Opinion
C083218
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. R.G. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F03886)
Defendants R.G. and E.G., Norteño gang members who were 16 and 17 years old, respectively, fired multiple rounds at a house occupied by Tongan Crip gang members. Roy Ravana, who was staying at the house, was in the front yard doing yard work with a friend, K.O., when defendants opened fire. Ravana retrieved a gun from the house and returned fire. He was killed in the ensuing firefight. K.O. was also hit by one of defendants' bullets, but was not killed.
Defendants were convicted by jury of second degree murder. The jury also found various firearm enhancement allegations to be true, including the personal and intentional discharge of a firearm causing death, and further found defendants committed the murder 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. Each defendant was sentenced to serve an aggregate indeterminate term of 40 years to life in state prison.
The jury acquitted defendants of first degree murder and also acquitted them of attempted murder.
Defendants jointly raise a multitude of contentions on appeal. We begin by addressing (1) defendants' challenge to the sufficiency of the evidence to support the gang enhancements. Concluding the evidence does not support these enhancements, we need not address three additional claims related to the enhancements. Turning to defendants' remaining claims of error, they contend: (2) the trial court prejudicially abused its discretion and violated their constitutional rights by declining to bifurcate the gang enhancements from the charged offenses; (3) the trial court prejudicially erred and also violated defendants' constitutional rights by improperly instructing the jury on causation with respect to the most serious firearm enhancement; (4) the cumulative prejudicial effect of the foregoing claims of error requires reversal; (5) we must remand the matter for a new sentencing hearing because Senate Bill No. 620 (2017 - 2018 Reg. Sess.) that became effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1 & 2 (SB 620)), applies retroactively to cases not yet final on appeal; (6) we must also remand the matter to the juvenile court for a juvenile transfer hearing because defendants were juveniles at the time of the murder and Proposition 57 (as approved by voters Gen. Elec., Nov. 8, 2016, eff. Nov. 9, 2016) also applies retroactively; and (7) we must finally remand of the matter under People v. Franklin (2016) 63 Cal.4th 261 (Franklin). The Attorney General concedes the latter three issues, except as to R.G. with respect to a Franklin remand. We accept the first two concessions and shall order the appropriate remands. We disagree, however, with defendants' bifurcation, instructional error, cumulative prejudice, and Franklin claims.
These claims are: the trial court prejudicially erred and violated defendants' right of confrontation by allowing the prosecution's gang expert to relate testimonial case-specific hearsay to the jury; the trial court also prejudicially erred and further violated their constitutional rights by failing to instruct the jury on the elements of the offenses the prosecution relied upon to establish the Norteño gang's primary activities and pattern of criminal gang activity; and the trial court should have stricken rather than stayed the gang enhancements. To the extent defendants argue the first of these claims of error also requires reversal of their murder convictions, we conclude any assumed error was harmless beyond a reasonable doubt. This is because the gang expert's conclusion defendants were Norteño gang members was supported more by his personal interaction with them as one of the arresting officers, and his review of photographs showing them displaying gang signs, than it was by his review of arguably testimonial case-specific hearsay. (See People v. Sanchez (2016) 63 Cal.4th 665, 677 [gang expert may give opinion a certain tattoo in an authenticated photograph showed the person depicted belonged to a gang]; People v. Anthony (2019) 32 Cal.App.5th 1102, 1139 [testimony about the significance of gang tattoos and gang signs depicted in photographs admissible as background information].)
In sum, we shall modify the judgments to strike the gang enhancements, conditionally reverse the modified judgments, and remand these matters to the juvenile court for juvenile transfer hearings. If that court determines it would have transferred either defendant to a court of criminal jurisdiction because he was not, at the time his case was originally filed in the trial court, "a fit and proper subject to be dealt with under the juvenile court law" (Welf. & Inst. Code, § 707.1, subd. (a)), his murder conviction and firearm enhancement findings are to be reinstated. If, however, the juvenile court finds it would not have so transferred either defendant, then it shall treat that defendant's conviction and enhancement findings as juvenile adjudications and impose an appropriate disposition within its discretion. Should either defendant's conviction and enhancement findings be reinstated, his matter shall return to the trial court for a new sentencing hearing and an exercise of discretion under SB 620. In all other respects, the modified judgments are affirmed.
FACTS
In June 2014, Ravana was staying at his friends' house in the South Oak Park neighborhood of Sacramento. These friends, R. and T. K., lived in a small two-story house with their parents on Baker Avenue, at the corner of that street's intersection with 48th Street (the K.'s house). R. and T. were Tongan Crip gang members. At the time, that gang was involved in hostility with a subset of the Norteño gang, Varrio Franklin Boulevard.
Defendants were both Norteño gang members. We recount the gang evidence in greater detail in the discussion portion of the opinion. For present purposes, it will suffice to note that while the prosecution's gang expert was unable to determine whether R.G. belonged to a specific subset of the Norteño gang, he was able to validate E.G.'s status as an active member of the Varrio Franklin Boulevard subset.
The Murder
On June 9, 2014, at around noon, defendants climbed onto a single small bicycle near the north end of Howard Avenue, a short distance from the K.'s house. It took a few minutes for them to situate themselves on the bicycle, apparently because they were armed with two handguns and a rifle. Ultimately, the two headed south on Howard Avenue with E.G. operating the bicycle and R.G. sitting on the handlebars holding the rifle inside a trench coat. A witness they passed on Howard Avenue, A., testified he could see the barrel of the rifle protruding from the coat as they passed.
In order to protect witness identities, we identify various individuals by letters not corresponding to their names, but simply in alphabetic order based on when they are referenced in this opinion.
Defendants continued south and made their way over to the intersection of Baker Avenue and 48th Street. Meanwhile, Ravana was in front of the K.'s house helping his friends' mother with yard work. One of his friends, K.O., was also helping out. He had just arrived and was hoping to smoke marijuana with Ravana after they were finished with the yard work. As K.O. was putting leaves in a trash bag, defendants opened fire from the southwest corner of the intersection.
A witness who lived on 48th Street, less than a block away, was outside his house with a view of the street when he heard the gunfire. This witness, B., saw defendants firing at the upper level of the K.'s house. E.G. was firing a handgun from the bicycle while moving northbound on 48th Street; R.G. was on foot, moving alongside the bicycle while firing the rifle. As defendants opened fire on the house, Ravana ran inside and emerged with a gun that looked to B. to be an "Uzi" submachine gun. Ravana ran into the street and fired a few rounds at defendants, who returned fire as they continued up 48th Street.
One of the bullets fired by defendants struck Ravana in the jaw, fracturing his jawbone and traveling through his mouth before partially severing his spinal cord and exiting out the back of his neck. Ravana immediately collapsed and died in the street.
Another of the bullets fired by defendants struck K.O. in the lower leg. K.O. survived this injury and testified at trial, although his testimony was internally inconsistent as to whether he was hit during an initial volley from defendants or while defendants and Ravana were exchanging rounds. During K.O.'s direct examination, he testified to hearing what he thought were firecrackers while putting leaves in a trash bag. He then felt his foot go numb. Falling to the ground and grabbing his foot to try to understand the cause of the numbness, K.O. noticed blood on his hands, realized he was shot, and passed out. During cross-examination, however, K.O. claimed that after he heard what he thought were firecrackers, he turned around and saw Ravana shooting at defendants, at which point he saw defendants returning fire. K.O. could not see whether or not Ravana chased defendants into the street because he was hit at that point and passed out. K.O. then agreed with defense counsel's statement that Ravana "shot first," but later clarified that he first heard what he thought were firecrackers, and after realizing he was hit, fell to the ground and then saw Ravana shooting at defendants. Still later, during redirect, K.O. claimed: "I remember [is Ravana] shooting, and then I got shot after."
Regardless of when the bullet that struck K.O. was fired, his testimony that he heard what he thought were firecrackers prior to seeing Ravana firing at defendants is consistent with B.'s account of events, specifically that defendants fired upon the house, after which Ravana returned fire and was killed in the ensuing firefight.
B.'s account of events was also largely consistent with testimony from a third witness, C., who lived across Roosevelt Avenue. She heard an initial set of gun shots that were "spaced out" and sounded "almost like a shotgun or a rifle type sound," followed immediately by a set of gun shots that sounded like "maybe a 9 millimeter or something small like that, more of a handgun that goes quick in succession." After these sets of gun shots, there was a brief pause in the gunfire, during which C. moved to her living room window to look outside at 48th Avenue, at which point she saw E.G. on the bicycle "going really fast" and R.G. following on foot pointing a long gun. After defendants crossed Roosevelt Avenue, C. heard a third set of gun shots that sounded like the first. She then looked down 48th Street towards Baker Avenue and saw someone lying in the street.
Defendants' Flight and Apprehension
After Ravana collapsed in the street, defendants continued north on 48th Street, firing additional rounds towards the K.'s house as they crossed Roosevelt Avenue. One block north, A. saw defendants a second time. He heard the gunfire from 48th Street and Parker Avenue and quickly positioned himself behind a telephone pole as defendants approached. E.G. was again operating the bicycle with R.G. on the handlebars. When defendants got to A.'s location, R.G. got off the bicycle. The rifle appeared to be burning his leg beneath the trench coat, causing him to try to wrap part of the coat around the barrel as he continued up Howard Avenue on foot. Two blocks north, at the intersection of Howard and 17th Avenues, E.G. abandoned the bicycle in front of a house and he and R.G. disappeared down a long driveway.
Law enforcement officers arrived on the scene within minutes of the shooting. Detective Shaun Hampton arrived a short time later, and after speaking with other officers at the scene, he decided to go to the intersection of Howard and 17th Avenues with Detective Lizardo Guzman, who was also the prosecution's gang expert, to search that area for potential evidence. When they arrived, Hampton was directed to the abandoned bicycle by a resident of an adjacent house. Hampton and Guzman then walked up Howard Avenue on opposite sides of the street. When Hampton reached the driveway mentioned previously, he saw defendants standing beneath a tree near the back of the house. E.G. appeared to be helping R.G. place a rifle in his pants. After Guzman was alerted to the situation, the detectives announced their presence and took defendants into custody without incident.
R.G. had a .30-caliber carbine rifle in his left pant leg and a 9-millimeter semiautomatic handgun in his waistband. In his pockets were two large capacity magazines and one smaller capacity magazine, each loaded with .30-caliber ammunition, some loose ammunition, and a red bandana. E.G. was holding a cell phone and had a .357 Magnum revolver in his waistband. He was wearing a Chicago Bulls hat embroidered with the words "Active" and "Bully." Among other evidence to be recounted later in this opinion, the bandana and the hat indicated defendants' membership in the Norteño gang, with the hat further indicating E.G.'s membership in the Varrio Franklin Boulevard subset. An empty box of .357 Magnum ammunition was also found in the backyard of the house where defendants were arrested.
Evidence at the Crime Scene
Returning to the crime scene, 36 expended shell casings were found at various locations near the K.'s house. Eight .30-caliber carbine shell casings were found on Baker Avenue south of that house. Seven additional .30-caliber carbine shell casings and nine 9-millimeter shell casings were found on the west side of 48th Street, between Baker and Roosevelt Avenues. This evidence corroborates B.'s account of defendants firing upon the K.'s house from the southwest corner of the intersection and continuing to do so as they traveled north up 48th Street. Four .40-caliber shell casings were found on the east side of 48th Street, just north of Baker Avenue, corroborating B.'s account of Ravana firing a few rounds at defendants from that location. Finally, north of Roosevelt Avenue were three .30-caliber carbine shell casings, one 9-millimeter shell casing, and four .357 Magnum shell casings, corroborating B.'s account of defendants continuing to fire as they crossed that street. No shell casings were found in the front yard of the K.'s house.
A criminalist test-fired the rifle and two handguns recovered from defendants when they were arrested and compared the shell casings found at the scene to each other and to those expended during test firing. He could not conclusively determine whether the .30-caliber carbine casings found at the scene were fired by the rifle recovered from R.G., but they could have been. The criminalist did determine the 9-millimeter and .357 Magnum casings were fired by the handguns recovered from R.G. and E.G., respectively.
Along the path of flight described by A., between the crime scene and the location defendants were taken into custody, officers found a black hooded sweatshirt on a fence. Beneath the sweatshirt, in a planter box, were three unfired .357 Magnum cartridges. Inside the sweatshirt was a cell phone and two unfired .357 Magnum cartridges. Additional evidence of defendants' gang membership was found in images saved to this and the other cell phone found in E.G.'s possession when he was arrested.
Finally, we note that while a fourth firearm, i.e., the one fired by Ravana, was never found, that was also consistent with B.'s account of events, specifically that one of the occupants of the K.'s house ran outside after Ravana was shot, took the gun from him, and then got into a car and drove off in the same direction defendants fled from the scene.
Prior Uncharged Shootings
On May 19, 2014, at around 6:00 p.m., a 9-millimeter handgun was used to fire two rounds near the Fox 40 television station a short distance from the K.'s house. Immediately after the shooting, two separate witnesses saw two young Hispanic males riding a bicycle or bicycles near the station, one of whom was holding a handgun.
On June 1, about a week before Ravana was murdered, at about 7:45 p.m., the same caliber handgun was used to fire 13 rounds into Eli's Market about one block from where defendants were taken into custody in this case. Surveillance video captured images of three individuals ride up to the market on bicycles, and after an exchange of words with two individuals in front of the store, one of the three on the bicycles opened fire on the storefront.
Several hours later, during the early morning hours of the following day, the same caliber handgun was used in two additional shootings, one in which five rounds were fired near Highway 99 and Fruitridge Road, and the other in which ten rounds were fired at a house and car located directly across the street from the K.'s house. A ballistics expert compared the shell casings recovered from these two shooting scenes with shell casings test fired from the 9-millimeter handgun recovered from R.G.'s waistband in this case and determined they were fired from the same gun.
In addition to the ballistics evidence connecting defendants to the latter two shootings, various text messages admitted into evidence connected defendants to each uncharged shooting. We decline to recount the content of all of the messages. For our purposes, the following examples will suffice.
The day after the first of these shootings, E.G. sent two text messages to an apparent girlfriend. In the first, he stated: "Lol [R.G.] slaped on another ridge suka yesterday made em crash and everything .. Lol !" In the second, he stated: "Lol i was with himm lol it was junior from fr he threw up fruitridge to us I throw up.franklon he flipped it on us like it was bad or some so I told [R.G.] to blap[.]" (Bracketed abbreviation refers to R.G.'s first name, which is subject to protective nondisclosure.) The homicide detective who testified to some of the terms used in these and other messages based on his training and experience explained that "Lol" was an acronym for "laugh out loud," "slap" and "bap" were slang for shoot, "ridge suka," in gang parlance, meant a gang member from the Fruitridge Vista subset of the Norteño gang, and "throw[ing] up" Fruitridge and Franklin meant exchanging gang signs. The prosecution's gang expert also explained there had been a longstanding feud between the Varrio Franklin Boulevard and Fruitridge Vista subsets.
Text messages will be set forth verbatim.
Finally, the day after the shooting at Eli's Market, E.G. sent a series of text messages to another individual. In the first, he asked whether the recipient heard about Eli's Market. The response was: "No wat hpn[?]" E.G. answered: "Lpl me an [R.G.] yellow tape that mf ... Lol niggas ran in there and we still Blamed it up[.]" The homicide detective providing terminological context explained that "blam" was also slang for shoot and "yellow tape that mf" meant the police put up yellow crime scene tape following the shooting.
DISCUSSION
I
Sufficiency of the Gang Evidence
Defendants challenge the sufficiency of the evidence to support their respective gang enhancements. We conclude substantial evidence does not support these enhancements.
Penal Code section 186.22, subdivision (b), increases punishment for "any person who is convicted of a felony committed 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."
Undesignated statutory references are to the Penal Code.
"To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) "A 'pattern of criminal gang activity' is defined as gang members' individual or collective 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]" (Id. at p. 1457; People v. Loeun (1997) 17 Cal.4th 1, 9-10.)
To satisfy these "criminal street gang" requirements, the prosecution's gang expert, Detective Guzman, testified there were "thousands" of Norteño gang members in the Sacramento area, divided into various subsets, including Varrio Franklin Boulevard, Fruitridge Vista, and Oak Park Norteños. The detective testified members of Norteño subsets are all part of a larger umbrella Norteño gang, and when gang members from the various subsets are incarcerated, they are expected to "bond together" in prison to "protect themselves from rival gangs." Regardless of subset, the primary rival of all Norteño gang members are Sureño gang members. All Norteño subsets also share common symbols, i.e., "the Roman numerals XIV, which represent the number 14," because "[t]he 14th letter in the English alphabet is the letter N, which stands for Norteño." Norteño gang members, regardless of subset, also commonly wear the color red and will display it to identify themselves. Some Norteño subsets also socialize and collaborate in the commission of crimes outside of prison, while others periodically feud and engage in "red-on-red violence," i.e., gang warfare against each other. For example, Varrio Franklin Boulevard and Fruitridge Vista were involved in such a feud during the events in this case.
Detective Guzman further testified the primary activities of the Varrio Franklin Boulevard subset are assault with a deadly weapon, robbery, murder, possession of a controlled substance for sale, and vehicle theft, all of which are statutorily enumerated offenses. (§ 186.22, subd. (e)(1)-(4), (10).) Finally, the detective testified regarding the facts of two incidents involving Norteño gang members committing predicate offenses for purposes of establishing a pattern of criminal gang activity. The first incident involved three Norteño gang members, Richard Velasquez, Philip Vasquez, and Julio Sarabia, who were found in possession of firearms and methamphetamine. Velasquez was from the Varrio Franklin Boulevard subset, Vasquez was a member of the Oak Park Norteños, and Sarabia was not identified as belonging to any specific subset. Velasquez and Vasquez were convicted of gang participation and Sarabia was convicted of possession of a controlled substance while armed with a loaded firearm. The detective also testified this was an example of the Varrio Franklin Boulevard and Oak Park Norteño subsets working together to commit crimes to benefit the overall Norteño gang. The second incident involved a member of the Varrio Franklin Boulevard subset, Noe Torres, who was found in possession of a loaded concealable firearm and was convicted of possession of a firearm by a convicted felon.
We must determine whether or not this evidence, or any other evidence in the record, adequately supports the criminal street gang requirements of the gang statute. Applying "the familiar standard of review for challenges to the sufficiency of the evidence," we must "review the entire record in search of reasonable and credible evidence of solid value, viewing all the evidence in the light most favorable to the prosecution, and drawing all reasonable inferences in favor of the jury's findings." (People v. Perez (2017) 18 Cal.App.5th 598, 607.)
Defendants' challenge to the sufficiency of the evidence is limited to the predicate offenses. They argue two such offenses were not proved to have been committed by Varrio Franklin Boulevard gang members and the prosecution has not proved the Norteño gang defendants' sought to benefit in this case was the same gang that committed the predicate offenses.
We begin our assessment of these arguments by first noting the jury was specifically instructed that only two offenses could qualify as predicate offenses for purposes of establishing a pattern of criminal gang activity within the meaning of the gang statute: (1) possession of a firearm by a convicted felon; and (2) possession of a controlled substance for sale. Both are statutorily enumerated predicate offenses. (§ 186.22, subd. (e)(4), (31).) The second incident about which Detective Guzman testified involved a Varrio Franklin Boulevard gang member who was convicted of possession of a firearm by a convicted felon, satisfying one of the requisite predicate offenses.
Turning to the first incident, the Attorney General concedes none of the gang members involved in that incident were convicted of either possession of a firearm by a convicted felon or possession of a controlled substance for sale, or any other offense listed in section 186.22, subdivision (e). And while not only a conviction, but also the "commission of" an enumerated offense (§ 186.22, subd. (e)) will satisfy the predicate offense requirement, if commission of such an offense is supported by substantial evidence (see People v. Lara (2017) 9 Cal.App.5th 296, 332), here, as the Attorney General also concedes, there was no evidence any of the gang members involved in the first incident were convicted felons or possessed the methamphetamine for sale.
Moreover, although other potential predicate offenses may have been committed by these gang members, such as possession of a concealable firearm by a minor (§ 186.22, subd. (e)(23)), carrying a concealed firearm (id., subd. (e)(32)), carrying a loaded firearm in a public place (id., subd. (e)(33)), or transporting methamphetamine (id., subd. (e)(4)), the Attorney General concedes the evidence is insufficient to support a finding these offenses were in fact committed by these gang members. More importantly, because the jury was instructed that only two offenses could qualify as predicate offenses for purposes of establishing a pattern of criminal gang activity, as far as the jury knew, these potential offenses were not predicate offenses. (See People v. Lara, supra, 9 Cal.App.5th at p. 331; see also People v. Garcia (2014) 224 Cal.App.4th 519, 525 [where jury was not instructed predicate offenses could be proved by "commission" of such offenses, but instead incorrectly instructed "conviction" was required, commission of a predicate offense "could not have been used by the jury . . . to satisfy the predicate offense requirement"]; People v. Kunkin (1973) 9 Cal.3d 245, 251, [appellate court "cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule"].) Accordingly, Detective Guzman's testimony recounting the facts of the first incident does not support a finding that a second predicate offense was committed.
Nevertheless, the facts of the currently charged offense may be used to satisfy the predicate offense requirement. (People v. Lara, supra, 9 Cal.App.5th at p. 332; see also People v. Gardeley (1996) 14 Cal.4th 605, 624, disapproved on other grounds in People v. Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Relying on that rule, the Attorney General argues R.G.'s possession of the rifle and handgun when he was arrested following the shooting in this case supplies the missing second predicate offense "because he possessed a loaded, concealable firearm on his person" while representing the Norteño gang with fellow Norteño E.G., and was therefore "in violation of section 29800." However, section 29800 does not prohibit possession of a loaded, concealable firearm while participating in a gang. It prohibits possession of "any firearm" by "[a]ny person who has been convicted of, or has an outstanding warrant for, a felony . . . or of an offense [involving violent use of a firearm], or who is addicted to the use of any narcotic drug . . . ." (§ 29800, subd. (a)(1).)
There is no evidence in the record indicating R.G. was previously convicted of, or had an outstanding warrant for, a felony or other violent firearm offense, or that he was addicted to narcotics, at the time he possessed the firearms in this case. And while the evidence is more than sufficient to support a finding both R.G. and E.G. committed other enumerated offenses in this case, e.g., assault with a deadly weapon, murder, shooting at an inhabited dwelling, possession of a concealable firearm by a minor, and carrying a concealed firearm (§ 186.22, subd. (e)(1), (3), (5), (23) & (32)), once again, the trial court "did not instruct the jury that a conviction for [murder, or commission of any of the other offenses,] could be considered in proving a pattern of criminal gang activity." (People v. Garcia, supra, 224 Cal.App.4th at p. 526; People v. Lara, supra, 9 Cal.App.5th at p. 331.)
Finally, the Attorney General relies on a stipulation that K.O., one of the victims in this case, "was arrested and booked into the Sacramento County jail for a felony violation of Health and Safety Code Section 11378, possession of methamphetamine for sale." K.O. denied being a gang member. He did, however, admit to having been validated as a Norteño when he was 14 years old, almost 8 years before he was shot in this case. When shown various photos apparently taken from Facebook that appeared to show him making gang signs, K.O. denied the gestures were gang signs. Assuming the jury could have concluded from this that K.O. was a Norteño gang member, and further assuming the stipulation he was arrested and booked for possession of methamphetamine for sale can be read as stipulating to the fact K.O. committed that offense, as opposed to simply having been arrested and booked on charges of having done so, under our Supreme Court's decision in People v. Prunty (2015) 62 Cal.4th 59 (Prunty) we cannot conclude the evidence is sufficient to support the commission of a second predicate offense by the same gang defendants were seeking to benefit when they murdered Ravana in this case.
In Prunty, supra, 62 Cal.4th 59, the prosecution's gang expert testified to two predicate offenses committed by members of two Norteño subsets, neither of which was the same subset to which the defendant belonged. The only evidence indicating these subsets "identified with a larger Norteño group" was the expert's testimony that they all "referred to themselves as Norteños." (Id. at p. 69.) This, the court held, was not enough to show the Norteño gang the defendant sought to benefit by committing his crimes was the same Norteño gang that committed the predicate offenses. (Id. at pp. 75-76, 81-82.) Instead, the prosecution was required to prove "some associational or organizational connection uniting those subsets." (Id. at p. 71.) The court continued: "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. And in other cases, the prosecution may 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. [¶] 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[, subdivision] (b)." (Id. at pp. 71-72, fns. omitted.)
Here, the evidence falls short of establishing an associational or organizational connection between the Norteño gang defendants sought to benefit in this case and the Norteño gang to which K.O. apparently belonged when he was arrested for possessing methamphetamine for sale. As mentioned, E.G. was wearing a Chicago Bulls hat embroidered with the words "Active" and "Bully" when he was arrested. R.G. had a red bandana in his pocket. As Detective Guzman explained, the bandana and the hat indicated defendants' membership in the Norteño gang, with the hat further indicating E.G.'s membership in the Varrio Franklin Boulevard subset. The detective also testified to the content of various pictures in E.G.'s phone, in which he was displaying certain gang signs indicative of his belonging to the Varrio Franklin Boulevard subset, including "two pinkies up, . . . bull horns for boulevard." The detective further testified that Varrio Franklin Boulevard was involved in two feuds at the time of the shooting in this case, one with Fruitridge Vista and another with the Tongan Crips. The latter feud supports a reasonable inference defendants were acting to benefit Varrio Franklin Boulevard when they shot up the K.'s house and murdered Ravana in this case. However, there is no evidence K.O. was a member of Varrio Franklin Boulevard or another subset with an associational or organizational connection to Varrio Franklin Boulevard. Indeed, the only evidence of K.O.'s subset was one of the Facebook images in which he was apparently making a "pinkies down" gang sign, often used by rivals of Varrio Franklin Boulevard, such as Fruitridge Vista, to show disrespect to that subset. Thus, far from there being evidence of K.O.'s membership in the same Norteño gang defendants sought to benefit in this case, the only evidence of K.O.'s gang affiliation indicates he was a member of a rival Norteño gang, a conclusion that is also supported by the fact he was shot by defendants in the shootout in this case.
We conclude the evidence is insufficient to support defendants' respective gang enhancements.
II
Denial of the Bifurcation Motion
Defendants contend we must reverse their murder convictions because the trial court prejudicially abused its discretion and violated their constitutional rights when it denied their motion to bifurcate the gang enhancements from the charged offenses. We disagree.
A.
Additional Background
E.G. moved in limine to bifurcate the gang enhancement allegation from the charged offenses "on the grounds that the gang allegation is overly prejudicial and would prevent [him] from receiving a fair trial on the underlying charges." Relying on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) and People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), E.G. argued bifurcation was necessary because "the gang evidence the prosecution intends to elicit from the expert is not being offered to prove motive or intent," and "is not even relevant to the substantive charge in this case," but would "substantially prejudice the defendants by showing the one thing specifically prohibited which is propensity to commit crime."
The prosecution, relying on People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez), moved as part of its in limine motions to try the charged offenses and gang enhancements together, arguing: "[T]he evidence of the underlying murder necessarily involves the same evidence to be presented in establishing the enhancement. The evidence is so inextricably intertwined so as to mandate a single proceeding. The circumstances preceding the shooting involve nothing short of hatred for which no reasonable basis, but for gang motivation, exists. The motive is relevant and important, both to the actual crime committed and to the requisite intent for the enhancement. The evidence of the defendants' gang motive and intent necessarily crosses over into the substance of the evidence to be presented in establishing the gang enhancement. It is impossible in this case to eliminate the gang aspect from the evidence on the proof of the underlying charge. In order for the People to meet their burden of proof against the defendants it is imperative that the jury be allowed to hear the gang expert testify regarding gang affiliation of the defendants and the mentality which led to the offense committed in this case." (Italics added.)
During the hearing on these competing motions, E.G.'s counsel argued denying bifurcation would create a "risk that [the jury would] simply look at the gang evidence, you know, and decide that hey, because these guys are such bad guys, which they learn from the gang evidence, you know, that bleeds into, so to speak, the substantive charges themselves, and the jury doesn't pay strict attention to the proof beyond a reasonable doubt specifically to the substantive charge." Counsel argued defendants did not draw attention to their gang member status when they rode over to the K.'s house, and while they had gang-related clothing, R.G.'s bandana was in his pocket and E.G.'s Chicago Bulls hat was not something "the average citizen would ever look at and think okay, that's obviously, you know, any type of gang clothing." Counsel also argued there was "no known motive in the case," pointing to portions of the gang expert's preliminary hearing testimony in which he stated he did not know the defendants' motive. In response, the trial court explained a gang expert was not supposed to testify to a defendant's motive, but could offer "reasons to explain why he thinks something was done at the direction of, or for the benefit of a criminal street gang" based on properly-worded hypothetical questions. Counsel did not disagree, but argued this was not a case, such as a shooting between "the quintessential Bloods and the Crips," in which a gang motive could be inferred from the fact that "the Blood gang member . . . shoots up the Crip house. . . . [¶] . . . [¶] . . . You don't have that in this particular case." The trial court then asked whether bifurcation would mean "doing the same case twice." Counsel responded the charged offenses should be tried first without any gang evidence because the jury would be "far less likely to look at who shot first and the issue of self-defense" if it received gang evidence during that portion of the trial.
After E.G.'s counsel submitted the matter, R.G.'s counsel joined in the motion and argued bifurcation would not amount to doing the same case twice. Instead, "the trials if bifurcated would be -- the first one would simply be, did these guys shoot and did they shoot in self-defense, or was it unlawful? . . . And if the jury were to find or return true findings as to those allegations, then we simply move into the second phase," in which "the gang expert can come in and offer his opinion." R.G.'s counsel then argued a lack of evidence of "this being a gang shooting," but allowing the gang evidence "essentially allows the government to bootstrap [the issue of motive,] saying, well, it must have been -- even though we have no specific evidence, it must have been gang related because gangs always operate in a particular fashion."
The trial court then heard from the prosecution. The prosecutor recounted the text messages tying defendants to the prior uncharged shootings and evidencing a gang-related motive for committing those shootings. She also pointed out ballistics revealed the same gun was used in the shooting across the street from the K.'s house about a week prior to the shooting in this case. With respect to the present shooting, the prosecutor pointed out that certain writings were found inside the K.'s house indicating affiliation with the Tongan Crips and further indicating a feud with the Varrio Franklin Boulevard Norteños. The prosecutor argued these facts supported testimony from the gang detective offering an opinion as to gang-related motive for the shooting in this case, adding, "this is a classic -- it's not a Blood versus Crips scenario, but it's a red versus blue scenario, which is equally as deadly in the gang world."
The trial court denied bifurcation. We recount and incorporate much of the trial court's reasoning in our analysis of the issue, to which we now turn.
B.
Analysis
A trial court has the discretion to bifurcate the determination of the truth of an alleged gang enhancement from the determination of the defendant's guilt of the charged offense. (Hernandez, supra, 33 Cal.4th at pp. 1048-1049.) It has the same discretion with respect to bifurcating the determination of the truth of an alleged prior conviction. (People v. Calderon (1994) 9 Cal.4th 69, 72.) However, unlike the latter bifurcation decision, where our Supreme Court has recognized, "the unique prejudice that may ensue if the jury that determines guilt also learns of the defendant's status as a person with one or more prior convictions," a status that "may have no connection to the charged offense," there is generally less need to bifurcate the determination of the truth of an alleged gang enhancement because the "gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (Hernandez, supra, 33 Cal.4th at p. 1048.) Nevertheless, "[t]he predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Id. at p. 1049.)
At the same time, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) Moreover, "[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation." (Id. at p. 1050.) This is because the trial court must also weigh judicial economy and efficiency in the bifurcation determination. (Ibid.) Accordingly, "the trial court's discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged" and " '[t]he burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.' [Citation.]" (Ibid.)
In Hernandez, supra, 33 Cal.4th 1040, a robbery case in which one of the defendants, Hernandez, announced his gang affiliation in an effort to intimidate the victim into complying with his demand for cigarettes and money, our Supreme Court held the trial court did not abuse its discretion in denying bifurcation of the gang enhancement allegations. (Id. at pp. 1050-1051.) After setting forth the foregoing legal principles, the court reasoned: "Much of the gang evidence here was relevant to the charged offense. Indeed, defendant Hernandez himself injected his gang status into the crime. He identified himself as a gang member and attempted to use that status in demanding money from the victim. Although [the other defendant] Fuentes did not specifically identify himself as a gang member, the evidence showed the robbery was a coordinated effort by two gang members who used gang membership as a means to accomplish the robbery. [The gang expert's] testimony helped the jury understand the significance of Hernandez's announcement of his gang affiliation, which was relevant to motive and the use of fear. Evidence concerning the alliance between Hawthorne Little Watts and the 106 clique of the 18th Street gang served to explain why Hernandez and Fuentes were acting together in the commission of this crime, thus buttressing such guilt issues as motive and intent." (Id. at pp. 1050-1051.)
Relying on Hernandez, the trial court concluded much of the gang evidence in this case was also relevant to the charged offenses, specifically, "[s]ome of the gang expert testimony from Guzman is independently probative as circumstantial evidence of the reasons for shooting the [K.'s house]; there may be enough evidence to convict defendants of murder and attempted murder without any gang evidence but drawing the line to exclude all of that evidence is no easy task." We agree.
While, as defendants point out, neither of them injected their gang status into the shooting by verbally identifying themselves as gang members, this distinction is not dispositive. The reason such self-identification was important in Hernandez, supra, 33 Cal.4th 1040 was that it was evidence of intimidation, highly relevant to the crime committed in that case, robbery. Here, in contrast, murder and attempted murder do not require proof of the use of force, violence, fear, or intimidation. However, "evidence of motive is often probative of intent to kill" in a murder or attempted murder case (People v. Smith (2005) 37 Cal.4th 733, 741), and is particularly probative where the defendant claims self-defense, as in this case. (See People v. Pertsoni (1985) 172 Cal.App.3d 369, 375 [evidence of the defendant's "motive thus was critically important in showing a reason for his criminal behavior and in rebutting his claim of self-defense"]; People v. Mullen (1953) 115 Cal.App.2d 340, 343 ["motive is always material" in homicide case involving claim of self-defense].)
As the trial court properly observed, much of the gang expert's testimony in this case enabled the jury to understand defendants' motive for shooting at the K.'s house. Such a motive was also relevant to dispel the suggestion they were simply riding a bicycle when Ravana opened fire on them, requiring them to return fire in self-defense. Also as in Hernandez, "[e]ven if some of the expert testimony would not have been admitted at a trial limited to guilt, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial." (Hernandez, supra, 33 Cal.4th at p. 1051.) This additional evidence was relevant to prove the gang enhancements, making it highly unlikely the jury would have been confused as to its purpose. Nor was any of the gang evidence so inflammatory as to create a substantial danger of undue prejudice with respect to the charged offenses.
Finally, while the trial court incorrectly stated in its decision that denying bifurcation would avoid "two trials" with "two juries," it was correct that denial of the motion promoted judicial economy and efficiency and avoided "significant duplication of effort and expense." That is because, as we have already explained, much of the gang evidence was relevant and admissible to prove motive. Accordingly, bifurcation would have required the gang expert to testify once during the first phase of the trial, and assuming conviction, again regarding the gang enhancements. Bifurcation would also have required two rounds of deliberations. Denying bifurcation was not an abuse of discretion.
Nor are we persuaded by defendants' reliance on Ochoa, supra, 179 Cal.App.4th 650 and Albarran, supra, 149 Cal.App.4th 214. We first note that neither case dealt with the issue of bifurcation. In Ochoa, the Court of Appeal reversed gang enhancement findings because it concluded the evidence was insufficient to support a conclusion the defendant gang member committed the charged offenses for the benefit of his gang. (Ochoa, supra, at p. 656.) There, the defendant approached a truck in a restaurant parking lot, attempted to rob the truck's sole occupant at gunpoint, and then forced the occupant out of the vehicle and drove away. The defendant was alone when he committed the crimes, did not announce himself as a gang member while carrying them out, did not show any gang signs, and was not dressed in gang-related clothing. (Id. at p. 653.) Nor was there evidence the defendant used the truck for gang-related purposes after taking it or claimed responsibility on behalf of his gang. (Id. at p. 656.) The only evidence the crimes were gang related came from the prosecution's gang expert, who acknowledged, "crimes can be committed by a gang member for his own benefit," but nevertheless opined the defendant committed the carjacking "for the benefit of his gang" because such a crime "would benefit the gang by providing general transportation to the gang's members, by enabling transportation of narcotics for sale by the gang, by enabling transportation to commit further crimes by the gang, by providing economic benefit to the gang by sale of the vehicle, by elevating defendant's status within the gang, and by raising the gang's reputation in the community." (Ibid.) The Court of Appeal concluded this opinion "was based solely on speculation, not evidence" and reversed the gang enhancement findings. (Id. at p. 663.)
Here, the jury's conclusion defendants murdered Ravana for the benefit of their gang is supported by substantial evidence. Because defendants do not specifically challenge the sufficiency of the evidence on this basis, we decline to recount all of the evidence supporting such a conclusion. We do note that an inference of gang-relatedness may arise solely from the fact of commission of a crime with other gang members. (See, e.g., People v. Leon (2016) 243 Cal.App.4th 1003, 1021; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) But here, there was more than that. E.G. and R.G., both Norteño gang members, one carrying a red bandana in his pocket, the other wearing a Chicago Bulls hat, both heavily armed, rode a bicycle to a house occupied by gang members who belonged to a gang involved in a feud with E.G.'s Norteño subset and opened fire on that house. This evidence, properly understood in the light of Detective Guzman's expert testimony, was relevant to and highly probative of both the gang-relatedness element of the gang enhancement and defendants' motive to commit the charged offenses.
In Albarran, supra, 149 Cal.App.4th 214, the defendant gang member and another unidentified individual fired shots at a house party. The trial court admitted gang evidence despite the fact the prosecutor admitted "he had no percipient witness or evidence to prove the crime was gang related or motivated," and instead would be relying solely on the gang expert's testimony. (Id. at p. 219.) After hearing evidence relevant to the underlying crimes along with gang evidence unrelated to those crimes, the jury found the defendant guilty and also found he committed the crimes to benefit the gang. (Id. at pp. 220-222.) In response to a new trial motion, the trial court concluded the evidence was insufficient to support the gang enhancements and dismissed them with prejudice, but denied the motion with respect to the charged offenses. (Id. at p. 222.) The Court of Appeal held this was error, explaining the gang evidence should not have been admitted in the first instance because it was not relevant to establish a motive for the charged shooting, and even if some of the gang evidence was admissible for this purpose, "other extremely inflammatory gang evidence was admitted, which had no connection to these crimes." (Id. at pp. 226-228.)
Here, unlike Albarran, supra, 149 Cal.App.4th 214, as we have already explained, much of the gang evidence was highly relevant to establish a motive for the charged offenses, and the portions of that evidence that were relevant only to establishing the gang enhancements were not so inflammatory that they created a substantial danger of undue prejudice with respect to the charged offenses. We conclude there was no abuse of discretion.
III
Firearm Enhancement Instruction
Defendants contend the trial court prejudicially erred and violated their constitutional rights by failing to instruct the jury that the most serious of their firearm enhancements, i.e., personal and intentional discharge causing death, required proof that each defendant's "discharge of a firearm proximately caused the death of Ravana," and "that the conduct of two or more persons contributes concurrently to the proximate cause of death only when the conduct of each 'was also a substantial factor contributing to the result.' "
Section 12022.53, subdivision (d), provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), [including murder], personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
The trial court instructed the jury on this provision with CALCRIM No. 3150. As delivered to the jury in this case, the instruction provides:
"If you find the defendant guilty of the crime charged in Count One or the lesser crime of second-degree murder, or Count Two, you must then decide whether the People have proved the additional allegations that the defendant personally and intentionally discharged a firearm during that crime and, if so, whether the defendant's act caused great bodily injury or death.
"To prove that the defendant intentionally discharged a firearm, the People must prove that:
"One, the defendant personally discharged a firearm during the commission or attempted commission of that crime; and
"Two, the defendant intended to discharge the firearm.
"If the People have proved both one and two, you must then decide whether the People also have proved that the defendant's act caused great bodily injury or death to a person who was not an accomplice to the crime.
"The term firearm is defined in another instruction.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"An act causes great bodily injury if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.
"In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
"Roy Ravana and [K.O.] are not accomplices.
"The People have the burden of proving each of these allegations beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved." (Italics added.)
Turning to defendants' arguments on appeal, to the extent they argue the jury should have been instructed the prosecution was required to prove each defendant fired the fatal shot, this is not the law. As our Supreme Court has explained: "A person can proximately cause a gunshot injury without personally firing the weapon that discharged the harm-inflicting bullet. For example, in People v. Sanchez [(2001)] 26 Cal.4th 834, two persons engaged in a gun battle, killing an innocent bystander. Who fired the fatal bullet, and thus who personally inflicted the harm, was unknown, but we held that the jury could find that both gunmen proximately caused the death. [Citation.]" (People v. Bland (2002) 28 Cal.4th 313, 337.) Similarly, here, regardless of which defendant personally inflicted the fatal injury, both "may have proximately caused, the harm." (Id. at p. 338.)
However, after instructing the jury it was required to determine "whether the defendant's act caused great bodily injury or death," the instruction drops "or death" when defining causation: "An act causes great bodily injury if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence." Defendants argue the trial court erred in omitting "or death" because cause of death "was a much more precise consideration than cause of great bodily harm." (Italics added.)
We cannot discern any reason to remove "or death" from this portion of the instruction, but are also at a loss as to the distinction defendants are drawing between cause of death and cause of great bodily injury, at least under the facts of this case. While, as they point out, the forensic pathologist testified to other injuries sustained by Ravana that were consistent with "a fall or other blunt impact," based on all of the evidence in this case, if these other injuries (assuming they amounted to great bodily injury) were caused by defendants at all, they were caused by Ravana falling to the ground after sustaining the fatal gunshot wound. Thus, no reasonable jury would have found defendants caused great bodily injury to Ravana, but did not also, simultaneously, cause his death. Any error in this regard was manifestly harmless.
Defendants also point out the trial court omitted the following bracketed portion of the instruction: "[There may be more than one cause of (great bodily injury/ or] death). An act causes (injury/[or] death) only if it is a substantial factor in causing the (injury/[or] death). A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the (injury/[or] death).]" (CALCRIM No. 3150, italics omitted.) We agree this bracketed portion should have been provided to the jury. As our Supreme Court has explained: " ' "There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death." ' [Citation.]" (People v. Sanchez, supra, 26 Cal.4th at p. 847, italics omitted.) The jury should have been instructed on these principles. However, as our Supreme Court has also explained, these requirements ensure that a defendant is not held liable if his or her conduct " ' "was so infinitesimal or so theoretical that it cannot properly be regarded as a substantial factor in bringing about the particular result." ' [Citations.]" (People v. Catlin (2001) 26 Cal.4th 81, 155, italics omitted.)
Here, the evidence strongly supported the conclusion each defendant fired upon the K.'s house and also exchanged rounds with Ravana. Under these circumstances, we conclude any reasonable juror would have concluded the concurrent conduct of both defendants caused Ravana's death, and the conduct of each was a substantial factor contributing to that result. Accordingly, this error was also harmless under any standard of prejudice.
IV
Cumulative Prejudice
Having reversed defendants' gang enhancements for insufficient evidence, we limit our assessment of cumulative prejudice to whether or not such prejudice requires reversal of defendants' murder conviction or firearm enhancements. Because there was no error in denying bifurcation of the gang enhancements, any assumed error in admitting testimonial case-specific hearsay as part of the gang expert's testimony was harmless beyond a reasonable doubt (see fn. 2, ante), and the instructional errors discussed above were also manifestly harmless, we further conclude the cumulative prejudicial effect of these actual and assumed errors does not require reversal.
V
Retroactivity of SB 620
Defendants claim we must remand the matter for a new sentencing hearing because SB 620 (2017 - 2018 Reg. Sess.), which became effective January 1, 2018 and gives the trial court discretion to strike a firearm enhancement in the interest of justice, applies retroactively to cases not yet final on appeal. (Stats. 2017, ch. 682, §§ 1 & 2.) We agree.
Defendants were sentenced on October 14, 2016. The law at that time did not allow the trial court to strike their firearm enhancements in the interest of justice, but rather required mandatory imposition. (See former §§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2010, ch. 711, § 5).) Effective January 1, 2018, SB 620 amended both sections to provide: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1 & 2.)
Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendants argue the amendments to these sections apply because their judgments are not yet final. In Estrada, our Supreme Court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) This includes "acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Ibid.) Thus, under Estrada, absent evidence to the contrary, we presume the Legislature intended a statutory amendment reducing punishment to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) Our Supreme Court has also applied the Estrada rule to amendments giving the trial court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
The Attorney General concedes both that the rule of Estrada, supra, 63 Cal.2d 740 requires retroactive application of SB 620 to defendants' cases and that remand for an exercise of the trial court's new discretion is appropriate. We accept the concession and shall order the appropriate remand.
VI
Retroactivity of Proposition 57
Defendants also contend Proposition 57 (as approved by voters Gen. Elec., Nov. 8, 2016, eff. Nov. 9, 2016) applies retroactively to this case and requires a remand to the juvenile court for a juvenile transfer hearing. The Attorney General concedes this point as well. We concur.
Defendants, who were minors at the time of the murder, were directly charged in adult criminal court. Proposition 57 became effective while their appeal was pending. This proposition, among other provisions, amended the Welfare and Institutions Code to eliminate direct filing by prosecutors in adult criminal court. Certain categories of minors, including defendants, can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as their age, maturity, intellectual capacity, mental and emotional health, degree of criminal sophistication, prior delinquent history, whether they can be rehabilitated, and the circumstances and gravity of the offense alleged. (Welf. & Inst. Code, § 707, subd. (a).)
In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), our Supreme Court held: "The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, [the] inference of retroactivity [set forth in Estrada, supra, 63 Cal.2d 740] applies. As nothing in Proposition 57's text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at pp. 303-304.) Accordingly, Proposition 57 (as approved by voters Gen. Elec., Nov. 8, 2016, eff. Nov. 9, 2016) applies to this case.
Having determined defendants are entitled to the retroactive benefit of Proposition 57, we now address the appropriate remedy. The procedural posture of Lara was not the same as this case. In Lara, the prosecutor had direct-filed charges in adult criminal court, but the real party in interest had not been tried at the time Proposition 57 took effect. (Lara, supra, 4 Cal.5th at p. 304.) Here, defendants were tried, convicted, and sentenced in adult criminal court before Proposition 57 took effect. However, the Lara court endorsed the remedy for such cases provided by our colleagues at the Fourth Appellate District in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298 (Vela).
The matter in Vela, supra, 11 Cal.App.5th 68 was transferred back to the Court of Appeal on February 28, 2018, S242298, and thereafter a new opinion, employing the same remedy endorsed by our Supreme Court in Lara, was issued on March 28, 2018. (People v. Vela (2018) 21 Cal.App.5th 1099.) Because our Supreme Court cited to the now-superseded Vela decision in the Lara opinion, we continue to cite to that decision.
Regarding the remedy fashioned in Vela, supra, 11 Cal.App.5th 68, our Supreme Court in Lara wrote: "After finding that the defendant was entitled to a transfer hearing, the Vela court considered the remedy. It began by noting that the 'jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a "jurisdictional hearing," or effectively a second trial, in the juvenile court.' [Citation.] Noting that an 'appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances[]" [citation],' the court ordered a limited remand. [Citation.] [¶] Specifically, the Vela court ordered as follows: 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, supra, 4 Cal.5th at pp. 309-310, quoting Vela, supra, 11 Cal.App.5th at pp. 81-82.)
The Lara court endorsed the Vela, supra, 11 Cal.App.5th 68 remedy. (Lara, supra, 4 Cal.5th at pp. 312-313.) Consistent with this endorsement, we conclude the remedy in Vela is appropriate here. Accordingly, we shall conditionally reverse defendants' judgments of conviction and remand these matters to the juvenile court for juvenile transfer hearings. If that court determines it would have transferred either defendant to a court of criminal jurisdiction because he was not, at the time his case was originally filed in the trial court, "a fit and proper subject to be dealt with under the juvenile court law" (Welf. & Inst. Code, § 707.1, subd. (a)), his murder conviction and firearm enhancement findings are to be reinstated. If, however, the juvenile court finds it would not have so transferred either defendant, then it shall treat that defendant's conviction and enhancement findings as juvenile adjudications and impose an appropriate disposition within its discretion.
VII
Franklin Remand
Finally, defendants contend we must order a limited remand under Franklin, supra, 63 Cal.4th 261. The Attorney General concedes the issue with respect to E.G. but not R.G. We conclude that remand is not required for either defendant.
In Franklin, supra, 63 Cal.4th 261, our Supreme Court held that "a juvenile may not be sentenced to the functional equivalent of LWOP for a homicide offense without the protections outlined in [Miller v. Alabama (2012) 567 U.S. 460 ]." (Id. at p. 276.) However, the court also held the Legislature's passage of Senate Bill No. 260 (2013-2014 Reg. Sess.) (Stats. 2013, ch. 312, § 4) that became effective January 1, 2014, and provides juvenile offenders with an opportunity for parole at least by their 25th year of incarceration, renders moot an assertion that "an otherwise lengthy mandatory sentence" was imposed in violation of Miller, at least where the defendant is not excluded from eligibility for such a parole hearing. (Franklin at pp. 279-280.) In so holding, the court explained Senate Bill No. 260 added section 3051 to the Penal Code, "which requires the Board [of Parole Hearings] to conduct a 'youth offender parole hearing' during the 15th, 20th, or 25th year of a juvenile offender's incarceration," depending on the length of the offender's " 'controlling offense.' " (Franklin at p. 277, quoting former § 3051, subds. (a)(2)(B), (b); amended Stats. 2015, ch. 471, § 1; eff. Jan. 1, 2016.) Thus, section 3051 "provides all juvenile offenders with a parole hearing during or before their 25th year of incarceration," unless they come within one of the statute's exclusions, set forth in subdivision (h). (Franklin at p. 277.) While a juvenile offender's original sentence remains operative, "section 3051 has changed the manner in which [that] sentence operates by capping the number of years that he or she may be imprisoned before becoming eligible for release on parole," thereby "supersed[ing] the statutorily mandated sentences" of non-excluded juvenile offenders. (Id. at p. 278.) "The Legislature has effected this change by operation of law, with no additional resentencing procedure required." (Id. at pp. 278-279.) Because the parole eligibility cap of section 3051 supersedes the mandatory sentence imposed by the trial court, "[s]uch a sentence is neither LWOP nor its functional equivalent," and therefore, "no Miller claim arises." (Franklin at p.280.)
Section 3051 applies "retrospectively, that is, to all eligible youth offenders regardless of the date of conviction." (Franklin, supra, 63 Cal.4th at p. 278.) Defendants were minors when they murdered Ravana and personally and intentionally discharged firearms causing his death. Should the trial court decline to strike their most serious firearm enhancement, defendants will be eligible for a youth offender parole hearing during their 25th year of incarceration because the controlling offense, i.e., that firearm enhancement, resulted in a sentence of 25 years to life. (§ 3051, subd. (b)(3).)
Returning to Franklin, our Supreme Court remanded the matter to the trial court for the limited purpose of determining whether or not the juvenile offender in that case "was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) This was done because the youth offender parole hearing established by Senate Bill No. 260 (2013-2014 Reg. Sess.) "shall provide for a meaningful opportunity to obtain release" (§ 3051, subd. (e); Stats. 2013, ch. 312, § 4), the statutory scheme also "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 at pp. 283-284, citing § 3051, subd. (f)), and it was "not clear" whether the juvenile offender in Franklin "had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Id. at p. 284.)
Here, prior to the sentencing hearing, he filed a statement in mitigation, to which he attached both a psychological evaluation and various letters from individuals familiar with his character and circumstances. Citing Franklin, supra, 63 Cal.4th 261, R.G. explained he did so in order "to make a sufficient record at the sentencing hearing of mitigating evidence tied to the minor's youth." We agree with the Attorney General this suffices to satisfy Franklin. And while the record does not indicate E.G. filed a similar statement in mitigation under Franklin, he also submitted a psychological evaluation. The trial court reviewed this "extensive psychiatric report" before sentencing E.G.
Remand is not required because, "unlike the defendant in Franklin[, supra, 63 Cal.4th 261], defendant[s were] not sentenced at a time when youth offender parole hearings were not yet part of California law." (People v. Woods (2018) 19 Cal.App.5th 1080, 1088.) At the time of their sentencing, section 3051 applied to offenders like defendants, and section 4801, subdivision (c), "already identified the various factors to be considered at a youth offender parole hearing." (See Woods, supra, at p. 1088.) Thus, defendants "had both the opportunity and incentive to put information on the record related to a future youth offender parole hearing." (Id. at p. 1089.) And they did so. Further, Franklin, supra, 63 Cal.4th 261 had already been decided. Under these circumstances, there is no basis for a Franklin remand. (Id. at p. 1089; see also People v. Medrano (2019) 40 Cal.App.5th 961, 968.)
DISPOSITION
The judgments entered against defendants R.G. and E.G. are modified to strike the gang enhancements, the modified judgments are conditionally reversed, and these matters are remanded to the juvenile court for juvenile transfer hearings. If that court determines it would have transferred either defendant to a court of criminal jurisdiction because he was not, at the time his case was originally filed in the trial court, "a fit and proper subject to be dealt with under the juvenile court law" (Welf. & Inst. Code, § 707.1, subd. (a)), his murder conviction and firearm enhancement findings are to be reinstated. If, however, the juvenile court finds it would not have so transferred either defendant, then it shall treat that defendant's conviction and enhancement findings as juvenile adjudications and impose an appropriate disposition within its discretion. Should either defendant's conviction and enhancement findings be reinstated, his matter shall return to the trial court for a new sentencing hearing and an exercise of discretion under Senate Bill 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1 & 2). In all other respects, the modified judgments are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
RENNER, J.