Filed 1/13/22 P. v. Alvarez CA4/2 Opinion following rehearing NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072886
v. (Super.Ct.No. INF1501680)
ENRIQUE VILLA ALVAREZ et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson,
Judge. Affirmed in part, reversed in part, remanded with directions.
Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and
Appellant, Enrique Alvarez.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant Martin Gutierrez Jr.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine
L. Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendants and appellants Martin Gutierrez, Jr. and Enrique Villa Alvarez were
convicted on charges arising from two separate shootings, including one count of murder
and one count of attempted murder. Gutierrez received an indeterminate sentence of 85
years to life, plus a determinate sentence of 13 years and four months; Alvarez was
sentenced to 40 years to life.
On appeal, both defendants argue that (1) the trial court erred by excluding from
evidence expert testimony regarding eyewitness identification errors in other cases that
led to wrongful convictions, reversed later after exoneration by physical evidence; (2) the
trial court erred by denying Gutierrez’s motion to sever counts related to the attempted
murder from those related to the murder; and (3) the jury’s true findings on Penal Code
section 186.22 gang enhancements of count 1 as to both defendants were not supported 1 by substantial evidence. Gutierrez argues separately that (1) his convictions for the
murder and attempted murder were not supported by substantial evidence because the
eyewitness identifications inculpating him were unreliable; and (2) a one-year term
imposed on him for a prison prior enhancement must be stricken pursuant to Senate Bill
No. 136 (Sen. Bill 136) (Stats. 2019, ch. 590, § 1). Alvarez argues separately that (1) his
trial counsel provided ineffective assistance of counsel by failing to move to suppress his
statement to police, which he contends was obtained in violation of his rights under
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the model instruction given to
the jury on eyewitness identifications, CALCRIM No. 315, improperly allows the jury to
1 Further undesignated statutory references are to the Penal Code.
2 consider the eyewitness’s confidence in the identification; and (3) the cumulative error
doctrine applies.
In an unpublished opinion filed December 4, 2020, we rejected most of
defendants’ arguments, agreeing with Gutierrez that the prison prior enhancement of his
sentence should be stricken pursuant to Sen. Bill 136, but otherwise affirming the
judgments. The California Supreme Court granted Alvarez’s petition for review,
deferring consideration and disposition until it decided a related issue in People v.
Lemcke (2021) 11 Cal.5th 644 (Lemcke). In August 2021, our Supreme Court transferred
the matter to us with directions to vacate our prior opinion and reconsider this appeal in
light of Lemcke. Accordingly, we vacated our December 4, 2020 opinion and invited the
parties to submit supplemental briefing, which Alvarez and the People did.
After reconsidering the matter in light of Lemcke, we reached the same
conclusions as our prior opinion. In a new opinion, issued November 2, 2021, we again
agreed with Gutierrez that the prison prior enhancement of his sentence should be
stricken pursuant to Sen. Bill 136, but otherwise, we affirmed the judgments.
After our new opinion issued, however, Alvarez and Gutierrez petitioned for
rehearing so that we could consider the impact of newly enacted Assembly Bill No. 333
(2021-2022 Reg. Session) (Assembly Bill 333) on this case., under appointment by the
Court of Appeal, for Defendant and Appellant.
As relevant here, Assembly Bill 333 changed the requirements for a section
186.22 gang enhancement, effective on January 1, 2022, before this appeal will be final.
3 We granted rehearing and invited the parties to submit supplemental briefing. We now
conclude that, as the parties agree, the matter must be reversed in part and remanded to
give the People an opportunity to retry the alleged gang enhancements under the law as
amended by Assembly Bill 333. We do so, instructing the trial court (1) to strike
Gutierrez’s prison prior enhancement; (2) to give the prosecution an opportunity to retry
both defendants on the alleged section 186.22 enhancements, and (3) if the prosecution
elects not to retry the section 186.22 enhancements, or at the conclusion of retrial, to
resentence defendants. We otherwise affirm the judgments.
I. BACKGROUND
On the evening of August 11, 2015, V.A. was standing outside his apartment
smoking a cigarette when he was approached by three men. According to the
prosecution, Gutierrez was one of those three men. Gutierrez asked V.A. “‘where are
you from’” and “‘what do they call you.’” V.A. responded by saying something like
“‘What do you mean? Who are you?’” Gutierrez said “‘Do you want to go that route?’”
Gutierrez then pulled out a handgun and started shooting at V.A. V.A. sustained five
gunshot wounds, to his back, leg, and neck, but survived.
On the evening of September 22, 2015, J.C., together with three friends, was
drinking alcohol and smoking marijuana while sitting outside of the office of the same
apartment complex where V.A. had been shot the month before. They were approached
by three men; according to the prosecution, Gutierrez and Alvarez were two of those
three men. Gutierrez told J.C. to “get up.” J.C. ignored him. Gutierrez then told one of
4 J.C.’s friends to “move”; she did. Alvarez then pulled out a gun and began shooting at
J.C., hitting him eight times in the head, chest, and arms, killing him.
The prosecution presented evidence that the apartment complex where the
shootings both took place is within territory claimed by the Barrio Mecca Vineyards
criminal street gang. Indeed, the gang takes its name from the former name of the
apartment complex and it was initially formed there, though it has since expanded its turf.
Alvarez is an admitted member of the gang. The prosecution’s theory of the case was
that Gutierrez, too, is an active member, though he has argued otherwise.
Defendants were tied to the shootings by eyewitness identifications. Two of the
three people with J.C. at the time of that shooting identified Alvarez as the shooter and
Gutierrez as the person who demanded that J.C. “stand up” before the shooting. The
third person accompanying J.C. saw that the people who approached their group were
Hispanic males and observed some of their physical characteristics, but claimed that he
did not look at their faces. V.A. identified Gutierrez as the person who had shot him.
V.A. knew Alvarez a little bit through previous, innocuous interactions, and he had seen
Alvarez with Gutierrez a few days before the shooting. He testified unequivocally that
Alvarez was not one of the two other men who accompanied Gutierrez the night of the
shooting. Forensic examination of recovered bullet casings showed that the same firearm
was used in the August 2015 shooting of V.A. and the September 2015 shooting of J.C.
Both defendants claimed that they were misidentified. After a series of other
stories, Alvarez eventually told police that he was walking alone elsewhere in the
5 apartment complex when J.C. was shot, and that he heard the gunshots and he saw two
individuals running away. He claimed that at the time he did not know who had been
shot or who did the shooting, and he denied any involvement. Gutierrez denied having
been at the apartment complex at the time of either shooting, and he presented some alibi
evidence in support of that proposition at trial.
In connection with the September 2015 shooting, Gutierrez and Alvarez were both
charged with murder (§ 187, subd. (a), count 1), and Gutierrez was charged with being a
felon in possession of a firearm (§ 29800, subd. (a)(1), count 2). In connection with the
August 2015 shooting, Gutierrez was charged with attempted murder (§§ 187, 664, count
3) and a second count of being a felon in possession of a firearm (§ 29800, subd. (a)(1),
count 4). Alvarez was not charged in connection with the August 2015 shooting. The
information also alleged various gang, firearms, and recidivism based enhancements.
On count 1, the jury found both Gutierrez and Alvarez guilty of second degree
murder. On count 1, it found a gang enhancement (§ 186.22, subd. (b)(1)(C)) true as to
both defendants, and it found an enhancement for personally discharging a firearm
causing great bodily injury or death (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)) true
only as to Alvarez. It found Gutierrez guilty on counts 2, 3, and 4, finding true gang
enhancements (§ 186.22, subd. (b)(1)) of each of those counts, as well as an enhancement
of count 3 for personally discharging a firearm causing great bodily injury (§§ 12022.53,
subd. (d), 1197.7, subd. (c)(8)). Gutierrez admitted a prior strike allegation (§§ 667,
6 subds. (c) & (e), 1170.12, subd. (c)(1)), a prior serious felony allegation (§ 667.5, subd.
(a)), and a prison prior allegation (§ 667.5, subd. (b)).
The trial court sentenced Gutierrez to 85 years to life, plus 13 years and four
months. As relevant here, Gutierrez’s sentence includes a one-year term for the prison
prior enhancement. The trial court sentenced Alvarez to 40 years to life.
II. DISCUSSION
A. Exclusion of Expert Testimony
At trial, the defense presented testimony from an expert witness, a research
psychologist specializing in memory in the context of investigative interviews. Before
the expert testified, the prosecution moved to exclude “any discussion of the Innocence
Project” or the expert’s work with the Innocence Project, and specifically any discussion
of “select cases” involving erroneous eyewitness identifications. The defense proposed
that, even though the Innocence Project itself was not directly relevant, the expert should
be permitted to testify that there have been a number of cases in which eyewitness
identifications were the only evidence connecting the defendant to the charged offense,
“and it later turned out that those identifications were factually inaccurate.” The trial
court sided with the prosecution and excluded such testimony.
In this appeal, defendants contend that the expert should have been permitted to
testify “related to the context surrounding identification errors,” including that “over 400
convictions in California alone based on faulty identifications have been reversed after
7 exoneration by physical evidence,” often after the defendant has been in prison for many
years. We find no abuse of the trial court’s discretion.
In People v. McDonald (1984) 37 Cal.3d 351 (McDonald), our Supreme Court
held that “[w]hen an eyewitness identification of the defendant is a key element of the
prosecution’s case but is not substantially corroborated by evidence giving it independent
reliability, and the defendant offers qualified expert testimony on specific psychological
factors shown by the record that could have affected the accuracy of the identification but
are not likely to be fully known to or understood by the jury, it will ordinarily be error to
exclude that testimony.” (Id. at p. 377.) The Court found that the trial court in that case
had erred by excluding “in wholesale fashion” the entirety of a defense expert’s
testimony. (Id. at p. 372.) The Court also emphasized, however, that its holding was not
intended to ““‘open the gates’”” to any and all evidence related to eyewitness
identifications, and the decision to admit or exclude expert testimony on the issue
“remains primarily a matter within the trial court’s discretion.” (Id. at p. 377; see Evid.
Code, § 352.) Under the abuse of discretion standard, we disturb the trial court’s ruling
only if the court exercised its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice. (People v. Clark (2016) 63
Cal.4th 522, 572.)
Here, the trial court’s ruling regarding expert testimony on eyewitness
identifications was well within the scope of its discretion. The expert was permitted to
testify at length on how memory works and the various factors that bear on the accuracy
8 of eyewitness identifications, both generally and with reference to the specific
circumstances of this case. Indeed, there is hardly any aspect of the several
identifications of the defendants reflected in this record about which she did not opine,
either directly or through the multitude of hypotheticals posed by defense counsel. Her
testimony was limited only in that she could not make specific reference to other cases
involving identifications that may or may not have been similar to those in this case,
where it turned out the identifications were mistaken.
In our view, the excluded testimony would have had minimal if any probative
value, would have created a substantial danger of confusing the issues, and may well
have derailed the proceedings into evidence about other cases in order to show the
similarities (or lack of similarities) between this case and others, necessitating undue
consumption of time. (See Evid. Code, § 352.) There are cases where identifications
were reliable, and cases where they were not. The numbers or frequency of each type
have little, if any, connection to the jury’s determination in this case. The trial court’s
ruling was also consistent with the Supreme Court’s specific guidance regarding expert
testimony on eyewitness identifications. (See McDonald, supra, 37 Cal.3d at p. 377
[discussing expert testimony regarding “…specific psychological factors shown by the
record…” (italics added)].) Defendants have not demonstrated anything arbitrary,
capricious, or patently absurd about the trial court’s ruling. (See People v. Clark, supra,
63 Cal.4th at p. 572.) We therefore will not disturb it.
9 B. Motion to Sever
Prior to trial, Gutierrez moved to sever charges related to the murder of J.C.
(counts 1 and 2) from those related to the attempted murder of V.A. (counts 3 and 4), and
Alvarez joined in Gutierrez’s arguments. The trial court denied the motion. Defendants
here argue this ruling was an abuse of discretion. It was not.
In relevant part, section 954 provides that an “accusatory pleading may charge two
or more different offenses connected together in their commission” or “two or more
different offenses of the same class of crimes or offenses.” (§ 954.) “Joinder is
ordinarily favored because it avoids the increased expenditure of funds and judicial
resources that may result from separate trials.” (People v. Simon (2016) 1 Cal.5th 98,
122, italics added.) Nevertheless, “‘[t]he determination that the offenses are “joinable”
under section 954 is only the first stage of analysis because section 954 explicitly gives
the trial court discretion to sever offenses or counts “in the interest of justice and for good
cause shown.”’” (People v. Lucky (1988) 45 Cal.3d 259, 276-277 (Lucky).)
To prevail, the party seeking severance must make a “‘clear showing of
prejudice.’” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) “The
factors to be considered are these: (1) the cross-admissibility of the evidence in separate
trials; (2) whether some of the charges are likely to unusually inflame the jury against the
defendant; (3) whether a weak case has been joined with a strong case or another weak
case so that the total evidence may alter the outcome of some or all of the charges; and
(4) whether one of the charges is a capital offense, or the joinder of the charges converts
10 the matter into a capital case.” (People v. Mendoza (2000) 24 Cal.4th 130, 161.) Those
four factors must also be weighed against the benefits to the state from joinder. (People
v. Soper (2009) 45 Cal.4th 759, 783 (Soper).) A trial court’s denial of a motion to sever
properly joined charged offenses amounts to a prejudicial abuse of discretion only if that
ruling falls outside the bounds of reason, based on facts known to the court at the time of
the motion. (Id. at p. 774; People v. Geier (2007) 41 Cal.4th 555, 575.)
Here, the statutory requirements for joinder under section 954 were satisfied
because the offenses were all “of the same class of crimes,” or “connected together in
their commission.” (§ 954.) Murder and attempted murder “are both assaultive crimes
against the person and, as such, are ‘offenses of the same class’ expressly made joinable
by section 954.” (People v. Miller (1990) 50 Cal.3d 954, 987.) Gutierrez’s two felon in
possession charges are not assaultive crimes, but they were each “connected together in
their commission” with the murder or attempted murder. (§ 954; see People v. Koontz
(2002) 27 Cal.4th 1041, 1074-1075 [joinder of petty theft committed on one date with
robbery, vehicle taking, and murder committed on another date was proper under section
954, because the petty theft offense was of the “same class” as the robbery and vehicle
taking].) Joinder of all four counts was proper under section 954.
Defendants contend that, because Gutierrez was alleged to be the shooter only in
the attempted murder of V.A., and not the murder of J.C., the murder and attempted
murder counts were not of the same class of crimes. They provide no authority, however,
that supports the proposition that the class of crime should be determined with reference
11 to the defendant’s specific role in committing the offense, rather than simply the nature of
the offense. The two cases cited in Gutierrez’s briefing are inapposite. In People v.
Fulton (1980) 109 Cal.App.3d 777, the defendant made no argument that the charges at
issue were of different classes of crime, asserting only a claim of prejudice. (Id. at p.
782.) In Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, the Court of Appeal found
that several counts involving sexual conduct with minors had sufficient common
elements of substantial importance to be properly joined together, but a count of illegally
prescribing a narcotic to a different person, apparently not a minor, did not. (Id. at pp.
723-724.) Neither of these cases, nor any other authority of which we are aware, support
defendants’ contention.
Defendants, therefore, could establish error in denying severance only by making
a clear showing of prejudice. (Alcala, supra, 43 Cal.4th at p. 1220.) We do not find
anything arbitrary, capricious, or patently absurd in the trial court’s ruling that they failed
to do so. (See Soper, supra, 45 Cal.4th at p. 783.)
First, a substantial portion of the evidence from the two sets of charges would
have been cross-admissible if the murder and attempted murder had been tried separately.
As defendants point out, there are obvious ways to distinguish the August 2015 shooting
from the September 2015 shooting. Nevertheless, there were also ample similarities,
from which a jury could reasonably have inferred a common motive or plan underlying
Gutierrez’s actions in the two incidents. (See Evid. Code, § 1101, subd. (b); see also
People v. Arias (1996) 13 Cal.4th 92, 127 [“Because of the factors favoring joinder, a
12 party seeking severance must make a stronger showing of potential prejudice than would
be necessary to exclude other-crimes evidence in a severed trial”].) Much of the gang
related evidence would have been cross-admissible in separate trials of the murder and
attempted murder, as relevant to the gang enhancements common to all of the charges.
Also, as noted, there was evidence that the same gun was used in the two shootings.
Gutierrez’s physical possession and use of the weapon during the shooting of V.A. is at
least arguably circumstantial evidence of his intent in relation to the similar shooting of
J.C. a month later, as well as his alleged constructive possession of the weapon (count 2)
during that shooting. (See Evid. Code, § 1101, subd. (b).)
Second, given the similarities between the shootings, this is not a case where some
of the charges are more likely than others to unduly inflame the jury’s passions.
Defendants have not argued otherwise.
Third, the trial court reasonably could conclude the evidence in support of counts
1 and 2 was substantially similar in weight to the evidence in support of counts 3 and 4,
and also that the evidence for all counts, although not overwhelming, was not particularly
weak. There was no physical evidence tying defendants to the shootings, and there were
arguable grounds for dispute regarding the eyewitness identifications. Nevertheless, the
fact remains that both defendants were positively identified as being involved in the
murder of J.C. by two eyewitnesses—Gutierrez as the person who confronted J.C.
verbally, and Alvarez as the shooter—and V.A. positively identified Gutierrez as the
13 person who shot him. If this factor weighs in favor of a finding of prejudice at all, it
would seem to do so arguably or ambiguously, at most.
Fourth, this is not a capital case, no matter whether the charges were tried together
or separately.
Thus, of the four factors to be considered, none weigh unambiguously or clearly in
favor of a finding of prejudice. It was reasonable for the trial court to conclude that
trying counts 1 and 2 together with counts 3 and 4 would not be unduly prejudicial to
defendants on that basis.
Moreover, we must also “proceed to weigh all four factors [regarding prejudice]
against the benefits to the state of joinder,” which are “very substantial.” (Soper, supra,
45 Cal.4th at pp. 780, 783.) “Foremost among these benefits is the conservation of
judicial resources and public funds. A unitary trial requires a single courtroom, judge,
and court attaches. Only one group of jurors need serve, and the expenditure of time for
jury voir dire and trial is greatly reduced over that required were the cases separately
tried. In addition, the public is served by the reduced delay on disposition of criminal
charges both in trial and through the appellate process.” (People v. Bean (1988) 46
Cal.3d 919, 939-940.) This factor, obviously, weighs strongly in favor of joinder.
Gutierrez proposes that this case is similar to Williams v. Superior Court (1984) 36
Cal.3d 441 (Williams), in which the denial of a motion to sever was found to be
erroneous. We are not persuaded by the analogy. In Williams, the Supreme Court
observed that the two shootings at issue “differ[ed] in virtually every regard—the
14 location, the time of day, the number of people involved, and the method of attack. In
addition, there is no evidence that the same weapon was used in the fatal assaults, and it
certainly could not be fairly claimed that the two episodes reveal a common design or
plan.” (Id. at p. 450.) Eyewitnesses had placed the defendant at the scene of the first
shooting, along with other assailants, but there was “no direct evidence that [he] fired a
weapon.” (Id. at p. 445.) In the second shooting, nine months later, an eyewitness
identified the defendant as the person driving a van from which shots were fired, but he
was not the only occupant of the vehicle, and again no witness was certain that he was the
person who fired the weapon. (Ibid.) Here, in contrast, the two charged shootings shared
various characteristics, including the use of the same firearm, that they were only a month
apart, and that eyewitnesses affirmatively identified each of the defendants’ roles.
Moreover, Williams was a capital case, requiring that the severance issue be analyzed
“with a higher degree of scrutiny and care than is normally applied in a noncapital case,”
particularly because it was “the joinder itself” that made the defendant potentially eligible
for the death penalty. (Id. at p. 454.) That consideration does not apply here.
We also disagree with Alvarez’s assertion that “People v. Chambers (1964) 231
Cal.App.2d 23 (Chambers) demonstrates the trial court’s error in the present case.” In
that case, the defendant Chambers was charged, together with a codefendant, with an
assault on a resident of a “rest home” where they both worked. (Id. at pp. 24-25.) The
codefendant was also charged with two other assaults on the same resident, and the
evidence against her included evidence of “numerous” uncharged assaults by her over a
15 period of six or seven years. (Id. at pp. 25-27.) The court characterized that evidence as
having a particularly “disgusting, inflammatory character,” that “fastened Chambers with
moral responsibility (but not criminal responsibility) for the operation of an establishment
in which elderly, helpless patients were cruelly treated.” (Id. at pp. 27-28.) There was no
evidence Chambers was involved in any of the charged and uncharged assaults allegedly
committed by the codefendant, except for the one with which he was charged. (Id. at p.
25-28.) Nevertheless, the prosecution accentuated the “impression of moral partnership”
between Chambers and his codefendant by “an astounding line of prosecution questions
suggesting to the jurors that Chambers and [his codefendant] probably shared a single
bed.” (Id. at p. 28.) On those facts, the Court of Appeal found that Chambers “was
probably convicted by association with [his codefendant], in trial and otherwise, rather
than by evidence of his personal guilt,” and that his constitutional right to due process
had been violated. (Ibid.)
Here, in contrast, we have no cause to believe that Alvarez was probably
convicted by association with Gutierrez. The prosecution engaged in no improper
argument or line of questioning analogous to that in Chambers, suggesting that Alvarez is
morally responsible for Gutierrez’s actions in any charged or uncharged assault where
Alvarez was not present. The facts of the two shootings at issue here were not
particularly inflammatory, as compared to the brutal and sadistic treatment of elderly
patients described in Chambers. Nothing in the record leads us to doubt Alvarez’s
16 conviction was based on anything other than the evidence presented against him, and
reasonable inferences therefrom drawn by the jury.
Moreover, in Chambers, the issue was whether the defendant’s rights were
violated by trying him together with his codefendant. (Chambers, supra, 231 Cal.App.2d
at p. 28.) Granting Gutierrez’s motion to sever would not have resulted in Alvarez being
tried separately from Gutierrez; the motion only sought to sever trial of counts 1 and 2,
related to the murder of J.C., from trial of counts 3 and 4, related to the attempted murder
of V.A. If Gutierrez’s motion had been granted, absent an additional motion to sever,
Alvarez and Gutierrez would still have been tried together on counts 1 and 2. Even on
appeal, Alvarez has contended only that the trial court “erred by refusing to sever
Gutierrez’s attempted murder related charges.” (Bolding omitted.) Neither in the trial
court, nor on appeal, has Alvarez expressly contended that his constitutional rights were
violated by being tried together with Gutierrez on counts 1 and 2, so we will not consider
the issue here. (See People v. Lind (2014) 230 Cal.App.4th 709, 716 [failure to move to
sever in trial court forfeits issue on appeal].) Thus, Chambers adds little to the analysis
of whether the trial court abused its discretion in denying Gutierrez’s motion.
We conclude that all four counts were properly joined pursuant to section 954.
Further, on the record before us, after considering all the relevant factors, we are not
persuaded that the trial court exceeded the bounds of reason in concluding that
defendants had not made a clear showing of prejudice from the joinder of counts 1 and 2
17 with counts 3 and 4. We therefore find no abuse of discretion in its denial of Gutierrez’s
motion to sever.
C. Eyewitness Identifications of Gutierrez
Gutierrez contends that his convictions for the murder of J.C. (count 1) and
attempted murder of V.A. (count 3) must be reversed because the eyewitness
identifications that implicated him are so unreliable that they may not be considered
substantial evidence. Not so.
As noted above, in reviewing the record for substantial evidence, we affirm the
jury’s finding “‘unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio, supra, 43
Cal.4th at p. 357.) Thus, the jury’s findings of fact concerning eyewitness identification
testimony are binding on us unless the evidence of identity is “‘so weak as to constitute
practically no evidence at all.’” (People v. Mohamed (2011) 201 Cal.App.4th 515, 521.)
“‘To warrant the rejection by a reviewing court of statements given by a witness who has
been believed by the trial court or the jury, there must exist either a physical impossibility
that they are true, or it must be such as to shock the moral sense of the court; it must be
inherently improbable and such inherent improbability must plainly appear.’” (People v.
Watts (1999) 76 Cal.App.4th 1250, 1259.)
There is nothing inherently improbable about the eyewitness identifications that
implicated Gutierrez in the shootings of J.C. and V.A. At trial, the defense presented a
myriad of reasons why a jury might doubt the accuracy of those identifications, through
18 expert testimony and cross-examination of the eyewitnesses. Nevertheless, it is hardly
physically impossible or inherently improbable that V.A. would have recognized
Gutierrez as the person who shot him, or that two of J.C.’s friends would have recognized
Gutierrez as the person who demanded that J.C. “stand up,” and that his friend move out
of the way, in the moments before J.C.’s murder. Gutierrez here repeats arguments that
defendants made at trial, which the jury was free to accept or reject. It is not our role to
second guess the jury’s determinations.
D. Sen. Bill 136
The parties agree that under section 667.5, subdivision (b), as amended by Sen.
Bill 136, Gutierrez’s one-year prison prior enhancement should be stricken. The parties
are correct. Under section 667.5, subdivision (b) as amended, such enhancements may
only be imposed for certain sexually violent offenses, and Gutierrez’s prior prison
sentence was not for such an offense. Furthermore, although Sen. Bill 136 did not
become effective until January 1, 2020, which was after Gutierrez’s sentencing, we agree
with the parties that the change in law applies retroactively to cases not yet final. (See
People v. Lopez (2019) 42 Cal.App.5th 337, 341; In re Estrada (1965) 63 Cal.2d 740,
742.) Accordingly, we will order that the enhancement be stricken.
E. Alvarez’s Statement to Law Enforcement
Alvarez contends that his trial counsel’s failure to move to suppress his statement
to police constituted constitutionally ineffective assistance of counsel. He argues that the
statement was obtained in violation of his Miranda rights, and that its admission
19 prejudiced him. We find Alvarez has failed to demonstrate ineffective assistance of
counsel, even if Miranda error is presumed.
1. Additional Background
Alvarez’s interview with police includes the following exchange:
“[DETECTIVE]: Well there’s a lot of stuff that I wanna talk to you about right, with you
being here. Um, that I wanna share with you. I just can’t yet. Until I just get through
some policy. Okay?
“ALVAREZ: Okay.
“[DETECTIVE]: That’s just policy. I’ll just read it to you and okay? You have the right
to remain silent. Anything you say can and will be used against you in a court of law.
You have the right to talk to your lawyer, have him [] present with you while you are
being questioned. If you cannot afford to hire a lawyer, one will be appointed to
represent you before any questioning if you wish one. Okay? You understand all that?
“ALVAREZ: No but . . .
“[DETECTIVE]: You don’t understand?
“ALVAREZ: Just stay silent . . .
“[DETECTIVE]: Uh, I’m sorry what?
“ALVAREZ: To be quiet. To be silent.
“[DETECTIVE]: Okay. Tell me what you don’t understand and I’ll – I’ll help you
explain it all. Explain it to you.
“ALVAREZ: Just like with the lawyer part said.
20 “[DETECTIVE]: Mm-hm. Well it’s just – it’s – it’s your Miranda. It’s a Miranda
Warning okay?
“[DETECTIVE]: Um, but yeah just you-you said the lawyer part right?
“ALVAREZ: Mm-hm.
“[DETECTIVE]: So you have the right to talk to a lawyer and have-have him or her
present with you while you are being questioned.
“[DETECTIVE]: You have a right to have a lawyer. Okay?
“[DETECTIVE]: Um, if you cannot afford to hire a lawyer, one will be appointed to
represent you before any questioning if you wish one. Okay?
“ALVAREZ: Okay. What is that word mean?
“[SECOND DETECTIVE]: I mean it’s free of charge, they will get you a lawyer.
“[DETECTIVE]: Mm-hm.
“ALVAREZ: Oh.
“[DETECTIVE]: Which in the court process, uh, no matter what happens, it just depends
but you being like this, we have to say that. Um, but within that court process, if
anything ever does get to that route, you have a right to a lawyer. So, um, how—how
long have you lived over at Casas Ran?
“ALVAREZ: Something like four years.
21 “[DETECTIVE]: You did understand all that right though? ‘Cause I…
“ALVAREZ: Yeah.
“[DETECTIVE]: Okay cool.”
During a hearing on in limine motions before trial, the prosecutor informed the
court that he intended to introduce Alvarez’s statement, and drew the court’s attention to
a “potential Miranda violation,” referring to the passage we have reproduced above. The
prosecutor expressed that he did not believe there in fact was a Miranda violation, and
described the exchange between Alvarez and the detectives to the court; he did not have a
transcript of the interview with him, however, and his paraphrase of the exchange was not 2 very accurate. The trial court asked Alvarez’s counsel if he had reviewed the statement.
Alvarez’s counsel stated that he had reviewed the statement, and he agreed there was no
Miranda violation.
During trial, after the video of Alvarez’s interview was played for the jury, the
court requested a sidebar conference with counsel, and again raised the potential Miranda
issue regarding the passage cited above. The court made a record of its initial concerns
about a potential Miranda issue, and its reasons for concluding that in fact there was no
violation. It then invited comment from counsel. Alvarez’s counsel noted “just for the
2 Counsel summarized the exchange as follows: “[D]uring the reading of the rights to Mr. Alvarez, after [the detective] asked ‘Do you understand your rights?’ And then Mr. Alvarez said, ‘Well, what is that thing about an attorney?’ So at that point I believe [the detective] says, ‘Well, rights as I have read them to you, do you understand them?’ At which point, it was one of those things where Mr. Alvarez – he reads the rights again and then asked, I believe he said, ‘Do you understand them?’ At which point Mr. Alvarez says, ‘Yes.’”
22 record, I did not make a motion to suppress my client’s statement based on a Miranda
violation.” The court agreed.
2. Applicable Law
To establish ineffective assistance of counsel, “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.” (People v. Mai
(2013) 57 Cal.4th 986, 1009.)
It is well established that “[r]eviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel [citation], and there is
a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” (People v. Lucas (1995) 12 Cal.4th 415, 436-437, quoting
Strickland v. Washington (1984) 466 U.S. 668, 689.) “‘Reviewing courts will reverse
convictions [on direct appeal] on the ground of inadequate counsel only if the record on
appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her]
act or omission.’” (People v. Zapien (1993) 4 Cal.4th 929, 980.) “In the usual case,
where counsel’s trial tactics or strategic reasons for challenged decisions do not appear
on the record, we will not find ineffective assistance of counsel on appeal unless there
could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver
(2001) 26 Cal.4th 876, 926.)
23 3. Analysis
We may assume for the sake of argument that Alvarez’s statement was obtained in
violation of his Miranda rights, as he has argued on appeal. Nevertheless, this is not a
case where there is no conceivable reason for trial counsel to decline to seek to exclude
the statement from evidence. As Alvarez’s trial counsel emphasized in closing, at no
point during the interview did Alvarez confess to any involvement in the murder of J.C.
Rather, he was absolutely consistent in the face of intense questioning that he took no
part in the shooting. Moreover, the interview statement offers an arguably plausible
alternative story of where he was on the night of the shooting; that he was walking alone
elsewhere in the apartment complex when J.C. was shot, and that he heard the gunshots
and he saw two individuals running away. Alvarez’s counsel may have reasoned that it
was advantageous to get into evidence Alvarez’s affirmative denial of any involvement in
the shooting, and a story as to what he was doing instead at the time of the shooting,
without having to put him on the stand and subject him to cross-examination. On that
basis, counsel may have calculated any problems with the statement, from the perspective
of the defense, were outweighed by its potential benefits, and decided not to pursue any
potential basis for excluding it.
Of course, for reasons Alvarez has articulated in briefing on appeal, among others,
it may have in fact been to his advantage to have the statement excluded. It is easy to
criticize defense decisions that precede a guilty verdict. Nevertheless, “‘courts should not
second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight,’”
24 and even “‘[t]actical errors are generally not deemed reversible . . . .’” (People v.
Weaver, supra, 26 Cal.4th at p. 926.)
Although our record is silent as to exactly what Alvarez’s trial counsel’s reasoning
actually was, it could hardly be more clear that the decision not to pursue a motion to
suppress Alvarez’s statement was intentional, and not a product of having failed to
consider the issue. Moreover, there is a conceivable, at least arguably rational reason for
trial counsel to have decided not to seek to suppress Alvarez’s statement, even assuming
for the sake of argument there was a Miranda violation. On this record, reversal for
ineffective assistance of counsel is not warranted.
F. CALCRIM No. 315
The trial court instructed the jury on evaluating eyewitness identifications using
the model instruction CALCRIM No. 315. The instruction told jurors to “consider” a
number of “questions,” including “How certain was the witness when he or she made an
identification.” Alvarez did not object to the trial court instructing the jury with
CALCRIM No. 315 or request any modification to that instruction. He contends on
appeal that the instruction violates his constitutional right to a fair trial.
In Lemcke, supra, 11 Cal.5th 644, our Supreme Court acknowledged that
CALCRIM No. 315 had “the potential to mislead jurors,” given the “near unanimity in
the empirical research that ‘“under most circumstances, witness confidence or certainty is
not a good indicator of identification accuracy.’”” (Id. at p. 665.) It referred the matter
to the Judicial Council and the council’s Advisory Committee on Criminal Jury
25 instructions “to evaluate whether or how the instruction might be modified to avoid juror
confusion regarding the correlation between certainty and accuracy. (Id. at p. 647; accord
id. at p. 668.) In addition, the court exercised its supervisory powers to “direct that until
the Judicial Council has completed its evaluation, trial courts should omit the certainty
factor from CALCRIM No. 315 unless the defendant requests otherwise.” (Id. at pp.
647-648; accord id. at p. 669.) Nevertheless, Lemcke rejected the defendant’s argument
that the instruction violated his due process rights. (Id. at pp. 646-647, 654-661.)
For the reasons set forth in Lemcke, we reject Alvarez’s due process argument.
The instruction did not expressly equate certainty with accuracy. (Lemcke, supra, 11
Cal.5th at p. 657.) Even if it were susceptible to that interpretation, Alvarez could, and in
fact did, proffer expert testimony combatting the interpretation, as the Lemcke defendant
did. (Id. at pp. 657-658.) Moreover, the court’s other instructions undercut any argument
that the certainty instruction lowered the People’s burden of proof. (Id. at p. 658.) The
court instructed the jurors that the defendant is presumed innocent and that the People
had the burden of proving guilt beyond a reasonable doubt (CALCRIM No. 220).
(Lemcke, at p. 658.) The court also instructed jurors that “‘[p]eople sometimes
honestly . . . make mistakes about what they remember’” (CALCRIM No. 226), that the
jurors were responsible for “‘judg[ing] the credibility or believability of the witnesses,’”
and that the People had “‘the burden of proving beyond a reasonable doubt that it was the
defendant who committed the crime’” (CALCRIM No. 315). (Lemcke, at p. 658.)
Finally, Alvarez had an opportunity to cross examine the witnesses who identified him,
26 as well as the investigating officers who conducted the photographic lineups. (Id. at p.
660.) Accordingly, the eyewitness certainty instruction did not render Alvarez’s trial
fundamentally unfair or otherwise violate his due process rights. (Id. at p. 661.)
Alvarez attempts to distinguish Lemcke on the basis that the trial court here
instructed the jury with CALCRIM No. 301, which states in part that “the testimony of
only one witness can prove any fact.” He also emphasizes language from CALCRIM No.
226, not quoted in Lemcke, instructing the jury not to “automatically reject testimony just
because of inconsistencies or conflicts” and that [i]f you think the witness lied about
some things, but told the truth about others, you may simply accept the part that you think
is true and ignore the rest.” He has not articulated, however, nor are we able to discern,
any reason why such a distinction might make a difference. Indeed, these common
pattern instructions or their equivalent most likely were given in Lemcke, but are not 3 discussed in the opinion because they are not pertinent to the analysis.
Alvarez also argues that here the identification evidence was weaker in various
ways than the analogous evidence presented in Lemcke. This difference, however, tends
to undermine, not support, Alvarez’s conclusion. If anything, the various arguable faults
or weaknesses in the identification evidence only provided grist for cross examination
and defense arguments highlighting those weaknesses. In such circumstances, it would
3 Language identical to part of CALCRIM No. 226 is quoted in Lemcke, but only identified as from a “general instruction on witness testimony.” (Lemcke at p. 658.)
27 seem less likely, not more, that the jury would apply its instructions on eyewitness
certainty in a problematic manner.
Alvarez has not demonstrated that the trial court violated his due process rights by
instructing the jury on the eyewitness certainty factor included in CALCRIM No. 315.
G. Cumulative Error
Alvarez argues that he is entitled to reversal because of cumulative error. We
have found no error with respect to the judgment against him, so the cumulative error
doctrine does not apply.
H. Assembly Bill 333
In their initial briefing on appeal, Alvarez and Gutierrez both contended that their
convictions on gang enhancements related to the murder of J.C. (count 1) were not
supported by substantial evidence. In our previous opinions in this matter, now vacated,
we rejected those contentions. The requirements for such section 186.22 gang
enhancements, however, have been changed by Assembly Bill 333. In supplemental
briefing, defendants argue, and the People concede, that we should remand the matter to
give the People an opportunity to retry the gang enhancements alleged as to all counts
under the new version of section 186.22. We agree.
Section 186.22 enhances the punishment of a person convicted of an enumerated
felony committed “for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” (§ 186.22, subd. (b)(1), (4).) Effective January 1, 2022,
28 Assembly Bill 333 changes where this enhancement applies in several respects. It
narrows the definition of “criminal street gang,” from “an ongoing, organized association
or group of three or more persons . . . whose members individually or collectively engage
in, or have engaged in, a pattern of criminal gang activity” (§ 186.22, subd. (f)) to “an
ongoing, organized association or group of three or more persons . . . whose members
collectively engage in, or have engaged in, a pattern of criminal gang activity” (Assem.
Bill 333, § 3, revised § 186.22, subd. (f), italics added.) It also raises the bar for proving
a “pattern of criminal gang activity”: (1) predicate offenses now must be proven to have
“commonly benefitted a criminal street gang, and the common benefit from the offense[s]
is more than reputational”; (2) the last predicate offense must have occurred within three
years of the date of the currently charged offense; (3) the predicate offenses must have
been committed by two or more “members” of the gang, as opposed to any persons; (4)
the currently charged offense no longer counts as a predicate offense; and (5) the list of
qualifying predicate offenses is shortened. (Assem. Bill 333, § 3, revised § 186.22, subd.
(e)(1)-(2).)
Assembly Bill 333’s ameliorative amendments to section 186.22 will apply
retroactively to defendants because their judgments will not be final when the 4 amendments take effect. (See People v. Superior Court (Lara) 4 Cal.5th 299, 307-308
4 In addition to amending section 186.22, Assembly Bill 333 also adds a new section 1109 to the Penal Code. We need not and do not decide whether section 1109 also operates retroactively, like the revised section 186.22, or if it operates only prospectively.
29 [discussing In re Estrada (1965) 63 Cal.2d 740 (Estrada)]; see also Tapia v. Superior
Court (1991) 53 Cal.3d 282, 300-301 [applying Estrada to statutory amendments that
“redefine, to the benefit of defendants, conduct subject to criminal sanctions”]; People v.
Nasalga (1996) 12 Cal.4th 784, 792 [“The rule in Estrada has been applied to statutes
governing penalty enhancements, as well as to statutes governing substantive offenses”].)
Moreover, defendants may be able to benefit from those changes. Among other things,
as the People concede, two of the three predicate offenses used at trial to establish the
gang’s pattern of criminal activity could no longer serve as predicate crimes under the
revised section 186.22, because (as best can be determined from the present record) they
were committed by a gang member acting individually, rather than collectively. Also, the
jury was instructed that it could consider the currently charged crimes in determining
whether the prosecution had proven a pattern of criminal gang activity, which would not
be permitted under the revised section 186.22. Additionally, under the revised law, the
prosecution must prove that the current offenses “commonly benefitted a criminal street
gang, and the common benefit from the offense[s] is more than reputational.” (Assem.
Bill 333, § 3, revised § 186.22, subd. (e)(1).) The prosecution’s evidence at trial focused
on reputational benefit, which was sufficient under the law at the time.
The parties agree, as do we, that the proper remedy is to remand to give the
prosecution an opportunity to retry the gang enhancement allegations under the new
standards. (See People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2 [remand
appropriate to allow prosecution to establish additional element retroactively added by
30 statutory amendment; no violation of the double jeopardy clause or constitutional
restrictions against ex post facto legislation]; People v. Lopez (2021) ___Cal.App.5th___,
2021 Cal.App. LEXIS 1095 [vacating enhancements in light of AB 333 and remanding
for limited retrial].)
III. DISPOSITION
We reverse the judgments as to the prison prior enhancement (former § 667.5)
found true as to Gutierrez, as well as the gang enhancements (§ 186.22, subd. (b)(1))
found true as to both defendants. The matter is remanded for the trial court to (1) strike
Gutierrez’s prison prior enhancement; (2) provide the prosecution an opportunity to retry
the section 186.22 enhancements under the law as amended by Assembly Bill 333; and
(3) if the prosecution elects not to retry the section 186.22 enhancements, or at the
conclusion of retrial, to resentence defendants either by reinstating their previous
sentences (in Gutierrez’s case, as modified by the striking of the prison prior
enhancement), or by imposing new sentences without the section 186.22 enhancements,
as appropriate. In all other respects the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J.
We concur:
MCKINSTER Acting P. J. SLOUGH J.