Opinion
C074948
03-16-2018
THE PEOPLE, Plaintiff and Respondent, v. RICKY SIMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F02391)
A jury convicted defendant Ricky Sims of the willful, deliberate, and premeditated attempted murder of Ronald Curtis and one count of making a criminal threat. The jury found that defendant committed attempted 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. The trial court found that defendant was previously convicted of a serious felony. Defendant received an aggregate prison sentence of 46 years, plus a consecutive term of 14 years to life, with 160 days of credit.
Defendant now contends: (1) the prosecutor improperly (i) referred to defendant's failure to testify, (ii) misstated the beyond a reasonable doubt standard, (iii) argued facts not in evidence, (iv) misstated the evidence, (v) appealed to sympathy for a prosecution witness, and (vi) vilified defense counsel; (2) the People's gang expert improperly testified about defendant's motive for the attempted murder; (3) with regard to the Penal Code section 186.22 gang enhancement allegation (i) there is insufficient evidence supporting the jury's finding that a primary activity of the Oak Park Blood gang was the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e)(1) to (25) or (31) to (33), (ii) there is insufficient evidence supporting the jury's finding that defendant committed attempted murder with the specific intent to promote, further, or assist in criminal conduct by gang members, (iii) Detective Eugene Hardy related testimonial hearsay statements of nontestifying witnesses in violation of defendant's right to confront witnesses against him, and (iv) the trial court erred in imposing a 10-year prison term under section 186.22, subdivision (b)(1)(C) on count one; (4) the trial court erred in failing to give a unanimity instruction for the count three charge of making a criminal threat; (5) the trial court erred in not awarding any presentence conduct credit; (6) the trial court erred in imposing the section 667, subdivision (a)(1) (hereafter section 667(a)(1)) enhancement on counts one and three; and (7) the matter must be remanded to permit the trial court to exercise its discretion to strike the section 12022.53 firearm enhancement allegation or finding pursuant to the recent amendment to section 12022.53, subdivision (h).
Undesignated statutory references are to the Penal Code.
We conclude (1) the claims of prosecutorial misconduct are forfeited; (2) the gang expert did not testify about defendant's subjective intent or motive; (3) the true finding on the section 186.22 gang enhancement allegation must be reversed and the sentence thereon stricken because insufficient evidence supports the jury's finding that a primary activity of the Oak Park Blood gang was the commission of illegal possession of a firearm, robbery, assault with a firearm, and/or attempted murder, and we need not address the other contentions with regard to the gang enhancement allegation; (4) a unanimity instruction was not required; (5) defendant should be awarded 24 days of presentence conduct credit; (6) the trial court did not err in imposing the section 667(a)(1) enhancement twice; and (7) remand is appropriate.
We will reverse the true finding on the section 186.22 gang enhancement allegation and strike the 10-year prison sentence imposed under section 186.22 in count one and further modify the judgment to award 24 days of presentence conduct credit. We will affirm the judgment as modified and remand the matter to permit the trial court to exercise its discretion regarding the section 12022.53 firearm enhancement.
BACKGROUND
Defendant and Kathleen were divorced. Vanessa is their daughter. Kathleen and Vanessa were at the house of defendant's parents Charlie and Mary (the Sims house) on April 12, 2013.
We refer to individuals by their first names for clarity and because the information does not state Kathleen's last name. All dates refer to 2013 unless otherwise indicated.
Defendant's niece Iesha, her boyfriend Ronald Curtis, and other family members were also at the Sims house. Ronald, a Crip gang member, wore a blue shirt and blue rubber bands in the ponytails in his hair. The color blue is associated with the Crip gang.
Ronald, Iesha, Kathleen and Vanessa were gathered outside the Sims house at around 5:00 p.m. when Kathleen saw defendant exit a silver-colored car. Defendant moved toward Ronald with a revolver in his right hand and yelled, "Wasn't you told not to be over here?" or "Didn't I tell you not to come back over here?" Vanessa heard Iesha say, "he got a gun." Defendant fired the gun at Ronald. He missed. Iesha screamed for defendant to stop. Other people also screamed. Vanessa was scared. She ran into the Sims house and did not come out until she heard everything calm down. Vanessa heard two more gunshots when she was inside the house.
Ronald ran to the backyard of the Sims house after the first gunshot but then ran back to the front of the house. Defendant fired two shots at Ronald as Ronald came out of the backyard. Ronald ran away in a zigzag fashion.
Defendant moved to the middle of the street, held the gun up, used his left hand to steady and support his right hand, and fired three more shots. Kathleen saw Ronald fall to the left. Ronald was shot in his left forearm. A bullet fragment was lodged in his arm, near his elbow.
Defendant got back in the silver car and left. Kathleen could not identify the driver of the silver car, but she said defendant's brother Tony was not the driver. Kathleen said Tony and his wife Misty arrived at the Sims house after the shooting.
Iesha took Ronald to the hospital. Deputy Rodolfo Roque interviewed Iesha at the hospital on April 12. Iesha reported that defendant shot Ronald at the Sims house. She said defendant and Ronald had an argument and defendant shot at Ronald about four times using a handgun, hit Ronald in the arm, and fled the scene. Iesha stated that defendant was a Blood and he did not like Ronald because Ronald was a Crip. Iesha also told Deputy Roque defendant shot Ronald because defendant and Ronald had a fight two weeks before the shooting. Iesha said Ronald did not want her to say anything because he did not want to "snitch."
Defendant demanded that Vanessa return a pair of earrings he gave her. He sent threatening text messages to Vanessa and her boyfriend Larry on April 13. One of the text messages read, "tell his moma to takw that nice dress off the shelf." Another one read, "when i catch u witj my errings that ass is mine." Defendant told Larry, "Im on my way." Vanessa understood defendant's text messages as threats to kill or do something to Larry.
Defendant sent Larry's cell phone a text message on April 14 which read, "Kathy u did this u callsed me a bitch im gonna make u eat thois words the next u call aman a bitch your face will b srraight M.I.A." Vanessa considered the text a threat against Kathleen. She told Kathleen about the text. Kathleen testified that defendant's threat to "make [her] face straight" referred to the fact that she had Bell's palsy, a paralysis in her face.
Kathleen called defendant and asked him to stop the threats. Defendant then left a voicemail message, a recording of which was played for the jury at trial. Defendant said Kathleen had threatened to get a gun and shoot defendant, and defendant was coming over to shoot her. Defendant ended his message by saying, "Don't call a motherfucker and tell him what you're going to do, just show up at the door, like I am." Kathleen and Vanessa identified the voice in the audio recording played at trial as defendant's.
Kathleen read defendant's April 14 text message about making her face straight and listened to defendant's voicemail message about shooting her. The messages scared her. She called the police.
Vanessa described for the jury a confrontation between defendant and Ronald prior to the shooting. She said defendant told her Ronald used "gang language, saying Crip and cuz" when defendant and Ronald were at the Sims house. Defendant felt disrespected by Ronald's language, and he "checked" Ronald. Defendant and Ronald then "got into it." Defendant spit in Ronald's face and Ronald hit defendant.
Iesha and Ronald also testified at the trial. Both denied that defendant shot at Ronald.
Iesha admitted she lied to a deputy sheriff about seeing defendant shoot Ronald. She said she made that statement because defendant was the only person she could think of who would shoot Ronald as the two had a "run-in" a few weeks before the shooting. Iesha also said she lied to the deputy because she was mad at defendant. But at trial, Iesha called defendant her "pride and joy." Iesha denied that defendant asked her not to "snitch" on him.
Ronald confirmed he had an argument with defendant at the Sims house at the end of March or the beginning of April. He said defendant spit at him, and he hit defendant. Ronald said he talked with defendant after that incident and there was no problem between them. Ronald denied telling Iesha not to say anything to the police.
Detective Hardy testified as the People's gang expert. He defined a criminal street gang as a group of three or more people, with common signs or symbols, with the members seeking to make identification with that group, and whose members are engaged in a pattern of criminal activity, either individually or collectively, and whose primary activity is the commission of one or more predicate crimes. Detective Hardy testified he personally knew three or more Oak Park Blood gang members and three or more Crip gang members. Oak Park Bloods associated with the color red. Crips associated with the color blue. Detective Hardy demonstrated the hand signs for the Oak Park Blood gang. He said the Sims house was in Oak Park Blood gang territory.
With regard to the pattern of criminal gang activity, Detective Hardy described two predicate crimes of the Oak Park Blood gang. The first involved a 2011 robbery in Oak Park by an individual named Mark Brown. The victim in that case later recanted, stating he was drunk and could not remember what happened during the robbery. Mark was convicted of illegal possession of a firearm, which was a felony. The second case involved a 2012 robbery in Oak Park by Mark. Mark was convicted of two counts of second degree robbery and being a felon in possession of a firearm.
Detective Hardy opined that defendant was an Oak Park Blood gang member. He described defendant's prior conviction for illegal possession of a firearm and prior criminal accusations against defendant. He testified that defendant admitted he was an Oak Park Blood gang member in 2004 or 2005. Defendant also said he was associated with the Blood gang when he was booked into jail in 2013. Detective Hardy described Kathleen, Vanessa, and Iesha's statements linking defendant with the Blood or the Oak Park Blood gang. He also described an out-of-court statement by Deputy Bunn, a veteran deputy, that defendant was an Oak Park Blood gang member. Detective Hardy said defendant had tattoos that indicated his gang affiliation or membership.
Detective Hardy opined that Ronald was associated with or a member of the Crip gang. His opinion was based on Iesha's pretrial statement and the reports in this case that Ronald used the words "Crip" or "cuz" and wore the color blue on April 12. "Cuz" was a word Crip gang members used to greet each other.
Detective Hardy explained the concept of respect and fear within the gang culture. He said it would be disrespectful for a Crip gang member to say "Crip" and "cuz" in the home of an Oak Park Blood gang member. Detective Hardy said defendant was an "OG" or Original Gangster and was well respected by Oak Park Blood gang members and "people outside of it." Detective Hardy explained that people would think defendant was "slipping" and weak if they saw a Crip standing in front of the Sims house wearing all blue and defendant did nothing to "check" that person. "Checking" included talking, engaging in a physical altercation, or shooting.
The prosecutor asked the detective a hypothetical question involving a Crip gang member who used the words "Crip" and "cuz" while at the house of the mother of an Oak Park Blood OG, was asked to stop, spit at, and told not to return, but returned to the house (which was in the Oak Park Blood territory) wearing all blue while standing in front of the house. The prosecutor asked whether the OG acted for the benefit of the Oak Park Blood gang if he told the Crip gang member in the hypothetical, "Wasn't you told not to be here?" and fired five or six shots at the Crip gang member. Detective Hardy answered that the OG had to defend "sacred ground" because doing nothing would reflect poorly on the OG and the Oak Park Blood gang. The detective said the shooting would show that Crip gang members will be "checked" if they wore their color in Oak Park Blood territory.
Detective Hardy explained the concept of snitching in the gang culture. He said reporting a crime made a person a snitch in the gang culture. A snitch might get threats or be beat up, shot at, or robbed or something might happen to the family of the snitch. A family member who snitched on another family member who is a gang member will be ostracized from the family. And people may not testify or may change their testimony because they are afraid for their family and themselves.
The jury convicted defendant of attempted murder (§§ 187, subd. (a), 664 -- count one) and making a criminal threat (§ 422 -- count three). The jury found the attempted murder was willful, deliberate, and premeditated and that the defendant personally used a firearm (§ 12022.53, subd. (b)), intentionally discharged a firearm (§ 12022.53, subd. (c)), and committed attempted 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 (§ 186.22, subd. (b)(1)). The jury found the allegation that defendant intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) not true. The trial court found the allegation that defendant was previously convicted of rape with force or fear, a serious felony, true beyond a reasonable doubt. The trial court sentenced defendant to an aggregate prison term of 46 years, consecutive to a term of 14 years to life.
The abstract of judgment, which shows a sentence of seven years to life on count one and a sentence of three years on count three, does not accurately reflect the trial court's oral pronouncement of sentence. We will direct the trial court to correct the abstract in this regard. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) --------
Additional facts are included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant raises a number of prosecutorial misconduct claims. He says the prosecutor improperly (a) referred to his failure to testify; (b) misstated the beyond a reasonable doubt standard; (c) argued facts not in evidence; (d) misstated the evidence; (e) appealed to sympathy for a prosecution witness; and (f) vilified defense counsel.
Defendant did not object to the closing argument remarks by the prosecutor which he now asserts constitute misconduct. He did not ask the trial court to admonish the jury with regard to the challenged remarks. He has thereby forfeited his prosecutorial misconduct claims. (People v. Panah (2005) 35 Cal.4th 395, 462 (Panah); People v. Kipp (2001) 26 Cal.4th 1100, 1130; People v. Samayoa (1997) 15 Cal.4th 795, 841.) " 'The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the [trial] court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial.' " (People v. Brown (2003) 31 Cal.4th 518, 553.) By failing to object at trial, defendant did not give the trial court an opportunity to address his objections and remedy any resulting prejudice.
Defendant insists we can review his appellate claims despite his failure to object at trial because the trial court failed to fulfill its sua sponte gatekeeping function to remedy acts of prosecutorial misconduct. The California Supreme Court has rejected a similar assertion. (People v. Arias (1996) 13 Cal.4th 92, 159-160; People v. Medina (1995) 11 Cal.4th 694, 727; People v. Bell (1989) 49 Cal.3d 502, 542.) We do the same here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant argues in the alternative that the lack of a contemporaneous objection does not preclude appellate review because the acts of prosecutorial misconduct here irreparably tainted his trial, and objections and admonitions could not cure the misconduct. Failure to object and to request an admonition does not result in forfeiture where an objection and/or request for an admonition would have been futile or the prosecutor's misconduct is of such character that an admonition could not cure the harm caused by the misconduct. (Panah, supra, 35 Cal.4th at p. 462; People v. Kirkes (1952) 39 Cal.2d 719, 726.) "A defendant claiming that one of these exceptions [to the requirement of objecting at trial] applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough." (Panah, supra, 35 Cal.4th at p. 462.) Other than arguing that one cannot unring a bell, defendant does not explain how a timely objection and/or admonition to the jury would have been futile in this case. We need not consider claims made in a perfunctory fashion and without supporting argument. (People v. Redd (2010) 48 Cal.4th 691, 744; People v. Earp (1999) 20 Cal.4th 826, 881.)
Defendant also argues we should exercise our discretion to decide his claims on the merits, or that we should decide the claims on the merits by inquiring into whether his trial counsel rendered ineffective assistance by failing to object at trial. We again reject defendant's perfunctory assertions.
With regard to his ineffective assistance of counsel claim, "[a] defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored." (People v. Lopez (2008) 42 Cal.4th 960, 966.) Moreover, " 'deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffectiveness assistance.' " (People v. Collins (2010) 49 Cal.4th 175, 233; see People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Frierson (1991) 53 Cal.3d 730, 749.) Defendant's conclusory one paragraph argument does not demonstrate how the record reveals no plausible justification for his trial counsel's omission as to each statement challenged on appeal.
II
Defendant claims Detective Hardy improperly testified about defendant's state of mind, in particular, his motive for shooting Ronald.
As a threshold matter, the Attorney General argues defendant forfeited his appellate claim by not raising it in the trial court. We need not decide whether defendant preserved his appellate claim because the claim fails on the merits.
In response to a hypothetical based on the evidence presented, it is proper for a gang expert to testify that the hypothetical incident is a gang-motivated attack. (People v. Vang (2011) 52 Cal.4th 1038, 1043, 1045; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1514.) But an expert may not testify that the defendant committed the charged offense for gang purposes. (Vang, supra, 52 Cal.4th at p. 1048; People v. Ewing (2016) 244 Cal.App.4th 359, 382; see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551; contra, People v. Valdez (1997) 58 Cal.App.4th 494, 508-510 .)
In this case, Detective Hardy did not testify about defendant's subjective intent or motive for shooting Ronald. The detective testified about the concept of respect in the gang culture in general. After relating his understanding of the confrontation between defendant and Ronald weeks before the shooting, Detective Hardy explained why it would be disrespectful for a Crip gang member to use the words "Crip" and "cuz" in the home of an Oak Park Blood gang member and the consequences to the Oak Park Blood gang member for his failure to respond to the disrespect by the Crip gang member. Detective Hardy opined, in response to a hypothetical tracking the facts of this case, that the Oak Park Blood OG in the hypothetical shot the young Crip in the hypothetical for the benefit of the Oak Park Blood gang. Detective Hardy did not say that defendant shot Ronald for a particular reason. He did not provide prohibited testimony about defendant's state of mind.
III
Defendant next claims insufficient evidence supports the gang enhancement finding that a primary activity of the Oak Park Blood gang was the commission of one or more of the crimes enumerated in section 186.22, subdivision (e)(1) to (25) or (31) to (33).
" 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]' [Citations.]" (People v. Nelson (2011) 51 Cal.4th 198, 210.)
The People alleged that defendant committed attempted 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, within the meaning of section 186.22, subdivision (b)(1). Section 186.22 defines "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of [section 186.22,] subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Thus, in order to establish the existence of a criminal street gang, the People must prove that one of the group's chief, principal, or more than occasional occupations was the commission of one or more of the crimes listed in section 186.22, subdivision (e)(1) to (25) or (31) to (33). (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).)
"Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in [section 186.22, subdivision (e)]." (Sengpadychith, supra, 26 Cal.4th at p. 324, italics omitted.) Prior conduct or acts committed at the time of the charged offenses can be used to establish the primary activities of the gang. (Id. at p. 323.) Expert testimony that the gang was primarily engaged in committing the enumerated crimes may also be sufficient. (Id. at p. 324.)
Detective Hardy testified that a primary occupation of a criminal street gang is the commission of one or more of a list of predicate crimes. He correctly stated that prohibited possession of a firearm is one of those predicate crimes which satisfies the primary activities element of a criminal street gang. (§ 186.22, subds. (e)(31), (f).) But Detective Hardy did not say that prohibited possession of a firearm was a primary activity of the Oak Park Blood gang.
Detective Hardy described the August 12, 2011 and February 25, 2013 convictions for possession of a firearm by a felon against Mark. The detective said those convictions were predicate crimes for the Oak Park Blood gang. Additionally, the detective testified that defendant, an Oak Park Blood gang member, was convicted of illegal possession of a firearm at some unspecified time before the April 12 shooting. Kathleen and Vanessa testified that defendant shot at Ronald with a gun on April 12. The above evidence is insufficient to prove that members of the Oak Park Blood gang consistently and repeatedly committed the crime of prohibited possession of a firearm. (Compare In re Alexander L. (2007) 149 Cal.App.4th 605, 612-614 [gang expert's testimony about two convictions of purported gang members is insufficient to show that gang members consistently and repeatedly committed crimes listed in section 186.22], People v. Perez (2004) 118 Cal.App.4th 151, 160 [three shootings over a period of one week and an attempted murder that occurred six years prior to the shootings do not establish that a primary activity of the gang is the commission of crimes listed in section 186.22] and In re Jorge G. (2004) 117 Cal.App.4th 931, 945 [evidence of one enumerated offense is insufficient to support the primary activities element] with People v. Vy (2004) 122 Cal.App.4th 1209, 1224-1225 [three predicate crimes by members of the subject gang over a period of less than three months is sufficient to satisfy the primary activities element].)
The Attorney General asserts that other testimony by Detective Hardy and Iesha showed that Blood gang members consistently and repeatedly committed illegal possession of a firearm, robbery, assault with a firearm, and/or attempted murder. We examined the portions of the record the Attorney General cited and conclude the cited testimony does not establish that a primary activity of the Blood or the Oak Park Blood gang was the commission of illegal possession of a firearm, robbery, assault with a firearm, and/or attempted murder. Our review of the record discloses no substantial evidence supporting the jury's finding that a primary activity of the Oak Park Blood gang was the commission of illegal possession of a firearm, robbery, assault with a firearm, and/or attempted murder. Accordingly, we will reverse the true finding on the section 186.22 gang enhancement allegation and strike the 10-year prison sentence imposed under section 186.22 in count one.
Because we reverse the true finding on the section 186.22 gang enhancement allegation and strike the sentence imposed under section 186.22, we need not discuss defendant's claims that insufficient evidence supports the gang enhancement finding that defendant shot Ronald with the specific intent to promote, further, or assist in criminal conduct by gang members and that the trial court erred in imposing a 10-year prison term under section 186.22, subdivision (b)(1) on count one. We also do not need to discuss defendant's claim that Detective Hardy related testimonial hearsay statements of nontestifying witnesses in violation of defendant's confrontation clause right because that challenged testimony was part of the detective's explanation of the basis for his opinion that defendant was an Oak Park Blood gang member.
Defendant further argues the failure of proof on the gang enhancement allegation tainted the conviction on the attempted murder count, requiring reversal. We are not persuaded.
The cases defendant cites -- People v. Enriquez (1977) 19 Cal.3d 221 [error in admitting a witness's prior recorded testimony], disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; People v. Torres (1964) 61 Cal.2d 264 [error in refusing to allow a witness to testify about a fact relevant to the defendant's alibi defense and credibility]; People v. Smittcamp (1945) 70 Cal.App.2d 741 [error in giving "other acts" jury instruction where the "other acts" evidence was supported solely by the victims' testimony] -- involve prejudicial error in admitting or excluding evidence. By contrast, defendant does not claim the trial court erred in admitting gang evidence. In the trial court, defendant conceded gang evidence was admissible. Defendant objected only to the scope of the gang expert's testimony about defendant's 1990 conviction and evidence of a 2009 complaint against defendant by his brother Howard, and defendant sought a ruling that the gang expert could not testify about defendant's motive. While the People failed to prove an element of the criminal street gang finding, defendant does not show that gang evidence was admitted in error.
Citing People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), defendant says a finding of insufficient evidence to support a gang enhancement may affect the viability of the underlying conviction. In Albarran, a jury convicted the defendant of attempted murder, shooting at an inhabited dwelling and attempted kidnapping and found section 186.22 allegations to be true. (Albarran, supra, at pp. 219, 222.) The trial court granted the defendant's motion for a new trial on the ground that the gang evidence was insufficient to prove the section 186.22 allegations. (Albarran, supra, at pp. 222-223.) The defendant argued on appeal that the trial court should also have concluded that the gang evidence was irrelevant and unduly prejudicial as to the underlying charges and granted him a new trial motion on those charges. (Id. at p. 223.) The Court of Appeal agreed, holding that the trial court erred in admitting the gang evidence because there was insufficient proof that the charged crimes were gang motivated. (Id. at pp. 217, 227-228.) Further, the error in admitting the gang evidence was not harmless because the gang evidence presented was highly inflammatory and supported no permissible inferences. (Id. at pp. 217, 230-231.) Thus, the Court of Appeal reversed the judgment on all of the charges. (Id. at p. 232.)
Unlike the defendant in Albarran, defendant here does not contend there was insufficient evidence that the charged offense was gang motivated. Any such contention would be without merit. Albarran is distinguishable and does not require us to reverse the judgment on count one.
IV
Defendant further asserts the trial court erred in failing to give a unanimity instruction for the count three charge of making a criminal threat.
We may consider defendant's appellate claim even though he did not request a unanimity instruction because a trial court should give the instruction even absent a request " ' "where the circumstances of the case so dictate." ' " (People v. Covarrubias (2016) 1 Cal.5th 838, 877 (Covarrubias); People v. Riel (2000) 22 Cal.4th 1153, 1199 (Riel).) We review defendant's claim of instructional error de novo. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez).)
"In a criminal case, 'the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.' " (Covarrubias, supra, 1 Cal.5th at pp. 877-878, italics omitted, citing People v. Russo (2001) 25 Cal.4th 1124, 1132.) A trial court should give the unanimity instruction when " 'there is a risk the jury may divide on two discrete crimes and not agree on any particular crime.' " (Covarrubias, supra, 1 Cal.5th at p. 878; see Hernandez, supra, 217 Cal.App.4th at p. 569.) A unanimity instruction "is given to ensure that all 12 jurors unanimously agree, and are unanimously convinced beyond a reasonable doubt, which instance of conduct constitutes the charged offense." (Hernandez, supra, 217 Cal.App.4th at p. 569.) A unanimity instruction is not required where " 'the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed defendant committed one act but disbelieved that he committed the other, or because "there was no evidence from which the jury could have found defendant was guilty of" the crime based on one act but not the other.' " (Covarrubias, supra, 1 Cal.5th at p. 879; see Riel, supra, 22 Cal.4th at p. 1199.)
Defendant was charged with one count of making a criminal threat in violation of section 422 in that on April 14, 2013, he willfully threatened to commit a crime which would result in death and great bodily injury to Kathleen, with the specific intent that his statement be taken as a threat.
There is evidence of more than one threat against Kathleen by defendant. The prosecutor argued to the jury that the text message -- in which defendant threatened to beat Kathleen's face straight -- constituted a criminal threat. The prosecutor also argued that defendant's voicemail message -- in which defendant said he would "get to" Kathleen before she got to him, he was "calling to shoot" Kathleen, and he would "just show up at the door" -- was another criminal threat. The jury's verdict on count three does not indicate which act the verdict is based on. The trial court told the jury its verdict on each count must be unanimous, which the trial court said meant that the jurors all had to agree to it. But the trial court did not give the CALCRIM No. 3500 or a similar unanimity instruction.
Notwithstanding the lack of election by the prosecution as to which message from defendant was the basis for count three, we conclude no instructional error occurred. Defendant presented the same defense to the alleged threats in the text and voicemail messages. Although he declined to testify and presented no evidence of his own regarding a defense to the threat charge, he claimed through counsel at argument that he did not harbor a "serious intention" to carry out a threat against Kathleen and that Kathleen is a liar. Defense counsel argued, "This is how these people talk to each other" and, "Everybody knows this is not serious." Defendant's argument did not distinguish between the threat in the text message and the threats in the voicemail message. He did not dispute one and not the other, or even dispute that either threatening statement (the voicemail or the text) was made, but rather argued only that there was no intent to threaten in both and that any professed fear by Kathleen was not genuine. The jury reviewed the content of defendant's text message and defendant's voicemail message was played at the trial. Both messages conveyed a threat of death ("I'm calling to shoot you") or great bodily injury ("your face will b srraight"). Contrary to defendant's contention, Kathleen's testimony did not suggest a momentary, fleeting or transitory feeling with regard to the text message but not the voicemail message. Kathleen said she understood the text message as a threat, she was concerned for her safety after she had seen defendant shoot someone two days earlier, she believed defendant would carry out his threat against her soon, and she contacted the authorities. Kathleen testified that defendant's voicemail message made her feel helpless and fearful for herself and her family. She thought defendant would follow through and show up at her door. Kathleen's testimony indicates she experienced "sustained fear" for her safety as a result of the text and voicemail messages. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140; People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Although he argues the text and voicemail messages involved different means of delivery, were not sent at the same time, and threatened different harms, defendant does not explain how those differences affect the only defenses articulated at trial, i.e., that defendant did not seriously intend to carry out a threat against Kathleen and Kathleen is not credible in arguing defendant's words caused fear.
No jury could have believed that defendant texted Kathleen with the requisite intent, and that Kathleen felt the requisite fear, but not believed the same about the voicemail. A unanimity instruction is not required under these circumstances. (Covarrubias, supra, 1 Cal.5th at p. 880; Riel, supra, 22 Cal.4th at p. 1199.)
V
Defendant argues the trial court erred in not awarding him any presentence conduct credit. The Attorney General agrees the sentence should be modified to include such an award, subject to the limitation in section 2933.1.
The trial court awarded defendant 160 days of actual time credit. No award was made for presentence conduct credit. We agree defendant should be awarded 24 days of presentence conduct credit. (§ 2933.1, subd. (a).)
VI
Defendant also contends the trial court erred in imposing the section 667(a)(1) enhancement on counts one and three. Defendant received an indeterminate life sentence on count one and a determinate sentence on count three. In addition, the trial court imposed a five-year term on each count pursuant to section 667(a)(1) based on defendant's prior serious felony conviction.
Section 667(a)(1) provides, "any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." (See § 1385, subd. (b) [section 667(a)(1) enhancements are mandatory].) Attempted murder and criminal threats in violation of section 422 are serious felonies within the meaning of section 667(a)(1). (§§ 667, subd. (a)(4), 1192.7, subd. (c)(9), (c)(38).) Because the trial court found defendant was previously convicted of a serious felony and defendant was convicted of serious felonies in the current case, defendant is subject to the five-year prior serious felony enhancement under section 667(a)(1). (§ 667, subd. (a)(1); People v. Sasser (2015) 61 Cal.4th 1, 6 (Sasser).) The question is whether the trial court properly imposed the section 667(a)(1) enhancement twice, once on the indeterminate sentence imposed on count one and once on the determinate sentence imposed on count three.
In People v. Misa (2006) 140 Cal.App.4th 837, 841 (Misa), the defendant was convicted of one count of torture and two counts of assault with a deadly weapon by means of force likely to cause great bodily injury. The trial court found true the allegation that the defendant had previously been convicted of a serious felony. (Id. at pp. 841, 847.) The trial court sentenced the defendant to an indeterminate life sentence on the torture count and a determinate term on the assault counts. (Id. at p. 841.) The trial court added a section 667, subdivision (a) enhancement to the determinate term and also to the indeterminate term. (Misa, at p. 840.) The defendant challenged the double section 667(a)(1) terms on appeal. (Misa, at p. 840.)
Extending the California Supreme Court's analysis in People v. Williams (2004) 34 Cal.4th 397 to the circumstances before it, the Misa court held it was proper to impose the section 667(a)(1) enhancement twice in that case. (Misa, supra, 140 Cal.App.4th at p. 846.) The Court of Appeal in Misa concluded that section 667, subdivision (e) applied to second strike sentences like the one before the Misa court. (Misa, at p. 846.) Misa held that People v. Williams, supra, 34 Cal.4th 397 required the imposition of the section 667(a)(1) enhancement on the Misa defendant's second strike offense (the torture count) notwithstanding that the enhancement was also imposed on the determinate sentence for the assault counts. (Misa, at p. 846.) The Misa court said imposing the section 667, subdivision (a) enhancement on each of the defendant's current qualifying convictions fulfilled the purpose of section 667, subdivision (a) to increase sentences for recidivist offenders. (Misa, at pp. 846-847.)
Here, defendant's minimum term for his indeterminate life sentence was doubled pursuant to section 667, subdivision (e)(1). Section 667, subdivision (e)(1) provides, "If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." Section 667, subdivision (e) states the doubling required in subdivision (e)(1) is "in addition to any other enhancement or punishment provisions which may apply." Section 667(a)(1) requires the trial court to impose a five-year enhancement "in addition to the sentence imposed by the court for the present offense" where the defendant is convicted of a serious felony and has previously has been convicted of a serious felony in this state.
The cases defendant cites involved a determinate sentence only and/or do not discuss how to apply the section 667(a)(1) enhancement to sentences which include a determinate and an indeterminate term. (People v. Nguyen (1999) 21 Cal.4th 197; People v. Sok (2010) 181 Cal.App.4th 88; People v. Hardy (1999) 73 Cal.App.4th 1429; People v. Dominguez (1995) 38 Cal.App.4th 410.) While the alternative sentence at issue in Sasser, supra, 61 Cal.4th 1, a decision referenced in defendant's first supplemental appellate opening brief, included indeterminate and determinate terms and the imposition of the section 667(a)(1) enhancement to those terms, the only issue the California Supreme Court decided in Sasser was whether the section 667(a)(1) enhancement may be added only once to the determinate term. (Sasser, at pp. 6-7.) The Supreme Court held the enhancement may be added only once to the seven determinate terms imposed in that case. (Ibid.) It did not decide whether the trial court erred in imposing the additional section 667(a)(1) enhancements to each of the two indeterminate sentences. Sasser did not discuss Misa, supra, 140 Cal.App.4th 837.
We conclude, based on Misa, supra, 140 Cal.App.4th 837 and the language of section 667, that the trial court did not err in imposing the section 667(a)(1) enhancement to the indeterminate life sentence in count one and the determinate sentence in count three.
VII
We granted defendant's request to submit supplemental briefing on whether this matter should be remanded to permit the trial court to exercise its discretion to strike the section 12022.53 firearm enhancement allegation or finding pursuant to the recent amendment to section 12022.53, subdivision (h) (Sen. Bill No. 620).
The trial court imposed a mandatory consecutive 20-year prison term pursuant to section 12022.53, subdivision (c) because the jury found defendant personally and intentionally discharged a firearm during the commission of the attempted murder. At the time defendant was sentenced, section 12022.53, subdivision (h) did not give the trial court any discretion to strike a section 12022.53 allegation or finding. Former section 12022.53, subdivision (h) provided: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Stats. 2010, ch. 711, § 5.) Effective January 1, 2018, however, Senate Bill No. 620 amended section 12022.53, subdivision (h) to grant a trial court discretion to strike or dismiss a section 12022.53 firearm enhancement at the time of sentencing or resentencing: "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, § 2.)
Defendant argues that Senate Bill No. 620 applies retroactively to his case. The Attorney General agrees.
"When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date. [Citation.] We [base] this conclusion on the premise that ' "[a ] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law." ' " (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted, italics omitted; see In re Estrada (1965) 63 Cal.2d 740, 745.) The rule of retroactivity articulated in Estrada applies where the Legislature amends a statute to give the trial court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 75-76.) Because Senate Bill No. 620 gives a trial court discretion to strike or dismiss a firearm enhancement allegation or finding, which discretion the trial courts did not previously have, and nothing in section 12022.53 indicates the Legislature intended the amended statute to be prospective only, we conclude the amended section 12022.53 applies retroactively. (In re Estrada, supra, 63 Cal.2d at p. 745; Francis, supra, 71 Cal.2d at pp. 75-76; see People v. Suarez (2017) 17 Cal.App.5th 1272, 1288-1289 [even though the appellate court did not publish that portion of its opinion regarding Sen. Bill No. 620, it remanded the matter so that the trial court may exercise its discretion under section 12022.53, subdivision (h)], disapproved on other grounds as stated in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 311-315.)
Citing People v. Gutierrez (1996) 48 Cal.App.4th 1894, the Attorney General argues remand for resentencing is unnecessary because there is no likelihood the trial court would exercise its discretion to strike the firearm enhancement allegation. Gutierrez held in a similar context that a remand for resentencing is not required when "the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Id. at p. 1896.)
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Ca.App.4th 1213, 1228.) Thus, the general rule is remand. In this case, we will not depart from the general rule.
The jury found defendant personally used a firearm (§ 12022.53, subd. (b)) and intentionally discharged a firearm (§ 12022.53, subd. (c)) but found the allegation that defendant intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) not true. At the time of defendant's sentencing, these findings resulted in a mandatory 20-year consecutive sentence. Now, the trial court has discretion to fashion a sentence of its choosing -- including a sentence of 0, 10, or 20 years for defendant's firearm use -- and exercise its discretion in so doing; this opportunity was not previously available to it. Accordingly, we will remand to maximize the trial court's ability to exercise its discretion.
DISPOSITION
The true finding on the section 186.22 gang enhancement allegation is reversed and the 10-year sentence for that enhancement in count one is stricken. The judgment is further modified to award 24 days of presentence conduct credit (§ 2933.1, subd. (a)). The judgment is affirmed as modified, and the matter is remanded to permit the trial court to exercise its discretion regarding the section 12022.53 firearm enhancement. The trial court is further directed to correct the abstract of judgment to reflect the oral imposition of 14 years to life on count one and six years on count three, to amend the abstract to reflect the judgment as modified, and to forward a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
DUARTE, J.