Opinion
G053284
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE PABLO CALIXTO, Defendant and Appellant.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland, Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12CF0351) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Judgment conditionally reversed and remanded with directions. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland, Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jose Pablo Calixto, a juvenile offender, was convicted in adult court of multiple robberies and street terrorism with attendant gang enhancements. Because appellant had suffered a prior robbery conviction, the court sentenced him as a second-strike offender to 26 years and 4 months in prison. On appeal, we reject appellant's claims there is insufficient evidence to support the gang enhancement on one of his robbery convictions, and the trial court erred in refusing to strike his prior robbery conviction in the interests of justice. However, we agree with appellant he is entitled to a transfer hearing under Proposition 57 to determine whether he should have been tried in juvenile court. Although Proposition 57 was not passed until after appellant was sentenced, we agree with this court's decision in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298 (Vela) that Proposition 57 applies retroactively to cases that are not yet final on appeal. Accordingly, we conditionally reverse the judgment and remand the matter for a transfer hearing.
FACTS
On the afternoon of February 3, 2012, teenagers Rolando Garcia and David Trujillo were riding their bikes along the riverbed in Santa Ana when they were confronted by appellant, then age 17, and two other members of the Santa Nita gang, David Hernandez and Victor Buenrostro. Appellant's group ordered the teens to give them their money and their bikes. Then they started rifling through their pockets and belongings. During the encounter, Garcia was punched in the back of the head, and Trujillo felt something touch his back. Someone in appellant's group also asked Garcia if he "banged," i.e., if he belonged to a gang, and he said no. Appellant and his companions ended up taking the teens' bikes, as well Trujillo's money and iPod and some cookies from Garcia's backpack. As they were walking away, the trio yelled out the name of their gang - Santa Nita - in a taunting fashion.
Garcia testified that during the encounter he heard someone in appellant's group say they had a knife, and Trujillo testified the group's members acted as if they may have had a weapon. However, on cross-examination, Garcia admitted it was Trujillo who said he had a knife (in an apparent bluff attempt), and Trujillo conceded he never actually saw a weapon. Both of them admitted they were scared during the incident.
Two days later, Vanessa Pickrell went to Santa Nita Park to get some fresh air after having an argument with her boyfriend. Not far from where she was sitting, there was a group of people that included appellant. At one point, appellant approached Pickrell on his bike, sat down next to her, and engaged her in conversation. Then, without warning, he grabbed her phone. When Pickrell tried to grab it back, appellant threw his bike at her, causing "a little laceration and bruises" on her leg. Pickrell got up and thought about going after appellant, but she changed her mind when Hernandez and Buenrostro suddenly appeared and blocked her path. Afraid to challenge the men, Pickrell watched as they left the area with appellant.
Armando Chacon testified as a gang expert for the prosecution. He stated gang members are expected to "put in work" for their gang, which means committing crimes and backing each other up. Gangs benefit from these activities, Chacon said, because they instill fear in others and bring in money for the gang. However, it's not just the gang that benefits; credit and respect is also given to the particular members who put in the work. Generally, the more crimes a gang member commits, the more respect he will receive. Even something as simple as "hitting someone up," i.e., asking about their gang affiliation, can bring a gang member respect because it is a way to assert authority and intimidate others.
Speaking of the Santa Nita gang in particular, Chacon said their claimed territory includes the areas where the robberies in this case occurred, and its primary activities are robbery and narcotics sales. In response to a hypothetical question, Chacon opined if a pair of robberies were carried out by Santa Nita gang members under the circumstances presented in this case, the crimes would be committed in association with, and would benefit, that gang. And that would be true regardless of whether the robbers yelled out the name of their gang or hit the victims up during the offenses. Chacon said that even if the robbers did not do those things, the mere act of taking property from another by force or fear would help their gang solidify control over their territory and enhance its reputation as a formidable organization.
The jury convicted appellant of the four counts charged: three of robbery and one of active participation in a criminal street gang, aka, street terrorism. (Pen. Code, §§ 211, 186.22, subd. (a).) It also found true enhancement allegations appellant committed the robberies for the benefit of his gang. (§ 186.22, subd. (b).) In a bifurcated proceeding, the trial court found appellant had suffered a prior serious felony conviction for robbery (§ 667, subd. (a)(1)) and that the conviction also constituted a "strike" under the Three Strikes law (§§ 667, subds. (d), (e)(2), 1170.12, subd. (b), (c)(2)). While recognizing it had the authority to dismiss the strike in the interests of justice (§ 1385), the court declined to do so. Instead, it sentenced appellant as a second-strike offender to 26 years and 4 months in prison, representing 8 years for the robberies, 13 years and 4 months for the gang enhancements, and 5 years for the prior serious felony conviction.
Unless noted otherwise, all further statutory references are to the Penal Code.
The court stayed appellant's sentence for street terrorism under section 654. As for appellant's cohorts, Hernandez and Buenrostro, the record shows they pleaded guilty and were sentenced to prison terms of three and seven years, respectively. --------
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence to support the jury's true finding on the gang enhancement attendant to the Pickrell robbery. The record shows otherwise.
The standard of review for assessing the sufficiency of the evidence to support a criminal conviction is "highly deferential." (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to "review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence . . . from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) In so doing, we do not reweigh the evidence or reevaluate the credibility of the witnesses who testified at trial; rather, "[w]e presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (Ibid.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [it]."' [Citation.]" (People v. Cravens (2012) 53 Cal.4th 500, 508.) The same standard applies when, as here, we are reviewing the sufficiency of the evidence to support a true finding on an enhancement allegation. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
Section 186.22 authorizes a sentence enhancement when the defendant 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).) Appellant's argument is targeted at the intent element of the statute. In his view, there is not substantial evidence to support the jury's finding that, in robbing Pickrell, he specifically intended to promote, further, or assist in any criminal conduct by gang members. We disagree.
As our Supreme Court has explained, the intent requirement of section 1866.22, subdivision (b) is met "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang[.]" (People v. Albillar, supra, 51 Cal.4th at p. 68.) Appellant admits he robbed Pickrell with his fellow gang members Hernandez and Buenrostro. However, he argues the record is devoid of substantial evidence he intended to commit the crime with them.
In so arguing, appellant points there is no evidence he knew Hernandez and Buenrostro were in the area when he took Pickrell's phone, no evidence he summoned them to facilitate his escape, and no evidence of when they actually approached Pickrell. Appellant maintains that under these circumstances, it is reasonable to infer "Hernandez and Buenrostro arrived at the park separately from [him], saw the scuffle between [him] and Pickrell after [he] took [her] phone, and intervened to help on their own initiative," not at his behest.
Appellant is correct: that is a reasonable interpretation of the evidence. That could have happened. However, as explained above, that possibility does not warrant a reversal if the facts also provide a reasonable justification for the jury's verdict. Here they do. In fact, given that appellant, Hernandez and Buenrostro were all members of a gang whose primary activities are robbery, and in light of Chacon's expert testimony that gang members are expected to back each other up when they commit crimes, it would be rather surprising if they were not all in on the robbery together. We don't know exactly when Hernandez and Buenrostro came over to help appellant. But before the robbery occurred, appellant was standing in a group of people near Pickrell, and after it happened, all three of them left the scene together. Based on these facts, and the record as a whole, the jury could reasonably find appellant intended to rob Pickrell with members of his gang. Because that finding enjoys substantial evidentiary support, we are powerless to disturb it.
Sentencing Issue
Appellant also contends the court abused its discretion in failing to strike his prior strike conviction. Again, we disagree.
Trial courts are empowered to dismiss a prior strike conviction if it would further the ends of justice. (§ 1385, subd. (a); People v. Superior Court (Romero) 13 Cal.4th 497, 507-508.) Under that standard, the court must consider both the constitutional rights of the defendant and the societal interest in ensuring the fair prosecution of criminal cases. (Id. at p. 530.) Ultimately, the court must determine "whether, in light of the nature and circumstances of his present felonies and prior [convictions], and the particulars of his background, character, and prospects, the defendant may be deemed outside the [spirit of the Three Strikes law], in whole or in part, and hence should be treated as though he had not previously been convicted of one or more [strikes]." (People v. Williams (1998) 17 Cal.4th 148, 161.)
On appeal, a trial court's refusal to dismiss a prior strike conviction is reviewed for an abuse of discretion - a most deferential standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) Indeed, only in "an extraordinary case - where the relevant factors described [above] manifestly support the [dismissing] of a prior conviction and no reasonable minds could differ" would the failure to dismiss constitute an abuse of discretion. (Id. at p. 378.)
The record shows appellant came to the United States from Mexico when he was a child. When he was 14, his parents divorced and most of his family moved to Texas. Around this time appellant joined the Santa Nita gang and began using drugs and alcohol. At age 15, he was adjudicated a ward of the juvenile court for writing gang graffiti on a bus bench, and a year later, he was arrested for fighting and possessing brass knuckles at school. Appellant's school attendance was poor, as he continued to maintain his gang ties.
In 2011, at age 17, appellant was convicted in adult court of robbery - his first strike - and street terrorism. According to the records in that case, appellant and another Santa Nita gang member ordered an ice cream vendor to give them money because he was doing business in their neighborhood. They then took some of the vendor's goods and threatened to kill him if he returned. As part of his plea agreement, appellant was jailed and then placed on probation for three years. However, within a year of his release, he committed the crimes involved in the present case.
While in custody for those crimes, appellant has sustained seven major rule violations, including fighting and possessing contraband. However, he did manage to earn his high school degree. He told the probation officer that when he gets out of prison he wants to earn a college degree, so he can help support his family. At sentencing, defense counsel asked the court for leniency on the basis appellant's crimes have been relatively unsophisticated. He also pointed out appellant comes from a broken home and has never received any training or counseling to help set him on the right path. Nonetheless, the court found it troubling that the victim of appellant's prior robbery was threatened with his life simply for trying to make a living in appellant's neighborhood. Viewing appellant as a danger to society, the court declined to strike that conviction and sentenced him to over a quarter century in prison, as noted above.
In challenging that ruling, appellant notes that none of his robberies involved the use of a weapon, and none of his victims received anything more than minor injuries. However, his victims were subjected to threats and intimidation, which no doubt undermined their sense of safety and security. Not only that, appellant's crimes have been escalating in severity, his performance on probation has been poor, and he shows no signs of disassociating himself from his gang. Even his post-custody behavior has been troublesome at times. The trial court determined this is not an extraordinary case that manifestly supports dismissal of the prior strike, and we cannot see that as an abuse of its discretion. Therefore, the trial court's ruling must stand. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
Proposition 57
We now turn to whether appellant is entitled to the protections afforded under Proposition 57, which makes it harder for juvenile offenders to be tried in adult court. Since the initiative was not passed until after appellant committed his crimes, respondent contends it does not apply retroactively to his case. Based on the reasoning of our prior opinion in Vela, supra, 11 Cal.App.5th 68, we disagree.
Generally, when minors commit a crime, their case is handled in the juvenile justice system, unless they are found to be unfit for treatment under the juvenile court law. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 548.) However, at the time this case arose, the law - per Proposition 21 - required prosecutors to file specified charges against certain juveniles directly in adult court, and it gave them the discretion to direct file in adult court in other situations involving juvenile offenders. (Id. at pp. 549-550.) In these direct filing cases, the law did not require a judicial declaration of unfitness under the juvenile court law as a prerequisite to prosecution in adult court. (Ibid.)
Appellant was tried when Proposition 21 was still in effect. Because he was charged with crimes that fit the bill for discretionary direct filing, the prosecutor was allowed to file them in adult court without judicial authorization. Thus, appellant was tried in adult court without a hearing to determine whether he was a fit and proper subject for treatment in the juvenile justice system.
That could not have happened if appellant's crimes had occurred after November 9, 2016, which is the day after Proposition 57 was passed and the initiative became effective. That's because Proposition 57 repealed the provisions of Proposition 21 that allowed for criminal charges against juveniles to be filed directly in adult court. (See § 4 of Proposition 57, formally known as The Public Safety and Rehabilitation Act of 2016.) However, while the initiative is clear in that regard, it is silent as to whether it applies retroactively to past cases or only to those crimes that were committed after it went into effective.
This issue has divided the Courts of Appeal. (See, e.g., People v. Marquez (2017) 11 Cal.App.5th 816, review granted July 26, 2017, S242660 [Proposition 57 is not retroactive]; People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017, S241323 [same]; People v. Pineda (2017) 14 Cal.App.5th 469 [Proposition 57 is retroactive]; People v. Vela, supra, 11 Cal.App.5th 68 [same].) Because the issue is pending before the California Supreme Court, which will have the final word on the matter, our analysis will be relatively brief.
The general rule is that changes in criminal laws are presumed to operate prospectively unless they contain an express declaration to the contrary. (§ 3.) However, in In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Supreme Court created an exception when the change lessons the punishment "for a particular crime[.]" (Id. at p. 745.) In that situation, the court explained, "It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid.)
The cases which have held Proposition 57 does not come within the Estrada exception have focused on the fact the initiative does not necessarily mitigate punishment for any one particular crime. The Attorney General raises that point in this case, as well, in urging us to find the Estrada exception inapt. However, as we explained in Vela, both in Estrada itself and in other cases, the Supreme Court has applied statutory changes retroactively, even though they did not necessarily mitigate the penalty for the particular crime the defendant had violated in that particular case. (Vela, supra, 11 Cal.App.5th at p. 80, citing Estrada, supra, 63 Cal.2d at p. 743 and People v. Francis (1969) 71 Cal.2d 66, 75-76; see also People v. Benefield (1977) 67 Cal.App.3d 51.)
Moreover, applying Proposition 57 retroactively is consistent with the recent "sea change in penology regarding the relative culpability and rehabilitation possibilities for juvenile offenders" and with the intent of the initiative, which is to emphasize rehabilitation by "'"[r]equir[ing] a judge, not a prosecutor, to decide whether juveniles should be tried in adult court."' [Citation.]" (Vela, supra, 11 Cal.App.5th at p. 75.) Therefore, we conclude Proposition 57 applies retroactively to this case.
As a back-up argument, the Attorney General claims any error in failing to apply the initiative to appellant is harmless, given his criminal history. Even though appellant has a fairly lengthy record, and we affirmed the trial court's discretionary decision not to strike his prior robbery conviction, the probation report in this case focuses primarily on appellant's involvement in the criminal justice system. It does not provide much insight into other factors that bear on his suitability for treatment in the juvenile justice system, such as his "maturity, intellectual capacity, and physical, mental and emotional health" at the time of his crimes, or his "potential to grow and mature." (Welf. & Inst. Code, § 707, subds. (a)(1)(A)(ii) & (B)(ii).) We are thus in no position to assess appellant's suitability. That being the case, we will adhere to the procedure utilized in Vela and remand the matter to permit the juvenile court to conduct a hearing on that issue. (See Vela, supra, 11 Cal.App.5th at pp. 81-82.)
DISPOSITION
The judgment is conditionally reversed and the matter is remanded to the juvenile court to conduct a transfer hearing pursuant to Proposition 57. If, at the hearing, the juvenile court determines it would have transferred appellant to adult court, the judgment shall be reinstated. If the juvenile court determines it would not have transferred appellant to adult court, appellant's criminal convictions and enhancements will be deemed to be juvenile adjudications, and the court shall conduct a hearing to decide on an appropriate disposition in the case.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.