Opinion
F072282
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JAVIER VALDEZ, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren Indermill, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DF011554A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren Indermill, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Javier Valdez was convicted of assault with a firearm, being an active participant in a criminal street gang, and participating in criminal gang activity while carrying a loaded firearm in a public place. For the assault, he received a sentence of 13 years, which included an enhancement based on an allegation of shooting from a vehicle and causing great bodily injury. The sentences for the two gang counts were stayed.
Valdez was 17 years old when the shooting took place in 2013. Because the charges against him included attempted murder, the prosecution was authorized under former Welfare and Institutions Code section 707, subdivision (d), to prosecute him in adult court without an opportunity for a hearing in juvenile court regarding his fitness for juvenile proceedings. That is the procedure that was used.
At the November 8, 2016 election, after Valdez's conviction and sentencing, the voters approved Proposition 57. The new law became effective the day after the election. Proposition 57 amended Welfare and Institutions Code section 707 to require all juvenile offenses to be tried in juvenile court unless the prosecution requests a transfer hearing and obtains a ruling that the minor is not fit for juvenile proceedings. (Welf. & Inst. Code, § 707, subd. (a).)
At our request, the parties submitted briefing on the question of whether Proposition 57 applies retroactively to Valdez's case. After those briefs were submitted, the California Supreme Court held that the new law applies to cases like this one that were nonfinal when the law went into effect. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299.)
We will dispose of the other issues raised in Valdez's appeal, conditionally reverse the judgment, and remand the case to the juvenile court. If a transfer hearing is requested and the juvenile court finds Valdez not fit for juvenile proceedings, the judgment will be reinstated except to the extent we reverse it for other reasons. Otherwise, the sentence will be vacated, the convictions (except as reversed for other reasons) will be deemed juvenile adjudications, and the juvenile court will be directed to conduct a dispositional hearing and impose a disposition within its discretion.
Valdez challenges the sufficiency of the evidence presented in support of the two gang counts. He contends, and the People concede, that under People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), both of these offenses required proof that Valdez and another gang member committed a predicate felony in concert. Valdez says the evidence did not show he committed the assault in concert with anyone, and no attempt was made to prove any other predicate felony that he might have committed in concert with someone. The People assert that, by making a series of assumptions, the jury could find Valdez and his codefendant committed the assault in concert.
Valdez is correct. The assumptions required by the People's theory were not supported by the evidence. We reverse the conviction of being an active participant in a criminal street gang. The conviction of participating in criminal gang activity while carrying a loaded firearm in a public place is reduced to the lesser included misdemeanor offense of carrying a loaded firearm in a public place (Pen. Code, § 25850(c)(7)).
FACTS AND PROCEDURAL HISTORY
The district attorney filed an information charging Valdez and codefendant Benjamin J. in connection with the shooting of Armando M., which took place on November 5, 2013. Counts 1 through 5 charged Valdez as follows: (1) attempted murder (Pen. Code, §§ 187, subd. (a), 664 ); (2) assault with a firearm (§ 245, subd. (a)(2)); (3) actively participating in a criminal street gang (§ 186.22, subd. (a)); (4) possessing a handgun while a ward of the juvenile court (§ 29820, subd. (a)(1)); and (5) carrying a loaded firearm in a public place while an active member of a criminal street gang (§ 25850, subd. (c)(3)).
This was about two weeks before Valdez's 18th birthday.
Statutory references are to the Penal Code unless otherwise noted.
The information included several sentence enhancement allegations as to Valdez. On count 1, it was alleged that the attempted murder was committed with a circumstance that would have established first degree murder had the crime been completed (in this instance, discharging a firearm from a motor vehicle intentionally at another person outside the vehicle with the intent to inflict death) (§ 189), and also that Valdez personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). On counts 1, 2, and 4, it was alleged that Valdez committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) On counts 2, 3, 4, and 5, it was alleged that Valdez personally used a firearm (§ 12022.5, subd. (a)), personally inflicted great bodily injury (§ 12022.7), and inflicted great bodily injury by discharging a firearm from a motor vehicle (§ 12022.55).
Count 4, possessing a handgun while a ward of the juvenile court, was dismissed at the prosecution's request before trial.
Benjamin was charged in counts 6 through 9: (6) attempted murder (§§ 187, subd. (a), 664); (7) assault with a firearm (§ 245, subd. (a)(2)); (8) carrying a loaded firearm in a public place while an active member of a criminal street gang (§ 25850, subd. (c)(3)); and (9) actively participating in a criminal street gang (§ 186.22, subd. (a).) A number of enhancement allegations were included.
Armando, who was 18 years old at the time of trial in 2015, testified that on the day he was shot he was a student at North Kern Community School in Delano. This was a school that specialized in educating students with gang affiliations. Students were referred to the school from surrounding communities. While on campus, students were segregated according to gang affiliation to avoid security problems. Students were checked for weapons with a hand-held metal detector when they arrived each morning.
The school principal estimated at trial that of the school's 200 students, approximately 100 were Norteños, 20 Sureños, and 80 neutral.
Valdez and Benjamin also were students at the school. A school employee testified that they associated with Sureños while at school. On the day of the shooting, Valdez and Benjamin got in a car when the Sureños were dismissed for the day at 12:50 p.m., and drove off campus. Valdez was driving. Armando and his friend Sergio V. left on foot when the Norteños were dismissed separately at 1:05 p.m. According to Armando, he was not a gang member, but Sergio was a Norteño.
Armando testified that he and Sergio were walking near a parking lot a short distance from the school when Valdez's car passed by and Benjamin made a gang sign with his hand out the window and shouted "sur" (i.e., south). Sergio made a gesture toward Benjamin that Armando understood to be "calling him on." The car kept going but then came back and Benjamin got out. Benjamin and Sergio fought. Sergio fell and Armando joined in the fight. Benjamin ran back to the car and Armando followed. When Benjamin got in the car and sat in the passenger seat, Armando saw Valdez in the driver's seat. Armando kicked the car door and prepared to throw a punch through the open passenger window, but Valdez grabbed a gun from the door on the left side of the car, extended his arm across Benjamin's chest, and pointed the gun at Armando. Armando turned and was shot as he ran away. The bullet went though his arm, into his abdomen, and out his back. Valdez and Benjamin drove away and Armando ran back to the school and into the office. No one but Valdez, Benjamin, Armando, and Sergio was involved in the altercation, according to Armando.
Valdez testified that he became a Sureño gang member at age 11, after other members threatened some form of consequences to him and his family if he did not join. At the age of 14 or 15, he was shot with a pellet gun, and at 17, he was shot with a real gun. After the second incident, he began carrying a gun himself for protection.
Valdez testified that on the day of the shooting, he was about to leave school and drive his car to Pixley to pick up his daughter. Benjamin asked him for a ride to a supermarket nearby, where someone was to meet him and take him to Earlimart. Benjamin's ride did not arrive, however, and Valdez agreed to drive Benjamin to Earlimart himself. They were driving back past the school, heading for the freeway, when they encountered a red light. As Valdez slowed down and prepared to stop for the light, he saw a group of about ten students on the sidewalk, with Sergio walking behind them. Sergio made a gesture with his hands and head that Valdez understood to be "calling [Benjamin] out." Benjamin jumped out of the car, went to Sergio, and started fighting with him. After 20 or 30 seconds, Sergio fell to his knees, and two other people approached from the group of students and started hitting Benjamin. Fifteen to 20 seconds later, three more joined in the fight against Benjamin. Armando was part of the group; he hit Benjamin from behind and Benjamin fell down. The others hit and kicked Benjamin as he lay on the ground. Meanwhile, Valdez parked the car. Benjamin got up and ran to the car, chased by all the people in the group Valdez had seen.
As Benjamin got back in the car, the chasing group surrounded it and banged on the doors and windows. Benjamin was still being hit as he sat in the passenger seat. The people surrounding the car were calling Valdez and Benjamin "scrubs" and telling them to "fuck off." A cologne bottle and a cell phone were thrown into the car. Valdez saw one of the Norteños holding a knife. Valdez was afraid for his and Benjamin's safety. There was a sign blocking the way forward and the group of people was standing behind and at the sides of the car, so Valdez could not drive away without running them over. Instead, he withdrew his loaded pistol from the glove compartment and fired it through the passenger window, intending to fire toward the sky. He was not trying to hit anyone. The nearest Norteño was beside the car, still hitting Benjamin. Valdez could have shot him in the head, and could have fired more than one round, if he had meant to kill someone. He only wanted to scare the group away and did not know he had hit anyone until he heard about it on the news that night. After the shot was fired, the group fled and Valdez drove away.
Valdez testified that he never told Benjamin there was a gun in the car. When Valdez fired the gun, Benjamin looked shocked.
Michael Strand, a police officer, testified as an expert regarding the gang issues. On the basis of evidence including tattoos, clothing, other gang paraphernalia, statements made by Valdez, and offense reports referencing him, Strand opined that Valdez was an active Sureño gang member on the day of the shooting. He stated a similar opinion about Benjamin. Strand further opined that Sergio was an active Norteño gang member at the time of the shooting, but Armando was not; instead, Armando "just associated with Norteños at a very low level." In response to a hypothetical question based on the facts of the case, Strand asserted that the crimes charged were committed in association with and for the benefit of a criminal street gang.
Strand also stated an opinion about what he referred to as a "gang gun":
"It's a gun shared by members of the same gang. And it's expected for gang members who have that gun to tell other gang members inside the same car that the gun is with them. The logic being [that] this is a gun not only for me, if I were a gang member, but for the gang itself
Defense counsel made an objection based on People v. Killebrew (2002) 103 Cal.App.3d 644, (Killebrew), which criticized the use of the "gang gun" concept by prosecution experts. The objection was overruled.
Killebrew was criticized and rejected in part by People v. Vang (2011) 52 Cal.4th 1038, 1046-1049. We will discuss Killebrew further below. --------
The jury found Benjamin not guilty on all counts. It found Valdez not guilty of attempted murder and not guilty of attempted voluntary manslaughter.
Valdez was convicted of the remaining counts. The jury found the enhancement allegations true on those counts, except that it found not true the gang enhancement allegation under section 186.22, subdivision (b).
On count 2, assault with a firearm, the court imposed the three-year middle term, plus the upper term of 10 years for the enhancement under section 12022.55. Pursuant to section 654, the court imposed and stayed sentences for the remaining enhancements on count 2. It also imposed and stayed sentences on counts 3 and 5 with their enhancements.
DISCUSSION
I. Proposition 57
In Lara, supra, 228 Cal.Rptr.3d at page 396, our Supreme Court stated:
"Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what we will call a 'transfer hearing' to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult. (See Welf. & Inst. Code, § 707, subd. (a).)
"We must decide whether this part of Proposition 57 applies retroactively to benefit defendant. In In re Estrada (1965) 63 Cal.2d 740 ..., we held that a statute that reduced the punishment for a crime applied retroactively to any case in which the judgment was not final before the statute took effect. In People v. Francis (1969) 71 Cal.2d 66 ..., we applied Estrada to a statute that merely made a reduced punishment possible. Estrada is not directly on point; Proposition 57 does not reduce the punishment for a crime. But its rationale does apply. 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, Estrada's inference of retroactivity 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."
In People v. Vela (2017) 11 Cal.App.5th 68, 81 (rev. granted Jul. 12, 2017, matter transferred to Court of Appeal for reconsideration on other grounds), the Court of Appeal held that Proposition 57 applied retroactively; it ordered a conditional reversal and remand to the juvenile court similar to the remedy we outlined above. The California Supreme Court cited this approach with approval in Lara, supra, 228 Cal.Rptr.3d at page 401. II. Sufficiency of evidence on counts 3 and 5
Valdez maintains the evidence was insufficient to prove count 3, actively participating in a criminal street gang (§ 186.22, subd. (a)), and count 5, carrying a loaded firearm in a public place while actively participating in a criminal street gang (§ 25850, subd. (c)(3)). These two offenses employ the same definition of active participation in a criminal street gang, the definition set forth in section 186.22, subdivision (a). Under that definition, an active participant is a "person who actively participates in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." (§ 186.22, subd. (a).) Valdez's argument is that the evidence did not prove he promoted, furthered, or assisted in a felony by any other gang member, so he was not proven guilty of either offense.
When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible, and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
The substantial evidence standard is deferential, but it still requires us to determine whether inferences necessary to support the judgment are reasonable. "A reasonable inference ... 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.... A finding of fact must be an inference drawn from evidence rather than ... a mere speculation as to probabilities without evidence.'" (People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 544-545, fns. 5-6.)
Valdez's argument is based on Rodriguez, supra, 55 Cal.4th 1125. Rodriguez deals with the meaning of the requirement that, to be guilty under section 186.22, subdivision (a), a defendant must promote, further or assist in criminal conduct "by members of that gang." Specifically, the case answers the question whether this language means the prosecution must prove the defendant committed a predicate offense, either as a principal or an aider-and-abettor, in concert with another person who was a gang member. (Rodriguez, supra, 55 Cal.4th at pp. 1128, 1131.) Before Rodriguez, some courts, including this one, had held that this was not required, and that a person could be proved guilty of violating section 186.22, subdivision (a), based on a predicate offense in which he or she acted alone. (See People v. Salcido (2007) 149 Cal.App.4th 356, 368, overruled by Rodriguez, supra, 55 Cal.4th at p. 1137, fn. 8.) Concluding that the predicate offense must be committed in concert with another, our Supreme Court explained its reasoning as follows:
"Section 186.22(a) speaks of 'criminal conduct by members of that gang.' (Italics added.) '[M]embers' is a plural noun. The words 'promotes, furthers or assists' are the verbs describing the defendant's acts, which must be performed willfully. The phrase 'any felonious criminal conduct' is the direct object of these verbs. The prepositional phrase 'by members of that gang' indicates who performs the felonious criminal conduct. Therefore, to satisfy the third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct. The plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (Rodriguez, supra, 55 Cal 4th at p. 1132.)This holding applies here, and after examining the record, we conclude the element of promoting, furthering or assisting in felonious conduct by another member of the gang was not proven.
The shooting is the only candidate for a predicate felony in the record. Counts 3 and 5 (and the corresponding counts 8 and 9 against Benjamin) could not count as predicate felonies for each other, as each would then need an underlying predicate felony in turn. An uncharged felony theoretically could serve the purpose, but the prosecution did not attempt to prove Valdez committed an uncharged felony in concert with anyone.
The evidence did not show Valdez committed the shooting in concert with Benjamin. There is no indication in the record that the shooting was anything but Valdez's individual reaction to the situation that developed from Benjamin's fight. To satisfy the furthering-or-assisting element, one of them would have had to help or encourage the other with the shooting in some way. There was no evidence supporting this. There was no suggestion that Benjamin handed the gun to Valdez or encouraged him to use it, for instance.
The People's sole argument on appeal in support of the view that Valdez and Benjamin committed a felony in concert is as follows:
"Officer Strand testified that gang members were required to tell other gang members when a gun was in a car, and further testified that it was common for words, insults, or looks to escalate into deadly confrontations. When [Benjamin] assaulted [Sergio] he was heavily outnumbered by the Norteños with [Sergio]. Given Officer Strand's testimony, it is reasonable to assume [Benjamin] assaulted [Sergio] while outnumbered to provoke an escalating conflict in which appellant would use the gun [Benjamin] knew appellant had. This conclusion is bolstered by the fact that the Norteño students had just been released from school where they had been searched before entering, and thus would be likely to be unarmed. [Benjamin] fleeing back to the car could reasonably be interpreted as an attempt to lure the Norteños closer to appellant's car, where they could be shot at short range. [¶] Appellant drove the car by the Norteño students, came around, and stopped near them, allowing [Benjamin] to get out. It is reasonable to assume that when he did so he was aware of [Benjamin's] plan and worked in concert with him to further it. By working together in this way, appellant and [Benjamin] came well within the ambit of section 186.22, subdivision (a)."As we will explain, evidence necessary to support all these assumptions and inferences was lacking.
First, we consider the inference that Benjamin must have known about Valdez's gun because, according to the prosecution's expert, a gun in a gang member's car is a gang gun about which any other gang members in the car must know. Killebrew held that it was improper for a prosecution expert to testify that a particular individual must have had subjective knowledge of a particular gun in a particular car just because gang members in general have a practice of sharing the information that a car contains a gun. (Killebrew, supra, 103 Cal.App.4th at pp. 652, 654, 657-658.) This court's opinion in Killebrew has been rejected in part by our Supreme Court. (See People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 [despite Killebrew, expert properly opined that hypothetical witnesses would be intimidated by hypothetical gang behavior in hypothetical scenario; together with other evidence, opinion could support finding that actual witnesses were intimidated] and People v. Vang, supra, 52 Cal.4th at pp. 1047-1049 [Killebrew incorrect if it rejected expert's answer to proper hypothetical question just because answer imputed state of mind to hypothetical individual].) But the point relevant here—that an opinion about what gang members in general may know in a certain type of situation is insufficient by itself to support a conclusion that a particular defendant did or knew something on a particular occasion—remains sound.
In this case, Strand did not state the conclusion that Benjamin must have known of the gun in Valdez's car. The opinion thus was relevant and was not improper under the doctrine of Killebrew, as that doctrine was interpreted and modified in subsequent California Supreme Court decisions. But it is only in conjunction with other evidence that an opinion about gangs' general practices with guns in cars can support a finding that a particular individual knew about a particular gun. There was not sufficient additional evidence in this case. It would have been improper for the jury to infer from Strand's opinion alone that Benjamin had actual knowledge of that gun.
The remaining inferences required by the People's theory are speculative as well. The notions that Benjamin intended to lure Norteños back to the car so Valdez could shoot them, and that Valdez knew of and concurred in this intention, are not supported by evidence. Nothing gave this hypothesis any more support than the contrary hypothesis that Benjamin simply acted rashly in getting involved in the fistfight and Valdez independently acted rashly in using the gun when the fight went badly.
For these reasons, the evidence was insufficient to show beyond a reasonable doubt that Valdez willfully promoted, furthered, or assisted in felonious criminal conduct by members of his gang. This means count 3 was not proven and the judgment on that count must be reversed.
The result is somewhat different on count 5 because even with the failure to prove the same element of section 25850, subdivision (c)(3), the elements of a lesser included offense remain. If a person "carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory" (§ 25850, subd. (a)), then the person is guilty of a misdemeanor (§ 25850, subd. (c)(7)), even if he or she is not an active participant in a criminal street gang. When the evidence is insufficient to prove an offense of conviction but sufficient to prove a lesser included offense, we are authorized to modify the judgment accordingly, and will do so. (§ 1181, subd. (6).)
DISPOSITION
The judgment is conditionally reversed and the case is remanded to the juvenile court. If the People make a motion for a transfer hearing under Welfare and Institutions Code section 707 within 90 days after the date this court issues its remittitur, and the juvenile court finds it would have transferred Valdez to a court of criminal jurisdiction, then the juvenile court must transfer the case back to a court of criminal jurisdiction, which shall reinstate the judgment with the following exceptions: The conviction on count 3 is reversed and the conviction on count 5 is reduced to a misdemeanor under section 25850, subdivision (c)(7). The court will then conduct proceedings to resentence count 5 as a misdemeanor, and will forward an amended abstract of judgment to the appropriate correctional authorities.
If the People do not submit a timely request for a transfer hearing or the request is submitted and the juvenile court finds it would not have transferred Valdez to a court of criminal jurisdiction, the sentence will be vacated and the convictions and enhancement findings will, with the exceptions just described, be deemed juvenile adjudications. The juvenile court shall then conduct a dispositional hearing and impose a juvenile disposition within its discretion.
/s/_________
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
MEEHAN, J.