Opinion
G054367
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. MARLENE CERDA, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Bercerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stephanie H. Chow, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11CF3286) OPINION Appeal from a judgment of the Superior Court of Orange County, John Dorsey Conley, Judge. Reversed in part and remanded for resentencing. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Bercerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
In a span of just a few weeks, Marlene Cerda shot two men at close range. Miraculously, both survived the shootings and testified against Cerda at trial.
A jury convicted Cerda of two counts of attempted premeditated murder for shooting Francisco Cortez (count 1) and Alan Espinoza (count 2). (Pen. Code §§ 187, subd. (a); 664, subd. (a)). The jury found true the allegations that each of the attempted murders was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1) [gang enhancement]), and that Cerda personally and intentionally discharged a firearm causing great bodily injury on both counts. (§ 12022.53, subd. (d) [firearm enhancement].)
All further statutory references are to the Penal Code.
Cerda contends there was insufficient evidence to show she shot Espinoza with the specific intent required by the gang enhancement. She further alleges the court erred in sentencing her to two terms of 15 years to life in state prison for counts 1 and 2, instead of two life terms each with a minimum parole eligibility period of 15 years. She also requests we remand the case for resentencing to allow the court to exercise its sentencing discretion on the firearm enhancements, pursuant to section 12022.53, subdivision (h), as amended. We agree with all of Cerda's contentions. We reverse the gang enhancement attached to count 2 and remand the matter to the court for resentencing.
FACTS
Count 1: Shooting of Francisco Cortez
On November 18, 2011, Francisco Cortez left his apartment in Santa Ana, California with plans to meet "Marlene" and smoke marijuana. His apartment was located in an area of Santa Ana claimed by the Lopers, a criminal street gang. He walked out of his apartment and went around the block to look for Marlene, but did not see her. While searching for Marlene, he was suddenly shot in the back of the neck and lower back. Cortez survived the shooting, but required surgery, and remained hospitalized for a period of time. He also had trouble speaking for six to nine months due to the gunshot wound to his neck.
Ten days after the shooting, Cortez told police he had arranged to meet a girl to smoke drugs. As he was waiting for her, he heard someone say "[h]ey bitch" or "[h]ey babe." When he turned to look at the speaker, he was shot. Cortez said the shooter was a female in her early twenties with brown or black hair. He stated he had seen the shooter a few times before, possibly at the house of a Lopers gang member. On December 1, 2011, Cortez told police "Marlene" shot him. He identified Cerda from a photographic lineup. He said Marlene had "claimed" the F-Troop gang to him, and had insulted Cortez and his friends for being members of the Lopers gang.
Testimony at trial stated that to "claim" a gang means an individual will announce their allegiance to a particular gang, thereby indicating they are a member of the gang. The parties stipulated F-Troop is a criminal street gang.
Count 2: Shooting of Alan Espinoza
On December 5, 2011, Alan Espinoza finished working at about midnight in Costa Mesa, California. As he walked to his parked car, he saw Cerda sitting on the curb next to his car. Cerda asked Espinoza for a ride and he agreed, even though he did not know her. Espinoza believed Cerda was not a threat and was concerned for her safety.
Espinoza drove Cerda from Costa Mesa to Santa Ana. When Espinoza stopped to let Cerda out, she asked him to put the car in park. Cerda got out of the vehicle, removed a gun from her backpack, and shot Espinoza twice in the head. Cerda did not say anything about gangs during the shooting.
Espinoza also survived the shooting. He drove away, called 911, and reported the shooter's name was Marlene. After the shooting, Espinoza was hospitalized for a week and was out of work for two months. One bullet was too dangerous to remove, so it is still inside his head. He still suffers from migraine headaches. When interviewed by police, Espinoza selected Cerda's photo and identified her as the person who shot him.
Cerda was detained by police shortly after the shooting. Police photographed Cerda's tattoos indicating her affiliation with the F-Troop gang. Police conducted a search near the area of the shooting and recovered a small handgun along with a backpack containing Cerda's identification. Forensics ultimately showed the weapon was also used in the Cortez shooting. The backpack also included letters to Cerda from "Spider," a known gang member. The letters addressed Cerda as "Trooper," "Troop," and a "G" (meaning gangster).
Charges Filed Against Cerda
The operative information charged Cerda with two counts of attempted murder (§ 187, subd. (a)). It further alleged each of the attempted murders was premeditated (§ 664, subd. (a)), committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that Cerda personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). Cerda's Trial, Conviction, and Sentence
City of Santa Ana Police Corporal Roland Andrade testified as a gang expert. Andrade opined Cerda was a member of the F-Troop gang. He further testified that the F-Troop gang would benefit if a member shot a civilian with no gang ties because that act of violence would instill fear in the general community and make them more reluctant to report crimes and cooperate with police. Andrade opined if a gang member shot a victim to obtain the victim's car, that would benefit the gang by giving the gang members a means to commit additional crimes. He testified the additional benefit of such a crime would be to make potential victims less likely to resist the next time a gang member tried to steal their car if they heard someone else was killed over their car. He stated bragging about such shootings could boost a person's reputation in the gang.
Patricia Navarro, a retired homicide detective, testified she was placed as an undercover officer in the same cell with Cerda after her arrest. Navarro posed as an inmate and fellow F-Troop member. Cerda told Navarro she had gotten "into some shit" trying to get a "G-ride" or a stolen car. Cerda also referred to a second incident near the location of the first shooting.
The jury found Cerda guilty of counts 1 and 2 and found true all allegations. The court sentenced Cerda to an indeterminate term of 15 years to life on count 1. On count 2, the court sentenced Cerda to a consecutive, indeterminate term of 15 years to life. The court also sentenced Cerda to two consecutive indeterminate terms of 25 years to life on the section 12022.53, subdivision (d) enhancements connected with each count. Cerda's aggregate sentence was 80 years to life.
DISCUSSION
The True Finding on the Gang Enhancement Attached to Count 2 Was Not Supported by Substantial Evidence
Cerda argues there was insufficient evidence to support the true finding on the gang enhancement attached to count 2 because the evidence failed to show she shot Espinoza with the specific intent to promote, further, or assist criminal conduct by gang members, as required by section 186.22, subdivision (b)(1). We agree and reverse the true finding on the gang enhancement attached to count 2.
On a claim of insufficiency of evidence, the reviewing court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The issue is resolved considering the record as a whole and "'whether the evidence of each of the essential elements . . . is substantial'" (People v. Johnson (1980) 26 Cal.3d 557, 577), meaning "evidence which is reasonable, credible, and of solid value" (id. at p. 578). "'A reasonable inference, however, "may not be based on suspicion alone, or an imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence."' [Citations.] A trier of fact may rely on inferences to support a conviction only if those inferences are 'of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt' that the inferred facts are true." (People v. Rios (2013) 222 Cal.App.4th 542, 564 (Rios).)
There are two prongs to the gang enhancement. (People v. Ramirez (2016) 244 Cal.App.4th 800, 818.) First, the prosecution must prove the underlying felonies were "'"committed for the benefit of, at the direction of, or in association with any criminal street gang."'" (Ibid.) Second, there must be evidence the crimes were committed "'"with the specific intent to promote, further, or assist in any criminal conduct by gang members."'" (Ibid.) Evidence to support the element of specific intent may be shown by a defendant's conduct and by all the circumstances surrounding the commission of the acts. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Expert testimony and mere gang membership, without more, are insufficient to show a crime was committed with the specific intent to promote or benefit a criminal street gang. (Rios, supra, 222 Cal.App.4th. at pp. 573-574.) "A gang expert's testimony alone is insufficient to find an offense gang related. [Citation.] '[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.'" (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.)
The prosecution relied upon its gang expert's testimony as evidence to support the gang enhancement. The expert opined the F-Troop gang would benefit from a member shooting a civilian with no gang affiliation because the act of violence would instill fear in the community and make them reluctant to report crimes and cooperate with police. Such fear in the community would make future victims less likely to resist if a gang member tried to steal their car. He also testified if a gang member shot a civilian to obtain their car, that would benefit the gang by giving the gang members a means to commit additional crimes.
Aside from the expert's opinion, the prosecution failed to present evidence Cerda shot Espinoza with the requisite intent mandated by section 186.22, subdivision (b)(1). The prosecution did not present any evidence Espinoza was a known or suspected gang member. Cerda acted alone when she shot Espinoza and did not try to contact another gang member for a ride afterwards. Cerda did not call out a gang name during the shooting or otherwise advertise Espinoza's shooting was gang-related. It is at best speculative the community would have attributed the shooting to the F-Troop gang and felt fear as a result. While Cerda's post arrest statements in jail to Navarro indicated an intent to try and steal Espinoza's car — Cerda told Navarro she had gotten "'into some shit'" trying to get a "'G-ride'" (stolen car) — there was no evidence Cerda intended to steal Espinoza's car for a gang-related purpose. And the record was devoid of any evidence whatsoever of the primary activities of F-Troop, much less that the primary activities included assault with a deadly weapon, murder, and car theft.
While the prosecution introduced sufficient evidence of Cerda's gang affiliation, the circumstances of the case failed to demonstrate Cerda shot Espinoza with the specific intent to promote, further, or assist criminal conduct by gang members, as required by section 186.22, subdivision (b)(1). There was insufficient evidence to support the expert's theories, just conjecture and suspicion. (Rios, supra, 222 Cal.App.4th at p. 564.) We reverse the true finding on the gang enhancement under section 186.22, subdivision (b)(1) attached to count 2.
The Court Erred in Sentencing Cerda to a Term of 15 Years to Life on Counts 1 and 2
Cerda contends the trial court erred in sentencing Cerda to two terms of 15 years to life for counts 1 and 2 with the accompanying gang enhancements. The Attorney General concedes the issue. We agree there was sentencing error as to both counts.
On each count, the court sentenced Cerda to consecutive terms of 15 years to life. She also received consecutive terms of 25 years to life on the two section 12022.53, subdivision (d), firearm enhancements, for an aggregate sentence of 80 years to life.
Cerda's convictions for counts 1 and 2 subjected her to life sentences with the possibility of parole. (§ 664, subd. (a).) Because Cerda committed a felony punishable by imprisonment for life, she also triggered the 25-year firearm enhancement under section 12022.53, subdivision (d).
Where a violent felony is "punishable by imprisonment in the state prison for life," and was committed for the benefit of a criminal street gang, section 186.22, subdivision (b)(5) applies and imposes a minimum term of 15 years before the defendant may be considered for parole. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) The jury's finding each count was gang-related subjected her to an extended parole eligibility date under section 186.22, subdivision (b)(5), but not to an additional determinate term of 15 years. (Ibid.) Instead, the sentence for each count should have reflected a life sentence with the possibility of parole, with a minimum parole eligibility term of 15 years. (§ 186.22, subd. (b)(5); People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) Under section 3046, subdivision (b), where the court orders consecutive life sentences, the minimum parole eligibility periods also run consecutively. Thus, leaving aside for the moment the firearm enhancements, the court's sentence on the jury verdict should have specified two consecutive life sentences with a minimum parole eligibility period of 30 years. With our reversal of the gang enhancement on count 2, and again leaving aside the firearm enhancements, and assuming the imposition of consecutive life sentences, the sentence would be two consecutive life sentences with a minimum parole eligibility period of 22 years, i.e., 15 years on count 1 and 7 years on count 2.
In the absence of the gang enhancement, the minimum parole eligibility period is seven years. (§ 3046, subd. (a)(1).)
In the following section, we conclude remand is necessary for the court to exercise its discretion on the gun enhancements. Of course, if either or both gun enhancements are imposed on remand, the minimum parole eligibility period on the life terms is less than the 25-years-to-life term mandated by the enhancement. Under this circumstance, the 22 years minimum parole eligibility period on the life terms might seem irrelevant, but our Supreme Court has ruled otherwise. "The true finding under section 186.22[, subd. (b)(5)], which provides for a lower minimum term, 'is a factor that may be considered by the Board of Prison Terms when determining a defendant's release date, even if it does not extend the minimum parole date per se.'" (People v. Lopez, supra, 34 Cal.4th at p. 1009.)
While we note this sentencing error, as discussed below, we must remand the matter to the trial court for resentencing to allow it to exercise its discretion under 12022.53, subdivision (h). The Case is Remanded for Resentencing to Permit the Court to Exercise Its Discretion Under Section 12022 .53, Subdivision (h)
Cerda argues section 12022.53, subdivision (h) applies retroactively in this case. The Attorney General concedes it does. We agree.
Cerda's sentence was enhanced by two terms of 25 years to life under section 12022.53, subdivision (d). At the time of sentencing, section 12022.53 did not give the trial court discretion to strike the enhancements. Effective January 1, 2018, the Legislature amended section 12022.53, subdivision (h), to provide: "The court may, in the interest of justice pursuant to [s]ection 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." (Stats. 2017, ch. 682, § 2.) Barring evidence to the contrary, we presume the Legislature intends for a statutory amendment reducing criminal punishment to apply retroactively in cases that are not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.)
Section 12022.53, subdivision (d) provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." --------
There is nothing in the language of section 12022.53, subdivision (h) demonstrating a legislative intent to make the provision merely prospective. We determine section 12022.53, subdivision (h), applies to Cerda because her sentence was not final at the time the amendment went into effect, and an exercise of discretion under the provision could result in a lower sentence. We remand the matter to the court for resentencing.
DISPOSITION
We reverse the jury's true finding on the gang enhancement (§ 186.22, subd. (b)(1)) attached to count 2. We remand the matter to the court for resentencing consistent with this opinion.
IKOLA, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.