Opinion
E065455
10-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JON EDWARD FLORES, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
We deny Flores's petition for rehearing and modify the opinion filed in this matter on October 30, 2017, by adding the following language to the end of part II:
G. Petition for Rehearing
On October 11, 2017, the Governor signed Senate Bill 620, which among other things amends sections 12022.53 and 12022.5 to make the firearm enhancements under those sections discretionary instead of mandatory, effective January 1, 2018. After we issued this opinion, Flores filed a petition for rehearing asking us to assess the effect of these changes in the law. He argues we should remand his case for resentencing to allow the trial court to exercise its discretion to strike any of his firearm enhancements. We deny the petition. Assuming the changes in the law apply to Flores's nonfinal judgment under In re Estrada (1965) 63 Cal.2d 740, remand would serve no purpose as the record demonstrates the trial court "would not, in any event, have exercised its discretion to lessen the sentence." (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez) [remand due to ameliorative change in law not required where trial court's comments at sentencing and sentence itself show trial court would not exercise its discretion to lessen sentence].)
When sentencing Flores, the trial court found there were no mitigating factors to consider and selected the aggravated option at every turn. The court noted Flores's use of a firearm in both incidents—the murder/carjacking and the assault—was particularly egregious because he had actually fired the gun "as opposed to just us[ing it] in a menacing manner." Indeed, the firearm was central to both incidents. Flores fatally shot Johnson in the head to obtain his vehicle and fired several fortunately errant shots at J. Additionally, the court's comments about the heinousness of Flores's crimes make clear it would not have stricken the firearm enhancements if it had discretion to do so. At various points during sentencing, the court described the murder/carjacking as "senseless," "serious," and involving "a high degree of cruelty and callousness." It found especially vicious the fact Flores had chosen a "particularly vulnerable" victim who was briefly stepping out of his home on Easter Sunday. As a result, we conclude "[u]nder the circumstances, no purpose would be served in remanding for reconsideration." (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) We emphasize, however, that the decision to forgo remand should apply only in those extreme cases where the record establishes it would be unreasonable to mitigate the defendant's sentence. Because that is the case here, we do not see how remand could serve any purpose but to waste judicial resources.
Except for this modification, which does not affect the judgment, the opinion remains unchanged.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1101362) OPINION APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed as modified. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jon Edward Flores of first degree murder, carjacking, active gang participation, and assault with a firearm, and found true several attending allegations, including that the offenses were committed for the benefit of a gang and that Flores had personally and intentionally discharged a firearm causing death. After finding Flores suffered two prior strike convictions, the trial court sentenced him to 143 years to life in prison.
Flores makes the following claims of reversible trial court error on appeal: (1) failure to instruct on second degree murder as a lesser included offense of felony murder; (2) failure to provide an accomplice cautionary instruction for his ex-girlfriend's testimony and text messages; (3) failure to provide a clarifying instruction to define the offense of active gang participation; (4) improper imposition of restitution and parole revocation fines based on judicially determined facts in violation of the principles set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); and (5) improper imposition of gang enhancements under Penal Code section 186.22, subdivision (b)(1)(A). We conclude each of Flores's arguments lacks merit, except for his challenge to the gang enhancements. The People concede the 15-year minimum parole eligibility requirement found in Penal Code section 186.22, subdivision (b)(5) applies to his offenses, to the exclusion of gang enhancements, and we agree. We will therefore modify the sentence to replace each four-year gang enhancement with a 15-year minimum term for parole eligibility, and affirm the judgment in all other respects.
Unlabeled statutory citations refer to the Penal Code.
I
FACTUAL BACKGROUND
At trial, the prosecution presented evidence that Flores, upset his fellow Black Angels gang members had been inactive while he was in prison, set out on a crime spree on the day of his release from prison to get the gang up and running again. In one evening, Flores carjacked and murdered Gregory Johnson and fired several shots at J., who was trying to recover a bicycle Flores had stolen from his friend. What follows is a summary of the pertinent witness testimony from trial.
A. Flores Attends a Black Angels Meeting and Visits His Ex-girlfriend
Flores got out of prison on Easter Sunday, April 24, 2011 at 8:30 a.m. That same afternoon, he attended a meeting of Black Angels gang members at a park in Ontario. Flores—known also as "Blackbird"—was upset because the gang had been "very inactive" while he was in prison. He told his fellow gang members, "I'll show you all how it's done."
Around 5:00 p.m., Flores and fellow Black Angels member, A., went to the Ontario home of Flores's ex-girlfriend. The ex-girlfriend testified Flores told her during his visit that he "intended to do something that could get him in trouble and he would go to prison for life this time." Eventually, Flores and A. decided to leave her house. At trial, both she and her brother-in-law testified Flores borrowed her cell phone and spent about 40 minutes calling various people trying to secure a ride. Unsuccessful, Flores and A. set out on foot. As they left, Flores yelled, "South side, south side." He wore a bandanna around his neck, a white t-shirt, checkered shorts, and white tennis shoes.
B. The Carjacking and Murder of Gregory Johnson
Fifty-nine-year-old Gregory Johnson was the victim of a carjacking and murder that occurred near Flores's ex-girlfriend's house around 6:00 p.m. The police found Johnson's body in an alley near his home. He had died of a gunshot wound to his forehead, the trajectory of which indicated he had been shot by someone outside the car as he sat in the driver's seat. Johnson also had a blunt force injury to his forehead and a skull fracture above his right ear consistent with having been hit with the butt of a gun. There were drag marks near his body and injuries on his buttocks consistent with having been dragged along the ground.
Two witnesses testified they had been smoking in an alley when they saw an SUV drive up and park around 7:00 p.m. Two heavily tattooed Hispanic males wearing white t-shirts, plaid shorts, and bandanas covering half their faces got out of the SUV. One of the men was bald and had a tattoo on his face. The witnesses saw them throw what appeared to be a set of car keys into a dumpster, then hop a nearby wall and walk off. After that, someone else came by and took whatever they had thrown inside the dumpster. About 45 minutes later, the police arrived at the scene and identified the SUV as Johnson's. The alley where the SUV had been abandoned was about 3.7 miles from where the police had found Johnson's body. Inside the vehicle, police found blood on the front passenger floor mat, on a CD, and on a box of tissues.
Flores has numerous Black Angels tattoos on his body, including "Onterio" on the top of his forehead, "Black" over his right eyebrow, and an angel over his left.
C. The Assault of J.
S., a junior member of the Black Angels, testified he met Flores for the first time at a house in Ontario that evening. Flores had been in prison for the entirety of S.'s gang membership, but S. had heard of him and knew he was higher up in the gang's hierarchy. S. said Flores wore a bandana around his neck and was wearing a black Anaheim Angel's baseball hat, a white t-shirt, checkered shorts, and brand new white shoes, which, he noticed, had a drop of what appeared to be blood on them. He heard Flores boast, "I wet him like Willie," which meant Flores had shot someone. Flores was smirking and laughing and seemed happy about it, whereas A. seemed nervous and scared. S. heard Flores use the "wet him like Willie" phrase six to eight times that evening.
After S. left the house with Flores and another gang member on foot, they encountered a junior member of the Black Angels and his girlfriend, who were riding bicycles. Flores demanded they give him the bikes and, though they appeared not to want to, they complied. Flores then went to a woman's house, looking for her daughter. The woman told police Flores arrived around 8:00 p.m. on a bicycle and was wearing checkered shorts and a bandana around his head.
The junior Black Angels member told the police that about an hour after Flores had taken the bikes, he, his girlfriend, and their friend J. set out to get them back. They found Flores in front of the woman's house talking to her daughter. The girlfriend asked Flores for her bicycle and Flores told her to "shut the fuck up."
In a later interview, J. told the police what had happened next. He said he walked up to Flores to ask for the bike, but before he could say anything, Flores punched him and he fell to the ground. He remembered being hit a few more times before standing up and starting to walk away, at which point Flores began shooting at him. S. saw the altercation and said Flores shot at J. three or four times. He said J. had run down the street in a zigzag to avoid being hit. Another woman who lived nearby told police someone had shouted "Black Angels" after the shots rang out.
D. The Ex-girlfriend's Text Messages
Around 8:30 p.m., Flores returned to his ex-girlfriend's house with A. and another Black Angels member. Flores was wearing the same clothes he had on earlier and was dancing around and seemed drunk. The ex-girlfriend told Flores to leave because something had happened down the street and there were a lot of police in the area. Flores said, "Okay. I'm gone," and left.
At 9:13 p.m., the ex-girlfriend sent a text from her phone that said, "He left his hat here." About 10 minutes later she sent another text saying, "Erase this. He said it was him." About an hour after that she sent the following texts: "All bad" and "I'll explain when you get home. It was all bad."
E. Flores Attends a Second Black Angels Meeting
Later that night or early the next day, Flores went to another Black Angels meeting. He told everyone not to go near "6th and Holmes"—the area where Johnson's body had been found—because "we just let off on somebody" and as a result the area was "hot." One of the members who attended the meeting told police several other members had been carrying guns, including small revolvers, which easily could have been .22- or .25-caliber guns.
F. Flores's Arrest
In May 2011, police arrested Flores while he was in a parked car outside an Ontario residence. Inside the residence, they found a pair of checkered shorts with several papers in one of the pockets, including a Department of Corrections and Rehabilitation document bearing Flores's name, a parole agent's business card, and a note with telephone numbers and the words "Blackbird" and "Black Angels." At the time of his arrest, Flores was wearing a black baseball hat with the letter A on it. Later, during a police interview, when one of the officers asked Flores how he was doing, he responded "I have been fucking up." Flores told the officers the Black Angels had not been very active lately because so many members were incarcerated. He said it was his destiny to become a member of the Black Angels and he had accepted that fate.
G. The Prosecution's Gang Evidence
The prosecution's evidence established Flores was a member of the Black Angels and Flores does not dispute that fact on appeal. Detective Devey, the prosecution's gang expert, testified the Black Angels has over 200 members and operates throughout Ontario. The gang's primary activities include selling narcotics, robberies, thefts, murders, and carjackings. A common Black Angels symbol is the Anaheim Angels emblem (which is a letter A). There are three tiers in the gang: OVS, Junior BA, and BA. In 2009, the incarceration of 60 high ranking Black Angels as a result of a federal RICO indictment created a void in the gang's leadership. Thus, when Flores got out of prison, his fellow members looked to him as a leader.
Detective Devey believed Flores committed the carjacking and murder of Johnson and the assault of J. both for the benefit of, and in association with, the Black Angels. He opined that the crimes benefitted the gang by creating fear of the Black Angels in the community. That fear would discourage people from cooperating with the police and testifying in court, which in turn would allow the gang to continue its criminal operations with impunity. Additionally, Flores had committed all three offenses while with another member of the gang (first A., then S.) and he or someone he was with had yelled "Black Angels" after shooting at J.
H. Verdict and Sentence
The jury convicted Flores of first degree murder (§ 187, subd. (a), count 1); carjacking (§ 215, subd. (a), count 2); active gang participation (§ 186.22, subd. (a), count 3); and assault with a firearm (§ 245, subd. (a), count 4). As to the murder, carjacking, and assault, the jury found a principal had personally used a firearm (§ 12022.53, subd. (b)) and the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). As to the murder and carjacking, the jury found Flores had personally and intentionally discharged a firearm causing death. (§ 12022.53, subd. (d).) As to the assault, it found Flores had personally and intentionally discharged a firearm. (§ 12022.5, subd. (a).) In a bench trial, the court found Flores suffered two prior strike convictions. (§ 1170.12, sub. (a)-(d).)
The court sentenced Flores to a total of 143 years to life in prison, consisting of: 25 years to life for the murder, tripled to 75 years to life under the Three Strikes law, plus a 25-year enhancement for discharging a firearm causing death, plus a four-year gang enhancement; and 25 years to life for the assault, plus a 10-year enhancement for discharging a firearm, plus a four-year gang enhancement. Under section 654, the court stayed Flores's sentences for carjacking, active gang participation, and the section 12022.53, subdivision (b) firearm enhancements.
II
DISCUSSION
A. The Evidence Does Not Warrant an Instruction on Second Degree Murder
Flores contends the trial court erred in failing to instruct the jury on second degree murder as a lesser included offense of felony first degree murder. Given the state of the trial evidence, we conclude the court had no duty to instruct on second degree murder.
Trial courts have a sua sponte duty to instruct on lesser included offenses if there is "substantial evidence" the defendant committed only the lesser offense. (People v. Souza (2012) 54 Cal.4th 90, 116 (Souza) [the evidence must "absolve the defendant of guilt of the greater offense but not of the lesser"].) Substantial evidence does not mean minimal or speculative evidence—it is not "'any evidence, no matter how weak.'" (People v. Breverman (1998) 19 Cal.4th 142, 162.) To invoke the court's duty to instruct, there must be "evidence from which a reasonable jury could conclude 'that the lesser offense, but not the greater, was committed.'" (People v. Banks (2014) 59 Cal.4th 1113, 1161, overruled on another point in People v. Scott (2015) 61 Cal.4th 363.)
The parties agree second degree murder is a lesser included offense of first degree murder in this case because the prosecution pled the murder count in a way that satisfied the accusatory pleading test. As was the case with the felony murder charged in Banks, the prosecution alleged Flores "did unlawfully, and with malice aforethought murder Gregory Peck Johnson, a human being." (Banks, supra, 59 Cal.4th at p. 1160 [accusatory pleading test satisfied where pleading "alleged not merely that defendant killed in the course of a robbery but that he did so willfully and maliciously"].) "On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense." (Souza, supra, 54 Cal.4th at p. 113.)
Here, the prosecution tried Flores exclusively on a felony murder theory, arguing he killed Johnson in the course of a carjacking. Thus, the question we must resolve is whether the trial record contains evidence that would allow "a jury composed of reasonable persons" to conclude Flores killed Johnson for a reason unrelated to the theft of his SUV. (Souza, supra, 54 Cal.4th at p. 116.) Flores argues that two facts from trial form the substantial evidence to support such a theory. He contends his statement at the Black Angels meeting that he would "show" his fellow members "how it's done" and his driving the SUV for only a short time before abandoning it indicates he killed Johnson in a "senseless expression of gang violence" and the vehicle theft was merely "an afterthought." We disagree.
When viewed from the standpoint of what is reasonable (not merely conceivable or possible), the undisputed evidence from trial points towards one theory, and one theory only: Flores killed Johnson for his vehicle. Flores's ex-girlfriend testified he spent almost an hour on her phone, trying and failing to line up a ride. The prosecution's forensic evidence indicated Johnson was shot while he was still in the driver's seat and was then dragged out of his vehicle. Thirty to 40 minutes later, Flores was seen abandoning Johnson's SUV in an alley. This all amounts to very strong support for the inference that Flores killed Johnson in the commission of a carjacking.
The fact Flores did not make use of Johnson's SUV for several hours or days does not provide reasonable support for a finding that Flores killed Johnson first and then stole his vehicle only as an afterthought. More likely inferences are that Flores had reached his destination, had no more use for the vehicle, or was worried the police might be starting to look for it. Moreover, Flores's theory asks us to ignore the testimony of two witnesses who said he spent the period before killing Johnson looking for a vehicle.
We also reject Flores's argument that by telling his fellow gang members he would "show [them] how it's done," he was declaring an intent to commit a "random shooting" unrelated to vehicle theft. A random act of violence and a carjacking are not mutually exclusive. Flores murdered a complete stranger just because that stranger happened to be in the wrong place at the wrong time when he wanted a ride. That crime is both a felony murder carjacking and a senseless act of gang violence.
Finally, Flores complains that with no eyewitnesses to the shooting, the jury could not really know why he killed Johnson. However, eyewitnesses are not necessary for determining a defendant's guilt. A conviction may be based on circumstantial evidence, and the circumstantial evidence of intent in this case was particularly strong. (E.g., People v. Zaragoza (2016) 1 Cal.5th 21, 44.) Because there is insufficient evidence to support a theory that Flores killed Johnson for a reason unrelated to the carjacking, we conclude the trial court did not have a sua sponte duty to instruct on second degree murder.
B. The Evidence Does Not Warrant an Accomplice Cautionary Instruction
Flores contends the trial court erred by failing to instruct the jury to view his ex-girlfriend's testimony and text messages with caution because the jury could have found she was an accomplice to the murder and carjacking. He further contends that without her testimony and text messages, there is insufficient evidence to support the murder and carjacking convictions.
Section 1111 states: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." A trial court is required to instruct on the principles of accomplice testimony when "there is evidence to permit a jury to find by a preponderance of the evidence the witness was an accomplice." (People v. Hinton (2006) 37 Cal.4th 839, 879.)
"'An accomplice must have "'guilty knowledge and intent with regard to the commission of the crime.'"'" (People v. Houston (2012) 54 Cal.4th 1186, 1224.) An accomplice or aider and abettor must act "'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.'" (Ibid.) In other words, "an aider and abettor of a specific intent crime shares the perpetrator's specific intent when he or she knows of the perpetrator's criminal purpose and aids, promotes, encourages, or instigates the perpetrator with the intent of encouraging or facilitating the commission of the crime." (Ibid.)
At trial, one of the detectives who investigated Johnson's murder testified police had searched the ex-girlfriend's house and found a sawed-off .22-caliber semiautomatic rifle in her attic. Flores argues this is sufficient evidence she aided and abetted him in the murder and carjacking to warrant instructions on cautionary accomplice principles. We do not agree.
There was essentially no evidence linking the rifle in the ex-girlfriend's attic to the bullet that killed Johnson. The ex-girlfriend told her probation officer the gun belonged to her brother-in-law, who had left it in her attic. The prosecution's ballistic expert opined the bullet that killed Johnson was either a .22- or .25-caliber bullet, and believed it was 75 percent more likely the bullet was .22-caliber than .25-caliber. The expert said the bullet could have been fired from a rifle or a revolver. However, he also said the sawed-off semiautomatic rifle in the attic would have been difficult for Flores to conceal in the clothing he was wearing that day, whereas a .22-caliber revolver could easily fit in the pocket of his shorts. He also said the fact no casings were found at the scene could indicate a revolver had been used, not a semiautomatic rifle, because the latter drops shell casings. Additionally, the evidence suggests Flores had access to .22-caliber revolvers. One of the gang members who had attended the Black Angels meeting where Flores bragged about "let[ting] off on somebody" told police he saw "a number" of handguns at the meeting, which he described as "possibly .22s or .25s."
In light of this evidence, the existence of a .22-caliber rifle in Flores's ex-girlfriend's attic and the fact she used to date Flores does not establish it is more likely than not she aided and abetted him in Johnson's murder and carjacking. We therefore conclude the trial court had no duty to caution the jury about her testimony. Additionally, had there been sufficient evidence to warrant a cautionary instruction, the instruction would apply to her testimony only and not to her text messages, as those messages do not contain testimonial statements. (See People v. Williams (1997) 16 Cal.4th 153, 245 [when out-of-court statements are not given under "suspect circumstances"—the most obvious of which is police questioning—they "do not qualify as 'testimony' and hence need not be corroborated under . . . section 1111"].)
Moreover, even if it were error not to give a cautionary instruction (and we hold it was not), the evidence corroborating the ex-girlfriend's testimony and supporting the murder and carjacking convictions was very strong. Her brother-in-law was at her house when Flores and A. arrived, and he corroborated her testimony that Flores spent about 40 minutes calling people to get a ride. Her house was a short distance from Johnson's apartment and the place police found his body. Two eyewitnesses saw a man who matched Flores's description abandon Johnson's SUV about 40 minutes after the shooting. S. noticed Flores had blood on one of his shoes and heard him boast several times that he had killed someone. S. also saw Flores shoot at J., which supports the inference Flores was in possession of the same gun earlier in the evening when Johnson was shot. Flores told his fellow gang members at a meeting after the shooting that he had "let off on somebody." Police found checkered shorts matching the description several witnesses gave of his outfit that evening, as well as the description the two witnesses gave of the men who abandoned Johnson's SUV. And finally, as Flores acknowledges in his opening brief, his ex-girlfriend's text messages saying "He said it was him" and "It was all bad" are "compelling pieces of evidence connecting [him] to the [murder and carjacking]."
C. The Trial Court Was Not Required to Provide a Clarifying Instruction for the Phrase "In Association with a Criminal Street Gang"
The trial court used CALCRIM No. 1401 to instruct the jury on the gang enhancement allegations. "[T]he People must prove that: [¶] 1. The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; [¶] AND [¶] 2. The defendant intended to assist, further, or promote criminal conduct by gang members."
Flores does not argue there was insufficient evidence to support the jury's true findings on the gang allegations. Rather, he contends the court had a sua sponte duty to provide a clarifying instruction on the meaning of the phrase "in association with a criminal street gang." He is incorrect. No case has concluded that phrase carries a technical meaning requiring a clarifying instruction. Flores tries, unsuccessfully, to convince us the California Supreme Court did so in People v. Albillar (2010) 51 Cal.4th 47. However, Albillar involved a challenge to the sufficiency of the evidence supporting the jury's true findings on gang enhancement allegations; the defendants did not raise any instructional issues. At no point in the opinion does the majority provide a unique or technical definition for any part of the gang enhancement allegation, or recognize a sua sponte duty on trial courts to give a clarifying instruction on any part of the allegation. In arguing otherwise, Flores cites to the portion of Justice Werdegar's dissent where she charges the majority with altering the meaning of the words "in association with" by "focusing on gang members as associating with one another, rather than as associating with the gang." (Id. at p. 73 (conc. & dis. opn. of Werdegar, J.).) Views expressed in a dissent do not constitute the court's holdings, and in any event, Justice Werdegar is not arguing that "in association with a criminal street gang" is a technical phrase that warrants a clarifying instruction. We conclude Flores's claim of instructional error lacks merit.
D. The Restitution and Parole Revocation Fines Are Proper
The trial court imposed a $10,000 restitution fine under section 1202.4, subdivision (b) and a $10,000 parole revocation fine under section 1202.45. Flores argues the court violated his constitutional rights to a jury trial and equal protection by fixing the fine amounts based on judicially determined facts. Putting aside Flores's failure to object to the fines when the trial court imposed them, his argument is incorrect on the merits.
Section 1202.4, which governs restitution fines, provides in relevant part: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." (§ 1202.4, subd. (b)-(1).) Section 1202.45 requires the court to impose a parole revocation fine in the same amount of the restitution fine "[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole." (§ 1202.45, subd. (a).) Relying on Apprendi, Flores argues we must reverse the $10,000 restitution and parole revocation fines because there were no jury findings on whether he was able to pay a fine above the statutory minimum.
At the time of Flores's sentencing, an earlier version of section 1202.4 was in effect; however, that version also set $300 as the statutory minimum and was the same as the current version in all other relevant regards. (§ 1202.4, former subd. (b)(1); Stats. 2015, ch. 569, § 15.)
Flores misapprehends Apprendi. In that case, the United States Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490, italics added.) Apprendi's jury submission requirement does not apply in cases like this one, where the trial court imposed a fine within the statutory range. (See, e.g., People v. Kramis (2012) 209 Cal.App.4th 346, 351 [upholding restitution fine and concluding jury submission requirement did not apply because "the trial court exercise[d] its discretion within a statutory range"].)
In an effort to avoid Apprendi and Kramis, Flores argues that the statutory minimum was actually the statutory maximum, because "Penal Code section 1202.4, subdivision (c) requires trial courts to determine an inability to pay in increasing the amount of the restitution fine in excess of the minimum fine." Flores is incorrect. The statutory maximum is what the statute says it is—$10,000—and Flores has mischaracterized the meaning of section 1202.4, subdivision (c). The relevant part of that subdivision states: "The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (§ 1202.4, subd. (c), italics added.) This provision does not require a trial court to consider a defendant's ability to pay, it merely authorizes a court to do so. As it had the discretion to do, the trial court imposed the statutory maximum. We therefore affirm the restitution and parole revocation fines.
E. The Gang Enhancements Are Improper
Flores contends, and the People correctly concede, that the trial court erred in imposing four-year gang enhancements under section 186.22, subdivision (b)(1)(A) on the murder, carjacking, and assault counts, instead of a 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5).
Section 186.22, subdivision (b) sets forth alternative ways to punish defendants who commit crimes for the benefit of a criminal street gang. Section 186.22, subdivision (b)(1) states: "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion. [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
At sentencing, the trial court observed the 10-year enhancement in section 186.22, subdivision (b)(1)(C) likely applied to Flores's offenses, but imposed the four-year enhancement in subdivision (b)(1)(A) out of concern for his due process right to notice because the prosecution had pled the four-year enhancement in the information.
Section 186.22, subdivision (b)(5) provides, in relevant part: "[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." (Italics added.) "This provision establishes a 15-year minimum parole eligibility period, rather than a sentence enhancement for a particular term of years." (People v. Johnson (2003) 109 Cal.App.4th 1230, 1237.) In People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the California Supreme Court concluded that the language of section 186.22 "is plain and its meaning unmistakable." The Legislature intended to exempt all life terms from the gang enhancements and instead impose a 15-year minimum parole eligibility period. (Lopez, at pp. 1006-1007.) In other words, "[i]f the exception applies, a minimum parole eligibility period of 15 years must be imposed, not an additional prison term [listed in section 186.22, subdivision (b)(1)]." (People v. Williams (2014) 227 Cal.App.4th 733, 740 (Williams).)
Here, each of Flores's murder, carjacking, and assault convictions resulted in life terms, and as a result section 186.22, subdivision (b)(5) applies to the exclusion of the four-year enhancement in section 186.22, subdivision (b)(1)(A). We therefore modify the judgment to delete the four-year gang enhancements on the murder, carjacking, and assault counts and to insert the 15-year minimum term for parole eligibility.
For practical purposes, imposing the 15-year minimum parole eligibility term to the counts does not directly increase the time Flores is likely to spend in prison. However, "[t]he jury's true findings on the gang enhancements remain as they are supported by substantial evidence [and] [t]he Board of Parole Hearings may consider these findings when determining defendant's release date." (Williams, supra, 227 Cal.App.4th at p. 745, fn. 11, citing Lopez, supra, 34 Cal.4th at p. 1009 [noting that even where imposition of the minimum parole eligibility date in section 186.22, subdivision (b)(5) does not extend a defendant's minimum parole date "per se," the jury's true findings under section 186.22 may nevertheless affect the defendant's release date].) --------
F. Ineffective Assistance of Counsel
Flores argues that if we find he forfeited any of his instructional or sentencing claims, then his attorney rendered ineffective assistance by failing to object at trial. Because we have decided all of his claims of error on their merits and not on the ground he forfeited them, we need not address his claim of ineffective assistance.
III
DISPOSITION
We modify Flores's sentence by deleting the four-year gang enhancements imposed on the murder, carjacking, and assault counts under section 186.22, subdivision (b)(1)(A) and replacing them with the 15-year minimum term for parole eligibility required by section 186.22, subdivision (b)(5). In all other respects, we affirm the judgment. We direct the trial court to modify the minute order and abstract of judgment to reflect Flores's new sentence and to deliver a certified copy of the modified minute order and abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.