Opinion
E077321
11-14-2022
THE PEOPLE, Plaintiff and Respondent, v. ROBERT CHRISTIAN HERNANDEZ, Defendant and Appellant.
Aaron J. Schechter, by appointment of the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from the Superior Court No. FWV20004537 of San Bernardino. Shahla Sabet, Judge. Affirmed in part; reversed and remanded in part with directions.
Aaron J. Schechter, by appointment of the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS J.
I. INTRODUCTION
Defendant was convicted by a jury of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). It was also found true that defendant committed the offenses in association with a criminal street gang (§ 186.22, subd. (b)(1)); personally used a firearm in the commission of count 1 (§ 12022.5, subds. (a)-(d)); and suffered prior convictions qualifying as a strike offense and a serious prior felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) and § 667, subd. (a)). Defendant was sentenced to an aggregate term of 28 years in state prison, which included the imposition of the upper term on both counts.
Unless otherwise noted, all undesignated statutory references are to the Penal Code.
Defendant appeals, identifying only errors related to his sentence. Specifically, he argues: (1) the trial court erroneously admitted a victim impact statement from an individual who was not a direct victim of the offenses for which he was convicted; (2) he is entitled to the benefit of recently enacted amendments to section 654; (3) the trial court violated his right to due process by imposing various fines and fees without determining defendant's ability to pay; and (4) the minutes and abstract of judgment should be amended to correct a clerical error. In supplemental briefing, defendant also argues that (1) we should vacate the true findings regarding the imposition of gang enhancements pursuant to section 186.22 as the result of subsequent amendments to that statute; (2) we should remand the matter for resentencing as a result of amendments to section 1170, subdivision (b), which prohibit a trial court from imposing an upper term sentence unless there are aggravating circumstances and the defendant has either stipulated to the facts underlying those circumstances or those facts were found true beyond a reasonable doubt in a bifurcated proceeding (§ 1170, subd. (b)(1)-(2)); and (3) we should vacate his convictions on the underlying offenses and remand the matter for a new trial pursuant to newly enacted section 1109 (Stats. 2021, ch. 699, § 5).
We conclude that defendant is entitled to the benefits of the amendments made to sections 186.22 and 1170, subdivision (b), but that defendant has not shown prejudice warranting reversal of his convictions on the underlying offenses. As a result, we vacate defendant's sentence and reverse the true findings with respect to the gang enhancement allegations. We remand the matter with directions to permit the People an opportunity to retry the enhancements under the version of section 186.22 now in effect and to conduct a full resentencing thereafter. Given this conclusion, we need not address defendant's other claims of sentencing error, as defendant will have the opportunity to address these matters anew before the trial court at the time of resentencing.
II. FACTS AND PROCEDURAL HISTORY
Defendant is an active member of a criminal street gang. In October 2020, defendant and several members of his gang became involved in an altercation with three other individuals. During this incident, defendant warned the three individuals to stand down because they were in territory claimed by defendant's gang. Defendant also brandished a firearm and pointed it at one of the individuals. Eventually, one of the individuals was shot and killed by a fellow gang member who was present with the defendant.
As a result of this incident, defendant was convicted by a jury of assault with a semiautomatic firearm (§ 245, subd. (b); count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). Additionally, the jury found true allegations that defendant's offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant personally used a firearm in the commission of count 1 (§ 12022.5, subds. (a)- (d)). In a bifurcated proceeding, the trial court also found true allegations that defendant had suffered a prior conviction qualifying as a strike offense (§ 667, subds. (b)-(i); § 1170.12, subds. (a)-(d)), as well as a prior conviction qualifying as a serious felony (§ 667, subd. (a)).
Defendant was sentenced on June 24, 2021. Over defendant's objection, the trial court admitted victim impact testimony from the mother of the individual who had been shot and killed during the October 2020 incident. The trial court sentenced defendant to an aggregate term of 28 years in state prison. Specifically, the trial court imposed the upper term of nine years on count 1 (§ 245, subd. (b)), doubled to 18 years for the strike prior (§ 667, subds. (b)-(i); § 1170.12, subds. (a)-(d)), and enhanced by the upper term of 10 years for the personal use of a firearm (§12022.5, subds. (a)-(d)).
The trial court also imposed a consecutive upper term on count 2 (§ 29800, subd. (a)(1)), as well as the gang enhancements for both counts (§ 186.22, subd. (b)(1)) but stayed the execution of sentence on these matters (§ 654). Finally, the trial court struck the enhancement for defendant's prior serious felony conviction (§ 667, subd. (a)(1)) in the interests of justice (§ 1385).
In explaining its decision to impose the upper term on count 1, the trial court found the existence of one mitigating factor-that defendant displayed remorse for his actions. However, the trial court expressed the belief that this mitigating factor was outweighed by numerous other aggravating factors, including defendant's: (1) use of a weapon; (2) actions inducing others to participate in the crimes; (3) representation as a danger to society; (4) having suffered multiple convictions as an adult that were increasing in severity; (5) having served two prior prison terms; and (6) unsatisfactory performance on parole.
III. DISCUSSION
On appeal, defendant contends his underlying convictions for assault and possession of a firearm should be vacated because he is entitled to the benefit of newly enacted section 1109, which permits a defendant to request that underlying offenses and gang enhancements be tried separately in bifurcated proceedings. We conclude that, even assuming section 1109 has retroactive application, defendant has not shown prejudice warranting reversal of these convictions.
Defendant also raises multiple claims of error related to his sentence. However, we need not discuss each of these claims in detail because, as we explain, the recent amendments to section 1170, subdivision (b), require defendant's sentence to be vacated and the matter remanded for a full resentencing. Additionally, we agree with defendant's claim that the jury's true finding with respect to his gang enhancement must be vacated, but we agree with the People that they should be given an opportunity to retry the enhancements upon remand. Given these conclusions, we need not address defendant's other claims of error or whether such alleged errors are prejudicial.
A. Defendant Is Entitled to a Full Resentencing
1. Legal Background
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170, subdivision (b), which guides the trial court's discretion in sentencing a defendant when the applicable statutes specify three possible terms for the imposition of a judgment of imprisonment. (§ 1170, subd. (b); Stats. 2021, ch. 731, § 1.3.) As amended, section 1170, subdivision (b) now provides the middle term of imprisonment as the presumptive sentence and permits a trial court to "impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt." (People v. Flores (2022) 75 Cal.App.5th 495, 500; see § 1170, subd. (b)(2).)
Under the amended statute, the truth of any facts used to support an aggravating circumstance must be tried in a bifurcated proceeding, except where the evidence is also relevant to prove or defend against a charged offense or enhancement. (§ 1170, subd. (b)(2).) However, the trial court is permitted to consider a defendant's prior convictions based upon a certified record of conviction without submission of this fact to a jury. (§ 1170, subd. (b)(3).) These amendments apply retroactively to all cases not yet final because they have the potential to lessen the punishment for a defendant's crimes. (People v. Flores, supra, 75 Cal.App.5th at p. 500; People v. Garcia (2018) 28 Cal.App.5th 961, 972-973; In re Estrada (1965) 63 Cal.2d 740, 744-745.)
While the amendments to section 1170, subdivision (b) apply retroactively, the failure to submit an aggravating circumstance for determination by a jury does not always require reversal. As our Supreme Court has unambiguously explained:" 'Failure to submit a sentencing factor to the jury, like failure to submit an element [of the crime] to the jury, is not structural error.' [Citation.] Such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18." (People v. French (2008) 43 Cal.4th 36, 52-53; see People v. Sandoval (2007) 41 Cal.4th 825, 838 ["The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in [Chapman] ...."]; see also People v. Mil (2012) 53 Cal.4th 400, 410 [same].)
Under the Chapman standard, such failure is harmless error "if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury." (People v. Sandoval, supra, 41 Cal.4th at p. 839; see People v. Osband (1996) 13 Cal.4th 622, 728.) At least two published decisions by the Courts of Appeal since the amendments to section 1170, subdivision (b) went into effect have applied this standard to the purported failure to submit the truth of an aggravating circumstance to a jury as required by the amended version of section 1170, subdivision (b). (People v. Flores, supra, 75 Cal.App.5th at p. 500; People v. Lopez (2022) 78 Cal.App.5th 459, 467-468.)
2. The Record Does Not Permit Us to Conclude Any Error Was Harmless
In this case, the trial court imposed the upper term on both counts when sentencing defendant. It is further undisputed that, as a result, the amendments to section 1170, subdivision (b) apply retroactively to this case. Thus, the only question we must resolve is whether the failure to have a jury determine the truth of the aggravating sentencing factors relied upon by the trial court to impose the upper term can be considered harmless beyond a reasonable doubt. As we explain, such failure cannot be considered harmless given the record before us.
In exercising its discretion to impose the upper term, the trial court expressly relied on six aggravating factors. We agree with the People that at least three of these factors would unquestionably be found true because they can be established by a certified record of conviction: (1) the fact defendant had multiple prior convictions as an adult; (2) the fact defendant suffered two prior prison terms; and (3) the fact defendant's performance on parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(2), (3), (5); People v. Towne (2008) 44 Cal.4th 63, 79-84 [The record of a prior conviction may establish: the fact of a defendant's prior convictions; the service of a defendant's prior prison terms; the fact that a defendant was on parole at the time of the commission of an offense; and, in some cases, that defendant's performance while on parole was unsatisfactory.].) We also believe that the record is sufficient to show that a jury would have found beyond a reasonable doubt that defendant used a weapon in the commission of the offenses in this case (Cal. Rules of Court, rule 4.421(a)(2)), since the jury found true special allegations in support of a firearm enhancement (§ 12022.5, subds. (a)-(d)).
However, "the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement ...." (People v. Scott (1994) 9 Cal.4th 331, 350; § 1170, subd. (b)(5).)
However, the record does not establish that a jury would have unquestionably found true the remaining aggravating factors relied upon by the trial court: that defendant induced others to participate in the crime or that defendant represents a danger to society. While there is certainly some evidence in the record that would support these findings,the evidence was not overwhelming. (People v. French (2008) 43 Cal.4th 36, 54 [failure to submit aggravating factor to jury was not harmless where reviewing court "cannot say the evidence on that point was overwhelming"].) Nor did defendant have the same incentive to contest the evidence or to argue that the prosecution failed to meet its burden under a beyond-a-reasonable-doubt standard at the time of trial with respect to these factors. (People v. Lopez, supra, 78 Cal.App.5th at p. 466 [under prior version of § 1170, subd. (b), a defendant "had no reason to present evidence that might have contradicted evidence supporting truth of the facts underlying the aggravating factors relied on by the trial court"].) Thus, we cannot conclude on this record that a jury would have unquestionably found these factors true beyond a reasonable doubt.
For example, there was testimony the three men initially intended to confront only defendant, as they believed he was responsible for an automobile accident involving a car belonging to one of the three; that defendant called out the name of his street gang during the ensuing confrontation; and that someone yelled," 'Pop off!'" immediately prior to the shooting. Thus, a jury might be able to infer that the defendant induced the other gang members to become involved.
It is true that an upper term sentence is constitutionally valid as long as one aggravating factor is found true beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th at p. 839; People v. Osband, supra, 13 Cal.4th at p. 728; People v. Flores, supra, 75 Cal.App.5th at p. 500.) Thus, a reviewing court's inability to conclude that all of the sentencing factors relied upon by the trial court would have unquestionably been found true beyond a reasonable doubt will not always require reversal. For example, where the trial court otherwise expresses the intent to impose the harshest sentence available, then a reversal would not be required where the sentence is also constitutionally valid. (People v. Flores (2020) 9 Cal.5th 371, 432 [Where the trial court explicitly stated it thought defendant deserved "the most severe sentence available under California law[,] it is clear the trial court would not have exercised its discretion" to reduce defendant's sentence and "remand is not required."]; People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 [Generally, where "the resentencing court [has] imposed the maximum possible sentence . . ., there is no need to remand the matter to the trial court to exercise its sentencing discretion anew."].)
Nevertheless, we do not believe the record in this case is sufficient for us to conclude that the trial court would not have exercised its discretion differently under section 1170, subdivision (b), as amended. The trial court's exercise of discretion to impose the upper term resulted from a balancing of one mitigating factor against six aggravating factors. Where the trial court expressly relies on a "long list of aggravating factors in selecting the upper term" and "offered no indication that it would have selected an upper term sentence even if only a single aggravating factor or some subset of permissible factors were present," "we cannot conclude that the trial court would have selected an upper term sentence based on a single permissible aggravating factor," and "remand is required to allow the trial court the opportunity to exercise its discretion to make its sentencing choice in light of the recent amendments to section 1170." (People v. Lopez, supra, 78 Cal.App.5th at p. 468.) Because the record in this case does not permit us to conclude that all six aggravating factors relied upon by the trial court would unquestionably have been found true, and does not contain any explicit statements by the trial court suggesting how it might have exercised its discretion absent all six of the identified aggravating factors, we cannot find the error, in this case, harmless and remand is required.
3. The Trial Court May Reconsider Every Aspect of Defendant's Sentence
"The full resentencing rule dictates that 'when part of a sentence is stricken on review, on remand for resentencing "a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances." '" (People v. Lopez (2020) 56 Cal.App.5th 835, 844-845, review granted Jan. 27, 2021, S265936; see People v. Buycks, supra, 5 Cal.5th at p. 893.)
Here, we have concluded that defendant's sentence must be vacated and the matter remanded for the trial court to reconsider its imposition of the upper term on the offenses for which defendant was convicted. Under the full resentencing rule, the trial court is permitted to reexamine any aspect of defendant's sentence upon resentencing. Given this conclusion, we need not address defendant's other claims of prejudice as the result of sentencing error at this time, as defendant will have the opportunity to raise these issues anew in the trial court, and the trial court will have the opportunity to state new reasons for any new sentence.
We also need not decide whether the People should be granted an election to proceed under the "new version" of section 1170, subdivision (b). We see no reason why such an election is prohibited, as section 1170, subdivision (b) expressly contemplates the trial of circumstances in aggravation be held in a bifurcated proceeding separate from the trial of charges and enhancements (§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1.3), and the right to have every element of an offense tried to a jury and proved beyond a reasonable doubt does not "mean that the same jury that finds a defendant guilty of an offense must always decide the truth of an attached penalty allegation." (People v. Anderson (2009) 47 Cal.4th 92, 119-120.) Nevertheless, the issue should be raised and decided by the trial court in the first instance.
As we have already discussed, some of the aggravating factors in this case could be found true beyond a reasonable doubt even without the need for a jury determination. Thus, to the extent the trial court may believe such factors alone warrant imposition of an upper term sentence, a bifurcated proceeding to submit additional factors to a jury may not be necessary. We express no opinion as to whether the facts of this case justify such a determination, but reserve the matter for the trial court to decide in the first instance.
B. Defendant's Gang Enhancements Must Be Vacated
In supplemental briefing, defendant also claims he is entitled to the benefit of amendments made to section 186.22 and, as a result, his gang enhancements must be vacated. The People concede, and we agree, that amendments to section 186.22 apply retroactively to defendant's case because his judgment of conviction is not yet final. However, the People contend that remand is not necessary in this case because a jury would unquestionably have found the gang enhancements true beyond a reasonable doubt, even under the amended version of section 186.22. We believe the record in this case is insufficient for us to reach this conclusion.
Generally, section 186.22 provides for enhancement of a defendant's punishment when a defendant is convicted of an enumerated felony "for the benefit of, at the direction of, or in association with any criminal street gang." (Former § 186.22, subd. (b)(1); People v. E.H. (2022) 75 Cal.App.5th 467, 476-477.) While this appeal was pending, the Legislature amended section 186.22 and, as relevant here, these amendments (1) narrow the definition of "criminal street gang" to include only organized groups or associations who collectively engage in . . . a pattern of criminal gang activity; (2) redefine what constitutes a pattern of criminal gang activity by requiring proof of predicate offenses that were committed by two or more members of the gang for the common benefit of the gang, with the last offense committed within three years of the currently charged offense; (3) prohibit a jury from considering the currently charged offense as a predicate offense; and (4) require proof of an alleged benefit to a gang to be more than reputational. (§ 186.22, subds. (e), (f), (g); Stats. 2021, ch. 699, § 3; People v. E.H., at pp. 476-477.)
The People concede that in this case, the jury was not instructed according to the standards set forth in the amended version of section 186.22 but argue we should not reverse because sufficient evidence was presented at trial to permit the jury to find the enhancements true even under the current version of the statute. However, this court recently rejected this very argument under almost identical circumstances in People v. E.H., supra, 75 Cal.App.5th 467. As we explained in that case, the amendments "essentially add[] new elements to the substantive offense and enhancements in section 186.22 ...." (People v. E.H., at p. 479.) As a result, "the absence of instruction on the amended version of section 186.22 requires reversal unless 'it appears beyond a reasonable doubt that the error did not contribute to the jury's verdict,'" and" 'it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions.'" (People v. E.H., at pp. 479-480.)
Thus, in People v. E.H., supra, 75 Cal.App.5th 467, we concluded reversal was required where the jury was permitted to consider the current offense in determining whether the prosecution had proven a pattern of criminal gang activity and was permitted to consider reputational benefit in determining whether a predicate offense was a benefit to the gang. (Ibid.) The record in this case compels the same conclusion. Even if the evidence presented at trial would have been sufficient to support a true finding under the current version of section 186.22, the jury was permitted to consider the current offense as well as reputational benefit to the gang when determining the truth of the alleged gang enhancements. The record in this case is not sufficient to permit us to conclude the jury would have reached the same conclusion if instructed to disregard this evidence. Thus, reversal of the true findings on the gang enhancements is required.
The People contend, and we agree, that "[t]he 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. E.H., supra, 75 Cal.App.5th at p. 480.) Defendant does not dispute this in his supplemental reply brief or raise any objection to the People's request for this remedy.
C. Section 1109 Does Not Require Reversal of Defendant's Convictions on His Underlying Offenses
In further supplemental briefing, defendant contends that we must also reverse his underlying convictions for assault with a semiautomatic firearm (§ 245, subd. (b)) and possession of a firearm by a felon (§ 29800, subd. (a)(1)) as the result of newly enacted section 1109, which permits a defendant to request that underlying offenses and gang enhancements be tried in bifurcated proceedings (§ 1109; People v. Burgos (2022) 77 Cal.App.5th 550, 561 (Burgos), review granted July 13, 2022, S274100; People v. Lopez (2022) 82 Cal.App.5th 1, 12-13.) As the People correctly note, there is currently a split of authority regarding whether section 1109 applies retroactively. (Burgos, at pp. 564-568 [section 1109 applies retroactively to all cases not yet final]; People v. Ramos (2022) 77 Cal.App.5th 1116, 1119 [same]; People v. Perez (2022) 78 Cal.App.5th 192, 207 [section 1109 does not apply retroactively to a trial that has already occurred], review granted Aug. 18 2022, S275090; People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [same], review granted Aug. 17, 2022, S275341.) We need not resolve this conflict here because we conclude that, even assuming section 1109 has retroactive application, defendant has not shown prejudice warranting reversal.
1. Failure To Apply Section 1109 Is Not Structural Error
Relying on Burgos, defendant contends that the failure to bifurcate the trial of gang enhancements under section 1109 constitutes structural error, requiring per se reversal in every case. However, while this appeal was pending, the California Supreme Court issued its decision in People v. Tran (2022) ___Cal.5th ___(Aug. 29, 2022, S165998) [2022 Cal. Lexis 5119, *57] (Tran), explicitly rejecting the "contention that the failure to bifurcate [pursuant to section 1109] constitutes structural error." Defendant acknowledges the high court's opinion in Tran but maintains that Tran was "wrongly decided" and urges us to express the view that the issue is ripe for reconsideration because, in his view, the reasoning in Burgos is correct. We decline to do so. As a court of inferior jurisdiction, we are bound by the California Supreme Court's decisional authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455); and," '[a]rguing that a California Supreme Court case was "wrongly decided[,]" is not productive ....'" (Williams v. RGIS, LLC (2021) 70 Cal.App.5th 445, 450.) Thus, we reject defendant's contention that any error in failing to apply section 1109 retroactively constitutes structural error requiring reversal.
Even absent controlling authority by the California Supreme Court, we would not be inclined to follow the Burgos majority's reasoning on this point. "Structural errors . . . go to the very reliability of a criminal trial as a vehicle for determining guilt or innocence and are reversible per se.... There is a strong presumption that any error falls within the trial error category, and it will be the rare case where a constitutional violation will not be subject to harmless error analysis." (People v. Anzalone (2013) 56 Cal.4th 545, 554.) Because section 1109 permits gang enhancements to be tried together in the absence of a request for bifurcation from the defendant, the failure to bifurcate simply cannot be considered an error that strikes at the very reliability of the trial as a vehicle for determining innocence or guilt. We are also unpersuaded by the Burgos majority's view that the failure to bifurcate trial of a gang enhancement" 'def[ies] analysis by harmless-error standards.'" (Burgos, supra, 77 Cal.App.5th at p. 568.) Even prior to the enactment of section 1109, both trial and appellate courts were called upon to assess the potential prejudice arising from the presentation of gang evidence during the course of a trial on underlying offenses. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [trial court must assess potential prejudice in determining whether to bifurcate trial of gang enhancements]; People v. Williams (1997) 16 Cal.4th 153, 193 [trial courts must carefully scrutinize prejudicial effect of gang evidence to determine admissibility]; People v. Williams (2009) 170 Cal.App.4th 587, 612 [error in trial court's admission of cumulative gang evidence was harmless].) Thus, we do not believe that assessing prejudice defies analysis.
Nor do we agree with the Burgos majority's view that "it is not clear whether we should apply the federal or state law standard" of prejudice in this situation. (Burgos, supra, 77 Cal.App.5th at p. 568.) On its face, section 1109 is a state statute involving trial procedure. Traditionally, errors involving state procedural rules are subject to the Watson standard of prejudice (People v. Anzalone, supra, 56 Cal.4th at pp. 555-556), which requires a defendant to show that"' "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error" '" (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050). Further, the only practical impact of a violation of section 1109 in this case would be the erroneous introduction of gang evidence during the trial of defendant's underlying offense. As our Supreme Court explained in Tran, such an error does not render the defendant's trial fundamentally unfair such that the standard for federal constitutional error should apply. (Tran, supra, Cal.5th [2022 Cal. Lexis 5119 at p.*56].) Thus, it seems reasonably clear that the failure to bifurcate trial on a gang enhancement under section 1109 is subject to harmless error review under the Watson standard of prejudice.
For this reason, we are also unpersuaded by defendant's claim that error under section 1109 constitutes a violation of due process because it denies defendant a liberty interest in having particular findings determined by a jury. Under section 1109, the findings necessary to support any underlying conviction or gang enhancement are determined by a jury regardless of whether the issues are tried together or separately.
People v. Watson (1956) 46 Cal.2d 818.
2. Defendant Has Not Shown Prejudice Warranting Reversal
In this case, defendant was convicted of assault with a semiautomatic firearm (§ 245, subd. (b) and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The fact that defendant committed the physical acts, or actus reus, necessary to support a conviction for these offenses was entirely undisputed at trial. The only issue contested at trial was whether defendant had the requisite mental state, or mens rea, to support a conviction for these offenses. With respect to this issue, the People argued that defendant's motive in committing the assault was derived from his gang affiliation and desire to protect gang territory while defendant argued he acted in self-defense. Thus, both the prosecution and defense theory of the case rendered gang evidence admissible in the trial of the underlying offenses, irrespective of whether the gang enhancements were to be tried in a bifurcated proceeding. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168 ["Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related."]; People v. Kaihea (2021) 70 Cal.App.5th 257, 265-266 ["[E]vidence of gang membership is directly relevant to the genuineness of the belief of the need to defend oneself, because such evidence can demonstrate that a defendant killed because of a gang-related motive as opposed to selfdefense."].)
Multiple witnesses testified to observing defendant in possession of a firearm and pointing it at the victims. In a recorded interview played to the jury, defendant admitted that he was in possession of a firearm and that he pulled it out in the presence of the victims.
Defendant concedes that gang evidence would have been admissible in the trial of his underlying offenses regardless of whether the gang enhancements were tried separately. Moreover, defendant does not argue that it would have been an abuse of discretion for the trial court to admit any specific items of gang evidence - or even the entirety of the gang evidence offered in this case - in a hypothetical separate trial of the underlying offenses under section 1109. Under such circumstances, defendant has not met his burden to show a reasonable probability of a more favorable outcome, even if his gang enhancements had been tried in a bifurcated proceeding.
Gang evidence may be properly admitted even where the defendant stipulates to membership in a gang and even where the prosecution may be able to establish disputed matters with other evidence. (People v. Valdez (2012) 55 Cal.4th 82, 134.) Thus, a defendant that concedes that "some" gang evidence would be admissible, must identify and discuss specific items of evidence the defendant believes should have been excluded in order to establish prejudice. (People v. Coneal (2019) 41 Cal.App.5th 951, 963-964 ["Absent an analysis of specific evidence, reference to volume alone is meaningless," and the defendant "fails to explain how he was prejudiced by this cumulative evidence."].)
IV. DISPOSITION
The true findings on defendant's gang enhancement allegations pursuant to section 186.22, as well as defendant's sentence are reversed, and the matter is remanded for further proceedings. Upon remand, the trial court is directed to give the People an opportunity to retry the enhancements under the current version of section 186.22 and will also have the discretion to permit the People to prove the truth of any circumstances in aggravation pursuant to section 1170, subdivision (b). If the People elect not to retry defendant, or at the conclusion of any retrial, the trial court shall conduct a full resentencing where it will have the discretion to reexamine all aspects of defendant's sentence. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P. J., SLOUGH J.