Opinion
A164277
10-29-2024
THE PEOPLE, Plaintiff and Respondent, v. DEANDRE GANTT, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 19-NF-009091-A.
GOLDMAN, J.
A jury convicted Deandre Gantt of, among other crimes, premeditated attempted murder and unlawful possession of a firearm. The jury also found true, among other allegations, that his crimes were committed for the benefit of a criminal street gang and that Gantt personally inflicted great bodily injury during the commission of the crimes. Gantt appeals the judgment sentencing him to 40 years to life in prison. He contends that (1) the trial court erred in denying his Batson/Wheeler motion challenging the prosecution's use of a peremptory strike to remove the only available African American juror in the venire; (2) the trial court erred in admitting hearsay text messages into evidence; (3) the trial court improperly admitted expert opinion testimony from a police officer; (4) there is no substantial evidence to support his convictions for premeditated attempted murder; (5) there is no substantial evidence to support the finding that he personally inflicted great bodily injury; (6) his convictions for unlawful possession of a firearm must be overturned because they violate his Second Amendment rights under the United States Supreme Court's decision in New York State Rifle &Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 1 (Bruen); (7) as a result of changes made to Penal Code section 186.22 by the enactment of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 3) (Assembly Bill 333), the gang participation enhancement allegations must be reversed; (8) reversal of the judgment is required pursuant to section 1109, which was also added by Assembly Bill 333 and which requires gang participation offenses to be tried separately from other counts not requiring gang evidence; and (9) his convictions must be reversed because the court admitted evidence of Gantt's rap music lyrics and videos in violation of newly enacted Evidence Code section 352.2, which requires courts to consider additional factors before admitting evidence of creative expression. We agree that the gang participation enhancement allegations and two of the true findings on the great bodily injury enhancement allegations must be reversed, but affirm the judgment in all other respects.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
All undesignated statutory references are to the Penal Code.
Background
Gantt was charged by amended information with two counts of attempted premeditated murder (§§ 187, subd. (a), 664; counts 1-2), four counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3-6), discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a); count 7), active participation in a criminal street gang (§ 186.22, subd. (a); count 8), possession of a loaded firearm in a public place (§ 25850, subd. (a); count 9), and possession of a concealed firearm (§ 25400, subd. (a)(2); count 10). The information further alleged that counts 1 through 7 were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)); Gantt personally inflicted great bodily injury in the commission of counts 1-4 and 7-8 (§ 12022.7, subd. (a)); and Gantt personally discharged a firearm proximately causing great bodily injury in the commission of counts 1-2 (§ 12022.53, subd. (d)), personally used a firearm in the commission of counts 3-6 (§ 12022.5, subd. (a)), and was armed with a firearm in the commission of count 8 (§ 12022, subd. (a)(1)).
The allegations that Gantt was an active participant in a criminal street gang (§ 186.22, subd. (a); count 8) and that he committed counts 9 and 10 while an active participant in a criminal street gang (§§ 25850, subd. (c)(3), 25400, subd. (c)(3)) were dismissed at trial pursuant to Gantt's section 1118.1 motion.
At trial, evidence was presented regarding a shooting that occurred at the Tanforan shopping mall on July 2, 2019. A witness testified that immediately before the shooting, he observed what he described as tensions flaring between one group of approximately four to five males and another group of about six to seven males on the second floor of the mall.
A gang expert with the San Francisco Police Department identified Gantt and the other members of his group as associated with the Tre-4 gang. The members of the other group involved in the shooting belonged to Double Rock, which he also identified as a gang. A third group of three males, referred to at trial as group M, were also at the mall and had contact with both the Tre-4 and Double Rock groups before and at the time of the shooting. Gantt's principal defense at trial was that he fired his gun in self-defense when the Double Rock group decided to attack him after being alerted to his presence by a member of group M, whereas the prosecution contended that Gantt went to the mall intending to kill members of Double Rock.
Surveillance videos showed that all three groups traveled separately to the mall by BART train. During the police investigation, officers recovered Instagram records for accounts held by members of the Tre-4 group. Evidence was introduced showing that, shortly before arriving at the mall, a Tre-4 member who was on the BART train with Gantt sent messages to an unidentified account stating, "Lulwaka4 over there at tanfo" and "Come to tanfran [sic] the suckas over here." The BART surveillance footage showed Gantt sitting next to the sender for several minutes immediately before the message was sent. One of the members of the Double Rock group, later identified in surveillance video as the other shooter, used the Instagram moniker "Lulwaka4."
Based on surveillance videos, an officer testified to the following timeline of the movement of the three groups through the mall in the hour leading up the shooting. At 3:17 p.m., the Double Rock group exited the BART station. At 3:47 p.m., the Tre-4 group and group M exited the BART station separately. At 3:50 p.m., the Tre-4 group and group M met as they entered the mall. At 3:52 p.m., group M met the Double Rock group in a clothing store on the second floor of the mall. At 3:53 p.m., group M and the Double Rock group exited the clothing store. The shooting started at 3:54 p.m.
Based on the video and audio recordings and the numbers of casings found, officers concluded that a total of 11 shots were fired and that twice there were shots fired simultaneously from two different firearms. Of the 11 bullet casings recovered at the mall, nine of the casings were 9-millimeter and were found near the elevators where Gantt fired and two of the casings were .45-caliber and were located near where the other shooter was located. Several weeks after the shooting, a .45-caliber semiautomatic firearm was recovered from a car owned by the other shooter's family. Testing established that the .45-caliber gun fired the two .45-caliber casings recovered at the mall. Two members of the Double Rock group were shot: a fourteen-year-old was shot in his right thigh, which fractured his femur and required the placement of a metal rod in his leg, and a sixteen-year-old was shot twice in his abdomen, which damaged his intestines and required surgery.
The officer testified, based on surveillance video, that when the Tre-4 group first came in contact with the members of group M, Gantt casually greeted a member of group M before that group proceeded to the clothing store. On the surveillance video from the clothing store, which shows members of both group M and the Double Rock group, someone can be heard saying first "He's outside" and then "Let's go." The Double Rock and group M members exited the clothing store as Gantt and his group gathered at the top of the nearby escalator on the second floor of the mall. A witness standing near Gantt before the shooting occurred testified that after the groups exited the clothing store, someone from one of those two groups motioned toward Gantt's group in a manner that the witness interpreted as indicating "Let's take it outside."
Surveillance video of the second floor of the mall shows Gantt walking towards the clothing store and standing in the middle of the second-floor walkway as the Double Rock group and group M exit the store. The members of group M appear to be walking towards Gantt first, while the members of the Double Rock group gather briefly behind them. Then, the Double Rock group jogs past the group M members towards Gantt. Almost immediately, both the Double Rock group and group M turn and run in the other direction. The group M members appear to be the first to retreat, followed closely by some members of the Double Rock group, including the 16-year-old victim.
The 14-year-old victim lags considerably behind the other members of the Double Rock group as they retreat.
As Gantt runs towards the Double Rock group, he fires two shots from his gun before briefly ducking behind a column. At the same time, a member of the Double Rock group fires backward towards Gantt while still running forward. The 14-year-old victim, who is caught between the shooters, can be seen falling to the ground at this time.
After emerging from behind the column, Gantt assumes a forwardfacing stance and fires his gun seven more times. No surveillance video was offered showing the 16-year-old victim being shot. Witnesses identified his location as outside the Timeworks store, which places him behind the Double Rock shooter. The audio analysis of the incident indicated that the member of the Double Rock group fired simultaneously with Gantt's first and third shots.
The gang expert detailed the criminal history of the Tre-4 gang and testified to an ongoing dispute between it and the Double Rock gang, including an incident in October 2016 in which Gantt had been shot by a Double Rock member. The officer opined, based on a hypothetical that tracked the facts of this case, that the shooting was committed for the benefit of and in association with the Tre-4 gang.
To support the gang allegations, the prosecutor introduced evidence of eight predicate crimes, including evidence of the underlying conduct of the offenses. She also introduced numerous rap songs, videos, and Instagram posts by purported Tre-4 members or associates. Finally, she introduced evidence that Gantt was still creating gang-related writings disrespectful to Double Rock while he was in jail on this case.
Several witnesses testified that Gantt feared for his safety after being shot in 2016. Dr. Laeeq Everett, a clinical psychologist, neuropsychologist, and professor at the Wright Institute, testified for the defense. He explained the fear response and opined, based upon a hypothetical, that someone in Gantt's position would have been operating under the fight or flight fear response, which inhibits a person's ability to reflect upon their actions. Finally, a social worker who was familiar with the youth who identified themselves as Tre-4 opined that it was not a gang because it was not organized and had no hierarchy.
The jury found Gantt guilty on all counts not previously dismissed, and the court sentenced him to 40 years to life in prison.
Discussion
I. Batson/Wheeler A. Legal Background
" '" 'Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race.'" [Citation.]" 'Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.'"' [Citation.] The' "[e]xclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error"' and requires reversal." (People v. Arias (2024) 101 Cal.App.5th 1163, 1170.)
"A trial court's consideration of a defendant's Batson/Wheeler claim proceeds in three steps. '" 'First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] "The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant]." '" '" (People v. Arias, supra, 101 Cal.App.5th at p. 1171.)
B. Factual Background
Before voir dire, prospective jurors, including M.L., an African American man, filled out hardship forms and questionnaires. M.L. requested a hardship, stating that he was a construction foreman. The court denied M.L.'s hardship request.
On his questionnaire, M.L. stated that his wife worked as an administrator at the San Francisco Police Department for 10 years. When asked whether anything about his wife's experience would substantially interfere with his ability to be fair and impartial, he wrote, "Possibly- working side by side with officers, you he[ar] inappropriate remarks towards person[s] either in the office or outside of the office." M.L. answered "yes" to the question asking whether the fact that the defendant is African American would substantially interfere with his ability to be fair and impartial. He explained, "It appears that whether it's gang violence, or being in a[] confrontation with law enforcement[, t]he outcome does not appear to be good for us." When asked if he had any opinions about why people join a gang, he responded, "People join gangs for different reasons. To belong to an organization of some sort or to what they call a family." He indicated that "[t]he negative use of the word 'Gang'" would substantially interfere with his ability to be fair and impartial. Finally, when asked whether there was anything else that would prevent him from being fair and impartial, M.L. checked, "Yes," and wrote, "I am an [A]frican [A]merican. It seems to be alot against us. And I don't think we get the proper treatment. When it comes to fair treatment. So I'm [sic] can be bias at times."
At the start of his voir dire, the court asked M.L. whether he believed he could be a fair juror and he replied that he believed he could be. The court also asked whether M.L. knew any of the witnesses and he responded, "I'm not sure, although my wife did work in the San Francisco Police Department," but added that he did not recognize anyone's name. M.L. agreed to inform the court if he realized during trial that he knew a witness.
The prosecutor began her questioning of M.L. by raising his hardship request and asking whether his work demands would be too distracting if he were selected. M.L. responded that it was "a possibility" because his absence could "be a problem" in "mov[ing] the jobs forward," but also said that if he died today, the job would go on. When asked whether he had experienced job disruption during jury selection, M.L. said "it's not a problem right now," but that "as time moves forward, then that could be a problem." The prosecutor asked if M.L. was concerned that during the trial he might find himself thinking," 'Let's hurry this up. I've got to get back on site,'" and M.L. said no.
The prosecutor next asked whether M.L.'s wife often talked about her former work for the San Francisco Police Department. M.L. stated, "We talked. You know, naturally, that's what you would do." When asked if she had a positive attitude toward her coworkers, M.L. answered that it varied from day to day and person to person. The prosecutor asked whether he had any concerns given the conversations they had and the fact that there were a number of San Francisco officers on the witness list, and whether he had concerns "about putting everyone on that same starting line, police or not, because of the things [his] wife ha[d] explained." M.L. responded, "There's a possibility. Like the question for me would be: Where would the starting line be?" The prosecutor asked what he meant by that, and M.L. stated, "You know, certainly as a [B]lack man, you have a different relationship with law enforcement." M.L. offered as an example his experience when his sister-inlaw's car broke down. While he was helping her, the police came by and wanted to know if everything was alright. They said it was and that the tow truck was on its way. Then, the officer "asked for identification and whatnot" and M.L. was thinking, "would they do that to a white person?" He explained, "So, therefore, our relationships are different. So I approach it differently." The prosecutor gave M.L. an example of a police officer and a civilian both testifying that an apple was green, and asked whether the fact that one was an officer would cause him to evaluate their testimonies from "different places at the starting line." M.L. said no.
Finally, the prosecutor questioned M.L. about his ability to be fair and impartial based on the reservations expressed in connection with the final question on the questionnaire. M.L. responded, "At this moment, do I think? Yes, I think I can. But as time progresses, . . . will that change based on . . . my relationship as a [B]lack man? [¶] But I believe that I could be fair and impartial. I believe that," adding, "Time will tell." The prosecutor then asked: "So two things. One, there's a lot wrong with our society right now. There are a lot of issues in law enforcement. There are a lot of issues in the world that we live in. [¶] What you would be asked to do as a juror if you were seated on this case is just to basically fill out a checklist. Are these elements? Are these things that make up this crime proven beyond a reasonable doubt? [¶] And you may want to know what societal factors went into why something happened. You might disagree with the law itself. But your role as a juror is just to say: Was this proven, 'yes' or 'no,' beyond a reasonable doubt. [¶] If I were to prove something beyond a reasonable doubt that you had a personal or societal disagreement with, do you have concerns about your ability to vote guilty because of those issues?" M.L. said, "I hope not, but that will . . . remain to be seen." The prosecutor followed up with a final question: "And everyone here is being asked-right?-some big questions. And a lot of people have not had to think about these specific things before. So it's understandable to want to cover your bases and say: This is how I feel now. I can't say how I'll feel later. [¶] I don't mean to make light of this very serious conversation, but another judge uses a very colorful analogy for this idea of: I think I can be fair and impartial.
[¶] Imagine for a moment that your wife says she's going to Vegas with some girlfriends. And you say, 'Honey, have a good time, but please just don't go to any strip clubs. I don't feel comfortable with that. I don't want you to do that.' And she says, 'I'll try.' [¶] Do you think you can try in that way, or do you think you actually can be fair and impartial?" M.L. responded, "I can be fair and impartial."
Defense counsel voir dired M.L. the next day. Counsel asked if he still felt he could be fair and impartial, and M.L. stated, "Yes. I'd like to believe." When asked if he had any additional comments on the criminal justice system, M.L. responded, "Well, only that, you know, . . . the attorney says that . . . people . . . can[]not tell the truth and that can be officers, too .... [¶]
But theirs is . . . more . . . [a] situation where they have the control and the support of the people. If they're engaged in that, then we lose . . . the confidence of that. [¶] So . . . that's probably how I would approach that. Everybody needs to be on the same page." Counsel asked if he could evaluate the truthfulness of someone's testimony without regard to their background and whether he is "a critical thinker in that regard," and M.L. responded, "I try to be" and "I think that's something everyone should do." Counsel asked whether he had anything else to disclose, and M.L. responded that he thought he could be impartial "to the process, even though . . . when I said, 'African American,' our history, . . . as it pertains to 400 years can come back up to this point. I can still be impartial. I believe I can be impartial. Those things do resonate."
The prosecutor exercised her third peremptory challenge on M.L. Defense counsel objected, asserting there was a prima facie case that the challenge was discriminatory. Counsel argued that there were only three African American prospective jurors before hardships and only M.L. remained after hardships were granted. Counsel stated that M.L. repeatedly said that he could be fair and that "[t]he only thing he said that would in any way suggest any concern was his statement that African-American people have been unfairly treated-or he said not even those words-the heritage of 400 years, I think, is what he said." Counsel noted that there were now no African American jurors on the panel, that the prosecutor had questioned M.L. "much more than most," and that there was nothing that suggested M.L. could not be fair.
The court found that Gantt had not stated a prima facie case. The court observed that "there are two instances in M.L.'s questionnaire where he said that things would prevent him from being fair and impartial." The court also noted that, during voir dire when the prosecutor asked about his work obligations, M.L. indicated that it could be a problem as time went on. The court also observed that M.L. said both "time will tell" and "it remains to be seen" when asked if he could be fair. The court recognized that M.L. had stated at the end of voir dire that he could be fair and impartial, but the court found that there were "numerous points in his questionnaire and during his oral questioning where he had hesitations." Having found no prima facie showing, the court invited the prosecutor to state her reasons for the challenge if she wished.
The prosecutor stated three reasons for the peremptory challenge that she believed, while maybe not sufficient on their own, "together were simply too much": (1) M.L.'s uncertainty that his work obligations would not interfere with his ability to be fair and impartial given the trial length; (2) M.L.'s statement that he could possibly know some of the San Francisco officers based on his wife's work, which could render him ineligible midtrial; and (3) M.L.'s equivocation about whether he could be fair and impartial based on his concerns about racism in law enforcement and society. Defense counsel argued that the first two reasons were "an afterthought" because the prosecutor had not questioned M.L. about them. Counsel stressed that M.L. repeatedly said that he could be fair, and that granting the prosecutor's challenge would allow him to be excused "because of his . . . doubts [about] the way [B]lack people have been treated historically in the United States." Counsel disputed that there were multiple instances when M.L. equivocated about his ability to be fair.
The court stated that it understood that M.L.'s equivocation about his ability to be fair may relate to "common perceptions of African Americans," but that "[t]here was enough equivocation in the fairness issue" that a prima facie case had not been made based on the totality of the circumstances. The court did not comment on the credibility of the prosecutor's reasons.
C. Analysis
Our analysis starts with the first stage of the Batson/Wheeler test. (People v. Scott (2015) 61 Cal.4th 363, 391 (Scott).) At this stage, the defendant must set forth a prima facie case of discrimination "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." (Id. at p. 383.) The bar is relatively low; "[i]t is satisfied simply by evidence sufficient to permit us to draw an inference that discrimination may have occurred." (People v. Battle (2021) 11 Cal.5th 749, 773 (Battle).) "This step should not 'be so onerous that a defendant would have to persuade the judge-on the basis of all the facts, some of which are impossible for the defendant to know with certainty-that the challenge was more likely than not the product of purposeful discrimination.'" (Ibid.) "The ultimate issue is not whether there is a pattern of systematic exclusion, but instead '" 'whether a particular prospective juror has been challenged because of group bias.'" '" (Ibid.) We review the trial court's conclusion that Gantt had not made a prima facie showing "deferentially, considering only whether substantial evidence supports the trial court's conclusion." (Id. at p. 772.)
Here, in support of the prima facie showing, defense counsel argued that there were only three African American prospective jurors in the venire before hardships, only M.L. remained after hardships were granted, and that after the challenge, no African American jurors remained on the panel. (See People v. Crittenden (1994) 9 Cal.4th 83, 115 [A party may make a prima facie showing of discrimination by "pointing out 'that his opponent has struck most or all of the members of the identified group from the venire' "].) Defense counsel also observed that the prosecutor questioned M.L. "much more than most." Given that the victims and defendant all were African American, the elimination of the only African American prospective juror "raises heightened concerns about whether the prosecutor's challenge was racially motivated." (People v. O'Malley (2016) 62 Cal.4th 944, 980.) The fact that Gantt was convicted by a jury that contained no African American members is also "particularly germane where the case was racially charged." (Battle, supra, 11 Cal.5th at p. 774.) In this regard, we must consider that this case involved allegedly rival African American gangs shooting at each other in a crowded shopping mall and that the prosecutor knew the trial would involve the introduction of rap lyrics and music videos into evidence. Nonetheless, as the Attorney General correctly notes, "in the ordinary case . . . to make a prima facie case after the excusal of only one or two members of a group is very difficult.'" (Battle, supra, 11 Cal.5th at p. 774, see also People v. Edwards (2013) 57 Cal.4th 658, 698 ["merely assert[ing] that [the] [p]rospective [j]uror . . . was Black, and that there appeared to be only one other Black prospective juror . . . [was] insufficient" to establish a prima facie case]; People v. Rousseau (1982) 129 Cal.App.3d 526, 536 [fact that" 'there were only two blacks on the whole panel, and they were both challenged by the district attorney'" failed to establish prima facie case].)
The record does not contain racial identification for members of the venire or jury. The Attorney General, however, does not challenge the accuracy of defense counsel's observation. Nor did the prosecutor or the trial judge at the hearing.
We need not decide whether Gantt made a sufficient prima facie showing because, even assuming he did, we would reject Gantt's Batson/Wheeler argument on the grounds that the prosecution's offered justifications are credible and that, in light of all the relevant circumstances, Gantt has not shown purposeful race discrimination. Here, Gantt does not dispute that the prosecutor's concerns regarding M.L.'s uncertainty about how his work obligations will impact his jury service and his possible knowledge of some of the San Francisco officers are facially valid explanations for the challenge. Gantt also concedes that the prosecutor's concern regarding M.L.'s equivocation about whether he could be fair and impartial based on his concerns about racism in law enforcement and society was likewise facially valid at the time of Gantt's trial. (See People v. Hamilton (2009) 45 Cal.4th 863, 899 [prospective juror's belief that" 'the justice system was unfair to Blacks'" is a race-neutral reason for exercising a peremptory strike]; People v. Arias, supra, 101 Cal.App.5th at p. 1176 [prosecutor's concern that potential juror "was concerned about discrimination in the legal system against Black people" was a facially valid reason under the second stage of the Batson/Wheeler analysis].)
Code of Civil Procedure section 231.7, which imposes new limits on peremptory challenges in criminal cases, including challenges based on a prospective juror's distrust of law enforcement or the criminal legal system, was not applicable at Gantt's trial because it only applies to "trials in which jury selection begins on or after January 1, 2022." (Code Civ. Proc., § 231.7, subds. (e)(1), (i).)
Having concluded that the prosecutor's reasons for excusing M.L. were not facially discriminatory, we turn to the final step of the Batson/Wheeler framework. "The primary focus of the analysis is 'the persuasiveness of the prosecutor's justification for [the] peremptory strike. At this stage, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." '" (Arias, supra, 101 Cal.App.5th 1163, 1177.) Gantt contends the prosecutor's justifications were unsupported by the record and pretextual. We disagree.
The prosecutor's concerns regarding M.L.'s uncertainty about how his work obligations would impact his jury service and his possible knowledge of some of the San Francisco officers are both supported by M.L.'s questionnaire and voir dire answers. The fact that M.L. ultimately indicated that his work obligations would not impact his jury service does not preclude the prosecutor from having legitimate concerns based on his prior answers and his hardship request. Likewise, it was not unreasonable for the prosecutor to harbor concerns that, given his wife's employment, M.L. might recognize a witness mid-trial. Contrary to Gantt's argument on appeal, this is not something the prosecutor could easily have addressed in voir dire after M.L. had already told the court that he was "not sure" if he knew any of the witnesses but did not recognize them by name. Nor is it inconsistent with the prosecutor's decision not to challenge other jurors who indicated that they knew people on the witness list. In those cases, unlike with M.L., the prosecutor had the necessary information to make a reasoned decision, rather than possibly being surprised mid-trial. Finally, despite Gantt's protests to the contrary, the record quoted extensively above reflects equivocation from M.L. regarding his ability to be fair and impartial. Accordingly, Gantt has not met his burden of proving purposeful discrimination.
Gantt contends that there were two other jurors whose hardship requests were denied, yet the prosecutor did not challenge them. However, the court found that the trial would not interfere with the timing of the first juror's perceived conflict, and the juror agreed. As to the second, the prosecutor did ask whether his work obligations would be too distracting (as she did with M.L.), and he answered unequivocally that they would not be, explaining that he had "coverage and coworkers who will cover it." M.L., by contrast, stated that it was a "possibility" that his work obligations could become too distracting, and that "as time moves forward, then that could be a problem." Moreover, defense counsel ultimately exercised a peremptory challenge against the second juror, so the record does not reveal whether the prosecutor would have done so.
Gantt identifies two prospective jurors and two seated jurors who stated that they knew people on the witness list. As the Attorney General points out, however, three of those jurors avowed that they could be fair and impartial notwithstanding their knowledge of the witness. As to the fourth, the parties agreed that the person the prospective juror knew would not be called as a witness, and the prospective juror was later excused for cause by the parties' agreement.
II. Admission of the Instagram Messages
A. Factual Background
Prior to trial, the prosecution moved in limine to introduce into evidence the Instagram messages, "Lulwaka4 over there at tanfo," and "Come to tanfran the suckas over here," as a coconspirator's statements under Evidence Code section 1223. The prosecution asserted that the statements showed that the sender knew of the Double Rock group's presence at the mall and was trying to secure reinforcements. The prosecution argued that when the statements were made, the Tre-4 members were involved in a conspiracy to violently attack the Double Rock members, and that the conspiracy's existence was demonstrated by the content of the messages and the Tre-4 members' actions on BART and at the mall.
At the in limine hearing, Gantt argued that there was no foundation establishing that the sender was a coconspirator; there was no evidence that Gantt or the sender knew the Double Rock group members were at the mall; and the messages were "subject to some interpretation" because the recipient's identity was unknown and there was no evidence of what the recipient did when he or she got the message. The prosecutor disagreed, arguing that the statements were highly relevant and "essentially selfauthenticating" in that "what we have here is basically an individual sending a message saying, 'I am aware these people are at this location.' "
The court agreed that the text messages were highly relevant and ruled that the messages were admissible.
B. Discussion
Hearsay evidence, defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated," is generally inadmissible. (Evid. Code, § 1200, subds. (a) &(b).) Under Evidence Code section 1223, "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime . . . and in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivision (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence." Evidence supporting the existence of the conspiracy must be independent of the statement itself. (People v. Hardy (1992) 2 Cal.4th 86, 139.) The admission of evidence, including hearsay statements under the coconspirator exception, is generally reviewed for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1108.)
Gantt contends the court abused its discretion in admitting the messages because there is no independent evidence that a conspiracy to commit an assault upon the Double Rock group members existed at the time the messages were sent. The Attorney General argues that we need not reach the merits of Gantt's arguments because (1) the messages were not hearsay and (2) even if they were hearsay, Gantt did not object to their admission in the trial court on the ground asserted on appeal, so his argument has been forfeited. Alternatively, the Attorney General argues that the messages were admissible under the coconspirator exception to the hearsay rule.
We agree with the Attorney General that the statements were admitted for the nonhearsay purpose of proving Gantt's state of mind when he entered the mall and thus, that application of the coconspirator hearsay exception was not necessary to support their admission. Cited by both parties, the following discussion of hearsay evidence in Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442, 447-448 is instructive:" 'When evidence that certain words were spoken or written is admitted to prove that the words were uttered [or written] and not to prove their truth, the evidence is not hearsay. [Citations.] "The first and most basic requirement for applying the not-for-the-truth limitation . . . is that the out-of-court statement must be offered for some purpose independent of the truth of the matters it asserts. That means that the statement must be capable of serving its nonhearsay purpose regardless of whether the jury believes the matters asserted to be true. [Citations.]" [Citation.]' [Citation.] For example, suppose A hit B after B said, 'You're stupid.' B's out-of-court statement asserts that A is stupid. If those words are offered to prove that A is, indeed, stupid, they constitute hearsay and would be inadmissible unless they fell under a hearsay exception. However, those same words might be admissible for a nonhearsay purpose: to prove that A had a motive to assault B. The distinction turns not on the words themselves, but what they are offered to prove. The concept can prove analytically elusive when the words themselves also make an assertion." (Italics omitted.)
It is well established that out-of-court statements, when offered to show the effect on the hearer, are admissible as nonhearsay. (See People v. Jablonski (2006) 37 Cal.4th 774, 820-821 [a victim's statement later communicated to the defendant that she was afraid of the defendant was admissible to show, not that she was actually afraid, but the statement's effect on the defendant]; People v. Boyette (2002) 29 Cal.4th 381, 428-429 [testimony by defendant's mother that she had been threatened was not hearsay because it was not offered to prove the mother was actually threatened but for the purpose of showing the effect on the defendant who had learned of the threats].) Consistent with these cases, the text messages were offered to show that Gantt went to the mall believing that members of the Double Rock gang were there. Whether the statement was factually true and they were actually at the mall is not relevant to the nonhearsay purpose of the evidence.
As noted above, at the in limine hearing, Gantt argued that there was no evidence the sender or Gantt "had any knowledge that these people were there or that [he] could have known that they were there. Nothing occurred on the BART train. There's all kinds of videos of what occurred on the train, none of which corroborates that fact." But as the prosecutor argued, the inference that the sender had knowledge of the other group's presence at the mall can be drawn directly from the messages. The evidence at trial also supports an inference that the sender shared that information with Gantt before he entered the mall. The evidence shows that the messages were sent at 3:40 and 3:43 p.m. The surveillance video from the BART train shows Gantt sitting next to the sender shortly before they were sent. Between 3:42 p.m. and the group's arrival at the mall, the sender made a phone call, passed his phone around to another member of the group, and chatted with the group. As the prosecutor argued in closing, the jury could draw from this evidence the reasonable conclusion that the sender told Gantt and the others in his group that he believed the Double Rock members were at the mall.
Contrary to Gantt's argument, the Attorney General is not precluded from asserting a new theory of admissibility on appeal. "Our task is to review the trial court's ruling, not its reasoning.' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.'" (People v. Turner (2020) 10 Cal.5th 786, 807, quoting D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; People v. Brooks (2017) 3 Cal.5th 1, 39 [trial court's admission of statements under the hearsay exception for admissions by a party opponent does not preclude upholding admission on the ground not considered by trial court that the statements were admissible for a nonhearsay purpose].) Gantt cites Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 for the proposition that a proponent of evidence cannot assert a different theory of admissibility on appeal, but in that case the appellant claimed that the trial court erred by refusing to admit the proffered evidence. Here, Gantt claims the trial court erred by admitting the evidence; in that circumstance, the fact that the messages were admissible on a ground other than the prosecution argued below does not establish error.
Nor is the Attorney General judicially estopped from arguing that the evidence is admissible for a nonhearsay purpose."' "Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position." '" (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) The doctrine applies when a party takes two wholly inconsistent positions in judicial or quasi-judicial proceedings, is successful in asserting the first position, and the first position was not taken as a result of ignorance, fraud, or mistake. (Id. at pp. 986987.) The prosecutor's assertion of a hearsay exception in the trial court is not inconsistent with the assertion on appeal that the evidence was also admissible for a nonhearsay purpose. In any event, because the statements were admissible for a nonhearsay purpose, any error in the trial court's admission of the statements under the coconspirator exception as urged by the prosecution in the trial court would be harmless.
Because we conclude that the evidence was properly admitted for a nonhearsay purpose, we need not consider Gantt's argument that the trial court erred by failing to sua sponte instruct the jury with CALCRIM Nos. 416 (evidence of uncharged conspiracy) and 418 (coconspirator's statements) with respect to the messages admitted under the coconspirator hearsay exception.
III. Admission of Expert Opinion
Gantt contends that the court violated his right to due process by admitting the police officer's opinion that the shooting was committed, in part, for personal revenge, that it was probably Gantt's idea and not directed by the gang, and that the text messages regarding the presence of the Double Rock group at the mall demonstrated "intent or premeditation." The Attorney General argues that each of the officer's opinions were properly admitted because they were elicited in relation to a factual hypothetical and not directly to Gantt.
A. Background
At trial, the officer was asked a series of questions regarding a hypothetical factual scenario that closely tracked the facts in this case. As relevant here, the officer was asked, "How does the fact that that member of Group A may have personally wanted revenge, factor into the behavior in this hypothetical?" The officer answered, "It factors into the whole pattern of retaliatory violence involving gangs in that this person is going to get revenge and then also gain respect in the gang for carrying out that revenge on the group that shot him." Then, the prosecutor asked, "In your opinion, would this shooting have been at the direction of Group A?" The officer replied, "It's possible, but I think the individual probably had that idea himself." Finally, the officer testified that he believed the shooting was committed in association with the gang because the hypothetical had the shooter "being with two other people affiliated with that gang, and then going directly towards a group of enemy gang members with-with those people." When asked how the Instagram messages factored into this opinion, the officer answered, "It's consistent with that, that it seems like Group A knew that there were enemy gang members in a certain area; and it shows some kind of intent or premeditation that they know they're there, and they're going to go there."
B. Discussion
" 'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness [citation] and to give testimony in the form of an opinion [citation]. Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citation.] The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.'" (People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang); see also People v. Edwards, supra, 57 Cal.4th 658, 756 [Expert opinion testimony" '" 'will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men [and women] of ordinary education could reach a conclusion as intelligently as the witness" '" '" (italics omitted)].)
In Vang, supra, 52 Cal.4th at pages 1045-1046, the court confirmed that a prosecutor may use fact-specific hypotheticals that closely track the evidence in the case to elicit an officer's opinion that a crime was committed in association with a gang and for its benefit. Officers may be asked hypothetical questions that "embrace[] the ultimate issue to be decided by the trier of fact," but they cannot offer an opinion on whether a defendant is guilty because"' "the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." '" (Vang, supra, 52 Cal.4th at p. 1048.) For this reason, it is not permissible for a gang "expert to opine that the particular defendant[ ] committed a crime for a gang purpose." (Id. at p. 1049.)
" 'When expert opinion is offered, much must be left to the trial court's discretion.'" (People v. Rodriguez (2014) 58 Cal.4th 587, 639; see People v. McDowell (2012) 54 Cal.4th 395, 426 ["The trial court has broad discretion in deciding whether to admit or exclude expert testimony"].) Accordingly, "[w]e review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion." (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
In the trial court, Gantt objected to the officer's testimony on the ground that it was based on an improper hypothetical. Specifically, he objected that the hypothetical "too closely parallels the evidence. It asks for an opinion of the officer as to the outcome of the trial." He later added that the officer's testimony about the significance of a message to the group that read "come to the mall; the suckas are here" was an "improper comment on the evidence." At a break after the officer's testimony, defense counsel expanded on his objection for the record. He argued, "the hypothetical questions, in my view, are entirely improper. The law does not permit an expert witness to opine on a set of facts so close to the evidence that it essentially allows him to give an opinion as to how the trial should come out....[¶] Counsel did nothing more than give her closing argument in the form of a hypothetical and had this witness opine my client is guilty. That's totally improper. That's not what a hypothetical is designed to do. And, in fact, expert testimony is exactly the opposite. [¶] . . .[¶] A hypothetical is supposed to be a general question that parallels the general nature of the evidence, not with the specificity of every detail that counsel gave with regard to this hypothetical." Defense counsel added that the officer "also basically gave an opinion regarding the legal issues in the case; whether or not there was self-defense; premeditation; all kinds of opinions that are unwarranted and improper."
On appeal, Gantt concedes the prosecutor was permitted to use a hypothetical that closely tracked the evidence in this case in order to elicit the officer's opinion the shooting was committed in association with a gang and for its benefit. He contends, however, that the officer's testimony exceeded the scope of expert testimony permitted in Vang. He argues that the officer's testimony that the shooting was probably the hypothetical shooter's idea and likely was committed for personal as well as gang-related reasons was improper because the jury "was perfectly well equipped to determine whether the shooting was Mr. Gantt's 'idea' alone and whether he was motivated by a personal desire for revenge." He suggests that "the prosecutor could have easily elicited opinion testimony the shooting benefited the gang generally by exacting retaliation against rivals without getting into Mr. Gantt's distinct personal motive." Gantt argues that the officer's opinion that the Instagram messages demonstrated the "intent or premeditation" was improper "[b]ecause the jury was just as well equipped to determine whether [the] messages showed intent or premeditation, [so that the officer's] opinion in this respect invaded the province of the jury to decide the case and amounted 'to no more than an expression of his general belief as to how the case should be decided.'" Finally, Gantt argues that the opinions "were not rendered admissible merely because they responded to ostensibly hypothetical questions."
We need not decide whether the expert's opinions exceeded the permissible scope of a gang expert's testimony because any arguable error in the admission of this testimony was not prejudicial. Generally, a claim that a witness "gave inadmissible opinion testimony on the central question of . . . guilt . . . is, in substance, one of erroneous admission of evidence, subject to the standard of review for claims of state law error." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Under Watson, we ask whether there is a reasonable chance-more than an abstract possibility but not necessarily" 'more likely than not' "- that a result more favorable to defendant would have been reached absent the assumed error. (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041.) Where the admission of evidence results in a fundamentally unfair trial in violation of an appellant's constitutional right to due process, however, we "will reverse unless the error is harmless beyond a reasonable doubt." (People v. Rouston (2024) 99 Cal.App.5th 997, 1016, citing Chapman v. California (1967) 386 U.S. 18, 24; see also People v. Partida (2005) 37 Cal.4th 428, 439 ["the admission of evidence . . . results in a due process violation only if it makes the trial fundamentally unfair" (italics omitted)]; People v. Albarran (2007) 149 Cal.App.4th 214, 232 [only on "rare and unusual occasions" can admission of evidence result in an error of such magnitude so as to raise federal due process concerns and trigger Chapman review].)
Based upon our careful review of the record, we conclude that the admission of the challenged testimony, if error, did not render the trial fundamentally unfair. Nor is it reasonably probable that Gantt would have obtained a more favorable result had his objections to the officer's testimony been sustained. The challenged testimony did not introduce into evidence any facts that were not otherwise admissible. Evidence of Gantt's personal revenge motive and the Instagram messages were both admitted independently of the expert's objectionable testimony. Nor did the expert judge the credibility of any witness's testimony. To the extent the officer drew inferences from evidence that may have belonged within the province of the jury, the inferences were fairly straightforward, so there is no reason to believe that jurors would have deferred to or relied on the expert's opinion rather than drawing their own conclusions from the evidence.
For this reason, Gantt's reliance on People v. Rouston, supra, 99 Cal.App.5th 997 is misplaced. In Rouston, the court found error where the prosecution's gang expert and designated investigator was asked" 'based on the witness testimony'" who he believed the shooter was, and the detective, over objection, stated he believed it was the defendant. (Id. at p. 1012.) The Rouston court found reversible error in part because" 'the jury had every reason to look to [the detective] as a far better judge than they could be' regarding the reliability of other witnesses' testimony, and what inferences to draw from the prosecution's other evidence." (Ibid.) The court concluded the trial court's allowance of the detective's testimony was an abuse of discretion because it "usurped the jury's role." (Ibid.) The court found the error prejudicial under Watson because the opinion "bolstered the witness testimony that favored the prosecution and minimized the inconsistencies in that evidence." (Id. at p. 1018.)
Rouston is distinguishable. In Rouston, the detective's opinion that the defendant was the shooter was given in response to a direct question essentially asking the detective to evaluate the credibility of the witnesses' testimony at trial. Here, the officer's challenged statements were made in connection with a hypothetical designed to elicit expert opinion on whether the shooting was gang related. The text messages that the expert believed showed knowledge, intent, or premeditation did not require an explanation or evaluation of credibility. There is no reason to believe the jury deferred to the officer's opinion in determining what inferences to draw from those messages. Similarly, given the expert's admissible testimony that it was not likely that the shooting was directed by the gang, the jury did not need to rely on the expert's testimony to draw the contrary inference that it was therefore more likely that the shooting was Gantt's idea. Because we do not believe the jury would have put as much weight on the expert's testimony as it may have in Rouston, we find no prejudicial error regarding the admission of the expert's testimony in this case.
IV. Sufficiency of the Evidence of Premeditated Attempted Murder
Gantt contends that there is insufficient evidence to support his convictions for premediated attempted murder. "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) Under section 664, subdivision (a), the punishment for an attempted murder that is premeditated is increased to "imprisonment in the state prison for life with the possibility of parole."
"' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt." '" (People v. Smith (2005) 37 Cal.4th 733, 738-739.) The reviewing court"' "must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." '" (Id. at p. 739.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
A. Intent
"Direct evidence of intent to kill is rare, and ordinarily the intent to kill must be inferred from the statements and actions of the defendant and the circumstances surrounding the crime." (People v. Canizales (2019) 7 Cal.5th 591, 602.) In People v. Stone (2009) 46 Cal.4th 131, the California Supreme Court considered "whether the intent must be to kill a particular person, or whether a generalized intent to kill someone, but not necessarily a specific target, is sufficient." (Id. at p. 136.) The court held that "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind." (Id. at p. 140; see also People v. Perez (2010) 50 Cal.4th 222, 230 ["a rational trier of fact could find that defendant's act of firing a single bullet at a group of eight persons from a distance of 60 feet established that he acted with intent to kill someone in the group he fired upon"].)
Gantt contends that the evidence here does not support an inference he indiscriminately intended to kill all of the Double Rock group members, but indicates instead that his target was the other shooter and that the two victims were the unintended consequence of his reckless conduct. Gantt does not cite any evidence in the record suggesting a pre-existing, personal dispute between Gantt and the other shooter. Rather, he argues that the other shooter was the target primarily because he was armed. Surveillance video reflects, however, that Gantt began running at the other group before the other shooter took out his gun. Then, Gantt and the other shooter exchanged an initial shot simultaneously before Gantt, after a brief pause, fired seven more rounds-only the first of which coincided with the second shot by the other shooter-towards the fleeing people. Gantt's suggestion that the video footage shows that he fired "the second volley in the same direction and without moving his arm as if he was targeting multiple individuals" is not persuasive. While Gantt did not wave the gun widely while shooting, he did adjust the position of his feet from side to side numerous times, so the gun was not stationary the entire time. Moreover, given the narrow width of the walkway and the distance over which he was shooting, the lack of significant movement is not particularly meaningful. The varied locations of the bullet fragments, holes, and strike marks further support the inference that he was not firing at a single target. As a whole, the evidence supports a finding by the jury that Gantt intended to kill each of the Double Rock members, or as many as possible, not just the other shooter.
Contrary to Gantt's argument, the presence of group M with the Double Rock group does not negate a finding that he intended to shoot all of the Double Rock members. Gantt writes: "[T]he group that fled from Mr. Gantt did not just consist of [Double Rock] but also group M. Importantly, Groups M and [Double Rock] exited the Fresh Apparel store together, rushed Mr. Gantt as one group, with Group M members in the lead, causing him to retreat. Groups M and [Double Rock] then fled in one group after Mr. Gantt turned around and ran towards them. He then fired two volleys in the direction [Double Rock and group] M had fled. But as conceded, the prosecutor did not 'present any evidence that appellant had a motive to kill Group M members.' Nor was there any evidence that Mr. Gantt's manner of shooting somehow targeted the fleeing [Double Rock] members but not the interspersed Group M members. Because there were 2 to 3 Group M members within the group of 11 youth who fled from Mr. Gantt, respondent's theory that Mr. Gantt indiscriminately intended to kill all the youth who fled from him is not supported by the facts or its own theory of motive." A review of the surveillance video shows, however, that while the members of group M approached Gantt first, they were quickly overtaken by members of the Double Rock group as they jogged towards Gantt. The same footage shows the group M members were among the first to retreat, and that by the time the shooting started, no group M members were located between the shooters. The fact that Gantt did not immediately start shooting as the groups exited the clothing store might be explained by the fact that at that time, the members of group M were between him and the Double Rock group. Arguably, his delay would support an inference that he was targeting the Double Rock group, not group M.
The fact that the Double Rock group was not close together when Gantt fired at them is also not dispositive. In People v. Foster (2021) 61 Cal.App.5th 430, 443-444, the court noted that the group being shot at contained "six males standing so closely to one another that they fit within the frame of the metal door of the barbershop" and used that circumstance as evidence in support of the shooter's intent to kill them all. Such close proximity, however, is not necessarily required. Again, as the Attorney General argues, "appellant's focus on what is not in the record-i.e., evidence of the extreme proximity present in Foster-has no place in a sufficiency of the evidence review."
Gantt notes that the information did not generically charge him with attempting to murder two unnamed members of the Double Rock group, but instead alleged that he intended to kill the two victims in particular. The allegations in the information, however, have no bearing on the sufficiency of the evidence and Gantt does not claim that he received deficient notice of the charges against him.
Finally, contrary to Gantt's argument, the prosecutor did not rely on the "kill zone" theory of intent at trial nor was the jury given any such instructions. Under the "kill zone" theory, a defendant can be convicted of attempted murder where (1) the defendant has a primary target, (2) the defendant harbors the intent to annihilate everyone within the kill zone in order to make sure he or she kills the primary target, and (3) the alleged victim of the attempted murder was inside the kill zone. (People v. Canizales, supra, 7 Cal.5th at pp. 596-597.) Here, the prosecution did not argue at trial that Gantt had "a primary target" and "intended to ensure harm to [him] by harming everyone in [his] vicinity" or in his "zone of harm." (People v. Bland (2002) 28 Cal.4th 313, 329, 330.) Rather, in closing argument, the prosecutor argued that Gantt "intended to kill any and every member of Double Rock who was there that day. That's what the evidence shows. And that's certainly what he tried to do with his nine shots at that group. But he's charged with the attempted murder of the two that he hit."
Gantt's reliance on the prosecutor's statements at the preliminary hearing regarding the "kill zone" theory is misplaced. As Gantt acknowledges, the prosecutor's argument at the preliminary hearing that there was sufficient evidence of intent based on the "kill zone" theory was rejected by the court and was not relied on by the prosecutor at trial.
As discussed below, the evidence indicates that only one of the victims was hit by a bullet that Gantt fired. But that fact does not undermine the two convictions for attempted murder given that Gantt fired nine times in the direction of the Double Rock group. (See People v. Foster, supra, 61 Cal.App.5th at p. 444.)
Accordingly, substantial evidence supports Gantt's convictions for attempted murder.
B. Premeditation and Deliberation
Gantt contends there is insufficient evidence that he acted with premeditation and deliberation."' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance.'" (People v. Cole (2004) 33 Cal.4th 1158, 1224 (Cole).) Evidence typically found sufficient to support such findings" 'falls into three basic categories: (1) facts about how and what [the] defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing- what may be characterized as "planning" activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed" [citation]; [and] (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2).'" (People v. Thomas (1992) 2 Cal.4th 489, 516-517, italics omitted.) In Cole, supra, 33 Cal.4th at page 1224, the court reiterated the applicability of these factors and observed, "When evidence of all three categories is not present, 'we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.' [Citation.] But these categories of evidence, . . . 'are descriptive, not normative.' [Citation.] They are simply an 'aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.'" Gantt argues that there is insufficient evidence of planning, motive and/or method to support the jury's premeditation finding. We disagree.
Here, the record reflects a strong motive for the shooting, coupled with some evidence of both planning and a deliberate manner of shooting. In closing argument, the prosecutor, after detailing the feud between Gantt and Double Rock, argued that the shootings were planned after Gantt learned, while on the BART train, that there were Double Rock members at the mall: "So when the defendant heard that Double Rock was at Tanforan, he was already thinking about the possibility of killing a member of Double Rock; about wanting to kill a member of Double Rock. And when he heard that not just [Lulwaka 4] was there, but the 'suckas over here,' he knew this was his opportunity." The prosecutor added, "We also have the defendant's actions inside the mall. Tre-4 goes directly to the second floor of the mall.... They go immediately to that second floor where Double Rock was." According to the eyewitness, when the Double Rock group and group M exited the clothing store, someone motioned toward Gantt's group in a manner that the witness interpreted as indicating they wanted to "take it outside" before moving towards Gantt. After the group members turned and ran away from Gantt, the witness saw Gantt holding his pocket or waistband, which the witness interpreted as a signal that he had a gun. The surveillance videos are generally consistent with the witness's testimony. Based on this evidence, the prosecutor argued that, after locating the Double Rock group, Gantt "walks up to Double Rock and indicates to them that he has a gun. He then slowly walks back and then chases Double Rock after they run from him."
Gantt disputes that he had a motive to shoot the specific victims in this case and argues that there is no evidence that he planned on killing the specific victims in advance. But as discussed above, the record reflects the ongoing dispute between Gantt and Double Rock as a whole, and substantial evidence established his intent to kill all of the Double Rock members present at the mall that day. Accordingly, the relevant question is not whether he knew the identity of and planned to shoot the specific victims in advance, but whether there is substantial evidence that he planned in advance to shoot all Double Rock members present at the mall. (See People v. Ramos (2004) 121 Cal.App.4th 1194, 1208 [upholding convictions for premeditated attempted murder as to each victim in a fleeing vehicle based on evidence that the defendant, who came to a party armed and expecting trouble, fired indiscriminately at the vehicle].)
Gantt also suggests that "[a]t most [the text messages] suggest intent to engage in a physical confrontation" with the Double Rock members. He argues that "the surveillance shows clearly Mr. Gantt responded to being rushed by 11 youth, one of whom was armed, and he [had] ample time to shoot before he actually did if that had been his plan. And, even if the prosecutor was correct the mall video showed him reaching towards his waist indicating he had a gun, this could only be interpreted as a defensive gesture given that he retreated." The question, however, is not whether the jury could have reached a different verdict on this evidence, but whether substantial evidence supports the verdict it did reach. As noted, Gantt was armed and went directly to where the Double Rock group was located and began shooting shortly thereafter, without having engaged in any verbal communication. Based on the above evidence, a reasonable juror could conclude that Gantt approached the Double Rock group having planned to shoot at them. (See People v. Cardenas (2020) 53 Cal.App.5th 102, 122 [defendant's "act of taking a loaded weapon with him to the restaurant is evidence of preparation and planning for involvement in a violent encounter"], citing People v. Salazar (2016) 63 Cal.4th 214, 245, [the "defendant brought a loaded gun with him to the [restaurant], demonstrating preparation"].) Gantt's conduct at the mall, directly seeking out a confrontation with his enemies, distinguishes this case from the observation in People v. Ware (2022) 14 Cal.5th 151, 171, that "[i]ndividuals-gang members included-frequently possess guns without harboring any intent to use the guns to commit premeditated, deliberate killings."
For the same reason, Gantt's youth does not necessarily preclude a premeditation finding by the jury. Gantt is undoubtedly correct that his "mental and emotional development" was relevant to his culpability. (Miller v. Alabama (2012) 567 U.S. 460, 476.) In that regard, expert testimony was offered regarding his youth and how his reactions had been impacted by prior trauma. The jury nonetheless concluded that the shootings were premeditated, rejecting Gantt's argument that he shot spontaneously as a result of his fear that he was in danger.
Finally, citing People v. Cardenas, supra, 53 Cal.App.5th 102, Gantt argues that "[p]remeditation and deliberation must be assessed as to each victim where, as here, multiple victims are involved," and that there is no basis to find that the shooting of the 16-year-old victim was premeditated because he advanced towards Gantt last with "visible reluctance" and was "the first to retreat, signaling for the others to do so, as well." Cardenas, however, is distinguishable.
In Cardenas, the court found evidence of an intent to kill sufficient to support defendant's two convictions for attempted murder. (People v. Cardenas, supra, 53 Cal.App.5th at p. 121.) The court found, however, substantial evidence of premeditation for only one of the attempted murder convictions. Rejecting the defendant's argument that the shootings were the product of a" 'random attack'" with no" 'evidence of prior planning activity or motive to kill,'" the court reasoned, as cited above, that bringing a loaded weapon to the restaurant was evidence of preparation and planning for involvement in a violent encounter. (Id. at pp. 121-122.) With respect to one of the victims, the court found that there was also evidence of motive to kill based on the victim's approach to the defendant during the verbal altercation before the shooting, and that the manner of the shooting-five shots into the group of men with whom he was standing-supported a finding of premeditation and deliberation. For the other victim, however, the court reasoned, "Although the planning evidence remains the same, there is no evidence of motive, and the manner in which [the victim] was shot does not support a finding that the attempted murder was the result of premeditation and deliberation." (Id. at p. 122.) The court explained that the second victim "was not involved in the verbal confrontation" and remained significantly behind the other men during the shooting. (Ibid.) In contrast, the evidence here established that both victims were part of the Double Rock group that approached Gantt after exiting the clothing store. Accordingly, Gantt's motive, intent, and planning extended to both victims. Any "reluctance" exhibited by the older victim with regard to the group's initial advance towards Gantt does not defeat the showing of premeditation and deliberation.
Accordingly, substantial evidence supports the jury's finding that the attempted murders were premeditated and deliberate.
V. Great Bodily Injury
The information in this case alleged that Gantt personally inflicted great bodily injury in the commission of counts 1 through 4 and 7. Under Section 12022.7, subdivision (a), "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." "The Legislature's use of the term 'personally inflict' in section 12022.7 signifies its intent to punish only actors who directly inflict harm." (People v. Ollo (2021) 11 Cal.5th 682, 693.) Gantt contends that the great bodily injury enhancements on counts 1 through 4 and 7 must be reversed because there is insufficient evidence that he, rather than the other shooter, injured the victims.
Relying on In re Sergio R. (1991) 228 Cal.App.3d 588 (Sergio R.), the Attorney General argues that Gantt's contention fails because Gantt used force that could have caused the injuries. In Sergio R., the court held that "where . . . more than one assailant discharges a firearm into a group of people and 'it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered.'" (Id. at pp. 601-602; see also People v. Modiri (2006) 39 Cal.4th 481, 486 ["For 20 years, courts have upheld personalinfliction findings where the defendant physically joins a group attack, and directly applies force to the victim sufficient to inflict, or contribute to the infliction of, great bodily harm"].) Gantt argues that the group beating cases are inapplicable because the two shooters in this case were not part of a group attack but were instead on opposing sides.
The parties have not cited, nor have we found, published authority applying the group assault theory in factual circumstances like this. We question its application but need not resolve Gantt's argument on this ground because, even if it might be applicable in some cases, the record does not support its application in this case.
In People v. Magana (1993) 17 Cal.App.4th 1371, 1381, the court held that "[t]he analytic touchstone [in Sergio R.] was the impossibility of determining which injury the accused had actually inflicted." In People v. Gutierrez (1996) 46 Cal.App.4th 804, 816 (Gutierrez), the court reiterated that the "exception applies only when proof of the personally liable defendant is impossible. If the prosecution could have introduced evidence resolving the issue, but did not, the failure of proof does not justify imposition of the enhancement on all potentially culpable defendants. [Citation.] The prosecution bears the burden of proving that either a defendant personally caused the great bodily injury or death of the victim, or it is impossible to determine which defendant caused the great bodily injury or death of the victim, and the defendant's conduct was of a nature that it could have caused the great bodily injury or death of the victim." (See also People v. Banuelos (2003) 106 Cal.App.4th 1332, 1338 ["the prosecution does bear the burden of showing that it cannot be determined which assailant inflicted a particular injury in the context of a group beating"].)
In People v. Magana, supra, 17 Cal.App.4th at page 1381, the court held that there was no substantial evidence to support the enhancement findings where, given the available evidence, the prosecution could have attempted to prove which injuries the defendant had actually caused but chose not to. The court explained, "Eyewitness testimony established that defendant and Adame used different weapons; defendant shot a rifle while Adame shot a handgun. As the police identified the different types of bullets and cartridges retrieved from the crime scene, the People, through expert testimony, could have opined which firearm discharged which bullet. A bullet was removed from one victim and introduced into evidence but its caliber was never identified. The jury recognized this gap in the evidence by asking whether the People had to prove that defendant had fired the bullets which shot the [victims], or establish that it was not possible to do so." (Ibid.) In Gutierrez, supra, 46 Cal.App.4th at pages 809-810, a .380-caliber and two .25-caliber guns were recovered from the crime scene, and the fatal shot was fired from the .380-caliber weapon, but the prosecutor made no effort to prove which defendant pulled the trigger. The reviewing court determined that "the record does not reflect an impossibility of proof, but only a failure of proof.... As such, we cannot conclude that the failure of proof of [the] identity of the shooter who personally caused the death justifies the imposition of the sentence enhancement on all three defendants." (Id. at p. 816.)
Here, the undisputed evidence at trial was that both victims were shot in the front of their bodies and that the 14-year-old victim was shot once and the 16-year-old victim was shot twice. The evidence also showed that Gantt fired nine times and the other shooter fired twice. Surveillance video shows the 14-year-old victim was caught between the two shooters and was running towards the Double Rock shooter when he was shot. No surveillance footage shows the moment when the other victim is shot. The bullet casings from the Double Rock shooter's gun, however, were located near the T-Mobile store and the 16-year-old was found on the ground outside the Timeworks store. A map of the mall introduced at trial shows that the Timeworks store is considerably behind the T-Mobile store in the opposite direction from Gantt.
Although no bullets were recovered in the victims and no evidence was provided as to which bullets caused the victim's injuries, the evidence described above provides some basis to determine which shooter shot which victim. The prosecutor, however, made no attempt to parse the evidence for the jury. Rather, she detailed the severity of victim's injuries and argued summarily, "[s]o, obviously, the defendant personally inflicted great bodily injury" upon the victims. The prosecutor did not argue that it was impossible to determine who caused the injuries and the jury was not given the group assault portion of CALCRIM No. 3160. Insofar as the prosecutor failed to prove impossibility, the Attorney General cannot now rely on the group assault exception to support the great bodily injury enhancements.
Substantial evidence, however, supports the jury's findings as to the 16-year-old victim. The fact that the 14-year-old victim was shot once in the front while facing the other shooter supports the reasonable inference that Gantt did not fire the shot that injured him. In that case, the 16-year-old victim had to have been shot at least once by Gantt because the other shooter only fired twice. The fact that the 16-year-old was located behind the Double Rock shooter further supports the reasonable inference that he was shot by Gantt. Accordingly, we affirm the true findings on counts 2, 4, and 7 but reverse the true findings on counts 1 and 3.
VI. Assembly Bill 333
Assembly Bill 333 became effective on January 1, 2022, after the jury convicted Gantt but while his appeal was pending, and did two key things that are relevant here. First, it altered and made more rigorous the elements of the section 186.22 gang offense and enhancement. (People v. Tran (2022) 13 Cal.5th 1169,1206 (Tran); People v. Cooper (2023) 14 Cal.5th 735, 744745.) Second, it added section 1109, which, on defense request, requires a gang enhancement charge to be tried separately from the substantive offenses. (Tran, supra, at p. 1206.)
On appeal, Gantt contends that he is entitled to the benefit of these amendments. After briefing was complete, the California Supreme Court decided People v. Burgos (2024) 16 Cal.5th 1, 8 (Burgos) in which the Court held that section 1109 does not apply retroactively. We are bound by the Supreme Court decision and accordingly reject Gantt's contrary argument on appeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The Attorney General concedes, however, that Assembly Bill No. 333's substantive amendments to section 186.22 apply retroactively (see Tran, supra,13 Cal.5th at pp. 1206-1207) and compel reversal of the gang enhancements applied to counts 1 through 7. In particular, as amended, section 186.22, subdivision (e)(1) and (g) require proof that the predicate offenses used to establish a" 'pattern of criminal gang activity'" benefited the criminal street gang in a way that was more than reputational. As the Attorney General concedes, the officer offered to establish the gang allegations testified about several predicate crimes committed by Tre-4 members, but the evidence did not show that any of the prior offenses benefitted Tre-4 in a way that was more than reputational. (§ 186.22, subds. (e), (g).) Accordingly, we agree that, on this record, a properly instructed jury would not have found the gang enhancement allegations true. Gantt does not dispute that on remand the prosecutor must be given the opportunity to retry the allegations. (People v. Cooper, supra, 14 Cal.5th at pp. 746-747.)
Contrary to Gantt's argument, reversal of the gang enhancement allegations does not compel reversal of the underlying convictions as well. Gantt argues that it is not likely that "the mountain of gang evidence" would have been admitted "in a post-AB 333 trial." Specifically, he suggests that, insofar as the officer described Tre-4 as an "informal criminal street gang" at the preliminary hearing, it would likely not have qualified as a criminal street gang under the amended definition. Although Assembly Bill 333 amended the definition of "criminal street gang" under section 186.22, subdivision (f), to require that the association or group be "organized," it retained the language that the association or group may be "formal or informal." (Compare § 186.22, subd. (f) with former § 186.22, subd. (f), Stats. 2017, ch. 561, § 178, eff. Jan. 1, 2018.) Here, the officer testified that Tre-4 had "somewhat" of a hierarchy and that there are "people that have somewhat of a leadership role based on their status in the gang." At that time, he believed, however, that Tre-4 had one leader. In the course of discussing how he became aware of who the leader was, the officer was asked whether he had been given "any records of any hierarchy" by gang members. He responded, "No. We're dealing with an informal criminal street gang. There is no real rank structure. There is no like military structure. There is no president or general, lieutenant, captain like that. It is usually older members who are more criminally savvy, more older, maybe have money, influence the younger gang members." On this record, we cannot conclude that the court would not have held Gantt to answer on the gang allegations under the amended statute or that it would have stricken the enhancement allegations before trial.
In addition, even without the gang allegations, at least some of the gang evidence admitted at trial would have been admissible to show motive and intent. (See Tran, supra, 13 Cal.5th at p. 1208 ["gang evidence, even if not admitted to prove a gang enhancement, may still be relevant and admissible to prove other facts related to a crime"]; People v. Hernandez (2004) 33 Cal.4th 1040, 1049 ["evidence of gang membership is often relevant to, and admissible regarding, the charged offense"].) Insofar as Gantt fails to argue that specific evidence would not have been admissible for this purpose, any argument that certain evidence was prejudicial has been forfeited.
VII. Evidence Code Section 352.2
Evidence Code section 352.2, which was enacted after Gantt's conviction, provides that when a party seeks to introduce a form of creative expression such as rap lyrics into evidence, the court, in addition to performing a section 352 analysis, must consider that: "(1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice includes, but is not limited to, the possibility that the trier of fact will, in violation of [Evidence Code] Section 1101, treat the expression as evidence of the defendant's propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings." "In enacting the provision, the Legislature made the following findings and declarations, showing that a particular concern was the possible unfair prejudice stemming from the admission of rap lyrics: [¶] '(a) Existing precedent allows artists' creative expression to be admitted as evidence in criminal proceedings without a sufficiently robust inquiry into whether such evidence introduces bias or prejudice into the proceedings. In particular, a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence. [Citations.] [¶] (b) It is the intent of this Legislature to provide a framework by which courts can ensure that the use of an accused person's creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.'" (People v. Ramos (2023) 90 Cal.App.5th 578, 591-592, review granted July 12, 2023, S280073 (Ramos).)
Gantt contends that Evidence Code section 352.2 applies retroactively to him and requires reversal of his convictions. There is a split of authority among the Courts of Appeal as to whether Evidence Code section 352.2 applies retroactively to cases not yet final, and our Supreme Court is currently considering the issue. (People v. Venable (2023) 88 Cal.App.5th 445, 448 [Evid. Code, § 352.2 is retroactive], review granted May 17, 2023, S279081 (Venable); Ramos, supra, 90 Cal.App.5th 578, 596, review granted [Evid. Code, § 352.2 is not retroactive]; People v. Slaton (2023) 95 Cal.App.5th 363, 376 [same], review granted Nov. 15, 2023, S282047 (Slaton).)
The general rule is that "when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively." (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) Under Estrada, an exception exists, however, for "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability." (People v. Gentile (2020) 10 Cal.5th 830, 852; People v. Frahs (2020) 9 Cal.5th 618, 628 (Frahs) [" 'Estrada stands for the proposition that, "where the amendatory statute mitigates punishment and there is no saving[s] clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"' "].)
To start, we note that nothing in the Legislature's findings and declarations give any express indication that the Legislature intended Evidence Code section 352.2 to apply retroactively to nonfinal cases. (Ramos, supra, 90 Cal.App.5th at pp. 592-593, rev. granted.) In Ramos and Slaton, the court held that Evidence Code section 352.2 was not retroactive because it neither lessened criminal punishment nor reduced criminal liability. (Ramos, supra, 90 Cal.App.5th at p. 596, rev. granted; Slaton, supra, 95 Cal.App.5th at p. 376, rev. granted.) The court in Ramos explained, "Even though Evidence Code section 352.2 may, in many instances, end up being beneficial to a criminal defendant in that it may result in the exclusion of evidence favorable to the People, it is not a statute that creates the possibility of lesser punishment or any other type of more lenient treatment. It is also not a statute that reduces criminal liability, such as by altering the substantive requirements for a conviction or expanding a defense. Instead, the Legislature's findings and declarations show that Evidence Code section 352.2 was enacted to prevent the admission of unfairly prejudicial evidence when not warranted in the circumstances of a particular case." (Ramos, supra, 90 Cal.App.5th at p. 595, rev. granted, italics omitted.)
In Venable, the court reached a different conclusion. (Venable, supra, 88 Cal.App.5th at p. 456, rev. granted.) There, the court held that the Estrada exception is not limited to beneficial changes regarding punishment and/or liability but applies equally where a new law creates a potential ameliorative benefit to defendants. (Id. at pp. 456-457.) In so ruling, the court relied on Frahs, supra, 9 Cal.5th at pp. 624, 626, in which the Supreme Court held that new provisions that gave trial courts the discretion to grant pretrial diversion for defendants with mental health disorders applied retroactively. The court in Venable explained, "That change was procedural and, like the new evidence rule in this case, didn't directly reduce punishment. But the Supreme Court dug deeper. In considering whether the new law was ameliorative under Estrada, they emphasized 'by design and function [the change] provides a possible ameliorating benefit for a class of persons-namely, certain defendants with mental disorders-by offering an opportunity for diversion and ultimately the dismissal of charges.' [Citation.] They also emphasized the new procedures 'carry the potential of substantial reductions in punishment.' [Citation.] On those grounds, they concluded the legislative changes were ameliorative and applied retroactively to nonfinal cases even though they did not directly or necessarily affect punishment." (Venable, supra, 88 Cal.App.5th at pp. 456-457, rev. granted, italics omitted.) The Venable decision also cites People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308, in which the court held that Proposition 57, which changed the law to prohibit prosecutors from filing charges directly against a minor in an adult criminal case and to give juvenile courts discretion to determine whether a minor can be prosecuted and sentenced as an adult, applied retroactively. The Venable court reasoned, "In Lara, the Court acknowledged Proposition 57 did not mitigate punishment for any particular crime but held the Estrada rule applies because the new law 'reduces the possible punishment' for juveniles. [Citation.] The Court emphasized '[t]he possibility of being treated as a juvenile in juvenile court-where rehabilitation is the goal-rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment.'" (Venable, supra, 88 Cal.App.5th at p. 457, rev. granted.)
Although the Supreme Court has yet to decide the retroactivity of Evidence Code section 352.2, after the Supreme Court's recent decision in Burgos, supra, 16 Cal.5th 1, we do not think Venable's analysis is more persuasive. As noted above, Burgos held that Evidence Code section 1109 (providing for a bifurcated trial of gang enhancement allegations) was not retroactive. The court explained: "While the Legislature may determine that certain additional procedures are warranted to enhance the fairness of criminal proceedings, as it did in enacting [Evidence Code] section 1109, the Legislature might decide to adopt a rule of prospective application for such changes for reasons other than 'a desire for vengeance.' [Citation.] Some changes adopted by the Legislature might enhance the fundamental fairness already guaranteed by the Constitution and by existing statutory protections. But applying these changes retroactively to already-concluded proceedings will inevitably come with systemic costs (which may affect the resources available to ensure the timely and effective administration of justice in other cases). Thus, even if the Legislature decides it makes good policy sense to provide a defendant with a right to bifurcation as specified in [Evidence Code] section 1109 on a going forward basis, it could also reasonably intend, for reasons other than 'vengeance' [citation], that the change in the law should not apply to defendants who have already been tried." (Burgos, at pp. 21-22.)
The Venable court itself noted that Evidence Code section 1109 "is similar in its purpose and effect to" Evidence Code section 352.2, and approvingly cited the Court of Appeal's retroactivity analysis of section 1109 that the Supreme Court reversed in Burgos. (Venable, supra, 88 Cal.App.5th at pp. 457-458, rev. granted.) We conclude that Burgos requires us to reject Gantt's argument that section 352.2 applies retroactively to his case.
VIII. Unlawful Possession of a Firearm
Gantt was convicted of violating section 25400, which as relevant here makes it a crime to carry a concealed firearm without a concealed carry license, and section 25850, which as relevant here makes it a crime to carry a loaded firearm in a public space without a concealed carry license. At the time of Gantt's convictions, section 26150 provided that "the sheriff of a county may issue a [concealed carry] license to [an eligible applicant] upon proof of all of the following: [¶] (1) The applicant is of good moral character. [¶] (2) Good cause exists for issuance of the license. [¶] (3) The applicant is a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business. [¶] (4) The applicant has completed a course of training [relating to firearms safety, handling, shooting, and permissible usage]." (See former § 26150, subd. (a) and former § 26155, subd. (a) ["the chief or other head of a municipal police department of any city or city and county" may similarly issue licenses] added by Stats. 2010, ch. 711, § 6 (Sen. Bill No. 1080), eff. Jan. 1, 2011.) In Bruen, supra, 597 U.S. at pages 38-39, the Supreme Court held that a requirement in the New York state licensing statute similar to the "good cause" requirement in former section 26510 violated the Second Amendment to the United States Constitution. On appeal, Gantt contends because California's concealed carry scheme is facially unconstitutional under Bruen, application of sections 25850 and 25400 to punish any unlicensed person is also unconstitutional and his convictions must be reversed.
Gantt acknowledges that in In re D.L. (2023) 93 Cal.App.5th 144, 147 (D.L.), our colleagues in another division of the First District rejected an identical facial challenge to the constitutionality of section 25850. We note that several additional courts across the state have reached the same conclusion with respect to sections 25850 and 25400. (See People v. Mosqueda (2023) 97 Cal.App.5th 399, 403 ["Bruen did not render California's entire licensing scheme or the charges against them unconstitutional" because "[t]he offending 'good cause' requirement is severable from the remainder of the licensing statute, as is the 'good moral character' element"]; In re T.F.-G. (2023) 94 Cal.App.5th 893, 899 (T.F.-G.) ["Although California's 'good cause' licensing requirement is undisputedly unconstitutional under Bruen, [that] . . . does not render section 25850 facially unconstitutional"]; People v. Miller (2023) 94 Cal.App.5th 935 (Miller) [reversing order sustaining demurrer to charge of carrying a concealed firearm in a vehicle under § 25400 finding charge was not unconstitutional].) Gantt argues, however, that the court's analysis in D.L. and these other decisions is flawed and should be rejected. As set forth below, we agree with the reasoning in D.L. and the other cases cited above and therefore reject Gantt's facial challenge to sections 25850 and 25400.
Before reaching the merits of Gantt's arguments, we briefly address the Attorney General's argument that Gantt lacks standing to assert a facial challenge to the licensing scheme because he did not demonstrate that he would have qualified for a license under the remaining valid requirements, and thus cannot show that he was injured by the unconstitutional provision in former section 26150. As with other courts that have considered this argument, we are skeptical of the Attorney General's position. (See T.F.-G., supra, 94 Cal.App.5th at p. 912 [because a facial challenge does not turn on the "personal characteristics" of the challenger, the challenger "need not demonstrate that the hypothetical denial of a license-had he applied for one-would have offended the Second Amendment" in order to have standing]; D.L., supra, 93 Cal.App.5th at p. 156 [a defendant has standing when he challenges the facial constitutionality of the criminal statute under which he was convicted].) We need not definitively decide whether Gantt has standing to challenge the constitutionality of sections 25860 and section 25400 because, as we explain below, neither statute is unconstitutional. We therefore assume without deciding that he has standing and we address the merits of his challenge. (Miller, supra, 94 Cal.App.5th 935.)
"' "A defendant challenging the constitutionality of a statute carries a heavy burden: 'The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.'"' [Citations.] Typically, a litigant may challenge the constitutionality of a statute in two ways: on its face or as applied." (D.L., supra, 93 Cal.App.5th at p. 156.) "A facial challenge seeks to void the statute as a whole by showing that' "no set of circumstances exists under which the [statute] would be valid," i.e., that the law is unconstitutional in all'" (id. at p. 157) or at least the"' "great majority of cases" '" (T.F.-G., supra, 94 Cal.App.5th at p. 909, italics omitted.) In contrast, a defendant making an "as applied" challenge to a statute "seek[s] 'relief from a specific application of a facially valid statute or ordinance to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied.'" (D.L., at p. 157.)
"' "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem"' by 'severing any "problematic portions while leaving the remainder intact." '" (D.L., supra, 93 Cal.App.5th at p. 162.) "In the absence of express language confirming or prohibiting severability, we consider three criteria to determine whether we may save a statute by severing an unconstitutional provision in it: whether the provision is (1)' "grammatically,"' (2)' "functionally,"' and (3)' "volitionally separable." '" (Id. at p. 163.)
The parties agree that the "good cause" licensing requirement in section 26150 at the time of Gantt's conviction was unconstitutional under Bruen. Gantt, however, was convicted under sections 25400 and 25850. To reverse his convictions on the ground that these sections, which enforce the licensing regime, are facially unconstitutional, we would need to find that these sections have "no significant application in constitutionally valid circumstances-i.e., that [they are] unconstitutional in at least the generality or great majority of cases." (T.F.-G., supra, 94 Cal.App. 5th at p. 916.) If, as the court observed in T.F.-G., "California law continues to authorize the denial of license applications on statutory grounds not implicated by Bruen," (94 Cal.App.5th at p. 909), Gantt cannot establish that "in at least the generality or great majority of cases, it will be unconstitutional to criminalize carrying a loaded firearm in public without satisfying one of the statutory exemptions, such as complying with California's licensing regime." (94 Cal.App.5th at p. 913.)
Gantt submits two grounds on which this court should conclude that the licensing scheme as a whole is unconstitutional. First, he argues that the "good cause" requirement renders the entire scheme unconstitutional and that it cannot be saved by severing the offending requirement from the broader licensing regime. He suggests that, to the extent D.L held otherwise, it was wrongly decided and should not be followed. As in D.L., Gantt does not argue that the "good cause" requirement is not grammatically, functionally, and volitionally severable from the remainder of sections 26150. (D.L., supra, 93 Cal.App.5th at p. 164.) Rather, citing Smith v. Cahoon (1931) 283 U.S. 553, 564, he argues that severability cannot be applied retroactively to cure the harm from a pre-Bruen conviction based on unlicensed possession. In D.L., the court rejected this argument and distinguished Smith: "The Smith case . . . is not helpful to D.L.'s argument opposing severability. Recall that the defendant in Smith had been charged with operating vehicles without a required 'certificate of public convenience and necessity.' [Citation.] The United States Supreme Court concluded that the statute did not distinguish between a common carrier and a private carrier, like Smith, and that such a regulation of the business of a private carrier was 'manifestly beyond the power of the [s]tate.' [Citation.] The Smith decision then addressed the severability of the statute. If the statute were severed to apply the certificate requirement to common carriers but not private carriers, then the statute as it applied to private carriers would be 'void for uncertainty' as it would prescribe' "no standard of conduct that it [is] possible to know."' [Citation.] In other words, there would be no 'valid scheme applicable to private carriers.' [Citation.] There really was no way to know 'what eventually [would] be eliminated and what [would] be left' after eliminating the unconstitutional aspects of the law [citation], because the requirements of the lawful and unconstitutional aspects of it were intertwined and not functionally or volitionally severable. Here, unlike Smith, a valid firearm licensing framework remains even if the 'good cause' requirement is severed. Severability does not create the same uncertainty the Smith decision suggested might have existed in that case." (D.L., supra, 93 Cal.App.5th at p. 164.) We find the reasoning in D.L. persuasive and adopt it as our own. (See T.F.-G., supra, 94 Cal.App.5th at p. 916 [following "the D.L. court's persuasive determination that the 'good cause' licensing requirement is severable from the balance of California's licensing requirements, such that a functioning licensing regime remains in place if the good cause requirement were removed"].)
Gantt's second argument fares no better. He argues that sections 26150 and 26155 are unconstitutional in their entirety under Bruen because they afford unfettered discretion to the relevant law enforcement official who "may issue" a license under each statute. Gantt writes: "Because Bruen holds the more limited discretion to reject a citizen's proffer of good cause violates the Second Amendment [citation], it follows the 'unfettered' discretion given to sheriffs to not issue a license to someone who has complied with the objective criteria is also unconstitutional." We disagree.
We do not read Bruen as broadly as Gantt. The "Bruen majority . . . did not hold that such 'may issue' laws are facially unconstitutional." (People v. Mosqueda, supra, 97 Cal.App.5th at p. 412.) Although it distinguished between "shall issue" and "may issue" statutes and stated in a footnote that its holding should not be interpreted to render unconstitutional any "shall issue" licensing regimes, it did not concurrently state that its holding should be interpreted to invalidate all "may issue" regimes in their entirety because they contain permissive language. (Bruen, supra, 597 U.S. at p. 38, fn. 9.) Justice Kavanaugh's contrary view that "may issue" licensing schemes are "constitutionally problematic" because they granted "open-ended discretion to licensing officials," (Bruen, supra, 597 U.S. at p. 80) does not constitute binding precedent because it is contained in a concurrence. (Maryland v. Wilson (1997) 519 U.S. 408, 412-413.)
More importantly, we agree with the D.L. court that Gantt's argument constitutes an "as applied" constitutional challenge to sections 25400 and 25850 because the argument would not apply in all circumstances. It is undisputed that a law enforcement official may properly deny a permit for any number of valid, objective reasons under section 26150 and 26155. The denial of a permit under the statute, after severance of the good cause requirement, would only be unconstitutional if the sheriff or police chief refused to issue a license to someone who otherwise met the objective requirements "without articulating a reason for the rejection." (D.L., supra, 93 Cal.App.5th at p. 166.) Because the licensing statute is not wholly unenforceable, Gantt cannot establish that "in at least the generality or great majority of cases, it will be unconstitutional to criminalize carrying a loaded firearm in public without satisfying one of the statutory exemptions, such as complying with California's licensing regime." (T.F.-G., supra, 94 Cal.App. 5th at p. 912.)
Finally, we note that "may" is not always permissive. (Parking Authority v. Nicovich (1973) 32 Cal.App.3d 420, 435.) Because we interpret statutes to support their constitutionality whenever possible (S&S Cummins Corp. v. West Bay Builders, Inc. (2008) 159 Cal.App.4th 765, 780), even if Gantt's argument was considered a facial challenge, we would interpret the licensing statutes to require issuance of a license if the remaining objective and definite requirements are met. (See Bruen, supra, 597 U.S. at p. 13, fn. 1 [noting that the statutes of "[t]hree States-Connecticut, Delaware, and Rhode Island-have discretionary criteria but appear to operate like 'shall issue' jurisdictions"].)
For all of these reasons, we conclude that sections 25400 and 25850 are enforceable and not unconstitutional on their face.
Disposition
The jury's true finding on the great bodily injury enhancements on counts 1 and 3 (§ 12022.7, subd. (a)) are reversed. The gang-related enhancements on counts 1 to 7 (former § 186.22, subd. (b)) are vacated. The matter is remanded to the trial court for further proceedings. The People shall have 60 days from the date of the remittitur in which to file an election to retry defendant on the gang-related enhancement allegations. If the People elect not to retry defendant on the enhancement allegations, the court shall modify the judgment as required by this decision and resentence defendant accordingly. In all other respects, the judgment is affirmed.
WE CONCUR: BROWN, P. J., STREETER, J.