People v. Gonzalez, H046836

CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JAMES GONZALEZ, Defendant and Appellant.
Docket NumberH046836
Decision Date19 May 2022

THE PEOPLE, Plaintiff and Respondent,

JAMES GONZALEZ, Defendant and Appellant.


California Court of Appeals, Sixth District

May 19, 2022


Santa Clara County Super. Ct. No. 214496

Danner, J.

A multi-agency police investigation into drug trafficking and other crimes committed in Santa Clara County by Norteño criminal street gangs, operating under the umbrella of the Nuestra Familia prison gang, led to the indictment of appellant James Gonzalez and 23 others. A jury convicted Gonzalez of numerous crimes including street terrorism, attempted murder, assault with a deadly weapon, dissuading a witness or victim by force, robbery, burglary, criminal threats, conspiracy, possession of methamphetamine for sale, and illegal possession of a firearm by a felon. The jury also found true several sentence enhancements. The trial court sentenced Gonzalez to 14 years to life in prison, consecutive to 38 years.

On appeal, Gonzalez raises 16 claims of error. Stated broadly, he challenges the sufficiency of the evidence for his robbery and conspiracy convictions, certain jury


instructions, evidentiary rulings, the failure to bifurcate trial on the gang sentence enhancement allegations, and rulings on his motion for new trial, and his sentence.[1]

For the reasons explained below, we reverse the convictions for street terrorism (count 1), criminal threats (count 11), and conspiracy (counts 12 & 13). We also reverse the true findings on several of the gang enhancement allegations (counts 5-11). Accordingly, we vacate Gonzalez's sentence in its entirety and remand the matter for further proceedings.


A. Procedural History

In March 2015, the grand jury of Santa Clara County returned a 34-count indictment charging appellant Gonzalez, codefendant Carlos Roman, and 22 other individuals.[2] In December 2017, the Santa Clara County District Attorney filed a third amended indictment (hereafter indictment) against the same 24 people. That indictment alleged 14 crimes against Gonzalez: Street terrorism (Pen. Code, § 186.22, subd. (a)[3]; count 1), attempted murder (§§ 187, 664, subd. (a); count 5), assault with a deadly weapon (§ 245, subd. (a)(1); count 6), dissuading a witness or victim by force or threat (§ 136.1, subd. (c)(1); counts 7 & 8), robbery (§ 211; count 9), burglary (§ 460, subd. (a); count 10),


criminal threats (§ 422; count 11), conspiracy to sell methamphetamine (§ 182, subd. (a)(1); Health & Saf. Code, § 11379, subd. (a); count 12), conspiracy to sell marijuana (§ 182, subd. (a)(1); Health & Saf. Code, § 11360, subd. (a); count 13), conspiracy to bring contraband into a custodial facility (§§ 182, subd. (a)(1), 4573; count 14), possession of methamphetamine for sale (Health & Saf. Code § 11378; count 15), and illegal possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 16 & 17).

The indictment further alleged as to all counts except count 1, that Gonzalez's crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)); as to counts 5 and 6, that Gonzalez personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1203, subd. (e)(3)); as to count 5, that Gonzalez personally used a deadly weapon (§ 12022, subd. (b)(1)); as to counts 7, 8, and 10, that a principal was armed with a firearm (§ 12022, subd. (a)(1)); as to count 9, that Gonzalez was a principal in the charged crime and a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)); as to counts 12 and 15, that the quantity of methamphetamine exceeded one kilogram (Health & Saf. Code § 11370.4, subd. (b)); and as to count 15, that Gonzalez personally was armed with a handgun (§ 12022, subd. (c)).

In January 2018, the jury found Gonzalez guilty as charged, including that the robbery in count 9 was in the first degree. The jury also found all of the sentence enhancement allegations true except for the firearm enhancement in count 9.

Following the jury's verdict, Gonzalez, through new defense counsel, filed a motion for new trial. Pursuant to the motion, the trial court found there was insufficient evidence to support the guilty verdict on count 14 for conspiracy to bring contraband into a custodial facility. The court thus vacated that conviction. The court also ordered the first degree robbery conviction on count 9 reduced to second degree robbery, finding that the jury should not have been permitted to convict Gonzalez on a degree of robbery that had not been charged in the indictment.


In March 2019, the trial court sentenced Gonzalez to an aggregate determinate sentence of 36 years. That sentence included the upper term of nine years for attempted murder (count 5), and consecutive terms of one year and four months for first degree burglary (count 10), eight months for criminal threats (count 11), one year for each conspiracy (counts 12 & 13), and eight months for each firearm possession (counts 16 & 17). Pursuant to section 654, the court stayed the determinate terms imposed on count 1 (upper term of three years), count 6 (upper term of four years), and count 15 (middle term of two years). The court also ordered that the three-year determinate term imposed on count 9 run concurrently.

As for the sentence enhancement allegations, the trial court imposed consecutive terms of one year for the gang enhancements attendant to counts 12, 13, 16, and 17; consecutive terms of one year and eight months for the gang enhancements attendant to counts 10 and 11; a consecutive term of four months for the arming enhancement attendant to count 10; and, on count 5, consecutive terms of three years for the great bodily injury enhancement, one year for the deadly weapon enhancement, and 10 years for the gang enhancement.

Consecutive to the determinate sentence, the trial court imposed for counts 7 and 8 consecutive indeterminate terms of seven years to life (for a total of 14 years to life) plus consecutive one-year terms (for a total of two years).

Gonzalez timely appealed.

B. Factual Overview

The evidence at trial generally concerned three subjects. One topic related to Gonzalez's involvement in drug dealing and other activity with Norteño gang members between January 2013 and October 2014. Another concerned Gonzalez's stabbing of Curtis Garza in January 2013 over a drug debt Garza owed to Gonzalez. The third topic related to a November 2013 home invasion committed by Gonzalez and two other gang


members to obtain a letter that indicated Gonzalez had been keeping drugs and money in a safe at a friend's home.

As described above, the prosecution of Gonzalez was part of a larger investigation into gang activity in Santa Clara County. Detective Justin Harper was the lead investigator in the case against Gonzalez and testified as an expert in "criminal street gangs, the Nuestra Familia, controlled substance recognition, usable amounts of controlled substances, and sales of controlled substances." He testified that, while the organizational structure of the Nuestra Familia (NF) prison gang has changed over the years, everyone within the gang during the relevant time period for this case was considered a Norteño regardless of rank. The highest-ranking NF members ("carnals") "put[] people in place out on the streets . . . to bring all the Norteño criminal street gangs within [a] region [] under the NF umbrella." Detective Harper used the descriptor "Norteño criminal street gang interchangeably with the Nuestra Familia" because, under "new [NF] directives," "everybody's a Norteño."

The primary activities of the NF/Norteños included homicides, attempted murders, kidnappings, extortion, assaults with deadly weapons, drug sales, robbery, burglary, prostitution, and identity theft. Individual Norteño gangs in a given region were required to pay a monthly tax of $200 or $250 to the regional "street regiment." The street regiment also imposed a 25 percent tax on all illegal activity within their region. The money generated from all these taxes was placed in a "regiment bank" and "reinvest[ed] [] into guns, into drugs, and other illegal endeavors to make a profit." Ultimately, the profits were "funnel[ed] [] back into the county jails and the state prison system," to support the carnals, along with "contraband, narcotics[, and] . . . cell phones, so that the carnals could have open lines of communication out on the streets." Detective Harper testified that there were "probably more than 100 [Norteño street gangs] . . . within San Jose," all of which the NF sought to control. The San Jose gangs fell under the authority


of the NF street regiment assigned to Santa Clara County. Street regiments were "made up of trusted members from multiple different Norte[ñ]o gangs."

Detective Harper opined that Gonzalez was a Norteño gang member between January 1, 2013, and October 30, 2014, based on Gonzalez's prison records, identification of Gonzalez as someone who worked under gang member Frank Cruz, Gonzalez's authorship of reports to NF leadership, that Gonzalez was tasked by the regiment to oversee a street gang and eventually took on a leadership role in the regiment, Gonzalez's tattoos, and the clothing and gang-related paperwork found by police in Gonzalez's residence.

Gonzalez did not testify or present any witnesses to the jury. Roman, too, did not testify at trial, but he did present some evidence related to him by way of a stipulation.


Gonzalez raises 16 claims of error. For ease of exposition, we have grouped the issues primarily by the procedural phase of the trial to which they correspond.

A. Pre-trial Evidentiary Rulings

With respect to evidentiary error, Gonzalez contends the trial court erred by (1) allowing evidence of Gonzalez's attack on Arlindo Silva and (2) denying Gonzalez's request for a separate trial and choosing instead to redact portions of...

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