California Court of Appeal Aug 31, 2016 No. D069072Unpublished
Filed 8/31/16 P. v. Guerrero CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069072
Plaintiff and Respondent,
v. (Super. Ct. No. FBA1200622)
EDWIN GUERRERO et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Bernardino County,
Alexander R. Martinez, Judge. Affirmed in part; reversed in part; remanded with
directions.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant Reginaldo J. Acosta, Jr.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and
Appellant Ana Dimas.
Kurt D. Hermansen, under appointment by the Court of Appeal, for Defendant and
Appellant Edwin Guerrero.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 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.
A jury convicted Edwin Guerrero, Ana Dimas, and Reginaldo J. Acosta, Jr.,
substantial evidence to support a defense existed." (People v. Shelmire (2005) 130
Cal.App.4th 1044, 1055.)
The defense of duress is defined by statute. The defense covers crimes (except
those punishable by death) by defendants "who committed the act or made the omission
charged under threats or menaces sufficient to show that they had reasonable cause to and
did believe their lives would be endangered if they refused." (§ 26.) The threats or
menaces must be immediate—"the situation of a present and active aggressor threatening
immediate danger"—and life-threatening. (People v. Condley (1977) 69 Cal.App.3d 999,
1011.) "To establish duress a defendant would have to show that he had (1) an actual
belief his life was threatened and (2) a reasonable cause of such belief. Because of the
immediacy requirement, a person committing a crime under duress has only the choice of
imminent death or executing the requested crime. The person being threatened has no
time to formulate what is a reasonable and viable course of conduct nor to formulate
criminal intent." (Id. at p. 1012.) " 'Duress is an effective defense only when the actor
responds to an immediate and imminent danger.' " (People v. Hamlin (2009) 170
Cal.App.4th 1412, 1460.)
The record here provides no basis for the defense of duress. There is no evidence
Acosta or Guerrero threatened Dimas with harm, let alone threatened her life. Dimas
points to Acosta's acts of violence directed towards Albino, Smith, and DePersis. But
those acts do not give rise to a reasonable inference that Dimas's life was threatened.
19
Dimas also points to evidence that Acosta told Dimas to drive Smith's Toyota and to slow
down while she was driving. Acosta's statements were not accompanied by any threat
(immediate or otherwise), and no such threat can be reasonably inferred from the
evidence. As such, they provide no basis for the defense of duress. (See People v.
Manson (1976) 61 Cal.App.3d 102, 206 ["Simply following orders is not a defense under
the facts of this case."].) In closing argument, Dimas's counsel appeared to argue a
theory somewhat related to duress. However, absent evidence to support a defense, the
trial court was not required to instruct on it. " 'A party is not entitled to an instruction on
a theory for which there is no supporting evidence.' " (People v. Roldan (2005) 35
Cal.4th 646, 715.)
IV
Carjacking
Guerrero, Dimas, and Acosta contend their convictions for carjacking (§ 215)
should be reversed because carjacking is a lesser included offense of kidnapping during
carjacking (§ 209.5), of which they were also convicted. (People v. Ortiz (2002) 101
Cal.App.4th 410, 415; People v. Contreras (1997) 55 Cal.App.4th 760, 765.) The
Attorney General concedes the issue, and we agree. We will therefore reverse
defendants' convictions for carjacking.
V
Gang Enhancements
Guerrero, Dimas, and Acosta contend the evidence does not support the gang
enhancements found by the jury. The statute prescribes the enhancement for "any person
20
who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).)
The statute establishes two prongs that must be met in order to find the
enhancement. The first prong requires the underlying crime to be committed for the
benefit of, at the direction of, or in association with any criminal street gang. (§ 186.22,
subd. (b)(1).) The Legislature included this prong "to make it 'clear that a criminal
offense is subject to increased punishment under the [Street Terrorism Enforcement and
Prevention] Act only if the crime is "gang related." ' [Citation.] Not every crime
committed by gang members is related to a gang." (People v. Albillar (2010) 51 Cal.4th
47, 60 (Albillar).) However, as a general matter, a jury may "reasonably infer the
requisite association from the very fact that [a] defendant committed the charged crimes
in association with fellow gang members." (People v. Morales (2003) 112 Cal.App.4th
1176, 1198 (Morales); see Albillar, at p. 62.) The second prong requires a defendant to
specifically intend to promote, further, or assist in criminal conduct by gang members.
(§ 186.22, subd. (b)(1).) This criminal conduct may include the offense or offenses to
which the enhancement applies and is not limited to other criminal conduct by gang
members. (Albillar, at p. 65.) Therefore, "if substantial evidence establishes that the
defendant intended to and did commit the charged felony with known members of a
gang, the jury may fairly infer that the defendant had the specific intent to promote,
further, or assist criminal conduct by those gang members." (Id. at p. 68.)
21
"In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt." (Albillar, supra, 51 Cal.4th at pp. 59-60.)
As to the first prong, the evidence supports the reasonable inference that the
offenses here were committed in association with the BLP criminal street gang. Acosta
and Guerrero were members of BLP, and Dimas was an associate. The fact the offenses
were committed with BLP gang members or associates shows the offenses were
committed in association with BLP. (See Morales, supra, 112 Cal.App.4th at p. 1198;
see also Albillar, supra, 51 Cal.4th at p. 62.) Acosta and Guerrero were committed BLP
gang members, as shown by their numerous contacts with law enforcement and their
gang tattoos; Dimas likewise was substantially connected to BLP, and she had Acosta's
gang moniker tattooed on her finger. The defendants' commitment to BLP supports the
inference that the offenses were committed in association with BLP. (See People v.
Livingston (2012) 53 Cal.4th 1145, 1171; see also Albillar, at p. 62.) The evidence also
showed that Acosta obtained the Honda Civic—a crucial part of the events surrounding
the charged offenses—from a BLP gang associate. (See Albillar, at p. 60 ["defendants
relied on . . . the apparatus of the gang in committing" the offenses].) Thus, not only
were the defendants members of or associated with BLP, but their car was associated
with a BLP associate as well. Finally, Sarti, the prosecution's gang expert, testified that
the crimes were committed for the benefit of, at the direction of, and in association with
22
BLP. Given this record, the jury was entitled to find the offenses were committed in
association with BLP under section 186.22, subdivision (b)(1).2
Defendants point out that they did not display any gang signs, mention their gang
affiliation, or otherwise communicate anything related to BLP during the charged
offenses. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 662 [reversing gang
enhancement where defendant, acting alone, did not show any gang affiliation during the
offense].) The absence of such evidence, however, does not make the jury's inference
unreasonable based on the evidence we have already discussed. Defendants also claim
the considerable geographic distance between the locations of the offenses and BLP's
gang territory makes any inference of association unreasonable. Courts have recognized
that offenses, even those committed by gang members, may not be associated with a gang
where the gang members were on a "frolic and detour" unrelated to the gang. (See
Albillar, supra, 51 Cal.4th at p. 62; Morales, supra, 112 Cal.App.4th at p. 1198.) A
reasonable jury might well have found that the circumstances of the offenses here were
such a situation. But the jury here found the opposite. As we have noted, the question is
not whether the jury could have found the crimes were not gang related, but whether the
evidence was sufficient to support the reasonable inference they were. We conclude the
2 Additional evidence supporting this prong of the gang enhancement was admitted against Acosta only. Investigators recorded a jailhouse phone call between Acosta and Duran, the BLP gang associate who had provided the Honda to Acosta. During the call, Acosta told Duran that, on the day of the charged offenses, "he had did [sic] everything for the hood . . . ." The jury could reasonably infer from this statement that Acosta's reference to "the hood" was synonymous with the BLP criminal street gang and that he had committed the charged offenses in association with and for the benefit of BLP. 23
great geographic distance here did not preclude the jury from making the reasonable
inference that the offenses here were committed in association with the gang, given the
significant gang commitments of each of the defendants, the fact the defendants acted
together, and the fact the vehicle in which they traveled the distance was itself obtained
from a BLP gang associate.
Guerrero claims the fact that a defendant commits an offense with other gang
members is insufficient as a matter of law to support the reasonable inference that the
defendant committed the offense in association with a gang. As an initial matter, we note
that the evidence here was not so limited, as we have discussed. Moreover, Guerrero's
argument runs counter to the holding in Morales, supra, 112 Cal.App.4th at page 1198,
that "the jury could reasonably infer the requisite association from the very fact that
defendant committed the charged crimes in association with fellow gang members." In
support, Guerrero points to authority from our Supreme Court that the second prong of
the gang enhancement is met where a defendant commits an offense with other gang
members. (See Albillar, supra, 51 Cal.4th at p. 68.) If the same evidence could support
the first prong as well, Guerrero argues, the two prongs would be impermissibly
redundant. Guerrero is incorrect. The rule against redundancy (or surplusage) is a
maxim of interpretation used when construing statutory language. (See, e.g., Dyna-Med,
Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d 1379, 1387 ["A
24
construction making some words surplusage is to be avoided."].)3 The rule is not
implicated where two statutory provisions, with different substantive meanings, are
satisfied by the reasonable inferences flowing from the same evidence.
As to the second prong, the record supports the conclusion that the defendants
intended to and did commit the charged offenses with known members of BLP (Acosta
and Guerrero). As we have discussed, our Supreme Court has held a jury may reasonably
infer on that basis that each defendant had the specific intent to promote, further, or assist
criminal conduct by gang members. (See Albillar, supra, 51 Cal.4th at p. 68.) The
evidence therefore supports both prongs of the gang enhancements found by the jury.
VI
Active Participation in a Criminal Street Gang
Dimas contends the evidence does not support her conviction for active
participation in a criminal street gang under section 186.22. The statute provides as
follows: "Any person who actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished . . . ." (§ 186.22, subd. (a).) "The
elements of the gang participation offense in section 186.22[, subdivision] (a) are: First,
active participation in a criminal street gang, in the sense of participation that is more
3 Guerrero cites a concurring and dissenting opinion from our Supreme Court as authority for the same rule. (See People v. Fierro (1991) 1 Cal.4th 173, 262 (conc. & dis. opn. of Kennard, J.).) 25
than nominal or passive; second, knowledge that the gang's members engage in or have
engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.
[Citation.] A person who is not a member of a gang, but who actively participates in the
gang, can be guilty of violating section 186.22[, subdivision] (a)." (People v. Rodriguez
(2012) 55 Cal.4th 1125, 1130.) We review Dimas's conviction for substantial evidence.
(People v. Rios (2013) 222 Cal.App.4th 542, 559.)
Dimas appears to challenge the sufficiency of the evidence only as to the first
element of the offense. She claims the evidence of her involvement with BLP was
limited to a handful of occasions when law enforcement contacted her in the company of
at least one BLP member. Dimas ignores the evidence of her tattoo with Acosta's gang
moniker, which the jury could reasonably have interpreted as a sign of involvement with
BLP. Dimas also ignores the facts of the charged offenses, which show she was a willing
participant in a series of violent acts with two BLP gang members. Given this evidence,
and the supporting opinions of gang expert Sarti, the jury could reasonably find that
Dimas's involvement with BLP was more than nominal or passive. (See People v.
Rodriguez, supra, 55 Cal.4th at p. 1130.) The evidence supports Dimas's conviction.
VII
Gang Expert Testimony
A
Defendants contend the court erred in admitting Sarti's expert testimony that the
charged offenses were committed for the benefit of, at the direction of, and in association
26
with BLP. At trial, Sarti testified on behalf of the prosecution. During his testimony,
Sarti stated he was familiar with the facts of the case based on reports he had obtained
from the district attorney's office, conversations with a detective from the San Bernardino
County Sheriff's Department, and Sarti's own knowledge of the defendants themselves.
The prosecutor then summarized the facts of the case in a lengthy narrative, interrupting
the narrative several times to ask Sarti whether the narrative was consistent with the
information Sarti reviewed. Sarti responded affirmatively each time. After the narrative
was complete, the prosecutor asked Sarti the following question: "Based on your
knowledge of these individuals, based on your training and experience, based on your
knowledge of Barrio Los Padrinos, based on your knowledge of the facts in this case, the
exhibits you've reviewed, the law enforcement officers that you have spoken with, do you
have an opinion as to whether the crimes in this case were committed for the benefit of, at
the direction of, or in association with a criminal street gang?" Dimas's counsel objected
on the grounds that the question called for a legal conclusion, invaded the province of the
jury, and called for subjective intent testimony. The court overruled the objection, and
Sarti answered in the affirmative.
The prosecutor next asked Sarti to state his opinion. Sarti responded, "It is my
opinion that this crime was committed at the direction of, and in association of [sic] the
criminal street gang of Barrio Los Padrinos. It is my opinion that this gang is committing
crime. Even though they are committing this crime in San Bernardino County, it will
make its way back to Los Angeles County. Individuals [who] come to the court to
support family members will talk about this, as well as the individuals themselves will
27
talk about this to other members [who] are incarcerated, which will eventually make its
way back. These members worked together. Two individuals are from Barrio Los
Padrinos and one individual is an associate. So that's what I base my opinion on."
Dimas's counsel again objected, and the court overruled the objection. Sarti went on to
explain in more detail the grounds for his opinion, including the benefit he believed
would accrue to BLP based on the crimes.
The admissibility of expert testimony is governed by statute: "If a witness is
testifying as an expert, his testimony in the form of an opinion is limited to such an
opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience
that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter
(including his special knowledge, skill, experience, training, and education) perceived by
or personally known to the witness or made known to him at or before the hearing,
whether or not admissible, that is of a type that reasonably may be relied upon by an
expert in forming an opinion upon the subject to which his testimony relates, unless an
expert is precluded by law from using such matter as a basis for opinion." (Evid. Code,
§ 801.) The statute establishes two requirements for the admissibility of expert
testimony: (1) the subject matter of the testimony must be sufficiently beyond common
experience to assist the trier of fact and (2) the testimony must be based on a proper
matter, either personal knowledge or any other matter upon which experts in the field
may reasonably rely. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) "A trial
court's decision to admit expert testimony is reviewed for abuse of discretion." (People v.
Lindberg (2008) 45 Cal.4th 1, 45 (Lindberg).)
28
Relying on the Supreme Court's opinion in People v. Vang (2011) 52 Cal.4th 1038
(Vang), defendants argue that Sarti's opinion testimony was improper because it was
based on the facts of the case, rather than a hypothetical question grounded in those facts.
In Vang, the prosecutor posed hypothetical questions to a gang expert, which the trial
court allowed. (Id. at pp. 1042-1043.) On appeal, the Supreme Court considered "the
propriety of permitting the gang expert to respond to the hypothetical questions the
prosecution asked regarding whether defendants' [crime] was gang related." (Id. at
p. 1044, italics added.) The Supreme Court found the hypothetical questions permissible.
It rejected the defense argument that the hypothetical questions mirrored the facts of the
case too closely: "The parties agree that the hypothetical questions of this case were
based on the evidence. But the Court of Appeal found these questions were too closely
based on the evidence in a manner that was only 'thinly disguised.' This conclusion
transforms the requirement that a hypothetical question be rooted in the evidence into a
prohibition—or at least into the confounding rule that the party posing the question must
disguise from the jury the fact it is rooted in the evidence—and not 'thinly,' it appears, but
thickly." (Id. at p. 1046.)
Contrary to defendants' interpretation, the Supreme Court did not announce a
general rule that questions soliciting the opinions of a gang expert must be phrased
hypothetically. The Supreme Court explicitly recognized that "in some circumstances,
expert testimony regarding the specific defendants might be proper." (Vang, supra, 52
Cal.4th at p. 1048, fn. 4, citing People v. Valdez (1997) 58 Cal.App.4th 494, 507
(Valdez).) After assuming the gang expert could not properly have testified about the
29
defendants under the facts of that case (Vang, at p. 1048), the Supreme Court explained
that the propriety of the questions should be judged against the statutory requirement that
the subject matter must be sufficiently beyond common experience to assist the trier of
fact. (Id. at p. 1048.) The Supreme Court concluded, "To the extent the expert may not
express an opinion regarding the actual defendants, that is because the jury can determine
what the defendants did as well as an expert, not because of a prohibition against the
expert opining on the entire subject. Using hypothetical questions is just as appropriate
on this point as on other matters about which an expert may testify." (Id. at p. 1052.)
In Valdez, which the Supreme Court cited in Vang, the Court of Appeal considered
whether a gang expert's testimony, not in response to hypothetical questions, was
admissible. (Valdez, supra, 58 Cal.App.4th at pp. 503-504.) The facts of the case
involved an unusual scenario: A group of individuals from seven different gangs united
together to murder a rival gang member. (Id. at pp. 499, 503.) As the Supreme Court
later instructed, the Court of Appeal in Valdez assessed the expert's testimony based on
whether it would assist the trier of fact under the circumstances of that case: "Under the
circumstances, the questions of how such a diverse group, which, in [the gang expert's]
opinion, represented seven different Norteño gangs, could have been acting for the
benefit of a street gang and whether the participants were doing so presented matters far
beyond the common experience of the jury and justified expert testimony. . . . Given the
unique facts and [the gang expert's] expertise in evaluating the history, customs, and
behavior of Hispanic gangs in general, and Norteño gangs in particular, we cannot say the
trial court abused its discretion in finding that an expert opinion about whether the
30
participants acted for the benefit of each and every gang represented by the caravan
would be of assistance to the jury in evaluating the evidence and determining whether the
prosecution had proved the enhancement allegation." (Id. at pp. 508-509.)4
The facts here were similarly unusual. The defendants were members of two
different gangs, BLP and Hickory Street Watts, and the relationships among the
defendants were complex. The charged offenses took place far from BLP's gang
territory, and the spree of violence unfolded without a clear motive. Given these facts,
and the well-settled rule that "expert testimony regarding whether a crime was gang
related is admissible" because "[s]uch matters are sufficiently beyond common
experience that expert testimony would assist the jury" (Vang, supra, 52 Cal.4th at
p. 1049, fn. 5), the trial court could reasonably believe Sarti's opinion testimony about the
charged crimes would be helpful to the jury. (See Valdez, supra, 58 Cal.App.4th at
pp. 508-509.) The court did not abuse its discretion in admitting testimony that the
charged offenses were committed for the benefit of, at the direction of, or in association
with a criminal street gang.
4 Other cases have approved expert opinion testimony about a specific defendant or charged offense, rather than a hypothetical defendant or offense. (See Lindberg, supra, 45 Cal.4th at p. 49 [no error in admission of expert testimony that "defendant was a White supremacist"]; People v. Carter (1997) 55 Cal.App.4th 1376, 1377-1378 [no error in admission of expert testimony that "defendant possessed rock cocaine for purposes of sale"].) Expert testimony on such topics must be assessed in each case, based on the specific facts of the case and the expert's proposed testimony, and this assessment is committed to the trial court's sound discretion. In many, even most, cases such testimony will be unhelpful. (See, e.g., Vang, supra, 52 Cal.4th at pp. 1048-1049.) As we explain, however, defendants have not shown that the trial court abused its discretion in finding Sarti's testimony helpful to the jury under the facts here. 31
Guerrero argues the jury was just as able as Sarti to determine whether the charged
offenses were committed for the benefit of, at the direction of, or in association with
BLP, once Sarti had explained the concepts of gang reputation and territory. Given the
unusual facts of this case, however, we cannot say Sarti's opinion on this issue was
wholly unhelpful. (See Lindberg, supra, 45 Cal.4th at p. 45 ["In determining the
admissibility of expert testimony, 'the pertinent question is whether, even if jurors have
some knowledge of the subject matter, expert opinion testimony would assist the jury.' "];
see also People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) Just as in Valdez, the
opinions of Sarti, a gang expert who had years of experience with BLP and criminal
street gangs, could reasonably assist the jury in determining whether the charged crimes
were committed for the benefit of, at the direction of, or in association with BLP because
Sarti could bring his expertise to bear on that issue. (See Valdez, supra, 58 Cal.App.4th
at pp. 508-509.)
Defendants have not shown the court abused its discretion in admitting Sarti's
opinion testimony. Because we find no error, we need not consider defendants'
contentions regarding the prejudicial effect of the claimed error.
B
Following oral argument in this appeal, the Supreme Court decided People v.
Sanchez (2016) 63 Cal.4th 665 (Sanchez). Sanchez held, among other things, that a gang
expert may not "relate as true case-specific facts asserted in hearsay statements, unless
they are independently proven by competent evidence or are covered by a hearsay
exception." (Id. at p. 686.) We requested supplemental briefing regarding Sanchez's
32
potential effect on the disposition of this appeal. In their supplemental briefs, Guerrero,
Dimas, and Acosta argue that the trial court erred under Sanchez by allowing Sarti to
testify regarding certain case-specific facts derived from hearsay and to opine regarding
the relationship between the charged crimes and the criminal street gang BLP based on
those facts.
At trial, the prosecutor questioned Sarti regarding his background, the
characteristics of criminal street gangs in general and of BLP in particular, and the
specific factual bases for his opinions. As to his opinion that Acosta was an active
member of BLP, Sarti testified that he relied on his personal contacts with Acosta, in
which Acosta admitted he was an active member of BLP; tattoos on Acosta's body
showing affiliation with BLP; and another contact with law enforcement in which Acosta
hid a loaded gun under the driver's seat of his vehicle and again admitted to being an
active member of BLP. As to Guerrero, Sarti testified that he relied on Guerrero's tattoos
as well as field identification cards prepared by other law enforcement officers in which
Guerrero admitted to being an active member of BLP. For Dimas, Sarti relied on his
personal contacts with Dimas in the presence of Acosta's brother, a BLP member;
Dimas's tattoo of Acosta's BLP gang moniker; and the facts of the charged crimes.
As we have discussed, Sarti testified that he was familiar with the facts of the
charged crimes in response to lengthy narrative questions posted by the prosecutor. Sarti
explained that his familiarity was based on reports provided by the district attorney's
office and conversations with a detective in the San Bernardino County Sheriff's
Department. Other than stating that the prosecutor's recitation of facts was consistent
33
with his understanding, Sarti did not relate specific aspects of the reports or his
conversations with the detective.
Sanchez provides the framework for analyzing the admissibility of expert
testimony alleged to be inadmissible hearsay. "While lay witnesses are allowed to testify
only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert
witnesses are given greater latitude." (Sanchez, supra, 63 Cal.4th at p. 675.) "In addition
to matters within their own personal knowledge, experts may relate information acquired
through their training and experience, even though that information may have been
derived from conversations with others, lectures, study of learned treatises, etc." (Ibid.)
Historically, "an expert's testimony concerning his general knowledge, even if technically
hearsay, has not been subject to exclusion on hearsay grounds." (Id. at p. 676.) "By
contrast, an expert has traditionally been precluded from relating case-specific facts about
which the expert has no independent knowledge." (Ibid.)
Sanchez recognized the line between these two categories had become blurred.
The governing statute provides that, in addition to his or her general knowledge, an
expert "may state on direct examination the reasons for his opinion and the
matter . . . upon which it is based, unless he is precluded by law from using such reasons
or matter as a basis for his opinion." (Evid. Code, § 802.) "Accordingly, in support of
his opinion, an expert is entitled to explain to the jury the 'matter' upon which he relied,
even if the matter would ordinarily be inadmissible." (Sanchez, supra, 63 Cal.4th at
p. 679.) Confronted by hearsay objections to an expert's description of the "matter" upon
which his or her opinion was based, courts developed the principle that such matters were
34
offered only for the purpose of evaluating the expert's testimony—and not for their truth,
thus obviating any hearsay objection—and instructed juries accordingly. (Id. at p. 679,
citing People v. Montiel (1993) 5 Cal.4th 877, 919.) "Thus, under this paradigm, there
was no longer a need to carefully distinguish between an expert's testimony regarding
background information and case-specific facts. The inquiry instead turned on whether
the jury could properly follow the court's limiting instruction in light of the nature and
amount of the out-of-court statements admitted." (Sanchez, at p. 679.)
Sanchez rejected this paradigm and disagreed that an expert's testimony regarding
the matters on which his or her opinion is based is not offered for its truth: "When an
expert relies on hearsay to provide case-specific facts, considers the statements as true,
and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically
be asserted that the hearsay content is not offered for its truth. In such a case, 'the
validity of [the expert's] opinion ultimately turn[s] on the truth' [citation] of the hearsay
statement. If the hearsay that the expert relies on and treats as true is not true, an
important basis for the opinion is lacking." (Sanchez, supra, 63 Cal.4th at pp. 682-683.)
Under Sanchez, because the expert's testimony is offered for its truth, it may be
hearsay and must be evaluated for admissibility as such. "Like any other hearsay
evidence, it must be properly admitted through an applicable hearsay exception."
(Sanchez, supra, 63 Cal.4th at p. 684.) "An expert may still rely on hearsay in forming
an opinion, and may tell the jury in general terms that he did so." (Ibid.) "What an
expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless
they are independently proven by competent evidence or are covered by a hearsay
35
exception." (Id. at p. 686.) And, like any hearsay, if the out-of-court statement is
testimonial and offered against the defendant in a criminal prosecution, Crawford v.
Washington (2004) 541 U.S. 36 (Crawford) and its progeny govern its admissibility.
(Sanchez, at p. 686.)5
Acosta and Dimas argue that Sarti's responses to the prosecutor's narrative
questions regarding the facts of the charged crimes were inadmissible hearsay under
Sanchez because Sarti's understanding of those facts was derived from reports provided
by the prosecution and discussions with a detective. The reports were not entered into
evidence, and the detective who provided information to Sarti did not testify. We agree
that Sarti's testimony effectively related the substance of the hearsay sources on which he
relied and provided case-specific factual information from those sources to the jury. The
prosecutor summarized, in detail, case-specific facts and asked Sarti if they were
consistent with his understanding. By answering in the affirmative, Sarti informed the
jury that the hearsay sources he relied upon contained the same facts.
The Attorney General points out that the prosecutor's questions were explicitly
tied to the testimony at trial and Sarti did not directly summarize the contents of his
hearsay sources. Sarti, however, did not base his understanding of the facts on trial
testimony. His understanding came from hearsay sources. When Sarti agreed that his
5 Sanchez did not affect the longstanding rule that an expert may testify regarding general principles in his or her field even if based on hearsay: "Our decision does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in the field." (Sanchez, supra, 63 Cal.4th at p. 685.) 36
understanding of the facts was consistent with the prosecutor's recitation, therefore, Sarti
was confirming that the contents of those hearsay sources was consistent with the trial
testimony. Because the jury heard testimony regarding the contents of hearsay
statements, they were inadmissible absent a showing of an exception to the hearsay rule.
And, given their likely testimonial content, a showing of admissibility under Crawford
was required as well.
Assuming no hearsay exception (or exceptions, given the likely multiple layers of
hearsay in the reports and the detective's statements) applied, and the statements were
testimonial, we nonetheless conclude the admission of Sarti's testimony was harmless.
The erroneous admission of testimonial hearsay in a criminal prosecution requires
reversal unless the error was harmless beyond a reasonable doubt. (Sanchez, supra, 63
Cal.4th at p. 699; People v. Capistrano (2014) 59 Cal.4th 830, 874 (Capistrano).) Here,
the hearsay statements at issue merely confirmed the uncontradicted testimony at trial
regarding the charged crimes. Defendants did not offer any evidence of an alternate
version of the events or raise significant credibility issues with the witnesses who
testified to those facts at trial. Under these circumstances, and based on our review of the
record, the brief repetition of the facts surrounding the charged crimes could not
reasonably have had any effect on the jury's verdict, including the gang enhancements. It
was therefore harmless beyond a reasonable doubt.6
6 Under Sanchez, it was permissible for Sarti to rely on hearsay sources, identify those sources to the jury, and render his opinion based on them. (Sanchez, supra, 63 Cal.4th at p. 684.) Dimas's additional claims that Sarti impermissibly relied on 37
Guerrero and Dimas argue that Sarti impermissibly relied on their codefendants'
admissions of active membership in BLP (for Guerrero, Acosta's admissions; for Dimas,
Acosta and Guerrero's admissions) in testifying that the crimes were committed for the
benefit of and in association with BLP. It is well settled that the court must limit the
purpose of any prior statement by a defendant who does not testify at trial for use against
that defendant only (and not his or her codefendants) to safeguard the codefendant's
rights under the Sixth Amendment. (People v. Fletcher (1996) 13 Cal.4th 451, 463; see
CALCRIM No. 305.) Where a defendant's prior statement is facially incriminating of the
codefendant, it generally may not be admitted at a joint trial, even with a limiting
instruction, unless it is properly sanitized. (Bruton v. United States (1968) 391 U.S. 123,
135-136; People v. Aranda (1965) 63 Cal.2d 518, 530; Capistrano, supra, 59 Cal.4th at
p. 869.) However, " ' "this narrow exception should not apply to confessions that are not
incriminating on their face, but become so only when linked with other evidence
introduced at trial." ' " (Capistrano, at p. 869.)
Here, the defendants' admissions of active membership in BLP did not facially
incriminate their codefendants. The admissions could therefore be offered into evidence
with a proper limiting instruction, which the trial court provided in this case.7 Although
various hearsay sources for other case specific information therefore do not establish error. The error at issue is limited to Sarti's testimony relating the contents of hearsay sources to the jury.
7 The trial court instructed the jury as follows: "You have heard evidence that defendant Reginaldo Acosta made a statement out of court. You may consider that evidence only against him, not against any other defendant. [¶] You have heard 38
Sarti relied in part on each defendant's admissions to testify that the individual defendant
was an active member of BLP, and then relied on such membership to testify that the
charged crimes were committed for the benefit of or in association with BLP, Guerrero
and Dimas have not shown the jury's verdict necessarily relied on defendants' admissions
to implicate their codefendants. The prosecution offered ample evidence of Acosta's and
Guerrero's active membership in BLP in addition to their admissions, such as their
tattoos. (See part V, ante.) In the absence of evidence to the contrary, we assume the
jury followed the court's instructions and properly limited their consideration of
defendants' admissions. (See People v. Edwards (2013) 57 Cal.4th 658, 746 [" 'We of
course presume "that jurors understand and follow the court's instructions." ' "].)
Guerrero and Dimas have not established an Aranda/Bruton claim or any other
constitutional violation. Sanchez does not change this analysis. The limiting instruction
applies to evidence of a codefendant's statement, from whatever source, lay or expert,
inadmissible hearsay or not. Even if evidence of a defendant's admission should not have
been admitted under Sanchez, it is harmless as to a codefendant in light of the court's
limiting instruction.8
Dimas additionally contends that Sarti relied on other law enforcement officers'
contacts with her, rather than his own personal contacts, as a basis for his opinion that
evidence that defendant Edwin Guerrero made a statement out of court. You may consider that evidence only against him, not against any other defendant."
8 We note that Guerrero does not assert error under Sanchez in the admission of his own statements against him. 39
Dimas was an associate of BLP. Her contention is pure speculation. Sarti testified to his
personal contacts and did not mention contacts by any other law enforcement officer.
Dimas also briefly claims that Sarti's testimony regarding the meaning of her tattoo with
Acosta's gang moniker was improper. The relationship of this claim to Sanchez, the
subject of Dimas's supplemental briefing, is unclear. And, in any event, Dimas has not
shown error. Sarti could properly testify regarding his opinion of the meaning of Dimas's
tattoo based on his knowledge and experience with criminal street gangs.
VIII
Ineffective Assistance of Counsel at Sentencing
Guerrero contends his counsel was ineffective at sentencing. He argues his
counsel should have objected to his sentence on the ground that Guerrero's status as a
juvenile when the offenses were committed precludes a sentence that fixes his parole
eligibility for a time beyond Guerrero's natural life expectancy. " 'Under existing law, a
defense attorney who fails to adequately understand the available sentencing alternatives,
promote their proper application, or pursue the most advantageous disposition for his
client may be found incompetent. [Citations.]' [Citation.] 'A defendant claiming
ineffective assistance of counsel must satisfy Strickland's [Strickland v. Washington
(1984) 466 U.S. 668] two-part test requiring a showing of counsel's deficient
performance and prejudice. [Citation.] As to deficient performance, a defendant "must
show that counsel's representation fell below an objective standard of reasonableness"
measured against "prevailing professional norms." [Citation.] "Judicial scrutiny of
counsel's performance must be highly deferential," and a court must evaluate counsel's
40
performance "from counsel's perspective at the time" without "the distorting effects of
hindsight," and "a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance." ' " (People v. Speight
(2014) 227 Cal.App.4th 1229, 1248 (Speight).)
Four years before Guerrero's sentencing, the United States Supreme Court decided
Graham v. Florida (2010) 560 U.S. 48 (Graham). In Graham, the United States
Supreme Court held "that for a juvenile offender who did not commit homicide the
Eighth Amendment forbids the sentence of life without parole." (Id. at p. 74.) "A State
is not required to guarantee eventual freedom to a juvenile offender convicted of a
nonhomicide crime. What the State must do, however, is give defendants like Graham
some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation. It is for the State, in the first instance, to explore the means and
mechanisms for compliance. It bears emphasis, however, that while the Eighth
Amendment prohibits a State from imposing a life without parole sentence on a juvenile
nonhomicide offender, it does not require the State to release that offender during his
natural life. Those who commit truly horrifying crimes as juveniles may turn out to be
irredeemable, and thus deserving of incarceration for the duration of their lives. The
Eighth Amendment does not foreclose the possibility that persons convicted of
nonhomicide crimes committed before adulthood will remain behind bars for life. It does
prohibit States from making the judgment at the outset that those offenders never will be
fit to reenter society." (Id. at p. 75.)
41
Two years before Guerrero's sentencing, the California Supreme Court held that
Graham's prohibition extended to juvenile nonhomicide offenders sentenced to "a term of
years with a parole eligibility date that falls outside the juvenile offender's natural life
expectancy . . . ." (People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero).) The
Supreme Court explained, "Although proper authorities may later determine that youths
should remain incarcerated for their natural lives, the state may not deprive them at
sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to
reenter society in the future." (Ibid.) "[T]he sentencing court must consider all
mitigating circumstances attendant in the juvenile's crime and life, including but not
limited to his or her chronological age at the time of the crime, whether the juvenile
offender was a direct perpetrator or an aider and abettor, and his or her physical and
mental development, so that it can impose a time when the juvenile offender will be able
to seek parole from the parole board." (Id. at pp. 268-269.) If Guerrero were not eligible
for parole until after his natural life expectancy, his sentence would be unconstitutional
under Caballero.9 Under those circumstances, Guerrero's counsel would have been
deficient in failing to object to Guerrero's sentence based on Caballero. (See Speight,
9 Guerrero was 19 years old at the time of his sentencing. We grant Guerrero's unopposed motion for judicial notice of the United States Life Tables, published in the Centers for Disease Control and Prevention's National Vital Statistics Reports. (See Evid. Code, § 452, subd. (h).) According to the Life Tables, the natural life expectancy of a male between the ages of 19 and 20 is 77 years. (The life expectancy for a Hispanic male of the same age is 79.5 years.) Because Guerrero would not be eligible for parole under his sentence until he was 81 years old (after considering presentence custody credits), this eligibility date falls outside his natural life expectancy regardless whether Guerrero's ethnicity is considered.
42
supra, 227 Cal.App.4th at p. 1249 [counsel rendered ineffective assistance by failing to
object based on Caballero].)
The Attorney General argues that subsequent legislative developments render
Guerrero's argument under Caballero moot. In response to Graham and Caballero, the
Legislature enacted Senate Bill No. 260, which added section 3051 to the Penal Code.
That statute establishes a mechanism for certain juvenile offenders to obtain a "youth
offender parole hearing" before the offender would otherwise be eligible for parole.10
The time for such a hearing is based on the "controlling offense" for which the juvenile
offender was convicted, which the statute defines as "the offense or enhancement for
which any sentencing court imposed the longest term of imprisonment." (§ 3051, subd.
(a)(2)(B).) For example, "A person who was convicted of a controlling offense that was
committed before the person had attained 23 years of age and for which the sentence is a
life term of 25 years to life shall be eligible for release on parole by the board during his
or her 25th year of incarceration at a youth offender parole hearing, unless previously
released or entitled to an earlier parole consideration hearing pursuant to other statutory
provisions." (§ 3051, subd. (b)(3).) Although Guerrero's sentence appears invalid under
prior law, the Attorney General argues that section 3051 resolves any constitutional
infirmity by providing a mechanism for release within Guerrero's natural life expectancy.
10 The statute excludes juvenile offenders sentenced under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) or pursuant to enhanced penalties for certain felony sex offenses (§ 667.61), among other circumstances. (§ 3051, subd. (h).) These circumstances are inapplicable here.
43
While this appeal was pending, the California Supreme Court decided section
3051 moots an analogous constitutional claim under Miller v. Alabama (June 25, 2012,
Nos. 10-9646 and 10-9647) 567 U.S. ___ [132 S.Ct. 2455, 2460] (Miller), which held
that the Eighth Amendment prohibited mandatory sentences of life imprisonment without
parole for juvenile homicide offenders. (People v. Franklin (2016) 63 Cal.4th 261, 279-
280 (Franklin).) In Franklin, the Supreme Court considered whether a mandatory
sentence of 50 years to life imprisonment for a juvenile homicide offender was
constitutionally permissible in light of section 3051. (Id. at p. 268.) Franklin recognized
that, under prior law, the defendant would not be eligible for parole until he had served
50 years of his sentence. (Id. at p. 273, citing § 3046, subd. (b).) The defendant
contended this sentence would the functional equivalent of life imprisonment without
parole and impermissible under Miller. (Franklin, at p. 276.) Building on Caballero,
Franklin agreed that Miller applied not only to mandatory sentences of life imprisonment
without parole but also to functionally equivalent sentences. (Franklin, at p. 276.) But
Franklin determined that the defendant's parole eligibility had changed after the
enactment of section 3051: He would be eligible for parole after serving 25 years. (Id. at
p. 278.) Franklin concluded that the defendant's constitutional claim was moot under
these circumstances: "In sum, the combined operation of section 3051, section 3046,
subdivision (c), and section 4801 means that [the defendant] is now serving a life
sentence that includes a meaningful opportunity for release during his 25th year of
incarceration. Such a sentence is neither [life imprisonment without parole] nor its
functional equivalent. Because [the defendant] is not serving [a sentence of life
44
imprisonment without parole] or its functional equivalent, no Miller claim arises here.
The Legislature's enactment of Senate Bill No. 260 has rendered moot [the defendant's]
challenge to his original sentence under Miller." (Id. at pp. 279-280.) The Supreme
Court remanded the matter, however, for "a determination of whether [the defendant] was
afforded sufficient opportunity to make a record of information relevant to his eventual
youth offender parole hearing." (Id. at p. 284.) If the trial court determined that the
defendant was not afforded a sufficient opportunity, it was directed to receive
submissions and evidence relevant to that issue. (Ibid.)
As Guerrero concedes in supplemental briefing, the reasoning in Franklin applies
equally to his sentence. Under section 3051, Guerrero will be eligible for parole after 25
years of imprisonment. Guerrero therefore does not attempt to show his trial counsel was
ineffective at sentencing with respect to the term itself. Guerrero argues, however, that
his counsel's failure to object deprived Guerrero of the opportunity to present mitigating
information regarding youth-related factors that would be relevant at his eventual youth
offender parole hearing under section 3051. Based on our review of the record, we agree.
We will therefore remand the matter to the trial court to provide the parties with the
opportunity to make an accurate record of Guerrero's youth-related characteristics and
circumstances at the time of the offense so that an adequate record exists when Guerrero's
youth offender parole hearing occurs. (Franklin, supra, 63 Cal.4th at p. 284.)
45
IX
Prior Juvenile Adjudication as a Basis for Enhanced Sentencing
Acosta contends the court erred in two respects by using his prior juvenile
adjudication for robbery (§ 211) to enhance his sentence. We consider each contention in
turn.
Acosta first argues the court erred by using this adjudication as a prior strike
conviction under the Three Strikes law. As Acosta acknowledges, our Supreme Court
rejected this argument in People v. Nguyen (2009) 46 Cal.4th 1007, 1028. We are bound
to adhere to this authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455), and we reject his argument on that basis.
Acosta next argues the court erred by using this adjudication to add a five-year
sentencing enhancement under section 667, subdivision (a). That statute provides, in
relevant part, as follows: "[A]ny person convicted of a serious felony who previously has
been convicted of a serious felony in this state . . . , shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year enhancement for each
such prior conviction on charges brought and tried separately." (§ 667, subd. (a)(1).)
"Section 667[, subdivision] (a) was added to the Penal Code in 1982 by the
passage of the voter initiative Proposition 8, commonly known as The Victims' Bill of
Rights, that made sweeping changes to California's criminal laws. [Citations.] The
substance of the statute has changed little since its original enactment . . . ." (People v.
Park (2013) 56 Cal.4th 782, 795.) Soon after its enactment, the Court of Appeal in
People v. West (1984) 154 Cal.App.3d 100 (West) considered whether the statute applied
46
to juvenile adjudications. After reviewing prior authority, the text of the statute and
related constitutional provisions, and ballot materials, the court determined that use of the
term "conviction" in the statute excluded juvenile adjudications. (West, supra, 154
Cal.App.3d at pp. 108-110.) Following West, courts have recognized that "juvenile
adjudications cannot be considered . . . a prior serious felony conviction for purposes of
the mandatory five-year enhancement in section 667, subdivision (a)." (People v. Smith
(2003) 110 Cal.App.4th 1072, 1080, fn. 10; see People v. Garcia (1999) 21 Cal.4th 1, 24
(conc. & dis. opn. of Brown, J.) [citing West on this issue with approval]; People v.
O'Neal (2000) 78 Cal.App.4th 1065, 1068 [concession of error under West by the
Attorney General].)
The Attorney General argues that the reasoning of West was undermined by a
1994 amendment to the statute, which added (among other provisions) section 667,
subdivision (d)(3). (Stats. 1994, ch. 12, § 1.) That subdivision provides that "[a] prior
juvenile adjudication shall constitute a prior serious and/or violent felony for purposes of
sentence enhancement" under certain conditions. (§ 667, subd. (d)(3).) But the Attorney
General ignores the express language of the statute, which limits the application of that
subdivision as follows: "Notwithstanding any other law and for purposes of subdivisions
(b) to (i), inclusive, a prior conviction of a serious and/or violent felony shall be defined
as . . . ." (§ 667, subd. (d), italics added.) Section 667, subdivision (a), is expressly
excluded. The 1994 amendment does not affect the enhancement at issue here. We
therefore join the courts following West and conclude the trial court erred by using
Acosta's juvenile adjudication for robbery as a basis for enhancement under section 667,
47
subdivision (a). On remand, the trial court should not apply this enhancement based on
Acosta's juvenile adjudication for robbery.
X
Prior Conviction for Carrying a Concealed Firearm
Acosta contends the evidence does not support the court's finding that his prior
conviction for carrying a concealed firearm in a vehicle (former § 12025, subd. (a)(1))
was a prior serious felony conviction under section 667, subdivision (a), and a prior
serious or violent felony conviction under section 667, subdivision (d). After briefing in
this appeal was complete, Acosta filed a petition for writ of habeas corpus alleging that
this prior conviction was dismissed by the superior court and could therefore no longer
provide a basis for the court's finding. (In re Acosta (order to show cause issued Jan. 6,
2016, D069375).) In a separate opinion filed on this date, we grant relief and vacate the
court's finding.
Acosta's contention in this appeal is now moot in light of our order granting relief
in connection with Acosta's habeas petition. A reversal for insufficiency of the evidence
in this appeal would not bar retrial of the prior conviction allegation. (People v.
Barragan (2004) 32 Cal.4th 236, 259; People v. Marin (2015) 240 Cal.App.4th 1344,
1366.) Acosta can therefore gain no additional benefit in this appeal beyond what he has
already obtained. Because Acosta's contention is moot, we decline to consider its merits.
We also deny Acosta's motion to consolidate this appeal with the proceedings on his
habeas petition.
48
XI
Prior Prison Term Enhancement
Acosta contends the trial court erred by adding an additional one-year sentencing
enhancement under section 667.5, subdivision (b), to his aggregate sentence after adding
one-year sentencing enhancements to each count of conviction under the same section.
(See People v. Williams (2004) 34 Cal.4th 397, 404-405 [considering analogous
enhancements under section 667, subdivision (a)(1), and concluding that they should be
added to each individual count, not the aggregate sentence].) The Attorney General
agrees the court erred. On remand, the court should not add this additional one-year
sentencing enhancement.
XII
Presentence Custody Credits
Acosta further contends the court erred in calculating his presentence custody
credits. Acosta was incarcerated from the date of his arrest (October 30, 2012) through
and including the date of sentencing (August 15, 2014). The trial court awarded 654 days
actual credit and 98 days conduct credit. Acosta argues the period of incarceration was
655 actual days. The Attorney General agrees. On remand, the court should award
Acosta 655 days actual credit and 98 days conduct credit, for a total of 753 days
presentence custody credits.
DISPOSITION
Guerrero's conviction for carjacking under Penal Code section 215 is reversed
with directions to dismiss that charge, and his stayed sentence for that offense is vacated.
49
The matter is remanded to allow Guerrero an adequate opportunity to make a record of
information relevant to his eventual youth offender parole hearing. The superior court is
directed to prepare an amended abstract of judgment and deliver it to the Department of
Corrections and Rehabilitation. In all other respects, the judgment against Guerrero is
affirmed.
Dimas's conviction for carjacking under Penal Code section 215 is reversed with
directions to dismiss that charge, and her stayed sentence for that offense is vacated. The
superior court is directed to prepare an amended abstract of judgment and deliver it to the
Department of Corrections and Rehabilitation. In all other respects, the judgment against
Dimas is affirmed.
50
Acosta's motion to consolidate is denied. Acosta's conviction for carjacking under
Penal Code section 215 is reversed with directions to dismiss that charge. Acosta's
sentence is vacated, and the matter is remanded to the trial court for resentencing
consistent with this opinion. Following resentencing, the superior court is directed to
prepare an amended abstract of judgment and deliver it to the Department of Corrections
and Rehabilitation. In all other respects, the judgment against Acosta is affirmed.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 51
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendants' convictions for kidnapping during carjacking and attempted murder, but reversed their convictions for carjacking, finding it a lesser included offense of kidnapping during carjacking. The court also remanded for resentencing due to errors in sentencing enhancements and presentence custody credit calculations.
Issues
Whether carjacking is a lesser included offense of kidnapping during carjacking.
Whether the evidence supports the jury's findings of premeditation and deliberation for attempted murder.
Whether the trial court erred in failing to instruct on attempted voluntary manslaughter.
Whether the court erred in applying sentencing enhancements based on prior juvenile adjudications.
Disposition. Affirmed in part; reversed in part; remanded with directions.
Quotations verified verbatim against the opinion
“We therefore reverse defendants' convictions for carjacking with directions to dismiss those charges.”
“A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel”
“The act of purposefully firing a lethal weapon at another human being, at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice”