California Court of Appeal Oct 30, 2014 No. E059570Unpublished
Filed 10/30/14 P. v. Rocha CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059570
v. (Super.Ct.No. RIF1303076)
DANIEL NINO ROCHA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed with directions.
Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Kristine A. Gutierrez, and Lynne G. McGinnis, Deputy Attorneys
General, for Plaintiff and Respondent.
1
I
INTRODUCTION
Defendant Daniel Nino Rocha appeals from judgment entered following jury
convictions for assault with a firearm (Pen. Code, § 245, subd. (a)(2)1; count 1),
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), and participation in a
street gang (§ 186.22, subd. (a); count 3)). The jury also found true the enhancements of
personally using a firearm and personally inflicting great bodily injury (GBI) as to
count 1 (§§ 12022.5, subd. (a), and 12022.7, subd. (a)). As to counts 1 and 2, the jury
found true allegations that the crimes were committed for the benefit of, at the direction
of, or in association with, a criminal street gang (§ 186.22, subd. (b)). In addition,
defendant admitted he served one prior prison term (§ 667.5, subd. (b)) and had one prior
serious felony conviction (§ 667.5, subd. (a)) and one prior strike conviction (§§ 667,
subds. (a) & (e)(1), and 1170.12, subd. (e)(1)). The trial court sentenced defendant to an
aggregate prison term of 38 years and eight months.
Defendant contends the trial court’s admission of preliminary hearing testimony
by David Jackson and Bernie Davis violated defendant’s constitutional rights to
confrontation, due process, cross-examination, compulsory process, and a fair trial, and to
present a defense. Defendant also contends there was insufficient evidence to support his
convictions, and the trial court erred in failing to give a clarifying instruction on the
meaning of “in association with any criminal street gang.” Defendant further argues
1 Unless otherwise noted, all statutory references are to the Penal Code.
2
there was insufficient evidence to support the gang enhancements, and the sentence on
count 3 must be stayed. We conclude there was no prejudicial error, with the exception
the sentence on count 3 must be stayed under section 654. In all other regards, we affirm
the judgment.
II
FACTS
As Jackson was arriving home on October 10, 2012, around 9:45 p.m., he noticed
two men on his street, Hillside Drive. The men looked “weird” to him. After parking
and entering his home, he heard his dogs barking and noise coming from his backyard
gate which adjoins the backyard of his neighbor, David Herrera.2 Jackson went outside
and saw one or two people running from his house, up the street. Jackson went to
David’s house and told him someone had been in David’s backyard and jumped his
fence.
Jackson, David, and his cousin Bernie Davis got into Jackson’s four-door truck
and drove about 300 feet, in the direction Jackson had seen the two men running.
Jackson drove up to the two men and stopped. David, Davis, and Jackson got out of the
truck and confronted the two men. David had already started wrestling with one of the
two men as Davis went around the truck to the other side where they were fighting.
2To avoid confusion, witnesses David Herrera and Gabriel Herrera, who share the same last name but are not related, will be referred to by their first names. We will also refer Bernie Davis’s wife, Jordan Davis, by her first name, and to sisters, Marissa, Selena, and Liana Holmes, by their first names. All others will be referred to by their last names.
3
While David was fighting with one of the men, the other man shot Jackson in the left
hand, both legs, and stomach. Jackson said, “‘Help me. Help me. Get me to the
hospital. I’m down. . . . I’m going to die. I’m going to die.’” Jackson claimed he did
not have a gun when he was shot. His wife’s gun was in the glove compartment of his
truck.
Davis testified that, after Jackson was shot, Jackson or David told Davis to pick up
Jackson’s gun on the ground and put it in the truck glove compartment box. Davis did
so. Davis and David picked up Jackson, put him in the truck, and drove him to the
hospital.
Robert Peters, who lived on Hillside Drive, testified at trial that on October 10,
2012, around 9:45 p.m., he heard about six rapidly fired gunshots. Robert’s wife called
911. Robert grabbed his firearm, ran to the front door, opened the door, and saw a gray
or black SUV with its headlights on and engine running, in front of his driveway. There
were about four individuals running around the car, with the driver and passengers
switching seats. Robert yelled from his front door, “What’s going on?” After the second
time he yelled this, a young man said, “It’s not me. They’re shooting at us.” Robert said,
“‘Then get out of here,’” and they sped off. Ten or 15 minutes later the police arrived.
Officer Bennett responded to the call. The dispatcher said a black SUV had left
the shooting scene on Hillside Drive. Bennett observed a black SUV leaving the area,
reported it to dispatch, and followed the SUV to the hospital. Officer Segura provided
backup, following Bennett’s unit. Upon the SUV’s arrival at the hospital, the officers
conducted a felony stop. A man got out of the back of the SUV, yelling, “‘I’ve been shot.
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I’ve been shot.’” The officers identified the man as Jackson and assisted him in getting
medical help.
The officers returned to the Hillside Drive area to determine the location of the
crime scene and search for evidence. Bennett contacted Robert and his wife, who told
Bennett there had been gunshots in the area of their home and two men had been seen
jumping over a retaining wall, and running through the front yard of another residence.
Several other witnesses also saw the two men going over the retaining wall. Bennett saw
two sets of foot prints in the wet grass by the retaining wall of a nearby home. Law
enforcement secured the home on Hillside Drive, with an officer watching the back of the
home. A taxi came to pick up Marissa at the home. Bennett approached her as she
walked out to the cab. At Bennett’s request, Marissa called her mother, Rosanna Saubel,
and asked her to come outside. Rosanna came out and told Bennett there were no
suspects in her house. Only her two other daughters were there. Rosanna consented to
the officers searching her home to confirm the suspects were not there.
Bennett, Officer Feola, and Police Sergeant Hobb entered Rosanna’s home with
guns drawn. Rosanna’s two daughters, Selena and Liana, were in the living room. Feola
went to the back of the house and outside, where he chased a suspect in the backyard. He
apprehended and arrested the individual, who was identified as Gabriel Herrera. Feola
notified Bennett of the arrest by radio as Bennett continued searching the house. Bennett
told Selena and Liana that they could be subject to arrest if they did not tell him if anyone
else was in the house. Selena pointed to a bedroom and indicated someone was in there.
Bennett told Hobb and Feola, who had reentered the house, that someone was possibly in
5
the bedroom. Feola yelled for the individual to come out with his hands up. A short time
later, defendant crawled out of the bedroom.
After defendant was arrested, the officers thoroughly searched the house. Selena
indicated to Bennett that he should look in the laundry room. Bennett found in the
clothes hamper, under some clothes, a semiautomatic .45-caliber handgun. There was a
magazine in the gun and one cartridge in the chamber.
Officer Segura spoke to Jackson at the hospital. Jackson told him he saw two men
jump over David’s fence. Jackson went next door to tell David. David, Davis, and
Jackson got into Jackson’s SUV to look for the two men. When they found the men, they
confronted them about being at Jackson’s residence. One of the two men fought with
David on someone’s front lawn and the other individual shot Jackson. Davis similarly
told Segura that, while he was having dinner with David, Jackson came over and said two
men were in David’s backyard. David, Jackson, and Davis went to look for the two men
in Jackson’s truck. They found the two men a short distance away. Davis confirmed the
man who shot Jackson was not the man who was fighting with David.
Police Detective David Loera conducted separate infield show-ups at the police
station. Davis identified defendant and Gabriel as the two perpetrators. Davis identified
defendant as the shooter and said, “‘I’m pretty sure that’s him.’” “‘It was dark.’”
However, at the preliminary hearing, Davis recanted his identification. He testified he
could not see anyone because “[i]t was really dark and it happened so quick.” Jackson
testified at the preliminary hearing that he was positive defendant was not the shooter and
that he could recognize defendant because he went to school with defendant. Jackson
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described him as a “good guy” and said defendant was not a gang member.3
Gabriel testified at trial that on October 10, 2012, after drinking at home, he
“blacked out,” and then went to Selena’s house. He jumped over the gate and knocked
on the back door. She invited him into only the laundry room. Gabriel borrowed her
phone and went outside to call his mother. When he heard the police arrive, he ran
because he was on parole. Defendant was not with him that evening. Defendant and
Gabriel are cousins. Gabriel claimed he did not know defendant was in the house.
Gabriel pled guilty in the instant case to assault with a deadly weapon (his fists).
Gabriel said that, although he had gang tattoos and was a documented gang
member, he was “trying to do better with [his] life.” Gabriel admitted he was convicted
in 2009 of giving a false identification to police officers and of being an active member
of a criminal street gang. He pled guilty to the criminal street gang offense.
Gang Expert Testimony
Sergeant Hobb testified as a gang expert for the prosecution. Hobb stated that
Eastside Banning Sapos gang (ESBS) is the largest gang in the Banning/Beaumont area.
There are three cliques within the gang: the Santos, the Mad Ass Youngsters, and the Pee
Wee Locos. The gang’s primary activities are auto thefts, drug sales, thefts, burglaries,
and possession of guns. Nongang members usually refuse to cooperate with law
enforcement when ESBS is involved because of fear of retaliation and intimidation by the
gang.
3 Davis and Jackson’s preliminary hearing testimony was read to the jury, since they were found to be unavailable at the time of trial.
7
According to Hobb, ESBS committed two predicate crimes. On May 29, 2009,
Hobbs stopped a vehicle driving in a neighborhood where there were reports of
shootings. Three ESBS members were in the car. Hobb found two loaded firearms in the
car.
The second predicate crime was on January 6, 2010, when five ESBS members,
including defendant, got out of a car at an intersection and chased the 18-year-old victim
and his brother. The brother escaped but the ESBS members severely beat up the victim,
who was wearing a leg brace. A passerby intervened and called the police. Defendant
was arrested and charged with assault with a deadly weapon and a gang enhancement.
In Hobb’s opinion, defendant and Gabriel were active ESBS members. During
several police interviews, including in the instant case, defendant admitted membership
and said he had a gang moniker. Defendant also had numerous gang tattoos and was seen
on his brother’s website throwing gang signs. Gabriel also admitted gang membership,
beginning in 2007, and claimed to be a member of the Pee Wee Locos ESBS clique. He
had a moniker and several gang tattoos. Hobb also knew Rosanne Saubel. He had been
in her home and had seen ESBS graffiti on her daughter’s bedroom walls and door frame.
Hobb testified he would be suspicious if he saw two ESBS members walking
around a neighborhood, jumping over fences, and looking into backyards. He would
suspect the men were looking for someone or something to steal. In Hobb’s opinion, if
defendant fired a gun at a civilian, the crime would benefit ESBS by instilling fear in the
community and allowing ESBS to operate with impunity, since witnesses and victims
would be afraid to contact law enforcement. Defendant’s possession of a gun also
8
benefited ESBS, because it was used to protect defendant from other gang members and
law enforcement. Gun possession allowed defendant to harm others and commit crimes.
According to Hobb, it can be assumed that, if a citizen confronts two gang
members, the gang members will respond violently in defense of their turf, because the
gang’s reputation is at stake. A violent response would benefit the gang. Hobb strongly
believed that defendant’s crimes were committed for the benefit of ESBS. The violence
escalated from a fistfight to discharging a gun against Jackson. Defendant and Gabriel’s
violent response demonstrated the gang’s willingness to hurt others and warned the
community of ESBS’s presence in the community. It also showed that ESBS was not
afraid to commit crimes and did not fear law enforcement.
III
PRELIMINARY HEARING TESTIMONY
Defendant contends that admitting into evidence Jackson and Davis’s preliminary
hearing testimony violated his constitutional rights to present a defense, confrontation,
due process, cross-examination, compulsory process, and a fair trial. We disagree.
A. Procedural Background
During a pretrial hearing under Evidence Code section 402 (402 hearing), the
prosecutor informed the court that Jackson and Davis were unavailable to testify at trial.
Davis testified in this case at a preliminary hearing in December 2012,4 and Jackson
testified at a separate preliminary hearing in this case in April 2013. The prosecutor
4Ramirez erroneously testified the preliminary hearing occurred in 2011, which would have been before the charged crimes occurred.
9
maintained that after Jackson and Davis testified at the preliminary hearings, they
actively evaded service. The prosecution’s investigator, Edward Ramirez of the district
attorney’s office, testified during the 402 hearing that he was asked in February 2013, to
locate Jackson and Davis and took the following action.
Jackson
Ramirez discovered Jackson had moved after the subject shooting incident.
Ramirez contacted Jackson before the preliminary hearing, at his new address in April
2013. During Ramirez’s first contact with Jackson, Jackson refused to answer the door.
He said he did not want to have anything to do with the case and wanted to be left alone.
Jackson became belligerent. Ramirez left. A day or two later, two other investigators
served Jackson with a subpoena, and Jackson agreed to appear in court. Ramirez took
Jackson to court to testify at defendant’s preliminary hearing. Jackson, who was
cooperative, indicated he was willing to testify, and testified at defendant’s preliminary
hearing. Jackson was told at the preliminary hearing that he would be needed for trial.
In preparation for trial, the prosecutor asked Ramirez again to locate Jackson.
Ramirez went to Jackson’s last known residence and no one answered the door. No one
appeared to be living at the residence. Ramirez left his business card at Jackson’s home.
A neighbor across the street said Jackson had moved away about two weeks before.
Ramirez spoke to a supervisor at the U.S. Post Office, who indicated there was no
forwarding address for Jackson.
Ramirez attempted to locate Jackson’s wife. He searched various databases and
checked them daily for new information regarding Jackson and his wife. Ramirez also
10
checked Jackson and his wife’s Department of Motor Vehicles (DMV) records. Nothing
produced a more recent residence address. Ramirez routinely checked jail records for
Jackson and requested the Riverside County Sheriff’s Department to notify him if there
were any contacts with Jackson.
Jackson’s wife, who is Native American Indian, receives funds from her tribe.
Ramirez attempted to obtain information regarding Jackson’s wife through the tribe but
tribal members would not cooperate. Tribal police officer Gomez told Jackson that, even
if Ramirez knocked on tribal members’ doors, they would not talk to him or answer their
doors.
Ramirez also went twice to Jackson’s mother’s home in Redlands. She told
Ramirez she had nothing to do with her son and did not speak to him. She asked Ramirez
to leave her property. Ramirez acknowledged he did not know if Jackson was actually
actively evading service, since Jackson might not know Ramirez was looking for him.
Davis
Davis moved after the preliminary hearing. Ramirez’s efforts to locate Davis after
he moved included searching various databases. Ramirez routinely checked Davis’s jail
records to see if he was in custody. Ramirez also provided information on Davis to
various law enforcement agencies, including the Banning task force and the deputy
district attorney assigned to the reservation, to assist in locating him.
Ramirez met with the Morongo tribal police chief, and spent a day conducting
surveillance on the Indian reservation, since Davis’s wife, Jordan Davis, is Native
American Indian. Ramirez discovered she received money from the tribe and had a home
11
on the reservation. Jordan’s mother and other relatives also lived on the reservation.
Ramirez met with the tribal police and went with them to Jordan’s relatives’ homes on
the reservation. Ramirez and another investigator conducted four hours of surveillance
where Jordan picked up her tribal check. Jordan did not appear during the surveillance.
If a tribal check is not picked up, it is mailed to the member.
On the day of the surveillance, Ramirez provided the tribal police with
photographs of Davis. The tribal police indicated they would try to locate Davis. When
Ramirez spoke to the tribal police, he was told the tribal police would not provide any
information because they did not trust law enforcement. Ramirez was told he was
“spinning [his] wheels by talking to them.” When Ramirez attempted to get the address
used for disbursement of the tribal funds to Davis and Jordan, tribal officer Gomez told
Ramirez he could not directly go to the person disbursing the funds and ask for Davis and
Jordan’s address. If he did ask, he would not be provided with an address. Gomez said
he would try to obtain a list of addresses for Ramirez that same afternoon and
immediately call Ramirez when he received it, but Gomez never called Ramirez back.
The home Ramirez was told Jackson and Jordan were building on the reservation was
merely a mailbox on the main road. There was no construction.
Ramirez checked three addresses for Davis provided by the Banning Police
Department. At each address, people who occupied the residences told him Davis and his
wife no longer lived there. Ramirez checked a post office box address for Jordan. The
address was Jordan’s mother’s address on the reservation. Officer Gomez told Ramirez
he was not permitted to go to Jordan’s mother’s address. Unless it was an emergency,
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Ramirez had to be accompanied on the reservation by Officer Gomez when searching for
someone. Gomez went to Jordan’s mother’s residence and then told Ramirez Jordan’s
mother’s vehicle was not there. Gomez said it would be fruitless for Ramirez to try to
talk to her because no one at Jordan’s mother’s home would talk to law enforcement.
Ramirez spoke to Davis’s father six or seven times, from February 2013, up until a
week before Ramirez’s testimony at the 402 hearing in July 2013. Ramirez contacted
Davis’s father at Davis’s last known address in Banning. Davis’s father was not
cooperative. He said he had not seen Davis since the shooting incident, which Ramirez
did not believe. When asked for contact information for Davis, Davis’s father said he
had none. Twice Ramirez also spoke to Davis’s grandmother who lived next door to
Davis’s father. She said she did not know where Davis was. Ramirez was unable to find
out anything regarding Davis or Jordan’s location. The cell phone numbers Ramirez was
given for Davis and Jordan were no longer in service. Ramirez did not have any
information on whether Davis and Jordan were employed.
Ramirez checked an address on Nicolet, which a police officer told Davis
defendant frequently visited. Ramirez conducted surveillance there for two hours, with
no results. Ramirez also conducted surveillance at Davis’s father’s home a few times for
one to two hours but did not see Davis. Ramirez met with the Banning Police
Department three or four times to see if they had seen Davis. Ramirez believed Davis
was aware Ramirez was looking for him, and was actively avoiding service. Ramirez
believed Davis was living with Jordan on the reservation.
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402 Hearing on Admissibility of Preliminary Hearing Testimony
During the hearing on excluding Davis and Jackson’s preliminary hearing
testimony, the prosecution argued Ramirez had exercised due diligence in attempting to
procure Davis and Jackson’s attendance at trial but was unable to locate them. Therefore
the witnesses were unavailable to testify at trial and their preliminary hearing testimony
was admissible. The trial court concluded there was no additional information regarding
Jackson and Davis’s location and nothing further that could be done to find them. They
might be on the Indian reservation but law enforcement could not search the reservation
because of denial of access and lack of cooperation by the tribal police and tribal
members. The court found that reasonable efforts were made to locate the witnesses.
Therefore Jackson and Davis were unavailable as witnesses and their preliminary hearing
testimony was admissible at trial under Evidence Code section 1291.
During the third day of trial, Jackson and Davis’s preliminary hearing testimony
was read to the jury. Later, the morning of July 9, 2013, the prosecutor informed the
court that defense counsel had told him Jackson was in custody. Defense counsel
informed the court Jackson was found at Banning Road Camp and was currently at the
Larry Smith facility, with an arraignment scheduled for the following morning in
department 63 of the Riverside Superior Court. The prosecutor offered to have his
investigators bring Jackson to the court to speak with an investigator. The court indicated
Jackson would testify the following day, when in court for arraignment on the other
criminal matter. Later, in the afternoon on July 9, 2013, the prosecutor advised the court
that, when his investigators went to pick up Jackson, they discovered he was not in the
14
Banning jail. He was arrested on June 25, 2013, and released that same day on bail.
Jackson’s bail bondsman told the prosecutor Jackson had given him a false address.
However, Jackson was due in court on July 10, 2013.
The prosecutor requested closing arguments be continued one day to allow
Jackson to testify in the case, after he appeared in court, in department 63, on July 10.
The court agreed to continue closing argument until July 11, 2013. It was anticipated that
during the morning of July 10, Jackson would testify after arraignment in department 63.
If Jackson did not show up, the parties could proceed with closing argument.
On July 10, 2013, the prosecutor informed the court that defendant did not show
up for arraignment in department 63. Jackson had two cases in Banning and had not been
in court for two of his last three court appearances. Jackson was arrested on the Indian
reservation. The court clerk in the instant matter was instructed to inform department 63
that, if Jackson appeared, the instant court needed to know immediately. If defendant did
not appear in the Riverside courthouse by the time evidence was completed, jury
instructions would be discussed and the parties would proceed with closing arguments.
After the close of evidence, the court informed the parties that, according to the
clerk in department 63, Jackson did not appear for arraignment. The prosecutor stated his
investigator went to the address Jackson had given his bail bondsman and the house was
vacant, with a car next to the house covered in dust. After waiting there a couple of
hours, the investigator concluded no one lived at the house.
Later, after a recess, the court informed the parties that Jackson appeared in court
in Banning, not in department 63 in Riverside. Jackson indicated he had been in the
15
hospital and appeared in court in a hospital gown. His arraignment in Banning was
continued. The court in Riverside advised counsel in the instant case that there was no
warrant out for Jackson and, since he had not been ordered to appear for defendant’s trial,
the court did not have authority to issue a warrant for his appearance. The parties agreed
to proceed with defendant’s trial.
The following day, July 11, 2013, the court again told the parties that the court
clerk in Banning had called and confirmed that Jackson had walked into the Banning
courtroom on July 10 in a hospital gown, with his sister. He had left the hospital against
the wishes of hospital personnel. His Coumadin levels were out of control and he was
scheduled for surgery on July 11, for complications relating to his gunshot wound from
the charged shooting incident. He intended to return to the hospital after leaving the
Banning court. The court issued a warrant for defendant, pending until July 24, 2013.
When the trial court in the instant case asked counsel if they wanted anything further
done regarding Jackson, counsel said no. The trial thereafter continued to completion,
with neither Jackson nor Davis appearing at trial.
B. Applicable Law
The confrontation clauses of the federal and state Constitutions guarantee a
criminal defendant the right to confront the prosecution’s witnesses. (U.S. Const., 6th
Amend.; Cal. Const. art. I, § 15.) “‘“An exception exists when a witness is unavailable
and, at a previous court proceeding against the same defendant, has given testimony that
was subject to cross-examination. Under federal constitutional law, such testimony is
admissible if the prosecution shows it made ‘a good-faith effort’ to obtain the presence of
16
the witness at trial.” [Citations.]’” (People v. Fuiava (2012) 53 Cal.4th 622, 674-675
(Fuiava).)
Under Evidence Code section 1291, subdivision (a)(2), “[e]vidence of former
testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was
a party to the action or proceeding in which the testimony was given and had the right
and opportunity to cross-examine the declarant with an interest and motive similar to that
which he has at the hearing.” (Evid. Code, § 1291, subd. (a)(2).) A witness is
unavailable if “[a]bsent from the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his or her attendance by the
The People do not oppose defendant’s contention his sentence on count 3
(participation in a street gang (§ 186.22, subd. (a)) must be stayed under section 654. The
trial court imposed a consecutive term on count 3 of one year four months.
Under People v. Mesa (2012) 54 Cal.4th 191, 193, section 654 precludes
punishment for both participation in a street gang (§ 186.22, subd. (a)) and underlying
felonies (assault with a firearm and possession of a firearm by a felon), which transform
mere gang membership (a noncrime) into the crime of actively participating in a criminal
street gang. On resentencing, the sentence on count 3 must be stayed. (See People v.
Ahmed (2011) 53 Cal.4th 156, 164 [section 654 “bars multiple punishment for the same
31
aspect of a criminal act.”].) Defendant cannot suffer multiple punishments for active
gang participation and the underlying felonies. (Mesa, at pp. 197-198.)
VIII
DISPOSITION
The judgment is ordered modified to stay the one-year-four-month sentence on
count 3 (participation in a street gang) under section 654. In all other regards, the
judgment is affirmed. The trial court is directed to prepare a corrected abstract of
judgment and to forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in admitting the preliminary hearing testimony of unavailable witnesses and that there was sufficient evidence to support the convictions, though the sentence on the gang participation count must be stayed under Penal Code section 654.
Issues
Whether the admission of preliminary hearing testimony of unavailable witnesses violated the defendant's constitutional rights.
Whether there was sufficient evidence to support the convictions and gang enhancements.
Whether the sentence on the gang participation count (count 3) must be stayed under Penal Code section 654.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“We conclude there was no prejudicial error, with the exception the sentence on count 3 must be stayed under section 654. In all other regards, we affirm the judgment.”
“The trial court concluded there was no additional information regarding Jackson and Davis’s location and nothing further that could be done to find them.”
“The court found that reasonable efforts were made to locate the witnesses.”