Opinion
A163211
12-15-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. VCR224971)
POLLAK, P. J.
Defendant Jose Alberto Gonzalez appeals a judgment convicting him of first degree murder, finding true the allegation that the crime was committed for the benefit of a criminal street gang, and sentencing him to 65 years to life in prison. Initially, defendant contends the court abused its discretion in refusing to continue the trial so that he could attempt to secure a subpoenaed witness who failed to appear. We find no error in the denial of the continuance.
Defendant also contends that newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1-5) (AB 333) requires reversal of both the gang-related enhancement and the murder conviction. We agree that AB 333 applies retroactively insofar as it amends the substantive elements of the gang enhancement so that the true finding on the enhancement must be vacated and remanded for retrial. We disagree, however, with defendant's contention that the provision of AB 333 affecting bifurcation of gang enhancements applies retroactively and conclude that even if it did, the failure to bifurcate the gang enhancement in this case did not prejudice the jury's deliberation of the murder charge. Accordingly, we shall vacate the gang-enhancement finding and affirm the judgment in all other respects.
Background
Defendant was charged by information with a single count of first degree murder. (Pen. Code, § 187, subd. (a).) The information further alleged that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that defendant personally used a firearm in the commission of the crime (§ 12022.53, subds. (b), (c), (d), and (e)).
All statutory references are to the Penal Code unless otherwise noted.
Defendant was 17 years old at the time of the crime. Three codefendants, also minors, were initially charged with defendant. One of the minors pled to a violation of section 32 as an accessory and agreed to testify truthfully at trial. The record does not reflect the disposition as to the two remaining minors.
At trial, the prosecution's immunized witness, one of the minors with whom defendant was initially charged, testified that he, defendant and the two other minors were members of the Brown Brotherhood gang (BBH) which is a subset of the Sureño criminal street gang. On August 13, 2015, they were hanging out near the railroad tracks in their "territory" when he saw Souza walking down towards them. When Souza came close, defendant and one of the other minors asked Souza several times if he "banged." When Souza did not answer, both defendant and the other minor shot at and killed Souza. The witness testified that Souza was wearing a red belt, which he explained was significant because red is the color "they don't like." He testified that defendant was laughing about the fact that he had shot a Norteño. A police witness testified that five days after the shooting, he recovered a weapon from defendant which experts later determined was one of the weapons used to kill Souza.
The jury found defendant guilty of first degree murder and found each of the alleged enhancements true. Defendant was sentenced to an aggregate term of 65 years to life as follows: first degree murder, 25 to life; personal use of a firearm, 25 to life; and gang enhancement, 15 years.
Defendant timely filed a notice of appeal.
Discussion
1. The court did not abuse its discretion in denying defendant's midtrial motion for a continuance.
Trial commenced on April 21, 2021. On April 28, defendant's investigator served a subpoena on Daniel Perez to appear the next day. On April 29, when the prosecution rested its case, Perez had not appeared. Defendant moved for a continuance so that he could obtain Perez's attendance. Defense counsel stated that the defense had been trying to serve Perez for several weeks and that the investigator finally served him the day before. Defense counsel made an offer of proof as to Perez's expected testimony based on a report written by a police officer who interviewed Perez shortly after the shooting: Perez was a "dropout" from the Sureño gang. Shortly before the shooting, Perez said a group of four people, not including defendant, confronted him near the railroad tracks, brandished a weapon and threatened him with violence if he did not leave the area. Approximately 15 minutes later, Perez heard gunshots. Perez identified the gun that police recovered as the gun brandished by someone other than defendant.
The prosecutor disputed defense counsel's offer of proof. The prosecutor stated that her understanding was that the following day, August 14, Perez had reported the argument and seeing four people by the tracks. Perez claimed he was a gang dropout, but on August 19 he was arrested with defendant and other gang members. The prosecutor stated she did not believe the officer had shown Perez the murder weapon, and she did not know how he would have seen it. She argued that Perez was essentially a third-party culpability witness, and the defense had not presented the substantial evidence required for him to so testify. She stated that if Perez were present she would request that he first testify at an Evidence Code section 402 hearing.
After lunch, defense counsel reported that a police officer looked for Perez at the address at which he was served, but the officer could not locate him there. The court granted a brief continuance until the following morning, stating that, if Perez appeared, it would hold an Evidence Code section 402 hearing prior to allowing him to testify.
The next day, Friday, April 30, Perez did not appear. Defense counsel noted that there was an outstanding $15,000 warrant for Perez's arrest on an unrelated matter and moved for a further continuance of three court days (five calendar days), until the following Wednesday. Counsel argued that Perez's testimony was critical. The trial court denied the request to continue the trial. Having no more witnesses, the defense rested.
Following his conviction, defendant moved for a new trial, arguing the court erred in denying the continuance to allow Perez to be brought to court to testify. The trial court denied the motion for new trial. On appeal, defendant contends the court abused its discretion in denying the requested continuance.
A midtrial continuance in a criminal case may be granted only for good cause. (People v. Winbush (2017) 2 Cal.5th 402, 469; § 1050, subd. (e).) The trial court has broad discretion to determine whether good cause exists to grant a continuance. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) "When a continuance is sought to secure the attendance of a witness, the defendant must establish 'he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.] The court considers' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." '" (Ibid.)
Here, the trial court's denial of defendant's continuance motion was based on its assessment that it was not reasonably likely that Perez would appear anytime soon. The trial court observed, "He clearly does not wish to be here, and is avoiding being here. We have had local authorities assist to find him, and he is not wanting to be found. . . . We looked for him over a 24-hour period." The court's ruling is supported by the record. Defense counsel acknowledged that it took three weeks to locate and serve Perez. When he did not appear the day after being served with the subpoena, defendant was given approximately 24 hours to locate him. Despite the assistance of the Vallejo Police Department, the defense was unable to do so. Accordingly, defendant failed to demonstrate that he could have successfully secured Perez's attendance at trial within a reasonable time. (See People v. Winbush, supra, 2 Cal.5th at p. 470 [no abuse of discretion in denying continuance where there was no proffered basis to expect witness could be located].)
The cases cited by defendant do not compel a different result. In Mendez v. Superior Court (2008) 162 Cal.App.4th 827, People v. Henderson (2004) 115 Cal.App.4th 922, and Gaines v. Municipal Court (1980) 101 Cal.App.3d 556, the trial court's exercise of discretion was upheld based on the specific facts before the court. None suggests that the failure of a subpoenaed witness to appear at trial supports a continuance where there is no basis to conclude the witness will appear within a reasonable time.
Defendant's citation to People v. Garcia (2022) 85 Cal.App.5th 290 is even more distinguishable because it does not involve a midtrial continuance. In that case, the court held that the court abused its discretion in denying defendant's request for a continuance of the sentencing hearing.
2. The true finding on the gang enhancement must be vacated.
The jury found true the gang enhancement allegation under section 186.22, subdivision (b)(1), and the court sentenced defendant to a consecutive term of 15 years on the enhancement. While this appeal was pending, the Legislature enacted AB 333, which changed the substantive requirements for proving the gang enhancement.
AB 333 "made the following changes to the law on gang enhancements: First, it narrowed the definition of a 'criminal street gang' to require that any gang be an 'ongoing, organized association or group of three or more persons.' (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision (f) required only that a gang's members 'individually or collectively engage in' a pattern of criminal activity in order to constitute a 'criminal street gang,' [AB] 333 requires that any such pattern have been 'collectively engage[d] in' by members of the gang. (§ 186.22, subd. (f), italics added.) Third, [AB] 333 also narrowed the definition of a 'pattern of criminal activity' by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, [AB] 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.' (§ 186.22, subd. (g).)" (People v. Tran (2022) 13 Cal.5th 1169, 1206.)
Defendant contends, and the Attorney General agrees, that AB 333's amendments to section 186.22 are retroactive to non-final judgments. The Attorney General also concedes that the proof offered at trial does not satisfy the requirements of AB 333. Here, the parties stipulated that Norteños and Sureños are criminal street gangs, and the BBH, the gang to which defendant was alleged to belong, is a subset of the Sureño criminal street gang. Regarding predicate offenses under former section 186.22, subdivision (e), the jury heard testimony from an expert that two active BBH members had been convicted of criminal offenses-one of assault and the other of possession for sale of methamphetamine. The parties further stipulated that there was a factual basis for those convictions. The parties' stipulations and the People's expert testimony, however, contained no factual details about the predicate offenses. There is no evidence that the predicate offenses provided a common benefit to the gang under the amendment to section 186.22, subdivision (e)(1). The jury instructions, moreover, did not contain the changes to section 186.22 and the parties never asked the jury to make findings required under AB 333. The parties and this court thus agree that the gang enhancements must be reversed.
The parties disagree, however, whether the allegations may be retried on remand. We agree with the Attorney General that they may. (People v. E.H. (2022) 75 Cal.App.5th 467, 480 ["proper remedy for this type of failure of proof-where newly required elements were 'never tried' to the jury-is to remand and give the People an opportunity to retry the affected charges"], citing People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2 [statutory amendment retroactively adding additional element to offense allowed prosecution to establish additional element on remand without offending double jeopardy or ex post facto principles]; see also People v. Sek (2022) 74 Cal.App.5th 657, 669-670 [gang enhancements may be retired upon remand].)
3. Any error with regard to failure to bifurcate trial of the gang enhancement allegation was harmless.
In cases tried before AB 333 took effect, trial courts had discretion to bifurcate the trial of an underlying offense from the trial of a section 186.22 gang enhancement if the court believed admission of gang evidence would be too prejudicial. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1048.)
AB 333, however, added section 1109, which requires that, if requested by the defense, a gang enhancement charged under section 186.22, subdivision (b) must be tried separately and only after a defendant's guilt of the underlying offense has been established.
Defendant did not request bifurcation in the trial court but argues the failure to do so does not waive his claim because such a request would not have been supported under the law as it existed at the time of trial. We agree.
Defendant contends that newly enacted section 1109 also should be applied retroactively and requires that the judgment be reversed in its entirety. The Attorney General disputes that the amendment applies retroactively.
In People v. Tran, supra, 13 Cal.5th at page 1208, the court recognized that whether section 1109 applies retroactively is the subject of a split of authority among the Courts of Appeal. (Compare People v. Burgos (2022) 77 Cal.App.5th 550, 554, review granted July 13, 2022, S274743 ["there are no grounds for treating one section of the bill as prospective-only"]; People v. Ramos (2022) 77 Cal.App.5th 1116, 1130 ["section 1109 must apply retroactively to all cases not yet final on appeal"] with People v. Perez (2022) 78 Cal.App.5th 192, 207 [Section 1109 does not apply retroactively because it is "is a procedural statute that ensures a jury will not be prejudiced by the introduction of evidence to support gang enhancement allegations-it does not reduce the punishment imposed."]; People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [same].) This division has not previously addressed this dispute. Like the Supreme Court in Tran, we need not do so here because "any asserted error in failing to bifurcate was harmless." (People v. Tran, supra, 13 Cal.5th at p. 1208.) The is true whether we apply the state law standard under People v. Watson (1956) 46 Cal.2d 818 or the federal law standard set forth in Chapman v. California (1967) 386 U.S. 18. Under Watson, an error is harmless and does not warrant reversal unless a reasonable probability exists that in the absence of the error, a result more favorable to the appealing party would have been reached. (46 Cal.2d at p. 837.) Under Chapman, an error must be harmless beyond a reasonable doubt. (386 U.S. at p. 24.)
Here, the independent evidence for the murder was strong. A participant in the crime identified defendant as a shooter and the murder weapon was found in his possession. More importantly, defendant's gang affiliation would have been admissible in the trial on the murder charge to establish a motive for the shooting. (See People v. Hernandez, supra, 33 Cal.4th at p. 1049 ["Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime."].) As discussed above, the evidence admitted to establish the gang predicate offenses was circumscribed, based largely on stipulations and the predicate offenses, assault and possession for sale of methamphetamine, are significantly less serious that the charged murder. Accordingly, the failure to bifurcate the trial on the gang allegations did not prejudice defendant.
Disposition
The true finding on the gang-enhancement allegation is vacated, the sentence is modified accordingly, and the matter is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.
WE CONCUR: STREETER, J., GOLDMAN, J.