Opinion
D075379
11-21-2019
THE PEOPLE, Plaintiff and Respondent, v. ANDRE TREVONE HARRIS, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn, Stephanie H. Chow, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1403822) APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed in part and reversed in part, with directions. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn, Stephanie H. Chow, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In the early morning hours of August 2, 2014, Andre Trevone Harris and two other Wild Flax gang members walked up to a group of Sex Cash Money (SCM) gang members and opened fire, killing Christen White and wounding Marcus L.
Pursuant to California Rules of Court, rule 8.90, we refer to the witnesses in this matter by their initials or first name and last initial, and thereafter first name, to protect their privacy.
A jury convicted Harris of one count of murder in the second degree (Penal Code § 187, subd. (a); Count 1) for the killing of White; one count of attempted murder (§ 664; Count 2) for the shooting of Marcus; and one count of participation in a criminal street gang (§ 186.22, subd. (a); Count 3). The jury also found a number of enhancements related to firearms and gang activity to be true. Harris admitted three prison priors and a strike prior and was sentenced to a determinate sentence of 41 years and an indeterminate sentence of 55 years to life.
All further statutory references are to the Penal Code unless otherwise noted.
Harris asserts the superior court erred by: 1) allowing a gang expert to testify regarding case-specific testimonial hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); 2) admitting a prejudicial video in which he assaulted another inmate in jail after his arrest; 3) allowing the prosecution to play a recording of a telephone call in which he made incriminating statements while precluding the defense from playing excerpts from subsequent calls; and 4) instructing the jury with a "kill zone" instruction pursuant to CALCRIM No. 600. In addition, he asserts his attorney provided ineffective assistance of counsel by failing to object to legally inaccurate statements the prosecutor made during closing arguments regarding the "kill zone" theory. For the reasons set forth herein, we conclude each of the asserted errors was forfeited, was not an error, or was not prejudicial.
Harris also asserts the matter must be remanded for resentencing in light of Senate Bill No. 620 and to strike one of three prior prison term enhancements. The People concede these issues but argue the superior court should also have the opportunity to impose an additional firearm enhancement and to amend the abstract of judgment to conform to the oral pronouncement of the sentence. In addition, Harris contends the superior court should provide a date upon which he is eligible for parole because his exclusion from the youth offender parole statute (§ 3051) was a violation of the Eighth Amendment or his constitutional right to equal protection. We agree resentencing is appropriate but are not persuaded by Harris's arguments regarding section 3051.
We therefore remand the matter for resentencing and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
August 2, 2014 Shooting
On the evening of August 1, 2014, White, Marcus, and a number of other SCM gang members gathered at I.P.'s apartment to drink alcohol and consume marijuana and cocaine. At the time, I.P. lived in a second story apartment at the Ashwood apartment complex (Ashwood) with his then-girlfriend, D.S., and his two-year-old child. At approximately 1:20 a.m., SCM members White and D.K. went outside to smoke a cigarette. Marcus and two others joined them, and they stood in a line heading down a staircase, with White at the top and Marcus further down the steps.
While they were outside, a group of three individuals walked up and said something like "what's up" or "where's the weed Web?" Immediately thereafter, two of the individuals pulled out guns and started shooting. The SCM members ran towards I.P.'s apartment.
D.S. had fallen asleep in the back bedroom and woke up to the gunshots. She heard someone yell, "I'm hit, I'm hit" and then heard White say, "I'm hit too." White collapsed on the floor in the hallway of the apartment. D.S. called 911, but one of the bullets had gone through White's right lung and aorta and he died shortly thereafter.
Marcus had also been shot but was still conscious. D.K. took him to the hospital, where he was treated for a gunshot wound through his right chest and shoulder. The bullet narrowly missed Marcus's lung and he survived.
Investigation and Arrest
Law enforcement arrived on the scene in the early morning hours and began processing the evidence. They found numerous bullet holes in the exterior and interior of I.P.'s apartment as well as discharged bullets and casings in the walls and surrounding area. They also discovered a handgun that appeared to have been tossed into a bush near the apartment and a lanyard with a car key on it on the path leading away from the stairway where the shooting occurred.
A forensic technician analyzed the casings and the trajectory of the bullet holes and determined two guns were used, likely one revolver and one semi-automatic, but the gun found in the bushes was not one of them. DNA swabs taken from the keys were inconclusive.
The apartment complex had a number of video surveillance cameras in the area and the police obtained the recordings from the hours of midnight to 2:00 a.m. on August 2, 2014. One of the videos shows a car backing into a parking space near I.P.'s apartment between 1:19 and 1:20 a.m. The car lights turn off and three individuals exit the vehicle. The driver, however, stays in the car. The three individuals are seen walking past the security camera and out of view, and then running back towards the car a couple of minutes later. At approximately 1:23 a.m., the vehicle drives away.
Search Warrant and Interview with Harris
The police obtained a warrant and conducted a search of Harris's apartment on September 12, 2014. The key found at the scene of the shooting opened and started a vehicle parked in Harris's driveway.
Harris was at the apartment when the police arrived and was taken in for questioning. During the interview, Detective James Campos, lead investigator for the Riverside County Sheriff's Department, showed Harris a number of still images from the video surveillance obtained from Ashwood. Detective Campos then called Harris's girlfriend, O.R., on a speakerphone in the interrogation room. Detective Campos left the room but continued recording. During the call, Harris told O.R., "[i]t's basically burnt," "I'm burnt," "[t]hey got pictures of me and shit," and "I just gotta hope they don't do that L thing." He also told her several times to get "the food out of the microwave."
Prosecution's Evidence at Trial
The People's primary theory at trial was Harris and his fellow Wild Flax gang members targeted the SCM gang members because of an ongoing rivalry between the two gangs. The People also suggested the perpetrators targeted White specifically based on rumors he was responsible for the murder of a founding member of the Wild Flax gang. To support this theory, the People presented testimony from several law enforcement officers.
Donevan Norman was a correctional deputy at the Robert Presley Detention Center where Harris was housed after his initial arrest in September 2014. He fingerprinted Harris when he arrived and recalled Harris stated he was a Wild Flax gang member and he did not get along with SCM gang members.
Sergeant Ernie Esquibel was a school resource officer from 2009 to 2010 and was then assigned to a special enforcement team in Moreno Valley focused on gang-related crimes. He was familiar with the area around Ashwood and had spoken to gang members in that area on multiple occasions.
He first learned of Wild Flax during the 2009-2010 school year when a group of individuals began fighting with members of the SCM gang. The fights increased in severity and, in 2011, one of the individuals involved, Jesse Mosley, was murdered at a house party. Immediately thereafter, Sergeant Esquibel heard rumors implicating White in the murder. Wild Flax was not officially documented as a gang, however, until 2012, when a video surfaced in which several members involved in one of the assaults against SCM members identified themselves as Wild Flax.
Sergeant Esquibel testified both Wild Flax and SCM had well-defined territories. The SCM territory included the area around Ashwood and the Wild Flax territory was just a couple of blocks away. He said the SCM territory used to be centered on a portion of Webster Avenue and, as a result, SCM members were often referred to as "webs" or "webb blocks". SCM had several subsets, including "Lavish" or "Lavish Pimps" and Wild Flax were rivals, or enemies, with all associated subsets, including Lavish.
Sergeant Esquibel explained gang members elevate their status within the gang and with respect to other gangs in the area by "putting in work," which typically means committing criminal acts. They generally work in groups when committing major crimes like shootings, assaults, and burglaries—both to provide backup and to have a witness to the "work."
Sergeant Esquibel was aware Harris had identified as a Wild Flax member when he was booked into jail, and he had seen a jail surveillance video from May 2016 in which Harris and another Wild Flax associate assaulted an SCM gang member. In addition, he testified regarding two music videos in which Harris is seen making gang signs with his hands, shooting off a gun, and rapping about his involvement with Wild Flax.
Deputy Chad Howard had also been a school resource officer and was a member of the special enforcement team gang unit in Moreno Valley. He had learned Harris was a representative or "shot caller" in jail and explained this meant the other inmates had chosen him as the leader of the floor.
The prosecutor showed Deputy Howard a number of images from the music videos Sergeant Esquibel had discussed and Deputy Howard identified Harris along with other known Wild Flax gang members. Deputy Howard also examined photos of Harris's body and identified several tattoos closely associated with the Wild Flax gang. In particular, he noted Harris had a tattoo of the number "57" on his left arm, and explained this was a tribute to Jesse Mosley, the Wild Flax member White was rumored to have killed.
In addition, Deputy Howard testified regarding several other shootings that occurred in proximity to the August 2, 2014 shooting. Someone had fired shots at White's house on July 19, 2014, and two days later someone had fired shots at a house belonging to a Wild Flax associate. There was another shooting at a Wild Flax gang member's house the night after the August 2nd shooting, which resulted in the arrest of two SCM gang members.
Based on the evidence and his experience, Deputy Howard opined Harris was an active Wild Flax gang member on August 2, 2014. Presented with a hypothetical mirroring the evidence presented at trial, he opined the shooting was likely done for the benefit of the Wild Flax gang. He explained killing a rival gang member was the most serious crime a gang member could commit and would therefore result in a significant elevation in the status of the individual and their gang. In addition, he opined additional gang members at the scene would have provided critical support and backup to the shooters.
Two of the SCM gang members also testified. D.K. admitted he was a gang member and testified he and his friends lived by the "Lavish lifestyle." He recalled hearing about 15 to 20 shots fired on the morning of August 2, 2014 but said he did not see anyone. However, in a February 2015 telephone conversation with Detective Campos that was played for the jury, D.K. said one of the shooters was a "a black guy with a hoodie on" and he believed there was more than one shooter because there were different types of bullets. He told Campos one of the individuals said either "Y'all know where to get the weed from web?" or "Where the weed at web?" right before the shooting started. He saw both White and Marcus get shot and both were towards the top of the stairs when it happened. He also told Campos everyone at I.P.'s apartment that night was Lavish.
Marcus admitted he had an "LV" tattoo that stood for "Lavish" but claimed Lavish was not a gang. Like D.K., he recalled gathering at Ashwood, drinking alcohol, and consuming marijuana and cocaine on the night of the murder. The group was outside smoking cigarettes at approximately 1:20 in the morning when someone said, "What's up?" He turned around and saw a couple of people, including one in a hoodie. He did not recognize anyone, but he thought they had weapons due to the way they were holding their hands in their shirts, so he turned and ran. He remembered passing White on the stairs before being shot.
A manager for Ashwood testified tenants were required to sign an addendum stating they would not participate in any gang-related activities and would be evicted if arrested for gang-related activity. She stated no one had been evicted based on the addendum in the previous seven years. The lease on I.P.'s apartment was terminated as a result of the shooting, but solely on the basis of criminal activity. She did not take any steps to determine if the shooting was gang-related.
Defense Evidence
None of the witnesses identified Harris as the shooter or as being present on the night of the shooting, even though some of the Wild Flax members knew who he was. Towards the end of the February 2015 phone call, D.K. told Detective Campos he knew Harris had been arrested for the shooting but nobody there that night could remember seeing Harris's face.
Detective Campos testified two other names came up in the investigation, but he never spoke to either of them. He also stated he wiped both victims' hands for GSR (gun shot residue) but did not submit the wipes for analysis.
Harris exercised his right not to testify.
Verdict and Sentencing
The jury began their deliberations late in the day on June 14. The following day, they sent three notes to the court, including one stating they could not come to a unanimous decision on the first-degree murder charge and needed further clarification to move forward. In the presence of counsel, the court determined the jury needed clarification regarding an instruction related to the verdict forms. The court clarified the jury could discuss the counts in any order but could not find Harris guilty of second-degree murder unless they found he was not guilty of first-degree murder. Due to a conflict and the weekend, the jury did not return to deliberations until June 19. That morning, they sent a fourth note asking how the law defines second-degree murder. The court referred them to CALCRIM No. 520. A couple of hours later, the jury reached a verdict.
The jury found Harris guilty of second-degree murder for the killing of White. They also found him guilty of attempted murder with respect to Marcus, but found the attempted murder was not willful, deliberate, and premeditated. With respect to both counts, the jury found Harris committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A), and Harris or an accomplice personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (d). Finally, the jury found Harris guilty of actively participating in a criminal street gang.
Harris admitted three prison priors and a strike prior and the superior court sentenced him to a determinate sentence of 41 years and an indeterminate sentence of 55 years to life.
Harris appeals.
DISCUSSION
I
Gang Expert Testimony
Harris contends the superior court erred by allowing Deputy Howard to testify regarding case-specific and testimonial hearsay without giving Harris an opportunity to cross-examine the declarants, in violation of Sanchez, supra, 63 Cal.4th 665 and the confrontation clause. The People contend Harris forfeited any confrontation clause claims by failing to object specifically on that ground at trial.
A
Deputy Howard testified regarding the significance of a tattoo with the number "57" on Harris's left arm. He stated, "that would be a tribute to another fallen Wild Flax gang member, Jesse Mosley. The background behind Jesse Mosley was he attended Canyon Springs High School and wore the number 57 when he played football. He was killed in 2011 in Rancho Cucamonga, believed to be [by] Christen White." Defense counsel did not object. However, when the prosecutor asked Deputy Howard if he had spoken to other gang members about the significance of "57" tattoos, defense counsel objected on the grounds the question asked for hearsay. The superior court overruled the objection and Deputy Howard confirmed he learned from other gang members the "57" was in memory of Jesse Mosley.
Deputy Howard also testified May 7th (5/7) was Wild Flax's "hood day," a day where gang members gather and socialize, in honor of Jesse Mosley. Defense counsel did not object to this testimony. After Deputy Howard offered his opinion Harris was a member of Wild Flax, the prosecutor asked him, "the different fallen members that he's paying tribute to, Flames and No. 57, Jesse Mosley, does that assist in your expert opinion?" and Deputy Howard confirmed that it did, again without objection.
On cross-examination, Deputy Howard confirmed White was never prosecuted for the murder of Jesse Mosley, and that his information was based solely on rumors he had heard were going around. In response, the prosecutor asked Deputy Howard, "Have you talked to other Wild Flax gang members regarding what this 57 stands for?" Defense counsel objected as hearsay, but the superior court overruled the objection. The prosecutor continued to ask for details about what the other gang members had said, defense counsel continued to object as hearsay, and the superior court continued to overrule the objections, stating, "Experts are allowed to give testimony regarding hearsay." Defense counsel did not offer any further explanation or argument for his objections.
B
In Sanchez, supra, 63 Cal.4th 665, the California Supreme Court adopted the following rule: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686.) The court therefore explained, while an expert can rely on hearsay in forming his or her opinions, an expert that relates case-specific testimonial hearsay to the jury, in the absence of the stated exception, violates the confrontation clause. (Id. at p. 685-686.)
The Sanchez court offered several examples to illustrate the difference between general background information and case-specific facts, including the following: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at p. 677.)
In addition, the court in Sanchez explained, "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.) Using this test, the court concluded statements or information contained in police reports regarding previous crimes and in a STEP notice were testimonial, and information contained in FI cards could be testimonial, depending on whether the cards were created as part of an ongoing investigation or as part of more general community policing efforts. (Id. at p. 694-698.)
Police officers issue STEP notices to individuals associating with known gang members, both to alert the individual of the potential for increased criminal penalties and to create a record for the police. STEP is an acronym for the California Street Terrorism Enforcement and Prevention Act. (Pen. Code, § 186.20 et seq.)
FI cards are used to record an officer's contact with an individual.
We review the court's ruling on admissibility of gang expert testimony, including determinations based on the hearsay nature of the evidence, for an abuse of discretion. (See People v. Roa (2017) 11 Cal.App.5th 428, 442; People v. Clark (2016) 63 Cal.4th 522, 590.) However, to preserve a confrontation clause issue on appeal, the defendant must make a timely and specific objection on confrontation clause grounds in the trial court. (People v. Blessett (2018) 22 Cal.App.5th 903, 926-927.)
C
Here, Harris concedes his only objection was to hearsay and he did not specify the confrontation clause or Sanchez as a basis for his objections. He asserts, however, the hearsay objections were sufficient to preserve his confrontation clause arguments on appeal. The superior court had previously stated, in the context of discussing Sanchez, "An expert certainly is allowed to testify to hearsay. An expert can rely on hearsay to some degree. But with respect to case-specific incidents, the expert cannot testify to those hearsay issues unless they have personal knowledge of same." Thus, Harris contends the court's response, indicating experts are allowed to give testimony regarding hearsay, suggested the superior court was aware his objection was based on Sanchez and any further objection would have been futile. We are not persuaded.
Courts have long differentiated between general hearsay objections and confrontation clause-specific objections. (See People v. Rangel (2016) 62 Cal.4th 1192, 1217 [explaining the different legal standards implicated by hearsay and the confrontation clause].) Here, Harris did not object specifically on Sanchez or confrontation clause grounds and did not object at all to the general testimony he now complains of regarding the murder of Mosley. Instead, he objected only to hearsay and only when the questions or answers indicated Deputy Howard was relaying a specific statement from a third-party. Thus, it appeared Harris was objecting on traditional hearsay grounds.
Further, when the court indicated expert witnesses could testify to hearsay, Harris made no attempt to clarify his objection. Had Harris made clear his objection was on confrontation or Sanchez grounds, the superior court could have specifically addressed the issue, providing a more adequate record for the present appeal. (See People v. Ochoa (2017) 7 Cal.App.5th 575, 585 (Ochoa) [suggesting confrontation clause objection forfeited where defendant fails to develop trial record as to whether hearsay statements were testimonial]; but see People v. Holmes (2012) 212 Cal.App.4th 431, 436 [hearsay objection may be adequate to preserve confrontational clause claim where basis of objection is clear to court and opposing counsel].)
Regardless, though, even if Harris's objection was sufficient to preserve the issue with respect to Deputy Howard's testimony, we would not find any resulting error to be prejudicial. In People v. Meraz (2016) 6 Cal.App.5th 1162 (Meraz), an officer testified to his own personal contacts with gang members, including the defendant, but also relayed information on FI cards regarding contacts he did not personally observe. (Id. at p. 1175-1176.) Assuming the testimony regarding the FI cards was barred by Sanchez, the court concluded any error was harmless beyond a reasonable doubt because it was duplicative of and weak compared to the other admissible gang evidence. (Id. at p. 1176.)
Similarly, here, assuming Howard's testimony was testimonial and case-specific, any resulting error was harmless beyond a reasonable doubt in light of the other admissible evidence. Harris did not object at all to Sergeant Esquibel's earlier testimony regarding the murder of Jesse Mosley and he does not assert that testimony was improper on appeal. He also did not object to Deputy Howard's initial discussion of the "57" tattoo and its meaning with respect to Jesse Mosley. Thus, there was ample evidence of the rivalry between Wild Flax and SCM, including the history with Mosley and the rumors White had killed him, as well as Harris's membership in Wild Flax and knowledge of the same. The only fact Deputy Howard's allegedly improper testimony added was other gang members had confirmed the meaning of the "57" tattoo on Harris's arm. But a reasonable juror would have understood Harris, an active Wild Flax member, was aware of the rumors implicating White in Mosley's murder even without the additional testimony regarding the tattoo.
Moreover, it is not likely the jury based its conviction on the theory Harris or his associates specifically targeted White. There was ample evidence of the ongoing rivalry between the two gangs and Deputy Howard explained the shooting was proximate in time to a series of back-and-forth shootings. By contrast, Mosley was murdered three years earlier and, while Ashwood was a known SCM hangout, there was no evidence Harris or the other Wild Flax members knew White, specifically, would be at Ashwood that morning. Thus, the evidence weighed more heavily in favor of the theory the Wild Flax members were targeting SCM members generally, and not White specifically.
In addition, the verdict also suggests the jury relied on the more general theory. After requesting clarification regarding the difference between first- and second-degree murder, the jury convicted Harris of second-degree murder and non-premeditated attempted murder. Had the jury based its conviction on the theory the shooters specifically targeted White, they likely would have concluded the shooting was premeditated. Since the verdict indicates they did not reach that conclusion, they likely relied on the more general theory regarding the rivalry between the two gangs. As there was ample other evidence to support that theory, Deputy Howard's testimony regarding the "57" tattoo was of minimal significance.
Finally, Harris asserts the evidence was prejudicial because it was used to prove his involvement in the shooting was part of his active participation in a criminal street gang for the purpose of section 12022.53, subdivisions (d) and (e)(1). As discussed, though, there was ample other evidence establishing Harris was an active participant in Wild Flax both before and after the shooting and the shooting was committed for the benefit of the gang.
We therefore conclude any error in admitting Deputy Howard's testimony regarding the "57" tattoo was harmless beyond a reasonable doubt. (See Meraz, supra, 6 Cal.App.5th at pp. 1170, 1174-1177; see also Ochoa, supra, 7 Cal.App.5th at p. 586-588 [concluding any error based on allegedly improper officer testimony was harmless beyond a reasonable doubt in light of other properly admitted gang evidence].)
II
May 2016 Jail Assault
Harris contends the superior court erred by admitting evidence of the May 2016 incident in which he assaulted an SCM member in jail because it was highly prejudicial and of minimal probative value in light of the other evidence establishing Harris was a Wild Flax gang member.
A
In pretrial proceedings, the People made a request to introduce various pieces of gang-related evidence, including prior convictions and a post-arrest incident in which Harris assaulted an SCM gang member in jail. Defense counsel argued the jail assault should be excluded as it was of limited probative value and was highly prejudicial. The court disagreed and found the proffered evidence, including the assault, admissible.
Thereafter, Sergeant Esquibel testified he had seen a video from May 2016 in which Harris assaulted O.E., an SCM gang member. He explained O.E. had not identified himself as an SCM member and was, therefore, placed in a dayroom with Harris. When O.E. saw Harris and another Wild Flax associate, he informed a deputy he could not be housed in that unit. However, when he returned to gather his belongings, Harris and the other Wild Flax associate assaulted him. Sergeant Esquibel stated Harris picked O.E. up and threw him on the ground and it appeared he was possibly going to throw him over a railing.
Sergeant Esquibel later mentioned Harris was moved to a higher level of security based on the May 2016 assault and "other assaults that he was involved with." Defense counsel moved for a mistrial based on the mention of "other assaults" and, to remedy the issue, the parties agreed to stipulate Harris had been involved in at least two jail assaults, one as the victim and one as the aggressor. After reading the stipulation, the People played a surveillance video of the May 2016 assault for the jury.
Thereafter, the superior court gave the jury the following instruction: "During this trial, evidence of an assault by the defendant in the jail was admitted not to show that the defendant is a person of bad character, but for the following limited purpose: 1. To show, if it does, that the defendant was an active member of the Wild Flax gang; and 2. To show, if it does, that the defendant had the specific intent to promote, further, or assist in the gang's criminal conduct."
During closing arguments, the prosecutor stated, "[w]e watched him manhandle—and that's an understatement. Watch the video again of what Mr. Harris does to that Sex Cash gentleman in the jail. Watch it. He lifts the guy up above his head, he beats him down with another gentleman. Mr. Harris is twice the size of that guy. He manhandles him. Sergeant Esquibel said that was an understatement as well."
B
Evidence Code section 1101, subdivision (a) precludes the admission of character evidence for the purpose of proving an individual has a general propensity towards criminal acts, or that the individual acted in a similar manner on a specified occasion. (Evid. Code § 1101, subd. (a); see also People v. Ruiz (1998) 62 Cal.App.4th 234, 240 [discussing gang evidence in the context of § 1101].) Evidence the defendant committed a crime, civil wrong, or other act, may be admissible pursuant to Evidence Code section 1101, subdivision (b), however, to prove some fact other than a general criminal disposition, such as intent or the existence of a common plan. (Evid. Code § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) " 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' " (People v. Lindberg (2008) 45 Cal.4th 1, 22, quoting People v. Carpenter (1997) 15 Cal.4th 312, 378-379.) Evidence of an uncharged crime may be relevant and admissible regardless of whether the offense occurred before or after the date of the charged offense. (People v. Balcom (1994) 7 Cal.4th 414, 425-426.)
If the trial court concludes evidence of an uncharged event is admissible pursuant to Evidence Code section 1101, it must also determine whether the probative value of the evidence is substantially outweighed by the probability it would create a substantial danger of undue prejudice, confusing the issues, or misleading the jury. (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, § 352.) While evidence related to gang membership carries a risk the jury will improperly rely on it to infer the defendant has a general criminal disposition, such evidence is admissible if it is logically relevant to a material issue in the case and its probative value is not outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; Ewoldt, at p. 404; Evid. Code § 352.)
We review the superior court's ruling on the admission of evidence pursuant to Evidence Code sections 1101 and 352 for an abuse of discretion and reverse the superior court only if its decision was arbitrary, capricious, or patently absurd. (People v. Lewis (2001) 25 Cal.4th 610, 637; People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra).)
C
Here, the superior court found the evidence of the assault, including the video, was highly probative to show Harris was actively and knowingly involved in a pattern of criminal gang activity, both before and after the murder. Regarding prejudice, the court explained the assault was far less severe than the charged crimes of murder and attempted murder using a firearm. Accordingly, the court concluded the evidence was admissible and the probative value outweighed any potential prejudice. We agree.
To prove their case, the People had to prove Harris committed murder and attempted murder for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further, and assist in criminal conduct by gang members. (§ 186.22, subd. (b).) In addition, the People had to prove Harris actively participated in a criminal street gang with knowledge the gang's members engaged in a pattern of criminal gang activity. (§ 186.22, subd. (a).) Evidence of Harris's participation in another gang-related assault on a separate occasion was highly probative as to his knowledge of the gang's criminal activities as well as his intent to promote, further, or assist the gang in such criminal conduct. (See People v. Tran (2011) 51 Cal.4th 1040, 1048; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 [gang evidence admissible where motive of underlying crime is gang-related].)
Harris argues the assault was of minimal probative value because it was duplicative of other evidence establishing he was a member of Wild Flax. To the contrary, the assault was the only incident that demonstrated Harris was an active member of Wild Flax willing and motivated to commit crimes against SCM gang members both before and after the murder. Further, it was also probative of Harris's status in light of the gang expert testimony regarding "putting in work" and the related elevation of a particular member within the gang. Regardless, the People bore the burden of proving beyond a reasonable doubt Harris committed murder and attempted murder for the benefit of a gang. They were not required to forego material evidence solely based on the existence of other evidence tending to prove the same fact. (See People v. Jackson (1996) 13 Cal.4th 1164, 1216 [cumulative nature of photographic evidence does not render it inadmissible].)
Harris further contends the prosecutor's statements during closing arguments indicate the true purpose of presenting evidence regarding the assault was to paint Harris as a violent individual. However, when read in context, the prosecutor's remarks, instead, emphasize Harris's status as a Wild Flax gang member and Harris's willingness and intent to further the status of himself and Wild Flax by attacking a rival SCM gang member. Moreover, the superior court minimized the risk the jury would improperly rely on the assault by instructing them they could use the video only for the limited purposes of determining whether Harris was a Wild Flax gang member and whether he had the specific intent to promote, further, or assist in the gang's criminal conduct. We presume the jury understood and followed this instruction, regardless of any arguments made by the prosecutor. (See Sanchez, supra, 26 Cal.4th at p. 852; People v. Osband (1996) 13 Cal.4th 622, 717.)
Further, the evidence of the assault, including the video itself, is not particularly violent or prejudicial. The altercation is relatively brief and, although Harris did lift the victim and drop him back to the floor as Sergeant Esquibel described, there is no indication any weapons were used and no indication the victim sustained any serious injuries. By contrast, as the superior court indicated, the charges in the case included murder and attempted murder with a firearm and the People also introduced evidence Harris was previously convicted of being a felon in possession of a handgun.
In sum, we agree with the superior court the evidence of the assault was probative and the risk of prejudice was minimal, particularly in light of the limiting instruction the court read to the jury. We therefore conclude the superior court did not abuse its discretion by admitting the evidence. As we have concluded there was no error in the first instance, we need not and do not address Harris's contentions regarding the prejudicial nature of the alleged error.
III
Telephone Call Recording
Harris asserts the court erred by allowing the prosecution to play a recording of the telephone call in which he admitted the police had him on camera while excluding later telephone calls in which he allegedly explained his previous statements. The People contend Harris forfeited the issue by failing to provide an adequate record as to the calls he intended to introduce.
A
Defense counsel objected to the admission of the September 2014 telephone call between Harris and O.R. as hearsay but acknowledged the People's position it was admissible as an admission by a party opponent. He therefore argued, if the court were to admit the recording, it should also admit additional recordings, pursuant to Evidence Code section 356, in which Harris made additional clarifying statements.
The court responded by stating it could not make a ruling because it had not heard the additional calls and counsel provided a CD of the recording for the court to review. During a subsequent discussion, counsel further clarified his position. He identified statements Harris made on the tapes indicating the officers were "trying to tangle [him] up," force him to say things, and to make it sound like he was lying, as well as a statement he "didn't shoot or anything," as relevant to the previous statements made during the September 2014 call.
The superior court disagreed and found the additional statements were not made contemporaneously to the September 2014 call and were contradictory, not explanatory. Accordingly, the court admitted the September 2014 call but did not admit any of the subsequent calls.
B
As an initial matter, we disagree with the People's assertion Harris forfeited this claim by failing to provide an adequate record. Although the record on appeal does not contain transcripts or recordings of the additional calls, it does contain a detailed discussion between the parties and the superior court regarding the specific statements Harris sought to admit. Thus, while we agree it is Harris's burden to prove any error, we find the record adequate to address the arguments he raises. (Cf. People v. Akins (2005) 128 Cal.App.4th 1376, 1385 [record inadequate and argument forfeited where transcripts and documents establishing specifics of alleged stipulation were omitted].)
On the merits, however, we agree the additional phone calls were not admissible. Evidence section 356 states, "[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party." The purpose of the provision is "to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156.) It is typically used to admit additional portions of the same previously admitted interview or conversation. (Ibid.; People v. Hamilton (1989) 48 Cal.3d 1142, 1173-1174 [taped confession admitted in its entirety after the defense introduced a portion of the tape]; People v. Vines (2011) 51 Cal.4th 830, 861 [admission of entire statement appropriate in light of admission of certain portions]; People v. Parrish (2007) 152 Cal.App.4th 263, 269-276 [explanatory statements made during same interview admissible].)
Here, the statements Harris sought to admit were not part of the same conversation or interview but were made during wholly separate and distinct telephone calls. Moreover, the statements did not clarify or provide context to Harris's previous statements. Instead, they were entirely contradictory self-serving statements, made only after Harris apparently learned the police believed his earlier statements were incriminating.
We therefore conclude the superior court did not abuse its discretion by refusing to admit the additional calls. (See People v. Williams (2006) 40 Cal.4th 287, 319 [within court's discretion to exclude statements made during a separate interview].) Again, because we have concluded there was no error in the first instance, we need not and do not address Harris's contentions regarding the prejudicial nature of the alleged error.
IV
"Kill Zone" Instruction and Argument
Harris contends the superior court erred by instructing the jury with an optional portion of CALCRIM No. 600 addressing the "kill zone" theory of liability for attempted murder. He asserts the instruction, as written and delivered in this case, is fatally flawed insofar as it does not adequately define the term "kill zone" and has the potential to mislead the jury with respect to the requisite intent for attempted murder. The People contend Harris forfeited this assertion by failing to object to the instruction in the superior court. In addition, Harris contends his counsel provided inadequate assistance by failing to object to the prosecutor's inaccurate description of the kill zone theory during closing arguments. We address these contentions together as the jury's understanding of the kill zone theory was likely informed by both the instruction and the argument.
A
The parties agreed the jury should be instructed regarding attempted murder with the standard language from CALCRIM No. 600. However, the prosecutor also asked the court to include the additional optional language in the instruction regarding the "kill zone" theory of liability. He asserted the kill zone instruction was appropriate because the evidence—including the bullet pattern going progressively up the wall along the stairs following the same path White would have run and Marcus was hit while passing White—was sufficient to support an inference the shooter intended to kill White by killing anyone in the area surrounding him. Defense counsel did not object and stated only, "I'll submit on that, Your Honor."
The superior court reviewed the relevant caselaw and ultimately decided to include the kill zone language. The court gave counsel an opportunity to review the language, as modified, and defense counsel indicated the language was "fine." Accordingly, the court instructed the jury as follows:
"To prove the defendant is guilty of attempted murder, the People must prove the following elements:
"1. The defendant took at least one direct but ineffective step toward killing another person; and
"2. The defendant intended to kill that person.
[¶] . . . [¶]
"A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or kill zone. In order to convict the defendant of the attempted murder of Marcus [ ], the People must prove that the defendant not only intended to kill [ ] White, but also either intended to kill Marcus [ ] or intended to kill everyone in the kill zone. If you have a reasonable doubt whether the defendant intended to kill Marcus [ ] or intended to kill [ ] White by killing everyone in the kill zone, then you must find the defendant not guilty of attempted murder of Marcus [ ]."
During his closing, the prosecutor argued, "Now, I can't say for sure that they were intending to kill [Marcus]. It's not like he was a number one enemy. He was an enemy. He was an opposing gang member. But the law specifically talks about situations like this." After re-reading the kill zone language from CALCRIM 600 to the jury, he went on to state, "What that means is this. Is when they are shooting . . . even if they are not intending to kill Marcus, if they are shooting in that direction and don't give a damn who they are shooting at, then he's guilty of attempted murder." He continued, "You saw the bullets, the holes. Did it appear like they cared?" Defense counsel did not object.
Defense counsel did not specifically address the kill zone theory during his closing but argued more generally the prosecution did not meet its burden. With respect to the murder of Mosley, he stated, "And you know, we talk—we heard about Mr.—Mr. White and how he was the deceased and how he had supposedly been involved in this shooting of Mr. Mosley and how there's bad blood between these people. What we didn't have is actual evidence presented to that effect. [¶] If—if Mr. White was to be prosecuted for the murder of Mr. Mosley, I assume it would be somewhere— something like this again, just no evidence, based on all, you know, speculation." He also argued there was no evidence suggesting the Wild Flax members had any reason to believe White would be at Ashwood that morning, further undermining the prosecutor's theory they had specifically targeted White.
B
We begin our analysis with the People's assertion Harris forfeited his arguments regarding the language of the kill zone instruction by failing to object to the instruction in the superior court.
The court addressed a similar argument in People v. Campos (2007) 156 Cal.App.4th 1228 (Campos). There, the defendant did not object to the use of the kill zone language in CALCRIM No. 600 in the trial court but argued, on appeal, the language "erroneously defines the 'kill zone' concept and is argumentative." (Campos, at p. 1236.) The appellate court noted ' " '[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " ' (Ibid.) As Campos had not objected to or requested any alteration to the instruction in the trial court, the appellate court concluded he had forfeited his arguments regarding the language of the instruction. (Ibid.) However, the court went on to explain it would have rejected the argument even if it had not been forfeited. (Ibid.)
Here, Harris raises several arguments regarding the language of the kill zone instruction. He asserts: 1) the instruction fails to define the terms "kill zone" and "zone of risk"; 2) the language does not make any reference to the specific intent required for attempted murder; and 3) the instruction fails to explain the kill zone theory does not apply "if the defendant merely subjects everyone in the kill zone to a lethal risk." Harris contends these issues render the instruction "misleading, confusing, and legally erroneous," but none suggest the instruction was not responsive to the evidence or the language the court did use was incorrect as a matter of law. (See Campos, supra, 156 Cal.App.4th at p. 1236.) Thus, following the reasoning set forth in Campos, we agree Harris forfeited his arguments by failing to raise them or request any additional clarifying or amplifying language in the superior court. (Ibid.)
That said, we acknowledge the California Supreme Court recently suggested the very same instruction Harris now complains of is indeed problematic. (See People v. Canizales (2019) 7 Cal.5th 591 (Canizales).) In Canizales, the court addressed the development of the kill zone theory and concluded it "may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm." (Id. at p. 607.) Using this rubric, the court determined the evidence in that case did not support the kill zone instruction and the trial court should not have given it. (Id. at pp. 609-612.)
Similar to Harris's assertions here, the defendants also argued the standard kill zone language in CALCRIM No. 600 the trial court used was problematic. (Canizales, supra, 7 Cal.5th at p. 609.) The court indicated its agreement, and stated, "the standard instruction should be revised to better describe the contours and limits of the kill zone theory as we have laid them out here." (Ibid.) However, since the court had already determined the trial court erred by giving a kill zone instruction, and that error was prejudicial, it declined to address the defendants' arguments regarding the language of the instruction any further. (Id. at pp. 609, 618.)
Accordingly, and in an abundance of caution, we address Harris's assertions regarding the prejudicial nature of the instruction in this case and conclude—in the absence of the forfeiture and assuming the instruction as given was in fact problematic—any associated error was harmless.
We consider the adequacy of the instructions to the jury as a whole and assume the jurors were capable of understanding and correlating all the instructions given by the court. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; Guerra, supra, 37 Cal.4th at p. 1148.) Typically, an incomplete or inaccurate instruction is prejudicial if it is reasonably probable the jury would have returned a more favorable verdict had the trial court given them an appropriate instruction. (Campos, supra, 156 Cal.App.4th at p. 1244.) However, as the court explained in Canizales, here we must also determine whether there is a reasonable likelihood the jury understood and applied the kill zone theory in a legally impermissible manner. (Canizales, supra, 7 Cal.5th at pp. 613-614.) In making that determination, we consider the instruction itself and the arguments made by counsel. (Ibid.)
Harris asserts the instruction and argument in this case impermissibly allowed the jury to convict him of attempted murder based on a legally inaccurate theory. More specifically, he argues the prosecutor's characterization of the kill zone theory during closing—asserting Harris was guilty of attempted murder if the shooters were "not intending to kill Marcus [but were] shooting in that direction and [didn't] give a damn who they [were] shooting at"—suggested the jury could base their attempted murder verdict on a legally impermissible theory of reckless endangerment. We disagree.
The evidence established a longstanding rivalry between Wild Flax and SCM, as well as a string of shootings between the two gangs in the days surrounding the shooting on August 2. The evidence also indicated all the individuals on the stairs at the time of the shooting were SCM members, and the prosecutor specifically argued Marcus himself was a target since he was an SCM gang member, even if he was not the "number one target." Given this context, the most reasonable interpretation of the prosecutor's argument is Harris could be convicted of attempted murder if the shooters did not care which SCM member they hit. Although such a theory would not be an accurate description of the kill zone theory, it was a legally permissible theory. (See Canizales, supra, 7 Cal.5th at p. 604 ["[A] defendant who fires into a group of people intending to kill one of them, but not knowing or caring which one he or she kills, can be convicted of an attempted murder because there is no requirement that a defendant intend to kill a specific target, so long as he or she intended to kill someone."].)
Moreover, to the extent the prosecutor was referring to the kill zone theory, the argument still was not improper. The alternative theory the People put forth was the Wild Flax gang members targeted White specifically and the evidence, including the pattern of bullets and the fact that Marcus was passing White on the stairs when he was hit, suggested they intended to kill White by killing anyone in the area of where White was running. In that context, the assertion the shooters did not care who they hit was a reasonable articulation of the kill zone theory. (See Canizales, supra, 7 Cal.5th at p. 607.) In other words, they did not care who else they shot, so long as they shot everyone surrounding White, thereby ensuring they shot White himself.
Regardless, we find it unlikely the jury relied on the theory of White as a primary target. As discussed ante, Mosley was murdered three years before the shooting at issue here and, while rumors circulated shortly after implicating White in the murder, there was no evidence the rumors had been confirmed or continued to circulate by 2014. In addition, as defense counsel argued, there was no evidence Harris or the other Wild Flax members knew White would be at Ashwood that evening. By contrast, as discussed, there was substantial evidence of the rivalry between the two gangs, the recent string of shootings in the days leading up to the August 2 shooting, and the prosecutor argued Marcus was a target.
In Canizales, the court found the prosecutor increased the potential for prejudice by arguing a defendant is guilty of attempted murder if he shoots at someone " 'and people are within the zone that they can get killed.' " (Canizales, supra, 7 Cal.5th at p. 601, 613.) That statement, however, suggested the mere possibility someone else could get killed was enough to support a conviction, even if the shooter did not intend to kill them. To the contrary, here, as discussed, the prosecutor's statement suggested the shooters intended to kill, they just did not care which SCM members, or how many, they killed. Moreover, the court in Canizales had determined the kill zone instruction was not supported by the evidence in the first instance, at least in part because the shooter fired into a crowd including innocent bystanders at a block party. (See id. at 611.) Here, Harris does not assert the evidence did not support a kill zone theory and there was no evidence to suggest shots were fired in the vicinity of any bystanders.
There was evidence I.P.'s girlfriend and child were inside the apartment, but there was no evidence they were outside and no evidence to suggest the shooters saw them or knew they were anywhere near the zone of fire.
Accordingly, there is no reasonable probability the jury interpreted the instruction or argument in a legally impermissible manner, nor is there a reasonable probability the jury would have returned a different or more favorable verdict had the superior court provided a more thorough kill zone instruction. (See Campos, supra, 156 Cal.App.4th at p. 1244.) Thus, even if Harris had not forfeited his argument concerning the language of the kill zone instruction, we would find any associated error was not prejudicial given the specific factual scenario at issue here.
C
For largely the same reasons, we also reject Harris's assertions his counsel provided ineffective assistance of counsel by failing to object to the prosecutor's remarks.
To prove ineffective assistance of counsel, Harris must show his attorney performed well below the standard of reasonableness under prevailing professional norms and that the result would have been more favorable to him but for that substandard performance. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) On appeal, we give deference to trial counsel's tactical choices and presume counsel's decisions were proper. (Strickland, at pp. 691-694; People v. Hinton (2006) 37 Cal.4th 839, 876.) We do not second-guess those decisions, but instead consider the reasonableness of counsel's choices in the context in which they were made. (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212 (Scott).)
Where the record is void of information concerning the attorney's strategy, we must reject an ineffective assistance of counsel claim, "unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (Scott, supra, 5 Cal.4th at p. 1212.) Given these standards and the frequent dearth of such information in the appellate record, "[i]neffective assistance of counsel claims are rarely cognizable on appeal," and are usually better suited for habeas proceedings. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329; People v. Wilson (1992) 3 Cal.4th 926, 936.)
Here, as discussed, the prosecutor's remarks were perhaps inaccurate with respect to the kill zone theory, but they did not present a wholly impermissible legal theory. (See Canizales, supra, 7 Cal.5th at p. 604.) Thus, there is not a reasonable probability the result would have been more favorable to Harris if his attorney had objected.
Further, had Harris's attorney objected, the prosecutor may have emphasized the evidence supporting the more general and well supported theory the shooters intended to kill any of the SCM members they encountered. Further still, as defense counsel subsequently pointed out, the theory White was the primary target was problematic as there was no evidence indicating the Wild Flax members knew White would be there. Thus, there is a reasonable likelihood the defense attorney made a tactical decision not to object. Affording counsel the appropriate level of deference, we cannot conclude there was no satisfactory explanation for that decision. (See Scott, supra, 15 Cal.4th at p. 1212.)
We therefore conclude Harris has not met his burden to establish his counsel provided ineffective assistance.
V
Sentencing Issues
Harris raises a number of sentencing issues, many of which the People concede, and the People raise additional sentencing issues of their own.
A
We turn first to the gun enhancements pursuant to section 12022.54. The superior court applied a sentencing enhancement under section 12022.54, subdivision (d) to Count 1, increasing the sentence from 25 years to life to 55 years to life. However, the court concluded it could not apply a similar enhancement to Count 2 because it did not believe an indeterminate life enhancement could be applied to a determinate sentence. Instead, it converted the enhancement to a 10-year enhancement pursuant to section 12022.5 as a matter of law.
Harris contends he is entitled to resentencing on Count 1 in light of amendments to sections 12022.53, subdivision (h) and 12022.5, subdivision (c) that became effective on January 1, 2018. (See Sen. Bill No. 620 (2017 Reg. Sess.).) The amended provisions now allow the trial court, in the interest of justice and pursuant to section 1385, to strike or dismiss the associated firearm enhancements at the time of sentencing. (§§ 1385; 12022.5, subd. (c) [effective Jan. 1, 2018]; 12022.53, subd. (h) [effective Jan. 1, 2018].) The People concede People v. Francis (1969) 71 Cal.2d 66 is controlling and requires retroactive application of amended sections 12022.5 and 12022.53 to all nonfinal judgments, including the judgment here, and we agree. Accordingly, we will remand the matter to allow the superior court to exercise its discretion to strike the gun enhancement.
The People contend the superior court should also have the opportunity on remand to impose a section 12022.53 enhancement on Count 2. They argue the plain language of section 12022.53, subdivisions (a)(1) and (a)(18), indicates the 25 years to life enhancement is applicable to all attempted murders, regardless of whether the base sentence is a determinate or indeterminate term. (See also People v. Palacios (2007) 41 Cal.4th 720, 725-726 [attempted murder is a qualifying felony for the purpose of the enhancement].) Harris agrees and so do we. On remand, the superior court may also reconsider imposing an enhancement pursuant to section 12022.53, subdivision (d) as to Count 2.
B
The superior court also imposed three additional one-year terms pursuant to section 667.5, subdivision (b) based on three prison priors Harris admitted. However, the terms imposed for two of the prior prison terms were concurrent and section 667.5, subdivision (b) states "the court shall impose a one-year term for each prior separate prison term." Accordingly, Harris asserts the superior court should also strike one of the three section 667.5 one-year enhancements on remand. The People concede this point as well, and we agree. (See People v. Jones (1998) 63 Cal.App.4th 744, 747 ["Courts have consistently recognized that this statutory language means that only one enhancement is proper where concurrent sentences have been imposed in two or more prior felony cases."].) We therefore direct the superior court, on remand, to strike one of the three one-year enhancements.
C
In supplemental briefing submitted while this appeal was pending, Harris asserts the superior court should also reconsider all three section 667.5, subdivision (b) sentence enhancements in light of Senate Bill No. 136. (See 2019 Cal. Legis. Serv. Ch. 590 (Sen. Bill No. 136).) Signed into law by the Governor of California on October 8, 2019 and scheduled to become effective on January 1, 2020, Sen. Bill No. 136 amends section 667.5, subdivision (b) to specify the enhancement applies only to certain sexually violent offenses. (Ibid.) The People concede the amendment is retroactive under the reasoning set forth in In re Estrada (1965) 63 Cal.2d 740 and agree the superior court should strike the associated enhancements on remand. We therefore instruct the superior court to address this issue on remand and to strike the three section 667.5, subdivision (b) enhancements so long as the amendment takes effect as currently drafted on or before the date of the resentencing.
D
Regarding the section 186.22 gang enhancement attached to Count 1, the court noted it would typically require a mandatory minimum sentence of 15 years to life but Harris had already been sentenced to a longer term. (See §186.22, subd. (b)(5).) The court then said, "[t]o the extent the clerk needs to enter the sentence on that, the Court would sentence the defendant to life with a minimum parole eligibility of 15 years to be run concurrent with the time imposed in Count 1 and the allegation." The abstract of judgment, however, indicates the gang enhancement for Count 1 was stayed. The People contend the abstract should be corrected to reflect the sentence imposed. Harris does not respond to this assertion.
Ordinarily, a court's oral pronouncement of judgment is controlling as against any discrepancies in the clerk's minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Martinez (2002) 95 Cal.App.4th 581, 586-587.) Here, the oral pronouncement makes clear the superior court intended to impose the additional penalty of a 15-year minimum parole eligibility as set forth in section 186.22, subdivision (b)(5). (See People v. Lopez (2005) 34 Cal.4th 1002, 1008-1009 [additional punishment of 15-year minimum parole eligibility set forth in section 186.22, subdivision (b)(5) applies when defendant is sentenced to indeterminate life term for murder].)
Accordingly, the abstract of judgment should be amended to reflect the imposition of the 15-year minimum parole eligibility pursuant to section 186.22, subdivision (b)(5). (See People v. Harper (2003) 109 Cal.App.4th 520, 527-528 [indicating abstract of judgment should reflect additional penalty of 15-year minimum parole eligibility].)
E
Finally, Harris relies on the recent California Supreme Court decision in People v. Contreras (2018) 4 Cal.5th 349 (Contreras) to assert the superior court should, on remand, calculate a date after which Harris may seek parole in accordance with the youth offender parole system (§ 3051).
Section 3051, subdivision (3) provides individuals convicted of a controlling offense committed when the individual was 25 years of age or younger and sentenced to a term of 25 years to life are entitled to a youth offender parole hearing during the 25th year of their incarceration. However, section 3051, subdivision (h) further provides, "[t]his section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61."
In Contreras, two defendants were sentenced to 50 years to life and 58 years to life, respectively, for kidnapping and sexual offenses committed when they were 16 years of age. (Contreras, supra, 4 Cal.5th at p. 356.) Because they were sentenced under the "One Strike" law, they were not eligible for relief under section 3051. (Id. at p. 357.) Based primarily on previous cases in which the court had held "the Eighth Amendment does not allow juveniles who commit non-homicide crimes to be sentenced to [life without the possibility of parole] or to a term of years well in excess of natural life expectancy," the court concluded it is also a violation of the Eighth Amendment to sentence a juvenile non-homicide offender to a term that does not allow a realistic opportunity to reintegrate into society. (Id. at pp. 360, 379.)
Harris asserts Contreras is applicable here, but it is not. Harris was not a juvenile non-homicide offender. He was 23 years old when he committed the controlling offenses and was convicted of second-degree murder and attempted murder. (Compare with Contreras, supra, 4 Cal.5th at p. 356.) Moreover, Harris was excluded from relief under section 3051 because of a prior strike conviction, and not because the controlling offenses were one-strike offenses. (See § 3051, subd. (h); Contreras, at p. 357.)
Harris nevertheless argues his exclusion from section 3051 presents equal protection and Eighth Amendment concerns similar to those discussed in Contreras. Specifically, he contends he is being treated more harshly than juvenile offenders who either commit special circumstance murder or receive a sentence of life without the possibility of parole, and non-juvenile youthful offenders who do not have a prior strike. We disagree.
To prevail on an equal protection claim, Harris must demonstrate he is being treated differently than other similarly situated individuals and the differential treatment is not rationally related to a legitimate government purpose. (People v. Chatman (2018) 4 Cal.5th 277, 289.) He cannot do so here.
There is extensive support for treating juveniles differently than non-juveniles with respect to sentencing. (See Miller v. Alabama (2012) 567 U.S. 460, 471 ["children are constitutionally different from adults for purposes of sentencing"]; People v. Gamache (2010) 48 Cal.4th 347, 405 ["We previously have rejected the argument that a death penalty scheme that treats differently those who are 18 years of age and older, and those younger than 18, violates equal protection."].) Harris asserts the legislature, in adopting section 3051, recognized at least some of the characteristics of juvenile offenders extend beyond the age of 18. However, he does not develop the argument or offer any authority to support it. While there may be some similarities between juveniles and non-juvenile youthful offenders, the legislature has chosen to address these through the youthful offender parole system and Harris's bare contentions are not sufficient to establish a 23-year-old should instead be treated as a juvenile. (See § 3051.)
Further, there is extensive support for treating adults with a prior strike conviction differently than adults without a prior strike conviction. (See People v. Jacobs (1984) 157 Cal.App.3d 797, 803 [concluding recidivist offenders are not similarly situated to first offenders]; People v. Leng (1999) 71 Cal.App.4th 1, 12 [three strikes law does not violate equal protection]; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1329-1330.) Harris asserts the court in Contreras expressed concerns about excluding one-strike offenders from the youthful offender parole system, but Harris is not excluded as a one-strike offender. (Contreras, supra, 4 Cal.5th at p. 382.) Moreover, the court's primary concern in Contreras was the potential for harsher punishments for non-homicide offenses, but here, Harris was convicted of murder and attempted murder. (See Contreras, at p. 382.)
To prevail on his Eighth Amendment claim, Harris must establish his sentence was grossly disproportionate to the severity of the crime or so disproportionate as to shock the conscience and offend fundamental notions of human dignity. (Gregg v. Georgia (1976) 428 U.S. 153, 173; In re Lynch (1972) 8 Cal.3d 410, 424.) The superior court here followed well-established sentencing guidelines and Harris provides no authority establishing his sentence was not appropriate for the crimes he committed. Moreover, while he was relatively young, Harris was not a juvenile and he had already committed other serious offenses.
Accordingly, we conclude Harris's exclusion from a youth offender parole hearing under section 3051 does not violate his equal protection or Eighth Amendment rights.
DISPOSITION
The sentence is vacated and remanded for resentencing, with directions for the superior court to consider whether to strike or dismiss the punishment for the firearm enhancement with respect to Count 1 under amended section 12022.5, subdivision (c); whether to impose a firearm enhancement pursuant to amended section 12022.5 with respect to Count 2; and to strike one or all three of the one-year enhancements pursuant to section 667.5, subdivision (b). In addition, the court shall amend the abstract of judgment to reflect the imposition of the 15-year minimum parole eligibility pursuant to section 186.22, subdivision (b)(5).
The superior court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. AARON, J.