Opinion
E075678
12-20-2021
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY BARBARIN II, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney Generals, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Paige B. Hazard and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1407905 Mac R. Fisher, Judge. Affirmed in part; reversed in part with directions.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney Generals, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Paige B. Hazard and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J. 1
A jury found defendant and appellant Michael Anthony Barbarin II, guilty of first degree murder. (Pen. Code, §§ 187, subd. (a), 189, subd. (a).) Additionally, the jury found (1) the murder was committed to further the activities of a criminal street gang while defendant was an active participant in the gang (§ 190.2, subd. (a)(22)); (2) defendant committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)); and (3) during the killing, which benefitted a gang, a principal intentionally discharged a firearm causing death (§ 12022.53, subds. (e)). The trial court sentenced defendant to prison for a term of life without the possibility of parole plus 25 years.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
The minute order from the sentencing hearing incorrectly indicates that the trial court sentenced defendant to prison for a term of 50 years to life. The abstract of judgment reflects the same incorrect sentence and further incorrectly indicates that the trial court stayed the special circumstance finding (§ 190.2, subd. (a)(22)).
Defendant raises three issues on appeal. First, defendant asserts the trial court erred by denying defendant's motion to exclude his allegedly involuntary confession. Second, defendant contends substantial evidence does not support the primary activities element of the criminal street gang finding. Third, defendant contends the trial court made errors in sentencing, the sentencing minute order, and the abstract of judgment. We reverse in part and affirm in part with directions. 2
FACTUAL AND PROCEDURAL HISTORY
Eastside Riva (ESR) is a Hispanic gang that claims territory in the eastern end of the City of Riverside. ESR is an "umbrella gang." Within ESR there are subgroups known as cliques. The structure is similar to "a business corporation that has subsidiaries." On the southern side of ESR territory, near Lincoln Park, the three ESR cliques that spend time together are 14th Street, Los Romanos, and Defiantes.
Graffiti identified defendant's older half-brother, Anthony Valadez (Brother), as a member of the 14th Street clique. Graffiti identified defendant as a member of the 14th Street clique. A jail kite/note also identified defendant as a member of the 14th Street clique. A tattoo on defendant's hand identified him as a member of the 14th Street clique.
This court issued an unpublished opinion in the related case of People v. Valadez (Feb. 4, 2020, E071464).
Another gang on the eastern end of the City of Riverside is the 1200 Blocc Crips, which is an African American gang. ESR and the 1200 Blocc Crips are rivals. Dana Parker (the victim) was a former member of the 1200 Blocc Crips. The victim had been active in the 1200 Blocc Crips when he was in his 20s; the victim was 40 years old when he was killed.
On the afternoon of May 31, 2014, the victim was sitting in his car outside his grandmother's apartment complex, which was in a neighborhood that 1200 Blocc Crips sometimes visited. At approximately 3:40 p.m., a green Ford Explorer with two people inside stopped next to the victim's car. The victim was shot four times with nine- 3 millimeter bullets. The Ford Explorer sped away. The victim died within minutes as a result of internal bleeding from the gunshot wounds. The four shell casings left at the scene read "PPU 9mm Luger."
On June 5, 2014, police conducted a traffic stop on the Ford Explorer, in the eastern end of Riverside. Brother was the sole occupant of the Explorer. Brother was arrested for being under the influence of a controlled substance. Upon searching the vehicle, officers found a fully loaded nine-millimeter Hi-Point handgun under the dashboard of the Explorer, on the driver's side. Officers also found two live nine-millimeter rounds inside a sock wedged between the center console and the front passenger seat. The rounds in the sock and the rounds in the gun were stamped with "PPU 9mm Luger." Gunshot residue was not taken from the Ford Explorer. DNA on the butt of the handgun matched Brother's DNA. DNA swabs were also taken from the gun's handle, trigger, and magazine. DNA tests indicated there were multiple people who handled the other parts of the gun, but there was insufficient DNA to match it to specific people.
On January 27, 2015, Detectives Brandt and Simon interviewed defendant about the May 2014 homicide. The interview took place in an interview room at the Riverside County jail. Defendant had been arrested on July 15, 2014, for an unrelated carjacking.
Brandt told defendant that Brother was in custody for a homicide that occurred in May 2014 and that Brother admitted to driving the car that the killer was in. Brandt said Brother alluded to defendant having been in the Explorer with Brother during the murder but Brother "didn't get much more into it." Brandt said Brother's "attorney has 4 approached the DA's office." Brandt asked defendant what Brother might say to the district attorney if the district attorney agreed to meet with him. Defendant said he did not know.
Brandt responded, "I have a feeling he is gonna tell us that you were there, and I'm gonna give you the shot to give your side of it up. I mean, if it's gonna be one of those things, like, he says you did it, and you said he did it, whatever, that's fine. I mean, but if he-if he's gonna tell us that and that's the truth, (unintelligible) for him to, ya know, potentially, go away forever. Um, I don't know if you feel the same way about that, or not. Um, if you were involved in that would you-would you tell us?" Defendant responded, "I would but (unintelligible)."
Defendant explained that he is "always with [Brother]." Brandt said, "I know that too, and I know that-that you coulda, like, I'm pretty certain that you were at least with [Brother]. And maybe with [Brother] to encourage him-to give him, uh, give him a little courage to go (unintelligible) or whatever . . . somethin' had to be up for [Brother] to do just roll up and do this broad daylight, or whatever. (Unintelligible) fucking cried, and it-that's just, like, not normal. That's not normal-that's, like, somethin'-something's up, so I don't believe he shot and I don't wanna see him go to jail for, like, life in prison, like, without parole, probably, um, for something that he was just drivin.'" Defendant responded, "Mm-hm." Brandt said, "We found the gun in his car. We found the car-everything. Told us he was driving, um, but I think it's fucked up that he go away forever." Defendant's response was unintelligible on the recording. 5
As the interview continued, Brandt asked defendant what would happen to Brother if Brother made a deal with the prosecutor. Defendant's response was unintelligible on the recording. Then the following exchange occurred:
"Brandt: Not gonna be good, I mean, he's gonna lose the family respect. He's gonna lose your respect. He's gonna lose respect anywhere. So I don't know if he wants to do that. I think it's probably a pretty hard decision he's gonna have to make at some point. And I don't know if it's being encouraged by his attorney, or if he's trying to do it, or whatever, but, they'll come to the DA's office, and at this point, ah, I'm gonna say, okay, yeah, let's-let's talk to him-see what he has to say. Which, means what? Means he's gonna be a snitch.
"[Defendant]: (Unintelligible).
"Brandt: Right, so whether it's on you, or whether it's on one of his pretty boy friends, or whatever, (unintelligible) gonna pick on somebody. I'm telling (unintelligible). So if you know he didn't do it, I want you to tell me what you know.
"[Defendant]: He didn't do it.
"Brandt: 'Kay, and tell me why you know that.
"[Defendant]: I did.
"Brandt: You did it?
"[Defendant]: Yeah."
Defendant said Brother believed he was dropping defendant off at defendant's girlfriend's house, and Brother was unaware that defendant had a gun. Brandt asked for details about the killing that would not have "been released in the newspaper." 6
Defendant responded, "No, I'm tryin' to tell ya, but then, see I don't want him to [be] labeled as a snitch. You know, that's, like, one thing I don't want." Brandt responded, "Okay, well, the only way that-that could happen, is if you tell us, and then I can prove that you did it. You know what I'm saying? So I need you-I need you to, like, go over the details. Not just, like, like, I got a car, I rolled up and shot him point blank, I mean, all that shit is true, but more went into it th[a]n-th[a]n just that."
Defendant explained that he saw the victim in the victim's car. Brother drove past the victim, and then turned around and came back to where the victim's car was parked. Defendant told Brother to stop the car. Brother stopped the car in the roadway. Defendant walked up to the victim, did not speak to him, and shot him. Defendant returned to the car, and Brother took the gun from defendant. Defendant explained to the detectives that he lied to Brother about having a girlfriend in the area, and that defendant's actual purpose for the trip was "huntin[g]." "Hunting" means searching for a rival gang member upon whom to commit a violent crime.
The following exchange occurred: "Brandt: So and you['re] being honest with us-[Brother] ha[d] no idea you were gonna do this?
"[Defendant]: (Unintelligible).
"Brandt: You're not covering for him?
"[Defendant]: No.
"Brandt: You're not tryin' to take the [rap].
"[Defendant]: Mm-mm. 7
"Brandt: Are you being honest that you're the one that shot?
"[Defendant]: Yeah.
"Brandt: You swear on your grandma's life-you're the one that shot?
"[Defendant]: (Unintelligible).
"Brandt: You're tellin' us the truth?
"[Defendant]: Yes, like, like, every day, like, I just feel like shit (unintelligible). "Brandt: 'Cause I-you have to understand, like, we're not out to just arrest anybody.
"[Defendant]: Oh, I know that.
"Brandt: We wanna make sure that we hold the person responsible for what they did. Y-you-you're telling us that [Brother] didn't do it, ya know, that's, uh, th- that's important.
"[Defendant]: Yeah, he didn't do it. Why would I risk my life (unintelligible)?
"Brandt: Right.
"[Defendant] Why would I risk . . .
"Brandt: No . . .
"[Defendant]: Why would I risk my life, just to try to get him out?"
Brandt asked if defendant spoke with Brother about the murder after it occurred. Defendant said he spoke with Brother in the dayroom in the jail, but then denied having spoken with Brother. Simon, the other detective, said, "You telling us the truth right now? You're not trying to take one for your brother, just to take one for your brother?" Defendant replied, "I don't know." 8
DISCUSSION
A. DEFENDANT'S CONFESSION
1. PROCEDURAL HISTORY
This appeal is from defendant's second trial in the case. Defendant's first trial, in 2018, ended in a mistrial due to the jury being unable to reach a verdict on the murder charge. Both trials took place before the Honorable Mac R. Fisher. In the second trial, the parties and the trial court agreed that the arguments and rulings on the motions in limine from the first trial would be deemed to have been made in the second trial.
During motions in limine for the first trial, defendant argued that his confession should be excluded because "he was motivated or coerced into making a confession based upon his desire to protect his brother." Defendant emphasized the detective's comments concerning Brother possibly facing life in prison. The prosecutor asserted there was no yelling or aggressiveness on the part of the detectives that would have caused defendant to feel forced into confessing. Defendant agreed the detectives did not yell at defendant. However, defendant asserted that, multiple times, the detectives said that Brother could face life in prison and be labeled a snitch. Defendant argued that his confession was not freely and voluntarily given because defendant "was trying to protect [Brother]." The trial court denied defendant's motion explaining "I don't see the level of coercion or the coercion that you refer to." The recording of defendant's confession was played for the jury during the second trial. 9
2. ANALYSIS
Defendant contends the trial court erred by denying his motion to exclude his confession.
"' "In order to introduce a defendant's statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.] . . . When, as here, the interview was tape-recorded [and] the facts surrounding the giving of the statement are undisputed, . . . the appellate court may independently review the trial court's determination of voluntariness." '
" 'A statement is involuntary if it is not the product of" 'a rational intellect and free will.'" [Citation.] The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he confessed." [Citation.]" 'The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." [Citation.]' [Citation.] In determining whether or not an accused's will was overborne, 'an examination must be made of "all the surrounding circumstances- both the characteristics of the accused and the details of the interrogation." '" '
" 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citation.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence." (People v. McWhorter (2009) 47 Cal.4th 318, 346-347.) "[T]he voluntariness inquiry is, of 10 course, concerned with defendant's subjective state of mind at the time of the questioning." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1133, italics omitted.)
The record reflects that, on the day the detectives interviewed defendant, defendant was 19 years old. At that point, defendant had been in jail for approximately six months due to an unrelated carjacking allegation. During the interview, Brandt said, "[T]he day that we came down here and arrested [Brother], lookin' for the murderer, he [al]luded to the fact that you were actually in the car with him when this happened. He didn't get much more into it. He said, 'I-I'm the driver.' Um, and he [al]luded to the fact that you were in the car with him." Thus, Brandt told defendant that Brother had already spoken to police and placed defendant at the murder scene.
Later in the interview, Brandt said that if Brother told the prosecutor who the killer was, then Brother could be labeled a "snitch." That statement by Brandt was not coercive because Brother had already informed Brandt that defendant was in the vehicle at the time of the killing. Because Brother had already spoken with Brandt and informed him that defendant was at the murder scene, a confession by defendant would not prevent Brother from speaking to law enforcement, in that Brother had already spoken to them and identified defendant. Therefore, there was no pressure on defendant to confess to prevent Brother from providing information to law enforcement.
Nevertheless, to the extent one could assert that Brandt's statement about Brother possibly speaking with the prosecutor was coercive, we will examine that issue as well. During the interview, Detective Brandt said that Brother's attorney had approached the prosecutor's office for a meeting. Detective Brandt then said the prosecutor could 11 accept the offer for a meeting, and that Brother could then speak to the prosecutor, and that Brother could then accuse someone of being the killer, which could then lead to Brother being labeled a "snitch."
There were far too many contingencies in what Detective Brandt said for defendant to feel as though, at that point, he had little choice but to confess in order to protect Brother from speaking with the prosecutor. There was the possibility that the prosecutor would refuse to meet with Brother's attorney. There was the possibility that during the meeting the prosecutor would refuse to make a deal with Brother. There was the possibility that during the meeting Brother would refuse to accuse anyone of being the shooter. Brandt's statement about Brother possibly speaking to the prosecutor involved too many uncertainties for it to make defendant feel as though defendant lacked free will during the interview.
In regard to the statements about Brother possibly facing life in prison, that aspect of Detective Brandt's comments did not appear to affect defendant. During the interview, defendant said, "Why would I risk my life, just to try to get him out?" If defendant's question were a true question, then it reveals that defendant was confused as why the prospect of Brother spending time in prison might motivate defendant to confess. If defendant's question were rhetorical, then it reveals that defendant would not be motivated to confess by the prospect of Brother spending time in prison. In either situation, the question reflects that defendant would not have been motivated to confess by the prospect of Brother spending his life in prison. Therefore, Detective 12 Brandt's comments about such a possibility were not a threat that rendered defendant's confession involuntary.
Defendant's argument regarding the involuntary confession is mostly a timeline of the interview. We glean from the timeline presentation that defendant's position is he confessed only after Brandt discussed the prospect of Brother being labeled a "snitch," so those comments by Brandt caused defendant to worry about Brother and therefore constituted a threat.
Defendant's argument indicates there may be a causal link between Brandt discussing the possibility of Brother being labeled a "snitch," and defendant confessing. However, it does not demonstrate that Brandt's statements to defendant were coercive. (See People v. McWhorter, supra, 47 Cal.4th at p. 347 [coercive activity must be causally linked to the confession].) In other words, defendant may have chosen to confess because of Brandt's comments about the possibility of Brother one day being labeled a "snitch," but that causal link to defendant's choice does not demonstrate that Brandt's comments were coercive. Causation and coercion are not substitutes for one another. (Ibid.)
B. GANG EVIDENCE
1. FACTS
The Mexican Mafia oversees Hispanic neighborhood gangs in Southern California. ESR follows the policies of the Mexican Mafia. ESR is an "umbrella gang" with subgroups known as "cliques." The structure is similar to "a business corporation that has subsidiaries." On the northern side of ESR territory, north of University 13
Avenue, the three ESR cliques that spend time together are Patterson Park, Traviesos, and Deliquentes. On the southern side of ESR territory, south of University Avenue, the three ESR cliques that spend time together are 14th Street, Los Romanos, and Defiantes. Los Romanos may be a subgroup of the 14th Street clique.
In a jailhouse kite/note, defendant signed the note, "ES Riva 13, 14th Street, Romanos" and then his gang moniker. "The 13 after ES Riva . . . corresponds to the 13th letter of the alphabet, which is M, to pay [his] respects to the Mexican Mafia, or Eme." Defendant has "ESR" tattooed on his neck and "14th Street" tattooed on his forearm.
In 2014, ESR had approximately 500 members. On January 20, 2011, Victor Olvera, a documented member of ESR, was convicted of making a criminal threat (§ 422). On March 13, 2012, Joey Agundez, an active member of ESR, was convicted of attempted murder (§§ 664, 187, subd. (a)) with a gang enhancement (§ 186.22, subd. (b)). On October 31, 2012, James Barbarin, a documented member of ESR, was convicted of attempted murder (§§ 664, 187, subd. (a)) with a gang enhancement (§ 186.22, subd. (b)). On June 24, 2013, Jesse Monzo, a documented member of ESR, was convicted of murder (§ 187, subd. (a)) with a gang enhancement (§ 186.22, subd. (b)). On July 17, 2015, Samuel Romo, a documented member of ESR, was convicted of 14 assault with a deadly weapon (§ 245, subd. (a)(1)) with a gang enhancement (§ 186.22, subd. (b)).
Samuel Romo's offense took place in February 2014, but his conviction occurred after the murder at issue in this case.
2. CLOSING ARGUMENT
The following are excerpts from the prosecutor's closing argument:
• "ES Riva 13. 13 is for the letter M which gives respect to [the] Mexican Mafia because it's the 13th letter of the alphabet, M. [¶] X4 ST which is 14th Street. Romanos, all these subcliques of [the] Mexican Mafia."
In graffiti, the 14th Street clique will write "X4," in which the "X" is the roman numeral for 10, so that "X4ST" means 14th Street.
• "Again, the evidence that we have here is we have gang tattoos on [defendant] signifying and displaying his love for the criminal street gang of ESR and 14th Street."
• "The fact that he's a gang member I don't think is going to be much at issue. If it is at issue, if [defense counsel] makes an issue during his closing arguments, I'll address that in my rebuttal. But I think there is ample evidence that this was a gang rival killing."
3. ANALYSIS
Defendant contends substantial evidence does not support the finding that the 14th Street clique is a criminal street gang because there is no evidence of the 14th Street clique's primary activities. The People assert the relevant gang for the gang 15 allegations was ESR-not the 14th Street clique-and that there is substantial evidence of ESR being a criminal street gang. Because defendant focuses on the 14th Street clique and the People focus on ESR, we will discuss ESR and then 14th Street in our analysis.
Under the substantial evidence standard, we"' "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find [the allegations true] beyond a reasonable doubt." '" (People v. Hinton (2006) 37 Cal.4th 839, 884.)
In 2014, a "criminal street gang" was defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)
In 2014, ESR had approximately 500 active members. Therefore, ESR satisfies the criteria of being a group of more than three people. The next element is "primary activities." "The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude 16 the occasional commission of those crimes by the group's members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
The evidence reflects ESR members "hunt" for rival gang members. However, there is no indication of how often they "hunt," how often they succeed in finding rivals, or whether an enumerated offense tends to occur when they do locate a rival. The evidence also reflects that ESR engages in graffiti. However, graffiti is not among the enumerated offenses and it is unclear how often ESR members engage in graffiti. (§ 186.22, subd. (f).) The five predicate offenses were committed by ESR members. The five offenses occurred from the year 2008 through the year 2014. Those five predicate offenses amount to occasional offenses given the 500-person membership and six year time span of the offenses. Therefore, the predicate offense evidence does not satisfy the primary activities element.
In the People's respondent's brief, they argued that ESR constituted a criminal street gang, but the People omitted a discussion of the primary activities element. During oral argument in this court, the People asserted there was evidence that ESR members "consistently and repeatedly have committed criminal activity listed in the gang statute." (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) The People pointed to the gang graffiti that read "187" and then "snails"; 187 refers to the Penal 17 Code section for murder, and "snails" is ESR's derogatory name for the 1200 Blocc Crips. The People also emphasized defendant's jailhouse kite, on which he wrote," 'K Swiss, '" meaning" 'Kill Snails When I See Snails.' "
Typically, theories not raised until oral argument are deemed forfeited. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12; People v. Pena (2004) 32 Cal.4th 389, 403; People v. Carrasco (2014) 59 Cal.4th 924, 990.) This rule exists because raising a new theory at such a late stage deprives the appellant of notice and likewise deprives the court of a well-prepared adversarial discussion. Nevertheless, we will address the People's theory.
Writing about a crime is not the same as committing a crime. For example, one may write about a crime because one hopes to one day commit that crime, or one may write about a crime because one hopes to appear tough. Thus, a trier of fact could not conclude from the graffiti and jailhouse kite that members of ESR murdered a person. At oral argument, the People argued that one could view the graffiti and "K Swiss" writing as confessions of murders that have occurred. If we were to accept that premise as correct, there would be no evidence establishing when the murders occurred, at what frequency the murders occurred, and how many members of ESR participated in the murders. Therefore, a trier of fact could not conclude from such evidence that a sufficient number of ESR members consistently and repeatedly murdered people to establish murder as a primary activity. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) Because there is no evidence of ESR's primary activities, we conclude substantial evidence does not support the finding that ESR is a criminal street gang. (§ 186.22, subd. (f).)
Similarly, in regard to the 14th Street clique, there is no evidence of 14th Street's primary activities. Therefore, if the focus of the gang allegations were the 14th Street clique, there would still be a lack of substantial evidence. In sum, there is not substantial evidence of a criminal street gang. (§ 186.22, subd. (f).) 18
We will reverse the gang enhancement (§ 186.22, subd. (b)(1)(C)); the special circumstance finding that the murder was committed to further the activities of a criminal street gang while defendant was an active participant in the gang (§ 190.2, subd. (a)(22)); and the firearm enhancement (§ 12022.53, subds. (d) & (e)). We will explain why the firearm enhancement must be reversed. We provide the explanation because the trial court made an error when commenting on the firearm enhancement during sentencing, which indicates there is some confusion regarding the firearm enhancement in this case.
Section 190.2, subdivision (a)(22), which concerns the special circumstance of the murder being a gang killing, cross-references section 186.22, subdivision (f), for the definition of a "criminal street gang." Therefore, the failure to prove a "criminal street gang" existed under section 186.22 subdivision (f), affects the special circumstance finding.
When the trial court sentenced defendant in this matter, it said, "First, you are ineligible for probation, statutorily, [in] that you personally used a firearm in the commission of this violent felony offense." The trial court incorrectly believed that the jury found defendant personally discharged a firearm. (§ 12022.53, subd. (d).)
In 2014, section 12022.53, subdivision (e)(1) (hereafter, subdivision (e)(1)), provided, "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)." (Italics added.) Thus, imposition of the subdivision (e)(1) enhancement requires (A) a gang 19 enhancement, and (B) an underlying act by a principal that violated section 12022.53, subdivision (b), (c), or (d).
In 2014, section 12022.53, subdivision (d), provided, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
In the information, the People alleged defendant committed the killing to benefit a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Further, the People alleged that "in the commission . . . of the [murder] . . ., [Brother] and [defendant], were principals and at least one principal personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person, not an accomplice, within the meaning of Penal Code section 12022.53, subdivision (d), and subdivision (e)."
Thus, the People did not allege that defendant personally used a firearm. (§ 12022.53, subd. (d).) Rather, the People alleged that the killing benefitted a gang, defendant was a principal in the killing, and either defendant or Brother personally discharged a firearm causing death. That is a subdivision (e)(1) allegation with subdivision (d) cited as the underlying act.
The jury was instructed on two theories: (1) defendant was the shooter, and (2) defendant aided and abetted the shooter. In closing argument, the prosecutor said, 20 "[I]t doesn't matter if he pulled the trigger. . . . It doesn't matter whether you believe that he was the shooter or if he was an accessory to the crime. [¶] Half of you could believe that he was the accessory, half of you could believe that he was the shooter, and it still wouldn't matter."
The jury's finding for the firearm enhancement reads, "We, the jury . . . find true that the defendant . . . in the commission . . . of the offense charged under count 1 of the information . . . was a principal and at least one principal did personally and intentionally discharge a firearm and proximately caused . . . death to another person, not an accomplice, within the meaning of Penal Code section 12022.53, subdivision (d), and subdivision (e)." The jury's finding does not reflect that defendant personally discharged a firearm. (§ 12022.53, subd. (d).) Rather, it reflects that defendant was a principal in the killing and one of the principals discharged a firearm causing the victim's death. That finding pertains to subdivision (e)(1) with subdivision (d) cited as the underlying act. Thus, contrary to the trial court's belief, the jury did not find that defendant personally discharged a firearm.
As explained ante, the elements for a subdivision (e)(1) firearm enhancement are (A) a gang enhancement (§ 186.22, subd. (b)), and (B) an underlying act by a principal that violated section 12022.53, subdivision (b), (c), or (d). Because defendant's gang enhancement must be reversed due to a lack of sufficient evidence, the subdivision (e)(1), firearm enhancement cannot be applied in this case. 21
C. SENTENCING
In regard to sentencing, defendant contends the trial court erred by ordering defendant to participate in substance abuse treatment. Defendant also asserts the sentencing minute order and abstract of judgment require corrections.
"[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893.) "The invalidity of one component [of the sentence] infects the entire [sentencing] scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834.)
The trial court sentenced defendant to life without the possibility of parole due to the special circumstance finding (§ 190.2, subd. (a)(22)), and an additional 25 years to life due to the firearm enhancement (§ 12022.53, subd. (e)). The trial court stayed the sentence for the gang enhancement. (§ 186.22, subd. (b)(1)(C).) The trial court will have to resentence defendant due to the reversals of the special circumstance finding and the firearm enhancement. In order for the trial court to conduct a full resentencing hearing, we will reverse the entirety of defendant's sentence. Therefore, defendant's sentencing contentions are moot in that we can offer defendant no further relief. (People v. Alsafar (2017) 8 Cal.App.5th 880, 886.) 22
DISPOSITION
The special circumstance finding (§ 190.2, subd. (a)(22)), the gang enhancement (§ 186.22, subd. (b)(1)(C)), and the firearm enhancement (§ 12022.53, subd. (e)), are reversed. Defendant's entire sentence is reversed. The trial court is directed to resentence defendant. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P. J., FIELDS, J. 23