Opinion
F075247
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS OROZCO, Defendant and Appellant.
Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15902164)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Juan Carlos Orozco was charged and convicted of attempted murder, assault with a firearm, first degree residential burglary, and street terrorism after shooting a rival gang member in his home and having multiple eyewitnesses identify him as the assailant. The jury also found true gang enhancements and enhancements for personal use of a firearm.
In numerous arguments on appeal, defendant challenges his gang enhancements and conviction for street terrorism. He contends insufficient evidence supports the jury's conclusions he acted for the benefit of a criminal street gang, with the specific intent to assist in the criminal conduct of gang members, or that he committed felonious criminal conduct in cooperation with other gang members. He also asserts the evidence was insufficient to establish the existence of a criminal street gang under People v. Prunty (2015) 62 Cal.4th 59 (Prunty), and that his counsel provided ineffective assistance by failing to object to evidence admitted in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). He further contends the trial court erred by failing to stay his conviction for the substantive gang offense as required under Penal Code section 654. (Undesignated statutory references are to the Penal Code.) Finally, he seeks a limited remand to prepare a record as provided for in People v. Franklin (2016) 63 Cal.4th 261 (Franklin) and for the trial court to exercise its newly granted discretion in determining whether to strike the imposed firearm enhancements.
We remand the matter for the trial court to consider whether defendant should be permitted to make a further record of information that will be relevant to the parole authority as it fulfills its statutory obligations under sections 3051 and 4801 to permit the trial court to exercise its discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), and, if appropriate following exercise of that discretion, to resentence defendant accordingly. We also direct the trial court to prepare an amended determinate abstract of judgment reflecting defendant's sentence on count 8 for street terrorism is stayed, correctly noting the total time imposed is 17 years, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was tried jointly with Jairo Madrigal for attempted murder, first degree residential burglary, assault with a firearm, and the substantive gang offense in connection with the 2015 shooting of Ray Pinon, Jr., a Fresno Bulldog gang member. The jury found defendant guilty of all the charges and found true gang enhancements under section 186.22, subdivision (b), a violent felony enhancement under section 667.5 subdivision (c), firearm enhancements under section 12022.53, subdivision (d), and 12022.5, subdivision (a). The jury found Madrigal not guilty of attempted murder, residential burglary, and assault with a firearm but guilty of the substantive gang offense. January 1 , 2015 , shooting of Ray Pinon , Jr.
On January 1, 2015, Erika C. was living with her boyfriend Ray Pinon, Jr., the victim, at the Park Side Apartments in Huron, California. That night, Erika was playing dominoes in the apartment with her sister. Also present in the apartment were Pinon, Erika's cousin, and Erika's three daughters, one of which was Wendy.
At around 11:00 p.m., Erika saw Wendy walk to the front door and then heard her screaming. Erika testified she saw defendant walk in with a gun in his hand. Defendant was wearing a black hooded sweater with white letters across it that said "Cal" or "Cali." Defendant had a bandana on his face but it fell off and Erika recognized him as her neighbor who lived in the same apartment complex. Defendant was with two other men; Erika identified one as Jairo Madrigal, who was also holding a gun and lived with Erika's brother.
Defendant began shooting at Pinon, who was sitting in a chair, and Pinon fell to the floor. The three men then ran out the front door. "[T]here was blood everywhere." Erika saw blood on Pinon's left side, his right arm, and his back. They called 911 and Pinon was taken to the hospital. At the hospital, Erika spoke with police and identified defendant as the shooter.
She testified Pinon was in the Bulldog gang and there were rival gangs in Huron. She considered Norteño gang members to be enemies.
Pinon testified he recalled hearing a knock on the door the night of the shooting and that Wendy went to answer it. The next thing Pinon recalled was blacking out. He could not identify his shooters. He testified that defendant lived in his apartment complex and was his neighbor. According to Pinon, he and defendant had been friends for a long time and then they just stopped being friends. He did not classify defendant as his friend or his enemy. He also testified he knew Madrigal from running into him at the store; he also did not consider Madrigal a friend or enemy. Pinon testified to being a Bulldog gang member for many years.
Wendy also testified regarding the January 1, 2015, shooting. She recalled hearing a knock at the door at around 11:00 p.m. Wendy got up and looked out the window but did not see anyone. She thought one of Pinon's friends was at the door, so she opened it. She looked out and initially did not see anyone, but then she saw three men standing by the wall. Wendy identified defendant in court as one of the men that was present. According to Wendy, one suspect had a red bandana across his face and defendant was wearing a black hooded sweater with the word "Cali" on the front in red and white and his shirt had "a bear with the star on the side." Wendy tried to close the door, screamed, and yelled Pinon's name because she knew the men were Norteños and that Pinon was a Bulldog. The men opened the door, pushed Wendy out of the way, and went inside the house. Wendy panicked because she started hearing gunshots. She stood where she was because she did not know what to do. She recalled the suspects leaving and that she spoke to police and identified defendant. Wendy also reported to police that she was present during a previous encounter between defendant and Pinon during which they were "cussing" and "yelling at each other." She recalled defendant telling Pinon "he was going to get him," which Wendy understood to mean he was going to shoot or kill him.
Erika's sister also testified to events consistent with those attested to by Erika and Wendy. She recalled hearing a knock at the door around 11:00 p.m. on January 1, 2015, while she was playing dominoes with Erika at Erika's house. Wendy opened the door, "they came in and then there was gunshots." According to the sister, the shooter had on a black sweater with a hood with the word "Cali" on it in white letters. At trial, the sister identified defendant as the shooter and stated she knew him from seeing him around town and the apartment complex. She also identified him to police as the shooter.
Sergeant Patrick Clark of the Huron Police Department testified he was dispatched to the hospital to meet with Pinon after the shooting. At the hospital, Sergeant Clark spoke with Erika and, based on her identifications of the suspects, he had his office prepare photographic lineups including the possible people involved. He then had Erika review a six-pack photographic lineup and she identified defendant as one of the individuals who entered her apartment and shot Pinon. She also identified Madrigal as one of the men involved in the shooting.
Madrigal testified at trial and denied being present on the night of the shooting. He admitted he was an active Norteño gang member on January 1, 2015, and before that date. He confirmed defendant was also a Norteño gang member. Madrigal presented two other witnesses, including Ramona C., who testified he was with her family at her house watching movies on the night of Pinon's shooting. Ramona testified she knew Madrigal to be a Norteño gang member.
Defendant's mother, Martha Pena, testified defendant was at home with her on the night of the shooting. She testified defendant was in his room that whole night and she checked on him every 10 minutes or so. Another witness, Victoria V., also testified on defendant's behalf. She testified she was at defendant's house on the night of the shooting and spent the night there. According to Victoria, defendant was present in the house that night and was watching television in his room. The defense also presented an expert witness who explained the problems with eyewitness identifications made after a stressful incident.
Defendant's and Madrigal's other contacts with police
The People introduced evidence of defendant's and Madrigal's previous contacts with police. Officer Chris Lewis testified when defendant was in jail on February 14, 2015, he was housed in the inmate unit for Norteño gang members, Mexican nationals, and White inmates.
Officer Amy Freeman of the Coalinga Police Department testified that on May 26, 2012, she was patrolling an annual derby festival for crowd control and gang activity. She observed an incident during which a victim was stabbed. Later that day, Officer Freeman met with defendant at the Coalinga police station. He was wearing red shoes, blue jeans, a white shirt, a Raiders jersey, and a black jacket, and he had a cut on his hand between his thumb and first finger. They discussed the events that occurred at the derby. They also discussed defendant's gang affiliation and that the suspect with whom he fought was a Bulldog gang member. Defendant explained that "when he came to the park, he had left his [white and black Raiders] jersey in the car, and prior to the altercation he had someone go back and get it and he put it on just before the altercation occurred." The People's gang expert, Detective Mark Wilcox, opined this "show[ed] knowledge that [defendant] knew that the Raiders jersey represented the Norteno gang." Following Freeman's testimony, the court advised the jury: "The instructions that you will receive about criminal street gangs, what participation involved in a gang might mean, or how you define those gangs. That last witness, that testimony went to those issues, not the actual attempted murder."
Sergeant Jose Arciga testified he worked as a police officer in the city of Huron on June 25, 2014. That evening, Officer Arciga responded to a report there were "several Norteno gang members in the park." Officer Arciga identified defendant and Madrigal as being present at the park that night. Officer Arciga saw the group walk out of his view and then he heard "six bangs that appeared to [him] to be gunfire." He went towards the shots and saw three men he identified as defendant, Madrigal, and an individual named David Vargas who were "trying to flee the scene." Defendant and Madrigal "were trying to help Mr. Vargas ... up because he [had been] shot." Detective Wilcox later testified Vargas is a validated Norteño gang member.
Officer Carlos Esqueda testified he also worked as an officer for the Huron Police Department in 2014. On September 14, 2014, he was dispatched to the Park Side Apartments based on a report shots had been fired. He eventually pulled over a car reported to have been involved in the shooting. Three occupants—including Madrigal, Marlon Ramos, and Ricardo Galvan—were in the car. Esqueda testified that Galvan and Madrigal identified as "Northern gang member[s]."
Esqueda also testified he was on duty on August 23, 2014, at 6:50 p.m. and conducted a probation search with other officers at the Park Side Apartments. During the search, he observed defendant's bedroom, which had a silver and black Raiders flag with the "Huelga bird" in the center of it—"a symbol of the northern gang"—and a red belt with the letter "P" on it. Detective Wilcox later explained these items were indicative of defendant's active Norteño membership. He noted "some members of the Norteno gang who live in Huron ... will sometimes use the letter P ... to represent their gang."
Officer Eric Grijalva testified he was with the Huron Police Department in January 2014. On January 6, 2014, at approximately 9:41 p.m. Officer Grijalva conducted a traffic stop of a car in which Madrigal, Cedric Pena, and another male subject were occupants and who were known to him as gang members. He found live ammunition in a sock in Madrigal's pocket and he located a loaded .357 revolver handgun in the car.
Deputy Wilcox testifies as a gang expert
Detective Wilcox testified he works in the county gang suppression unit, Multi Agency Gang Enforcement Consortium (MAGEC), of the Fresno Police Department gathering intelligence on gang members and has served in that capacity since 2008. Wilcox testified Huron had both Norteño and Bulldog gang members. He explained he has developed a background of knowledge regarding the criminal street gang referred to as the Norteños through his contact with gang members. He testified all Norteño members had to be "jumped" or "blessed" into the gang, and the Norteños are governed by the "14 bonds," which are guidelines or rules under which the gang operates. Wilcox explained the Norteños are a "structured gang" and there are approximately 10 subsets of Norteños in Fresno County. He testified that each of the 10 subsets of Norteños in Fresno County pay "taxes" up the ladder to the larger Norteño group. Norteño members in Huron use the color red to signify their association and "in the Huron and Coalinga area, they also use Raider gear."
He also explained the "Bulldogs are a group that broke off from the [Norteño] criminal street gang," and he learned about them through "speaking with other gang investigators, other officers, Bulldog gang members themselves, rival gangs members, [and] through training, classes." He explained, unlike the Norteños, the Bulldog gang lacks structure. He testified there are "20 plus" subsets of Bulldogs and subsets of those subsets in Fresno County. Bulldogs in Huron "sometimes will wear black and white" but their traditional color is also red. According to Detective Wilcox, the Norteños and Bulldogs in Huron are traditionally enemies.
Detective Wilcox pointed out tattoos on Madrigal's and defendant's bodies and opined regarding their significance. In explaining the significance of displaying certain initials, Detective Wilcox explained the letter "P" in Huron could mean association with either gang, the Norteños or the Bulldogs: "Park Side is an area within Huron that both Bulldogs and Nortenos claim." He explained the letters "HPN" on defendant's abdomen were significant because "Nortenos from Huron will often use the letters HPN to represent Huron Park Side Nortenos, which is what they use to represent the Norteno gang." He pointed out defendant's "soldado" tattoo, which means soldier in Spanish, noting "Norteno gang members ... sometimes refer to themselves or other Norteno gang members as soldiers." He also pointed out that defendant has a tattoo of four dots on his left wrist and one dot on his right wrist, "[t]he combination of the one dot and the 4 dots ... are used to represent 1 and 4. In combination that is 14. 14 is a number used by the Norteno gang to represent themselves." Defendant also has a "P" tattooed directly above his right knee and an "S" above his left knee, which is significant "because P and S are two of the letters within the word Park Side, and Park Side is one of the words used to represent the gang members who are from Huron and who are Nortenos."
Detective Wilcox also testified regarding Madrigal's tattoos. He explained the "XIV" tattoo on Madrigal's chest was significant "[b]ecause in Roman numerals, that stands for 14, and 14 is the number that the Norteno gang uses to represent their gang." He also pointed out other tattoos representing the number 14. He explained Madrigal's "HPN" tattoo on his abdomen was significant because "HPN for Nortenos who are from Huron [is] used to represent their gang. Huron Park Side Nortenos." He also pointed out the Huelga bird tattoo Madrigal had between his chest and abdomen and the words "Bam-Bam" on his forearm which, he explained, was Madrigal's moniker within the gang. He noted Madrigal had a "BFK" tattoo, which "represents Bullfrog killer" and "Bullfrog is a derogatory term for Bulldog gang members, so the combination of those two meanings is Bulldog gang member killer, Nortenos." He explained Madrigal's "Huron" tattoo on his back "is part of three words that Nortenos from Huron will sometimes use to represent their gang," "Huron in itself is just a city within Fresno county," and "[t]he letter P is sometimes used for Nortenos from Huron to represent their gang, ... Huron Park Side Nortenos." He noted Madrigal had a "Park Side" tattoo behind his ear "that Nortenos use in the city of Huron to represent their gang."
Detective Wilcox testified "firearm-related offenses," including "[s]hooting at people, shooting at occupied vehicles, ... that sort of thing" are some of the primary activities of the Fresno County Norteño criminal street gang. He also testified to 10 criteria used to identify gang members, including if the individual "[s]elf-admits to being a gang member. Associates with known gang members. Wears or has gang tattoos. Wears gang clothing. Is in a gang photograph or utilizes gang hand signs. Name appears on a gang list or document. Identified by a reliable source as a gang member. Arrested with gang members or associates. Corresponds with known gang members, or writes about the gang, such as graffiti on walls, papers or books." He then opined that, based upon the criteria and the evidence presented at trial, defendant and Madrigal were active participants in the Norteño gang in Huron.
Evidence of predicate offenses
Detective Wilcox also testified he was familiar with Enrique Gonzalez, who was a validated Norteño gang member in Fresno County. He confirmed Gonzalez pled to and was convicted of a charge of attempted carjacking, a felony, with a gang enhancement and was sentenced in August 2008. Wilcox also confirmed attempted carjacking for gang purposes is an enumerated crime under section 186.22 and the court took judicial notice of the file related to the conviction. Defendant's and Madrigal's counsel objected on the basis of Prunty. The court overruled the objections. On cross-examination by Madrigal's counsel, Wilcox noted nothing in the documents related to Gonzalez's conviction claimed he was from Huron.
Detective Wilcox next testified he was familiar with Octavia Cano, who was a validated Norteño gang member in Fresno County. Wilcox confirmed Cano pled to and was convicted of a charge of "[b]eing an active participant in a criminal street gang" in 2008. The court took judicial notice of the file related to the conviction. Defendant's counsel and Madrigal's counsel objected on the basis of Prunty. The court confirmed its decision to take judicial notice of the file related to the conviction, noting the documents were certified court records.
Detective Wilcox testified he was familiar with Enrique Sandoval, who is a Norteño gang member in Fresno County and was a member in 2011. Wilcox confirmed Sandoval pled to and was convicted of a charge of assault with a deadly weapon in 2011 by means that would produce great bodily injury. Wilcox confirmed assault with a deadly weapon by means likely to produce great bodily injury is an enumerated crime under section 186.22, a primary activity of a criminal street gang. The court took judicial notice of the file related to the conviction. Defendant's counsel and Madrigal's counsel objected on the basis of Prunty. The court overruled the objections.
Detective Wilcox also explained he was familiar with Miguel Angel Hurtado, Jr., who is a Norteño gang member in Fresno County and was a member in 2012. Wilcox confirmed Hurtado pled to and was convicted of shooting at an occupied motor vehicle pursuant to section 246 in 2013. The court took judicial notice of the file related to the conviction. Defendant's counsel and Madrigal's counsel objected on the basis of Prunty. The court overruled the objections.
Detective Wilcox further confirmed he was familiar with Joseph Gonzales, who is a Norteño gang member in Fresno County and was a member in 2013. Wilcox confirmed Gonzales pled to and was convicted of a charge of assault with a semiautomatic firearm pursuant to section 245, subdivision (b), a section 186.22, subdivision (b) enhancement, a section 12022.7, subdivision (a) enhancement for bodily harm, and a section 12022.5 enhancement for personal discharge of a firearm. The offense occurred in 2013. The court took judicial notice of the file related to the conviction. Defendant's counsel and Madrigal's counsel objected on the basis of Prunty. The court overruled the objections.
With regard to each of the packets of the certified records of these convictions, the parties stipulated "that all five of the individuals mentioned ... [in] those packets ... that none of those individuals were members of the Huron Park Side Nortenos." The court instructed the jury "a stipulation is an agreement by all parties that certain facts are true. If there is a stipulation, you're required to accept it as true."
Verdict
Defendant was convicted of attempted first degree murder (count 4; §§ 664, 187, subd. (a)) enhanced by a finding defendant personally and intentionally discharged a firearm causing great bodily injury and was a principal in the commission of the offense (§ 12022.53, subds. (d), (e)); assault with a firearm (count 5; § 245, subd. (a)(2)); first degree residential burglary (count 6; §§ 459, 460, subd. (a), 667.5, subd. (c)(21)); and street terrorism (count 8; § 186.22, subd. (a)). The jury also found true allegations defendant personally used a firearm (§ 12022.5, subd. (a)) and that the offense was committed for the benefit of, or 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 (§ 186.22, subd. (b)(1)(C)) with regard to counts 4, 5, and 6. The jury found Madrigal not guilty of attempted murder (count 1; §§ 664, 187, subd. (a)), assault with a deadly weapon (count 2; § 245, subd. (a)(2)), or residential burglary (count 3; §§ 459, 460, subd. (a), 667.5, subd. (c)(21)), but guilty of street terrorism (count 7; § 186.22, subd. (a)).
The court sentenced defendant as follows: an aggregate determinate term of 17 years in state prison, which includes the middle term of seven years for attempted murder (count 4), plus 10 years to be served consecutively for the related gang enhancement; a middle term of three years for his assault with a firearm conviction (count 5), stayed pursuant to section 654 because it relates to the same conduct; a concurrent middle term of two years for street terrorism (count 8); and an indeterminate term of 25 years to life based on the jury's finding he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). A four-year term for first degree residential burglary (count 6)), and the 10-year gang enhancements attached to counts 5 and 6 were stayed. The court also stayed the 10-year personal use of a firearm enhancement attached to count 5 and ordered the personal use of a firearm enhancement (§ 12022.5, subd. (a)) attached to count 6 to run concurrently.
The determinate abstract of judgment shows "Total Time" imposed of 20 years. This is incorrect as the three years imposed for count 5, assault with a firearm, was stayed and should not have been added.
The court struck the 10-year personal use of a firearm enhancement (§ 12022.5, subd. (a)) attached to count 4. (See § 12022.53, subd. (f).)
DISCUSSION
I. Trial Court Did Not Err by Denying Motion to Bifurcate
Defendant first challenges the trial court's failure to bifurcate evidence related to the gang allegations.
A. Relevant Procedural History
Before trial, defendant moved to bifurcate the gang allegations from the rest of the proceedings. The court denied the motion explaining, "Given the fact that I believe the People's theory of the case is that the gang issue is the motivation for the other allegations, the court will be denying the motion to bifurcate."
B. Standard of Review and Applicable Law
Section 1044 gives a trial court discretion to bifurcate proceedings. (People v. Calderon (1994) 9 Cal.4th 69, 74-75.) A trial court has broad discretion in deciding whether to bifurcate gang allegations from the other charged offenses. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) On appeal, the trial court's ruling on bifurcation is reviewed for an abuse of discretion. (Id. at p. 1050.)
Evidence of gang membership is often relevant to, and admissible regarding, the charged offenses. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Evidence of defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, and rivalries—can be used to prove identity, motive, modus operandi, specific intent, or other issues pertinent to guilt of the charged crime. (Ibid.) To the extent evidence supporting a gang enhancement would be admissible at a trial determining a defendant's guilt, any inference of prejudice would be dispelled and bifurcation would be unnecessary. (Id. at pp. 1049-1050.) Generally, "less need for bifurcation ... exists with the gang enhancement than with a prior conviction allegation." (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) This is because "[a] prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (Ibid.) Further, because there are efficiencies to be gained by conducting a nonbifurcated trial, some evidence that would be inadmissible (under Evid. Code, § 352, for instance) at a trial of the underlying crime alone can be admitted in a nonbifurcated trial of an offense with a gang enhancement. (Hernandez, supra, at p. 1050.)
C. Analysis
Defendant first challenges the trial court's denial of his motion to bifurcate the gang allegations from the other counts. Defendant relies on People v. Albarran (2007) 149 Cal.App.4th 214 to argue the gang-related evidence was irrelevant to the underlying charges, was obviously prejudicial, risked jury confusion, and consumed an undue amount of time. He argues the error resulted in a violation of his due process rights. He further contends, if this issue is deemed forfeited because his counsel failed to seek bifurcation of evidence of the substantive gang offense or to object separately to the introduction of gang evidence, his counsel provided ineffective assistance. The People respond "[b]ecause the evidence of [defendant's] gang affiliation was relevant to the prosecution's theory of the case—including the motivation for the shooting—the denial of the motion was proper." We agree with the People.
In Albarran, the defendant was charged with attempted murder, shooting at an inhabited dwelling, three counts of attempted carjacking, and a gang enhancement as to all counts. (People v. Albarran, supra, 149 Cal.App.4th at p. 217.) Before trial, the court denied Albarran's motion to exclude evidence of his gang involvement, concluding the proffered gang evidence was relevant to the issues of motive and intent for the underlying charges in addition to the gang enhancement. (Id. at p. 220.) The jury found the defendant guilty of the charged offenses and found the gang enhancement allegations true. (Id. at p. 222.) After trial, Albarran moved for a new trial, asserting insufficient evidence supported the gang allegations, and admission of irrelevant and prejudicial gang evidence warranted a new trial on all charges. (Id. at p. 222.) The trial court granted Albarran's motion for new trial on his argument that insufficient evidence supported the gang allegations but denied it as to the underlying charges, ruling the gang evidence was relevant to issues of intent. (Ibid.) The appellate court reversed the remaining charges, noting the People "presented a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges." (Id. at p. 227.) Nothing inherent in the facts of the shooting suggested any specific gang motive; the only evidence to support the prosecution's claimed motive that the shooting was to gain respect was the fact of the defendant's gang affiliation. (Ibid.) This was insufficient to counterbalance the "other extremely inflammatory gang evidence [that] was admitted, which had no connection to these crimes." (Ibid.) In short, much of the gang evidence "was so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of Albarran's actual guilt." (Id. at p. 228.) It was "one of those rare and unusual occasions where the admission of evidence ... violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232, italics added.)
People v. Albarran is distinguishable. Here, before ruling on the motion to bifurcate, the trial court conducted a preliminary hearing during which the People presented evidence to establish defendant's gang-related motive for the other substantive charges. This evidence, which helped demonstrate the rivalry between defendant's gang and the victim's gang, was relevant to the disputed issues at trial, including defendant's motive for the shooting. Moreover, the evidence was not so prejudicial that the jury might have been swayed to convict defendant regardless of his actual guilt. Accordingly, based on the information it had before it at the time of its ruling, the trial court did not abuse its broad discretion in denying defendant's motion to bifurcate the gang allegations from the remaining charges.
In any event, even if the trial court had erred by denying defendant's motion to bifurcate, the jury was properly instructed that evidence of gang activity presented at trial was only to be considered for the limited purpose of deciding if defendant had acted with the intent necessary to prove the gang-related crimes and enhancements, or that defendant had a motive to commit the other charged crimes. Jurors are presumed to follow the instructions. (See People v. Avila (2006) 38 Cal.4th 491, 574.) Additionally, the gang-related evidence was no more inflammatory than the evidence of the charged offenses. And the jury in fact acquitted Madrigal on all counts other than the substantive gang offense despite evidence of his gang involvement and the gang's criminal activities. Thus, any error in the trial court's decision to deny the motion to bifurcate was harmless. II. Prunty error
Defendant next challenges his gang enhancements under Prunty, arguing the evidence was insufficient to establish the gang he sought to benefit included the group that committed the predicate offenses under the California Street Terrorism Enforcement and Prevention Act (the STEP Act; § 186.20 et seq.).
A. Relevant Procedural History
After the People rested, defendant moved to dismiss the charges against him pursuant to a section 1118.1 motion, arguing "that no reasonable jury could find ... all the counts, but particularly dealing with the gang count regarding subsets and that the People didn't establish any particular fact that would show that Huron Nortenos, Huron Park Side Nortenos have any connection to the actual Norteno gang." In response, the prosecutor argued with regard to the substantive gang charge:
"[T]he jurors can certainly conclude two of them were acting together as Nortenos. There is ... a big difference ... in this case and [Prunty] .... The discussion here has been Nortenos. The discussion of a gang has been Nortenos. The analysis has been how the Nortenos are a gang, just as the testimony has been the Bulldogs are a gang. Using the detective's phrase, not a cornucopia of gangships or something like that. It is a gang, so we don't have the feudal system that Sacramento and the appellate courts have
dealt with. We don't have it here. We can't have it here. So that argument about the conflict between the feudal lords does not apply in this particular case."
Defense counsel again argued Prunty was "on point with this particular case, [in] that the district attorney at no time presented any facts, which is one of the things they ask for in that particular case .... 'The evidence must be demonstrated in organization or a connection exists in fact.' So I think in this particular [case], there was no evidence presented."
The court denied the request for dismissal, concluding it "believe[d] there was that evidence, and it was specifically in the form of the testimony from the detective, that all of the subgroups of Norteno[s] pay taxes up through the hierarchy, all the way up through the food chain, so ... that is sufficient to interconnect between the various subgroups in Fresno county that are Norteno gang, consistent with the Prunty requirement, and so for that reason ... the jury has sufficient evidence for a reasonable juror to conclude that the alleged offenses were committed, and these defendants were the individuals that committed them."
B. Standard of Review and Applicable Law
1. Substantive gang offense and gang enhancement
"The gravamen of the substantive offense set forth in section 186.22(a) is active participation in a criminal street gang." (People v. Albillar (2010) 51 Cal.4th 47, 55.) The prosecution must prove a defendant "actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and ... willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment." (§ 186.22, subd. (a).) A gang enhancement applies to one who commits a felony "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Id., subd. (b)(1); see People v. Sanchez (2016) 63 Cal.4th 665, 698 (Sanchez).)
"'[T]he prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period.'" (Sanchez, 63 Cal.4th at p. 698; see § 186.22, subd. (f).) Section 186.22, subdivision (e) lists the predicate offenses including, but not limited to, assault with a deadly weapon or by means of force likely to produce great bodily injury as defined in section 245 and burglary as defined in section 459.
2. Prunty— connection between gang subsets required
In Prunty, the California Supreme Court concluded "that where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together." (Prunty, supra, 62 Cal.4th at p. 71.) The prosecution may also "show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization." (Ibid.) "Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22(b)." (Prunty, at p. 72.) "[I]t is not enough ... that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Ibid.)
C. Analysis
Relying on Prunty, defendant argues "there was insufficient evidence for the jury to infer that the gang that [defendant] sought to benefit included the group that committed the predicate offenses under the STEP Act." Defendant argues the evidence established he was involved in the Huron Park Side subset of the Norteño gang, but there was insufficient evidence to establish the individuals involved in the predicate offenses were part of the same subset. The People respond, "In contrast to the evidence presented in Prunty, the prosecution's evidence here regarding the primary activities and predicate offenses of the Norteño criminal street gang showed the required nexus between the various subsets to the greater 'umbrella' criminal street gang." "[T]he evidence showed that the various subsets that identify as Norteños each pay 'taxes' up the chain to the greater Norteño criminal street gang[;] Officer Wilcox testified specifically that each of the ten subgroups of Nortenos in Fresno County ... are required to pay taxes—portions of profits from criminal activities—up the chain of command within the Norteño hierarchy." "Officer Wilcox also testified about the bylaws that the Norteño criminal street gang required every one of its members (no matter their subgroup) to follow—the 14 bonds, which constituted the rules and guidelines under which the Norteño gang operates." The People contend such evidence "is exactly the type of evidence the Court used as an example of what would meet the requirements under section 186.22." We agree with the People.
The Prunty court stated, "proof that different Norteño subsets are governed by the same 'bylaws' may suggest that they function—however informally—within a single hierarchical gang." (Prunty, supra, 62 Cal.4th at p. 77.) "Similarly, proof that several gang subsets conduct independent, but harmonious, criminal operations within a discrete geographical area may show that they are part of a single entity whose bosses have divided up a larger territory." (Id. at pp. 77-78.) Additionally, "the prosecution could introduce evidence showing that different subsets require their members to perform the same initiation activities." (Id. at pp. 79-80.)
Here, defendant notes "the evidence established that [he] identified as a Norteño generally, but also claimed membership in the Huron Park Side subset." Indeed, the evidence showed he had numerous tattoos representing the Norteño gang; a search of his room revealed multiple items representing the Norteños and Huron Park Side Norteños; defendant admitted retrieving a Raiders jersey from his car—clothing associated with the Norteño gang in Huron—before fighting with a rival gang member in the past; he associated with Norteño gang members; and police and Madrigal, an admitted Norteño member, identified defendant as a member of the gang.
Detective Wilcox also confirmed the five people whose certified conviction records were submitted as evidence of predicate offenses were all validated Norteño gang members in Fresno County, and three of the individuals were convicted of either the substantive gang offense or a gang enhancement, further evidencing their gang involvement. The parties stipulated that all five of the individuals (aside from defendant) whose certified conviction records were used to establish predicate offenses were not members of the Huron Park Side Norteños. But the People presented evidence the Huron Park Side Norteños and other Fresno County subsets of the Norteños were part of the larger group of Norteños, and the individuals involved in the predicate offenses were also members of the overarching Norteño street gang in Fresno County. Specifically, Detective Wilcox approximated there are about 10 subsets of Norteños in Fresno County and the People also presented evidence Huron is a city within Fresno County. Detective Wilcox explained the Norteños are a "structured gang" and each of the 10 subsets of Norteños in Fresno County pay taxes up the ladder to the larger Norteño group. He also testified that all Norteño members had to be jumped or blessed into the gang, and the Norteño gang members are governed by the 14 bonds, which are guidelines or rules under which the gang operates. Thus, there was evidence showing the various subsets of the Norteño gang in Fresno County are organizationally connected to each other as well as to the overarching Fresno County Norteño gang.
Defendant argues People v. Nicholes (2016) 246 Cal.App.4th 836 establishes the evidence presented was insufficient to substantiate the requisite connection between the subsets under Prunty; but Nicholes is inapposite. There the defendant was affiliated with a Sacramento Norteño subgroup but the predicate offenses occurred in a different county, and the perpetrators of the predicate crimes were alleged to be members from the other county and subsets distinct from the subset to which the defendant belonged. (Nicholes, supra, at pp. 845-846.) In Nicholes, the gang expert testified generally about the structure of the Norteño street gang and the use of regiment commanders to whom members pay a percentage of their "taxes." (Id. at pp. 846-847.) The court held the evidence was insufficient to establish a sufficient connection between the particular subset in which the defendant was a member and the subsets of which the subjects of the predicate offenses were members. In so holding, the court held "Prunty requires that the prosecution, in a case involving Norteños and testimony that Norteños operate through subsets, introduce evidence specific to the subsets at issue." (Id. at p. 848.)
But here, unlike in Nicholes, defendant and the subjects of the predicate crimes were all from Fresno County. And Detective Wilcox expressly testified the approximately 10 Fresno County subsets pay taxes up to the higher Norteño gang, thereby establishing a connection between the subsets. Thus, unlike in Nicholes, there was evidence establishing a connection between the specific subsets at issue in this case.
In Prunty, our Supreme Court noted it did "not intend to place limits on the theories that the prosecution may advance in attempting to show that various neighborhood-based groups in fact constitute a single 'criminal street gang' within the [STEP] Act's meaning." (Prunty, supra, 62 Cal.4th at p. 77.) We conclude the factual showing here, though close, was sufficient to meet the requirements articulated in Prunty.
Accordingly, we reject defendant's contention. III. Sanchez Error and Ineffective Assistance of Counsel
Defendant next contends Detective Wilcox, the prosecution's gang expert, improperly relied upon and testified to testimonial hearsay. He contends the admissible evidence was insufficient to support his substantive gang conviction and the gang enhancements and, to the extent this issue was waived for failure to object, his counsel provided ineffective assistance.
A. Relevant Factual Background
During trial, the People offered the certified conviction records of Enrique Gonzalez, Octavio Cano, Enrique Sandoval, Miguel Angel Hurtado, Jr., and Joseph Gonzales as evidence of predicate offenses through the testimony of its gang expert, Detective Wilcox. Detective Wilcox opined that each of these individuals was a Norteño gang member. Specifically, he testified:
"[PROSECUTOR:] Q Do you know who Enrique Gonzalez is?
"A Yes.
"Q Based upon your training and experience, actually, your research into it, is Enrique Gonzalez a person who was validated as a Norteno gang member?
"A Yes. [¶] ... [¶]
"Q Do you know who [Octavio Cano] is?
"A Yes.
"Q Based upon your research or training, your experience, your contacts, is that person a member of the Norteno criminal street gang?Defendant did not object to this testimony on any grounds.
"A Yes.
"Q Here in the county of Fresno?
"A Yes.
"Q And was he back then?
"A Yes. [¶] ... [¶]
"Q And Enrique Sandoval, based on your training and experience, contacts, everything we have talked about before, do you know who Mr. Sandoval is?
"A Yes.
"Q And based on the criteria you talked about earlier, was it at this time in 2011, was Mr. Sandoval a Norteno gang member here within the county of Fresno?
"A Yes. [¶] ... [¶]
"Q Let me—and before we get to the next part, at the time of the shooting at the occupied motor vehicle, based upon your training and experience, contacts, and everything else we've discussed with the Nortenos, was [Miguel Angel Hurtado, Jr.,] a member of a criminal street gang, the Nortenos, within the county of Fresno?
"A Yes.
"Q At that time?
"A Yes. [¶] ... [¶]
"Q And on [January 23, 2013], was [Joseph Gonzales] a member of the criminal street gang Norteno, Northerners, here within the county of Fresno?
"A Yes."
Defendant objected to the court taking judicial notice of the related certified conviction records on Prunty and relevance grounds. The trial court overruled the objections.
After Detective Wilcox testified regarding the predicate offenses, outside of the presence of the jury, the court discussed the application of the Supreme Court's opinion in Sanchez:
"THE COURT: ... I do want to make a real record because the objections that have been made, I want to explain why you're getting the rulings that you're getting. Particularly in light of the Sanchez case, that we have discussed previously. Counsel has been good at making half of the objections that would take you into Sanchez. The second half hasn't been made. Objection to foundation as to how somebody knows it would be the first thing. If, then, the explanation as to foundation was hearsay, there should then be a hearsay objection. There has not been one. The court has not been making them on its own accord. And the reason those answers have been coming in are now a part of the record and evidence this jury can consider is because no one has objected to the hearsay nature of those statements. That includes yesterday on every single predicate that was brought in, when the witness was asked is that person, or at that time was that person an active member of the Norteno street gang, followed by a 'yes,' there was no objection whatsoever, so I want the record to be clear that later on, on review, if, which is likely someone finds that to have been hearsay, that would have been objectionable under Sanchez, that has been no objection and the court has not posed its own. Does anybody want to place anything on the record? I don't want any confusion about what's going on. I'm hearing foundation objections. When they've been made, I have sustained them. What has followed is a repeat of a foundation objection. Once he says somebody said they were a Northerner, there is no foundation problem. There is a hearsay problem.
"[MADRIGAL'S COUNSEL]: And frankly, Your Honor, it may be that—I did not make a tactical decision to not make that objection. I have just been so used, for so long to this stuff coming in, that I'm still trying to
learn my way around Sanchez. I did have one other thing I wanted to place on the record.Defendant's counsel did not respond to the court's comments on the record.
"THE COURT: Before you move to that, quite frankly, I lost some sleep last night figuring out exactly how involved I should be in this, but at this point it's an appellate issue, it's no longer something that can be unrung. Yesterday, I don't think there can be any argument, or successful argument that if a gang expert makes a statement that someone was a validated gang member, whether it is a defendant in this case or someone that's a necessary person for a predicate offense for that allegation to be true, that is a case-specific statement. It is not general background about how somebody who wore red is associated with Bulldogs, etc., etc. It is a declaratory statement that the jury is being asked to accept as true. It's hearsay. It would have been sustained if it had been made, but it was not. So I want that record to be clear.
"[MADRIGAL'S COUNSEL]: All right."
As discussed, defendant did not object to Detective Wilcox's referenced testimony about the predicate offenses. However, Madrigal's counsel subsequently objected on foundation grounds to Detective Wilcox's testimony that during one of Madrigal's previous encounters with police, the individual he was apprehended with was a validated Norteño gang member; the trial court sustained such objections.
B. Standard of Review and Applicable Law
1. Application of People v. Sanchez
"Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts." (Sanchez, 63 Cal.4th at p. 676.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.) "An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts." (Ibid.) "An expert is also allowed to give an opinion about what those facts may mean." (Ibid.) Gang experts can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code. (Sanchez, at p. 685.)
What an expert cannot do is relate as true case-specific facts asserted in hearsay statements of which the expert has no personal knowledge unless they are independently proven by competent evidence or are covered by a hearsay exception. (Sanchez, supra, 63 Cal.4th at pp. 676, 686.) In so holding, Sanchez disapproved of the court's earlier precedent in People v. Gardeley (1996) 14 Cal.4th 605 to the extent Gardeley held that an expert's opinion is not hearsay because any statements related by the expert go only to the basis of the expert's opinion. (Sanchez, supra, at p. 686, fn. 13.) It further disapproved of Gardeley for finding the potential prejudicial impact of the expert's testimony was overcome by limiting instructions to the jury. (Sanchez, at p. 686, fn. 13.)
Instead, the Sanchez court concluded "[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.)
Sanchez further held: "If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686.) Thus, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Id. at p. 680.)
Testimonial statements are those "made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Sanchez, supra, 63 Cal.4th at p. 689.) To be considered testimonial, "the statement must be made with some degree of formality or solemnity." (People v. Dungo (2012) 55 Cal.4th 608, 619.) In contrast, nontestimonial statements are statements "whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, at p. 689; see id. at pp. 691-694.) Where a gang expert relies upon, and relates as true, a testimonial statement, "the fact asserted as true [has] to be independently proven to satisfy the Sixth Amendment." (Id. at p. 685.)
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard described in Chapman v. California (1967) 386 U.S. 18. (See Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. (See id. at pp. 698-699.) The erroneous admission of nontestimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Crawford v. Washington (2004) 541 U.S. 36, 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.) The Watson test asks if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (People v. Watson, supra, at p. 836.)
2. Ineffective assistance of counsel
A defendant claiming ineffective assistance of counsel must satisfy Strickland's two-part test requiring a showing of counsel's deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.) The prejudice prong requires a defendant to establish "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) Prejudice must be affirmatively proved. (People v. Maury (2003) 30 Cal.4th 342, 389.)
C. Analysis
Defendant argues we must reverse his conviction for participation in a criminal street gang (count 8; § 186.22, subd. (a)) and the gang enhancements as to counts 4, 5, and 6 (§ 186.22, subd. (b)(1)(C)) because the People's gang expert testified to case-specific hearsay in violation of defendant's right to confrontation. He contends Detective Wilcox testified to details of predicate crimes and opined as to the gang status of people alleged as members of the Norteño gang though the People did not elicit any evidence Detective Wilcox "personally investigated these crimes." Defendant concedes his counsel failed to object to the challenged testimony but contends his counsel rendered ineffective assistance. He contends "[t]here was no legitimate reason why defendant's trial counsel would forgo objecting to Wilcox's predicate offense testimony." He also asserts he was prejudiced because without Detective Wilcox's objectionable comments regarding the predicate offenses, there was insufficient evidence to establish that Norteño gang members engage in a "pattern of criminal activity," an element of both the substantive gang offenses and the gang enhancements.
1. Forfeiture
Defendant did not object below to the testimony he now challenges and, thus, the objections are forfeited. "[T]he failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted. [Citations.]" (People v. Stevens (2015) 62 Cal.4th 325, 333; see Evid. Code, § 353, subd. (a); People v. Ramos (1997) 15 Cal.4th 1133, 1171 [a defendant who does not object at the trial court to the admission of evidence (as required under Evid. Code, § 353) fails to preserve the issue on appeal].) And this is not a case where the trial was held before the Supreme Court's decision in Sanchez issued such that defendant can argue there was an unforeseen change in the law. (See People v. Flint (2018) 22 Cal.App.5th 983, 996-998 [Sanchez claim not forfeited because objections would have been futile] and People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508 [same]; cf. People v. Blessett (2018) 22 Cal.App.5th 903, 940-941, rev. granted Aug. 8, 2018, S249250 [Sanchez claim forfeited because "the change in the law was foreseeable" and objections would not have been futile].)
2. Defendant has not established it is reasonably probable admission of inadmissible hearsay affected the verdict
Nevertheless, defendant contends his counsel was ineffective for failing to object because the trial court stated it would have sustained the objection and, thus, evidence of the gang status of the subjects of the predicate offenses would not have been admitted. He argues, had his counsel objected and the challenged evidence been excluded, the remaining evidence would have been insufficient to establish a pattern of criminal activity as required to sustain his conviction for the substantive gang offense and the gang enhancements. On the record before us, we cannot conclude defendant has met his burden of establishing the requisite degree of prejudice necessary to establish ineffective assistance of counsel on direct appeal.
This case is distinguishable from People v. Moreno (1987) 188 Cal.App.3d 1179 on which defendant relies. In Moreno, our court concluded counsel provided ineffective assistance by failing to object to out-of-court statements by witnesses that were used to establish the corpus delicti of the charged Vehicle Code offenses. (Moreno, at pp. 1190-1191.) In so holding, the court concluded "these statements appear to be the only evidence the prosecution was prepared to offer to satisfy its burden of establishing the corpus delicti of the two misdemeanor Vehicle Code violations." (Id. at p. 1191.) The Moreno court further held that had the bystanders' hearsay statements been excluded, the defendant's extrajudicial confession would not have been admitted because the prosecution failed to establish the corpus delicti. (Ibid.) The court concluded that, without the admission of the hearsay evidence and the defendant's confession, it was reasonably probable a result more favorable to the defendant could have been reached. (Ibid.)
Here, in the challenged testimony, Detective Wilcox opined, based on his research, training, experience, and contacts, the subjects of the predicate offenses are Norteño members. Though the trial court stated it would have sustained a Sanchez objection, the challenged testimony, on its face, does not establish that it violates Sanchez or is hearsay of which Detective Wilcox had no personal knowledge. The record as it stands is unclear as to whether Detective Wilcox was testifying to out-of-court statements of which he had no personal knowledge or if his testimony was based on his personal contacts and experience. We are "limited to the record on appeal and may not speculate about matters outside that record." (People v. Moreno, supra, 188 Cal.App.3d at p. 1185.) Accordingly, defendant has not made an affirmative showing of prejudice—that had defense counsel objected, there was a reasonable probability such testimony related to these individuals' gang membership status would not have been admitted and the People would not have otherwise been able to establish the elements of the gang enhancement and substantive gang offense.
Notably, prosecutors can rely on evidence of the defendant's commission of a currently charged offense to satisfy the "pattern of criminal gang activity" requirement in section 186.22. (People v. Tran (2011) 51 Cal.4th 1040, 1046; People v. Loeun (1997) 17 Cal.4th 1, 10.) The attempted commission of an unlawful homicide and burglary are qualifying offenses in section 186.22, subdivision (e). Here, the jury found defendant guilty of both attempted murder and residential burglary. The jury was also instructed that if it found defendant guilty of the crimes in this case, it could consider the crime in deciding whether a pattern of gang activity was proven. Thus, the jury could consider the current offense as one of the predicate offenses necessary to establish a pattern of criminal gang activity if it concluded defendant was a Norteño member.
We reject defendant's contention.
IV. Sufficient Evidence Supports the Substantive Gang Conviction
Defendant next argues the substantive gang conviction must be reversed for insufficient evidence because there was no evidence he committed any offense with another gang member as required under section 186.22, subdivision (a).
A. Standard of Review
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Edwards (2013) 57 Cal.4th 658, 715.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
B. Applicable Law
"The plain, unambiguous language of [section 186.22, subdivision (a)] targets any felonious criminal conduct, not felonious gang-related conduct." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131.) Additionally, "[t]he plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (People v. Rodriguez, supra, at p. 1132; see id. at p. 1134 ["The Legislature thus sought to avoid punishing mere gang membership in section 186.22(a) by requiring that a person commit an underlying felony with at least one other gang member"].) "One may promote, further, or assist in the felonious conduct by at least two gang members by either (1) directly perpetrating the felony with gang members or (2) aiding and abetting gang members in the commission of the felony." (People v. Johnson (2014) 229 Cal.App.4th 910, 920-921.)
C. Analysis
Defendant argues "there was no substantial evidence [he] was acting in cooperation with another gang member" as necessary to support his conviction for street terrorism (count 8). He contends, given the jury's verdict acquitting Madrigal of attempted murder, assault, and burglary, the jury was not convinced Madrigal was present and "no evidence was provided to the jury about the identity or gang affiliation of the third man." The People respond "[n]ot only did the evidence show that [defendant] shot Pinon with the aid of two other people, thereby not acting alone, the evidence showed that those two people were Norteño gang members."
We conclude there was sufficient evidence to support the jury's conclusion defendant committed "felonious criminal conduct" with at least one other gang member. As the People note, Detective Wilcox testified Norteño gang members will not commit crimes with others unless they are fellow Norteños or someone whom the person trusts will become a Norteño member. And there was testimony there were two other men with defendant on the night of the shooting, one of whom was also carrying a gun and wearing a red bandana, the traditional Norteño color. Wendy testified she tried to close the door, screamed, and yelled because she recognized the three men who appeared outside the door as Norteños and that Pinon was a Bulldog. And Erika reported that defendant and one of the other men shot guns. Thus, even disregarding the evidence linking Madrigal to the shooting, there was other evidence the jury could have relied upon to conclude another gang member directly participated or aided and abetted defendant in committing the shooting (the felonious criminal conduct).
Notably, the People also presented evidence Madrigal, a self-admitted Norteño gang member, was involved in Pinon's shooting. True, the jury acquitted Madrigal of the attempted murder, burglary, and assault charges, but it still found him guilty of the substantive gang offense. And section 954 provides, in relevant part, "An acquittal of one or more counts shall not be deemed an acquittal of any other count." In other words, although the jury's verdicts as to Madrigal could be considered factually irreconcilable or inconsistent, both verdicts must be credited. (People v. Abilez (2007) 41 Cal.4th 472, 513.) "[The] inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict." (People v. Lewis (2001) 25 Cal.4th 610, 656.) And an inherently inconsistent verdict will stand on its own if otherwise supported by substantial evidence in the record. (Ibid.)
Even without evaluating the validity of Madrigal's conviction for the substantive gang offense, which is not before us, the record indisputably contains evidence, including an eyewitness identification, that Madrigal was with defendant during the shooting and also held a gun. The jury could have considered evidence of Madrigal's involvement in Pinon's shooting in finding both Madrigal and defendant guilty of the substantive gang offense. (See § 954; see also People v. Cruz (1996) 13 Cal.4th 764, 771 ["A judgment of conviction establishes the necessarily adjudicated elements of the crime involved in the conviction"].) Viewing the entire record in the light most favorable to the verdict, as we must, we conclude substantial evidence supports the jury's conclusion defendant engaged in felonious criminal conduct with at least one other gang member.
V. Sufficient Evidence Supports the Gang Enhancement
Defendant also challenges his gang enhancement on the grounds insufficient evidence supports the jury's determination he intended to commit the offenses for the benefit of, at the direction of, or in association with a criminal street gang and that the crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members.
A. Relevant Factual Background
The prosecutor posed Detective Wilcox with a hypothetical mirroring the facts of the instant case.
"[PROSECUTOR] Q Now, let me ask you a hypothetical. Let's use your knowledge, and everything you've talked about, and let's pretend for a moment, it's a hypothetical that you have some gang members, and there is a rival gang member, and those gang members go into the home of the rival, uninvited, with a gun, and they shoot the rival. Applying your expertise as a gang expert, just those are very general facts, but just with that, does that offense make sense?
"A Yes.
"Q Explain, why does that, and, again, it's just a hypothetical. Why does that hypothetical make sense?
"A Well, that hypothetical makes sense because rival gangs members are attacking—excuse me, gang members are attacking rival gang members.
"Q Okay. Let me add a fact to the home. There are now other people in the home, family members of that rival. Does that make sense within your expertise? [¶] ... [¶]
"THE WITNESS: Yes.
"[PROSECUTOR] Q Why?
"A Because committing a violent crime in front of witnesses increases the audacity of the crime, which shows how hard core and brazen the individuals who are gang members are, and that benefits the gang."
Deputy Wilcox further testified, based on these circumstances, it was his opinion such crimes would benefit the gang:
"[PROSECUTOR] Q How does that, in this hypothetical, how would that benefit that gang, the group that went in, the larger gang of that group that went in?
"A Because it shows that if you are a rival to a gang, to the Norteno gang—
"Q Well, we're not talking about that in our hypothetical. I didn't say Norteno.
"A Sorry. It shows that regardless of where you are, you are not safe.
"Q And how does that directly benefit the gang, that knowledge, you are not safe?
"A This increases the fear that a rival gang member would have of another gang, and fear or respect of that other gang allows that other gang to operate more efficiently because the crimes that they commit will often go more unreported or unchallenged by others.
"Q Okay. Now let me ask you this. Let me throw[] this into that same hypothetical. I'm the neighbor, not a gang member, not a rival, I'm just a neighbor, and this happens next-door. In that hypothetical, does that assault, that shooting, does that affect me in any way to the benefit of the gang? [¶] ... [¶]
"THE WITNESS: Yes.
"[PROSECUTOR] Q How does that benefit the gang in this made-up hypothetical? [¶] ... [¶]
"THE WITNESS: Because in this hypothetical, a crime was committed with individuals who actually witnessed the physical crime. This crime still happened within a community, and the community will often have knowledge of this crime. The individuals who are in the community, who have heard [of] this crime, will often be in fear of the individuals who committed this crime. This fear increases the likelihood that future crimes by those who committed it, going into a residence, will go unreported by others, citizens, and unchallenged by rival gang members if they, too, were committing.
"Q I'll add one last part to the hypothetical. Does it change anything in your analysis here if the rival this victim, rival, whatever, and the group that comes in, the aggressors, what if they know each other personally? Either they went to school together, or somehow, they know each other face-to-face, does that change anything for your conclusion?
"A Yes.
"Q How?
"A It's an example of the brazenness, and the audacity of this crime, where someone goes into another residence in front of witnesses who know them and commit a crime.
"Q Does the part that they are both—in my hypothetical I said they're rivals. Does that fact play into this at all?
"A Yes.
"Q How?
"A It shows that members of a gang will commit such a brazen act in front of witnesses who could possibly testify against them or report this crime in the future. It shows that the individuals who committed this crime
disregard this as something they possibly do not have to think about. [¶] ... [¶]
"THE WITNESS: Within the gang community there is a term called snitching. Snitching means telling law enforcement or authorities about something that has occurred. When a community or individuals are in such fear of other individuals that makes it to where they do not want to report a crime that occurred, or to not provide full information as to how or who committed that crime, this benefits the gang. This benefits the gang because individuals within a gang are allowed to commit crimes in public, in view, with at least the belief that no one is going to say anything, because if they do, they're not safe, and there will be reprisals."
B. Analysis
Defendant asserts, independent of Prunty, insufficient evidence supports the jury's conclusion the attempted murder was committed (1) for the benefit of, at the direction of, or in association with any criminal street gang and (2) with the intent to promote, further, or assist criminal activity conducted by gang members as required by section 186.22, subdivision (b). He contends that though there was evidence defendant and Pinon belonged to rival gangs, Pinon considered defendant neither a friend nor an enemy, and there was no evidence upon which Detective Wilcox could base his opinion defendant committed the crime for the benefit of the Norteño gang. The People respond the evidence established multiple gang members committed the crime together, and the jury could thus infer defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.
We conclude sufficient evidence supports the jury's conclusions. Here, there was evidence defendant and Pinon belonged to rival street gangs and that three men identified as Norteños, including defendant, entered Pinon's home and shot him in front of multiple eyewitnesses. Wendy testified defendant was wearing a hooded sweater with the word "Cali," a bear, and a star on it and another suspect had a red bandana covering his face. Detective Wilcox testified: "The [California] bear," "the five-point star," and the color red are used to represent the Norteño gang. Detective Wilcox explained how such a brazen crime benefitted defendant's gang. And, as discussed ante, there was substantial evidence the crime was committed with another gang member. (See People v. Albillar, supra, 51 Cal.4th at p. 68 ["if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members"].)
On this record, we conclude there was sufficient evidence from which the jury could have concluded the attempted murder was committed (1) for the benefit of, at the direction of, or in association with a criminal street gang and (2) with the intent to promote, further, or assist criminal activity conducted by gang members as required by section 186.22, subdivision (b). (See, e.g., People v. Livingston (2012) 53 Cal.4th 1145, 1170-1171 [evidence defendant, a gang member, was with fellow gang members when he fired shots at rival gang member was sufficient to support gang enhancement allegation; "a driveby shooting by a gang member of a rival gang member is a prototypical example of a gang-related crime"]; see also People v. Jasso (2012) 211 Cal.App.4th 1354, 1376-1377 [evidence defendant knew victim to be a Sureño, victim was dressed in the Sureño color when defendant shot at him, and that there was no obvious reason for defendant to shoot at victim, coupled with expert testimony regarding Norteños' honor-based culture, their rivalry with the Sureños, and motifs that active Norteño members use to identify themselves, was sufficient to support gang enhancement]; People v. Albillar, supra, 51 Cal.4th 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)"].)
VI. Prison Term for Substantive Gang Conviction Must Be Stayed Under Section 654
Defendant argues, and the People concede, his term for the substantive gang offense (count 8) should have been stayed under section 654 rather than ordered to run concurrently. "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) In People v. Mesa (2012) 54 Cal.4th 191, the California Supreme Court held section 654 precludes punishing a defendant for active participation in a criminal street gang (§ 186.22, subd. (a)) where the only evidence of such prohibited participation was the commission of a charged offense for which the defendant was also convicted and sentenced. (Mesa, at pp. 197-198.)
Here, the jury convicted defendant of a substantive gang offense. (§ 186.22, subd. (a).) The trial court imposed a two-year concurrent term. Defendant's conviction for active participation in a criminal street gang was based on the commission of the other offenses for which he was convicted and sentenced, namely, attempted murder, assault with a firearm, and burglary. Accordingly, the trial court was required to stay defendant's two-year term for the substantive gang offense rather than run it concurrently with his other terms. (See § 654, subd. (a).) Thus, we accept the People's concession and conclude the abstract of judgment must be amended to reflect the term imposed on count 8 is stayed pursuant to section 654. VII. Entitlement to Limited Remand for Consideration of Youth in Sentencing Under People v. Franklin
Defendant next asserts he is entitled to a limited remand because his counsel rendered ineffective assistance by failing to raise the mitigating factor of his youth during sentencing.
A. Relevant Factual Background
During the February 14, 2017, sentencing hearing, before the court pronounced defendant's sentence, defense counsel argued, "[W]hen this crime was committed, [defendant] just turned 18. He is under 25 currently. I think it is cruel and unusual, I'm not sure for whatever if the Court is anticipating giving him anything above 30 something years to life, I'm not sure exactly where the Court is going to fall at this point, but I would say that he—this is cruel and unusual, that he should have more than an opportunity to get himself back on parole. [¶] This is an individual who in many ways is a victim of crime life, and from his statements alone to the Court that he does have regret that did have [sic] anger issues that he wants to work out, so it would give him the best opportunity possible. And I know his mother is present and may be [sic] want[s] to say something." Defendant's mother then stated on the record that defendant "didn't do it."
B. Standard of Review and Applicable Law
In 2013, the Legislature enacted Senate Bill No. 260 (2013-2014 Reg. Sess.), codified in section 3051. (Franklin, supra, 63 Cal.4th at p. 276.) This statute provides for youth offender parole hearings that guarantee juvenile offenders a meaningful opportunity for release on parole. (§ 3051, subd. (e).) Juvenile offenders who committed a "controlling offense" prior to reaching a specified age are entitled to a parole hearing after serving a designated period in custody. (§ 3051, subd. (b).) The "controlling offense" is "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (§ 3051, subd. (a)(2)(B).)
As originally enacted, section 3051 applied where the controlling offense was committed before the offender was 18 years old. (In re Trejo (2017) 10 Cal.App.5th 972, 981 & fn. 6.) By an amendment that became effective on January 1, 2016, the Legislature extended the availability of youth offender parole hearings to offenders who were under 23 years old when they committed their controlling offenses. (Stats. 2015, ch. 471, § 1; see Trejo, supra, at p. 981 & fn. 6.)
Our Supreme Court has concluded that youthful offenders should have an opportunity in the trial court to make "an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors ... in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime ...." (Franklin, supra, 63 Cal.4th at p. 284; see People v. Perez (2016) 3 Cal.App.5th 612, 619.) Where such opportunity was not afforded, our Supreme Court has endorsed a limited remand procedure for purposes of making an appropriate record. (Franklin, supra, at p. 284.)
C. Analysis
Defendant argues his counsel was ineffective for failing to present evidence related to the mitigating qualities of youth and by not filing a sentencing memorandum or presenting any evidence, other than the brief statement by defendant's mother, at the sentencing hearing even though defendant was facing the possibility of a sentence of life without the possibility of parole. The People assert defendant has not met his burden of establishing ineffective assistance because defense counsel's argument during the sentencing hearing "made clear the defense's desire to make a record pursuant to Franklin." Additionally, the People argue, defendant "speculates that additional mitigating evidence exists and that counsel simply failed to obtain it ..., [but] it is just as likely that counsel did investigate but uncovered no other mitigating evidence or, indeed, that he uncovered aggravating evidence." They also contend defendant has not established prejudice because he failed to allege "what possible alternative outcome additional mitigating evidence would have provided him, reasonable or otherwise."
Franklin was decided approximately nine months before defendant's February 2017 sentencing hearing in this matter. In Franklin, our Supreme Court explained the new statutory parole scheme for youth offenders "contemplate[s] that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board's consideration." (Franklin, supra, 63 Cal.4th at p. 283; see § 4801, subd. (c).) This information can come from family members, friends, school personnel, faith leaders and people from community-based organizations who have knowledge about the defendant before the crime. (§ 3051, subd. (f)(2); see Franklin, supra, at p. 283.) Gathering this information is usually more easily done at or near the time of the juvenile offender's offense rather than decades later because of fading memories, deaths, lost or destroyed records, or witnesses relocating. (Franklin, at pp. 283-284.) At the time of the parole eligibility hearing, the Board of Parole Hearings is to consider any "'subsequent growth and increased maturity'" of the juvenile offender. (Id. at p. 284.)
In this case, section 3051 was in effect when defendant was sentenced in February 2017 and Franklin had already been decided. However, there is no mention of Franklin or defendant's eventual youth offender parole hearing in the appellate record. While the probation report discusses some of defendant's characteristics and circumstances at the time of the offense, it makes no mention of Franklin or defendant's future parole eligibility hearing.
Although defendant was sentenced about nine months after Franklin issued, it is not clear he had a "sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) Neither the trial court nor the parties made any reference to such a hearing, and they did not discuss whether there was additional defense evidence that should be preserved for later review. In the interest of justice, we will direct the trial court to determine whether defendant had an adequate opportunity to make an accurate record of the information contemplated in sections 3051, 4801, and Franklin, supra, 63 Cal.4th at pages 283-284.
As our Supreme Court explained in Franklin, if the trial court determines defendant did not have sufficient opportunity to make an accurate record of this information, "then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence." (Franklin, supra, 63 Cal.4th at p. 284.) Defendant may place on the record any documents, evaluations or testimony (subject to cross-examination) that may be relevant to his eventual board hearing. (Ibid.) The prosecution may also put on the record any evidence demonstrating defendant's "culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Ibid.) The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of defendant's "characteristics and circumstances at the time of the offense" so the board can later determine whether he is eligible for parole. (Ibid.) Because we remand this matter, we need not address defendant's related claim of ineffective assistance of counsel.
VIII. Defendant is Entitled to Remand for Court to Exercise Its Discretion Under Senate Bill 620
Senate Bill 620, signed into law on October 11, 2017, amended sections 12022.5 and 12022.53 to provide the trial court with discretion to dismiss, in furtherance of justice, firearm enhancements imposed pursuant to sections 12022.5, subdivision (c), and 12022.53, subdivision (h). The new law took effect on January 1, 2018. The law is applicable to those parties, like defendant, whose appeals are not final on the law's effective date.
Here, the jury found true a firearm enhancement pursuant to section 12022.53, subdivision (d) as to count 4 (attempted murder) and firearm enhancements pursuant to section 12022.5, subdivision (a) as to counts 4, 5, and 6 (attempted murder, assault with a firearm, and first degree residential burglary, respectively). At the time defendant was charged, convicted, and sentenced, sections 12022.5 and 12022.53 did not provide the trial court with discretion to strike these firearm enhancements. Defendant now seeks remand for a new sentencing hearing to permit the court to exercise its discretion regarding whether to strike the firearm enhancements in light of Senate Bill 620. The People concede Senate Bill 620 applies retroactively, but contend remand is not appropriate because "it is evident the trial court would not have exercised its discretion to strike the firearm enhancement."
The Supreme Court has held:
"'A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, ... 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; see People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
The People cite People v. Chavez (2018) 21 Cal.App.5th 971 in support of their position a remand is unnecessary. They argue, in Chavez the court imposed the harshest sentence possible and made numerous negative comments about the defendant, clearly showing the court would not have exercised its new discretion to strike the firearm enhancements. They contend, similarly here, remand would serve no purpose given the trial court's indication this case was "an aggravated one."
But the Chavez court modified its opinion on rehearing and ultimately ordered remand for the trial court to exercise its discretion regarding whether to strike the firearm enhancements. (People v. Chavez (2018) 22 Cal.App.5th 663, 712-713.) Citing the standard articulated in People v. Gutierrez, supra, 58 Cal.4th 1354, the Chavez court held remand is required unless the record clearly indicates the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. (Chavez, at p. 713.) The Chavez court ordered the case be remanded, noting the trial court did not impose "the maximum sentence possible" and "did not ... make any ... statement clearly indicating that it would not have exercised discretion to strike or dismiss the section 12022.53, subdivision (h) enhancement even if it had the discretion to do so at the time of [the defendant's] sentencing." (Id. at p. 714.) "Absent such a clear indication, the appropriate remedy is to remand for resentencing to allow the trial court to consider whether to exercise its discretion to strike or dismiss the section 12022.53, subdivision (h) enhancement under section 1385." (Ibid.) Accordingly, Chavez supports a conclusion remand is proper on the record before us.
Here, the trial court sentenced defendant to the middle terms, as opposed to the upper terms, for each of his convictions. In choosing the middle terms, the court noted the case "could easily be viewed as aggravating, [but] most of the factors the Court would be using for finding the aggravated term are wrapped up in the enhancements." It imposed additional terms for the gang enhancements, noting the 25 years-to-life term for the personal use of a firearm was a "mandatory term" the court imposed without further comment. This record does not reflect the court knew it had discretion to strike defendant's firearm enhancements, nor does it reflect a clear indication by the trial court it would not have struck these enhancements if it had the discretion to do so.
Thus, while we offer no position on how the trial court should act when exercising its newfound discretion under Senate Bill 620, we conclude the trial court should be provided the opportunity to exercise said discretion on remand.
DISPOSITION
The matter is remanded to (1) afford both defendant and the People an adequate opportunity in accordance with Franklin, supra, 63 Cal.4th 261 to make a record of information that will be relevant to the parole authority as it fulfills its statutory obligations under sections 3051 and 4801, and (2) to permit the trial court to exercise its discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h), as amended by Senate Bill 620, and, if appropriate following exercise of that discretion, to resentence defendant accordingly. The trial court is directed to prepare an amended determinate abstract of judgment reflecting any changes in defendant's sentence, including a stay on count 8 for street terrorism, and showing the total time imposed is 17 years, and to forward a copy of the amended determinate abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.