Opinion
F074329
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. RAY ANTHONY SANCHEZ, Defendant and Appellant.
Theresa Schriever, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Daniel B. Bernstein and Carlos A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DF012211A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Marcos R. Camacho, Judge. Theresa Schriever, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Daniel B. Bernstein and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
The charges in this case arose out of an early morning incident in a retail parking lot that began when a police officer observed defendant Ray Anthony Sanchez, also known as Ray Rodriguez Sanchez, and two companions behaving suspiciously after they had exited the store. By the end of the incident, police arrested defendant, the two men he was walking with and two other men who were sitting inside the group's car. Police located two firearms inside the car and a third firearm lying in the parking lot, and they seized a sock with ammunition in it from the pocket of one of defendant's companions.
Following a trial by jury, defendant was convicted of four of eight counts: carrying a loaded firearm in public as an active participant in a criminal street gang (Pen. Code, § 25850, subd. (c)(3)) (count 2-firearm in parking lot), active participation in a criminal street gang (§ 186.22, subd. (a)) (count 4), possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 6-firearm in parking lot), and possession of ammunition by a felon (§ 30305, subd. (a)(1)) (count 8). The jury also found true the gang enhancement allegations attached to counts 6 and 8 (§ 186.22, subd. (b)(1)), and the trial court found true the allegations that defendant suffered a prior serious or violent felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served a prior prison term (§ 667.5, former subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
Defendant was charged in the information with 10 counts. Count 10 (misdemeanor obstruction of a peace officer) was dismissed prior to trial, count 9 (possession of a loaded firearm) was dismissed during trial, and the jury acquitted defendant on counts 1 and 3 (carrying a loaded firearm as an active participant in a criminal street gang—firearms in car) and counts 5 and 7 (possession of a firearm by a felon—firearms in car).
Section 667.5, subdivision (b), was amended effective January 1, 2020, to limit imposition of the additional one-year prior prison term enhancement to convictions for sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). (Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1.) In this case, defendant did not serve a prior prison term for an offense that qualifies under the statute as amended, but the enhancement was not imposed in this case.
The trial court sentenced defendant on count 6 to the upper term of three years, doubled to six years under the Three Strikes law, plus an additional four years for the gang enhancement and five years for the prior serious felony conviction enhancement, for a total determinate term of 15 years in prison. The following sentences were imposed and stayed under section 654: the upper term of three years, doubled to six years on count 2; the upper term of three years, doubled to six years on count 4; and the upper term of three years, doubled to six years, plus an additional four years for the gang enhancement on count 8.
On appeal, defendant claims that as to count 6 and count 8, the jury's gang enhancement findings are not supported by substantial evidence. In supplemental briefing, defendant advances two claims. First, he argues that he is entitled to remand for resentencing under Senate Bill No. 1393, which amended sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393).) In addition, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues that the imposition of a restitution fine and assessments he lacks the ability to pay violates his constitutional rights.
The People dispute defendant's entitlement to any relief on his claims.
We agree with defendant that the gang enhancement findings are unsupported by substantial evidence and must be reversed, and that he is entitled to seek relief in the trial court under Senate Bill No. 1393. As these conclusions compel remand for resentencing, we do not reach defendant's claim of error under Dueñas. On remand, he may raise the issue and request an ability to pay hearing in the trial court in the first instance. Except as modified, the judgment is affirmed.
FACTUAL SUMMARY
I. Prosecution Case
A. Facts Underlying Crimes
On October 1, 2015, just before 1:00 a.m., Delano Police Department Officers Bautista and Morales drove to Wal-Mart in separate patrol cars to get something to eat. Bautista pulled in first and saw three Hispanic men who appeared to have just exited the store. One of the men, identified as defendant, was wearing a black baseball cap with a California bear logo on it; a black, long-sleeved shirt; loose black pants and dark shoes; and he had a blue bandana tucked in the front of his waistband. The second man, Arturo Garcia, was wearing a dark shirt, khaki shorts, white knee-length socks and light shoes, and the third man, Leonardo Garcia, was wearing dark pants and a black T-shirt bearing the Dallas Cowboys star logo.
Because Arturo Garcia and Leonardo Garcia, who are not related, have the same last name, we refer to them by their first names. No disrespect is intended.
Bautista testified that the group caught his attention because they were dressed similarly in loose clothing, had their hands in their pockets fumbling around and were looking around. Defendant broke away from Arturo and Leonardo and walked toward some parked vehicles. As Arturo and Leonardo came toward Bautista, he told them to stop and place their hands in plain view. In response, they laid facedown on the ground.
Officer Morales arrived as Arturo and Leonardo were lying on the ground and defendant was walking away. Bautista's view of defendant was partially blocked by the cab of a pickup truck, but he saw defendant bend down twice near the rear of a truck and video surveillance showed defendant making a throwing motion. Although Bautista did not see anything in defendant's hands, he was concerned defendant was placing something on the ground and he ordered defendant to come toward him with his hands in plain view. Defendant complied.
The three men were patted down, handcuffed and seated on the curb. Morales located a sock containing .38-caliber ammunition in the pocket of Arturo's shorts. Bautista told Morales he felt something was not right and he was going to check the area near the truck. Bautista testified that defendant smirked at his statement.
As Bautista walked toward the truck, he passed by a gray car with its windows rolled down. He looked inside and saw a man, later identified as Ricardo Duarte, lying on the fully reclined front passenger seat. There was a .38-caliber revolver visible between the two front seats. A second man, later identified as Jose Bello, was sitting in the back seat on the driver's side and leaning over to his right.
Bautista drew his service gun and yelled, "'Gun.'" He saw defendant get up from the curb and heard him say, "'Oh, it's time to go.'" Defendant then ran, yelling something to the effect of, "'Come on, fuckers, run.'" Leonardo stood up but sat down again at Bautista's command. Morales ran after defendant, who was zigzagging around the parking lot and ignoring Morales's commands and Leonardo's calls for him to stop. Bautista kept his gun aimed at Duarte and Bello, and requested backup. When Morales caught up with defendant, he said, "'Okay, sir, I'm done.'"
Additional officers arrived momentarily and when they searched the car, they located a second .38-caliber revolver in the rear door panel on the passenger side. During the search of the area, an officer located a third .38-caliber revolver lying on the pavement in the parking lot.
B. Gang Evidence
Brian Wilson, Corporal Detective with the McFarland Police Department, testified as the prosecution's gang expert. He opined that defendant, Arturo, Leonardo, Duarte and Bello are members of the MyFas criminal street gang, which is centered in the town of McFarland and aligned, along with other street gangs south of Delano, with the larger Sureño gang. The Norteño gang and the street gangs under the Norteño umbrella are rivals of MyFas and the Sureño gang. Wilson estimated that MyFas has between 50 and 70 active members out on the street, approximately. Symbols and signs associated with MyFas include the color blue, the Dallas Cowboys and the Dodgers teams, the number 13, and the letters M for MyFas, VM for Varrio MyFas and VMS for Varrio MyFas South.
Wilson testified in detail regarding the basis for his opinion on gang membership, including describing gang tattoos, various law enforcement contacts and a YouTube video featuring Duarte, and the prosecution introduced multiple gang-related photos and posts from Facebook. As the claims raised in this appeal do not challenge the existence of the MyFas criminal street gang or the MyFas gang memberships of defendant, Arturo, Leonardo, Duarte and Bello, we need not summarize Wilson's testimony regarding those matters.
Primary activities of MyFas include home invasions, assaults and batteries, assaults with a deadly weapon, vehicle theft, carrying and possessing illegal firearms, drive-by shootings and stabbings. Wilson testified to three predicate offenses, none of which involved defendant, Arturo, Leonardo, Duarte or Bello. The first predicate offense involved robbery and assault with a gang enhancement committed by two MyFas members; the second predicate offense involved a drive-by shooting of a Norteño gang member's house by a MyFas member; and the third predicate offense involved felony evasion, possession of a firearm by a felon, possession of a short-barrel shotgun and assault with a deadly weapon resulting in great bodily injury with a gang enhancement committed by a MyFas member.
Wilson testified that committing crimes in the presence of other senior gang members boosts the status of individual gang members because it allows them to brag about it and claim "they are putting in work or doing things for the criminal street gang." Wilson also testified that such bragging instills fear in rival gang members and in the community. Regarding firearms, which Wilson stated are shared among MyFas gang members, he testified, "It shows they have power, intimidation. It raises their status within the criminal street gang because they are able to possess or get possession of firearms."
II. Defense Case
Defendant testified that there is a gang rivalry between McFarland, which aligns with the Sureños, and Delano, which aligns with the Norteños, but he denied that MyFas is a criminal street gang and said that there are only two street gangs in McFarland, the Southside Boys and the Eastside. He also denied ever admitting to Wilson that he was a MyFas member or associate; denied that Arturo, Leonardo, Duarte and Bello are gang members; and explained that MyFas just means McFarland and the symbol M means family. Regarding the blue bandana, he explained he worked that day cleaning grape trays and, due to the nature of the work, employees cover their faces with either a mask or a rag. He used the blue bandana, which a relative gave him, to cover his face at work and he kept it in his pocket. He denied it was hanging from his waistband the night of the crime.
Leonardo is defendant's half-brother and Duarte is defendant's close friend. Defendant was acquainted with Arturo and Bello, but the night of the crime was only the second time he hung around them. The group of five had been hanging out at Bello's house that night. They left to buy more beer but discovered the nearby gas station had closed a few minutes early, so they headed to the next closest store to buy beer and fast food. Defendant was wearing a long-sleeved shirt, which covered all of his body tattoos except for the one on his neck that reads "KC," and he was wearing a hat, which covered the MyFas tattoo on the back of his head.
Defendant had been drinking that night and he testified the restroom in Wal-Mart was closed so he went outside and urinated on the side of the building. As he headed back toward the entrance with Arturo, Leonardo exited without any beer and they began walking. Defendant saw a police car and separated from Arturo and Leonardo. He testified he wanted to put distance between himself and Leonardo because he was on parole and subject to search, and he did not want anyone messing with his brother as a result. Defendant testified that he ducked behind the truck out of instinct because Bautista had his gun out and that he also had a small rock of methamphetamine with him, which he tossed when he ducked behind the truck.
The police did not locate any drugs.
After defendant was handcuffed and sitting on the curb, he heard Bautista yell, "'gun.'" Bautista then said, "'Move, motherfucker. I'm bad with this bitch.'" Defendant testified that Bautista was pointing a gun at Duarte and he interpreted Bautista's statement as a threat, so he got up and ran to create a distraction.
Defendant denied seeing any guns or ammunition in the car that night and denied knowing any firearms or ammunition were present.
DISCUSSION
I. Substantial Evidence Claim: Gang Enhancement Findings
A. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). "In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.'" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar); accord, People v. Livingston (2012) 53 Cal.4th 1145, 1170.)
B. Background
"In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.)" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) "'Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (Pen. Code, § 186.21.) The act's express purpose was "to seek the eradication of criminal activity by street gangs." [Citation.]' [Citation.] In pursuit of this goal, the STEP Act focuses upon 'patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.' (§ 186.21.)" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. omitted.)
Relevant here, "a defendant who commits a felony in furtherance of criminal street gang activity is subject to increased punishment." (People v. Fuentes (2016) 1 Cal.5th 218, 223.) The gang enhancement, codified in section 186.22, subdivision (b)(1), applies to felonies "that were (1) 'committed for the benefit of, at the direction of, or in association with any criminal street gang,' and (2) 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Rivera (2019) 7 Cal.5th 306, 331.) "'Not every crime committed by gang members is related to a gang' for purposes of the enhancement [citation], but the enhancement applies 'when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang' [citation]." (Ibid., quoting Albillar, supra, 51 Cal.4th at pp. 60, 68.)
Although gang membership is not an element of the enhancement, gang evidence can nevertheless bolster the prosecution's theory on the elements it is required to prove. (People v. Sanchez (2016) 63 Cal.4th 665, 698-699; People v. Gutierrez (2009) 45 Cal.4th 789, 820; People v. Hernandez, supra, 33 Cal.4th at pp. 1044-1049; People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 541.) "Gang membership is simply circumstantial evidence establishing that the crime was gang related and a motive for why a defendant may have harbored the 'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Villa-Gomez, supra, at p. 540.)
C. Analysis
1. Parties' Positions
Based on the .38-caliber revolver located in the parking lot, which the prosecutor theorized defendant tossed when he ducked behind the truck, and the .38-caliber ammunition found in the sock in Arturo's pocket, the jury convicted defendant of possession of a firearm by a felon and possession of ammunition by a felon. The jury found true that both crimes were committed for the benefit of or in association with the MyFas criminal street gang. Relying on People v. Perez (2017) 18 Cal.App.5th 598 (Perez) and People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), summarized below, defendant claims that the specific intent prong of the gang enhancement findings is unsupported by substantial evidence. As we explain, we conclude that neither prong is supported by sufficient evidence.
In Perez, the jury convicted the defendant, in relevant part, of four counts of attempted murder and four counts of assault with a firearm, and it found true the gang enhancements attached to each of the eight counts. (Perez, supra, 18 Cal.App.5th at p. 606.) The defendant in Perez was a heavily tattooed Hispanic gang member. (Id. at p. 602.) He showed up at a party hosted by a college sports team and he appeared to have attended with other Hispanic men. (Id. at pp. 602, 605-606.) He acted alone, however, when he shot four college students as the party wound down. (Id. at pp. 602-603.)
The Court of Appeal reversed the gang enhancements, explaining, "Essentially, [the gang expert] testified to no more than the fact a Mexican tattooed gang member was involved in a shooting and possibly three of the other Mexicans at the party, who appeared to be his companions, all had tattoos. Although the Attorney General characterizes the tattoos as 'gang tattoos' there was no evidence whatsoever that any of his Mexican companions' tattoos were gang related. Nor were any of defendant's visible tattoos. Rather the Attorney General ascribes a gang connotation to any tattoo, an inference based solely on impermissible speculation. Given that [the] defendant had tattooed over the gang-related symbols on his fingers and the Nutty North tattoo was not visible to the partygoers, we conclude the mere presence of tattoos was insufficient to sustain a gang enhancement. [¶] And, as in all of the cited cases, there simply was no other evidence to support the enhancement. Missing was all evidence typical of crimes committed for the benefit of the gang and intended to promote, further, or assist the commission of crimes by gang members—gang colors, gang clothing, gang accruements, gang signs, gang epithets, help by other gang members. Here there is no evidence any of the college students knew of [the] defendant's gang affiliation. The evidence consists only of a gang member committing a violent crime alone." (Perez, supra, 18 Cal.App.5th at pp. 613-614.)
In Ramon, this court also found the gang enhancement unsupported by substantial evidence. (Ramon, supra, 175 Cal.App.4th at p. 853.) A sheriff's deputy pulled the defendant over while he was driving a stolen truck in Colonia Bakers gang territory. (Id. at p. 847.) Another man was riding in the truck with the defendant and the deputy found an unregistered gun under the driver's seat. (Ibid.) Relying on the facts that the defendant and his passenger were active Colonia Bakers members and the defendant was pulled over in Colonia Bakers territory, the gang expert testified the stolen vehicle and unregistered firearm benefitted the gang because they were tools to facilitate other crimes and the gang commits crimes. (Id. at pp. 847-848, 849.)
This court found the facts on which the expert based his opinion—gang membership and presence in gang territory—were insufficient to support his opinion as to the defendant's intent and, therefore, his opinion did not constitute substantial evidence in support of the jury's finding. (Ramon, supra, 175 Cal.App.4th at pp. 851, 853.) We observed, however, that "[t]he analysis might be different if the expert's opinion had included 'possessing stolen vehicles' as one of the activities of the gang. That did not occur and we will not speculate. [¶] Simply put, in order to sustain the People's position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang. Such a holding would convert section 186.22[, subdivision ](b)(1) into a general intent crime. The statute does not allow that." (Id. at p. 853.)
The People contend that Perez is distinguishable because in this case, defendant was in the company of other MyFas gang members in rival gang territory wearing gang clothing, "[a]nd [defendant's] prominent gang tattoo on the back of his head could quickly become visible upon removal of his hat." They contend Ramon is distinguishable because here, defendant "was with four fellow gang members who had driven into rival gang territory, and he carried his revolver into a public place while prominently displaying a blue bandana to advertise his gang affiliation. Thus, the potential for a gang confrontation was much greater here than in Ramon, and [defendant's] intent was apparent even without expert testimony on that front."
2. Evidence Insufficient to Support Jury's Findings
While we agree with the People that some factual distinctions may be drawn between this case on one hand and Perez and Ramon on the other, we are otherwise unpersuaded by their position. In both Perez and Ramon, the evidence in the record, and more specifically the evidence supplied by the gang expert, fell short of that necessary to prove the gang enhancement beyond a reasonable doubt. (Perez, supra, 18 Cal.App.5th at pp. 613-614; Ramon, supra, 175 Cal.App.4th at p. 853.) The court in Perez surveyed the case law in detail and, in those cases resulting in reversal for insufficient evidence, noted a pattern relating to deficiencies in the expert evidence. (Perez, supra, at p. 613.)
The Perez court pointed out that "'[a] trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true.'" (Perez, supra, 18 Cal.App.5th at p. 607, quoting People v. Rios (2013) 222 Cal.App.4th 542, 564.) As such, "'purely conclusory and factually unsupported opinions' that the charged crimes are for the benefit of the gang because any violent crime enhances the gang's reputation is insufficient to support a gang enhancement." (Perez, supra, at p. 608, quoting People v. Ramirez (2016) 244 Cal.App.4th 800, 819-820.) As we shall discuss, the gang expert in this case did not offer an opinion based on facts in evidence, nor was there other evidence, from which the jury could have reasonably inferred that the crimes—possession of a firearm and possession of ammunition—"were (1) 'committed for the benefit of, at the direction of, or in association with any criminal street gang,' and (2) 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Rivera, supra, 7 Cal.5th at p. 331.)
In Albillar, the California Supreme Court held that "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.) However, Albillar involved the gang rape of a teenage girl and the evidence, which included detailed expert testimony, demonstrated that the defendants "came together as gang members to attack [the victim] and, thus, ... committed the[] crimes in association with the gang" (id. at p. 62), and that their crimes benefitted the gang by enhancing its reputation for viciousness (id. at p. 63). From this evidence, the jury could reasonably infer the defendants' specific intent. (Id. at p. 68.) The evidence in this case bears no resemblance to that in Albillar and the People do not claim otherwise.
Cumulatively, the testimony of Wilson, Bautista and defendant established the existence of a general rivalry between gangs in McFarland, which align with the Sureños and include MyFas, and gangs in Delano, which align with the Norteños. The crimes here occurred at a store in Delano, but the evidence, which was uncontroverted, showed that defendant went to that specific store with his brother, a good friend and two other men to buy beer and that he did so only after finding the nearest gas station closed. The southern end of Delano is only a five-minute drive from the town of McFarland and after finding the gas station closed, the group proceeded to the next closest store, which defendant's testimony indicates was on the southern outskirts of Delano. Regarding the potential for an encounter with a rival gang member, defendant testified, again without contradiction, that he knew they would not see anyone at that store and would not have any problems.
Although defendant is not entitled to a presumption that family or friendship ties predominate over gang ties, here there was no evidence introduced from which it may be reasonably inferred that he was on anything other than "'a frolic and detour unrelated to the gang.'" (Albillar, supra, 51 Cal.4th at p. 62, quoting People v. Morales (2003) 112 Cal.App.4th 1176, 1198; accord, People v. Weddington (2016) 246 Cal.App.4th 468, 484.)
The evidence also shows that defendant had a blue bandana tucked into his waistband and Leonardo was wearing a shirt with a Dallas Cowboys star on it, which are items associated with MyFas. However, defendant was wearing a long-sleeved shirt and a baseball cap, which covered all of his tattoos except the one on his neck reading "KC" for Kern County. The People's assertion that defendant could have easily displayed the gang-related MyFas tattoo on his shaved head, which the gang expert described as a "billboard" advertising defendant's gang allegiance, is of no benefit to the analysis, as he was not displaying it on the night in question.
In contrast with defendant's MyFas tattoos, there is no evidence his neck tattoo was gang-related. Wilson testified it demonstrated allegiance to the area defendant is from. --------
The People characterize this evidence as demonstrating that defendant, along with other MyFas members, drove into rival gang territory armed with loaded weapons and displaying his gang's color. They contend that "the jury could have reasonably inferred that when [defendant] carried the firearm, he did so with the intent of displaying the weapon in a show of strength outside of his home turf to encourage further criminal conduct by members of the MyFas gang." The prosecutor in this case did not elicit from the gang expert an opinion as to how defendant's possession of a firearm and ammunition in this case benefitted or was in association with MyFas, but the People assert that "[defendant's] intent was apparent even without expert testimony on that front."
Additionally, the People contend that from the gang expert's general testimony that "gang members share weapons, the jury could have reasonably inferred that [defendant] was aware of the two revolvers in the [car], just as the other occupants were aware of [defendant's] weapon. Knowing that fellow gang members could back him up with weapons made it more likely that [defendant] would use his revolver and thus promote further violence by other MyFas members, particularly by the younger gang members (Jose Bello and Arturo Garcia), who might want to impress the older gang members, including appellant. [¶] Also significant is that when [defendant] spotted Officer Bautista in the parking lot, he peeled away from Leonardo Garcia and Arturo Garcia, went behind a pickup truck, and discarded his revolver. Although the evidence was not fully developed on this point, it appears that [defendant] ditched his revolver not far from the [car] because Officer Bautista testified that he walked past the [car] on his way to inspect the area around the pickup truck. [Citation.] From this evidence, the jury could have inferred that [defendant] placed his gun in a location where it could be readily retrieved by his fellow gang members—but not so close to the [car] that officers would link the gun to the car." (Fn. omitted.) Thus, the People conclude, the jury could have reasonably inferred that defendant had the specific intent to promote crimes by other MyFas members.
The People's position is unpersuasive because it requires resort to pure speculation. The California Supreme Court has recognized that "'[e]xpert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the ... 186.22, subdivision (b)(1), gang enhancement." (People v. Vang (2011) 52 Cal.4th 1038, 1048, quoting Albillar, supra, 51 Cal.4th at p. 63.) However, the gang expert did not address the possession of ammunition and he addressed the possession of firearms by MyFas and its members only superficially, testifying very generally that committing crimes raises gang members' status and instills fear in rivals and the community, and that possessing firearms represents power and raises gang members' status. (Perez, supra, 18 Cal.App.5th at p. 610 ["Many courts have soundly rejected such a sweeping generalization untethered, as it is, to specific evidence of both prongs of the gang enhancement."].) The prosecutor did not elicit any opinion from the gang expert based on facts mirroring the offenses here and there was no evidence otherwise supplying any link between the possession crimes committed here and a benefit to or an association with MyFas. (People v. Vang, supra, at pp. 1045-1046.)
In sum, construed in the light most favorable to the prosecution, the evidence shows that defendant, an active MyFas member, went on a beer run to a nearby store on the outskirts of Delano with four other active MyFas members. Defendant was displaying a bandana in the gang's color at his waistband and he was armed with a firearm, but there is no evidence that the firearm was visible, or that he or anyone else in the group was looking for gang rivals or to commit any other gang-related misconduct or crimes. Notwithstanding testimony about the general gang rivalry between Delano and McFarland, there is also no evidence that the location of the store itself was problematic. Given the absence of more specific expert testimony, not only was the first element of the gang offense unsupported, but that deficiency left the jury without any basis to infer that defendant had the "specific intent to promote, further, or assist in any criminal conduct by gang members ...." (§ 186.22, subd. (b)(1).) We express no opinion whether the facts in this case might suffice to support a gang enhancement if coupled with more specific expert testimony linking the crimes to an association with or a benefit to MyFas. That issue is not before us and given the insufficiency of the evidence presented here, defendant is entitled to reversal of the gang enhancements attached to counts 6 and 8.
II. Senate Bill No. 1393
Effective January 1, 2019, Senate Bill No. 1393 amended sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1). Defendant seeks remand for resentencing to allow the trial court to exercise its discretion to strike the prior serious felony conviction enhancement under section 667, subdivision (a)(1). The People concede Senate Bill No. 1393 is retroactive but contend that remand for resentencing would be futile in this case.
A. Senate Bill No. 1393 is Retroactive
"[W]e presume that newly enacted legislation mitigating criminal punishment reflects a determination that the 'former penalty was too severe' and that the ameliorative changes are intended to 'apply to every case to which it constitutionally could apply,' which would include those 'acts committed before its passage[,] provided the judgment convicting the defendant of the act is not final.' ([In re] Estrada [(1965)] 63 Cal.2d [740,] 745 [(Estrada)].) The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, 'a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" (People v. Buycks (2018) 5 Cal.5th 857, 881; accord, People v. Valenzuela (2019) 7 Cal.5th 415, 428; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308.)
Courts of Appeal considering Senate Bill No. 1393 and, in an analogous context, Senate Bill No. 620 have uniformly held that the changes apply retroactively to judgments not yet final on appeal. (E.g., People v. Zamora (2019) 35 Cal.App.5th 200, 207-208 [Sen. Bills Nos. 602 & 1393]; People v. Garcia (2018) 28 Cal.App.5th 961, 972-973 [Sen. Bill No. 1393]; People v. Chavez (2018) 22 Cal.App.5th 663, 711-712 [Sen. Bill No. 620]; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507 [Sen. Bill No. 620].) We accept the People's concession on this point. As Senate Bill No. 1393 does not contain a savings clause and there is no indication that the Legislature intended any limitation on its retroactive application, it applies to this case in accordance with the Estrada rule.
B. Remand Appropriate
However, relying on People v. Jones (2019) 32 Cal.App.5th 267 (Jones) and People v. McVey (2018) 24 Cal.App.5th 405 (McVey), the People contend that remand for resentencing would be futile because the trial court declined to strike defendant's prior strike conviction or the gang enhancements, and it selected the upper terms. We disagree.
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) Post-Guiterrez, most of the published cases considering whether remand is appropriate to allow the trial court to exercise its discretion in the first instance have concluded that remand is appropriate. (People v. Johnson (2019) 32 Cal.App.5th 26, 69 [Sen. Bills Nos. 1393 & 620]; People v. Garcia, supra, 28 Cal.App.5th at p. 973 [Sen. Bill No. 1393]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111 [Sen. Bill No. 620 applying to firearm enhancement]; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082 [Sen. Bill No. 620]; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428 [Sen. Bill No. 620].) In the minority are Jones and McVey, cited by the People.
In McVey, the Court of Appeal found that remand "would serve no purpose but to squander scarce judicial resources." (McVey, supra, 24 Cal.App.5th at p. 419, citing People v. Fuhrman (1997) 16 Cal.4th 930, 946 & People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The defendant in McVey shot a homeless man multiple times, killing the victim, and he received an aggregate sentence of 16 years 8 months. (McVey, supra, at pp. 409-410.) The Court of Appeal noted that in imposing a 10-year term for the firearm enhancement, the trial court "described [the defendant's] attitude as 'pretty haunting'" and stated, "'[T]his is as aggravated as personal use of a firearm gets,' and 'the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement.'" (McVey, supra, at p. 419.)
In Jones, the Court of Appeal also considered a record that contained similarly pointed comments in the face of striking facts. (Jones, supra, 32 Cal.App.5th at pp. 273-275.) In that case, the defendant was convicted of attempted premeditated murder, assault with a deadly weapon and assault likely to produce great bodily injury after he violently attacked a bar employee with a knife after the bar closed, an attack that stemmed from a third party's earlier dissatisfaction over how a drink was mixed at the bar. (Id. at pp. 269-270.) The defendant committed the crimes only months after being released from prison after serving a 10-year sentence for stabbing his ex-wife multiple times with a knife. (Id. at pp. 273-274.) In sentencing the defendant, the trial court stated, "'I've already, I guess, sort of spoken my sense of this case in my ruling on the new trial motion. This gives me obviously, as you know, great satisfaction in imposing the very lengthy sentence here today.' The court noted that, notwithstanding [the] defendant's genial conduct during court proceedings, his actions had displayed a 'temper' that was 'oftentimes triggered by drinking,' along with 'a [penchant] to use knives, apparently.' The court [further] stated [the] defendant had 'earned the sentence here today.'" (Id. at p. 274.)
In concluding that remand for resentencing in light of Senate Bill No. 1393 was not warranted, the Court of Appeal stated, "Besides not exercising its discretion for leniency when it could have, the trial court made clear its intention to impose the most stringent sentence it could justifiably impose. It stated there was no doubt the verdict was correct, [the] defendant's actions were premeditated, dangerous, senseless and absurd, he attempted to kill [the victim] only a few months after being released from prison where he had been for 10 years, and the court took 'great satisfaction' in imposing the 'very lengthy sentence' it imposed." (Jones, supra, 32 Cal.App.5th at pp. 274-275.)
In this case, the trial court rejected defendant's request to strike his prior serious felony conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and to stay the gang enhancements under People v. Fuentes, supra, 1 Cal.5th 218, and it followed the probation department's recommendation to impose the upper terms. However, the record here does not include pointed comments such as those at issue in McVey and Jones, and it remains that at the time defendant was sentenced, the court lacked the discretion to strike or stay the prior serious felony enhancement. Defendant is entitled to be sentenced in the exercise of informed discretion and remand is appropriate so that the trial court may exercise its discretion in the first instance in light of the amendments to sections 667 and 1385. We express no opinion on how the trial court should exercise its discretion on remand. (People v. McDaniels, supra, 22 Cal.App.5th at p. 428.) III. Challenge to Imposition of Fees and Fines Under Dueñas
Finally, in the Dueñas case, the Court of Appeal, citing due process and equal protection principles, held that the fees assessed pursuant to Government Code section 70373 and Penal Code section 1465.8 may be "imposed only on those with the means to pay them" (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169), and "that although the trial court is required by Penal Code section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay" (id. at p. 1172; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 489-490; contra, People v. Allen (2019) 41 Cal.App.5th 312, 325-330 [rejecting the defendant's Dueñas-based due process claim & her equal protection claim]; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, No. S258946 [rejecting Dueñas's due process analysis]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis & concluding constitutional challenge to fines, fees & assessments should be made under the 8th Amend.'s excessive fines clause]). Relying on the holding in Dueñas, defendant claims the fees and fines imposed by the trial court in this case must be stayed until and unless the People prove he has the ability to pay them.
We need not reach this claim. Given the remand of this matter for resentencing following reversal of the gang enhancements and in light of Senate Bill No. 1393, defendant may raise this issue and request an ability-to-pay hearing in the trial court in the first instance.
DISPOSITION
As to counts 6 and 8, the jury's gang enhancement findings under section 186.22, subdivision (b)(1), are reversed, defendant's sentence is vacated and this matter is remanded for resentencing, at which time the trial court shall also consider whether to exercise its discretion to strike the prior serious felony conviction enhancement pursuant to Senate Bill No. 1393. Following resentencing, the trial court shall issue an amended abstract of judgment and forward it to the appropriate authorities. Except as modified, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SNAUFFER, J.