Opinion
B300396
05-02-2022
The PEOPLE, Plaintiff and Respondent, v. Luis Julian Beltran PEREZ et al., Defendants and Appellants.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant Luis Julian Beltran Perez. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Manuel Rosas. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Salvador Sanchez. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
This opinion is certified for publication with the exception of the Contentions and parts I, II, IV, V, VII, VIII, IX, X, XI, XII, XIII, XIV of the Discussion. (Cal. Rules of Court, rule 8.1110.)
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant Luis Julian Beltran Perez.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Manuel Rosas.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Salvador Sanchez.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellants Luis Julian Beltran Perez, Edgar Manuel Rosas, and Salvador Sanchez engaged in a fist fight with two men outside of a liquor store in the middle of the day. During the fight, Perez retrieved a gun from his car and fired at the two men as they ran into a busy street. Perez's shots missed the men, but struck three passing vehicles, including a four-year-old boy in the backseat of his mother's car. Appellants raise numerous claims on appeal, including the sufficiency of the evidence, admission of expert testimony, application of the natural and probable consequences doctrine to the attempted murder counts, prosecutorial misconduct, and instructional error. Appellants also argue that the abstracts of judgment must be corrected. For the following reasons, we affirm in part and reverse in part the judgments and remand with directions.
BACKGROUND
A. Prosecution evidence
1. Testimony of Tyler Oliver and Danny Candler
Around 11:42 a.m. on June 7, 2017, Tyler Oliver and Danny Candler walked to LMG Liquor (LMG) located on East Compton Boulevard, about one block east of Atlantic Avenue in Compton. As Oliver and Candler approached LMG, Candler saw a group of three to four Hispanic men outside LMG talking to a Black woman. When Oliver and Candler were near LMG's entrance, Candler noticed that the Hispanic men were staring at him, and he felt uncomfortable. Candler approached one of the men and asked the group, "What are you staring at?" No one responded, and Candler asked again. Someone in the group said, "Fuck niggers." Someone asked Candler, "[W]here you from?" and "[D]o you bang?" Candler responded, "[N]o." Someone repeated, "Fuck niggers," and another yelled out, "Compton Varrio Segundos."
A fight broke out between Candler and the Hispanic males, which Oliver joined. The fight proceeded west on the sidewalk of Compton Boulevard toward Atlantic Avenue. Oliver saw a glare from something that he thought was a knife or a gun in the hand of one of the Hispanic men. Oliver told Candler, "[L]et's go." Oliver and Candler ran side by side into the middle of Compton Boulevard and toward Atlantic Avenue before splitting up, with Candler running down the sidewalk away from the group and Oliver cutting an angle across Compton Boulevard. When Candler looked back, he saw someone with a gun on the sidewalk and heard a shot fire and saw a muzzle flash. The back window of a green SUV shattered. When Candler looked back again, the shooter was in the middle of Compton Boulevard. Candler heard four or five more shots before he ran across the crosswalk on Atlantic Avenue.
As Oliver neared the intersection at Atlantic Avenue, he asked Silvia U., who had pulled over in her black pickup truck, if he could get in. Silvia U. unlocked the door and Oliver got in the front passenger seat. Oliver yelled to Candler to get in as well and the two sat together in the front passenger area. Silvia U. drove a short distance before Oliver and Candler got out of the vehicle and thanked her for picking them up. Oliver and Candler proceeded to Candler's aunt's house but did not call the police. Approximately six months after the shooting, Oliver was pulled over for running a red light. He had a loaded revolver in his car and told deputies he was a "West Coast Crip" gang member.
At trial, Oliver denied that he said he was a gang member when he was pulled over; rather, Oliver testified that he told the deputy who pulled him over that he knew he was in Crip territory.
2. Testimony of Sharice Johnson and Miriam Rios
On the day of the shooting, Sharice Johnson went to LMG to purchase something. Johnson spoke with Miriam Rios outside LMG's front door. As Johnson and Rios were talking, Oliver and Candler walked up to LMG while a group of three or four young Hispanic men were talking amongst themselves. Candler aggressively walked up to one of the Hispanic men and asked him, "[W]hat the fuck you lookin’ at?" The man looked scared and responded, "I'm not looking at you. I'm not worried about you." Rios heard Candler ask one of the Hispanic men, "[W]here you from," and the man answered, "I don't bang." Johnson then heard Candler say "Duccy Hood Crip." Rios did not hear anyone yell out "Duccy Hood Crips" or "Compton Varrio Segundos."
Neither Johnson nor Rios heard anyone say the "N word."
Candler moved backwards, and the Hispanic group moved towards him. Candler swung first and the other Hispanic men joined in the fight. As the fight moved down the sidewalk towards Atlantic Avenue, another man came from LMG's parking lot area holding a gun by his side. Oliver and Candler ran diagonally into Compton Boulevard. The shooter ran after Oliver and Candler into the middle of the street and then fired two or three shots at them. When Johnson heard the gunshots, she grabbed Rios and took shelter inside LMG.
Johnson called 911. She reported that "two Black boys" walked up to "the Mexicans," who were talking to each other, "and just banged on ‘em." The "short Mexican" was getting beaten up and "the other Mexican" showed up with a gun and "just started shooting and they all ran across the street."
An audio recording of the 911 call was played to the jury.
3. LMG's surveillance videos
The fight and subsequent shooting were captured on LMG's surveillance system. The video shows Johnson and Rios arriving at LMG separately. A few moments later, four Hispanic men, including a man on a bike, Sanchez, and Miguel Cano arrive at LMG together. Two of the men wait outside while Sanchez and Cano walk into LMG. A few moments later, Perez pulls into LMG's parking lot with his car and Rosas arrives on his bike. The group gathers on the sidewalk in front of LMG's entrance and appears to be talking amongst themselves while Cano and Perez stare in the direction of Atlantic Avenue where Candler and Oliver are approaching. Johnson and Rios are seen standing separately outside of LMG talking. Candler and Oliver approach LMG from Atlantic Avenue. When they are close to LMG's entrance, Candler walks directly to Cano and stops less than a foot away from Cano while Oliver stops in front of LMG's entrance. Candler exchanges words with Cano and Sanchez, and Oliver moves closer to Candler. Candler walks backwards and puts his hands up like he is getting ready to fight. Cano and Sanchez move towards Candler, and Oliver walks backwards toward Atlantic Avenue. As the fight breaks out, Perez runs to his car and retrieves a handgun.
As Candler and Tyler fight with Cano and Sanchez, Rosas joins. The fight continues down the sidewalk towards Atlantic Avenue. Perez returns to the front of the store, holding a gun down by his right side. When Candler and Oliver notice Perez approaching with a gun by his side, they turn and run onto Compton Boulevard as Perez points the gun at them. As Candler and Oliver run behind a parked car and out of view, Perez lowers his gun and chases them into the street.
Appellants’ group runs back to LMG while Candler runs in the opposite direction on Compton Boulevard. When appellants’ group reaches LMG's parking lot, they run in different directions down an alley behind LMG. Before driving away, Perez hands the gun to Cano and then drives down the alley in the same direction as Rosas and Sanchez.
4. Silvia U.’s testimony
Silvia U. was driving westbound on Compton Boulevard approaching Atlantic Avenue while her four-year-old son, Pedro B., and three-year-old daughter, Silvia B., were seated in their car seats behind her. As she approached LMG on her left, she saw two Hispanic men fighting with two Black men in front of the store. Silvia U. stopped at the intersection of Compton Boulevard and Atlantic Avenue for a red light. While Silvia U. was stopped, she heard five to six gunshots and her window break. She panicked and turned right on Atlantic Boulevard and stopped when two Black men approached the passenger side of her car and asked if they could get in. The men appeared scared, and Silvia U. wanted to help so she let them in the front passenger seat. She did not see if the men were armed.
Silvia U. drove down Atlantic Avenue for a few seconds before stopping to check on her children. As she got out of her vehicle, the two men also exited and left. One of them said, "God bless you." When Silvia U. checked on her children, Silvia B. was crying, and Pedro B. was nonresponsive. Silvia U. noticed blood on Pedro B.’s head and on the headrest behind his car seat.
5. Testimony of Angel Manzo and Ingrid Fuentes
On the day of the shooting, Angel Manzo was driving westbound on Compton Boulevard when he noticed two Black men and a group of Hispanic men fighting next to LMG. As he drove by, one of the Black men ran behind his truck and the second Black man ran on the sidewalk on his driver's side. Both men ran towards Atlantic Avenue. Manzo stopped his truck when his rear windows exploded. He did not hear any gunshots.
Ingrid Fuentes and her three-year-old son were driving near Compton Boulevard and Atlantic Avenue. Fuentes pulled onto Compton Boulevard, heading westbound towards Atlantic Avenue. She heard gunshots and something like a rock hit her car. A black vehicle crossed in front of Fuentes's vehicle, and she saw a Black man carrying a pistol in his left hand get in the passenger side of the black vehicle. Fuentes entered a nearby school's parking lot and told a security guard that her car had been struck by a bullet. She called 911 and reported the shooting.
6. Pedro B.’s injuries and treatment
Los Angeles County Sheriff's deputies responded to the shooting. They transported Pedro B. to the hospital to treat the gunshot wound to the back of his head.
Pedro B. had the bullet surgically removed from his head and was placed in a medically induced coma for five days. When he woke up, he could not talk or move his right side. At the time of trial, Pedro B., who was six years old, was able to walk, run, and talk like a three year old.
7. Sheriff's investigation
Deputies Francis Quinones and Lamar Johnson responded to the scene and saw Silvia U.’s truck with a shattered window and Pedro B. suffering from a gunshot wound. There was a bullet hole on the rear driver side window, and a bullet had gone through the rear driver's side headrest.
Manzo's vehicle was on the northeast corner of Compton Boulevard and Atlantic Avenue. The back glass and rear passenger side windows were shattered. Two bullets were recovered from the floorboard of the front passenger seat and from the front center area. There was a bullet hole on the back of Fuentes's vehicle. A bullet was recovered in the rear door handle area. Deputies interviewed Fuentes in the elementary school parking lot. After Fuentes heard gunshots, she stopped her car and saw a young Black man wearing a black hoody run past her car towards Compton Boulevard and Atlantic Avenue. The young man entered a dark vehicle, and the vehicle drove off. Fuentes did not mention that the man had a gun, and she was not sure if he was the shooter.
Five cartridge casings were found on Compton Boulevard in front of a business adjacent to LMG. The five cartridges were the same brand and fired from the same firearm. The bullets recovered from Manzo's vehicle, Fuentes's vehicle, and Pedro B.’s head were all fired from the same weapon.
On the evening of the shooting, detectives searched Rosas's residence and recovered a rifle with an empty magazine in his dresser. Rosas had found the rifle about three weeks prior and did not know if it worked.
Deputies arrested Rosas and interviewed him a few days after the shooting. He admitted that he had been a member of Compton Varrio Segundos since he was 14 or 15 years old. Rosas said that Compton Varrio Segundos get along with other gangs and that he had never heard of Duccy Hood. He did not know the Black men who came towards them and did not believe they were in a gang or that they said a gang name before the fight. He could not recall if they were armed. Rosas admitted that he was at LMG that day to buy a blunt when he saw persons that he knew and spoke with them. According to Rosas, the two Black men approached his group and started a fight. Rosas did not strike anyone. He said that, after the fight, someone shot "the little kid." Rosas did not know the shooter had a gun.
Rosas was 33 years old at the time of the shooting.
Detectives identified Perez's vehicle from the surveillance video and located it at a nearby tire shop where Perez worked. On the morning of the shooting, Perez arrived around 8:00 a.m. and left for lunch around 11:30 a.m. 8. Gang evidence
Los Angeles County Sheriff's Detective Joseph Sumner testified as the prosecution's gang expert. Detective Sumner had been a gang investigator in Compton and was an expert on Compton Varrio Segundos.
At the time of the shooting, Compton Varrio Segundos had about 80 to 100 members. Compton Varrio Segundos had few allies in the area, but associated with Duccy Hood Compton Crips. Although Compton Varrio Segundos and Duccy Hood Compton Crips fought in the past, at the time of the shooting, there was no conflict between them. Duccy Hood Compton Crips's and Compton Varrio Segundos's territory overlapped, but Duccy Hood had only about 10 members and had mostly disbanded over the past 15 years. Detective Sumner found no evidence that Candler or Oliver were members of Duccy Hood Compton Crips.
LMG is located in Compton Varrio Segundos's territory, and members frequently hang out in front of the store. Detective Sumner opined that gangs use business establishments like LMG to control their territory. They can use it to look out for other gang members coming into their neighborhood, harass people, and to sell narcotics. When a perceived enemy enters a gang's territory, the gang member will ask where they are from and possibly say their gang name.
Detective Sumner testified about rules that gangs tend to follow. If gang members hang out on their territory's borders, someone must have a firearm. Gangs use firearms or weapons to defend themselves and to boost their reputation. Violence escalates more quickly in gang-related fist fights because someone will usually go for a weapon. Committing shootings for the gang elevates the member's reputation and the gang's reputation generally.
Detective Sumner identified Rosas, Perez, Sanchez, and Cano in the surveillance video. He also identified them based on photographs of their gang tattoos.
Based on a hypothetical comprised of the facts of the case, Detective Sumner opined that the fistfight and the shooting were committed for the benefit of the gang because it showed that they were willing to attack anybody that comes into their territory and instilled fear in the community. He also stated that when one member of a gang decides to fight an enemy, other gang members have to join the fight. A group of Hispanic gang members staring down individuals of another race in their territory would constitute a gang challenge.
B. Defense evidence
1. Perez's testimony
Perez testified on his own behalf. On the day of the shooting, he went to work at the tire shop around 8:00 a.m. Around 11:30 a.m., his mother stopped by with Perez's grandmother. Perez dropped his grandmother off nearby before driving to LMG at 11:40 a.m. Perez did not plan to meet anyone at LMG. He saw some people he knew inside LMG and greeted them. When he was outside talking with his friends, Candler and Oliver approached the group. Candler yelled at Cano, "[W]hat you lookin’ at?" Cano responded, "not at you." No one from Perez's group said Compton Varrio Segundos. Candler said, "I'm from West Coast Crip" and raised his fists. Perez saw Oliver with his hand in his pocket and saw a handle of a gun next to Oliver's right arm. When the two groups started fighting, Perez ran to his car to grab his gun to defend himself and his friends.
After Perez returned from his car, the fight had moved from the front of LMG and down the sidewalk toward Atlantic Avenue. Perez fired four shots when he saw Oliver in the middle of the street pointing a gun toward him and his friends. Perez did not aim at the cars or Oliver but shot in the air.
After the shooting, Perez returned to the tire shop. He did not contact police. Deputies arrested Perez at the tire shop and took him into custody and left him handcuffed in the back of the patrol car for about eight hours before interviewing him. Perez denied being a current member of Compton Varrio Segundos.
2. Perez's interview
Detectives interviewed Perez. On the day of the shooting, Perez was at work when his grandmother came to see him around 11:30 a.m. Around 11:45 a.m., Perez's friends Jerry and Karen, who had borrowed Perez's car, came to the tire shop and drove Perez and his grandmother to a nearby charter bus terminal. After his grandmother left on a bus at 12:30 p.m., Perez returned to work. While Perez was waiting at the terminal, he heard two or three gunshots, but did not see anyone shooting.
Perez had been to LMG before but was not there on the day of the shooting. While Perez was with his grandmother at the bus terminal, Karen and Jerry drove around the area. Perez used to be a member of Compton Varrio Segundos but was no longer active. Perez did not own a gun and was scared of guns.
When shown the surveillance video, Perez denied that he was the person shown in the video or that the car was his.
3. Defense gang expert
Martin Flores testified as the defense's gang expert. He opined that LMG was not a hangout for Compton Varrio Segundos because the gang's illegal activity would be captured by the surveillance cameras around the store. Further, LMG's location on a main street made the gang an easy target by rival gangs or law enforcement. There was also tagging on and around LMG that did not belong to Compton Varrio Segundos. While Flores found that LMG was within Compton Varrio Segundos's territory, Flores stated that, except in some rare circumstances, gangs do not control local businesses.
He further opined that gangs do not have a rule that members must be armed. Although he admitted that gang-related fights could escalate into a more violent confrontation if a weapon was brought out, they do not have to necessarily escalate into something more violent.
C. Procedure
An amended information charged appellants with premeditated attempted murder ( Pen. Code, §§ 187, 664 ; counts 1, 2), and shooting at an occupied motor vehicle (§ 246; counts 6, 7, 8). Perez was additionally charged with three counts of premeditated attempted murder ( §§ 187, 664 ; counts 3, 4, 5), and Rosas was additionally charged with possession of a firearm by a felon with priors (§ 29800, subd. (a)(1); count 9). As to all counts, it was alleged that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). As to counts 1 through 8, it was alleged that Perez personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), & (d)). As to counts 1, 2, 6, 7, and 8, it was alleged that a principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d) & (e)(1)).
All further undesignated statutory references are to the Penal Code.
The jury convicted Perez of attempted murder in counts 1 and 2 and shooting at an occupied motor vehicle in counts 6, 7, and 8. It found the firearm, gang, and premeditation allegations to be true. The jury also convicted Perez of the lesser included offense of attempted voluntary manslaughter in counts 3, 4, and 5. The jury found the gang allegation and the allegation that Perez personally and intentionally discharged a firearm causing great bodily injury pursuant to section 12022.5, subdivision (a), to be true.
The jury convicted Sanchez and Rosas of attempted murder in counts 1 and 2 and shooting at an occupied motor vehicle in counts 6, 7, and 8. The jury found the firearm and gang allegations to be true as to counts 1, 2, 6, 7, and 8, and rejected the premeditation allegations as to counts 1 and 2. The jury also convicted Rosas of possession of a firearm by a felon in count 9 but found the gang allegations not true as to that count. The trial court sentenced Perez to 120 years to life in state prison. His sentence consisted of three consecutive 40-years-to-life terms on counts 1, 2, and 6, which each included a 15-years-to-life term plus 25 years to life for the firearm enhancement. The trial court imposed concurrent terms on counts 3, 4, 5, 7, and 8.
Rosas was sentenced to 30 years to life in state prison. The trial court imposed consecutive 15-years-to-life terms on counts 6 and 7, and imposed concurrent terms on counts 1, 2, 8, and 9. The trial court struck the firearm and prior conviction enhancements. Similarly, the trial court sentenced Sanchez to 30 years to life in state prison. It imposed consecutive 15-years-to-life terms on counts 6 and 7, and imposed concurrent terms on counts 1, 2, and 8. The trial court struck the firearm enhancements.
Appellants appealed.
See footnote *, ante .
DISCUSSION
See footnote *, ante .
III. Rosas's and Sanchez's convictions for attempted murder must be reversed.
Sanchez and Rosas argue that their attempted murder convictions must be vacated and redesignated as violations of disturbing the peace because the jury was instructed on the natural and probable consequences theory of aiding and abetting, which was invalidated by Senate Bill No. 775. The People agree that the attempted murder counts must be reversed, however, they assert that we should remand the matter to give the prosecution the opportunity to retry counts 1 and 2.
Senate Bill No. 1437 amended the law of accomplice liability for murder by amending the felony murder rule and the natural and probable consequences doctrine. ( People v. Gentile (2020) 10 Cal.5th 830, 842, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Senate Bill No. 1437 also added section 1170.95, which created a procedure by which a person convicted of felony murder or murder under a natural and probable consequences theory could apply to have his or her murder conviction vacated and be resentenced on any remaining counts. ( § 1170.95, subd. (a).) Pursuant to section 1170.95, an offender must file a petition averring that: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.... [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." ( § 1170.95, subds. (a)(1)–(3).)
If the petitioner makes a prima facie showing that he falls within the provisions of section 1170.95, the court issues an order to show cause. ( § 1170.95, subd. (c).) The court then holds a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner on any remaining counts. ( § 1170.95, subd. (d)(1).) The burden of proof is on the prosecution "to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." ( § 1170.95, subd. (d)(3).) In People v. Gentile, supra , 10 Cal.5th at page 855, 272 Cal.Rptr.3d 814, 477 P.3d 539, our Supreme Court held that the section 1170.95 petitioning process was the exclusive mechanism for seeking retroactive relief for those defendants who were convicted under a natural and probable consequences theory of murder regardless of whether a sentence was final.
Senate Bill No. 775 (2021–2022 Reg. Sess.), which took effect on January 1, 2022, amended the section 1170.95 petition process to include individuals convicted of "attempted murder under the natural and probable consequences doctrine." (Stats. 2021, ch. 551, § 2.) It further allows offenders to challenge their convictions that come under the purview of section 1170.95 on direct appeal. ( § 1170.95, subd. (g).)
The parties agree that the trial court erred by instructing the jury on the natural and probable consequences doctrine with respect to the attempted murder charges. Moreover, they agree that Senate Bill No. 775 applies to this case because Rosas and Sanchez will not have exhausted their appeal rights from their judgments of conviction and sentence before January 1, 2022 when the law became effective. (See In re Estrada (1965) 63 Cal.2d 740, 744–745, 48 Cal.Rptr. 172, 408 P.2d 948 [absent evidence of contrary legislative intent, we infer Legislature intended ameliorative criminal statutes to apply to all cases not final when statutes become effective].) The parties disagree, however, as to the appropriate remedy. Rosas and Sanchez assert that we must reverse their convictions and redesignate their attempted murder convictions to the uncharged target offense of disturbing the peace.
Senate Bill No. 775 was silent on what the appropriate remedy is for a defendant who successfully challenges the validity of his conviction on direct appeal. Thus, it is unclear whether we should find the evidence insufficient and vacate the murder conviction or whether we must find the evidence insufficient and remand the matter to the trial court to allow the prosecution to offer new or additional evidence to meet its burden to prove beyond a reasonable doubt that the defendants are guilty under a still valid theory of murder. Section 1170.95, subdivision (d)(3) allows both parties to produce additional evidence and gives the prosecution an opportunity to establish a valid theory of murder, such as direct aiding and abetting implied or express malice murder. While the Legislature amended both subdivisions (d)(3) and (g), it did not state that vacation of the conviction on appeal without a subdivision (d)(3) hearing is the appropriate remedy.
Here, we conclude that reversing the convictions and remanding the matter to give the prosecution the opportunity to retry the attempted murder counts against Sanchez and Rosas is appropriate. The statutes clearly contemplate an opportunity for the prosecution to present new or additional evidence to show that defendants can still be convicted under a valid theory of aiding and abetting. Moreover, double jeopardy principles do not forbid retrial here even though the prosecutor acknowledged at trial that there was insufficient evidence to support a direct aiding and abetting theory. Where the prosecution makes its case under the law as it stood at trial, double jeopardy is not implicated as it would otherwise be where there is insufficient evidence. ( People v. Shirley (1982) 31 Cal.3d 18, 71, 181 Cal.Rptr. 243, 723 P.2d 1354 ; see Burks v. United States (1978) 437 U.S. 1, 11–15, 98 S.Ct. 2141, 57 L.Ed.2d 1.) Thus, we reverse the attempted murder counts as to Sanchez and Rosas and direct the trial court to allow the prosecutor to retry those counts based on a currently valid theory.
IV.–V. VI. The gang enhancements must be vacated.
See footnote *, ante .
Appellants argue that Assembly Bill No. 333 requires that we reverse the true findings on the gang allegations and remand for resentencing pursuant to recently amended Penal Code section 186.22 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 3, 4 ). The People agree.
Assembly Bill No. 333 took effect on January 1, 2022 and amended section 186.22 by modifying the definitions of "pattern of criminal activity" and "criminal street gang," and it clarified what is required to show an offense "benefit[s], promote[s], further[s], or assist[s]" a criminal street gang. It also added section 1109, which requires that, if requested by the defense, a gang enhancement charged under section 186.22, subdivision (d) must be tried separately and only after defendant's guilt of the underlying offense has been established.
"[P]ursuant to the new legislation, imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have ‘commonly benefited a criminal street gang’ where the ‘common benefit ... is more than reputational’; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense." ( People v. Lopez (2021) 73 Cal.App.5th 327, 345, 288 Cal.Rptr.3d 463.)
The parties agree that Assembly Bill No. 333 applies retroactively as the judgments are not yet final. In In re Estrada , supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, our Supreme Court held that, absent evidence to the contrary, the Legislature intended amendments to statutes that reduce punishment for a particular crime to apply to all whose judgments are not yet final on the amendments’ operative date. Because Assembly Bill No. 333 increases the threshold for conviction of the section 186.22 offense and the imposition of the enhancement, the defendants are entitled to the benefit of this change in the law. We therefore vacate the gang-related enhancement findings and remand the matter to give the People the opportunity to prove the applicability of the enhancements under the amendments to section 186.22.
We must also reverse the vicarious gang-related firearm enhancements alleged under section 12022.53. To find the gang-related firearm enhancements true, the jury was required to find that the defendants violated section 186.22, subdivision (b), and that a principal in the offense committed an act in violation of section 12022.53. With the reversal of the gang enhancements under section 186.22, there is an insufficient basis to support the true findings on the vicarious gang-related firearm use enhancements under section 12022.53. They must be reversed.
In addition to vacating the gang enhancements, appellants also ask us to reverse the judgements in their entirety because the trial was tainted by the fact that the underlying crimes and the gang enhancements were tried together. They contend that newly added section 1109, which requires a separate trial on the gang allegations if requested by the defense, should be applied retroactively. We disagree.
" ‘No part of the Penal Code "is retroactive, unless expressly so declared." ( § 3.) "[T]he language of section 3 erects a strong presumption of prospective operation, codifying the principle that, ‘in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the [lawmakers] ... must have intended a retroactive application.’ [Citations.] Accordingly, ‘ "a statute that is ambiguous with respect to retroactive application is construed ... to be unambiguously prospective." ’ " ’ " ( People v. Cervantes (2020) 55 Cal.App.5th 927, 938, 269 Cal.Rptr.3d 815.) However, "a ‘limited rule of retroactivity’ applies to newly enacted criminal statutes that are intended to ameliorate criminal punishment." ( Ibid . )
Although section 1109 is designed to minimize the prejudicial impact of gang evidence, it does not reduce the punishment or narrow the scope of the application of the gang statute. We therefore conclude that the statute does not apply retroactively to a trial that has already occurred. Appellants’ reliance on People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22 is not persuasive. There, our Supreme Court held that newly enacted legislation prohibited prosecutors from charging juveniles with crimes directly in adult court before holding a transfer hearing. ( Id. at p. 303, 228 Cal.Rptr.3d 394, 410 P.3d 22.) It concluded that the new law potentially reduced the punishment for a class of person, namely juveniles, and should be applied retroactively. The court reasoned that, although the law did not directly reduce the punishment for a particular crime, it was nonetheless ameliorative because a person convicted of serious crimes in adult court could be punished by a long prison sentence whereas juveniles are generally sentenced with rehabilitation as the goal. ( Id. at p. 306, 228 Cal.Rptr.3d 394, 410 P.3d 22.) Unlike the new law in Lara , which was a new procedural law that had the effect of potentially reducing the punishment for a class of defendants, here, section 1109 is a procedural statute that ensures a jury will not be prejudiced by the introduction of evidence to support gang enhancement allegations—it does not reduce the punishment imposed. Accordingly, we conclude that section 1109 does not require a reversal of the entire judgment.
See footnote *, ante .
We reverse the judgments as to the gang enhancements for all defendants and remand the matter to provide the prosecution with the opportunity to retry the Penal Code section 186.22 enhancements under the law as amended by Assembly Bill No. 333. We reverse the gang-related firearm use enhancements under section 12022.53. The prosecution is allowed 60 days from the date of the remittitur to retry the gang enhancements and gang-related firearm use enhancements. The trial court must modify the judgment and resentence defendants accordingly.
We affirm the judgment as to counts 1 and 2 against Luis Julian Beltran Perez. We reverse the judgment as to counts 3, 4, and 5 for voluntary attempted manslaughter against Perez and conclude that double jeopardy bars retrial of those counts. The trial court is directed to modify Perez's judgment to reflect that Perez is entitled to an additional day of presentence custody credit and modify Perez's sentencing minute order and abstract of judgment to reflect its imposition of fines and fees.
We reverse the judgment as to counts 1 and 2 against Edgar Manuel Rosas and remand the matter to provide the prosecution with the opportunity to retry those causes of action under a currently valid theory of aiding and abetting attempted murder. We affirm the judgment as to counts 6, 7, and 8 against Rosas. The trial court is directed to correct Rosas's abstract of judgment to reflect the jury's finding that the gang allegation as to count 9 was not true.
We reverse counts 1 and 2 against Salvador Sanchez and remand the matter to provide the prosecution with the opportunity to retry those causes of action under a currently valid theory of aiding and abetting attempted murder. We affirm the judgment as to counts 6, 7, and 8 against Sanchez.
We concur:
LAVIN, Acting P. J.
EGERTON, J.