Opinion
E072302
02-25-2022
THE PEOPLE, Plaintiff and Respondent, v. QUAID AKEEM CORNELL et al., Defendants and Appellants.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant Quaid Cornell. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Andre Haynes. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Nos. 16CR067787 & 16CR067785 J. David Mazurek, Judge. Affirmed in part; reversed in part with directions.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant Quaid Cornell.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Andre Haynes. 1
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SLOUGH J.
After a rival gang shot two members of their gang, defendants Quaid Cornell and Andre Haynes opened fire on a group of civilians who lived in the rival gang's territory, killing one victim and seriously injuring two others. A jury convicted Cornell and Haynes of one count of murder and two counts of attempted murder with true findings on gang and firearm allegations. (Pen. Code, §§ 186.22, subd. (b)(1), 12022.53, unlabeled statutory citations refer to this code.) The trial judge sentenced Cornell to a total of 114 years to life and Haynes to a total of 153 years to life.
Defendants raise four claims of error on appeal. First, Cornell argues the trial judge erroneously denied his motion to suppress evidence found in connection with his arrest and the search of his car. Second, Haynes argues the prosecutor committed misconduct by insinuating he had orchestrated an attempt to intimidate the People's key witness during trial, and as a result, the judge should have ordered a mistrial. Third, Haynes argues the judge violated his due process and jury trial rights by treating his juvenile adjudication for robbery (committed when he was 16 years old) as a prior strike. And finally, defendants argue, and the People agree, that recently enacted Assembly Bill No. 333 (2021-2022 Reg. Session) (Assembly Bill 333), which significantly modified section 186.22, requires reversal of the gang-related enhancements under sections 186.22 2 and 12022.53. We agree with the parties on this last point, but conclude defendants' other claims lack merit. We therefore reverse in part and remand to the trial court to (1) give the People an opportunity to retry the enhancements under Assembly Bill 333's new requirements and (2) resentence defendants, either at the conclusion of retrial or upon the People's election not to retry them. We otherwise affirm the judgments.
I
FACTS
A. Prosecution's Case
1. The shooting
Around 8:00 in the evening on August 27, 2016, Dawn Sutton and her fiancé Harold Cook were talking to their friend Ellen Wimbish in the parking lot of their apartment complex at the corner of 9th and G streets in San Bernardino when they were shot at several times by a group of men. When Sutton heard the first shot, she turned and saw a black man with braided hair, who was neither Cornell nor Haynes, holding a gun. Her initial reaction was to protect Cook because he was disabled and needed a cane to walk, but as she tried to push him out of the way, a bullet hit her thigh and she lost consciousness. As a result of the gunshot wound, Sutton spent a month unconscious in the hospital. The bullet that had entered through her thigh also struck her lungs and ovaries before lodging in her pelvis, where it remains. Cook was shot in the head and died immediately. Wimbish was struck in the foot, and two months later she died from a blood clot that originated near the site of the gunshot wound. 3
Just before the shooting, a neighbor who was sitting in his car across the street saw a male peeking around a corner suspiciously. Then he heard the sound of multiple gunshots and saw two gun muzzles flash. By the time of trial, the neighbor couldn't remember specific details about what he saw, but the officer who had interviewed him after the shooting said the neighbor reported the shooters were a group of three or four black men.
2. Sloan's testimony
The prosecution's main witness was 19-year-old DaShawn Sloan, who had joined the East-side IE Crips when he was 14. Sloan had been charged along with defendants and a fourth East-side IE Crips member named Theo Cobbs for the shooting of Sutton, Cook, and Wimbish. Sloan pled guilty to voluntary manslaughter with a gang enhancement and accepted a sentence of six to 11 years in exchange for agreeing to testify truthfully at defendants' trial.
Cobbs was tried separately from defendants.
Sloan was not a particularly forthcoming witness. He admitted he didn't want to testify against his fellow gang members and didn't like the idea of being a "snitch" or providing information about his gang to the authorities. Despite these reservations, his testimony circumstantially implicated Cornell and Haynes in the shooting. 4
Sloan told the jury he had been present for the rival gang shooting that set the events of this case in motion. Around 2:00 a.m. on the day in question, August 27, 2016, he had been playing dice with several other East-side IE Crips members outside an apartment complex on Sierra Way in San Bernardino, in their gang's territory. As he was inside a friend's car taking a break from the game, he heard gunfire and later learned that two of his fellow gang members had been shot. He believed Seven Tray, a local rival gang, was responsible for the shooting.
Later that afternoon, Sloan went to a birthday party on Dover Drive with several other East-side IE Crips. After spending a couple of hours at the party, he left with five other gang members to visit an apartment near the intersection of 9th and G streets, which was Seven Tray territory. The group took two cars. Sloan, Cobbs, and a gang member named Kevin Winship rode together in Cobbs's black Chevy Impala. Cornell, Haynes, and a member who goes by the name "Little Woodie," took Cornell's red Nissan. Cornell, Haynes, and Cobbs went inside the apartment to talk to some women, while the rest of the group waited outside in the cars. According to Sloan, they were inside the apartment for about 45 minutes. Around 8:00 p.m. they emerged and told the others they'd "be right back." Sloan said he saw Cornell, Haynes, and Little Woodie walk off, turn a corner, and disappear from view. Moments later, Sloan heard several gunshots. When the three men returned, they said, "We gotta go," and the group caravanned back to the party on Dover Drive. 5
3. The investigation
Less than two hours after the shooting of Sutton, Cook, and Wimbish, police officers responded to a call saying there were multiple people possibly with weapons congregating on Dover Drive. They ended up arresting several of the party attendees (including Sloan, Cornell, and Haynes) and seizing four firearms-a loaded nine-millimeter Beretta handgun from Sloan; a Browning six-millimeter pistol and an expended casing for a .30-06 rifle from Cornell's brother Karlton; a loaded nine-millimeter Taurus handgun on the floorboard of the black Impala, near where Haynes was sitting; and a .45-caliber handgun and a high-capacity magazine in Cornell's Nissan. Sampling at the scene revealed gunshot residue on the hands of Cornell, Haynes, and Sloan.
The police recovered numerous bullet cartridges and fragments from the scene of the shooting at 9th and G streets. Seven of them matched the Taurus handgun found near Haynes in the Impala and 11 matched the handgun found in Cornell's car. Information gathered from cell towers used by Cornell and Haynes between 6:30 p.m. and 10:00 p.m. on August 27 showed a pattern consistent with their phones having traveled from the party on Dover Drive, to the scene of the shooting, then back to the party.
Electronic messages among some of the members of the gang also implicated Cornell and Haynes in the shooting. On the afternoon of August 27, several hours after the early-morning shooting believed to be perpetrated by members of Seven Tray, Cornell messaged Haynes on Facebook, telling him, "We all meeting in the hood," to 6 discuss what had happened. When Haynes replied he didn't know what had happened, Cornell told him to call him as soon as possible. Haynes then messaged Cornell's brother Karlton (also a member of the gang), asking what was up for the day. Karlton responded, "U already kno we doin r shit . . . it could've been anyone of us." Haynes replied, "I keep saying we needs do our shit during the day." Later, Cornell texted Haynes asking where he was because "it's going down right now," and Haynes said he was trying to get a ride. Cornell said he would try to pick him up and later sent another text saying he was on his way to get him.
4. Gang evidence
Detective Darren Sims, a gang investigator for the San Bernardino Police Department Specialized Enforcement Team, testified as an expert on the East-side IE Crips. He said East-side IE Crips is a "home-grown" or local gang formed about 25 years ago in San Bernardino. They have approximately 50 known or documented members. Their primary activities are weapons possession, assault, sale of narcotics, vandalism, vehicle theft, and murder.
Detective Sims discussed four predicate offenses committed by East-side IE Crips members. Bryson Hervey was convicted of vandalism over $400, with a gang enhancement, in 2012. Grady McDuffie was convicted of vehicle theft and being a felon in possession of a firearm in 2014. And Anthony Johnson was convicted of being a felon in possession of a firearm, with a gang enhancement, in 2014. Detective Sims said he was familiar with the circumstances of each conviction and had personal knowledge that all 7 Hervey, McDuffie, and Johnson were East-side IE Crips members when they committed the crimes. The prosecution introduced certified court packets for each offense.
Detective Sims said Haynes, Cornell and his brother Karlton, Winship, Cobbs, and Sloan are all active members of the gang. Seven Tray is one of the gang's rivals, and the victims were in Seven Tray territory when they were shot. Detective Sims explained that East-side IE Crips gained a reputational benefit from its members opening fire in Seven Tray territory. The shooters' actions sent the message to Seven Tray and the community that East-side IE Crips will swiftly and brazenly respond to attacks and are even willing to kill to maintain their reputation for power.
B. Defense Case
Both defendants testified in their own defense. Cornell denied being a member of the East-side IE Crips and claimed not to know anything about either of the shootings on August 27. To explain the gunshot residue on his hands, he said he had fired his brother Karlton's rifle into the air earlier that evening as they drove through an uninhabited part of town. He said he was at Dover Drive when the police arrived only because he was looking for his brother and had heard he was there.
Haynes admitted membership in the East-side IE Crips and admitted he'd gone with Sloan to the women's apartment near 9th and G streets that night, but he denied having anything to do with the shooting. He said he and Sloan had ridden in Cobbs's Impala. When they got to the apartment, Sloan got out, armed with a gun. He was joined by three others from another car, and they all walked in the same direction. Once they 8 were out of view, Haynes heard about 12 gunshots, then Sloan's group ran back to the cars and they all left. When they returned to the party on Dover Drive, Sloan reloaded his gun and put it on Cobbs's center console. Haynes said he moved the gun underneath his seat when the police arrived in an attempt to hide it.
On cross-examination, Haynes admitted having deleted all of his Facebook messages with Cornell from the day of the shooting but couldn't remember why he had done so.
C. Verdict and Sentencing
The jury convicted defendants of one count of murder and two counts of attempted murder. (Pen. Code, §§ 187, subd. (a) & 664, unlabeled statutory citations refer to this code.) For all three counts, the jury found that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(1)(C), (b)(5)); that both defendants personally used and personally discharged a firearm (§§ 12022.5, subd. (b), 12022.53, subd. (c)); and that a principal in a gang-related offense personally discharged a firearm resulting in death or great bodily injury (§ 12022.53, subds. (d) & (e)(1)). In a bifurcated bench trial, the judge found Haynes had suffered a prior strike conviction. (§ 667, subds. (b)-(i).) As noted, Cornell and Haynes received total prison sentences of 114 years to life and 153 years to life, respectively. 9
II
ANALYSIS
A. Cornell's Suppression Motion
1. Additional background
Prior to trial, Cornell filed a motion to suppress the evidence seized from his Nissan on the ground the police lacked a warrant to search his car. The judge held a hearing at which the searching officer, Detective Brian Olvera, testified. Detective Olvera said dispatch had received a report that there were "several subjects" on Dover Drive "possibly with weapons." The first thing he noticed as he approached the area was a man standing in the street directly east of Dover, looking up and down as if on lookout. Then he saw a group of people congregated on Dover Drive and turned on his patrol car's overhead lights to get a better view. There were several people standing near two parked cars (later determined to be Cobbs's Impala and Cornell's Nissan). One person was holding an open container of alcohol, and another (later identified as Sloan) ducked down behind one of the cars in an attempt to hide.
Detective Olvera got out of his car with his gun drawn and approached the group. He saw Sloan pull a handgun (later determined to be loaded) from his waistband and toss it to the ground, while the others started to walk away. Detective Olvera identified himself and asked them to stop, at which point additional officers began to arrive and help him detain the members of the group and pat them down for weapons. 10
Detective Olvera searched the Impala first and found a handgun. He then moved on to the Nissan where a woman (later identified as Cornell's girlfriend) was crouched down in the front passenger seat seemingly trying to hide. She told Detective Olvera the car belonged to Cornell and complied when he asked her to step out. Through the open passenger door of the car, Detective Olvera saw a high capacity magazine sitting in a cupholder in the center console.
At about that point, Cornell's mother arrived and asked Detective Olvera what was going on. She lived around the corner, and someone had just informed her the police had stopped her sons. She told Detective Olvera she was the registered owner of the car and gave him permission to search it. In the enclosed compartment of the center console, Detective Olvera found a loaded handgun that matched the caliber of the magazine in the cupholder.
During argument on his suppression motion, Cornell conceded the plain-view doctrine justified seizing the magazine but argued Detective Olvera needed a warrant to search the remainder of the car. The trial judge denied the motion, concluding the magazine in plain view justified the warrantless search of the center compartment to protect Detective Olvera's and the other officers' immediate safety. 11
"The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity." (Illinois v. Andreas (1983) 463 U.S. 765, 771; People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1012 ["the law is clear that any incriminating evidence observed in plain view may be seized"].)
2. Discussion
Cornell argues the suppression ruling was erroneous because the magazine provided no basis to search the rest of the car. He also challenges, for the first time, his detention before the search, arguing all the evidence obtained afterward (the gun, magazine, gunshot residue on hands, and Sloan's statements before and during trial) should have been suppressed.
As an initial matter, Cornell has forfeited these additional challenges by failing to raise them during trial. "[W]hen defendants move to suppress evidence under section 1538.5, they must inform the prosecution and the court of the specific basis for their motion," and if they fail do so, "cannot raise the issue on appeal." (People v. Williams (1999) 20 Cal.4th 119, 129, 136.) Cornell's motion to suppress and his counsel's argument at the hearing were limited to the search of his car and the gun found inside. He never argued his detention was unlawful, never contested the gunshot residue obtained during his arrest or Sloan's statements to the police, and he specifically forfeited his challenge to the magazine by conceding it was lawfully seized as plain-view evidence. (Id. at p. 136 "[T]he scope of issues upon review must be limited to those raised during argument . . . . This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party's contentions"].)
But even if he hadn't forfeited a challenge to his initial detention, we would find his claim lacks merit. An officer has the right to stop and temporarily detain a person for 12 investigation upon a "reasonable suspicion" they were or are involved in criminal activity. (Michigan v. Summers (1981) 452 U.S. 692, 699, fn. 9; Terry v. Ohio (1968) 392 U.S. 1, 37.) The report of multiple people possibly armed with weapons, the presence of what appeared to be a lookout, Sloan tossing a gun to the ground, and the group's attempt to disperse upon Detective Olvera's arrival would lead any officer in his position to suspect these people were in the process of committing, or had just committed, a crime and might still be armed. His decision to order the members of the group to stop walking away and to pat them down for weapons was therefore reasonable under the Fourth Amendment.
We turn now to the only challenge Cornell did make during trial-that the search of his car's center compartment and the seizure of the gun found inside were unlawful. The standard of review on a motion to suppress is well established. We view the record in the light most favorable to the ruling and defer to the trial judge's factual findings, express or implied, when supported by substantial evidence, but we exercise our independent judgment in determining whether, on that record, the search or seizure was reasonable under the Fourth Amendment. (People v. Brown (2015) 61 Cal.4th 968, 975.) We may uphold the suppression ruling for any reason supported by the facts and law, regardless of the trial judge's reasoning. (See, e.g., People v. Superior Court (Chapman), supra, 204 Cal.App.4th at p. 1011 [like other areas of appellate review, our review of a suppression ruling "is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling"].) 13
We conclude the record provides ample support for the trial judge's determination that the warrantless search of the center console compartment of Cornell's car did not violate the Fourth Amendment. It is well established "the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief . . . the suspect is dangerous and . . . may gain immediate control of weapons." (Michigan v. Long (1983) 463 U.S. 1032, 1049.) In People v. Lafitte (1989) 211 Cal.App.3d 1429 (Lafitte), the court denied the defendant's motion to suppress a gun the police found in a trash bag in his car after stopping him for driving with a broken headlight. The court concluded the warrantless search was justified by safety concerns because the officers conducted it only after seeing a knife in plain view in the defendant's open glove box and because the defendant was near his car and could potentially gain access to it. (Id. at p. 1431.) Similarly, in People v. Lomax (2010) 49 Cal.4th 530, our Supreme Court upheld the seizure of a "semiautomatic handgun wedged in the front between the driver's seat and the center console" based on the plain-view doctrine and officer safety concerns. (Id. at p. 563.) As in Lafitte, the officers noticed a weapon in plain view in the defendant's vehicle after pulling him over for a traffic violation-he'd made an illegal lane change. (Lomax, at p. 541.) The court concluded that as soon as the officers saw the "semiautomatic handgun sticking out of the map holder pocket," they were "justified in seizing the gun [in plain view] and searching for additional weapons." (Id. at pp. 563-564, italics added.) 14
Our case provides an even stronger basis for an additional weapons search than Lafitte and Lomax. In those cases, the safety risk arose from the sole fact that the defendants had weapons in plain view (and therefore accessible) inside their cars. Aside from the presence of the weapons, nothing else about the defendants was suspicious, they had been stopped for minor traffic violations. Here, in contrast, Detective Olvera was responding to what was already a potentially dangerous situation-a group of people armed with multiple weapons at night. The risk of danger became more apparent when he arrived on the scene and found two guns, the one Sloan tossed to the ground and the one in Cobbs's car.
In challenging the suppression ruling, Cornell attacks individual aspects of Detective Olvera's testimony. He argues the report of "subjects in the area possibly with weapons" was too vague to supply a reasonable suspicion of criminal activity because it didn't specify what kind of weapons and in what manner they were being used. He also points out Detective Olvera never testified that anyone in the group had made any "threatening actions" in his presence, nor did he say he viewed Cornell's girlfriend as a threat when he asked her to step out of the car. Finally, he argues that at the time of the search, it was not illegal under California law to possess a high capacity magazine, and thus there was no reason to search the rest of his car for additional weapons.
These arguments miss the point. In any Fourth Amendment inquiry, the focus is on the totality of the circumstances, not on each individual circumstance, as if it stood in isolation. (Lafitte, supra, 211 Cal.App.3d at p. 1433.) And here, when we consider all of 15 the circumstances known to Detective Olvera when he saw the magazine in Cornell's car, we have no trouble concluding his actions were reasonable under the Fourth Amendment. He and his fellow officers had come upon a large group of people at night, and they knew at least one person had been armed with a gun and another person had a gun inside their car. The possibility that they had not yet discovered all of the weapons present, and the risk one could be used against them, cannot be overstated.
Cornell's focus on whether or not he could lawfully possess the ammunition is at odds with long-established Fourth Amendment jurisprudence. In Michigan v. Long, the United States Supreme Court "expressly rejected the view that the validity of a Terry search depends on whether the weapon is possessed in accordance with state law." (Michigan v. Long, supra, 463 U.S. at p. 1052, fn. 16.) Similarly, in Lafitte, the court rejected the defendant's claim that the seizure of the knife in his car was unlawful because it was not illegal to possess a knife. Legal or not, a knife can still be used to inflict harm, and the same is obviously true of guns. The legality of the weapon is not the relevant issue, rather it is the risk to the officers under the circumstances that determines whether their actions were reasonable under the Fourth Amendment. On this record, we conclude Cornell's constitutional rights were not violated and thus the trial judge properly denied the suppression motion. 16
While this appeal was pending, Cornell filed a habeas petition arguing his trial counsel rendered ineffective assistance by failing to object to his detention as unlawful and by conceding the plain-view doctrine applied to the seizure of the magazine and gun. Because we have considered the substance of his challenges and found them meritless, we conclude he was not deprived of his right to effective assistance of counsel and, in a separate order filed concurrently with this opinion, deny his petition.
B. Haynes's Motion for Mistrial
Next, Haynes argues the trial judge erroneously denied his motion for mistrial. We conclude this argument lacks merit.
1. Additional background
On cross-examination, the prosecutor showed Haynes two photographs of the same person and asked if he knew him. Haynes identified the person as "like my step brother" and acknowledged he had been coming to court and watching the trial. The prosecutor then asked Haynes if his stepbrother had come to court on the two days Sloan had testified.
At that point, and at defense counsel's request, the parties had a sidebar conference with the judge about this line of questioning. Defense counsel expressed concern that the prosecution was about to make an improper accusation that his client had orchestrated an attempt to intimidate Sloan. The judge said he had noticed the stepbrother's presence in court and was also concerned by the fact he had sat in the front row, and directly in front of the witness stand, only on the days Sloan had testified. Defense counsel argued the stepbrother's behavior could not be attributed to his client, and the judge explained that what was relevant about the stepbrother's behavior was not its cause but the effect it might have on Sloan's testimony and credibility.
Defense counsel disagreed and characterized the prosecutor's questions as "a flat-out accusation that my client is trying to intimidate witnesses." He warned that if the prosecutor continued with the line of questioning he would move for a mistrial. The 17 judge responded that the admission of evidence about the stepbrother's behavior in court did not constitute grounds for a mistrial and commented that the prosecutor was "on very solid footing" in bringing it to the jury's attention.
When the prosecutor resumed his cross-examination of Haynes, the following exchange took place:
Q. "What's his name?
A. "Duane.
Q. "What's his full name?
A. "Duane Robinson.
Q. "What does he go by?
A. "Duane.
Q. "Does he go by D Moola?
A. "Not that I know of.
Q. "Isn't that his Facebook name?
A. "I haven't been out in two years so I don't know.
Q. "Did you notice that when Mr. Sloan was testifying he was sitting here in the front row on this side of the courtroom directly in front of Mr. Sloan?
A. "He's been here since before I've been in trial. He comes to almost every court date.
Q. "But during trial, he specifically came when Mr. Sloan was here, right?
A. "He came to every court date besides today. 18
Q. "So he's been here every day except today?
A. "Yes.
Q. "Did he sit in the front row except for that day?
A. "Yes.
Q. "So that's where you saw him. You saw him here every day?
A. "Yes.
Q. "And he just came here to give you support, right?
A. "Yes.
Q. "Thank you. No further questions."
At the end of the defense case, the prosecutor called Detective Cunningham to rebut Haynes's testimony about Duane's presence in the courtroom. Before the detective took the stand, the judge gave the jury the following limiting instruction: "Okay. Folks, one of the things Detective Cunningham is going to talk about is some people that appeared in the audience one day when Mr. Sloan was testifying. This evidence is going to be offered for a limited purpose as to the effect on Mr. Sloan only, not for you to draw any other conclusions from."
The prosecutor and Detective Cunningham then had the following exchange about Duane:
Q. "I'm going to show you what's been marked Exhibit 132. [⁋] Do you recognize this image?
A. "Yes. 19
Q. "Where did that come from?
A. "That came from [Mr.] Haynes's Facebook account.
Q. "And we showed another image, as well. Are these the only two images of this person on Mr. Haynes's account?
A. "No.
Q. "Are these the only two images with this person with guns on Mr. Haynes's account?
A. "No.
Q. "Have you ever seen this person in person before?
A. "Yes.
Q. "When was that?
A. "I don't specifically remember the dates, but it was during trial when Mr. Sloan was testifying.
Q. "Where did you see this person?
A. "Sitting in the courtroom in the front row behind the glass.
Q. "And you are pointing to your right-hand side?
A. "Yes, I'm sorry.
Q. "So that would be the side the witness stand is on?
A. "Correct." 20
As soon as both sides rested, Haynes's counsel made a motion for mistrial based on his earlier objection to the prejudicial nature of the evidence about Duane. Citing the reasons given during the sidebar conference, the judge denied the motion.
2. Discussion
Haynes challenges that ruling, arguing the prosecutor committed misconduct by soliciting speculative inferences about his role in Duane's presence at trial, essentially insinuating he had orchestrated the intimidation. He argues the prosecutor's conduct violated his state and federal constitutional rights to a fair trial.
As a threshold matter, "'[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.'" (People v. Pearson (2013) 56 Cal.4th 393, 426, quoting People v. Stanley (2006) 39 Cal.4th 913, 952; accord, People v. Fuiava (2012) 53 Cal.4th 622, 679.) At no point during the sidebar conference or his oral motion for mistrial after the close of evidence did Haynes's trial counsel argue that the prosecutor had committed misconduct. Instead, his initial objections were based on the admission of what he argued was overly prejudicial evidence about Duane. But even if we assume Haynes preserved a claim of misconduct by objecting to the prejudicial nature of the prosecutor's line of questioning, we conclude the claim fails on its merits because the evidence elicited by the prosecutor's questions was not overly prejudicial. (See People v. Foster (2010) 50 Cal.4th 1301, 1350 [introducing admissible evidence cannot constitute misconduct].) 21
A trial judge should grant a motion for mistrial when the defendant shows an incident during the trial prejudiced his case in a way that cannot be cured through jury instruction. (People v. Cox (2003) 30 Cal.4th 916, 953.) '"Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions."' (Ibid.) Given that considerable discretion, our review on appeal is limited to whether the judge's ruling is arbitrary or unreasonable. (People v. Williams (1997) 16 Cal.4th 153, 251.)
On this record, we conclude the judge's refusal to grant a mistrial falls well within the bounds of reason. Sloan was a crucial witness in the prosecution's case, and as a result, a key strategy for the defense was to attack his credibility. Sloan was the prosecution's only witness who was both a member of defendants' gang and had personal knowledge of the events immediately preceding the shooting. His testimony that defendants had been the ones to walk around the corner towards the intersection of 9th and G streets immediately before gunshots were fired was important circumstantial evidence of defendants' guilt, which the defense tried to undercut. On cross-examination, defense counsel implied through their questions that Sloan had a motive to shift the blame to their clients and minimize his involvement in the shooting, and Haynes testified in his direct examination that Sloan, not he or Cornell, had been the one to walk around the corner just before the shooting. Given Sloan's importance at trial and the fact defendants put his credibility at issue, any evidence that had a tendency to bolster his 22 believability with the jury was highly relevant to the prosecution's case. (See Evid. Code, § 210 [evidence relevant to the credibility of a witness is admissible].)
The evidence about Duane's presence at trial had the tendency to do just that. Sloan was a longtime member of the gang who had joined at a very young age. He admitted he didn't want to be testifying. It wasn't just that he didn't want his fellow gang members to get in trouble, he also knew that members who snitched or gave information about the gang to the authorities were often punished by their gang. Based on this, the jury could reasonably infer the presence of Haynes's stepbrother, who appeared with guns in photographs on Haynes's Facebook page, might tend to make Sloan nervous or afraid. The jury could also reasonably infer Sloan was telling the truth when he identified defendants as the ones who had walked around the corner. Indeed, Duane's presence had the tendency to explain the vague and sometimes noncommittal nature of Sloan's testimony. Sloan said he saw defendants head towards 9th and G streets and heard gunshots shortly after they disappeared from view, but he made sure to emphasize they could have been going to the store, and he refused to admit their potential involvement in the shooting. In other words, the nature of his testimony was such that the jury could infer he was trying to walk a line, providing enough information to uphold his end of the plea agreement to testify truthfully while simultaneously endeavoring to protect both defendants and himself. "Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and therefore is admissible. An explanation of the basis for the witness's fear is likewise relevant to her credibility and is 23 well within the discretion of the trial court [to admit]." (People v. Sandoval (2015) 62 Cal.4th 394, 429-430 (Sandoval), cleaned up.)
Haynes argues the incurable prejudice requiring a mistrial came from the prosecutor eliciting the entirely speculative inference that he had orchestrated the intimidating conduct. But the prosecutor did no such thing. All of his questions about Duane were focused on whether he was present during trial, where he had been sitting, and whether he was a member of the East-side IE Crips. At no point did the prosecutor ask Haynes whether he had talked to Duane or played any role in his presence at trial, and the prosecutor made no insinuations along those lines during argument. And, crucially, the judge specifically directed the jury not to draw such a conclusion on their own. (See Sandoval, supra, 62 Cal.4th at p. 430 [limiting instruction was sufficient to cure any potential prejudice resulting from similar evidence of witness intimidation]; see also ibid. ['"It is not necessarily the source of the threat-but its existence-that is relevant to the witness's credibility"'].) We presume the jury followed that instruction, and as a result, conclude the trial judge properly determined Haynes's case had not been incurably harmed by the evidence.
C. Haynes's Prior Strike
Under section 667, a prior juvenile adjudication constitutes a strike if the following conditions are met: "(A) The juvenile was 16 years of age or older at the time the juvenile committed the prior offense. (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) 24 as a serious or violent felony. (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code." (§ 667, subd. (d)(3).)
Before sentencing, the judge found Haynes had suffered a 2012 juvenile adjudication for robbery (committed when he was 16 years old) and that it constituted a prior "strike" conviction within the meaning of the Three Strikes law. (§ 667, subds. (b)-(i).) To preserve the issue for future consideration, Haynes argues the use of his juvenile adjudication as a prior strike violated his federal constitutional rights to due process and a jury trial because he didn't have the right to a jury trial in the juvenile proceeding. But he also acknowledges that the California Supreme Court rejected this argument in People v. Nguyen (2009) 46 Cal.4th 1007, 1022-1028, which is binding authority on appellate courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Following Nguyen, we conclude the trial judge did not violate Haynes's constitutional rights in treating his 2012 robbery adjudication as a strike.
D. Challenges to the Gang Evidence
In their opening briefs, defendants argued the record contains insufficient evidence to support the gang enhancements (§ 186.22, subd. (b)) because the prosecution failed to prove East-side IE Crips' primary activities include committing any of the predicate offenses listed in section 186.22, subdivision (e). After we issued a tentative opinion 25 rejecting this claim and concluding the enhancements are sufficiently supported by the record, the Legislature enacted Assembly Bill 333, which increased the requirements for proving gang enhancements. In supplemental briefing, defendants argue, and the People concede, that the trial evidence is insufficient under the new law and we should remand the matter to give the People an opportunity to retry the gang enhancements alleged as to all counts under section 186.22 as amended by Assembly Bill 333. Because defendants' challenge to the sufficiency of the evidence under the former version of section 186.22 lacks merit (as we discuss in part II.D.1 below), we agree that remand will not offend the principle of double jeopardy and is the appropriate remedy under these circumstances.
1. Sufficiency of the evidence under former section 186.22
Section 186.22 provides for enhanced punishment when a defendant is convicted of an enumerated felony committed "for the benefit of, at the direction of, or in association with a criminal street gang." (§ 186.22, subd. (b)(1).) To support a gang enhancement under this statute, the People must prove the existence of a criminal street gang whose members engage in "a pattern of criminal activity." (§ 186.22, subds. (e)(1), (f); People v. Sengpadychith (2001) 26 Cal.4th 316, 322-323 (Sengpadychith).) This means, among other things, the People must prove the group's "primary activities" include committing one or more of the crimes listed in section 186.22, subdivision (e), which-at the time of defendants' trial-included assault with a deadly weapon or force likely to produce great bodily injury, murder, vandalism, vehicle theft, narcotics sales, and illegal possession of firearms. (Former § 186.22, subd. (e).) At the time of 26 defendants' trial, section 186.22 also permitted the jury to consider the currently charged offenses when considering whether the gang's primary activities including committing qualifying offenses. (People v. Duran (2002) 97 Cal.App.4th 1448, 1465 (Duran).)
The primary activities of a criminal street gang are a proper subject for expert opinion. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1005.) "An expert may generally base his opinion on any 'matter' known to him, including hearsay not otherwise admissible, which may 'reasonably . . . be relied upon' for that purpose." (People v. Montiel (1993) 5 Cal.4th 877, 918.) Thus, "[t]he testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities." (Duran, supra, 97 Cal.App.4th at p. 1465; see also Sengpadychith, supra, 26 Cal.4th at p. 324.) The reason for the primary activity requirement is to distinguish between criminal organizations and lawful organizations whose members also happen to commit crimes. (Sengpadychith, at pp. 323-324 ["The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations"].)
When considering the sufficiency of the evidence to support a jury finding, we review the record in the light most favorable to the judgment, drawing all inferences in favor of the verdict, and we do not reassess the credibility of witnesses. (In re Alexander L. (2007) 149 Cal.App.4th 605, 610 (Alexander L.).) 27
On this record, we conclude the evidence was sufficient to establish the primary activities element under the former version of section 186.22. Detective Sims's explanation of his experience with the gang provided a sufficient foundation for his testimony that their primary activities included committing qualifying offenses. He then corroborated that testimony by giving the jury four specific examples of gang members committing qualifying offenses. (See Sengpadychith, supra, 26 Cal.4th at p. 323 [past offenses committed by the gang's members can be probative of the gang's primary activities].) Additionally, the jury could consider the evidence concerning the charged murder and attempted murders as evidence of the gang's primary activities. (Ibid.) While this is no longer permitted under the current version of section 186.22, it was allowed at the time of trial.
Contrary to Cornell's assertion, former section 186.22 did not require the prosecution to present more specific or detailed information about East-side IE Crips' primary activities or introduce a multitude of discrete incidents to prove its members consistently and repeatedly committed enumerated offenses. Detective Sims told the jury he had been investigating the East-side IE Crips for years, obtaining information from traffic stops and arrests, service calls in the community, informal field contacts with members and their families, reviewing social media accounts, speaking to other law enforcement officers, and reviewing their reports. This was a sufficient foundation for his testimony on the gang's primary activities, as experts may rely on information from colleagues and gang members in forming their opinions. (E.g., Sengpadychith, supra, 26 Cal.4th at p. 324; 28 see also Duran, supra, 97 Cal.App.4th at p. 1465 [primary activities evidence held sufficient where an expert familiar with the gang testified their primary activities included committing specific enumerated crimes and gave a specific example of an instance where a person whom the expert believed was a gang member had previously pled guilty to an enumerated offense]; People v. Gardeley (1996) 14 Cal.4th 605, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 [same, where an expert testified that the gang was primarily engaged in the sale of narcotics and witness intimidation and based his opinion on his personal investigations of crimes committed by gang members and information from other law enforcement officers].)
Alexander L. does not dictate a different result. In that case, the only evidence the prosecution presented about the gang's primary activities was its expert's statement that "'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotics violations.'" (Id. at p. 611.) The reviewing court concluded this statement was insufficient to support a gang enhancement because the prosecution failed to elicit testimony addressing when, where, or how the gang expert obtained the information that formed the basis for his opinion. In other words, the expert provided no foundation or factual support to explain how he knew what he claimed he knew-his primary activities testimony lacked a factual predicate. (Alexander L., supra, 149 Cal.App.4th at pp. 611-612.) As a result, it was "impossible to 29 tell" whether his claimed knowledge of the gang's activities was based on highly reliable sources, such as court records of convictions or his own investigations and conversations with gang members, or on "entirely unreliable hearsay." (Id. at p. 612, fn. omitted.)
Detective Sims's testimony did not suffer this infirmity. Unlike the expert in Alexander L., he supported his opinion with an adequate foundation (years of investigation, review of law enforcement reports, and contacts in the field), and he testified about specific instances of enumerated crimes. (Sengpadychith, supra, 26 Cal.4th at pp. 323-324.) Moreover, the prosecution introduced evidence of those specific instances by submitting certified court packets, a form of "highly reliable" evidence that was missing in Alexander L. (Alexander L., supra, 149 Cal.App.4th at p. 612.)
For these reasons, we conclude defendants' claim of insufficient evidence under former section 186.22 fails. But as we explain next, the prosecution's evidence was insufficient under the current version of section 186.22 that became effective while this appeal was pending.
2. Assembly Bill 333 requires remand
Assembly Bill 333 made three significant modifications to section 186.22. It amended the definitions of "criminal street gang" and "pattern of criminal gang activity" and clarified the evidence needed to establish an offense benefits, promotes, furthers or assists a criminal street gang.
Previously, the statute defined a "criminal street gang," as "any ongoing organization, association, or group of three or more persons . . . whose members 30 individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (Former § 186.22, subd. (f), italics added.) Assembly Bill 333 narrowed the definition to "an ongoing, organized association or group of three or more persons . . . whose members collectively engage in, or have engaged in, a pattern of criminal gang activity." (Assem. Bill 333, § 3, revised § 186.22, subd. (f), italics added.) In other words, because the Legislature replaced "individually or collectively engage in . . . a pattern of criminal gang activity" with simply "collectively engage," the statute now requires the People "to prove that two or more gang members committed each predicate offense." (People v. Delgado (Feb. 10, 2022, B299482) ___Cal.App.5th___ [2022 Cal.App. Lexis 104, *3]; accord, People v. Lopez (2021) 73 Cal.App.5th 327, 344-345.)
As for what constitutes a "pattern of criminal gang activity," previously the prosecution needed to prove "only that those associated with the gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another." (People v. Sek (Feb. 1, 2022, B309003) ___Cal.App.5th___ (Sek), citing former § 186.22, subd. (e).) Assembly Bill 333 made several changes to this definition. Now, the predicate offenses must have been committed by two or more "members" of the gang (as opposed to any persons) and must have "commonly benefited a criminal street gang." (§ 186.22, subd. (e)(1), italics added.) The 31 last offense must have occurred within three years of the date of the currently charged offense, and the currently charged offense no longer counts as a predicate offense. (§ 186.22, subd. (e)(1)-(2).) The new law also reduced the number of qualifying offenses that can be used to establish a pattern of criminal gang activity, removing vandalism, looting and a number of fraud-related offenses from the list. (§ 186.22, subd. (e)(1).)
Specifically, the statute defined a "pattern of criminal gang activity" to require proof of two or more predicate offenses enumerated in that subdivision, "provided at least one . . . occurred after the effective date of this chapter and the last . . . occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (Former § 186.22, subd. (e)(1), italics added.)
Finally, and perhaps most notably, Assembly Bill 333 requires the prosecution to prove the benefit the gang derives from the predicate and current offenses is "more than reputational." (Stats. 2021, ch. 699, § 3 [enacting § 186.22, subd. (g)].) New section 186.22, subdivision (g), provides, "As used in this chapter, to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant."
These amendments to section 186.22 apply retroactively to this case because they "redefine, to the benefit of defendants, conduct subject to criminal sanctions," and defendants' judgments were not final when Assembly Bill 333 took effect. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 300-301; see also In re Estrada (1965) 63 Cal.2d 744 [when a change in law reduces the punishment for a crime, defendants with nonfinal 32 judgments are entitled to those "ameliorating benefits"]; People v. Lopez, supra, 73 Cal.App.5th at p. 344 [concluding substantive changes in Assembly Bill 333 apply retroactively because they "increase[] the threshold for conviction of the section 186.22 offense and the imposition of the enhancement"].)
In addition to amending section 186.22, Assembly Bill 333 also adds a new section 1109 to the Penal Code, which requires separate trials for gang-related charges under section 186.22. We need not and do not decide whether section 1109 also operates retroactively.
The parties agree, as do we, that we must reverse the gang enhancements under section 186.22, subdivision (b) as well as the gang-related firearm enhancements because section 12022.53, subdivision (e)(1) incorporates section 186.22, subdivision (d) and requires proof that a principal personally discharged a firearm during the commission of a gang-related offense. (§ 12022.53, subd. (e)(1)(A); People v. Lopez, supra, 73 Cal.App.5th at p. 346 [reversing the gang-related firearm enhancement based on conclusion that "Assembly Bill 333's changes to section 186.22 affect not only the gang enhancement allegations under that statute but [also] other statutes that expressly incorporate provisions of section 186.22"].) At trial, the jurors were permitted to use the current offenses and a prior vandalism conviction to establish a pattern of criminal gang activity, and they were not required to find the pattern offenses benefited East-side IE Crips. Additionally, the prosecution's theory was that the shooting provided the gang with a reputational benefit, which was sufficient under the law at the time but is no longer permitted under amended section 186.22. Because the People did not ask the jury to find at least some of the elements that Assembly Bill 333 requires (and that the prior law did not require) and because the evidence presented at trial was insufficient to satisfy the increased requirements of the new law, reversal is required. 33
The proper remedy for this type of failure of proof-where newly required elements were "never tried" to the jury-is to remand and give the People an opportunity to retry the affected charges. (People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2; see also People v. Eagle (2016) 246 Cal.App.4th 275, 280 ["When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand. [Citation.] Such a retrial is not barred by the double jeopardy clause or ex post facto principles"].)
III
DISPOSITION
We reverse the gang enhancements (§ 186.22, subd. (b)) and firearm enhancements (§ 12022.53, subds. (d) & (e)(1)) on each count for both defendants and remand to the trial court with directions to (1) give the People an opportunity to retry the enhancements under the law as amended by Assembly Bill 333; and (2) if the People elect not to retry defendants, or at the conclusion of retrial, to resentence defendants. In all other respects, we affirm the judgments.
We concur: McKINSTER Acting P. J. MENETREZ, J. 34