People v. Ramos (2023) · DecisionDepot

People v. Ramos

Name: California Superior Court Tentative Rulings
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California Court of Appeal Apr 13, 2023 No. D074429Published

Filed 4/13/23

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074429

Plaintiff and Respondent,

v. (Super. Ct. No. SCN365966)

DANIEL MANUEL RAMOS et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Judgments reversed in part, sentences vacated, and remanded with directions. Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Manuel Ramos. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Elias Isai Ramos.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts II.A-C, D.4-D.7, E-S of the Discussion.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Daniel Rogers and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

In a joint trial involving a gang shooting, a jury convicted Daniel Ramos (Daniel) and Elias Ramos (Elias) of first degree murder (Pen. Code,

§ 187, subd. (a))1 (count 1); attempted first degree murder (§§ 187, subd. (a), 189, 664) (count 2); and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3). The jury also made true findings on firearm and gang enhancements. (§§ 12022.53, subds. (c), (d), (e)(1), 186.22, subd. (b)(1).) The court sentenced Daniel (the shooter) to an aggregate prison term of 92 years to life and Elias (the aider and abettor) to 84 years to life. Daniel and Elias appealed, raising over 30 issues. Many involved the admissibility of a confession and incriminating statements Daniel made while in custody on unrelated charges to a confidential informant (CI) posing as a gang member. Defendants also asserted the trial court erred in admitting evidence of (1) rap videos performed by Elias, and (2) certain expert testimony regarding gangs. Both also asserted prosecutorial misconduct and sentencing errors, and they joined in each other’s challenges. We originally issued an opinion on December 28, 2020, addressing all of the issues raised by defendants and affirming the judgments. Our Supreme Court subsequently granted Daniel and Elias’s petitions for review and held the matter pending its eventual decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado). On April 20, 2022, after Tirado issued, the matter was

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supra, 496 U.S. at p. 301 (conc. opn. of Brennan, J.).) Justice Brennan asserted that “the pressures of custody make a suspect more likely to confide in others and to engage in ‘jailhouse bravado’ . . . [and that] [t]he State is in a unique position to exploit this vulnerability because it has virtually complete control over the suspect’s environment. Thus, the State can ensure that a suspect is barraged with questions from an undercover agent until the suspect confesses.” (Id. at pp. 302-303.) Justice Brennan also concluded that the undercover police agent had tricked Perkins into confessing. (Ibid.) However, a concurring opinion is not binding precedent. (Maryland v. Wilson (1997) 519 U.S. 408, 412-413 [statement in concurrence is not binding precedent].) Moreover, Justice Brennan did not opine that all such undercover operations violated the due process clause. Rather, he suggested that the appropriate approach would be to consider the totality of the circumstances. (Perkins, supra, 496 U.S. at pp. 302-303 (conc. opn. of Brennan, J.).) The trial court here did so. After listening to the recording, the court found “there was nothing that in any way suggested that Daniel was in some way intimidated into saying what he did to the CI.” Attempting to distinguish the majority holding in Perkins, supra, 496 U.S. 292, Daniel contends that the “tag team approach” by the CI and Garcia “provided a coercive effect not present in Perkins.” He also claims that the temporary “rebook/interview cell” compelled him to talk. Further, Daniel argues that the CI was not merely a “passive listener,” but instead portrayed himself as an experienced gang member who had committed murder. Daniel concludes, “This was an intricately planned deception.” We agree that police conducted an “intricately planned deception.” But that alone does not make the ruse unconstitutional. “Voluntary confessions are not merely ‘a proper element in law enforcement,’ [citation], they are an

Nevertheless, “ ‘the court may, in its discretion, order separate trials “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379.) Refusal to sever may be an abuse of discretion where: (1) evidence of the crimes to be jointly tried would not be cross- admissible in separate trials; (2) the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case, creating a prejudicial spillover effect. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) We review an order denying a motion to sever for abuse of discretion. (Gomez, supra, 6 Cal.5th at p. 275.) In doing so, “we first consider ‘the cross- admissibility of the evidence in hypothetical separate trials.’ [Citation.] If the evidence is cross-admissible, then this ‘is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.’ [Citation.] If not, then we also consider ‘(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case.’ [Citation.] Moreover, ‘[e]ven if a defendant fails to demonstrate the trial court’s joinder ruling was an abuse of discretion when it was made, reversal may nonetheless be required if the defendant can demonstrate that “the joint trial resulted in such gross unfairness as to amount to a due process violation.” ’ ” (Gomez, at pp. 275-276.)

appear to shift responsibility to others. [Citations.] But we have permitted the admission of those portions of a confession that, though not independently disserving of the declarant’s penal interests, also are not merely ‘self-serving,’ but ‘inextricably tied to and part of a specific statement against penal interest.’ ” (Grimes, at p. 715.) Noting that “context matters,” Grimes held that statements tending “to underscore [the declarant’s] responsibility for the crime, rather than diminish it,” were admissible as declarations against interest. (Id. at p. 717.) In Cortez, supra, 63 Cal.4th 101, Norma Cortez was jointly tried with a codefendant on charges arising from a drive-by shooting. The trial court admitted a recorded police interview with the codefendant’s nephew. The nephew told police that the codefendant said Norma “ ‘was the one driving’ and ‘he was the one shooting.’ ” (Id. at pp. 107-108.) The trial court admitted these statements against Norma as declarations against her codefendant’s interest. Cortez explained, “ ‘[e]ven statements that are on their face neutral may actually be against the declarant’s interest.’ ” (Id. at p. 127.) The codefendant’s statements were against his penal interest because by identifying his accomplice by name, “he was increasing the likelihood that evidence connecting him to the shooting would be found.” (Ibid.) Like the declarant in Cortez, here Daniel named and implicated Elias as an aider and abettor. In so doing, Daniel increased the likelihood that evidence connecting him to Annebell’s murder would be found. That risk became a reality when the jury heard Elias’s rap lyrics incriminating Daniel. Moreover, the challenged statements are also against Daniel’s penal interests because they show Daniel committed the crimes with another Center Street gang member for the gang’s benefit, supporting a gang enhancement. Significantly, Daniel’s statements implicating Elias did not exculpate Daniel.

There is no evidence that the recording is incomplete or defectively recorded. “The mere assertion that [an] informant is a material witness on [the] issue [of guilt], without any plausible support therefor” is insufficient. (People v. Fried (1989) 214 Cal.App.3d 1309, 1315.) In asserting that the trial court erred in denying his motion to disclose the CI’s identity, Daniel primarily relies on Crane v. Kentucky (1986) 476 U.S. 683, which held that a defendant was constitutionally entitled to introduce testimony about the physical and psychological environment in which he confessed to show his confession was not credible. However, the facts in Crane are substantially different from those here. The confession elicited in that case was not the work of a confidential informant, nor does the opinion indicate that the confession was recorded. Thus, in Crane the only source of evidence about the nature and circumstances of the interrogation was from the participants. Moreover, unlike Daniel’s case, the defendant in Crane made an offer of proof that police officers would testify “about the size and other physical characteristics of the interrogation room, the length of the interview, and various other details about the taking of the confession.” (Id. at p. 686.) In contrast here, the entire conversation was recorded and Garcia testified about the physical characteristics of the room and other details about the confession. Nothing in the record shows that the CI would have any additional relevant testimony on these issues. Citing People v. Lanfrey (1988) 204 Cal.App.3d 491, Daniel also contends, “ ‘No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution’s evidence.’ ” However, Lanfrey undercuts Daniel’s argument. There, the appellate court affirmed an order denying a motion to disclose a confidential informant’s identity because “there was no reasonable possibility that the

(1) Active participation: Elias raps that he is “[r]ollin’ with the older homies . . . Kieto’s my brother so if you hurt him I hurt you . . . I’m a phone call away if it’s time to ride. Let’s ride.” He also sings that he doesn’t “hesitate to squeeze [i.e., shoot].” He then sings, “Center Street on my neck so you know I did it”—Elias actually has “Center Street” tattooed on his neck; (2) Knowledge that its members engage in a pattern of criminal activity: Elias raps, “It’s Center Street gang comin’ at you with the sickest, the realest about to kill it . . . that’s how we do it motherfuckers . . . aiming for the dome so you can fuckin’ die slow and you know how we do it up in Center Street fool”; and (3) Willfully promotes, furthers, or assists in the gang’s felonious conduct: Elias sings, “And when you hit my mother fucken bridge be strapped ‘cause my homies will aim right at you, fuck around and they might just snatch you.” “He asked me ‘if my pistol packin’ I told him ‘hell yeah dawg’ and he just started laughing (ha). Just in case a motherfucker wanna act up we do ‘em up real quick thought you knew what’s up.” The trial court correctly ruled that these statements “could subject Elias to criminal liability for participation in a criminal street gang under [section] 186.22 [subdivision] (a).” “ ‘ “To be against penal interest . . . the statement need not be made to persons who are likely to use it against the declarant in court proceedings. Declarations against penal interest are received notwithstanding that they were spoken in confidence in the expectation they would not be repeated to the authorities. [Citations.] Indeed, that makes such declarations more trustworthy.” ’ ” (People v. Masters (2016) 62 Cal.4th 1019, 1056.) Moreover, the songs not only helped establish that Elias was Blue of the Center Street gang, but also that with Daniel (Kieto), he went looking to assault Posole gang members.

Additionally, even assuming that Elias wrote these lyrics before the charged offenses, lines such as: (1) “I’m the first one to clack. . . . I swear I own my own glock and keep that shit G. I never hesitate when it’s time to fuckin’ squeeze”; and (2) “In the land of panocheros so I crack them on sight. I gotta let ‘em know who the fuck runs the city . . . .” show intent and motive to find and shoot Posole gang members in Posole territory. Moreover, there are similarities between the instant crimes and events described in the rap. In “Blue, Now You Know,” Elias raps that he makes rivals “run and hide[,] do or die.” Annebell hid; Julye ran for his life. In “Blue, That’s How We Do It,” Elias raps that Center Street is “aiming for the dome [head] so you can fuckin’ die slow.” Annebell died when the bullet severed her spinal cord and blood accumulated at the base of her skull. People v. Zepeda (2008) 167 Cal.App.4th 25 (Zepeda) further supports the trial court’s ruling. In Zepeda, the defendant shot a rival gang member and killed the rival’s son. (Id. at p. 28.) The trial court allowed into evidence this rap written by the defendant: “[G]uard your house and load the gate mother fucker I’m about to retaliate, creepin’ up in your window, puttin’ a slug into your face, slippin’ and sliding outta the scene so bad I don’t catch a case . . . .” (Id. at p. 33.) On appeal, the defendant argued the evidence was inadmissible because the lyrics were “works of fiction presuming to be art.” (Id. at p. 34.) Rejecting that argument, the court held the lyrics showed motive and intent to kill rivals, even if the lyrics predated the charged offenses. (Id. at p. 35.) Of course, in many other contexts, song lyrics do not reflect their author’s true state of mind. Neil Young did not shoot his girlfriend, although he sang that he did in “Down by the River.” And Johnny Cash did not kill a man in Reno just to watch him die, even though he sang that he did in

“Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. [Citations.] . . . [¶] However, gang evidence is inadmissible if introduced only to ‘show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]’ [Citations.] . . . Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, ‘trial courts should carefully scrutinize such evidence before admitting it.’ ” (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Under Evidence Code section 352, a court may exclude evidence where its probative value is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) “ ‘ “Prejudice,” as used in Evidence Code section 352, is not synonymous with “damaging.” [Citation.] Rather, it refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial.’ ” (People v. Miles (2020) 9 Cal.5th 513, 587.) “ ‘ “We will not disturb a trial court’s exercise of discretion under Evidence Code section 352 ‘ “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.” ’ ” ’ ” (Miles, at pp. 587-588, italics omitted.) The trial court did not abuse its discretion in allowing the rap evidence. Intent and identity were at issue, and the rap evidences that Daniel and Elias were active Center Street gang members, that each had a motive and intent to kill Posole gang members (or Annebell, who appeared to be one), and that each defendant committed the crimes for the gang’s benefit.

Unlike Coneal, here the rap was not cumulative and as explained ante, the lyrics are probative of Daniel’s and Elias’s motive and intent to kill Posole gang members at the Park. Moreover, unlike Coneal, here the prosecutor did not impermissibly offer the evidence to show the defendants had violent dispositions—rather, the prosecutor (and the court) explicitly stated the evidence was being admitted to show “motive, intent and premeditation.” 7. The Trial Court Did Not Abuse Its Discretion in Allowing Expert Testimony on the Meaning of Gang Jargon in Rap Lyrics Olsen translated the rap’s gang jargon into everyday English. (See fns. 17-20, ante.) He also testified that when a Center Street member speaks of going “to the other side where all the fools, they hiding,” it means going to Posole territory. Citing Evidence Code section 801, subdivision (a), Daniel contends Olsen’s testimony was improper because the lyrics were “not ‘sufficiently beyond common experience’ to require [the expert’s] interpretation.” In related arguments, Daniel also contends that Olsen’s testimony about the rap “was prejudicial and cumulative to the other detectives’ testimony.” “ ‘Expert opinion testimony is admissible only if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” ’ [Citations.] ‘When expert opinion is offered, much must be left to the trial court’s discretion.’ [Citation.] The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 425-426.) Daniel’s arguments are untenable for at least two reasons. First, the trial court did not abuse its discretion in determining that Olsen was qualified to opine on the meaning of gang jargon. Olsen had four years’

experience investigating gang crimes. He had particular expertise with the Center Street gang, having contacted its members for the past 11 years. Second, the trial court did not abuse its discretion in concluding that expert testimony on these matters was appropriate. “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.’ ” (People v. Lindberg (2008) 45 Cal.4th 1, 45.) Courts have repeatedly held that the elements of gang culture, including the slang they use, are beyond the ken of most jurors and thus an appropriate topic for expert testimony. (Id. at pp. 46-47 [white supremacist terminology]; People v. Champion (1995) 9 Cal.4th 879, 924 & fn. 15 [expert translated gang terms], overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.) E. The Trial Court Did Not Abuse Its Discretion in Admitting Gang Evidence Apart from Rap Citing People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), Daniel contends the trial court should have “limited the gang testimony” and precluded police detectives from testifying about “the Mexican Mafia,” Elias’s Center Street tattoo, photographs of Elias with fellow gang members, a photograph of a person alleged to be Elias with a revolver in his waistband, and a trial exhibit (exhibit 30), which Daniel’s brief describes as “a photograph of an insect on top of a nude female with a caption stating, ‘How girls feel when they fuck a nigga from the Eastside.’ ” Daniel contends this “unduly prejudicial” evidence “had no relevance.” However, references to the Mexican Mafia were not inflammatory. The gang expert testified that there are severe repercussions for “street-level Hispanic gang members” if they disobey “rules outlined by Mexican Mafia.” There was no evidence or suggestion that defendants were members of the Mexican Mafia. Elias’s gang tattoo, photographs with other gang members,

Consistent with this ruling: (1) Officer Wilson testified that he conducted a traffic stop on July 10, 2012 in the Center Street area. Elias was driving and Daniel was a passenger. (2) Lieutenant Valdovinos testified that on June 5, 2015, he conducted a traffic stop in the Center Street area of a vehicle in which Daniel and Elias were both passengers. In the rear seat with Elias was “Center Street gang paraphernalia”—a hat with a “C” on it. (3) Officer Weber testified that in four years working in the gang suppression unit, he had contacted Elias “hundreds of times.” Weber testified that on September 15, 2015, he conducted a traffic stop at about 10:00 p.m. in the Center Street area. After the vehicle pulled over, a passenger door opened and someone with a bandanna covering his face and wearing dark clothing ran hunched over “as if they had a big weight in their waistband,” indicative of someone carrying a weapon. Officer Weber “thought it was Elias Ramos.” Daniel was in the backseat. The person who fled was never caught; however, police found a bandanna in the backseat near where Daniel had been sitting. (4) Officer Flores testified that on June 22, 2015, he saw Elias with Daniel and a third person in the Center Street area. Next to Elias was a hat with a “C,” indicating Center Street gang membership. Elias claimed to have “found” the hat. On cross-examination, the officer testified that he saw Elias in November 2014, but not with Daniel, and he had no information with him about Elias and Daniel being together in 2016. 2. No Error As to Three of the Four Contacts Daniel contends that Officer Weber’s testimony that Elias ran from a vehicle wearing a bandanna and carrying a gun should have been excluded as being “highly prejudicial” and remote in time. We disagree. The incident occurred only one year before the charged offenses and therefore is relevant to the defendants’ association with each other, as well as contradicting Elias’s

Daniel is correct that Olsen’s statement—“I mean you’re hearing the truth right there”—is inadmissible. Like the officers testifying in Sergill, the police detective here was not qualified to testify as an expert on any witness’s truthfulness or credibility. (Sergill, supra, 138 Cal.App.3d at p. 39.) However, defense counsel did not object on this ground and, therefore, the point is forfeited. (People v. Dowl (2013) 57 Cal.4th 1079, 1082.) Anticipating that a direct challenge would be forfeited, Daniel contends his attorney was prejudicially ineffective for failing to object. “When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) Daniel has not established that counsel’s failure to object was constitutionally deficient. Olsen’s testimony—“you’re hearing the truth”

confession and incriminating statements are so powerfully condemning, errors in this trial, even viewed cumulatively, were harmless under any applicable standard, even beyond a reasonable doubt. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [error is reversible if there is a reasonable probability that a result more favorable to defendant would have been reached in absence of error]; Chapman v. California (1967) 386 U.S. 18, 26 (Chapman) [where applicable, reversal is mandated unless the court finds the error was harmless beyond a reasonable doubt].) M. The Judgment Is Supported by Substantial Evidence We next consider Elias’s challenge to the sufficiency of the evidence to support the verdict in two respects. Specifically, Elias contends the evidence is insufficient to support the jury’s findings that he aided and abetted murder and attempted murder and to support the jury’s true findings on the gang enhancements. 1. The Standard of Review In considering a challenge to the sufficiency of the evidence, we “ ‘ “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Suarez (2020) 10 Cal.5th 116, 168.) “We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘ “ ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” [Citation.]’ ” (People v. Morales (2020) 10 Cal.5th 76, 88.) We “must accept the fact finder’s resolution of conflicting evidence; and [we] may not insert [our] own views regarding the credibility of 102

purpose of the attempted murder sentencing enhancement by incorporating that concept from the crime of first degree murder in § 189].) “We normally consider three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported— preexisting motive, planning activity, and manner of killing—but ‘[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.’ [Citation.] If the evidence of preexisting motive and planning activity by itself is sufficient to support the first degree murder conviction on a theory of premeditation and deliberation, we need not review the evidence concerning the manner of killing.” (People v. Jennings (2010) 50 Cal.4th 616, 645-646.) “A first degree murder conviction will be upheld when there is extremely strong evidence of planning, or when there is evidence of motive with evidence of either planning or manner.” (People v. Romero (2008) 44 Cal.4th 386, 401.) “ ‘A “person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” ’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) “Thus, proof of aider and abettor liability requires proof in three distinct areas: (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.” (People v. Perez (2005) 35 Cal.4th 1219, 1225.) “[N]either presence at the scene of a crime nor knowledge of, but failure to

member such as Elias does not shoot, but is present and works with the other gang member to commit the murder, that will bolster his gang status “just the same.” This is substantial evidence not merely of Elias’s motive to kill, but the kind of motive that “ ‘would in turn support an inference that the killing was the result of “a pre-existing reflection” and “careful thought and weighing of considerations” rather than “mere unconsidered or rash impulse hastily executed.” ’ ” (People v. Boatman (2013) 221 Cal.App.4th 1253, 1268.) Moreover, when interviewed by police, Elias repeatedly lied, evidencing a consciousness of guilt. Elias denied being “Blue,” saying that he “never met him” but “heard he makes like songs and all that stuff that’s it.” He also denied knowing Daniel, stating that he “went to school with him. That’s about it” and “I don’t talk to him.” Elias denied knowing the name “Kieto”— even though Elias refers to Daniel as Kieto in social media and in rap. Elias also lied by telling police he was asleep at his home with his girlfriend, Linda, when Annebell was murdered. Police could never locate any such Linda, nor was contact information for a Linda in Elias’s phone. Although these lies, by themselves, are insufficient to prove guilt, when considered with other evidence, they show consciousness of guilt. Additionally, a rap video police found on Elias’s phone was dated August 28—about one week before the shooting. It provides further evidence of Elias’s intent to kill. In that song, “Blue, That’s How We Do It,” Elias states “it’s Center Street gang comin’ at you with the sickest, the realest about to kill it . . . aiming for the dome so you can fuckin’ die slow and you know how we do it up in Center Street fool. Shout out to Kieto, . . . really got enemies on the run . . . .” Additionally, reflecting a similarity to the crimes charged here, Elias raps, “You know how we ride. You know how we ride, it’s time to fuckin’ ride. Let’s go to the other side where all the fools they hidin’

below in section II.O, effective January 1, 2022, the substantive requirements for the gang enhancement described in section 186.22, subdivision (b)(1) have changed. (Stats. 2021, ch. 699, §§ 1-5.) Those statutory changes require that we reverse the true findings on the gang enhancements. Nevertheless, because double jeopardy would attach if Elias were to succeed in establishing that the jury’s true findings on the gang enhancements were not supported by substantial evidence (Burks v. United States (1978) 437 U.S. 1, 18; People v. Garcia (2014) 224 Cal.App.4th 519, 526), we proceed to address Elias’s sufficiency of the evidence challenge to those enhancements, based on the substantive requirements of section 186.22, subdivision (b)(1) at the time of trial. The sentencing enhancement set forth in section 186.22, subdivision (b)(1) applies to “a person who is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) Under the version of section 186.22 that existed at the time of trial, to establish a “criminal street gang,” the prosecution had to prove that one of the gang’s “primary activities” was the commission of one or more of the 33 crimes enumerated in section 186.22, subdivision (e), and that the gang engaged in a “pattern of criminal gang activity” by committing two or more such “predicate offenses.” (Former § 186.22, subds. (e), (f).) The 33 crimes listed in subdivision (e) included the commission or attempted commission of murder, robbery, assault with a deadly weapon or by means likely to produce great bodily injury, and prohibited possession of a firearm. (Former § 186.22, subd. (e).) Case law interprets the phrase “primary activities” to mean that committing one or more of the enumerated crimes is one of the group’s “ ‘chief’ or ‘principal’

two or more gang ‘members,’ as opposed to just ‘persons’; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any ‘common benefit’ be ‘more than reputational.’ (§ 186.22, subd. (g).)” (Tran, supra, 13 Cal.5th at p. 1206.) Daniel and Elias argue, and the People agree, that the amendments to section 186.22 apply retroactively here because the convictions are not yet final. We concur with the parties’ position on the retroactivity of the substantive changes to section 186.22, which is supported by our Supreme Court’s recent decision in Tran. (Tran, supra, 13 Cal.5th at p. 1206.) The jury instructions did not reflect the current requirements set forth in the amended version of section 186.22. As the People explain, the jury instructions “permitted true findings for the gang enhancements upon evidence that satisfied the former version of the statute. . . . These retroactive instructional errors included the authorization to use a current crime to establish a pattern of criminal gang activity . . . and the failure to require the jury to consider whether, for example, Center Street was an ‘organized association’ whose members derived a ‘common benefit’ that was ‘more than reputational’ (see . . . § 186.22, subd[s]. (f), (g)). Jury instructions regarding the former elements and the permission to consider the current charges were appropriate at the time of trial but are now error.” With respect to whether the use of now-erroneous jury instructions requires reversal, the applicable case law requires us to apply the standard set forth in Chapman, supra, 386 U.S. at page 26. Specifically, as the parties agree, we must reverse the true findings on the gang enhancements unless

process clause by rendering the trial fundamentally unfair. (Tran, supra, 13 Cal.5th at p. 1209, citing People v. Partida (2005) 37 Cal.4th 428, 439.) However, like the appellant in Tran, Daniel and Elias have not persuaded us that the failure to bifurcate the gang enhancements created a fundamentally unfair trial within the meaning of the federal due process clause. (Id. at p. 1209 [holding that “the prosecutor’s use of the gang evidence here did not render the trial ‘fundamentally unfair’ ”].) The trial was not fundamentally unfair due to the failure to bifurcate because, as we explain below, most of the gang evidence presented at trial was relevant to the substantive offenses, and the limited amount of evidence relevant only to the gang enhancements was not particularly inflammatory. (See Albarran, supra, 149 Cal.App.4th at p. 229 [“ ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” ’ ”].) As in Tran, having rejected the contention that the failure to bifurcate the gang allegations rendered the trial fundamentally unfair, we apply the Watson harmless error standard. (Tran, supra, 13 Cal.5th at p. 1209.) Under that standard, we conclude that there is no reasonable probability of a different outcome were the gang enhancements to be bifurcated from underlying offenses. This is because the vast majority of the gang-related evidence was relevant to prove the underlying offenses and thus would have been presented to the jury even if the trial of the gang enhancements was bifurcated. Indeed, as our Supreme Court has explained, “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive,

People v. Ramos

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074429

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