Opinion
C083196
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY PAUL CAIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F01784)
A jury found defendant Anthony Paul Cain guilty of several crimes, including discharge of a firearm at an occupied vehicle (Pen. Code, § 246), and found true the allegation that he committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). On appeal, defendant contends the trial court erred by failing to instruct the jury regarding the lesser included offense of negligent discharge of a firearm (§ 246.3), and his trial counsel was ineffective for objecting to giving the lesser included instruction. He also contends there was insufficient evidence to support the gang enhancement. In supplemental briefing, defendant contends and the People concede that remand is required to allow the trial court to consider striking the section 12022.53 firearm enhancement pursuant to the newly enacted Senate Bill 620 (Stats. 2017, ch. 682, § 2; hereafter Senate Bill 620). We will remand to allow the trial court to exercise its newfound discretion under Senate Bill 620. In all other respects, we affirm the judgment.
Unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On March 11, 2014, after a group breakfast, Steven Jaco left the restaurant with his father, Tony Jaco, in one car and their friends Gino Reali, Brittany Reali, and Brittany's two young children, in another car. Tony was driving and Steven was in the passenger seat with his window down. The plan was to meet up at Gino's house.
We refer to persons who share a common surname by their first name for purposes of clarity. No disrespect is intended. --------
Tony pulled up to a stop sign behind a silver car, which was stopped in front of them for about one to three minutes. Tony waited and then drove around the left side of the silver car, honking his horn as he pulled up next to it at the stop sign. As they passed the silver car, Steven noticed there were two men in the car: the driver, later identified as defendant, and his passenger, later identified as Allie Masuda. Defendant and Masuda "mean mugged" or stared at Steven and Tony, and defendant asked if they were "looking for problems." Tony said, "No, I'm just coming home from breakfast." Steven said, "You want to fight?" Defendant flashed a handgun at them, waving it out the window and pointing it towards the front of Tony's car. Tony drove off and defendant gave chase in the silver car.
When Tony arrived home, Gino, Brittany, and the two children had already arrived and Brittany was unloading the kids from the car. Tony pulled his car into the driveway. Defendant's car pulled up next to Tony's car. As Steven got out of the car, defendant "said something about diamonds" and pointed the handgun at Tony and Steven. Brittany yelled, "He has a gun. Get back in the car." Steven heard two clicks as defendant's gun misfired. Fearing he was going to be shot, Steven got back in Tony's car. As he did, he heard a gunshot as defendant fired the handgun. Neither Steven nor Tony's car were struck by bullets. Tony sped off and again defendant gave chase in the silver car.
As defendant drove off, Brittany was able to retrieve a partial license plate number from his car and later provided it to police, along with a description of defendant and his vehicle. Brittany also discovered an unexpended bullet and a shell casing where defendant's car had been parked. It was later determined both items likely came from the same manufacturer. The unexpended bullet was still intact, but had an indent in the primer, suggesting it had been struck with the hammer but the bullet was not activated (i.e., the gun jammed and misfired).
At some point, Tony pulled over by a convenience store and waited. When defendant's car passed them, Tony tried to "T-bone" defendant's car, but missed. Tony began chasing defendant's car and attempted to ram it. However, the car Tony was driving soon overheated, preventing Tony from continuing the chase.
Using the partial license plate number, police traced the silver car to defendant's mother. Steven and Brittany identified defendant in a photo lineup. Three days after the incident, police detained defendant exiting the silver car. A bullet casing recovered from the car matched the bullet casing recovered from the scene of the shooting. Data from defendant's cell phone revealed defendant's passenger at the time of the shooting was Masuda. In a photo lineup, Steven identified Masuda as someone who looked like the passenger involved in the shooting.
Defendant was charged by second amended information with attempted murder (§§ 664/187, subd. (a)—count one), assault with a firearm (§ 245, subd. (a)(2)—count two), discharge of a firearm at an occupied vehicle (§ 246—count three), and possession of a firearm by a felon (§ 29800, subd. (a)(1)—count four). The information alleged defendant committed counts one through three for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), he personally and intentionally discharged a firearm in the commission of counts one and three (§ 12022.53, subd. (c)), and he personally used a firearm in the commission of counts one and two (§§ 12022.53, subd. (b)/12022.5, subds. (a) & (d)). The information further alleged defendant suffered a prior strike conviction (§§ 667, subds. (b)-(i)/1170.12) and a prior prison term (§ 667.5, subd. (b)). The trial court granted defendant's request to bifurcate the prior prison and prior strike allegations.
Defendant was tried by a jury and found guilty of counts two, three, and four, and not guilty of count one. The jury found true the gang and firearm enhancements. In a bifurcated proceeding, the trial court found the prior strike allegation true.
The trial court denied probation and sentenced defendant to an aggregate term of 41 years in state prison comprised as follows: the low term of three years on count three, doubled for the prior strike, plus 10 years for the gang enhancement, 20 years for the personal discharge of a firearm enhancement, and five years for the prison prior enhancement. The court also imposed a term of 12 years on count two, and two years eight months for count four, both of which were stayed pursuant to section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Instruction on Lesser Included Offense
Defendant contends the trial court erred in failing to instruct the jury on the lesser included offense set forth in section 246.3, subdivision (a), which provides that "any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person" is guilty of the crime of negligent discharge of a firearm. Acknowledging that his own trial counsel objected to the giving of the lesser included offense instruction, defendant contends the objection constituted ineffective assistance of counsel because there was no legitimate strategic objective in doing so.
The People argue defendant's claim is barred under the doctrine of invited error because he elected not to instruct the jury by objecting to the proposed lesser included instruction and persuaded the trial court not to give the instruction. The People claim defendant's trial counsel was not ineffective because counsel employed a reasonable tactical strategy by objecting to the lesser included offense instruction so as not to undermine defendant's "all-or-nothing" defense theory. The People have the better argument.
Background
At the close of the evidentiary phase of the trial, the following colloquy took place between the court, the prosecutor (Attorney Steber), and defendant's counsel (Attorney Wise) regarding proposed jury instructions on discharging a firearm into an occupied vehicle:
"THE COURT: I have also included grossly negligent discharge of a firearm, a lesser included offense to that charged in Count Three. Ms. Steber, your position on that?
"[ATTORNEY STEBER]: I am not asking for any lesser includeds.
"THE COURT: Mr. Wise?
"[ATTORNEY WISE]: Neither am I.
"THE COURT: All right. For the same reason I just articulated in Count One, I do believe there is sufficient evidence to sustain that charge as well, should the jury find that there is not sufficient evidence to sustain the charge currently alleged in Count Three. [¶] And for that reason, and on authority of People versus Breverman . . . 19 Cal.4th 142 . . . I believe that an instruction relevant to the lesser included for Count Three should also be included as well. [¶] Accordingly, instruction 252 is modified to include reference to those two lesser includeds. [¶] . . . [¶] Any objection to the manner in which the Court has worded reference to the lesser includeds, as well as the correctness of the statement that the lesser included charges of Counts One and Three are general intent crimes?
"[ATTORNEY STEBER]: No. I agree they are general intent crimes, and I have no objection to [instruction] 252 as it's worded.
"THE COURT: All right. And Mr. Wise?
"[ATTORNEY WISE]: I have had a chance to review [instruction] 252. Given the Court's ruling, I do not object to the verbiage in [instruction] 252. I do object to the giving of lessers to the jury. It undermines my defense of the case, my theory of the case. At this late notice, it's contradictory to my theory on the defense."
At the court's request, the prosecutor stepped out of the courtroom and the following colloquy took place between the court and defendant's counsel:
THE COURT: "Please tell me why it is you are objecting to the lesser includeds alleged as to Counts One and Three and how that runs contradictory to your defense of [defendant].
"[ATTORNEY WISE]: My theory on this case is essentially that there is lacking evidence for the intent to kill for Count One, which also applies to the lesser included of the [section] 192, the manslaughter. [¶] My concern with regard to the modification of the lesser for Count One would be that the jury might find that to be a compromise. Because of the spontaneous nature of the incident, it might find that he still formed the intent to kill spontaneously, which I disagree with. I think it lowers the People's burden of proof with intent to kill. [¶] If I convince the jury that the evidence has been lacking with intent to kill, he's acquitted on Count One. That leaves them with a [section] 245[, subdivision ](a)(2), which does not carry the .53, the [section] 12022.53 enhancement and saves [defendant] essentially 20 years of imprisonment. [¶] With regard to Count Three, the discharge at an occupied vehicle, that also carries the [section] 12022.53 enhancement. My reading of [section] 12022.53 does not specifically state that it applies to [section] 246.3, but it appears it might apply to the allegation of the gang enhancement. Again, if I could convince a jury that I think there's ample evidence that there was no discharge at the occupied vehicle, because of written testimony by way of law enforcement, and that the shooter was shooting at Steven and not the car or Tony, again, [defendant] saves approximately 20 years in prison.
"THE COURT: You disagree that there are sufficient facts to establish grossly negligent discharge of a firearm, or you don't want to go there?
"[ATTORNEY WISE]: I don't want to go there. That's not alleged by the People. That's not something I've been defending against during the course of the trial. It could substantially alter my defense if I had to deal with that. The nature of this charge goes to the intent of shooting of an occupied vehicle. Two different states of mind. And the defense would have been substantially different. If they could convict him and give him the [section] 12022.53[, subdivision ](b) enhancement, based on a reckless discharge, it would have substantially modified the way I approached this case for trial.
"THE COURT: I hear your argument, and I find that it is valid."
The court brought the prosecutor back into the courtroom and stated: "Ms. Steber, while you were gone, I heard argument from your opposing counsel, Mr. Wise, and am convinced, based on his representations about what the defense will be, that it would be contrary -- it would be inappropriate to then allege the lesser includeds as to Counts One and Three. And given the fact that Mr. Wise was not placed on notice during the course of the trial and able to then defend as to the lesser includeds, I am going to go ahead and grant the request, actually of both parties, not to instruct as to the lesser includeds as to both Counts One and Three." The court then struck the phrase "grossly negligent firearm, a lesser included offense" from jury instruction No. 252.
Thereafter, the court instructed the jury on the offense of shooting at an occupied vehicle (§ 246) with CALCRIM No. 965, which requires that the prosecution prove (1) defendant willfully and maliciously shot a firearm, (2) defendant shot the firearm at an occupied vehicle, and (3) defendant did not act in self-defense.
Analysis
"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.] That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citations.] To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 744-745.)
"When a defense attorney makes a 'conscious, deliberate tactical choice' to forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was omitted in error." (People v. Wader (1993) 5 Cal.4th 610, 657-658 (Wader).) "In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) Here, because defendant's counsel objected to the lesser included offense instruction and successfully argued against it, persuading the trial court not to give the instruction, we conclude the doctrine of invited error applies and defendant cannot raise it on appeal.
However, courts have recognized that, because "a deliberate tactical choice by counsel . . . may be an incompetent one, . . . a defendant who is barred from raising instructional error by the invited error doctrine may 'always claim he received ineffective assistance of counsel.' [Citation.]" (Wader, supra, 5 Cal.4th at p. 658.) Defendant does so here, arguing his attorney's tactical choice was incompetent because there was no legitimate strategic objective to object to the lesser included instruction. We disagree.
"To prevail on a claim of ineffective assistance of counsel on appeal, the defendant must show that there was no rational tactical purpose for counsel's act or omission, and that it is reasonably probable that, absent counsel's deficiencies, a more favorable result would have been obtained." (Wader, supra, 5 Cal.4th at p. 658; Strickland v. Washington (1984) 466 U.S. 668, 690, 694 [80 L.Ed.2d 674, 695, 697].) When reviewing ineffective assistance claims, we employ a "strong presumption" that counsel's performance was adequate. (Strickland, at pp. 689-690; People v. Leonard (2014) 228 Cal.App.4th 465, 484.)
Defendant's counsel explained to the trial court that instructing the jury with the lesser included offense would undermine and contradict his theory of the case. Specifically, counsel argued "there's ample evidence that there was no discharge at the occupied vehicle, because of written testimony by way of law enforcement, and that the shooter was shooting at Steven and not the car or Tony," adding that this would save defendant "approximately 20 years in prison." Counsel argued further that the two offenses—discharge of a firearm at an occupied vehicle (§ 246) and grossly negligent discharge of a firearm (§ 246.3)—dealt with "[t]wo different states of mind," a fact which would have substantially altered the way he approached his defense, as would the fact that the jury convicted defendant of the firearm enhancement (§ 12022.53, subd. (b)) "based on reckless discharge." Based on counsel's representations, the trial court agreed not to instruct with the lesser included offense.
Defendant now claims his trial counsel's explanation "makes no sense" because the 20-year enhancement statutes (e.g., § 12022.53 for use of a firearm, and § 186.22 for certain gang-related crimes) do not apply to section 246.3. However, while defendant's counsel may have confused which specific enhancement applied to which particular offense, counsel was clear in explaining to the court that his defense theory throughout the evidentiary phase had been to convince the jury that, based on all the evidence including the police officers' written reports, "there was no discharge at the occupied vehicle" at all. As such, an acquittal on count three would also avoid an enhancement pursuant to section 186.22 or any other applicable statute. Counsel further explained that his strategy would have been "substantially alter[ed]" had the People alleged, or had he been obliged to defend against, an allegation of negligent discharge of a firearm. While defendant objects to the characterization of defense counsel's strategy as "all-or-nothing," it is clear from the record that counsel felt it was not in defendant's best interest to introduce an alternative, albeit lesser, option to the jury, particularly after the evidentiary phase had already been concluded. To that end, counsel argued in closing that there was simply no credible evidence defendant attempted to shoot at the car. Defense counsel's objection to the lesser included offense instruction in an effort to avoid what some have called a "compromise verdict" (see People v. Cooper (1991) 53 Cal.3d 771, 827) was a reasonable strategy.
Defendant's claim that, had the lesser included instruction been given, the jury could have believed that defendant intended only to scare Steven and never intended to kill him or shoot at his car and still find he negligently discharged his firearm into the air is of little consequence. The fact that there may have been an alternative strategy available does not require us to second-guess defense counsel's strategy of choice. "[C]ounsel does not render ineffective assistance by choosing one or several theories of defense over another. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1007.) As long as trial counsel could have had some satisfactory explanation for the conduct complained of, a claim of ineffective assistance must be rejected on direct appeal. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Even assuming defense counsel's objection to the lesser included instruction was error, defendant cannot demonstrate prejudice in light of the testimonial evidence from Steven, Brittany, and Tony corroborating that defendant fired the gun at Tony's car. Steven testified defendant fired the gun as he was getting out of the car, and again as soon as he got back in the car. Tony testified that he was sitting in the driver's seat of his car when defendant pulled out a gun and started shooting as Steven was just getting out of the car. Tony stated he saw defendant pointing the gun at him. He looked straight ahead and heard the gunshot. Brittany testified she saw defendant point the gun "straight at" Steven and Tony, who were in Tony's car, and then saw defendant shoot the gun as Steven was getting out of Tony's car. Brittany clarified her earlier statement given to police immediately following the incident that defendant shot at Steven and not Tony, stating it "looked like he [defendant] was just shooting towards the vehicle." (Emphasis added.) In light of the evidence, there is no reasonable probability the jury would have found defendant guilty of the lesser offense rather than the greater charged offense.
We conclude defendant has failed to establish ineffective assistance of counsel.
II
Sufficient Evidence Supports the Gang Allegation
Defendant contends there was insufficient evidence to support the imposition of a gang enhancement under section 186.22, also known as the Street Terrorism Enforcement and Prevention Act (the STEP Act). He claims the prosecution failed to identify the precise criminal street gang for whose benefit defendant allegedly acted, as required by section 186.22 and People v. Prunty (2015) 62 Cal.4th 59 (Prunty).
The People argue the prosecution was not required to establish a relationship between the Varrio Diamond Norteño subset and the Norteño umbrella gang because the evidence showed the primary activities and the predicate offenses were committed by the Varrio Diamond Norteños, the gang defendant sought to benefit.
On this record, we agree with the People. We explain.
Background
At trial, Steven testified that, when he got out of Tony's car in front of Gino's house, defendant "said something about diamonds or something like that" before he pointed a handgun at Tony and Steven and fired.
Sacramento Police Detective Ashley Englefield, a member of the gang investigative unit at the time of the shooting, testified defendant's reference to "diamonds" was a reference to a gang called the Varrio Diamonds Norteño gang.
Sacramento Police Detective John Sample testified as the prosecution's expert in the area of Hispanic gangs in the Sacramento area, specifically in the area of Norteños and Sureños, as well as an investigator involved in the case. Sample testified that Varrio Diamonds is a subset of the Norteño gang. The Varrio Diamonds typically use the color red and affiliate with the Cincinnati Reds and the Arizona Diamondbacks. He explained that the names "Varrio Diamond Norteños," "Varrio Diamond Saca," "VDS," and "VDN," all refer to the same Norteño subset. Varrio Diamond gang members use a hand sign in the shape of a diamond. They also get tattoos with the letters "VDS" for "Varrio Diamond Saca," or the letter "N" and some form of the number 14 representing "N," the fourteenth letter of the alphabet, to show allegiance to the Norteño gang.
Sample testified he searched defendant's residence and found "[s]everal items of red clothing, items with gang graffiti, [and] items of clothing that had gang graffiti etched on them for Varrio Diamonds." He found multiple gang photographs of known gang members with whom he was familiar and with whom defendant was known to associate. He also found pictures of defendant with known gang members.
According to Sample, defendant had a tattoo of the letter "D" representing the Diamonds on his arm. He also went by the nicknames "Hit Stick," "Hit Stick Yellow Tape," or "Heavy Hitter." Masuda was an admitted and validated member of the Oak Park Norteños, a subset of the Norteños in Sacramento. Masuda and defendant, members of two different Norteño subsets, hung out together, which is not uncommon for subsets to hang out through "narcotics connections, familial connections, friendships." There is a "fluidity between subsets, with the overriding umbrella being Norteños sort of accepting them into different subsets."
Sample testified that, in Sacramento, there are over a dozen subsets of the larger umbrella Norteño gang. The umbrella gang claims allegiance to the northern part of California. The subsets—the smaller groups of Norteños—such as the Varrio Diamonds and the Oak Park Norteños are turf-oriented groups that usually claim a particular area such as the Oak Park neighborhood. The Varrio Diamonds claim a section of East Sacramento. Sample testified that the Nuestra Familia Norteño gang provides structure to the Norteño gang from prisons, and often call the shots and "set up regimen[t]s in local areas here in Sacramento." There are several regiment commanders who basically control the smaller subsets for the purposes of calling shots from prison.
Sample also testified that members of different subsets often hang out with one another, back each other up, and cooperate with each other, with the goal of benefiting the larger Norteño gang. The subsets "come together all the time because their greater allegiance is the Norteño gang." The objective of the Norteño gang is "[m]oney, power, respect, gains, try to make money through selling drugs, selling firearms. . . . [¶] . . . [¶] They sell and steal cars, they pimp girls, and a lot of their activities come through violent acts." Gangs are known to be very violent. Respect is often gained by violence and intimidation or holding guns, which is a symbol of violence and power in gang culture.
According to Sample, the Varrio Diamond Norteños' biggest rival is the Sureños, who are outnumbered by Norteños almost three to one. However, sometimes different Norteño subsets fight against each other over money, turf, girls, or drugs. The Varrio Diamond Norteños make themselves known by using gang graffiti. They also hold large vigils when one of their own is killed. Gang members also use social media to post gang-related information.
Sample testified the Varrio Diamond Norteño gang is an ongoing organization or association with three or more members. The gang has been around since the early-nineties. The gang's primary activities include narcotics sales, illegal firearms possession and sales, homicides, attempted homicides, shootings and stabbings, and robberies.
Sample also testified to two predicate offenses committed by Varrio Diamond Norteño gang members. The first occurred in December 2010 when Andrew Martin and Christopher "Skitsco" Shultz, both Varrio Diamond gang members, encountered several other individuals with Norteño gang affiliation (Vincent Garay and Alfred Perez, both members of the 14th Avenue Norteño gang, and Isaac Givens, a member of the Varrio Diamond Norteño gang at the time) at a liquor store. Martin asked Garay "where he was from and said this is the D. This is the Diamonds." Following a verbal argument inside the shop, Martin produced a handgun outside the shop and shot Garay in the stomach. Martin was convicted of attempted manslaughter (§§ 664/192) and an accompanying gang enhancement (§ 186.22, subd. (b)).
The second predicate offense occurred in July 2012 between Joshua and Alex Ramirez, two Varrio Diamond Norteño gang members, and Leno Medina, a Sureño gang member. Following a confrontation during which Alex Ramirez asked Medina "where he was from and started talking about Norteño gangsters," Alex Ramirez stabbed Medina and two other men with a knife and then attempted to run over several people before crashing his car into a home and fleeing on foot. Both Alex and Joshua Ramirez were later convicted of assault with a deadly weapon (§ 245, subd. (a)(4)) and a gang enhancement for the crime (§ 186.22, subd. (b)).
Sample opined that defendant is an active Varrio Diamond Norteño gang member based on the photographs and clothing found at his residence; his involvement in five or six other crimes with other gang members, including firearms possession; multiple gang-related tattoos all over his body that are indicative of Norteño and Varrio Diamond affiliation; and gang graffiti at his residence. Sample also based his opinion on defendant's own admission of his affiliation with the Varrio Diamond gang.
In particular, defendant bears tattoos showing his affiliation with the Varrio Diamond Saca subset of the Norteño gang, including references to the number 14 (signifying the letter "N"), the Varrio Diamond Saca gang, the number 17 (signifying the street claimed by the gang as part of its territory), the letters "A" and "K" representing the shooting of Garay, a 14th Avenue Norteño (with the letter "A" signifying "avenue" and the letter "K" signifying "killer"), and "D Boys" in reference to the "Diamonds." Defendant had a red "D," as well as the letters "F," "R," and "K," representing "Fruitridge Killer." Sample testified that gang members put these types of tattoos on their bodies as a form of loyalty to the gang.
Sample stated that in exercising the search warrant of defendant's home, a bat was found with "multiple items of graffiti on it for Varrio Diamonds," as well as XIV Norteño graffiti, "1700" graffiti, and other common graffiti for Varrio Diamond territory.
Sample testified regarding various gang crimes committed by defendant in the past. In particular, he recalled an incident when defendant was contacted in a park with three handguns in his car, three other gang members in the car, and three gang members sitting outside the car. Defendant was contacted on numerous other occasions when he was either in possession of or with someone in possession of a gun. Each time he was contacted with a gun, he was with another gang member.
Applicable Law
1. Standard of Review
In reviewing a challenge to the sufficiency of evidence, we must " ' "review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (Hill, supra, at p. 849.)
" 'The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.' " (People v. Romero (2006) 140 Cal.App.4th 15, 18.) " 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' " (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Massie (2006) 142 Cal.App.4th 365, 371.)
2. Section 186.22 and Prunty
Section 186.22 imposes an additional term of imprisonment on "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) For purposes of this sentence enhancement, a "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Id. subd. (f).) A "pattern of criminal gang activity" is "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain] offenses [identified in the statute], provided at least one of these offenses occurred after the effective date of [the law] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (Id. subd. (e).)
In Prunty, our state's Supreme Court "decide[d] what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Prunty, supra, 62 Cal.4th at p. 67.) The court held "the STEP Act requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang." (Ibid.) And "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision ](f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra. at p. 71.)
The Prunty court further held the STEP Act "requires that the gang the defendant sought to benefit, the individuals that the prosecution claims constitute an 'organization, association, or group,' and the group whose actions the prosecution alleges satisfy the 'primary activities' and predicate offense requirements of section 186.22[, subdivision ](f), must be one and the same." (Prunty, supra, 62 Cal.4th at pp. 75-76.) The prosecution does not need to demonstrate the exact scope of the criminal street gang, but the jury must be able to infer that the gang the defendant sought to benefit included the group that committed the primary activities and predicate offenses under the STEP Act. (Id. at p. 76.) "And where, as in this case, the alleged perpetrators of the predicate crimes under section 186.22[, subdivision ](f) are members of particular subsets, the behavior of those subsets' members must connect them to the gang the defendant sought to benefit." (Prunty, supra, at p. 80.)
Analysis
Here, there is substantial evidence to support the gang enhancement. The second amended information alleged defendant committed counts one through three "for the benefit of, at the direction of, or in association with, a criminal street gang, to wit, VARRIO DIAMOND NORTEÑOS, with the specific intent to promote, further, or assist in criminal conduct by gang members, pursuant to Penal Code [s]ection 186.22[, subdivision ](b)(1)."
At trial, the jury heard testimony from Steven and Tony that defendant asked if they were "looking for problems," flashed a handgun at them, followed them to their home, and "yelled 'Diamonds' or something like that" when he pointed a gun at them and fired. Detective Englefield testified defendant's reference to "diamonds" was a reference to the Varrio Diamonds Norteño gang.
Detective Sample, the prosecution's gang expert, testified Varrio Diamonds, which is a subset of the larger umbrella Norteño gang, is an ongoing organization or association with three or more members, whose primary objective is to gain money, power, and respect through selling drugs and firearms, stealing cars, pimping girls, committing homicides, robberies, shootings and stabbings, and other violent activities. Those affiliated with the Varrio Diamond Norteño gang often carry guns, wear red, use hand signs forming a diamond, and get tattoos such as "VDS," the letter "N," and the number 14, to represent their affiliation with and loyalty to the gang. Gang members try to gain respect by violence, intimidation, and fear.
Detective Sample opined that defendant was an active member of the Varrio Diamond Norteño gang based on defendant's multiple gang tattoos showing his affiliation with the Varrio Diamonds and the Norteños; numerous gang-related items, including clothing, gang graffiti, and photographs found in defendant's home; defendant's involvement in numerous gang-related crimes; and defendant's own admission of affiliation with the Varrio Diamond gang.
The record makes plain that defendant committed assault with a firearm, a felony, for the benefit of, at the direction of, or in association with the Varrio Diamond Norteño gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members pursuant to section 186.22, subdivision (b)(1), and that the Varrio Diamond Norteño gang is an "ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity" within the meaning of section 186.22, subdivision (f).
The Varrio Diamond Norteño gang's "pattern of criminal gang activity" was demonstrated by Detective Sample's testimony regarding two predicate offenses, one in December 2010, involving two Varrio Diamond gang members, Martin and Shultz, who got into an altercation with three men affiliated with Norteño subsets resulting in Martin's conviction for attempted manslaughter with a gang enhancement, and one in July 2012, involving a confrontation between two Varrio Diamond Norteño gang members and a Sureño gang member resulting in the Norteño gang members' convictions for assault with a deadly weapon with a gang enhancement.
Conceding he shouted "Diamonds" and had admitted to others that he belonged to the Varrio Diamond Norteños gang, defendant contends the prosecution nonetheless failed to identify "the precise criminal street gang" for whose benefit he allegedly acted. As support for his claim, he points to Detective Sample's response to a hypothetical question posed by the prosecution based on facts similar to those present here. Attorney Steber asked, "If a gang member is in the company of another gang member, and if that gang member feels disrespected in some way and he yells out words which -- which relate to gang symbols or sign which identify his particular gang before he points and shoots at the person who he felt disrespected him, under that hypothetical, what is your opinion about whether that crime would be committed for the benefit of, at the direction of or in association with a criminal street gang, with the specific intent to promote, further or assist criminal conduct by gang members?" Sample responded: "I believe it would, in fact, be committed for both the benefit of and association with the Norteño Criminal Street Gang. [¶] In that particular hypothetical, a violent act with two Norteños present or two gang members present would be seen as a violent act. [¶] That violent act would enhance the representation [sic] of those gang members, and that individual gang member -- that representation [sic] for violence makes that gang member more feared by the communities that that gang occupies, as well as any rivals that are aware of that particular violent reputation by putting a reference out to the gang that's obviously promoting the gang, taking responsibility for that violent act. [¶] But it's an easy way to promote who's responsible for that type of crime."
Defendant contends Detective Sample's response to the hypothetical indicates defendant committed the shooting for the benefit of and in association with " 'Norteños,' the umbrella group," but that was insufficient to support the gang enhancement because the prosecution only offered evidence implicating the Varrio Diamond subset, failing to link that subset with the Norteño umbrella group or provide evidence that the Varrio Diamond members regularly identified themselves as Norteños or that the subsets collaborated and strategized together or professed loyalty to each other, all of which is required by Prunty. The claim lacks merit.
In Prunty, the evidence showed that Prunty identified as Norteño generally and that he claimed membership in a Detroit Boulevard subset. (Prunty, supra, 62 Cal.4th at pp. 67-68.) The prosecution's gang expert, the same Detective John Sample who testified in this case, "testified about the Sacramento-area Norteño gang's general existence and origins, its use of shared signs, symbols, colors, and names, its primary activities, and the predicate activities of two local neighborhood subsets." (Id. at p. 67.) Specifically, "Sample testified that the Norteños are 'a Hispanic street gang active in Sacramento and throughout California' with about 1,500 local members. Sample explained that Sacramento-area Norteños are not associated with any particular 'turf' but are instead 'all over Sacramento' with 'a lot of subsets based on different neighborhoods.' Sample described the 'primary activities' of Sacramento-area Norteños as unlawful homicide, attempted murder, assault, firearms offenses, and weapons violations. Sample also testified that Norteños share common names, signs, and symbols, including names derived from 'the north, Norteños, [and] northerner,' the letter N, the number 14, and the color red. The 'Norteños' enemy,' moreover, is the Sureño street gang, whose members identify with the color blue, the letters S and M, and the number 13. Both the Norteños and the Sureños 'originated out of the California prison systems' in the 1960s and 1970s. The Sureños are associated with the Mexican Mafia prison gang, while the Norteños have a 'street gang association' with the Nuestra Familia, or NF, prison gang. Finally, Sample described various other aspects of Norteño and Sureño gang culture generally, including the appearance of gang graffiti and gang signs as well as each gang's use of common derogatory statements about its rivals." (Id. at p. 69)
There, the court held that "where the prosecution's evidence fell short is with respect to the predicate offenses." (Prunty, supra, 62 Cal.4th at p. 82.) The prosecution introduced evidence of two predicate offenses involving three alleged Sacramento Norteño subsets—Varrio Gardenland Norteños, Del Paso Heights Norteños, and Varrio Centro Norteños. (Ibid.) Sample characterized these groups as Norteños, but "he otherwise provided no evidence that could connect these groups to one another, or to an overarching Sacramento-area Norteño criminal street gang." (Ibid.) In particular, he "never addressed the Norteño gang's relationship to any of the subsets at issue. . . . Instead, Sample simply described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses." (Id. at p. 83.) While he testified that Norteño street gangs are associated with the Nuestra Familia prison gang, he did not testify about any relationship between any Nuestra Familia shot callers and any of the Sacramento-area Norteño subsets. (Ibid.) This testimony was insufficient "to permit the jury to infer that the organization, association, or group at issue included the subsets that committed the predicate offenses." (Id. at p. 81.) Prunty is inapposite.
Here, unlike Prunty, the gang defendant sought to benefit, the individuals that the prosecution claimed constituted an organization, association, or group, and the group whose actions the prosecution alleged satisfied the primary activities and predicate offense requirements of section 186.22, subdivision (f), were one and the same—the Varrio Diamond Norteño gang. And, unlike Prunty, the perpetrators of the predicate crimes were Varrio Diamond Norteño gang members, the same gang defendant sought to benefit.
Further, defendant's focus on Detective Sample's response to the hypothetical is misguided. " 'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." [Citation.]' [Citation.]" (People v. Vang (2011) 52 Cal.4th 1038, 1045.) " 'Such a hypothetical question must be rooted in facts shown by the evidence . . . .' [Citations.]" (Ibid.) " ' "The statement may assume facts within the limits of the evidence, not unfairly assembled, upon which the opinion of the expert is required, and considerable latitude must be allowed in the choice of facts as to the basis upon which to frame a hypothetical question." [Citation.] On the other hand, the expert's opinion may not be based "on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors . . . ." ' [Citations.]" (Id. at p. 1046.)
Defendant ignores the fact that the prosecution alleged the Varrio Diamond Norteño subset was in fact the gang defendant sought to benefit, and offered sufficient evidence, as discussed above, to prove the Varrio Diamond Norteños are a criminal street gang for purposes of section 186.22. Perhaps more importantly, the hypothetical made no reference whatsoever to a gang in general, nor did it make reference to which particular gang either of the hypothetical gang members belonged. Instead, the scenario focused on whether, in Sample's opinion, a gang member who felt disrespected and made gang-related statements or signs before pointing and shooting the person who disrespected him constituted a crime committed for the benefit of, at the direction or, or in association with a criminal street gang, with the specific intent to promote, further, or assist criminal conduct by gang members. The fact that Sample couched his affirmative response to the hypothetical in terms of "the Norteño Criminal Street Gang" is of no consequence because he did not express an opinion about whether the particular gang to be benefited in this case was the Norteño umbrella gang. (See People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 [expert expressed opinion about whether witnesses in hypothetical were intimidated, not whether particular witnesses in this case had been intimidated].)
Based on Sample's response to the hypothetical, together with the rest of his testimony, the testimony of other witnesses, and other evidence presented at trial, the jury could have reasonably concluded defendant committed the crimes for the benefit of a criminal street gang—the Varrio Diamond Norteño gang.
We conclude there was sufficient evidence to support the gang enhancement.
III
Retroactive Application of Senate Bill 620
On October 11, 2017, after defendant was sentenced but while his appeal was still pending, the Governor signed Senate Bill 620 which provided that, effective January 1, 2018, section 12022.53 was amended to permit the trial court to strike an enhancement for personally using (§ 12022.53, subd. (b)) or personally and intentionally discharging (§ 12022.53, subd. (c)) a firearm. (Stats. 2017, ch. 682, § 2.) As relevant here, the newly-amended section 12022.53 states as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
Section 1385 provides that a court may, "in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) Such discretion to dismiss "an action" pursuant to section 1385 extends to striking "factual allegations relevant to sentencing," including striking nonmandatory sentence enhancements. (People v. Hernandez (2000) 22 Cal.4th 512, 523, italics omitted; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530; People v. Jones (2007) 157 Cal.App.4th 1373, 1379-1381.)
Defendant contends, and the People concede, that because defendant's conviction is not yet final, the amendment to section 12022.53 would make him eligible for remand for resentencing and potential imposition of a reduced sentence and thus applies retroactively. (See People v. Brown (2012) 54 Cal.4th 314, 323-324 [exception to ordinary presumption that statutes operate prospectively where "the Legislature has amended a statute to reduce the punishment for a particular criminal offense"]; In re Estrada (1965) 63 Cal.2d 740, 748 [for a nonfinal conviction, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"]; People v. Francis (1969) 71 Cal.2d 66, 75-78 [remand required for resentencing where statute enacted during pending appeal gave trial court discretion to impose a lesser penalty].)
We agree with the parties that Senate Bill 620 applies retroactively where, as here, defendant was convicted and sentenced for a section 12022.53 enhancement and his conviction is not yet final. Under the newly amended section 12022.53, the trial court now has sentencing discretion as to the firearm enhancement. Because the record fails to foreclose the possibility of the trial court exercising that discretion, we will remand to permit the trial court to consider doing so.
DISPOSITION
The matter is remanded to the trial court to consider exercising its discretion under Senate Bill 620 as to defendant's section 12022.53 firearm enhancement. In all other respects, the judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. HOCH, J.