Opinion
C080139 C080516
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO CASTILLO et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. DANIEL ESPINOSA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F03504)
A jury found defendants Francisco Castillo, Eduardo Aguayo, and Daniel Espinosa guilty of robbery for the benefit of the Sureño criminal street gang, and found that Castillo personally used a firearm pursuant to section 12022.53, subdivision (b). The jury also found Espinosa guilty of evading a peace officer and willful obstruction. In a bifurcated trial, the court found Espinosa had a prior strike conviction, three prior serious felony convictions, and had served multiple prior prison terms. In this consolidated appeal, all three defendants challenge the jury's true finding of their gang enhancement on two grounds--first, the prosecution did not provide sufficient evidence to support the gang enhancement; and second, the court erroneously admitted case-specific hearsay evidence concerning defendants' gang membership in violation of People v. Sanchez (2016) 63 Cal.4th 665. Castillo and Espinosa also contend the trial court had a sua sponte duty to instruct the jury on voluntary intoxication and theft, while Espinosa alone contends the court should have instructed the jury that it was required to find a sufficient relationship between defendants' subset and the larger Sureño criminal street gang. Castillo brings a sentencing claim arguing that remand of his case is necessary for the court to exercise its discretion as to whether to strike his firearm enhancement under the recent amendment to Penal Code section 12022.53.
We conclude the prosecution did not present evidence proving an "associational or organizational connection" between the broader umbrella Sureño criminal street gang defendants were alleged to have benefitted and the Vicky's Town Sureño subset of which defendants were members, as required by People v. Prunty (2015) 62 Cal.4th 59, at page 67 (Prunty). We also agree with Castillo that his case must be remanded to allow the trial court to exercise its discretion as to whether to strike his firearm enhancement. Because we conclude the gang enhancement lacked sufficient evidence, we do not consider defendants' other contentions regarding their gang enhancement. We do, however, consider and reject Castillo and Espinosa's contention that the jury should have been instructed on voluntary intoxication and the lesser included offense of theft.
We note this case was tried prior to the decision in Prunty.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Robbery
Kevin Ono worked at a 76 gas station in Sacramento. On May 22, 2014, at 7:10 p.m., he was behind the counter helping a customer when Castillo and Aguayo came into the store. When the customer Ono was helping left, Castillo asked for a Swisher cigar and then walked behind the counter while pointing a silver revolver at Ono and demanding money. Ono gave Aguayo $100 from the register and then the two men left the store.
After leaving the store, Castillo and Aguayo ran to a nearby car, where Espinosa and Jesus Calderas were waiting. Espinosa drove the group away from the scene where they were then spotted at a red light by Sacramento Police Officer Sarah Stambaugh, who was responding to the reported robbery. Officer Stambaugh stopped her patrol car near the car defendants were in and approached them on foot while pointing her gun at them. She told the men to show her their hands. A couple of the men looked at her and said "something to the effect of 'fuck you' " before driving away. Officer Stambaugh got back in her patrol car and pursued defendants onto the freeway. As defendants were driving onto the freeway, Officer Stambaugh saw someone throw a black handgun from the right side of the car. The car also hit a curb and damaged its front right tire. While driving on the freeway, Officer Stambaugh saw two additional handguns thrown from the car. Eventually, the car lost speed due to the damaged tire and stopped. The black handgun was later recovered by Sacramento Police Officer Tim McMahan, but the other two handguns were not found.
Castillo testified that he acted alone when robbing the gas station. On the day of the offense, Castillo and the three other men were at a party in Stockton before driving to Galt to go to another party. Castillo was "out of it" because he drank at the party in Stockton and in Galt, smoked a "big blunt" of marijuana, and had been awake for two days because of his methamphetamine habit. When the four men left the party in Galt, Castillo passed out in the car. When he awakened, the group was in Sacramento. Castillo told Espinosa, who was driving, to pull over into a gas station so that Castillo could buy a Swisher cigar to "make another blunt." Castillo got out of the car, but did not notice that anybody had accompanied him until he was next to the store and saw Aguayo. Castillo decided to rob the gas station because he wanted to keep partying and needed money to buy more drugs. At the time of the robbery, he was "really pretty messed up. [He] was really sleepy, tired, exhausted when everything happened, just--everything was really slow." Once the car chase started, Castillo did not notice what was going on and did not remember what he did with his gun, but he could have thrown it out of the car. Two and a half hours after his arrest, Castillo "passed out" in the back of a patrol car because he "was really messed up" from being drunk and high on marijuana and also from being awake for two days while coming down from methamphetamine.
Defendants were charged with one count of second degree robbery. The prosecutor alleged "that the defendants . . . committed the above offense(s) for the benefit of, at the direction of, or in association with a criminal street gang, to wit, SUREÑOS, with the specific intent to promote, further or assist in criminal conduct by gang members, pursuant to Penal Code Section 186.22[, subdivision] (b)(1)." The prosecution also alleged multiple firearm enhancements. Espinosa was also charged with being an accessory, evading a peace officer, and willful obstruction. It was also alleged that Espinosa had been convicted of a prior strike conviction and had served three prior prison terms.
All further section references are to the Penal Code.
B
Gang Evidence
Stockton Police Officer Paul Gutierrez testified as a gang expert who specializes in Sureño and Asian criminal street gangs in Stockton. He worked for the Stockton Police Department for 15 years, during 12 of which he specifically worked as a gang detective. Officer Gutierrez encountered Sureño gang members on a regular basis, sometimes for the purpose of investigating a crime and sometimes through consensual encounters.
There are multiple subsets of Sureño gangs in Stockton, one of which is the Vicky's Town, also known as "VST" Sureños. The others are the Playboys, the South Side Pride, and individual Sureño gang members who do not identify with particular subsets. These subsets all fall under the Sureño street gang umbrella because they share a belief system, mode of operation, and enemy. In Stockton, the Sureño subsets do not rival each other because there are Norteño gangs in the city that they all consider a rival. In Southern California, this is not the case, and there is Sureño-on-Sureño crime because there are no Norteño gangs for the Sureño gangs to rival, thus each Sureño subset is loyal to its neighborhood. Vicky's Town Sureños typically rival Norteño gangs; however, they also rival other gangs depending on the current politics on the streets.
Sureños share a common identifying sign or symbol in the number 13, which includes any form of the number such as Roman numerals or dots. Officer Gutierrez has seen this number represented in tattoos as one dot on one hand and three dots on the other; however, he has also seen Sureño gang members with a single tattoo of three dots. Sureño gang members also share the symbol "Sur," meaning south, "Sur Trece," meaning south 13, or "Sureño." Vicky's Town Sureño gang members identify with the color blue, as do Sureños in general. It is also common among Sureño related gangs, including Vicky's Town Sureños, to become a member by being jumped into the gang. This practice consists of three members of the gang assaulting a prospective member for 13 seconds.
When describing the criminal activity Vicky's Town Sureños engaged in, Officer Gutierrez testified, "[w]e've had murders, we've had auto thefts, we have the sales of narcotics, trafficking of narcotics, possession of firearms, robbery, shootings, felony assaults." He then testified about two predicate offenses. The first predicate offense occurred on October 22, 2012, and involved Ramiro Terrazas and Manuel Tomelloso, who were each convicted of manslaughter and a gang enhancement. The two men were at a party with other Vicky's Town Sureño gang members when someone shot into the apartment, killing a fellow gang member. Terrazas and Tomelloso grabbed a nearby rifle and killed a black man they suspected of shooting into the apartment. The second predicate offense occurred on April 15, 2013, and involved Angel Vidaca, who was convicted of being a gang member in possession of a firearm. Vidaca was contacted with other gang members at a gas station, at which time officers found a gun in Vidaca's possession.
The Stockton Police Department has a nine-criterion system for validating gang members, which includes admission, tattoos, association with other members of the same gang, participation in criminal offenses with other members of the same gang, and possession of gang-related photographs or letters. Two of the nine criteria are sufficient to establish membership. In Stockton, there are almost 70 documented Vicky's Town Sureño gang members or associates.
In Officer Gutierrez's opinion, Aguayo was a Vicky's Town Sureño gang member. The officer based this opinion on Aguayo's tattoos, Facebook and YouTube posts, photographs, and admissions, including one Aguayo personally made to Officer Gutierrez. Photographs of Aguayo showed he had "VST," meaning Vicky's Town Sureño, tattooed on his lower back, and "SUR," "Vicky's Town," and "13" tattooed on his right arm. A screen shot from Facebook showed Aguayo had commented on a post, " '[w]hat, foo, I'm Sur VST.' " A screen shot from YouTube showed Aguayo commented on a post about a former Norteño gang member " 'reach[ing] out to youths in gangs' " as being a " 'rat.' " A photograph with Aguayo and other documented Vicky's Town Sureño gang members, including Tomelloso and Terrazas, was also admitted into evidence. In the photograph Aguayo and the other men could be seen flashing gang signs. Aguayo most recently admitted to gang membership during a jail interview in 2014. Officer Guiterrez also contacted Aguayo in 2013 during Vidaca's gun arrest, at which time Aguayo was in the company of other validated Vicky's Town Sureño gang members and admitted to being a Vicky's Town Sureño gang member for over 20 years. Also, in 2005 a shooting occurred at Aguayo's house for which Aguayo thought Norteño gang members were responsible.
In Officer Gutierrez's opinion, Espinosa was also a Vicky's Town Sureño gang member. He based this opinion on Espinosa's tattoos and police contacts, to which Officer Gutierrez was not a party. Photos of Espinosa's tattoos were admitted into evidence and showed he had a "1" on his right shoulder and a "3" on his left, with "SUR" tattooed on his chest and "Vicky's Town" on his abdomen. He also had a tattoo of a street sign with "Vicky's Town" printed on it and a tattoo of "Stockton" on his back. Espinosa was arrested with another Sureño gang member in 2000 for participating in a gang fight between Norteños and Sureños. He was also contacted in 2011 while carrying a firearm in a transient encampment known to house homeless Sureños. Officer Gutierrez testified that firearms are a common tool among gang members that provide safety and security and command respect. Espinosa was later contacted in the same encampment in 2013 with another validated gang member who had both a Vicky's Town Sureño and a Playboy tattoo. Most recently, Espinosa admitted to gang membership in February 2014 during a jail classification interview. In May 2014, however, he denied gang membership during a jail classification interview.
In Officer Gutierrez's opinion, Castillo was a Vicky's Town Sureño gang member. He based this opinion on Castillo's tattoos, Facebook photographs, and a prior arrest with another gang member. Photographs showed that Castillo had three dots tattooed on his elbow and "209" tattooed on his pinky finger, which is the area code for San Joaquin County. In a Facebook photograph admitted into evidence, Castillo can be seen wearing a Dallas Cowboys jersey, with Aguayo being the first person to comment on the photo. Another Facebook photograph showed Castillo flashing a gang sign. California Highway Patrol Officer Daniel Martinez testified about Castillo's prior arrest on April 7, 2014, where he was found in possession of a gun while in the presence of Espinosa. Castillo admitted to Officer Martinez that the gun was his. Officer Gutierrez thought this arrest was significant because Castillo was contacted with a known gang member and a firearm was present.
Castillo testified that he was not a Vicky's Town Sureño gang member and did not know Espinosa or Aguayo were members. Castillo admitted that he was arrested for possessing a firearm when he was with Espinosa and claimed he bought the gun for protection. He also admitted he got a tattoo of three dots while in the sixth grade and was suspended in seventh grade for carving "Sur Trece VMS" on a desk. He explained that he did both because he was hanging out with a bad crowd and did not know what the symbols meant. He also admitted that he got the "209" tattoo in high school. Castillo explained the picture of him "throwing up" gang signs was actually him and a friend showing signs of where they lived, which had nothing to do with a gang.
In Officer Gutierrez's opinion the robbery of the gas station was committed for the benefit of "their gang" because the crime involved gang members working together towards a common goal of monetary gain. Further, the crime included common traits of "criming in," which is a practice where a young prospective gang member "earn[s] his stripes" and gains respect within a gang by committing a crime. At the time of the offense, Castillo was 22 years old, while Espinosa was 10 years older than Castillo and both Aguayo and Calderas were 14 years older than Castillo. Both Espinosa and Aguayo are well-respected gang members within the "Vicky's Town Sureños or of this Sureño street gang." As a young gang member, Castillo could be punished for committing a crime in the presence of older gang members if he was not directed to commit the crime by them. It is also common to see younger gang members take the blame for committing a crime when the crime is committed with older gang members. The fact that nobody wore gang colors or indicated their loyalty to the Vicky's Town Sureños did not change Officer Gutierrez's opinion that the robbery was committed to benefit a street gang.
Further, it is common for Vicky's Town Sureños to leave Stockton to commit crimes. Because the gang is relatively small, members are well known in the city. They leave town to commit crimes so they can maintain anonymity. Officer Gutierrez provided three examples of this practice. The first example occurred in Sacramento where four Vicky's Town Sureño gang members were arrested for stealing a television. The second example occurred in Tehachapi where two Vicky's Town Sureño gang members, including Jesus Caldera, were arrested following a traffic stop where a firearm was discovered. And the third example occurred in Livermore where three Vicky's Town Sureño gang members were arrested for shooting at a suspected Norteño gang member.
Castillo, Aguayo, and Espinosa were convicted as principal participants of committing second degree robbery for the benefit of the "SUREÑO" criminal street gang. The jury further found that Castillo personally used a firearm during the commission of the robbery. The jury also found Espinosa guilty of evading a peace officer and willful obstruction. The court later found Espinosa's strike conviction and prison term allegations true. The jury was not instructed, nor did any defense counsel request an instruction on, voluntary intoxication or the lesser included offense of theft. Neither did any defense counsel object to Officer Gutierrez's testimony on hearsay or confrontation grounds.
DISCUSSION
I
Insufficient Evidence Supported The Jury's True Finding
On The Gang Enhancement
Defendants contend insufficient evidence supported the jury's true finding of their gang enhancement for two reasons. First, they argue the evidence did not sufficiently prove "an associational or organizational connection" between the broader Sureño gang they were alleged and found to have benefitted and the subset the evidence showed they belonged to--the Vicky's Town Sureños--as required by Prunty. Second, they argue insufficient evidence demonstrated the Vicky's Town Sureños' primary activities as required by the Street Terrorism Enforcement and Prevention Act (STEP Act).
We agree with defendants' first contention and thus do not reach their second. The prosecution alleged and the jury found that defendants benefitted the Sureño criminal street gang when they committed the robbery. When attempting to prove this, however, the prosecution offered evidence showing only that defendants were members of the Vicky's Town Sureño subset and that members of the Vicky's Town Sureño subset committed the primary activities required by the STEP Act. Besides the evidence that the Vicky's Town Sureños shared a belief system, sign or symbol, and enemy with the Sureño umbrella gang, no evidence demonstrated the "associational or organizational connection" required by Prunty. Accordingly, we must reverse defendants' gang enhancement.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced 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." (People v. Albillar (2010) 51 Cal.4th 47, 59-60; accord, Prunty, supra, 62 Cal.4th at p. 71 ["We apply a deferential standard of review when evaluating . . . whether the evidence . . . [is] sufficient to satisfy the STEP Act's [criminal street gang] definition"].) "This standard applies whether direct or circumstantial evidence is involved." (People v. Mendez (2010) 188 Cal.App.4th 47, 56; see also People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.)
Section 186.22, subdivision (b)(1) authorizes enhanced criminal punishment for "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." 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 [certain enumerated] criminal acts[,] . . . having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) A " 'pattern of criminal gang activity' " means "the commission of . . . or conviction of two or more of [certain enumerated offenses]" that "were committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).)
In Prunty, 62 Cal.4th at page 67, our Supreme Court considered "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." The court concluded that "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." (Id. at p. 71, italics added.) "Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22[, subdivision] (f)--i.e., that the group committed the predicate offenses and engaged in criminal primary activities--and that the defendant sought to benefit under 186.22[, subdivision] (b)." (Id. at p. 72.) Here, the prosecution alleged defendants sought to benefit " 'a broader umbrella gang,' " but proved the conduct of one gang subset; thus Prunty's requirement of proof of some "associational or organizational connection" appears to apply.
The People attempt to avoid this outcome by arguing Prunty is inapplicable to this case because the facts are distinguishable. In Prunty, the prosecution held Norteños out as the "criminal street gang" the defendant sought to benefit, but the predicate offenses offered to prove a "pattern of criminal gang activity" were committed by members of different gang subsets. The prosecution failed to provide sufficient evidence of a link between the subsets and the umbrella group to show the subsets self-identified as associating with the umbrella group and demonstrated that association through their conduct. (Prunty, supra, 62 Cal.4th at p. 94 (conc. & dis. opn. of Corrigan, J.).) "The critical shortcoming in the prosecution's evidence [in Prunty] was the lack of an associational or organizational connection between the two alleged Norteño subsets that committed the requisite predicate offenses, and the larger Norteño gang that Prunty allegedly assaulted [the victim] to benefit." (Id. at p. 81.)
The People argue that this case is different because the prosecutor proved that the predicate offenses were committed by members of the subset defendants belonged to, allowing "the jury to reasonably infer that the 'criminal street gang' . . . defendant[s] sought to benefit--or which directed or associated with . . . defendant[s]--included the 'group' that committed the primary activities and predicate offenses." (Prunty, supra, 62 Cal.4th at p. 76.) In other words, the People argue, Prunty is inapplicable because the gang defendants sought to benefit and the gang that committed the predicate offenses were the same--the Vicky's Town Sureños.
The problem with the People's argument is that the prosecution alleged and the jury found that the gang defendants sought to benefit was the broader umbrella Sureño gang, not the Vicky's Town Sureños. Based on this jury finding, defendants' case presents a similar dilemma to that in Prunty. In Prunty, the prosecution relied on the conduct of Norteño subsets to prove the predicate offenses; however, it alleged that the defendant benefited the broader umbrella Norteño gang. Thus, the prosecution was required to prove the subsets that committed the predicate offenses associated with the umbrella gang the defendant was alleged to have benefited. (Prunty, supra, 62 Cal.4th at pp. 81-83.) Here, the prosecution relied on conduct committed by Vicky's Town Sureño gang members to prove the predicate offenses. However, the prosecution alleged that defendants sought to benefit the broader umbrella Sureño gang. Thus, just like in Prunty, the prosecution was required to prove the subset it alleged committed the predicate offenses associated with the broader umbrella gang it alleged defendants benefited.
As stated, the enhancement alleged here was "that the defendants . . . committed the above offense(s) for the benefit of, at the direction of, or in association with a criminal street gang, to wit, SUREÑOS, with the specific intent to promote, further or assist in criminal conduct by gang members, pursuant to Penal Code Section 186.22[, subdivision] (b)(1)." The verdict forms also stated the gang defendants benefitted was the broader Sureño criminal street gang. The People argue that although the information and the verdict forms state defendants benefitted the Sureño street gang, the prosecution's theory during trial was that they in fact sought to benefit the Vicky's Town Sureños. Thus, the People reason, the prosecution proved that defendants benefited the same gang that committed the predicate offenses--the Vicky's Town Sureños. We are not persuaded. The People's argument would require us to ignore an explicit factual finding of the jury and the specific theory the prosecution gave defendants notice of by the information--that defendants acted to benefit the Sureño street gang--in favor of the prosecutor's comments during argument that held no evidentiary value and were not confirmed by the jury's factual finding. Because the prosecution notified defendants it sought to convict them on a specific theory and the jury found the gang enhancement true based on that theory, the only question for us is whether sufficient evidence supported that theory.
Presumably after Prunty, it would be sufficient to allege the conduct was to benefit the Vicky's Town Sureños without reference to the larger Sureño gang.
The question now is whether the prosecution presented sufficient evidence to prove there was "an associational or organizational connection" between the Vicky's Town Sureños and the umbrella gang known as the Sureños. (Prunty, supra, 62 Cal.4th at p. 67.) The Prunty court identified several types of evidence the prosecution may present to demonstrate the associational relationship between a gang and one of its subsets. The prosecution may, for instance, "show that various subset members exhibit behavior showing their self-identification with a larger group." (Id. at p. 71.) This self-identification evidence can include facts that demonstrate two gang subsets "mutually acknowledge one another as part of that same organization," but it is insufficient to show "merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization." (Id. at p. 79.) The prosecution may also elicit testimony that alleged subsets of an overarching gang "use . . . the same 'turf,' " and routinely act to protect the same territory. (Id. at p. 73.) Facts indicating two or more subsets have " 'work[ed] in concert to commit a crime' " (id. at p. 78) or " 'hang out together' and 'back up each other' " (ibid.) also may help demonstrate the requisite informal association among subsets alleged to comprise a larger criminal street gang. "The [STEP] Act indicates that a group must be united by more than shared colors, names, and other symbols." (Id. at p. 74.) "[T]he [STEP] Act's text or structure [does not] support the conclusion that a common enemy (or similar evidence of a loose common ideology) is enough to demonstrate that various subsets are part of a single criminal street gang. The [STEP] Act's use of the phrase 'organization, association, or group' suggests that subsets of a criminal street gang must be united by their activities, not simply by their viewpoints." (Id. at p. 75.)
"The critical shortcoming in the prosecution's evidence [in Prunty] was the lack of an associational or organizational connection between the two alleged Norteño subsets that committed the requisite predicate offenses . . . and the larger Norteño gang that Prunty allegedly assaulted [the victim] to benefit." (Prunty, supra, 62 Cal.4th at p. 81.) That is, the prosecution introduced evidence of two predicate offenses involving three alleged Norteño subsets (different than the subset to which the defendant belonged), but the prosecution's gang expert never addressed the overarching Norteño gang's relationship to these three subsets and instead "simply described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses." (Id. at pp. 82-83.) That, of course, meant the prosecution's gang expert never testified that "the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that [the] defendant sought to benefit." (Id. at p. 82.)
Here, Officer Gutierrez testified the broader Sureño criminal street gang umbrella in the Stockton area consisted of the Vicky's Town Sureño, South Side Pride, and the Playboy subsets, along with some individual gang members that did not identify with a particular group. To establish a relationship existed between the Sureños and the Vicky's Town Sureños, Officer Gutierrez testified that they shared a belief system, mode of operation, and common enemy. He stated that the Stockton Sureño subsets rivaled the Norteño criminal street gang and not each other, but that, while the Vicky's Town Sureños typically rivaled the Norteños, they also rivaled gangs with adverse interests. Sureños and Vicky's Town Sureños shared the same signs and symbols, including the color blue, the number 13, dot tattoos, and the name "Sureño," "Sur," and "Sur Trece." This testimony linked the Vicky's Town Sureños with the broader Sureño umbrella gang merely through signs and symbols and a shared enemy, which Prunty declared insufficient. (Prunty, supra, 62 Cal.4th at pp. 74-75.)
The predicate offenses Officer Gutierrez testified about involved only gang members known to be Vicky's Town Sureños. This included offenses committed by Vicky's Town Sureños outside the Stockton city limits. Officer Gutierrez did not testify that any of these offenses were committed in association with other Sureño gang members besides those specifically belonging to the Vicky's Town Sureño subset. Officer Gutierrez also did not testify that the Vicky's Town Sureños and the broader Sureño umbrella gang shared territory or committed crimes together. He did not testify that defendants had been contacted with any other gang members beside those belonging to the Vicky's Town Sureños. Given Officer Gutierrez's testimony, it appears that the Vicky's Town Sureño gang members associate only with other Vicky's Town Sureños and commit crimes only with other Vicky's Town Sureños, not with members who are part of a broader Sureño street gang.
The only evidence presented showing some sort of connection between the Vicky's Town Sureños and the umbrella gang was that each defendant had tattoos showing they self-identified with the broader Sureño gang and Espinosa lived in a transient encampment known to house homeless Sureños and was once contacted with another gang member who had both a Vicky's Town Sureño and Playboy tattoo. Further, Aguayo called a former Norteño gang member a "rat" in a YouTube post. These commonalities do not show that the Vicky's Town Sureños were united in their activities with any other Sureño subset or the broader Sureño umbrella gang, or that the Vicky's Town Sureños "use . . . the same 'turf,' " or acted to protect the same territory as the broader Sureño gang. (Prunty, supra, 62 Cal.4th at p. 73.) This evidence showed only that the Vicky's Town Sureños "represented [themselves] as an affiliate of what the prosecution assert[ed] [wa]s a larger organization." (Id. at p. 79.) This showing is insufficient under Prunty. Thus, insufficient evidence supported the jury's finding that the predicate offenses were committed by Sureño gang members and that defendants acted to benefit the Sureño criminal street gang. Accordingly, we must reverse defendants' gang enhancement.
II
The Trial Court Did Not Have A Sua Sponte Duty To Instruct
The Jury On Voluntary Intoxication, Nor Was Counsel
Ineffective For Failing To Request Such Instruction
Castillo testified that he was "really pretty messed up" during the robbery because he was drunk, high on marijuana, and had not slept in two days due to the fact that he was coming down from a methamphetamine high. Castillo and Espinosa contend that this testimony required the trial court to instruct the jury on voluntary intoxication because evidence supported the finding that Castillo did not harbor the specific intent required for robbery. In the event we find the trial court did not have a sua sponte duty to instruct the jury on voluntary intoxication, both Castillo and Espinosa argue that each of their counsel was ineffective for failing to request this instruction. We conclude the trial court did not have a sua sponte duty to instruct the jury on voluntary intoxication and that neither counsel was ineffective for failing to request this instruction.
Castillo properly notes our Supreme Court has held that absent a defense request, the trial court has no sua sponte duty to give a voluntary intoxication instruction. (People v. Verdugo (2010) 50 Cal.4th 263, 295; People v. Saille (1991) 54 Cal.3d 1103, 1121.) We are required to follow this holding despite Castillo and Espinosa's claim to the contrary. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Neither were Castillo's or Espinosa's counsel ineffective for failing to request an instruction on voluntary intoxication. The law regarding claims of ineffective assistance of counsel is well settled. A defendant must show that counsel's performance was both deficient and prejudicial, meaning it is reasonably probable counsel's unprofessional errors affected the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687, 693- 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) If the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there is no satisfactory explanation for counsel's performance. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Here, the record affirmatively sheds light on the reason Castillo's counsel failed to request a voluntary intoxication instruction. Defense counsel conceded Castillo committed the robbery, as did Castillo during his testimony. Instead, Castillo and his counsel argued that he committed the robbery alone and to further his drug use, and not for the benefit of a criminal street gang. Although Castillo testified he was "tired," "exhausted," "out of it," and "really pretty messed up," he also testified he decided to rob the gas station because he wanted to keep partying and needed money to buy more drugs. Given Castillo's testimony regarding his intent to rob the gas station, it was reasonable for counsel to decide not to request an instruction on voluntary intoxication or argue that Castillo did not have the intent required for robbery. Castillo's credibility regarding the claim he committed the robbery alone and because of his drug use would have been weakened if he also argued he did not intend to permanently deprive Ono of the money when he pointed a gun at him and demanded money. Accordingly, Castillo's counsel was not ineffective for failing to request an instruction on voluntary intoxication.
Espinosa's counsel was not ineffective because Espinosa's outcome would not have been affected had the jury been instructed on voluntary intoxication. (See People v. Ledesma, supra, 43 Cal.3d at pp. 216-217.) Espinosa argues, "[i]f the jury had been given the chance to find Castillo not guilty due to voluntary intoxication and had found him not guilty, the most it could have convicted [Espinosa] of was aiding and abetting Aguayo's misdemeanor petty theft of the hundred dollars in cash." This is not true. The jury found both Aguayo and Espinosa guilty of second degree robbery as principal participants and not as accomplices. Thus, the jury necessarily found that Espinosa and Aguayo each personally held the specific intent to permanently deprive Ono of property. Castillo's specific intent at the time he robbed the gas station was irrelevant to the jury's finding regarding Espinosa's and Aguayo's specific intent and conduct. Accordingly, Espinosa's counsel was not ineffective for failing to request an instruction on voluntary intoxication.
III
The Trial Court Did Not Have A Sua Sponte Duty
To Instruct The Jury On Theft
Castillo and Espinosa also contend the trial court had a sua sponte duty to instruct the jury on the lesser included offense of grand theft of a person or misdemeanor petty theft. This argument is premised upon their previous argument that the court was required to instruct the jury on voluntary intoxication. They reason that had the jury been instructed on voluntary intoxication and grand theft or petty theft, it could have reasonably found them guilty of the lesser offense based on the finding that Castillo lacked the specific intent required of robbery. We disagree and conclude the trial court had no sua sponte duty to instruct the jury on the lesser included offense of grand theft.
"An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla (2000) 22 Cal.4th 690, 733.) The trial court must sua sponte instruct the jury on a lesser included offense when there is substantial evidence " 'that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' " (People v. Whalen (2013) 56 Cal.4th 1, 68, disapproved of on other grounds by People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) Stated otherwise, the court must instruct on a lesser included offense "whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162.) However, the court is "not obliged to instruct on theories that have no such evidentiary support." (Ibid.)
Theft is a lesser included offense of robbery, as robbery includes all of the elements of theft along with an additional element of the use of force or fear to steal the property at issue. (People v. Davis (2005) 36 Cal.4th 510, 562; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410-1411.) The specific intent required to find a defendant guilty of robbery is that the perpetrator have the intent to permanently deprive the victim of his or her property. (In re Stankewitz (1985) 40 Cal.3d 391, 399; CALCRIM No. 1600.) The intent required to find a defendant guilty of grand theft of a person is also that the perpetrator intend to permanently deprive the victim of property. (People v. Bell (2011) 197 Cal.App.4th 822, 826.) The same is true for petty theft. (Ibid.) Thus, even had the jury determined Castillo lacked the intent to permanently deprive Ono of money, it could not have found him or Espinosa guilty of the lesser included offenses of grand theft or petty theft because those offenses require the same specific intent as robbery. Instead, the jury would have had to have found them not guilty of a theft-related crime. There is no evidence to suggest Castillo or Espinosa intended to give the money back to Ono after Castillo took it from him at gun point. In fact, the evidence shows that Castillo planned to take the money through force and then spend it on drugs.
The instant facts preclude a finding of grand theft, which, in contrast, would apply under circumstances where the larcenous purpose did not arise until after force was used, for other reasons, against the victim (for example, to rape or kill the victim). (See, e.g., People v. Green (1980) 27 Cal.3d 1, 54 [no robbery where the defendant raped victim and then stole personal belongings]; People v. Turner (1990) 50 Cal.3d 668, 690 [sua sponte instruction on theft was warranted where defendant killed victim on account of latter's sexual advances and only thereafter decided to take property].) These facts also preclude a finding of petty theft. Accordingly, the trial court was not required sua sponte to instruct the jury on the elements of theft.
IV
Castillo Is Entitled To Remand For The Trial Court To
Consider Striking The Firearm Enhancement
The jury found Castillo personally used a firearm during the commission of the robbery pursuant to sections 12022.53, subdivision (b) and the trial court sentenced him to 10 years based on that finding. At the time of Castillo's sentencing, the enhancement statute provided that "[n]otwithstanding section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (§ 12022.53, subd. (h).) Thus, at the time of Castillo's sentencing, the trial court had no power to strike the firearm enhancement.
Under a recent amendment to section 12022.53, however, which became effective January 1, 2018, trial courts now have the power under subdivision (h) of the statute, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] 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." Castillo argues this amendment applies to his case because the Legislature expressly provided for the retroactive application of the amendment by "express declaration that the amended statues [sic] are to apply to resentencing, and not merely sentencing . . . ." He further contends, based on In re Estrada (1965) 63 Cal.2d 740 and related cases, that the amendment applies to him because "[r]egardless of that statutory intent," settled case law affords defendants in nonfinal cases the retroactive benefit of subsequent legislative ameliorations in punishment.
The People agree that because the amendment provides discretion to impose a lesser sentence, and because there is nothing in the amendment to suggest the Legislature intended it to apply prospectively only, the presumption that the amendment applies retroactively prevails, and the case must be remanded to allow the trial court to exercise its newly-granted discretion to decide whether to strike the firearm enhancement.
We agree with defendant and the People that remand is necessary here. Under Estrada, "when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature." (People v. Francis (1969) 71 Cal.2d 66, 75-76.) As the Supreme Court stated in Estrada, "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. 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." (In re Estrada, supra, 63 Cal.2d at p. 745.)
Here, the amendment to subdivision (h) of section 12022.53, which took effect before the judgment in this case is final, necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply, which includes Castillo's case. Accordingly, remand is necessary to allow the trial court to exercise its discretion as to whether to strike Castillo's firearm enhancement under section 12022.53, subdivision (h).
DISPOSITION
The true findings on the gang enhancement are reversed as to all defendants. The judgments in the matters of Aguayo and Espinosa are modified accordingly; the trial court is directed to prepare corrected abstracts of judgment reflecting these changes and to forward them to the appropriate correctional authorities. The judgment in the matter of Castillo is also modified accordingly but the case is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
ROBIE, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
DUARTE, J.