The People v. Gutierrez CA5 (2013) · DecisionDepot

The People v. Gutierrez CA5

Name: California Superior Court Tentative Rulings
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California Court of Appeal Aug 26, 2013 No. F062970Unpublished

Filed 8/26/13 P. v. Gutierrez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F062970 Plaintiff and Respondent, (Super. Ct. No. 1246306) v.

RAY GUTIERREZ, JR., et al., OPINION Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Ray Gutierrez, Jr. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Alvaro Leal Saldana, Jr. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Defendants Ray Gutierrez, Jr., and Alvaro Leal Saldana, Jr., stand convicted, following a jury trial, of first degree murder (Pen. Code,1 § 187, subd. (a)), during the commission of which a principal personally and intentionally discharged a firearm and proximately caused death (§ 12022.53, subds. (d) & (e)(1)), and which was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Following a bifurcated court trial, each was found to have suffered a prior serious felony conviction that was also a strike. (§ 667, subds. (a) & (d).) Each was sentenced to a total term of five years plus 75 years to life in prison and ordered to pay restitution and various fees, fines, and penalties. Both appeal. We affirm the judgments. FACTS I PROSECUTION EVIDENCE On March 22, 2008, Tommy and Eloisa Gonzales were married in Turlock.2 Roger Villanueva, whose nickname was “Smoke da Villain,” was one of the groomsmen. His girlfriend, Irma Bernal, was a bridesmaid. Members of the wedding party wore red and white. The wedding reception was held at the Grange Hall in Hilmar. More than 100 people attended. In keeping with the wedding party‟s color scheme, the color red predominated in their clothing. Entertainment at the reception included a group of Eloisa‟s friends who called themselves Spit Flame and who rapped and sang. Villanueva and Rene Zarate (“Bullet G”) were among the group‟s members.3 1 All statutory references are to the Penal Code unless otherwise stated. 2 Except as otherwise specified, references to dates in the statement of facts are to the year 2008. For the sake of clarity, and because sometimes last names were not given, we refer to several persons by their first names. No disrespect is intended. 3 One of the group‟s founders Moses Rodriguez (“Rap Addict”), had been shot and killed in the “Woods” area of Turlock about a year earlier. Eloisa was godmother to his son.

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where he was buried, then gone to the house on Angelus. Villanueva was one of those at the cemetery. Eloisa went to the grocery store, then returned to the duplex. By the time she got back, more people — including defendants — had arrived. They and at least seven people were standing against the fence of an abandoned house next to the duplexes. Defendants both were wearing black T-shirts. Gutierrez had on a hat. A chunky, Hispanic male appeared to be in their company. Villanueva and Darnell Lambert drove up and parked across the street, then walked up to the group of men. Villanueva told Saldana that he wanted to “squash it” (let it go) and did not want any problems with “them,” but, when Villanueva extended his hand, Saldana refused to shake it. Eloisa saw the look on Saldana‟s face; it was angry and he was grinding his teeth. He stayed like that until he turned away. Villanueva — who was considerably larger than Saldana — followed him to the backyard of the abandoned house. None of the other men went with them. As Villanueva went toward the back, he took off his Oakland A‟s hat and jacket (underneath which he was wearing a white T-shirt) and hung them on the fence. He also removed a thick chain with a cross that he wore all the time. Eloisa did not see where he put it. Concerned, Eloisa yelled at Lambert to do something, and not to let them go to the back. Lambert responded that it was going to be fine, as they were just going to talk out whatever it was. Eloisa then yelled for Tommy. Tommy was at his father‟s house, which was on the other side of the abandoned house.7 He came out onto the front porch and told Lambert to go back there. Meanwhile, Gutierrez was pacing quickly back and forth by the fence. Saldana and Villanueva moved out of Eloisa‟s sight. While Lambert was responding to Tommy, Gutierrez ran to the back. Eloisa lost sight of him, then, within seconds, she heard 7 The abandoned house was between Brandy‟s duplex and Tommy‟s father‟s house.

multiple gunshots fired in rapid succession from a single gun. As soon as the shots stopped, she saw defendants run down Angelus Street. She ran toward the back and found Villanueva bleeding to death on the ground. Eloisa did not think the shooting was gang related. She did not see anyone flash gang signs or any indication of gang activity. She was aware that the color red was associated with Norteños. She was also aware defendants were members of Varrio West Side Turlock or Turlocos, a Norteño gang that claimed the color red and number 14. Eloisa denied Tommy was a Norteño; she chose red accents for her wedding colors because Tommy‟s birthstone is red garnet. At approximately 6:10 p.m. on May 25, Turlock police received a report of the shooting. Sergeant Morgan and Officer Ramon were the first to respond, arriving at the scene within a minute or two of being dispatched. At least 50 to 70 hostile people were in the street, yelling and pointing toward the back of an apartment complex. In the back were a few people and Villanueva, who appeared to be dead. Eloisa was angry and yelling that it was not right. Morgan made contact with her, but Tommy tried to hush her and told her that she did not see anything. Morgan tried to talk to Tommy, but Tommy said he did not see anything. Tommy said he and Eloisa had been inside his father‟s home next door. Morgan had had prior dealings with Tommy and considered him a gangster. From working in the area for 20 years, Morgan considered Angelus Street in this part of town to be the heart of Turlock‟s gang area. Morgan was also familiar with the “Woods,” a part of Turlock in which many of the street names ended with “wood.” He believed, but was not positive, it was Sureño territory. Morgan was familiar with the Moses Rodriguez homicide. No one was ever apprehended; it was deemed at the time possibly to be self- defense. An autopsy revealed multiple bullet wounds, including five entrance wounds, to Villanueva‟s body. Some were from front to back, while others were from back to front.

channel, who usually has communication to the streets. The highest person at the county level is the overall, who is in charge of all three county facilities. The “14 Bonds” are rules and regulations used by the Norteños to keep everyone in line. Norteños take the 14 Bonds and household policies (which vary, depending upon the facility) “very seriously, serious [enough] to kill for.” A Norteño who does not follow the rules is “subject to discipline up to death.” Fear and intimidation are how Norteños keep each other in check; someone not following the rules is subject to discipline at the discretion of the person in charge. A removal occurs when an inmate is no longer welcome in the gang due to his rule violation(s), and so his face will be sliced to leave a scar. No matter where he goes within any custodial facility, a background check will be done to determine why he was removed. Once an active Norteño gang member is booked into the jail, he will be placed “on freeze.” This means he cannot hold any position, no information is supposed to be filtered through him, he is not supposed to have access to wilas, and he cannot participate in education or exercises or program with the active Norteños. The rules of the gang require that the new arrival report his incarceration to the gang higher-ups by filling out a new arrival questionnaire, which is given to the group leader and from there moves up the chain of command. This allows the gang to do a security check by channeling the information from the questionnaire to the streets and prisons, to find out if there is any negative information about the new arrival. If the information shows anything for which the new arrival could be removed and he was not cleared, then the new arrival will be assaulted or even killed. The new arrival will be on freeze until the security check is run and he is cleared and in good standing. A Norteño dropout is supposed to be assaulted (with weapons, if available) and even killed on sight. A dropout is considered a degenerate who is worse than a child molester. If an active member knows someone to be a dropout and has access to that person, the active member is to assault the dropout. If an inmate is labeled a degenerate,

this shows he was once a Norteño gang member and has stepped away from the organization. To a Norteño, a Norteño dropout is probably the worst thing someone can be. If an active gang member associates with a dropout (something that does not happen in custody, but does occur out on the streets) and is identified by another active member as doing so, the person who was associating with the dropout will have to explain why he did so and will usually have to “put in work” to clear himself and get back in the organization‟s good graces. Coming to the aid of a dropout who was fighting with an active Norteño would be a very severe rule violation, because it would be considered aiding the enemy “against your homeboys.” “Red-on-red violence” refers to when a Norteño assaults another active Norteño. It is not activity that is sanctioned by the gang, as Norteños are supposed to stick together. Red-on-red crime is seen as weakening the organization. Accordingly, in order for a Norteño to remove another active Norteño, he has to have clearance from higher up the chain of command. If he removes or assaults another active Norteño without clearance, he himself will be subject to removal. In Teso‟s experience, if there is red-on- red violence that is not cleared beforehand or sanctioned from above, the people responsible will have to write a report and explain their actions. That information will get channeled to the prisons, and the prison shotcallers will determine if the perpetrators will remain in good standing in the gang. If it is determined the removal was a bad one, the perpetrators will be disciplined for their actions and possibly removed themselves. Insofar as the wilas seized following the fight were concerned, Teso knew Steven Ramirez to be tier security of the east quarters of the county jail. The east quarters housed Norteños. Manuel Nunez was the overall, meaning the person in charge, or shot caller, of all three county facilities. Two new arrival questionnaires were among the 60-plus wilas related to this case. One was written from “Tito” to “La Casa,” which refers to the stronghold or household of the Norteños. It was dated June 14; defendants were both booked into the jail on June 12,

and it generally takes a day for a new arrival to complete and submit a new arrival questionnaire. The wila gave information such as full name, booking number, date of birth, physical description, and tattoos, all of which corresponded to the information Teso had about Saldana. As of June 14, Saldana was an active Norteño; however, as with all new arrivals, he was placed on freeze. Teso surmised he was cleared not long after his arrival, because Teso found his name on an active tier roster, which is a list of all active Norteño gang members in custody and where they are housed. As of March 2011, when Teso testified, Saldana was still housed with the active Norteños, which would not have been the case if officers had received information he was in bad standing and subject to removal. The other wila, which was dated June 15, was also addressed to La Casa. It gave a name, nickname (“Ramo”), date of birth, booking number, physical description, and tattoos, all of which corresponded to the information Teso had about Gutierrez. In the wilas, defendants both gave their town as Turlock, and their “hood” as VWST, meaning Varrio West Side Turlock. Neither wila stated what happened in the backyard with respect to Villanueva. During his career, however, Teso had reviewed thousands of wilas written by Norteños, and he had never read one in which the gang member confessed to the crime that put him in custody. According to Teso, fear and intimidation are “hallmarks” of the Norteño criminal street gang. They keep their members in line through fear and intimidation on the streets and in the neighborhoods, plus citizens are reluctant to cooperate with law enforcement because of fear of retaliation from the gang. Fear and intimidation create a reputation for the gang, and the gang benefits because the fear and intimidation allow gang members to carry on with their criminal activity. Reputation is important for a gang, as it intimidates other gangs and allows the gang to establish control over a specific area, for example, for drug sales, while making it less likely a rival gang will attempt to infringe on that area. Fear and intimidation among the ranks of Norteños benefits the gang as a whole, because

all members benefit from the gang‟s reputation, even in prison. If a gang is known in the prison system as being weak, it will be victimized by other gangs. If a gang has a strong reputation, it will be easier for that gang to recruit new gang members and build the gang stronger in numbers. Investigator Froilan Mariscal of the district attorney‟s office also testified as a gang expert. He had been raised in Modesto and exposed to the Norteño criminal street gang from childhood. He had training and experience with respect to Hispanic gangs, primarily Norteños and Sureños. Mariscal explained that the Norteño criminal street gang is a large organization with approximately 3,000 to 4,000 documented members in Stanislaus County as of May 2008. Depending on the neighborhood, it may break up into little subgroups or subsets of more tightly knit gang members who claim a particular neighborhood as their own and use a certain name for that neighborhood. For example, Deep South Side Modesto and OGL, South Side Modesto are both groups of Norteño gang members, and they unify under the Norteño organization, the color red, and the number 14. Because they are from different neighborhoods, however, they use different names. “Turloco” — a combination of “Turlock” and “loco,” Spanish for “crazy” — is a word Norteño gang members in Turlock adopted for themselves. Varrio West Side Turlock, which goes by the acronym VWST, is the primary Norteño gang in Turlock. Angelus Street is a very active location for Norteño gang activity in Turlock. Based on his personal involvement with hundreds of investigations of gang crimes, Mariscal opined that as of May 2008, the primary activities of the Norteño criminal street gang were murders, attempted murders, assaults, drug dealing, robberies, car thefts, burglaries, various crimes associated with weapons violations, and various crimes associated with narcotic violations. The Norteño gang had a reputation for being violent within its own gang, and also in the eyes of rival gangs and communities as a whole.

According to Mariscal, gangs thrive through fear and intimidation. Those are hallmarks of the Norteño criminal street gang. Respect is a big issue for gang members. They want to be respected, and to them, the more someone fears them, the more they are respected. Instilling fear and intimidation in others equals respect to them. For a known dropout physically to assault an active gang member in the presence of other gang members is “an ultimate sign of disrespect.” A dropout is considered “lower than scum” and the enemy of the gang. In Mariscal‟s experience, the only way an active gang member can rebound from that is to respond “with ultimate violence” against the dropout. If he does not, he will be viewed as weak. He has to prove he is still worthy of being in the gang and can respond with violence when confronted with violence. Because the Norteño gang thrives off of the fear and intimidation coming from violent acts within the gang, if there are members who are not willing to participate in violent acts or to prove their violent tendencies, especially after being disrespected, the gang and its reputation fall apart. The gang will not be able to function and commit the crimes that allow a gang to thrive. Villanueva had gang tattoos, but also had a tattoo reading “Bidnezz First.” This was consistent with the contents of the Saldana wila, which stated that the author did not know if the person he was accused of murdering was active or nonactive, but that on several occasions he promoted himself as a degenerate: He was known for hanging around with inactive individuals and, when confronted about the people with whom he associated, made comments about how he was all about his money and the homies did not put money in his pocket. Nothing in his investigation led Mariscal to believe Villanueva was a Norteño dropout. Rather, investigation showed he was an active gang member at the time of the wedding and the date he was shot. Mariscal had information Villanueva was in trouble with the gang at the time he was killed. Although he was still an active gang member at that point, the fact he came to the aid of a dropout (Perez) against active gang members two months earlier at the

turned toward her, but one, who was wearing a white shirt and hat, was taller and chunkier than the other. The two started shoving each other while the people around them just watched and egged them on. The two then went into the backyard of the vacant duplex. They went by themselves, with the bigger man walking first, but after a few minutes about 20 people went back with them. At that point, Alicia returned to her apartment. She could hear them continuing to argue, and she saw them pushing and shoving each other. They were almost to the end of the backyard, close to the alley. The people who followed them back were closer to the front of the duplex. They were watching, but making no effort to stop the altercation. The pushing went on for a couple of minutes. Alicia could see fists going up. She did not see anybody with a weapon, although she did see one of them reach into his waistband area. She did not know which one. The fighting went on for a couple of minutes, then she heard gunshots. She heard one shot, then a half-second pause, then another shot, and “then they were on top of each other.” Then there was a longer pause and a final shot. She believed she heard at least five or six shots altogether. During the course of his investigation at the scene of the shooting, Detective Tosta found bullets and bullet holes in the south fence line of the property. They ranged from 15 to 27 inches above the ground, and from 13 feet 9 inches to 18 feet 6 inches west of the east fence line. There were also several bullets, bullet holes, and ricochet marks in the building directly south, across the alley from the fence. They ranged from four feet to nine feet three inches above the ground. On May 28, Detective Bertram interviewed Debbie Dunuan (Villanueva‟s mother) and Irma Bernal. Both concluded Tommy had some complicity in Villanueva‟s death due to numerous telephone calls Tommy made to Villanueva, insisting he come to the barbecue. During the neighborhood canvas that was conducted after the shooting, however, several residents reported overhearing individuals present at the party say

defendants were the ones responsible for shooting Villanueva. Even those who suspected Tommy was involved clearly identified defendants as being “the responsibles.” Tapia‟s story about what happened evolved and changed during the course of his interview with Bertram and Bunch. When Bertram and Bunch went to Tapia‟s house, they discovered he had lied about where the gun had been stored. They did not discover anything to change Tapia‟s assertion Gutierrez had the firearm when he went to the location of the shooting, however. Gunsmith Paul Mangelos testified as an expert on firearms in general and Glocks in particular. He explained that a .40-caliber Glock is a semiautomatic firearm, meaning it has a clip or magazine; and ejects a spent shell, feeds in a new cartridge, and fires a bullet each time the trigger is pulled. Changing one part on the gun makes it fully automatic; conversion kits are available on the Internet, although converting the gun to fully automatic is not legal in California. With a fully automatic firearm, one trigger pull may fire multiple rounds. A fully automatic Glock can fire approximately 1,200 rounds per minute, meaning it should fire 13 shots in less than a second. While firing, the gun will be hard to control and will be moving due to recoil. Someone hearing a fully automatic Glock being fired will not be able to determine how many rounds were fired. Gutierrez, who was 31 years old at the time of trial, testified that he had been acquainted with Perez for about 25 years. The two had a hostile relationship, because Perez had molested Gutierrez‟s cousin when she was about seven years old. As a result, Gutierrez and Perez had had a number of fights, most of which were won by Perez. These had nothing to do with a gang. Gutierrez attended Tommy‟s wedding reception. A lot of his family members were there, and they all were talking and having a good time. It was kind of hot inside the Grange Hall, so at some point, defendants went outside to get some fresh air. Perez, Villanueva, and possibly more men approached. Prior to this time, Villanueva and Gutierrez had had some problems. Villanueva had

“pretty much acted stupid toward[]” Gutierrez, although Gutierrez did not know why. Also prior to this time, Gutierrez had been in a lot of fights, mostly because of the people with whom he associated. At the time of the wedding reception, he was affiliated with a Norteño gang, as were Villanueva and Perez. Gutierrez was not angry at Perez about whether he was in or out of a gang; that had nothing to do with anything. Perez approached Gutierrez and asked to talk to him, indicating kind of toward the back. Gutierrez was willing to go with Perez even though he did not think they were going to talk, but Saldana said no, that they could talk right there. Perez then punched Gutierrez in the face. Gutierrez stumbled back, then got up and started fighting with Perez. At some point, Gutierrez saw Saldana on the ground. Villanueva kicked Saldana in the face while Saldana was down. Saldana did not appear to be conscious. Gutierrez and Perez continued fighting, and a large group of people surrounded them. Tommy and Eloisa then came out and broke it up. Eloisa was upset and accused Gutierrez of disrupting her wedding. Saldana had been down for two or three minutes; Gutierrez helped him up and they both left. They were already gone by the time the fight started across the street. They had been at the reception for two to three hours when they left, during which time they had had no problems with Perez and Villanueva. Gutierrez considered this “just another fight”; he was not out for revenge afterward, despite what happened to Saldana. Gutierrez did not see Villanueva, and was not looking for him or Perez, between the date of the wedding reception and the day of the shooting. He did not even know Villanueva was in town. As of the day of the shooting, Gutierrez was living with his mother on the north side of Turlock, across town from Angelus Street. He did not own a .40-caliber Glock, and never left a gun with Tapia. He did leave some marijuana at Tapia‟s house, however, because Gutierrez‟s mother would not allow it at her house. The marijuana was about the size of a brick, and was wrapped with plastic wrap inside cloth. Gutierrez took it to Tapia‟s house about a week before picking it up.

Gutierrez had been friends with Moses Rodriguez, but he did not know about or attend the celebration at the cemetery. He contacted Tapia because he had a buyer for the marijuana and wanted to pick up the package. The plan was for defendants to pick it up, then go to Ranch Burger, a restaurant off Lander, where they would meet the buyer and also get something to eat. Tapia lived on Angelus Street, about three blocks from where the shooting took place. On the way there, defendants did not discuss Villanueva and had no plans to confront him. Defendants picked up Tapia in the white Nissan, which was registered to a relative of Gutierrez‟s wife, but on which Gutierrez had taken over the payments. Gutierrez was driving. Gutierrez remained in the car; he had telephoned Tapia earlier, and Tapia came out with the marijuana. Tapia did not provide Gutierrez with a gun, and Gutierrez did not show one to Tapia. Saldana did not have any gun that Gutierrez saw. There was no discussion about Villanueva. Once Tapia got in the car, the plan was to go eat at Ranch Burger, which was about half a mile to a mile away. As they drove down Angelus, they saw 70 to 80 people in the street and in front of the houses. When Tapia saw Tommy, he told Gutierrez to stop. He said he wanted to see if Tommy had any new Jordans. Gutierrez pulled over. Tapia got out of the car and went toward the carport, where Tommy was located. Defendants also got out. Alcohol was being served, and Gutierrez accepted the offer of a beer. Defendants were not angry; Gutierrez did not see Villanueva. Defendants stood by the opening in the fence, watching two men play dice on the sidewalk. The plan was for Tapia to look at the shoes, then he and defendants would go on and eat, and Gutierrez would get rid of the marijuana. They had been there for about five to 10 minutes when Gutierrez noticed Villanueva approaching. Villanueva was wearing a jacket; he took it halfway off, then a light-complected Hispanic male stopped him and they argued a bit. Gutierrez did not know who the man was. The man was telling Villanueva just to let it go, that it was not the time or place.

Villanueva went up to Gutierrez and said, “Let me holler at you.” Villanueva did not exchange words with Saldana or offer to shake hands. Gutierrez did not believe it was going to be a friendly talk, but he said, “All right.” Villanueva then walked through the gate and Gutierrez followed. Gutierrez thought there would probably be a fight. He did not hear anyone yell at Darnell Lambert. About 25 or 30 people followed them into the backyard. Villanueva handed his hat and jacket to someone. He then turned around and rushed Gutierrez. Villanueva swung at Gutierrez, so they started to fight. There were no words exchanged, either out front or in the backyard. Gutierrez did not know where Saldana was at that point. No one tried to separate the combatants. Gutierrez and Villanueva fought for a minute, then Gutierrez turned away, although he did not completely turn his back on Villanueva. He was worried about what the people behind him, many of whom he did not know, might be doing. Gutierrez and Villanueva were both breathing hard from trading punches. Gutierrez, who was unarmed, thought Villanueva was trying to catch his breath, but the next he knew, he looked up and there was a pistol in his face. Gutierrez did not know from where Villanueva had produced the gun, but he feared for his life and so he grabbed it. Villanueva had his finger on the trigger at the time. The two men wrestled for the gun, and Gutierrez fell over a shopping cart. He went down on his back, and Villanueva fell on top of him. They landed hard, and the gun came loose. Both men got to their feet and went for it. Gutierrez bent down, and as he was picking it up, Villanueva kicked him in the face. Gutierrez‟s finger was on the trigger when he got kicked, and he unintentionally fired. He did not mean to shoot Villanueva. Gutierrez only pulled the trigger one time, but bullets came out “kind of like a machine gun.” There was no pause between any of the shots. Gutierrez could not control the gun, which was going off as it was being raised. Villanueva turned and fell.

repercussions such as discipline. However, Gutierrez would not necessarily be looked on as a coward or as letting the gang down if he let a degenerate punch him in front of other gang members and then just walked away. Gutierrez denied that either the fight at the wedding reception or the shooting had anything to do with a gang. Perez molested Gutierrez‟s cousin when she was seven years old, 20 years or more ago. A known child molester cannot affiliate with Norteños, but only the family was aware of the molestation. Villanueva previously threatened Gutierrez‟s family and pulled guns on him. The information contained in the wila concerning what Villanueva had done was accurate. It was not Gutierrez‟s attempt to clear himself for an unauthorized killing of a Norteño; he did not feel threatened in any way by the Norteño gang after killing another Norteño without authorization from the gang. Saldana testified that he was 26 years old at the time of trial and had lived with Gutierrez all his life. He did not have a good memory of what happened at the wedding reception, because he was knocked out. He recalled Gutierrez and Perez having words outside the reception hall, and Perez saying to Gutierrez, “Let‟s talk,” and motioning with his head. Saldana told Gutierrez that if Perez had something to say, he could say it right there. Because of past problems, Saldana assumed they were going to fight, and he did not think they should be fighting right then and messing up Tommy‟s wedding. Saldana recalled there being a fight between Gutierrez, Perez, and Villanueva, but did not remember who threw the first blow or how long he himself was unconscious. He just remembered walking to the car afterward and leaving. In May 2008, Saldana was living on Geer, in Turlock, with his wife and son. On May 25, he went to his mother‟s house and did some yard work for her. He then drove with Gutierrez to Tapia‟s house. Saldana did not know anything about any marijuana until he saw the package and asked what was in it. There was no talk about the fight at the wedding reception or doing anything to Villanueva. Saldana did not even know if

Villanueva was in Turlock that day and knew nothing about any barbecue or anything going on at the cemetery. He did not conspire with Tommy or anyone else to try to get Villanueva to be at the barbecue. Saldana was not armed and did not see a gun possessed by anyone. After leaving Tapia‟s house, they were going to go eat at Ranch Burger off of Lander. They stopped on Angelus, however, because Tapia saw Tommy and wanted to see what new shoes he had. Tapia walked up to Tommy, while Saldana and Gutierrez got out of the car and walked over to where everyone else was, in front of the duplexes. Saldana did not recognize anyone there. Saldana had never had a physical encounter with Villanueva other than at the wedding reception. As he and Gutierrez stood by the gate, Saldana heard Villanueva arguing with a man Saldana did not know. The man told Villanueva to let it go. Villanueva was looking in the direction of Saldana and Gutierrez. Saldana and Villanueva did not speak to each other, but Villanueva told Gutierrez, “Let me holler at you,” and then walked into the backyard. There were 40 or 50 people around, and Saldana understood it to be a challenge to fight. He did not hear Eloisa yell anything. Gutierrez followed Villanueva into the back, as did people who had been standing there. As they walked to the backyard, Villanueva took off his jacket, hat, and chain. Everyone formed a circle around Villanueva and Gutierrez. Villanueva handed his stuff to someone, then turned around and rushed Gutierrez. Villanueva threw the first punch, then they started fighting. Saldana did not try to help Gutierrez, because it was one on one. Although Gutierrez was outweighed, Saldana was not afraid for him because Gutierrez could hold his own. No one else tried to intervene, but instead just cheered the fighters on. Villanueva was landing the most punches. There was a pause in the fight, then Saldana saw Villanueva pull a pistol from his waistband and put it in Gutierrez‟s face. Gutierrez quickly grabbed it. He and

As an initial matter, we are not convinced Tapia‟s statement to Bertram and Bunch was coerced. Cases involving the admissibility of a defendant‟s own statement are instructive. In that regard, the California Supreme Court stated: “The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. „[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.‟ [Citation.] „The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.‟ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 297-298.) “„“[M]ere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.” [Citation.] In terms of assessing inducements assertedly offered to a suspect, “„[when] the benefit pointed out by the police … is merely that which flows naturally from a truthful and honest course of conduct,‟ the subsequent statement will not be considered involuntarily made. [Citation.]” [Citation.]‟” (People v. McWhorter (2009) 47 Cal.4th 318, 357-358.) “„[M]ere questions, or exhortations to tell the truth or clear [one‟s] conscience or help [one]self by revealing facts as to the dominant part of [a codefendant] or some other person in the criminal enterprise‟” are insufficient: “„[I]ntellectual persuasion is not the equivalent of coercion.‟ [Citation.]” (People v. Hill (1967) 66 Cal.2d 536, 548-549; see also People v. Jones, supra, 17 Cal.4th at p. 298 [detective‟s telling defendant his answers could affect the rest of defendant‟s life did not establish coercion].) Defendants‟ protestations notwithstanding, the record before us fails to show Tapia was frightened or otherwise coerced “into making a statement that was both

testimony concerning their prior bad acts. They say the hearsay relied on by the expert as a basis for his opinion they were members of a criminal street gang was testimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and was offered for the truth of the matters contained therein, yet they had no opportunity to confront the declarants. They further contend the prior-bad-acts hearsay should have been excluded because it was unreliable and more prejudicial than probative. The Attorney General argues the testimony did not violate Crawford, and says the remaining challenges to the evidence were forfeited by defendants‟ failure to object on the same grounds in the trial court. We conclude any error was harmless. 1. Background Gutierrez moved, in limine, to preclude expert gang testimony based on police reports, field identification reports, jail records, and the like, on the ground such testimony would violate his Sixth Amendment right of confrontation under Crawford and its progeny. He asserted the erroneous admission of such evidence would prejudice his right to a fair trial, as gang evidence has an inherent prejudice and creates a risk the jury will infer defendant has a criminal disposition and is, therefore, guilty of the alleged offense. Saldana joined in the motion. After argument, during which the prosecutor asserted the type of evidence defendants were challenging was prejudicial but also extremely probative, the trial court observed that even if it were to rule as a general matter that the gang expert could rely on hearsay information as the basis for his opinions, that hearsay had to be reliable. The court surmised that before the gang expert was allowed to testify, “it may be … that we‟re going to conduct a further hearing as to the basis of his opinions, and the Court may have to rule that some, none, or all of the things … upon which he bases his opinion aren‟t reliable. [¶] … [¶] … I don‟t know that.” After additional argument, the following took place:

opinion in the case, both as to gang membership and gang benefit. The incidents and sources of information to which Mariscal testified, were: (1) Turlock Police Department No. 99-0773: On January 30, 1999, Turlock police officers responded to a hardware store in Turlock regarding a shooting. Four individuals had been shot at by the passenger of a vehicle. Gutierrez was identified as the shooter. A search of his residence revealed a stolen .25-caliber handgun. (2) Turlock Police Department No. 01-683: On January 23, 2001, a Turlock police officer responded to the area of Spruce and Angelus in Turlock in response to a report of a reckless driver. When the vehicle was stopped, the front passenger fled on foot. Gutierrez was one of the rear passengers. A stolen .22-caliber handgun was found underneath the right front passenger seat, and marijuana, a glass methamphetamine pipe, and a knife were found in the backseat. (3) Turlock Police Department No. 01-2814: On March 31, 2001, Turlock police officers responded to a bar regarding a large crowd gathering in the parking lot. Shots were fired, and a security guard pointed out a black Cadillac as being responsible for the shooting. A witness identified Gutierrez as the passenger in the car and the person responsible for shooting four times into the air. The witness said Gutierrez and the car‟s driver had gotten into a fight with some other males at the bar. Another witness heard Hispanic males claiming West Side. (4) Stanislaus County Auto Theft Task Force (StanCATT) Nos. 01-6427 and 01- 6744: On August 2, 2001, task force agents stopped a stolen vehicle at Angelus and Spruce. Gutierrez was the front passenger. A methamphetamine pipe with a useable amount of methamphetamine was located on the front passenger side floorboard, where Gutierrez was sitting. (5) Turlock Police Department No. 04-3475: On April 4, 2004, a Turlock police officer responded to a medical center in Turlock regarding a shooting victim. There, he contacted Gutierrez, who reported he had been approached by four males, one of whom

pointed a gun at his face. Gutierrez reached up and grabbed the gun, which discharged into his left hand. Gutierrez told the officer he had claimed West Side Turlock Norteño for six years, but no longer claimed it. (6) Turlock Police Department No. 04-9570: On September 21, 2004, Gutierrez was involved in a fight in Turlock in which the victim was injured. Gutierrez fled, but later turned himself in. He stated he used to be involved in gangs, but had not been for the last seven years. (7) StanCATT report listed under CHP No. F-19-465-08: On January 9, 2008, task force officers located a stolen vehicle in an apartment complex. They observed Gutierrez drive up. One of his passengers drove the stolen vehicle away, followed by the car Gutierrez was driving. Both vehicles were stopped and the occupants arrested. While being booked into jail, Gutierrez and one of his passengers admitted being Norteños. Another passenger was wearing a red belt. (8) Modesto Police Department No. 07-73364: On August 3, 2007, Gutierrez was in a vehicle driven by a Norteño gang member. Also present in the car, which had the personalized license plate “Turloco,” were Saldana and two other males. (9) Turlock Police Department No. 07-11403: On November 21, 2007, officers responded to the area of Vermont and Spruce Streets, because Mylo Lopez reported the driver of a gold Chrysler Concord had pointed a gun at him. Officers located the vehicle, which was driven by Gutierrez, but did not find a handgun when they searched the car and then could not locate Lopez. Gutierrez was arrested for driving on a suspended driver‟s license. (10) Turlock Police Department No. 08-2844: On March 23, 2008, an officer was dispatched to Vermont Street in response to an anonymous report of two subjects, whom the reporting party said were “June Bug” and Raymond, firing a weapon from a moving burgundy Mustang. Officers conducted a high-risk stop on the vehicle; Gutierrez was the driver, and the passenger was Joseph Gonzales, also known as June Bug. No weapon

another area. This occurred because the victim had been associating with Sureños and was believed to be giving them information. Fuentes and Saldana were arrested for carjacking and kidnapping for carjacking. (15) Turlock Police Department No. 04-7738: On August 4, 2004, police officers conducted a probation search at Saldana‟s residence. They located several firearms, including a sawed-off shotgun and ammunition, another modified shotgun, an illegally modified .22-caliber rifle, a nine-millimeter revolver, and handgun ammunition. Saldana admitted the firearms and ammunition were his, and said he had them to protect his residence. His tattoos were documented as “W” on his left forearm and “S” on his right forearm, which Saldana stated stood for West Side. He had the word “Turlock” tattooed on his upper back, and said he used the moniker Tito. (16) Modesto Police Department No. 05-40681: On April 15, 2005, a Norteño gang membership roster was found on a wila in a cell at the Stanislaus County Jail that housed Norteño gang members. Saldana‟s name was on the roster. (17) DA Report No. 05-DA0234: On September 6, 2005, Mariscal interviewed the victim of the earlier carjacking. The victim related he had been walking down the street when he was jumped by two individuals he identified as Saldana‟s cousins. They called him a rat and beat him up because he was going to testify against Saldana in the carjacking case. The victim said he had been an active Norteño gang member with Saldana, and he identified Saldana as an active member. (18) Modesto Police Department No. 07-73364: On August 3, 2007, Saldana was the passenger in a vehicle with the license plate “Turloco.” Gutierrez and three others were also in the car. Saldana said “VWS” stood for “Varrio West Side,” and he stated he was a “Norteño only.” (19) Turlock Police Department No. 07-11617: On November 27, 2007, officers conducted a parole search of Saldana‟s residence. In his bedroom closet, they found a loaded .38-caliber handgun. Saldana‟s girlfriend said the gun belonged to her, but gave

conflicting statements. Saldana was arrested for being a felon in possession of a firearm. During subsequent telephone calls to his girlfriend from jail, Saldana said Gutierrez was going to take blame for the gun. When the girlfriend said she would take the blame because she had already told police the gun was hers, Saldana said he would not allow her to take the blame, and that Gutierrez would do it. (20) The current offense. When Gutierrez‟s wife was interviewed, she identified both defendants as active gang members. On June 12, when booked into jail, Saldana admitted he affiliated with Norteños. As described in the statement of facts, ante, Mariscal opined that, on the date Villanueva was shot, Saldana was a Norteño gang member. Mariscal based this opinion on all the reports and incidents he reviewed concerning Saldana. 2. Applicable Legal Principles “The Confrontation Clause of the Sixth Amendment [to the United States Constitution] provides: „In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.‟ In [Crawford, supra,] 541 U.S. [at pages] 53-54, [the United States Supreme Court] held that this provision bars „admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination.‟ A critical portion of this holding … is the phrase „testimonial statements.‟ Only statements of this sort cause the declarant to be a „witness‟ within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” (Davis v. Washington (2006) 547 U.S. 813, 821 (Davis). “Accordingly, after Davis, the determination of whether the admission of a hearsay statement violates a defendant‟s rights under the confrontation clause turns on whether the statement is testimonial. If the statement is testimonial, it must be excluded unless the declarant is unavailable as a witness and the defendant had a

prior opportunity to cross-examine the declarant. If the statement is not testimonial, it does not implicate the confrontation clause, and the issue is simply whether the statement is admissible under state law as an exception to the hearsay rule.” (People v. Garcia (2008) 168 Cal.App.4th 261, 291; see People v. Cage (2007) 40 Cal.4th 965, 981-982 & fn. 10, 984.) In Crawford, the United States Supreme Court declined to give a precise definition of “testimonial statements,” although it gave as “formulations of [the] core class of „testimonial‟ statements” “„ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,‟ [citation]; „extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,‟ [citation]; „statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,‟ [citation]”; and “[s]tatements taken by police officers in the course of interrogations,” with the term “interrogation” being used in its colloquial, rather than any technical legal, sense. (Crawford, supra, 541 U.S. at pp. 51-52, 53, fn. 4.) The court observed that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Id. at p. 51.) In Davis, the high court declined to attempt to classify all conceivable statements — even those made in response to questioning by police — as either testimonial or nontestimonial. (Davis, supra, 547 U.S. at p. 822.) It did further define the categories, however, stating: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Ibid., fn. omitted.) From Davis, the California Supreme Court has derived several basic principles. “First, …, the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony — to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined „objectively,‟ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (People v. Cage, supra, 40 Cal.4th at p. 984, fns. omitted.) “It is the „primary purpose of creating an out-of-court substitute for trial testimony‟ that implicates the confrontation clause. [Citation.] Consequently, if a statement is not offered for its truth, or is nontestimonial in character, the confrontation clause is not a bar to admission.” (People v. Blacksher (2011) 52 Cal.4th 769, 813; see Michigan v. Bryant (2011) 562 U.S. ___ [131 S.Ct. 1143, 1155].) It is settled that, “because the culture and habits of gangs are matters which are „sufficiently beyond common experience that the opinion of an expert would assist the trier of fact‟ [citation], opinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. [Citation.]” (People v. Vy (2004) 122

Cal.App.4th 1209, 1223, fn. 9.) “„An expert may generally base his opinion on any “matter” known to him, including hearsay not otherwise admissible, which may “reasonably … be relied upon” for that purpose. [Citations.]‟” (People v. Carpenter (1997) 15 Cal.4th 312, 403, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) “And because Evidence Code section 802 allows an expert witness to „state on direct examination the reasons for his opinion and the matter … upon which it is based,‟ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618- 619 (Gardeley).) The application of Crawford to such “basis evidence” is less settled. Several appellate opinions have held Crawford does not apply, reasoning variously that hearsay in support of expert opinion is not the sort of testimonial hearsay the use of which Crawford condemned (People v. Ramirez, supra, 153 Cal.App.4th at p. 1427) or that hearsay relied on by experts in formulating their opinions is not testimonial because it is not offered for the truth of the fact stated (People v. Cooper (2007) 148 Cal.App.4th 731, 747; People v. Thomas, supra, 130 Cal.App.4th at p. 1210) and the expert is subject to cross-examination concerning his or her opinions (People v. Sisneros (2009) 174 Cal.App.4th 142, 154). In People v. Hill (2011) 191 Cal.App.4th 1104, by contrast, the court determined that “where basis evidence consists of an out-of-court statement, the jury will often be required to determine or assume the truth of the statement in order to utilize it to evaluate the expert‟s opinion.” (Id. at p. 1131, fn. omitted.) Nevertheless, the court found itself bound by Gardeley and similar California Supreme Court precedent, and so concluded the trial court in the case before it properly determined the challenged basis evidence did not violate the hearsay rule or confrontation clause, since it was not offered for its truth but only to evaluate the expert‟s opinions. (Hill, supra, at p. 1131.)

The United States Supreme Court itself has produced fractured opinions concerning Crawford‟s application to expert testimony and the information on which such testimony is based. (See, e.g., Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221]; Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705]; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) Thus far, the California Supreme Court has attempted to make sense out of these opinions in cases involving basis evidence such as autopsy and laboratory analysis reports. (People v. Rutterschmidt (2012) 55 Cal.4th 650, 655-656, 658-659 (Rutterschmidt); People v. Dungo (2012) 55 Cal.4th 608, 612, 617- 618; People v. Lopez (2012) 55 Cal.4th 569, 573, 579-582; see also People v. Geier (2007) 41 Cal.4th 555, 593-594, 596-607.) It has yet to do so, however, with respect to the basis evidence of a gang expert, whose testimony is usually based, at least in part, on his or her own experience and investigation. Post-Crawford, reliability is not part of the confrontation clause inquiry. (People v. Wilson (2005) 36 Cal.4th 309, 343.) It remains relevant with respect to expert testimony, however: “[A]ny material that forms the basis of an expert‟s opinion testimony must be reliable. [Citation.] For „the law does not accord to the expert‟s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert‟s opinion is no better than the facts on which it is based.‟ [Citation.] [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert‟s opinion testimony. [Citations.]” (Gardeley, supra, 14 Cal.4th at p. 618.) The California Supreme Court has cautioned that “prejudice may arise if, „“under the guise of reasons,”‟ the expert‟s detailed explanation „“[brings] before the jury incompetent hearsay evidence.”‟ [Citations.]” (People v. Montiel (1993) 5 Cal.4th 877, 918-919.) “Because an expert‟s need to consider extrajudicial matters, and a jury‟s need for information sufficient to evaluate an expert opinion, may conflict with an accused‟s

interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court‟s sound judgment. [Citations.]” (Id. at p. 919.) “Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.]” (People v. Montiel, supra, 5 Cal.4th at p. 919.) In addition, “[a] trial court … „has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.‟ [Citation.] A trial court also has discretion „to weigh the probative value of inadmissible evidence relied upon by an expert witness … against the risk that the jury might improperly consider it as independent proof of the facts recited therein.‟ [Citation.] This is because a witness‟s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into „independent proof‟ of any fact. [Citations.]” (Gardeley, supra, 14 Cal.4th at p. 619.) Evidence Code section 352 further “authorizes the court to exclude from an expert‟s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]” (People v. Montiel, supra, 5 Cal.4th at p. 919.) 3. Analysis As previously described, defendants challenge Mariscal‟s recitation of their prior bad acts on Crawford, reliability, and Evidence Code section 352 grounds. “„It is, of course, “the general rule”‟ — to which we find no exception here — „“that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.”‟ [Citations.]” (People v. Alvarez (1996) 14 Cal.4th 155, 186.) This rule applies to constitutional claims (People v. Rudd (1998) 63 Cal.App.4th 620, 628-629), unless “(1) it „is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant‟s substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from

those the trial court itself was asked to apply, but merely assert that the trial court‟s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution.‟ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 353, italics omitted.) The Crawford objection was clearly before the trial court. We will assume, for the sake of argument, that the isolated references by the court and counsel to reliability, prejudice, and probative value were sufficient to satisfy the requirement of a timely and specific objection with respect to those grounds. (Compare People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8 [“„bare reference‟” to inability to cross-examine insufficient to preserve confrontation clause claim] with People v. Bojorquez (2002) 104 Cal.App.4th 335, 343, fn. 5 [objection that “„the prejudice would outweigh the probative value‟” sufficient to invoke Evid. Code, § 352].) The problem is, Gutierrez neither secured a ruling initially nor reiterated his objections when Mariscal testified before the jury. Saldana likewise did not secure a ruling initially; although he did request and obtain a continuing objection on confrontation clause grounds, he did not reiterate any of the other grounds for exclusion he now asserts. “„[T]he absence of an adverse ruling precludes any appellate challenge.‟ [Citation.] In other words, when, as here, the defendant does not secure a ruling, he does not preserve the point. That is the rule. No exception is available.” (People v. Rowland (1992) 4 Cal.4th 238, 259.) A “properly directed” in limine motion may preserve an objection for appeal, but again, “the proponent must secure an express ruling from the court. [Citation.]” (People v. Ramos (1997) 15 Cal.4th 1133, 1171, italics added.) “[A] motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of

“Due to its potential prejudicial impact on a jury, our Supreme Court has condemned the introduction of „evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.‟ [Citation.] Gang evidence should not be admitted at trial where its sole relevance is to show a defendant‟s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.] Such evidence is only admissible when it is logically relevant to some material issue at trial other than character trait evidence. [Citation.]” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) In the present case, the evidence was logically relevant to material issues at trial other than character trait or disposition, including membership in the gang (which in turn was relevant to the gang enhancement allegations), the existence of a criminal street gang as defined in section 186.22, subdivision (f), and to corroborate information contained in the wilas (which in turn was relevant to identifying defendants as the authors thereof).28 (See People v. Gutierrez (2009) 45 Cal.4th 789, 820 [evidence regarding defendant‟s affiliation with gang, gang‟s prior criminal activities, and notes found in defendant‟s cell were relevant to gang enhancement allegation].) Although prosecutors may not “have any right to „over-prove their case or put on all the evidence that they have‟” (People v. Williams, supra, 170 Cal.App.4th at p. 610), neither will we require them to risk “under- proving” their case. Even assuming some of the prior bad acts may have been cumulative, some were not. “Such relevant and admissible evidence could properly have included even the most inflammatory incidents. [Citation.]” (Id. at p. 613.) As the evidence was relevant to prove “a fact of consequence,” its admission did not violate due process. (People v. Foster (2010) 50 Cal.4th 1301, 1335.) Assuming some was testimonial, we likewise have no problem concluding any error was harmless beyond a reasonable doubt. Defendants testified and admitted being Norteños. Gutierrez

admitted having been convicted in 1999 of felony assault, while Saldana admitted having been convicted of carjacking in 2006, at which time he was also charged with kidnapping. (See People v. Allison (1989) 48 Cal.3d 879, 889-890 [defendant not prejudiced by prosecutor‟s elicitation of testimony from witness that defendant was in county jail on unrelated charges at particular time, where defense counsel elicited same information in cross-examination of said witness and defendant revealed same information in own testimony].) The record does not support defendants‟ claim the evidence was offered in an attempt to show criminal disposition or inflame the jury (compare People v. Memory (2010) 182 Cal.App.4th 835, 858-859, 862-864), and we find no reasonable likelihood jurors‟ passions were inflamed (see People v. Williams, supra, 170 Cal.App.4th at p. 612). Counsel for Gutierrez elicited, in his cross- examination of Mariscal, that the prior incidents were merely contacts with law enforcement, and that if counsel yelled at a police officer out in the hall or something similar, that could be listed as a contact. Counsel further elicited that Gutierrez was not convicted for the prior acts except for the one in 1999. Counsel for Saldana elicited, in his cross-examination of Mariscal, that part of Mariscal‟s opinion was based on reports as opposed to his own personal knowledge, and that reliability was always an issue with respect to reports, in that Mariscal had to make a determination whether a report was to be believed. Significantly, jurors were instructed not to disregard the testimony of any witness (which here included defendants) “without a reason or because of prejudice or desire to favor one side or the other.” They were told they had to decide whether information on which an expert relied was “true and accurate.” They were also told, however, that in reaching their conclusions as expert witnesses, Mariscal and Teso “considered statements made by the defendants, other gang members, other gang experts, police officers, detectives, probation officers, and parole officers. You may consider those statements only to evaluate the expert‟s opinion. Do not consider those statements as proof that the

Saldana next objected to No. 10, which set out the times and places he was incarcerated beginning in 2004, the charges he faced, the fact he was on parole at one point, and three people who were in custody with him at each location. He argued this portion of the wila was confusing and had no real probative value. The prosecutor responded that there would be expert testimony the people listed were Norteños. He sought admission of No. 10 in its entirety, to show an ongoing association of three or more members and to counter any suggestion Varrio West Side Turlock was merely a neighborhood or club. The prosecutor argued that the listing in the wila of individuals from other cliques was consistent with the gang expert‟s anticipated testimony, and went directly to one of the required elements of section 186.22. The prosecutor agreed the information was being offered for a limited purpose, and noted the jury instructions would directly address the limited use to which the gang expert‟s testimony could be put. The trial court ruled No. 10 would be allowed, subject to a limiting instruction. Counsel for Saldana stated: “Then I would object to a copy of [exhibit] 56 being presented to the jury if -- it sounds like it is all going to get in, then let‟s let it all in and give them the original and let them decide whether that was actually written by Mr. Saldana.” He emphasized that he wanted the jury to have the original, not an enlarged copy. Asked by the court if he was withdrawing any objections, counsel stated: “Yes. But I want them to see the original.” After a brief discussion about whether the enlargement could also be admitted, the court clarified, “[Saldana] is withdrawing any objection, so long as the original is introduced into evidence.” Counsel for Saldana responded, “Yes.” The hearing then turned to Gutierrez‟s objections. He first objected to No. 6, which related that he had one strike for assault with a firearm in 1999. Gutierrez argued the whole area ought to be redacted, because typically a jury would not be told about someone‟s criminal background. The court ruled the word “strike” would be redacted, but the remainder would be admitted for a limited purpose.

Gutierrez next objected to No. 10, which related the same sort of information as was contained in No. 10 of Saldana‟s wila, and stated that at one point, Gutierrez was returned to county jail for “666/187” but charges were never filed. Counsel for Gutierrez argued that allowing the jury to hear about assaults with a firearm and attempted murder, for which charges were never filed, was “incredibly prejudicial” and would cause jurors to be biased against him because they would think somehow he got away with something. Counsel also argued this was in essence a coerced statement rather than an admission, since people were required to answer these questions in order to survive in jail. The prosecutor responded that, as was the case with Saldana, No. 10 showed association with gang members from other groups and the requisite ongoing association of three or more people. The prosecutor also argued it would counter the anticipated defense argument, that “this is nothing but a bunch of boys who were foolish or knuckleheads .…” The court found no evidence of coercion, and ruled No. 10 was admissible, subject to a limiting instruction. Gutierrez next objected to No. 24, which read, “Yes, I will assist La Casa in a removal at any time.” Defense counsel expressed concern the jury could take that to mean Gutierrez was prepared to kill someone. He also related that he “probably” did not intend to contest that Gutierrez was the source of at least some of the information in the wila, and so, since he was “not going to be aggressively or non-aggressively disputing a lot of things in front of this jury,” did not believe the prosecutor had “all these big hurdles .…” The trial court ruled No. 24 would be received, subject to a limiting instruction. Gutierrez next objected to No. 25, which listed other charges pending against him. Defense counsel argued the fact someone might have charges pending was not relevant and was prejudicial overkill, and he expressed concern the jury would conclude Gutierrez was someone who did not observe the law. The prosecutor argued the information, when considered in conjunction with the chronology and charges listed in No. 10, was

probative of authentication, and the fact Gutierrez said he was arrested for manufacturing went to the primary activities of the gang. The information coming from Gutierrez himself would add to the credibility of the gang expert‟s opinion testimony concerning the primary activities of the gang. The trial court ruled the evidence would be allowed, subject to a limiting instruction. Gutierrez had no further objections. The trial court again confirmed that counsel for Saldana wanted the entire wila admitted as to his client. The wilas were admitted into evidence during Mariscal‟s testimony. With respect to Gutierrez‟s wila, Mariscal testified in part that his investigation revealed other evidence showing Gutierrez had a conviction for assault with a firearm in 1999; one of the charges listed — possessing pills for sale — was consistent with one of the primary activities of the Norteño gang; and Gutierrez‟s pending charges included a moving violation, which involved Gutierrez being stopped approximately two weeks before the shooting in the white Altima that was burned in San Jose after the shooting. Mariscal read No. 10 to the jury. He explained that the references to “3Ns” were consistent with someone reporting other active Norteños with whom he was housed, and that this played into the requirement of an ongoing association of three or more people. This was an example of a gang member associating with other Norteños. Mariscal testified No. 16 read, “I have no problems functioning with la casa‟s expectations,” which told Mariscal that Gutierrez was fully willing to be an active participant in the Norteño organization in custody, and to follow their rules, policies, and expected behavior. With respect to No. 24, in which Gutierrez wrote he would assist La Casa in a removal at any time, Mariscal testified this indicated Gutierrez was willing to participate in a removal or assault upon someone if the gang determined a fellow gang member was to be removed or assaulted for any reason. Mariscal also read No. 15 to the jury, in which Gutierrez explained how Villanueva was threatening the lives of Gutierrez and his children, and about the altercation in which Saldana was assaulted.

an individual and which has very little effect on the issues.… [E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors‟ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” [Citation.]‟ [Citation.]” (People v. Scott (2011) 52 Cal.4th 452, 490-491; see People v. Holford (2012) 203 Cal.App.4th 155, 167.) “[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion „must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]‟ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) The trial court need not expressly weigh prejudice against probative value, or state it has done so. (People v. Waidla, supra, 22 Cal.4th at p. 724, fn. 6.) We find no abuse of discretion in the present case. Some of the information recited in the wilas about defendants‟ criminal activity came before the jury through their own testimony, and so was probative on the question of the wilas‟ authenticity, a disputed question upon which the jury had to make the final determination. It can hardly have come as a surprise to jurors that defendants had been in custody and faced charges beyond those for which they were on trial; in addition to admitting he had a prior felony conviction for assault, Gutierrez testified he had been in a lot of fights, mostly because of the people with whom he associated, said he planned to sell marijuana on the day of the shooting, and admitted intentionally burning a vehicle; while Saldana admitted his prior conviction for carjacking also originally involved a kidnapping charge, and that he was on parole at the time of the shooting.

Many of the past or pending charges recited in the wilas were probative of Mariscal‟s opinions concerning the Norteños‟ primary activities and pattern of criminal gang activity, and the prosecutor questioned Mariscal about them in that context. Defendants point to the fact there was testimony Stanislaus County contained 3,000 to 4,000 documented Norteños, but the prosecutor was still required to prove every element of the section 186.22, subdivision (b) enhancement, including the existence of a criminal street gang as defined in subdivision (f) of section 186.22. Thus, he had to prove not only an ongoing association of three or more persons, but also the primary activity or activities of that group, and that the group‟s members engaged in a pattern of criminal gang activity as defined in subdivision (e) of the statute. (See People v. Coddington (2000) 23 Cal.4th 529, 597, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The prosecutor was not obliged to prove those elements through other evidence simply because he might have had the means to do so. (See People v. Watson (2008) 43 Cal.4th 652, 684.) The information in the wilas concerning other Norteños with whom defendants had been incarcerated was also probative; it demonstrated that the various cliques — including Varrio West Side Turlock — were not simply neighborhood groups, but were under the larger Norteño criminal street gang umbrella. (See People v. Williams (2008) 167 Cal.App.4th 983, 987-988.) Under the circumstances, most, if not all, of the challenged evidence was highly probative of issues actually in dispute, and was not substantially outweighed by the risk of undue prejudice, especially in light of the limiting instructions given by the trial court. (See People v. Fuiava, supra, 53 Cal.4th at pp. 669-670; People v. Richardson (2008) 43 Cal.4th 959, 1004.) Accordingly, defendants have failed to establish the trial court abused its discretion in admitting the bulk of the wilas‟ contents. (See People v. Branch (2001) 91 Cal.App.4th 274, 286-287.) To the extent there was error (for example, in the admission of Saldana‟s inaccurate representation that he had a prior conviction for assault with a firearm;

Gutierrez‟s apparent arrest, without charges ever being filed, for attempted murder; and both defendants‟ professed willingness to assist in a removal), we have examined the record and conclude there is no reasonable probability the jury would have reached a different result had the evidence been excluded. (People v. Whitson (1998) 17 Cal.4th 229, 251; Watson, supra, 46 Cal.2d at p. 836.) Defendants claim the error rendered their trial fundamentally unfair, so that we must assess prejudice under the more rigorous Chapman standard. (See People v. Williams, supra, 170 Cal.App.4th at p. 612.) In light of the properly admitted evidence and the trial court‟s limiting instructions, however, we conclude defendants have failed to satisfy the required “high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial.” (People v. Albarran, supra, 149 Cal.App.4th at p. 229; see People v. Richardson, supra, 43 Cal.4th at p. 1004; People v. Champion (1995) 9 Cal.4th 879, 925, overruled on another ground in People v. Combs (2004) 34 Cal.4th 821, 860.) This case simply does not present “one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant‟s trial fundamentally unfair.” (People v. Albarran, supra, 149 Cal.App.4th at p. 232.) II THE SECTION 186.22, SUBDIVISION (B) ENHANCEMENT A. Sufficiency of the Evidence (Gutierrez, Saldana) Defendants contend the evidence is insufficient to sustain the jury‟s true finding on the section 186.22, subdivision (b) enhancement. We disagree. To establish the gang enhancement under section 186.22, subdivision (b), “the prosecution must prove that the crime for which the defendant was convicted had been „committed for the benefit of, at the direction of, or in association with any criminal street gang, [and that it was committed] with the specific intent to promote, further, or assist in any criminal conduct by gang members.‟ [Citations.]” (Gardeley, supra, 14 Cal.4th at

Additionally, the prosecutor did not raise the issue in the trial court. This being the case, the People can raise it for the first time without filing their own appeal only if the omission of the section 186.22 finding somehow constituted an unauthorized sentence. (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284; see People v. Scott (1994) 9 Cal.4th 331, 354.) The Attorney General makes no attempt to address this issue. Last, subdivision (e)(2) of section 12022.53 provides: “An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.” In People v. Brookfield (2009) 47 Cal.4th 583, 590-592, the California Supreme Court held that subdivision (e)(2) of section 12022.53 applies to the penalty provision contained in section 186.22, subdivision (b)(4). In People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1424-1427, the Court of Appeal relied on Brookfield to hold that section 12022.53, subdivision (e)(2) precludes imposition of the minimum parole eligibility period contained in section 186.22, subdivision (b)(5). The Attorney General makes no attempt to explain how, under these authorities, subdivision (b)(5) of section 186.22 presently applies to Saldana — or, for that matter, if it even applies to Gutierrez, since, although the trial evidence established Gutierrez was the only shooter, both defendants were sentenced, pursuant to the jury‟s findings, under both subdivision (d) and subdivision (e)(1) of section 12022.53. III SECURITY MEASURES (Saldana) Saldana says he was denied a fair trial when the trial court imposed allegedly unsupported security measures on him while he testified. We agree with the Attorney General that there was no abuse of discretion and, in any event, Saldana cannot show prejudice.

A. Background At the outset of trial, security apparently consisted of having two bailiffs in the courtroom. Late in the prosecution‟s case-in-chief, the trial court was informed Gutierrez‟s cell had been searched and a potential weapon found. The court proposed to impose additional security measures “incrementally,” by allowing defendants to remain unshackled in the courtroom, but requiring them to be separated by a chair‟s width or more and to keep their hands visible at all times while in court. It was the court‟s intent that if they put their hands into their pockets for any reason, the jury would be recessed and defendants would be placed in shackles. After discussion, the court adopted these measures, finding them the “most-minimum thing this Court should be doing at this point.” Prior to Gutierrez testifying, the trial court noted its inclination to have a bailiff sit near Gutierrez during that testimony. Counsel for Gutierrez objected. He conceded that, since the earlier incident, a small razor had been found in the cell Gutierrez shared with another inmate, but represented Gutierrez simply used it to shave around the sides of his head. Counsel argued “it inherently would be viewed as prejudicial to have somebody up there by him.” He further suggested that if a bailiff were placed by Gutierrez when Gutierrez testified, the court would be obliged to do the same if Saldana took the stand. When the court agreed, counsel for Saldana stated he would be opposed. The court suggested Gutierrez could be allowed to testify without a bailiff present, with the understanding he was required to keep his hands on the witness box, fully visible at all times, and if he pulled his hands down, the bailiff would “go[] up.” Counsel for Gutierrez agreed to that procedure. Counsel for Saldana requested that the issue be revisited, with respect to his client, after everyone saw how things went during Gutierrez‟s testimony. The court agreed. With respect to Gutierrez, the court ordered that there would not be a bailiff immediately next to him as long as he kept his hands on the witness box, fully visible, at all times; if he moved either hand off the wood of the

accord, People v. Duran (1976) 16 Cal.3d 282, 293, fn. 12.) The level of findings required by the trial court depends on the nature of the security measure involved. “Many courtroom security procedures are routine and do not impinge on a defendant‟s ability to present a defense or enjoy the presumption of innocence. [Citation.] However, some security practices inordinately risk prejudice to a defendant‟s right to a fair trial and must be justified by a higher showing of need. For example, visible physical restraints like handcuffs or leg irons may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community. [Citations.] Because physical restraints carry such risks, their use is considered inherently prejudicial and must be justified by a particularized showing of manifest need. [Citations.]” (People v. Hernandez, supra, 51 Cal.4th at pp. 741-742; see, e.g., Deck v. Missouri (2005) 544 U.S. 622, 629; People v. Duran, supra, 16 Cal.3d at pp. 290-291.) So too must a security device such as a stun belt, which, although not visible to the jury, may have a debilitating psychological effect on a testifying defendant. (People v. Mar (2002) 28 Cal.4th 1201, 1219-1220, 1226-1227.) By contrast, “[u]nless armed guards are present in an unreasonable number,” their presence in the courtroom need not be justified by the trial court. (People v. Ainsworth (1988) 45 Cal.3d 984, 1003.) Even stationing a bailiff near the witness stand while a defendant testifies is not inherently prejudicial; “evaluat[ing] the likely effects of the procedure „based on reason, principle, and common human experience‟ [citation],” no “„“unacceptable risk is presented of impermissible factors coming into play.”‟ [Citation.]” (People v. Stevens (2009) 47 Cal.4th 625, 638.) Because such a practice is not inherently prejudicial, “it need not be justified by a compelling case-specific showing of need. [Citations.]” (Id. at p. 637.) Even where a security procedure is not inherently prejudicial, a trial court must exercise its own discretion, rather than deferring to a generic policy or abdicating

decisionmaking to law enforcement officers, in determining whether a particular security measure is appropriate on a case-by-case basis. (People v. Hernandez, supra, 51 Cal.4th at p. 742.) Similarly, although the prosecutor “may bring to the court‟s attention matters which bear on the issue,” the prosecutor “plays no necessary part” in the trial court‟s determination whether security measures should be imposed and, if so, of what nature and to what degree. (People v. Duran, supra, 16 Cal.3d at p. 293, fn. 12.) An order to a testifying defendant to keep his or her hands visible at all times is clearly not inherently prejudicial, especially where, as here, the defendant is permitted to gesticulate while testifying and the only threatened consequence for disobedience is to have a bailiff placed near the witness box — itself not an inherently prejudicial measure. The record amply demonstrates that before making any orders, the trial court here undertook “a thoughtful, case-specific consideration of the need for heightened security, [and] of the potential prejudice that might result.” (People v. Hernandez, supra, 51 Cal.4th at p. 743.) It did not abuse its discretion in imposing what it accurately termed “minimal” security precautions. Saldana complains, however, that the court made no findings specifically with respect to him and the potential threat he posed, as opposed to making findings based on Gutierrez‟s alleged misconduct. Recent California Supreme Court cases speak in terms of case-specific or case-by-case determinations, and not in terms of defendant-specific ones. (See People v. Hernandez, supra, 51 Cal.4th at p. 743; People v. Stevens, supra, 47 Cal.4th at pp. 642-643.) We are not aware of any authority precluding a court from taking into account one defendant‟s conduct in determining whether to impose security measures on a codefendant, especially where the codefendants are relatives and fellow gang members who are charged with premeditated murder, where the alleged misconduct by one of them involves possession of potential weapons, and where the security measures imposed are minimal and not inherently prejudicial. (See People v. Ainsworth,

has “defined the required mental states and acts for aiding and abetting as: „(a) the direct perpetrator‟s actus reus — a crime committed by the direct perpetrator, (b) the aider and abettor‟s mens rea — knowledge of the direct perpetrator‟s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor‟s actus reus — conduct by the aider and abettor that in fact assists the achievement of the crime.‟ [Citation.]” (People v. Thompson (2010) 49 Cal.4th 79, 116-117.) “When the offense charged is a specific intent crime, the accomplice must “share the specific intent of the perpetrator”; this occurs when the accomplice “knows the full extent of the perpetrator‟s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator‟s commission of the crime.” [Citation.]‟ [Citation.] What this means here, when the charged offense and the intended offense — [murder] — are the same, … is that the aider and abettor must know and share the murderous intent of the actual perpetrator.” (People v. McCoy, supra, 25 Cal.4th at p. 1118, fn. omitted.) “Aider and abettor liability is thus vicarious only in the sense that the aider and abettor is liable for another‟s actions as well as that person‟s own actions. When a person „chooses to become a part of the criminal activity of another, [he] says in essence, “your acts are my acts .…”‟ [Citations.] But that person‟s own acts are also [his] acts for which [he] is also liable. Moreover, that person‟s mental state is [his] own; [he] is liable for [his] mens rea, not the other person‟s.” (Ibid.) In the present case, jurors were instructed on first and second degree murder, justifiable homicide based on self-defense, accident, and voluntary manslaughter based on sudden quarrel or heat of passion. They were also told to separately consider the evidence as it applied to each defendant, and that they must decide each charge for each defendant separately. Further, they were instructed that in order to convict a defendant of first degree murder, they had to find, inter alia, intent to kill and premeditation. Pursuant to CALCRIM No. 401, in order to find Saldana guilty of first degree murder based on aiding and abetting that crime, jurors had to find proven beyond a

this morning that the Court considers to have been improper. When he asked you to send a message to the community, or words to that effect, and any similar type of argument, that was an improper argument, and I‟m admonishing you to disregard it. It‟s not your job to send a message to anybody. It‟s your job to decide what the facts are, apply the facts of [sic] the law and reach a fair and just verdict. Okay?” (Italics added.) B. Analysis “Prosecutorial misconduct may constitute an appropriate basis for a mistrial motion. [Citation.]” (People v. Rodrigues, supra, 8 Cal.4th at p. 1154.) “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]” (People v. Haskett (1982) 30 Cal.3d 841, 854; accord, People v. Bolden (2002) 29 Cal.4th 515, 555.) Settled standards govern review of misconduct claims. “„A prosecutor‟s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.‟ [Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) “To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument. [Citation.]” (Ibid.) “Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 522.) “When a claim of misconduct is based on the prosecutor‟s comments before the jury, … „“the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”‟ [Citations.]” (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 305.) In making this determination, “we must view the

have followed an admonition to disregard improper evidence or comments, as „[i]t is only in the exceptional case that “the improper subject matter is of such a character that its effect … cannot be removed by the court‟s admonitions.” [Citation.]‟ [Citation.]” (People v. Pitts (1990) 223 Cal.App.3d 606, 692.) Defendants fail to persuade us this is such an exceptional case. Contrary to defendants‟ assertion that they did not receive the relief they requested because they asked for a mistrial and the trial court refused to grant one, the record shows they requested a mistrial and/or an admonition, and they agreed to the trial court‟s admonition as an alternative to their untimely mistrial request. (See People v. Thompson, supra, 49 Cal.4th at p. 130.) They expressly agreed to the trial court‟s proposed admonition — which it ultimately gave — and did not claim it was inadequate or seek any additional charge to the jury. (See People v. Chatman (2006) 38 Cal.4th 344, 385.) Presuming, as we do, that the jury understood and obeyed the trial court‟s instruction to disregard the prosecutor‟s “send a message” remarks, we conclude the trial court did not err. Any prejudice was cured by its admonition. (See People v. Tully (2012) 54 Cal.4th 952, 1020.) The prosecutor‟s “isolated, brief remark, when viewed in the context of the entire argument, … could not have inflamed the jury‟s passions to the point where the outcome of the trial was affected or the trial became fundamentally unfair.” (People v. Rundle (2008) 43 Cal.4th 76, 162, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) This is simply not a case in which “improper comments and assertions [were] interspersed throughout trial and/or closing argument” (People v. Pitts, supra, 223 Cal.App.3d at p. 692), or where “the sheer number of instances of prosecutorial misconduct and other legal errors raises the strong possibility the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone” (People v. Hill, supra, 17 Cal.4th at p. 845).

Were we to find no disparate treatment of similarly situated groups, Saldana‟s claim would fail under Gonzales. Were we to conclude he made the requisite threshold showing, however, a second level of analysis would be required: “„If the law in question impinges on the exercise of a fundamental right, it is subject to strict scrutiny and will be upheld only if it is necessary to further a compelling state interest. All other legislation satisfies the requirements of equal protection if it bears a rational relationship to a legitimate state purpose. [Citation.]‟” (Gonzales, supra, 87 Cal.App.4th at pp. 12-13.) Saldana asserts strict scrutiny must be applied, because the statute abridges his fundamental liberty interest. In People v. Hernandez (2005) 134 Cal.App.4th 474 (Hernandez), the Court of Appeal examined Gonzales, then considered and rejected the argument Saldana now makes. “Where as here the question is not whether to deprive Hernandez of his liberty but for how long, we believe rational basis review, not strict scrutiny, is the appropriate test to resolve an equal protection challenge.” (Hernandez, supra, 134 Cal.App.4th at p. 483.) The court concluded the enhancement provided by section 12022.53, subdivision (e)(1) satisfied the rational basis test: “Clearly the Legislature had a rational basis for imposing a 25-years-to-life enhancement on one who aids and abets a gang- related murder in which the perpetrator uses a gun, regardless of the relationship between the aider and abettor and the perpetrator. As we previously observed, the purpose of this enhancement is to reduce through punishment and deterrence „the serious threats posed to the citizens of California by gang members using firearms.‟ One way to accomplish this purpose is to punish equally with the perpetrator a person who, acting with knowledge of the perpetrator‟s criminal purpose, promotes, encourages or assists the perpetrator to commit the murder.” (Hernandez, supra, 134 Cal.App.4th at p. 483, fn. omitted.)51

Saldana, on the other hand, merely stated disagreement with the restitution request. The most reasonable interpretation of Saldana‟s counsel‟s statement is that he was disputing the amount of restitution requested. He did not clarify whether this was due to a professed inability to pay or because, for example, he felt the claimed amount of loss was inaccurate or inflated. In any event, defendants‟ claim fails on the merits. They “point[] to no evidence in the record supporting [their] inability to pay, beyond the bare fact of [their] impending incarceration. Nor [do they] identify anything in the record indicating the trial court breached its duty to consider [their] ability to pay; as the trial court was not obligated to make express findings concerning [their] ability to pay, the absence of any findings does not demonstrate it failed to consider this factor. Thus, we cannot say on this record that the trial court abused its discretion.” (People v. Gamache, supra, 48 Cal.4th at p. 409.) People v. Romero (1996) 43 Cal.App.4th 440 addresses an earlier version of section 1202.4, but its comments remain applicable. There, after determining the trial court was not required to make an express finding on the issue of ability to pay, the appellate court stated: “Nor need the record in this case contain substantial evidence showing defendant‟s ability to pay the fine. Subdivision (d) of section 1202.4 also provides, „A defendant shall bear the burden of demonstrating lack of his or her ability to pay.‟ This express statutory command makes sense only if the statute is construed to contain an implied rebuttable presumption, affecting the burden of proof, that a defendant has the ability to pay a restitution fine. Whatever is necessarily implied in a statute is as much a part of it as that which is expressed. [Citations.] The statute thus impliedly presumes a defendant has the ability to pay and expressly places the burden on a defendant to prove lack of ability. Where, as here, a defendant adduces no evidence of inability to pay, the trial court should presume ability to pay, as the trial court correctly did here. Since here defendant‟s ability to pay was supplied by the implied presumption, the record need not contain evidence of defendant‟s ability to pay.” (People v. Romero,

The People v. Gutierrez CA5

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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