Opinion
B316823
07-25-2023
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CHRISTOPHER MEJIA, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA144147, Roger T. Ito, Judge. Reversed in part, affirmed in part, and remanded with directions.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
In 2017, defendant Michael Christopher Mejia shot and killed his cousin, took the cousin's car, and ended up in a traffic collision. When responding police officers discovered the car was stolen, he shot at them, killing one and wounding the other. He was convicted of two counts of special-circumstance murder as well as attempted murder and carjacking, with various gun and gang enhancements, and sentenced to consecutive terms of life without the possibility of parole plus 149 years to life.
On appeal, defendant argues there is insufficient evidence to support his carjacking conviction and he is entitled to the ameliorative benefits of several changes to the law enacted after judgment was imposed in his case. We conclude the jury instructions on the elements of the gang allegations did not reflect current law, and defendant was prejudiced by the court's failure to instruct on the new elements. We therefore reverse the gang enhancements. We also conclude defendant is entitled to the benefit of statutory amendments that require the prosecution to prove aggravating sentencing factors beyond a reasonable doubt before an upper-term determinate sentence may be imposed. Accordingly, we correct various clerical errors, vacate the sentence, and remand to give the prosecution the opportunity to retry the gang enhancements and to prove the aggravating sentencing factors, should it wish to do so. In all other respects, we affirm.
Most of the evidence presented at trial is irrelevant to defendant's claims on appeal; we address only that evidence necessary to provide a brief overview of the case and resolve the issues before us.
Roy Torres lived in his aunt's converted garage with his girlfriend, Victoria Pineda. Defendant was Torres's friend, as well as his second-cousin once-removed. Torres owned a silver Dodge Stratus.
In the evening of February 19, 2017, Pineda's cousin came over. Pineda and her cousin had planned a night out and left in Torres's car; Torres stayed home. After about two hours, Torres began texting Pineda that he wanted the car back. Pineda eventually returned home and parked on the street in front of the garage.
Pineda and her cousin walked into the garage and found Torres and defendant talking; the mood was awkward. Defendant said Torres "chose the other side," then took off his shirt, revealing a gun tucked into his waistband. Pineda knew "something was up."
In the early morning on February 20, 2017, defendant told Pineda and her cousin to leave, but Pineda refused. Torres looked worried. Defendant suggested they all have a shot of liquor, then took out the gun, pointed it at Torres's head, and began counting down from ten. Defendant shot him on the count of eight.
Defendant turned to Pineda and told her to give him the car keys. Feeling like she had no choice, Pineda complied. Defendant left in the Dodge, and Pineda's cousin called 911.
When officers responded to the scene, they found Pineda and her cousin crying and distraught. There was a used shell casing on the couch. Torres was lying on the ground with a gunshot wound to the right eye. He was later pronounced dead from the wound.
Several hours later, while driving Torres's car, defendant collided with another vehicle at a stoplight. Police Officers Patrick Hazell and Keith Boyer responded to the accident. Hazell ran the Dodge's license plate and discovered it had been reported stolen. When Boyer attempted to arrest defendant, however, defendant made a sudden movement and shot Hazell in the abdomen. Defendant then engaged in a shoot-out with the officers, ultimately shooting and killing Boyer.
By amended information filed August 4, 2021, defendant was charged with murder of a peace officer (Pen. Code, § 187, subd. (a); count 1) with special circumstances (§ 190.2, subds. (a)(3) [multiple murder], (a)(5) [avoiding and preventing lawful arrest], and (a)(7) [killing a peace officer]) for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(C) &(b)(4)); attempted murder of a peace officer (§ 664/187, subd. (a); count 2) for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(C) &(b)(4)); murder (§ 187, subd. (a); count 3) with special circumstances (§ 190.2, subd. (a)(3) [multiple murder]); carjacking (§ 215, subd. (a); count 4), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The information also alleged defendant personally used a firearm to commit counts 1 through 4 (§ 12022.53, subds. (b)-(d)) and that he had a previous conviction for robbery (§ 211), which constituted both a strike prior (§§ 1170.12, 667, subds. (b)-(j)) and a serious felony prior (§ 667, subd. (a)). Defendant pled not guilty and denied the allegations.
All undesignated statutory references are to the Penal Code.
After a trial at which he did not testify, a jury convicted defendant of all counts and found the allegations true. Defendant admitted the prior conviction.
Defendant was sentenced to two terms of life without the possibility of parole plus a consecutive indeterminate term of 115 years to life and a consecutive determinate term of 34 years, 4 months. For counts 1 and 3, the court imposed identical, consecutive terms of life without the possibility of parole plus 30 years to life-25 years to life for the firearm enhancement (§ 12022.53, subd. (d)) plus five years for the serious felony prior (§ 667, subd. (a)). For count 2, the court imposed 55 years to life: 30 years for the substantive offense-15 years to life, doubled for the prior strike-plus 20 years for the firearm enhancement (§ 12022.53, subd. (c)) and five years for the serious felony prior. For the determinate sentence, the court selected count 4 as the base count and imposed an aggregate term of 33 years: 18 years for the substantive charge-the upper term of nine years, doubled for the prior strike-plus 10 years for the firearm enhancement (§ 12022.53, subd. (b)) and five years for the serious felony prior. The court imposed one year, four months for count 5: one-third the mid-term, doubled for the prior strike.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends: (1) the jury instructions for the gang enhancements were constitutionally deficient because they omitted new statutory elements that apply retroactively to his case; (2) his carjacking conviction is not supported by substantial evidence; (3) his sentence does not comply with changes to California's sentencing laws that apply retroactively to his case; (4) the court was unaware of the scope of its discretion to impose lesser-included firearm enhancements; (5) the parole revocation restitution fine is unauthorized; and (6) there is a clerical error in the abstract of judgment.
I. Jury Instructions
The Due Process Clause of the United States Constitution protects "the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship (1970) 397 U.S. 358, 364; U.S. Const., 14th Amend.) That includes the right to jury instructions on every element of the charged offenses or enhancements (People v. Flood (1998) 18 Cal.4th 470, 491), even when the failure to instruct occurred because the trial was held before the effective date of an amendment retroactively adding the missing element (People v. Sek (2022) 74 Cal.App.5th 657).
Defendant challenges the gang enhancements attached to counts 1 and 2-the murder of Officer Boyer and the attempted murder of Officer Hazell. He contends that recent amendments to section 186.22 apply to him retroactively, and the jury instructions in his case were constitutionally deficient because they did not include the new statutory elements. The People properly concede the points but argue the error was harmless because overwhelming evidence supported the omitted elements. We conclude the prosecution did not present any evidence that the predicate crimes provided a common benefit to defendant's gang, and as such, the instructional omissions were prejudicial.
A. Assembly Bill No. 333
Section 186.22, subdivision (b)(1), provides additional punishment to any "person who is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members." The length of the enhancement depends on the type of crime the defendant commits.
To prove an enhancement under this statute, the prosecution must first prove the existence of a criminal street gang. Section 186,22, subdivision (f), defines "criminal street gang" as: an ongoing organization of three or more persons; with a common name, or common identifying sign or symbol; having as one of its primary activities the commission of one or more crimes listed in subdivision (e); and whose members engage in a pattern of criminal gang activity.
A "pattern of criminal gang activity," in turn, is defined as the commission of two or more listed crimes for the common benefit of the gang. (§ 186.22, subd. (e)(1).) The crimes used to prove a "pattern of criminal gang activity" are commonly called predicate offenses. When defendant was tried in this case, to prove the predicate offenses, the prosecution needed to establish that an individual member of defendant's gang had committed an enumerated crime and that this had happened twice.
However, Assembly Bill No. 333 (2021-2022 Reg. Sess.), effective January 1, 2022, amended the elements of the enhancement. (Stats. 2021, ch. 699, § 3; § 186.22, subds. (a), (b)(1).) Under the statute as amended, a "pattern of criminal gang activity" now requires the prosecution to prove each predicate offense was committed by two or more gang members acting in concert and the crime provided a more than reputational common benefit to the gang. That is, whereas under the old version of the statute, only the charged crime had to be gang-related, under the amended statute, the prosecution can no longer prove the existence of a criminal street gang unless it can establish that the predicate offenses were both gang-related and committed in concert.
Once they have proven the existence of a gang, prosecutors must prove that the defendant committed the charged felony "for the benefit of, at the direction of, or in association with" that gang, and, in doing so, acted "with the specific intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1).) These two prongs-the gang-related prong and the specific-intent prong-must "both . . . be established by the evidence. [Citation.]" (People v. Franklin (2016) 248 Cal.App.4th 938, 948.)
To prove the first element-that the underlying felony was gang-related-the prosecution must establish that the defendant committed the charged offense "for the benefit of, at the direction of, or in association with a criminal street gang." (§ 186.22, subd. (b)(1); People v. Albillar (2010) 51 Cal.4th 47, 60.) Usually, prosecutors use expert testimony for that purpose- and experts in these cases have often opined that a crime benefited a gang by enhancing its reputation for violence in the community. (See, e.g., Albillar, at p. 63 ["Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[ ] criminal street gang' within the meaning of section 186.22(b)(1)"].)
Under the statute as amended, however, reputational benefit is no longer sufficient. Section 186.22, subdivision (g), provides: "As used in this chapter, to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant."
Although defendant was tried before these amendments went into effect, the parties agree that the changes apply to him retroactively. (See People v. Tran (2022) 13 Cal.5th 1169, 1207 (Tran) [Assem. Bill No. 333's changes to § 186.22 apply retroactively to non-final judgments].)
B. Prejudicial Error
Defendant contends the jury instructions in his case were constitutionally deficient because they did not include the new statutory elements created by Assembly Bill No. 333. First, he argues the court failed to instruct the jury that to prove the existence of a criminal street gang, the prosecution needed to prove the predicate offenses were committed by more than one person and for the common benefit of the gang. Next, he argues the court failed to instruct the jury that the prosecution had to prove the charged crimes provided a common benefit to the gang that was more than reputational.
The People concede the error but contend it was harmless because "there is overwhelming evidence showing that the murder of Officer Boyer and attempted murder of Officer Hazell benefitted the Winter Gardens gang which was more than reputational, such that the jury would have still imposed the enhancements." The People also argue that the predicates used to prove a pattern of criminal gang activity were committed "within three years of the crimes in this case and were committed by fellow Winter Gardens gang members." The People do not address the other new elements necessary to establish a pattern of criminal gang activity.
We assess federal constitutional errors under Chapman v. California (1967) 386 U.S. 18, 24. In general, under Chapman, we must reverse unless the People "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, at p. 24; see Tran, supra, 13 Cal.5th at p. 1207 [instructional errors resulting from Assem. Bill No. 333's changes to § 186.22 are assessed under Chapman].) "Where the trial court fails to instruct on an element of the charged offense, however, the People must make a more substantial showing. That showing is governed by Neder v. United States (1999) 527 U.S. 1, 17-19, and by the California Supreme Court's decision interpreting Neder, [People v.] Mil [(2012)] 53 Cal.4th 400." (People v. Valenti (2016) 243 Cal.App.4th 1140, 1166.)
"Neder instructs us to 'conduct a thorough examination of the record. If, at the end of that examination, [we] cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error . . . [we] should not find the error harmless.'" (Mil, supra, 53 Cal.4th at p. 417, quoting Neder, supra, 527 U.S. at p. 19.) On the other hand, the error is harmless if the People can prove beyond a reasonable doubt that the omitted element was uncontested and supported by such overwhelming evidence that no rational juror could come to a different conclusion. (Mil, supra, at pp. 417-419; accord, People v. French (2008) 43 Cal.4th 36, 53.)
We conclude defendant was prejudiced by the court's failure to instruct the jury on the new elements of "pattern of criminal gang activity" necessary to establish the existence of a criminal street gang. Specifically, it was prejudicial not to instruct the jury that the prosecution had to prove that the predicate "offenses commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational." (§ 186.22, subd. (e)(1).)
Because we reverse on this basis, we do not address defendant's alternative claim that the enhancement instructions were deficient as to the charged crime.
Here, the prosecution presented evidence of two predicate crimes using certified dockets that were entered as exhibits. The first predicate was a robbery conviction under section 211. The second predicate was a conviction for felon in possession of a firearm under section 29800, subdivision (a)(1). Defendant contends each predicate was committed by only one gang member, and the prosecution did not present any evidence the crimes were gang-related. The People do not point to any testimony addressing whether these crimes provided a common benefit to the gang. As such, the People have not met their burden of establishing harmlessness. Nor has our review of the transcript revealed any testimony that could reasonably establish the common-benefit element.
The prosecution's gang expert testified that the gang's primary activities included robbery and gun possession. He did not address whether or how these activities commonly benefited the gang, however. To the contrary, the only expert testimony about common benefits Winter Gardens could expect to receive from any criminal activity concerned the crimes to which the enhancements were attached-the murder and attempted murder of police officers. For example, the expert opined that shooting at officers without provocation would raise "the stature of the gang. It's showing rival gang members they're willing to kill-willing to kill not only people, but a police officer, and it gives their gang notoriety. It also-the general public at large-it's showing them that they're willing to kill for their gang." Later, he testified: "It shows that they're not only willing to commit crime, but they're willing to kill a police officer, and shows their propensity for violence towards other gang members as well." Yet there is simply no testimony about how either predicate crime-robbery and gun possession-benefited the gang as a whole rather than individual gang members.
Under these circumstances, we cannot conclude "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24; see Tran, supra, 13 Cal.5th at p. 1207 ["because the jury was not presented with any discernible theory as to how [gang] members 'collectively engage[d] in' these predicate crimes (§ 186.22, subd. (f)) . . . the reversal of the gang enhancement is required"]; People v. Cooper (2023) 14 Cal.5th 735, 739 (Cooper) [failure to instruct that the alleged predicate offenses must have "commonly benefited" the gang in a "more than reputational" manner not harmless beyond a reasonable doubt].)
C. Remedy
As defendant notes, when a reviewing court determines that failure to instruct on the new elements of section 186.22 was prejudicial, the remedy is to reverse the true findings on the gang allegations and any other enhancement relying on those findings and remand the matter to allow the People to retry them. (Cooper, supra, 14 Cal.5th at p. ; People v. E.H. (2022) 75 Cal.App.5th 467, 480 ["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"].) If the People elect not to retry the allegations under the current version of the statute or if the allegations are not found true after a retrial, the court should resentence the defendant. (People v. Sek, supra, 74 Cal.App.5th at p. 670.)
Here, defendant argues that because "the substantive murder convictions are intact and punishment did not include a gang allegation," we should strike the gang allegations without remanding the case. Indeed, in Tran, a death penalty case, the Court vacated the gang enhancement without remanding the allegation for retrial. (Tran, supra, 13 Cal.5th at p. 1207.) There, however, it did so at the People's request. (Ibid.) By contrast, the People here explicitly urge that "the matter should be remanded with directions that the prosecution shall be permitted to retry the enhancement and meet its burden of proof pursuant to A.B. 333's new requirements." Defendant offers no authority for the proposition that we may decline to remand the matter over the People's objection, and our research has revealed none. Accordingly, we will reverse the true findings on the gang allegations and remand for further proceedings as stated in Cooper. (Cooper, supra, 14 Cal.5th at p. .)
II. Carjacking Conviction
A criminal defendant may not be convicted of any crime or enhancement unless the prosecution proves every fact necessary for conviction beyond a reasonable doubt. (U.S. Const., 5th &14th Amends.; see Cal. Const., art. I, §§ 7, 15; In re Winship, supra, 397 U.S. at p. 364.) "This cardinal principle of criminal jurisprudence" (People v. Tenner (1993) 6 Cal.4th 559, 566) is so fundamental to the American system of justice that criminal defendants are always "afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts" (United States v. Powell (1984) 469 U.S. 57, 67).
Defendant contends there is insufficient evidence to support the taking element of carjacking. He argues that when he took Torres's keys from Pineda, the vehicle was not in her immediate presence, so she did not possess it. And, since Torres had asked her to return the car, thereby revoking permission to borrow it, she did not have the right to possess it. We disagree.
A. Standard of Review
In assessing the sufficiency of the evidence, we review the entire record to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "The record must disclose substantial evidence to support the verdict-i.e., 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." (Ibid.)
In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may not reweigh the evidence or resolve evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The same standard applies where the conviction rests primarily on circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113.) In short, we may not reverse a conviction for insufficient evidence unless it appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [it].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Substantial Evidence
To convict a defendant of carjacking (§ 215, subd. (a)), the prosecution must prove: the defendant took a motor vehicle from someone's person or immediate presence; the taking was against the victim's will; the taking was accomplished by force or fear; and the defendant intended to permanently or temporarily deprive the person of possession of the vehicle. (§ 215; see CALCRIM No. 1650.)
A vehicle is within a person's immediate presence for carjacking purposes if it is sufficiently within her control that she could retain possession of it if not prevented by force or fear. (People v. Medina (1995) 39 Cal.App.4th 643, 648 (Medina).) It is not necessary that the victim be inside the vehicle when the confrontation occurs. (Id. at p. 650.) It may also be sufficient for a defendant to forcibly take a victim's car keys, rather than the car itself, from the victim. (People v. Hoard (2002) 103 Cal.App.4th 599, 608609 (Hoard).)
In Medina, the defendant's accomplice lured the victim into a motel room. (Medina, supra, 39 Cal.App.4th at pp. 646, 651.) The defendant and his accomplices bound the victim, took his keys, and then took his car from the parking lot. (Id. at pp. 646-647.) The defendant challenged his conviction for carjacking, arguing that "actual physical proximity of the victim to the vehicle is required." (Id. at p. 649.) The Court of Appeal disagreed, explaining that the "only reason [the victim] was not in the car when it was taken and this was not a 'classic' carjacking, was because he had been lured away from it by trick or device." (Id. at pp. 651-652.)
In Hoard, the court extended Medina's reasoning to victims who had not been separated from their vehicles by trickery. There, the defendant entered a jewelry store and ordered two employees to give him the keys to the jewelry cases and a car belonging to one of the employees. (Hoard, supra, 103 Cal.App.4th at pp. 602, 609.) The employees complied and were then directed into a back room and bound. (Id. at p. 602.) The defendant took jewelry from the cases and fled in the car. (Ibid.) The reviewing court found substantial evidence of carjacking, explaining: "Although [the car owner] was not physically present in the parking lot when [the defendant] drove the car away, she had been forced to relinquish her car keys. Otherwise, she could have kept possession and control of the keys and her car." (Id. at p. 609.)
Here, as in Medina and Hoard, the victim was forced to relinquish her car keys rather than the car itself. Pineda and Torres were in a romantic relationship and lived together in a converted garage. Torres owned a Dodge Stratus. The evening before his murder, Pineda borrowed the car and went out with her cousin. She returned home several hours later, parked the car in front of the garage, and went inside, where she found Torres with defendant. Sometime later, defendant shot Torres in the head, then demanded Pineda give him the keys to the Dodge. Pineda felt she had no choice but to hand them over. Accordingly, Pineda was forced to relinquish the keys to defendant, who drove the car away.
Defendant relies heavily on People v. Coleman (2007) 146 Cal.App.4th 1363 (Coleman) to support the argument that he did not take the car from Pineda's immediate presence. In Coleman, the owner of a glass shop drove his Chevrolet Silverado to the shop in the morning, put the keys to the Silverado in a back work area, then drove away in a truck he used in his business. (Id. at p. 1366.) While the owner was away, the defendant entered the shop, pointed a gun at the office manager, and told her to give him the keys to the Silverado. (Ibid.) It is not clear from the opinion how far away the officer manager was from the Silverado. Regardless, the office manager walked to the back of the shop, grabbed the keys to the truck, and gave them to the defendant. (Ibid.) The defendant was convicted of robbery and carjacking. (Id. at pp. 1365, 1367, fn. 2.)
The Court of Appeal reversed the carjacking conviction. (Coleman, supra, 146 Cal.App.4th at p. 1374.) Although the court "acknowledge[d] that a carjacking may occur where neither the possessor nor the passenger is inside or adjacent to the vehicle," it held that the circumstances in the case before it were "simply too far removed from the type of conduct that [the carjacking statute] was designed to address." (Id. at p. 1373.) The office manager, the court explained, "was not within any physical proximity to the Silverado, the keys she relinquished were not her own, and there was no evidence that she had ever been or would be a driver of or passenger in the Silverado." (Ibid.)
Defendant argues Coleman is dispositive here because Pineda, like the office manager, was not adjacent to the Dodge when defendant took the keys. And, like the office manager in Coleman but unlike the victims in Medina and Hoard, Pineda did not own or have the right to possess the vehicle. Because Torres had repeatedly texted her that evening seeking the vehicle's return, he had revoked his consent to Pineda's possession, even if Pineda had not yet returned the keys. We are not persuaded.
Carjacking is a crime against possession, not ownership, of a vehicle. (People v. Cabrera (2007) 152 Cal.App.4th 695, 701-702.) Unlike in Coleman, where the office manager had to walk some distance to retrieve the keys, the car keys, in this case, were on Pineda's person; in this case, defendant took them from her directly after shooting her boyfriend in the head. And, although Pineda did not own the car, she had driven it shortly before defendant demanded the keys and presumably had a closer relationship with the owner, her live-in boyfriend, than the office manager in Coleman had with her boss.
Defendant also argues that the expansive definition of immediate possession that has developed in carjacking appeals has flattened the differences between carjacking and robbery and is contrary to the statute's purpose. That issue was addressed in People v. Johnson (2015) 60 Cal.4th 966 (Johnson), in which the Supreme Court upheld a death penalty conviction based on a carjacking-murder special circumstance. (Id. at pp. 987-990.)
In Johnson, the victim was baking cookies in her kitchen when attacked and killed. (Johnson, supra, 60 Cal.4th at p. 990.) Witnesses testified that the victim typically kept her car keys on the kitchen counter. (Ibid.) The victim's car was parked in the garage, separated from the kitchen by a breezeway. (Ibid.) The defendant eventually ended up with the keys and took the car. The Court concluded that this evidence was sufficient to establish the possession element of carjacking. In particular, it concluded that the victim's presence in her home made her especially vulnerable, thereby satisfying the legislative purpose of the carjacking statute. (Id. at pp. 990-991.)
Defendant argues the better view of the Legislature's intent is the approach suggested by Justice Werdegar in her concurring and dissenting opinion to Johnson, in which she explained the differences between robbery and carjacking and cautioned against applying the elements of the former to the latter. (Johnson, supra, 60 Cal.4th at pp. 999-1001, dis. opn. by Werdegar, J.) In her view, "'immediate presence' for purposes of carjacking must directly relate to the victim's contemporaneous use of the vehicle." (Id. at pp. 1000-1001.) Defendant does not acknowledge, however, that it is the majority opinion-rather than the dissent, no matter how well-reasoned- that binds this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Like the victim in Johnson, Pineda was in her home-a small, converted garage-and thus was particularly vulnerable when defendant demanded the keys to the Dodge. Under the standard announced in the Johnson majority opinion, therefore, and for the reasons addressed above, we conclude substantial evidence supports defendant's carjacking conviction in count 4.
III. Senate Bill No. 567
Defendant argues that he is entitled to the benefit of recent changes to California's sentencing scheme that went into effect after he was sentenced in this case. Specifically, he contends the court could not properly impose the upper term for count 4 under current law. We agree.
A. The Determinate Sentencing Law
California's Determinate Sentencing Law (DSL) specifies three possible terms of imprisonment for most offenses-a low term, a middle term, and an upper term. Before 2007, the middle term was the presumptive sentence: the court could impose the upper or lower term only if it found circumstances in aggravation or mitigation-and the court had to determine the facts supporting those circumstances by a preponderance of the evidence. (People v. Sandoval (2007) 41 Cal.4th 825, 836 (Sandoval).)
In Cunningham, the United States Supreme Court held that such judicial fact-finding violated the Sixth Amendment. (Cunningham v. California (2007) 549 U.S. 270, 274, 281; see Apprendi v. New Jersey (2000) 530 U.S. 466, 490 ["Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"]; Blakely v. Washington (2004) 542 U.S. 296, 299, 303-304 ["the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings"]; see also Mathis v. U.S. (2016) 579 U.S. 500, 511 ["only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction"].)
In response, the California Legislature did away with the midterm presumption and granted trial courts discretion to impose any of the three possible terms without engaging in additional fact-finding. (See Stats. 2007, ch. 3, § 1.) As amended, the DSL provided, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected." (Former § 1170, subd. (b).) Defendant was sentenced under this version of the DSL.
Thus, though the court in this case had to "specify reasons for its sentencing decision," it was not "required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances. [Citations.]" (Sandoval, supra, 41 Cal.4th at pp. 846-847.) Nor did the court's reasons have to be supported by a preponderance of the evidence, much less proof beyond a reasonable doubt. Instead, in exercising his or her discretion in selecting one of the three authorized terms of imprisonment referred to in section 1170, subdivision (b), the sentencing judge could consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. "The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court,rule 4.420(d).)
All undesignated rule citations are to the California Rules of Court.
Our Supreme Court held that this scheme did not violate Cunningham because the trial court's "evaluation of the relative weight of aggravating and mitigating circumstances is not equivalent to a factual finding." (People v. Black (2007) 41 Cal.4th 799, 814, fn. 4.) As long as "a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles" (id. at p. 813), "a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. [Citations.] The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' [Citation.]" (Sandoval, supra, 41 Cal.4th at p. 848.)
Senate Bill No. 567, which took effect on January 1, 2022, amended the DSL by making the middle term of imprisonment the presumptive sentence in most circumstances. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (2).) Under the amended law, the trial court may impose an upper term sentence only where there are circumstances in aggravation, and the defendant has stipulated to the facts underlying all of those aggravating circumstances, or a jury or court has found them true beyond a reasonable doubt after trial. (Ibid.) Notwithstanding this general rule, the trial judge may still rely on certified records of a defendant's prior convictions in determining the sentence to impose without submitting the prior convictions to a jury. (Ibid., amending § 1170, subd. (b)(3).)
B. Proceedings Below
At sentencing, the court detailed its view of the case at length. It spent the bulk of its remarks addressing the murders and attempted murder, then explained it was "going to sentence [defendant] to the maximum" based on the "extraordinary . . . level of callousness" defendant displayed when he committed those crimes.
When it turned to the determinate sentence, the court stated: "As to count number 4 . . . it is the carjack of the vehicle at the location of the first murder, a violation of Penal Code section 215 carjack. Because of the cruel, callous nature of that event, the aggravating factors far outweigh any mitigating factors, which I do not believe exist in that particular case, these were use of a weapon [and] a certain amount of planning and sophistication, the court will impose the high term."
C. Analysis
Defendant contends, the People concede, and we agree, that because the court imposed the high term for count 4 (§ 215, subd. (a); carjacking) and the judgment here is not yet final, the new sentencing rules apply retroactively to this case. (People v. Jones (2022) 79 Cal.App.5th 37, 45.) The parties disagree, however, as to whether resentencing is necessary. Specifically, the People argue defendant's sentence is still proper because the court imposed the upper term based on defendant's prior criminal record, which, under the amended version of the DSL, does not have to be tried to a jury. They also argue any error is harmless. Defendant contends the error is prejudicial. We agree with defendant.
As a preliminary matter, the record does not support the People's contention that the court imposed the upper term for count 4 based on defendant's criminal record. The court cited three aggravating factors to support its sentencing choice: the crime was cruel and callous (rule 4.421(a)(1)); defendant used a weapon (rule 4.421(a)(2)); and there was a certain amount of planning and sophistication (rule 4.421(a)(8)). No mention was made of defendant's record. Although defendant admitted to sustaining a prior strike, the court's lengthy explanation of its sentencing choices makes clear that it imposed the upper term based on defendant's current crimes- not his past offenses.
The Courts of Appeal are divided on the applicable standard for assessing prejudice in this situation. The issue is pending before our Supreme Court in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022, S274942. The primary disagreement is between People v. Flores (2022) 75 Cal.App.5th 495, from the First District and People v. Lopez (2022) 78 Cal.App.5th 459, from the Fourth District. Flores held a remand for resentencing is unnecessary if we can determine beyond a reasonable doubt that the jury would have found true at least one aggravating factor (Flores, at pp. 500-501), whereas Lopez held remand is required unless we can (1) determine beyond a reasonable doubt that the jury would have found true all the aggravating factors the trial court cited, or (2) conclude, "to the degree required by People v. Watson (1956) 46 Cal.2d 818, 836," that the trial court would have reached the same decision even if it knew it could not properly rely on all the factors it did (Lopez, at p. 468, fn. 11).
The Third and Fifth Districts have articulated their own versions of Lopez. The Third District essentially agreed with Lopez, stating that its "approach and the Lopez court's approach are the same in terms of outcomes," but described the standard differently. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1113.) The Fifth District concluded that since the type of error at issue has both federal constitutional and state law dimensions, "the correct standard for harmless error lies between the standards articulated in Flores and Lopez." (People v. Dunn (2022) 81 Cal.App.5th 394, 409 (Dunn), review granted Oct. 12, 2022, S275655.)
We agree with the majority of courts to address the issue that, contrary to Flores, "a reviewing court finding beyond a reasonable doubt that the jury would have found a single aggravating factor true beyond a reasonable doubt is insufficient to conclude that the error was harmless." (Dunn, supra, 81 Cal.App.5th at p. 408.) We need not decide which of the remaining potential standards for assessing prejudice is correct, however, because even applying the Dunn standard-the standard most favorable to the People other than the Flores standard-the error is prejudicial.
Dunn described the standard for assessing prejudice as follows: "The reviewing court determines (1)(a) beyond a reasonable doubt whether the jury would have found one aggravating circumstance true beyond a reasonable doubt and (1)(b) whether there is a reasonable probability that the jury would [not] have found any remaining aggravating circumstance(s) true beyond a reasonable doubt. If all aggravating circumstances relied upon by the trial court would have been proved to the respective standards, any error was harmless. If not, the reviewing court moves to the second step of Lopez, (2) whether there is a reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating circumstances provable from the record as determined in the prior steps. If the answer is no, the error was harmless. If the answer is yes, the reviewing court vacates the sentence and remands for resentencing." (Dunn, supra, 81 Cal.App.5th at pp. 409-410, fn. omitted.)
In the original, unmodified version Dunn describes the "(1)(b)" part of its test as "whether there is a reasonable probability that the jury would have found any remaining aggravating circumstance(s) true beyond a reasonable doubt," but later describes it as whether there is "a reasonable likelihood the jury would not have found the . . . aggravating circumstance true beyond a reasonable doubt." (Dunn, supra, 81 Cal.App.5th at pp. 410-411.) The latter formulation is correct, as the question under Watson is whether there is a reasonable probability of a result more favorable to the defendant, not
Applying the Dunn standard here, we conclude the imposition of the high term was prejudicial. At least two of the aggravating factors relied upon by the court-that the crime involved a "high degree of cruelty, viciousness, or callousness" (rule 4.421(a)(1)) and that the "manner in which the crime was carried out indicates planning, sophistication, or professionalism" (rule 4.421(a)(8))-involve subjective, qualitative determinations. We cannot conclude with confidence that the jury would have held the same views on these points as the trial court. (See Sandoval, supra, 41 Cal.4th at p. 840, ["to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court"].) In our view, there is a reasonable probability the jury would not have found these aggravating factors true beyond a reasonable doubt.
In particular, in concluding defendant was cruel and callous, the court relied in significant part on the murders and attempted murder, which were whether there is a reasonable probability that the same, unfavorable result would be reached again. (See People v. Watson, supra, 46 Cal.2d at p. 836.) not at issue in either count 4 specifically or in the determinate sentence more broadly. Indeed, the court made only one comment about the carjacking itself: after murdering Torres, "I think Mr. Mejia articulated that he had decided that he was not going to kill the two female witnesses at that location to some extent so that they would know and they would see what he had done. Incredible amount of callous disregard."
To be sure, defendant's overall crime spree was undoubtedly callous and vicious. Defendant properly received multiple consecutive life terms for those crimes-including two terms of life without the possibility of parole. Yet there is little evidence, identified either by the People or in our review of the record, that the carjacking itself was appreciably worse than other carjackings. Carjacking is, by definition, a serious, violent crime. (§§ 1192.7, subd. (c)(27) [serious felony], 667.5, subd. (c)(17) [violent felony].) Committing it with a firearm enhanced defendant's sentence by 10 years. Otherwise, however the facts here were simple: defendant demanded the car keys; Pineda turned them over; defendant left in the car. As such, we conclude there is a reasonable probability that at least one juror would not have found beyond a reasonable doubt that these facts rendered the carjacking unusually cruel and callous. (See People v. Soojian (2010) 190 Cal.App.4th 491, 520-521 [hung jury is more favorable result for Watson purposes].)
Because we cannot conclude with sufficient certainty that some of the aggravating factors on which the trial court relied-namely, that the crime was cruel and callous and that there was a certain amount of planning and sophistication-would have been found true if submitted to the jury, we proceed to the second step of the prejudice analysis. (See Dunn, supra, 81 Cal.App.5th at p. 410.) As discussed, the court appeared to give significant weight to these factors-particularly its conclusion defendant displayed an "[i]ncredible amount of callous disregard." In these circumstances, we believe "there is a reasonable probability that the . . . court would have imposed a sentence other than the upper term" if it had realized it could not rely on these factors. (Ibid.) The error, therefore, was prejudicial. Accordingly, we vacate defendant's sentence and remand for resentencing.
Defendant also asks us to remand to afford him the benefit of Assembly Bill No. 124 (2021-2022 Reg. Sess.) under the theory that the court may opt to impose the low term if defendant suffered childhood trauma. (Stats. 2021, ch. 695, § 5.) He argues: "Mejia lived with his grandparents. Had counsel known of these statutes, counsel could have explored Mejia's history to see if trauma occurred that led to his addiction and ultimate conduct." This argument is wholly speculative. As the trial court's remarks plainly indicate it would have imposed the maximum sentence available to it regardless of the scope of its discretion, we decline to remand on this basis. (People v. Banner (2022) 77 Cal.App.5th 226, 242.)
IV. Firearm Enhancements
Defendant next contends we should remand for resentencing because the court was unaware that it had discretion not only to strike or impose the firearm enhancements but instead to impose lesser-included enhancements.(See People v. Tirado (2022) 12 Cal.5th 688, 700.) We disagree.
In the interest of judicial economy, we exercise our discretion to reach this issue notwithstanding defendant's failure to object below.
When a court pronounces judgment without understanding the contours of its sentencing discretion, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Even assuming the court did not understand the full scope of its discretion in this case, we conclude defendant did not suffer prejudice. As discussed above, the court spoke in detail about "the nature of [defendant's] callous act and" why it was choosing to "sentence [him] to the maximum" possible term in this case. Based on the court's lengthy, thoughtful remarks, the record "'clearly indicate[s]'" it would have declined to impose lesser-included firearm enhancements if given the opportunity to do so.
V. Parole Revocation Restitution Fine
"In passing sentence, the court has a duty to determine and impose the punishment prescribed by law." (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1589.) An unauthorized sentence may be challenged "for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Defendant contends the court erroneously imposed and suspended a $300 parole revocation fine under section 1202.45. The People concede the point, and we agree.
Normally, the sentencing court is required to impose and stay a probation or parole revocation fine equal to the restitution fine imposed in the case. But the court here sentenced defendant to consecutive terms of life in prison without the possibility of parole. Since, notwithstanding its determinate portion, the sentence does not include a period of parole, section 1202.45 is inapplicable. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186.) The fine should not have been imposed, and we modify the judgment to remove it. (People v. Mejia (2012) 211 Cal.App.4th 586, 637; § 1260 [appellate court's power to modify judgments].)
VI. Abstract of Judgment
In a criminal case, the oral pronouncement of a sentence constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell); Mesa, at p. 471 [to the extent a minute order diverges from the sentencing proceedings it purports to memorialize, it is presumed to be the product of clerical error].) Accordingly, "[c]ourts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases" (Mitchell, at p. 185), may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of sentence (id. at pp. 185-188).
Here, the court imposed a 20-year determinate term for the firearm enhancement (§ 12022.53, subd. (c)) attached to count 2. The abstract of judgment for the indeterminate part of the sentence, however, shows a sentence of "30 years to life" for that enhancement. Upon remand, the abstract of judgment must be corrected to reflect the sentence actually imposed.
DISPOSITION
The gang enhancements (§ 186.22, subds. (b)(1)(C) &(b)(4)) to counts 1 and 2 and the $300 parole revocation restitution fine (§ 1202.45) are reversed. The sentence is vacated and the matter is remanded for the District Attorney to determine whether to try either the gang enhancements or the aggravating sentencing factors to a jury. The District Attorney shall have 30 days after the remittitur is filed to give written notice to the court and defendant of his intent to retry either the enhancements or the sentencing factors. Upon conclusion of such proceedings, if any, the court shall conduct a full resentencing hearing in defendant's presence under the sentencing laws then in effect and in accordance with the views expressed in this opinion.
Upon resentencing, the court is directed to amend the sentencing minute order and the abstract of judgment to reflect the new judgment and correct the errors identified in this opinion, and to send a certified copy of the new abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm.
WE CONCUR: COLLINS, Acting P. J., MORI, J.