Opinion
B324133
10-25-2023
THE PEOPLE, Plaintiff and Respondent, v. ERIK GARCIA, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA093486, Richard M. Goul, Judge.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Erik Garcia (defendant) appeals from the resentencing of July 20, 2022, after previously entered sentences had been recalled and modified. Defendant contends the trial court erred in imposing the high term firearm enhancement of Penal Code section 12022.5 based upon factors that had not been found true beyond a reasonable doubt by a jury or judge or stipulated to by the defendant. He also contends he was entitled to full resentencing after the trial court received notice from the California Department of Corrections and Rehabilitation (CDCR) of the unauthorized gang enhancements imposed that must be stricken. Defendant claims principles of due process and equal protection require a retroactive application of section 1109, reversal of his conviction and retrial.
All further unattributed code sections are to the Penal Code unless otherwise stated.
In the event defendant should have raised the section 1109 issue in the trial court, he asserts ineffective assistance of counsel.
We affirm the judgment of conviction but vacate the sentence and remand to give the prosecution the opportunity to retry the firearm and gang enhancements and for resentencing in accordance with changed circumstances and statutory amendments.
BACKGROUND
In 2013, defendant was convicted by jury of four felony counts: count 1, assault with a firearm (§ 245, subd. (a)(2)); count 2, assault with a deadly weapon (§ 245, subd. (a)(1)); and counts 3 and 4, criminal threats (§ 422, subd. (a)). As to count 1, the jury found defendant personally used a firearm (§ 12022.5). As to all counts, the jury found the offense was committed for the benefit of a criminal street gang. On November 8, 2013, defendant was sentenced to prison as to count 1 to a three-year middle term, plus four years for the firearm enhancement and 10 years for the gang enhancement. The judgment was affirmed on appeal. (People v. Garcia (Feb. 27, 2015, B253778) [nonpub. opn.].)
Defendant's aggregate sentence was 22 years eight months in prison.
The two incidents giving rise to the charges
Counts 1 and 2 arose from the first of two incidents which occurred on September 23, 2012. As Joseph Sanchez was riding home on his bicycle around 9:00 p.m., he passed a gas station where defendant was sitting in his car. Defendant yelled, "Where are you from?" Sanchez understood defendant was asking Sanchez what gang he belonged to. Sanchez replied, "I don't bang," meaning he was not affiliated with a gang. Sanchez then pedaled away. Defendant followed with his car lights off, drove next to Sanchez and accused him of "ripping him off." After a distance, defendant hit the back tire of Sanchez's bicycle with his car, causing Sanchez to fall to the ground.
Defendant got out of his car, "I'm gonna blow your brains all over this floor. If I see the police come down Western, you're dead." Defendant placed a silver semiautomatic handgun against Sanchez's chest. Sanchez pleaded with defendant to take whatever he wanted, but defendant said, "I don't want your shit. I want your life." Defendant said that Sanchez's father was a police officer, accused Sanchez of "ratting" on him, and had Sanchez lift his shirt to see whether he was "wired." After Sanchez said he had the wrong person, defendant called Sanchez a "stain," said, "Fuck stains," and then got back into his car and drove away.
Counts 3 and 4 involved a separate incident that occurred around 11:00 p.m. that same night. Byron Solis drove to the same gas station and parked his car. Defendant walked up and asked Solis where he was from. Defendant called Solis a "snitch" and said he knew where Solis lived and knew Solis's girlfriend. Solis recognized defendant from high school but had never spoken to him. Solis got out of his car and tried to walk away, but defendant stood in front of him. Solis's friend Ricardo Gamero, who had been following Solis, pulled into the gas and heard defendant ask Solis where he was from, call him a snitch, and threaten him. After telling Gamero what was going on, Solis told defendant, "Just leave us alone. We have nothing to do with it." Defendant told Gamero to leave, but when Gamero refused, defendant said that he was going to get a gun from his trunk and shoot Gamero. Defendant directed someone in his car to open the trunk, and said he was going back to jail in 10 days and did not care what he did. Solis and Gamero then got into Gamero's car and drove away as defendant was standing at the open trunk of his car.
A summary of the remaining trial evidence is unnecessary to the resolution of the disputed issues in this appeal.
The resentencing hearings
In June 2018, CDCR sent a letter to the trial court noting that both a firearm enhancement and a gang enhancement were erroneously imposed as to count 1, assault with a firearm. The letter recommended the trial court recall defendant's sentence and resentence him upon considering People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), and other authority cited in the letter. In August 2018, defendant was resentenced solely on count 1, by again imposing both enhancements but modifying the gang enhancement from 10 years to four years, and the firearm enhancement from four years to 10 years. The aggregate sentence remained the same.
In Rodriguez, the California Supreme Court held that the firearm enhancement of section 12022.5, subdivision (a), and the increased gang enhancement of section 186.22, subdivision (b)(1)(C) are both firearm enhancements, and section 1170.1 "prohibits the imposition of additional punishment under more than one enhancement provision for 'using . . . a firearm in the commission of a single offense.'" (Rodriguez, supra, 47 Cal.4th at p. 504.)
In January 2019, defendant filed a petition for writ of habeas corpus in the trial court, claiming his sentence on count 1 was unauthorized. On February 20, 2019, the trial court denied the petition on the ground that the sentencing in count 1 had been corrected at the August 2018 resentencing hearing. On May 30, 2019, defendant filed a habeas petition in the appellate court, claiming his sentence in count 1 was unauthorized and in addition, requesting resentencing under Senate Bill No. 620.The petition was summarily denied, and in June 2020, defendant filed a petition for writ of habeas corpus in the California Supreme Court, alleging his sentence in count 1 was unauthorized and that he was entitled to resentencing under Senate Bill No. 620. (In re Garcia (Feb. 10, 2021, S262891).)
Senate Bill No. 620 amended sections 12022.5 and 12022.53 to permit courts, in the interest of justice and at the time of sentencing or resentencing, to strike or dismiss an enhancement otherwise required to be imposed by these two statutes. (See Stats. 2017, ch. 682, §§ 1, 2.)
In July 2020, the trial court received another letter from CDCR, again explaining the authority regarding the firearm and gang enhancements and requesting the court resentence defendant. The following language was included: "When notified by the Department of Corrections and Rehabilitation that an illegal sentence exists, the trial court is entitled to reconsider all sentencing choices, People v. Hill [(1986)] 185 Cal.App.3d 831." On July 29, 2020, the trial court again resentenced defendant on count 1, imposing a five-year term as to the gang enhancement and a five-year term as to the firearm enhancement, reducing the total sentence to 18 years eight months. In September 2020, the CDCR sent another letter to the trial court, pointing out that section 12022.5 calls for an enhancement of 3, 4, or 10 years.
The Attorney General filed an informal response to the Supreme Court habeas petition on October 20, 2020, agreeing that the sentence was unauthorized under Rodriguez, supra, 47 Cal.4th at page 504, and that defendant was entitled to resentencing under Senate Bill No. 620. On February 10, 2021, the Supreme Court issued an order to show cause to the CDCR.On November 9, 2021, the trial court again sentenced defendant on count 1 to the middle term of three years plus a 10-year gang enhancement, and stayed imposition of the four-year firearm enhancement. Defendant was not personally present at the resentencing and wrote to the court that he was entitled to be present. On July 20, 2022, the trial court conducted another resentencing hearing, only as to count 1. The court reimposed the three-year middle term for assault with a firearm, struck the imposition of the gang enhancement pursuant to "Penal Code 620" (apparently meaning Senate Bill No. 620), and imposed the upper term 10 years as to the firearm enhancement, for a total sentence of 13 years as to that count.
The order read: "The Secretary of the California Department of Corrections and Rehabilitation is ordered to show cause before the Los Angeles County Superior Court why petitioner is not entitled to reconsideration of his sentence under Penal Code section 12022.5, subdivision (c), as conceded by the Attorney General in his informal response filed October 20, 2020."
Defendant filed a timely notice of appeal from the judgment.
DISCUSSION
I. Sections 1170 and 1170.1
A. Circumstances in aggravation
Defendant contends the trial court erred in imposing the high term provided by section 12022.5 based upon factors not found true beyond a reasonable doubt by a jury or judge.
After defendant's conviction and before his last sentencing hearing, the Legislature passed Senate Bill No. 567 (2020-2021 Reg. Sess.). Senate Bill No. 567 amended sections 1170 and 1170.1, and became effective January 1, 2022, prior to defendant's last sentencing hearing. (Stats. 2021, ch. 731, § 1.3.) As relevant here, section 1170, subdivision (b)(1) provides: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2)."
As amended, section 1170, subdivision (b)(2) now provides in relevant part: "The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial ...." (Ibid.)
Section 1170.1, subdivision (d) extends these requirements to enhancements.
A sentence that has been recalled and modified is no longer final for purposes of the retroactive application of a statute that ameliorates punishment. (People v. Ramirez (2021) 71 Cal.App.5th 970, 998.) As defendant's sentence was not final when the trial court resentenced defendant in July 2022, and the amended sections 1170 and 1170.1 had become effective in January 2022, they applied to defendant's resentencing. (See People v. Jones (2022) 79 Cal.App.5th 37, 45 (Jones); People v. Garcia (2022) 76 Cal.App.5th 887, 902 (Garcia).)
At the July 2022 sentencing, defendant advised the trial court that factors in aggravation had not been found by a jury or court beyond a reasonable doubt and thus the high term firearm enhancement could not be imposed. The trial court nevertheless ruled that as the original sentencing judge had retired, it was permissible to conduct a review of the record to make its own determination regarding the sentencing range so long as it did not exceed the original term imposed in 2013.
The trial court then imposed the upper term of 10 years under section 12022.5 after having found five factors in aggravation, described as follows: "The ongoing nature of the crime itself as described in the transcript. This was not a one op. [Sic.] He pursued separate victims. There was not one rash act. It was a series of small rash acts in sequence, some not so rash in that they were premeditated and determined-required decisions to be individually made by defendant . . . to proceed after each of these victims. [¶] The court finds the aggravating factors of three victims charged in the complaint and information and the evidence presented at the trial. Joseph Sanchez, Byron Solis, and Ricardo Gamero, multiple victims. There is the violent nature of this act which is inherent in the personal use of the firearm which is inherently violent." (Italics added.)
Although the trial court's statement may be unclear and ambiguous in some respects, we understand the trial court found five factors to justify the high term firearm enhancement for count 1, assault with a firearm: (1) the crime was an ongoing series of acts committed against separate victims; (2) some of the acts were premeditated and therefore not rash; (3) all the acts required a decision as to each individual victim; (4) there were multiple victims; (5) the nature of the crime was violent because the use of a firearm is inherently violent.
As the trial court relied on facts other than a prior conviction, imposition of the upper enhancement term was federal constitutional error as described in Cunningham v. California (2007) 549 U.S. 270. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1110-1111 (Zabelle).) It is undisputed that the trial court erroneously relied on aggravating circumstances that were not stipulated to or found true by the jury, but the People argue that the absence of a jury determination was harmless beyond a reasonable doubt.
Federal constitutional error is tested for prejudice under the standard of Chapman v. California (1967) 386 U.S. 18, 195196 (Chapman), which asks whether the error is harmless beyond a reasonable doubt. (Zabelle, supra, 80 Cal.App.5th at pp. 1109-1110.) We apply this standard in the manner described in People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval) to determine whether a jury necessarily would have found at least one of the aggravating factors true beyond a reasonable doubt had the facts been presented to it and if so, then the error would be harmless. (Zabelle, supra, at p. 1111.) Then there would remain state law error as to the remaining factors, and prejudice would be tested under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), to determine "whether it is reasonably probable that the trial court would have chosen a lesser sentence in the absence of the error. (See People v. Price (1991) 1 Cal.4th 324, 492 ['When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper'].)" (Zabelle, supra, at p. 1112.) Where Watson applies, it is the defendant's burden to demonstrate such a reasonable probability. (See People v. Hernandez (2011) 51 Cal.4th 733, 746.)
The People claim the jury would have found true beyond a reasonable doubt the aggravating factor that there were multiple victims because the jury found defendant guilty of all counts, which together involved three separate victims. In general, a multiple-victims factor is properly found where "a single act" caused injury to multiple people, even if each of the victims was listed in a separate count. (See People v. Calhoun (2007) 40 Cal.4th 398, 405-408.) However, a multiple-victims factor cannot be found simply "by adding victim(s) from independent crimes" (People v. Lawson (1980) 107 Cal.App.3d 748, 758), unless the "'multiple crimes [against different victims] are so closely connected in time and place as to comprise a single criminal transaction'" (People v. Valenzuela (1995) 40 Cal.App.4th 358, 363). Such closely connected crimes are referred to as "'transactionally related,'" requiring a factual determination based upon all the circumstances. (See, e.g., id. at pp. 363-364; People v. Beagle (2004) 125 Cal.App.4th 415, 421422.)
The burden to demonstrate harmless error under Chapman is on the People. (See People v. Cutting (2019) 42 Cal.App.5th 344, 349, and cases cited therein.) They have not provided an analysis showing that defendant's crimes were so closely related as to be a single transaction. To be sure, the two incidents both occurred at or around the gas station and both involved similar conduct by defendant. But they were committed completely separately, around two hours apart, and the three victims were not all harmed from a singular incident. (See, e.g., People v. Bejarano (1981) 114 Cal.App.3d 693, 705 [no "multiple-victims" factor where burglaries committed by the defendant on same night "were all independent crimes committed at separate times against several victims"].) What is more, counts 1 and 2 were committed against a single victim (Sanchez) during the first incident, and only that incident involved the firearm enhancement; counts 3 and 4 were committed against two other victims (Solis and Gamero) during the separate, later incident, which did not involve a firearm. Even if additional evidence bearing on whether the incidents were transactionally related- which the People have not proffered-we cannot speculate as to whether such evidence would have dictated a multiple-victims finding by the jury beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at p. 839.)
Nor can we so conclude regarding any of the other factors cited by the trial court. "[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court." (Sandoval, supra, 41 Cal.4th at p. 840.) Here, we view the factors identified by the trial court as being in the same category described by the California Supreme Court as involving a "somewhat vague or subjective standard" and thus "requir[ing] an imprecise quantitative or comparative evaluation of the facts." (Id. at p. 840.) The Supreme Court gave the following examples, some of them similar to the factors identified by the trial court in this case: the "defendant was 'callous'"; "defendant had no concern regarding the consequences"; "'[t]he victim was "particularly vulnerable'"; "the offense involved 'planning and premeditation'"; and although presenting a closer question, "the offense involved a great amount of violence." (Id. at pp. 840-842.)
The trial court's comment that the use of a firearm is inherently violent does not present so close a case as "a great amount of violence." Pursuant to section 667.5, subdivision (c)(8), a true finding of firearm allegation under section 12022.5 renders the underlying crime a violent felony. Because it is a violent felony section 12022.5 calls for enhancement and provides a range of terms.
Applying the test of Watson, supra, 46 Cal.2d at page 836, the People argue it is reasonably probable that a jury would have found true the factor that the count 1 assault with a firearm involved violence because of the manner in which defendant used the firearm, holding it against the victim's chest, despite it not being a factor in aggravation the jury was charged with finding beyond a reasonable doubt. The People argue that this, combined with their multiple-victims argument, makes it not reasonably probable the trial court would have imposed a middle or lower firearm enhancement. Since we do not find the multiple-victims factor was applicable, it does nothing to strengthen the "inherently violent" factor identified by the trial court.
The People have not demonstrated or identified any other factor used by the trial court that would have been found by a jury beyond a reasonable doubt. Thus applying the Watson standard is premature. (See Zabelle, supra, 80 Cal.App.5th at p. 1112.) We will thus strike the firearm enhancement and remand for resentencing in accordance with section 1170, subdivision (b), as amended by Senate Bill No. 567. (See Jones, supra, 79 Cal.App.5th at p. 45; Garcia, supra, 76 Cal.App.5th at p. 902.)
B. Full resentencing
Defendant also contends the trial court erred in response to the CDCR's letters recommending resentencing, by refusing to resentence other than count 1, and the court was required to fully resentence defendant, giving him the benefit of all changes in the law ameliorating punishment.
Pursuant to section 1172.1 (formerly §§ 1170, subd. (d)(1) &1170.03) the Secretary of the CDCR may recommend at any time that the superior court recall a previously imposed sentence and resentence the defendant. At any time upon such recommendation the trial court may "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence." (§ 1172.1, subd. (a)(1).)
When the CDCR notifies the trial court of an illegality in the sentence the trial court is not limited to correcting the illegal portion but may reconsider all sentencing choices. (People v. Hill, supra, 185 Cal.App.3d at p. 834.) This is "because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components [and] [t]he invalidity of one component infects the entire scheme." (Ibid.) Whenever the trial court resentences a defendant, the "court has a duty never to impose an unauthorized sentence, and a corollary of this duty is to ensure that all components of that sentence are authorized by the law and the facts at the time any new sentence is imposed." (People v. Walker (2021) 67 Cal.App.5th 198, 206.) Thus, in resentencing a defendant, it is preferable that the court consider all applicable retroactive changes in the law. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant"]; People v. Buycks (2018) 5 Cal.5th 857, 893 ["on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances'"].)
The People take no position whether the trial court should have conducted a full resentencing but agree the matter must be remanded pursuant to Assembly Bill No. 333 (see below). We will remand for resentencing in light of the amendments to section 1170, subdivision (b), and agree that regarding Assembly Bill No. 333 the trial court will have the opportunity and the duty to revisit all of its sentencing choices. (People v. Garcia, supra, 76 Cal.App.5th at p. 902; People v. Walker, supra, 67 Cal.App.5th at p. 206.) We thus need not discuss further whether the trial court erred in not fully resentencing defendant when the matter was before the court.
As defendant points out, Senate Bill No. 567 also amended section 1170, subdivision (b)(6)(B) to provide that if the aggravating circumstances do not outweigh the mitigating circumstances such that "imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following [enumerated circumstances] was a contributing factor in the commission of the offense." (§ 1170, subd. (b)(6).) Defendant will have the opportunity to request application of that provision, as the amendment is retroactive as to him. (See Jones, supra, 79 Cal.App.5th at p. 45; Garcia, supra, 76 Cal.App.5th at p. 902.)
II. Assembly Bill No. 333
A. Section 186.22
A gang enhancement pursuant to section 186.22, former subdivision (b) was originally imposed for each of the four counts. In the final sentencing the trial court struck the imposition of the enhancement as to count 1.
Effective January 1, 2022, Assembly Bill No. 333 (20212022 Reg. Sess.) amended section 186.22. (Stats. 2021, ch. 699, § 3.) Defendant seeks reversal of the enhancements due to the amended statute. The People concede remand is required due to the insufficiency of the evidence supporting the gang enhancements under the terms of the amended section 186.22. The People concede the amendment applies to defendant as his judgment is not yet final. (See People v. Cooper (2023) 14 Cal.5th 735, 738-739 (Cooper).)
As amended, section 186.22, subdivision (b)(1) now applies to a conviction of "a felony committed for the benefit of, at the direction of, or in association with a criminal street gang," instead of "any criminal street gang" as the former statute provided, and to prove a criminal street gang, the prosecution must now prove collective, not merely individual, engagement in a pattern of criminal gang activity by its members. A "pattern of criminal gang activity" now means the commission, attempted commission, or conviction of two or more offenses enumerated in section 186.22, subdivision (e)(1), that among other requirements, were committed on separate occasions or by two or more members and commonly benefited the gang, with a benefit that is more than reputational. "Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).) "The currently charged offense shall not be used to establish the pattern of criminal gang activity." (§ 186.22, subd. (e)(2).)
At defendant's trial Los Angeles Police Officer Gabril Medina testified as the prosecution's gang expert. He gave his opinion that defendant was a member of the East Side Torrance gang based upon his experience encountering defendant in the company of a known member of that gang, a gang related tattoo observed on defendant, and defendant's behavior in uttering a gang challenge during the charged crimes. Officer Medina expressed his opinion that defendant's crimes were committed for the benefit of, at the direction of, or in association with the East Side Torrance gang because the nature of crime creates fear and intimidation in the community, thus promoting the strength and notoriety of the gang. His opinion was also based upon defendant's "textbook gang behavior" which would enhance his reputation within the gang.
There was no evidence that the predicate gang crimes were committed collectively. To establish a pattern of criminal gang activity showing that East Side Torrance was a criminal street gang, Officer Medina produced records of two East Side Torrance gang members showing that each member separately committed a predicate offense.
The jury instructions in defendant's trial were nearly identical to those in Cooper, supra, 14 Cal.5th 735. In that case, as in defendant's trial, the jury was instructed with the former version of CALCRIM No. 1403, that in relevant part set forth "the definition of a 'criminal street gang' requires a 'pattern of gang activity' and 'as one or more of its primary activities,' the commission of the [named] predicate offenses .... To establish a 'pattern of gang activity,' the prosecution must prove 'at least one of' the predicate . . . offenses and that the offenses 'were committed on separate occasions or were personally committed by two or more persons.'" (Cooper, supra, at p. 740.) As in Cooper, defendant's jury was instructed pursuant to the former law "that the predicate offenses 'if any, that establish a pattern of criminal gang activity, need not be gang-related.'" (Ibid.) The instruction was found misleading because "a jury could have reasonably concluded that the predicate offenses at issue were committed for personal gain alone" rather than to benefit a criminal street gang. (Id. at p. 744.)
Given the state of the evidence and the given instructions, the gang enhancements must be vacated, and the matter must be remanded to give the prosecution the opportunity to retry the allegations under the amendments to section 186.22. (See Cooper, supra, 14 Cal.5th at pp. 739, 746-747.)
B. Retroactivity of section 1109
Assembly Bill No. 333 also enacted section 1109, which allows defendant to have a section 186.22, subdivision (b) or (d) gang enhancement tried separately from guilt if requested. (§ 1109, subd. (a).) In such a case the defendant's guilt of the underlying offense will be adjudicated before "the question of the truth of the [gang] enhancement." (§ 1109, subd. (a)(2).)
Defendant contends section 1109 should be applied retroactively to afford him a new trial, bifurcated from the gang enhancement should the People choose to retry the enhancement. There is presently a conflict among Courts of Appeal as to whether section 1109 applies retroactively to nonfinal judgments, and the issue is currently before the California Supreme Court in People v. Burgos (2022) 77 Cal.App.5th 550 (Burgos), rev. granted July 13, 2022, S274743. Those favoring retroactivity include People v. Montano (2022) 80 Cal.App.5th 82, 108, People v. Ramos (2022) 77 Cal.App.5th 1116, 1129, and People v. Burgos, supra, at page 568. Those holding that section 1109 applies only prospectively include People v. Boukes (2022) 83 Cal.App.5th 937, 948, review granted December 14, 2022, S277103, People v. Ramirez (2022) 79 Cal.App.5th 48, 65, review granted August 17, 2022, and People v. Perez (2022) 78 Cal.App.5th 192, 207 (Perez), review granted August 17, 2022, S275090.
We agree with those cases concluding the statute applies prospectively. There is no language in section 1109 declaring it to be retroactive. "'"No part of the Penal Code 'is retroactive, unless expressly so declared.' (§ 3.) '[T]he language of section 3 erects a strong presumption of prospective operation, codifying the principle that, "in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the [lawmakers] . . . must have intended a retroactive application." [Citations.] Accordingly, "'a statute that is ambiguous with respect to retroactive application is construed . . . to be unambiguously prospective.'"'"'" (Perez, supra, 78 Cal.App.5th at p. 207; accord, People v. Ramirez, supra, 79 Cal.App.5th at p. 65.) A ""'limited rule of retroactivity"'" applies to newly enacted criminal statutes that are intended to ameliorate criminal punishment for certain crimes. (Perez, supra, at p. 207.)
In In re Estrada (1965) 63 Cal.2d 740, 48, the California Supreme Court "held that amendatory statutes that lessen the punishment for criminal conduct are ordinarily intended to apply retroactively." (People v. Frahs (2020) 9 Cal.5th 618, 627.) The Supreme Court has applied Estrada's limited rule of retroactivity to statutes governing enhancements, statutes governing substantive offenses, statutes expanding a defense to a crime (id. at pp. 628-629), and statutes making reduced punishment possible for a class of persons (People v. Wright (2006) 40 Cal.4th 81, 95). Section 1109 modifies the procedure for defendants charged with a gang enhancement and who request a bifurcated trial. It does not reduce or eliminate punishment, provide a new affirmative defense to a charged crime, or otherwise ameliorate the punishment for a class of individuals. It therefore does not apply retroactively.
C. Due process
Defendant contends that a prospective application of section 1109 mandates a per se reversal of the substantive offenses in addition to the gang enhancements. Defendant claims that his rights to due process and a fair trial were "at stake" because of the increased risk of conviction in a nonbifurcated trial due to inherently prejudicial nature of gang evidence. Quoting the majority opinion in Burgos, supra, 77 Cal.App.5th at page 568, defendant argues, "Had the gang enhancements been tried separately, the 'nature of the proceedings would have been entirely different,'" and he concludes that the failure to bifurcate the gang enhancements "'infused the trial with unfairness'" which violated the due process clause of Fourteenth Amendment.
Defendant asserts that presenting gang evidence in a nonbifurcated trial thus poses such a high risk of prejudice that it amounts to structural error that defies a harmless-error analysis, thus mandating per se reversal of his convictions in addition to the gang enhancements. In the alternative, defendant argues that if the judgment is not reversible per se, the People should be required to show admission of gang evidence in his nonbifurcated trial was harmless beyond a reasonable doubt under the standard for assessing prejudice due to error under the federal constitution as enunciated in Chapman, supra, 386 U.S. at page 24. On the contrary, as our Supreme Court has held, absent a showing of fundamental unfairness in the defendant's trial on the charges, a failure to bifurcate gang allegations when requested under section 1109 does not constitute structural error. (People v. Tran (2022) 13 Cal.5th 1169, 1208-1209 (Tran).) And it is not reviewed under the Chapman standard, but rather under the test of Watson, supra, 46 Cal.2d at page 836, which requires the defendant to demonstrate prejudice. (Tran, supra, at p. 1209.)
Rather than attempting to show prejudice in his case, defendant declares: "The prejudicial impact and the effect on the jury of hearing extensive gang expert testimony, as occurred in this case, is readily apparent [and his] rights to due process of law and a fair trial by jury were at stake...." (Italics added.) As defendant makes no analysis of the evidence, jury instructions, argument, or court rulings given at his trial, we do not find the prejudicial impact or effect on the jury be apparent at all.
Moreover, defendant's claim of fundamental unfairness resulting in a denial of his right to due process and a fair trial is supported only by a potential violation of these rights as he merely asserts they were "at stake." "[A]lthough the admission of gang evidence may sometimes result in fundamental unfairness [citation], this is not always the case. [G]ang evidence, even if not admitted to prove a gang enhancement, may still be relevant and admissible to prove other facts related to a crime. [Citation.] Additionally, the fact that section 1109 requires bifurcation only upon a defendant's request suggests there are circumstances where a single trial remains appropriate." (Tran, supra, 13 Cal.5th at p. 1208.) "'[T]he admission of [gang] evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.'" (Id. at p. 1209.) It follows that if section 1109 were applied retroactively in defendant's case, gang evidence could still be admissible in the trial as to guilt, or the trial court might have exercised its discretion to exclude it. (See Tran, at p. 1209.) As in Tran, "apart from describing the general risk of prejudice that may result from the admission of gang evidence, [defendant] does not explain how the exclusion of gang evidence in this case would have been reasonably likely to change the jury's verdict of guilt as to the underlying [crime]." (Ibid.)
In sum, defendant's right to a fair trial may have been "at stake" in the abstract, due to the admission of prejudicial gang evidence both before and after the enactment of section 1109. However, defendant has not demonstrated how the gang evidence in his case was so prejudicial that the result of his trial would probably have been different in a bifurcated trial. We reject defendant's suggestion that an abstract possibility of a due process violation demonstrates that he was denied due process.
D. Equal protection
Defendant next argues that applying section 1109 prospectively results in a denial of his right to equal protection under the 14th Amendment to the United States Constitution and article I, section 7 of the California Constitution.
"Broadly stated, equal protection of the laws means 'that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness.' . . . [¶] As a foundational matter, . . . all meritorious equal protection claims require a showing that 'the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.'" (People v. Wutzke (2002) 28 Cal.4th 923, 943, citations omitted.)
Defendant does not clearly identify the group he belongs to that has been unequally affected by a prospective application section 1109. Instead he states, "This case does not involve a classification scheme in which persons, or classes of persons, are expressly treated differently." (Italics added.) Defendant asserts that the unequal application of gang statutes violates equal protection of the laws guaranteed by the federal and state Constitutions.
Relying in part on In re Chavez (2004) 114 Cal.App.4th 989, 1000, and In re Kapperman (1974) 11 Cal.3d 542, 544-545, defendant argues that constitutional considerations may require an ameliorative provision to be applied retroactively even when the Legislature expressly intended it to apply prospectively. Neither cited case is relevant to defendant's argument. In re Kapperman involved statutes that ameliorated punishment for a class of persons and the defendant was a member of a class denied that benefit. (See In re Kapperman, at p. 545.) In re Chavez did not reach the issue of equal protection. (See In re Chavez, at p. 1000, fn. 7.) As discussed above, section 1109 does not reduce or eliminate punishment, provide a new affirmative defense to a charged crime, or otherwise ameliorate the punishment for a class of individuals.
Regarding his claim of unequal application of the law, defendant relies on the following quote from Yick Wo v. Hopkins (1886) 118 U.S. 356, 373-374: "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." (Id. at pp. 373-374.) Defendant also relies on the following quote from Baluyut v. Superior Court (1996) 12 Cal.4th 826: "Unequal treatment which results simply from laxity of enforcement or which reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement. [Citations.] However, the unlawful administration by state officers of a state statute that is fair on its face, which results in unequal application to persons who are entitled to be treated alike, denies equal protection if it is the product of intentional or purposeful discrimination." (Id. at p. 832, italics added.) Nowhere in defendant's briefs do we find an argument the gang statutes were applied to him in such a way as to discriminate against him, either intentionally, purposely, by laxity of enforcement, or otherwise.
Defendant refers generally to racial discrimination resulting from nonbifurcated gang enhancements. As evidence of discrimination, defendant cites Assembly Bill No. 333, section 2, as quoted in Burgos, supra, 77 Cal.App.5th 550, review granted: "'The gang enhancement statute is applied inconsistently against people of color, creating a racial disparity.' (Assem. Bill 333, § 2, subd. (d)(1).) 'In Los Angeles alone, the state's largest jurisdiction, over 98 percent of people sentenced to prison for a gang enhancement are people of color.' (Id., § 2, subd. (d)(4).)" (Id. at p. 566.) Even where a statute is based upon an unjustifiable standard such as race, a defendant would have standing to claim an equal protection violation only if enforcement of the law had resulted in discrimination against him due to his race. (See People v. Montes (2014) 58 Cal.4th 809, 829, citing McCleskey v. Kemp (1987) 481 U.S. 279, 291-292, fn. 8.) Defendant has not demonstrated that he is a person of color or that the statute was enforced in such a way as to discriminate against him due to his race. Nor has defendant claimed he would not have been granted a bifurcated trial if requested, and he has made no effort to explain how the admission of gang evidence adversely affected his conviction. Defendant appears to be seeking a general declaration in the abstract that a prospective-only application of section 1109 violates the constitutional guarantee of equal protection. "We will not . . . adjudicate hypothetical claims or render purely advisory opinions." (People v. Chadd (1981) 28 Cal.3d 739, 746.)
As defendant has failed to show his right to equal protection has been violated by a prospective application of section 1109, he has not demonstrated constitutional error, and as we discussed regarding to defendant's due process argument, if defendant had shown state law error, prejudice would be assessed under the test of Watson, supra, 46 Cal.2d at page 836, which requires defendant to demonstrate the reasonable probability of a different result absent the claimed error. (See Tran, supra, 13 Cal.5th at pp. 1209-1210.) As he has shown neither error nor prejudice, we reject defendant's claim of unequal treatment.
As we have considered the issues under Assembly Bill No. 333 on the merits, and because defendant has not shown prejudice, we also reject defendant's claim of ineffective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 687.)
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated, and the matter is remanded. The enhancements may be retried in accordance with the current requirements of sections 1170, subdivision (b) and 186.22, and the views stated in this opinion. After retrial of the enhancements or if the prosecution elects not to retry the enhancements, the trial court is directed to consider full resentencing and to resentence defendant.
We concur: LUI, P. J. HOFFSTADT, J.