Filed 11/27/24 P. v. Bonilla CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082922
v. (Super.Ct.No. RIF1803069)
ABRAHAM DAVID BONILLA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samah Shouka, Judge.
Reversed with directions.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Eric Tran,
Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury found defendant and appellant Abraham David Bonilla guilty of murder
(Pen. Code, § 187, subd. (a))1, attempted murder (Pen. Code, §§ 664, 187, subd. (a)),
being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), possessing
methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd.
(a)), and exhibiting a firearm during a fight (Pen. Code, § 417, subd. (a)(2)).2
The jury found true the enhancement allegations that during the murder and
attempted murder defendant personally discharged a firearm causing death or great
bodily injury. (§ 12022.53, subd. (d).) Defendant admitted suffering a prior conviction
that qualified as a strike conviction (§ 1170.12, subd. (c)(1)) and a serious felony
(§ 667, subd. (a)). The trial court sentenced defendant to prison for a determinate term
of 17 years, four months, and an indeterminate term of 80 years to life.3
Defendant raises three issues on appeal. First, defendant contends the trial court
violated his constitutional right to present a complete defense by sustaining the People’s
objection to hearsay evidence that defendant sought to have admitted under the excited
1 All subsequent statutory references will be to the Penal Code unless otherwise indicated.
2 The amended information and jury verdict incorrectly cite section 417, subdivision (a)(1), which prohibits “exhibit[ing] any deadly weapon whatsoever, other than a firearm.” (Italics added.) Because defendant exhibited a firearm, we conclude the correct citation is to section 417, subdivision (a)(2), which prohibits “exhibit[ing] any firearm . . . in any fight.”
3 When calculating the total sentence, the trial court incorrectly stated it was “97 years and eight months in state prison,” wrongly adding an additional four months to the determinate term. The determinate abstract of judgment has the correct total.
2 utterance exception. Second, defendant asserts the trial court erred by not advising him
of his rights and the sentencing consequences prior to defendant admitting his prior
convictions. Third, defendant contends there is insufficient evidence that his prior
conviction qualifies as a strike. We affirm in part and reverse in part with directions.
FACTS
On June 30, 2018, defendant attended a baby shower held at an Elks Lodge.
Defendant walked into the bar area of the Lodge. Defendant argued with an
unidentified man in the bar. The two men were “very close in each other’s faces. They
were screaming at each other, grabbing at their waistband[s]. [¶] ‘Are you packing,
fool?’ [¶] ‘Yeah, I’m fucking packing. Are you fucking packing?’ [¶] . . . [J]ust going
back and forth talking about their guns.” The bartender ejected both men from the bar
at approximately 7:02 p.m.
Defendant went to the Lodge’s parking lot. Defendant removed a firearm from
his waistband or pocket and moved the slide of the gun to chamber a round. Defendant
checked that a round was chambered in the gun and placed the gun in his pocket.
At 7:04 p.m. defendant reentered the Lodge. Defendant sat at a table in the area
where the baby shower was taking place. Thomas Vargas (Vargas) approached
defendant, and either placed defendant in a chokehold or gave him a one-armed hug
from behind. Defendant stood up, faced Vargas, and the two began pushing and
shoving one another. At 7:06 p.m., defendant fired his gun five times. Defendant’s
gunshots killed his aunt and injured Vargas.
3 DISCUSSION
A. HEARSAY EVIDENCE
1. PROCEDURAL HISTORY
Defendant’s sister (Sister) testified at his trial. Sister was at the baby shower.
Sister’s friend, Melissa Garcia (Garcia), was also at the shower. “[I]n the moments after
the gunshots” Garcia was crying, flushed, and appeared scared. While in that condition,
Garcia spoke to Sister.
Defense counsel asked what Garcia said to Sister. The People objected and a
sidebar was held; the sidebar discussion was not reported. The trial court declared a
recess and addressed the issue on the record, outside the presence of the jury.
Defense counsel offered that Sister would testify Garcia told Sister that “she saw
[Vargas] with a gun, and she saw [Vargas] choking [defendant].” Defendant’s trial
counsel sought to introduce Garcia’s statement to Sister via the excited utterance
exception to the hearsay rule. The People asserted there was a lack of foundation as to
whether Garcia’s statements were spontaneous because it was unclear “how this
conversation came up” and “how long after” the shooting the conversation occurred.
The trial court excluded Garcia’s statement to Sister explaining the court was “not sure
[the statement was] made before there was an opportunity to fabricate and while
reflective powers remain[ed] in abeyance.”
4 2. ANALYSIS
a. Admissibility
Defendant contends the trial court erred by excluding Garcia’s hearsay statement
to Sister.
We apply the abuse of discretion standard of review. (People v. Saracoglu
(2007) 152 Cal.App.4th 1584, 1588.) A spontaneous statement describes an “event
perceived by the declarant,” and the statement must be “made spontaneously while the
declarant was under the stress of excitement caused by such perception.” (Evid. Code,
§ 1240, subds. (a)&(b).)
“ ‘A number of factors may inform the court’s inquiry as to whether the
statement in question was made while the declarant was still under the stress and
excitement of the startling event and before there was “time to contrive and
misrepresent.” [Citation.] Such factors include the passage of time between the
startling event and the statement, whether the declarant blurted out the statement or
made it in response to questioning, the declarant’s emotional state and physical
condition at the time of making the statement, and whether the content of the statement
suggested an opportunity for reflection and fabrication. [Citations.] [Our high] court
has observed, however, that these factors “may be important, but solely as an indicator
of the mental state of the declarant.” [Citation.] For this reason, no one factor or
combination of factors is dispositive.’ ” (People v. Sanchez (2019) 7 Cal.5th 14, 40.)
5 Missing from the defense’s foundation is the context for what prompted Garcia’s
statement to Sister. For example, we do not know if Garcia blurted the statement,
unprompted, to Sister, or if Sister asked Garcia a series of questions prior to Garcia
commenting about seeing Vargas with a gun. (People v. Morrison (2004) 34 Cal.4th
698, 718-719 [“responses to detailed questioning are likely to lack spontaneity”].) The
timing of Garcia’s statement is also unclear, in that “the moments after the shooting”
could have been five minutes after the shooting or one hour after the shooting.
Additionally, it is unclear how upset Garcia was. For example, it is unclear if Garcia
was near the people who were shot, such that she was nearly shot, or if she was
“ ‘merely an uninjured witness.’ ” (People v. Mataele (2022) 13 Cal.5th 372, 411 [“We
also have cautioned against finding a spontaneous statement when the declarant was
‘merely an uninjured witness whose excitement might wane’ ”].)
The trial court could reasonably conclude that there was insufficient foundation
to find Garcia’s statement was spontaneous. Specifically, the defense needed to provide
more foundation concerning (1) the conversation, if any, between Sister and Garcia;
(2) approximately how much time passed between the shooting and Garcia’s statement;
and (3) Garcia’s level of distress. Those factors would aid in determining Garcia’s state
of mind.
Defendant asserts the foundation was sufficient because it established that Garcia
was emotional when she spoke to Sister in the moments after the shooting. Defendant is
mistaken. The “ ‘ “crucial element” ’ ” in the spontaneous statement exception is “ ‘
“the mental state of the speaker.” ’ ” (People v. Pirwani (2004) 119 Cal.App.4th 770,
6 789.) The missing foundation pieces described ante are meant to aid in establishing
Garcia’s mental state. For instance, if five minutes after the shooting, Garcia was
sobbing and ran up to Sister and blurted out that Vargas had a gun, that would aid in
finding the statement was spontaneous because Garcia’s mental state was one of abject
fear. We are missing the details that would inform us of Garcia’s mental state. The
only information we have is that Garcia made the statement, while emotional, after the
shooting occurred. With that limited foundation we conclude the trial court did not
abuse its discretion by excluding Garcia’s statement.
b. Right to Present a Complete Defense
Defendant contends that, by excluding Garcia’s statement, the trial court violated
his constitutional right to present a complete defense.
“ ‘Few rights are more fundamental than that of an accused to present witnesses
in his own defense. [Citations.] [But i]n the exercise of this right, the accused, as is
required of the State, must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.’ [Citation.] Thus, ‘[a] defendant does not have a constitutional right to the
admission of unreliable hearsay statements.’ ” (People v. Ayala (2000) 23 Cal.4th 225,
269.) The trial court’s exclusion of hearsay that lacked an adequate foundation did not
violate defendant’s right to present a defense.
Moreover, defendant’s trial counsel subpoenaed Garcia, but did not request a
bench warrant when she failed to appear. Defense counsel explained that he did not
pursue Garcia because “[s]he’s just been uncooperative.” Given that defendant did not
7 pursue Garcia as a witness, we cannot fault the trial court for Garcia’s statement not
being presented at trial.
Further, there was evidence presented to the jury that Vargas pointed a gun at
defendant. Garcia’s sister, Elisa Cabrera (Cabrera), attended the baby shower. Cabrera
testified that Vargas was holding a gun when he approached defendant, and he pointed
the gun at defendant. The trial court also instructed the jury on imperfect self-defense.
(See generally (People v. Schuller (2023) 15 Cal.5th 237, 243 [explaining imperfect
self-defense].)
In sum, defendant was not denied an opportunity to present a complete defense
because (1) the trial court properly excluded the hearsay evidence; (2) defendant did not
pursue Garcia as a witness; and (3) defendant presented imperfect self-defense evidence
to the jury.
B. ADVISEMENT OF RIGHTS
1. PROCEDURAL HISTORY
a. Information
In an information filed on December 30, 2019, the People alleged defendant
suffered the following prior strike conviction: On “4/26/2001 in the Superior Court of
the State of California, for the County of Riverside, convicted of the crime of POSSESS
FIREARM WITHIN 10 YEARS OF MISDEMEANOR AN DCRIME (sic) FOR
BENEFIT OF A GANG . . . in violation of section 1202.5(b)(3) of the Penal Code and
section 186.22(b) of the Penal Code, within the meaning of Penal Code section 667,
subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).” The People further
8 alleged that the forgoing constituted a prior serious felony conviction. (§ 667, subd.
(a).)
Contrary to the information, in 2001, section 1202.5, subdivision (b), addressed
the collection of fines—it did not set forth a substantive offense. We suspect the People
intended to cite section 12021, subdivision (c), which, in 2001, prohibited possession of
a firearm within 10 years of certain misdemeanor convictions.
In an amended information, the People did not include the prior firearm
conviction that was alleged in the original information, ante. Instead, the People alleged
defendant suffered the following prior conviction: On “April 26, 2001 in the Superior
Court of the State of California, for the County of RIVERSIDE, [defendant was]
convicted of the crime of CRIMINAL STREET GANG ACTIVITY, a serious and
violent felony, in violation of section 186.22(a) of the Penal Code.” The People alleged
the prior gang conviction qualified as a strike.
In the amended information, the People also alleged a prior serious felony
conviction. (§ 667, subd. (a).) Specifically, the People alleged that on April 26, 2001, a
gang enhancement allegation was found true against defendant. (§ 186.22, subd.
(b)(1).) The People did not allege to what substantive offense the gang allegation was
attached.
b. Admission
The trial on the prior offense allegations was bifurcated from the substantive
charges relating to the murder at the baby shower, and defendant waived a jury for the
prior conviction allegations. When the bench trial on the priors was called, defendant’s
9 trial counsel announced that defendant was “prepared to admit the prior.” The
following exchange occurred:
“The Court: Okay. All right. Let me see here. [¶] [Defendant], is it true that
back on April 26th, 2001, you were convicted of the crime of—the violation of Penal
Code Section 186.22(a), which is active participation in a criminal street gang?
“The Defendant: Yes, your Honor.[4]
“The Court: All right.
“[Prosecutor]: Your Honor, I’m looking at the abstract of judgment.
“The Court: Yes.
“[Prosecutor]: I believe it was—Count 1 was a PC—I’m sorry, it was Count 2—
“The Court: Can I see the abstract of judgment?
“[Prosecutor]: May I approach?
“The Court: Yes. [¶] Thank you. I’m going off the Information. [¶] Oh,
possession of a firearm with a gang allegation?
“[Prosecutor]: Yes.
“The Court: Okay. [¶] [Defendant], is it true then back on June—I have here
June 1st of 2001, in front of Judge Paul Zellerbach, in this county, were you convicted
of a violation of Penal Code section 12021, subdivision (c), possession of a firearm?
“The Defendant: Yes, your Honor.
4 Per defendant’s probation report, he has not suffered a conviction under section 186.22, subdivision (a).
10 “The Court: And did you also admit the allegation that you were an active
participant in a criminal street gang at the time that you committed Count 2, possession
of a firearm?
“The Defendant: Yes.
“The Court: All right. The Court accepts the admission. I’ll give this back to
you.
“[Prosecutor]: Thank you.
“The Court: [Defendant], your decision to waive your right to have a jury trial
decide whether or not—a jury decide whether or not to determine if you have suffered a
strike conviction, is that a decision you reached of your own free will?
“The Defendant: Yes.
“The Court: All right. So then I’m going to refer the matter out for a report from
probation for a sentencing recommendation.”
c. Sentencing
At sentencing, the following exchange took place:
The Court: “Did you allege a nickel prior? I see it addressed here on the
probation report, but I didn’t see it on the Information.
“[Prosecutor]: I did not see it on the Information either. That’s why I did not
request it.
“The Court: Okay. Then I won’t address that at all.”
Later at the sentencing hearing, the following exchange occurred:
11 Prosecutor: “Looking at the Information, it actually—the nickel prior is alleged
on there. I’ll submit on it. It is on there.
“The Court: Okay. All right. I’ll just go ahead and impose it, but stay it—or
strike it. I’ll strike the nickel prior.”
2. ANALYSIS
Defendant contends the trial court erred by failing to advise him of (1) his right
to confront witnesses, (2) his right against self-incrimination, and (3) the consequences
of his admission. The People assert defendant, by failing to object, forfeited the portion
of his contention concerning the consequences of his admission. Our high court has
“held that because ‘advisement as to the consequences of a plea is not constitutionally
mandated,’ ‘the error is waived absent a timely objection.’ ” (People v. Villalobos
(2012) 54 Cal.4th 177, 182.) Defendant did not object in the trial court thereby
forfeiting the portion of the contention pertaining to the consequences of the admission.
Therefore, we will focus our analysis on the piece of defendant’s contention concerning
the failure to advise him of his constitutional rights.
“When a criminal defendant enters a guilty plea, the trial court is required to
ensure that the plea is knowing and voluntary. [Citation.] As a prophylactic measure,
the court must inform the defendant of three constitutional rights—the privilege against
compulsory self-incrimination, the right to trial by jury, and the right to confront one’s
accusers—and solicit a personal waiver of each.” (People v. Cross (2015) 61 Cal.4th
164, 170.) “[T]he same requirements of advisement and waiver apply when a defendant
admits the truth of a prior conviction allegation that subjects him to increased
12 punishment.” (Ibid.) The trial court did not advise defendant of his rights prior to
defendant admitting the prior conviction allegation. Accordingly, the trial court erred.
The trial court’s “error is not reversible per se. Instead, the test for reversal is
whether ‘the record affirmatively shows that [the admission] is voluntary and intelligent
under the totality of the circumstances.’ ” (People v. Cross, supra, 61 Cal.4th at p.
171.) “[I]t is well established that, while there is no single ‘ “best” recidivist trial
procedure,’ due process requires ‘adequate notice’ and ‘an opportunity to challenge the
accuracy and validity of the alleged prior convictions.’ [Citations.] When a defendant
forgoes this basic protection, his or her decision must be ‘knowingly and intelligently
made.’ ” (Id. at p. 173.)
The amended information alleged a prior conviction of being an active
participant in a criminal street gang (§ 186.22, subd. (a)) and a gang enhancement
(§ 186.22, subd. (b)(1)(B). The trial court asked defendant if he admitted to suffering
prior convictions for (1) being an active participant in a criminal street gang (§ 186.22,
subd. (a)); (2) possessing a firearm (§ 12021, subd. (c)); and (3) being an “active
participant in a criminal street gang at the time that” he possessed the firearm—a hybrid
of section 186.22, subdivisions (a) and (b)(1).
When the People handed the abstract of judgment to the trial judge, there was an
implicit motion by the People to amend the amended information with the prior
conviction for possession of a firearm (§ 12021, subd. (c)). Defendant was not
arraigned on a second amended information. Defendant was not advised of his
constitutional rights prior to admitting the prior conviction allegations. Given the
13 procedural confusion and complete lack of notice of the orally amended allegations, we
cannot conclude that, under the totality of the circumstances, defendant’s admission was
knowing and voluntary.
The People assert that defendant was aware of his rights to have a jury trial,
confront witnesses, and remain silent because (1) defendant had just been through a trial
on the substantive charges pertaining to the murder at the baby shower, and
(2) defendant has a history of being a defendant in criminal cases. (See People v. Lloyd
(2015) 236 Cal.App.4th 49, 59-60 [similar issue].) The trial on the prior conviction
allegations was bifurcated. Due to that bifurcation, defendant could have reasonably
believed his trial rights ended when the jury was dismissed. Defendant may not have
understood that his rights continued through the bifurcated proceeding. This is
particularly true given that the prosecutor and judge added allegations without a formal
amendment and arraignment. If defendant did have familiarity with criminal procedure
and an understanding of his rights, he may have questioned what he knew given the
improper procedures. Accordingly, we are not persuaded that the jury trial on the
substantive offenses and defendant’s criminal history affirmatively demonstrate
defendant was aware of both his rights and the allegations in the orally amended
information at the time he admitted the prior convictions.
14 We will vacate defendant’s admissions to the prior conviction allegations and
order an arraignment and a retrial or rehearing on the prior conviction allegations.
Consequently, we will also reverse defendant’s sentence. (See People v. Sifuentes
(2011) 195 Cal.App.4th 1410, 1422 [similar disposition], disapproved on other grounds
in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6].)
C. QUALIFYING STRIKE CONVICTION
1. BACKGROUND
In 2001, defendant was convicted of possessing a firearm within 10 years of a
misdemeanor conviction (§ 12021, subd. (c)(1)), along with a gang enhancement (§ 186,
subd. (b)(1)). The crime of possessing a firearm within 10 years of a misdemeanor
conviction is a wobbler. (§ 12021, subd. (c)(1) [“shall be punishable by imprisonment
in a county jail not exceeding one year or in the state prison”]; see generally Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 902, fn. 9 [defining a wobbler].) Defendant’s
probation report reflects that, in 2001, he was sentenced to two years in state prison,
thus making his firearm conviction a felony. A felony conviction qualifies as a strike
when the felony was committed to benefit a criminal street gang. (§ 1192.7, subd.
(c)(28); People v. Briceno (2004) 34 Cal.4th 451, 456.) Thus, the gang enhancement
caused defendant’s firearm conviction to be a strike.
2. ANALYSIS
Defendant contends the statutory definition of a “criminal street gang” has
narrowed since 2001 (Assem. Bill No. 333 (2021-2022 Reg. Sess.) § 3). Defendant
15 asserts there is insufficient evidence that his prior firearm conviction and gang
enhancement qualify as a strike under the current law.
The issue of whether the narrowed statutory definition for a “criminal street
gang” applies to prior conviction allegations is currently pending before the Supreme
Court in People v. Fletcher, review granted September 27, 2023, S281282. The
Fletcher case was from this court. In Fletcher, this court held that the narrowed
statutory definition does not apply to prior convictions. (People v. Fletcher (2023) 92
Cal.App.5th 1374, 1378-1379.)
In another case presenting the same issue, this court explained that the change to
the gang enhancement statute was prospective only, and the defendant’s prior
conviction was “long since final [and] [w]hen it became final, it was a strike.” (People
v. Scott (2023) 91 Cal.App.5th 1176, 1184, review granted September 27, 2023,
S280776.) This court concluded that the change to the statutory definition “cannot
change the status of [the] defendant’s final [prior] conviction as a strike.” (Ibid.)
We follow our precedent in Fletcher and Scott. We conclude that the People
were not required to prove that defendant’s 2001 conviction would qualify as a strike
under the current law. It is sufficient that it was a strike in 2001.
DISPOSITION
Defendant’s convictions on the substantive offenses are affirmed. Defendant’s
admissions to the prior conviction allegations are vacated. The trial court is directed to
arraign defendant on the amended prior conviction allegations and conduct a retrial or
rehearing of the prior conviction allegations. Defendant’s sentence is reversed. The
16 trial court is directed to resentence defendant following the retrial or rehearing on the
prior conviction allegations.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
FIELDS J.