People v. Delgado, 2018 Cal. App. Unpub. LEXIS 8357 (Cal. Ct. App. Dec. 11, 2018):

I. Introduction

Defendant Alejandro Ernesto Hernandez-Delgado appeals after a jury convicted him of first degree murder (Pen. Code, 187, subd. (a))[1] and found true gang and firearm allegations ( 186.22, subd. (b)(1)(C), 12022.53, subd. (d) [*1] ). The trial court sentenced defendant to an indeterminate prison term of 50 years to life.

 On appeal, defendant challenges the sufficiency of the evidence supporting the gang allegation, and he contends the trial court erred by: (1) admitting evidence from Facebook; (2) improperly instructing the jury regarding the gang allegation; (3) permitting further argument about accomplice testimony during jury deliberations; (4) refusing a juror's request to be discharged; and (5) denying defendant's motion for a new trial, which was based on an allegation of jury misconduct. Defendant also contends the cumulative effect of the errors warrants reversal of the judgment, and that his case should be remanded for resentencing so the trial court can exercise its discretion to strike the firearm enhancement.

 For reasons that we will explain, we will affirm the judgment.

 II. Background

The charges against defendant stemmed from a shooting on the night of October 20, 2012, following a beach party in Sand City. The shooting [*2]  victim, Antonio Garcia, was a Norteño gang member. Defendant was a Sureño gang member and a member of a subset called PVL.

 The prosecution presented testimony from defendant's two companions on the night of the shooting: Jason Avendano and Omar Ruiz, both of whom were admitted Sureño gang members or associates. Another Sureño gang member or associate, Christian Cruz, testified about admissions defendant made after the shooting.

 A. The Shooting

Most people at the Sand City beach party, including victim Garcia, were Norteños. Oligario Reyes (known as Ole), was also at the party. At some point, Garcia and Ole left together. Garcia appeared to be intoxicated.

 About five minutes later, two other party-goers left the beach. They heard a bang and then came upon Garcia's body lying on the path. Other party-goers heard loud bangs after leaving the beach. They turned towards the sounds and saw three people running away. Meanwhile, Ole returned to the party and said that Garcia had been shot by "some scraps."

 Police responded and found Garcia. Garcia was airlifted to the hospital, where he later died. Garcia had been shot in the lower back by a shotgun. His blood alcohol level was 0.15 percent. [*3] 

 B. Testimony of Fellow Gang Members

1. Avendano

Avendano testified under a grant of immunity, meaning he could not be prosecuted for any crime based on his testimony.[2] Avendano admitted being a Sureño gang affiliate. He hung around with Sureño gang members but had not been jumped in to the gang. Defendant and his brother both claimed to be Sureño gang members.

 Avendano drove defendant and Ruiz to the beach on the night of the shooting. They smoked marijuana in the car and then went out for a walk. They encountered Ole. Defendant fought with Ole and then chased him with a shotgun, which defendant had been keeping in his pants.

 Garcia then appeared. Defendant pointed the gun at Garcia and shot him. Avendano, Ruiz, and defendant all ran back to the car. Defendant made statements about shooting Garcia. Defendant also said he had a problem with Garcia that was related to the Norteño-Sureño rivalry.

 2. Ruiz

Ruiz testified under an agreement with the prosecution, under which he would receive a maximum nine-year prison term, rather than a term of 15 years to life, if he testified truthfully. Ruiz was a Sureño gang member who decided to come clean to his probation officer in hopes of getting [*4]  protection from rival gang members who were trying to kill him.

 According to Ruiz, defendant said they were going to go to a Norteño party. As they walked towards the bonfire, defendant noticed some people walking to the parking lot. Defendant whistled, and Ole approached. Defendant pulled out a shotgun. Ole pushed the shotgun away and ran back towards the beach. Garcia then approached. Defendant responded by pointing the shotgun at Garcia. Garcia turned around, and defendant shot him.

 After the shooting, Ruiz heard defendant tell someone else "that [defendant] was the one that pulled the trigger." According to Ruiz, killing a rival gang member means "a lot" and increases a gang member's "rank."

Around the time of the shooting, Ruiz and defendant sometimes communicated via Facebook. They used Facebook to arrange meetings, and defendant would show up as expected.

 3. Cruz

Cruz also testified pursuant to an agreement with the prosecution, under which he faced a maximum nine-year prison term if he testified truthfully, rather than a life term. His agreement concerned charges stemming from his involvement in a separate gang murder.[3] Cruz acknowledged having been a Sureño gang member [*5]  or associate.

 At some point after the shooting at the beach, Cruz was hanging out with defendant, Avendano, Ruiz, and defendant's brother. Someone asked Avendano, "How do you know about P.V.L.?" Avendano smirked, laughed, and responded, "Ask [Garcia]."

 Cruz asked Avendano what he meant. Defendant and Avendano told Cruz what had happened on the night of the shooting. They explained that some Norteños had been having a bonfire at the beach and that defendant, Avendano, and Ruiz had traveled to the beach in a rented car, "looking for trouble." Defendant had a shotgun with him. Defendant had a confrontation with Ole, during which Ole pushed defendant's gun down and then ran away, passing Garcia, who was listening to music through headphones. Defendant approached Garcia and put the barrel of the shotgun against Garcia's chest. Garcia turned and walked away. Defendant then shot him.

 When defendant told Cruz about the shooting, Cruz felt that defendant "was bragging." Defendant indicated that no one else had done anything for their friend who had been killed. Defendant also indicated that the shooting was "putting in work" and helping to "establish the neighborhood in Seaside."

 C. Defendant's [*6]  Statements The police learned that defendant was working at the Rio Grill, a restaurant in Carmel. They arranged to have Avendano pose as a worker and talk to defendant, while officers listened to their conversation. Avendano told defendant that someone was saying that defendant shot Garcia. Defendant did not deny the statement. Avendano asked defendant where he had put the gun. Defendant responded, "It's not in California." Avendano asked defendant if he had been scared when he shot Garcia. Defendant replied, "No." Defendant indicated he thought Avendano should not be working with him, and he told Avendano, "Don't talk to anybody about this."

 D. Gang Evidence In 2013 or 2014, Lieutenant William Clark was researching social media sites as part of his investigation into the PVL gang. Lieutenant Clark located photographs of defendant on Facebook that depicted defendant holding three fingers in front of his body. Through a search warrant, the police obtained additional records from Facebook, which showed defendant had two separate accounts, one of which had been created on the date of the shooting. The records obtained included posted photographs that appeared to be "selfie photographs." [*7] 

 Investigator Rick Gamble testified as the prosecution's gang expert. He described how southern California was originally considered Sureño territory while northern California was originally considered Norteño territory. The feud between Sureños and Norteños began in the prisons, between La Eme (the Mexican Mafia) and Nuestra Familia. He testified that many Sureños and Norteños divide themselves up into smaller groups based on neighborhoods, called "subsets." Investigator Gamble described how Sureño neighborhood subsets must "ultimately" answer to La Eme in prison.

 Given a hypothetical situation that reflected the facts of this case, Investigator Gamble opined that the shooter would intend to benefit, further, or promote the Sureño gang. The shooting of a Norteño gang member would promote the reputation of the Sureño gang as "more violent."

 According to Investigator Gamble, the Sureño gang and its subsets use the color blue, the number 13, the letter M, the word "Sur," and the number 3 or three dots to identify themselves as Sureño.

 Investigator Gamble opined that the primary activities of "the criminal street gangs" was "the commission of certain crimes." He then discussed a number [*8]  of prior cases. The first case involved two Sureño gang members who were convicted of attempted homicide after shooting a Norteño gang member in Marina. Another case involved four Sureño gang members who were convicted of attempted murder after shooting two Hispanic juveniles. A third case involved two Sureño gang members who stole a vehicle in Salinas and were convicted of auto theft and possession of stolen property. A fourth case involved two Sureño gang members who were convicted of murder after shooting a Norteño gang member in Salinas.

 Investigator Gamble opined that PVL met the definition of a criminal street gang and that defendant was an active PVL and active Sureño gang member in 2012.

 Investigator Gamble identified a number of images downloaded from defendant's Facebook page as gang-related. Exhibit No. 47 was a blue-hued photograph of three people whose faces were painted "in a clown or theater-type paint." The title of the photo was "D Sur 13 like." Exhibits 48 and 49 were also blue-hued; they showed a large number 13 with the words "South Side" across the number. The title of the photo was "South Side Homies," and the comments under one of the photos included one attributed [*9]  to Jose Samano that read, "Sur 13, homey, P.V.L. for life." Exhibit 50 was a "selfie" of defendant "throwing" the PVL gang sign, apparently in front of a mirror. Exhibit 51 was another "selfie" of defendant in front of a mirror. Exhibit 52 was a photo of defendant throwing a "hand sign of the [number] three" while making a "P" with one finger. Exhibit 53 was an image of the California bear, with "831" in blue and "PVL 13" on top of the bear. Exhibit 54 was an image of a blue heart with the number 13 superimposed on it, with the title "Sur x3." Exhibit 55 was an image of a Sureño rapper named Baby Aztec, which had the number 13 "shadowed in." Exhibit 56 was a blue and black image that contained the phrase "Mi vida loca," which means "My crazy life" and is part of the gang culture. The image was titled, "Pomona Sur 13." Exhibit 58 was an image with clown or theatrical faces and an Aztec warrior, with the title "Sureños 13."

 Cristal Sanchez translated some of the statements contained in the Facebook evidence. A comment attributed to defendant underneath Exhibit 48 was translated to "Yeah, yeah, yeah, until death." Exhibit 57 contained Facebook posts and messages. One was a birthday greeting [*10]  sent to defendant on February 9, 2014.[4] Just below that, a comment read, "Where are the pussy Norteños?" Another message attributed to defendant stated, "Sur 13 for life. The gang life lasts until death comes." A comment from another user below that stated, "Sur 13 for life, loco." Other comments attributed to defendant were similar. One of defendant's comments read, "Yes, with my gun, I'm going to disembowel fucking chapetes." Other comments attributed to defendant included "Nor shit 13, Nor fags 13, bunch of fags" and "Yeah, fuck bitch Norteños." A comment by another person referred to Norteños as "pussies" who would "run like a bitch" and "fuck[] each other through the asses."

 The Facebook records also contained messages between defendant and Ruiz. In some of the messages, defendant and Ruiz arranged to get together on different occasions. The Facebook records also contained messages between defendant and someone identified as "Smiley Locs." One of the messages referenced going to "shoot." Another message referred to "weed," and another one used the term "Fag."

 E. Defense Argument Defendant did not testify or present evidence at trial. His trial counsel argued that there was [*11]  no evidence of premeditation and deliberation, in that there was no evidence of a plan to "go kill somebody." She argued that if there had been such a plan, Avendano and Ruiz would be accomplices. She further argued that Avendano and Ruiz were not credible, since they were "arguably accomplices" who were getting a benefit for their testimony. Defendant's trial counsel also argued that Cruz was biased because he was Ruiz's cousin. She pointed out that defendant had no prior criminal record.

 F. Convictions, Verdicts, and Sentence Defendant was charged with willful, deliberate, and premeditated first degree murder ( 187, subd. (a)). As amended, the information alleged that defendant committed the murder for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subds. (b)(5) & (b)(1)(C)) and that defendant personally and intentionally discharged a firearm in the commission of the murder, causing death ( 12022.53, subd. (d)).

 The jury retired to deliberate at 11:00 a.m. on March 3, 2016. After a lunch recess, the jury sent three notes requesting readback of testimony. The jury deliberated until 4:00 p.m. that day.

 Jury deliberations resumed at 8:30 a.m. the following day, March 4, 2016. [*12]  After a morning break and a lunch recess, the jury requested clarification of CALCRIM No. 334, the instruction on accomplice testimony. The trial court reread CALCRIM No. 334 to the jury, permitted argument to be presented by the prosecution and defense, and then provided further instruction to the jury. The jury resumed deliberations, but shortly thereafter reported that the jurors were unable to agree upon a verdict. The trial court ordered the jury to deliberate further.

 On March 7, 2016, what would have been the third day of deliberations, Juror No. 6 (who had previously indicated he could not serve on that date) was replaced by an alternate juror. Also on that date, the trial court decided not to discharge Juror No. 12, who had missed a number of medical appointments during the trial. After replacing Juror No. 6, the trial court instructed the jury to "set aside and disregard all past deliberations and begin your deliberations all over again."

 Jury deliberations continued on March 8, 2016. The jury reached its verdicts that morning, finding defendant guilty of first degree murder and finding the gang and firearm allegations true.

 Defendant filed a motion for a new trial after the verdicts were returned, based [*13]  on information obtained from Juror No. 4. At the sentencing hearing, the trial court denied defendant's motion for a new trial and imposed consecutive terms of 25 years to life for the murder and the section 12022.53 firearm use allegation. The trial court originally imposed a consecutive 10-year term for the gang allegation but subsequently struck that punishment "pursuant to statutory law."[5]

 III. Discussion A. Facebook Evidence Defendant challenges the trial court's ruling allowing the prosecution to present the Facebook evidence (i.e., the posts, comments, and messages). Defendant argues that the prosecution did not lay a proper foundation for the evidence. He alternatively argues that the Facebook evidence should have been excluded as violating Evidence Code section 352 and his rights to confrontation and due process. The Attorney General contends the trial court's ruling was not an abuse of discretion.

 1. Standard of Review "We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner [*14]  that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).)

 2. Proceedings Below In his trial brief, defendant objected to the introduction of the Facebook evidence, asserting that there was "no reliable basis" upon which to find that defendant actually controlled or maintained the Facebook accounts that were in his name. Defendant also argued that the Facebook evidence was hearsay and "highly prejudicial."

 In their trial brief, the People sought to admit the Facebook evidence, indicating they would authenticate the evidence at a pretrial hearing. (See Evid. Code, 403, subd. (a)(3).) The People asserted that they would show defendant was the author of some of the messages and thus that those messages were admissible as admissions. The People asserted that messages posted by other people were admissible as adoptive admissions, as circumstantial evidence, or under the judicially-created hearsay exception for implied assertions recognized in People v. Morgan (2005) 125 Cal.App.4th 935.

 The trial court held a hearing on the admissibility of the Facebook evidence, which included testimony from the deputy who obtained a search warrant for the Facebook records; Sanchez, who provided Spanish-to-English translation of some of the Facebook [*15]  messages; Lieutenant Clark, who originally found defendant's Facebook page; and Omar Venegas, who had used Facebook to communicate with defendant.

 Evidence at the hearing showed that a Facebook page attributed to defendant included photos of defendant, at least one of which appeared to be a "selfie." The messages in the Facebook account included a "Happy birthday" message to defendant on defendant's birthday. There was also a message authored by defendant and addressed to Ruiz.

 Defendant's trial counsel argued that "anybody can put a Facebook page up" and pointed out that none of the People's witnesses actually knew whether defendant himself created any of the posts or messages.

 The trial court ruled it would admit the Facebook evidence. The trial court indicated that the Facebook evidence carried "sufficient indicia of reliability such that a reasonable jury could rely upon it," and that it was "the jury's job, as trier of fact, to determine if, in fact, the document is authentic."

 The trial court later considered some of the individual Facebook posts and messages. In addition to her previous arguments, defendant's trial counsel asserted that the evidence would be prejudicial because [*16]  it would paint defendant as a gang member and because the posts and messages contained "shocking" and offensive language. Defendant's trial counsel also argued that admission of some of the messages would violate defendant's confrontation rights because he could not cross-examine the people who wrote the messages. The trial court ruled that the evidence could be introduced.

 During trial, a further hearing was held on the Facebook evidence that the prosecution intended to introduce. Defendant's trial counsel objected to each post as inflammatory because the posts would be used to imply that defendant was a gang member. The trial court went through each of the proposed exhibits. The court excluded one photograph as prejudicial but admitted a comment under the photograph and the remaining exhibits, finding them "more probative than prejudicial."

 3. Foundation/Authentication Defendant contends the prosecution failed to properly authenticate the Facebook evidence-that is, show that the Facebook posts and messages were created by defendant himself. (See Evid. Code, 1401; Goldsmith, supra, 59 Cal.4th at p. 266.)

 "Authentication of a writing, including a photograph, is required before it may be admitted in evidence. [Citations.] Authentication [*17]  is to be determined by the trial court as a preliminary fact [citation] and is statutorily defined as 'the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is' or 'the establishment of such facts by any other means provided by law" [citation]." (Goldsmith, supra, 59 Cal.4th at p. 266.)

 When seeking to establish authentication, "what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (Goldsmith, supra, 59 Cal.4th at p. 267.) The requisite authentication of photographic evidence need not be provided by the person taking the photograph. Rather, sufficient foundation may be provided by "other witness testimony, circumstantial evidence, content and location. [Citations.]" (Id. at p. 268.)

 Defendant contends his case is similar to People v. Beckley (2010) 185 Cal.App.4th 509 (Beckley), a case decided prior to Goldsmith.  The Beckley court held that a photograph downloaded from Beckley's MySpace page had not been properly authenticated. The photograph had been downloaded by a detective, [*18]  and it showed Beckley's girlfriend flashing a gang sign. The appellate court found that the detective's testimony was insufficient to sustain a finding that the photograph was accurate, since the detective had no personal knowledge that the photograph truthfully portrayed Beckley's girlfriend flashing the gang sign and there was no expert testimony that the photograph had not been faked. (Beckley, supra, at p. 515.)[6]

Beckley was distinguished by the court in People v. Valdez (2011) 201 Cal.App.4th 1429 (Valdez), where the challenged evidence was print-outs from Valdez's MySpace page. An investigator had acknowledged that "he did not know who uploaded the photographs or messages on Valdez's page, who created the page, or how many people had a password to post content on the page." (Id. at p. 1434.) However, there was evidence showing that the MySpace page belonged to Valdez, including: a photograph of Valdez's face in the area identifying the page owner, greetings addressed to Valdez by name in the comment section, and personal details associated with Valdez. (Id. at p. 1435.) There was no evidence that any of the postings were "planted or false." (Id. at p. 1436.) The appellate court upheld the trial court's admission of the MySpace print-outs, finding that [*19]  "the prosecution met its initial burden to support its claim the MySpace site belonged to Valdez, and that the photographs and other content at the page were not falsified, but accurately depicted what they purported to show." (Id. at p. 1434.) In explaining why Beckley was dissimilar, the Valdez court focused on "the pervasive consistency of the content of [Valdez's] page, filled with personal photographs, communications, and other details tending together to identify and show owner-management of a page devoted to gang-related interests." (Valdez, supra, at p. 1436.)

 Photographs taken from a cell phone were challenged as not properly authenticated in In re K.B. (2015) 238 Cal.App.4th 989 (K.B.), which criticized Beckley as inconsistent with Goldsmith. The K.B. court held that online photographs need not be authenticated by "the person who actually created and uploaded the image" nor by an expert witness. (K.B., supra, at p. 997.) The photographs at issue in K.B. showed the defendant with a firearm. Officers had downloaded the photographs from a cellphone that belonged to K.B.'s associate. Officers had also viewed identical photographs on K.B.'s Instagram-a social media platform that lets users create accounts and share photographs. When [*20]  the defendant was arrested, he was wearing the same clothing as in the photographs, and he was associating with people in some of the photographs. The K.B. court noted that "these factors point to the authenticity and genuineness of the photographs" and that there was no evidence indicating the photographs were inaccurate. (Id. at p. 998.) Thus, the trial court had reasonably found "the prosecution sufficiently authenticated the incriminating photographs." (Ibid.)

 Defendant cites to opinions from other jurisdictions, claiming they are "in accord with . . . Beckley." But we are required to follow precedent set by our Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Under the authentication rules set forth in Goldsmith, the trial court here did not abuse its discretion by finding the Facebook evidence had been properly authenticated. The prosecution was not required to establish authentication through the testimony of the person who took the photographs or made the Facebook posts or comments, and expert testimony was not required. (Goldsmith, supra, 59 Cal.4th at p. 267.) The circumstantial evidence and witness testimony here was sufficient. That evidence included: several of the photographs on the Facebook page were "selfies" of defendant, [*21]  messages were exchanged between defendant and his known associates, and a happy birthday message was posted on defendant's actual birthday. There was no evidence that any of the postings were "planted or false." (See Valdez, supra, 201 Cal.App.4th at p. 1436.) As in Valdez, the content of defendant's Facebook page was consistent, in that it included "personal photographs, communications, and other details tending together to identify and show owner-management of a page devoted to gang-related interests." (Id. at p. 1436.) This evidence provided the requisite "prima facie case" of authenticity. (Goldsmith, supra, at p. 267.)

 4. Confrontation Clause Defendant contends that even if the trial court did not err by finding that the Facebook evidence had been sufficiently authenticated, the Facebook evidence was testimonial hearsay and its admission violated the Confrontation Clause because Facebook provided the evidence in response to a search warrant. Defendant relies on Bullcoming v. New Mexico (2011) 564 U.S. 647 (Bullcoming), which held that "[a] document created solely for an 'evidentiary purpose,' . . . made in aid of a police investigation, ranks as testimonial. [Citation.]" (Id. at p. 664.)

 As the Attorney General points out, the Facebook posts and messages "existed before the search warrant was issued" and thus [*22]  were not "created solely for an 'evidentiary purpose,' . . . made in aid of a police investigation." (Bullcoming, supra, 564 U.S. at p. 664.) The Facebook posts and messages were merely printed out for trial. (Cf. People v. Lopez (2012) 55 Cal.4th 569, 583 ["Because, unlike a person, a machine cannot be cross-examined, here the prosecution's introduction into evidence of the machine-generated printouts . . . did not implicate the Sixth Amendment's right to confrontation."].) Thus, that evidence did not constitute testimonial hearsay and its admission did not violate the Confrontation Clause.

 5. Evidence Code section 352/Due Process Defendant contends the trial court abused its discretion by admitting the Facebook evidence because its "probative value was far exceeded by [its] prejudicial nature." (See Evid. Code, 352.) Defendant further argues that the admission of the Facebook evidence violated his due process rights under the federal constitution.

 The Attorney General contends that the Facebook evidence had a high probative value because it demonstrated defendant's "extreme animosity toward rival Norteño gang members," which helped show his motive, premeditation, deliberation, and intent to kill. Defendant acknowledges this evidentiary purpose but argues that the Facebook evidence also included statements that contained homophobic [*23]  slurs, statements about marijuana, and statements that referenced violent acts.

 Under Evidence Code section 352, evidence is substantially more prejudicial than probative "if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla (2000) 22 Cal.4th 690, 724.) Having reviewed the Facebook evidence, we determine that the trial court's decision to admit that evidence was not an abuse of discretion. The Facebook evidence had probative value in showing defendant's dedication to the Sureño gang, which was "central to the case to explain a motive" for the shooting. (See Valdez, supra, 201 Cal.App.4th at p. 1437.) None of the posts or comments was so inflammatory as to "rise to the level of evoking an emotional bias against the defendant as an individual apart from what the facts proved." (See People v. Zepeda (2008) 167 Cal.App.4th 25, 35.)

 Regarding defendant's due process claim, we note that "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.  [Citations.]" (People v. Partida (2005) 37 Cal.4th 428, 439.) On this record, even if we had found error under state law, we would find no due process violation. The evidence of defendant's guilt was strong, as it included testimony from two of [*24]  his companions and evidence of defendant's subsequent admissions to the crime. Significantly, the People's case against defendant "was based primarily on evidence other than" the Facebook evidence. (See People v. Covarrubias (2011) 202 Cal.App.4th 1, 20.) And none of the Facebook evidence was "so 'uniquely inflammatory' as to render the trial fundamentally unfair. [Citation.]" (Id. at p. 21.)

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