Opinion
F075122
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. BILLY RAY MALDONADO, Defendant and Appellant.
Karriem Baker, 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, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
(Tulare Super. Ct. No. VCF278268)
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on March 16, 2020, be modified in the following particulars:
1. The language in footnote 7 on page 14 shall be deleted in its entirety and replaced with the following language:
On June 17, 2016, the day after the trial court provided its disputed supplemental instruction, the jury sent a written note asking if the court could "clear up" the charge in count 3 (street terrorism). They jury stated it needed "clarification on active participation and the promotion of gangs." The court responded, "I am limited to the jury instructions defining those issues." Appellant contends the trial court should have elaborated further on the elements of street terrorism, which "compounded" the court's alleged error regarding the disputed supplemental jury instruction. We reject this argument because the court did not err in providing the supplemental instruction. In any event, the court had already directed the
jury to review the instructions defining the charge in count 3. Those instructions were "full and complete" for purposes of this matter, so the court fulfilled its duty under section 1138. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
2. The language in footnote 9 on page 17 shall be deleted in its entirety and replaced with the following language:
In reaching our conclusion, we do not take the position that the trial court amended the information. We also do not hold that appellant's conviction in count 3 was necessarily based on the unlawful possession of a firearm as charged in count 4. We merely hold that the trial court did not err in providing the supplemental jury instruction.
Appellant's petition for rehearing is denied. Except for the modifications set forth herein, the opinion previously filed remains unchanged. The modification does not alter the judgment.
LEVY, Acting P.J. WE CONCUR: POOCHIGIAN, J. MEEHAN, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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. VCF278268)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Karriem Baker, 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, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On February 2, 2012, Michael Juarez was shot to death. Three suspects, including appellant Billy Ray Maldonado, were present when Juarez was murdered. More than three months after Juarez's homicide, police arrested appellant while he was in possession of a firearm. The forensic evidence did not link appellant's firearm to Juarez's murder.
A jury found appellant not guilty for Juarez's murder (Pen. Code, § 187, subd. (a); count 1) and it also found appellant not guilty of criminal street gang conspiracy (§ 182.5; count 2). The jury, however, convicted appellant of street terrorism (§ 186.22, subd. (a); count 3) and unlawful possession of a firearm (§ 29800, subd. (a); count 4). The jury found true a gang enhancement (§ 186.22, subd. (b)) attached to the unlawful firearm possession charge.
All future statutory references are to the Penal Code unless otherwise noted.
The trial court found true appellant had a prior serious or violent felony conviction (§ 667, subds. (a)(1), (b)-(i)) and a prior prison term commitment (§ 667.5, subd. (b)). The court sentenced appellant to an aggregate prison term of 14 years four months. This was based on an upper term of three years in count 3 (doubled because of the strike prior); a consecutive one-third midterm sentence in count 4 of eight months (doubled); a consecutive five years for the prior serious felony conviction (§ 667, subd. (a)(1)); a consecutive year for the prior prison term (§ 667.5, subd. (b)); and a consecutive year for the gang enhancement (§ 186.22, subd. (b)).
Appellant contends the trial court erred regarding how it responded to a particular jury question. We disagree. Appellant also asserts remand is required for the trial court to exercise its new discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) to strike his five-year sentence enhancement for the prior serious felony conviction (§ 667, subd. (a)(1)). Based on the sentencing record, we determine remand is not warranted. We agree with the parties, however, that appellant benefits from Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). This amended the circumstances under which a one-year sentence enhancement may be imposed under section 667.5, subdivision (b). Under Senate Bill 136, appellant's prior prison term no longer qualifies for this enhancement. We strike the one-year enhancement under section 667.5, subdivision (b), but otherwise affirm the judgment.
On October 30, 2017, appellant filed a request for judicial notice for a purported inmate information sheet from the Fresno County Sheriff's Department. Based on this document, appellant asserted he was entitled to additional presentence custody credits. Respondent opposed the request for judicial notice. On November 16, 2017, we deferred ruling on appellant's request pending consideration of the appeal on its merits. We now deny appellant's request for judicial notice. "While courts may notice official acts and public records, 'we do not take judicial notice of the truth of all matters stated therein.' [Citations.]" (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) In any event, this issue has become moot. On November 22, 2017, the trial court amended appellant's presentence custody credits and awarded him the additional time.
BACKGROUND
We summarize the material trial evidence. I. Two Separate Crimes Occur On February 2, 2012.
On February 2, 2012, Juarez's murder and another separate crime occurred in Visalia, California. Three suspects were involved in both incidents.
A. Three victims are threatened with a gun outside a residence in Visalia.
The first crime occurred when three male victims were outside a residence in Visalia. A vehicle arrived and two suspects exited the vehicle from the rear passenger doors. The driver remained in the vehicle. While the first suspect remained by the vehicle, the other suspect approached the men. The second suspect pointed a gun at each of the men. However, after initially threatening the victims, the suspects left without anyone being injured.
It appears this assault was the result of mistaken identity. The jury learned the residence where this incident occurred used to belong to a Northern gang member.
A victim subsequently identified a photograph of Jose Estrada as the person who wielded the gun during this incident. The jury learned Estrada was a known documented South Side Kings ("SSK") gang member with the moniker "Sniper." At trial, the victim said he was "not sure" if he recognized appellant as a suspect who had exited the vehicle on the night in question.
The trial evidence was in conflict regarding the color of Estrada's gun used during this incident. During police interviews, the testifying victim had described the gun as "anywhere from white to chrome to silver[.]" At trial, however, the same victim said the barrel of Estrada's gun was not chrome but had a "kind of dark like black" color, and the gun's butt was black.
B. Juarez is murdered that same night.
About two miles away from the incident above, Juarez was found shot to death inside a residence. Police were called out to this location just before 9:00 p.m. The jury learned this homicide occurred about 10 minutes after the assault described above.
Juarez was a Northern gang member. An autopsy revealed he had received two gunshot wounds to his chest. His death occurred from one of those gunshots. Juarez also had a laceration to his left thumb, and abrasions on his chin, right forearm, and left knee. These other injuries were consistent with either a fall or a struggle.
Law enforcement collected three expended cartridge casings at the murder scene. Two of the casings had the same brand (marked by an "F" head stamp), while the third casing had a different brand (marked by a "Super X" head stamp). All three casings were .22-caliber.
II. Appellant Is Taken Into Custody.
On May 17, 2012, more than three months after Juarez's murder, Visalia police officers were conducting surveillance on a particular apartment complex. The surveillance was in connection with Juarez's murder and appellant was seen leaving an apartment walking with a lunch pail. Two officers contacted him and searched him. Inside the lunch pail, the officers found an intact handgun.
The handgun recovered from appellant was a .22-caliber Ruger. It was completely black and rusted. The gun had no chrome or silver on its barrel.
At trial, the prosecution's criminalist testified that the casing with the "Super X" head stamp which had been fired at Juarez's murder scene had not been fired from the firearm recovered from appellant. Regarding the two other recovered casings, however, it was "inconclusive" whether the firearm recovered from appellant had fired those cartridges. The criminalist said the other two casings "may or may not have been fired" from the firearm in appellant's possession. Based on certain markings on the sample casing and the recovered casings, it was not possible to eliminate appellant's weapon as the one involved in Juarez's homicide. However, when pressed, the criminalist said he leaned "closer to an elimination" given the "dissimilar markings" between the compared casings.
III. Appellant's Police Interviews.
Appellant underwent two separate police interviews. We summarize the material portions of his statements.
A. Appellant's police interview on May 17, 2012.
On May 17, 2012, detective Luma Fahoum interviewed appellant. A recording was made. The interview lasted almost 90 minutes and it was played for the jury.
Appellant said he had attended a party on the night Juarez was killed. He left the party in a vehicle with Estrada (Sniper), and with two other males known as Casper and Smiley. The jury learned Casper's name is Oracio Adame and Smiley's name is Juan Ray. They are both gang members.
As they drove, Estrada (Sniper) said he had to "take care of something." Appellant said he was surprised when Estrada jumped out of the vehicle with a loaded firearm and he began chasing some guys. Appellant was in the backseat. He exited the vehicle and started yelling at Estrada, asking him what was going on. Adame (Casper) told appellant to be quiet. According to appellant, the victims were able to run away because he had intervened.
Adame (Casper) drove them to another house. Estrada (Sniper) exited the vehicle and, about three minutes later, appellant heard multiple gunshots. Appellant looked out the car's window and he saw Estrada fighting with some guy. Estrada returned to the vehicle, and they drove away.
Fahoum told appellant his fingerprints had been found on the fence of the house where Juarez was shot. Appellant then claimed that, while Juarez and Estrada (Sniper) fought, he (appellant) had exited the vehicle and stood by the fence to see what was happening. He touched the fence. He said, after hearing the initial volley of shots, Juarez was physically beating Estrada. Juarez had Estrada on the ground and Juarez was "whipping his ass." Appellant ran back to the vehicle and told Adame (Casper) something was wrong. Adame told him not to worry, and Adame exited the vehicle. Appellant heard another gunshot.
Appellant said he later talked to Estrada (Sniper) about what had happened. Estrada told appellant he had shot Juarez three times in his face or chest. According to Estrada, Juarez had rushed at him and Adame (Casper) had to come save him.
Appellant told Fahoum that Estrada's (Sniper's) firearm had been a chrome-colored .22-caliber. According to appellant, Estrada had used the same gun both in assaulting the first victims and when shooting Juarez. Appellant denied the firearm which he had possessed when he was arrested had been used by Estrada. Appellant was not certain if the gun he had possessed had been used in another crime. According to appellant, the firearm used to kill Juarez had previously belonged to someone known as Blacks, but that gun had subsequently been sold to "some kid" in Orange Cove known as Bullet. Appellant was unsure whether two firearms had been used in killing Juarez, but he knew two guns had been subsequently dropped off.
On or about the same day as this interview, appellant drew a picture of the two firearms. Estrada's (Sniper's) gun had a chrome-colored barrel and was a semi-automatic handgun. The second gun looked like a small caliber sawed-off rifle or shotgun.
Appellant told Fahoum that, right after Juarez's murder, word spread around town that he was a rat. He said he had been recently "jumped."
In March or April after Juarez's killing, appellant learned Estrada (Sniper) and Adame (Casper) may have killed another victim with a .44-caliber Magnum. According to appellant, people were saying Estrada was a "straight killer," and appellant knew the gang was "into heavy, heavy, heavy shit." Later in his interview, appellant told Fahoum of another recent murder, and he provided names to Fahoum of possible suspects. Appellant was also aware of a third murder which the police were investigating involving a female known as Chola.
During his interview, appellant explained how he came into possession of the firearm found on him when he was taken into custody. He said a gang member known as Ghost had expressed concern police had taken Estrada (Sniper) into custody. The jury learned Ghost is Juan Hernandez. According to appellant, Hernandez (Ghost) had informed appellant that police had raided his house looking for firearms. Two days later, Raymond Cordova, who was known as Risky, went to appellant's house and asked appellant to pick up some undisclosed items from Adame's (Casper's) house. Appellant refused.
The jury learned Cordova (Risky) was a shot caller in the SSK gang.
Cordova (Risky) later telephoned appellant and told him someone had left "something" on appellant's porch. Appellant was told to look inside a barbeque. Cordova directed appellant to take this item to Hernandez's (Ghost's) house. Appellant was informed there would be consequences if he failed to comply. Appellant looked inside the barbeque and he discovered a firearm. He placed the firearm inside a lunch pail and he started to deliver it. He was in the process of delivering the firearm when he was stopped by police.
B. Appellant's police interview on May 21, 2012.
On May 21, 2012, Fahoum interviewed appellant again. During his second interview, appellant changed his story slightly. Appellant said nobody put the gun in his barbeque. Instead, a member of the "Kings" gang brought it to him. Appellant was told to take it to Hernandez (Ghost). Appellant said he had received the gun a week and a half before he was arrested.
IV. The Testimony Of A Jail Informant.
James Miles testified he had been in jail custody with appellant. According to Miles, appellant had told him he was in jail for murder. Appellant asked Miles, "You think that they have enough to convict me if all I did was shoot into a house and there was no witness or no murder weapon?"
Miles told the jury he was a "good friend" with Juarez's mother and he had spent a significant amount of time with Juarez. During his conversation with appellant, Miles had realized appellant was talking about Juarez's murder.
According to Miles, appellant also talked about the specifics of his arrest. Appellant said he was home and he had received some calls about someone wanting a gun. Appellant took a .22-caliber firearm, broke it down, and he cleaned it with "WD 40." He put the gun in a lunch box. Appellant told Miles he preferred .22-caliber guns because they were not traceable.
V. The Prosecution's Gang Evidence.
The prosecution's gang expert, Ricardo Loza, explained the history of the Sureño gang, including its primary colors and symbols, its area of operations, its rivals, and its membership. According to Loza, the Sureño gang's primary activities are illegal narcotic sales of methamphetamine and marijuana, residential burglaries, robbing from those who grow marijuana illegally, and shooting at rival gang members.
Loza stated the SSK was a Sureño clique in Visalia. The SSK shares common symbols with the Sureños, and an SSK member is also a Sureño member. The SSK uses their initials and the drawing of a crown for its specific symbols. The SSK's primary activities are attempted murder and illegal firearm possession. Loza reviewed two specific criminal cases involving predicate offenses committed by Sureño gang members. One of those cases involved SSK gang members. The other case involved a Sureño gang member convicted of illegal gun possession with a gang enhancement.
The jury learned appellant had previously been a Northern gang member. However, starting in 2002, appellant had begun informing law enforcement officers he had dropped out as a Northern gang member. In 2012, law enforcement documented on two occasions that appellant was with known Sureño gang members.
Loza opined appellant was an active Sureño gang member in February 2012. Loza's opinion was based on appellant's association with Sureño gang members, his possession of gang photographs (one photo showed appellant wearing a crown), gang-associated tattoos, gang clothing, and his involvement in gang-related crime on February 2, 2012. Loza said appellant's interview with Fahoum was significant because it showed appellant's knowledge of the SSK gang in Tulare County. Appellant knew many gang monikers. Appellant also knew many details about recent gang-related crimes. Loza opined appellant had such information because he was a gang associate.
During his interview with Fahoum, appellant had discussed a photograph of himself showing him wearing a crown. Appellant claimed a guy named Blacks had put the crown on his (appellant's) head, and someone took his picture. Loza testified the crown on appellant's head was significant. Loza believed Blacks was a shot caller for the SSK gang, and placing a crown on appellant's head established that appellant was an SSK gang member.
VI. The Defense's Gang Expert.
Gregorio Estevane testified as a gang expert for appellant. He opined it was highly unlikely a Northerner would become a Southern affiliated gang member. Estevane did not believe appellant's gang tattoos established he was a Sureño. After reviewing some of the discovery in this matter, Estevane opined appellant was not a Sureño gang member but rather a Norteño dropout. Estevane believed it was highly unlikely a Sureño gang would accept a Northern dropout gang member. Estevane noted appellant did not have a Sureño gang moniker.
VII. Appellant's Trial Testimony.
Appellant testified on his own behalf. He told the jury he had been in Orange Cove for only about two weeks prior to Juarez's murder. He had met Estrada (Sniper) after a neighbor referred appellant to Estrada for a job picking oranges. While working in the fields, appellant met Adame (Casper). Appellant claimed he did not associate with Estrada or Adame away from work.
On the night of Juarez's murder, Estrada (Sniper) and Adame (Casper) invited appellant to a party, and he decided to attend. Ray (Smiley) also attended. At the party, five people asked appellant if he was in a gang, and he informed them that he did not gangbang. Appellant felt uncomfortable and he wanted to leave. About 40 minutes later, Estrada said they were leaving. Estrada, Adame, and appellant got into a vehicle. Adame drove while appellant rode in the front passenger seat. Estrada was in the back. Appellant thought he was being taken home. He did not see anyone with a firearm prior to getting into the vehicle.
Adame (Casper) parked near a house and Estrada (Sniper) jumped out of the vehicle. Estrada put a firearm to someone's head. Appellant told the jury he jumped out of the vehicle and yelled at Estrada, asking him what he was doing. A lady started yelling from inside the house and Estrada got back inside the vehicle. Appellant was now in the back passenger seat and Estrada was in the front passenger seat. Adame drove away. Appellant testified he did not know Estrada was going to commit this act prior to its occurrence. As they drove, appellant asked why Estrada had done that, and both Adame and Estrada told him, "Don't be acting like a little bitch ...."
Adame (Casper) parked at a second location. Estrada (Sniper) exited the vehicle and walked towards a residence. Appellant heard multiple gunshots. He saw Estrada fighting some guy. Appellant left the vehicle and went near a fence. The other guy was on top of Estrada, beating him up. Appellant told Adame what was happening. Adame exited the vehicle and appellant stayed in the car. Appellant heard a fourth gunshot. He saw the other guy fall down. Appellant felt scared. He told the jury he had not known Estrada was going to shoot this guy prior to the event occurring.
Regarding the firearm found in his possession when arrested, appellant explained that Hernandez (Ghost) had given him a firearm several weeks before the officers detained him. Appellant said Hernandez initially brought the weapon to appellant's house and had asked appellant to hold it because Hernandez felt like he was being watched. Appellant had refused to accept the gun so Hernandez gave it to a kid named Chuckie. This person lived near appellant.
Appellant claimed that, on the day he was arrested, he had received a text from Cordova (Risky) telling him to take Hernandez's (Ghost's) firearm to Hernandez's house. Appellant replied he did not have the weapon, and Cordova said he was going to appellant's house and if the gun was not there, "there was gonna [sic] be problems." Appellant contacted Chuckie, who gave appellant the gun. Appellant testified he was on his way to Hernandez's house to return the firearm when he was detained by authorities.
Appellant admitted he had met Miles when he was in jail custody. Appellant, however, denied ever talking to Miles or any other inmates about his case.
DISCUSSION
I. The Trial Court Did Not Err When It Responded To The Jury Question At Issue.
Appellant contends the trial court committed constitutional error when it responded to a particular jury question. He asserts his conviction in count 3 for street terrorism (§ 186.22, subd. (a)) must be reversed.
A. Background.
On June 15, 2016, the jury began deliberations at around 11:00 a.m. The following day, the jury notified the court it could not reach a verdict in count 1 (murder), but it agreed appellant was guilty in count 4 (illegal gun possession). The judge met with the jury in open court. During the inquiry on whether the jury could continue, the foreperson asked if the charges in counts 2 and 3 were applicable only if appellant was found guilty of murder. The court told the jury each crime was distinct, and verdicts could be reached in counts 2, 3 and 4 without reaching a verdict in count 1. The court instructed the jury to resume its deliberations.
After deliberations resumed, the jury sent a note to the trial court. It asked, "Can you please clarify (date) for count 3-4 or can we use future dates of criminal activity after 2-2-12? for count 3-4[.]" Court staff spoke with the jury, which clarified its note referred to count 2 (gang conspiracy) and count 3 (street terrorism).
When discussing how to respond to the jury, the court informed the parties the charge in count 3 was alleged to have occurred in February 2012. However, appellant had testified he took possession of a firearm for the gang and, when the gang wanted it back, he was in the process of delivering it. The court stated, "I think there's certainly evidence presented at this trial that would expand the date of that offense that would include all the way through May." Defense counsel argued "everything that occurred after the [offense date of February 2, 2012] is irrelevant." The court did not directly respond to defense counsel's concerns but instead stated it would tell the jury it could consider the validity of the charge in count 2 (gang conspiracy) only as of February 2, 2012. Regarding count 3 (street terrorism), however, the court intended to tell the jury it could consider "all the evidence." The court subsequently provided a written response to the jury that stated it could consider all the evidence regarding count 3. It is this supplemental instruction which is the focus of appellant's present claim.
B. Standard of review.
Section 1138 requires a trial court to provide information to a deliberating jury upon request regarding any point of law arising in the case. An independent or de novo standard of review is used to assess whether a court's instruction correctly stated the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
C. Analysis.
Appellant asserts the trial court's supplemental instruction allowed the jury to convict him in count 3 on a legally invalid theory. He argues the information charged him with committing street terrorism on the day of Juarez's murder so his conviction in count 3 must be connected to his conduct on that date. He contends the jury could have convicted him for street terrorism without necessarily finding the illegally possessed firearm in May 2012 was used during Juarez's murder in February 2012.
Appellant further maintains the firearm he possessed may not have been used for any felonious gang activity. He argues the prosecution's burden of proof was lowered because he could have been convicted without proof he willfully assisted, furthered, or promoted felonious conduct by members of the gang. Finally, he claims the court's instruction permitted the jury to convict him using impermissible character evidence. According to appellant, his illegal gun possession in May 2012 could have been used to establish he illegally possessed a gun on the day of Juarez's murder in February 2012. He maintains the court's alleged error was prejudicial, requiring reversal. We reject appellant's numerous arguments.
On June 17, 2016, the day after the trial court provided its disputed supplemental instruction, the jury sent a written note asking if the court could "clear up" the charge in count 3 (street terrorism). The jury stated it needed "clarification on active participation and the promotion of gangs." The court responded, "I am limited to the jury instructions defining those issues." In his reply brief, appellant contends the trial court should have elaborated further on the elements of street terrorism, which "compounded" the court's alleged error regarding the disputed supplemental jury instruction. We will not address appellant's assertion the court should have elaborated further on the elements of street terrorism because that claim was not raised in appellant's opening brief. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219.)
To establish the crime of street terrorism, the prosecution must prove the following three elements: (1) a defendant engaged in active participation in a criminal street gang; (2) when the defendant participated in the gang, he or she knew the members of the gang engage in or have engaged in a pattern of criminal gang activity; and (3) the defendant willfully promoted, furthered, or assisted in any felonious criminal conduct by members of that gang. (§ 186.22, subd. (a).)
To demonstrate active participation in a criminal street gang, the prosecution need not prove a defendant devoted all or a substantial part of his or her time and efforts to the gang. (People v. Castenada (2000) 23 Cal.4th 743, 747.) Instead, it must be shown the defendant was involved in a manner that was more than nominal or passive. (Id. at pp. 752-753.) To establish the promote/further/assist element, the prosecution must prove the defendant was a direct perpetrator of felony conduct or the defendant acted as an aider and abettor of such conduct. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138-1139; CALCRIM No. 1400.) Section 186.22, subdivision (a), targets any felonious criminal conduct, and it need not be gang related. (People v. Albillar (2010) 51 Cal.4th 47, 54.) However, the commission of felonious criminal conduct must be done collectively with at least two gang members, one of whom can include the defendant. (People v. Rodriguez, supra, 55 Cal.4th at p. 1132.)
In this matter, the information alleged appellant had engaged in street terrorism in count 3 in violation of section 186.22, subdivision (a), on or about February 2, 2012. Regarding count 4, the information alleged that, on or about May 17, 2012, appellant was a felon in possession of a firearm in violation of section 29800, subdivision (a)(1).
The information also alleged that appellant committed murder (count 1) and criminal street gang conspiracy (count 2) on or about February 2, 2012.
The jury was properly instructed with CALCRIM No. 1400 regarding the elements necessary to convict appellant for violation of section 186.22, subdivision (a). In relevant part, the jury was informed "felonious criminal conduct" meant committing or attempting to commit any of the following crimes: assault, murder, criminal street gang conspiracy to commit murder, and illegal possession of firearms.
During closing argument, the prosecutor asserted appellant was guilty in count 2 (gang conspiracy) and count 3 (street terrorism) because appellant was involved in Juarez's murder. According to the prosecutor, either appellant jumped over the fence and fired a shot at Juarez, or appellant aided and abetted in Juarez's killing. Based on the verdicts rendered, it is clear the jury rejected these theories.
At the time the trial court provided the disputed supplemental instruction, the evidence overwhelmingly suggested appellant was involved in the SSK gang in a manner that was more than nominal or passive. The evidence also overwhelmingly suggested appellant took possession of the firearm in concert with at least one other gang member. Cordova (Risky) was a shot caller in the SSK gang, and it was Cordova who directed appellant to deliver the firearm to Hernandez (Ghost), who was also a gang member. As such, the evidence further overwhelmingly suggested appellant took possession of the firearm with the willful intent to promote, further or assist the SSK gang.
Contrary to appellant's assertions, the court's supplemental jury instruction did not present an invalid theory of guilt. The prosecution's gang expert, Loza, testified one of the SSK's primary activities is illegal firearm possession. Our Supreme Court has held a felon's illegal possession of a firearm satisfies the " 'felonious criminal conduct' " requirement necessary under section 186.22, subdivision (a), to establish the crime of street terrorism. (People v. Infante (2014) 58 Cal.4th 688, 690, 695; see also § 186.22, subd. (a).) Moreover, section 186.22 lists illegal possession of a firearm as a qualifying predicate offense that can be used to establish a pattern of criminal gang activity. (§ 186.22, subd. (e)(31).)
Likewise, the court's supplemental instruction did not lower the prosecution's burden of proof. The jury was told it had to presume appellant was innocent of the charges and the prosecution had to prove he was guilty beyond a reasonable doubt. The jury was informed appellant had to willfully assist, further or promote felonious criminal conduct by members of the gang to be guilty of street terrorism. We presume the jurors understood and applied these instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) Nothing reasonably suggests the court's supplemental instruction may have altered appellant's presumption of innocence or the prosecution's burden of proof.
We reject appellant's assertion the prosecution was required to establish he committed street terrorism on the day of Juarez's murder. In general, a pleading is not required to allege the precise time an offense was committed unless that time is material to the offense. (§ 955; People v. Jennings (1991) 53 Cal.3d 334, 358; People v. Barney (1983) 143 Cal.App.3d 490, 497.) Thus, a pleading may allege an offense was committed " 'on or about' " a particular date. (People v. Starkey (1965) 234 Cal.App.2d 822, 827.) The evidence is not insufficient merely because it shows the offense was committed on another date. (Ibid.) A long line of authority establishes a defendant cannot complain of the variance between the date of the crime as alleged and the date indicated by the evidence unless the variance misled him in making his defense or the variance deprived him of the right to a plea of double jeopardy. (People v. Smith (1958) 50 Cal.2d 149, 152; People v. La Marr (1942) 20 Cal.2d 705, 711; People v. Hellman (1961) 189 Cal.App.2d 777, 779.)
Here, at the time the trial court provided the supplemental jury instruction, the evidence overwhelmingly suggested appellant had committed street terrorism either in connection with Juarez's homicide in February 2012 and/or when he possessed the firearm in May 2012. Appellant does not explain how he faced a danger of being placed twice in jeopardy for the same offense. He also does not establish how he was misled by the variance between the prosecution's alleged date for street terrorism and the evidence introduced at trial. To the contrary, the precise date upon which the offense was committed was not an essential element to proving the crime of street terrorism. (§ 186.22, subd. (a).) The court's supplemental instruction did not add a new charge or change the offense alleged in count 3. As such, the variance regarding when the crime occurred was not material. Thus, the trial court properly concluded the jury could consider all of the evidence when deciding whether appellant committed street terrorism as alleged in count 3.
We note section 1009 permits a trial court "at any stage of the proceedings" to amend an information for any defect or insufficiency. Such an amendment, however, may not change the offense charged. (§ 1009.) An information may be amended to conform to proof regarding the date an offense was committed. (See People v. O'Hara (1960) 184 Cal.App.2d 798, 810-811 [the trial court permitted the prosecutor to amend the information during trial to allege the crime occurred in 1958 instead of 1957].)
Finally, we disagree that the court's supplemental instruction allowed the jury to consider impermissible character evidence. The jury had been told certain evidence was admitted for a limited purpose, and it could consider that evidence "only for that purpose and no other." The jury was instructed appellant's gang activity could be considered only to decide whether appellant acted with the intent, purpose and knowledge required to prove the gang-related crime and special circumstance allegations, or to show appellant had a motive to commit the crime charged. The jury was specifically informed it could not conclude from the evidence appellant "is a person of bad character or that he had a disposition to commit the crime." We presume the jury followed these limiting instructions, and there is nothing in this record that reasonably rebuts that presumption. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Respondent argues appellant has forfeited any claim the trial court should have further instructed the jury on the proper use of character evidence. We need not address this forfeiture argument because appellant's claim fails on its merits.
Based on this record, the trial court's supplemental instruction correctly informed the jury it could consider all of the evidence when determining if appellant committed street terrorism as charged in count 3. As such, the court did not err when it responded to the jury's question. Accordingly, appellant's arguments are without merit and this claim fails.
Because the trial court did not err, we do not address appellant's arguments regarding prejudice.
II. Remand Is Not Warranted For The Trial Court To Exercise Its Sentencing Discretion Under Senate Bill 1393.
At the time of appellant's sentencing in this matter, the trial court was required to impose an additional five-year prison term based on his prior serious felony conviction. (§ 667, former subd. (a)(1).) On September 30, 2018, however, the Governor signed Senate Bill 1393, which amended sections 667 and 1385 to provide sentencing courts with discretion to strike or dismiss this enhancement. (§§ 667, subd. (a)(1), 1385, subd. (b), as amended by Stats. 2018, ch. 1013, §§ 1, 2.)
We agree with the parties that this amendment applies retroactively to appellant. (People v. Sexton (2019) 37 Cal.App.5th 457, 473.) The parties, however, disagree whether remand is required. We agree with respondent that a remand would be an idle act and it is not warranted.
Remand is necessary when the record shows a trial court proceeds with sentencing on the erroneous assumption it lacks discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) If, however, the record shows the sentencing court "would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).) Certain factors may be germane in assessing whether a trial court is likely to exercise its sentencing discretion in the defendant's favor. Those factors are: (1) the egregious nature of the defendant's crimes; (2) the defendant's recidivism; and (3) the fact that consecutive sentences were imposed. (McDaniels, supra, 22 Cal.App.5th at p. 427.) However, these factors alone cannot establish what the court's discretionary decision would have been. (Ibid.) If the court imposes the maximum sentence permitted, a remand would be an idle act because the record contains a clear indication the court would not exercise its discretion in the defendant's favor. (Ibid.)
Before sentencing in this matter, the trial court had denied appellant's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike his prior strike offense. At sentencing, the court noted appellant had "caught a huge break" when he was acquitted of the murder charge. The court stated it had been "surprised by that finding." The court said appellant "continues to engage in violent conduct," and appellant was present at the scene of this homicide. Appellant had "numerous" prior adult convictions and he was on postrelease community supervision when the present crimes occurred. The court said appellant's performance on probation and supervision "have been unsatisfactory." The court imposed an upper term in count 3 based on appellant's "prior history and criminal conduct." It imposed a consecutive term in count 4.
A consecutive sentence in count 4 was mandatory because appellant had suffered a prior serious and/or violent felony conviction. (§ 1170.12, subd. (a)(1), (6).)
Appellant cites People v. Almanza (2018) 24 Cal.App.5th 1104 (Almanza) as authority dictating a remand in this situation. In Almanza, the defendant was sentenced to 137 years to life, and the trial court imposed consecutive sentences for murder and assault with a firearm when it could have imposed concurrent sentences. (Id. at pp. 1106, 1109.) The defendant's aggregate prison term included a 25-years-to-life sentence based on a firearm enhancement. (Id. at p. 1106.) The Almanza court remanded so the lower court could consider its new sentencing discretion for the firearm enhancement. The appellate court determined a remand was appropriate even though the trial court had not exhibited a desire to be lenient on the defendant. (Id. at pp. 1110-1111.) The Almanza court held the prior sentencing choice did not amount to a "clear indication" regarding how the lower court would sentence the defendant in light of new discretionary authority. (Id. at p. 1110.) The Almanza court stated it was not proper to speculate what a trial court might do on remand based on the prior sentence. (Id. at pp. 1110-1111.)
We disagree that Almanza requires a remand in this situation. Unlike in Almanza, we are confident the trial court would not strike the enhancement under section 667. The lower court denied appellant's Romero motion and it believed appellant had already received a "huge break" when the jury acquitted him of the murder charge. The court made clear its intention to impose the most stringent sentence possible. Based on the trial court's comments and sentencing choices, it is clear the court would not exercise discretion favorably for appellant. (See People v. Jones (2019) 32 Cal.App.5th 267, 274-275 [declining to follow Almanza].) Thus, remand would be an idle act and it is not required. (See People v. Jones, supra, 32 Cal.App.5th at p. 275; McDaniels, supra, 22 Cal.App.5th at p. 427; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) Accordingly, appellant's arguments are unpersuasive and this claims fails.
In his reply brief, appellant argues remand is warranted, in part, because the consecutive sentence imposed in count 4 was mandatory. (§ 1170.12, subd. (a)(1), (6).) The imposition of a mandatory consecutive sentence does not alter our conclusion that remand is not warranted. In light of the upper term sentence imposed in count 3, the trial court's denial of appellant's Romero motion, and the court's comments at sentencing, remand would be an idle act. --------
III. Appellant's Prior Prison Enhancement Under Section 667.5 Must Be Stricken.
A defendant may receive an additional sentence enhancement under section 667.5 if certain conditions are met. (People v. Buycks (2018) 5 Cal.5th 857, 889.) Under former law, a one-year enhancement was imposed for each prior separate prison term or county jail term imposed under section 1170, subdivision (h). (§ 667.5, former subd. (b).) However, on October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under this amendment, a one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.)
The parties agree, as do we, that appellant's one-year prior prison enhancement under section 667.5 must be stricken. It is undisputed his prior prison term was not for a sexually violent offense under Welfare and Institutions Code section 6600, subdivision (b). As such, he benefits from this change in law. (See People v. Lopez, supra, 42 Cal.App.5th at pp. 341-342.)
However, respondent is correct a remand for resentencing is not warranted. The trial court imposed the maximum possible sentence against appellant with an upper term in count 3 and a consecutive term in count 4. "Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion." (People v. Lopez, supra, 42 Cal.App.5th at p. 342, citing People v. Buycks, supra, 5 Cal.5th at p. 896, fn. 15.) Accordingly, we will strike the section 667.5, subdivision (b), enhancement imposed in this matter. We will direct the trial court to cause to be prepared an amended abstract of judgment reflecting this modification, and to reduce appellant's total prison sentence accordingly.
DISPOSITION
Appellant's judgment is modified as follows. The one-year enhancement imposed pursuant to Penal Code section 667.5, subdivision (b), is stricken. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting this modification and appellant's total prison sentence of 13 years four months. The court shall forward a certified copy of the amended abstract of judgment to the appropriate authorities. With these modifications, appellant's judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
MEEHAN, J.