Opinion
F083155
01-04-2023
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEE COFFIA AVERY, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF180331A Charles R. Brehmer, Judge.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PEÑA, J.
INTRODUCTION
After defendant Kenneth Lee Coffia Avery robbed two employees at a convenience store at gunpoint, a jury convicted him of two counts of second degree robbery (Pen. Code, § 212.5, subd. (c); counts 1 & 2), unlawful possession of a firearm (§ 29800, subd. (a)(1); count 3), two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 4 & 5), criminal threats (§ 422; counts 6 & 7), carrying a concealed firearm while an active participant in a criminal street gang (§ 25400, subd. (c)(3); count 8), active participation in a criminal street gang (§ 186.22, subd. (a); count 9), and second degree burglary (§ 460, subd. (b); count 10). (Undesignated statutory references are to the Penal Code.) The jury also found true allegations in counts 1-7 and 10 that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that defendant personally used a firearm during the commission of counts 1, 2, 4, 5, 6, 7, 8, 9, and 10 (§§ 12022.5, 12022.53). In a bifurcated proceeding, the court also found true an allegation defendant had suffered a previous violent felony conviction (§§ 667, 1170.12).
On appeal, defendant asserts, and the People agree, he is entitled to reversal of his convictions for carrying a concealed firearm while an active participant in a criminal street gang (§ 25400, subd. (c)(3); count 8) and active participation in a criminal street gang (§ 186.22, subd. (a); count 9), and the gang enhancements (§ 186.22, subd. (b)) attached to counts 1-7 and count 10, as a result of the passage of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333). Defendant also contends the evidence was insufficient to support his convictions for assault with a firearm (§ 245, subd. (b); counts 4 & 5), criminal threat (§ 422; count 6), and the firearm enhancement attached to count 8. The People agree the firearm enhancement attached to count 8 must be reversed. Defendant also asserts his conviction for active participation in a criminal street gang (§ 186.22, subd. (a); count 9) must be reversed because it is a lesser included offense of carrying a concealed firearm while an active participant in a criminal street gang (§ 25400, subd. (c)(3); count 8). In supplemental briefing, defendant argues, pursuant to newly enacted section 1109, he is entitled to reversal of all of his substantive convictions based on the court's failure to bifurcate the gang allegations.
We reverse defendant's convictions for carrying a concealed firearm while an active participant in a criminal street gang (§ 25400, subd. (c)(3); count 8) and active participation in a criminal street gang (§ 186.22, subd. (a); count 9), and the gang enhancements (§ 186.22, subd. (b)) based on the passage of Assembly Bill 333. We also reverse the firearm enhancement attached to count 8. The matter will be remanded for further proceedings consistent with this opinion. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Robbery of the Circle K
Shortly after midnight on February 23, 2020, Gerardo G. and Edward S. were working at a Circle K convenience store when they were robbed at gunpoint. The prosecution introduced surveillance footage from that night. At trial, Gerardo pointed out a male in the video who walked into the store. Gerardo explained he greeted the man and made eye contact, and then greeted a second man, but that man was on his way out. After the second man left, Gerardo was facing his register about to check the temperature of the hot food, waiting for cookies in the microwave behind him. He and Edward were doing their usual tasks.
Gerardo saw a gun out of his peripheral vision. Edward had his back turned because he was baking cookies. The gunman tapped Edward on the back of the head with the gun. He told Edward to follow instructions and not to move or he would be shot. The gunman then told Edward to turn around and lay on the floor; Edward complied.
Gerardo tried not to do anything sudden or to move. The only thought in Gerardo's head was, "as long as he leaves and we get out of here safe, that's what is important." Gerardo explained they were taught not to risk their lives trying to be a hero.
The gunman instructed Gerardo to open his register; Gerardo complied. Gerardo gave the gunman $60 from his register. Then, the gunman told Gerardo to open Edward's register. Gerardo responded he could not open it because it was not his register. The gunman instructed Gerardo to lay on the floor and Edward to stand up, open the register, and remove the contents. Edward's register had $30 in it, which Edward gave to the gunman. The gunman asked Edward where the $100 bills were that should be in the register, and Edward responded that they did not carry them, "[t]hey're dropped in the safe immediately." The gunman asked if Edward had access to the safe. Edward responded he could only push the button to the safe and it dispensed $40 at a time and took 20 minutes to reset. The gunman told Edward to hit the safe button to remove what money he could get. Again, Edward followed the instructions and the gunman took $40 from the safe drop. Edward glanced at the gunman and was able to see his face. Edward hoped the gunman did not get angry and shoot them because there was not a lot of money.
The gunman then walked around the counter toward the front of the store. On his way out, the gunman turned toward Edward and Gerardo and told them if they called the police, he would come back and put a bullet in their heads. The gunman left. Edward had a pretty clear view of the gunman's face as he was walking out of the store. Edward waited while counting to 30 and then grabbed the keys, locked the door, and followed procedures by calling the police and the general manager and keeping everything locked until they arrived.
When the prosecutor asked Gerardo how the gunman's threats made him feel, Gerardo responded, "The threats was the last thing on my worry [sic]. The only thing in my head was just the gun. He had the choice to shoot me or not to shoot me. That was the only thing that was in my head. Don't do anything to get yourself hurt. That's it. [¶] Nothing else crossed my mind. What he said was irrelevant. The scariest thing was the weapon."
Gerardo testified, when the gunman brought the gun to his back, "to this day I still feel it. So it's a feeling you cannot get out of it." He explained, when he was on the floor, the only thing in his head was, "I hope he doesn't come back because we don't have money in the register." He took it seriously when the gunman said he would "pop" him if he called the police. He explained the threats affected him for a few months. He did not sleep well for the next four months because he was afraid to dream. He would relive the event every time he closed his eyes. He did not need to watch the video and could say exactly what happened because he remembered the incident so well. Even if Gerardo slept, "it was hard because the whole thing [was] in [his] head." When the prosecutor asked if the gunman was in court, Gerardo responded, "I don't know. I can't tell. Maybe it was the person in the counter, he looks like the same person, but here, I don't see it. I don't," "I say no."
Subsequent Investigation
A few weeks after the incident, an officer read Edward an admonishment that Edward signed. Edward then reviewed two sets of six photographs each to identify anyone he recognized from the robbery. Edward identified defendant in the first photographic lineup as the gunman and signed by the picture. He also identified defendant as the gunman at trial.
Officer Adam Garcia identified defendant in a still photograph taken from the surveillance footage of the robbery after it was sent to the police department. Officer Louis James identified Victor Castaneda as the second man in the store seen in the surveillance footage. Officer James arrested Castaneda in connection with the incident. He testified Castaneda can be seen wearing a Washington Nationals "W" hat backwards in the surveillance footage.
As part of the investigation into the Circle K robbery, Officer James looked into defendant's Facebook account based on Officer Garcia's identification of defendant. Officer James found an account with defendant's name and public photographs. However, when Officer James went back to the Facebook account to preserve it, the account had been deleted. Because the account was in Officer James's computer history, he could ask Facebook to preserve it. The account details provided by Facebook reflected defendant's account was deactivated on March 10, 2020. Officer James testified the Facebook account was deleted the same day the police released a still photograph of defendant and Victor Castaneda from the robbery to the public on Twitter.
The People introduced private Facebook messages between defendant and different individuals in which defendant offered to sell or trade firearms and shotgun shells. Defendant wrote in a message dated February 25, 2020, two days after the robbery of the Circle K, that he was willing to trade a "9," which Officer James explained, referred to a nine-millimeter handgun. The recipient asked defendant what he meant and defendant responded with a picture of a semiautomatic handgun and a magazine with at least two live rounds. Officer James testified the gun in the photograph was unusual because it appeared to be two-toned, whereas firearms are usually single-toned. Officer James also testified the gun used during the robbery of the Circle K appeared to be a semiautomatic gun that was consistent with a two-toned firearm based upon a still picture taken from the surveillance footage.
Officer Brendan Thebeau participated in a search of defendant's residence in March 2020. He located approximately $720 and a hooded black sweatshirt at the residence. The surveillance footage reflects the gunman was wearing a hooded black sweatshirt during the Circle K robbery.
Gang Evidence
Officer Cortez Summit testified the Hispanic gangs in Bakersfield associate with the broader Sureño gang ruled by the Mexican Mafia. He described the territory of a subset called the Westside Bakers. He explained the Westside Bakers associate with certain symbols, including the letter "W," and they use the Washington Nationals logo, a "W," to show their affiliation to the Westside Bakers. They also use "WSBKS" and "WSB" for Westside Bakers, the Roman numeral for 13, "Sur 13," or three dots in a triangle form to show affiliation or association with the Mexican Mafia. Officer Summit explained he had personally contacted Westside Bakers members and observed their use of the Washington Nationals "W" on clothing and tattoos to show they are associated or affiliated with the Westside Bakers. He testified he had contacted approximately 100 gang members as part of his attempts to gain intelligence about gangs in Bakersfield and estimated 50 of those gang members were Westside Bakers. He estimated there were approximately 100 members of the Westside Bakers that were out of custody. Officer Summit explained, in gang lingo, "primary activities" refers to things a gang does on a daily basis to benefit the gang and involves "going out and doing certain crimes." He testified the primary activities of the Westside Bakers criminal street gang include robberies and burglaries, unlawful possession of firearms, sales of narcotics, possession of stolen properly, assaults, and murder. He opined when a gang member of the Westside Bakers commits a crime, it instills fear in the community and benefits not only the gang member but the gang overall, and the crime constitutes a gang crime with gang activity.
The prosecution introduced a picture of defendant taken from Facebook in which defendant and another male used their hands together to form a "W," a symbol for "Westside." Officer James pointed out a "WS" tattoo on defendant's neck that stands for "Westside," a tattoo on defendant's chest of a street sign for 8th and L Streets, which is an intersection within Westside Bakers territory, a "W" Washington Nationals logo tattoo on defendant's arm, a blue "B" on his right thigh, and an outline of "DFA," which stands for "Down For Anything." Officer Summit explained the intersection of L and 8th Streets was significant because a well-known Westside Baker, Abel Trujillo, was killed by there during a gun battle with a rival gang member.
Officer Summit opined that defendant was an active participant in the Westside Bakers criminal street gang in February of 2020. He explained tattoos on defendant's body that represented the Westside Bakers had blended in with defendant's other tattoos, making it difficult to tell what they mean.
Officer James was present during a search of Victor Castaneda's residence during which various items were seized. Officer James identified photographs of writings found during the search that said "DFA," "X3," and "Victor C." with an "x" over the letter "o." He explained "DFA" refers to a subset of the Westside Bakers gang known as "Down For Anything." "X3" is the number 13 that pays homage to the Mexican Mafia for Sureños because the 13th letter of the alphabet is the letter "M." And Officer James explained the crossing out of the "o" in Victor was meant to show disrespect toward the Oakie Bakers, a gang that has territory just east of the Westside Bakers. On the next page of photographs, Officer James pointed out the letters "WB," which he testified stood for Westside Bakers, "BKS" for Bakers, "X3" for 13, "West" with a "3" and "5," and "Bakers 13." There was also a stylized writing showing "Victor" in the color blue, the color of the Sureño gang. The prosecution also introduced photographs of Castaneda's tattoos that included a Washington Nationals "W" on his chest.
Based upon the evidence presented on Victor Castaneda, including evidence of his tattoos and his prior convictions for active participation in a criminal street gang in violation of section 186.22, subdivision (a) and being a felon in possession of a firearm, Officer Summit also opined Castaneda was an active member of the Westside Bakers criminal street gang around February 22 and 23 of 2020.
The prosecutor posed Officer Summit with a hypothetical scenario mirroring the facts of the instant case. He asked Officer Summit to imagine "two active participants of the Westside Bakers go to a convenience store … within the traditional boundaries of the Westside Bakers." "One of those individuals has a hat with a Washington Nationals logo prominently displayed on what he's wearing." Referring to the individuals as number one and number two, the prosecutor continued:
"Number one wipes the handle down as he's walking into the convenience store. Number two is the one with the Washington Nationals hat. He looks down and sees this happening, and then avoids touching the handle, using his foot to open the door. They walk into the convenience store.
"Number one tries to cover his face, goes to the back of the store while number two stands at the front of the store. As number two browses around, number one gets in a position behind the clerk. Then number one, without touching the door handle again, walks out, and immediately thereafter number one pulls out a gun, puts it in the clerk's face and commits a robbery.
"During this robbery he is in possession of a loaded firearm. That would be unlawful possession. He makes threats.
"Based on-"
The court noted the prosecutor said "number one pulled out a gun," and the prosecutor clarified, "Number one pulls out a gun after two, with the Washington Nationals hat, has left." The prosecutor then asked Officer Summit his opinion as to whether the crimes committed "after number one pulls out the gun" were "for the benefit, in association with, or at the direction of the Westside Bakers criminal street gang."
Officer Summit opined the crimes committed in the hypothetical scenario were committed for the benefit of, in association with, or at the direction of the Westside Bakers criminal street gang. Officer Summit testified it was significant that both participants were active gang members conspiring to commit the act together, one of the individuals was wearing a "W," and that they were within the traditional boundaries of the gang. He explained the actions taken during the hypothetical are in line with the primary activities of the gang. He testified, committing a robbery within the traditional boundaries of the gang "lets people know that you are still here and you will do whatever you got to do … to benefit the gang." He explained quite often witnesses are afraid to speak to police with regard to crimes because they know they can be injured if they speak with law enforcement. "They can be killed or r[u]n out of the community, and they do not want to risk their lives with trying to help us solve an investigation." On cross-examination, Officer Summit acknowledged the gunman in the Circle K robbery was wearing a black hooded sweatshirt with the sleeves rolled down and the hood up, and pants or jeans such that he was not attempting to show off any tattoos. The gunman also did not say anything gang-related or make any gang-related signs. Officer Summit testified even if the victims of the robbery in the hypothetical did not know the perpetrators were associated with the Westside Bakers, it would not change his opinion that the hypothetical robbery benefitted the gang by intimidating the community.
Evidence of Predicate Offenses and Primary Activities
Defense counsel offered to stipulate to the predicate offenses in a way that would satisfy the People's burden of proof "with respect to that issue as far as the Westside Bakers being a criminal street gang." But the prosecutor declined to stipulate, asserting "it would reduce the probative value of the evidence … on other relevant points" and would subject him to a successful Evidence Code section 352 objection on other points. He explained evidence of the other cases and predicates were not just proof of the existence of the gang but the widespread nature of the gang and defendant's knowledge. The court declined to require the prosecutor to stipulate because it would deprive the prosecution of its persuasiveness and forcefulness. The prosecution then proceeded to introduce evidence of predicate offenses.
Detective Nathan Poteete investigated Victor Castaneda in September 2018. The investigation led to a court case and charges against Castaneda. The prosecution introduced evidence of the charges and of Castaneda's pleas to violations of section 29820 and 186.22, subdivision (a).
Officer Steven Ronfeldt investigated a kidnapping involving Enrique Esquivel on December 27, 2016. Officer Ronfeldt identified Esquivel in a photograph and testified Esquivel is a Westside Bakers criminal street gang member. The prosecution introduced the charges against Esquivel related to the incident and evidence he was convicted, in part, of criminal threats in violation of section 422.
Officer Nestor Barajas was part of an investigation involving Jimmy Ramirez in December of 2014 at the intersection of 8th and L Streets in Bakersfield. Barajas noted Ramirez had a "W" tattoo on his neck, which was primarily used by Westside Bakers as well as by Westside Crips. Ramirez was charged with and pleaded nolo contendere to being a felon in possession of a firearm in connection with the incident. Officer Summit opined Ramirez is a Westside Baker street gang member based upon his tattoo and conviction.
Officer Frank McIntyre was part of an investigation involving Adrian Coronel in April of 2014 that led to a court case. McIntyre confirmed the court case number, name, and charges presented in an exhibit by the prosecution that reflected Coronel pleaded nolo contendere to being a felon in possession of a firearm (§ 29800, subd. (a)(1)) with a gang enhancement (§ 186.22, subd. (b)). McIntyre testified, from this investigation and others, he knew Coronel is a member of the Westside Bakers criminal street gang. Officer Summit also opined Coronel is a Westside Baker.
Officer McIntyre also testified he was aware of a case that originated in October 2013 involving defendant. McIntyre confirmed the court case number, name, and charges presented in an exhibit by the prosecution that reflected defendant pleaded nolo contendere to assault with a deadly weapon (§ 245, subd. (a)(1)) and active participation in a criminal street gang (§ 186.22, subd. (a)).
Officer James King was involved in an investigation at the end of April 2020 during which King arrested defendant and found two, 9- to 10-inch long, high capacity magazines on him. Defendant told Officer King he robbed a "narcotics residence" because he needed money. Defendant reported using a screwdriver to enter through the window. Upon entering, defendant located a black bin with marijuana, items associated with marijuana, and the high-capacity magazines inside it. Defendant was cooperative, but Officer King did not believe he was telling the truth regarding a .40-caliber Glock-style firearm found in the residence's backyard that lacked identifying markers. Officer King explained the gun was untraceable and is referred to as a ghost gun. Officer King believed defendant had possessed that firearm and discarded it while he was running from officers.
Verdict and Sentencing
A jury convicted defendant of all the charges related to the Circle K robbery, which included two counts of second degree robbery (§ 212.5, subd. (c); counts 1 & 2), unlawful possession of a firearm (§ 29800, subd. (a)(1); count 3), two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 4 & 5), criminal threats (§ 422; counts 6 & 7), carrying a concealed firearm while an active participant in a criminal street gang (§ 25400, subd. (c)(3); count 8), active participation in a criminal street gang (§ 186.22, subd. (a); count 9), and second degree burglary (§ 460, subd. (b); count 10). The jury also found true allegations in counts 1 through 7 and 10 that these crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that defendant personally used a firearm during the commission of counts 1, 2, 4, 5, 6, 7, 8, 9, and 10 (§§ 12022.5, 12022.53). In a bifurcated proceeding, the court also found true an allegation defendant had suffered a previous violent felony conviction (§§ 667, 1170.12).
The court sentenced defendant to the upper term of five years for the robbery charged in count 1 (§ 212.5, subd. (c)), doubled to 10 years based on defendant's strike prior, plus 10 years for the section 12022.53, subdivision (b) firearm enhancement, 10 years for the section 186.22, subdivision (b) gang enhancement, and five years for defendant's prior violent felony conviction (§ 667, subd. (a)), for an aggregate term on count 1 of 35 years' imprisonment. The court sentenced defendant consecutively to one year (one-third the middle term) doubled to two years on count 2, plus three years four months for the section 12022.53, subdivision (b) firearm enhancement, and three years four months for the section 186.22, subdivision (b)(1) gang enhancement, for a total term on count 2 of eight years eight months' imprisonment. The court imposed and stayed a 10-year sentence on count 3 (the upper term of six years enhanced by four years pursuant to § 186.22, subd. (b)(1)), 33-year sentences on both counts 4 and 5 (the upper term of 18 years enhanced by 10 years pursuant to § 12022.5, subd. (a), and five years pursuant to § 186.22, subd. (b)(1)), a 16-year sentence on counts 8 and 9 (the upper term of six years enhanced by 10 years pursuant to § 12022.5, subd. (a)), and a 20-year sentence on count 10 (the upper term of six years, enhanced by four years pursuant to § 186.22, subd. (b)(1) and 10 years pursuant to § 12022.5, subd. (a)). The court also imposed a concurrent 21-year sentence on counts 6 and 7 (the upper term of six years enhanced by five years pursuant to § 186.22, subd. (b)(1) and 10 years pursuant to § 12022.5, subd. (a)). Accordingly, defendant's aggregate sentence is 43 years eight months. Notably, defendant was 24 years old at the time of the charged crimes.
DISCUSSION
I. Assembly Bill 333
Defendant first argues the criminal street gang enhancements, his substantive conviction for active participation in a criminal street gang, and his conviction for carrying a concealed firearm while an active participant in a criminal street gang must be reversed pursuant to changes made to section 186.22 by the enactment of Assembly Bill 333. In supplemental briefing, he also contends newly enacted section 1109 (added by Stats. 2021, ch. 699, § 5) requires reversal and retrial of the other convictions in a bifurcated proceeding.
We conclude defendant is entitled to reversal of the gang enhancements, substantive conviction for active participation in a criminal street gang (count 9), and for carrying a concealed firearm while an active participant in a criminal street gang (count 8), which the People are entitled to retry under the amended law. We further conclude the failure to bifurcate the gang allegations was harmless as to defendant's other convictions.
A. Relevant Procedural History
Before trial, defendant moved to bifurcate the gang enhancements. The prosecutor explained the gang allegations were based upon evidence defendant committed the robbery with another gang member who "has gang clothing on." He argued, the "actual actus reus of Count 9 is the robbery." Defense counsel noted the codefendant was no longer joined in the trial, and "a lot of the evidence could be put forth without presenting evidence of gang membership at the same time." He asserted the People could present evidence related to the substantive gang offense without wasting time or duplicating evidence. He argued the subject of gang violence and membership is inherently prejudicial and "[t]here is a risk that people may be inclined to convict on the underlying charge because of gang membership as opposed to whether the evidence proves it beyond a reasonable doubt."
The court concluded "the gang involvement and the crimes, including the robbery" appeared to be "extrinsically linked." The court stated, "If it's on video and … there's testimony that someone is wearing gang clothing that's … related to a specific gang while the crime is being committed, that is analogous to someone shouting-it's not identical, but it's analogous to someone shouting whatever the name of the gang is as they commit the crime." The court also stated it did not think it could properly bifurcate the trial on the gang enhancements given the section 186.22, subdivision (a) allegation nor did it believe it was "the right thing to do in this case." The court agreed "there is the risk, always when there are gang charges and gang allegations, that jurors may look at that and without proper instruction from the Court, consider it for a purpose that … they shouldn't, but that's why we have the jury instructions, and we presume all jurors follow the instructions." Accordingly, the court denied the request to bifurcate the gang enhancements.
B. New Legislation
While defendant's appeal was pending, the Legislature enacted Assembly Bill 333, the STEP Forward Act of 2021, which, in part, amends section 186.22 to impose new substantive and procedural requirements for proving gang allegations. The legislation went into effect on January 1, 2022.
First, Assembly Bill 333 amended the definition of a "'criminal street gang,'" requiring proof that the gang is an ongoing, organized association or group of three or more persons, whose members collectively engage in, or have engaged in, a pattern of criminal activity (§ 186.22, subd. (f)). Next, the law created a stricter requirement for proof of "'a pattern of criminal gang activity,'" which is necessary to prove that the group with which the defendant is associated is indeed a criminal street gang. (See § 186.22, subds. (e)-(f).) Previously, the prosecution needed to prove only that those associated with the gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another. (See former § 186.22, subd. (e).) Under the newly amended law, the offense with which the defendant is currently charged cannot be used as one of the two predicate offenses. (§ 186.22, subd. (e)(2).) In addition, the last of the predicate offenses must have "occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed." (§ 186.22, subd. (e)(1).) The predicate offenses must have been committed by two or more gang "members," and must have been for the "common[] benefit[] [of] a criminal street gang," and "the common benefit" of the offense must be "more than reputational." (Ibid.) Assembly Bill 333 also narrowed the list of offenses that may be used to establish a pattern of criminal gang activity (compare former § 186.22, subd. (e)(1)-(33) with current § 186.22, subd. (e)(1)(A)-(Z)). Additionally, it defines "to benefit, promote, further, or assist" throughout section 186.22 to mean "to provide a common benefit to members of a gang where the common benefit is more than reputational." (Id., subd. (g).) The legislation notes examples of a common benefit that are more than reputational "may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (Ibid.)
Finally, Assembly Bill 333 adds section 1109, which requires gang enhancements charged under section 186.22, subdivision (b) or (d) to be tried separately from the underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) Section 1109 also requires that the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)) be tried separately from all other counts that do not require gang evidence as an element of the crime (§ 1109, subd. (b)).
C. Defendant Is Entitled to Reversal of His Substantive Gang Conviction, the Conviction for Carrying a Concealed Firearm While an Active Gang Participant, and the Gang Enhancements
First, the parties agree Assembly Bill 333's amendments to section 186.22 altering the requirements necessary to prove the substantive gang offense and gang enhancements operate retroactively under the rule of In re Estrada (1965) 63 Cal.2d 740. And the California Supreme Court affirmed the parties' position in People v. Tran (2022) 13 Cal.5th 1169, 1206-1207.)
The Tran court explained, "Estrada 'stand[s] for the proposition that (i) in the absence of a contrary indication of legislative intent, (ii) legislation that ameliorates punishment (iii) applies to all cases that are not yet final as of the legislation's effective date.' [Citation.] Estrada applies to statutory amendments 'which redefine, to the benefit of defendants, conduct subject to criminal sanctions.' [Citation.] Here, 'Assembly Bill 333 essentially adds new elements to the substantive offense and enhancements in section 186.22- for example, by requiring proof that gang members "collectively engage" in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang.…' [Citations.] These changes have the effect of 'increasing] the threshold for conviction of the section 186.22 offense and the imposition of the enhancement,' with obvious benefit to defendants like Tran. [Citation.]" (People v. Tran, supra, 13 Cal.5th at pp. 1206-1207.)
Accordingly, it is undisputed defendant may seek the benefit of Assembly Bill 333's amendments to section 186.22.
In light of the changes to section 186.22, defendant asserts he is entitled to reversal of his substantive gang-related convictions-carrying a concealed firearm while being an active member of a criminal street gang (§ 25400, subd. (c)(3); count 8) and active participation in a criminal street gang (§ 186.22, subd. (a), count 9)- and the gang enhancements attached to counts 1 through 7 and count 10 (§ 186.22, subd. (b)). He asserts the evidence was insufficient to prove he intended his crimes to commonly benefit the Westside Bakers gang in a way that was more than reputational or that the Westside Bakers gang engaged in a pattern of criminal gang activity under the law as amended by Assembly Bill 333. Regarding his latter contention, he specifically asserts, under the amended law, the evidence was insufficient to establish (1) the predicate offenses benefitted the gang in a way that was more than reputational, (2) the predicate offenses were committed collectively, and (3) that the subjects of the predicate offenses were members of the Westside Bakers when they committed the predicate offenses. Alternatively, defendant contends, even if there was substantial evidence to support the gang counts and enhancements, in light of Assembly Bill 333, the trial court's jury instructions were erroneous because they omitted several elements from the charges in violation of defendant's Sixth and Fourteenth Amendment rights. The People agree the evidence was insufficient to establish the predicate offenses benefitted the gang in a way that was more than reputational as required under the amended law. Specifically, they assert, in light of the new requirement the last offense must have been committed within three years of the date of the currently charged offense, the 2018 firearm and gang participation offenses committed by Victor Castaneda "were crucial to proving a pattern of criminal activity under the amended statute." But "there was no evidence offered that Castaneda's offenses commonly benefitted the gang in a way that was more than reputational." Accordingly, they agree the evidence was insufficient to prove a pattern of criminal activity under section 186.22 as modified by Assembly Bill 333. Thus, they concede the gang enhancements in counts 1 through 7 and count 10 must be reversed in addition to defendant's substantive convictions for carrying a firearm while being a participant in a gang (count 8), and the substantive gang charge (count 9). Both parties agree the case should be remanded to afford the prosecution an opportunity to retry the gang-related charges and enhancements.
As to count 8, the People concede, because it "was charged as possession of a firearm by an active participant in a gang, rather than being charged with carrying a concealed firearm with a separate finding on a gang allegation, it … must also be reversed and remanded."
We agree and accept the People's concession that defendant is entitled to reversal of his convictions for active participation in a criminal street gang (§ 186.22, subd. (a)) and the section 186.22, subdivision (b) gang enhancements based on the changes to section 186.22. As the parties do not dispute, the evidence presented at trial was insufficient to establish "'a pattern of criminal gang activity'" and, thus, a "'criminal street gang'" as necessary to sustain defendant's substantive gang conviction and enhancements pursuant to amended section 186.22. (See § 186.22, subds. (e), (f).) Insufficient evidence was presented that the predicate offenses, committed in the new time frame, commonly benefitted a criminal street gang, and the common benefit was more than reputational. (See § 186.22, subd. (e)(1); see also People v. Lopez (2021) 73 Cal.App.5th 327, 346 ["Although the People did submit evidence of two predicate offenses that were committed in the new time frame, the People did not prove that the predicate offenses commonly benefitted a criminal street gang and that the benefit was more than reputational"].)
We also agree defendant is entitled to reversal of his conviction for carrying a concealed firearm while an active gang participant in violation of section 25400, subdivision (c)(3) (count 8) because section 25400, subdivision (c)(3) expressly references and incorporates subdivision (a) of section 186.22. Specifically, defendant was charged and convicted of a violation of section 25400, subdivision (c)(3) requiring a finding by the jury that "the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act." As we have already concluded, the evidence presented at trial was insufficient to meet the current requirements. Thus, we also reverse defendant's conviction as to count 8. (See People v. Lopez, supra, 73 Cal.App.5th at p. 346 ["Assembly Bill 333's changes to section 186.22 affect not only the gang enhancement allegations under that statute but other statutes that expressly incorporate provisions of section 186.22"]; accord, People v. Lopez (2022) 82 Cal.App.5th 1, 7, 25 [holding Assem. Bill 333's amendments to § 186.22, subds. (e) & (f) lawfully apply to § 182.5, which incorporates those sections]; People v. Lee (2022) 81 Cal.App.5th 232, 240 ["The express reliance by … the firearm enhancement statutes … on the definition of a criminal street gang in section 186.22 means that appellants are entitled to the benefit of this change in the law as to" those enhancements and special circumstance allegations], review granted Oct. 19, 2022, S275449.)
We also agree with the parties the People are not foreclosed from retrying defendant on the substantive gang offense (§ 186.22, subd. (a)), for carrying a concealed firearm while an active gang member (§ 25400, subd. (c)(3)), and the gang enhancements (§ 186.22, subd. (b)), upon remand under the new requirements of amended section 186.22. Put differently, "'[b]ecause we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial.'" (People v. Sek (2022) 74 Cal.App.5th 657, 669; accord, People v. Figueroa (1993) 20 Cal.App.4th 65, 72 ["Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence"]; see People v. Eagle (2016) 246 Cal.App.4th 275, 280 ["When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand"].)
D. The Failure to Bifurcate Was Harmless
In supplemental briefing, defendant also argues section 1109 applies retroactively to his case and requires reversal and retrial of counts 1, 2, 3, 4, 5, 6, 7, and 10 because the failure to bifurcate the gang allegations was structural error. Alternatively, he asserts the error was not harmless under Chapman v. California (1967) 386 U.S. 18, 24, and People v. Watson (1954) 46 Cal.3d 818, 836. In support, defendant argues his primary defense at trial was identity-he was not the perpetrator of the Circle K robbery. He asserts the evidence implicating him as the perpetrator was not overwhelming, particularly since Gerardo G. testified defendant "was not the perpetrator." Defendant contends it is likely the jury relied on evidence of his gang membership in considering the identity issue such that the failure to bifurcate the gang evidence was prejudicial under any standard of prejudice. The People assert section 1109 only operates prospectively and, irrespective, any failure to bifurcate was harmless based on the strong evidence against defendant and the jury instructions. We agree with the People that the failure to bifurcate was harmless.
The courts of appeal are split on whether section 1109 applies retroactively. (Compare People v. Burgos (2022) 77 Cal.App.5th 550, 565-568 [holding § 1109 applies retroactively under Estrada], review granted July 13, 2022, S274743, and People v. Ramos (2022) 77 Cal.App.5th 1116, 1128-1131 [same], with People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [holding § 1109 is not retroactive], review granted Aug. 17, 2022, S275341, People v. Boukes (2022) 83 Cal.App.5th 937, 947-948 [same], review granted Dec. 14, 2022, S277103, and People v. Perez (2022) 78 Cal.App.5th 192, 207 [same], review granted Aug. 17, 2022, S275090.) Most recently, in People v. Tran, supra, 13 Cal.5th at page 1208, the California Supreme Court declined to resolve the split, concluding any failure to bifurcate the gang allegations was harmless. Notably, whether section 1109 applies retroactively to nonfinal cases is an issue currently pending before the California Supreme Court in People v. Burgos
The California Supreme Court granted review in People v. Burgos, supra, 77 Cal.App.5th 550 and initially deferred action pending consideration and disposition of People v. Tran. However, after issuing its opinion in Tran, the California Supreme Court issued a briefing order in Burgos directing the respondent to file an opening brief on the merits limited to the following issue: "Does the provision of Penal Code section 1109 governing the bifurcation at trial of gang enhancements from the substantive offense or offenses apply retroactively to cases that are not yet final?" (People v. Burgos, S274743, Supreme Ct. Mins., Oct. 12, 2022.)
In reviewing for prejudice in Tran, the California Supreme Court concluded the failure to bifurcate in that case did not render the trial fundamentally unfair such that it required review under the standard for federal constitutional error articulated in Chapman v. California, supra, 386 U.S. 18. (People v. Tran, supra, 13 Cal.5th at p. 1209.) Accordingly, the court considered whether the defendant was prejudiced under the state law standard of review articulated in People v. Watson, supra, 46 Cal.2d 818 and concluded the defendant had failed to establish prejudice as to his guilty verdicts. (Tran, at p. 1209.) In so holding, the Tran court rejected the contention the failure to bifurcate as required under section 1109 constitutes structural error. (Tran, at p. 1208.)
Here, as in Tran, it is unnecessary to address the parties' claims regarding retroactivity because we conclude the failure to bifurcate the proceedings was harmless. In so holding, and for the reasons discussed further post, we cannot conclude the admission of the gang evidence rendered the trial "fundamentally unfair" such that it resulted in a due process violation and requires us to review for prejudice under the Chapman standard for constitutional error. (See People v. Tran, supra, 13 Cal.5th at p. 1209.)
Applying the Watson standard for state law error, we cannot conclude it is reasonably probable defendant would have obtained a more favorable verdict in the absence of the gang evidence that would not have been presented had the gang enhancements and substantive gang offense been bifurcated. (See People v. Watson, supra, 46 Cal.2d at p. 836.) As in Tran, "the case for guilt here was strong." (People v. Tran, supra, 13 Cal.5th at pp. 1209-1210.) One of the victims identified defendant as the perpetrator in a photographic lineup after the incident and at trial. An officer familiar with defendant also identified him as the perpetrator based on the surveillance footage from the incident. Additionally, here, the crimes were caught on surveillance footage. Thus, the jury was able to personally view and assess the perpetrator and his distinctive characteristics, including his facial hair and tattoos, and compare them to those of defendant's. There was also evidence defendant attempted to trade a firearm resembling the one used in the robbery within days of the incident, and he deactivated his Facebook account as soon as it was publicized that he was a suspect in the crimes. Given such strong evidence of guilt, it is not reasonably likely a bifurcated trial would have changed the jury's verdict on the nongang-related charges.
Furthermore, nothing in Assembly Bill 333 limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges. "The People are generally entitled to introduce evidence of a defendant's gang affiliation and activity if it is relevant to the charged offense." (People v. Chhoun (2021) 11 Cal.5th 1, 31.) Gang evidence, "'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.'" (Ibid., quoting People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Additionally, "[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and … [a]n explanation of the basis for the witness's fear is likewise relevant to her credibility …." (People v. Burgener (2003) 29 Cal.4th 833, 869.)
And here, there was evidence another individual, Victor Castaneda, was also present and indirectly involved in the charged incident. Castaneda can be seen on the surveillance footage using his foot to open the door after defendant wiped the door handle. Castaneda entered the Circle K before defendant, and then left before the robbery began. Castaneda was wearing a "W" hat at the time. In this regard, gang evidence could have been admissible and relevant to the underlying charges to establish a potential connection between defendant and Castaneda, to explain the circumstances surrounding the charged crime, and to establish the identity of the perpetrator. (See People v. Duong (2020) 10 Cal.5th 36, 65 [gang evidence was relevant and admissible in part to explain "apparent coordination among defendant's associates to destroy the surveillance tape"]; see also People v. Chhoun, supra, 11 Cal.5th at p. 31 ["Evidence of defendant's gang membership was relevant to show his relationship with the accomplices who testified against him, to prove his identity as one of the robbers"].) Furthermore, the gang evidence, including Officer Summit's testimony regarding witnesses' reluctance to talk to police or give information based on their fear of gangs, could also be considered relevant to Gerardo's credibility and to explain his failure to identify defendant after the incident or at trial. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1169 [gang evidence was relevant to witnesses' reluctance to testify and inconsistent statements]; see generally People v. Tran, supra, 13 Cal.5th at p. 1209 ["We have held that a trial court is entitled to admit evidence demonstrating a fear of testifying"].) Contrary to defendant's assertion, there is no requirement that a witness must be threatened with retaliation, or to state their fear of testifying, for evidence to be admissible on this basis. (See People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450 ['""Testimony a witness is fearful of retaliation similarly relates to that witness's credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witness's fear of retaliation is directly linked to the defendant for the evidence to be admissible'""].) Thus, even if section 1109 required bifurcation of the charge related to possession of a concealed firearm by an active gang member, it is likely some, though not all, of the gang evidence would have come in at a trial on the other substantive offenses. (See People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050 ["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"]; People v. Samaniego, supra, at p. 1167 ["evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative"].)
Notably, defendant was also charged with carrying a concealed firearm while an active member of a criminal street gang (§ 25400, subd. (c)(3)), which would necessarily require the introduction of much of the gang evidence, even in a bifurcated proceeding. And the plain language of section 1109 does not require bifurcation of this count from the other charges. Rather, section 1109's plain terms only require bifurcation, upon request by the defense, of a gang enhancement charged under subdivision (b) or (d) of section 186.22 (§ 1109, subd. (a)), or "a violation of subdivision (a) of Section 186.22" (id, subd. (b)). Although section 25400, subdivision (c)(3) specifically refers to provisions of section 186.22, section 1109 does not refer to this section. Thus, on its face, section 1109 does not apply to violations of these sections. (See People v. Montano (2022) 80 Cal.App.5th 82, 113-114 [noting the potential for "loophole[s]" to circumvent § 1109, but rejecting argument § 1109 applies to the determination of special circumstances under § 190.2, subdivision (a)(22), reasoning, in part, "[defendants are asking us to rewrite section 1109 to expand the scope of its application, which would also require us to judicially amend multiple parts of a different statutory scheme" and "'[d]oing so would violate the cardinal rule that courts may not add provisions to a statute'"].)
We further note the jury was given a limiting instruction regarding its consideration of the gang evidence, which we presume it followed. (See People v. Franklin (2016) 248 Cal.App.4th 938, 953 ["We presume that the jury followed these limiting instructions [regarding considering gang evidence for limited purpose], and there is nothing in this record to rebut that presumption"].) Consequently, on this record, we cannot conclude defendant was prejudiced by the failure to bifurcate the substantive gang offense and gang enhancement allegations from the other charges. (See People v. Hernandez, supra, 33 Cal.4th at p. 1051 ["Any evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants' actual guilt"].) Thus, defendant is not entitled to reversal and retrial of his remaining convictions on this basis.
II. Sufficiency of the Evidence
Defendant next challenges the sufficiency of the evidence in support of his convictions for assault with a firearm (counts 4 and 5) and making a criminal threat to Edward S. (count 6), as well as the firearm enhancement attached to count 8. We agree the firearm enhancement attached to count 8 must be reversed but otherwise reject defendant's contentions.
A. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence is "'"'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"'" (People v. Navarro (2021) 12 Cal.5th 285, 302.) The reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (See People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Johnson (1980) 26 Cal.3d 557, 578.) "The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
It is the jury, not the appellate court, which must be convinced of a defendant's guilt beyond a reasonable doubt. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis … is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
B. Evidence Was Sufficient to Support the Assault with a Firearm Convictions
Defendant first contends the evidence was insufficient to support his assault with a firearm convictions because there was not substantial evidence the gun used during the robbery was loaded. We disagree.
1. Applicable Law
"'A long line of California decisions holds that an assault is not committed by a person's merely pointing an (unloaded) gun in a threatening ma[nn]er at another person.'" (People v. Penunuri (2018) 5 Cal.5th 126, 147; see People v. Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3; accord, People v. Sylva (1904) 143 Cal. 62, 64 ["Pointing an unloaded gun at another, accompanied by a threat to discharge it without any attempt to use it, except by shooting, does not constitute an assault"].) "However, the fact that the gun was loaded may be inferred from circumstantial evidence, and we will uphold an assault conviction if the inference is reasonable." (People v. Penunuri, supra, at p. 147; accord, People v. Rodriguez, supra, at p. 12.) "A defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that he used a loaded weapon." (Rodriguez, at p. 13.)
2. Analysis
Defendant challenges his convictions for assault with a firearm (counts 4 & 5), asserting the evidence was insufficient to establish his firearm was loaded. In support, he notes he never admitted the firearm was loaded, the firearm was never recovered, the victims did not testify they saw him load the firearm, chamber a round in the firearm, or have any cartridges, nor did they have reason to believe the firearm was actually loaded. He also asserts "there was no evidence that [he] had fired the gun before, during, or after the assault." He argues, an inference the gun was loaded based upon evidence he tried to sell a gun on Facebook with live rounds a few days after the incident "was based on pure speculation." He contends no witness testified the gun for sale on Facebook was the same gun defendant used during the assault. He further contends "a threat to shoot someone with a gun, absent substantial evidence that the gun was actually loaded, does not constitute assault," relying upon People v. Sylva, supra, 143 Cal. 62, 63, in support. The People respond defendant's "words and actions provided sufficient evidence that the gun was loaded." We agree with the People.
Viewing the evidence in the light most favorable to the jury's verdict, as we must, we conclude sufficient circumstantial evidence, and the reasonable inferences that could be drawn therefrom, supports defendant's convictions for assault with a firearm and the jury's related conclusion the firearm was loaded. Here, after pointing a gun at both victims, defendant said if they moved, they were "gonna get shot in the head," "Someone [is] getting shot, better give me my shit," "If you call the cops I'll come back and pop you one." There were also messages retrieved from defendant's Facebook account that evidenced defendant tried to trade a two-toned, semiautomatic firearm with live rounds two days after the incident. And Officer James testified the gun used in the robbery appeared to be a two-toned, semiautomatic firearm, which was unusual, based upon his review of a still picture taken from the surveillance footage.
Accordingly, the jury could reasonably infer from defendant's repeated threats to "shoot" or "pop" the victims if they did not comply with his instructions after he displayed and pointed a firearm at them, coupled with evidence defendant was in possession of and trying to get rid of ammunition and a semiautomatic firearm resembling the one used during the robbery two days after the offense, that the gun defendant used during the robbery was loaded. (See People v. Rodriguez, supra, 20 Cal.4th at p. 12 [jury could reasonably have interpreted defendant's warning to the victim to keep his mouth or defendant "'could do to [the victim] what [the defendant] did to them,'" as an admission by defendant of his present ability to harm the victim, and such evidence "was highly relevant to, and supportive of, the assault charge"]; accord, People v. Schwartz (1992) 2 Cal.App.4th 1319, 1326 [evidence defendant "pointed the gun at several employees and that later, ammunition for the gun was found in his home" was sufficient for a reasonable jury to find the gun was loaded at the time of the incident]; see People v. Mearse (1949) 93 Cal.App.2d 834, 836-838 [sufficient evidence supported assault conviction and conclusion gun was loaded where defendant commanded victim to stop or "'I'll shoot,'" noting "[t]he acts and language used by an accused person while carrying a gun may constitute an admission by conduct that the gun is loaded"]; People v. Montgomery (1911) 15 Cal.App. 315, 317-319 [jury was entitled to reject defendant's testimony gun was unloaded and to infer it was loaded where defendant was enraged when he left fight and returned with a gun he leveled at victim, saying "'I have got you now,'" words that would be meaningless unless weapon was loaded].) Because the circumstances reasonably justify the jury's findings, reversal is not warranted. (See People v. Rodriguez, supra, at p. 12 [finding appellate court erred in concluding insufficient evidence established gun was loaded by focusing on "what it found lacking in the prosecution's case and the strength of the inferences it drew from the evidence presented, rejecting contrary (but … equally logical) inferences the jury might have drawn"].)
We reject defendant's contention.
C. The Evidence Supports the Criminal Threats Conviction
Defendant next contends insufficient evidence supports the jury's finding Edward S. was in "sustained fear" regarding the criminal threats conviction in count 6.
1. Applicable Law
In order to prove a violation of section 422 for making a criminal threat, the prosecution must establish (1) the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person"; (2) the defendant made the threat "with the specific intent that the statement … is to be taken as a threat, even if there is no intent of actually carrying it out"; (3) the threat-which may be "made verbally, in writing, or by means of an electronic communication device"-was, "on its face and under the circumstances in which it [was] made, … so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat"; (4) the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety"; and (5) the threatened person's fear was "reasonabl[e]" under the circumstances. (§ 422, subd. (a); see People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
The requirement of section 422 that the threat must cause the victim "'reasonably to be in sustained fear for his or her own safety' has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) Section 422 does not define the term "sustained fear." However, some courts have defined sustained fear as meaning a "period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; see People v. Wilson (2015) 234 Cal.App.4th 193, 201; In re Ricky T., supra, at p. 1140; accord, People v. Fierro (2010) 180 Cal.App.4th 1342, 1348-1349 ["'Fifteen minutes of fear … is more than sufficient to constitute "sustained fear" for purposes of this element of section 422'"].)
2. Analysis
Defendant challenges the sufficiency of the evidence to support his criminal threat conviction in count 6 against Edward S. He argues Edward did not testify defendant's "parting threat caused him to actually fear for his life, and Edward['s] subsequent conduct proved that it did not." He contends the prosecutor did not ask Edward how he felt about the threat defendant made when leaving, and Edward only testified he was afraid before defendant made the threatening statement. He also notes, despite defendant's threat to shoot Edward if Edward called the police, Edward immediately called the police, which was "incongruous with that of a person in actual fear" of the threat. The People respond, Edward's statements that "he felt like looking directly at the person's face would have put himself at risk because of 'the threats he made right off the get-go,'" and that he hoped defendant did not get angry and shoot them because there was not a lot of money, evidenced Edward's fear. They also point out Edward counted to 30 after defendant left, then he locked the store and called the police and the general manager, and he kept everything locked until they arrived. On reply, defendant argues the "prosecutor in this case specifically elected to rely on [defendant's] parting statement to prove count 6," and the People are bound by the prosecution's election. And he asserts there was no evidence defendant's parting threat caused Edward S. to be in sustained fear.
We conclude sufficient evidence supports defendant's conviction for making a criminal threat to Edward S. (count 6) and its related conclusion defendant's threat caused Edward sustained fear. Though Edward did not directly testify defendant's threat to shoot him if he called the police caused him fear, the totality of the evidence supports a reasonable inference defendant's threats placed Edward in sustained fear for his safety. First, Edward counted aloud after defendant exited the store, supporting a reasonable inference Edward was hesitant to move or do anything immediately following defendant's departure because he was concerned for his safety. After counting, Edward immediately proceeded to call the police and lock the store, supporting a reasonable inference he feared defendant would return. Additionally, at trial, Edward testified he was "nervous" and, at the point in the video when defendant was near the door, stated, "All I was hoping is he didn't get pissed off that there wasn't a lot of money and shoot us." Thus, the jury could also infer from this latter statement and the fact defendant had just pointed a gun at Edward's head that defendant's parting threat, in context, caused Edward sustained fear. Moreover, as a result of the surveillance footage, at trial, the jury could view and consider Edward's demeanor and actions immediately after defendant's threat was made, and could also consider Edward's demeanor when he testified in considering whether the threats resulted in sustained fear. And we do not reweigh evidence or determine if other inferences more favorable to the defendant could have been drawn from it. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) Based upon such evidence, a jury could reasonably infer Edward experienced sustained fear due to defendant's threat. (See People v. Ortiz (2002) 101 Cal.App.4th 410, 417 [though defendant did not testify statement put him in actual fear, the only reasonable inference from the evidence was victim had such fear where threat was part of an "uninterrupted series of crimes"]; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536-1537 [evidence that victim called police because he was scared sufficient to support "sustained fear" finding]; accord, People v. Culbert (2013) 218 Cal.App.4th 184, 190-191 ["Even if the encounter lasts only one minute, a person who is confronted with a firearm held by an angry perpetrator and who believes his or her death is imminent, suffers sustained fear"].)
Defendant acknowledges the court in People v. Ortiz, supra, 101 Cal.App.4th 410 held the element of sustained fear could be reasonably inferred from the circumstantial evidence presented in that case. (Id. at p. 417.) But he argues Ortiz is distinguishable because here the threat was not part of "an uninterrupted series of crimes" and defendant's threat was "plainly conditional."
We do not read People v. Ortiz as requiring "an uninterrupted series of crimes" to sustain the jury's finding of sustained fear. Rather, any "'"[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt."'" (People v Stanley, supra, 10 Cal.4th at p. 793.) And, we "'"must accept logical inferences that the jury might have drawn from the evidence even if [we] would have concluded otherwise. [Citation.]"'" (People v. Solomon (2010) 49 Cal.4th 792, 811-812.)
As discussed above, the circumstantial evidence supports the jury's finding Edward experienced sustained fear as a result of defendant's threat under the circumstances. And, as in Ortiz, there is no evidence that "his fear dissipated." (People v. Ortiz, supra, 101 Cal.App.4th at p. 417; see People v. Culbert, supra, 218 Cal.App.4th at p. 191 ["[e]xperiencing relief that one has survived is not the same thing … as having one's fear evaporate"].)
Additionally, it is true section 422 requires a threat, "on its face and under the circumstances in which it is made," to be "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat" such that it causes the person reasonably to be in sustained fear for his or her own safety. But, contrary to defendant's contention, "prosecution under section 422 does not require an unconditional threat of death or great bodily injury." (People v. Bolin, supra, 18 Cal.4th at p. 337; accord, People v. Culbert, supra, 218 Cal.App.4th at p. 190 ["[t]here is no requirement that the threat be unconditional, nor can we judge a threat 'solely on the words spoken. It is clear by case law that threats are judged in their context.' [Citation.] '[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a[] basis for a violation of section 422'"].) Rather, "'[t]he use of the word "so" [in section 422] indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.'" (People v. Bolin, supra, at p. 340.)
Here, substantial evidence supports the jury's conclusion defendant's threat and the surrounding circumstances conveyed a gravity of purpose and immediate prospect of execution such that it caused Edward S. reasonably to be in sustained fear for his safety. Accordingly, we reject defendant's contention.
D. Insufficient Evidence Supports the Firearm Enhancement Attached to Count 8
Defendant next challenges the jury's true finding on the section 12022.5, subdivision (a) firearm enhancement allegation to count 8, which alleged defendant possessed a concealed firearm while an active participant in a criminal street gang under section 25400, subdivision (c)(3). He contends he did not use a firearm merely by possessing it and, accordingly, the evidence was insufficient to support this enhancement. The People agree defendant is entitled to reversal because he did not "use" the firearm in committing the possession offense. We also agree.
A section 12022.5, subdivision (a) enhancement applies to "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." "[G]un use occurs in the commission of an offense if the use objectively facilitates the offense." (People v. Stout (2019) 38 Cal.App.5th 669, 675.)
In People v. Arzate (2003) 114 Cal.App.4th 390, the defendant was pulled over for a traffic violation. (Id. at p. 392.) As an officer approached the defendant's car, the defendant pulled out a firearm that had been concealed and shot the officer. (Ibid.) The jury convicted the defendant, in part, of carrying a concealed firearm and found true a related firearm enhancement alleging defendant personally used a firearm during the commission of that offense. (Id. at p. 399.) On appeal, the Arzate court reversed the firearm enhancement attached to the possession of a concealed firearm count, explaining "[t]he statutory requirement for true findings on these enhancement allegations dictates the gun use … occur 'in the commission' of the underlying felony." (Id. at p. 400.) However, the firearm was not used "in the commission of the static offense of carrying a concealed weapon in a vehicle." (Id. at p. 401.) Rather, "[c]onceptually the crime of concealment would seemingly end with the firearm's use and thus exposure. In other words, it seems logically inconsistent to be found guilty of … using the gun … while concealing the same gun within a vehicle." (Id. at. p. 400.) "[T]he offense of carrying a concealed firearm in a vehicle is committed with the single passive act of carrying the firearm in a concealed fashion in a vehicle." (Ibid.)
Here, as in People v. Arzate, we cannot conclude defendant's "use" of the firearm facilitated his possession of the concealed firearm. Rather, defendant's "use" of the firearm was inconsistent with his concealment of it. Thus, the section 12022.5, subdivision (a) enhancement attached to count 8 must be stricken. (See People v. Stout, supra, 38 Cal.App.5th at p. 676 [defendant's "use of the firearm did not objectively facilitate carrying a loaded firearm with the intent to commit a felony" so the § 12022.5 firearm enhancement must be stricken]; accord, In re Pritchett (1994) 26 Cal.App.4th 1754, 1757 [concluding defendant did not use shotgun "in the commission" of his crime of possessing it].)
III. Defendant's Contention Active Participation in a Criminal Street Gang Is a Lesser Included Offense of Possession of a Concealed Firearm While Being an Active Participant in a Criminal Street Gang Is Moot
Defendant next contends his conviction for active participation in a criminal street gang (count 9) must be reversed because it is a lesser included offense of possession of a concealed firearm while being an active participant in a criminal street gang (count 8). Specifically, he argues his conviction in count 8 required the jury to find he was an active participant in a criminal street gang and possessed a concealed firearm. He asserts, accordingly, his conviction for being an active participant in a criminal street gang (count 9) was a lesser included offense of count 8 in that all of the elements of count 9 were included in count 8. The People respond that we need not address the issue because it is possible count 8 or count 9, or both, ultimately are not retried or are not found true by the jury on retrial. Alternatively, they assert a violation of section 186.22, subdivision (a) is not a lesser included offense of a violation of section 25400. They reason, subdivision (c)(3) of section 25400 is a penalty provision for the offense of possession of a loaded firearm under the circumstance where the person is a member of a criminal street gang, and penalty provisions are not considered in determining whether one offense is a lesser included offense of another. They concede count 8 was not charged as carrying a concealed firearm with a separate allegation of participating in a gang, nor was the jury so instructed. However, they assert we should not look at the pleadings and, instead, should only consider the statutory elements. On reply, defendant agrees with the People that we need not reach this claim in light of our reversal of counts 8 and 9 based on the changes amending section 186.22 by Assembly Bill 333.
We agree with the parties that, because we are reversing counts 8 and 9 on other grounds, we need not address this contention further. However, defendant may raise the issue below if the charges are retried.
IV. Additional Considerations on Remand
Because we are reversing multiple counts and enhancements as discussed herein, a new sentencing hearing will necessarily result. At resentencing, the court and parties are advised to consider and apply any pertinent new laws the Legislature has passed during the pendency of this appeal including, but not limited to, Senate Bill No. 567 (2021-2022 Reg. Sess.), Assembly Bill No. 518 (2021-2022 Reg. Sess.), and Assembly Bill 124 (2021-2022 Reg. Sess.).
DISPOSITION
The section 186.22, subdivision (b) gang enhancements and defendant's convictions on counts 8 and 9 are reversed and remanded for further proceedings consistent with this opinion. The judgment is otherwise affirmed. The People shall have 60 days from the date of the remittitur in which to file an election to retry defendant on the reversed charges and enhancements. If the People elect not to retry him, the trial court shall resentence defendant on the remaining charges, amend the abstract of judgment accordingly, and forward a copy to the appropriate law enforcement and custodial officials.
WE CONCUR: DETJEN, Acting P. J. SNAUFFER, J.