pock, supra, 19 Cal.App.4th at p. 1274.) Here, by contrast, the
prosecutor argued—as does the Attorney General on appeal—that actual infliction of
harm to the victim is not necessary to find Austin to be an actual killer. Pock does not
stretch this far, and the broad language cited by the Attorney General from Pock is clearly
dicta.30
30
The Attorney General also cites People v. Mejia (2012) 211 Cal.App.4th 586, 603,
612–613 (Mejia), but includes only an explanatory parenthetical that a “defendant who
commits [a] ‘provocative act[,]’ the natural and probable consequence of which is the use
of deadly force, can be held liable for special circumstances murder.” Mejia addressed
the question “whether the gang murder special circumstance can apply where liability for
first degree murder attaches based upon the theory of provocative act murder.” (Id. at p.
610.) The court concluded, “based upon the interplay between the language of section
190.2, subdivision (a)(22), and the theory underlying provocative act murder as set forth
in [People v. Cervantes (2001) 26 Cal.4th 860] and [People v. Concha (2009) 47 Cal.4th
653], that the special circumstance applies in the immediate context.” (Id. at p. 612.)
The court analyzed section 190.2, subdivision (a)(22) and subdivision (c), both of which
include an intent to kill requirement. (Id. at pp. 612–613.) Mejia is therefore inapposite
because it does not address whether a defendant can be found liable for a special
circumstance even when he or she does not harbor an intent to kill. In Austin’s case, the
prosecution conceded that there was no evidence of an intent to kill Raveesh; thus,
Austin’s liability for special circumstance murder depended on him being the actual killer
under section 190.2(b) or a major participant who acted with reckless indifference to
human life under section 190.2(d). The Attorney General also cites a number of other
cases, including a civil torts case (Morris v. De La Torre (2005) 36 Cal.4th 260), which
are clearly inapplicable to the question here.
32
The Attorney General calls our attention to two other cases upholding murder
convictions in cases in which the defendant and his coperpetrators fired bullets at the
victim, and it was not clear which bullet killed the victim. (People v. Sanchez (2001) 26
Cal.4th 834 (Sanchez); People v. Cornejo (2016) 3 Cal.App.5th 36 (Cornejo).) Like
Pock, these cases (which do not discuss section 190.2 at all), are inapposite because they
involve concurrent causes—that is causes that were “operative at the time of the death
and acted with another cause to produce the death.” (Sanchez, at p. 847; see also
Cornejo, at p. 61.) The prosecution’s theory here, by contrast, was not that Austin did an
act concurrently with a coperpetrator but instead that Austin first did something (i.e.,
provide the tape) and then another person subsequently did an act that caused the death.
The Attorney General cites no case holding that a person who hands a murder
weapon to another person but who does not directly inflict any harm on the victim
qualifies as an “actual killer” under section 190.2(b). Our independent research has
likewise not found any such authority. While handing the murder weapon to the person
who actually kills the victim might result in liability under sections 190.2(c) or 190.2(d),
it does not qualify as an act of an actual killer under section 190.2(b). (See, e.g., In re
Ramirez (2019) 32 Cal.App.5th 384, 404 [examining whether the defendant’s act of
supplying the guns that were ultimately used in the attempted robbery was sufficient to
support a finding under section 190.2(d)].)
Austin’s defense counsel did not object to the prosecutor’s argument that the jury
could find that Austin was an actual killer based on his handing the tape to someone else
or request an instruction clarifying the term “actual killer.” While recognizing that his
defense counsel did not make a timely objection, Austin argues against forfeiture,
33
contending that the instructions were legally insufficient and therefore affected his
substantial rights under section 1259.31
We agree with Austin that he has not forfeited his claim of legal error. “A trial
court has no sua sponte duty to revise or improve upon an accurate statement of law
without a request from counsel [citation], and failure to request clarification of an
otherwise correct instruction forfeits the claim of error for purposes of appeal.” (People
v. Lee (2011) 51 Cal.4th 620, 638.) “But that rule does not apply when . . . the trial court
gives an instruction that is an incorrect statement of the law.” (People v. Hudson (2006)
38 Cal.4th 1002, 1012 (Hudson); see also People v. Guiton (1993) 4 Cal.4th 1116, 1131
[“Trial courts have the duty to screen out invalid theories of conviction, either by
appropriate instruction or by not presenting them to the jury in the first place.”]; § 1259.)
“ ‘The rules governing a trial court’s obligation to give jury instructions without
request by either party are well established. “Even in the absence of a request, a trial
court must instruct on general principles of law that are . . . necessary to the jury’s
understanding of the case.” [Citations.] That obligation comes into play when a statutory
term “does not have a plain, unambiguous meaning,” has a “particular and restricted
meaning” [citation], or has a technical meaning peculiar to the law or an area of law
[citation].’ [Citation.] ‘A word or phrase having a technical, legal meaning requiring
clarification by the court is one that has a definition that differs from its nonlegal
meaning.’ ” (Hudson, supra, 38 Cal.4th at p. 1012, italics omitted.) “We consider the
challenged instruction in the context of the instructions and record as a whole to ascertain
whether there is a reasonable likelihood the jury impermissibly applied the instruction.”
(People v. Rivera (2019) 7 Cal.5th 306, 329 (Rivera).)
31
Penal Code section 1259 provides in part: “The appellate court may also review any
instruction given, refused or modified, even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected thereby.”
34
As we have explained above, the meaning of actual killer is “ ‘ “particular and
restricted” ’ ” (Hudson, supra, 38 Cal.4th at p. 1012), and its application must be literal.
The jury should have been instructed that it could find true the special circumstance
under sections 190.2(a)(17)(A) and 190.2(b) only if the prosecution proved beyond a
reasonable doubt that Austin “personally killed” Raveesh. (See Jennings, supra, 46
Cal.3d at p. 979; Banks, supra, 61 Cal.4th at p. 794.) Instead, the jury was instructed
only that the prosecution must prove that Austin “did an act that caused the death of
another person.”
The instruction as worded allowed the jury to find the special circumstance true if
it determined that Austin “caused” Raveesh’s death even if it did not find beyond a
reasonable doubt that Austin participated in the taping of Raveesh’s face. Indeed, the
prosecutor made this very argument when he said of instruction No. 730 that the jury
could “find the special circumstance true, that [Austin] did an act that caused the death of
another person. At the minimum, at his minimizing level of his guilt, he gave the duct
tape which was the instrumentality of death.”
The prosecutor’s argument was consistent with the jury instruction given by the
court but was inconsistent with the law under sections 190.2(a)(17)(A) and 190.2(b).
Therefore, the language of instruction No. 730 given to Austin’s jury was wrong because
it allowed the jury to consider Austin’s special circumstance liability based on a theory
contrary to law, and constituted legal error.32
32
The wording of the pattern instruction CALCRIM No. 730 and the bench notes that
reference the sua sponte duty to instruct with CALCRIM No. 240 “[i]f the facts raise an
issue whether the homicidal act caused the death” (Bench Notes to CALCRIM No. 730
(2019) p. 464) may have contributed to the legal error here. It is unclear what authority
the bench notes rely on for this proposition. In any event, bench notes are not authority
for legal principles. (See People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7 [recognizing
that jury instructions and accompanying bench notes are not law].) As we have
explained, we do not see a basis for applying section 190.2(b), which extends only to a
person who personally kills, to a person who only proximately caused the death. The
35
b. Prejudice
We have concluded above that the special circumstance was submitted to Austin’s
jury on a legally invalid theory—that is, that the jury could find true the special
circumstance allegation if it concluded that Austin did an act that “caused” Raveesh’s
death (by handing the duct tape to a coperpetrator) even if Austin did not personally kill
him. 33 As further described above, there was substantial evidence presented to the jury
that Austin was a major participant in the robbery who acted with reckless indifference to
human life (§ 190.2, subd. (d)), and Austin does not challenge the separate instruction
given on that theory of liability for the special circumstance. Therefore, the special
circumstance question was also submitted to the jury on a valid theory.
When a jury receives both a valid and an invalid legal theory—that is, where there
is alternative-theory error—we apply the harmless error test drawn from Chapman v.
California (1967) 386 U.S. 18 (Chapman). (People v. Aledamat (2019) 8 Cal.5th 1, 3, 7,
fn. 3 (Aledamat).) Under this standard, we “must reverse the conviction unless, after
examining the entire cause, including the evidence, and considering all relevant
Advisory Committee on Criminal Jury Instructions may wish to consider revisions to the
language of CALCRIM No. 730 to clarify the concept of an actual killer for cases falling
under section 190.2(b) that do not involve an intent to kill, as with section 190.2(a)(17).
33
We note that we have concluded the trial court erred by providing an instruction that
was inadequate, as a matter of law, because it permitted the jury to find Austin liable for
the special circumstance based on a non-personal, indirect killing. Stated differently,
because the jurors were not provided a proper definition of actual killer, they reasonably
could have concluded under the instructions that Austin was an actual killer based on
general causation principles. This amounts to legal error, rather than factual error.
Further, the prosecutor’s theory here was not “incorrect only because the evidence does
not support it.” (People v. Aledamat (2019) 8 Cal.5th 1, 7.) Instead, the prosecutor’s
theory failed to come within the special circumstance as properly defined. The jury here
would have had no reason to know this given the instructions and prosecutor’s
arguments. Thus, the theory presented to the jury was a legally invalid theory, not a
factually invalid theory that “involves a mistake about a fact that the ‘jury is fully
equipped to detect’ [citation] or a theory that ‘while legally correct, has no application to
the facts of the case.’ ” (Rivera, supra, 7 Cal.5th at p. 329.)
36
circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt.” (Id.
at p. 13.)
We cannot determine the legal error here was harmless beyond a reasonable doubt.
The prosecutor expressly relied upon the invalid legal theory. The prosecutor argued to
the jury that Austin “did an act that caused the death of another person either by handing
over the tape who used the tape [sic] or by taping it himself.” The wording of the jury
instruction allowed for the prosecutor’s erroneous interpretation. The instruction failed to
inform the jury that, in order for it to find true the special circumstance if it did not
believe that Austin was a major participant who acted with reckless indifference to
human life under section 190.2(d), then it must find beyond a reasonable doubt that
Austin personally killed Raveesh.
In light of the instructions and the prosecutor’s argument, we conclude there is a
reasonable likelihood that the jury understood the actual killer theory in a legally
impermissible manner. (See People v. Canizales (2019) 7 Cal.5th 591, 614–615
[concluding that the trial court’s error in instructing on the factually unsupported kill
zone theory, combined with the lack of any clear definition of the theory in the jury
instruction and the prosecutor’s misleading argument, could reasonably have led the jury
to find liability based on a legally inaccurate version of the kill zone theory].)
Furthermore, handing the duct tape to a coperpetrator would not—by itself—
establish that Austin subjectively acted with awareness of a grave risk of death, as
required by section 190.2(d). This circumstance distinguishes Austin’s case from
Aledamat, where the Supreme Court concluded that if the jury applied a common
understanding to the undefined term “inherently deadly,” “it would necessarily find the
box cutter deadly in the colloquial sense of the term—i.e., readily capable of inflicting
deadly harm—and that defendant used it as a weapon.” (Aledamat, supra, 8 Cal.5th at
p. 15.)
37
For these reasons, we cannot conclude beyond a reasonable doubt that the jury
finding on the special circumstance rested on a legally valid theory. We therefore reverse
the special circumstance finding, vacate Austin’s sentence of life without the possibility
of parole, and remand to the trial court for the People to determine whether to retry
Austin on the section 190.2 special circumstance allegation.
B. Austin’s Challenges to the Gang Enhancements
The jury found true with respect to each count of conviction that Austin had
committed the crimes “for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further, or assist in criminal
conduct by gang members” under section 186.22, subdivision (b). Austin argues that the
evidence introduced by the People in support of these enhancements violated his Sixth
Amendment right to confront the witnesses against him and his Fourteenth Amendment
right to due process and, therefore, they must be set aside. Austin also argues that
insufficient evidence supports the jury’s true findings.
1. Factual Background
Many of Austin’s contentions relate to the timing of various pieces of evidence.
As described above, Austin was charged with crimes alleged to have been committed on
or about November 30, 2012. Austin was arrested for those crimes on December 29,
2012.
The People’s theory at trial with respect to the gang allegations was that Austin
was a member of the Oakland-based gang ENT; Austin committed the crime with other
gang members because they would refuse to cooperate with the police in any subsequent
investigation; and the crime benefitted the gang by bringing money and prestige to the
gang. In his closing argument, the prosecutor emphasized that Austin’s own testimony
proved many of the elements of the gang allegations. Austin’s theory at trial was that he
committed the crime for his personal benefit and not in association with ENT. Austin
emphasized that the prior offenses characterized as predicate offenses by the People’s
38
gang expert did not include gang charges, and there was no evidence introduced of
Austin displaying gang signs. Austin’s participation in music videos referencing guns
and money reflected rap culture rather than his membership in a criminal street gang.
The two primary trial witnesses who provided testimony relevant to the gang
allegations against Austin were the prosecution’s gang expert, Daniel Bruce, and Austin
himself. 34
a. Testimony of the Gang Expert
Bruce was an officer with the Oakland Police Department assigned to the gang
unit and testified as an expert in Oakland criminal street gangs. Bruce was raised in
Oakland. He had been “working with gangs” during his nine years with the Oakland
Police Department. Bruce moved to the gang unit in 2013; prior to that time, he had
served as a patrol officer and on a “crime reduction team,” targeting gangs, among other
criminal activities. Bruce had worked on “[e]asily a thousand” gang-related crimes and
had participated in “[h]undreds” of gang-related arrests. Bruce had interviewed
“[h]undreds” of people about “gang topics,” including perpetrators and victims of gang
crimes.
Bruce testified that gang members primarily identify themselves with tattoos,
social media postings, and hand signs. Bruce stated that one of the “main activities” of
gang members is making music videos in which they talk about their gang and putting
them on social media. “It’s modern-day graffiti.” Gangs use social media to recruit new
gang members. Tattoos are often a sign of gang association. Bruce has had no
experience with a person having a tattoo with the name of a gang where that person is not
a member or an associate of that gang.
34
Officer Roberto Garcia also testified as an expert in Oakland criminal street gangs.
However, his testimony related to Ghost Town, a gang allied with ENT, and his
testimony is not relevant to Austin’s appeal of the gang findings.
39
For gang members, there is a benefit to committing a crime with another gang
member. “Just like any other profession, when you do a job, you would want someone
who has the same level of experience to do that job with you. You know that the job is
going to get done right. And you know that, at least in gang culture after the fact, that
that person is going to be less likely to snitch.” Oakland gangs do not allow their
members to snitch on each other.
In the gang unit, Bruce focused primarily on four gangs, one of which was ENT.
He had spoken with about 20 people who have told him they are members of ENT.
ENT’s main rival among Oakland gangs is the Case gang. ENT is one of the top two
gangs in Oakland in terms of the number of murders associated with it. ENT members
commonly use the words “Stubby” and “ENT” and dollar signs as tattoos. “ENT” is an
acronym that stands for the first initials of names or monikers of three men who had died.
ENT has a hand sign associated with it.
Bruce first became familiar with ENT in 2011, when the “name came into usage.”
When Bruce first started hearing about ENT, it included about a dozen members,
including Austin, Sean Hampton, and Ronny Flenaugh, among others.35 Bruce
conducted investigations into crimes committed by or against ENT members in 2011.
ENT claimed a particular territory of Oakland in 2011 and 2012. Prior to 2011, Bruce
worked on cases involving individuals “before they were ENT.” Between 2010 and
2013, Bruce investigated “dozens of crimes related to ENT.” Bruce conducted a wiretap
investigation of ENT in 2013 during which he investigated 50 crimes in August alone.
Bruce has arrested ENT members. He had been involved in investigation of crimes
committed by ENT in cities “[a]ll over the Bay Area.”
Bruce had known Austin since 2008. Austin’s nickname is “Sunny D.” Austin
has tattoos that say “Stubby” and “ENT.” Bruce had spoken to Austin at least 20 times,
35
Defense counsel did not object to Bruce’s testimony that Austin, Hampton, and
Flenaugh were longtime members of ENT.
40
although Austin had never discussed ENT with Bruce. Almost every time Bruce saw
Austin, Austin was with people that Bruce believed were associated with ENT.
Bruce testified that there are over a hundred people in ENT, and some of them are
in custody. “A large percentage of the core group of original ENT members are in
custody,” and “[a] lot” of the original 12 members are dead. Bruce also testified, without
objection from defense counsel, about information he learned in 2013 with respect to the
ENT wiretap, particularly involving its rivalry with the Case gang.36 Bruce included
Austin as a target in the 2013 wiretap investigation, even though Austin was already in
custody on this case by then, because Austin was one of the “founding members and
original higher-ranking persons” in ENT, and other members might communicate with
him. Bruce believed that the homicide charge against Austin elevated his status in ENT
because it would result in increased respect among its members.
ENT recruits new members using social media. In their social media postings,
ENT portrays an image of “wealth, high-end luxury vehicles, high-end clothing, high-end
jewelry, and the flashing of large amounts of currency.” ENT posts videos to YouTube.
Bruce testified about two publicly accessible music videos involving ENT that he
located on YouTube. The first was for a song called “Money is the Plan.” Bruce
identified the people in the video but did not mention Austin’s name. The song featured
in the Money is the Plan video references ENT, “Stubby,” large amounts of money,
36
Although Austin contends he sufficiently objected in motions in limine to admission of
the gang testimony under Crawford v. Washington (2004) 541 U.S. 36 to preserve a
standing objection to Bruce’s testimony, the trial court in response to the defense’s
motion stated, “I do not intend to make advance rulings with regard to the experts . . . [¶]
I’m confident that [the prosecutor] is well aware of the evidentiary limitations that go
along with Crawford and will act accordingly in proving the predicates.” The trial court
cautioned, “So any other objections as to foundation or lack of qualifications, certainly,
you’ll be able to voir dire any expert you choose to, and I’ll take those objections at the
time.” Based on the trial court’s ruling, it was incumbent on defense counsel to articulate
specific objections to Bruce’s testimony rather than rely on general pretrial motions to
exclude his testimony.
41
drugs, and guns. One of the individuals in the video references “duct tape.” Bruce
testified “[b]ased on my experience with the gang and their pattern of criminal activity, I
know that duct tape is [a] common tool used during home invasion burglaries, residential
burglaries that the gang is known for committing.” The lyrics also include the phrase,
“Free Nardy,” a reference to an ENT gang member incarcerated for the attempted murder
of a police officer. The video appeared to have been posted in November 2012, although
Bruce believed it had originally been posted by someone else. It was not clear when the
video was first posted.
The second video was of a song, “Real Stubby ENT.” Bruce relied on the video in
forming his conclusion that ENT is a criminal street gang. Austin is in the video; he
shows his tattoos that say “Stubby” and “ENT” and states that “he’s ENT” “for his dead
homies who are resting in peace.” The lyrics of “Real Stubby ENT” reference large
amounts of money, guns, and driving foreign cars. The opening image of the video
features a Range Rover, a type of vehicle Bruce associated with ENT. Austin drove a
BMW that had a number of bullet holes in it. Bruce testified that Hampton, whom Bruce
had previously identified as a founding member of ENT, is also in the “Real Stubby
ENT” video.
Bruce had viewed a phone-recorded video that shows Austin talking on the phone
with another person about a recent shooting and about the relationship between ENT and
the Case gang. In the video, Austin states that no Case gang members have ever been in
foreign cars or had nice cars, while ENT members have nice cars. Austin told the person
on the phone that “he’s lucky that it wasn’t them who shot him because they would have
continued to shoot him guaranteeing his death rather than just wounding him.” Defense
counsel did not object to this testimony, and the actual video was not introduced into
evidence or played for the jury. The video was likely made in late November or early
December 2012.
42
Bruce was familiar with Jamarco Jackson, a high-ranking member of ENT whose
nickname was “Arco.” Jackson had done a drawing that was confiscated from him while
he was in custody in Alameda County and which was introduced into evidence without
objection. The bottom of the drawing says, “By ENT Arco.” The drawing depicts the
ENT hand sign, and the word “Case” with a line drawn through it. The drawing includes
the phrase “Free my brudders.” ENT members sometimes referred to each other as
“brudders.” The drawing has a list of names, including “Sunny D” and “Ronny
Flenaugh.” The drawing includes drawings of guns, bullets, dollar signs, and the BMW,
Mercedes, and Lexus logos. To the right of the word “Stubby,” the drawing has the
phrase, “[n]o warning shots,” which to Bruce signified ENT’s “propensity to violence.”
The drawing has headstones with the names of dead ENT members on them. The
drawing is not dated and had been confiscated from Jackson approximately two months
prior to Austin’s trial. Bruce believed the drawing was done “long after” Austin and
Garcia were arrested.
Bruce’s opinion was that ENT is a gang that has engaged, either collectively or
individually, in a pattern of criminal activity. He formed that opinion based on the 2013
wiretap investigation. He also had that opinion prior to 2013.
Bruce believed Austin was a member of and an active participant in the ENT street
gang on November 29 and 30, 2012, based on personal contacts with Austin, Bruce’s
investigation of crimes associated with ENT, music videos that Bruce has reviewed in
which Austin sings about ENT, and the cell phone video described above. Bruce
believed that Austin was still a member of ENT at the time of Austin’s trial. Some of
Bruce’s information was “[c]larified with police reports.” Bruce had not received any
police reports “in this case detailing the facts of the case we’re here on today.” Defense
counsel did not ask Bruce to clarify which aspects of his testimony depended on police
reports authored by other officers.
43
Bruce was familiar with Marcellous Drummer based only on Bruce’s research into
the ENT gang; Bruce had never met Drummer. Records associated with Drummer’s
Facebook and Instagram accounts were introduced through Bruce without objection.
Bruce identified one of the photos on Drummer’s Facebook account as Ronny Flenaugh
holding a large bag of US currency. The words “Stubby ENT” appear on a birthday cake
in one of the photos. One of the pages of Drummer’s Instagram account features a photo
of Drummer and text that reads, “Free my brother, Sunny ENT G for real.” There was a
photo of Austin in Drummer’s Instagram account. Defense counsel did not object to any
of this testimony.
Bruce opined that Drummer was a member of the ENT criminal street gang on
November 29, 2012. His opinion was based on “those social media postings where
[Drummer] is making comments referring to ENT,” and posting photographs of dead and
current ENT members. Bruce also based his opinion on the fact that Drummer had been
stopped in a car with other ENT members, although this incident did not result in any
charges, and Bruce did not participate in the car stop.37 Bruce was not able to say
whether Drummer was an “active participant” in ENT, “just based purely on [Bruce’s]
lack of knowledge on his history, criminal history.”
Bruce was familiar with Ronny Flenaugh. The prosecutor asked, “Are you
familiar with an offense from June 3rd of 2012 in the City of Oakland that was a
robbery.” Bruce, answered, “[y]es.” Through Bruce, the prosecutor then introduced a
certified record of a prior conviction of Flenaugh. In response to the prosecutor’s
question, “does this certified prior conviction reflect a conviction for the robbery in June
3rd of 2012 we talked about?” Bruce answered, “Yes.” When asked to describe his
personal involvement in that case, Bruce stated that he saw a description of the car
37
The jury heard from another witness, Oakland Police Officer William Bergeron, that,
on February 10, 2011, Bergeron had stopped a car in east Oakland that was driven by
Austin, and Drummer was in the car.
44
involved on the police department’s e-mail system. Bruce was familiar with the car
described in the e-mail, and he knew the car was associated with Flenaugh. Bruce had no
other involvement in the case leading to Flenaugh’s robbery conviction.
Bruce was familiar with Gregory Jefferson. Bruce was familiar with an incident
on January 18, 2012, involving Jefferson and two handguns because Bruce participated in
Jefferson’s arrest that day. Jefferson was charged with possession of a firearm in a public
place, and the prosecution introduced a certified conviction record for Jefferson from that
incident. Bruce’s opinion was that Jefferson was a member of ENT on January 18, 2012,
based on “prior contacts, prior long-term investigations where Mr. Jefferson was one of
the targets, social media postings, and observations,” all of which Bruce had personally
done.
The prosecutor posed a detailed hypothetical to Bruce closely modeled on the facts
of the crime involved here. Based on that hypothetical, Bruce opined that the crimes
were done for the benefit of, at the direction of, or in association with a criminal street
gang.
b. Testimony of Austin
Austin testified in his own defense. He planned and participated in the robbery of
Harinder and Raveesh’s residence in order to get money for himself and his son. Austin
used the money from the robbery for Christmas presents and housing; he did not use any
to benefit ENT.
Austin had known Officer Bruce since 2008. Austin had known Drummer since
2005 and was friends with him. Austin’s nickname was “Sunny D” because of his light-
colored skin and the first letter of his first name, Deangelo.
Austin founded ENT when he was 20 years old as a memorial for his best friends
who had died. His friends, for whom ENT was a memorial, were violent people involved
in criminal activity. Austin testified, “ENT’s a gang. I mean, but ENT’s a gang because
based on the younger people make it–the younger people that’s younger than me, really
45
make it a gang. But, me, myself, I didn’t, I didn’t look at it as a gang when it formed. I
told you how I looked at it. It was more of a memorial for my brothers. From there, I
guess it ran off to the younger people. They just ran with it like that. And at this point in
time, in 2016, I definitely consider ENT a gang.”
About a dozen people previously associated with ENT are now dead. Austin
equated ENT’s fight with the Case gang to the battle between Norteños and Sureños.
Austin agreed that there are “ENT people who would shoot people,” and Austin had
friends in ENT who “shoot.” When Austin was in ENT in 2012, there were more than
three people in the group, they had a common name, and some of the people in the group
committed crimes. Austin agreed that some people in ENT in 2012 were illegally in
possession of firearms, and in 2011 some people in ENT committed residential
burglaries.
Austin committed two residential burglaries in 2009. In one of the burglaries, the
victim was an Indian man. Austin was convicted of residential burglary in 2011. Austin
was convicted of being a felon in possession of a firearm in 2012. Austin was released
from prison in August 2012. Between August and November 2012, Austin made $20,000
through criminal activity. Austin denied the prosecutor’s suggestion that Austin had
made this money through burglaries; instead, Austin testified it came from his work as a
pimp.
Austin got the ENT tattoo when he was in prison so that he could “keep up with
the rest of the prisoners.” Austin did not do the video to promote ENT. Singing about
having sex with lots of women, money, drugs, and ENT is “part of rap culture.” “ENT”
was his group’s “rap name.” Austin stated, “The ENT image is just a rap name like Cash
Money Records or Death Row. It’s just a rap title as far as that was going to be our
record label.” Austin liked nice things, “like any rapper would.” The image of ENT the
gang is “just a bunch of people hanging out and being a gang,” in foreign cars and having
money. As to the phone call captured on the video that Bruce had testified about, Austin
46
was “basically roasting” the other person on the phone because they were in a dispute
“over a girl.”
Although Austin admitted his involvement in the Monte Sereno robbery, he would
not testify about the names of the others involved because he “live[s] by the code of the
Oakland streets in general.”
c. Testimony of Other Witnesses
Erin Lunsford was the lead detective on the robbery case. Lunsford observed
tattoos on Austin that read “ENT” and “Stubby.” Lunsford observed tattoos on Drummer
that read “ENT” and “MOET.” “MOET” stands for “money over everything.”
2. General Legal Principles
Examination of Austin’s contentions with respect to the gang enhancements
requires consideration of the interaction among the statutory elements of the gang
enhancement and the dictates of the confrontation clause, particularly the United States
Supreme Court’s decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and
the California Supreme Court’s decision in People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez).
a. Elements of the Gang Enhancement
“Penal Code section 186.22, also known as the Street Terrorism Enforcement and
Prevention Act (the STEP Act or Act), was enacted in 1988 . . . . The Act imposes
various punishments on individuals who commit gang-related crimes—including a
sentencing enhancement on those who commit felonies ‘for the benefit of, at the direction
of, or in association with any criminal street gang.’ ” (People v. Prunty (2015) 62
Cal.4th 59, 66–67 (Prunty).)
“The STEP Act defines a ‘criminal street gang’ as an ‘ongoing organization,
association, or group.’ (§ 186.22(f).) That ‘group’ must have ‘three or more persons,’
and its ‘primary activities’ must consist of certain crimes. (Ibid.) The same ‘group’ must
also have ‘a common name or common identifying sign or symbol,’ and its members
47
must be proven to have engaged in a ‘pattern of criminal activity’ by committing
predicate offenses. (Ibid.)” (Prunty, supra, 62 Cal.4th at p. 71.)
“The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes be one of the group’s
‘chief’ or ‘principal’ occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323
(Sengpadychith).) The trier of fact may consider “the circumstances of the present or
charged offense in deciding whether the group has as one of its primary activities the
commission of one or more of the statutorily listed crimes.” (Ibid.) Expert testimony can
serve as the basis of sufficient proof of the gang’s primary activities. (Id. at p. 324.)
Under the STEP Act, a “ ‘pattern of criminal gang activity’ means that gang
members have, within a certain time frame, committed or attempted to commit ‘two or
more’ of specified criminal offenses (so-called ‘predicate offenses’). (Pen. Code,
§ 186.22, subd. (e).)” (People v. Gardeley (1996) 14 Cal.4th 605, disapproved of on
other grounds by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) The predicate offenses
need not themselves be “gang related.” (Gardeley, at p. 621.) It is not clear whether the
predicate offenses must be committed by gang members. (Compare People v. Augborne
(2002) 104 Cal.App.4th 362, 375 with Prunty, supra, 62 Cal.4th at p. 76.)
The prosecutor may prove the STEP Act’s “requisite ‘pattern of criminal gang
activity’ by evidence of ‘two or more’ predicate offenses committed ‘on separate
occasions’ or by evidence of such offenses committed ‘by two or more persons’ on the
same occasion.” (People v. Loeun (1997) 17 Cal.4th 1, 10 (Loeun).) If the prosecution
wishes to prove the predicate offenses by showing their commission “on a single
occasion by ‘two or more persons,’ it can . . . rely on evidence of the defendant’s
commission of the charged offense and the contemporaneous commission of a second
predicate offense by a fellow gang member.” (Ibid.) In addition, the predicates “need
not consist of evidence that different Penal Code provisions were violated.” (Id. at p. 10,
fn. 4.) However, “[c]rimes occurring after the charged offense cannot serve as predicate
48
offenses to prove a pattern of criminal gang activity.” (People v. Duran (2002) 97
Cal.App.4th 1448, 1458 (Duran).)
b. Confrontation Clause
In Crawford, the United States Supreme Court overruled decades of confrontation
clause jurisprudence and held that the prosecution may not admit at trial previously made
“testimonial statements” of a witness unless that witness testifies at the trial or the
witness “[is] unavailable to testify, and the defendant . . . had a prior opportunity for
cross-examination.” (Crawford, supra, 541 U.S. at pp. 53–54.)
Following Crawford, the California Supreme Court in Sanchez held that, when
any expert relates to the jury case-specific, out-of-court statements and treats the content
of those statements as true to support the expert’s opinion, the statements are hearsay and
must either fall within a hearsay exception or be independently proven by competent
evidence. (Sanchez, supra, 63 Cal.4th at pp. 684–686.) Further, if the case is one in
which a prosecution expert seeks to relate testimonial hearsay, there is a violation of the
confrontation clause unless the witness testifies at trial or is unavailable and the
defendant had a prior opportunity to cross-examine the witness. (Id. at p. 686.)
Under Sanchez, “a court addressing the admissibility of out-of-court statements
must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the
statement one made out of court; is it offered to prove the truth of the facts it asserts; and
does it fall under a hearsay exception? If a hearsay statement is being offered by the
prosecution in a criminal case, and the Crawford limitations of unavailability, as well as
cross-examination or forfeiture, are not satisfied, a second analytical step is required.
Admission of such a statement violates the right to confrontation if the statement is
testimonial hearsay.” (Sanchez, supra, 63 Cal.4th at p. 680.) “Whether a statement is
testimonial turns on ‘ “whether, in light of all the circumstances, viewed objectively, the
‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial
testimony.’ ” ’ ” (People v. Armstrong (2019) 6 Cal.5th 735, 790.)
49
Sanchez also reinterpreted the hearsay rules under California law applicable to
expert testimony. The court reiterated that an expert may testify about “background
information regarding his knowledge and expertise and premises generally accepted in
his field.” (Sanchez, supra, 63 Cal.4th at p. 685.) However, an expert may not “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.)
Austin’s trial occurred a few weeks before the California Supreme Court issued its
decision in Sanchez.
“Since Sanchez, California appellate courts have held that expert testimony about
‘the general attributes of the . . . gang, such as the gang’s culture, the importance placed
on reputation and guns, . . . the gang’s rivals and claimed turf, the use of monikers and
identifying symbols, and the like, [are] permissible as expert background testimony.’ ”
(People v. Anthony (2019) 32 Cal.App.5th 1102, 1138 (Anthony).) A gang expert may
testify about the history and founding of a particular gang, even if the sources of the
information are hearsay. (People v. Vega-Robles (2017) 9 Cal.App.5th 382
(Vega-Robles).) Such admissible background testimony includes testimony about the
“primary activities” of a criminal street gang within the meaning of the STEP Act.
(People v. Meraz (2016) 6 Cal.App.5th 1162, 1175 (Meraz).) By contrast, an expert may
not relate case-specific testimonial hearsay, such as information contained in police
reports authored by other officers. (Sanchez, supra, 63 Cal.4th at pp. 694–695; People v.
Malik (2017) 16 Cal.App.5th 587, 598.)
A gang expert who has personal knowledge of the facts and is subject to
cross-examination at trial may testify to facts contained in documents that would
otherwise be considered testimonial hearsay, such as field identification cards. (Meraz,
supra, 6 Cal.App.5th at p. 1176.) Testimony by an officer about personal observations
made by that officer, such as of an individual’s tattoos, location, companions, or clothing,
50
are not hearsay and thus do not run afoul of the confrontation clause. (People v. Iraheta
(2017) 14 Cal.App.5th 1228, 1248.)
Where an appellant has failed to make a timely objection to the expert’s testimony,
resulting in a lack of clarity over whether the witness testified from personal
observations, an appellant may be unable to carry his or her burden on appeal of
affirmatively showing error. Where the record is unclear about the basis of a witness’s
testimony, and the appellant did not seek at trial to develop the record, reviewing courts
will not presume a violation of the confrontation clause. (Anthony, supra, 32 Cal.App.5th
at pp. 1139–1140.)
Bearing in mind these legal principles, we turn to Austin’s specific contentions
about the gang evidence elicited at his trial.
3. Evidence of Predicate Crimes
Austin argues that the evidence of the predicate crimes violated both his rights
under the confrontation and due process clauses. We first consider his claims with
respect to the Sixth Amendment.
a. Confrontation Clause Claims
Austin maintains that the evidence related to the predicate crimes committed by
Ronny Flenaugh and Gregory Jefferson violated his rights under the confrontation
clause.38 Specifically, Austin argues that admission of Flenaugh’s and Jefferson’s
38
Although the prosecution at trial introduced evidence of the prior convictions of two
other individuals as predicates supporting the gang enhancements, those individuals were
alleged to be members of the Ghost Town gang. As the prosecution’s theory at trial was
that Austin was a member of ENT rather than Ghost Town, the Attorney General does
not rely on that evidence in arguing sufficient evidence supported the jury’s finding on
the gang enhancements. In his reply brief, Austin accepts the Attorney General’s
limitation and advances arguments only as to the evidence relating to Flenaugh and
Jefferson. We similarly limit our analysis of convictions of individuals who were not
involved in the instant offense to Flenaugh and Jefferson. (See Prunty, supra, 62 Cal.4th
at p. 76 [“[A]s the STEP Act defines a criminal street gang as one whose members
51
records of prior convictions violated the Sixth Amendment, as interpreted in Kirby v.
United States (1899) 174 U.S. 47 (Kirby), and the gang expert relied on testimonial
hearsay when testifying that Flenaugh and Jefferson were members of ENT.
Alternatively, Austin argues that the evidence was insufficient to support the conclusion
that Flenaugh and Jefferson were ENT members. The Attorney General counters that
Kirby held that admission of the fact of a prior conviction does not violate the
confrontation clause, Bruce’s testimony was sufficiently specific based on his personal
investigation of Flenaugh and Jefferson, and sufficient evidence supported the jury’s
verdict on the gang enhancement.
We apply de novo review to Austin’s claim that his rights under the confrontation
clause were violated. 39 (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 964
(Giron-Chamul).) When reviewing whether substantial evidence supports the gang
enhancement, “We review the entire record in search of reasonable and credible evidence
of solid value, viewing all the evidence in the light most favorable to the prosecution, and
drawing all reasonable inferences in favor of the jury’s findings. [Citations.] We cannot,
however, go beyond reasonable inferences into the realm of speculation, conjecture,
surmise, or guesswork.” (People v. Perez (2017) 18 Cal.App.5th 598, 607.) “Before a
verdict may be set aside for insufficiency of the evidence, a party must demonstrate
‘ “that upon no hypothesis whatever is there sufficient substantial evidence to support
[the conviction].” [Citations.]’ The same standard of review applies to section 186.22
engage in a pattern of criminal gang activity, it is axiomatic that those who commit the
predicate acts must belong to the same gang that the defendant acts to benefit.”].)
39
Although Austin did not object to the records of conviction for the prior offenses
committed by Flenaugh and Jefferson citing Kirby, Austin did generally object to the
admission of evidence related to the predicate crimes under the confrontation clause. The
Attorney General does not argue that Austin forfeited this issue, and we deem the general
confrontation clause objections made by Austin in the trial court sufficient to preserve
this issue for appellate review.
52
gang enhancements.” (In re Alexander L. (2007) 149 Cal.App.4th 605, 610 (Alexander
L.), citation omitted.)
We first consider Austin’s contention that admission of the records of conviction
for the prior offenses committed by Flenaugh and Jefferson violated the confrontation
clause under the principle announced in Kirby, supra, 174 U.S. 47.
i. Austin’s Kirby Claim
Joe Kirby was convicted of possession of property stolen from the United States.
(Kirby, supra, 174 U.S. at pp. 48–49.) The prosecution’s theory at Kirby’s trial was that
three other individuals had stolen 5,486 postage stamps from a United States post office
in Highmore, South Dakota. (Id. at p. 49.) Two days later, Kirby unlawfully possessed
in Sioux Falls the stamps stolen from the Highmore post office. (Ibid.) Prior to Kirby’s
trial, three other individuals had been convicted of the theft of the stamps. At Kirby’s
trial, the prosecution’s only evidence that the stamps Kirby possessed had been stolen
from the United States was the conviction records for the three other people, admitted
into evidence over Kirby’s objection. (Id. at pp. 49–50, 53–54.)
The United States Supreme Court held that the admission of the three prior
convictions to prove that the property Kirby possessed belonged to the United States
violated Kirby’s rights under the Sixth Amendment. (Kirby, supra, 174 U.S. at pp. 54–
55.) The court stated, “One of the fundamental guaranties of life and liberty is found in
the sixth amendment of the constitution of the United States, which provides that ‘in all
criminal prosecutions the accused shall . . . be confronted with the witnesses against him.’
Instead of confronting Kirby with witnesses to establish the vital fact that the property
alleged to have been received by him had been stolen from the United States, he was
confronted only with the record of another criminal prosecution, with which he had no
connection, and the evidence in which was not given in his presence. . . . But a fact
which can be primarily established only by witnesses cannot be proved against an
accused, charged with a different offense, for which he may be convicted without
53
reference to the principal offender, except by witnesses who confront him at the trial,
upon whom he can look while being tried, whom he is entitled to cross-examine, and
whose testimony he may impeach in every mode authorized by the established rules
governing the trial or conduct of criminal cases.” (Id. at p. 55.)
The Supreme Court clarified that, if the statute under which Kirby was convicted
had only required proof of prior conviction of the principal, “the record of the trial of the
former would be evidence in the prosecution against the receiver to show that the
principal felon had been convicted; for a fact of that nature could only be established by a
record.” (Kirby, supra, 174 U.S. at p. 54.) However, the prosecution could not prove an
“essential fact” of a subsequent crime solely through evidence of another person’s prior
conviction. (Ibid.) “The record of the conviction of the principals could not . . . be used
to establish, against the alleged receiver, charged with the commission of another and
substantive crime, the essential fact that the property alleged to have been feloniously
received by him was actually stolen from the United States.” (Ibid.)
Relying on Kirby, subsequent courts have found violations of the confrontation
clause in the use of a prior conviction to show that an individual “in fact committed the
crime of which he was convicted” (United States v. Causevic (8th Cir. 2011) 636 F.3d
998, 1002), and in the admission of third-party convictions to prove the existence of a
gang. (State v. Jefferson (2017) 302 Ga. 435, 441–442 [807 S.E.2d 387, 392–393].)
Although Kirby dates from 1899, the United States Supreme Court has continued
to rely on the decision in its modern confrontation clause cases. (See, e.g., Melendez-
Diaz v. Massachusetts (2009) 557 U.S. 305, 314; Davis v. Washington (2006) 547 U.S.
813, 825.) The Attorney General does not question Kirby’s continuing validity.
In defending the trial court’s admission of the records of convictions for Flenaugh
and Jefferson, the Attorney General maintains that Kirby holds that a record of prior
conviction is properly admitted to show the fact of a prior conviction, and court records
are not testimonial hearsay. Although he does not state the point explicitly, the Attorney
54
General appears to contend that the conviction records of Flenaugh and Jefferson were
admitted only to prove the fact of their prior convictions.
Applying Sanchez’s “two-step” process, we first consider whether admission of
the records constituted case-specific hearsay. (Sanchez, supra, 63 Cal.4th at p. 680.)
Austin concedes that the conviction records of Flenaugh and Jefferson were admissible
under Evidence Code section 452.5, subdivision (b)(1), which states “An official record
of conviction certified in accordance with subdivision (a) of Section 1530, or an
electronically digitized copy thereof, is admissible under Section 1280[40] to prove the
commission, attempted commission, or solicitation of a criminal offense, prior
conviction, service of a prison term, or other act, condition, or event recorded by the
record.” California courts have interpreted this provision as “creat[ing] a hearsay
exception allowing admission of qualifying court records to prove not only the fact of
conviction, but also that the offense reflected in the record occurred.” (Duran, supra, 97
Cal.App.4th at p. 1460.)
Turning to the issue of whether certified conviction records are testimonial, a
number of California courts have concluded that they are not. Reviewing a set of
documents prepared pursuant to section 969b,41 one court stated, “Although they may
ultimately be used in criminal proceedings, as the documents were here, they are not
40
Evidence Code section 1280 in turn provides, “Evidence of a writing made as a record
of an act, condition, or event is not made inadmissible by the hearsay rule when offered
in any civil or criminal proceeding to prove the act, condition, or event if all of the
following applies: [¶] (a) The writing was made by and within the scope of duty of a
public employee. [¶] (b) The writing was made at or near the time of the act, condition,
or event. [¶] (c) The sources of information and method and time of preparation were
such as to indicate its trustworthiness.”
41
That statute provides in relevant part, “For the purpose of establishing prima facie
evidence of the fact that a person being tried for a crime or public offense under the laws
of this State has been convicted of an act punishable by imprisonment in a state prison,
county jail or city jail of this State, and has served a term therefor in any penal institution
. . . when such records or copies thereof have been certified by the official custodian of
such records, may be introduced as such evidence.” (§ 969b.)
55
prepared for the purpose of providing evidence in criminal trials or for determining
whether criminal charges should issue. Therefore, these records are beyond the scope of
Crawford, and the court properly admitted them and considered them for the statutory
purposes.” (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225; see also Meraz,
supra, 6 Cal.App.5th at p. 1176, fn. 10.)
We are not persuaded that all records of prior criminal convictions are immune
from confrontation clause challenge. Instead, whether admission of such records violates
the confrontation clause as interpreted in Kirby depends on the fact the prosecution seeks
to prove with the document. To the extent that the prosecution offers a record of
conviction solely to show the fact of the prior conviction, admission of that document is
consistent with Kirby and does not violate the confrontation clause. But Kirby also holds
that the use of a record of a prior conviction to prove any fact other than the fact of
conviction violates the Sixth Amendment. In the words of modern jurisprudence, records
of convictions used to prove facts other than the fact of conviction itself are testimonial.
In Kirby, for example, the record of prior conviction would have been properly admitted
to prove the fact of the prior conviction but not to prove that the stamps Kirby possessed
were the property of the United States. (Kirby, supra, 174 U.S. at p. 54.)
In Austin’s case, the prosecution offered the records of Flenaugh’s and Jefferson’s
convictions as “predicates” in fulfillment of the Act’s requirement that the prosecution
prove that the relevant gang members have engaged in a “ ‘pattern of criminal gang
activity.’ ” (§ 186.22, subd. (e).) The Act defines that phrase as “the commission of,
attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of the following offenses, provided at least one
of these offenses occurred after the effective date of this chapter and the last of those
offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons.” (Ibid.) If the prosecution
56
offered a record of a prior conviction solely to prove that individual had suffered a
“conviction” of that offense, then such a record would not be testimonial under Kirby.
However, the STEP Act also requires that the prosecution prove the date of
commission of the predicate crime. “The statute contains two timing requirements for the
offenses used to establish a ‘pattern of gang activity’: the last crime must have occurred
within three years of a prior crime, and at least one of the offenses must have occurred
after the effective date of the statute.” (People v. Godinez (1993) 17 Cal.App.4th 1363,
1368 (Godinez).) In Austin’s trial, the only competent evidence proving the date of
commission of Flenaugh’s predicate offense was a copy of the complaint from his case.
Use of this complaint from Flenaugh’s prior conviction to prove the date on which
Flenaugh committed the offense plainly violates Kirby’s proscription of the use of the
records of prior convictions to prove any fact other than the fact of the prior conviction.
The date of the commission of a crime is a fact that “can be primarily established only by
witnesses.” (See Kirby, supra, 174 U.S. at p. 55.) The prosecution elicited no other
testimony to prove the offense date of Flenaugh’s crime. Although the prosecutor orally
asked Bruce whether the crime had occurred on June 3, 2012, and Bruce answered
affirmatively, Bruce also testified that he had had no involvement in Flenaugh’s case.
Therefore Bruce must have relied on testimonial hearsay (in the form of documents
created by the police or prosecution) to answer the prosecutor’s question. We conclude
that, pursuant to Kirby, admission of Flenaugh’s complaint from his prior conviction to
prove the date on which Flenaugh committed the crime violated Austin’s rights under the
confrontation clause. We consider below whether Austin suffered prejudice from this
violation.
As to the conviction for Jefferson, we conclude there was no violation of Austin’s
confrontation rights. Bruce testified that he personally participated in Jefferson’s arrest
that led to his conviction, the conviction records of which were introduced into evidence.
Those conviction records show a conviction for carrying a loaded firearm, in violation of
57
section 25850, subdivision (c)(2). (See § 186.22, subd. (e)(33) [listing a violation of
section 25850 as a qualifying predicate offense].) A reasonable juror could infer from
Bruce’s testimony that Jefferson committed the offense immediately prior to his arrest
and Bruce was, therefore, a percipient witness to the crime. The conviction records
confirm that the date of offense of the crime was January 18, 2012—the same date Bruce
had testified that he participated in Jefferson’s arrest. The fact of conviction for this
offense, as reflected in the relevant exhibit received into evidence, is not testimonial
under Kirby.42 Therefore, admission of the evidence of the predicate crime committed by
Jefferson did not violate the confrontation clause.
ii. Expert’s Testimony of Gang Membership
Austin argues that Bruce’s testimony that Flenaugh and Jefferson were gang
members violated the confrontation clause. Austin also contends that Bruce’s testimony
was vague and did not constitute sufficient evidence in support of the gang enhancement.
We have already concluded that admission of the evidence related to Flenaugh’s
prior crime violated the confrontation clause. We therefore will not further consider
Austin’s claims with respect to Bruce’s testimony about Flenaugh.
Turning to Bruce’s testimony about Jefferson, we find no confrontation clause
violation. Bruce’s testimony—although vague—was sufficiently specific as to its basis
to provide sufficient evidence supporting the jury’s finding on the gang enhancement.
Bruce testified that it was his opinion that Jefferson is a member of ENT based on
“prior contacts, prior long-term investigations where Mr. Jefferson was one of the targets,
social media postings, and observations on the street.” Bruce did not testify that
Jefferson was in any of the videos or social media accounts related to ENT that were
introduced into evidence. Austin did not mention Jefferson in his testimony. No other
witness mentioned Jefferson.
42
Austin does not otherwise object to the content of the exhibit admitted into evidence,
much of which goes beyond the fact of Jefferson’s prior conviction.
58
On the other hand, Bruce was personally familiar with Jefferson. Bruce testified
that ENT previously had a subset called Money Team, and both Austin and Jefferson
were members of Money Team when it was in existence. Bruce also testified that
Jefferson was a member of ENT when he committed the predicate crime in January 2012.
Jefferson was one of the targets of Bruce’s ENT wiretap in 2013.
Reviewing courts that have found a gang expert’s factual assertions insufficient
have faulted the expert’s lack of personal knowledge of the individual or group about
whom the assertion is made or a lack of specificity about the basis of the expert’s
knowledge. (See, e.g., In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003; Alexander
L., supra, 149 Cal.App.4th at p. 612.) Although Bruce’s testimony was not particularly
specific, he did state that he had personally conducted the investigations and observations
he referenced. A reasonable juror could also infer from the rest of Bruce’s testimony that
Bruce was knowledgeable about ENT, a gang he had known about and investigated since
its inception. “The credibility and weight of the expert testimony was for the jury to
determine, and it is not up to us to reevaluate it.” (People v. Flores (2006) 144
Cal.App.4th 625, 633.) Drawing all reasonable inferences in favor of the jury’s finding,
we determine that Bruce’s testimony constituted substantial evidence that Jefferson was a
member of ENT.
b. Due Process Claims
Austin contends that Bruce’s testimony about the predicate offenses violated his
right to due process because Bruce referenced facts learned in his 2013 investigation of
ENT, conducted after Austin’s commission of the crimes in this case. The Attorney
General counters that Bruce’s testimony about crimes committed by ENT members prior
to November 29, 2012, was sufficient to support the jury’s finding on the gang
enhancement.
“Due process entitles a defendant to notice,” and the “[u]se of acts occurring after
a defendant’s commission of charged offenses to establish the existence of a ‘pattern of
59
criminal gang activity’ within the meaning of section 186.22, subdivision (c) deprives the
defendant of notice, in advance of his conduct, that his acts will fall within the
proscription of section 186.22.” (Godinez, supra, 17 Cal.App.4th at p. 1369; see also
Duran, supra, 97 Cal.App.4th at p. 1458 [“Crimes occurring after the charged offense
cannot serve as predicate offenses to prove a pattern of criminal gang activity.”].)
Although they may not occur later, predicate offenses may be committed
contemporaneously with the charged offense. (Loeun, supra, 17 Cal.4th at pp. 10–11.)
It is true that Bruce testified generally about the ENT wiretap investigation he
conducted in 2013. However, Bruce’s testimony also contained numerous references to
his investigation of ENT crimes and interactions with ENT members in 2011 and 2012.
For example, Bruce conducted investigations into crimes committed by or against ENT
members in 2011. Bruce testified that ENT claimed a particular territory of Oakland in
2011 and 2012. Between 2010 and 2013, Bruce investigated “dozens of crimes related to
ENT.” Bruce testified that Jefferson committed the predicate crime for which the
prosecution introduced the record of conviction on January 18, 2012. We reject Austin’s
claim that his right to due process was violated by Bruce’s references to investigations
that occurred in 2013 after Austin committed the crimes at issue here and conclude that
the record provides substantial evidence of ENT members’ commission of predicate
offenses prior to November 29, 2012.
4. Evidence of Primary Activities
Austin similarly argues that the evidence heard by the jury relating to the primary
activities of ENT violated his due process rights because Bruce’s testimony was not
limited to the activities of ENT before Austin’s commission of the robbery on November
29, 2012. The Attorney General does not address Austin’s argument with respect to
primary activities.
60
a. Factual Background
Bruce had the following interchange with the prosecutor on the subject of ENT’s
primary activities.
“Q. What in your opinion is ENT’s primary activities?
“A. The primary being at the moment of ENT [sic] is committing burglaries and
home invasions as well as robberies and shootings or murders.
“Q. And when you say, ‘burglaries,’ are they specific types?
“A. Typically, ENT was known for doing burglaries of Asian and East Indian
homes.
“Q. Those would be residential burglaries. Correct?
“A. Correct.”
Defense counsel did not object to this testimony. Bruce also testified that ENT is
“known for” committing residential burglaries. The jury saw the ENT video in which
one of the singers references duct tape, which Bruce testified was a reference to
residential burglaries.
With respect to the primary activities requirement, the jury was instructed that “A
criminal street gang is any ongoing organization, association, or group of three or more
persons, whether formal or informal: . . . [¶] That has, as one or more of its primary
activities, the commission of Residential Burglaries, Robberies, Auto Burglaries,
Assaults with Firearms and Murders . . . [¶] In order to qualify as a primary activity, the
crime must be one of the group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the group.” 43
b. Analysis
Austin argues that, just as the predicate crimes fulfilling the pattern of criminal
activity prong of the gang enhancement may not have been committed after the charged
43
Austin does not argue any error in this instruction.
61
offense, so too the evidence of the primary crimes must be drawn from activities
contemporaneous with or before the charged crime. Although Austin cites no case for
this proposition, we agree with Austin that there is nothing in the text of the STEP Act
provision relating to primary activities that suggests that acts the gang committed after
the charged offense can themselves satisfy the primary crimes element of the
enhancement. A similar rule applies to the predicate offenses. (See Duran, supra, 97
Cal.App.4th at p. 1458.)
Although we accept Austin’s legal point, we disagree with his factual conclusion.
Expert testimony can provide substantial evidence of a gang’s primary activities, as can
evidence that “the group’s members consistently and repeatedly have committed criminal
activity listed in the gang statute.” (Sengpadychith, supra, 26 Cal.4th at p. 324.)
Although Bruce’s testimony was not specific about the timeframe of his conclusion that
ENT’s primary activities were burglaries and shootings, among other crimes, defense
counsel did not object to this testimony or seek clarification of Bruce’s testimony. An
appellant must affirmatively demonstrate error. (See People v. Giordano (2007) 42
Cal.4th 644, 666.)
In addition, the jury heard other evidence beyond Bruce’s testimony from which it
could infer ENT’s primary activities. For example, Austin testified that, in 2011,
members of ENT committed residential burglaries and, in 2012, members of ENT
illegally possessed firearms. Austin admitted that he had previously committed
residential burglaries (although in 2009 and therefore prior to the formation of ENT).
Austin acknowledged that he made $20,000 from criminal activity in the three months
after he was released from prison in 2012. Based on Austin’s admissions of having
committed prior burglaries, a reasonable juror could infer that Austin got that money
from burglaries, rather than by pimping, as Austin had testified. The jury heard about
Austin’s phone conversation in which Austin told the other person he was lucky that
“they” were not the ones to shoot the other person because, if they had, he would be dead.
62
The jury heard about Jefferson’s conviction in 2012 for carrying a firearm in a public
place. The jury was also entitled to consider the charged offense, which included a
residential burglary. Therefore, Austin cannot show prejudice from defense counsel’s
failure to object to the basis of Bruce’s conclusions about ENT’s primary activities.
The record contains substantial evidence that ENT’s “primary activities” on
November 29, 2012, were the commission of residential burglaries and assaults with a
firearm, thus fulfilling the requirements of the STEP Act. (See § 186.22, subd. (e)(1) &
(11).) Austin has not persuaded us that his due process rights were violated by the
evidence the prosecution elicited to support the primary activities element of the gang
enhancement.
5. Evidence of ENT as a Criminal Street Gang
Austin argues that Bruce’s testimony that ENT was a criminal street gang violated
his Sixth Amendment rights because Bruce’s opinion was based on testimonial hearsay in
the form of booking statements and on investigations performed by others. The Attorney
General counters that Austin has no standing for his claim about booking statements, and
Austin has not shown that Bruce relied on testimonial hearsay in forming his opinion that
ENT is a gang.
With respect to booking statements, Bruce testified that the two jails in Alameda
County house members of the same gang together. Bruce had participated in the booking
process in these jails and had heard others ask questions of inmates about gang
membership. Bruce knew that ENT is one of the groups whose members would be
housed together in these jails. In response to the prosecutor’s question, “Does that it any
way form your opinion about whether you believe ENT is [a] gang?,” Bruce responded,
“It does.” Austin contends that this evidence violated his rights under the confrontation
clause.
We agree with the Attorney General that Austin has no standing to raise potential
violations of others’ privilege against self-incrimination. (People v. Leon (2016) 243
63
Cal.App.4th 1003, 1016.) Although Austin may retain a due process right to assert a
violation of his right to a fair trial through the admission of improperly obtained
statements (ibid.), we find no such violation here.
The evidence to which Austin objects amounts to an assertion that the Alameda
County jails house ENT members together. Given the overwhelming evidence that ENT
was a criminal street gang at the time Austin committed the crimes in this case—
including Austin’s own admission that ENT is a gang—any due process or confrontation
clause error implicated by this limited testimony is harmless beyond a reasonable doubt.
(See Chapman, supra, 386 U.S. at p. 24.)
Austin also contends that Bruce’s opinion that ENT was a gang in November 2012
impermissibly relied on testimonial hearsay based on surveillance of ENT gang members,
information derived from the 2013 wiretap investigation, and field identification cards
that Bruce created for his contacts with Austin. Austin, however, does not demonstrate
that in rendering his opinion Bruce relied on information secured by others.
A gang expert may testify about case-specific facts that he has personal knowledge
of without violating the confrontation clause. (Vega-Robles, supra, 9 Cal.App.5th at
p. 413.) Bruce personally conducted much of the investigation into ENT. Austin does
not point to any particular statement made by Bruce that relied on testimonial hearsay.
We will not infer an error under the confrontation clause where the basis and extent of
Bruce’s knowledge are unclear because defense counsel did not seek clarification through
cross-examination. (Anthony, supra, 32 Cal.App.5th at pp. 1139–1140.) We conclude
that Austin has not demonstrated any violation of his confrontation clause or due process
rights arising from Bruce’s testimony that ENT is a criminal street gang. In any event,
Austin cannot show any prejudice from defense counsel’s failure to object to the basis of
Bruce’s conclusion. Austin’s own testimony contained all of the elements from which
the jury could infer that ENT met the definition of a criminal street gang.
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6. Prejudice
Austin contends that, given the “large volume” of evidence admitted in violation
of the confrontation and due process clauses, the “State cannot show the gang
enhancement true findings were not attributable to the errors.” As described above, we
have not found a large volume of evidence erroneously admitted. Instead, we have
concluded only that admission of Flenaugh’s record of conviction to prove the date on
which Flenaugh committed the prior offense violated the confrontation clause. We now
consider whether Austin was prejudiced by that error.
We review violations of the confrontation clause for harmless error using the
Chapman standard. (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 912.) “A
violation of the Sixth Amendment’s confrontation right requires reversal of the judgment
against a criminal defendant unless the prosecution can show beyond a reasonable doubt
that the error did not contribute to the verdict obtained.” (People v. Pettie (2017) 16
Cal.App.5th 23, 64.) “ ‘ “ ‘To say that an error did not contribute to the ensuing verdict
is . . . to find that error unimportant in relation to everything else the jury considered on
the issue in question, as revealed in the record.’ ” ’ ” (People v. Pearson (2013) 56
Cal.4th 393, 463.)
In considering whether the People proved beyond a reasonable doubt ENT’s
pattern of criminal activity, the jury was not limited to the predicate crimes introduced
through Bruce, the prosecution’s gang expert. (See People v. Lara (2017) 9 Cal.App.5th
296, 332.) The jury also could have considered the commission of the charged offense
by Drummer if sufficient evidence supports a conclusion that Drummer committed a
predicate crime. We conclude there was sufficient evidence.
A reasonable juror could conclude beyond a reasonable doubt that Drummer was a
member of ENT based on his tattoo “ENT.” In addition, Drummer’s social media
accounts contained references to ENT and at least one photo of ENT member Ronny
Flenaugh. The jury heard from Fritz that Drummer was present for the planning of the
65
robbery charged in the current offense; Drummer asked whether the house had gold in it;
Drummer told Fritz the following day that “shit went bad,” referring to the death of
Raveesh; and Drummer and Austin “got rid of everything” connected to the robbery. The
jury could therefore conclude beyond a reasonable doubt that Drummer had committed a
robbery simultaneously with Austin’s commission of the charged offense. Drummer’s
commission of the offense of robbery could serve as one of the two predicate offenses
required by the STEP Act.44 (See Loeun, supra, 17 Cal.4th at p. 10; § 186.22, subd.
(e)(2).) With respect to the second predicate, we have already determined that
Jefferson’s conviction for carrying a loaded firearm was properly admitted as a predicate
offense, and Austin has not argued that that conviction did not occur. Austin himself
admitted that, in 2012, members of ENT illegally possessed firearms.
In addition to Drummer’s commission of robbery, Austin’s own commission of
robbery could serve as a predicate offense.45 (People v. Ochoa (2017) 7 Cal.App.5th
575, 584–586; Loeun, supra, 17 Cal.4th at p. 10.) The jury heard substantial evidence
that Austin was a member of ENT. Austin had “ENT” and “Stubby” tattooed on his
body. Austin founded ENT. A drawing created by a current ENT member stated “Free
my brudders” and included “Sunny D” (Austin’s nickname) in the list of names. The
gang expert frequently saw Austin with other members of ENT, and the prosecution
introduced into evidence photos and videos of Austin with other ENT members.
44
Austin’s jury was instructed in relevant part that “A pattern of criminal gang activity,
as used here, means: [¶] 1. The commission of, or conviction of, any combination of
two or more of the following crimes, or two or more occurrences of one or more of the
following crimes: Robbery, Carrying a Concealed Firearm, CArrying [sic] a Loaded
Firearm, Carjacking, Auto Burglary.” It is not clear from the record why the jury was not
also instructed that burglary of a home could also serve as a predicate offense.
45
Although Austin argues that his own conduct cannot serve as a predicate offense
because the jury instruction on predicate offenses did not require the jury to find that the
predicate crimes were committed by gang members, given the overwhelming evidence
that Austin was a member of ENT, any instructional error on this point was harmless
beyond a reasonable doubt.
66
Although Austin denied that he was a member of ENT when ENT was a criminal street
gang, the jury was entitled to, and clearly did, reject Austin’s testimony on this point
when it found the gang allegations true.
Further supporting the jury’s conclusion that ENT was a criminal street gang,
Austin admitted that, when he was in ENT in 2012, there were more than three people in
ENT, ENT had a common name, and some of the people in the group committed crimes.
Austin likened the rivalry between ENT and the Case gang to the rivalry between the
Norteños and Sureños.
In sum, the record contains significant evidence that ENT was a criminal street
gang in November 2012, including substantial evidence related to predicate crimes. The
confrontation clause error in admitting the Flenaugh conviction records to prove the date
of Flenaugh’s offense was harmless beyond a reasonable doubt.
We therefore reject all of Austin’s contentions that the jury’s findings on the gang
enhancements must be set aside either due to violations of the confrontation or due
process clauses or because of insufficient evidence.
C. Garcia’s Claims Regarding Senate Bill No. 1437
Garcia claims that recent modifications to the felony murder and the natural and
probable consequences doctrines effected by Sen. Bill No. 1437 apply to his case. Garcia
contends that the jury instructions regarding felony murder were therefore deficient, and
that the evidence was insufficient to establish his guilt for murder under the modified
law.
1. Procedural Background
After appellate briefing in this case was complete, the Governor signed Sen. Bill
No. 1437, which went into effect on January 1, 2019. Sen. Bill No. 1437 amended
section 189 to provide that a defendant who was not the actual killer or did not have an
intent to kill is not liable for felony murder unless he or she “was a major participant in
the underlying felony and acted with reckless indifference to human life, as described in
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subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3); Stats. 2018, ch. 1015, § 3, p.
6675.)
We granted Garcia permission to file supplemental briefing on Sen. Bill No. 1437.
Garcia argued for relief from his murder conviction under Sen. Bill No. 1437 on the
grounds of instructional error and insufficient evidence, because the prosecution’s theory
of his guilt relied on the felony murder rule.46 The Attorney General countered that
Garcia can only seek relief under Sen. Bill No. 1437 by first petitioning the trial court
under the process set out in section 1170.95. That section allows those “convicted of
felony murder or murder under a natural and probable consequences theory . . . [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95, subd.
(a).) Alternatively, the Attorney General argued that substantial evidence supported a
finding that Garcia was the actual killer, aided and abetted the actual killer, or was a
major participant in the robbery and acted with reckless indifference to human life.
On our own motion and pursuant to People v. Martinez (2019) 31 Cal.App.5th
719, 729 (Martinez), we stayed this appeal and remanded Garcia’s case to the trial court
for the limited purpose of conducting proceedings necessary to address any petition filed
by Garcia under section 1170.95. We directed Garcia to notify this court whether he
either had filed a petition in the trial court or had elected not to file such a petition and to
proceed with his appeal. Garcia subsequently filed a notice of his election to proceed
with his appeal, and we therefore vacated our stay and reinstated Garcia’s appeal.
46
The trial court instructed the jury on felony murder with CALCRIM No. 540A (which
addresses situations where the defendant allegedly committed the fatal act), and
CALCRIM No. 540C (which addresses situations where a person other than the
defendant committed the act that resulted in the death).
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2. Analysis
Garcia argues that Martinez was wrongly decided and that we should consider his
instructional and insufficiency claims in this appeal. We disagree.
Although Sen. Bill No. 1437 might mitigate Garcia’s criminal liability, it does not
support reversal of his murder conviction on direct appeal where Garcia has elected to
forego filing a section 1170.95 petition. As the Martinez court explained, when the
Legislature creates a procedure, such as that contained in section 1170.95, permitting
criminal defendants who have already been convicted to apply to reduce their criminal
liability, such convicted persons must follow the statutory procedure. If they choose not
to do so, on appeal we will not grant relief of a conviction otherwise valid under the prior
law. (Martinez, supra, 31 Cal.App.5th at pp. 724–729; accord Anthony, supra, 32
Cal.App.5th at pp. 1147–1158; see also People v. Munoz (2019) 39 Cal.App.5th 738,
749–753; People v. Lopez (2019) 38 Cal.App.5th 1087, 1113–1115; In re R.G. (2019) 35
Cal.App.5th 141, 151.) Garcia must therefore file a section 1170.95 petition in the
sentencing court to obtain any ameliorative benefits under Sen. Bill No. 1437, and he has
not done so. We therefore do not address the merits of any of Garcia’s claims under Sen.
Bill No. 1437.
D. Garcia’s Challenges to the Accomplice Instruction and Evidence
Garcia raises two claims related to Austin’s testimony based on his contention that
Austin was his accomplice. First, Garcia argues that the trial court neglected its sua
sponte duty to instruct the jury that Austin was an accomplice as a matter of law whose
incriminating testimony required corroboration and should be viewed with caution.
Second, Garcia contends that there was insufficient corroboration of Austin’s testimony.
Because of overlap in the analyses of these claims, we address them together.
The trial court instructed the jury that Fritz (Austin’s sister) was an accomplice as
a matter of law using CALCRIM No. 335. The court did not instruct that Austin, too,
was an accomplice as a matter of law, or that accomplice testimony must be corroborated
69
when there is a dispute whether a witness is an accomplice (CALCRIM No. 334). None
of the parties objected to the accomplice instruction or requested modifications to it.
Section 1111 provides: “A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof. [¶] An
accomplice is hereby defined as one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.”
The parties dispute whether the trial court had a sua sponte duty to instruct that
Austin was an accomplice. Garcia argues that People v. Avila (2006) 38 Cal.4th 491
(Avila) and People v. Terry (1970) 2 Cal.3d 362, overruled on another point in People v.
Carpenter (1997) 15 Cal.4th 312, 381–382, required the trial court to include Austin in
the accomplice testimony instruction (CALCRIM No. 335). In Avila, the Supreme Court
explained that, “generally, instructions on accomplice testimony must be given on the
court’s own motion only when the accomplice witness is called by the prosecution or
when a defendant, in testifying, implicates his codefendant while confessing his own
guilt.” (Avila, at p. 562.)
The Attorney General responds that, under People v. Box (2003) 23 Cal.4th 1153
and People v. Hill (1967) 66 Cal.2d 536, the trial court was not obligated to instruct the
jury concerning Austin’s testimony absent a request from Garcia. The Attorney General
reasons that, since Austin did not shift blame to Garcia and Garcia denied his own guilt, it
is inappropriate to require an accomplice instruction because it could be construed as
imputing Austin’s guilt to Garcia.
We need not decide whether the trial court erred by failing to instruct the jury
regarding Austin’s testimony because Garcia cannot demonstrate prejudice for any such
error. Even if there was a sua sponte obligation to instruct on accomplice testimony, the
70
failure to so instruct is harmless if there is sufficient corroborating evidence connecting
Garcia to the commission of the crimes. (People v. Gonzales and Soliz (2011) 52 Cal.4th
254, 303 (Gonzales and Soliz).)
“To corroborate the testimony of an accomplice, the prosecution must present
‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the
crime charged’ without aid or assistance from the accomplice’s testimony.” (Avila,
supra, 38 Cal.4th at pp. 562–563.) “Corroborating evidence is sufficient if it tends to
implicate the defendant and thus relates to some act or fact that is an element of the
crime.” (Id. at p. 563.) “ ‘Corroborating evidence may be slight, may be entirely
circumstantial, and need not be sufficient to establish every element of the charged
offense.’ ” (Gonzales and Soliz, supra, 52 Cal.4th at p. 303.) In determining whether
there is sufficient evidence to corroborate the accomplice’s testimony, we must view the
evidence in a light most favorable to the judgment. (People v. Garrison (1989) 47 Cal.3d
746, 774.)
Here, there was ample corroborating evidence connecting Garcia to the crime,
independent of Austin’s testimony. Garcia’s DNA was found on five latex gloves
recovered from Harinder and Raveesh’s kitchen. Garcia’s cell phone was in the vicinity
of Harinder and Raveesh’s residence at the time of the robbery. Fritz testified about
Austin’s statement that his “partner” from Ghost Town was joining in the crime. Austin
did not testify about any of these subjects, and thus this evidence is independent of his
testimony.
Moreover, we are not persuaded by Garcia’s arguments that the DNA and cell
phone evidence were rendered insubstantial by Garcia’s purportedly “reasonable and
plausible explanation for this circumstantial evidence placing him at the crime scene.” In
support of this point, Garcia relies principally upon People v. Robinson (1964) 61 Cal.2d
373. In Robinson, the Supreme Court rejected the contention that Robinson’s fingerprints
in his cousin’s car constituted sufficient corroboration to render the failure to give an
71
accomplice instruction harmless. The Supreme Court stated, “[t]o hold that the presence
of those prints connects him with the commission of the crime is tantamount to saying
that the fingerprints of any relative of a person known to have committed a crime, found
on the automobile of such person, tends to connect the relative with the crime, even
though it is known that the relative has had the opportunity to be in and out of that car on
various occasions other than during the commission of the crime.” (Id. at p. 399.) As
this passage makes clear, Robinson does not stand for the proposition advanced by Garcia
that any plausible exculpatory explanation for incriminating evidence vitiates its
corroborative effect. In contrast to fingerprints found in a relative’s car with whom one
socializes frequently (id. at p. 398), Garcia’s DNA and phone were at or near a house
located in a city that, according to his own testimony, Garcia had never visited. Under
those circumstances, Robinson does not counsel that we should ignore this independent
evidence as corroborative of Austin’s testimony.47
Viewing the evidence in the light most favorable to the judgment, the record
supports a reasonable inference that Garcia was at Harinder and Raveesh’s residence and
participated in the commission of the crime. There is sufficient corroboration of Garcia’s
guilt independent of Austin’s testimony. (See People v. Williams (2013) 56 Cal.4th 630,
679.) Accordingly, we conclude that any error in failing to instruct with CALCRIM No.
335 regarding Austin’s testimony was harmless.48
47
We are also skeptical that the jury found Garcia’s exculpatory explanation “reasonable
and plausible.” Garcia testified that his cell phone was at Harinder and Raveesh’s house
because his cousin Rodriguez had committed the robbery and had borrowed Garcia’s
phone because Rodriguez’s phone was not working. However, none of Rodriguez’s
DNA was found at the scene of the robbery, and the records of Garcia’s cell phone
showed two calls to Rodriguez’s phone on the night of the robbery.
48
We also reject Garcia’s claim tha
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