Summary
striking the one-year prior prison term after agreeing with the parties that "because defendant's sentence is not yet final, and because his prior offense (possessing a prohibited weapon) was not a sexually violent offense, he is entitled to the ameliorative benefit" of Sen. Bill No. 136
Summary of this case from People v. TuuaipeaOpinion
C079168, C079169
02-18-2020
The PEOPLE, Plaintiff and Respondent, v. Adolfo Rodriguez BERMUDEZ, Defendant and Appellant.
Jacquelyn Larson, Auburn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and Julie A. Hokans, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts II., III., V. & VI. of the Discussion.
Jacquelyn Larson, Auburn, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and Julie A. Hokans, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION ON REHEARING
MURRAY, J. This is a consolidation of two appeals from two jury trials of defendant Adolfo Rodriguez Bermudez. The first trial involved the possession of a concealed dirk. The second involved an assault with a deadly weapon with a vehicle done to benefit a gang. Defendant was sentenced to a 21-year four-month aggregate term. On appeal, defendant contends (1) the statute defining a dirk ( Pen. Code, § 16470 ) is unconstitutionally vague; (2) the trial court erred in allowing two officers to testify to the legal definition of a dirk; (3) a gang expert provided improper opinion testimony that defendant committed a crime to benefit a gang; and (4) insufficient evidence established the existence of a criminal street gang under section 186.22 because testimony concerning the predicate felonies was admitted in violation of People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ). In supplemental briefing, defendant contends that (5) remand is required so the trial court may consider exercising its discretion under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) (SB 1393); and (6) the imposition of fines and fees violated his right to due process and freedom from excessive fines under People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268. Finally, in a petition for rehearing, defendant contends (7) his one-year prior prison term enhancement should be struck in light of Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (SB 136).
Undesignated statutory references are to the Penal Code.
In the published portion of this opinion, we hold that the dirk statute is not unconstitutionally vague. Our high court previously rejected a void for vagueness challenge to the dirk statute. ( People v. Rubalcava (2000) 23 Cal.4th 322, 96 Cal.Rptr.2d 735, 1 P.3d 52 ( Rubalcava ).) Defendant, however, raises new arguments, which we reject. Doing so, we first conclude the statute is definite enough to provide a standard of conduct for those whose activities are proscribed. We specifically reject defendant’s contention that the term "may" in the statutory language, "capable of ready use as a stabbing weapon that may inflict great bodily injury," makes the statute unconstitutionally vague. When read in context with the rest of the words in the statute, the word "may" is definite enough to place a defendant on notice of the type of instrument that is prohibited. We also reject defendant’s argument, based on the vagueness analysis employed by the United States Supreme Court in Johnson v. United States (2015) 576 U.S. –––– [135 S.Ct. 2551, 192 L.Ed.2d 569] ( Johnson ), that the word "may" connotes an undefined and unconstitutionally vague risk assessment. The Johnson analysis has no application to laws that require gauging the riskiness of conduct in which a person engages.
Second, we conclude the knowledge element renders the statute definite enough to provide a standard for police enforcement and ascertainment of guilt. To be subject to arrest, a person’s conduct must give rise to probable cause that he knew the concealed instrument may be used as a stabbing weapon. To be convicted, that knowledge must be proved beyond a reasonable doubt. Also in the published portion of this opinion, we hold that a gang expert’s testimony about gang enhancement predicate offenses does not violate Sanchez, supra , 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320, so long as the predicate offenses do not involve defendant or individuals involved in the defendant’s case. Such predicate offenses are chapters in a gang’s biography and constitute historical background information, not case-specific information.
We will strike the one-year prior prison term enhancement and remand to allow the trial court to consider exercising its discretion under SB 1393. During that remand, as the People concede, defendant may request a hearing on his ability to pay. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Concealed Dirk Case
When a sheriff’s deputy noticed a black Mustang with nonfunctioning break lights, he followed it until the Mustang made a sudden turn into a driveway, and the deputy lost contact. When the deputy located the Mustang several minutes later, it was stopped. The deputy saw the driver’s side door open, and defendant was walking around the front. The deputy asked defendant for his driver’s license. Defendant said he didn’t have one. The deputy subsequently performed a pat down search and found something in defendant’s right front pant pocket.
The object was solid metal, about as thick as a pen, and it appeared to have been broken off a longer piece of metal. One end had been ground down on the sides to form a point, which had been dulled down. The other end had red tape wrapped around it to form a handle. The deputy testified the object was completely concealed within defendant’s pant pocket with the handle up, allowing defendant to retrieve it "with the point out." The deputy testified that the object could "most definitely" be used as a stabbing instrument and further testified it could inflict "injury or death."
A friend who had been in the Mustang was called as a witness by defendant and testified that defendant was using the metal object for his stereo to push a button that wasn’t working. On cross-examination, the friend denied any memory of telling the arresting officer the metal object was something she used for her hair.
A jury found defendant guilty of carrying a concealed dirk or dagger (§ 21310) and driving on a suspended or revoked license ( Veh. Code, § 14601.2 subd. (a) ). The trial court separately found defendant had a prior strike conviction and had served a prior prison term. The Assault with a Deadly Weapon Case
The victim was driving in Woodland, with his son in the car, when he saw a black Honda parked on the side of the road. As he drove by, the Honda suddenly accelerated hitting him.
Thinking he had been in an accident, the victim pulled over. The Honda collided into him a second time. The second impact was a "T-bone," taking off the front and back doors and breaking windows.
The victim recognized defendant as the driver, testifying at trial: "he looked at me when he crashed and then he flossed his tattoo on his head and ... I recognized him." Defendant had turned, pointed to the back of his head, and yelled "EST," which the victim took to mean defendant’s gang, Eastside Trece. Defendant then drove away. The victim drove to the next block and called 911. In the 911 call, the victim told the operator he knew defendant’s wife and where she lives.
Shortly after the incident, the victim spoke with a responding officer. He told the officer he recognized defendant and thought the crash had something to do with an earlier altercation, involving the victim, defendant, and other Sureño gang members.
The victim later identified defendant in a photo lineup.
A couple of months before the assault with a vehicle, the victim was dropping off his cousin, who associates with Norteños, when a car pulled up and a group of what looked to be gang members, including defendant, got out of the car and "started talking gang shit." The group hurled insults related to Northerners at both the victim and his cousin. At some point, a security guard showed up and "kicked everyone out."
The victim had previously associated with southern gangs, but because his family members are Northerners, he now associates with Northerners. The victim testified, "since they seen me with him, ... they thought I was affiliating with Northerners now, too." He also testified that he thought defendant felt disrespected.
The victim testified about other altercations. In 2006, he was present when a group of Southerners he associated with were in a fight with a Northerner — though he claimed he was not part of the fight. In 2010, the victim was in a fight with an Eastside Trece member. He explained that several Eastside Trece members had approached him, and he defended himself. An officer who responded to the 2010 incident testified the victim had been in a fight with several Eastside Trece members and hit one of them with a tire iron.
After a break in his testimony, the victim conceded he had been "a bit guarded" in his earlier testimony about his gang affiliation and knowledge of gangs. But he agreed he would "be truthful" going forward. He also testified he was nervous about testifying because he feared retaliation for snitching.
An officer who was also involved in the concealed dirk case testified about contacts he personally had with defendant in 2005, 2007, and 2009. During the first two contacts, defendant admitted his involvement in the Sureño gang. The officer had also found "gang music" during a search of defendant’s bedroom and, in 2007, defendant had a "EST" tattoo on his head. We summarize additional gang evidence, post .
A jury found defendant guilty of two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) and found both were done for the benefit of, at the direction of, or in association with a gang (§ 186.22, subd. (b)). It also found defendant guilty of driving on a suspended license. ( Veh. Code, § 14601.2.) Sentencing
The trial court sentenced defendant to a 21-year four-month aggregate term. For the assault with a deadly weapon case, the court imposed an eight-year term for one assault count (the upper term doubled for the strike) along with a five-year gang enhancement. (§ 186.22 (b)(1).) It also imposed a five-year prior serious felony enhancement and a two-year on-bail enhancement. (§ 12022.1(b).) A one-year prior prison term enhancement was stayed pursuant to section 654. Concurrent terms of eight years for the other assault count, and 180 days for driving on a suspended license were also imposed.
In the dirk case, the court imposed a consecutive 16-month term for the concealed dirk (§ 21310) (one-third the middle, doubled for the strike) along with a 30-day concurrent term for driving on a suspended or revoked license. DISCUSSION
I. The Void for Vagueness Challenge
A. Defendant’s Contentions
Section 21310 proscribes carrying concealed a "dirk or dagger." Section 16470, in pertinent part, defines a dirk or dagger as "a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death ." (Italics added.) Focusing on the italicized text, defendant contends section 16470 ’s definition of a dirk is unconstitutionally vague in that it (1) contains vague terms that fail to give notice of what is prohibited, and (2) grants police and prosecutors unfettered discretion over who to pursue. We disagree.
In pertinent part, section 21310 provides: "any person in this state who carries concealed upon the person any dirk or dagger is punishable by imprisonment in a county jail not exceeding one year or imprisonment." The terms "[d]irk and dagger are used synonymously and consist of any straight stabbing weapon." (People v. Castillolopez (2016) 63 Cal.4th 322, 327-328, 202 Cal.Rptr.3d 703, 371 P.3d 216 (Castillolopez ).)
In addressing these contentions, we first discuss the statute’s legislative purpose and how it came to include the language now challenged on appeal. (See People v. Grubb (1965) 63 Cal.2d 614, 621, 47 Cal.Rptr. 772, 408 P.2d 100 ( Grubb ) [in determining a vagueness challenge related to statutory terms, consideration of legislative history and statutory purpose is appropriate].)
B. Purpose and Historical Overview of the Concealed Dirk Statutes
The prohibition against carrying concealed dirks and daggers was enacted to combat the dangers of concealed weapons. ( People v. Mitchell (2012) 209 Cal.App.4th 1364, 1371, 148 Cal.Rptr.3d 33 ( Mitchell ).) By prohibiting concealment, third parties are protected from the risk of surprise attack by a person carrying such weapons. ( Ibid . )
The concealed dirk statute was formerly codified in section 12020. Until January 1994, there was no statutory definition of a dirk or dagger; rather, those terms had been judicially defined. ( Rubalcava, supra , 23 Cal.4th at pp. 328-329, 96 Cal.Rptr.2d 735, 1 P.3d 52.) In 1993, "the Legislature [statutorily] defined ‘ "dirk" or "dagger" ’ to mean ‘a knife or other instrument with or without a handguard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death .’ " ( Castillolopez, supra , 63 Cal.4th at p. 328, 202 Cal.Rptr.3d 703, 371 P.3d 216, citing § 12020, subd. (c)(24), as added by Stats. 1993, ch. 357, § 1, p. 2155, italics added.) This definition proved overly narrow, making it difficult for prosecutors to establish that the primary purpose of items such as butcher knifes, hunting knifes, or ice picks was to cause death or great bodily injury when carried for potential use as a weapon. ( Castillolopez, supra , 63 Cal.4th at p. 328, 202 Cal.Rptr.3d 703, 371 P.3d 216.) Concerned that gang members carrying concealed, lethal knives were "essentially immune from arrest and prosecution," the Legislature amended the statute in 1995, replacing "primarily designed, constructed, or altered to be a stabbing instrument" with "capable of ready use as a stabbing weapon ." ( Rubalcava, supra , 23 Cal.4th at p. 330, 96 Cal.Rptr.2d 735, 1 P.3d 52, citing Sen. Rules Com., 3d reading analysis of Assem. Bill No. 1222 (1995-1996 Reg. Sess).) "[T]he Legislature recognized that the new definition may criminalize the ‘innocent’ carrying of legal instruments such as steak knives, scissors and metal knitting needles, but concluded ‘there is no need to carry such items concealed in public.’ " ( Rubalcava , at p. 330, 96 Cal.Rptr.2d 735, 1 P.3d 52, citing Sen. Com. on Crim. Procedure, Analysis of Assem. Bill No. 1222 (1995-1996 Reg. Sess.) as amended May 31, 1995, pp. 3, 5-6.) But the change ultimately raised concerns that the definition was too broad as applied to legal folding knives and pocketknives. ( Ibid . )
So in 1997, the Legislature again amended the statute, this time to provide that folding knives and pocket knives would qualify as "capable of ready use as a stabbing weapon" only if the blade was exposed and locked into position. ( Castillolopez, supra , 63 Cal.4th at p. 329, 202 Cal.Rptr.3d 703, 371 P.3d 216, citing § 12020, subd. (c)(24) as amended by Stats. 1997, ch. 158, § 1, p. 778.) Section 12020 was later repealed and reenacted without substantive change as section 16470 — the statute now challenged on appeal. (Stats. 2010, ch. 711, § 6, pp. 4146, 4150.)
C. Analysis
1. Void for Vagueness Principles
Due process requires "a reasonable degree of certainty in legislation, especially in the criminal law ...." ( People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389, 250 Cal.Rptr. 515, 758 P.2d 1046 ; People v. Custodio (1999) 73 Cal.App.4th 807, 811, 87 Cal.Rptr.2d 18 ( Custodio ), italics added.) To satisfy due process and survive a vagueness challenge, a criminal statute must " ‘ " ‘be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.’ " ’ " ( People v. Morgan (2007) 42 Cal.4th 593, 605, 67 Cal.Rptr.3d 753, 170 P.3d 129 ( Morgan ).) More specifically, a law must " ‘provide adequate notice to those who must observe its strictures’ " and must not " ‘ "impermissibly delegate[ ] basic policy matters to police[ ] [officers], judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." ’ " ( Rubalcava, supra , 23 Cal.4th at p. 332, 96 Cal.Rptr.2d 735, 1 P.3d 52.)
When considering a void for vagueness challenge, courts employ a " ‘strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears." ’ " ( Morgan, supra , 42 Cal.4th at p. 605, 67 Cal.Rptr.3d 753, 170 P.3d 129 ; People v. White (2016) 3 Cal.App.5th 433, 453, 208 Cal.Rptr.3d 1 ( White ).) Concomitantly, to prevail on a vagueness challenge, a defendant must show the statute " ‘ "is impermissibly vague in all of its applications. " ’ " ( Morgan , at pp. 605-606, 67 Cal.Rptr.3d 753, 170 P.3d 129 ; White , at p. 454, 208 Cal.Rptr.3d 1.)
Merely identifying some instances where the statute’s application is uncertain or ambiguous is insufficient to sustain a vagueness challenge. ( Morgan, supra , 42 Cal.4th at pp. 604-606, 67 Cal.Rptr.3d 753, 170 P.3d 129 [asportation element in kidnapping requiring moving the victim a "substantial distance" held not unconstitutionally vague].) Indeed, " ‘[m]any, probably most, statutes are ambiguous in some respects and instances invariably arise under which the application of statutory language may be unclear.’ " ( People v. Ervin (1997) 53 Cal.App.4th 1323, 1328, 62 Cal.Rptr.2d 231 [rejecting vagueness challenge as to "immediately after" and "in the vicinity" in statute punishing robberies taking place while the victim is using an ATM "or immediately after the person has used an [ATM] and is in the vicinity of the [ATM]"].)
Accordingly, as to the requirement that the law be definite enough to provide notice of a standard of conduct for those whose activities are prescribed, all that is required is that the statute " ‘define the proscribed offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited." ’ " ( People v. Ledesma (2017) 14 Cal.App.5th 830, 835, 222 Cal.Rptr.3d 534 ( Ledesma ), citing Kolender v. Lawson (1983) 461 U.S. 352, 357 [103 S.Ct. 1855, 75 L.Ed.2d 903].) A statute is not void for vagueness " ‘ "if any reasonable and practical construction can be given to its language." ’ " ( Morgan, supra , 42 Cal.4th at pp. 605-606, 67 Cal.Rptr.3d 753, 170 P.3d 129.) Nor are statutory terms impermissibly vague if " ‘their meaning can be objectively ascertained by reference to common experiences of mankind.’ " ( Id. at p. 606, 67 Cal.Rptr.3d 753, 170 P.3d 129.)
By these standards, section 16470 ’s definition of a dirk is not unconstitutionally vague.
2. Notice of Prohibited Activity
a. The Terms "May" and "Great Bodily Injury"
Defendant contends section 16470 ’s definition of a dirk is unconstitutionally vague because it contains vague terms that fail to give notice of what is prohibited. In an argument not previously addressed by an appellate court, defendant argues the terms "may" and "great bodily injury," in the phrase "may inflict great bodily injury" are too broad and uncertain to inform the public of how to evaluate the risk of harm. He argues that "may," as used in section 16470, "either means a likelihood that an event will occur or means that the event could occur in some hypothetical worst case scenario." He avers that individuals, in determining if an item may not be carried concealed, are left to guess whether an item has ever inflicted great bodily injury or could do so in the future. The People, in turn, contend that "may" means "can" or "is able to."
While "may" is "used nearly interchangeably with can," and also "indicate[s] possibility or probability" (Merriam-Webster’s Collegiate Dictionary (11th ed. 2004) p. 767), its use does not make section 16470 unconstitutionally vague. The meaning of "may" can be objectively ascertained by reference to common experiences, particularly when reading it with other relevant words in the statute. Specifically, the instrument the Legislature has prohibited when it "may inflict great bodily injury or death" is "a knife or other instrument ... that is capable of ready use as a stabbing weapon ." This language provides sufficient definiteness so that a person of ordinary intelligence can determine with a reasonable degree of certainty the nature of the instrument one must not carry concealed. (Cf. Custodio, supra , 73 Cal.App.4th at p. 812, 87 Cal.Rptr.2d 18 ["a person of ordinary intelligence would know what is" prohibited by a statute proscribing "sharp instrument[s]" at penal institutions and "understand that [the statute] does not apply to a sharpened pencil—which ordinarily is used for a legitimate and necessary purpose—unless the inmate uses the pencil as a weapon"].)
Nor is the term "great bodily injury" unconstitutionally vague. (People v. Guest (1986) 181 Cal.App.3d 809, 812, 226 Cal.Rptr. 525 [section 12022.7 is not unconstitutionally vague for use of the term "great bodily injury"]; People v. Roberts (1981) 114 Cal.App.3d 960, 963, 170 Cal.Rptr. 872 [finding section 245, subdivision (a) not impermissibly vague as the term "great bodily injury" is sufficiently certain and definite to meet constitutional requirements].) " ‘[G]reat bodily injury’ " means a significant or substantial physical injury." (§ 12022.7.) We reject defendant’s argument that the term "great bodily injury" does not aid in making the proceeding terms in section 16470 "any more certain" because great bodily injury could simply involve extensive bruising and does not require puncture of skin or any particular harm that would tell the public whether an instrument is a dirk. In light of the statutory focus on a weapon that is capable of use as a "stabbing weapon," it must be obvious that the type of great bodily injury the Legislature seeks to prevent is one involving the perforation of the skin.
That a statute does not afford mathematical precision is not fatal. Indeed, " ‘[t]he law is replete with instances in which a person must, at his peril, govern his conduct by such nonmathematical standards as "reasonable," "prudent," "necessary and proper," "substantial," and the like.’ " ( Morgan, supra , 42 Cal.4th at p. 606, 67 Cal.Rptr.3d 753, 170 P.3d 129.) For example, "a [person] may be given a speeding ticket if he overestimates the ‘reasonable or prudent’ speed to drive his car in the circumstances" under Vehicle Code section 22350. ( Morgan , at p. 606, 67 Cal.Rptr.3d 753, 170 P.3d 129.) A person may be incarcerated for willful homicide for misjudging the "reasonable" amount of force that may be used to repel an assault. ( Ibid . ) Standards such as "reasonable" are not impermissibly vague so long as " ‘their meaning can be objectively ascertained by reference to common experiences of mankind.’ " ( Ibid . ) So too in this way, the term "may" is objectively ascertainable.
Moreover, in defendant’s case, the sharpened object concealed in his pants pocket was indisputably capable of causing great bodily injury. It was not a recognizable tool or object with a common alternative use. It was a solid piece of metal broken off from a larger piece of metal. That the law could be properly applied to defendant’s instrument demonstrates the law is not " ‘ "impermissibly vague in all of its applications " ’ " (See Morgan, supra , 42 Cal.4th at p. 606, 67 Cal.Rptr.3d 753, 170 P.3d 129.) Further, to be guilty of carrying a concealed dirk, a defendant must know the concealed instrument could be readily used as a stabbing weapon. ( Rubalcava, supra , 23 Cal.4th at p. 331, 96 Cal.Rptr.2d 735, 1 P.3d 52 ; see also CALCRIM No. 2501.) And "when a defendant is charged with an offense that penalizes possession of an instrument that is ordinarily usable for peaceful purposes, the defendant may justify the possession by showing the possession was ‘in accordance with [the instrument’s] ordinary legitimate design.’ " ( Mitchell, supra , 209 Cal.App.4th at p. 1372, 148 Cal.Rptr.3d 33, citing Grubb, supra , 63 Cal.2d at p. 621, fn. 9, 47 Cal.Rptr. 772, 408 P.2d 100.) "Consistent with this principle, ... [ CALCRIM No. 2501 ] directs that when the instrument may have innocent uses, the jury should be given an instruction stating: ‘When deciding whether the defendant knew the object ... could be used as a stabbing weapon, consider all the surrounding circumstances, including the time and place of possession. Consider also the destination of the defendant, the alteration of the object from standard form, and other facts, if any.’ " ( Mitchell , at p. 1372, 148 Cal.Rptr.3d 33, italics added.) Defendant’s jury was so instructed. b. Risk Assessment under Johnson
And the fact that certain innocent objects identified by defendant (keys, pens, scissors, needles, awls) — which are not at issue here — might present uncertainty as to whether they can cause great bodily injury does not render the statute unconstitutionally vague. " ‘ "[A] statute is not void simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language." ’ " (Morgan, supra , 42 Cal.4th at p. 606, 67 Cal.Rptr.3d 753, 170 P.3d 129 ; see also Rubalcava, supra , 23 Cal.4th at p. 331, 96 Cal.Rptr.2d 735, 1 P.3d 52 [rejecting suggestion that without a specific intent requirement to use the instrument as a stabbing weapon, the statute would apply to a tailor who places scissors in his jacket, a shopper who walks out of a kitchen store with a recently purchased steak knife concealed, and a parent who wraps a sharp pointed knife in a paper towel and places it in his coat to carry into a PTA potluck dinner].)
Carrying a concealed dirk is a general intent crime. (Rubalcava, supra , 23 Cal.4th at p. 330, 96 Cal.Rptr.2d 735, 1 P.3d 52.) Contending that the general intent requirement of section 21310 is vague, defendant argues that it is unclear what intent is required because the statute does not explain whether it is the "carrying or the concealment" that must be intentional. We reject this contention because the statutory language is clear. Section 21310 applies to "any person ... who carries concealed upon the person any dirk or dagger." (Italics added.) (See fn. 4, ante .) Thus, one must intend to both carry the dirk on one’s person and conceal it. Indeed, it is hard to imagine a real life scenario where a person has concealed a dirk on his person but has not also carried it. This general intent is reflective of the statutory purpose of "combat[ing] the dangers arising from the concealment of weapons." (See Mitchell, supra , 209 Cal.App.4th at p. 1371, 148 Cal.Rptr.3d 33.)
Defendant attempts to bolster his argument that "may" is too broad and uncertain by citing to Johnson, supra , 576 U.S. –––– , and arguing "may," even if defined as "can," "contains a risk assessment on its face" and this "risk assessment is vague and undefined, leading to a statute that does not guide the public." We disagree.
In Johnson , the United States Supreme Court held that part of the federal Armed Career Criminal Act (ACCA) was unconstitutionally vague. ( Johnson, supra , 576 U.S. at p. –––– .) That act enhances sentences of persons convicted of certain firearm offenses if they have previously been convicted of a violent felony. ( Id . at p. –––– [135 S.Ct. at p. 2555 ].) One statutory definition of a violent felony under the act is a felony that is "burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ." ( Id . at p. –––– [135 S.Ct. at p. 2556.) The italicized language, known as the residual clause, was the focus of the Court’s vagueness analysis. ( Ibid . ) But it was not the residual clause itself that created the vagueness problem — it was the language combined with the court’s analytical method for determining whether an offense is a violent felony. ( Id . at p. –––– [135 S.Ct. at p. 2557 ].)
The Supreme Court employs a "categorical approach" to decide whether a conviction qualifies as a violent felony under the ACCA. ( Johnson, supra , 576 U.S. at p. –––– .) Under that approach, a court does not look at how the defendant committed the crime. ( Ibid . ) Rather, in "[d]eciding whether the residual clause covers a crime" the court pictures the kind of conduct involved in "the ordinary case" of the crime, and judges whether it presents a "serious potential risk of physical injury." ( Ibid . )
The Court reasoned that two features of the residual clause combine to make it unconstitutionally vague. ( Johnson, supra , 576 U.S. at p. –––– .) First, "the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements ." ( Ibid. , italics added.) Second, "the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony." ( Id . at p. –––– .) "By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." ( Ibid . )
Johnson has no application here. As the Johnson court explained, "It is one thing to apply an imprecise ‘serious potential risk’ standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction." ( Johnson, supra , 576 U.S. at p. –––– .) Indeed, the majority in Johnson rejected the concern raised by the dissent that the majority’s holding would create constitutional doubt for various federal statutes using terms like "substantial" and "unreasonable" risk. ( Id . at p. –––– .) It reasoned that "almost all of the cited laws require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion . As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct; ‘the law is full of instances where a man’s fate depends on his estimating rightly ... some matter of degree.’ " ( Ibid . )
Subsequent to Johnson , the high court emphasized Johnson’s limited application: "The Court’s analysis in Johnson thus cast no doubt on the many laws that ‘require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion .’ [Citation] The residual clause failed not because it adopted a ‘serious potential risk’ standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense." ( Welch v. United States (2016) ––– U.S. –––– [136 S.Ct. 1257, 1262, 194 L.Ed.2d 387].) Several California cases have recognized this distinction. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1143, 245 Cal.Rptr.3d 658 [rejecting vagueness challenge based on Johnson to California’s second degree felony-murder rule requiring commission of an inherently dangerous felony]; Ledesma, supra , 14 Cal.App.5th 830, 839-840, 222 Cal.Rptr.3d 534 [rejecting Johnson vagueness challenge based on the asportation element in aggravated kidnapping and the one strike law]; White, supra , 3 Cal.App.5th at pp. 453-454, 208 Cal.Rptr.3d 1 [rejecting Johnson vagueness challenge based on the term "sexually violent criminal behavior" in the Sexually Violent Predator Act].)
Unlike the residual clause in Johnson , California’s prohibition against carrying concealed instruments "capable of ready use as a stabbing weapon ... that may inflict great bodily injury or death" requires application of a legal standard to real-world facts. (See Ledesma, supra , 14 Cal.App.5th at p. 838, 222 Cal.Rptr.3d 534 [recognizing that this distinction is "crucial"].) No hypothetical case of an underlying crime determines the statute’s applicability here. ( Ibid . ) And the elements at issue here are the type of qualitative standard deemed permissible in Johnson . (See Ledesma , at p. 839, 222 Cal.Rptr.3d 534 ; White, supra , 3 Cal.App.5th at p. 455, 208 Cal.Rptr.3d 1.)
Accordingly, we conclude the language of section 16470 is sufficiently definite to give people with ordinary intelligence notice of what is prohibited. And the knowledge requirement further protects against a person’s miscalculation.
3. Standard for Police Enforcement and Ascertainment of Guilt
As noted, the second test for vagueness requires that the statute be definite enough to provide a standard for police enforcement and for ascertainment of guilt. ( Morgan, supra , 42 Cal.4th at p. 605, 67 Cal.Rptr.3d 753, 170 P.3d 129.) To that, defendant argues section 16470, because of its broad nature, "grants the police and prosecutors unfettered discretion" over who to charge with carrying a concealed dirk. He reasons the statute "punishes activity that ordinary people engage in without thinking about it." He postulates that a car key could be a dirk, ergo everyone in a parking lot could be arrested for carrying a concealed dirk. We disagree.
That the statute is broad does not mean no standard exists for police enforcement and ascertainment of guilt. Indeed, the statute is intentionally broad in order to achieve its purpose of addressing the dangers of concealed weapons. (See Mitchell, supra , 209 Cal.App.4th at p. 1371, 148 Cal.Rptr.3d 33.) And in Rubalcava, supra , 23 Cal.4th 322, 96 Cal.Rptr.2d 735, 1 P.3d 52, our high court rejected the contention that the potentially broad reach of the concealed dirk statute made the statute unconstitutionally vague. ( Id . at p. 331, 96 Cal.Rptr.2d 735, 1 P.3d 52.)
Defendant, nevertheless, argues that without a specific intent requirement, the statute does not limit police and prosecutorial discretion. In support, he cites Caswell , supra , 46 Cal.3d 381, 250 Cal.Rptr. 515, 758 P.2d 1046. There, our high court held section 647, subdivision (d) — proscribing loitering in or about a public toilet for purposes of engaging in or soliciting a lewd act — did not provide law enforcement unfettered discretion, in part because the defendant must loiter with specific intent to engage in or solicit a lewd act. ( Id . at p. 394, 250 Cal.Rptr. 515, 758 P.2d 1046.) The court reasoned that one is subject to arrest only if one’s conduct gives rise to probable cause to believe he is loitering with the proscribed intent. ( Ibid . ) Defendant notes that here, by contrast, no specific intent requirement limits police discretion. And though he recognizes that our state’s high court in Rubalcava rejected a vagueness challenge grounded on the statute’s lack of a specific intent requirement, he argues we should ignore this part of Rubalcava — and find the statute vague for lack of a specific intent requirement — because in Rubalcava, the defendant failed to identify vague terms in the statute, and he has. (See Rubalcava, supra , 23 Cal.4th at pp. 331-332, 325, 328, 96 Cal.Rptr.2d 735, 1 P.3d 52.) We disagree. First, a specific intent requirement is not needed to prevent arbitrary enforcement. ( Rubalcava, supra , 23 Cal.4th at pp. 332-333, 96 Cal.Rptr.2d 735, 1 P.3d 52.) The Rubalcava court held that carrying a concealed dirk is not a specific intent crime. ( Id . at p. 331, 96 Cal.Rptr.2d 735, 1 P.3d 52.) But it emphasized that the statute has a mens rea requirement: a defendant must know he is carrying the concealed instrument and that the instrument could be used as a stabbing weapon. ( Id . at pp. 331-332, 96 Cal.Rptr.2d 735, 1 P.3d 52.) That requirement allays the concerns raised by defendant. ( Id . at p. 332, 96 Cal.Rptr.2d 735, 1 P.3d 52.) To be subject to arrest, a person’s conduct must give rise to probable cause that he knew the concealed instrument may be used as a stabbing weapon. (See Caswell, supra , 46 Cal.3d at p. 394, 250 Cal.Rptr. 515, 758 P.2d 1046.) Such knowledge can be determined through the surrounding circumstances, including the time and place of possession, the defendant’s destination, the object’s alteration, and any other facts. (See Mitchell, supra , 209 Cal.App.4th at p. 1372, 148 Cal.Rptr.3d 33 ; CALCRIM No. 2501.) Thus, these factors further guide police, prosecutors, judges and juries when enforcing the law or determining guilt for a concealed dirk violation. Indeed, here, the prosecution’s expert testified that in determining what an instrument is used for, he considered circumstances such as an object’s "manipulation," where the object is found, and "the context of how it is carried."
Second, challenging "may" as vague is no grounds for disregarding Rubalcava . We have already concluded that the word "may," upon which defendant primarily focuses, when read with the rest of the language of the statute is definite enough to place a defendant on notice of the type of instrument that is prohibited. We similarly conclude, consistent with Rubalcava , that the statutory definition and previous judicial interpretations provide adequate standards to avoid arbitrary enforcement. (See Williams v. Garcetti (1993) 5 Cal.4th 561, 577, 20 Cal.Rptr.2d 341, 853 P.2d 507 ["Although the amendment calls for sensitive judgment in both enforcement and adjudication, we would not be justified in assuming that police, prosecutors, and juries are unable to exercise such judgment"].)
As such, section 16470, defining a dirk or dagger, is not unconstitutionally vague.
II.-III. IV. Expert Testimony Regarding the Predicate Offenses
See footnote *, ante .
Defendant contends the detective’s expert opinion testimony in the assault with a deadly weapon case failed to prove the predicate offenses were committed by Eastside Trece members because testimony concerning those offenses relayed case-specific facts in violation of Sanchez, supra , 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320. We disagree.
A. Additional Background
The gang expert testified that she is familiar with Eastside Trece, noting that it is one of the predominant Sureño gangs in Yolo County. The gang’s primary activities include the commission of criminal offenses, including assaults, burglaries, robberies, and grand theft. The expert opined that the charged offense was committed to benefit Eastside Trece. She also testified about five predicate offenses establishing Eastside Trece as a criminal street gang. She had become familiar with these offenses by reviewing prior reports and speaking with detectives on the gang task force. She noted that in each case, the offender was an Eastside Trece member. None of the predicate offenses involved defendant.
The prosecution also submitted certified copies of documents reflecting the convictions the expert testified about. The documents reflect the convictions and section 186.22, subdivision (b) findings but make no mention of Eastside Trece.
The prosecutor’s charging documents were properly included in these documents, but while those documents included section 186.22, subdivision (b) allegations or a section 186.22, subdivision (a) charge, none identified a specific gang; nor did the executed plea forms also included as part of the record of conviction identify a specific gang. The contention defendant raises here could have been avoided had those documents referenced Eastside Trece.
B. Analysis
To establish that an organization is a criminal street gang, the prosecution must prove, among other things, that the group has engaged in a pattern of criminal conduct, which requires a showing that the group has engaged in the requisite number of enumerated predicate offenses. (§ 186.22, subd. (e).)
Defendant argues that nothing in the documents establish the crimes were committed by Eastside Trece members as none of the documents actually identify the gang. He maintains that, under Sanchez, supra , 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320, the detective’s opinion is insufficient to establish the requisite predicate offenses for purposes of the gang enhancement. We disagree because the predicate offense testimony involved background facts, not case-specific facts barred by Sanchez .
Sanchez held that "[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his [or her] opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." ( Sanchez, supra , 63 Cal.4th at p. 684, 204 Cal.Rptr.3d 102, 374 P.3d 320.) "Case-specific" facts are facts "relating to the particular events and participants alleged to have been involved in the case being tried." ( Id . at p. 676, 204 Cal.Rptr.3d 102, 374 P.3d 320.)
Here, however, the expert’s testimony regarding Eastside Trece predicate offenses involved neither the particular events nor participants involved in the case being tried. Rather, it pertained to historical facts of the gang’s conduct and activities. A predicate offense is essentially a chapter in the gang’s biography. Thus, predicate offenses are background facts relevant to an expert’s opinion about whether a group has engaged in a pattern of criminal gang activity and is a criminal street gang under section 186.22.
Indeed, Sanchez did "not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise." ( Sanchez , supra , 63 Cal.4th at p. 685, 204 Cal.Rptr.3d 102, 374 P.3d 320.) As the court observed, "an expert’s background knowledge and experience is what distinguishes him from a lay witness, and ... testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth." ( Ibid . ) Thus a gang expert may relate such background information regarding his or her knowledge and expertise, as well as premises generally accepted within her field, even though such testimony is offered for its truth. ( Ibid . ) And, more to the point, a gang expert may testify concerning general background information relating to gang culture and the "history and general operations" of a specific gang. ( Id . at p. 698, 204 Cal.Rptr.3d 102, 374 P.3d 320, italics added.) Applying this rule in Sanchez , our high court noted that the gang expert’s testimony about "general gang behavior or descriptions of the ... gang’s conduct and its territory" was "background testimony" based on well-recognized sources in the expert’s area of expertise. ( Id . at p. 698, 204 Cal.Rptr.3d 102, 374 P.3d 320, italics added.)
As recognized in People v. Meraz (2018) 30 Cal.App.5th 768 ( Meraz II ), review granted March 27, 2019, S253629, Sanchez’s reference to general background testimony "plainly includes the general background testimony [the gang expert gives] about [the gang’s] operations, primary activities , and pattern of criminal activities , which was unrelated to defendants or the current" crimes. ( Meraz II , at p. 781, italics added; accord, People v. Blessett (2018) 22 Cal.App.5th 903, 943-945, review granted Aug. 8, 2018, S249250; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411, 224 Cal.Rptr.3d 19 ( Vega-Robles ).) Thus, a gang expert may "testify to non-case-specific general background information about [the gang], its rivalry with [another gang], its primary activities, and its pattern of criminal activity , even if it was based on hearsay sources." ( Meraz II, at pp. 781-782, italics added.)
In defendant’s case, the predicate offenses — none of which involved defendant — are five chapters in Eastside Trece’s biography. The facts underlying these predicate offenses are appropriately characterized as background information relevant and admissible to Eastside Trece’s history and "conduct." ( Sanchez, supra , 63 Cal.4th at p. 698, 204 Cal.Rptr.3d 102, 374 P.3d 320.) We therefore conclude the expert’s testimony concerning the predicate offenses was not violative of Sanchez .
We are aware that a split of authority exists as to whether testimony about predicate offenses is case-specific information. In People v. Lara (2017) 9 Cal.App.5th 296, 337, 215 Cal.Rptr.3d 91, the court did not consider the difference between background facts and case-specific facts. In People v. Ochoa (2017) 7 Cal.App.5th 575, 588-589, 212 Cal.Rptr.3d 703, the court treated all predicate offense information as case-specific facts. There, the expert testified that people involved in the predicate offenses had admitted their gang membership. The Ochoa court concluded that these admissions were case-specific facts. The totality of the court’s analysis on this is as follows: "It seems clear the hearsay statements at issue in the present case—out-of-court statements by individuals admitting being members of the [gang]—are case-specific hearsay rather than general background information about the [gang]. Sanchez gave the following as one in a series of examples of the distinction: ‘That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.’ [Citation.] By analogy, that someone admitted being a gang member is also a case-specific fact." (Ochoa , at pp. 588-589, 212 Cal.Rptr.3d 703.)
But in the Sanchez court’s example, it is not clear whether the court was referencing a hypothetical "associate" who was a participant in the events "involved in the case being tried" (Sanchez, supra , 63 Cal.4th at p. 676, 204 Cal.Rptr.3d 102, 374 P.3d 320 ) or a fellow gang member not involved in the case, but who had otherwise committed an unrelated predicate offense. We think the Sanchez court meant the former, as an example of a case-specific fact, because: (1) the issue before the Sanchez court did not relate to facts underlying predicate offenses, but rather related to facts establishing the defendant’s gang membership, which included gang expert testimony concerning the gang affiliations of people defendant had been with on previous occasions, and (2) the Sanchez court’s explanation of background facts includes facts related to the conduct, history and operations of the gang. Consequently, we disagree with the Ochoa court’s conclusion that the Sanchez example applies to predicate offenses. Accordingly, to the extent that Ochoa can be read as holding that all predicate offense testimony is case-specific hearsay, we respectfully disagree.
See footnote *, ante .
VII. Senate Bill No. 136
Finally, on rehearing, defendant asks that we strike his one-year prior prison term enhancement in light of SB 136. Effective January 1, 2020, SB 136 eliminates the section 667.5 one-year prior prison term enhancement for all prior convictions, except sexually violent offenses. (§ 667.5, subd. (b).) The People agree defendant is entitled to its ameliorative benefit.
We agree with the parties that because defendant’s sentence is not yet final, and because his prior offense (possessing a prohibited weapon) was not a sexually violent offense, he is entitled to the ameliorative benefit of the amendment. (See People v. Vieira (2005) 35 Cal.4th 264, 306, 25 Cal.Rptr.3d 337, 106 P.3d 990 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"]; In re Estrada (1965) 63 Cal.2d 740, 748, 48 Cal.Rptr. 172, 408 P.2d 948 [for a non-final conviction, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"].)
We will therefore strike the one-year prior prison term.
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement. And the matter is remanded so the trial court may consider exercising its discretion under SB 1393, at which time defendant can object to fines and fees on grounds of ability to pay. In all other respects, we affirm.
We concur:
RAYE, P. J.
BLEASE, J.