Opinion
H047777 H047815
07-29-2024
THE PEOPLE, Plaintiff and Respondent, v. ERNEST JORDAN, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ROBERT OROSCO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 215223).
Grover, J.
Defendants Ernest Jordan and Robert Orosco were tried together. Jordan was convicted of first degree murder with a lying-in-wait special circumstance finding, a gang enhancement, and a firearm enhancement; attempted murder with gang and firearm enhancements; shooting at an occupied vehicle with gang and firearm enhancements; and possession of a firearm by a convicted felon with a gang enhancement. Orosco was convicted of first degree murder with a lying-in-wait special circumstance finding and shooting at an occupied vehicle, with gang and firearm enhancements on both counts. Both defendants were sentenced to life in prison without the possibility of parole.
Both defendants argue on appeal that the trial court failed to properly instruct the jury regarding accomplice testimony and unreasonable heat of passion; that trial counsel was ineffective for failing to seek an instruction regarding unreasonable heat of passion; and that those errors were cumulatively prejudicial. Both defendants also argue that the lying-in-wait special circumstance finding must be stricken because the jury was allowed to rely on a theory of transferred intent, and that a personal firearm discharge finding must be stricken because it had not been alleged in the indictment. Each defendant further argues that recent legislation changing the required elements to prove gang-related special allegations and giving defendants the right to have those allegations tried separately from the underlying offenses applies retroactively in both aspects and entitles him to a new trial. (See Assembly Bill No. 333 (2021-2022 Reg. Sess.)
Orosco individually argues that insufficient evidence supports the lying-in-wait finding; that he was convicted of murder under a now-invalid theory of imputed malice; and that his post-trial petition to release juror identifying information should have been granted. He also argues that reversal of the gang-related findings would entitle him to resentencing on his conviction for shooting at an occupied vehicle, and his LWOP sentence for murder constitutes cruel and unusual punishment.
For the reasons explained here, we will uphold defendants' convictions but remand for possible retrial on the gang and gang-related firearm allegations, as well as resentencing.
I. BACKGROUND
A. Trial Evidence
1. The Shooting Incident
On the evening of September 27, 2014, Ricky Robello was driving to his grandmother's house in San Jose for a family gathering. He drove past the house and, finding no parking, made a U-turn at the end of the block. As he passed his grandmother's house again, a group of people across the street yelled and threw gang signs at him. Robello heard someone say "Fuck you" and saw someone flashing what he believed to be "the letter S for South Side." He kept driving, pulled into the parking lot of a liquor store at the end of the block, and turned around again. As he approached his grandmother's house a third time, he called his mother Melissa, who was inside the house, and told her he was looking for parking. He stopped in front of the house and asked his mother to send someone outside because he was concerned about the group of people across the street. Melissa told her husband Nathan, who ran outside along with their son-in-law Richard.
For clarity and consistency with California Rules of Court, rule 8.90, we will refer to certain witnesses by their first names, meaning no disrespect.
Nathan testified that he and Richard did not immediately see Robello's car, so they began walking down the street. They eventually saw Robello stopped at the end of the block and Nathan, seeing no signs of danger, waved him back toward the house. As Robello drove toward them, Nathan saw flashes and heard gunshots. He did not see who fired the first two shots, but saw someone step out into the street and fire three additional shots. In December 2014, after watching a video shown to him by police, he identified the shooter as defendant Ernest Jordan.
Richard's wife Malia (who is Nathan's stepdaughter), followed the two men outside. She saw someone standing on the sidewalk slouched next to a car. The person said something like, "Are you ready now, mother fucker?" and Richard told Malia to go back inside the house. As she ran back toward the house, she heard a gunshot. From inside the house, she watched as the man who had been standing on the sidewalk shot at Robello's car. In December 2014, after watching a video shown to her by police, she identified the shooter as defendant Robert Orosco.
Robello remembered seeing someone throw an object at his car, hearing someone shout "Fuck you, nigga," then hearing three gunshots. He told police that he did not see anyone firing a gun, but he did see someone wearing a San Jose Sharks hat who was behaving aggressively and might have been the shooter. In the months following the shooting, he told police that suspect Michael Castro looked like the man who had thrown something at his car. He also said that suspect Luis Gonzalez looked like the man he thought was the shooter, and identified David Galan as his grandmother's neighbor.
Malia also identified Galan as her grandmother's neighbor, and Castro as someone who often spent time at Galan's house. Nathan identified Castro as someone he had seen across the street from his mother-in-law's house on numerous occasions.
Defense witness Luis Sorto testified that he was at Galan's house on the night of the shooting along with Castro, Galan, Gonzalez, Jordan, Orosco, and Alexander Marquez. They were hanging out, drinking and smoking. Sorto saw Robello's car drive past four to six times, and was concerned about the possibility of a drive-by shooting. Others also seemed worried. The last time the car passed, Sorto heard someone verbally confront the driver and then heard gunshots. At the time shots were fired, Sorto and Gonzalez were standing in the driveway of Galan's house. Sorto did not know where the others were at that time. He recalled seeing a gun "passed around" earlier that night.
A single bullet struck and killed Richard. Police found three .40-caliber shell casings and a spent .40- or .41-caliber projectile at the scene, as well as two .45-caliber shell casings and two spent .45-caliber projectiles. The doctor who performed the autopsy could not determine whether a .40- or .45-caliber bullet had caused the fatal wound.
2. Cooperating Witness Testimony
Castro, Gonzalez, and Marquez were initially charged with murder. All three later agreed to cooperate with the prosecution. Castro eventually pleaded guilty to being an accessory after the fact, admitted a gang allegation, and agreed to testify in exchange for a sentence of no more than seven years. Marquez pleaded no contest to voluntary manslaughter, admitted a gang allegation, and agreed to testify in exchange for a sentence of no more than 16 years. The murder charge against Gonzalez was dismissed due to insufficient evidence, and Gonzalez agreed to testify in this case in exchange for a sentence of no more than nine years in an unrelated robbery case.
Castro testified that on the day of the shooting he picked up defendants Jordan and Orosco and drove them to Galan's house. Jordan and Orosco brought guns with them, and they showed the guns to others at the house. Jordan's was a .40-caliber gun that he and Castro owned together. Everyone at the house was drinking; Orosco seemed the most drunk. When Robello's car first passed by, someone in the group said something like, "What are you looking at, nigga?" Others seemed "worried about the car" and got "hyped up" as it continued driving by. Castro heard Gonzalez tell the group that the car was probably looking for parking. He saw Jordan run to the street and crouch behind a car parked two or three houses down. Orosco ran to the same area and crouched behind a car or tree. After Robello's car passed the spot where Jordan and Orosco were hiding, Castro saw Orosco step into the street and fire a gun. Castro ducked and heard additional gunshots, roughly five or six in total.
After the shooting, Jordan and Orosco jumped into Castro's car and Castro drove them away. They first stopped at Castro's girlfriend's house, a fact Castro omitted when he spoke to police because he did not want to involve his girlfriend. Castro told her what happened. He was upset and did not want to be with Jordan and Orosco any longer, so he told them to take his car and they drove away without him. (Castro's girlfriend testified that Castro told her "Ern and them shot" and she saw Jordan drive away with someone else in Castro's car.) At some point while they were together in the car, Jordan had taken Castro's phone to text Galan. Later, Castro deleted text messages that had been sent from his phone to Galan about a different phone left at the scene of the shooting.
Gonzalez testified that his girlfriend dropped him off at Galan's house on the day of the shooting. He believed he had been wearing a San Francisco 49ers hat that day, although he also owned San Jose Sharks hats. Gonzalez remembered seeing Jordan and Orosco compare guns at Galan's house. Jordan told Gonzalez he had a .40-caliber gun, and Orosco told Gonzalez he had a .45-caliber gun. Gonzalez did not see anyone else with a gun. He saw Robello drive by three times and look at the group in a way that made him uncomfortable. Everyone seemed concerned about the car, especially Jordan and Orosco. One of them said something like "What the fuck?" or "Did you see that car again?" Gonzalez asked Galan whether he knew the driver, Galan said he did not, and Gonzalez told the group that the car was probably looking for parking. Jordan and Orosco walked down the sidewalk and waited behind the cars parked on the street. As Robello's car approached the final time, Gonzalez saw two flashes and heard four or five gunshots coming from the area where Jordan and Orosco were standing.
Marquez testified that he was at Galan's house when Castro, Jordan, and Orosco arrived in Castro's car. Castro and Orosco both showed guns to Marquez. Marquez left Galan's house around 5:00 or 5:30 p.m. and returned later, between 8:00 and 9:00 p.m. He was there when Robello's car drove by; the car "had a loud muffler" and "seemed kind of sketch." Marquez watched as the car sat in a liquor store parking lot for "two or three minutes" before driving back toward Galan's house. Jordan, Marquez, and Orosco walked to the sidewalk as the car approached. While Jordan and Orosco continued walking toward the car, Marquez walked behind them and grabbed a brick to throw at the car. Jordan and Orosco ducked down next to a parked car, and Marquez crouched behind another car. He threw the brick at Robello's car, the car stopped, and Jordan and Orosco fired guns. Marquez saw both Jordan and Orosco standing in the street and shooting toward the car from behind. He did not know whether Jordan or Orosco had fired first.
Castro, Gonzalez, and Marquez all testified that they saw Jordan in the audience at one of their early court appearances. Gonzalez testified that he locked eyes with Jordan, and Castro testified that Jordan made a hand motion he interpreted as meaning "Don't say nothing."
3. Gang Evidence
Marquez testified as an expert on Norteno criminal street gangs in San Jose. He had been a member of Brotherhood, a Norteno gang, for seven or eight years. Brotherhood held monthly meetings to discuss the gang's activities. Marquez heard Jordan's name mentioned at a Brotherhood meeting in August 2014, and believed Jordan to be a Brotherhood recruit. He knew between 10 and 20 Nortenos, including Jordan, who lived near the intersection of King and Ocala in San Jose-a neighborhood known as "KO Block." In Marquez's opinion, KO Block was not a gang. Castro, Gonzalez, and Jordan appeared in a rap video filmed near King and Ocala in the summer of 2014. Castro and Jordan appear to have guns in the video, and Gonzalez says, "KO clippers, boy, we be active."
Detective Gabriel Cuenca of the San Jose Police Department also testified as an expert on criminal street gangs in San Jose. He believed the Norteno gang to be "probably the predominant gang in San Jose." It is divided into various subsets, or "hoods." Cuenca believed both Brotherhood and KO Block to be Norteno subsets. In his opinion, the rap video showed an association between the two subsets. He believed that Galan and Marquez were Brotherhood members, and that Castro and Jordan were members of KO Block. He also believed Gonzalez and Orosco to be Nortenos.
Cuenca described predicate offenses committed by Nortenos and KO Block members. In July 2014, two KO Block members committed a home invasion robbery in San Jose and spray-painted the victim's home with gang-related graffiti. They pleaded guilty to charges including robbery and residential burglary, and admitted gang allegations. In August 2014, a Norteno shot and killed a member of the Seven Trees Crips gang in a 7-Eleven parking lot near the site of the charged murder. The shooter was convicted of second degree murder, and a firearm allegation was found true. No gang allegation was made in that case, but Cuenca believed "there was a gang motivation in the sense that they were from two different gangs, and some type of confrontation occurred, and that was the reason that [the victim] was shot and killed." Cuenca also opined that the July 2014 home invasion robbery, Jordan's possession of a firearm in August 2014 (a video of which was played for the jury and admitted into evidence), and a hypothetical offense based on the charged murder were gang-related.
At the time of the charged murder, Marquez was aware of ongoing conflict between the Crips and a Norteno subset in the area. He was also aware that a Norteno had shot an African American man at a nearby 7-Eleven earlier that summer. Cuenca testified that, although the Crips and the Nortenos had gotten along in the past, there was a violent conflict between the two gangs during the summer of 2014 and the feud remained ongoing in September of that year. Defense witness Sorto also testified that he was aware of conflict between the Crips and the Nortenos around the time of the charged murder.
4. Gunshot Evidence
Prosecution experts testified that the two spent .45-caliber projectiles were hollowpoint bullets that came from a single gun, possibly a Desert Eagle handgun. There was testimony that the two .45-caliber shell casings also came from a single gun, as did the three .40-caliber shell casings. There was also testimony that the spent .40- or .41-caliber projectile was not a hollow-point bullet, and it could have been fired from a SIG Sauer or Smith &Wesson gun. (Castro testified that the .40-caliber gun he owned with Jordan was "either a Sig or a Smith and Wesson.")
An expert witness for defendant Orosco testified that the two .45-caliber bullets had likely ricocheted off the ground and struck Robello's car. The path of the bullets suggested that the person who fired the .45-caliber gun may have been "aiming more at the ground" than at the car.
5. Phone Records
Deleted contact information for Jordan and Orosco was found on Castro's phone. At 9:47 p.m. on the night of the shooting, a text sent from Castro's phone to Galan's phone read, "Nigga my boys fones in front of the house get it plzzzzzz." At 10:03 p.m., a text sent from Galan's phone replied, "They got the fone." Police found Orosco's phone on the sidewalk next to Galan's house. Its internet history included searches for "desert eagle 45" and "desert eagle .45" on July 12, 2014. Photographs of what appeared to be a .45-caliber Desert Eagle gun were found on the phone, as were photographs of a person with a gun. Orosco's sister identified the person in the pictures as Orosco.
On the night of the shooting, Orosco's sister was talking on the phone with her then-boyfriend, who was incarcerated at the time. While on the phone, she said, "Shit. Shit. Shit. Shit. Okay. I guess something happened." When her boyfriend asked about what happened, she said something about someone "open[ing] the door so he can get the bullets out." The following day, Orosco's sister spoke to her boyfriend again and he asked about her brother. She told him, "they did something and he don't want to say anything, but he left his phone at the scene." She also said Orosco had told her that someone might come "look for him" and she should tell them he was in Los Angeles.
B. Arguments and Verdicts
Counsel for Orosco conceded that Orosco fired two shots, but argued that he fired at the ground without an intent to kill and his actions did not cause the victim's death. Counsel for Jordan contested the prosecution witnesses' identification of Jordan as one of the shooters. Neither attorney argued that the shooting was an act of self-defense, although both noted that the circumstances leading up to the shooting caused fear and alarm among the group gathered at Galan's house.
The jury found Jordan guilty of first degree murder with a lying-in-wait finding; the willful, deliberate, and premeditated attempted murder of Ricky Robello; shooting at an occupied vehicle; and illegal possession of a firearm. It also found true special gang, firearm, and gang-related firearm allegations against Jordan.
The jury found Orosco guilty of first degree murder with a lying-in-wait finding, and shooting at an occupied vehicle; it found Orosco not guilty of attempted murder (including the lesser offense of attempted voluntary manslaughter). The jury found true various special allegations as to Orosco, including the allegation that he personally discharged a firearm causing death in shooting at an occupied vehicle, but found not true the same allegation on the murder count.
C. Post-Trial Proceedings
Following the trial, Orosco's counsel petitioned for the disclosure of juror identifying information or, in the alternative, for an evidentiary hearing concerning possible jury misconduct. Grounds for the petition included alleged inconsistencies in the jury's verdicts, as well as comments made by several jurors to a defense investigator allegedly suggesting that the jury may have considered extraneous information or disregarded the court's instructions. The trial court denied the petition.
Following the trial, Jordan pleaded no contest to one count of first degree burglary, and admitted he had suffered a prior burglary conviction. He was sentenced to life in prison without the possibility of parole for murder, plus 25 years to life for personally discharging a firearm that caused death; a consecutive term of 30 years to life for attempted murder, plus 25 years to life for the personal firearm discharge enhancement; a consecutive term of four years for possessing a firearm as a convicted felon, plus three years for a gang enhancement; and a consecutive term of two years eight months for burglary. The court imposed and stayed a sentence of 30 years to life for shooting at an occupied vehicle, plus 25 years to life for the personal firearm discharge enhancement. Orosco was sentenced to life in prison without the possibility of parole for murder, plus 20 years to life for personally discharging a firearm, and a consecutive term of 15 years to life for shooting at an occupied vehicle.
II. DISCUSSION
A. Arguments Raised by Both Defendants
1. Accomplice Testimony
Defendants argue the trial court should have instructed the jury that accomplice testimony must be corroborated and viewed with caution, and that failing to do so violated their Sixth and Fourteenth Amendment due process rights. We review claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206.) "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense" (an "accomplice" being "defined as one who is liable to prosecution for the identical offense charged against the defendant"). (Pen. Code, § 1111; unspecified statutory references are to this code.) Accomplice testimony that tends to incriminate a defendant should be viewed with care and caution. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) A trial court must instruct the jury about the principles applicable to accomplice testimony where substantial evidence supports the instructions (currently set forth in CALCRIM Nos. 334 and 707), even if those instructions are not requested by a defendant. (Ibid.; People v. Johnsen (2021) 10 Cal.5th 1116, 1155.) The court need not give the instructions if it determines the evidence is insufficient to establish the witness is an accomplice as a matter of law. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 302 (Gonzales and Soliz).) Here, the court neither made that determination nor gave the relevant instructions.
Defendants assert there was substantial evidence that witnesses Castro, Gonzalez, and Marquez were accomplices such that the relevant instructions should have been given. The Attorney General contends there was not substantial evidence that any of the three cooperating witnesses was an accomplice, and further any error was harmless because their testimony was sufficiently corroborated.
We agree with the Attorney General that substantial evidence did not support an accomplice instruction regarding Gonzalez's testimony. Although Gonzalez was initially charged with murder, that charge was dismissed due to insufficient evidence, and he was no longer liable to prosecution for murder at the time of trial. The only evidence suggesting his direct involvement in the murder was Robello's identification of him as looking like someone who had been verbally aggressive during the leadup to the shooting, and who Robello assumed for that reason might have been a shooter. Robello's mere assumption is insufficient evidence of accomplice status.
With respect to Castro and Marquez, the evidence of accomplice status is stronger. Castro admitted to co-owning the alleged murder weapon with Jordan, and Marquez admitted to throwing a brick at Robello's car immediately before the shooting. Both pleaded guilty or no contest to lesser offenses and agreed to testify against defendants with the understanding that murder charges could be reinstated if they failed to cooperate. Even assuming that both qualified as accomplices, however, any error in not properly instructing the jury was harmless because sufficient corroborating evidence appears in the record. (Gonzales and Soliz, supra, 52 Cal.4th at p. 303.) Corroborating evidence "need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." (People v. Fauber (1992) 2 Cal.4th 792, 834.) It is insufficient only if it "should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime." (People v. McDermott (2002) 28 Cal.4th 946, 986.)
The testimony of Castro and Marquez was corroborated by Gonzalez, who provided a similar account of the events leading up to the shooting. It was further corroborated by the testimony of Nathan and Malia, who respectively identified Jordan and Orosco as shooters; the testimony of Castro's girlfriend about events following the shooting; statements made by Orosco's sister; and evidence found on Orosco's cell phone. Admissible evidence from other sources thus sufficiently corroborated the testimony of Castro and Marquez, making the apparent instructional error harmless.
Even assuming insufficient corroboration of the accomplice testimony," 'reversal is not required unless it is reasonably probable a result more favorable to the defendant would have been reached.'" (Gonzales and Soliz, supra, 52 Cal.4th at p. 304, quoting People v. Miranda (1987) 44 Cal.3d 57, 101.) Here, the volume of other evidence presented and the trial court's general jury instructions regarding witness credibility would also lead us to find no reasonable probability of a result more favorable to defendants had the trial court given proper instructions concerning accomplice testimony. (See Gonzales and Soliz, supra, 52 Cal.4th at p. 304.) Although defendants argue that the court's error implicated their federal constitutional rights, and prejudice should therefore be assessed under the reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, they recognize that "the California Supreme Court has treated such errors as state law violations only." We are bound to apply the prejudice standard determined by the Supreme Court in Gonzales and Soliz, and we find any error harmless under that standard.
2. Unreasonable Heat of Passion
Defendants argue the trial court should have instructed the jury that if it determined defendants had acted in the heat of passion-and even if the passion was unreasonable-it could find defendants guilty of only second degree murder, and find not true the allegation that they committed murder by lying in wait. Alternatively, assuming the court was not required to give such an instruction unless requested by defense counsel, they contend counsel were ineffective for failing to request it.
An intentional and unlawful killing committed "upon a sudden quarrel or heat of passion" (§ 192, subd. (a)) constitutes voluntary manslaughter if the passion is provoked by circumstances that would cause an ordinarily reasonable person to act rashly. (People v. Manriquez (2005) 37 Cal.4th 547, 583-584.) "If the provocation would not cause an average person to experience deadly passion but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332, citing People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.) We reject defendants' argument that the trial court had a sua sponte duty to give CALCRIM No. 522 in this case, or to otherwise instruct the jury that unreasonable heat of passion could negate the element of premeditation. As an instruction that provocation may raise reasonable doubt about premeditation or deliberation, CALCRIM No. 522 is a pinpoint instruction required only on request where evidence supports the theory. (People v. Rivera (2019) 7 Cal.5th 306, 328; accord, Hernandez, at p. 1333.)
Defendants' contention that they were entitled to an instruction that unreasonable heat of passion could negate a lying-in-wait special circumstance finding is also contrary to California Supreme Court precedent. Defendants base their contention on the premise that "premeditation is essentially an element of lying in wait" because CALCRIM No. 521 states that lying in wait requires "a state of mind equivalent to deliberation or premeditation." In People v. Hardy (1992) 2 Cal.4th 86, and People v. Ruiz (1988) 44 Cal.3d 589, defendants argued that a similarly worded CALJIC instruction misstated the law because it was phrased disjunctively and first degree murder must be willful, deliberate, and premeditated. (§ 189, subd. (a).) The Supreme Court rejected the argument, noting that the state of mind necessary for a lying-in-wait finding was "equivalent" but not "identical" to one of premeditation and deliberation. (Hardy, at pp. 162-163; Ruiz, at pp. 614-615.) Its conclusion that the CALJIC instruction at issue in Hardy and Ruiz did not misstate the law is inconsistent with defendants' position here that premeditation is an element of lying in wait calling for instruction on unreasonable heat of passion. (Cf. People v. Wright (2015) 242 Cal.App.4th 1461, 1496 ["Provocation cannot negate first degree murder by lying in wait."].)
In order to prevail on their alternative claim that trial counsel's ineffectiveness violated their right to counsel under the Sixth Amendment, defendants must show both that counsel's performance was deficient and that they were prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To prove prejudice, defendants must affirmatively show a reasonable probability that, but for trial counsel's errors, the result would have been different. (Id. at pp. 217-218.) Here, we need not assess counsel's performance because defendants have not shown prejudice. (See In re Cox (2003) 30 Cal.4th 974, 1019-1020.) Neither defendant testified and there was little evidence that either was so consumed by passion as to possibly negate premeditation. A request for an instruction on unreasonable heat of passion would likely have been denied. Even if the trial court had instructed the jury about unreasonable heat of passion, and the jury had found defendants guilty of second degree murder on that basis, a finding that defendants committed murder by lying in wait would have elevated the offense to first degree murder by operation of law. (People v. Battle (2011) 198 Cal.App.4th 50, 75; People v. Edelbacher (1989) 47 Cal.3d 983, 1028-1029.) For the same reason, the absence of an instruction on unreasonable heat of passion was harmless as to the murder charges against both defendants, even if the court had a sua sponte duty to so instruct. (Cf. People v. Cruz (2008) 44 Cal.4th 636, 665; Edelbacher, at pp. 1028-1029.)
With respect to the murder and attempted murder charges against Jordan, it is also significant that Jordan relied on an identity defense at trial. On appeal, Jordan suggests his trial counsel could have emphasized that defense while also "dropping hints" about unreasonable heat of passion-the same approach counsel took (unsuccessfully) with the theory of voluntary manslaughter by imperfect self-defense-or even ignoring unreasonable heat of passion entirely, "secure that the court's instructions enabled the jurors to consider the issue on their own." We see no reasonable probability that, had Jordan's counsel done so, the jury would have rejected Jordan's identity defense beyond a reasonable doubt but nonetheless failed to find premeditation due to the availability of a less developed alternative theory.
3. Cumulative Prejudice
Defendants argue that the asserted instructional errors relating to accomplice testimony and unreasonable heat of passion, and counsel's failure to request an instruction on unreasonable heat of passion, were cumulatively prejudicial. "Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844 .) "Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Ibid.) That is not the case here, nor did the purported errors render defendants' trial fundamentally unfair. We have found the trial court had no sua sponte duty to instruct about principles of accomplice testimony (as applied to Gonzalez) or about unreasonable heat of passion. Even assuming the court should have informed the jury about accomplice testimony as applied to Castro and Marquez, and defense counsel should have requested an instruction on unreasonable heat of passion, we find no cumulative prejudice requiring reversal.
In a supplemental brief, Jordan also identifies the court's failure to conduct a bifurcated trial on the gang allegations (as would now be required upon request under section 1109) as an additional error contributing to cumulative prejudice. As discussed post, the California Supreme Court has since held that section 1109's bifurcation requirement does not apply retroactively, and it does not change our analysis of cumulative prejudice.
4. Transferred Intent and Lying in Wait
Defendants argue that the lying-in-wait special circumstance finding must be stricken because the jury was permitted to rely on a legally invalid theory of transferred intent. Under the transferred intent doctrine, "a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed" if the intended victim had been killed. (People v. Scott (1996) 14 Cal.4th 544, 546.) An intentional killing is committed "by means of lying in wait" (§ 190.2, subd. (a)(15)) if three elements are present: (1) a concealment of purpose; (2) a substantial period of watching and waiting for an opportune time to act; and (3) a surprise attack on the victim from a position of advantage. (People v. Sandoval (2015) 62 Cal.4th 394, 416.) The transferred intent doctrine has been held to apply to killings committed by lying in wait. (People v. Robbins (2018) 19 Cal.App.5th 660, 671 (Robbins).)
Relying on a footnote in People v. Hajek and Vo (2014) 58 Cal.4th 1144 (Hajek and Vo), defendants urge that Robbins was wrongly decided. In Hajek and Vo, the victim "Su Hung was killed while defendants were waiting for her granddaughter, Ellen, to return home. The trial court, using a 'transferred intent' analogy, concluded that even though Ellen was the target, 'the murder did occur during the process of lying in wait, so that special [circumstance] will not be dismissed.'" (Id. at p. 1184.) On appeal to the California Supreme Court, the Attorney General disavowed the trial court's rationale, and the Supreme Court stated in a footnote that its research "yielded no support in case law for the trial court's transferred intent analogy." (Id. at p. 1184, fn. 12.) The Court of Appeal in Robbins read that footnote as meaning only that, at the time, it was "an issue of first impression as to whether transferred intent applies to the lying-in-wait special circumstance." (Robbins, supra, 19 Cal.App.5th at p. 670.) Defendants would read the footnote to suggest that the transferred intent doctrine is categorically inapplicable to killings committed by lying in wait. We agree with the Robbins court that the Supreme Court said no such thing in Hajek and Vo.
The question of whether the intent to kill by surprise attack transfers when the attacker kills someone other than the intended victim was not presented in Hajek and Vo, because Su Hung was not killed in a surprise attack. Rather, she was held hostage and eventually killed while Hajek and Vo were lying in wait to carry out a surprise attack on Ellen. (Hajek and Vo, supra, 58 Cal.4th at pp. 1159-1162.) Although the lower court's "analogy" to the transferred intent doctrine in that scenario was therefore inapt, it does not follow that the doctrine cannot apply where a surprise attack is carried out and results in death. That is what happened in Robbins, where the defendant mistakenly shot and killed the victim under the belief that he was someone else (Robbins, supra, 19 Cal.App.5th at p. 666), and it is what the prosecutor argued happened in this case when he told the jury it could find the lying-in-wait allegation true based on a theory of transferred intent. We do not read Hajek and Vo as barring application of the transferred intent doctrine in such cases.
To the contrary, applying the transferred intent doctrine to the lying-in-wait special circumstance is consistent with past decisions concerning other special circumstances. Generally speaking, "the intent to kill required for a murder special circumstance need not be the intent to kill the ultimate victim." (People v. Arreola (1986) 186 Cal.App.3d 1570, 1576.) Although a specific intent requirement may be warranted for special circumstances designed to protect certain classes of victims (see § 190.2, subd. (a)(7)-(13), (16), (20)), or if the language of the relevant statute "indicates an intent to exempt its provisions from the well-established transferred intent doctrine," there is otherwise "no sound reason" to refrain from applying that doctrine to a special circumstance. (People v. Shabazz (2006) 38 Cal.4th 55, 64.) Defendants describe the lying-in-wait special circumstance as "inherently personal in nature," but its focus is properly on the defendant's conduct rather than the victim's identity. We therefore follow Robbins and conclude that the transferred intent doctrine can apply to killings committed "by means of lying in wait." (§ 190.2, subd. (a)(15).)
5. Proof of Gang-Related Allegations
Effective January 1, 2022, Assembly Bill No. 333 (2021-2022 Reg. Sess.) amended section 186.22 to modify the elemental definitions of" 'pattern of criminal gang activity'" and" 'criminal street gang'" (§ 186.22, subds. (e), (f)), and to clarify what it means to "benefit, promote, further, or assist" a criminal street gang (§ 186.22, subd. (g)). (Stats. 2021, ch. 699, §§ 3, 4.) The statute now prescribes: the permissible age of predicate offenses used to show a pattern of criminal gang activity relative to one another and to the currently charged offense; the predicate offenses must have commonly benefited a criminal street gang; the common benefit must have been more than reputational; the currently charged offense may not be used to establish a pattern of gang activity; and the gang's members must have collectively engaged in the pattern of gang activity. (§ 186.22, subds. (e)-(g).) The parties correctly agree that these substantive amendments to section 186.22 are ameliorative and therefore apply retroactively to defendants. (People v. Tran (2022) 13 Cal.5th 1169, 1206-1207 (Tran); In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).)
Defendants argue the predicate offenses relied on in their trial do not meet the new statutory standard because they include the currently charged offense and were not shown to have provided a common benefit that was more than reputational. They ask us to treat the issue as one of both insufficient evidence and instructional error. The Attorney General argues that the asserted error is purely instructional, and remand is unnecessary because the jury would have found beyond a reasonable doubt that at least two predicate offenses satisfied all requirements of amended section 186.22. We agree with defendants that remand is necessary, even if their claim is treated as one of instructional error as the Attorney General urges.
The predicate offenses presented at trial included the charged murder, the charge that Jordan illegally possessed a firearm, Marquez's voluntary manslaughter conviction for his participation in the charged offense, Cesar Cacho's conviction for the 2014 murder of Santrius Lawrence, and the convictions of Alexander Morales and Jose Manuel Sanchez for a home invasion robbery also committed in 2014. The charged murder, Jordan's charged firearm possession, and Marquez's voluntary manslaughter conviction no longer qualify as predicate offenses under the amended statute, which provides that a "currently charged offense shall not be used to establish the pattern of criminal gang activity." (§ 186.22, subd. (e)(2).) No gang allegation was made against Cacho for Lawrence's murder, and the Attorney General does not argue that the evidence at defendants' trial was sufficient to establish that Lawrence's murder benefited a gang in a way that was more than reputational. (A gang expert testified only that he believed "there was a gang motivation in the sense that they were from two different gangs, and some type of confrontation occurred, and that was the reason that Mr. Lawrence was shot and killed.")
The Attorney General argues that the home invasion robbery committed by Morales and Sanchez qualifies as a predicate offense under the amended statute, noting that Morales and Sanchez were KO Block members who admitted gang allegations and spray-painted gang graffiti on the victim's home. But before the enactment of Assembly Bill No. 333, section 186.22 did not require offenses to have provided a common benefit that was more than reputational, and any benefit to the gang derived from graffiti may be solely reputational. The Attorney General now argues that the offense necessarily provided an additional benefit because robberies "are committed for financial gain and thus benefit the gang in a way that is more than reputational." It may be true that robberies are often committed for financial gain, but that general truth does not establish that a particular robbery financially benefited a gang rather than the individual perpetrators. (People v. Cooper (2023) 14 Cal.5th 735, 743-744 (Cooper).)
We also reject the Attorney General's attempt to rely on additional offenses such as Jordan's apparent possession of a firearm in the rap video, drug sales made by Marquez on the day of the shooting, and four burglaries committed by Castro between 2011 and 2014. There was no evidence that anyone was convicted, or even charged, for any of those offenses. A gang expert testified that gang members carry guns for various reasons related to gang activity, and gangs use rap videos as recruitment tools, but the expert was not asked to opine as to whether Jordan's apparent possession of a firearm in the rap video benefited a gang. A jury could have reasonably found no benefit, or only a benefit to the gang's reputation. Similarly, while drug sales are generally committed for financial gain and Castro testified that he had committed burglaries for that reason, neither Castro nor Marquez testified to circumstances indicating that their offenses financially benefited their gang rather than themselves and any coparticipants.
Because on this record we cannot conclude beyond a reasonable doubt that the jury would have found at least two predicate offenses met the requirements of amended section 186.22 (see Tran, supra, 13 Cal.5th at p. 1207), we must remand the matter for possible retrial on gang-related allegations. (See People v. E.H. (2022) 75 Cal.App.5th 467, 480; People v. Lopez (2021) 73 Cal.App.5th 327, 346; People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72.) Those include the gang allegations under section 186.22 as well as the gang-related firearm allegations under section 12022.53, subdivision (e)(1), which incorporates the requirements of amended section 186.22. (Cooper, supra, 14 Cal.5th at p. 746; Lopez, at pp. 347-348.)
6. Bifurcation of Gang Allegations
Assembly Bill No. 333 also added section 1109, requiring a trial court to conduct a bifurcated trial on gang special allegations if requested by the defendant (§ 1109, subd. (a)). (Stats. 2021, ch. 699, § 5.) A trial on any bifurcated gang allegations is conducted only if the defendant is first found guilty of the underlying offense. (§ 1109, subd. (a)(1), (2).) Defendants argue that section 1109 is retroactive under Estrada, supra, 63 Cal.2d at p. 745, while the Attorney General argues it is not. The issue is one that had divided this court, but after briefing in this case was complete, the California Supreme Court resolved the conflict by deciding that section 1109 does not apply retroactively. (People v. Burgos (2024) 16 Cal.5th 1.) Burgos is controlling and requires us to reject defendants' claim that section 1109 entitles them to a new bifurcated trial on the underlying offenses.
7. Notice of Personal Firearm Discharge Allegations
In their opening briefs, defendants make similar but distinct arguments requesting reversal of personal firearm discharge findings and enhancements under section 12022.53, subdivision (d). Jordan has also joined in Orosco's argument via supplemental briefing. Both defendants contend that personal firearm discharge was not alleged in the indictment. The Attorney General argues that defendants forfeited the issue by not objecting at trial when personal firearm discharge allegations were submitted to the jury, and that the indictment gave defendants fair notice of the personal firearm discharge allegations in any event.
We acknowledge that the indictment included only gang-related firearm allegations using language from section 12022.53, subdivision (e)-referencing subdivisions (a) through (d) only insofar as they were incorporated into subdivision (e)- and did not specifically allege that either defendant personally discharged a firearm. But neither defendant objected to the personal firearm discharge allegations at any point during the trial. The jury instructions, the prosecutor's closing argument, and the verdict forms all made clear that the prosecution was seeking true findings on personal firearm discharge allegations against both defendants under section 12022.53, subdivision (d). "A timely objection to the adequacy of the indictment would have provided an opportunity to craft an appropriate remedy." (People v. Houston (2012) 54 Cal.4th 1186, 1228.)
It is less clear whether the forfeiture rule applies to Jordan's alternative argument that the trial court's imposition of both firearm enhancements and gang enhancements on certain counts resulted in an unlawful sentence. (See People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7.) Jordan correctly notes that the court could not have imposed both enhancements on a single count absent a finding of personal firearm discharge, which was not specifically alleged in the indictment. (See § 12022.53, subd. (e)(2).) We need not consider his argument in greater detail at this stage, however, as resentencing will be required on those counts due to our reversal of the gang enhancements for an unrelated reason. In order for any section 12022.53 firearm enhancement to be imposed upon resentencing, "the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 12022.53, subd. (j).) Should the prosecution seek to amend its pleading on remand, we leave it for the trial court to determine in the first instance whether amendment would be appropriate at this stage of the proceedings. (See § 1009.)
B. Orosco'S Individual Arguments
1. Sufficiency of Evidence for Lying-in-Wait Special Circumstance
Orosco contends insufficient evidence supported the jury's finding that he committed murder by lying in wait. "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) To overturn the jury's finding, "it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Although Orosco characterizes his claim as one of insufficiency, he also posits an inconsistency between the jury's true finding on the lying-in-wait special circumstance allegation and its finding that Orosco was not guilty of attempted murder or attempted voluntary manslaughter. Even accepting the premise that the findings are inherently inconsistent (which the Attorney General disputes), that does not lead us to conclude that the lying-in-wait finding lacked sufficient evidentiary support. "The law generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely satisfying, consequence of a criminal justice system that gives defendants the benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the evidence." (People v. Palmer (2001) 24 Cal.4th 856, 860.)" 'Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt'" and" 'should be independent of the jury's determination that evidence on another count was insufficient.'" (People v. Lewis (2001) 25 Cal.4th 610, 656, quoting United States v. Powell (1984) 469 U.S. 57, 67.)
Considered on its own, the jury's lying-in-wait finding was supported by sufficient evidence. Orosco asserts that, because there was evidence suggesting that he had fired not at Robello but at the ground, no reasonable jury could have found beyond a reasonable doubt that he had intended to kill. (Although specific intent to kill is not an element of first degree murder by lying in wait (People v. Laws (1993) 12 Cal.App.4th 786, 794), it is an element of the lying-in-wait special circumstance (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 309).) A defense expert testified that Orosco may have been "aiming more at the ground" than at the car, and a reasonable jury may have harbored doubt about Orosco's specific intent to kill based on that testimony. But a reasonable jury could also have concluded from Orosco's actions in waiting behind a parked car for Robello to approach, then firing two shots in the direction of Robello's car from a short distance, that he intended to kill Robello and simply missed. Viewed in the light most favorable to the jury's finding, the evidence does not compel a contrary inference.
2. Imputed Malice
Orosco argues that the jury was permitted to convict him of murder under a nowinvalid imputed malice theory. He cites Senate Bill No. 1437 (2017-2018 Reg. Sess.), which amended section 188 to provide that malice "shall not be imputed to a person based solely on his or her participation in a crime" (Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3)), and which had already taken effect at the time of defendants' trial in 2019. Senate Bill No. 1437 also added former section 1170.95, which permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill No. 1437." (People v. Flores (2020) 44 Cal.App.5th 985, 992.) A later bill cited by Orosco, Senate Bill No. 775 (2020-2021 Reg. Sess.), amended former section 1170.95 to extend its benefits to those convicted of murder based on some "other theory under which malice is imputed to a person based solely on that person's participation in a crime" and to allow the issues to be raised on direct appeal. (Stats. 2021, ch. 551, § 2.)
In light of Senate Bill No. 1437, the trial court did not instruct the jury on the natural and probable consequences doctrine or permit the prosecutor to argue that Orosco was guilty of murder under that doctrine. Indeed, Orosco recognizes that the court's instructions on malice were "legally proper in the context in which given" and does not contend they were erroneous on their own. He instead identifies statements in the prosecutor's closing argument as confusing and potentially misleading when viewed in conjunction with the court's otherwise correct, but complex (and therefore easily misunderstood) instructions. Specifically, he observes that the prosecutor devoted significant time to the concept of "proximate cause" while only briefly mentioning the need to prove malice. As Orosco acknowledges, the prosecutor reminded the jury of the prosecution's burden "to prove beyond a reasonable doubt the defendants committed the act with malice aforethought." But Orosco argues that statement was also misleading, as the prosecutor's use of the plural "defendants" implied to the jury that Orosco could be convicted of murder based on a finding that Jordan acted with malice. Based on the prosecutor's argument, Orosco contends, the jury would have been led to believe that one theory under which it could find Orosco guilty was a "proximate cause" theory allowing Jordan's malice to be imputed to Orosco.
Orosco cites People v. Morgan (2007) 42 Cal.4th 593 to support the proposition that a prosecutor's advancement of an incorrect legal theory in closing argument, combined with ambiguous instructions that could be read to encompass the incorrect theory, may result in the erroneous submission of that theory to the jury. In Morgan, the prosecutor presented two asportation theories to the jury, one valid and one invalid under the law as interpreted at the time of the offense. (Id. at pp. 608-613.) The language of the instructions in that case, though legally correct, did not preclude the incorrect notion advanced by the prosecutor (id. at p. 611), and thus the record could not eliminate the possibility that the jury relied on a legally inadequate theory to find Morgan guilty of kidnapping. (Id. at p. 613.)
Here, though certain portions of the prosecutor's lengthy closing argument may not have been ideally phrased or constructed, we do not read them as misstating the law so as to render the trial court's otherwise legally correct instructions inadequate under the circumstances. The court instructed the jury using CALCRIM No. 520, which clearly states that the prosecution in a murder case must prove malice. The prosecutor's argument was not inconsistent with the court's instructions. To the extent the argument would be ambiguous or even misleading without proper instructions on malice, the court's proper instructions resolved any ambiguity and we presume the jury followed them. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.)
3. Resentencing on Conviction for Shooting at an Occupied Vehicle
Orosco correctly notes that, if not for a true finding on the accompanying gang allegation, the trial court could not have imposed a sentence of 15 years to life for shooting at an occupied vehicle. (See § 186.22, subd. (b)(4)(B); § 246.) His argument, which the Attorney General does not dispute, applies with equal force to Jordan. On remand, the prosecution will have an opportunity to retry defendants on the gang and gang-related firearm allegations found true by the jury. Should the prosecution elect not to do so, or should those allegations be found not true after retrial, the court will be required to resentence defendants accordingly.
4. Denial of Petition for Disclosure of Juror Identifying Information
Orosco's counsel petitioned after trial for disclosure of juror identifying information or, in the alternative, for an evidentiary hearing concerning possible jury misconduct. Orosco challenges the trial court's denial of the petition without an evidentiary hearing.
Under Code of Civil Procedure sections 206 and 237, "a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).) "The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure." (Code Civ. Proc., § 237, subd. (b).) "Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported." (People v. Cook (2015) 236 Cal.App.4th 341, 346.) The denial of a petition for disclosure of juror identifying information is reviewed for abuse of discretion, as is the denial of a request for an evidentiary hearing concerning possible jury misconduct. (Ibid.; People v. Avila (2006) 38 Cal.4th 491, 604.)
We see no abuse of discretion here. The stated grounds for Orosco's petition included purported inconsistencies in the jury's verdict, as well as comments by several jurors to a defense investigator following the trial. Evidence of "statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly" is admissible to challenge the validity of a verdict, but evidence may not be admitted "to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Evid. Code, § 1150, subd. (a).) The evidence supporting Orosco's petition was thus only relevant insofar as it suggested the jurors committed overt acts of misconduct, and was irrelevant as to individual jurors' possible misunderstandings of the law. Orosco appears to argue on appeal, as he did in the trial court, that the jury may have considered extraneous information regarding the inapplicable felony murder doctrine. But that is speculative based on the jurors' statements, which we read as more consistent with the inference that the jurors attempted (correctly or not) to faithfully apply the court's instructions.
Orosco attempts to distinguish between the "good cause" required for disclosure of juror identifying information and the "prima facie showing of good cause" required to trigger a hearing, which he contends was satisfied here. We disagree with his reading of the statute. Code of Civil Procedure section 237, subdivision (b) requires a hearing to be held "if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information," and the trial court could reasonably have found Orosco's allegations of jury misconduct too speculative to constitute good cause for disclosure. The crux of the court's determination was not, as Orosco suggests, "that the defense would never have been able to discover evidence admissible under [Evidence Code] section 1150," but rather that Orosco had not made an adequate showing in support of his petition. The court acted within its discretion in denying the petition without an evidentiary hearing.
5. Constitutionality of LWOP Sentence for First Degree Murder
Orosco's final appellate contention is that his sentence to life in prison without the possibility of parole for first degree murder is prohibited by the Eighth Amendment to the United States Constitution and article 1, section 17 of the California Constitution. The Eighth Amendment prohibits "a sentence that is grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271.) "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Id. at p. 272.) The California Constitution similarly prohibits cruel or unusual punishment. (Cal. Const., art. I, § 17.) A punishment is cruel or unusual only if it "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.)
"The power to define punishment for crimes is a legislative function, so we proceed with deference when there is a constitutional challenge to the length of a prison term." (People v. Bernal (2019) 42 Cal.App.5th 1160, 1173.) We find no constitutional violation on this record. Orosco argues his sentence is grossly disproportionate to the act of firing two shots at the ground without intent to kill, apparently relying on his acquittal of attempted murder and attempted voluntary manslaughter to support that characterization of his conduct. But, as the trial court noted when sentencing Orosco, the jury also found true the allegation that Orosco committed murder by lying in wait- which required a finding that Orosco acted with intent to kill. The court was entitled to rely on the jury's finding as a basis for its sentence, as required under section 190.2, subdivision (a).
III. DISPOSITION
The judgments are reversed, and the matters are remanded with instructions to vacate all gang and gang-related firearm true findings and enhancements. Defendants may be retried on the gang and gang-related firearm allegations. Following retrial, or the prosecution's election not to proceed with retrial, the trial court shall resentence defendants in a manner consistent with this opinion.
WE CONCUR: Greenwood, P. J., Bromberg, J.