Filed 10/30/26 P. v. Vasquez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H053023
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 23CR007357)
v.
MANUEL VASQUEZ,
Defendant and Appellant.
Jane Doe 11 alleged that defendant Manuel Vasquez—husband of her stepfather’s
sister—molested her when she was in fifth or sixth grade until she was 14 years old.
Among other allegations of abuse, Doe 1 stated that Vasquez twice raped her “on the
Easter before COVID.”2 A jury convicted Vasquez of eight counts of forcible sexual
offenses against Doe 1.
1
A pseudonym was used for the victim at trial. We refer to the victim by this
pseudonym to protect her privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4).)
2
The prosecution initially alleged that Vasquez assaulted Doe 1 in 2019, but later
amended the information to extend the relevant time frame through April 2021. At trial,
the prosecution alleged that the rapes occurred at Easter 2021 (i.e., April 4, 2021). The
defense alleged that because of Doe’s reference to COVID, the relevant timeframe was
Easter 2019 (i.e., April 21, 2019).
In September 2021, Doe 1 reported that she had been molested by a different
family member, Vasquez’s father-in-law, also described by Doe 1 as her “grandfather.”3
Around this time, Doe 1’s family became alienated from Vasquez’s family. Doe 1
reported Vasquez’s abuse in May 2023, about 18 months after she reported that she was
molested by Vasquez’s father-in-law.
Vasquez raises five issues on appeal: (1) the trial court erred by precluding the
defense from questioning witnesses about Doe 1’s failure to mention Vasquez’s sexual
assaults when she made her September 2021 allegation of sexual abuse against Vasquez’s
father-in-law; (2) the trial court erroneously precluded the defense from cross-examining
prosecution witnesses as to the reasons for a family alienation that the defense asserted
could reveal the bias of Doe 1 and other witnesses against Vasquez; (3) the trial court
erroneously permitted Vasquez to be impeached with his 2009 conviction for active
participation in a criminal street gang; (4) the cumulative prejudice of the first three
issues deprived him of his rights to due process and a fair trial; and (5) remand is required
because the record does not demonstrate his gang-related strike conviction is valid under
amended Penal Code section 186.22.4
For the reasons explained below, we conclude Vasquez has not demonstrated
prejudicial error as to the first four issues. However, we will vacate the true finding as to
Vasquez’s prior strike conviction, vacate the sentence, and remand the matter for further
proceedings.
3
Doe 1’s allegations concerned her stepfather’s father, who is Vasquez’s father-
in-law. At trial, the parties and Doe 1 referred to the subject of these allegations as Doe
1’s “grandfather.” Because of the familial relationships discussed here, we refer to him
as Vasquez’s father-in-law.
4
Unspecified statutory references are to the Penal Code.
2
I. FACTUAL AND PROCEDURAL BACKGROUND5
Vasquez was married to the sister of Doe 1’s stepfather. Vasquez was about 20
years older than Doe 1. Doe 1 was about the same age as Vasquez’s daughter, and the
two girls were close friends. The girls would sleep over at each family’s residence.
However, in September 2021, Doe 1’s family had a “falling out” with Vasquez’s family.
In 2023, Doe 1 alleged in a series of law enforcement interviews that Vasquez had
repeatedly sexually molested her starting when she was in fifth or sixth grade. Among
other allegations, she reported that Vasquez twice raped her, once on the “Easter before
COVID” and a second time the following morning. She alleged that in the two
Eastertime incidents Vasquez brought her to his bedroom during a sleepover, placed a
sock in her mouth to keep her from screaming, and tied her hands before raping her. She
also alleged that Vasquez threatened her in various ways, which kept her from reporting
Vasquez’s actions sooner. In one such threat Vasquez indicated he would have his
former gang associates find Doe 1.
The prosecution charged Vasquez by amended information with eight counts of
forcible sexual misconduct against Doe 1: two counts of forcible rape (§ 261,
subd. (a)(2); counts 1-2); and six counts of forcible lewd acts upon a child (§ 288,
subd. (b)(1); counts 3-8). The two rape counts included allegations that Vasquez tied or
bound the victim (§ 667.61, subd. (e)(5)). The amended information alleged Vasquez
had suffered a prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) by
having been convicted in 2009 of active participation in a criminal street gang (§ 186.22,
subd. (a)). The information also alleged four aggravating circumstances (Cal. Rules of
Court, rule 4.421(a)(1), (3), (8) & (11)).
At trial, Doe 1 testified as to various acts of sexual abuse Vasquez committed
against her, including the two alleged rapes that took place at Easter. The prosecution’s
5
We provide an overview of the facts to provide context. We further describe the
record evidence relevant to each challenge in our analysis, post.
3
theory was that the rapes occurred in 2021, despite Doe 1’s report that they occurred on
the “Easter before COVID.” Doe 1’s mother testified that one Easter when Doe 1 slept
over at Vasquez’s residence, she received a call from Doe 1 in which Doe 1 sounded
upset and asked her to come pick her up. Doe 1’s stepfather testified regarding relations
between the two families, including the rift that occurred in 2021. An expert in the
psychological aspects of child sexual abuse testified about common myths and
misconceptions involving child sexual abuse victims.
A former neighbor and family friend of Vasquez identified as Jane Doe 2 testified
pursuant to Evidence Code section 11086 that Vasquez repeatedly sexually molested her
more than 20 years earlier. Doe 2 testified that Vasquez commenced molesting her when
she was between seven and nine years old and Vasquez was about seven years older than
she was. Doe 2 also testified that she observed Vasquez molest his two younger
nephews.
Vasquez testified on his own behalf, denying the allegations by Doe 1 and Doe 2.
The defense called three law enforcement officials who testified that in various
interviews, Doe 1 did not disclose some of the instances of sexual abuse to which she
later testified. Five witnesses opined that Vasquez had a good character for honesty,
truthfulness, and sexual morality. Vasquez’s two children testified that they did not
observe events related to the alleged Easter rapes.
Vasquez’s wife testified for the defense to contradict aspects of Doe 1’s testimony.
Doe 1 had reported that Vasquez’s wife said she was going to the gym and was not home
when Vasquez raped Doe 1 on Easter night. Doe 1 also stated that Vasquez’s wife was
not home during the alleged rape the next morning, as she went to pick up breakfast
6
Evidence Code section 1108 provides an exception to Evidence Code
section 1101’s general prohibition against using evidence of a person’s character to prove
the person’s conduct on a specified occasion. This exception “permits evidence that a
defendant accused of a sexual offense has committed another sexual offense, potentially
showing a propensity to do so.” (People v. Baker (2021) 10 Cal.5th 1044, 1089.)
4
items. To rebut these statements, Vasquez’s wife produced records from her gym
indicating that the business was not open on Easter Sunday 2019 and testified that the
records did not include a timestamp for her on that date. She also testified that the
following day she was working, and she produced her timecard to demonstrate that she
was at work at the time of the assault. She further testified that Vasquez had left for his
job in Oakland the morning after Easter before 5:00 a.m., and her children would not
have been left alone at the house. To rebut the prosecution’s theory that the assaults
occurred on Easter 2021, Vasquez’s wife testified concerning Google location records
she produced from her phone to show her whereabouts on those days.
Vasquez’s two nephews testified that the abuse Doe 2 stated she observed did not
occur. A psychologist testified that child sexual abuse accommodation syndrome
evidence “was not intended as a diagnostic or forensic instrument to be used as a way to
determine whether a child had been abused at all.” Finally, a defense investigator
testified that when the investigator attempted to contact a potential witness, Doe 1’s
mother called and told her to stop harassing prosecution witnesses. The investigator also
testified regarding an exhibit describing the Google records Vasquez’s wife produced.
In the prosecution’s rebuttal, an investigator testified that he found “unusual”
elements in the defense’s Google location records. He indicated that some information
was missing, and he described how the data in the records could be manipulated.
The jury convicted Vasquez of all eight counts and found the tying or binding
allegations true. The trial court found the prior strike allegation and three of the four
alleged aggravating circumstances true. The trial court sentenced Vasquez to a total term
5
of 40 years followed by 60 years to life, which included doubled terms on each count due
to the prior strike conviction.
This appeal timely followed.
II. DISCUSSION
A. Evidence of Jane Doe 1’s September 2021 Forensic Interview
Vasquez denied the allegations of sexual assault, and defense counsel attacked
Doe 1’s credibility in multiple ways. On objection from the prosecution, the trial court
excluded certain evidence Vasquez sought to admit in this effort.
On appeal, Vasquez first argues the trial court erred by precluding the defense
from eliciting evidence that Doe 1 did not accuse Vasquez of sexual assault in a forensic
interview in which she made allegations that Vasquez’s father-in-law molested her,
although Vasquez’s acts occurred during the same general time frame as those of his
father-in-law. He contends that Doe 1’s failure to report that she was assaulted by
Vasquez during her report regarding his father-in-law was relevant because “a reasonable
jury could conclude from [Doe 1’s] failure to mention appellant at all during an interview
about sexual abuse allegedly occurring during the same time as the charged offenses, that
she was untruthful about the allegations against appellant.” The Attorney General
responds that the trial court properly excluded questioning on this subject because Doe
1’s failure to reference Vasquez in her interview about a different family member was not
relevant, and any asserted error was harmless. We conclude that even if the trial court
abused its discretion in precluding the defense from questioning witnesses about this
matter, any error was harmless.
1. Factual background
Doe 1 first disclosed her allegations against Vasquez in April 2023. In pretrial
motions, Vasquez asserted that in September 2021, Doe 1 participated in a forensic
interview in which she alleged that Vasquez’s father-in-law molested her from January
6
2018 to April 2021, which was the same time frame she later alleged Vasquez molested
her. The defense alleged that as a result of Doe 1’s accusations, Vasquez’s father-in-law
pleaded guilty and was sentenced to 32 years in prison.7
The defense asserted that during the interview regarding Vasquez’s father-in-law,
Doe 1 never stated that Vasquez molested her. The defense motion argued: “This
evidence is relevant to the credibility of Jane Doe in that the jury should be allowed to
know that while giving a full and unlimited statement to law enforcement about her being
a victim of child molestation by one individual she did not once mention that that
individual’s son-in-law, Mr. Vasquez, was also molesting her during the same time
frame.” The defense requested introduction of a transcript of the interview or testimony
of the sheriff’s sergeant and social worker who conducted the interview to demonstrate
that Doe 1 did not mention Vasquez in this interview, but the defense also offered to
stipulate to the fact of the omission. The prosecution opposed the motion, arguing that
the evidence was not relevant and constituted hearsay, and that the defense had not
complied with Evidence Code section 782.8
The trial court denied the defense motion. The court stated that Doe 1’s failure to
mention Vasquez at an interview involving her allegations against a different family
7
Although the record does not contain a record of conviction or other
documentation that Vasquez’s father-in-law was convicted and sentenced to prison, the
trial court and counsel discussed this as an undisputed fact during the in limine motions
and during discussions regarding the admissibility of evidence that we address later in
this opinion.
8
Evidence Code section 782 “provides for a strict procedure that includes a
hearing outside of the presence of the jury prior to the admission of evidence of the
complaining witness’s sexual conduct.” (People v. Bautista (2008) 163 Cal.App.4th 762,
782.) “Evidence Code section 782 is designed to protect victims of molestation from
‘embarrassing personal disclosures’ unless the defense is able to show in advance that the
victim’s sexual conduct is relevant to the victim’s credibility.” (Ibid.) “Evidence Code
section 782 requires a defendant seeking to introduce evidence of the witness’s prior
sexual conduct to file a written motion accompanied by an affidavit containing an offer of
proof concerning the relevance of the proffered evidence to attack the credibility of the
victim.” (People v. Mestas (2013) 217 Cal.App.4th 1509, 1514.)
7
member was not relevant unless the interviewer asked Doe 1 if someone else molested
her and she said no. The trial court then stated that even if the evidence were relevant, it
constituted inadmissible hearsay and the defense had not complied with the requirements
of Evidence Code section 782. Finally, the trial court concluded that under Evidence
Code section 352, any relevance this evidence had was substantially outweighed by the
danger of confusion, the danger of undue prejudice, and the undue consumption of time
this issue would require.
The defense then moved for reconsideration, asserting that the court’s ruling
“illegally restricts the scope of cross examination in order to test the credibility of the
accuser in this matter.” The defense’s motion argued that the trial court’s Evidence Code
section 352 ruling was erroneous because “[t]o deny the jury the opportunity to hear this
evidence allows the witness to testify under a false aura of veracity to which no accuser is
entitled.” The trial court denied the motion for reconsideration. The trial court stated
that when “somebody doesn’t volunteer something about what they’re not asked,” to use
this as “evidence of something happening is just too far of a stretch of the imagination.”
The court then found that even if evidence of the 2021 interview were relevant, such
evidence would constitute inadmissible hearsay and would also warrant exclusion under
Evidence Code section 352.9
At trial, the defense renewed its motion toward the end of the prosecution’s case-
in-chief. The defense asserted that it should be permitted to introduce video clips of the
September 2021 interview, in which the defense contended Doe 1 exhibited a demeanor
different from that when she testified at trial. The trial court again denied the defense’s
9
The defense’s motion for reconsideration also asserted that Evidence Code
section 782 did not apply to testimony about Doe 1’s statements in the September 2021
interview. However, the defense separately filed a submission in an attempt to comply
with Evidence Code section 782. The trial court did not mention Evidence Code
section 782 in denying the defense’s reconsideration motion, and this issue is not before
us.
8
motion, finding the proffered evidence was not relevant and was properly excluded under
Evidence Code section 352.
2. Legal principles and standard of review
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Id.,
§ 351.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Id., § 210.) “ ‘The test of relevance is whether the evidence tends “logically, naturally,
and by reasonable inference” to establish material facts such as identity, intent, or
motive.’ [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 337 (Harris).) “In
determining the credibility of a witness, the jury may consider any matter that has a
tendency in reason to prove or disprove the truthfulness of his testimony at the
hearing . . . .” (Ibid.) “Unless precluded by statute, any evidence is admissible to attack
the credibility of a witness if it has a tendency in reason to disprove the truthfulness of
the witness’s testimony.” (People v. Hawthorne (2009) 46 Cal.4th 67, 99, overruled on
another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-643.)
Under Evidence Code section 352, “[t]he court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” However,
“ ‘Evidence Code section 352 must bow to the due process right of a defendant to a fair
trial and his right to present all relevant evidence of significant probative value to his
defense.’ [Citation.]” (People v. Stewart (2020) 55 Cal.App.5th 755, 785.)
We review a trial court’s rulings concerning relevance and the application of
Evidence Code section 352 for abuse of discretion. (People v. Gonzalez (2021)
12 Cal.5th 367, 407-408 (Gonzalez).) A trial court’s decision to exclude evidence
9
“ ‘ “will not be disturbed unless there is a showing that the trial court acted in an
arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.” ’
[Citation.]” (People v. Nieves (2021) 11 Cal.5th 404, 445.)
“Evidentiary rulings are generally subject to harmless error review under the
standard in People v. Watson (1956) 46 Cal.2d. 818, 836 . . . , which requires us to
determine ‘if a reasonable probability exists that the jury would have reached a different
result’ ” in the absence of the error. (People v. Partida (2017) 18 Cal.App.5th 51, 76.)
However, erroneous evidentiary rulings that completely exclude evidence of an accused’s
defense are reviewed for harmless error under the standard articulated in Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman), which asks whether it is clear beyond a
reasonable doubt that the error did not affect the jury’s verdict. (People v. Fudge (1994)
7 Cal.4th 1075, 1102-1103; People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4
(Bacon).)
3. Analysis
We conclude that the trial court did not abuse its discretion here. We disagree
with the trial court’s ruling that the evidence of Doe 1’s omission of Vasquez’s sexual
abuse when she reported that his father-in-law molested her was not relevant. This
information had “a tendency in reason to prove or disprove the truthfulness of [Doe 1’s]
testimony at the hearing . . . .” (Harris, supra, 37 Cal.4th at p. 337.) The vicious nature
of the sexual assault perpetrated by Vasquez, which included bondage of a teen girl, and
the familial relationship between Vasquez and his father-in-law, could cause a jury to
question why she did not report these serious offenses to law enforcement and the social
worker when she had the opportunity. Her omission thus raised the question of whether
the subsequent accusations against Vasquez were fabricated, or whether the omission
could be fairly explained by the prosecution.
However, we agree that the trial court did not abuse its discretion by concluding
that the evidence, if somewhat probative, would have been substantially more prejudicial
10
than probative under Evidence Code section 352 if admitted. Inevitably, the jury would
have focused its attention on the status and outcome of the allegations against Vasquez’s
father-in-law. If this evidence were admitted, presumably the prosecution could then
introduce evidence related to Vasquez’s father-in-law’s conviction to rebut any inference
that Doe 1 fabricated her September 2021 allegations. As the trial court stated, admitting
evidence of Doe 1’s allegations against Vasquez’s father-in-law would lead to “a trial
within a trial of an entire[ly] different child molest.” This would be the case even if the
parties agreed to stipulate that Doe 1 did not mention Vasquez’s acts in her September
2021 forensic interview. In addition, while evidence that Doe 1 failed to report
Vasquez’s abuse in her September 2021 forensic interview could bear somewhat on her
credibility, it did not constitute evidence of a false statement by Doe 1, and thus its
probative value was limited. (See People v. Miranda (2011) 199 Cal.App.4th 1403, 1424
[“Prior rape complaints do not reflect on credibility unless proven to be false”].) The trial
court did not abuse its discretion in finding that the danger of confusion of the issues and
undue consumption of time substantially outweighed the probative value of this evidence.
(See People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457-1458 [no error in excluding
evidence of victim’s prior rape complaints where there was no conclusive evidence the
prior complaints were false, and admitting the evidence would have resulted in an undue
consumption of time as the parties attempted to bolster their views as to the truthfulness
or falsity of the prior complaints].)
Even if the evidence were improperly excluded, we determine that any error was
harmless. Vasquez argues that the trial court’s ruling amounted to a violation of his
constitutional right to effective cross-examination, because “a reasonable jury might have
received a significantly different impression of [Doe 1’s] credibility if the proposed line
11
of cross-examination had been permitted.”10 Vasquez does not convincingly argue that
the trial court’s ruling “amount[ed] to a complete preclusion of a defense” because the
defense was still permitted to present evidence and argument that Doe 1 did not timely
disclose the abuse by Vasquez. (Bacon, supra, 50 Cal.4th at p. 1104, fn. 4.) Thus,
Vasquez appears “ ‘to inflate garden-variety evidentiary questions into constitutional
ones.’ [Citation.]” (Ibid.) However, even assuming the trial court’s ruling violated
Vasquez’s constitutional rights—either his right to present a defense or his right to
effective cross-examination—Vasquez was not prejudiced under the Chapman beyond a
reasonable doubt standard.
The defense conducted vigorous cross-examination and introduced substantial
evidence to demonstrate that many of Doe 1’s prior statements were inconsistent with her
trial testimony. For example, on cross-examination, Doe 1 admitted that at one interview
she told investigators about the two rapes that occurred at Easter, and not the remaining
alleged acts of molestation forming the basis of other charges against Vasquez. The
defense also called three law enforcement officials to testify that Doe 1 did not report
significant aspects of the alleged sexual abuse in her various police interviews. In
closing, the defense argued that numerous discrepancies and omissions in Doe 1’s earlier
statements to law enforcement demonstrated her testimony was not credible. The jury
rejected the defense argument by finding the charges true.
Vasquez argues that evidence Doe 1 failed to mention him in her September 2021
interview was likely to impact the jury because her allegations against his father-in-law
covered the same time span as Vasquez’s acts of molestation. But as the trial court noted,
investigators did not ask Doe 1 at the September 2021 interview if anyone else had
10
The parties dispute whether Vasquez’s claim properly encompasses only the
federal constitutional right to cross-examination or both state and federal constitutional
guarantees. However, the parties agree that the state and federal constitutional guarantees
applicable to the instant situation mirror each other.
12
molested her, and thus the omission of any mention of Vasquez’s assaults by this young
teen was easily explained. The testimony of the prosecution’s expert on the
psychological aspects of child sexual abuse also addressed the failure of children alleging
sexual abuse to timely report, or to report fully, the events they experience. Nor are we
persuaded that the jury’s conclusion as to Doe 1’s credibility would have changed based
on this single omission, given the number of discrepancies between Doe 1’s police
interviews and her trial testimony that defense counsel raised to the jury.
Vasquez argues that allowing the defense to raise Doe 1’s omission would have
shed greater light on the asserted discrepancy as to whether the alleged rapes against Doe
1 took place in 2019 (the “Easter before COVID”) or in 2021. But the defense
thoroughly explored this issue at trial. The defense questioned both Doe 1 and law
enforcement officials about Doe 1’s statement that the rapes occurred on the Easter
before COVID and not, as alleged by the prosecutor, in 2021. Vasquez does not show
how Doe 1’s failure to mention Vasquez during her interview about Vasquez’s father-in-
law provides evidence that the alleged conduct by Vasquez took place in 2019 as opposed
to 2021. In any event, the defense’s case attempted to demonstrate the asserted rapes
could not have occurred either in 2019 or 2021, and the jury rejected the defense
argument.
Finally, we observe that the prosecution case included the testimony of Doe 2 that
Vasquez had molested her, and other members of his own family, years before he
assaulted Doe 1. This corroborative evidence strongly supported Doe 1’s assertion that
she had been molested and raped by Vasquez, tending to prove that Vasquez similarly
victimized others, and that his molests of Doe 1 were not unprecedented. Vasquez does
not challenge the trial court’s admission of this evidence under Evidence Code
section 1108. Considering the totality of the evidence, we conclude that even assuming
the trial court erred and violated Vasquez’s constitutional right to cross-examine Doe 1
13
on the omission of any mention of Vasquez at the interview regarding his father-in-law, it
is clear beyond a reasonable doubt that any such error did not affect the jury’s verdict.11
B. Questioning Prosecution Witnesses as to Reason for Family Alienation
Vasquez next argues that the trial court erred by prohibiting the defense from
cross-examining prosecution witnesses regarding the effect of Doe 1’s allegations of
molest against Vasquez’s father-in-law. Although the record does not include any
official documentation, it appears based on the statements of counsel and the trial court
that as a result of Doe 1’s reports, Vasquez’s father-in-law was convicted of one or more
sex offenses. This created a rift between Doe 1’s family and Vasquez’s family. Vasquez
asserts that evidence of his father-in-law’s conviction and the family division could
demonstrate that prosecution witnesses, including Doe 1 and her family, had a bias,
interest, or other motive that caused them to fabricate the allegations that Vasquez
assaulted Doe 1. The Attorney General contends that the trial court properly prohibited
such questioning under Evidence Code sections 350 through 352, and alternatively
Vasquez was not prejudiced by any error. We agree with the Attorney General.
1. Factual background
Doe 1’s mother testified in the prosecution’s case-in-chief, generally outlining the
family structure and recounting the call she received one Easter in which Doe 1 sounded
upset and asked her mother to come get her. The prosecutor asked Doe 1’s mother: “At
some point did your family stop spending so much time together?” She replied that at
first, the family did not interact much during the pandemic, and she then testified that “in
September of 2021 there was just a fallout where we just -- everybody stopped talking.”
11
The trial court also found the proffered evidence constituted inadmissible
hearsay, and the court stated that testimony on this point would be independently
inadmissible on this basis. On appeal, Vasquez does not argue that testimony or evidence
on this issue is not hearsay or that an exception to the hearsay rule applies. As we
conclude there was no prejudicial error in excluding the evidence, we do not address the
hearsay issue.
14
Doe 1’s mother then began to testify that the fallout involved Vasquez’s wife, at which
point the trial court had counsel approach the bench.
After the sidebar discussion, the prosecutor asked Doe 1’s mother whether “in
September of 2021 an issue came up between your family and your husband’s father,” to
which Doe 1’s mother replied affirmatively. In response to further questions, Doe 1’s
mother stated that this issue caused her to stop speaking to her mother-in-law and to
Vasquez and Vasquez’s wife, but that there was no quarrel between her family and
Vasquez, including between Doe 1 and Vasquez.
On cross-examination, defense counsel asked Doe 1’s mother: “So there was an
incident in 2021 that you say resulted in . . . your family no longer having any contact
with Mr. Vasquez’s family; correct?” Doe 1’s mother agreed. Defense counsel then
asked more questions about the family rift, and Doe 1’s mother replied that the issue
involved Vasquez’s wife breaking off contact with Doe 1’s side of the family and
aligning herself with her father. After further exploring this issue, defense counsel asked
whether in a previous statement she told law enforcement that Vasquez’s wife’s father
“was sentenced last year in June.” The prosecutor objected, citing motions in limine.
In a session outside the jury’s presence, the trial court stated that it had twice
earlier ruled that Vasquez’s father-in-law’s issues “may not be brought up in front of the
jury,” and it admonished defense counsel for “still [bringing] up the father-in-law’s
conviction in front of the jury without bringing it to my attention . . . .” Defense counsel
did not dispute that the trial court had so ruled.12 Instead, defense counsel argued that
this line of questioning was relevant “to show the timing of when she says this falling out
occurred is incorrect.” The trial court reaffirmed its earlier ruling, stating: “Neither side
12
On appeal, the parties do not cite to the ruling the trial court made in this regard.
Our review of the record disclosed no such specific ruling regarding Vasquez’s father-in-
law having been convicted. Regardless, the parties at trial and on appeal have not
disputed that the trial court ruled as it stated it did.
15
at this time may bring up the father-in-law’s conviction, the father-in-law’s sentence, the
father-in-law’s charges. I still have not heard any relevance based upon that.” The court
said defense counsel “could have gotten around that any other way,” stating: “It is such a
peripheral issue as to when they stopped talking. The minimal relevance is so small and
yet the prejudice is so great, which we’ve already talked about.”
Defense counsel continued to press the issue, arguing that the timing of the family
rift was relevant and the issue of Vasquez’s father-in-law’s legal proceedings “goes to the
issue of [Doe 1’s mother] influencing her daughter to bring these allegations against
Mr. Vasquez.” The trial court again reaffirmed its earlier ruling, stating that the line of
questioning was not relevant, and even assuming it had “minimum relevance,” “the
prejudice of bringing up the father-in-law’s incident still clearly outweighs the . . . the
arguments of relevance and under [Evidence Code section] 352 I will continue to exclude
it and you may not go into it.”
Vasquez’s counsel then urged the trial court to allow it to explore “how Mr.
Vasquez himself and his family reacted toward Jane Doe 1 when she disclosed to them
what the grandfather had done to her.” Defense counsel argued that this subject was
“relevant to show that the family does not have an antipathy toward Jane Doe 1 per se,
shown by the fact that they all rallied behind her and supported her when she accused
[Vasquez’s father-in-law] of molesting her.” The trial court rejected this argument,
stating: “Whether his family loves her, hates her, despises her, goes out with her on
birthdays and buys her birthday presents, none of that’s relevant to the issues today.”
Later that same day of trial, Doe 1’s stepfather testified for the prosecution that the
two sides of the family stopped speaking to each other in 2021. Doe 1’s stepfather did
not testify as to the reason the two sides stopped talking, but he did agree that it “had
nothing to do with” Vasquez, and instead involved Vasquez’ father-in-law. Doe 1 also
testified that she stopped talking to Vasquez’s daughter frequently “later in the year of
2021” due to “the falling out between [their] families.
16
As discussed in the first issue above, before Vasquez testified, defense counsel
renewed its motion to admit evidence that Doe 1 did not mention Vasquez in the
September 2021 interview in which she reported the molestation by Vasquez’s father-in-
law. In the same discussion, defense counsel sought to admit evidence of Doe 1’s
molestation by Vasquez’s father-in-law, arguing that the trial court could take judicial
notice of the criminal conviction and the jury could “give whatever weight they believe
that has in terms of possibly explaining her behavior.” Vasquez’s counsel argued this
evidence could be relevant to show that Doe 1’s mother was upset at Vasquez’s wife for
“cover[ing] up” for Vasquez’s father-in-law. Defense counsel argued that if this
evidence were not admitted, the jury would view Doe 1 sympathetically and would not
have evidence that would “allow them to scrutinize the testimony of” Doe 1. The trial
court denied defense counsel’s request, stating Vasquez’s father-in-law’s actions
involved “an unrelated offense.”
Vasquez testified that the relationship between his daughter and Doe 1 was close,
but the relationship changed when the girls were in high school. Defense counsel asked
Vasquez if he knew “what happened in the closeness of their relationship,” and the trial
court sustained an objection, citing its previous rulings. After a sidebar, defense counsel
rephrased the question, asking if “at some point your daughter and your niece were no
longer best friends . . . .” Vasquez replied affirmatively.
On cross-examination, Vasquez agreed that his side of the family and Doe 1’s side
of the family “were close for a number of years.” He testified that he and Doe 1 got
along well, and there “was never any falling out” between him and Doe 1. He agreed
when the prosecutor asked him to confirm that “to this day there hasn’t been any
arguments between your family and Jane Doe 1’s family that involved you,” stating that
any issues between the two sides of the family concerned Vasquez’s father-in-law.
Vasquez testified that “there was never actually any arguments at all” between the two
sides of the family in that “[t]hey stopped talking to us,” and he agreed that the situation
17
was “never any big thing.” He testified that by 2023, when Doe 1 reported her
allegations concerning Vasquez, it had been almost two years since he had seen her, and
“[n]othing bad had happened” between them.
2. Legal principles and standard of review
The law concerning relevance and Evidence Code section 352 is as stated in the
first issue above. We review the trial court’s exclusion of evidence under these
provisions for abuse of discretion. (Gonzalez, supra, 12 Cal.5th at pp. 407-408.)
3. Analysis
We decide the trial court did not abuse its discretion by declining to permit
defense counsel to elicit testimony concerning the reason for the rift in September 2021
between Vasquez’s family and Doe 1’s family—specifically, Doe 1’s report to the
authorities that Vasquez’s father-in-law had molested her and his resulting conviction.
The trial court could reasonably conclude that this evidence had no tendency to prove or
disprove any disputed fact of consequence in Vasquez’s case.
Vasquez argues this evidence was relevant because it “was probative to whether
[Doe 1], her mother, or father had a bias, interest, or other motive to lie about the
allegations made against” him. The defense theory would have required the jury to
conclude that because Doe 1 accused Vasquez’s father-in-law of molesting her, her
family members pressured her to accuse Vasquez of committing similar acts. This
assertion is speculative at best.
Additionally, the defense was permitted to raise that the rift occurred, and we are
not persuaded that the reason for the rift is any more probative than the fact of the rift.
As Vasquez acknowledges, “the jury was permitted to know that a split between the
family developed, [and] that it pertained to [Doe 1’s] grandfather and had nothing to do
with appellant . . . .” Witnesses, including Vasquez, testified that that a rift in the family
occurred in September 2021. The defense was free to use this evidence to argue that
18
prosecution witnesses were biased against Vasquez or that Doe 1’s family had a motive
to pressure her into making her allegations.
Vasquez argues that as a result of the trial court’s ruling, he “was precluded from
cross-examining [Doe 1] whether her testimony was influenced by other family
members.” Not so. Vasquez points to nothing in the trial court’s ruling that would have
prohibited the defense from asking Doe 1’s family members whether the fact of—as
opposed to the reason for—the family rift caused them to be biased against Vasquez, or
whether any such bias led Doe 1’s family members to influence Doe 1’s testimony.
The defense also contended that it sought to elicit information about the reason for
the rift to demonstrate when the rift occurred. However, the timing of the family rift was
well established. The defense elicited testimony from four witnesses—including Doe
1—that a family rift occurred in 2021, before Doe 1 reported Vasquez’s abuse in 2023.
Even if this line of questioning would have produced some marginally relevant
evidence, the trial court did not abuse its discretion in exercising its discretion to exclude
the evidence under Evidence Code section 352. The trial court reasonably concluded that
any probative value such evidence had would have been substantially outweighed by the
risks of undue consumption of time and confusion of the issues. If the defense were
allowed to elicit testimony that Doe 1 had accused Vasquez’s father-in-law of
molestation, the prosecution might then be entitled to introduce evidence that he was
convicted of offenses resulting from Doe 1’s allegations to rebut any inference that Doe
1’s prior allegations were not credible. As the trial court recognized, this would have led
jurors to focus on a different set of allegations that were not related to the charged
offenses before them.
Because the trial court did not abuse its discretion in its application of the rules of
evidence, the court did not violate Vasquez’s constitutional rights to cross-examination or
to present a defense. (See Bacon, supra, 50 Cal.4th at p. 1104, fn. 4.) But even assuming
error of a constitutional dimension, we conclude beyond a reasonable doubt that Vasquez
19
was not prejudiced. Vasquez provides no reason to believe any testimony as to the
reason for the rift would demonstrate acrimony sufficient to infer that Doe 1 was pushed
to fabricate allegations against Vasquez. Both Doe 1’s mother and stepfather testified
generally about the rift, and both testified that the reasons had nothing to do with
Vasquez. Doe 1 testified that she “had a lot going on,” so the decreased contact with
Vasquez’s daughter due to the rift “didn’t really [faze] me.” Vasquez did not dispute
these characterizations of the family rift, testifying that there “was never any falling out”
between him and Doe 1, any arguments between the two sides of the family did not
involve him, and the situation was “never any big thing.”
Finally, as we discussed previously, the case against Vasquez was supported by
the testimony of Doe 2 that Vasquez had molested her for years in the past. As she was
not directly related to Doe 1, it was not possible to argue that her testimony was the
product of any acrimony resulting from the accusations against Vasquez’s father-in-law.
Although Vasquez denied that he molested Doe 2, he did not and does not assert that she
had any bias or motive related to the divisions between Doe 1’s side of the family and his
own. We therefore conclude beyond a reasonable doubt that if the trial court erred in
excluding this evidence, any error was harmless.
C. Vasquez’s 2009 Gang Participation Conviction
Vasquez next argues that the trial court erred by permitting him to be impeached
with his 2009 conviction for active participation in a criminal street gang. He argues that
this evidence was substantially more prejudicial than probative. The Attorney General
disputes the factual premise of Vasquez’s argument, asserting that the trial court ruled
that Vasquez could not be impeached with evidence of his gang participation conviction
and that defense counsel made a tactical decision to elicit this information because
evidence of Vasquez’s past gang involvement might otherwise be admissible. In reply,
Vasquez contends that defense counsel’s decision to raise Vasquez’s gang conviction to
20
the jury was based on a misunderstanding of the trial court’s ruling, demonstrating
ineffective assistance of counsel.
We decide that the trial court did not rule that Vasquez could be impeached with
evidence of his 2009 conviction for active participation in a criminal street gang, and thus
no error occurred. We further conclude that defense counsel’s decision to elicit
information about this conviction did not constitute ineffective assistance of counsel.
1. Factual background
At the preliminary hearing, a witness testified that when Doe 1 reported her
allegations of Vasquez’s abuse, she stated that she had not reported his actions sooner
because Vasquez had threatened her in various ways, including stating that “his gang
would get her.” The amended information alleged Vasquez sustained a prior strike
conviction for having been convicted in 2009 of active participation in a criminal street
gang. Before trial, defense counsel submitted a proposed juror questionnaire that noted
Vasquez had sustained this conviction.
The trial court addressed the defense’s proposed juror questionnaire. The trial
court stated it was “very concerned” about the questionnaire’s reference to Vasquez’s
prior gang conviction. The court stated it would grant bifurcation concerning the prior
strike allegation but if Vasquez were to testify, “I’m not ruling whether he’d be
impeached with that or not, at this time . . . .” The trial court also noted defense counsel
had advised “he does anticipate his client will be impeached with that prior conviction
and, therefore, wants to address that issue in front of the jury.” The trial court stated that
no motion to prohibit impeachment with the gang participation conviction had been
brought, and it stated that once it received such a motion and ruled on it, defense counsel
could decide whether to notify the jury about the gang conviction. Defense counsel
agreed “[t]hat would be helpful.”
The prosecution then moved in limine to admit Vasquez’s gang participation
conviction as a crime of moral turpitude along with a prior conviction for felon in
21
possession of a firearm as impeachment should Vasquez testify. The defense moved to
bifurcate trial on the prior strike allegation, and to preclude the prosecution from
impeaching Vasquez with his gang participation conviction. The trial court granted the
defense motion to bifurcate trial on the prior strike allegation. The trial court then took
up the issue of whether Vasquez could be impeached with his prior convictions. The
court stated: “I believe the Court indicated previously that the Court was going to
exclude the prior conviction under [section] 186.22(a), but admit the other conviction.”
The prosecutor agreed with this statement, but she noted the court had previously stated
that evidence of Vasquez’s gang involvement would be admissible if Doe 1 testified that
she was afraid of Vasquez because of his gang-related threat. The court agreed, stating:
“Yes. That may be relevant for a different issue. But that will not unbifurcate the prior.”
The trial court stated: “At this point in time, even if the defendant testifies, I don’t see
unbifurcating that prior unless the defendant somehow opens up the door.”
Defense counsel then asked the trial court: “So the Court’s ruling today is that the
[section] 186.22 conviction is not inadmissible for impeachment purposes?” The court
responded: “Should your client testify; correct.” Defense counsel replied: “Okay.” The
trial court continued: “And that, I believe, is based upon [Evidence Code section] 352
grounds if I remember my prior ruling some months ago. [¶] All right. And, absent the
defense opening the door in some fashion, which I can’t imagine at this point, I don’t see
how that would come into the jury. And it would be bifurcated.”
Later, when discussing the defense’s motion to exclude impeachment on
Vasquez’s gang conviction, the court again ruled: “So that conviction is excluded should
the defendant testify for impeachment purposes.” In response to a question from defense
counsel, the trial court confirmed that the prosecution could still attempt to prove the
prior strike allegation in bifurcated proceedings, but that Vasquez “cannot be impeached
with that absent opening the door on his own.” Defense counsel responded: “Okay.
22
Very well.” The trial court stated that “separately, we have to have the trial on whether
he suffered that prior conviction or not,” and defense counsel voiced his agreement.
At the next session, the trial court stated it was “revisiting” the issue of allowing
impeachment on Vasquez’s gang participation conviction. Defense counsel stated he
needed clarification before voir dire as to whether Vasquez’s gang participation
conviction “would come in for any purpose.” The trial court stated it was “indicating the
People will be allowed to impeach the defendant with a second felony, as I’ve indicated
in prior rulings,” but it was asking the parties to stipulate to a “neutral felony term” that
did not refer to the gang-related nature of the conviction. Later, the trial court stated:
“So the People will be permitted, based upon my prior ruling -- not the one last week, but
the ones a month or two ago, that I do find it -- well, it does involve a crime of moral
turpitude, the defendant can be impeached with it. [¶] However, the fact that it is a gang-
related offense and the associated prejudice to the defendant and the associated public
concern about gang-related offenses, the Court is going to prohibit the use of the nature
of that felony.”
The next day, in voir dire, defense counsel told the jury that Vasquez had been
convicted in 2009 for unlawful possession of a firearm and for participation in a criminal
street gang. Counsel asked prospective jurors whether this would impact their decision
making, and prospective jurors said it would not.
Following further voir dire, the trial court discussed matters with counsel. The
court stated it had initially indicated the gang participation conviction could be presented
to the jury, though it stated evidence of the conviction would need to be “cleaned up.”
However, the court stated that later in chambers, it “indicated to both counsel that I
would exclude that conviction for purposes of impeachment,” though counsel had
informed the court that one of the reasons Doe 1 had given for fearing Vasquez was his
past gang association, and therefore “evidence of gang membership or gang involvement
may come before the jury.” Defense counsel generally agreed with this recitation. The
23
trial court then stated that defense counsel’s decision to question prospective jurors about
Vasquez’s prior gang conviction was not based on any ruling by the trial court
concerning impeachment, “since I advised you before that questioning that it would not
come in.” The prosecutor agreed with this summary, and defense counsel did not assert
otherwise.
As voir dire continued, defense counsel continued to ask prospective jurors if
Vasquez’s prior gang conviction would affect their decision making. The trial court
excused two prospective jurors based on their responses to questions about Vasquez’s
gang participation conviction.
At trial, Doe 1 testified that Vasquez had threatened her to keep her from reporting
his actions, though she could not remember all the ways in which he threatened her. A
detective called as a defense witness testified on cross-examination that Doe 1 told him
Vasquez had threatened her in three ways: (1) Vasquez told Doe 1 “ ‘if it’s not you, it’s
your sister’ ”; (2) Vasquez said he would put Doe 1 back in touch with her biological
father, which Doe 1 feared; and (3) Vasquez told Doe 1 “ ‘he used to be like in a little
gang’ ” and “they” would find her.
When Vasquez testified, his counsel asked if he had been convicted of
participating in a criminal street gang and unlawful possession of a firearm, and Vasquez
replied affirmatively. Vasquez testified that both offenses occurred in 2009 when he was
about 21 years old. He testified that he pleaded guilty to these offenses, and the
convictions closed opportunities for him.
2. Legal principles and standard of review
As with the first two issues above, relevant evidence is admissible under Evidence
Code sections 350 and 351. The court has discretion to exclude evidence under Evidence
Code section 352 if its probative value is substantially outweighed by the probability that
its admission will necessitate undue consumption of time or create substantial danger of
undue prejudice, confusing the issues, or misleading the jury. We review a trial court’s
24
rulings under these provisions for abuse of discretion. (Gonzalez, supra, 12 Cal.5th at
pp. 407-408.)
“To establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective
standard of reasonableness under prevailing professional norms; and (2) counsel’s
representation subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to the
defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845.) “[R]arely will an appellate
record establish ineffective assistance of counsel.” (People v. Thompson (2010)
49 Cal.4th 79, 122.) “ ‘When a defendant on appeal makes a claim that his counsel was
ineffective, the appellate court must consider whether the record contains any explanation
for the challenged aspects of representation provided by counsel. “If the record sheds no
light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ [citation], the contention must be rejected.” ’ [Citations.]”
(Samayoa, supra, at pp. 845-846.)
3. Analysis
The record demonstrates the trial court did not permit the prosecutor to impeach
Vasquez with evidence of Vasquez’s gang participation conviction. The trial court did
make varying rulings on this issue, and the impeachment discussion was intertwined with
discussion about bifurcating the trial on the prior strike conviction. However, the trial
court repeatedly stated it would not permit the prosecutor to impeach Vasquez with this
conviction.
In a motions hearing, the trial court stated it had earlier ruled that the gang
conviction could not come in for impeachment purposes, though evidence of Vasquez’s
gang involvement could be admissible for other purposes based on Doe 1’s fear related to
Vasquez’s past gang involvement. Later in the same hearing, the trial court again stated,
25
“that conviction is excluded should the defendant testify for impeachment purposes,” and
Vasquez “cannot be impeached with that absent opening the door on his own.” The trial
court then revised its ruling, but it stated the parties would have to agree on a “neutral
felony term” that did not refer to the gang-related nature of the 2009 conviction. In voir
dire outside the presence of the venire, the trial court stated it had advised the parties that
Vasquez’s gang conviction “would not come in” for impeachment. The basis for
Vasquez’s argument—that the trial court permitted impeachment with his gang
conviction—is thus wrong as a factual matter.
The record also does not support Vasquez’s argument that he received ineffective
assistance of counsel because his counsel misunderstood the trial court’s ruling and
therefore raised the gang participation conviction to the jury. Vasquez notes that at the
motions hearing, defense counsel asked the court to confirm that its ruling was that “the
[section] 186.22 conviction is not inadmissible for impeachment purposes,” and the trial
court did so. However, defense counsel’s use of the double negative —“not
inadmissible”—does not demonstrate counsel misunderstood the trial court’s ruling.
When the trial court repeated its ruling shortly thereafter in the same hearing, stating that
Vasquez “cannot be impeached with that absent opening the door on his own,” defense
counsel responded: “Okay. Very well.” While the trial court initially discussed both the
impeachment and the bifurcation issues together, it later confirmed that bifurcation was a
“separate issue” from impeachment, and Vasquez’s counsel voiced understanding of this.
Then, when the trial court amended its ruling to permit impeachment with this conviction
using a neutral term, defense counsel asked questions about how to implement the ruling
but did not express a lack of understanding. The next day, when defense counsel raised
the prior gang conviction in voir dire, the trial court stated it wanted to confirm this
decision was not based on any ruling by the trial court, and defense counsel did not
contradict the court. Vasquez has not demonstrated that his counsel misunderstood the
trial court’s ruling regarding use of the gang conviction.
26
We also cannot conclude based on the appellate record that defense counsel’s
decision to raise this matter in voir dire and in the direct examination of Vasquez lacked a
tactical basis. Counsel was aware based on the evidence in the preliminary examination
that Doe 1 alleged Vasquez threatened her based on his past gang ties, and that this
matter could be raised at trial. The prosecutor ultimately did, in fact, elicit testimony
about this threat through the cross-examination of a detective. Defense counsel could
have reasonably concluded that conducting voir dire on this issue would ensure the
selection of a jury that would not be unduly influenced by Vasquez’s past gang
affiliation. Conducting voir dire on this issue resulted in two prospective jurors being
excused. By asking Vasquez about this conviction, defense counsel was able to elicit
Vasquez’s account that he had pleaded guilty to this offense, that he was about 21 years
old when the offense occurred, and that he had suffered consequences from his
conviction. Defense counsel could reasonably conclude that questioning Vasquez about
this conviction would minimize the effect of testimony concerning the gang threat and
any possible introduction of the gang participation conviction to support testimony about
that threat. Therefore, Vasquez has not demonstrated that he received ineffective
assistance of counsel.
D. Cumulative Effect of Errors
Vasquez argues that the cumulative prejudicial effect of the errors asserted above
deprived him of due process and a fair trial. “The premise behind the cumulative error
doctrine is that, while a number of errors may be harmless taken individually, their
cumulative effect requires reversal.” (People v. Mani (2022) 74 Cal.App.5th 343, 378.)
We have concluded beyond a reasonable doubt that Vasquez was not prejudiced by any
error concerning his first issue, and we have found no error in the remaining two issues
discussed above. Thus, Vasquez’s cumulative prejudice argument must fail.
27
E. Gang Participation Strike Conviction
Finally, Vasquez argues his case should be remanded for the trial court to address
the prior strike finding because the record does not reflect whether his gang participation
conviction meets the requirements of current section 186.22. He argues that to the extent
this issue is considered forfeited by his counsel’s failure to object on this basis, he
received ineffective assistance of counsel. The Attorney General responds that Vasquez
forfeited this claim, and that Vasquez has not demonstrated ineffective assistance of
counsel. We conclude that remand is required for the trial court to consider whether
Vasquez’s gang participation conviction meets the requirements of amended
section 186.22 and thus constitutes a strike.
1. Factual background
The amended information alleged Vasquez sustained a prior strike conviction in
that he was convicted in 2009 of violating section 186.22, subdivision (a) for active
participation in a criminal street gang. As we discuss above, Vasquez admitted in his
testimony that he had been convicted of two prior felony offenses in 2009, including the
gang participation conviction. In bifurcated proceedings on the strike allegation, the
prosecution introduced documents to prove the gang participation conviction, but the
records did not specify the factual basis for the conviction. The prosecution presented no
other evidence to prove the prior strike allegation, and the defense presented no evidence.
Neither side presented any argument on the prior strike allegation.
The trial court found the prior strike allegation true. The sentence the court
imposed included terms for each count that were doubled due to the prior strike
enhancement.
2. Legal principles and standard of review
“The purpose of the Three Strikes law is ‘to ensure longer prison sentences and
greater punishment for those who commit a felony and have been previously convicted of
serious and/or violent felony offenses.’ [Citation.]” (In re Young (2004) 32 Cal.4th 900,
28
909.) Section 667.5, subdivision (c) and section 1192.7, subdivision (c) specify the
serious or violent felonies that qualify as strikes under this sentencing scheme. This list
includes “any felony offense, which would also constitute a felony violation of
Section 186.22.” (§ 1192.7, subd. (c)(28).)
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) was enacted
effective January 1, 2022. (Stats. 2021, ch. 699.) Assembly Bill 333 made several
changes to the gang-related offenses specified in section 186.22. “First, it narrowed the
definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, organized
association or group of three or more persons.’ [Citation.] Second, whereas
section 186.22, former subdivision (f) required only that a gang’s members ‘individually
or collectively engage in’ a pattern of criminal activity in order to constitute a ‘criminal
street gang,’ Assembly Bill 333 requires that any such pattern have been ‘collectively
engage[d] in’ by members of the gang. [Citation.] Third, Assembly Bill 333 also
narrowed the definition of a ‘pattern of criminal activity’ by requiring that (1) the last
offense used to show a pattern of criminal gang activity occurred within three years of the
date that the currently charged offense is alleged to have been committed; (2) the offenses
were committed by two or more gang ‘members,’ as opposed to just ‘persons’; (3) the
offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a
pattern of gang activity must be ones other than the currently charged offense. [Citation.]
Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly
benefitted a street gang, requiring that any ‘common benefit’ be ‘more than reputational.’
[Citation.]” (People v. Tran (2022) 13 Cal.5th 1169, 1206.)
In August 2025—about six months after Vasquez’s sentencing hearing—the
California Supreme Court issued its decision in People v. Fletcher (2025) 18 Cal.5th 576
(Fletcher). Our Supreme Court held: “Although the relevant statutes are not paragons of
clarity, we conclude that where a defendant has suffered a conviction under the prior
version of section 186.22, Assembly Bill 333 applies to the determination of whether the
29
conviction qualifies as a prior serious felony conviction under subdivision (c)(28) of
section 1192.7 for purposes of the Three Strikes law and prior serious felony
enhancements.” (Id. at p. 583.) The Supreme Court further concluded that Assembly
Bill 333 applied to the case before it because the defendants’ judgments were not yet
final. (Ibid.)
3. Analysis
Following our Supreme Court’s direction in Fletcher, we conclude that “with
regard to prior convictions like [Vasquez’s] that are premised on violations of
section 186.22, current law applies in determining whether they qualify as prior serious
felony convictions under section 1192.7, subdivision (c)(28).” (Fletcher, supra,
18 Cal.5th at p. 587.) Vasquez argues the record does not demonstrate that his 2009 gang
conviction meets the requirements of amended section 186.22, and the Attorney General
does not contend otherwise. The documents the prosecution introduced show the fact of
Vasquez’s gang participation conviction, but they provide none of the underlying facts to
demonstrate whether the requirements of amended section 186.22 are met. Thus, the
record does not demonstrate that Vasquez’s prior conviction qualifies as a strike under
section 1192.7, subdivision (c)(28).
The Attorney General argues Vasquez forfeited his argument because he did not
raise it in the trial court. We do not agree, for two reasons. First, Vasquez did not admit
the strike, thus requiring the prosecution to prove the strike allegation beyond a
reasonable doubt. Second, at the time the trial court found the prior strike allegation true
and continuing through sentencing, the California Supreme Court had not yet issued its
opinion in Fletcher. While the Attorney General notes that a “split in authority” existed
at the time of Vasquez’s trial on the question Fletcher resolved, we decline to apply
forfeiture when the California Supreme Court had not yet resolved the disparate opinions
of the Courts of Appeal. Therefore, we conclude Vasquez has not forfeited this argument
by failing to raise it in the trial court.
30
Accordingly, we vacate the true finding on the prior strike enhancement and
remand the matter to the trial court for further proceedings on the strike allegation.
III. DISPOSITION
The true finding that appellant Vasquez sustained a prior strike conviction for
active participation in a criminal street gang (§ 186.22, subd. (a)) is vacated. The
sentence is vacated in its entirety, and the matter is remanded for further proceedings.
The prosecution may elect to retry the prior strike allegation for purposes of resentencing.
Whether or not the prior strike allegation is proven on remand, the trial court shall
conduct a full resentencing under current law. In all other respects, the judgment is
affirmed.
31
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Danner, J.
______________________________________
Chung, J.*
H053023 People v. Vasquez
_____________
* Judge of the Santa Clara County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.