Opinion
B307987
12-02-2022
THE PEOPLE, Plaintiff and Respondent, v. FRANK BORRUEL, Defendant and Appellant.
Danalynn Fritz, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA480148, Judge George G. Lomeli. Vacated, Reversed in part and Remanded.
Danalynn Fritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
STONE, J. [*]
A jury convicted defendant and appellant Frank Borruel of second degree murder (Pen. Code, § 187, subd. (a)) and being an accessory after the fact (§ 32). The jury found true gang enhancement allegations (§ 186.22) as to both counts and further found true that a principal discharged a firearm during a gang-related offense, resulting in death. (§ 12022.53, subds. (d)/(e)(1).) The trial court sentenced appellant to a total term of 70 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, appellant raises ten issues, contending: (1) the trial court erred in denying a hearing on his motion to traverse and quash a search warrant; (2) there was insufficient evidence establishing his involvement in the murder and/or that he aided and abetted the shooter; (3) his dual convictions for being both an aider and abettor to murder and an accessory after the fact are duplicative and the latter count must therefore be dismissed; (4) the evidence was insufficient to support the gang enhancement allegations; (5) the trial court erred in allowing expert testimony regarding a "common call analysis"; (6) the trial court erred in instructing the jury on aiding/abetting by including language that principals are "equally guilty" and by repeating the "equally guilty" language in answer to a jury question; (7) the alleged trial errors resulted in cumulative prejudice; (8) Assembly Bill No. 333 (2021-2022 Reg. Sess.; Stats. 2021, ch. 699, §§ 1-5) (AB 333) requires reversal and retrial of the gang and gang-related firearm enhancement allegations; (9) in light of the California Supreme Court's recent decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), the case must be remanded for the court to exercise its discretion whether to strike the section 12022.53, subdivision (d)/(e)(1), enhancement and instead impose a sentence under subdivisions (b) or (c); and (10) the court erred in imposing a $7,500 victim restitution award.
We conclude, and respondent concedes, that the case must be remanded to allow retrial of the gang and gang-related firearm enhancement allegations. We also agree with appellant that his accessory after the fact conviction must be reversed because it is based on essentially the same conduct that gave rise to the murder conviction. Discerning no cognizable or reversible error in the remaining claims, we affirm the judgment in all other respects.
As explained in our discussion (see Argument IX, post) although respondent also concedes appellant's Tirado-based claim, our reversal of the gang-related firearm enhancement effectively renders that issue moot.
FACTUAL AND PROCEDURAL BACKGROUND
On March 5, 2018, Jesus Verduzco was shot by an assailant riding on a bicycle. Verduzco was a member of the 41st Street gang.
About ten or fifteen minutes later, Juan Ortiz, who was riding his bicycle in a nearby area, was fatally shot by a 41st Street gang member named Kamal Cleveland.
At trial, the prosecution presented evidence that connected the two shootings, as well as evidence that appellant, another 41st Street gang member, drove Cleveland to the second shooting and drove him away after the murder.
A. Prosecution Evidence
1. Initial Assault on 41st Street Gang Member Jesus Verduzco
On March 5, 2018, around 12:35 p.m., Mayra Saucedo was walking near her home at 42nd Street and San Pedro Street when she saw a group of approximately four Hispanic men in their 20s on bicycles shoot someone. The bicyclists fled, but one bicycle remained behind. A truck pulled up; someone placed the bicycle in the truck and then drove away. Saucedo did not see any other vehicles.
Patricia Flores was at a food truck, near Gilbert Lindsay Park, when she heard four gunshots coming from near San Pedro Street. Several minutes later, she saw a man with blood on his face run across the street towards the park, asking for help. The man collapsed in the park, and people gathered around him. Approximately five minutes later, a "sporty car," possibly a Mustang, and a Toyota Tacoma truck pulled over on San Pedro Street. Two African-American men and two Hispanic men got out of the vehicles and spoke to the person who had been shot. All the men were in their 20s. Several minutes later, as police sirens could be heard approaching the area, the men got back into their respective vehicles and drove away.
The park was a known hangout for 41st Street gang members.
Flores believed the two Black men got into the truck and two Hispanic men got into the Mustang. Flores did not see the men's faces clearly, as the men were looking down, and she did not recognize appellant as one of the Hispanic men.
Los Angeles Police Officer Marc Carrillo responded to the park and saw the shooting victim, Verduzco, also known as "Troubles," with wounds to his mouth and shoulder. Verduzco had 41st Street gang tattoos and was known to be a 41st Street gang member. Another officer, Paul Miller, attempted to obtain information on the shooter from Verduzco, who did not respond.
Officer Carrillo canvassed the area for witnesses and looked for evidence. Carrillo saw a blood trail and bullet casings on the sidewalk of the northwest corner of 42nd Street and San Pedro Street. Further east on the same sidewalk, Carrillo found a firearm. Verduzco later admitted to having fired the gun.
In the meantime, Officer Miller, who had activated his body-worn camera, was about to cross San Pedro Street when a Toyota Tacoma truck passed in front of him. The handlebars of a bicycle were visible in the back of the truck.
Other officers at the scene located surveillance footage from San Pedro and East 42nd Street. The videos showed a white Camaro with tinted windows and dark rims, as well as a pickup truck. Neither the driver nor the license plate of the white Camaro could be seen in the video.
Verduzco was interviewed at the hospital. He indicated the shooter did not mention a gang name. Verduzco maintained he had shot his own gun at the sky and declined an offer to be placed in protective custody. No suspect was ever identified as the shooter; nor was there ever a particular gang connected to the shooting of Verduzco.
2. The Murder of Juan Ortiz
At 12:48 p.m., ten or fifteen minutes after the first shooting, police responded to a second shooting nearby. Juan Ortiz had been shot in front of his sister Monique's apartment on McKinley Avenue south of 51st Street. As Juan was approaching her apartment on his bicycle, Monique heard about six shots and saw him fall to the ground. Monique did not hear anyone say anything-or yell any gang names-before the shooting. A neighbor stated, "[t]hey went that way," and Monique saw a white car with tinted windows "going fast" down McKinley and passing 52nd Street.
Just before Ortiz was shot, Carlos Estevez was in his car stopped behind a new white car, either a Camaro or a Dodge, heading southbound on McKinley Avenue at the intersection of 51st Street. The white car had a rear license plate but Estevez did not get the number. While they were stopped, an African-American man, approximately 20-to-21 years old and wearing denim pants, got out of the passenger side of the car, crossed the street between 51st and 52nd Streets, and headed south on McKinley. After Estevez lost sight of the man, he heard seven or eight gunshots. Estevez parked his car, exited the vehicle, and saw a bloodied man on the ground. The African-American man got back into the passenger side of the white car, which was halfway between 51st and 52nd Streets. The white car then turned left on 52nd Street.
An ambulance arrived and took Ortiz to the hospital. Ortiz, who had three gunshot wounds, died from a gunshot wound to the back which pierced several organs, including his heart.
Six .40 caliber casings and a bullet fragment were found near the curb on McKinley. A bicycle was lying near the casings.
Surveillance video from nearby residences and a market depicted a white Camaro with black rims and tinted windows at the scene. There did not appear to be a front license plate on the Camaro, and the rear license plate number was not visible on the video. In video obtained from the market, a person could be seen exiting the white car and shooting Ortiz.
3. Kamal Cleveland is Identified as the Shooter and Arrested the Following Day
After Ortiz's murder, Officer Aaron Hernandez viewed surveillance video and identified 21-year-old Cleveland as the shooter. Officer Hernandez was familiar with Cleveland based on prior contacts and recognized the way in which Cleveland's right hand curled inwards in a distinctive manner. Cleveland had tattoos on his right hand and chest stating, "BSR," which stood for "Brown Sur Rifa," a clique of the 41st Street gang, as well as the numbers 4 and 1 tattooed on his face.
On March 6, 2018, the day after the shootings, Officer Hernandez was patrolling in a police vehicle when he saw Cleveland within the territory of the 41st Street gang, approximately four blocks from Gilbert Lindsay Park. Cleveland appeared to be trying to hide between some cars in a parking lot. Officer Hernandez arrested him. At the time, Cleveland had one cellular telephone in his possession; the phone was confiscated by Hernandez and given to Detective Thompson.
4. Appellant's Ownership of a White Camaro and his Subsequent Arrest
On May 10, 2018, at approximately 10:16 p.m., Officer Maraea Toomalatai and her partner were patrolling Main Street, less than a mile from Gilbert Lindsay Park, when she saw a white Camaro with silver rims, a tinted driver's side window, and a black hood, rooftop, and trunk driving down Martin Luther King Boulevard. Toomalatai initiated a traffic stop of the Camaro and arrested appellant, the driver.
Records from the Department of Motor Vehicles confirmed that the Camaro in which appellant was arrested was registered to him at the time of Ortiz's murder. Appellant purchased the vehicle in 2016.
Throughout Los Angeles, Los Angeles Police patrol cars are equipped with automated license plate recognition (ALPR) systems designed to record license plate numbers. In order to be recorded, the car must have a license plate. Ten times in 2017, the ALPR system spotted appellant's car. However, there were no sightings of a white car with appellant's license plate number from January through May 2018. Twice between January 16 and April 27, 2018, William Cervantes, a state employee tasked with the duty of maintaining contact information for various people, saw appellant and his white Camaro; on those occasions, the car had paper dealership plates.
Cervantes was in fact appellant's parole officer, but the trial court excluded any reference to appellant's parole status.
A parts manager for a Chevrolet dealership, Paul Urena, conducted a search of a computerized database using the vehicle identification number (VIN) related to appellant's car. Appellant's 2015 Camaro came from the manufacturer with a sunroof, headlight and taillight systems that were available on 2014 and 2015 Camaros, silver alloy rims that were available on 2015 Camaros, as well as indented body gills in front of the rear wheels, and side molding that were unique to the 2015 Camaro. The gills came with optional black stickers that can be affixed to the gills.
Urena compared the information on appellant's car from the parts database and photographs taken at the time of appellant's arrest, with the video footage of the vehicle depicted in the surveillance videos from the scene of the shootings. According to Urena, the cars shared the same sunroof, headlights, grill, rear taillights, side gills, and side body molding.
However, appellant's car at the time of arrest had different wheels than the Camaro in the surveillance video. The wheels on the car in the video were "black and larger" while the factory-installed wheels that came with appellant's car were alloy. Another difference was that the side gills on appellant's car at the time of his arrest did not have black sticker decals affixed to the gills, while the car visible in the video appeared to have such stickers. Finally, the photos taken of appellant's car after his arrest had a front license plate affixed to the passenger side of the front bumper, while the car in the surveillance video did not appear to have a front license plate. Urena testified the wheels, decals, and license plate could easily be removed and changed.
Based on his analysis, Urena opined that the car depicted in the surveillance videos was a 2014 or 2015 Camaro. However, the car is popular, with black and white being the most common colors.
5. Cellular Telephone Evidence Connecting Appellant to Cleveland and the Ortiz Murder
a. Initial Investigation and Analysis
Forensic analyst Andrew Yocum analyzed contact between Cleveland's phone number (323) XXX-XXX (323-phone) and (213) XXX-XXX (213-phone)-a number associated with appellant. From February 24, 2018 through March 6, 2018 there were 25 "transactions" between the two phones.
On January 29, 2018, appellant told Cervantes that the 213-phone was his personal number. However, between March 26 to March 28, 2018, when Cervantes attempted to call appellant on that number, it was not accepting calls. The phone was registered to Jesse Leon who lived on Wall Street in Los Angeles. According to FBI Special Agent Jeff Bennett, suspects rarely use their real name when they subscribe to a phone service and often change their numbers.
Sixteen of them involved calls. When appellant was arrested on May 10, 2018, he was in possession of a prepaid phone with number (626) XXX-XXX (626-phone), and it was booked into evidence. The 213-phone was never physically located.
On April 27, 2018, Cervantes received a text message from appellant from the 626-phone.
Yocum also analyzed internet searches conducted on Cleveland's phone. On March 5, 2018, through March 7, 2018, the phone was used to conduct an internet search on a shooting in south Los Angeles and breaking news on McKinley and San Pedro.
Based on the foregoing, Detective Thompson drafted search warrants for the 213-phone and the 626-phone, as well as the 323-phone associated with Cleveland. In response, Thompson received call records from T-Mobile and Sprint. These records included the date, time and duration of calls or messages, the cell towers used, and the direction of the phone in relation to the tower. The call records were forwarded to the FBI for analysis.
b. FBI Analysis
The FBI analysis was completed by Jeff Bennett, who was a certified Cellular Analysis Survey Team (CAST) agent for the FBI. Agent Bennett focused on the call detail records for March 5, 2018, the date of the crime. However, because the 626-phone was not activated until March 6, 2018, Bennett suspected the person used a different phone prior to March 6th. Bennett then used a technique called "common call analysis" to analyze the call records of the 213-phone and the 626-phone to see if the two phones might belong to the same person. A common call analysis involves looking at the phone numbers and people contacted through the old number (i.e., the 213-phone) and comparing that information to the new number (i.e., the 626-phone) to see if there is any overlap.
The analysis showed the "top caller" for the 626-phone was the "fourth top caller" for the 213-phone, and the "second top caller" for the 626-phone was the number one caller for the 213-phone. Out of the top 15 callers for the 626-phone, there were five numbers in common with the 213-phone.
Bennett additionally analyzed the call detail records themselves and noticed that other than "a spattering of text messages" in the six to eight weeks following the murder, the 213-phone "essentially ceased to be in use very near the end of' March 5 or March 6, 2018. In contrast, the 626-phone was activated on March 6, 2018. Based on his analysis, Bennett opined that both numbers were likely used by the same person.
Bennett also mapped the cell towers and antennae used by the 213-phone (appellant's) and the 323-phone (Cleveland's) on the day of Ortiz's murder. According to Bennett's analysis, on March 5, 2018, at 12:07 and 12:34 p.m., the 213-phone connected to cell towers near the Verduzco shooting. At 12:36 p.m., the phone hit a cell tower just south of the shooting scene. At 12:47 p.m., the 213-phone connected to a tower that provided coverage to the area where the murder occurred. At 12:55 p.m., the phone connected to a tower near the 110 freeway. The path of travel for the 213-phone was consistent with the path of travel of the Camaro on the video surveillance related to the murder.
With regard to Cleveland's 323-phone, between 12:05 and 12:36 p.m., it connected to towers that provided coverage near the Verduzco shooting. Between 1:13 p.m. and 2:57 p.m., the 323-phone used towers consistent with the path of travel of the 213-phone.
6. Gang Evidence
a. The 41st Street Gang and its Members
The parties stipulated that the 41st Street gang is a criminal street gang within the meaning of section 186.22. Officer Aaron Hernandez, who was previously assigned to the Newton Gang Enforcement Detail, testified as a gang expert on the 41st Street gang. The gang started in the 1980s as a group of Mexican-Americans who wanted to protect themselves from other gangs. By March 2018, the gang contained Hispanics and African-Americans and had approximately 30 members.
The gang used the symbols "41," "CU" ("cuatro uno"), "FF" (forty-first), and the Roman numerals "XLI" (41). The gang claimed territory from Martin Luther King Boulevard on the north, Vernon Avenue on the south, Main Street on the west, and Avalon Boulevard on the east. The primary activities of the gang included vandalisms, assaults with deadly weapons, and attempted murders, and members engaged in such activities consistently and repeatedly. The rivals of the gang included Playboys, 55 Bunch, Hang Out Boys, and 36th Street. However, the Playboys and Florencia 13 are their primary rivals.
A number of officers had encounters with appellant and completed field identification cards on him; during these encounters appellant admitted he was a member of the 41st Street gang. On December 15, 2006, appellant had gang-related tattoos and said his moniker was "Milo." On June 16, 2007, appellant stated his moniker was "Menace." On February 16, 2008, he said his moniker was "Joke." It was common for gang members to use multiple nicknames or lie about their monikers.
Officer Hernandez never had contact with appellant during his surveillance of 41st Street territory and had never seen him at Gilbert Lindsay Park. However, at some point, Hernandez had an opportunity to view the back of appellant's head, which had a tattoo of Roman numerals XLI, or 41, which is a tattoo for the 41st Street gang. Appellant also had the number "4" tattooed on his left tricep with the word "Cuatro" under it, and the number "1" on his right tricep with the word "Uno" beneath it. Non-gang members were not allowed to obtain gang related tattoos. Based on appellant's tattoos, as well as appellant's admissions to other officers, Hernandez opined that appellant was a member of the 41st Street gang.
In 2018, Officer Mark Chiu was also assigned to the Newton Division, Gang Enforcement Detail. He was familiar with Cleveland, who said his moniker was "Killer." Cleveland had the numbers 4 and 1 tattooed on his face and his right arm was "shrunken in a little bit" and was curved. In December 2017, Chiu had taken photographs of Cleveland, which were shown to the jury. At the time, Cleveland was with another member of the 41st Street gang. Officer Hernandez was also familiar with Cleveland and opined that Cleveland was a member of the 41st Street gang based on Cleveland's tattoos and his admissions. Hernandez had never seen Cleveland with appellant.
Officer Hernandez was familiar with Verduzco, who had tattoos signifying the 41st Street gang. Hernandez opined that Verduzco was a member of that gang based on the tattoos and Verduzco's admission to other officers that he was a member. Hernandez had never seen Verduzco with appellant.
b. Gang-Related Nature of Shooting
In response to a hypothetical question containing the prosecution's theory of the case, Officer Hernandez testified to his opinion that this crime was committed at the direction of or in association with the 41st Street gang with the specific intent to promote, further or assist in criminal conduct by members. The older gang member was basically the mastermind and he directed and validated the younger member. Driving into rival gang territory to commit this crime benefited the gang by intimidating the community, instilling fear in other gangs, and increasing the gang's reputation. Officer Hernandez's opinion would not change even if the murder victim was not the shooter of the first victim.
The hypothetical was based on the assumption that the driver of the vehicle was 31 years old, and the passenger (and shooter) was 21-years old. Separate testimony established that appellant was 31 years old at the time of his arrest, while Cleveland was 21 years of age.
B. Defense Evidence The defense presented no evidence.
C. Charges and Jury Verdicts
Appellant was charged by an amended information with murder (count 1: § 187); being an ex-felon in possession of a firearm (count 2: § 29800, subd. (a)(1)); and being an accessory after-the-fact to the murder charged in count 1 (count 3: § 32). Gun use allegations pursuant to section 12022.53, subdivisions (b)-(e) were pled as to count 1, and gang allegations were attached to all counts pursuant to section 186.22, subdivision (b)(1)(C). Three prior convictions were alleged as strikes (§ 1170.12, subd. (a)-(d)), serious-felony priors (§ 667, subd. (a)), and prison priors (§ 667.5, subd. (b)).
A jury convicted appellant of second degree murder and being an accessory after the fact, but acquitted him of possession of a firearm by a felon. The gang enhancement allegations were found true as to counts 1 and 3 and the firearm enhancement was found true as to count 1.
Appellant admitted the prior conviction allegations, and the trial court subsequently struck the prior convictions alleged as serious-felony and prison priors, but left the strike allegations intact.
Appellant was sentenced to prison for 70 years to life, which consisted of 15 years to life on count 1, tripled to 45 years to life due to his strikes, plus 25 years to life for the firearm allegation. The sentence on count 3 was stayed pursuant to section 654. Appellant was ordered to pay various fines and fees as well as $7,500 in victim restitution.
As indicated in Argument XIII, post, the trial court did not impose a sentence on the gang enhancement in light of the gang-dependent nature of the firearm enhancement and the prohibition against the imposition of such dual penalties.
DISCUSSION
I. Motion to Traverse Search Warrant
Appellant filed a pretrial motion to quash and traverse a search warrant issued to obtain the call detail records for nine cellular phone numbers, and to suppress all evidence obtained as a result of the search in regard to the 213-phone associated with appellant. In his motion, appellant alleged, inter alia, that affiant LAPD Detective Tommy Thompson knowingly made false statements in the search warrant affidavit, as well as omitted material facts. On appeal, appellant contends the trial court erred in denying his motion to quash and traverse the warrant without holding a hearing under Franks v. Delaware (1978) 438 U.S. 154 (Franks). We discern no reversible error.
A. Relevant Facts
1. Search Warrant Affidavit
On August 6, 2019, Detective Thompson obtained a search warrant for cell phone records, including the 213-phone. In a statement of probable cause, Thompson discussed the Verduzco shooting, noting that it occurred in 41st Street gang territory and that Verduzco was a member of the gang. Fifteen minutes after Verduzco was shot, Ortiz was murdered. The warrant stated that the murder occurred in Playboys' gang territory, and Ortiz was a documented member of that gang.
Detective Thompson further stated that detectives had reviewed multiple surveillance videos of both shootings and that footage taken close to the shooting showed a white Camaro with black rims at both scenes. At the Ortiz shooting, a male, later identified as Cleveland, exited the Camaro, fatally shot Ortiz, and then got into the passenger side of the Camaro. According to Detective Thompson, "The Camaro was being driven by another suspect, later identified as Frank Borruel."
Cleveland, who is a self-identified member of the 41st Street gang was arrested and interviewed by detectives. Cleveland admitted to shooting Ortiz in retaliation for the Verduzco shooting. Cleveland not only identified appellant as the driver of the Camaro, he also said he and appellant were "Bunny hunting," which was a reference to hunting Playboys' gang members.
The detectives then used department resources to discover that appellant was the registered owner of a white Camaro that matched the one seen in surveillance videos. Appellant was a documented member of the 41st Street gang and was known as "Menace." Appellant was arrested and had a cell phone in his possession. Records for that cell phone number, the 626-phone, had previously been obtained via search warrant. Those records showed that the 626-phone was activated the day after Ortiz's murder. Parole records for appellant indicated active contact numbers for appellant in early 2018 included the 213-phone.
2. Motion to Quash and Traverse Search Warrant
Appellant's motion to quash and traverse the search warrant was based on the grounds that Detective Thompson knowingly made false statements in the supporting affidavit, including that: (1) appellant had been positively identified as the driver of the white Camaro captured on video surveillance; (2) codefendant Cleveland had identified appellant as the driver; and (3) Cleveland told police he and appellant were "bunny hunting" when Ortiz was shot. The motion also argued that Thompson misled the magistrate by omitting from the affidavit numerous material facts, including several regarding Cleveland's lack of credibility and unreliability. The motion included as an exhibit the transcript of Thompson's and Detective Brad Michel's interview with Cleveland.
The People opposed the motion, arguing it should be denied because appellant had not made the "'substantial preliminary showing' that the affidavit contains material misstatements or omissions which were made either intentionally or with reckless disregard for the truth" pursuant to Franks, supra.
The court ruled, in pertinent part: "[T]his court is not convinced that the affiant made false statements and/or omitted material information that rose to the level of amounting to knowingly making false statements or of recklessly omitting material facts to the magistrate who ultimately signed the search warrant. [¶] . . . [E]ven assuming arguendo the court were to accept the characterizations of the falsities purportedly made or that the omission of information as described by the defendant occurred . . ., this court would make a finding that it does not dilute the requisite probable cause for issuance of the search warrant in question."
B. Legal Principles Applicable to a Franks Hearing
Under Franks, supra, "a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause" to support a search warrant. (People v. Panah (2005) 35 Cal.4th 395, 456 (Panah).) "When presented with such a challenge, the lower court must conduct an evidentiary hearing if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause." (Id. at p. 456.) "Innocent or negligent misrepresentations will not defeat a warrant." (Ibid.) The same principles apply to material omissions. (People v. Eubanks (2011) 53 Cal.4th 110, 136 ["A defendant can challenge a search warrant by showing that the affiant deliberately or recklessly omitted material facts that negate probable cause when added to the affidavit"]; see People v. Kurland (1980) 28 Cal.3d 376, 385 [omissions are material if they render the affidavit substantially misleading, that is, "if, because of their inherent probative force, there is a substantial possibility [the omitted facts] would have altered a reasonable magistrate's probable cause determination"].)
"Because of the difficulty of meeting the 'substantial preliminary showing' standard, Franks hearings are rarely held." (People v. Estrada (2003) 105 Cal.App.4th 783, 790.) As explained in Franks: "There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant." (Franks, supra, 438 U.S. at p. 171.) For that reason, "[to] mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to crossexamine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof." (Ibid.) Further, "[affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained." (Ibid.) And, when the allegedly false representations are set aside-or when the omitted information is included-"if . . . there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." (Id. at pp. 171-172.)
The denial of a Franks hearing is reviewed de novo. (Panah, supra, 35 Cal.4th at p. 457; People v. Benjamin (1999) 77 Cal.App.4th 264, 271 (Benjamin).)
C. Analysis
Appellant contends Detective Thompson falsely stated that "[t]he Camaro was being driven by another suspect, later identified as Frank Borruel" and that "Cleveland identified Borruel as the driver during the shooting." Appellant asserts that "[c]ontrary to Thompson's affidavit, [appellant] was never identified as the driver of the white Camaro by any percipient witness, or video surveillance evidence," and that in his interrogation by the police Cleveland simply "identified a person named 'Menace,' [but] never said that Menace was appellant." Although Cleveland did not identify appellant by his legal name, the trial court found that there was no material misrepresentation because Menace was, "purportedly the defendant's aka." We agree.
First, Thompson never averred that Cleveland identified appellant by his given name, but simply stated that Cleveland had identified appellant as the driver during the shooting. Second, the statement is supported by the fact that Cleveland told detectives that the driver of the Camaro was "Menace," that Menace was "thirty something," and that he had a tattoo of the number 41 on the back of his head. The affidavit stated that through department resources, detectives learned that appellant was a registered owner of a white Camaro matching the description of the vehicle seen in the surveillance videos of the murder, that appellant was on active parole for a previous shooting, and that appellant was a member of the 41st Street gang and known by the moniker, "Menace." Appellant does not contend that the latter facts are false or untrue, and they reasonably support the assertion that Cleveland had identified appellant as the driver. (Cf. People v. McKinnon (2011) 52 Cal.4th 610, 623 (McKinnon) [noting witness identified one person as "Popeye," and detective associated the moniker "Popeye" with the defendant].)
Appellant also contends Thompson falsely represented to the magistrate that "Cleveland stated in his interview that he and Borruel were 'Bunny hunting,' a street reference to Hunting members for 'Playboys' gang members, who commonly identify with the 'Playboy' symbol." Appellant is correct that Cleveland never used the phrase "Bunny hunting" in his recorded interview. The trial court responded to this argument by observing that Cleveland told detectives that Menace said "let's go bust someone" and to "[d]o it for the homey." The court opined these statements were functionally equivalent to the statement that he and appellant were "Bunny hunting" and thus there was no material misrepresentation.
To establish the right to a Franks hearing, a defendant must show statements that were "deliberately false" or made in "reckless disregard of the truth." (Panah, supra, 35 Cal.4th at p. 456, italics added.) "Innocent or negligent misrepresentations will not defeat a warrant." (Ibid.; see also People v. Madrid (1992) 7 Cal.App.4th 1888, 1899 [noting that evidence "must focus on the state of mind of the affiant"].) Although Cleveland did not use the phrase "Bunny hunting," he clearly conveyed that appellant suggested the two of them go retaliate on behalf of their "homey," apparently Verduzco, who had just been shot. In any event, even if we were to assume that the statement averred in the warrant affidavit was qualitatively different than the statements made by Cleveland-and sufficed to make out a showing of falsity or recklessness-we agree with the trial court's alternate finding that excision of the statement would not undermine the requisite finding of probable cause. (People v. Lee (2015) 242 Cal.App.4th 161, 172 (Lee).)
As noted above, the warrant included information that (1) Cleveland had identified his accomplice as a fellow gang member named "Menace"; (2) "Menace" was the aka for appellant, a documented and admitted member of the 41st Street gang; (3) a Camaro with black rims was depicted on surveillance video near the Verduzco and Ortiz shootings; (4) appellant was the registered owner of a white Camaro matching the description of the vehicle seen at the shootings; (5) when appellant was arrested he had a phone with a number that had been activated the day after the murder; and (6) he had recently provided the 213-phone as a contact number to his parole officer. This information was sufficient to establish that it was substantially probable the records from the 213-phone requested would contain information relevant to Ortiz's murder. (People v. Lazarus (2015) 238 Cal.App.4th 734, 763 [describing probable cause requirement for search warrants].)
This same reasoning applies to appellant's assertion that the affidavit contained material omissions that undermined Cleveland's credibility, including that Cleveland was subsequently found mentally incompetent to stand trial, gave multiple versions of the crime, and inaccurately told the police where the murder weapon was concealed. Even if these facts had been included, probable cause would still exist. (Lee, supra, 242 Cal.App.4th at p. 172.)
First, Cleveland's differing stories about his accomplice and the murder are not uncommon in criminal interrogations as suspects often attempt to diminish their culpability and mix facts and falsehoods. (McKinnon, supra, 52 Cal.4th at p. 662; People v. Avila (2006) 38 Cal.4th 491, 568.) Second, the varying stories and inaccurate information did not diminish the fact that Cleveland identified appellant by his moniker and a 41st Street gang tattoo- an identification that was confirmed by the fact that appellant owned a white Camaro, belonged to the same gang as Cleveland, and matched Cleveland's description of the driver. And even if Cleveland subsequently was found incompetent, he apparently did not appear incompetent to the detectives at the time of the interview, as shown by his attempts to deceive the detectives and the lucidity of his answers. (People v. Sandoval (2015) 62 Cal.4th 394, 410 [a search warrant affidavit is not required to disclose "'every imaginable fact however irrelevant'"].) Finally, the fact that the requested phone records yielded evidence that a phone number used by appellant was connected to a cell phone tower close to the murder scene, as well as towers consistent with the Camaro's direction of travel, further militates against reversal based on assertions regarding the credibility of Cleveland. (People v. Box (1993) 14 Cal.App.4th 177, 185-186 [noting informant's earlier statements were corroborated by results of the search]; cf. Benjamin, supra, 77 Cal.App.4th at p. 275 ["there is no reason why the results of the search cannot support the truthfulness of the statements made in a search warrant affidavit by an affiant whose credibility is under attack"].)
Citing trial testimony, appellant also argues that Detective Thompson omitted the fact that appellant had previously used the monikers "Milo" and "Joke." However, appellant did not raise this issue before the trial court. (Franks, supra, 438 U.S. at p. 171 [Franks hearing required only where defendant makes specific allegations of misstatements or omissions "accompanied by an offer of proof'].) Accordingly, appellant has forfeited this contention on appeal.
In sum, appellant has failed to demonstrate any reversible error based on the trial court's refusal to hold a Franks hearing.
II. Sufficiency of Evidence to Support Conviction on Counts 1 and 3
Appellant contends his conviction on all counts must be reversed because there was insufficient evidence that he was the getaway driver. Appellant further argues that even assuming he was the driver of the Camaro, there was insufficient evidence that he harbored the requisite intent to find him guilty of aiding and abetting the murder of Ortiz. Recognizing that it is the prosecution's burden to establish both intent and identity beyond a reasonable doubt (People v. Soper (2009) 45 Cal.4th 759, 777), our review of the record discloses sufficient evidence to support the jury's verdicts.
A. Relevant Legal Principles
In reviewing a sufficiency of the evidence claim, "[w]e view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) In so doing, we neither question the credibility of witnesses nor reweigh the evidence. (People v. Navarro (2021) 12 Cal.5th 285, 302.) We must affirm the conviction if the circumstances reasonably support the jury's findings, even if the circumstances might also be reconciled with a contrary finding. (People v. Jimenez (2019) 35 Cal.App.5th 373, 392.)
B. There Was Sufficient Evidence that Appellant Was the Driver of the Getaway Vehicle
Viewing the evidence in the light most favorable to the judgment, the record discloses sufficient evidence to support a finding that appellant was the driver of the getaway vehicle.
First, surveillance footage near both the Verduzco shooting and Ortiz's murder depicted a white Camaro, and appellant was an owner of such a vehicle. The core components of appellant's vehicle and the suspect vehicle were the same, while any differences between appellant's vehicle on the day of his arrest and the Camaro in the surveillance video (i.e., different wheels, decals and license plate placement) could be attributed to appellant making changes to his vehicle during the two months between the murder and his arrest. (See People v. Moore (2016) 6 Cal.App.5th 73, 90 (Moore) ["it is the jury's prerogative, not ours, to weigh the evidence"].)
Second, appellant was linked to the crime scene-and shooter Cleveland-by cell phone evidence. Although appellant had the 626-phone in his possession when he was arrested, his parole officer had the 213-phone listed as one of appellant's recent and active contact numbers. The FBI expert, Bennett, analyzed the records related to both numbers and concluded that they were used by the same person based on calling patterns. Records for the 213-number showed that the 213-phone was near the Verduzco shooting and near Ortiz's location at the time of the murder and that the travel path of the 213-phone was consistent with that of the Camaro shown on the surveillance videos. Moreover, the travel paths of the 213-number and Cleveland's number were consistent with each other.
Because Cleveland was deemed mentally incompetent at the time of trial, he was not called as a witness, and none of his statements incriminating appellant were admitted at trial.
Finally, motive also tied appellant to Ortiz's murder. (See Moore, supra, 6 Cal.App.5th at p. 85 [explaining that although the prosecution need not prove motive, "motive is relevant, and a strong motive provides powerful evidence"].) Evidence was presented that appellant, Cleveland, and Verduzco were members of the 41st Street gang. According to the gang expert, retaliatory action is common when a fellow gang member is shot. The evidence here showed that after Verduzco was shot, a "sporty car" was seen nearby and the occupants of the vehicle, as well as a truck, exited and spoke to Verduzco. Because both the surveillance videos and the phone records place appellant's vehicle and phone in the area of the Verduzco shooting, circumstantial evidence supported a finding that appellant was one of the men who spoke to Verduzco after he was shot. Accordingly, there was additional, and compelling, evidence of motive presented at appellant's trial. (Moore, supra, 6 Cal.App.5th at p. 85; see also People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen) [explaining that although "'gang evidence standing alone cannot prove a defendant is an aider and abettor to a crime,'" expert testimony regarding gang rivalries and practices can strengthen inferences arising from other evidence specific to defendant's role in the crime at issue].)
In his opening brief, appellant nevertheless insists that there was a "stunning" "paucity" of evidence that he was the getaway driver. In so contending, however, appellant artificially extracts and isolates each piece of circumstantial evidence, offers alternate explanations for its existence, and then argues that it failed to prove his identity as the driver beyond a reasonable doubt.
Appellant's approach is flawed for two reasons. First, it is the jury, not the appellate court, that must be convinced of guilt beyond a reasonable doubt. For us "'[t]he test is whether substantial evidence supports the decision.'" (People v. Vu (2006) 143 Cal.App.4th 1009, 1024.) Second, each piece of circumstantial evidence is a link in an evidentiary chain which, when combined, may satisfy the substantial evidence test upon appellate review. (People v. Diaz (1992) 3 Cal.4th 495, 537 [observing that while a single piece of evidence, when viewed in isolation, could not be likened to a "smoking gun," it was a "link in the circumstantial chain of evidence" that viewed "in its entirety" pointed to defendant as the killer]); see also Moore, supra, 6 Cal.App.5th at p. 90 [even though there were no eyewitnesses, no fingerprints, no DNA, no confessions, no admissions, and the evidence was "all circumstantial," there was sufficient evidence of defendant's guilt].) Substantial evidence supported a finding that appellant was the getaway driver of the white Camaro.
C. There Was Sufficient Evidence that Appellant Aided and Abetted Cleveland in the Murder
The record also discloses sufficient evidence to support a finding that appellant aided and abetted the murder of Ortiz.
A person aids and abets in an offense when he (1) knows the unlawful purpose of the perpetrator; (2) has the intent to commit, encourage, or facilitate the commission of the offense; and (3) aids, promotes, encourages, or instigates the commission of the crime. (Nguyen, supra, 61 Cal.4th at p. 1055.) When the charged offense is murder, "the aider and abettor must know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).)
Appellant argues "[t]here was no evidence [he] knew in advance that the crime would occur and agreed to commit it" because "[e]ven assuming [appellant] met Verduzco at the park following the assault, there was no evidence of what was said" or "of any plan to kill."
However, as previously explained by our Supreme Court: "'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.'" (Nguyen, supra, 61 Cal.4th at p. 1055.) Accordingly, "it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.)
Appellant's knowledge of Cleveland's murderous intent and his intent to assist in the murder are most clearly shown by the fact that, after stopping and talking to assault victim and fellow gang member Verduzco, appellant drove Cleveland around the area until they spotted Ortiz on a bicycle. Cleveland then exited the car and shot Ortiz to death. A reasonable inference from the evidence is that appellant and Cleveland were hunting for someone on a bicycle to avenge the attack on Verduzco. Indeed, the gang expert explained that, if a gang member is attacked, the gang is expected to retaliate with an act that is a "step above what was committed." (Nguyen, supra, 61 Cal.4th at p. 1055 [in context of evaluating evidence to support aiding and abetting charge, court noted that expert testimony regarding gang rivalries strengthened inferences arising from other evidence].) The fact that appellant waited and allowed Cleveland back into the Camaro further shows that appellant shared Cleveland's murderous intent. (See People v. Sedillo (2015) 235 Cal.App.4th 1037, 1065 [defendant sat in car while shooting took place and then allowed shooter back into the car, implying driver knew what shooter had done]; People v. Mackey (2015) 233 Cal.App.4th 32, 121 [defendant aided/abetted murder, in part, because he waited in the car while shooter killed victim and then welcomed shooter back into the car].)
In sum, the record here contains substantial evidence from which the jury could have found beyond a reasonable doubt that defendant knew of and shared Cleveland's intent to kill Ortiz and acted to further the shooting.
Notwithstanding appellant's assertion to the contrary, the jury's acquittal on count 2 (possession of a firearm) in no way indicates the evidence was insufficient to support the murder charge. (People v. Lara (1996) 43 Cal.App.4th 1560, 1568, fn. 4 ["'A verdict of conviction on one count which appears inconsistent with a verdict of acquittal on another count shall afford no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense of which he stands convicted, regardless of how similar the facts underlying each count are'"]; see also People v. Brugman (2021) 62 Cal.App.5th 608, 632-633 [stating same principle].)
III. Duplicative Nature of Counts 1 and 3
Appellant was convicted of murder as a principal in count 1 and, in count 3, as an accessory after-the-fact to the same murder. As relevant to count 1, section 31 provides that "[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed." As relevant to count 3, section 32 provides: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment . . . is an accessory to such felony." (§ 32.)
In closing argument, the prosecutor told the jury that count 3 was based on the fact that appellant and Cleveland fled together and thus appellant helped Cleveland "avoid and/or escape arrest" within the meaning of the accessory charge.
On appeal, appellant contends that under the factual circumstances of this case, dual liability for counts 1 and 3 cannot stand. We agree, and accordingly reverse the conviction on count 3.
The sentence on count 3 was stayed pursuant to section 654.
Generally, "there is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime." (People v. Mouton (1993) 15 Cal.App.4th 1313, 1324; see also In re Malcolm M. (2007) 147 Cal.App.4th 157, 169 [concluding that being a principal in a crime and being an accessory to that crime are not mutually exclusive offenses as a matter of law]; but see People v. Prado (1977) 67 Cal.App.3d 267, 273 ["when an accused is convicted of violation of Penal Code section 32, which necessarily requires that a principal have committed a specific completed felony and that he knowingly aided that principal with intent that the principal escape arrest, he cannot be convicted as a principal in that completed felony" (italics omitted)].) Rather, "imposition of liability for both may be permissible, depending upon the particular circumstances of a specific case." (In re Malcolm M., supra, at p. 169; cf. People v. Bacon (2010) 50 Cal.4th 1082, 1115, fn. 9 [noting that "under certain factual circumstances, a defendant can be convicted as both a principal and an accessory to the same crime"]; People v. Jennings (2010) 50 Cal.4th 616, 668 [same].)
The question here is whether defendant's conviction for being an accessory is predicated on essentially the same acts as his convictions for aiding and abetting the murder. On that question, we find the reasoning of In re Eduardo M. (2006) 140 Cal.App.4th 1351 (Eduardo) persuasive.
In Eduardo, two men were walking to a store when a blue van drove up and stopped a short distance away. Someone in the van asked whether they belonged to a gang; when they said no, the person in the van fired at the men, striking one of them in the leg. The van then drove off. (Eduardo, supra, 140 Cal.App.4th at p. 1356.) Eduardo initially denied being involved or knowing who committed the assault, but later conceded that he had been driving the van with two passengers, one of whom was the shooter. Eduardo admitted knowing his passenger was armed, but claimed he did not know the man intended to shoot anyone. The juvenile court found that Eduardo assaulted the victims by aiding and abetting the shooter and that he was an accessory to the same crime. (Id. at pp. 1356-1357.)
On appeal, Eduardo contended that the trial court erred in finding that he both aided and abetted and was an accessory to the assaults. The appellate court agreed: "We hold that because Eduardo was convicted as a principal in both assaults, he cannot also be convicted as an accessory to those assaults solely on the basis of his immediate flight from the scene of the crime and his subsequent denials of his own involvement, even if that conduct incidentally helped a coprincipal to escape." (Eduardo, supra, 140 Cal.App.4th at p. 1357.) The court reasoned that "[n]early all felons, whether acting alone or in concert with others, intend before, during, and after committing the felony to escape being apprehended and punished for their crimes. Attempting to escape after committing a felony is an inherent part of committing the felony, involving in most cases acting on a previously formed intent. Thus, escaping does not create greater criminal culpability." (Id. at p. 1360.)
Here, appellant fled in the Camaro with Cleveland immediately after the shooting. The prosecution offered no evidence of any other act that would support an accessory charge. We reject respondent's contention that appellant "committed an additional act, had an additional intent, and thereby exhibited increased culpability" by waiting at the scene and allowing Cleveland back into the car rather than escaping without the shooter. Appellant's role as getaway driver formed the basis upon which his liability as principal and accessory were based. The fact that appellant did not abandon Cleveland at the scene of the shooting is not a basis from which we can conclude that he committed a distinct and separate act and harbored a different intent than that which formed the basis of his actions as a principal in the shooting. (Eduardo, supra, 140 Cal.App.4th at p. 1361 [noting that accessory conviction requires "both separate acts and intent" and concluding that "because immediate flight and denials of involvement are such ubiquitous features of criminal conduct, they are too equivocal to constitute separate acts supporting an inference that the fleeing and guilt-denying felon harbored a separate intent to aid the escape of his coprincipals"].) The two cases cited by respondent-wherein courts permitted such dual convictions for being both a principal and accessory to the same crime-rested upon conduct that was above and beyond mere flight from the scene. (See e.g. People v. Riley (1993) 20 Cal.App.4th 1808, 1815 ["The conviction of accessory is based on defendant's act, the following day, of attempting to dispose of the gun."]; People v. Mouton, supra, 15 Cal.App.4th at p. 1324 &fn. 7 [conviction for accessory guilt "depended on defendant's help in concealing [accomplice] Jackson's jacket and gun and his false statements [to shield Jackson] to the police"].)
Because appellant's accessory conviction rested on the same intent and conduct as that underlying his murder conviction, it must be reversed. On remand, the trial court should dismiss that charge. (Eduardo, supra, 140 Cal.App.4th at p. 1361.)
IV. Sufficiency of Evidence to Support the Gang Enhancements
Appellant contends there was insufficient evidence to support the gang-related allegations. We disagree.
Although we agree with respondent's concession that the ameliorative changes wrought by AB 333 require that we vacate the true findings on the gang enhancements (see Argument VIII, post) and allow the prosecution to retry appellant under the AB 333's new requirements, we address appellant's contention here because a successful challenge would bar retrial. (People v. Sek (2022) 74 Cal.App.5th 657, 669-670 [noting that double jeopardy clause would bar retrial if evidence is deemed insufficient under statute as it read at the time of trial, but not where prosecution failed to prove elements under statute amended after trial].)
"The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction." (People v. Weddington (2016) 246 Cal.App.4th 468, 483 (Weddington).)
To establish the gang enhancement under section 186.22, subdivision (b), the prosecution must establish "that the underlying felonies (1) were committed for the benefit of, at the direction of, or in association with any criminal street gang and (2) were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members." (People v. Roberts (2017) 13 Cal.App.5th 565, 572.) "Because the first prong is worded in the disjunctive, a gang enhancement may be imposed without evidence of any benefit to the gang so long as the crime was committed in association with or at the direction of another gang member." (Weddington, supra, 246 Cal.App.4th at p. 484.)
The second prong applies to any criminal conduct and can include the conduct underlying the charged offense. (People v. Albillar (2010) 51 Cal.4th 47, 66 (Albillar) ["'There is no statutory requirement that this "criminal conduct by gang members" be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing'"]; see also People v. Vazquez (2009) 178 Cal.App.4th 347, 354.) Because intent is rarely susceptible of direct proof, it must be inferred from the surrounding facts and circumstances. (People v. Kopp (2019) 38 Cal.App.5th 47, 72.) "For this reason, 'we routinely draw inferences about intent from the predictable results of action.'" (People v. Miranda (2011) 192 Cal.App.4th 398, 411 (Miranda).)
Because the parties stipulated that "the 41st Street gang is a criminal street gang within the meaning of Penal Code section 186.22," we need not address the evidence in relation to that requirement here.
Proof of association with a gang may be established with substantial evidence that two or more gang members committed the crime together, unless there is evidence that they were on a frolic and detour unrelated to the gang. (Weddington, supra, 246 Cal.App.4th at p. 484.) In the instant matter, the prosecution presented substantial evidence that Cleveland, appellant, and Verduzco were all members of the 41st Street gang. The evidence further demonstrated that after Verduzco was assaulted, Cleveland and appellant proceeded to hunt down Ortiz and did so to avenge the shooting of Verduzco. Appellant and Cleveland then fled the scene together. (Albillar, supra, 51 Cal.4th at p. 62 [evidence that defendants came together as gang members to commit crimes constituted substantial evidence the crimes were committed in association with a gang].) Under these circumstances, appellant and Cleveland "not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other's cooperation in committing these crimes." (Id. at pp. 6162.) Accordingly, there was more than sufficient evidence to satisfy the "in association" requirement of the first statutory prong. (Id. at p. 62; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198 ["the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members"]; Martinez, supra, 158 Cal.App.4th at p. 1332 [defendant committed crimes in association with gang members because he committed them with a fellow gang member; even if defendant did not live in gang territory and was not known by gang expert, evidence was still sufficient].)
To the extent appellant claims there was insufficient evidence that he was an "active" member of the 41st Street gang, such proof was not necessary to establish the requirements of the gang enhancement, including the "association" prong. (People v. Martinez (2008) 158 Cal.App.4th 1324, 13311332 (Martinez) [finding sufficient evidence to support finding that crime was committed "in association" with the gang, and noting that for purposes of the gang enhancement, "[d]efendant did not even need to be an '"active'" or '"current, active"' gang member"].) In any event, the gang expert opined that appellant was a member of the 41st Street gang and premised his opinion on foundational facts, including appellant's prior admissions and gang tattoos. (People v. Vang (2011) 52 Cal.4th 1038, 1050, fn. 5 [elements of the gang enhancement may be proven by expert testimony]; cf. Martinez, supra, at p. 1331 [sufficiency of the evidence showing participation in a gang is not altered by the existence of other evidence that might permit a contrary conclusion].)
Second, the California Supreme Court concluded in Albillar, supra, 51 Cal.4th 47, that "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Id. at p. 68.) Accordingly, the evidence outlined above also satisfies the jury's finding that the second prong of section 186.22, subdivision (b)(1) was satisfied. (Ibid.; see also Miranda, supra, 192 Cal.App.4th at p. 412 [substantial evidence supported finding of specific intent to benefit gang where defendant gang member committed crimes with two other members or associates of the gang in gang territory]; cf. People v. Franklin (2016) 248 Cal.App.4th 938, 949 [noting "scienter requirement may be satisfied with proof 'that the defendant intended to and did commit the charged felony with known members of a gang,'" but concluding intent requirement not met where defendant committed crimes with members of a different gang].)
We thus conclude sufficient evidence supported the gang-related enhancement under section 186.22, subdivision (b).
Because substantial evidence supports a finding that appellant committed the shooting in association with a gang, we need not address the other two means of establishing a gang enhancement under section 186.22, subdivision (b). (See Weddington, supra, 246 Cal.App.4th at p. 484.)
V. Expert Testimony Regarding Cell Phones
Appellant claims the trial court erred in allowing Bennett to opine that the same person used both the 213-phone and the 626-phone. However, appellant forfeited part of his claim, and the other part fails because the admission of the testimony was proper.
A. Underlying Facts
FBI agent Jeffrey Bennett testified he performed a "common call analysis" to ascertain whether the 213-phone and 626-phone belonged to the same person. Bennett discovered there were five common numbers in the "top 15 callers" to each phone. Based on his analysis, as well as his "experience looking at thousands and thousands of records doing common call analysis," Bennett opined that both numbers were likely used by the same person. No objection was interposed to this testimony.
Agent Bennett further analyzed the call detail records and noted that the 213-phone "essentially ceased to be in use" by March 6, 2018, the day after the murder. The 626-phone was activated on March 6, 2018. Based on those facts, Bennett again opined that the two numbers were likely used by the same person.
Defense counsel moved to strike Bennett's opinion based on lack of foundation; the court initially sustained the objection and struck the testimony. However, the court ultimately allowed Bennett to testify, over the defense's objection, that based on the calling patterns, the activation dates, and Bennett's experience in relying on this type of data "[h]undreds of times," it was his opinion that the same person used both numbers.
B. Relevant Legal Principles
"An expert may express an opinion on a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (People v. Duong (2020) 10 Cal.5th 36, 60, internal quotation marks omitted.) "That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible." (People v. Edwards (2013) 57 Cal.4th 658, 709, internal quotation marks omitted.) Rather, an expert's testimony will be only excluded "when it would add nothing at all to the jury's common fund of information." (Ibid., internal quotation marks omitted.)
A trial court has broad discretion in deciding whether to admit expert testimony, and its decision is subject to review for abuse of discretion; thus, the court's decision will be only overturned upon a showing that it was arbitrary, capricious or patently absurd. (Ibid; People v. Morales (2020) 10 Cal.5th 76, 97.)
C. Analysis
As noted, agent Bennett initially opined, without objection from appellant, that the 213-phone and the 626-phone were used by the same person without any objection by appellant. By failing to object, appellant has forfeited his claim as to this portion of Bennett's testimony. (People v. Edwards, supra, 57 Cal.4th at p. 709 ["questions relating to the admissibility of evidence will not be reviewed on appeal absent a specific and timely objection at trial on the ground sought to be urged on appeal"], internal quotation marks omitted.) As to the second portion of the testimony, we discern no reversible error.
First, agent Bennett's testimony satisfied the basic requirements for the admission of expert opinion testimony. Bennett provided additional insight, above and beyond the jury's general knowledge, on the subjects of call detail record analysis and criminals switching cellular telephones after a crime-both of which were relevant to the identification of the driver. (See generally, People v. Garlinger (2016) 247 Cal.App.4th 1185, 1199 [defendant did not dispute that the analysis of call detail records was "sufficiently beyond common experience that expert testimony on the subject would assist the jury"].) Second, Bennett's opinion was properly based on his training and years of experience, having analyzed "thousands and thousands" of phone records and finding such similarities "[h]undreds of times."
To the extent appellant argues that the jury could have formed its own opinion based on the data provided by Bennett and thus Bennett's testimony was "entirely unnecessary," appellant misapprehends the standard for such testimony. That is, in order to admit expert testimony, the matter need not be wholly foreign to the jury; indeed, "[a]n expert opinion may assist the jury in evaluating the evidence, even when common sense would explain its meaning." (People v. Jackson (2013) 221 Cal.App.4th 1222, 1239.) Here, the jury may have understood the foundational premise for Bennett's opinion- i.e., comparing common calls from each phone-but still found his experience of having extracted and analyzed such data numerous times to determine patterns of common use helpful in determining whether both phones were used by the same person. (Cf. People v. Prince (2007) 40 Cal.4th 1179, 1223 [noting that although a jury is equipped to view crime scene evidence and form their own opinion as to whether various crimes were committed by same person, "it may aid them to learn from a person with extensive training in crime scene analysis, who has examined not only the evidence in the particular case but has in mind his or her experience in analyzing hundreds of other cases"], italics added.) Under these circumstances, we cannot conclude the testimony was of no assistance to jurors or that Bennett's opinion testimony "'would add nothing at all to the jury's common fund of information.'" (People v. Farnam (2002) 28 Cal.4th 107, 163.)
We further point out that the jury was instructed that, in determining what weight to give an expert's opinion, it should consider "the facts or materials upon which each opinion is based, and the reasons for each opinion." The jury was also told that "[a]n opinion is only as good as the facts and reasons on which it is based," and that if "any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion." Clearly these instructions contemplate that the jury will have some understanding or grasp of the foundational basis for an expert's opinion. However, on the issue of admissibility, "the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury." (People v. Prince, supra, 40 Cal.4th at p. 1222.) As discussed above, we answer this query in the affirmative.
Appellant also argues that Bennett's opinion lacked foundation since the 213-phone did not cease to be in use and thus there was no evidentiary support for his opinion. However, Bennett testified that the phone "essentially" ceased to be in use after the shooting, and the issue was further explored in cross-examination wherein Bennett explained that there were a "handful of text messages" and one call after the date of the murder; he further testified that "phone usage after the murder was significantly different than before"-i.e., not "in the same capacity that it was before." Bennett stated that he took into account that there was some lingering use of the 213-phone in rendering his opinion. Thus, the jury was well aware of any weaknesses in Bennett's conclusion. (People v. Morales, supra, 10 Cal.5th at p. 101 [alleged weaknesses in expert's testimony went to the weight of the evidence and not its admissibility].)
Finally, any error would have been harmless on this record. Appellant does not dispute that Bennett's opinion on the common call analysis was first admitted without objection. As such, any reiteration of the opinion could not have reasonably altered the outcome. (People v. Lapenias (2021) 67 Cal.App.5th 162, 180 [applying state law harmless error standard where expert testimony was erroneously admitted]; see also People v. Eubanks, supra, 53 Cal.4th at p. 143 [noting that the application of the ordinary evidence rules generally does not infringe on a defendant's constitutional rights].)
VI. CALJIC No. 3.00 and Trial Court's Response to Jury Question
Appellant asserts that "[t]he charge given to appellant's jury (CALJIC 3.00), and the court's response to its questions during deliberations repeatedly instructed [the jury] that an aider and abettor is 'equally guilty,' [and that ] [t]hese erroneous instructions lessened the People's burden of proof, and denied appellant his constitutional rights and a fair trial." Respondent counters that appellant has forfeited his contentions and, on the merits, that the claim fails. We agree with respondent.
A. Relevant Facts and Proceedings
Pursuant to CALJIC No. 3.00, the jury was instructed: "Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime." CALJIC No. 3.00 further stated: "When the crime charged is murder, the aider and abettor's guilt is determined by the combined acts of all the participants as well as that person's own mental state. If the aider and abettor's mental state is more culpable than that of the actual perpetrator, that person's guilt may be greater than that of the actual perpetrator. Similarly, the aider and abettor's guilt may be less than the perpetrator's, if the aider and abettor has a less culpable mental state." Defense counsel did not object to the "equally guilty" language of CALJIC No. 3.00
The jury was additionally instructed on aiding/abetting with CALJIC No. 3.01, which stated that a person aids/abets in an offense when he has knowledge of the unlawful purpose of the perpetrator; has the intent of facilitating, committing, or encouraging the crime; and aids, promotes, encourages or instigates the crime by act or advice.
The jury was further instructed, per CALJIC No. 3.01, that in order to be guilty as an aider or abettor, "the defendant's intent or purpose of committing or encouraging or facilitating the commission of the crime by the perpetrator must be formed before or during' the commission of the crime, and that "[m]ere knowledge that a crime is being committed" and "[m]ere presence at the scene of a crime" are not in and of themselves sufficient to amount to aiding and abetting. (Italics added.)
On the first day of jury deliberations, the jury sent a note asking, "If we believe the defendant is guilty of aiding and abetting (but have not come to a conclusion on whether or not he was in the car) does his aiding and abetting automatically mean he is also guilty of murder? If so, first or second?" Following a telephonic conference with the parties, the court stated on the record that the parties and the court had agreed that the court "would reread to them the aiding and abetting instruction, [i.e.] CALJIC 3.00 and 3.01" and that the court would "direct the jury to re-read the 187 [murder] instructions, [i.e., CALJIC] starting at 8.10, 8.11, 8.20, 8.30, 8.71, 8.74, and 8.75."
The following day, after the jury entered the courtroom, the court directed it to review CALJIC Nos. 3.00 and 3.01. In regard to CALJIC No. 3.00, the court pointed out that it states, "Persons who are involved in committing a crime are referenced to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty." The court added that it would "read you the two factors" and stated, "Principals include: 1. Those who directly and actively commit the act constituting the crime; or, 2. Those who aid and abet the commission of the crime" and then observed that "it goes on from there" and reiterated that the jury should read the two instructions referenced. The court observed that CALJIC No. 3.01, defined "what constitutes aiding and abetting" and stated that CALJIC No. 3.01 answered the first part of the jury's question regarding whether the defendant was "equally guilty." The court stated that the second question was a "factual question" and that the jury was the judge of the facts.
The court then directed the jury to reread the murder instructions, listing them by number. After listing the instructions, the court stated that the jury's query regarding "first or second" degree murder was a factual question that only the jury could decide, as "[o]nly [they] know what the facts are," and it then read portions of CALJIC No. 8.20, which defines first degree murder and portions of CALJIC No. 8.30, which defines second degree murder. The court concluded by stating, "[r]ead those instructions again. I think in reviewing those instructions again, it pretty much answers your questions."
Later that same day, the jury returned its verdicts.
B. Applicable Law
A trial court is required to "'instruct[] the jury on all the general principles of law raised by the evidence which are necessary for the jury's proper understanding of the case.'" (People v. Ramirez (2021) 10 Cal.5th 983, 1035.) A court also has "a general obligation to 'clear up any instructional confusion expressed by the jury.'" (People v. Dykes (2009) 46 Cal.4th 731, 802.) This obligation arises under section 1138, which provides that if deliberating jurors "desire to be informed on any point of law arising in the case, . . . the information required must be given" to them in court.
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
"This does not mean the court must always elaborate on the standard instructions. . . . [T]he court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) "This means that a trial court's response to a jury question can be erroneous even if it does not technically misstate the law." (People v. Fleming (2018) 27 Cal.App.5th 754, 766.)
Assertions of error under section 1138 are reviewed for an abuse of discretion. (People v. Lua (2017) 10 Cal.App.5th 1004, 1016.) This court reviews claims of instructional error de novo (People v. Mitchell (2019) 7 Cal.5th 561, 579), determining the correctness of an instruction from the entire charge. (People v. Rogers (2009) 46 Cal.4th 1136, 1177.)
C. Analysis
In McCoy, supra, the court found that an aider and abettor may be guilty of greater homicide-related offenses than the perpetrator. (25 Cal.4th at pp. 1119-1120.) Applying McCoy and the concept that an aider and abettor's own mental state floats free from that of the perpetrator, several courts of appeal found the "equally guilty" language in former CALCRIM No. 400 and CALJIC No. 3.00 misleading, noting that an aider and abettor may also be found guilty of lesser offenses than the perpetrator. (People v. Nero (2010) 181 Cal.App.4th 504, 513-518 (Nero); People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165.) Our Supreme Court subsequently found that CALJIC No. 3.00 "generally stated a correct rule of law" in that "[a]ll principals, including aiders and abettors, are 'equally guilty' in the sense that they are all criminally liable," but recognized that the instruction "could be misleading if the principals in a particular case might be guilty of different crimes." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)
In 2010, the Judicial Council revised both CALCRIM former No. 400 and CALJIC former No. 3.00. As to the latter instruction, the Council made the "equally guilty" language optional. (People v. Johnson (2016) 62 Cal.4th 600, 640, fn. 5.) However, given that the instruction has been deemed generally accurate, but potentially incomplete or inaccurate based on the factual circumstances of the case, courts have held that the failure to request any modification of the "equally guilty" language forfeits any claim of instructional error on appeal. (See, e.g., People v. Loza (2012) 207 Cal.App.4th 332, 349-350 (Loza); People v. Mejia (2012) 211 Cal.App.4th 586, 624; People v. Canizalez (2011) 197 Cal.App.4th 832, 849.) Here, appellant did not object to CALJIC No. 3.00 as stated and charged to the jury, and he has therefore forfeited any direct challenge to the instruction in this appeal.
The Use Note indicates that in cases presenting the issue whether the aider and abettor's guilt may be greater or lesser than that of the actual perpetrator, the court should instruct with the "'guilty of a crime'" language instead of "'equally guilty.'" (Use Note to CALJIC No. 3.00 (spring 2010 rev.); People v. Johnson, supra, 62 Cal.4th at p. 640, fn. 5.)
To the extent appellant challenges the court's response to the jury's question, this challenge is largely forfeited as well. "A defendant may forfeit an objection to the court's response to a jury inquiry through counsel's consent, or invitation or tacit approval of, that response." (People v. Ross (2007) 155 Cal.App.4th 1033, 1048; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 ["Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived"]; People v. Hughes (2002) 27 Cal.4th 287, 402 [claim of error was "waived by defense counsel's agreement with the trial court that informing the jury of the consequences of a deadlock would have been improper"]; People v. Bohana (2000) 84 Cal.App.4th 360, 373 [counsel invited and consented to failure to instruct on lesser offenses in response to jury inquiry].)
Here, the parties and the court agreed that the jury would be instructed with CALJIC Nos. 3.00 and 3.01, as well as the murder instructions. As such, appellant's arguments based on the re-reading of-or re-directing of the jury's attention to-CALJIC No. 3.00 as stated is forfeited. The same holds true for any argument that the court should have provided additional information to the jury or answered the query in a different manner. (Loza, supra, 207 Cal.App.4th at pp. 349-350 [appellant forfeited challenge to court's response to juror question regarding aider and abettor's mental state was erroneous where counsel agreed to response given by court].)
The only remaining aspect of appellant's argument that may not be subject to forfeiture is his assertion that any supplemental comments or statements made by the trial court exceeded the scope of the parties' agreement, and were erroneous or misleading. (Cf. People v. Ross, supra, 155 Cal.App.4th at p. 1048 [declining to apply forfeiture rule to court's response to jury question, where record regarding telephonic conference with counsel was "nebulous," but certainly gave no indication that court apprised counsel it would tell jury "that there is no legal definition of 'mutual combat'"].) Even assuming these arguments are cognizable, we find no prejudicial deviation in this case.
Here, the only offense that appellant was charged with was murder, and this was the only crime upon which his liability as an aider and abettor could be based. Thus, to the extent the jury asked whether a determination that the defendant is guilty of aiding and abetting would mean that he is guilty of murder, the court appropriately stated that this query would be answered by CALJIC No. 3.01 which defined the requirements for aiding and abetting. (Cf. People v. Mejia, supra, 211 Cal.App.4th at p. 625 [finding no error occurred in giving of CALJIC No. 3.00 with "equally guilty" language where jury was also instructed with CALJIC No. 3.01, which set out all requirements for aiding and abetting, thereby advising jury "that it must base its decision of . . . appellant's liability not simply on the mental state of the direct perpetrator of the crime, but on that appellant's state of mind and the extent to which he knew of and intended to facilitate the purpose contemplated by the perpetrator"].) Second, the court noted that the jury's query as to whether the degree of murder should be first or second could only be answered by the jury based on the facts of the case, and directed them to the instructions differentiating these degrees. This was entirely appropriate, and the jury posed no further questions. On this record, we discern no material or prejudicial deviation in the court's comments to the jury. (People v. Doane (2021) 66 Cal.App.5th 965, 980-981; People v. Lua, supra, 10 Cal.App.5th at p. 1017.)
VII. Cumulative Error
Appellant contends the cumulative effect of the alleged errors described above denied him due process and compels reversal. In light of our disposition, there are not multiple trial errors to accumulate. (People v. Capers (2019) 7 Cal.5th 989, 1017-1018.)
VIII. Assembly Bill No. 333
Appellant contends that AB 333, which became effective on January 1, 2022 and changed the requirements for gang enhancements under section 186.22, subdivision (b), applies retroactively to his case. As such, he maintains that he is entitled to a new trial on the gang and gang-related firearm enhancements. Respondent concedes that under In re Estrada (1965) 63 Cal.2d 740, the ameliorative benefits of AB 333 apply retroactively to appellant's case, and require reversal. We agree with the parties.
In 2019, appellant's jury found true gang enhancements alleged under section 186.22, subdivision (b)(1) on counts 1 and 3, and further found true a gang-related firearm enhancement alleged under 12022.53 on count 1.
Effective January 1, 2022, AB 333 amended section 186.22 "to require proof of additional elements to establish a gang enhancement." (People v. Lopez (2021) 73 Cal.App.5th 327, 343.) Among other things, it amended the definitions of "criminal street gang" (§ 186.22, subd. (f)) and "pattern of criminal gang activity" (§ 186.22, subd. (e)(1)), and clarified the evidence needed to establish that an offense benefits, promotes, furthers, or assists a criminal street gang. (See People v. E.H. (2022) 75 Cal.App.5th 467, 477-478; People v. Sek, supra, 74 Cal.App.5th at p. 665.)
The parties agree, as do we, that the provisions of AB 333 identified above apply retroactively to appellant's case. AB 333 amends section 186.22 to redefine to a defendant's benefit the conduct subject to the enhancement. (People v. Figueroa (1993) 20 Cal.App.4th 65, 69-70 [Estrada presumption applies to legislative amendments that add new element to enhancements]; see also People v. Ramos (2022) 77 Cal.App.5th 1116, 1126-1127 [AB 333 amendments to § 186.22 apply retroactively to nonfinal judgments]; People v. Rodriguez (2022) 75 Cal.App.5th 816, 822 [same]; People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032 [same]; People v. Lopez, supra, 73 Cal.App.5th at p. 344 [same].)
Respondent further concedes that at least one of the new elements required by AB 333 was arguably not satisfied by the evidence presented at appellant's trial. That is, the gang expert testified that the crimes benefited the gang's reputation. AB 333, however, requires that the prosecution prove the benefit the gang derives from the current offenses is "more than reputational" (Stats. 2021, ch. 699, § 4 [enacting § 186.22, subd. (g)]; People v. E.H., supra, 75 Cal.App.5th at p. 478), such as "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." (§ 186.22, subd. (g).) Respondent notes that although the gang expert here also testified that the crimes were done in retaliation, his testimony of the reputational benefit of the crimes requires reversal.
Respondent separately concedes that the trial stipulation by the parties-that the 41st Street gang was a criminal street gang within the meaning of section 186.22-does not encompass the new factors that must be proved under the amended statute. (Cf. People v. Strike (2020) 45 Cal.App.5th 143, 146 [mere fact of prior conviction was not sufficient to prove a strike because interpretation of offense had changed since defendant pled to crime]; People v. Ellis (2019) 43 Cal.App.5th 925, 941 ["the general rule is that the existence of a plea agreement does not insulate the parties 'from changes in the law that the Legislature has intended to apply to them'"].)
Upon reviewing the relevant portions of the record, we accept respondent's concession and agree that the gang enhancements must be vacated. (See People v. Sek, supra, 74 Cal.App.5th at p. 669 [reversal under AB 333 required where reviewing court "cannot rule out the possibility that the jury relied on reputational benefit to the gang as its basis for finding the enhancements true"].)
We must also vacate the firearm enhancement imposed under section 12022.53. AB 333's changes to section 186.22 affect not only the gang enhancement allegations under that statute, but also firearm enhancements that expressly incorporate this section, including section 12022.53, subdivision (e). (Lopez, supra, 73 Cal.App.5th at pp. 347-348.) Accordingly, we vacate the section 12022.53 enhancement imposed in relation to count 1.
Upon remand, the People may elect to retry the gang and gang-related firearm allegations under the new requirements of AB 333. (People v. Delgado (2022) 74 Cal.App.5th 1067, 1091; People v. Figueroa, supra, 20 Cal.App.4th at pp. 71-72 &fn. 2 [remand appropriate to allow prosecution to establish additional element retroactively added by statutory amendment].)
IX. Resentencing in Light of Tirado
As noted (see Argument XIII, ante), appellant was charged with all three firearm enhancements under section 12022.53, subdivisions (b)/(e), (c)/(e) and (d)/(e), and the jury found subdivision (d)/(e) true on count 1. Appellant's motion to strike the firearm enhancement on count 1 was subsequently denied.
In Tirado, supra, 12 Cal.5th 688, the California Supreme Court held that a trial court has authority to strike the greater enhancement under section 12022.53, subdivision (d) and impose a lesser enhancement under subdivisions (b) or (c), so long as the facts required by the lesser enhancements were alleged and found true. (Tirado, supra, at p. 700.)
In light of Tirado, the parties agree that the matter should be remanded for resentencing for the court to consider the option of imposing a lesser included firearm enhancement.
However, given that we have concluded the firearm allegation must be reversed under AB 333-and because any lesser included allegations were also necessarily dependent on the gang enhancement allegation-appellant's Tirado claim is effectively moot (or simply premature). Should the People elect to retry the gang and gang-related firearm allegations-and a jury find these allegations to be true-the trial court should sentence appellant in a manner consistent with applicable law.
X. Restitution Award
Appellant was ordered to pay the Victim's Compensation Board (the "Board") $7,500 for funeral and burial expenses. Appellant contends the restitution ordered to the Board was erroneous and should be stricken as unauthorized, notwithstanding trial counsel's failure to interpose an objection to the order. Appellant alternately argues that counsel was ineffective for failing to interpose an objection. We reject both contentions.
A. Relevant Facts and Proceedings
During sentencing, the prosecutor noted there was a request from the Victim Compensation Board for $7,500 for funeral and burial expenses. The prosecutor submitted paperwork showing that the Victim Compensation Board compensated the victim's family for $7,500 related to funeral and burial expenses. In lieu of litigating the issue, counsel stated, "[W]e'll submit to that amount." (Italics added.) The court asked appellant if he agreed, and appellant responded, "Correct." Appellant was subsequently ordered to pay $7,500 to the Victim Compensation Board for funeral and burial expenses.
B. Appellant Forfeited his Challenge to the Restitution Order
Appellant argues that there was "no evidence the Board actually reimbursed anyone for funeral expenses, or if so, the amount of benefits paid." (Italics added.) As such, the restitution award was "unauthorized" and must be "stricken." This argument is flawed in several respects. First, as noted in our factual summary, ante, the prosecution did submit documentation indicating that the requested amount had been paid. Second, appellant's characterization of the restitution order as "unauthorized" (in an apparent attempt to circumvent the forfeiture rule) is simply incorrect.
Here the award was authorized by statute. Specifically, if the Victim Compensation Board has provided assistance to a victim, the amount of assistance "shall be established by copies of bills submitted to the California Victim Compensation Board reflecting the amount paid by the board and whether the services for which payment was made were for . . . burial expenses." (§ 1202.4, subd. (f)(4)(B); see also People v. Evans (2019) 39 Cal.App.5th 771, 778 ["We see no reason that defendant should receive a windfall-and the Restitution Fund should suffer a loss-simply because the victims exercised their right to apply to the California Victim Compensation Board rather than waiting for the victim restitution order"]; People v. O'Neal (2004) 122 Cal.App.4th 817, 821 [because the Victim Compensation Board paid for counseling, it was entitled to reimbursement].)
Thus, appellant's contention that there was a lack of evidence to support the restitution order "raises a factual issue, which is subject to forfeiture." (People v. Brooks (2018) 23 Cal.App.5th 932, 939; see also People v. Brasure (2008) 42 Cal.4th 1037, 1075 [deeming defendant's contention that economic loss "was not shown by documentation or sworn testimony" forfeited because "by his failure to object, defendant forfeited any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute"], italics added; People v. Mays (2017) 15 Cal.App.5th 1232, 1237 ["A defendant wishing to argue on appeal that there is no factual basis for a restitution order must object on that ground in the trial court to preserve the issue for appeal"].)
To the extent appellant argues that counsel was ineffective for failing to interpose an objection, he has failed to make the requisite showing of prejudice. (People v. Mays, supra, 15 Cal.App.5th at p. 1238 [to prevail on claim of ineffective assistance of counsel, defendant must prove that his counsel's performance was deficient and that he was prejudiced by the deficient performance].) The record reflects documentation showing the amount ordered was actually incurred by Ortiz's family and appellant has cited no evidence to the contrary. (Mays, supra, 15 Cal.App.5th at p. 1238.)
Appellant states that if we do not strike the restitution order we should order the superior court "to make the restitution order joint and several with co-defendant Cleveland." However, as respondent points out, Cleveland had not been convicted of any crimes at the time the court imposed the order. Moreover, a trial court "may impose liability on each defendant to pay the full amount of the economic loss . . . as long as the victim does not obtain a double recovery." (People v. Leon (2004) 124 Cal.App.4th 620, 622.)
DISPOSITION
The true findings on the gang and gang-related firearm enhancement allegation findings under sections 186.22 and 12022.53 are hereby vacated. In addition, appellant's conviction on count 3 is hereby reversed. On remand, the trial court shall enter an order dismissing the conviction on count 3. The prosecution shall have the option to retry appellant on the gang and gang-related firearm allegations.
If the People elect not to retry the gang enhancements, appellant shall be resentenced in a manner consistent with this opinion and applicable law.
Following imposition of sentence, the court shall order a corrected abstract of judgment, which shall be forwarded to the California Department of Corrections and Rehabilitation.
We concur: MANELLA, P. J. COLLINS, J.
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.