P. v. Espinoza
Filed 1/31/14 P.
v. Espinoza CA6
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS
ESPINOZA,
Defendant and Appellant.
H038508
(Monterey
County
Super. Ct. No.
SS091887)
Defendant
Carlos Espinoza appeals after a jury
convicted him of first degree murder (Pen. Code, § 187, subd. (a)
attempted premeditated and deliberate murder (§§ 664/187, subd. (a)) and
active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found that defendant committed the
murder and attempted murder for the benefit of a criminal street gang (§
186.22, subd. (b)(5)), and that in committing the murder and attempted murder,
he personally
used and intentionally discharged a firearm and proximately caused great
subds. (b), (c), (d)). The trial court sentenced defendant, who was
17 years old at the time he committed the offenses, to an aggregate prison term
of 85 years to life.
On
appeal, defendant contends: (1) the gang
crime and gang enhancements must be reversed because the gang expert’s opinion was
based in part on testimonial hearsay, in violation of defendant’s Sixth
Amendment right to confrontation; (2) the judgment must be reversed due to jury
misconduct because one juror visited the scene and told the other jurors what
he observed; and (3) remand for resentencing is required because the sentence of
85 years to life constitutes cruel and unusual punishment in light of the fact
he was a juvenile at the time he committed the offense. We agree with defendant’s third claim, and we
will therefore reverse the judgment and remand for resentencing.
Appellate
counsel has filed a petition for writ of
habeas corpus, which this court ordered considered with the appeal. In his writ petition, defendant argues that he
was deprived of the effective assistance of counsel because his attorney failed
to object to the gang expert’s opinion testimony. We have disposed of the habeas petition by
separate order filed this day. (See Cal.
Rules of Court, rule 8.387(b)(2)(B).)
Background
A.
The
Shooting
On
August 6, 2009, Jose Perez was outside of his house on Terrace Street
in Salinas. Perez was wearing a white
t-shirt, shorts, and sneakers. He was
talking to his friend Poncho, who was loaning Perez a bicycle. Perez was planning to ride the bicycle to
football practice. According to his
brother, Perez was not involved with gangs.
Rather, he was “100 percent involved in sports,†particularly football.
While
Perez and Poncho stood outside, two cars turned onto Terrace Street: a gray primered Mitsubishi Galant, and a
grayish-green primered Lexus. The cars
stopped in front of the house. Defendant
got out of the Galant, cocked a gun, and began shooting. Poncho started running. He looked back and saw Perez on the
ground. He ran to a fence, then looked
back again. Defendant shot at him, then
shot Perez while standing over him.
Perez
was later transported to the hospital,
where he was declared deceased. Perez
had multiple gunshot wounds, including some that had been fired at close range.
B. Prior
Incidents Between Poncho and Defendant
Poncho
knew defendant as “Flaco.†He knew
defendant from school. At school,
defendant often engaged in “mugging†(staring at) him, and defendant would
sometimes bump into him. Defendant had
chased Poncho on two prior occasions.
First, about three months before the shooting, defendant was in a car
that tried to run Poncho over. Then,
about one and a half months before the shooting, defendant chased Poncho while
driving.
Poncho
knew that defendant hung out with Sureños and that defendant considered Poncho
to be associated with Norteños. Poncho
denied he was in fact a gang member but admitted he had a close family member
who was in a Norteño gang. Poncho also
admitted he had a tattoo of the word “Salas†on his back and that he previously
had the roman numerals XIV on his hand.
C. Coparticipant
Testimony
Julio
Montoya Luna (Montoya), Juan Nunez, and Antonio Gayoso were coparticipants in
the shooting of Perez. Montoya and
Gayoso were members of the Mexican Pride Locos, a Sureño gang. Nunez and defendant were associated with the
Vagos, a another Sureño gang.
Montoya
and Nunez both entered into agreements with the prosecution, pursuant to which each
pleaded guilty to being an accomplice and a gang member in exchange for
testifying against defendant.
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Montoya
and Nunez both testified about defendant’s tattoos, which included the number
22 and the phrase “ ‘One Way.’ â€
To get a tattoo of the number 22, which represents “V,†the 22nd letter
of the alphabet, a Vagos gang member must do a shooting. “ ‘One Way’ †refers to a street in
the Vagos territory.
Montoya
and Nunez also testified about the Perez shooting. Earlier that day, a Sureño gang member named
“Shaggy†had been shot. Afterwards, Nunez,
defendant and other Sureño gang members had a discussion about how to
respond. Nunez said he “could be the
one†to do a retaliatory shooting; he wanted to “look good.†Six of the Sureño gang members went looking
for Norteños. They “didn’t find anyone,â€
although Nunez and two other Sureño gang members shot at a house where Norteños
lived.
Nunez
and defendant eventually went to the location of Shaggy’s shooting. Gayoso approached Nunez, angry about the
shooting. Defendant indicated that he
had a gun and asked Gayoso “what did he want to do.†Defendant borrowed a sweatshirt and gloves,
then asked Nunez to “go with him to go riding,†meaning to go find “someone to
shoot at.†Nunez called Montoya over and
said, “ ‘The homies are going to go do some riding. Do you want to go?’ †Montoya understood this meant that they were
going to look for rival Norteños.
Montoya drove one car with Nunez as his
passenger. They followed Gayoso, who was
driving another car with defendant as his passenger. At Terrace Street,
defendant got out and fired his gun at Perez and Poncho. According to Montoya, defendant shot Perez
three or four times, then kicked him, then fired the gun three or four more
times. Nunez heard about six shots. He saw defendant shoot at Perez when Perez
was on the ground.
Both
cars drove away from the scene. Defendant
and Nunez subsequently switched cars:
Nunez got into Gayoso’s car, and defendant got into Montoya’s car. Defendant left the sweatshirt he had been
wearing in Gayoso’s car.
When
Montoya and defendant were later arrested and transported to jail, defendant
told him, “ ‘Don’t worry. They have
nothing against us.’ †Defendant
later instructed Montoya to “ ‘just say that it was someone else. That it wasn’t me.’ †Defendant told Montoya to invent a nickname
and say the person had gone to Mexico.
At
the time of the Perez shooting, both defendant and Nunez had no hair. They were about the same size and build.
D. Gang Expert
Salinas Police Officer Robert Zuniga testified
as the prosecution’s gang expert. He
worked in the gang unit’s street enforcement group and had previously worked as
a gang intelligence officer. He
contacted gang members on a daily basis. He had obtained information about gangs from
confidential reliable informants and other gang experts. In preparation for testifying in this case,
he had reviewed documentation such as crime reports and field interview cards.
According
to Officer Zuniga, Perez had no documented gang contacts. Officer Zuniga believed that Poncho and his
brother were both active Norteño gang members, and that Gayoso, Montoya, Nunez,
and defendant were all active Sureño gang members at the time of the Perez
shooting.
Officer
Zuniga explained why he believed defendant was an active Sureño gang
member. First, he referred to
defendant’s tattoos, which included the number 22 and the phrases “ ‘One
Way,’ †“ ‘Most Wanted,’ †and “ ‘Salinas Finest.’ †Second, when defendant was arrested, he was
in the company of other Sureño gang members, including two Sureño gang members
who were hiding in a restroom, where a loaded firearm was found. Third, defendant had made a statement at
juvenile hall to the effect that he was “not ready to leave the gang
lifestyle.†He had previously stated
that he had been associating with Sureño gang members since the age of 13.
Fourth, defendant had been involved in a
number of prior incidents (including a prior incident in which shots were fired
at an elementary school), during which he was associating with Sureño gang
members. Fifth, defendant had been
housed with Sureño gang members in jail.
Officer
Zuniga testified that the primary activities of the Sureño gang are “a variety
of crimes,†including homicides, shootings, carjackings, robberies, and
burglaries.
The
prosecution established that Sureño gang members had engaged in a “pattern of
criminal gang activity†(see § 186.22, subds. (a), (e), (f)) by introducing
court documents showing criminal convictions for enumerated offenses and
eliciting Officer Zuniga’s testimony about each crime. The documents and testimony established the
following.
First, on
January 12,
2009, two Sureño gang members challenged
some Norteño gang members, then “opened fire,†killing one of the Norteño gang
members. The two Sureño gang members
were both convicted of homicide.
Second,
on August 10,
2008, a Sureño gang member entered a
market, where he brandished a BB gun and asked the clerk for “all of the
money.†He was convicted of
robbery.
Third,
on February 25,
2007, two Sureño gang members fired guns at
some Norteño gang members. They were
found with a loaded firearm in their vehicle and were convicted of attempted
murder and malicious shooting from a vehicle.
Fourth,
on February
11, 2007, a Sureño gang member was in a
vehicle with another Sureño gang member; a loaded firearm was found under his
seat. He was convicted of carrying a
loaded firearm in his vehicle.
Fifth,
on May 15,
2006, a Sureño gang member got into an
argument with some Norteño gang members inside of a 7-Eleven, then shot and
killed one of the Norteño gang members.
He was convicted of homicide.
Given
a hypothetical situation based on the facts of this case, Officer Zuniga opined
that the crime was committed for the benefit of and in association with the
Sureño gang, and that it promoted, furthered, and assisted the commission of
criminal conduct by the Sureño gang.
E. Defense
Case
The
defense theory was that Nunez, not defendant, shot Perez. This theory was based primarily on testimony
from Guadelupe Gastelum, an independent eyewitness.
Gastelum
was visiting friends on Terrace
Street at the time of the
Perez shooting. He was standing in the
street, talking to a friend, when he heard and saw a Mitsubishi Galant turn
onto the street. He saw a male exit from
the car and shoot at Perez. Gastelum
estimated that he was about 300 to 320 feet away from the shooter. His location was about three houses down the
street. When the shooter moved closer to
Perez, Gastelum’s vision was blocked by a fence.
According
to Gastelum, the shooter wore a black shirt and blue pants. The shooter was bald and was not wearing a
hat. The shooter’s sweatshirt might have
had a hood, but the hood was not on the shooter’s head.
Later
that evening, Gastelum was brought to an infield show-up, where he viewed Nunez
and Gayoso. He identified Nunez as the
shooter, recognizing him because he was bald, wore a black shirt, and had the
same build and skin color as the shooter. Gastelum identified Gayoso as the driver. The officer accompanying Gastelum to the
show-up opined that Gastelum seemed “very sure†of his identifications.
F. Charges,
Trial, and Sentencing
Defendant
was charged with first degree murder (§ 187, subd. (a); count 1), attempted
premeditated and deliberate murder (§§ 664/187, subd. (a); count 2) and
active participation in a criminal street gang (§ 186.22, subd. (a); count 3). The District Attorney alleged that defendant
committed the murder and attempted murder for the benefit of a criminal street
gang (§ 186.22, subd. (b)(5)), and that he personally used and
intentionally discharged a firearm and proximately caused great bodily injury
or death (§ 12022.53, subds. (b), (c), (d)). The jury convicted defendant of all three
charged offenses and found true all of the special allegations.
For
count 1 (murder), the trial court imposed a term of 25 years to life, with a
consecutive term of 25 years to life for personally and intentionally
discharging a firearm and proximately causing death or great bodily injury (§ 12022.53,
subd. (d)). For count 2 (attempted
murder), the trial court imposed a consecutive term of 15 years to life, with a
consecutive 20-year term for personally and intentionally discharging a firearm
(§ 12022.53, subd. (c)), but it stayed a 10-year term for personally using
a firearm (§ 12022.53, subd. (b)). The trial court stayed count 3 (active
participation in a criminal street gang) pursuant to section 654. Defendant’s aggregate sentence was 85 years
to life.
Discussion
A. Gang Expert
Testimony
Defendant
contends that certain opinion testimony by Officer Zuniga was based on testimonial
hearsay and that its admission violated his Sixth Amendment right to confront
witnesses. (See Crawford v. Washington
testimony was prejudicial as to count 3 (active participation in a criminal
street gang) and the gang enhancements found true as to counts 1 and 2.
Specifically,
defendant refers to three areas of Officer Zuniga’s expert opinion testimony: (1) the testimony establishing a pattern of
criminal gang activity by Sureño gang members; (2) the testimony about the
primary activities of Sureño gang members; and (3) the testimony about
defendant’s statements and membership in the Sureño gang. According to defendant, Officer Zuniga’s testimony
about these topics was based on “police investigations and interviews conducted
by others who did not testify.â€
Defendant contends that such “basis evidence†(see People v. Hill (2011) 191 Cal.App.4th 1104, 1127 (
and should have been excluded. However,
defendant did not present such arguments below.
1. Forfeiture
In
general, a defendant forfeits a confrontation claim by failing to object below.
(See People v. Redd (2010) 48 Cal.4th 691, 730.) Defendant acknowledges that he “did not
object to [Officer] Zuninga’s [sic] testimony on Sixth Amendment or state
hearsay grounds,†but he contends the issue was not forfeited because an
objection would have been futile in light of the case law at the time of trial.
(See People v. Sandoval (2007)
41 Cal.4th 825, 837, fn. 4 [objection not required “if it would have been
futile†in light of binding authority at the time].) Defendant notes that at the time of trial, California courts
had uniformly rejected confrontation clause challenges to “basis evidence†from
a gang expert. (E.g.,
People v. Sisneros (2009) 174 Cal.App.4th 142, 153; People v.
Ramirez (2007) 153 Cal.App.4th 1422, 1427; People v. Thomas (2005) 130 Cal.App.4th 1202, 1209.)
The
Attorney General contends that an objection would not necessarily have been
overruled. Officer Zuniga testified on
April 10 and 11, 2012. The Attorney
General points out that two weeks earlier, the California Supreme Court had granted
review in a case presenting this issue.
(See People v. Archuleta (2011) 202 Cal.App.4th 493, review granted March 28, 2012, S199979, review dismissed May 22, 2013.) The Attorney General further points out that
similar confrontation clause issues were pending in the California Supreme
Court and United States Supreme Court. (See,
e.g., People v. Dungo (2012) 55 Cal.4th 608 (Dungo) [statements in autopsy report describing condition of murder
victim’s body]; Williams v.
Illinois (2012) 567 U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (Williams) [expert’s reliance on DNA laboratory report].)
Defendant
contends that if an objection was required to preserve this issue for appeal,
trial counsel was ineffective for failing to object below.
We
will assume that the confrontation clause argument was not forfeited and address
the merits, as we would likely need to do if we considered the issue under the
prism of defendant’s ineffective assistance claim. (See People v. Osband (1996) 13 Cal.4th
622, 693.)
2. Confrontation
Clause and “Basis Evidenceâ€
“The
Sixth Amendment to the United States Constitution guarantees the accused in
criminal prosecutions the right ‘to be confronted with the witnesses against
him.’ In Crawford v. Washington
(2004) 541 U.S. 36 [(Crawford)]
provision prohibits the admission of out-of-court testimonial statements
offered for their truth, unless the declarant testified at trial or was
unavailable at trial and the defendant had had a prior opportunity for cross-examination.
[Citations.]†(People v. Livingston (2012) 53 Cal.4th
1145, 1158 (Livingston).)
“In
Davis v. Washington[ (2006)] 547 U.S. 813 [(
nontestimonial statements made to the police.
‘Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and
that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.’ [Citations.]â€
(Livingston, supra, 53 Cal.4th at pp. 1158-1159.)
Recently,
the United States Supreme Court considered whether “basis evidence†—that is,
evidence that provides a basis for an expert opinion—is admissible under the
confrontation clause. (Williams, supra, 567 U.S. at p. ___ [132
S.Ct. at p. 2240].) In
bar an expert from expressing an opinion based on facts about a case that have
been made known to the expert but about which the expert is not competent to
testify?†(Id. at p. ___ [132 S.Ct. at p. 2227].) The Williams
court examined whether a laboratory expert could rely on a DNA report from a
prior criminal case in rendering his opinion that the defendant’s DNA profile
matched the prior sample. In a 4-1-4 opinion, the court held that admission of the expert’s testimony did not
violate the confrontation clause.
A plurality of the
admitting the expert testimony over the defendant’s confrontation clause
objection. First, the “basis evidenceâ€
was not offered for its truth: “Out-of-court statements that are related by the expert solely for
the purpose of explaining the assumptions on which that opinion rests are not
offered for their truth and thus fall outside the scope of the Confrontation
Clause.†(Williams, supra, 567 U.S.
at p. ___ [132 S.Ct at p. 2228]
(plur. opn. of Alito, J., joined by Roberts, C. J., Kennedy &
Breyer, JJ.).) However, the other five
justices disagreed with the plurality on this point, finding that the “basis
evidence†was offered for its
truth. (See id. at p. ___ [132 S. Ct. at p. 2257] (conc. opn.
of Thomas, J.) [“statements introduced to explain the basis of an expert’s
opinion are not introduced for a plausible nonhearsay purposeâ€];
(dis. opn. of Kagan, J., joined by Scalia, Ginsburg, and Sotomayor, JJ.)
[expert’s statements about the DNA report “went to its truth, and the State
could not rely on her status as an expert to circumvent the Confrontation
Clause’s requirementsâ€].)
The
Williams plurality also found that
even if the “basis evidence†was offered for its truth, it was not
testimonial. (Williams, supra, 567 U.S. at
p. ___ [132 S.Ct at p. 2228] (plur.
opn. of Alito, J., joined by Roberts, C. J., Kennedy & Breyer, JJ.).) The DNA report was “produced before any
suspect was identified,†it was sought “for the purpose of finding a rapist who
was on the loose†rather than to obtain evidence against the defendant, and it
was “not inherently inculpatory.†(
the plurality on this point, finding that the “basis evidence†was not
testimonial because it “lack[ed] the solemnity of an affidavit or depositionâ€
and, “although the report was produced at the request of law enforcement, it
was not the product of any sort of formalized dialogue resembling custodial
interrogation.†(Id. at p. ___
[132 S.Ct. at p. 2260] (conc. opn. of Thomas, J.).)
The
California Supreme Court has not yet considered whether the confrontation
clause prohibits a gang expert from relying on hearsay to establish whether a
particular gang meets the definition of a criminal street gang and to provide
evidence that a particular crime was committed for the benefit of a gang. However, in People v. Gardeley (1996) 14 Cal.4th 605, 618-619 (
“[c]onsistent with [the] well-settled principles†concerning expert witness
testimony, a detective “could testify as an expert witness and could reveal the
information on which he had relied in forming his expert opinion, including
hearsay.†(Id. at p. 619.)
rely on inadmissible hearsay because such evidence is not offered as “
‘independent proof’ of any fact.†(
Defendant
contends that this aspect of Gardeley is
no longer valid in light of the recent developments in confrontation clause
jurisprudence, including Crawford and
Williams.
In
Hill, supra, 191 Cal.App.4th 1104, Division Five of the First
District Court of Appeal likewise questioned the ongoing validity of
on by a gang expert is not offered for its truth. The Hill court noted that in many cases, an expert’s opinion is
meaningful only if the jury finds its basis true. (Id. at
p. 1131.) The Hill court discussed the possibility that the California Supreme
Court would reconsider Gardeley and
conclude that “basis evidence is offered for its truth.†(Id.
at p. 1132.) However, the
“follow Gardeley and the other California Supreme Court cases in the
same line of authority.†(
had properly allowed a gang expert to relate “basis evidence†because the
out-of-court statements were not admitted for their truth. (Ibid.)
The
Hill court further determined that
even if the basis evidence in that case was offered for its truth, the
confrontation clause would still permit most of the testimony. (Hill,
supra, 191 Cal.App.4th at p. 1135.)
For instance, the confrontation clause did not bar the gang expert from
relying on statements by a deceased gang member who had spoken to the expert
“in an informal, unstructured setting†that was not part of the investigation
into the defendant’s crime. (
The gang expert also could properly testify about statements by gang
members who were in custody, because the interviews were not conducted as “part
of a specific criminal investigation†or for the primary purpose of establishing
“ ‘some past fact for possible use in a criminal trial.’
[Citation.]†(Id. at p. 1136.)
3. Analysis
As
an intermediate court, we are required to follow Gardeley’s holding that the “basis evidence†was not offered as “
‘independent proof’ of any fact.†(
see Auto Equity Sales, Inc. v. Superior Court of Santa Clara County
(1962) 57 Cal.2d 450, 455.)
Moreover,
even if we accept the premise that here, the out-of-court statements were
offered for the truth, it appears that most, if not all, of the “basis
evidence†was “nontestimonial†under any of the definitions in the recent
confrontation clause cases. (See
to give a comprehensive definition of “testimonial†but stating that at a minimum,
it includes prior testimony and police interrogations]; Davis, supra, 547 U.S. at p. 822 [statements are testimonial when “the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecutionâ€]; Dungo, supra, 55 Cal.4th at p. 619 [in addition to the “primary
purpose†requirement, to be testimonial, a statement “must be made with some
degree of formality or solemnityâ€].)
We
first note that Officer Zuniga was never asked to specify the basis of his
knowledge for any specific facts. We are
hesitant to presume, as defendant does, that Officer Zuniga relied on
testimonial statements in rendering his opinions. In the absence of a timely and specific
objection to a particular statement on confrontation grounds, which places the
burden on the government to establish the admissibility of the statement (see Idaho
v. Wright (1990) 497 U.S. 805, 816), reviewing courts should not presume
that an out-of-court statement given to a law enforcement officer under unclear
circumstances, possibly without testimonial purpose, is testimonial. (See Denham v. Superior Court (1970) 2
Cal.3d 557, 564 [error must be affirmatively shown].)
We
further note that according to Officer Zuniga, much of the information he based
his opinions on came from his work as a gang intelligence officer. His testimony was largely based on contacts
with gang members, confidential reliable informants, and other gang experts. Nothing in the record suggests, let alone
establishes, that this information was given in a way that bore any degree of
solemnity or formality (see Williams,
supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2260] (conc. opn. of Thomas, J.);
Dungo, supra, 55 Cal.4th at p. 619)
or was provided through any kind of formal interrogation. (See Davis,
supra, 547 U.S. at p. 822.)
Additionally, nothing in the record indicates that the primary purpose
of Officer Zuniga’s information-gathering was to target defendant or any other
individuals, to investigate a particular crime, or to establish past facts for
a later specific criminal prosecution.
(See ibid.) The fact that Officer Zuniga used the
information in defendant’s case does not mean that he obtained the information
for that primary purpose.
Officer
Zuniga also relied on defendant’s own statements about his membership in the
Sureño gang. His reliance on defendant’s
admissions does not violate the confrontation clause. (See United States v. Moran (9th Cir.
1985) 759 F.2d 777, 786 [“Since the out of court statements introduced through
these documents were made by Moran himself, he can claim no confrontation
clause violation.â€]; United States v. Brown (11th Cir. 2006) 441 F.3d
1330, 1358-1359 [admission of defendant’s own statements does not violate the
confrontation clause].)
Similarly,
to the extent Officer Zuniga relied on the court records showing other Sureño
gang members’ criminal convictions, those court records did not constitute
testimonial evidence as described in Crawford. (See Crawford, supra, 541 U.S. 36, at pp.
51-52, 68.) They were admissible as
official records and hence reliance on them did not give rise to a
confrontation clause violation. (See id.
at p. 56; People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [records
that are “prepared to document acts and events relating to convictions and
imprisonments†are beyond the scope of Crawford].)
Defendant’s
primary argument is that Officer Zuniga improperly relied on statements in police
reports, which were presumably taken during police investigations for the
primary purpose of establishing or proving “past events potentially relevant to
later criminal prosecution.†(
police reports for details about the crimes establishing the requisite “pattern
of criminal gang activity.†(See §
186.22, subds. (a), (e), (f).) However,
because there was no objection below, we cannot determine whether any
particular statement was made in response to police interrogation, as opposed
to being made in an emergency context. (See
Davis, supra, 547 U.S. at p. 822.)
Even
assuming that the police reports included testimonial hearsay, the record does
not establish the extent to which Officer Zuniga’s opinions relied on police
reports. It appears he relied on the police
reports only to provide details about the crimes that were committed by other
Sureño gang members. These details were
unnecessary to prove the gang crime or the gang enhancement, however. For purposes of section 186.22, the predicate
offenses required to establish a “ ‘pattern of criminal gang activity’ â€
need not be “ ‘gang related.’ â€
(Gardeley, supra, 14 Cal.4th
at p. 621.) Rather, the “ ‘pattern’ â€
is established by evidence that members of the gang “individually or collectively
have actually engaged in ‘two or more’ acts of specified criminal conduct
committed either on separate occasions or by two or more persons.†(Id. at p. 623.) Thus, any
error in admitting Officer Zuniga’s testimony about the police reports was
harmless beyond a reasonable doubt. (
18, 24.)
B. Jury
Misconduct
During
the initial jury deliberations, a juror visited the scene of the Perez shooting
and told the other jurors that it would have been difficult to make an identification
from Gastelum’s location. The trial
court held a hearing and determined that the juror had committed misconduct, but
that there was no prejudice. The trial
court replaced the juror with an alternate and instructed the jury to begin
deliberations anew and disregard anything that the juror had said. The trial court denied defendant’s motion for
a mistrial and his later motion for a new trial.
Defendant
contends that the trial court erred by finding that the jury misconduct was not
prejudicial.
1. Proceedings
Below
The
jury began deliberating on the afternoon of Friday, April 13, 2012. The jurors retired to
deliberate at 3:06 p.m. and were excused at 4:45 p.m.
On
Monday, April
16, 2012, the jury resumed deliberations at
9:00 a.m. At 9:15 a.m., the jury sent the trial court a note stating, “[Juror No. 55] went
to the location of [the] shooting on Thurs. evening before the beginning of
deliberations. No one was swayed by his
statement.â€
The
trial court indicated it believed that Juror No. 55 had committed misconduct
and proposed that Juror No. 55 be removed.
Defendant agreed there had been juror misconduct and requested a
mistrial. The prosecutor advocated for a hearing to determine whether the misconduct
was prejudicial.
The
trial court called in Juror No. 55, who admitted he had gone to the scene of
the shooting, out of “curiosity.†He
told the other jurors that he “went over there,†and he said “that it was
difficult to see what was happening when you’re too far from there, from the
street.†Juror No. 55 had gone to the
scene the prior Thursday, and he told the other jurors about his visit the next
day. None of the other jurors said
anything in response to his comment: “They just listened.â€
The
trial court then called in the jury foreperson.
The trial court asked if the other jurors had discussed Juror No. 55’s
comment. The foreperson indicated that
some of the jurors had expressed “shock that he had done it†because of the
trial court’s admonition not to go to the scene.
basically the point he brought up everybody had already decided on that
point. Do I say what that point is or
--†The trial court responded, “I don’t
think you need to.â€
The
trial court asked, “Did the comment made by Juror Number 55 result in a
conversation that would -- that [was] a part of your deliberations?†The foreperson responded, “No. Not really, no.†The foreperson said that the jury had only
discussed whether or not to report the incident to the court.
The
trial court asked the foreperson to describe Juror No. 55’s comment. The foreperson stated, “That he went to the
location. Took a look from the point of
view of Mr. G and said he didn’t think that Mr. G could see that far to be able
to identify a face.†Juror No. 55
continued, “But everybody else had already made that decision, that we agreed
that we did not believe that --†The
trial court interrupted, saying, “I don’t want to invade the province of the
jury at this point.â€
name="_ftnref5" title="">[5]
Defendant
reiterated his request for a mistrial.
The trial court denied the request and decided, instead, to dismiss
Juror No. 55, admonish the remaining jurors, and bring in an alternate
juror. The trial court explained the
basis for its ruling: “The jurors did
deliberate for over an hour on Friday. . . . And it appears to the Court that Juror Number
55 on Friday revealed that he had been to the scene of the event. And he quickly was told by the rest of the
jurors that that was not an okay thing to do. . . . It does not appear that there were any
discussions other than that was not an okay thing to do that were held between
the other jurors regarding the comments that Juror [No.] 55 made.â€
After
dismissing Juror No. 55, the trial court admonished the remaining jurors as
follows: “It is the Court’s
understanding that the -- there may have been a comment by a juror on
information that he received from outside of the trial. So as trial jurors, the important thing for
you to do is only deliberate and only consider the evidence that was received
at trial. Anything that is received
outside of the courtroom or seen or viewed or told to you outside of the
courtroom is not to be considered at trial.
And I will tell you specifically if you heard any comments made by Juror
[No.] 55 regarding anything that he said or any information that he received
either by viewing himself or heard from someone else outside of the trial is
not to be considered by you.†The trial
court told the jurors that anything they heard from Juror No. 55 should be
treated as “evidence that’s stricken during the trial†and “should not be
considered by you for any purpose.â€
The
trial court suspended deliberations until the alternate juror could be brought
in. When the alternate joined the jury,
the trial court instructed the jurors that “the jury deliberation process
begins anew.†The jury reached its
verdicts later that day.
Defendant
subsequently brought a motion for a new trial based on the jury misconduct. The trial court denied the motion on June 21, 2012, finding that there was no prejudice.
2. Analysis
Due
process requires a jury be “ ‘capable and willing to decide the case solely on
the evidence before it . . . .’ [Citations.]â€
(People v. Nesler (1997) 16
Cal.4th 561, 578 (Nesler), italics omitted.) Thus, “[j]uror misconduct, such as the receipt
of information about a party or the case that was not part of the evidence
received at trial, leads to a presumption that the defendant was prejudiced
thereby and may establish juror bias.†(Ibid.;
see also In re Hitchings (1993) 6 Cal.4th 97, 119 (Hitchings).)
“When
juror misconduct involves the receipt of information about a party or the case
from extraneous sources, the verdict will be set aside only if there appears a
substantial likelihood of juror bias. [Citation.] Such bias may appear in either of two ways: (1) if the extraneous material, judged objectively,
is so prejudicial in and of itself that it is inherently and substantially
likely to have influenced a juror; or (2) even if the information is not
‘inherently’ prejudicial, if, from the nature of the misconduct and the
surrounding circumstances, the court determines that it is substantially likely
a juror was ‘actually biased’ against the defendant.†(Nesler, supra, 16 Cal.4th at pp. 578-579.)
The
presumption of prejudice arising from juror misconduct “ ‘may be rebutted by
proof that no prejudice actually resulted.’ [Citations.]†(Hitchings, supra, 6 Cal.4th at
p. 118.) More specifically, the
presumption of prejudice “ ‘ “may be rebutted by an affirmative evidentiary
showing that prejudice does not exist or by a reviewing court’s examination of
the entire record to determine whether there is a reasonable probability of
actual harm to the complaining party [resulting from the misconduct]. . .
.†’ [Citations.]†(Id. at p. 119.) On appeal, whether prejudice arose from juror
misconduct “is a mixed question of law and fact subject to an appellate court’s
independent determination. [Citations].â€
(Nesler, supra, 16 Cal.4th at p.
582.)
In
this case, defendant contends the jury misconduct was “so prejudicial in and of
itself that it is inherently and substantially likely to have influenced a
juror.†(Nesler, supra, 16
Cal.4th at pp. 578-579.) The test for
inherent bias “is analogous to the general standard for harmless error analysis
under California law. Under this standard, a
finding of ‘inherently’ likely bias is required when, but only when, the
extraneous information was so prejudicial in context that its erroneous introduction
in the trial itself would have warranted reversal of the judgment. Application of this ‘inherent prejudice’ test
obviously depends upon a review of the trial record to determine the
prejudicial effect of the extraneous information.†(In re Carpenter (1995) 9 Cal.4th 634,
653 (Carpenter).)
We
disagree that the information conveyed by Juror No. 55 was “so prejudicial in
and of itself that it is inherently and substantially likely to have influenced
a juror.†(Nesler, supra, 16
Cal.4th at pp. 578-579.) Although the
accuracy of Gastelum’s identification was an important issue at trial, Juror
No. 55’s misconduct did not “completely undermine[]†the defense case, as
defendant claims. The evidence had already
established that Gastelum had viewed the scene from a distance of at least 300
feet and that his view was obscured when defendant shot at Perez from close
range.
could have confused defendant and Nunez from such a distance, due to their
similarities in size, build, and hairstyle.
Additionally, pictures of the scene and Gastelum’s location were
introduced into evidence, so the jurors were able to assess the distance for
themselves. (See People v. Sutter (1982) 134 Cal.App.3d 806, 821 [juror’s description
of her visit to the scene could not “possibly have added anything to what the
jurors already knew†because of pictures introduced into evidence].) Thus, although Juror No. 55 committed
misconduct, he did not introduce any evidence into the jurors’ deliberations
that was “so prejudicial in context that its erroneous introduction in the
trial itself would have warranted reversal of the judgment.†(Carpenter, supra, 9 Cal.4th at
p. 653.)
Next,
we consider whether it is “substantially likely a juror was ‘actually biased’
against the defendant.†(Nesler,
supra, 16 Cal.4th at pp. 578-579; see also Carpenter, supra, 9
Cal.4th at p. 654.) Under this
test, “ ‘[t]he presumption of prejudice may be rebutted, inter alia, by a
reviewing court’s determination, upon examining the entire record, that
there is no substantial likelihood that the complaining party suffered actual
harm.’ [Citation.]†(Carpenter, supra, 9 Cal.4th at
p. 654.) “In an extraneous-information
case, the ‘entire record’ logically bearing on a circumstantial finding of
likely bias includes the nature of the juror’s conduct, the circumstances under
which the information was obtained, the instructions the jury received, the
nature of the evidence and issues at trial, and the strength of the evidence
against the defendant.†(
Courts
have often found that the presumption of prejudice arising from juror
misconduct was rebutted because the trial court was apprised of the misconduct
during deliberations and was able to implement “curative measures such as the
replacement of the tainted juror with an alternate or a limiting instruction or
admonition.†(People v. Holloway (1990) 50 Cal.3d 1098, 1111; see also
694, 704 [presumption of prejudice rebutted where trial court replaced the
offending juror and instructed the jury to begin deliberations anew].) For instance, in People v. Knights (1985) 166 Cal.App.3d 46 (Knights), during deliberations, a juror learned that the defendant
had previously killed a four-year-old child, and she told the rest of the jury
what she had heard. The presumption of
prejudice was rebutted, however, because “the misconduct occurred early in the
deliberations†and was quickly brought to the court’s attention by the foreperson.
(Id.
at p. 51.) “The potentially biased juror
was excused and replaced with an alternate juror,†and the remaining jurors “were
instructed to begin deliberations again as if no deliberations had ever
occurred.†(Ibid.)
On
this record, we find that the presumption of prejudice arising from Juror No.
55’s misconduct was rebutted. Considering
the nature of the jury misconduct and the fact that the extraneous material was
not inconsistent with other evidence at trial, there was “ ‘no substantial
likelihood’ †that defendant “ ‘suffered actual harm’ †from the jury
misconduct. (Carpenter, supra, 9
Cal.4th at p. 654.) Further, in
this case, similar to Knights, “the
misconduct occurred early in the deliberations†and was quickly brought to the
court’s attention by the foreperson. (
51.) “The potentially biased juror was
excused and replaced with an alternate juror.â€
(Ibid.) The remaining jurors were instructed not to consider
anything Juror No. 55 said, and they “were instructed to begin deliberations
again as if no deliberations had ever occurred.†(Ibid.) Under the circumstances, it is not “substantially
likely a juror was ‘actually biased’ against the defendant.†(Nesler, supra, 16 Cal.4th at p. 579.)
C. Sentencing
Defendant
contends that his sentence of 85 years to life is “the equivalent of life
without parole,†which constitutes cruel and unusual punishment because he was
a juvenile (age 17) at the time he committed the offense.
Defendant
primarily relies on two recent decisions.
First, he relies on Miller v. Alabama (2012) 567 U.S. ___ [132
S.Ct. 2455] (Miller), where the United States Supreme Court held that the
Eighth Amendment bars imposition of a mandatory sentence of life without the
possibility of parole (LWOP) for a juvenile homicide defendant. Second, he relies on People v. Caballero
(2012) 55 Cal.4th 262 (Caballero), where the California Supreme Court
held—in the context of a juvenile nonhomicide offense—that a sentence of “a
term of years with a parole eligibility date that falls outside the juvenile
offender’s natural life expectancy†is the functional equivalent of a LWOP
sentence. (Id. at p. 268.)
The
Attorney General argues that defendant forfeited his cruel and unusual
punishment claim by failing to object below on that ground. The Attorney General alternatively argues
that this claim can only be brought in a petition for writ of habeas corpus
filed in the trial court. On the merits,
the Attorney General contends that defendant’s sentence was not cruel and
unusual.
1. Proceedings
Below
The
probation report reflected that defendant not only maintained his innocence,
but he claimed to know “ ‘nothing’ †about the offense. It further reflected that defendant’s family
(his mother, father, and two younger siblings) lived in Mexico,
that defendant had completed the 11th grade, that he had used alcohol once, and
that he denied using drugs.
The
probation report also reflected that defendant’s juvenile criminal history
began in May of 2005, when he committed an attempted burglary, vandalism,
theft, and resisting arrest. He violated
probation twice in 2005, once in 2006, twice in 2007, three times in 2008, and
twice in 2009. Some of the probation
violations involved the commission of new offenses. In 2009, defendant absconded from a
placement. Additionally, defendant had
been subject to four disciplinary reports while in jail for the present
offense.
At
the sentencing hearing, defendant requested the trial court impose concurrent
terms for the murder and attempted murder, arguing that they constituted “one
incident.†He also claimed he was
innocent.
The
trial court responded, “[Y]ou murdered a young 15-year old in cold blood.†For count 1 (murder), the trial court imposed
a term of 25 years to life, with a consecutive term of 25 years to life for personally
and intentionally discharging a firearm and proximately causing great bodily
injury or death, pursuant to section 12022.53, subdivision (d). For count 2 (attempted murder), the trial
court imposed a consecutive term of 15 years to life, with a consecutive
20-year term for personally and intentionally discharging a firearm, pursuant
to section 12022.53, subdivision (c).
The
trial court noted that it had found a number of factors in aggravation, which
applied to defendant’s conviction of actively participating in a criminal
street gang (count 3). Although it
stayed the term for that conviction pursuant to section 654, the trial court
noted its findings: (1) the crime
involved great violence, great bodily injury, and a high degree of cruelty,
viciousness, and callousness; (2) the victims were particularly vulnerable;
(3) the crime involved planning; (4) defendant had a continuing
relationship with a criminal street gang; (5) defendant’s violent conduct
indicated he was a serious danger to society; (6) defendant was the
subject of prior sustained juvenile petitions, indicating an escalation in his
criminal conduct; (7) defendant had a significant juvenile criminal history;
(8) prior efforts at rehabilitation had been unsuccessful; and (9) defendant’s
prior performance on probation had been unsuccessful. In deciding to impose consecutive sentences
for the murder and attempted murder, the trial court made findings that (1) the
victims were particularly vulnerable and (2) the incidents were separate, since
defendant had fired numerous shots.
2. Forfeiture
As
noted above, the Attorney General argues that defendant forfeited his cruel and
unusual punishment claim by failing to object below on that ground. Defendant points out that he was sentenced on
June 21, 2012—prior to both the Miller
and Caballero decisions.
United States Supreme Court case on point at the time of sentencing, this issue
was not forfeited by defendant’s failure to raise it below. (See People v. Black (2007) 41 Cal.4th
799, 810
[forfeiture rule does not apply when “the
pertinent law†changes unforeseeably].)
3. Procedure
for Raising Issue
Citing
Caballero, the Attorney General also
argues that defendant’s claim can only be brought in a petition for writ of
habeas corpus filed in the trial court.
As
noted above, in Caballero, the California
Supreme Court held that “sentencing a juvenile offender for a nonhomicide offense
to a term of years with a parole eligibility date that falls outside the
juvenile offender’s natural life expectancy constitutes cruel and unusual
punishment in violation of the Eighth Amendment.†(Caballero,
supra, 55 Cal.4th at p. 268.)
The Caballero court specified
that in future cases, “the sentencing court must consider all mitigating
circumstances attendant in the juvenile’s crime and life, including but not
limited to his or her chronological age at the time of the crime, whether the
juvenile offender was a direct perpetrator or an aider and abettor, and his or
her physical and mental development, so that it can impose a time when the
juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine
whether the juvenile offender must be released from prison ‘based on demonstrated
maturity and rehabilitation.’ [Citation.]â€
(Id. at pp. 268-269.)
The
Caballero court also noted that its
holding would apply to cases in which defendants were already sentenced to LWOP
or “equivalent de facto sentences†for crimes they committed as juveniles. (Caballero,
supra, 55 Cal.4th at p. 269.) In
such cases, defendants “may file petitions for writs of habeas corpus in the
trial court in order to allow the court to weigh the mitigating evidence in
determining the extent of incarceration required before parole hearings.†(Ibid.)
The
Attorney General asserts that under Caballero,
defendant must bring his cruel and unusual punishment challenge in a petition for
writ of habeas corpus, since defendant had already been sentenced to a de facto
LWOP sentence at the time Caballero
was filed. The Attorney General also
cites to California Rules of Court, rule 8.385(c)(2), which provides: “A Court of Appeal should deny without
prejudice a petition for writ of habeas corpus that challenges the denial of
parole or the petitioner’s suitability for parole if the issue was not first
adjudicated by the trial court that rendered the underlying judgment.â€
Defendant
contends that his claim is properly brought in this direct appeal, because
only to cases that were final at the time that decision was issued.
We
agree with defendant that Caballero
does not foreclose him from raising this issue in the present appeal. Because defendant’s case is still pending on
direct appeal, the judgment is not yet final.
Further, rule 8.385(c)(2) is irrelevant, since defendant has not filed a
petition for writ of habeas corpus on this issue in this court, nor has he
challenged the denial of parole or his suitability for parole. Thus, we will proceed to consider the merits
of defendant’s claim.
4. Applicable
Law
In
Miller, the United States Supreme
Court held that “mandatory life without parole for those under the age of 18 at
the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishments.’ †(
at p. 2460].) The court explained that
its prior cases “establish that children are constitutionally different from
adults for purposes of sentencing.†(
see Roper v. Simmons (2005) 543 U.S.
551 [invalidating death penalty for juvenile offenders] and
[LWOP sentences for non-homicide juvenile offenders violate the Eighth
Amendment].) Specifically, “juveniles
have diminished culpability and greater prospects for reform,†making them
“ ‘less deserving of the most severe punishments.’ †(Ibid.)
The
Miller court summarized its holding
as follows: “Mandatory life without
parole for a juvenile precludes consideration of his [or her] chronological age
and its hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences. It
prevents taking into account the family and home environment that surrounds him
[or her]—and from which he [or she] cannot usually extricate himself [or
herself]—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide
offense, including the extent of his [or her] participation in the conduct and
the way familial and peer pressures may have affected him [or her]. Indeed, it ignores that he [or she] might have
been charged and convicted of a lesser offense if not for incompetencies
associated with youth—for example, his [or her] inability to deal with police
officers or prosecutors (including on a plea agreement) or his [or her]
incapacity to assist his [or her] own attorneys. [Citations.] And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the circumstances most
suggest it.†(Miller, supra, 567
U.S. ___ [132 S.Ct. at p. 2468].)
The
Miller court declined to hold “that
the Eighth Amendment requires a categorical bar on life without parole for
juveniles, or at least for those 14 and younger.†(Miller, supra, 567 U.S. ___ [132
S.Ct. at p. 2469].) However, the court
specified it believed that LWOP sentences for juveniles would be “uncommon†and
limited to “ ‘the rare juvenile offender whose crime reflects irreparable
corruption.’ [Citations.]†(
sentence is imposed on a juvenile in a homicide case, the sentencing court must
“take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.†(Id.
at p. ___ [132 S.Ct. at p. 2469].)
At
least two recently published California appellate opinions have addressed the interplay of
applies when a juvenile has been sentenced to “a term of years with a parole
eligibility date that falls outside the juvenile offender’s natural life
expectancy.†(Caballero, supra,
55 Cal.4th at p. 268.)
In
People v. Argeta (2012) 210
Cal.App.4th 1478, one of the defendants was a 15-year-old juvenile at the time
he and an adult codefendant committed the crimes. (Id.
at p. 1480.) The juvenile was
convicted of murder and five counts of attempted murder, all as an aider and
abettor. (Ibid.) He was sentenced to
100 years in prison, i.e., “the functional equivalent†of an LWOP
sentence. (Id. at p. 1482.) Division
Four of the Second District Court of Appeal concluded that the matter should be
remanded for resentencing “[b]ased on these circumstances†and in light of
In
People v. Thomas (2012) 211
Cal.App.4th 987, one of the defendants was a 15-year-old juvenile at the time
of the offenses. (Id. at p. 1015.) The
juvenile was convicted of two counts of murder, three counts of attempted
premeditated and deliberate murder, and two counts of shooting at an occupied
motor vehicle. (Id. at pp. 990-991.) The
jury found true special circumstances, firearm use allegations, great bodily
injury allegations, and gang enhancements.
(Ibid.) The juvenile was sentenced to an aggregate
prison term of 196 years to life. (
prior to the Caballero and
indicated its belief that it could not impose an actual LWOP sentence “
‘because of his age.’ †(
the matter for resentencing, noting that the juvenile’s sentence was the
functional equivalent of an LWOP sentence and that under Miller, such a sentence could in fact be imposed on “ ‘ “the
rare juvenile offender whose crime reflects irreparable corruption.†’ [Citation.]â€
(Ibid.)
5. Application
to this Case
Here,
defendant was sentenced to an indeterminate term of 85 years to life for an
offense he committed when he was 17 years old.
He earned 1050 days (nearly three years) of presentence custody credit,
but he is barred from accruing any conduct credits while in prison. (See §§ 190, subd. (d), 2933.2, subd.
(a).) Defendant was 20 years old at the
time of sentencing. Since under current
law he will not be eligible for parole until more than 82 years from the date
of sentencing—i.e., until he is over 102 years old, beyond a normal life
expectancy—his sentence was the equivalent of an LWOP sentence. (See § 3046, subd. (b).)
At
the sentencing hearing in this case, the trial court did not have the guidance
of the Miller or Caballero decisions. In
imposing sentence, the trial court did not consider all of the factors listed
in those cases, including defendant’s “chronological age and its hallmark
features—among them, immaturity, impetuosity, and failure to appreciate risks
and consequences,†his “family and home environment,†and “the way familial and
peer pressures may have affected him.†(Miller,
supra, 132 S.Ct. at p. 2468.) Although
the trial court did consider the factors in aggravation and the factors in
mitigation listed in California Rules of Court, rules 4.421 and 4.423, nothing
in the record indicates the trial court took into account “how children are
different†or that it considered whether defendant was “ ‘the rare juvenile
offender whose crime reflects irreparable corruption.’ [Citations.]†(Miller, supra, 132 S.Ct. at p. 2469.) Thus, we believe that remand for resentencing
is required.
| Description | Defendant Carlos Espinoza appeals after a jury convicted him of first degree murder (Pen. Code, § 187, subd. (a)[1]), attempted premeditated and deliberate murder (§§ 664/187, subd. (a)) and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found that defendant committed the murder and attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)), and that in committing the murder and attempted murder, he personally used and intentionally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subds. (b), (c), (d)). The trial court sentenced defendant, who was 17 years old at the time he committed the offenses, to an aggregate prison term of 85 years to life. On appeal, defendant contends: (1) the gang crime and gang enhancements must be reversed because the gang expert’s opinion was based in part on testimonial hearsay, in violation of defendant’s Sixth Amendment right to confrontation; (2) the judgment must be reversed due to jury misconduct because one juror visited the scene and told the other jurors what he observed; and (3) remand for resentencing is required because the sentence of 85 years to life constitutes cruel and unusual punishment in light of the fact he was a juvenile at the time he committed the offense. We agree with defendant’s third claim, and we will therefore reverse the judgment and remand for resentencing. Appellate counsel has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In his writ petition, defendant argues that he was deprived of the effective assistance of counsel because his attorney failed to object to the gang expert’s opinion testimony. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).) |
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