Opinion
F083749
04-07-2023
THE PEOPLE, Plaintiff and Respondent, v. ANDREW ENRIQUE GARCIA, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren K. Indermill and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County, No. 19CR-03485B-RF Jeanne E. Schechter and Ronald W. Hansen, Judges. [*]
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren K. Indermill and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
A jury convicted Andrew Enrique Garcia (appellant) of home invasion robbery (Pen. Code, §§ 211, 213, subd. (a)(1)(A); count 1) and participating in a criminal street gang (§ 186.22, subd. (a); count 2). As to count 1, the jury found true a gang enhancement (§ 186.22, subd. (b)(4)), and a gang-related firearm enhancement (§ 12022.53, subds. (b) &(e)(1)). The trial court sentenced appellant to 15 years to life on count 1, plus 10 years for the gang-related firearm enhancement. On count 2, the trial court imposed the upper term of three years but stayed it pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends his substantive gang offense conviction, gang enhancement finding, and gang-related firearm enhancement finding must be reversed in light of newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1-5). Respondent concedes, and we accept respondent's concession. We reverse the conviction for the substantive gang offense and true findings for the gang enhancement and firearm enhancement, and we remand the matter to give the People the option of retrial.
Appellant also raises the related claim that his home invasion robbery conviction must be reversed for failure to bifurcate the gang allegations pursuant to section 1109, which was added to the Penal Code as part of Assembly Bill No. 333. We conclude any error in failing to bifurcate was harmless. We affirm.
BACKGROUND
I. The Home Invasion Robbery.
Washeda Mitchell lived with her fiance and four children at their home on Beckman Way in Merced. On May 9, 2019, around 7:30 a.m., Mitchell's fiance left to take three of the children to school, leaving her home alone with her then two-year-old son. Right after her fiance left, she walked upstairs to retrieve some medicine, leaving her son downstairs in a highchair. While upstairs, she heard a loud bang and ran back downstairs, and found two men inside of her home. Both men were holding guns. One of the men was holding her son and asked, "[W]here's the money?" The men told her, "[Y]ou know why we're here." They also demanded to know where the "weed" was located.
The man holding Mitchell's son eventually put him down and led Mitchell upstairs. The second man went into the garage. Once upstairs, the man went into Mitchell's closet and took $800 from an envelope. He also took a new computer tablet. He ransacked the upstairs, opening drawers and pushing over mattresses.
The man eventually went back downstairs and met with the second man. They put their hoods up and tightened them around their faces, then exited through the front door. They ran to a newer model white Jeep, which was stopped on Beckman Way slightly to the west of Mitchell's house. Mitchell saw two additional men sitting in the front seats of the Jeep. She could only see a portion of their faces because their hoods were up, but she could tell both were Hispanic. She was also unable to see the license plate.
When the men who had been inside of Mitchell's house reached the Jeep, they both got into the back seats. The Jeep drove away westbound on Beckman Way.
Immediately after the robbery, Mitchell went into her house and called her husband, then called the police. She observed the gate into her backyard was broken. The glass on the sliding glass door that leads into her backyard was shattered. She subsequently discovered that an unspecified amount of marijuana was missing from the garage.
Mitchell had never seen the men prior to the robbery. She was unable to identify them to law enforcement. She testified appellant was not one of the two men who entered her house.
II. Law Enforcement Investigation.
Officers arrived at Mitchell's residence within minutes of the robbery but were unable to locate any suspects or a suspect vehicle. Officers were also unable to locate any nearby video surveillance or any witnesses other than Mitchell.
Given the lack of other leads, Officer Kalvin Haygood of the Merced Police Department authored a "Google geofence warrant." A Google geofence warrant is a warrant for the location data for any wireless electronic device with a Google account, such as a cell phone, located within a certain area and within a certain time frame. In this warrant, Haygood requested location data for any devices in the area around Mitchell's residence around the time of the robbery.
In analyzing the data produced by Google, Haywood discovered a device that moved in a manner consistent with Mitchell's description of the white Jeep used by the robbers. The data showed the device was located just east of Mitchell's residence 30 to 45 minutes prior to the robbery. At the time of the robbery, the device moved west and stopped in front of Mitchell's residence. After the robbery, the device continued to the west, away from Mitchell's residence.
Haygood submitted a search warrant for additional identifying information regarding the account associated with the device. He discovered the device was Christian Esparza's cell phone. Haygood also obtained call detail records, which revealed Esparza's second most frequently called phone number was for appellant's cell phone.
Haygood also submitted a warrant for "GPS location information" for Esparza's cell phone from May 1, 2019, to May 11, 2019. This location data includes numerous location coordinates that are generally accurate to within three meters. The records showed Esparza's cell phone began in Hayward on the evening of May 8, 2019. Around 10:00 p.m., Esparza's cell phone travelled on Interstate 580 toward the Altamont Pass. Esparza's cell phone arrived in Merced on May 9, 2019, around 12:07 a.m., and made its way from State Route 99 to the intersection of Beckman Way and Bancroft Drive, which is just east of Mitchell's residence.
Esparza's cell phone remained near Mitchell's residence until it travelled to a nearby fast food restaurant, arriving at 12:46 a.m. It departed the fast food restaurant at 1:30 a.m. and returned to the intersection of Beckman Way and Bancroft Drive. Esparza's cell phone remained in place until 7:29 a.m., when it travelled toward Mitchell's residence. Around 7:35 a.m., Esparza's cell phone travelled away from Mitchell's residence to State Route 99.
Esparza's cell phone arrived back in Hayward around 10:30 a.m. It stopped first at a location on Cheryl Ann Circle, which was later determined to be appellant's home address. About 45 minutes later, it travelled to an address on Manon Avenue, which was later determined to be Esparza's home address.
Based on the GPS location data, another officer obtained surveillance video from the fast food restaurant Esparza's cell phone travelled to in Merced. The surveillance video shows a white Jeep arrive in the parking lot of the fast food restaurant at 12:46 a.m., consistent with the GPS location data for Esparza's cell phone. The white Jeep then proceeds through the restaurant drive-through. Appellant can be seen sitting in the driver's seat of the Jeep. He is identifiable in the video by his physical appearance, including a distinctive tattoo on his left wrist. A person can also be seen in the front passenger seat, and multiple people in the back seats. The Jeep eventually departs the fast food restaurant parking lot at 1:30 a.m., again consistent with GPS location data.
The license plate number of the Jeep is visible in the surveillance video. A Department of Motor Vehicles records check of the Jeep showed it was registered to appellant at his residence on Cheryl Ann Circle in Hayward. During a search of that residence, officers located Department of Motor Vehicles registration documents for a 2016 Jeep with a license plate number matching the Jeep in the surveillance video.
Appellant and Esparza were arrested in June 2019. Esparza was in possession of the cell phone picked up by the Google geofence warrant and used to track his location on the day of the robbery. Appellant was in possession of an iPhone. Haygood explained that because Google geofence warrants only pick up devices with Google accounts, they often do not detect iPhones.
III. Gang Evidence.
The People presented evidence that appellant and Esparza were active members of South Side Hayward (SSH), which is a criminal street gang affiliated with the Nortenos. This evidence included gang tattoos, contacts with law enforcement, social media postings, and other indicia.
The People's gang expert explained the primary activities of SSH are selling narcotics and committing robberies and burglaries. He specified that robbery is SSH's "crime of choice."
To support his conclusion that SSH engages in a pattern of criminal activity, the gang expert described five predicate offenses committed by SSH gang members. First, he testified appellant was convicted of auto burglary in 2015. Second, he testified Esparza committed carjacking in 2013. Third, he testified that three other SSH members were convicted of various firearm possession offenses in 2018. He offered no opinion on how the predicate offenses benefitted SSH, and there was no evidence any predicate offense was committed by more than one person.
Based on a hypothetical question mirroring the facts of the home invasion robbery, the gang expert opined the offense was committed for the benefit of SSH. He explained that when SSH members commit a robbery, it is a display of power that earns respect for the gang and instills fear in rival gang members and in the community. The gang also benefitted monetarily by taking money and property.
DISCUSSION
I. The Record is Insufficient to Sustain the Substantive Gang Offense, Gang Enhancement, and Gang-related Firearm Enhancement Under Newly Enacted Assembly Bill No. 333. We Reverse and Remand for Further Proceedings.
While this appeal was pending, the Legislature enacted Assembly Bill No. 333, which became effective on January 1, 2022. Assembly Bill No. 333 amended section 186.22 to modify the showing necessary to sustain gang offenses and enhancements. Appellant contends Assembly Bill No. 333 applies retroactively to this case, and that his conviction for the substantive gang offense and findings for the gang enhancement and gang-related firearm enhancement must be reversed because the evidence was insufficient under the law as amended.
The substantive gang offense (§ 186.22, subd. (a)) and the gang enhancement (§ 186.22, subd. (b)(1)) require the People to prove the existence of a "criminal street gang." To do so, the People must establish a" 'pattern of criminal gang activity'" by proving, among other things, the existence of two or more predicate crimes committed by gang members. (§ 186.22, subd. (e)(1).) As pertinent here, Assembly Bill No. 333 changed this predicate requirement in two ways. First, the People must prove that each predicate offense was committed by three or more gang members; proof of offenses committed by individual gang members is no longer sufficient. (§ 186.22, subd. (f); People v. Lopez (2021) 73 Cal.App.5th 327, 344.) Second, the People must prove that the predicate offenses "commonly benefitted a criminal street gang, and the common benefit of the offense is more than reputational." (§ 186.22, subd. (e)(1).)
Respondent concedes Assembly Bill No. 333's amendments to section 186.22 apply retroactively to this case. We agree. As we explained in People v. Ramos (2022) 77 Cal.App.5th 1116, 1126, this aspect of Assembly Bill No. 333 "was an ameliorative change in the law that applies retroactively to cases not yet final on appeal" because it "increased the evidentiary burden necessary to prove a gang-related enhancement." Other California Courts of Appeal have reached the same conclusion. (People v. Lopez, supra, 73 Cal.App.5th 327, 344; People v. Burgos (2022) 77 Cal.App.5th 550, 563, review granted July 13, 2022, S274743; People v. E.H. (2022) 75 Cal.App.5th 467, 478.)
Respondent also concedes appellant's substantive gang offense conviction must be reversed and the gang enhancement must be vacated because the evidence at trial was insufficient under section 186.22 as amended. Again, we agree. The predicate offenses in this case involved conduct by only one gang member, and the People offered no evidence or expert opinion that the predicates benefitted the gang.
The parties also agree, as do we, that appellant's gang-related firearm enhancement must be vacated for insufficient evidence. The evidence at trial only established that a principal in the home invasion robbery used a firearm. It did not establish that appellant personally used a firearm. Appellant's liability for the firearm enhancement was based on section 12022.53, subdivision (e)(1), which provides: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)." As we explained above, the evidence was insufficient to sustain the section 186.22, subdivision (b) gang enhancement. Thus, the evidence is also insufficient to sustain the gang-related firearm enhancement.
The parties did not address the impact of Assembly Bill No. 333 on appellant's gang-related firearm enhancement in their initial briefs. In response to our order directing the parties to address the issue, respondent filed an informal letter brief conceding the gang-related firearm enhancement must be vacated.
Because we conclude the gang-related firearm enhancement must be vacated, we need not address appellant's claim the trial court erred in imposing sentence for both the gang enhancement and the gang-related firearm enhancement pursuant to section 12022.53, subdivision (e)(1) and People v. Brookfield (2009) 47 Cal.4th 583.
Accordingly, we reverse the conviction for the substantive gang offense and vacate the gang enhancement and gang-related firearm enhancement. On remand, the People will have the option to retry the reversed offense and enhancements. (People v. Sek (2022) 74 Cal.App.5th 657, 669 [" 'Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial.' "].)
II. Any Presumed Error Resulting from the Failure to Bifurcate Gang Allegations Pursuant to Section 1109 was Harmless.
In addition to amending section 186.22, Assembly Bill No. 333 also created section 1109. This section requires that a trial court conduct a bifurcated proceeding on the truth of gang enhancements alleged under section 186.22, subdivision (b) or (d), if requested by the defense. (§ 1109, subd. (a).) It also requires a bifurcated trial for any charge of participation in a criminal street gang (§ 186.22, subd. (a)) from all other counts that do not otherwise require gang evidence as an element of the crime. (§ 1109, subd. (b).)
Appellant claims the trial court's failure to comply with section 1109 requires reversal of the robbery conviction. Respondent argues that appellant forfeited the claim by failing to request bifurcation below, that section 1109 applies prospectively only, and that lack of bifurcation was harmless error.
As we explain below, we agree that the trial court's failure to comply with section 1109 was harmless because there is no basis to conclude bifurcation would have affected the outcome of the trial. Accordingly, we need not consider forfeiture, or whether section 1109 applies retroactively.
The question of whether section 1109 applies retroactively to cases that are not yet final is currently under review by the California Supreme Court in People v. Burgos, supra, 77 Cal.App.5th 550, review granted July 13, 2022, S274743.
A. We apply the Watson harmless error standard.
While appellant contends failure to bifurcate was prejudicial, he does not specify the appropriate standard of review. Respondent, on the other hand, argues the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) is appropriate. Under the Watson standard, which applies to errors of state law, reversal is not required unless it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
We agree with respondent. Appellant's right to bifurcation under section 1109 is purely statutory." 'Typically, a defendant who has established error under state law must demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a more favorable result.'" (People v. Anzalone (2013) 56 Cal.4th 545, 553; accord, People v. Epps (2001) 25 Cal.4th 19, 29 [where the error "is purely one of state law, the Watson harmless error test applies"].)
In People v. Tran (2022) 13 Cal.5th 1169, 1208-1210 (Tran)t our high court evaluated the trial court's failure to bifurcate pursuant to section 1109 under the Watson standard. In so doing, the high court rejected the appellant's argument that the Chapman v. California (1967) 386 U.S. 18 standard for federal constitutional error applies, reasoning that the admission of gang evidence in that case was not so prejudicial that it rendered the trial" 'fundamentally unfair.'" (Tran, supra, 13 Cal.5th at p. 1209.) It also rejected the appellant's claim that the failure to bifurcate constituted structural error. (Id. at p. 1208.)
Here, appellant argues the failure to bifurcate resulted in prejudice, but he does not contend it rendered the trial "fundamentally unfair." For the reasons discussed below, we see no basis to conclude the admission of gang evidence rendered the trial "fundamentally unfair," or otherwise implicated appellant's federal constitutional rights. (See Tran, supra, 13 Cal.5th at p. 1209.) Accordingly, we apply the Watson standard.
B. Any presumed error was harmless.
In assessing prejudice under Watson, "an appellate court may consider 'whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.'" (People v. Rogers (2006) 39 Cal.4th 826, 870.)
Here, the evidence establishing appellant was guilty of the home invasion robbery charge was strong and compelling. Esparza's cell phone GPS location data placed him in front of the victim's residence at the time of the robbery. It also placed Esparza at the fast food restaurant in the exact window of time that appellant was captured on surveillance video driving his white Jeep through the drive-through with three other people in his car. Appellant's white Jeep matched the general description of the getaway vehicle provided by Mitchell. After the robbery, the GPS location data showed Esparza returned to Hayward, travelling first to appellant's residence, then to his own residence.
Given the evidence connecting appellant and Esparza together before, during, and after the home invasion robbery, the only reasonable conclusion is that appellant was the driver of the white Jeep the robbers used to get to and from Mitchell's residence. Although the prosecution's case was primarily circumstantial, there is no reasonable interpretation of the totality of the evidence that points to innocence. Therefore, there is no reasonable probability the trial court's failure to comply with section 1109 impacted the verdict.
Appellant argues reversal is required based on the "inherently prejudicial" nature of gang evidence. We agree that evidence of gang membership and prior criminal acts inherently carries some risk that a jury will improperly infer that a defendant has a propensity to commit criminal offenses. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) However, nothing in Assembly Bill No. 333 or section 1109 "limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges." (People v. Ramos, supra, 77 Cal.App.5th at p. 1132.) This includes evidence that is offered for identity, motive, or intent (among others) under Evidence Code section 1101, subdivision (b). Here, some of the gang evidence was relevant to appellant's motive. It was also relevant to identity, as it buttressed the connection between appellant and Esparza that was central to the prosecution's case. Because it is very likely that at least some of the gang evidence admitted in appellant's trial would still have been admissible in a bifurcated trial, the potential for prejudice is significantly limited. (See People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
We also observe that the jurors were given a limiting instruction not to consider the gang evidence for any improper purpose, including that appellant "is a person of bad character or that he has a disposition to commit crime." (See CALCRIM No. 1403.) We presume the jury followed this instruction. (See People v. Franklin (2016) 248 Cal.App.4th 938, 953 ["We presume that the jury followed these limiting instructions [regarding considering gang evidence for limited purpose], and there is nothing in this record to rebut that presumption."].)
Considering the strength of the evidence, the use of a limiting instruction, and the likelihood that some gang evidence would still have been admitted even if the gang allegations had been bifurcated, it is not reasonably probable that the admission of gang evidence impacted the result of appellant's trial. Therefore, we conclude the trial court's failure to comply with section 1109 was harmless under Watson.
III. Appellant May Address the Applicability of Senate Bill No. 567 on Remand.
Appellant contends remand and resentencing are required pursuant to Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3), which became effective while this appeal was pending. Senate Bill No. 567 amended section 1170 such that the trial court may only impose the aggravated term where aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. (§ 1170, subd. (b)(1) &(2).)
Respondent concedes, and we agree, that Senate Bill No. 567 applies retroactively to this case, as it was not final on appeal before Senate Bill No. 567 became effective on January 1, 2022. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) Moreover, the matter must be remanded for further proceedings on the reversed count and vacated enhancements. Regardless of how the parties elect to proceed on remand, appellant will be entitled to" 'a full resentencing as to all counts ... so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893.) When appellant is resentenced, the trial court must apply any applicable law, including section 1170 as amended by Senate Bill No. 567. We take no position on how the trial court should exercise its sentencing discretion when it resentences appellant.
DISPOSITION
The true findings in count 1 regarding the gang enhancement and the gang-related firearm enhancement are vacated. The conviction in count 2 is reversed. Appellant's sentence is vacated, and this matter is remanded for further proceedings. The People shall have the option to retry appellant regarding the gang enhancement and gang-related firearm enhancement in count 1, and the charge of active gang participation in count 2. If the People do not bring appellant to retrial within the time limits of section 1382, subdivision (a)(2), the trial court shall proceed to resentence appellant accordingly. In all other respects, appellant's judgment is affirmed.
WE CONCUR: SNAUFFER, J. DE SANTOS, J.
[*] Judge Schechter presided over appellant's trial and Judge Hansen sentenced appellant.