Opinion
E080300
08-08-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSUE ALFONSO MARISCAL, Defendant and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1303884. John D. Molloy, Judge. Reversed with directions.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
In 2018, a jury convicted defendant and appellant Josue Alfonso Mariscal of second degree murder (Pen. Code, § 187, subd. (a), count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), and assault with a deadly weapon (§ 245, subd. (a)(1), count 3). With respect to the murder, the jury found true that defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)), and with respect to all counts, the jury found true that defendant committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(B)). A trial court sentenced defendant to a state prison term of 40 years to life, plus 11 years eight months, consisting of 15 years to life on count 1 plus a consecutive 25 years to life on the firearm enhancement, the upper term of four years on count 2 plus a five-year term on the gang enhancement, and one year on count 3 plus one year eight months on the gang enhancement.
All further statutory references will be to the Penal Code unless otherwise indicated.
The record indicates the court struck the gang enhancement on count 1.
On appeal, defendant argues that since 2018, several changes to the law have occurred, including the law on gang enhancements, which require this court to reverse his conviction on the gang enhancements and to remand the matter for retrial on those enhancements and resentencing consistent with the new laws. The People concede, and we agree. We reverse the judgment.
The facts of the underlying case are not necessary to address the issues on appeal; thus, only a general summary of the facts will be given.
In 2013, defendant was a member of the 420 Kings gang. At trial, a gang expert testified that the primary activities of the 420 Kings were tagging, vandalism, and sales of marijuana. The 420 Kings were in a feud with a rival gang called the Kush Blown Kings. The feud escalated into violence between the two gangs, which resulted in the crimes charged in this case. At trial, the parties stipulated that 420 Kings gang member M.R. admitted a petition dated June 5, 2012, alleging that he committed first degree residential burglary (§ 459) in 2011, and that he admitted a petition dated February 28, 2014, alleging that he committed felony vandalism (§ 591, subd. (d)(1)) in 2012. The gang expert testified that the 420 Kings members had individually or collectively engaged in a pattern of criminal activity.
DISCUSSION
I. The Gang Enhancements Should Be Reversed and the Matter Remanded in Light of Assembly Bill No. 333
Defendant contends the true findings on the gang enhancements should be reversed in light of Assembly Bill No. 333's amendments to section 186.22. He argues that the jury was not instructed on the amended elements of the gang enhancement, and the evidence is insufficient to prove the gang enhancement's amended elements. Thus, defendant asks us to reverse the true findings on these allegations and remand the matter so the prosecutor can elect to retry the allegations or the trial court can resentence him. The People concede. We agree.
A. Assembly Bill No. 333
"In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which became effective on January 1, 2022 (see Stats. 2021, ch. 699). Assembly Bill 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a 'criminal street gang' to require that any gang be an 'ongoing, organized association or group of three or more persons.' [Citation.] Second, whereas section 186.22, former subdivision (f) required only that a gang's members 'individually or collectively engage in' a pattern of criminal activity in order to constitute a 'criminal street gang,' Assembly Bill 333 requires that any such pattern have been 'collectively engage[d] in' by members of the gang. [Citation.] Third, Assembly Bill 333 also narrowed the definition of a 'pattern of criminal activity' by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. [Citation.] Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.'" (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran); see § 186.22, subds. (e), (f).) Furthermore, Assembly Bill 333 reduced the list of qualifying offenses that can be used to establish a pattern of gang activity, removing, as relevant here, felony vandalism. (Stats. 2021., ch. 699, § 3; People v. E.H. (2022) 75 Cal.App.5th 467, 477-478 (E.H.).)
B. Assembly Bill 333 Applies Retroactively to This Case
Defendant contends, and the People properly concede, that Assembly Bill 333 is retroactive because his case is not yet final. "Ordinarily, 'a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.' [Citation.] In In re Estrada (1965) 63 Cal.2d 740, however, our Supreme Court recognized an exception to this rule. The court explained that '[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (People v. Sek (2022) 74 Cal.App.5th 657, 666 (Sek).) Assembly Bill 333 applies retroactively under Estrada. (Id. at pp. 666-667; Tran, supra, 13 Cal.5th at pp. 1206-1207.)
C. The Jury Was Not Instructed on the Gang Enhancement's Amended Elements and the Evidence Does Not Support the Amended Elements
Defendant argues reversal is required because the jury instructions did not require the jury to find at least some of the elements that Assembly Bill 333 requires and that the prior law did not require. The People concede, and we agree, that the jury was not instructed on the gang enhancement's amended elements. Defendant's trial occurred in 2018, and the jury was instructed with CALJIC No. 17.24.2, which predated the change in law under Assembly Bill 333. Assembly Bill 333 essentially added new elements to the enhancements in section 186.22-"for example, by requiring proof that gang members "collectively engage" in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang." (E.H., supra, 75 Cal.App.5th at p. 479.) Thus, the prejudice standard articulated in Chapman v. California (1967) 386 U.S. 18 applies. (E.H., supra, 75 Cal.App.5th at p. 479; Sek, supra, 74 Cal.App.5th at p. 668.) In other words, "[w]hen a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant's right to a jury trial under the Sixth Amendment, and reversal is required unless 'it appears beyond a reasonable doubt' that the jury verdict would have been the same in the absence of the error." (Tran, supra, 13 Cal.5th at p. 1207.)
On this record, we cannot conclude the jury instructions were harmless beyond a reasonable doubt. The instructions given to the jury did not require the jury to find a pattern of criminal gang activity as defined in amended section 186.22, subdivisions (e) and (f). The jury also was not required to find that gang members "collectively engage[d]" in a pattern of criminal gang activity, that the predicate offenses were committed by two or more gang members, that the predicate offenses benefitted the gang, and that "the common benefit from the offenses is more than reputational." (§ 186.22, subds. (e) &(f).)
Moreover, as defendant points out, and the People concede, the evidence does not establish the minimum of two valid predicate offenses needed to prove a pattern of criminal gang activity under section 186.22, subdivision (e). The evidence used at trial by the prosecution to establish a pattern of criminal gang activity included two predicate offenses-a first degree residential burglary committed by 420 Kings gang member M.R. in 2011, and a felony vandalism committed by M.R. in 2012. The parties stipulated to the existence of these two offenses. In closing argument, the prosecutor told the jury that it needed to find at least two predicate offenses and it could use the two offenses established by stipulation, as well as the currently charged offenses. However, the currently charged offenses can no longer be used to establish a pattern of criminal gang activity. (§ 186.22, subd. (e)(2).) Furthermore, felony vandalism is no longer an offense enumerated in section 186.22, subdivision (e)(1) that can be used to establish a pattern a criminal gang activity. Thus, the evidence at trial appears to include only one viable predicate offense-the 2011 burglary. Moreover, there is no apparent evidence that the 2011 burglary was committed by "two or more members," or that it conferred a common benefit on the criminal street gang that was "more than reputational." (§ 186.22, subd. (e)(1).) We conclude there was insufficient evidence presented to prove the existence of a criminal street gang, as defined by amended section 186.22, subdivisions (e) and (f).
Therefore, instructional error was not harmless under the Chapman standard. "The proper remedy for this type of failure of proof- where newly required elements were 'never tried' to the jury - is to remand and give the People an opportunity to retry the affected charges." (E.H., supra, 75 Cal.App.5th at p. 480; see Sek, supra, 74 Cal.App.5th at pp. 669-670 "'"Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence."'"].) Accordingly, we reverse the true findings on the gang enhancement allegations and remand the matter.
II. The Trial Court Should Conduct a Full Resentencing
Defendant contends that in addition to reversing the true findings on the gang enhancement allegations, we should vacate the sentence imposed and remand for a full resentencing, consistent with changes in the law under Assembly Bill No. 124, Senate Bill No. 567, and People v. Tirado (2022) 12 Cal.5th 688 (Tirado). The People concede, and we agree.
"Effective January 1, 2022, our determinate sentencing law, section 1170, was amended in several fundamental ways. [Citations.] Relevant here, Senate Bill No. 567 amended section 1170, former subdivision (b) by making the middle term the presumptive sentence for a term of imprisonment unless certain circumstances exist." (People v. Flores (2022) 73 Cal.App.5th 1032, 1038 (Flores); see Sen. Bill No. 567 (2020-2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3.) Assembly Bill No. 124 created a presumption in favor of a low prison term under specified circumstances, including when a defendant is under 26 years of age at the time of the offense. (Flores, at p. 1038; People v. Gerson (2022) 80 Cal.App.5th 1067, 1095; see Assem. Bill No. 124 (20202021 Reg. Sess.); Stats. 2021, ch. 695, § 5.) "[T]he amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively in this case as an ameliorative change in the law applicable to all nonfinal convictions on appeal." (Flores, at p. 1039.)
At the time of the offenses, defendant was just under 17 years old.
In Tirado, the Supreme Court clarified the law regarding the court's discretion in sentencing under section 12022.53, and held that section 12022.53 permits a sentencing court to strike a section 12022.53, subdivision (d) firearm enhancement found true by the jury and impose a lesser uncharged enhancement. (Tirado, supra, 12 Cal.5th at p. 700.) Because defendant's judgment is not yet final, Tirado applies retroactively to this case. (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023 [judicial opinions that resolve conflicts or establish the meaning of a statutory enactment apply retroactively to nonfinal cases].) Accordingly, the court must be given the opportunity to exercise its discretion under Tirado.
Furthermore, "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893; see People v. Valenzuela (2019) 7 Cal.5th 415, 424425 ["the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant"].) Thus, upon reversal of the gang enhancement allegations, the court should conduct a full resentencing and apply the changes in law under Assembly Bill No. 124, Senate Bill No. 567, and Tirado, supra, 12 Cal.5th 688.
In light of our conclusion, we need not address defendant's final claim that the court failed to mention any presentence custody credits in its oral pronouncement of judgment and that he should have been awarded 1,692 days of custody credits. Upon remand and resentencing, the court must recalculate the custody credits. (See People v. Salgado (2022) 82 Cal.App.5th 376, 381.)
DISPOSITION
We reverse the true findings on the gang enhancement allegations and remand to the trial court with directions to give the People an opportunity to retry the enhancements under the law as amended by Assembly Bill 333. If the People elect not to retry defendant, or at the conclusion of retrial, the trial court shall conduct a full resentencing and apply the changes in law under Assembly Bill 124, Senate Bill 567 and Tirado, supra, 12 Cal.5th 688. In all other respects, we affirm the judgment.
We concur: RAMIREZ P. J., McKINSTER J.