Filed 1/22/14 P. v. Perez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H037988
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC942929)
v.
ANGEL REYNAGA PEREZ,
Defendant and Appellant.
Defendant Angel Reynaga Perez was convicted by jury trial of six counts of
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second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), three counts of false
imprisonment (§§ 236, 237), two counts of reckless evading (Veh. Code, § 2800.2,
subd. (a)), and one count of vandalism (§ 594, subds. (a), (b)(1)). The jury found true
firearm allegations (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c)(1)), gang allegations
(§ 186.22, subd. (b)(1)(C)), and allegations that defendant had taken property valued at
more than $65,000 (§ 12022.6, subd. (a)(1)) in the commission of the robbery counts.
Firearm and gang allegations were also found true as to the false imprisonment offenses.
The court found true that defendant had suffered a prior conviction that was a strike
(§§ 667, subds. (b)-(i), 1170.12) and a serious felony (§ 667, subd. (a)) and that he had
1
Subsequent statutory references are to the Penal Code unless otherwise specified.
served a prison term for that conviction. The court denied defendant’s motion for a new
trial based on newly discovered evidence. Defendant was sentenced to 47 years and 8
months in prison and ordered to pay $168,375 in restitution.
On appeal, defendant contends that (1) the trial court abused its discretion in
denying his new trial motion, (2) the trial court abused its discretion in refusing to
bifurcate the gang allegations, (3) the jury’s true findings on the gang allegations are not
supported by substantial evidence, (4) defendant should have been convicted of only one
reckless evading count, (5) the trial court erred in imposing terms for both the section
186.22 gang enhancement and the section 12022.53 firearm enhancement, and (6) the
court’s restitution order is not supported by the evidence. The Attorney General
concedes the last two points, and we accept the concessions. We reject the remainder of
defendant’s arguments. Accordingly, we reverse the judgment and remand for
resentencing and for a new restitution hearing.
I. Factual Background
At about 10:50 a.m. on May 5, 2009, a silver Honda entered the parking lot of Joe
Escobar Diamonds in Campbell. The Honda belonged to defendant’s girlfriend’s sister,
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who lived in the duplex adjoining the one where defendant’s girlfriend lived. Three men
got out of the Honda and went into Joe Escobar Diamonds, while the driver of the Honda
positioned the Honda for a quick getaway by backing into a parking space and leaving
the door open. The men who entered the store put a stick in the entrance door to keep it
from closing all the way. The door was a self-locking one and would have locked them
inside had it closed. All three men were dressed in black and wearing hooded
2
Defendant’s girlfriend’s sister claimed that her Honda had been stolen 15 minutes
before the robbery.
2
sweatshirts, black masks, and black gloves, except that one was wearing a red ski mask.
One of the men had a gun. The gunman’s jeans had a distinctive bleach stain on the back
3
of the right leg.
The gunman said: “ ‘Everybody get on the ground. This is a hold up.’ ” “ ‘No one
move.’ ” Eight employees, one customer, and the customer’s two children were in the
store. The gunman pointed the gun at several employees and at the customer and his
children. The men used a hammer to smash a display case holding Rolex watches and
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took more than a dozen Rolex watches from it. They dropped one Rolex inside the store
on their way out, but they got away with 14 Rolex watches, which had a retail value of
$163,000. After they got outside, they dropped some of the watches but picked them up
and took the dropped watches with them. The Honda started moving before the three
men got into it.
Several Joe Escobar Diamonds employees called 911 and pushed a “panic button”
as soon as the robbery began. Campbell Police Officer Steven Lee Norris was just a
couple of blocks from Joe Escobar Diamonds when he received a dispatch about the
robbery. He immediately drove there. As Norris approached Joe Escobar Diamonds, he
saw a silver Honda exiting the parking lot. Norris was going northbound and the Honda
turned southbound. Norris decided to get a good look inside the Honda to see if it might
be involved in the robbery. He pulled his patrol vehicle into the southbound lane going
the wrong direction. When the Honda reached him, it swerved to avoid him, and Norris
3
The robbery was captured on video by numerous surveillance cameras inside the
store. The bleach stain on the gunman’s jeans could be seen on the video.
4
The vandalism count was based on the smashing of the display case.
3
got a good look at the driver, who was wearing white gloves. The driver was “a Hispanic
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male, 20 to 25 years old. Short hair. Shaved head. And clean shaven.”
Campbell Police Sergeant Joe Cefalu also responded to the dispatch, and he saw
the Honda swerve around Norris’s vehicle. Cefalu began pursuing the Honda with his
lights and siren on and Norris behind him. The Honda pulled up next to a nearby parked
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Dodge Charger that belonged to defendant’s girlfriend. The rear passenger door of the
Honda opened, and someone started to get out of the car. However, the person did not
get out, and the Honda proceeded. Campbell Police Officer Jesus Alonzo, who was in a
third marked police vehicle, soon joined the pursuit as the lead vehicle. Alonzo also had
his lights and siren on. The Honda was being driven in a very dangerous fashion; it failed
to stop at stop signs, got onto the freeway, and sped up to nearly 100 miles per hour with
the police in pursuit. The Honda exited the freeway, ran a red light, and went through the
intersection at 70 miles per hour. Alonzo slowed down, but his vehicle was hit by
another car at the intersection. The police then lost sight of the Honda.
The police theorized that the Dodge Charger was a second getaway vehicle for the
robbers. A search of the Dodge Charger turned up a photograph of defendant and his
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girlfriend. This photograph was shown to Norris about an hour after the robbery, and he
identified the man in the photo as the driver of the Honda. The only difference in
5
Norris testified that he did not mean by “shaved head” that the man was hairless
but that he had very short hair. At the time, defendant had no facial hair, and his hair was
“shaved . . . very short.”
6
The Charger was unlocked, and its hood was warm, indicating that it had been
recently driven. It contained two cell phones and three pairs of sunglasses. One of the
cell phones belonged to Mario Zamora.
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Defendant’s and his girlfriend’s California identification cards were later found in
an “overhead sunglass case” in the Charger along with “paperwork” addressed to
defendant and a bail bond receipt with defendant’s name on it.
4
appearance that Norris noted was that the man in the photo had a mustache, while the
driver had been clean-shaven. Norris was certain that this man was the driver.
About an hour after the police lost sight of the Honda, the Honda was found
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parked in a residential area a few miles from where it had last been seen. The Honda’s
engine was running, and its windshield wipers were going. It was parked “very crooked”
and partially obstructing the roadway. Two Rolex watches, a black ski mask, and a black
glove were found inside the Honda. Two pairs of jeans and a black long-sleeved
sweatshirt had been discarded in a nearby backyard. In the pocket of one of the pairs of
jeans was a key to the Dodge Charger. The other pair of jeans had the distinctive bleach
stain on the back of the right leg that had been seen on the gunman’s jeans, and this pair
of jeans contained a traffic citation in the name of Ezell Banks. A black ski mask, a black
hooded sweatshirt, and a pair of black gloves were found in a nearby recycling bin.
Several bystanders near where the Honda had been abandoned told the police that
they had seen two men nearby who were sweaty and looked like they had been running.
One of the men asked a bystander if he could use his cell phone, but the bystander
refused. Another bystander allowed one of the men to use his cell phone. The bystander
who had refused was shown a lineup including defendant’s photo, and he said that the
man who asked to use his cell phone looked “kinda” like defendant. That bystander’s
sister thought that the other man looked like Ezell Banks.
An undercover officer was keeping an eye on the Charger. At 2:30 p.m. that day,
a red Dodge Caravan minivan owned by defendant’s mother pulled up next to the
Charger. Defendant got out of the minivan, opened the passenger door of the Charger,
and briefly leaned into the Charger. He then returned to the driver’s seat of the minivan
and drove off. The undercover officer followed the minivan, and Cefalu joined him. The
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During the pursuit, the police had acquired the Honda’s license plate number.
5
minivan proceeded onto southbound Highway 17 and then took southbound Highway 85.
Cefalu did not activate his lights and sirens at first, not wanting to “spook” the occupants
of the minivan. Eventually, the minivan began going 95 miles per hour, and Cefalu put
on his lights and siren. The minivan sped up and drove on the shoulder trying to elude
Cefalu. It exited Highway 85 and ran a red light. The minivan sped through residential
neighborhoods. Cefalu eventually terminated his pursuit of the minivan because there
was a school in the area and it was too dangerous to continue.
A few minutes after Cefalu lost sight of the minivan, San Jose Police Officer
Michael Lloyd, who had heard the dispatch about the pursuit, saw the minivan a couple
of miles away from where Cefalu had last seen it and began pursuing it. Lloyd pursued
the speeding minivan with his lights and siren activated, and the minivan turned down a
dead-end street. When the minivan reached the dead-end, it turned around and came
back at Lloyd’s patrol car, which was in the middle of the roadway. To avoid a head-on
collision, Lloyd turned his vehicle at the last moment, but the minivan still clipped the
back of Lloyd’s patrol car. Lloyd got a look at the driver, and it was defendant. Lloyd
went after the minivan, but the minivan ran stop signs and drove at 70 to 90 miles per
hour. Lloyd eventually lost sight of the minivan, but it was soon found parked on
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Roundtable Drive, which was in a nearby San Jose residential area.
At 3:20 p.m., the police set up surveillance of the minivan. Defendant’s girlfriend
called his brother’s girlfriend and asked her to give defendant a ride home from
Roundtable Drive in San Jose. The brother’s girlfriend drove to that location and picked
defendant up. After she picked up defendant, the police saw her pull her car up near the
minivan and stop. It was less than 15 minutes after the police surveillance had begun.
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At some point, defendant called his mother and told her that he had her minivan
and the police had been chasing him.
6
Defendant got out of her vehicle, looked around, and then got back in her vehicle. Her
vehicle was stopped by the police a few minutes later. Before her vehicle came to a stop,
defendant jumped out and ran. A police officer pursued him on foot but lost sight of him.
A perimeter was set up. Another officer saw defendant running nearby. The police
conducted an intense search of that area, and a police dog found defendant hiding under a
portable barbeque in a backyard. Defendant did not respond to commands from police
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officers, and the dog bit him. When he was arrested, defendant was wearing red shorts.
His mother’s cell phone was found near where he had been hiding.
Meanwhile, the police were also watching defendant’s home. At 3:30 p.m.,
defendant’s brother drove up to the house in a Cadillac and got out of the car. He went
into the house and came back out 15 minutes later carrying a small bag. Defendant’s
brother drove away in the Cadillac, and the police stopped the car. A bag in the front of
the car contained a black T-shirt, a black ski mask, and a red ski mask. The red ski mask
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was wrapped around 13 Rolex watches that had been taken in the robbery. Defendant’s
DNA was found inside the red ski mask.
II. Procedural Background
The information charged defendant with six counts of robbery, three counts of
false imprisonment, three counts of reckless evading, vandalism, and assault on a police
officer (§ 245) plus the gang, firearm, excessive taking, prior conviction, and prison prior
10
When defendant’s brother’s girlfriend picked him up, defendant was wearing a
striped shirt and jeans.
11
The record does not explain the discrepancy in the number of Rolexes. Fourteen
were taken. Two were found in the Honda. Thirteen were found in the bag. Where the
additional Rolex came from is unknown.
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allegations. The prior conviction and prison prior allegations were bifurcated. The court
refused to bifurcate the gang allegations.
The jury was unable to reach a verdict on the assault count and one of the three
reckless evading counts. The jury convicted defendant of all of the other counts and
found the gang, firearm, and excessive taking allegations true. Defendant waived his
right to a jury trial on the prior conviction and prison prior allegations, and the court
found those allegations true.
The court denied defendant’s new trial motion, refused to strike the prior
conviction finding, and refused to reduce the false imprisonment counts to
misdemeanors. Defendant was committed to state prison to serve a term of 47 years and
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8 months. He timely filed a notice of appeal.
12
Defendant faced a maximum sentence of over 90 years in prison. The probation
department recommended a 36-year prison term, and the prosecution sought a prison
term of more than 67 years. One of the robbery counts was selected as the principal
count, and the three-year midterm was doubled for a six-year principal term. A
consecutive one-year term was added for the section 12022 arming enhancement but
stayed, and another year was added for the excessive taking enhancement. A 10-year
term was added for the section 186.22 gang enhancement, and another 10-year term for
the section 12022.53 firearm enhancement. That added up to 27 years for that count.
The second robbery count garnered a consecutive term of two years plus three years and
four months for the section 12022.53 firearm enhancement. The court stayed the
remaining enhancements. Three of the remaining robbery counts received concurrent
terms, but the final robbery count got a consecutive sentence just like the one for the
second robbery count. Two of the three false imprisonment counts received consecutive
terms of 20 months each, while the other was run concurrent. One of the reckless
evading counts received a consecutive term of 20 months, while the other was run
concurrent. The vandalism sentence was run concurrent. And a five-year term was
imposed for the prior serious felony enhancement.
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III. Discussion
A. Denial of New Trial Motion
Defendant contends that the trial court erred in denying his new trial motion,
which was based on newly discovered evidence. The trial court found that the new
evidence, which was a statement by an alleged coparticipant, was not admissible under
the hearsay exception for statements against penal interest.
1. Background
The prosecutor’s theory at trial was that defendant was the getaway driver, Mario
Zamora was one of the robbers, and Ezell Banks was the gunman. The police had several
other suspects who they believed were involved in either the robbery itself or the
planning of it. The defense argued at trial that defendant had not been the driver of the
Honda and that Norris had wrongly identified defendant as the driver of the Honda. The
defense asserted that the prosecution’s theory was inconsistent with the evidence that the
red ski mask, on which defendant’s DNA had been found, had been worn by one of the
robbers who went into the store. The defense intimated that defendant’s DNA had come
to be on the red ski mask not because he was involved in the robbery but because
defendant’s brother, who lived in the same home as defendant and had access to
defendant’s clothing, had been involved in the robbery. Although the defense conceded
that defendant had driven the minivan, it claimed that he had done so only to help out his
brother.
Two months after the jury’s verdicts, defendant moved for a new trial on the
ground of newly discovered evidence. A month after the jury’s verdicts, Salvador
Gonzalez had made a statement to the police in which he said that he had been the
getaway driver in the robbery of Joe Escobar Diamonds. Defendant asserted that,
because his convictions had been based on Norris’s testimony that defendant was the
getaway driver, his discovery of Gonzalez’s statement merited a new trial. Although
Gonzalez’s attorney had informed the defense that Gonzalez would invoke the Fifth
9
Amendment if called to testify in support of the motion, the defense claimed that
Gonzalez’s statement to the police would be admissible as a statement against penal
interest under Evidence Code section 1230.
The court held an evidentiary hearing on the motion, and the police officer who
had interviewed Gonzalez in August 2011 testified at the hearing. Although the defense
called Gonzalez to testify at the hearing, he invoked his Fifth Amendment rights and
refused to answer questions. A transcript of the interviews of Gonzalez was introduced at
the hearing.
The officer testified that, by the time he interviewed Gonzalez, the police had
identified three of the four men involved in the robbery of Joe Escobar Diamonds
(defendant, Zamora, and Banks), and they suspected that Gonzalez was the fourth man.
Gonzalez’s DNA was on a black ski mask found in the Honda and on a pair of black
pants discarded by the robbers in their flight from the Honda. His DNA was not on the
red ski mask.
The officer interviewed Gonzalez at a rehabilitation facility where Gonzalez was
incarcerated for a subsequent armed robbery. At the beginning of the interview, he told
Gonzalez that defendant and Zamora had not been cooperative but that Gonzalez had
been “very cooperative” when he had spoken to him in the past. The officer said that
Gonzalez was “different” than defendant and Zamora and was “trying to do better” in his
life. He explained to Gonzalez that this was his opportunity to tell “your side of the
story” so that the police could go to the prosecutor and tell him that Gonzalez “wants to
try to get some consideration for, for giving a truthful statement . . . .” The officer and
his fellow officer, who was also present for the interview, told Gonzalez that defendant
and Zamora were each facing more than 90 years in prison. He informed Gonzalez that
the police already had evidence that Gonzalez and Zamora had been in contact by phone
on the morning of the robbery, and “[w]e have your DNA on the black ski mask . . . .”
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“[W]e’re just trying to get you to kind of help yourself out and continue to go on the path
that you’re going . . . .”
This colloquy followed: “[Officer]: Okay. So, do you want to go down the path
that Angel’s goin? and Mario? Or do you want or do you want to continue to go down
that path that you’re at right now? [¶] [Gonzalez]: Well, honestly, to be honest with
you . . . I would like somebody here, that would be able to help me out, cause I honestly
think that, I’ve been cooperative every single time you guys came to me.” The officer
reiterated that “[w]e know you’re involved because we have your DNA on the clothing.”
“[W]e know you didn’t have a gun . . . we know you didn’t lead anybody on pursuits.
Okay? Um, do you want us to [arrest you so] you can sit in County Jail with Mario
Zamora, or do you want to give us your side of the story of what it was? . . . We’re trying
to give you your opportunity to explain. You’re obviously . . . tryin to do better for
yourself now, try to help us understand why you got involved in that. You don’t seem to
fit the mold of Angel or Mario, does that make sense?” At this point, Gonzalez asked for
a pen and paper and said he would “write everything down.”
Gonzalez handwrote a statement concerning the robbery of Joe Escobar
Diamonds. In his written statement, he said that “they” had called him wanting to “buy
pot” from him. “They” came and “got pot off me” and then took him to someone else
who they said wanted more pot. He went with “them in a Charger with rims.” At that
point, he was told to drive “and if I didn’t I would get pistol whip[ped] and my ass
kicked.” “I was then taken to a store where they jumped with black clothing and they
robbed the store and then they came back in. They told me to drive and I then saw police
all around me. They told me to keep driving . . . .”
After Gonzalez produced this written statement, the officers questioned him about
these events. Gonzalez asserted that he did not know any of the participants but Zamora,
whom he identified as “John.” Gonzalez knew Zamora because Zamora had bought pot
from him before. When Gonzalez was shown a photo of defendant, he said he had “seen
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him before.” Zamora came to Gonzalez’s house that morning alone in the Charger, and
he had Gonzalez drive the Charger from there to another house. When they arrived at the
other house, where someone else was supposed to buy more pot, two other men, an
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African-American and a Hispanic, were there. These men were “so aggressive” and
told him to “drive this fuckin car, you’re gonna do it . . . .” He said “whoa, what the
fuck’s goin on here, and then they take out a gun . . . .” Early on in the interview,
Gonzalez said that it was the Hispanic guy who had the gun. Later, he said it was the
African-American man who had the gun. Gonzalez claimed that he was “pretty fucked
up, pretty high” at the time. These men told Gonzalez to drive another car, which was
black, with the African-American man as his passenger, and he followed the Charger that
had Zamora and the Hispanic man in it. The Charger parked, and the other men got into
the car Gonzalez was driving.
Gonzalez then drove to Joe Escobar Diamonds. He recalled backing the car up in
the parking lot outside the store, which he claimed he did at the insistence of the African-
American man. Gonzalez claimed that he did not know what was going on until the men
put on ski masks. Gonzalez claimed that he was told to put on a ski mask while he
waited in the car. He took off the mask after they pulled out of the parking lot.
After they abandoned the car and ran, Gonzalez said he took off his pants but was
still wearing pants. The officer inquired about this discrepancy, and Gonzalez said that
he was wearing two pairs of pants because “those were my fuckin work out pants sir.”
The officer expressed doubt since “when people wear two pairs of pants, usually it means
they know something’s gonna happen.” Gonzalez then said he had two pairs of pants
because “I had the weed rolled up in the pants.” He asserted that he was not actually
wearing two pairs of pants originally but was carrying the second pair of pants with the
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Ezell Banks is African-American.
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“weed” wrapped in it and had put on the second pair of pants before they went to commit
the robbery.
Gonzalez told the officers: “I know it puts me involved in the robbery, I know
that for a fact, but also, I’m gonna, I’m gonna give the right story and the real story.”
The officer told Gonzalez: “[I]t doesn’t, doesn’t make a difference if you go into the
store, or if you stay in the car . . . you understand that?” Gonzalez replied: “Yes sir I
understand completely. I’m involved . . . .” He also acknowledged that “[e]ither way,
I’m involved,” but he insisted that “I did not go inside the store. I was driving the car.”
The officer told Gonzalez: “I’m not disputing the fact that somebody forced you to do
something . . . .” Gonzalez told the officers that he would like to “just go with you guys
now” because “I’m gonna get arrested regardless” for his involvement in the robbery.
Gonzalez consistently denied that he was a Norteno. The officers transported Gonzalez
to the police station to make a recorded statement.
The defense argued that Gonzalez’s statement was admissible as a statement
against penal interest and that any exculpatory statements could be redacted. The
prosecution argued that Gonzalez’s statement was inadmissible hearsay because it was
“partially self-serving and unreliable.” It maintained that Gonzalez’s “back was against
the wall and that he is making this statement to minimize his involvement in the robbery”
after learning that the police had his DNA on one of the ski masks from the robbery.
The court denied the new trial motion. It agreed with the prosecution that
Gonzalez’s “back was firmly against the wall” when he made the statements. The court
concluded that Gonzalez’s statements were “motivated by some desire to curry favor and
to explain and minimize to the greatest extent possible his participation in the crime.” “In
fact, the statement when taken in its entirety, is a clear attempt to exculpate himself and
explain away his participation in the crime.” “He professes complete ignorance of the
criminal plan and sets himself up as an innocent pawn who acted involuntar[il]y under
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the specific threat of a pistol whipping and beating and other unspoken menace from the
man weilding [sic] the gun.”
The court found that Gonzalez’s “version of events is not worthy of belief.”
“Faced with knowledge that he couldn’t deny his presence, his statements simply
proceeded to cast it, the entire incident, in a light most favorable to him.” Redaction was
not an option because “the entire statement is self-serving and exculpatory because it
describes every one of his actions as being undertaken without knowledge of the criminal
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plan and not by choice but by duress.” “[I]t is far from specifically dis-serving of his
penal interest and, in fact, positively serves those interests.”
The court also found that there was no reasonable possibility that, even if the
evidence was admissible, the result would be different with its admission. “In order to
reach the verdicts in this case, it was not necessary for the jury to believe that the
defendant was the driver of the Honda.” The jury could have concluded that defendant
was one of the men who went into the store, particularly since his DNA was on the red
ski mask that was worn by one of the men who went into the store. “He was even
acquitted of one count of evading a peace officer which is entirely consistent with the
jury having concluded he was not the driver in the count involving the Honda.”
2. Analysis
We review a trial court’s denial of a motion for a new trial for abuse of discretion.
(People v. Verdugo (2010) 50 Cal.4th 263, 308.) Here, the trial court based its denial of
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Defendant does not argue on appeal that the court abused its discretion in failing to
admit a redacted version of Gonzalez’s statement. “[R]edaction cannot enhance the
underlying or general trustworthiness of a declaration as a whole. By its nature an after-
the-fact process employed with respect to a previously existing declaration, redaction as a
logical matter simply cannot bear on, let alone alter, the declarant’s motives or any other
circumstance that might affect a given declaration’s fundamental reliability and inform a
court’s assessment thereof.” (People v. Duarte (2000) 24 Cal.4th 603, 614 (Duarte).)
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the motion on its finding that Gonzalez’s statement was not admissible under Evidence
Code section 1230. “ ‘Newly discovered evidence must be admissible to form a basis for
granting a new trial.’ ” (In re Joaquin S. (1979) 88 Cal.App.3d 80, 85.) We also review
the trial court’s finding on the admissibility of Gonzalez’s statement for abuse of
discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).)
“Evidence of a statement by a declarant having sufficient knowledge of the subject
is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness
and the statement, when made, . . . so far subjected him to the risk of civil or criminal
liability . . . that a reasonable man in his position would not have made the statement
unless he believed it to be true.” (Evid. Code, § 1230.) “The proponent of such evidence
must show that the declarant is unavailable, that the declaration was against the
declarant’s penal interest when made and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.” (Duarte, supra, 24 Cal.4th at pp. 610-
611.)
It is undisputed that Gonzalez was unavailable; the issues before the trial court
were whether his statement was against his penal interest when it was made and whether
it was sufficiently reliable. His statement was facially inculpatory as it potentially
subjected him to penal consequences as a participant in the robbery. However, that alone
did not make it admissible under Evidence Code section 1230. “[T]hat a hearsay
statement may be facially inculpatory or neutral cannot always be relied upon to indicate
whether it is ‘truly self-inculpatory, rather than merely [an] attempt[] to shift blame or
curry favor.’ [Citation.] Even a hearsay statement that is facially inculpatory of the
declarant may, when considered in context, also be exculpatory or have a net exculpatory
effect. . . . ‘[W]hether a statement is self-inculpatory or not can only be determined by
viewing it in context.’ ” (Duarte, supra, 24 Cal.4th at pp. 611-612.) “[A] hearsay
statement ‘which is in part inculpatory and in part exculpatory (e.g., one which admits
some complicity but places the major responsibility on others) does not meet the test of
15
trustworthiness and is thus inadmissible.’ ” (Duarte, at p. 612.) “ ‘To determine whether
[a particular] declaration [against penal interest] passes [section 1230’s] required
threshold of trustworthiness, a trial court “may take into account not just the words but
the circumstances under which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.” ’ ” (Duarte, at p. 614.)
The only portion of Gonzalez’s statement that could potentially support
defendant’s new trial motion was Gonzalez’s claim that Gonzalez was the getaway
driver. Yet the circumstances under which Gonzalez made his statement suggested that
he had a motivation to falsely claim to be the getaway driver. Gonzalez knew at the
outset that the police had DNA and other evidence linking him to the robbery. Thus, he
had little to lose by admitting that he had been “involved” in the robbery. The police
officer interviewing him also led him to believe that he would be treated more leniently if
he was cooperative and made a statement. In this context, Gonzalez’s claim that he had
no inkling that a robbery was planned, that he was forced to participate, and that his role
was limited to serving as the getaway driver was an obvious attempt to “ ‘place[] the
major responsibility on others.’ ” (Duarte, supra, 24 Cal.4th at p. 612.) A “reasonable
man in [Gonzalez’s] position” might well have falsely claimed to have been forced to
serve as the getaway driver in order to minimize his criminal responsibility, shift the
major blame to others, and curry favor. (Evid. Code, § 1230.)
Defendant relies on People v. Jackson (1991) 235 Cal.App.3d 1670 (Jackson). In
Jackson, the defendant sought to testify at trial that a third party had admitted to the
defendant that the third party had shot at the victim. (Jackson, at p. 1677.) The trial
court excluded this evidence, but the Court of Appeal found that it was admissible under
Evidence Code section 1230 because a reasonable person would not have made that
admission unless it was true. (Jackson, at p. 1678.) Jackson is readily distinguishable.
Unlike here, the circumstances of the statement in Jackson did not reflect that the third
party had any motivation to shift blame or curry favor when he made this statement to
16
defendant, and his admission that he had shot at the victim did not minimize his criminal
responsibility. Nothing in Jackson suggests that the trial court in this case abused its
discretion in finding that Gonzalez’s statement was not admissible under Evidence Code
section 1230. None of the other cases cited by defendant found an abuse of discretion in
a trial court’s ruling that a statement was not admissible under Evidence Code section
1230. We conclude that the trial court acted within its discretion in finding Gonzalez’s
statement inadmissible and denying defendant’s new trial motion on that ground.
Although defendant asserts that the trial court’s denial of his motion deprived him
of due process and the right to present a defense, he premises these contentions on the
court’s alleged abuse of discretion in finding that Gonzalez’s statement was inadmissible.
“The general rule remains that ‘ “the ordinary rules of evidence do not impermissibly
infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a
traditional and intrinsic power to exercise discretion to control the admission of evidence
in the interests of orderly procedure and the avoidance of prejudice.” ’ ” (Lawley, supra,
27 Cal.4th at p. 155.) Since the trial court did not abuse its discretion in finding
Gonzalez’s statement inadmissible, it did not violate defendant’s right to present a
defense or his right to due process.
B. Gang Allegations
1. Background
Defendant made an in limine motion seeking bifurcation of the gang allegations.
He claimed that the gang evidence was not relevant to the charged offenses and would be
“unduly and extraordinarily prejudicial” to him. The prosecutor opposed the motion on
the ground that the gang evidence was relevant to the motive and planning for the
robberies and that it was “inextricably intertwined” with evidence of the crimes. She
argued that the purpose of the crime was making money for the gang. Although the court
17
thought this was a “close case” on this point, it concluded that the gang evidence was
“inextricably intertwined” with evidence of the robbery and denied the motion.
The prosecution did not present any gang evidence until its next to last witness
15
testified. This witness, Sergeant Dan Livingston, first testified about his involvement in
the investigation of the crime. After he had given that testimony, the prosecutor shifted
to his gang expertise. Livingston testified about his expertise, and the court qualified him
as an expert.
Livingston identified the Norteno gang as a criminal street gang. He testified that
the primary activities of the Norteno gang included “[m]urder, attempted murders, assault
with deadly weapons, kidnapping, sales of drugs, extortions, thefts, shooting at an
inhabited dwelling. I could continue to go on. Basically anything that will generate
money for them or respect through violence, they will do. Robberies.” Livingston
testified about three predicate offenses by Norteno gang members. One was an assault
with a knife by a Norteno gang member on a Sureno. Another was an armed robbery by
a Norteno gang member of someone he believed was a Sureno gang member. The third
predicate offense was an assault with a bat by a Norteno gang member.
Livingston expressed the opinion that defendant was a Norteno gang member. In
2007, defendant threatened a person with a knife while wearing Norteno gang indicia and
invoking the name of his gang. In 2008, gang items were found in defendant’s bedroom.
Livingston also testified that Mario Zamora, whose cell phone was found in the Charger,
and who was one of defendant’s coparticipants in the robbery of Joe Escobar Diamonds,
was a self-admitted Norteno gang member. Ezell Banks, the gunman in the robbery, was
an associate of a gang called Midtown Taliban. The police also believed that another
15
The last witness gave brief testimony about defendant’s capture from underneath
the witness’s barbeque.
18
coparticipant in the robbery was Gonzalez, who Livingston also identified as a Norteno
gang member. In addition, the police suspected that Anthony Campos, who was the
boyfriend of defendant’s girlfriend’s sister (the owner of the Honda) and was a Norteno
gang member, had been involved in the planning of the robbery. Livingston testified that
this type of robbery would benefit the Norteno gang by providing money to finance gang
activities. He also testified that the fact that multiple Norteno gang members were
involved in the robbery meant that the robbery was committed in association with the
Norteno gang. Livingston further believed that the robbery had been at the direction of
the Norteno gang because the coparticipants had conspired to commit it.
2. Refusal to Bifurcate
“[T]he criminal street gang enhancement is attached to the charged offense and is,
by definition, inextricably intertwined with that offense. So less need for bifurcation
generally exists with the gang enhancement than with a prior conviction allegation.”
(People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) Nevertheless, a trial court does
have discretion to bifurcate gang enhancement allegations. “The predicate offenses
offered to establish a ‘pattern of criminal gang activity’ (§ 186.22, subd. (e)) need not be
related to the crime, or even the defendant, and evidence of such offenses may be unduly
prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence,
even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little
relevance to guilt, that it threatens to sway the jury to convict regardless of the
defendant’s actual guilt.” (Hernandez, at p. 1049.) But “[e]ven if some of the evidence
offered to prove the gang enhancement would be inadmissible at a trial of the substantive
crime itself—for example, if some of it might be excluded under Evidence Code section
352 as unduly prejudicial when no gang enhancement is charged—a court may still deny
bifurcation.” (Hernandez, at p. 1050.) This is true because, where the gang evidence is
“offered [solely] to prove the charged gang enhancement, . . . no problem of confusion
with collateral matters would arise . . . .” (Id. at p. 1051.) Bifurcation is necessary only
19
where the gang evidence is “so minimally probative on the charged offense, and so
inflammatory in comparison, that it threaten[s] to sway the jury to convict regardless of
defendants’ actual guilt.” (Ibid.)
This was a case in which the trial court realistically could have bifurcated the gang
allegations since all of the gang evidence came from a single witness, and his expert
testimony was only “minimally probative” as to the substantive offenses. Nonetheless,
the gang evidence was not comparatively “so inflammatory” that it threatened to cause
the jury to convict defendant of the substantive offenses regardless of his guilt. The most
inflammatory evidence in this case was the evidence of defendant’s lengthy, persistent,
reckless, and life-threatening flight from the police. He demonstrably risked the lives of
both police officers and the general public during his flight through residential areas and
down heavily travelled freeways. In contrast, Livingston’s expert testimony about gangs
was brief and relied on predicate offenses that were less inflammatory than the charged
offenses.
Defendant cites People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) in
support of both this argument and his challenge to the sufficiency of the evidence to
support the gang allegations. Albarran did not concern bifurcation. In Albarran, the
defendant was tried on substantive charges with gang allegations. A “panoply” of
“extremely inflammatory” gang evidence was admitted at trial over defense objections.
(Albarran, at p. 227.) The jury found the defendant guilty of the substantive charges and
found the gang allegations true. However, the trial court granted the defendant’s motion
for a new trial on the gang allegations on the ground of insufficiency of the evidence, and
the prosecution dismissed the gang allegations. On appeal, the defendant asserted that
the court should have granted a new trial on the substantive counts because the gang
evidence was so inflammatory and irrelevant to the substantive counts that it had
prejudiced him on the substantive counts. (Albarran, at p. 217.) The Fourth District
majority agreed with the defendant. (Albarran, at p. 227.) “[C]ertain gang evidence
20
admitted was so extraordinarily prejudicial and of such little relevance that it raised the
distinct potential to sway the jury to convict regardless of Albarran’s actual guilt.”
(Albarran, at p. 228.) In the majority’s view, the gang evidence’s “paramount
function . . . was to show Albarran’s criminal disposition . . . .” (Albarran, at p. 228.)
Albarran has no bearing here. The gang evidence in this case was not
inflammatory or extraordinarily prejudicial. Livingston provided background
information about gangs and testified that defendant and some of his coparticipants were
gang members. He described a few predicate offenses committed by people unconnected
with defendant except by the fact that they were also Nortenos. And he explained how
these crimes could benefit the gang. This testimony was fairly brief in the context of this
lengthy trial, and it did not characterize defendant’s gang activities in a fashion that was
anywhere near as dangerous to the community as his conduct in committing the
substantive crimes. Livingston’s testimony about gangs did not have the potential to
sway the jury to convict defendant of the substantive offenses regardless of his actual
guilt. Hence, we find no abuse of discretion in the trial court’s decision not to bifurcate
the gang allegations.
3. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support the gang
enhancement allegations.
Our standard of review is well established. “ ‘[T]he relevant question is 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.’ ”
(People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443
U.S. 307, 318-319.) “[The] appellate court must view the evidence in the light most
favorable to respondent and presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3
Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “A
21
reasonable inference, however, ‘may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact
must be an inference drawn from evidence rather than . . . a mere speculation as to
probabilities without evidence.’ ” (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved
on another point in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5.) A trier of fact
may rely on inferences to support a conviction only if those inferences are “of such
substantiality that a reasonable trier of fact could determine beyond a reasonable doubt”
that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 890-891.)
“Evidence is sufficient to support a conviction only if it is substantial, that is, if it
‘ “reasonably inspires confidence” ’ [citation], and is ‘credible and of solid value.’ ” (Ibid.)
A section 186.22, subdivision (b) gang allegation has two elements. The crime
must be “committed for the benefit of, at the direction of, or in association with any
criminal street gang,” and the defendant must harbor “the specific intent to promote,
further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
The prosecution’s primary theory in support of the first element was that the robbery was
committed to provide funds “for the benefit of” the Norteno gang. Its theory for the
second element was that defendant intended to assist in the criminal conduct of his
coparticipants, at least two of whom were fellow Norteno gang members. Defendant’s
16
challenge is to the specific intent element.
Four key pieces of evidence provided the requisite support for the prosecution’s
theory. First, defendant was a Norteno gang member. Second, at least two of his
coparticipants were Norteno gang members. Three, the robbery was carefully planned
out in advance and required coordination between the participants. Four, the robbery was
16
Although defendant appears in his opening brief to be challenging both elements,
and the Attorney General clearly understood that to be the case, defendant asserts in his
reply brief that he is challenging only the specific intent element.
22
aimed at high value merchandise that could be readily converted into cash. The jury
could reasonably conclude that a robbery aimed at high value merchandise that was
planned and executed by a group of Norteno gang members was intended to benefit the
gang. It could also reasonably infer that defendant participated in the robbery with the
intent to assist his fellow gang member coparticipants.
None of the cases upon which defendant relies provides support for his
17
argument. In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) was a challenge to
the sufficiency of the evidence to support the specific intent element. Frank was stopped
by police after he ran a red light on his bicycle. He gave a false name, and the officer
found a concealed knife, a bindle of methamphetamine, and a red bandana in Frank’s
possession. (Frank S., at p. 1195.) Frank admitted that he carried the knife to protect
himself against “ ‘Southerners,’ ” as he was allied with northern street gangs. (Frank S., at
p. 1195.) The gang expert was permitted to testify that Frank had possessed the knife to
protect himself, and she opined that gang members use knives to protect themselves from
rival gang members and to assault rival gang members. (Frank S., at pp. 1195-1196.)
The Fifth District concluded that the expert should not have been permitted to testify
“that a specific individual possessed a specific intent.” (Frank S., at p. 1197.) As the
expert’s testimony was, in the Fifth District’s view, “the only evidence” of Frank’s intent,
the true finding on the enhancement allegation was not supported by substantial evidence.
(Frank S., at pp. 1197-1199.)
The holding in Frank S. is not relevant here. Livingston did not testify that
defendant actually harbored the requisite specific intent. His testimony simply provided
the necessary predicate for a reasonable inference that defendant harbored the requisite
17
As we have already noted, Albarran is distinguishable. It did not involve a
contention that there was insufficient evidence to support the specific intent element of a
gang allegation.
23
intent. Because defendant participated in a planned robbery with fellow Norteno gang
members, it could be inferred that he intended to assist in their criminal conduct.
Defendant also cites People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon),
which, like Frank S., was a Fifth District case concerning the sufficiency of the evidence
to support the specific intent element. Ramon, a gang member, was stopped by police in
his gang’s territory while driving a stolen truck. A fellow gang member was his
passenger, and an unregistered firearm was found under the driver’s seat. (Ramon, at
pp. 846-847, 849.) The prosecution’s gang expert testified at trial that the stolen truck
and the unregistered firearm could be used to commit gang crimes. (Ramon, at p. 847.)
He offered an opinion that possession of a gun and driving of a stolen truck in gang
territory therefore benefitted the gang and that the perpetrators of these offenses would
intend to promote the gang. (Ramon, at p. 848.) The expert testified that stolen trucks
and firearms were “tools” that the gang needed to commit other crimes. (Ibid.)
Ramon argued on appeal that the facts of his offenses plus the fact of his gang
membership and presence in gang territory were insufficient to support the expert’s
opinion on benefit and intent. (Ramon, supra, 175 Cal.App.4th at pp. 849-850.) The
Fifth District, relying on Frank S., agreed. (Ramon, at p. 851.) “These facts, standing
alone, are not adequate to establish that Ramon committed the crime with the specific
intent to promote, further, or assist criminal conduct by gang members. While Ramon
may have been acting with this specific intent, there is nothing in the record that would
permit the People’s expert to reach this conclusion.” (Ramon, at p. 851.) “The facts on
which [the gang expert] based his testimony were insufficient to permit him to construct
an opinion about Ramon’s specific intent in this case. His opinion, therefore, cannot
constitute substantial evidence to support the jury’s finding on the gang enhancement.”
(Ramon, at p. 852.) “While the People’s expert’s opinion certainly was one possibility, it
was not the only possibility. And, as stated ante, a mere possibility is not sufficient to
support a verdict.” (Ramon, at p. 853.)
24
Ramon is no more relevant here than Frank S. While the mere possibility that the
gun possessed by Ramon could be used for gang purposes was not enough to support the
specific intent element, defendant actually committed a carefully preplanned robbery in
concert with fellow gang members. The specific intent element was easily established.
Defendant’s reliance on People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa) is
no more helpful to his case. Ochoa was a Fourth District case in which Ochoa
challenged the sufficiency of the evidence to support the gang benefit element of the gang
enhancement allegations attached to carjacking and felon in possession of a firearm
counts. (Ochoa, at p. 652.) Ochoa, a gang member, had acted alone in committing a
carjacking with a shotgun. (Ochoa, at p. 653.) The offense had not occurred in Ochoa’s
gang’s territory. (Ochoa, at p. 662.) A divided Fourth District panel found the evidence
insufficient to sustain the benefit element of the gang enhancements. “[N]othing in the
circumstances of the instant offenses sustain[s] the expert witness’s inference that they
were gang related.” (Ochoa, at pp. 661-662.) “[The gang expert’s testimony] was based
solely on speculation, not evidence. An appellate court cannot affirm a conviction based
on speculation, conjecture, guesswork, or supposition.” (Ochoa, at p. 663.) On the other
hand, the Ochoa court disagreed with the Ramon court’s assessment of the evidence in
Ramon and said that it would have found that evidence sufficient to support the specific
intent element. (Ochoa, at p. 661, fn. 6.)
Ochoa is distinguishable. Defendant is challenging the sufficiency of the evidence
as to only the specific intent element. In any case, since defendant committed a high
value, preplanned robbery in concert with his fellow Norteno gang members, it was not
speculation to infer that they intended to use the loot to benefit their gang.
Defendant also seeks to support his contention by citing In re Daniel C. (2011)
195 Cal.App.4th 1350 (Daniel C.). Daniel C. was a First District case in which Daniel
challenged the sufficiency of the evidence to support the specific intent element. Daniel
and three other young men, all wearing red, went into a store. Two of Daniel’s
25
companions were gang members, and he was an “affiliate.” After his companions left the
store, Daniel took a bottle of liquor and left without paying for it. A store employee
confronted him, and Daniel broke the bottle and attacked the employee with the broken
bottle. He then escaped in a vehicle with the other young men. (Daniel C., at pp. 1353-
1355, 1362.) A gang expert testified that the robbery was “gang-related” based on gang
membership, the coordinated actions of the young men, the fact that they were wearing
red, and the fact that crow bars and a baseball bat were found in the vehicle. (Daniel C.,
at p. 1356.) The First District found the evidence insufficient to support the specific
intent element of the gang enhancement allegation because there was no evidence that
defendant had acted “in concert” with his companions. Consequently, as Daniel was not
himself a gang member, he could not have intended to assist “gang members” in
committing the robbery (which the First District concluded he perpetrated alone), and the
specific intent element therefore lacked evidentiary support. (Daniel C., at pp. 1361-
1362.)
As is the case with defendant’s other citations, Daniel C. is readily
distinguishable. The First District found that the evidence did not show that Daniel was a
gang member, but defendant does not challenge the evidence that he and his
coparticipants in the robbery were Norteno gang members. The First District concluded
that Daniel acted alone, but defendant indisputably acted in concert with his fellow gang
members. Daniel C. is not on point.
Evidence that defendant, a Norteno gang member, joined with fellow Norteno
gang members in meticulously planning and executing a robbery of high value
merchandise was sufficient to support a reasonable inference that defendant participated
with the intent to assist his fellow gang members in carrying out the robbery. It follows
that substantial evidence supports the gang allegations.
26
C. Multiple Reckless Evading Convictions
Defendant argues that he could not be convicted of two reckless evading counts
because the pursuit of the minivan was a single pursuit rather than two separate pursuits.
Defendant was charged with three reckless evading counts. As the prosecutor
explained in her argument to the jury, the first one was based on the pursuit of the Honda.
The second one was based on Cefalu’s pursuit of the minivan. The third one was based
on Lloyd’s pursuit of the minivan. Defendant’s trial counsel conceded in closing
argument that defendant was driving the minivan, but he argued that Cefalu’s pursuit and
Lloyd’s pursuit of the minivan were just one pursuit. The jury was unable to reach a
verdict on the first reckless evading count, but it convicted defendant on the second and
third reckless evading counts. The court imposed a consecutive subordinate term for one
of the reckless evading counts and a concurrent term for the other.
“ ‘[A] charge of multiple counts of violating a statute is appropriate only where the
actus reus prohibited by the statute—the gravamen of the offense—has been committed
more than once.’ ” (People v. Jimenez (1992) 11 Cal.App.4th 1611, 1623, disapproved on
another point in People v. Kobrin (1995) 11 Cal.4th 416, 419-420.) The actus reus of
reckless evading has two parts. The driver must be fleeing or attempting to elude “a
pursuing peace officer.” And the driver must drive “in a willful or wanton disregard for
the safety of persons or property,” which occurs when the driver commits “three or more
violations that are assigned a traffic violation point count . . . .” (Veh. Code, § 2800.2.)
It is significant that Vehicle Code section 2800.2 explicitly refers to flight from
“a” pursuing officer. Defendant’s first flight was from Cefalu. His second flight was
from Lloyd. These were separate acts by defendant that occurred at separate times and
places and were flights from different officers. During his flight from Cefalu, he
committed at least three violations of the requisite type. And during his subsequent flight
from Lloyd he committed at least three separate violations of the requisite type. Since
27
defendant committed the actus reus of reckless evading twice, he could be convicted of
two counts of reckless evading.
Defendant relies heavily on People v. Copass (2009) 180 Cal.App.4th 37
(Copass). Copass has nothing to do with the propriety of multiple convictions. Copass
was convicted of a single count of reckless evading. A police officer signaled Copass to
pull his motorcycle over, and Copass appeared to be complying by moving to the
shoulder. When the officer approached him, Copass rode off at high speed without
signaling with the officer in pursuit. The officer briefly lost sight of Copass and turned
off his emergency lights to avoid alarming other motorists while he searched for Copass.
Within five minutes, the officer was alerted by another officer to Copass’s location, and
he proceeded to that location. The officer saw Copass commit another traffic violation.
Once he had positioned himself behind Copass, he reactivated his emergency lights and
siren. Copass committed more traffic violations before the officer was able to block his
path and force him to surrender. (Copass, at pp. 39-40.)
On appeal, Copass claimed that one of his traffic violations could not serve as a
predicate for the reckless evading count because the officer’s emergency lights were not
activated at that time. (Copass, supra, 180 Cal.App.4th at p. 40.) The Second District
rejected Copass’s claim. First, the court found that the officer’s brief loss of visual
contact with Copass did not mean that the original pursuit was at an end. “[T]here was
but one pursuit.” (Copass, at p. 41.) Since Copass had already seen the officer’s
emergency lights and heard his siren, it was immaterial that the lights and siren were not
active at the time of one of Copass’s four traffic violations. (Ibid.) Second, any error in
permitting the jury to consider the one traffic violation during which lights and siren were
not active was harmless because it was reasonably probable that the jury still would have
found the other three traffic violations sufficient to support the conviction, as only three
traffic violations are required for a reckless evading conviction. (Copass, at p. 42.)
28
Defendant contends that Copass supports his argument that he committed only one
reckless evading, rather than two. But Copass says nothing relevant about the situation
before us. In Copass, a single officer was pursuing Copass and lost visual contact with
him for less than five minutes before resuming his pursuit. Copass committed one set of
traffic violations, not two sets. Here, defendant successfully eluded Cefalu and was free
from pursuit until Lloyd, who had not previously been among those pursuing him,
initiated a pursuit that was temporally and spatially separate and distinct from the earlier
one. Defendant committed a complete set of the requisite type of traffic violations during
Cefalu’s pursuit, and he committed a second complete set of the requisite type of traffic
violations during Lloyd’s pursuit. He was properly found to have committed two counts
of reckless evading.
Defendant cites but does not discuss People v. Garcia (2003) 107 Cal.App.4th
1159 (Garcia). Garcia, unlike Copass, did concern the validity of multiple reckless
evading convictions. The Second District held that Garcia could not be convicted of
multiple reckless evading counts where there was a single pursuit by multiple officers.
The distinction between Garcia’s conduct and that of defendant is that Garcia engaged in
a single, continuous, uninterrupted flight from multiple officers, who were acting in
concert, and Garcia committed an uninterrupted set of traffic violations during that
uninterrupted flight. As there was but a single flight, he could not be subjected to
multiple convictions. In contrast, defendant engaged in two unconnected flights at two
different times and in two different places from two different officers, who were not
jointly engaged in pursuing him. Garcia did not engage in multiple acts, while defendant
did. Multiple convictions were therefore permitted here.
D. Multiple Enhancement Terms
Defendant contends that the trial court erred in imposing both a 10-year term for
the section 186.22 gang enhancement and a consecutive 10-year term for the section
29
12022.53, subdivision (e) firearm enhancement. The Attorney General concedes that the
trial court erred in imposing both enhancement terms and that a remand is required.
Section 12022.53, subdivision (e)(2) provides: “An enhancement for participation
in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of
Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed
pursuant to this subdivision, unless the person personally used or personally discharged a
firearm in the commission of the offense.” (§ 12022.53, subd. (e)(2), italics added.)
Where the defendant did not personally use or personally discharge a firearm, he may not
be subjected to an increased sentence under both sections 186.22 and 12022.53. (People
v. Brookfield (2009) 47 Cal.4th 583, 594.)
It was not alleged or found true that defendant personally used or personally
discharged a firearm, so he could not be subjected to both enhancements. The trial court
was required to impose the section 12022.53 enhancement term unless another
enhancement term would produce a longer prison sentence. (§ 12022.53, subd. (j).)
Here, imposition of the gang enhancement term, rather than the section 12022.53
enhancement term would produce a longer prison term. This is true because the court
could impose the one-year section 12022 firearm enhancement term in addition to the 10-
year section 186.22 enhancement term for a total of 11 added years, but it could not
impose the one-year section 12022 enhancement term if it imposed the 10-year section
12022.53 enhancement term. (§ 12022.53, subd. (f) [“An enhancement involving a
firearm specified in Section . . . 12022 . . . shall not be imposed on a person in addition to
an enhancement imposed pursuant to this section.”].) Accordingly, we remand to the trial
court for it to strike the section 12022.53 enhancement terms and impose instead the
section 12022 enhancement terms on the relevant counts.
30
E. Restitution
Defendant contends that the trial court abused its discretion in awarding restitution
for the full retail value of all of the watches taken since all of the watches were returned
to Joe Escobar Diamonds.
Stacey Escobar, the vice-president of Joe Escobar Diamonds, testified at trial that
all of the Rolex watches were returned by the police. Four of them had been damaged by
being dropped. She testified that costs were incurred to repair the four damaged watches.
Joe Escobar Diamonds also paid $1,200 to repair the damaged display cases. The full
18
retail value of the watches taken by the robbers was $163,000. The probation report
noted that all of the watches taken from the store had been recovered and released to Joe
Escobar Diamonds. Nevertheless, Stacey Escobar sought $168,375 in restitution.
At the end of the sentencing hearing, the court ordered defendant to “pay victim
restitution” and noted that “[t]here has been a request for restitution submitted in this case
in the total amount of $168,375.” The court pointed out that “there did not appear to be a
reflection claimed of whatever sales price the store was able to obtain for the watches
once the refurbishing had been accomplished.” The defense requested a restitution
hearing, and the court scheduled one.
At the commencement of the restitution hearing, the court said: “I did ask the
People at the time of the previous hearing to make a determination as to whether or not
that amount reflected the reduced value sales and cost of repairs that had accompanied
the return of the property to the victim.” The prosecutor explained that she had spoken to
Stacey Escobar, and Escobar had told her that $168,375 was the “actual loss.” “I
explained what actual loss is and she replied, yes, and then contacted me just this
18
There was also evidence presented at trial that Joe Escobar Diamonds had
purchased the Rolex watches for $96,000.
31
morning and asked if she additionally gets money for the amount of time the
watchmaker, like his hourly wages, to work on some of these watches as well. [¶] So
she indicated that $168,375 is their actual loss. She said she came to the number, the
watches, the glass that was shattered and worker’s, employee’s time. . . . I explained to
her sort of the difference between what the chart shows and what she actually sold it as. I
asked her if this was her actual loss, and her reply was yes.”
The court then told the defense that it was now the defense’s burden to contradict
the “documentation” submitted by Escobar. The defense admitted that it had no
“evidence to contradict it.” Instead, defendant’s trial counsel challenged the admissibility
of the documentation. The court rejected this challenge. Because there was “no contrary
evidence presented,” the court ordered restitution of $168,375 to Joe Escobar Diamonds.
The Attorney General concedes that the trial court’s restitution award cannot be
upheld. We agree. “A restitution order is intended to compensate the victim for its actual
loss and is not intended to provide the victim with a windfall.” (People v. Chappelone
(2010) 183 Cal.App.4th 1159, 1172 (Chappelone).) While we review the trial court’s
order under the deferential abuse of discretion standard (id. at p. 1173), and “the court
need not order restitution in the precise amount of loss, it ‘must use a rational method that
could reasonably be said to make the victim whole, and may not make an order which is
arbitrary or capricious.’ ” (Id. at p. 1172.)
Stacey Escobar’s trial testimony established that all of the watches were returned
to Joe Escobar Diamonds and that only four of them were damaged. Yet she sought
restitution for an amount that obviously exceeded the cost to repair the display cases and
repair the four damaged watches, and appeared to instead include the full retail value of
all of the watches despite the fact that 10 of the watches had been returned to Joe Escobar
Diamonds undamaged. On this record, the trial court could not have rationally concluded
that Joe Escobar Diamonds’ “actual loss” included the full retail value of the 10
undamaged watches that had been returned to it. Such an award would provide Joe
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Escobar Diamonds with a windfall. We therefore agree with both defendant and the
Attorney General that the appropriate remedy is to remand for a new restitution hearing at
which the trial court shall determine the true amount of the actual loss sustained by Joe
Escobar Diamonds.
IV. Disposition
The judgment is reversed. On remand, the trial court shall strike the section
12022.53 enhancement on those counts where there is also a section 186.22 gang
enhancement and shall resentence defendant accordingly. The court shall also vacate its
restitution order and hold a new restitution hearing to determine the amount of the actual
loss sustained by Joe Escobar Diamonds.
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_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Premo, Acting P. J.
_____________________________
Grover, J.
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