Opinion
F071822
01-10-2018
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO JESUS MENDOZA, Defendant and Appellant.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF294661A)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This matter involves three defendants, appellant Gustavo Jesus Mendoza, Miguel Angel Villegas, and Joel Serrato (collectively the Codefendants). A jury convicted appellant of attempted robbery (Pen. Code, §§ 664/211; count 1); conspiracy to commit robbery (§§ 182/211; count 2); prohibited possession of a firearm (§ 29800, subd. (a)(1); count 3); and masked criminal possession of a firearm in public (§ 25300, subd. (a); count 4). The jury found true firearm and criminal street gang enhancements. Appellant received an aggregate prison sentence of 31 years.
All future statutory references are to the Penal Code unless otherwise noted.
This sentence also included time imposed in a companion case, Tulare County Superior Court case number VCF237778A, which is not part of this appeal.
In companion appeals F072155 and F072054, we resolve issues raised by Villegas and Serrato, respectively, for their involvement in this attempted robbery. In the present matter, appellant claims the trial court abused its discretion in failing to bifurcate the gang enhancement allegations. He also asserts that the prosecutor committed misconduct during his closing argument. He contends insufficient evidence supports his conviction for attempted robbery, and the jury's true findings for the firearm and gang enhancements. We reject these claims. Via supplemental briefing, however, the parties agree that a recent amendment to section 12022.53 retroactively applies to appellant; this amendment permits the superior court to strike appellant's firearm enhancement at sentencing. (§ 12022.53, subd. (h).) We vacate appellant's sentence and remand the matter for resentencing so the trial court may exercise this discretion. We otherwise affirm the judgment.
BACKGROUND
I. The Undercover Drug Purchase.
In January 2014, law enforcement planned an undercover operation to purchase OxyContin illegally from a seller, Ronald Ditlevson, Jr. Shawn Riley, an agent from the Drug Enforcement Administration (DEA), had purchased OxyContin illegally from Ditlevson on three previous occasions starting in October 2013. Riley had paid Ditlevson in cash during the three prior transactions. In setting up a fourth purchase, Riley hoped to learn the identity of Ditlevson's supplier. Prior to this fourth purchase, nothing indicated that Ditlevson had any connection with a criminal street gang.
Ditlevson was charged with crimes under federal law for his actions. As of the time of appellant's trial, he had entered a plea agreement and was serving time in federal prison.
A. The negotiations for the fourth drug purchase.
Riley began negotiating with Ditlevson for a fourth purchase of OxyContin. In a series of communications, Ditlevson said he was having trouble obtaining the drug. They eventually agreed on a sale date of January 30, 2014. Riley agreed to pay $2,600 for the pills.
At around 3:15 p.m. on the day of the planned purchase, Ditlevson texted Riley, indicating he did not yet have the pills and he asked for the money up front. When Riley refused, Ditlevson asked for half of the money, noting he needed to meet his source to obtain the pills. After Riley again refused, Ditlevson agreed to go ahead with the sale that day. At about 3:19 p.m., Riley suggested that Ditlevson's supplier should meet them at the sale. Ditlevson agreed that would happen.
B. Ditlevson contacts codefendant Villegas.
Shortly after confirming the sale with Riley, Ditlevson called the cellular telephone of appellant's codefendant, Villegas. The call occurred at 3:28 p.m. and it lasted one minute and 56 seconds. At 3:38 p.m., Villegas texted Ditlevson, "Can you pick me N [sic] my boy up and well [sic] do [everything]. We just need a ride." Four additional outgoing calls were placed from Ditlevson's phone to Villegas's phone at 3:41 p.m., again at 3:41 p.m., 3:56 p.m., and finally at 4:02 p.m.
C. Police officers spot appellant and Villegas at the location of the planned drug sale.
Later that same day, at approximately 4:45 p.m., Riley and local officers from the Visalia Police Department took up positions at the prearranged sale location, a hotel parking lot. It was close to sundown. Two of the previous illegal drug purchases with Ditlevson had occurred in this same parking lot. Riley used the same vehicle that he had used in his three previous drug purchases with Ditlevson. While Riley waited in his vehicle in the parking lot, other police officers set up as surveillance and security teams. Riley notified Ditlevson that he was at the location.
While they waited for Ditlevson to show up, a police officer observed two males in the parking lot, who were later identified as appellant and Villegas, walking together. They passed near an unmarked police vehicle that was providing surveillance of the anticipated drug purchase. Appellant and Villegas made eye contact with one of the undercover officers. They walked away and then they returned about a minute or two later. The officer did not see either of them carrying a gun. Based on their body language, the officer believed that appellant and Villegas had realized that undercover officers were in the area.
D. Ditlevson moves the location of the planned drug sale.
At approximately 5:03 p.m. that same day, Ditlevson texted Riley that "his source of supply" had told him that police "train in that area[.]" Ditlevson wanted to move the sale location to a nearby park. Riley tried to get Ditlevson to come to his location, indicating no police were present, but Ditlevson remained adamant that he wanted to change locations. Riley, after consulting with his teams, agreed to switch the location for the drug purchase. Riley never saw Ditlevson at the hotel parking lot and nobody approached Riley while he was there.
At trial, the jury learned that no police were training in this area that day.
Riley and the police teams relocated to the nearby park. The other police officers took positions to provide security and surveillance. Everyone was ready at about 5:30 p.m. Riley parked his vehicle near the park's exit.
E. Appellant and Villegas approach Riley at the new location.
Less than a minute after Riley parked at the new location, appellant and Villegas began walking together in tandem across a grassy area towards Riley. They were initially spotted about 30 yards from Riley's position. As they came closer, they both made eye contact with Riley. Villegas had a beanie or a bandanna on his head. Appellant had his face covered up to the bridge of his nose with some type of white cloth. Appellant wore a long-sleeved sweatshirt, or something similar, and he walked with his right hand tucked underneath his opposite armpit, making it appear that he carried a weapon.
Riley had never seen appellant and Villegas before. Although Riley did not see a gun, he became nervous and feared for his safety. Appellant and Villegas came within about 10 to 15 yards of Riley. Riley believed they were armed and they were approaching to rob him. Riley drove away.
At trial, Riley agreed that he would have waited at the park had appellant and Villegas not approached him and made him feel uneasy.
Neither appellant nor Villegas said anything to Riley, and neither pointed a weapon at him. As Riley drove away, neither appellant nor Villegas yelled anything towards him, they did not run towards his vehicle, and they did not try to stop him. Neither appellant nor Villegas chased after Riley, but they did stop and watch him leave the park.
After Riley drove away, an officer providing surveillance saw that appellant had a shiny metal object in his hand underneath his left arm near his "armpit area." Upon closer inspection, the officer saw "no more than an inch" of a gun's barrel there. The officer determined that appellant had a firearm. Appellant and Villegas walked to Ditlevson's parked vehicle, entered it and drove away.
At trial, Riley confirmed that he never spotted Ditlevson's vehicle after the proposed sale was relocated to the park.
F. Law enforcement detain four suspects.
Undercover officers followed Ditlevson's vehicle as it drove away from the park. It left the City of Visalia and entered the City of Exeter. Police took four occupants into custody: Ditlevson had been driving; Serrato was the front passenger; appellant and Villegas were rear passengers. No illegal narcotics were located. Police located and seized a loaded .45-caliber handgun inside the vehicle. The gun had been lying behind the back seat on the floor under a towel or T-shirt. Officers recovered two rounds of .45-caliber ammunition in the vehicle's center console between the driver's seat and the passenger's seat.
At trial, one of the police officers testified that the barrel of the recovered handgun had a "consistent shape" with the barrel of the handgun seen on appellant after Riley fled.
G. Appellant and Serrato make statements to the police.
Police interviewed Serrato, who stated he had been at appellant's house. Serrato also said he had been with Ditlevson in Visalia on January 30, 2014. He claimed to have been meeting a female, but he did not know her name. He indicated that he had gone near the hotel. Serrato admitted that he was an active gang member and he had observed a handgun in Ditlevson's vehicle.
Police interviewed appellant, who said Ditlevson picked him up sometime in the evening of January 30, 2014. Appellant, however, denied that he went to the hotel. During his police interview, Riley walked into the room and appellant's shoulders dropped, and his head bowed. Appellant denied that he had a gun.
II. The Relevant Gang Evidence.
The parties stipulated that the Norteños are a criminal street gang within the meaning of section 186.22. Additionally, appellant and Serrato both stipulated that they are active Norteño gang members, and they both stipulated that they are prohibited from owning or possessing a firearm.
The prosecution's gang expert provided background about the Norteño gang, its rivals, its structure, and how it pays taxes within its hierarchy. The expert reviewed photographs taken from Villegas's cellular telephone that showed Villegas in various poses and attire that the expert attributed to the Norteño gang. Villegas had a photograph of appellant, and he had different photographs of himself with appellant and Serrato. The expert explained how law enforcement classifies someone as a gang member. The expert opined that Villegas was a Norteño gang member.
The gang expert confirmed that Ditlevson was not a "northern" gang member. The expert noted that Norteños do not usually commit crimes with people not associated with the gang. In such a situation, the gang members would leave a "watchdog" to ensure that the non-member did not leave while the crime was underway. The expert also believed a second gang member would accompany the primary robber to provide protection and to vouch for the crime. The gang members would all work together in different roles.
The gang expert opined that gang members who get money as a result of committing a crime owe a portion of the proceeds to the gang. The expert opined that the Norteño gang tries to control the sale of drugs in Visalia. The gang might allow a non-Norteño to sell drugs in Visalia if the gang was paid. The expert admitted, however, that there was no evidence that Ditlevson was paying anyone. He also admitted that there was no evidence that the Codefendants had orders from the gang to commit this crime.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion In Failing To Bifurcate The Gang Enhancement Allegations.
Prior to trial, appellant filed a motion to bifurcate the gang enhancement allegations from the underlying charges, which the trial court denied. In allowing the introduction of gang evidence at trial, however, the trial court bifurcated evidence of appellant's alleged prior convictions. Appellant claims that the trial court abused its discretion in failing to bifurcate the gang evidence.
A. Standard of review.
An abuse of discretion standard is used to review a trial court's denial of a motion to bifurcate. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Under this standard, we will not disturb the trial court's decision on appeal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
B. Analysis.
Appellant argues that the jury heard and saw extensive gang evidence because codefendant Villegas refused to stipulate to being a Norteño gang member. He contends that this was not a gang-related crime, noting that it was committed with Ditlevson, a non-Norteño. He contends the gang evidence had no relevancy to the underlying charges, and its prejudicial effect required bifurcation. We disagree.
A trial court has discretion to bifurcate the trial in a case with gang enhancement allegations to avoid the danger of the jury being improperly influenced by the gang evidence when it decides defendant's guilt of the charged crime. (Hernandez, supra, 33 Cal.4th at pp. 1048-1049.) Predicate offenses and other gang evidence "may be so extraordinarily prejudicial, and of so little relevance to guilt, that [they threaten] to sway the jury to convict regardless of the defendant's actual guilt." (Id. at p. 1049.)
Despite these considerations, "less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Hernandez, supra, 33 Cal.4th at p. 1048.) This is because "[a] prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (Ibid.) Further, because there are efficiencies to be gained by conducting a single trial, some evidence that would be inadmissible (under Evid. Code, § 352, for instance) at a trial of the underlying crime alone can be admitted in a trial for an offense with a gang enhancement. (Hernandez, supra, at p. 1050.) The burden is on the defendant to show that the considerations favoring a single trial are substantially outweighed by a danger of undue prejudice. (Ibid.) The danger of undue prejudice must be clearly established by the defendant. (Id. at p. 1051.)
"While gang membership evidence does create a risk the jury will impermissibly infer a defendant has a criminal disposition and is therefore guilty of the offense charged [citation], 'nothing bars evidence of gang affiliation that is directly relevant to a material issue.' [Citation.]" (People v. Montes (2014) 58 Cal.4th 809, 859.) A trial court acts within its discretion when it denies a bifurcation motion if the gang evidence will be admissible to prove the charged offenses. "Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
Here, a criminal street gang enhancement was attached to the charged offenses and was, by definition, inextricably intertwined with those offenses. There were efficiencies to be gained by conducting a single trial. Moreover, the gang evidence tended to bolster guilt issues. The prosecution's gang expert explained why a Norteño gang member, such as Serrato, might remain with Ditlevson, a non-Norteño gang member, while other gang members initiated the robbery attempt. The expert explained why someone such as Villegas would have a gang motive to accompany appellant when this crime was committed. The gang evidence tended to provide context regarding appellant's role (along with Villegas's and Serrato's) in the charged crimes, and it tended to dispel any suggestion that Serrato was a mere passenger who had no motive or intent to participate in the criminal enterprise. As such, the gang evidence had probative value and "[e]ven if some of the expert testimony would not have been admitted at a trial limited to guilt, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial." (Hernandez, supra, 33 Cal.4th at p. 1051.)
Finally, the trial court properly instructed the jury that evidence of gang activity could be considered solely for the limited purpose of deciding whether appellant acted with the intent, purpose, and knowledge necessary to prove the gang-related crimes and gang allegations, or that appellant had a motive to commit the charged offenses. We presume that the jury followed these limiting instructions, and there is nothing in this record to rebut that presumption. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Based on this record, the trial court did not abuse its discretion in denying bifurcation of the gang enhancement allegations. Appellant has not met his burden to establish that a substantial danger of prejudice existed requiring the gang enhancements to be tried separately. Accordingly, this claim fails.
II. The Prosecutor Did Not Commit Misconduct During Closing Arguments.
Appellant argues that the prosecutor committed prejudicial misconduct during closing arguments. He primarily questions the prosecutor's use of a photograph of a baseball game (the photograph) to explain circumstantial evidence. He also raises concerns because the prosecutor had his investigator stand up and show a concealed handgun under his jacket. He seeks reversal of the judgment.
On September 8, 2016, this court granted codefendant Serrato's motion to augment the record on appeal to include the photograph. On the court's own motion, we take judicial notice of the photograph filed in companion appeal F072054. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
A. Background.
During rebuttal argument, the prosecutor noted that nobody saw either appellant or Villegas with a gun when they walked past officers in the hotel parking lot. The prosecutor asked his investigating detective to stand up, and he asked the jury if the detective had a gun. The prosecutor noted that "[j]ust 'cause you don't see it doesn't mean it's not there." The court noted for the record that "the detective stood up, pulled his jacket back, had a gun."
Later, the prosecutor responded to defense criticism that the circumstantial evidence did not establish attempted robbery. The prosecutor referenced the applicable jury instructions (CALCRIM Nos. 223, 224 & 225) and noted that neither direct nor circumstantial evidence "is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence, not part of the evidence, all of the evidence." The prosecutor then referenced the photograph.
The photograph is in color and it depicts a portion of a baseball stadium with players from both teams on the field and fans in the right field bleachers. Superimposed on the image is the heading "Circumstantial Evidence" with the following two statements: "• Look at all the facts, not piece by piece" and "• You must decide whether a fact in issue has been proved based on all the evidence."
After apparently displaying the photograph to the jury, the prosecutor stated the following:
"I like to look at it in this fashion: You can look at this photograph, and if you slice out the whole picture, you can come up with different reasonable—reasonable explanations for what you see there.
"You can look at that, and you take the players off the field, and you take out the score board, you could say that could be a concert 'cause I have seen concerts in baseball stadiums.
"You could say that might be the players aren't out there yet, but I've seen football games played in stadiums with baseball diamonds. So that's possible.
"Crowds. Obviously, if you're just focused on that, maybe some grass, that could be soccer. There's all kinds of explanations if you don't look at all the evidence, but the law is very clear you look at it all."
The prosecutor then argued why someone might be motivated to commit a crime in the open despite a risk of being seen. The prosecutor contended that appellant was using a gun when he and Villegas walked up to Riley. The prosecutor reviewed some of the relevant facts from the trial and argued that the Codefendants were guilty of the charged crimes, including the gang and firearm enhancements. At no time did the prosecutor again reference the photograph before concluding his arguments.
B. Standard of review.
To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the disputed comments in an improper or erroneous manner. (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).) We " ' "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" (Ibid.)
C. Analysis.
Appellant relies on three opinions to establish prosecutorial misconduct: (1) People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger); (2) People v. Otero (2012) 210 Cal.App.4th 865 (Otero); and (3) Centeno, supra, 60 Cal.4th 659. We find these contentions and the cited authorities unpersuasive under the present facts.
1. Appellant failed to preserve this issue for appellate review.
As a general rule, a claim of prosecutorial misconduct is preserved for appeal only if the defense makes a timely objection and requests an admonition to cure any harm. (Centeno, supra, 60 Cal.4th at p. 674.) Here, defense counsel did not object to any of the comments (including his claim that the concealed gun demonstration with the detective was error) which appellant now claims constitutes prejudicial misconduct. Further, the record fails to disclose grounds for applying any exception to the general rule—such as futility, or when an admonition would not have cured the harm, or when the court immediately overrules an objection so that the defendant had no opportunity to make a request for admonition. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) As such, appellant's claim of prosecutorial misconduct is barred in its entirety. Moreover, even if we were to presume that this issue was preserved for appeal, it fails on its merits.
Appellant contends that his counsel was ineffective for failing to object to the alleged prosecutorial misconduct, which resulted in forfeiture of this claim. As discussed below, however, there was no prejudicial misconduct. As such, any failure to object did not constitute ineffective assistance of counsel. (See People v. Lucas (1995) 12 Cal.4th 415, 436 [defendant bears burden to establish both deficient performance and resulting prejudice in a claim of ineffective assistance of counsel].)
2. The prosecutor's use of the photograph was not misconduct.
A prosecutor's misconduct violates the federal Constitution and requires reversal when it infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) Under state law, a prosecutor's conduct that does not render a criminal trial fundamentally unfair is still misconduct if it involves the use of deceptive or reprehensible methods in attempting to persuade the trier of fact. (Id. at pp. 1009-1010.)
A prosecutor commits misconduct if he or she misstates the applicable law or the facts. (People v. Boyette (2002) 29 Cal.4th 381, 435.) Of course, it is particularly improper for a prosecutor to make remarks meant to absolve the government " 'from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (People v. Hill, supra, 17 Cal.4th at pp. 829-830.)
We summarize appellant's three cited opinions.
a. Katzenberger , supra , 178 Cal.App.4th 1260.
In Katzenberger, supra, 178 Cal.App.4th 1260, the prosecutor used a visual display in a PowerPoint presentation during closing arguments, showing a jigsaw puzzle of the Statue of Liberty coming together. (Id. at p. 1264.) The slide show moved six different puzzle pieces onto the screen sequentially, and the image was immediately and easily recognizable. The slide show finished when the sixth puzzle piece was in place, leaving two rectangular pieces missing from the image. (Ibid.) The prosecutor told the jury that they could conclude beyond a reasonable doubt what the picture depicted even before all of the pieces were in place. (Id. at p. 1265.) The Court of Appeal determined that this presentation, with the prosecutor's accompanying argument, invited "the jury to guess or jump to a conclusion," and it left a "distinct impression that the reasonable doubt standard may be met by a few pieces of evidence." (Id. at p. 1267.) Katzenberger found misconduct, but ultimately determined that the error was harmless. (Id. at p. 1269.)
b. Otero , supra , 210 Cal.App.4th 865.
In Otero, supra, 210 Cal.App.4th 865, the prosecutor used a PowerPoint during closing arguments, saying she wanted to give the jurors "an example of reasonable doubt." (Id. at p. 869.) The diagram showed the outlines of California and Nevada. Some of the cities within California were mislabeled or misidentified. The prosecutor contended that, even though there was inaccurate information, there was no doubt that California was depicted. (Id. at p. 870.) The Court of Appeal found misconduct. (Id. at p. 873.) The prosecutor's argument and presentation left an impression that the reasonable doubt standard may be met by a few pieces of evidence, which invited the jury to jump to a conclusion. (Id. at pp. 872-873.) Otero, however, ultimately found the error harmless. (Id. at p. 873.)
c. Centeno , supra , 60 Cal.4th 659.
In Centeno, supra, 60 Cal.4th 659, the prosecutor focused on reasonable doubt during rebuttal arguments and she asked the jury to consider a hypothetical criminal trial. She displayed a diagram showing the geographical outline of California, and she characterized the issue in the hypothetical trial as determining which state was depicted. She laid out hypothetical "testimony" that had inconsistencies, omissions, and inaccuracies. She asserted that even if the jurors had heard such evidence, they would have no reasonable doubt that the state was California. She then turned to the facts of the case before the jury. (Id. at p. 664.)
On appeal, our Supreme Court cited and reviewed Katzenberger and Otero with approval. (Centeno, supra, 60 Cal.4th at pp. 667-669.) Centeno held that "[t]he use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors' own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion." (Id. at p. 669.) The high court stated that "[f]acts supporting proof of each required element must be found in the evidence or the People's burden of proof is unmet. It is thus misleading to analogize a jury's task to solving a picture puzzle depicting an actual and familiar object unrelated to the evidence." (Id. at p. 670.) Centeno found the prosecutor's hypothetical misleading because it failed to accurately reflect the evidence in the case before the jury. (Ibid.) The prosecutor improperly left the jury with an impression that, "so long as her interpretation of the evidence was reasonable, the People had met their burden." (Id. at p. 672.) The high court determined that it was "reasonably likely that the prosecutor's hypothetical and accompanying argument misled the jury about the applicable standard of proof and how the jury should approach its task." (Id. at p. 674.)
Centeno noted that not all visual aids are suspect. (Centeno, supra, 60 Cal.4th at p. 671.) "The use of charts, diagrams, lists, and comparisons based on the evidence may be effectively and fairly used in argument to help the jury analyze the case." (Ibid.) "What occurred here was not the legitimate marshaling of evidence with charts outlining the facts or relating them to the legal concepts explained in the jury instructions. Instead the prosecutor offered a theoretical analogue, unrelated to the evidence, purporting to relate the exacting process of evaluating the case to answering a simple trivia question. As noted, judges and advocates have been repeatedly admonished that tinkering with the explanation of reasonable doubt is a voyage to be embarked upon with great care." (Ibid.)
Here, key distinctions exist that render the present situation distinguishable from appellant's cited authorities. Unlike in Katzenberger, Otero, and Centeno, the prosecutor did not use the photograph to discuss the burden of proof or to explain the definition of reasonable doubt. Instead, the prosecutor used the photograph to argue that circumstantial evidence was acceptable to prove the charges. Just before displaying the photograph, the prosecutor referenced the jury instructions dealing with circumstantial evidence and noted that neither direct nor circumstantial evidence "is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence, not part of the evidence, all of the evidence." The prosecutor's comments mirror the instruction appearing in CALCRIM No. 223.
Appellant is correct that the photograph called on the jurors to rely on information not developed from the trial, and the prosecutor did not link this image to any trial evidence. However, Katzenberger, Otero, and Centeno focused on prosecutorial misconduct from the use of "diagrams or visual aids to elucidate the concept of proof beyond a reasonable doubt ...." (Centeno, supra, 60 Cal.4th at p. 662.) That concern is lacking here. Unlike in Centeno, the prosecutor did not suggest that, so long as his interpretation of the evidence was reasonable, the People had met their burden of proof. The prosecutor did not ask the jurors to abandon the deliberative process. To the contrary, in using the photograph, the prosecutor urged the jury to review all of the evidence and avoid making a snap decision. The prosecutor cautioned the jury that focusing on something out of context could lead to an improper conclusion. Unlike in Katzenberger, Otero and Centeno, the prosecutor did not trivialize the deliberative process or leave an impression that the reasonable doubt standard may be met by a few pieces of evidence. We disagree with appellant's suggestion that the prosecutor "demeaned the burden of proof or asked the jury to reach a quick conclusion.
Moreover, the prosecutors in Katzenberger, Otero, and Centeno relied on false, misleading, inaccurate, and/or incomplete "evidence" in making their analogies with the respective iconic images. (Centeno, supra, 60 Cal.4th at p. 664 ["hypothetical 'testimony' ... that contained inconsistencies, omissions, and inaccuracies ...."]; Otero, supra, 210 Cal.App.4th at pp. 869-870 [map of California had mislabeled and inaccurately placed locations]; Katzenberger, supra, 178 Cal.App.4th at p. 1264 [puzzle of Statue of Liberty omitted two pieces].) In addition, the prosecutor in both Katzenberger and Otero used diagrams that contained an improper quantitative component. The Katzenberger prosecutor used an eight-piece puzzle and argued that the puzzle was solved after only six pieces, which inappropriately suggested "a specific quantitative measure of reasonable doubt, i.e., 75 percent." (Katzenberger, supra, 178 Cal.App.4th at p. 1268.) The Otero prosecutor also used eight components in her diagram of the State of California, which included the outline of California with seven other geographical representations. (Otero, supra, 210 Cal.App.4th at pp. 872-873.) In determining that the State of California was established, the prosecutor implied that the jury could rely on only one-eighth of the information, the readily recognizable outline of California. (Id. at p. 873.)
Here, in contrast, the prosecutor did not rely on inaccurate or incomplete information in asking the jury to examine all of the circumstantial evidence. Further, the prosecutor never suggested a specific quantitative measure was necessary for a determination of circumstantial evidence, much less for reasonable doubt. Rather, the prosecutor emphasized that the jury must examine all of the evidence, both direct and circumstantial.
Finally, we cannot say that the prosecutor's use of the photograph and his accompanying arguments misstated the law regarding the distinctions between direct evidence and circumstantial evidence. Direct evidence applies to the fact to be proved, immediately and directly, without help from any intervening fact or process. (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 50.) In contrast, circumstantial evidence is defined as "that which is applied to the principal fact, indirectly, or through the medium of other facts, from which the principal fact is inferred." (Id. at pp. 50-51.) It is clear that "direct evidence and circumstantial evidence are different." (People v. Livingston (2012) 53 Cal.4th 1145, 1166.) Our Supreme Court has held that jury instructions that differ between these types of evidence do not undermine the reasonable doubt standard or presumption of innocence. (Ibid.)
Here, in using the photograph, the prosecutor merely asserted that this was a case based on circumstantial evidence. The prosecutor demonstrated how different conclusions could be reached depending on how a person viewed the photograph, especially if someone focused on one detail to the exclusion of everything else. The prosecutor concluded by reminding the jury that "[t]here's all kinds of explanations if you don't look at all the evidence, but the law is very clear you look at it all." We disagree with appellant's contention that the photograph "demeaned" the protections afforded him in a criminal trial.
In reviewing the prosecutor's statements, we do not infer that the jury drew the most damaging rather than the least damaging meaning. This record does not establish a reasonable likelihood that the jury understood or applied the prosecutor's comments in an improper or erroneous manner. The prosecutor's comments did not infect the trial with such unfairness as to deny due process. The prosecutor did not use deceptive or reprehensible methods in attempting to persuade the trier of fact. As such, prosecutorial misconduct is not present under either federal or state law. Accordingly, this claim fails.
3. The prosecutor did not err when the detective showed his gun.
We also disagree with appellant's contention that the prosecutor's use of the photograph "enhanced other problematic statements and demonstrations" made during rebuttal argument. Appellant points to the prosecutor's request for the detective to show his concealed handgun to the jury. Appellant argues no evidence established that any codefendant wore a holster, and this demonstration improperly suggested that a firearm was present at the hotel parking lot. In addition to finding this issue forfeited on appeal, we reject this claim on its merits.
"A criminal prosecutor has much latitude when making a closing argument. Her argument may be strongly worded and vigorous so long as it fairly comments on the evidence admitted at trial or asks the jury to draw reasonable inferences and deductions from that evidence. [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.) An attorney is permitted to argue about matters not in evidence if it is drawn from common knowledge or illustrations drawn from common experience, history or literature. (People v. Wharton (1991) 53 Cal.3d 522, 567.) The California Supreme Court has sanctioned the use of demonstrations in closing argument even when they do not involve objects that were actually introduced into evidence. (See People v. Barnett (1998) 17 Cal.4th 1044, 1135-1136 [upholding prosecutor's demonstration involving a knife that was similar to the one that was used in the charged offense].)
Here, the prosecutor demonstrated how easily a person could conceal a handgun, which was an issue in dispute. The trial evidence permitted the prosecutor to make such an inference. This demonstration did not violate due process, and it was not a deceptive or reprehensible attempt to persuade the jury. Accordingly, misconduct is not present.
4. Any presumed prosecutorial misconduct was harmless.
Our Supreme Court has noted that arguments from counsel are generally considered to carry less weight with a jury than instructions from the trial court. (Centeno, supra, 60 Cal.4th at p. 676.) We are to presume that a jury will treat a prosecutor's comments as words spoken by an advocate in an attempt to persuade while the court's instructions are viewed as binding statements of law. (Ibid; accord People v. Seaton (2001) 26 Cal.4th 598, 646.)
In Centeno, however, these presumptions were inapplicable because the prosecutor's hypothetical "did not directly contradict the trial court's instruction on proof beyond a reasonable doubt, but instead purported to illustrate that standard." (Centeno, supra, 60 Cal.4th at p. 676.) Because its case was close, and without any corrective action taken to mitigate the prosecutor's misconduct, Centeno held that there was a reasonable probability the prosecutor's argument caused one or more jurors to convict the defendant based on a lesser standard than proof beyond a reasonable doubt. As such, the convictions were reversed. (Id. at p. 677.)
Here, in contrast to Centeno, the prosecutor's disputed actions were brief and they were not emphasized. It appears unlikely that the jury placed much, if any, importance on them. The prosecutor did not attempt to illustrate the burden of proof with the photograph but encouraged the jury to examine all of the evidence and not focus on one detail. Unlike Centeno, it is not reasonably probable that at least one juror convicted appellant based on a lesser standard of proof than beyond a reasonable doubt.
The trial court instructed the jury regarding the definition of reasonable doubt, the presumption of innocence, and the prosecution's obligation to prove that appellant was guilty beyond a reasonable doubt. The court instructed the jury regarding its obligation to follow the law as set forth in the instructions, and to disregard attorney comments that were inconsistent with the instructions. The jury was told that "[n]othing that the lawyers say is evidence." We presume the jury followed these instructions. (People v. Boyette, supra, 29 Cal.4th at p. 436; see also People v. Prince (2007) 40 Cal.4th 1179, 1295.) We also presume " 'the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' " (People v. Seaton, supra, 26 Cal.4th at p. 646.) Thus, we conclude that any lingering danger the jury might have misinterpreted or been misled by the prosecutor's comments, however unlikely, was eliminated by the jury instructions the trial court gave in this case.
Based on this record, we cannot say that the prosecutor's use of the photograph and his demonstration with the detective rendered this trial fundamentally unfair. As such, any presumed misconduct did not rise to a due process violation. Because appellant's federal constitutional right to a fair trial was not violated, we apply the state standard for harmless error: whether it is reasonably probable that appellant would have obtained a more favorable result in the absence of the prosecutor's actions. (People v. Tully, supra, 54 Cal.4th at p. 1010.)
Under the state standard, even if we presume prosecutorial misconduct occurred, the prosecutor's actions were harmless. It is not reasonably probable that appellant would have obtained a more favorable result in the absence of the prosecutor's disputed conduct. Accordingly, any presumed error was not prejudicial and this claim fails.
III. Sufficient Evidence Supports The Conviction For Attempted Robbery.
Appellant argues that insufficient evidence supports his conviction for attempted robbery (count 1).
A. Standard of review.
For an appeal challenging the sufficiency of evidence, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt based on " ' "evidence that is reasonable, credible, and of solid value ...." ' " (People v. Jones (2013) 57 Cal.4th 899, 960.) In doing this review, we are not required to ask whether we believe the trial evidence established guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Rather, the issue is whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence favorably for the prosecution. (Id. at p. 576.) We are to presume the existence of any fact the jury could have reasonably deduced from the evidence in support of the judgment. (Ibid.) It is not our role on appellate review to reweigh evidence or judge witness credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
The standard of review is the same in which a conviction is based primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522, 625.) "In a case built solely on circumstantial evidence, none of the individual pieces of evidence 'alone' is sufficient to convict. The sufficiency of the individual components, however, is not the test on appeal." (People v. Daya (1994) 29 Cal.App.4th 697, 708.) Rather, when reviewing the sufficiency of circumstantial evidence, we must consider such evidence cumulatively and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. (Id. at p. 709.)
B. Analysis.
Appellant argues that the evidence was "purely speculative" that he held an intent to commit robbery and he contends his conduct did not go beyond mere preparation. We disagree.
Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) An attempt to commit a robbery is its own crime, which is punished under section 213, subdivision (b). In order to constitute such an attempt, the prosecution is required to prove (1) the specific intent to commit robbery and (2) a " 'direct but ineffectual act done toward its commission.' " (People v. Watkins (2012) 55 Cal.4th 999, 1018, quoting § 21a.) The act required must be more than mere preparation, and it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. (People v. Kipp (1998) 18 Cal.4th 349, 376.) "Where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]" (People v. Bonner (2000) 80 Cal.App.4th 759, 764 (Bonner).)
Our Supreme Court has acknowledged "that the line between mere preparation and conduct satisfying the act element of attempt often is difficult to determine; the problem 'is a question of degree and depends upon the facts and circumstances of a particular case.' [Citation.] The act that goes 'beyond mere preparation' need not constitute an element of the target crime [citation] and it ' "need not be the ultimate step toward the consummation of the design." ' [Citation.] Instead, ' "it is sufficient if [the conduct] is the first or some subsequent act directed towards that end after the preparations are made." ' [Citation.] In other words, we have explained, the act must represent ' "some appreciable fragment of the crime." ' [Citations.]" (People v. Watkins, supra, 55 Cal.4th at p. 1021.)
We find instructive three opinions: (1) People v. Vizcarra (1980) 110 Cal.App.3d 858 (Vizcarra); (2) Bonner, supra, 80 Cal.App.4th 759; and (3) People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez).
1. Vizcarra , supra , 110 Cal.App.3d 858.
In Vizcarra, the defendant was observed wearing a poncho and standing on a walkway just outside a liquor store late at night. A customer walked past and the defendant immediately turned his face to the wall so that his nose was against the wall. The customer observed the butt of a rifle protruding from the defendant's poncho. The defendant walked across the street to his car. Later, he again drove past the liquor store. (Vizcarra, supra, 110 Cal.App.3d at pp. 861-862.) The Court of Appeal found sufficient evidence of attempted robbery of the liquor store. "Approaching the liquor store with a rifle and attempting to hide on the pathway immediately adjacent to the liquor store when observed by a customer, is in the opinion of this court a sufficient direct act toward the accomplishment of the robbery." (Id. at p. 862.) "It is true that an element of force or fear must be proved in order to establish a conviction for robbery under ... section 211. It is not necessary, however, for this element to be reflected in the overt act of an attempted robbery if the crime has not progressed to that point." (Ibid.)
Our Supreme Court summarized and cited Vizcarra with approval in both People v. Watkins, supra, 55 Cal.4th at p. 1022 and recently in Sánchez, supra, 63 Cal.4th at p. 470.
2. Bonner , supra , 80 Cal.App.4th 759.
In Bonner, the defendant admitted he went into a hotel to commit a robbery. Once inside the laundry room, however, he changed his mind and decided not to commit the crime. However, he was discovered. (Bonner, supra, 80 Cal.App.4th at pp. 762-763.) On appeal, the defendant noted that he "was never in close proximity to either victim and made no demand on either for money." (Id. at p. 763.) The appellate court, however, determined that the defendant "went armed to the scene, placed a mask over his face, [and] waited in hiding moments before his victim's approach," at which point he was discovered. (Id. at p. 764, fn. 3.) The appellate court found this sufficient evidence to uphold the defendant's conviction for attempted robbery. (Ibid.)
Our Supreme Court recently cited and summarized Bonner with approval in Sánchez, supra, 63 Cal.4th at p. 470.
3. Sánchez , supra , 63 Cal.4th 411.
In Sánchez, supra, 63 Cal.4th 411, five men, including the defendant, arrived at a coffee shop armed. They positioned a car to make a quick getaway. The men entered the coffee shop and then went outside. They lingered outside until the owner called the police. (Id. at p. 470.) On appeal, our Supreme Court held this was sufficient evidence to uphold a conviction for attempted robbery because a jury could have found the necessary act beyond mere preparation. (Ibid.)
Here, in light of Sánchez, Bonner, and Vizcarra, sufficient evidence supports the conviction for attempted robbery. Ditlevson agreed to meet Riley to sell him OxyContin. Ditlevson drove the Codefendants to the hotel parking lot where an undercover officer observed appellant and Villegas. The officer became concerned that these men realized that undercover officers were present. Ditlevson then asked Riley to change the location of the sale to the park.
Almost immediately after Riley relocated to the park, appellant and Villegas were spotted walking towards him. Riley had never seen these individuals before. Appellant and Villegas, however, knew Riley's location.
As they walked towards Riley, appellant covered his face and was holding a gun under his left armpit. Appellant and Villegas made eye contact with Riley, and they came within about 10 or 15 yards of his location before Riley, fearing for his safety, drove away. When detained, neither Ditlevson nor the Codefendants possessed drugs. A loaded handgun was found in Ditlevson's vehicle. The totality of this evidence strongly suggests an intent to rob Riley.
Similar to Sánchez, Bonner, and Vizcarra, appellant's and Villegas's actions established that they had put their criminal plan into motion. Appellant and Villegas went beyond "mere preparation" as they began walking towards Riley with a weapon, and they came within 10 or 15 yards of Riley's location while appellant concealed his face.
In his briefs and again at oral argument, appellant cited People v. Anderson (1934) 1 Cal.2d 687 (Anderson). In Anderson, the Supreme Court affirmed a conviction for first degree murder and an unrelated robbery after the defendant approached a ticket booth at a theater with a loaded firearm, drew the revolver when about two feet from the booth, and the gun discharged just as he put it near the ticket agent. (Id. at pp. 688-689.) Anderson noted that the defendant's conduct in concealing the gun and going to the general vicinity of the theater with an intent to commit robbery was a mere act of preparation. However, he went beyond mere preparation when he pulled out his gun about two feet from the booth. Anderson affirmed that the evidence disclosed an overt act reasonably directed toward an intended robbery so that first degree murder was proper. (Id. at p. 690.)
Based on Sánchez, supra, 63 Cal.4th 411, Bonner, supra, 80 Cal.App.4th 759, and Vizcarra, supra, 110 Cal.App.3d 858, we disagree that Anderson dictates reversal of the present matter.
It is immaterial that Riley fled and prevented appellant and Villegas from carrying out their plan. Once it is established that a defendant intended to commit a specific crime and put his or her plan into action, the crime of attempt is complete even if the underlying crime was prevented by some collateral reason. (People v. Toledo (2001) 26 Cal.4th 221, 230.) "The crime of attempted robbery requires neither the commission of an element of robbery nor the completion of a theft or assault." (People v. Lindberg, supra, 45 Cal.4th at p. 28.)
Based on a review of the entire record in the light most favorable to the judgment, a rational jury could have found appellant guilty beyond a reasonable doubt of attempted robbery. The cumulative circumstantial evidence established both appellant's intent to rob Riley and the beginning of the plan to execute a robbery. This evidence was reasonable, credible and of solid value. Accordingly, sufficient evidence supports the conviction in count 1 and this claim fails.
IV. Sufficient Evidence Supports The Firearm Enhancement.
In count 1, the jury found true that appellant personally used a firearm in violation of section 12022.53, subdivision (b). As a result, an additional and consecutive 10-year prison term was added to appellant's sentence. He now asserts that the evidence was insufficient to support the jury's true finding. He contends that he never displayed a gun and there is no evidence that he intentionally used a firearm.
A. Standard of review.
We review this issue under the same substantial evidence standard that applies to convictions; there must be evidence that is reasonable, credible and of solid value from which a reasonable jury could have found appellant guilty beyond a reasonable doubt. (See People v. Albillar (2010) 51 Cal.4th 47, 59-60 [applying substantial evidence standard to an enhancement].)
B. Analysis.
Pursuant to section 12022.53, any person who "personally uses a firearm" in the commission of certain specified felonies, including attempted robbery, "shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years." (§ 12022.53, subds. (a)(4) & (18), (b).)
There are no precise formulas, or particular fact patterns to follow, to determine whether a gun was used in the commission of an offense, at least as an aid. (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1002 (Alvarado).) Our Supreme Court has cautioned that the term requires something more than the defendant merely being armed. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007; accord People v. Chambers (1972) 7 Cal.3d 666, 672.) " 'Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. "Use" means, among other things, "to carry out a purpose or action by means of," to "make instrumental to an end or process," and to "apply to advantage." [Citation.]' " (People v. Bland (1995) 10 Cal.4th 991, 997.)
For purposes of denial of probation, the Penal Code defines the term "used a firearm" as "to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section 12022.5." (§ 1203.06, subd. (b)(2).) Based on this statutory definition, CALCRIM No. 3146, which the trial court read to the jury here, instructs that a person personally uses a firearm if he or she intentionally (1) displays the weapon in a menacing manner; (2) hits someone with the weapon; or (3) fires the weapon. (See People v. Grandy (2006) 144 Cal.App.4th 33, 42 [applying this definition to § 12022.53, subd. (b)].)
Section 12022.5, subdivision (a), imposes additional and consecutive terms of imprisonment of 3, 4, or 10 years on any person who personally uses a firearm in the commission of a felony or attempted felony, unless use of a firearm is an element of that offense.
The Court of Appeal has noted that the distinction between use and possession is whether the defendant took some action with the gun in furtherance of the crime's commission. If so, the gun was used and an enhanced sentence is appropriate. (People v. Granado (1996) 49 Cal.App.4th 317, 324-325, fn. 7 (Granado); accord Alvarado, supra, 146 Cal.App.4th at p. 1003.) "Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to judicial exemption from [the firearm enhancement]." (Granado, supra, 49 Cal.App.4th at p. 325.) "If, on the other hand, the defendant engaged in no weapons-related conduct, or such conduct was incidental and unrelated to the offense," then no use occurred and a lesser enhancement applies. (Id. at p. 325, fn. 7.)
The personal use enhancements address the clear escalation of danger that arises when a defendant deploys a firearm. (Granado, supra, 49 Cal.App.4th at p. 327.) "By merely bringing a gun 'into play,' the defendant removes impediments to its actual discharge and thus enhances the danger of violent injury not only through an intentional act by the victim or a third party, but through an impulsive or inadvertent act by the defendant." (Ibid.) A reviewing court should broadly construe the term "uses" to further the legislative intent to deter the use of firearms in the commission of specified felonies. (People v. Wilson (2008) 44 Cal.4th 758, 806-807.)
Here, as he walked towards Riley, appellant reached under his left armpit where he had a loaded firearm. The evidence strongly suggests that appellant held the firearm in his hand. Based on his body language, appellant communicated that he was armed. Indeed, although Riley never saw a gun, he noted the positioning of appellant's hand and, fearing for his safety, he drove away as appellant and Villegas approached.
This record indicates that appellant took some action with a loaded firearm which produced a fear of harm, and which aided him in the commission of the attempted robbery. Because the evidence indicates that appellant held a loaded firearm, he brought his gun into play and he removed an impediment to its actual discharge. Appellant's conduct enhanced the danger of violent injury. It is not important that Riley fled without realizing the firearm was actually present because evidence existed allowing the jury to reasonably find that appellant intended for his gun-related action to facilitate the commission of this crime.
Based on the cumulative circumstantial evidence in this record, a rational jury could have concluded beyond a reasonable doubt that appellant used a firearm in his attempt to rob Riley. This evidence was reasonable, credible, and of solid value. Accordingly, an enhanced sentence was appropriate and this claim fails.
V. Sufficient Evidence Supports The Gang Enhancement.
Appellant contends that insufficient evidence supports the gang enhancement imposed pursuant to section 186.22, subdivision (b). In resolving this claim, the parties dispute whether we should disregard the testimony of the prosecution's gang expert. Appellant asserts that various portions of the expert's testimony were conclusory opinions or not based on proper hypotheticals. In contrast, respondent claims that the expert's testimony was proper.
We need not, however, address the parties' disagreement. Without relying on those disputed portions of the expert's testimony, this record contains ample substantial evidence that supports the gang enhancement.
Section 186.22, subdivision (b)(1), provides for an enhanced prison sentence when a felony is committed (1) for the benefit of, at the direction of, or in association with a criminal street gang, and (2) with the specific intent to promote, further, or assist in criminal conduct by gang members. (People v. Albillar, supra, 51 Cal.4th at p. 59.) Committing a crime in concert with other known gang members is substantial evidence inferring that a defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. (People v. Miranda (2011) 192 Cal.App.4th 398, 412; accord People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Moreover, a "specific intent to benefit the gang is not required." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Instead, a specific intent to assist gang members in any criminal conduct is sufficient to satisfy section 186.22, subdivision (b). (Morales, at p. 1198.) A jury can reasonably infer the requisite association from the very fact that the defendant committed the charged crimes with fellow gang members. (Ibid.)
Here, in committing this crime, appellant acted in concert with Villegas and Serrato. It was stipulated that both appellant and Serrato were active Norteño gang members when this crime was committed. It was also stipulated that the Norteños are a criminal street gang within the meaning of section 186.22. Photographs taken from Villegas's cellular phone showed him in various poses and attire that were attributed to the Norteño gang. Villegas had at least one photograph of appellant, and Villegas was also in other photographs with both appellant and Serrato.
Based on this evidence, the jury could have inferred that appellant committed this crime in association with the Norteño criminal street gang. The evidence also suggests that appellant knew that Villegas and Serrato were Norteño gang members. The evidence indicates that appellant acted with the specific intent to assist Villegas and Serrato in criminal conduct.
We reject appellant's contention that a gang enhancement is improper because Ditlevson was not a gang member and he was the alleged "mastermind" of the entire incident. Regardless of Ditlevson's role, sufficient evidence establishes that appellant acted in concert with other known Norteño gang members. That is substantial evidence which supports an inference that appellant "acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.]" (People v. Villalobos, supra, 145 Cal.App.4th at p. 322.)
Based on the evidence taken in the light most favorable to the judgment, a rational jury could have concluded beyond a reasonable doubt that appellant committed this crime (1) for the benefit of, at the direction of, or in association with a criminal street gang, and (2) with the specific intent to promote, further, or assist in criminal conduct by gang members. This evidence was reasonable, credible and of solid value. Accordingly, the gang enhancement is appropriate and this claim fails.
VI. We Remand This Matter So The Trial Court May Exercise Its Discretion Regarding The Firearm Enhancement.
At the time of appellant's sentencing in this matter, section 12022.53 imposed a mandatory additional and consecutive prison sentence of 10 years when a defendant personally used a firearm during the commission of certain enumerated felonies. (Former § 12022.53, subd. (b).) Because of appellant's personal firearm use during this attempted robbery, his sentence included this mandatory 10-year prison enhancement.
On October 11, 2017, the Governor approved Senate Bill number 620, which amended sections 12022.5 and 12022.53. Under the amendments, a trial court now has discretion to strike or dismiss a firearm enhancement otherwise required to be imposed at the time of sentencing pursuant to these sections. (§§ 12022.5, subd. (c); 12022.53, subd. (h).)
Via supplemental briefing, the parties agree, as do we, that this amendment applies retroactively to appellant because his case is not yet final. The Supreme Court has held that where an amended statute mitigates punishment and there is no saving clause, the amendment operates retroactively so that the lighter punishment is imposed. (In re Pedro T. (1994) 8 Cal.4th 1041, 1053-1054.) Courts are to presume that a legislative act mitigating punishment for a particular criminal offense is intended to apply to all nonfinal judgments. (People v. Brown (2012) 54 Cal.4th 314, 324.)
Although respondent agrees that this amendment applies here, respondent opposes remand. Respondent contends the trial court would not have struck the firearm enhancement. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [finding it unnecessary to remand matter for trial court to consider retroactive discretionary authority].) During sentencing, the trial court noted that appellant was only 23 years old, but he had a lengthy criminal history. The court denied probation and imposed the upper term on the attempted robbery charge. The court commented that appellant was "a bad man," so "the aggravated term" was appropriate.
Although the trial court's comments at sentencing suggest it will not strike or dismiss the firearm enhancement otherwise required to be imposed, we decline to make any such presumptions. The amendments to sections 12022.5 and 12022.53 represent a substantial change in the sentencing law vis-à-vis firearm enhancements. In light of the legislative change and the clear intent for sentencing courts to exercise this discretion, we remand this issue in the interests of justice. (See § 1260 [an appellate court may remand the cause to the trial court for further proceedings as may be just under the circumstances].)
We take no position regarding how the trial court should exercise its discretion.
DISPOSITION
The sentence is vacated. The matter is remanded to the trial court for resentencing for the court to determine whether to exercise its discretion to strike the firearm enhancement pursuant to section 12022.53, subdivision (h). In all other respects, the judgment is affirmed. Following resentencing, the court shall forward an abstract of judgment to the appropriate authorities.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
SMITH, J.