Opinion
B301325
03-29-2023
THE PEOPLE, Plaintiff and Respondent, v. VERNON WILLIAMS, Defendant and Appellant.
Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez, Wyatt E. Bloomfield and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA144839 H. Clay Jacke, II, Judge. Vacated in part, affirmed in part, and remanded with directions.
Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez, Wyatt E. Bloomfield and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
Defendant Vernon Williams was convicted of three counts of possession of a firearm by a felon, in violation of Penal Codesection 29800, subdivision (a)(1). The trial court imposed an aggregate sentence of 11 years in state prison, which includes a 4-year gang enhancement that was imposed pursuant to section 186.22, subdivision (b)(1) for one of Williams's convictions; and two 16-month gang enhancements imposed pursuant to section 186.22, subdivision (b)(1) for his other two convictions.
Undesignated statutory citations are to the Penal Code.
On appeal, Williams challenges the trial court's imposition of the gang enhancements. In particular, Williams argues that the People failed to introduce sufficient evidence that: (1) Williams committed these offenses (a) for the benefit of, at the direction of, or in association with his gang (i.e., the Grape Street Crips), and (b) with the specific intent to promote, further, or assist in criminal conduct by gang members; and (2) the Grape Street Crips had as one of its primary activities one or more of the criminal acts identified in section 186.22, former subdivisions (e)(1) to (e)(25) and (e)(31) to (e)(33), such that it constituted a "criminal street gang" for the purposes of the enhancement provision.
We issued an opinion that rejected Williams's evidentiary challenges to the gang enhancements. First, we concluded the People offered evidence showing that in connection with at least two of his offenses, Williams possessed firearms in association with fellow gang members at a marijuana dispensary controlled by the Grape Street Crips, and that Williams committed all three offenses for the benefit of the gang to ensure that he and his gang affiliates could batter, assault, or kill any rival gang members or other adversaries who attempted to rob the establishment. Second, we concluded that the testimony of the People's gang expert regarding the Grape Street Crips' primary activities was sufficient to establish that element of the then-operative statutory definition of a criminal street gang.
The Supreme Court granted Williams's petition for review, but deferred "[f]urther action in this matter . . . pending consideration and disposition of a related issue in People v. Renteria, S266854 . . . ." On August 25, 2022, the high court issued its opinion in People v. Renteria (2022) 13 Cal.5th 951 (Renteria). The Supreme Court thereafter transferred the matter back to us "with directions to vacate [our prior] decision and reconsider the cause in light of" Renteria and certain legislative amendments concerning the gang enhancements that took effect after we had issued our opinion. Upon transfer, the parties submitted supplemental briefing on these issues.
Although the Supreme Court instructed us to reconsider the cause in light of the Renteria decision and the aforesaid new legislation, we again address Williams's initial sufficiency-of-the-evidence challenges because he has not withdrawn them, our prior opinion has been vacated, and it is unclear whether Williams could be retried on the gang enhancements if we reversed them for insubstantial evidence under the law in place prior to the recent legislative amendments concerning the gang enhancement statute.
As was the case in our prior opinion, we reject the evidentiary challenges raised in Williams's initial appellate briefing. Furthermore, we conclude that our resolution of those claims of error is consistent with Renteria. We also conclude that even if arguendo the new legislation requiring bifurcation of trial of the underlying offenses and the gang enhancements is retroactive, any error was harmless. Our high court, moreover, has rejected Williams's argument that such a failure to bifurcate is structural error.
Additionally, the parties do not dispute that Williams is entitled to the benefit of the new amendments to section 186.22, and that the People did not offer sufficient evidence to warrant imposition of the gang enhancements under the newly-amended statute. Accordingly, we vacate the gang enhancement findings, and affirm the remainder of the judgment. On remand, the People may elect to retry Williams on the gang enhancement allegations. If the People do not elect to retry Williams, then the trial court shall resentence him accordingly.
PROCEDURAL BACKGROUND
On March 1, 2018, the People filed an amended information charging Williams with one count of criminal threats, in violation of section 422, subdivision (a) (count 1); one count of battery with injury on a peace officer, in violation of section 243, subdivision (c)(2) (count 3); two counts of resisting an executive officer, in violation of section 69 (counts 4 and 5); one count of violating a criminal street gang injunction, in violation of section 166, subdivision (a)(9) (count 6); three counts of possession of a firearm by a felon, in violation of section 29800, subdivision (a)(1) (counts 7, 8, and 10); and one count of attempting to dissuade a witness, in violation of section 136.1, subdivision (a)(2) (count 11). The amended information included an allegation under section 186.22, subdivision (b)(1) for counts 7, 8, and 10. Williams pleaded not guilty on all counts and denied all allegations.
The amended information does not contain a count 2 or a count 9. Additionally, the trial court later amended count 3 such that it alleged a violation of section 243, subdivision (b) instead of section 243, subdivision (c)(2).
In July 2018, a jury acquitted Williams of counts 1 and 6 but deadlocked on the remaining counts. The trial court later dismissed counts 3, 4, and 5 pursuant to section 1385.
At the conclusion of Williams's second trial in January 2019, the jury acquitted Williams of count 11, but found him guilty on counts 7, 8, and 10, and found true the gang allegation for each of these three offenses.
On July 16, 2019, the trial court sentenced Williams to prison for an aggregate term of 11 years. Specifically, the trial court imposed a term of 3 years on count 7 along with a 4-year consecutive term under section 186.22, subdivision (b)(1), a consecutive prison term of 2 years that is comprised of 8 months for count 8 along with a 16-month term pursuant to section 186.22, subdivision (b)(1), and another consecutive term of 2 years that consists of 8 months for count 10 plus 16 months in accordance with section 186.22, subdivision (b)(1). Williams timely appealed the judgment on September 12, 2019.
FACTUAL BACKGROUND
We summarize only those facts that are relevant to this appeal.
1. Officer Paiz's encounter with Williams on June 13, 2017
On June 13, 2017, Officer Jeremy Paiz of the Los Angeles Police Department (LAPD) and his partner were on patrol in the Watts Neighborhood of Los Angeles. While Officer Paiz was driving his police vehicle, he saw Williams walk out of a marijuana dispensary, look at the police vehicle, grab his right front pocket, and run back inside the dispensary. The two officers thereafter attempted to enter the dispensary, but the door was locked. Officer Paiz could see Williams and several other persons inside the business, and noticed that Williams had a bulge in his right front pocket that Officer Paiz believed was a firearm.
After additional officers arrived at the scene, the police surrounded the building and ordered Williams and the other occupants to come out of the dispensary. Approximately 30 persons exited the dispensary, including Williams. The police did not find a weapon on any of these individuals. Officer Paiz later found a handgun in a dumpster in the parking lot behind the dispensary. As discussed in Factual Background part 2.c, post, Detective Daniel Pearce subsequently obtained surveillance footage from the dispensary showing that Williams possessed firearms at the establishment on June 10, 11, and 13, 2017.
2. Detective Pearce's expert testimony
At trial, Detective Pearce testified as the People's gang expert and as an investigating officer. Detective Pearce joined the LAPD's Southeast Division in 2004, and he was assigned to the Southeast gang impact team as a gang detective from 2008 to 2011, and again from late 2015 or early 2016 until late 2018. From 2005 until late 2018, Detective Pearce focused on investigating gang activity.
During Detective Pearce's investigations, he "talked to countless witnesses of crime, victims of crime, [and] gang members who commit crime." Additionally, Detective Pearce has spoken to over 100 Grape Street Crips gang members during the course of his career. Several of those gang members were "cooperative" and "provided [Detective Pearce] with information kind of behind the scenes about ongoing Grape Street [Crips] activities."
a. The Grape Street Crips and Gangs Generally
The Grape Street Crips gang has an informal hierarchical structure. "Young homies" are the "very active" gang members who commit various violent crimes and property offenses and are usually between 12 and 21 years of age. "Big homies," "the most influential person[s] . . . within the gang," are individuals who are "25 to 35 years of age" and "have demonstrated a loyalty to the gang with committing multiple crimes" and refusing to "snitch on the gang" (i.e., cooperate with law enforcement). The O.G.s are "above" the big homies; O.G.s have "retired from the active gang lifestyle" and are 35 to 50 years old.
At the time that Williams's second trial was held in January 2019, Detective Pearce had known Williams for approximately 13 years, and during that timeframe, Williams had become a "big homie" in the Grape Street Crips gang. Williams has several tattoos associated with the Grape Street Crips gang, including a tattoo with the letters "L" and "C" and another tattoo depicting an Uzi with the words "Costa Nostra" below it. Williams's monikers are "Double Deuces," "Dub," and "Big Dub."
The Grape Street Crips gang claims as its territory an area in the Watts Neighborhood, territory that includes the Jordan Downs housing project; Detective Pearce was assigned to the area in and around Jordan Downs in 2005. Generally, a gang will claim a territory as its own in order to have a place at which to "hang out, sell drugs, commit crimes, [and] to meet, . . . congregate, [and] defend." The Grape Street Crips gang uses guns to "defend the gang territory" and "intimidate people." Detective Pearce testified that if a gang member is in his gang's territory or stronghold and possesses a weapon, "it's important for a majority of the [gang], if not every member[,] to know if there is a gun and where it is" "[b]ecause at any given time[,] should another gang try to rob or shoot at the home gang, it is incumbent upon all the gang members to do their part to defend either their territory or the business . . . ." Detective Pearce testified that in "gang culture," it is not "acceptable to call the police" "[i]f you th[ink] that someone [is] there coming to hurt you"; a gang member is instead "expected to handle those kinds of threats" himself. When the prosecutor asked Detective Pearce to identify "the primary activities of the Grape Street Crips," Detective Pearce responded, "Shooting people, killing people, robbing people, intimidating people, selling drugs, breaking into people's homes, crimes such as that." Detective Pearce answered in the affirmative when the prosecutor asked whether "intimidating people" included criminal threats and intimidating witnesses.
b. The Dispensary and Wiretapped Telephone Calls
Prior to his involvement in the instant case, Detective Pearce knew about the marijuana dispensary in question because he had served search warrants at the establishment on several occasions. Based on his "background, training and personal experience," Detective Pearce opined that this dispensary was "connected to" and "run[ ]" by the Grape Street Crips in June 2017. Additionally, Detective Pearce stated that "[t]here was a tremendous amount of crime coming out of that weed shop." Detective Pearce recalled seizing "drugs, guns, [and] video" from the dispensary on multiple occasions.
For instance, Detective Pearce testified that the surveillance footage discussed later in this opinion showed that the shop contained a mural depicting a deceased and well-respected member of the Grape Street Crips. Detective Pearce testified that the presence of the mural at the business indicated that the dispensary had "[a] strong association with the Grape Street Crips."
The dispensary was not located in territory claimed by the Grape Street Crips, but was instead within an area claimed by the 89 Family Swan Bloods gang. Although Detective Pearce was not aware of "any issues" or "problems" between the Grape Street Crips and the 89 Family Swan Bloods, he stated that the two gangs are "[t]raditionally . . . enemies" of one another "because the Swans are Bloods and the Grape Street [members] are Crips." Detective Pearce also observed that the dispensary was "essentially surrounded by two Blood gangs who were rivals" of each other, given that the 89 Family Swan Bloods gang claimed territory to the north of the dispensary and the BOP Bloods gang claimed the area to the south of the establishment. Detective Pearce opined that the dispensary was "susceptible to being robbed by rival gangs," and that guns constituted a "fundamentally important" means of defending this territory from the Grape Street Crips gang's rivals. Detective Pearce also testified that marijuana shops in Watts are "frequently robbed," and that a dispensary in Watts may need guns for its defense even if that particular shop did not have "any gang connection."
At trial, the People played recordings of several telephone calls that were collected in connection with a wiretap investigation conducted in a separate case; Williams concedes that in several of these telephone calls, he "discuss[ed] the gang [(i.e., the Grape Street Crips)] and us[ed] gang language." In a December 5, 2017 telephone call, Williams indicated he was concerned because someone with a gun had been seen outside the marijuana dispensary. Williams remarked, "That man a danger to somebody . . . . He a danger to our life. No he a danger to our dispensary and to somebody life." Williams also stated, "I had the green light to get out of there to get to something, because you know, we don't have nothing in here." Detective Pearce opined that the "something" Williams referred to in the call was a gun.
Although the audio recordings are not in the record before us, a transcript of the calls is in the record.
While Williams at one point states in his appellate briefing that this call was "purportedly made by" him, he does not dispute that the People offered evidence showing that he participated in this telephone call and that he made the statements attributed to him in the textual paragraph accompanying this footnote. (See Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in which the Court of Appeal assumed that an assertion made by respondent was correct because the "defendant did not dispute respondent's claim in his reply"]; Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89-90 [concluding that the appellants made an implicit concession by "failing to respond in their reply brief to the [respondent's] argument on th[at] point"].)
c. The Offenses at Issue
On June 14, 2017, Detective Pearce and other LAPD officers executed a search warrant at the dispensary and seized a digital video recorder (DVR) from the establishment. The DVR preserved roughly 10 days of footage recorded from 16 surveillance cameras located inside and outside of the shop. Excerpts of the footage from the seized DVR were played for the jury at trial.
Because these excerpts of the footage are not in the record before us, we rely on Detective Pearce's testimony for the contents of the video. The next three paragraphs in this part summarize Detective Pearce's descriptions of the footage.
On June 10, 2017, Williams and two Grape Street Crips gang members (Keyon Faulkner and Deshawn Raspberry), exited a vehicle parked outside the dispensary and entered the establishment. While Williams was inside the dispensary, he placed "what appeared to be [a] firearm" with an extended magazine into his waistband, and he shortly thereafter put it in a bag that appeared to have another firearm inside of it. Next, Williams left the bag in the dispensary's parking lot, and Raspberry retrieved the bag from the lot and dropped it into a Buick; that car then "immediately" drove away from the business. A person operating a Cadillac drove off toward the Buick, and Williams entered a vehicle and followed the Cadillac. Detective Pearce testified that Williams and the drivers of the other vehicles were using a gang tactic called a "caravan"-i.e., the vehicle transporting the guns is followed by one or more vehicles that will distract police officers and ensure that "the car with the guns is free to go [to] wherever the destination is." Detective Pearce has seen Grape Street Crips gang members use the caravan tactic.
On June 11, 2017, while Williams was in the manager's office at the dispensary, he picked up a Glock firearm, removed the magazine from the gun, examined the magazine, and put the gun down just out of view of the surveillance camera. Later that day, Williams picked up the handgun and placed it in a drawer located in the office.
Approximately 45 minutes to an hour before Officer Paiz arrived at the dispensary on June 13, 2017, Martell Perry took a Beretta handgun equipped with a laser sight out of his jacket pocket and handed the weapon to Williams. The weapon thereafter ended up in the hands of a Grape Street Crips gang member named Marquis Goss, and Faulkner later held the weapon. Faulkner put the gun down, Williams picked it back up, and Williams handed the gun to Perry again. Perry later placed the handgun in a dumpster located in the parking lot of the dispensary.
Detective Pearce testified that, "based on the video evidence" offered at trial, he believed that Perry was "at the very least" an associate of the Grape Street Crips.
The People posed a lengthy hypothetical question to Detective Pearce: "[P]lease assume that we're talking about a long-time member of the Grape Street Crips who is considered or reached the status of 'big homie.' [¶] . . . In June of 2015 the Grape Street Crip big homie is helping to manage a marijuana dispensary in the area of 90th and South Central Avenue in the City and County of Los Angeles in the territory of a rival blood gang. [¶] First, on June 10 that same big homie is involved in trading handguns for marijuana and potentially other things, acting with at least two other Grape Street gang members and they use the main office of the dispensary as the trade location. [¶] And the next day the same gang member possesses a handgun with an extended magazine in the main . . . office of that same dispensary. [¶] And on June the 13th, three days after the first incident, the same big homie possesses a handgun at that marijuana shop, holding it at least two times and being aware of it in the shop for over an hour. That same weapon being trading [sic] amongst at least two other Grape Street gang members on that day inside the dispensary. [¶] Assuming all those facts, can you tell us if the conduct in the hypothetical[ ] was . . . done for the benefit of or in association of [sic] the Grape Street Crips?"
Although the evidence discussed in this part showed that the instant possession offenses occurred in June 2017, this discrepancy between the People's hypothetical question and the facts of this case has no apparent bearing on this appeal.
Detective Pearce opined that the conduct described in the hypothetical was done for the benefit of, and in association with, the Grape Street Crips. He testified that this conduct was done in association with the gang because "the gang member is with other gang members[ ] and . . . at a gang hangout, the weed dispensary." Detective Pearce further testified that "it benefits the gang when a gang member has a gun to defend himself and the gang at a marijuana dispensary or any type of business outside the gang area. . . . [G]angs need guns fundamentally for protection and to intimidate people and to kill people when needed."
STANDARD OF REVIEW
" 'In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must 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.'" (People v. Ochoa (2009) 179 Cal.App.4th 650, 656-657 (Ochoa).) In conducting this analysis, the reviewing court must "view[ ] all the evidence in the light most favorable to the prosecution, and draw[ ] all reasonable inferences in favor of the jury's findings." (See People v. Perez (2017) 18 Cal.App.5th 598, 607 (Perez).)
"[W]e must begin with the presumption that the evidence . . . was sufficient, and the defendant bears the burden of convincing us otherwise. . . . [¶] . . . [A]n appellate court is 'not required to search the record to ascertain whether it contains evidence that will sustain [the appellant's] contentions.' [Citation.] . . . [¶] . . . [T]he defendant must set forth in his opening brief all of the material evidence . . . in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury's verdict." (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574.)
This substantial evidence standard applies to sufficiency-of-the-evidence challenges to enhancements imposed pursuant to section 186.22, subdivision (b)(1). (See Ochoa, supra, 179 Cal.App.4th at pp. 656-657.)
APPLICABLE LAW
Section 186.22, subdivision (b)(1) authorizes the trial court to enhance a defendant's prison sentence if he or she committed a felony 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).)
When we issued our prior opinion in January 2021," 'criminal street gang'" was defined for the purposes of the gang enhancement 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 subdivision (e) [of section 186.22], 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." (See Stats. 2017, ch. 561, § 178 [former § 186.22, subd. (f); filed with the Sec'y of State on Oct. 7, 2017]; Cal. Const., art. IV, § 8, subd. (c)(2) [providing that this version of § 186.22, subd. (f) became effective on Jan. 1, 2018]; see also Stats. 2017, ch. 561, § 178 [former § 186.22, subd. (k) provided that this version of § 186.22 "remain[ed] in effect only until January 1, 2022"].)
At that time," 'pattern of criminal gang activity'" was defined as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain enumerated offenses], provided at least one of th[ose] offenses occurred after the effective date of th[at] chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (See Stats. 2017, ch. 561, § 178 [former § 186.22, subd. (e)].) Under that version of section 186.22, criminal acts that could constitute primary activities of a criminal street gang included: "Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245"; "[r]obbery, as defined in Chapter 4 (commencing with Section 211) of Title 8"; "[u]nlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8"; "[t]he sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code"; "[t]he intimidation of witnesses and victims, as defined in Section 136.1"; and "[b]urglary, as defined in Section 459." (See Stats. 2017, ch. 561, § 178 [former § 186.22, subds. (e)(1)-(e)(4), (e)(8), (e)(11)].)
"In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which became effective on January 1, 2022 [citation]. Assembly Bill 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a 'criminal street gang' to require that any gang be an 'ongoing, organized association or group of three or more persons.' [Citation.] Second, whereas section 186.22, former subdivision (f) required only that a gang's members 'individually or collectively engage in' a pattern of criminal activity in order to constitute a 'criminal street gang,' Assembly Bill 333 requires that any such pattern have been 'collectively engage[d] in' by members of the gang. [Citation.] Third, Assembly Bill 333 also narrowed the definition of a 'pattern of criminal activity' by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3)the offenses commonly benefitted a criminal street gang; and (4)the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. [Citation.] Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.' [Citation.]" (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).)
As a shorthand, we refer to the version of section 186.22 that was in effect prior to the effective date of Assembly Bill 333 as the "pre-Assembly Bill 333" version of the statute.
Additionally, Assembly Bill 333 added section 1109, which provides in pertinent part: "If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows: [¶] (1) The question of the defendant's guilt of the underlying offense shall be first determined. [¶] (2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence." (Stats. 2021, ch. 699, § 5 [adding § 1109, subd. (a)].)
DISCUSSION
In his opening brief, Williams argues there was insufficient evidence that: (1) Williams possessed a firearm on the three occasions in question (a) for the benefit of, at the direction of, or in association with a criminal street gang, (b) with the specific intent to promote, further, or assist in criminal conduct by gang members; and (2) the Grape Street Crips gang has, as one of its primary activities, the commission of one or more of the criminal acts identified in the pre-Assembly Bill 333 version of section 186.22, subdivisions (e)(1) to (e)(25) and (e)(31) to (e)(33).
In the supplemental brief Williams submitted after the high court transferred the matter back to us, Williams further contends: (1) Renteria establishes the People failed to introduce sufficient evidence to support the gang enhancements; (2) section 1109 applies retroactively to Williams's case, and the denial of Williams's request to bifurcate the trial of the substantive offenses and the gang enhancements was reversible error; and (3) Assembly Bill 333's revisions to the definition of "pattern of criminal gang activity" apply retroactively to Williams's case and invalidate the imposition of the gang enhancements.
Before addressing Williams's arguments concerning section 1109 and Assembly Bill 333's changes to section 186.22, we reach the merits of the sufficiency-of-the-evidence challenges to the gang enhancements raised in his initial briefing for the following reasons. First, those claims of error remain unadjudicated because, as ordered by our high court, we vacated our prior opinion resolving them. Second, Williams has not withdrawn his initial appellate claims. Lastly, it is unclear whether double jeopardy would preclude retrying Williams on the gang enhancements if he were to prevail on his initial evidentiary challenges thereto. (See People v. Seel (2004) 34 Cal.4th 535, 546-547 [suggesting that, to determine whether double jeopardy protections apply to a sentencing enhancement that is reversed for insufficient evidence, an appellate court must ascertain whether the enhancement" 'is the functional equivalent of an element of a greater offense' "].) Without deciding that issue, and in an abundance of caution, we address Williams's initial sufficiency-of-the-evidence challenges under the older version of the statute.
We conclude that under the pre-Assembly Bill 333 version of section 186.22, the People offered substantial evidence that Williams perpetrated the instant offenses for the benefit of and (in at least two cases) in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. Our rejection of Williams's initial sufficiency of the evidence challenges is also consistent with the Supreme Court's decision in Renteria.
We further conclude that even if section 1109 applied retroactively to Williams's case, the trial court's failure to bifurcate the gang enhancements from trial of the possession offenses was not prejudicial.
Lastly, we agree that Assembly Bill 333's amendments to the substantive elements of the gang enhancement in section 186.22 apply retroactively here and, pursuant to the parties' concession that the trial evidence does not satisfy the revised statute's definition of "pattern of criminal gang activity," we vacate the gang enhancement findings. Upon remand, the trial court shall afford the People an opportunity to retry the gang enhancements.
A. Under the Law in Effect at the Time of Williams's Trial, the People Offered Substantial Evidence that Williams Committed the Instant Offenses 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
In this part and in Discussion, part B, post, we address whether the People introduced sufficient evidence to support the gang enhancements under the pre-Assembly Bill 333 version of section 186.22.
We first address whether there was sufficient evidence that Williams possessed the firearms in question in association with the Grape Street Crips. As we noted in Factual Background, part 2.c, ante, in the course of responding to a hypothetical scenario based on the facts of this case, Detective Pearce opined that the "big homie" described therein possessed firearms in association with the Grape Street Crips because "th[at] gang member [was] with other gang members[ ] and . . . at a gang hangout, the weed dispensary."Detective Pearce had previously testified that Faulkner, Raspberry, and Goss were Grape Street Crips gang members who-according to the surveillance footage-were present at the dispensary on June 10 and/or 13, 2017 and had handled one or more of the firearms that Williams unlawfully possessed. Detective Pearce also testified that if a gang member is in his gang's territory or stronghold and possesses a weapon, "it's important for a majority of the [gang], if not every member[,] to know if there is a gun and where it is" "[b]ecause at any given time[,] should another gang try to rob or shoot at the home gang, it is incumbent upon all the gang members to do their part to defend either their territory or the business . . . ." From this evidence, a reasonable factfinder could have inferred that on June 10 and 13, 2017, Williams possessed a firearm in association with a criminal street gang. (See People v. Albillar (2010) 51 Cal.4th 47, 59, 61-62 (Albillar) [holding that if the perpetrators' "common gang membership ensured that they could rely on each other's cooperation in committing . . . crimes and that they would benefit from committing them together," then "they commit[ such] crimes in association with the gang" for the purposes of § 186.22, subd. (b)].)
In the hypothetical question posed by the People, the "big homie" had, on one occasion, been "involved in trading guns for marijuana and potentially other things . . . ." Because the dispensary's video surveillance footage is not in the record before us (see fn. 6, ante), we are unable to determine whether it showed that Williams played a role in trading guns for marijuana or other items. In any event, Williams does not argue Detective Pearce's expert opinion that Williams possessed the firearms in association with, and for the benefit of, the Grape Street Crips hinged on that aspect of the People's hypothetical question. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "].)
As far as we can discern, Williams seems to argue that no reasonable jury could have relied on Detective Pearce's testimony identifying Faulkner, Raspberry, and Goss as Grape Street Crips gang members because the detective did "not explain if that information is based on personal knowledge or inadmissible hearsay." Williams thus suggests that Detective Pearce's testimony is" 'purely conclusory and factually unsupported . . . .' "
As the Attorney General correctly points out, Detective Pearce testified that he investigated gangs for over 10 years, he had previously been assigned to an area claimed by the Grape Street Crips, he spoke to "countless" victims of crime, and he discussed the Grape Street Crips gang's activities with over 100 of its members. Williams does not contend that this experience is an insufficient foundation for Detective Pearce's testimony regarding Faulkner's, Raspberry's, and Goss's membership in the gang. Rather, it appears Williams complains that Detective Pearce did not explicitly connect his testimony identifying these men as gang members with the detective's investigative experience, such that this testimony could have been "based on personal knowledge or inadmissible hearsay."
Williams misapprehends the standard of review. "We must presume all intendments and presumptions in favor of the judgment, and '" 'on matters as to which the record is silent, . . . error must be affirmatively shown.'" '" (See People v. Anthony (2019) 32 Cal.App.5th 1102, 1139 (Anthony).)
If Williams believed that Detective Pearce's testimony regarding the gang membership of these three individuals was speculative, then it was incumbent on him to cross-examine Detective Pearce on that point during the proceedings below. On this record, however, we must presume that Detective Pearce's testimony on this point was based on his experience investigating the Grape Street Crips, and not on some unspecified inadmissible evidence. (Cf. Anthony, supra, 32 Cal.App.5th at pp. 1139-1140 [invoking the presumption in favor of the judgment to reject a hearsay challenge to the admission of certain expert testimony because the record did not disclose the underlying source of the expert's testimony].) Further, we note the detective testified that on June 10, 2017, Williams and other persons visiting the dispensary used a gang tactic designed to prevent the police from finding the gun (i.e., the caravan tactic), which further indicates that Williams possessed that weapon in association with his gang. (See Albillar, supra, 51 Cal.4th at pp. 59, 61-62.)
Thus, there was substantial evidence that Williams committed at least the June 10 and June 13, 2017 possession offenses "in association with" the Grape Street Crips.
Next, we turn to whether there was sufficient evidence that Williams possessed the firearms on the three dates at issue for the benefit of the Grape Street Crips gang and with the specific intent of promoting, furthering, or assisting in criminal conduct by its members. According to Detective Pearce's testimony, the surveillance video showed that Williams possessed guns on three separate occasions at a dispensary that was connected to, and run by, the Grape Street Crips. The detective also testified that the dispensary was "susceptible to being robbed by rival gangs" in part because it was not located in territory claimed by the Grape Street Crips and was "essentially surrounded by two Blood gangs" that are "traditional[ ]" enemies of the Grape Street Crips. Furthermore, as discussed above, there was substantial evidence that on at least two occasions, Williams possessed a firearm at the dispensary in association with other members of the gang. Additionally, a reasonable jury could have found that during the December 5, 2017 telephone call discussed previously, Williams expressed an interest in securing a firearm to protect the dispensary. (See fn. 5 and its accompanying paragraph, ante.)
Under these circumstances, the jury could reasonably have inferred that Williams possessed firearms on the three dates in question to benefit the Grape Street Crips by ensuring that a business run by the gang would not be robbed. Similarly, a reasonable jury could have also found that Williams possessed these firearms with the specific intent to promote, further, or assist the criminal conduct of the gang's members because the availability of a firearm at the dispensary would allow Williams and his confederates to use the weapon to batter, assault, or commit a homicide offense against any rival gang member or other aggressor who attempted to rob the dispensary. Indeed, as explained in Discussion, part B, post, the People offered evidence showing that shooting people, killing people, and intimidating people were some of the gang's primary activities under the pre-Assembly Bill 333 version of section 186.22.
Williams nonetheless insists that this evidence was not sufficient to show that he possessed the guns in question to "defend . . . gang territory" because it was possible he had these weapons "at the dispensary for the non-gang reason of protecting the marijuana, cash, and people that worked there" and "a marijuana dispensary in [this area] would need a gun even if [it] was not gang affiliated."
Williams apparently ignores the evidence that the dispensary did belong to the Grape Street Crips at that time, including the surveillance footage showing that Williams possessed the weapons in association with Grape Street Crips gang members on multiple occasions at the establishment; the presence of a mural of a well-respected and deceased Grape Street Crips gang member at the business (see fn. 3, ante); and Detective Pearce's testimony that the dispensary was connected to, and run by, the gang (testimony that was presumptively based on his extensive experience investigating this gang). Because a court assessing a sufficiency-of-the-evidence challenge must "draw[ ] all reasonable inferences in favor of the jury's findings," (see Perez, supra, 18 Cal.App.5th at p. 607), we reject Williams's argument that even though there was evidence the dispensary belonged to the gang, he somehow committed these crimes for solely his "own personal benefit" and not to further the interests of the Grape Street Crips.
B. Under the Law in Effect at the Time of Williams's Trial, the People Offered Substantial Evidence that the Grape Street Crips Satisfied the "Primary Activities" Element of the Statutory Definition of a "Criminal Street Gang"
As we noted in Factual Background, part 2.a, ante, when Detective Pearce was asked to identify "the primary activities of the Grape Street Crips," he responded: "Shooting people, killing people, robbing people, intimidating people, selling drugs, breaking into people's homes, crimes such as that." Williams contends that, "like the expert in In re Alexander L. [(2007) 149 Cal.App.4th 605 (Alexander L.), whose testimony did not constitute substantial evidence on the primary activities element], there is no information on whether [Detective Pearce's] list of the gang's primary activities was based on his own investigations, court records of convictions, or inadmissible hearsay," and "[n]o specifics were elicited as to the circumstances of the crimes he listed, or where, when, or how the expert had obtained the information." Thus, Williams seems to argue that Detective Pearce's testimony on this point was too "conclusory" for the jury to infer reasonably that these crimes are among the Grape Street Crips gang's primary activities.
Detective Pearce's testimony regarding the primary activities of the Grape Street Crips is distinguishable from the gang expert's testimony in Alexander L. There, when the gang expert was asked about the primary activities of the gang in question, "[H]e replied: 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.'" (See Alexander L., supra, 149 Cal.App.4th at p. 611.) The Court of Appeal concluded that this testimony was insufficient because "[n]o specifics were elicited as to the circumstances of these crimes, or where, when or how [the expert] had obtained the information[,] [h]e did not directly testify that criminal activities constituted [the gang's] primary activities," and, "[e]ven if [the panel] could reasonably infer that [the expert] meant that the primary activities of the gang were the crimes to which he referred, his testimony lacked an adequate foundation." (See id. at pp. 611-612.) In particular, the Alexander L. court observed that it could not "know whether the basis of [the expert's] testimony on this point was reliable, because information establishing reliability was never elicited from him at trial" and, thus, "[i]t [was] impossible to tell whether his claimed knowledge of the gang's activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay." (See id. at p. 612.)
In contrast, Detective Pearce identified expressly the aforementioned crimes as the Grape Street Crips gang's primary activities, and, as discussed in more detail in Discussion, part A, ante, the detective offered testimony showing that he had extensive experience investigating the Grape Street Crips. Thus, unlike the expert in Alexander L., Detective Pearce had set forth an adequate foundation for his testimony regarding whether the gang's"' "chief" or "principal" occupations'" include the crimes listed earlier in this part. (See Alexander L., supra, 149 Cal.App.4th at p. 613 [noting that a gang's primary activity is its chief or principal occupation, and that an officer's" 'conversations with the defendants and with other [gang] members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies'" may constitute an adequate foundation for testimony regarding that gang's primary activities].)
Williams resists this conclusion and argues that "Detective Pearce did not offer whether his list of the gang's primary activities was based on his own investigations, court records of convictions, or inadmissible hearsay." Once again, in accordance with the applicable standard of review, we presume that Detective Pearce's testimony concerning the gang's primary activities was drawn from the extensive investigative experience he described during his testimony, and not on some unknown inadmissible source. (See Anthony, supra, 32 Cal.App.5th at pp. 1139-1140.)
Williams also contends that evidence introduced at trial showing that two Grape Street Crips gang members were convicted of certain offenses identified in the pre-Assembly Bill 333 version of section 186.22, subdivision (e) (e.g., murder and criminal threats) does not establish that these criminal acts were the primary activities of the gang under the older version of the gang enhancement statute. Because Detective Pearce's testimony in and of itself constitutes substantial evidence of the Grape Street Crips gang's primary activities under the pre-Assembly Bill 333 version of section 186.22, we need not address this argument further. (See Alexander L., supra, 149 Cal.App.4th at p. 611 [" '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 the gang statute.' [Citation.] Expert testimony based on an adequate factual foundation might also be sufficient."].)
C. Renteria Does Not Undermine Our Conclusion that
Sufficient Evidence Supported the Imposition of the Gang Enhancements Under the Pre-Assembly Bill 333 Version of Section 186.22
In Renteria, the defendant-gang member was convicted of two counts of shooting at an inhabited dwelling. (Renteria, supra, 13 Cal.5th at p. 957.) Although "[t]hat offense is ordinarily punishable by no more than seven years of imprisonment," the jury found true gang allegations under section 186.22, subdivision (b) as to each felony conviction, resulting in a sentence of "two indeterminate terms of life imprisonment." (Renteria, at p. 957.) "[T]here was no evidence [the defendant] was accompanied by other gang members at the time of the shooting," or that the defendant "identified himself or his gang during the shooting or took credit for it on behalf of his gang afterwards." (See id. at pp. 957, 971.)
To support the gang allegations, the People offered evidence that "at some point" "[e]arlier on the evening of the shooting," a witness saw a group of young men, including the defendant, walking through an empty field close to the neighborhood where the shooting would later take place. (See Renteria, supra, 13 Cal.5th at pp. 957-958.) Some members of the group were "yelling 'Sur trece,' a gang reference." (See id. at p. 958.) The defendant "minimized and distanced himself from the shouting, suggesting [to the witness] those involved were drunk and he was just helping them home." (See id. at pp. 958, 971.) "[T]he evidence show[ed] that the group dispersed . . . 'a little while'" before the defendant "returned and shot at the houses." (See id. at p. 971.)
Further, the defendant told a police officer that "earlier the day of the shooting he had been 'hit up[,]'" that is, someone the defendant assumed was a rival gang member "asked where [the defendant] was from, a question understood to be a gang challenge." (See Renteria, supra, 13 Cal.5th at p. 958.) The defendant told the officer that "[w]hen [he] heard what sounded like a shotgun being racked, he ran." (See id. at pp. 958-959.) Additionally, the People offered evidence that a person "who was 'associated' with," but did not live in, one of the two houses had previously been "seen . . . in the presence" of one of the defendant's rival gangs. (See Renteria, at pp. 958-959, 972.)
Although "[p]olice later found a shotgun in [the] closed garage" for that house, the Supreme Court explained "that [weapon] would not have been visible to [the defendant]." (See Renteria, supra, 13 Cal.5th at pp. 958, 972.)
On appeal, the defendant "challenged the gang penalties as unsupported by the evidence, but the Court of Appeal affirmed, relying on an expert's testimony that a gang member's acts of violence both benefit the gang and promote its members' criminal activities by enhancing the gang's reputation for violence in the community." (Renteria, supra, 13 Cal.5th at p. 957.)
The Supreme Court reversed, and directed the Court of Appeal to remand the case to the trial court for resentencing.(Renteria, supra, 13 Cal.5th at pp. 957, 973.) The high court held that, "[w]ithout more, expert testimony about the reputational benefits of crime does not support an inference that a lone gang member committed a crime for gang-related reasons-as opposed to acting from other, more personal motives." (See id. at p. 957.) The Renteria court reasoned that "[i]f generalized testimony about the reputational benefits of a defendant's violent crime were, standing alone, sufficient to support an inference that the defendant committed the crime for the benefit of the gang, with specific intent to promote, further, or assist its members' crimes, it would mean that essentially every violent crime committed by a gang member could be punished more severely under section 186.22(b) purely because of the defendant's gang membership." (Renteria, at pp. 966-967.) The Supreme Court explained that, "[t]o 'provide a nexus to gang activity sufficient to alleviate due process concerns' [citation], the statute requires a closer connection between the defendant's crime and the conduct of the gang and its members than generalized community reputation testimony can provide." (Id. at p. 967.) Renteria further stated that the prosecution must establish that the defendant had "knowledge of at least some of the criminal activities of the gang and its members and intent to further those activities" in order to establish that he or she "committed the underlying felony with the specific intent to promote, further, or assist criminal conduct by other gang members." (See ibid.)
Although the Supreme Court issued the Renteria decision after the Legislature enacted Assembly Bill 333, the high court resolved the defendant's challenge to the sufficiency of the evidence based "on the law as it existed before the enactment of" that legislation. (See Renteria, supra, 13 Cal.5th at p. 961 & fn. 6.)
Applying its construction of section 186.22, subdivision (b) to the facts before the court, Renteria concluded that the defendant was "not subject to the additional punishment prescribed for felonies that have been shown to be gang-related under section 186.22(b)" because the expert's opinion concerning the reputational benefits of the crime was not accompanied by "substantial evidence show[ing] that [the defendant] intended his actions to be attributed to his gang," and that the defendant "knew of and thus might have intended to promote the criminal activities of his gang's members." (See Renteria, supra, 13 Cal.5th at pp. 971-973.) Renteria specifically noted the fact that earlier in the evening of the shootings, the defendant was in a group of young men, several of whom had shouted a gang reference, was insufficient evidence of the defendant's intent that his "later shootings . . . be attributed to the gang" and thus enhance the gang's reputation. (See id. at pp. 958, 971.)
In an apparent attempt to analogize the instant case to the "lone gang member" scenario presented in Renteria (see Renteria, supra, 13 Cal.5th at p. 957), Williams once again challenges Detective Williams's testimony that Faulkner, Raspberry, and Goss were members of the Grape Street Crips gang. Specifically, although Williams acknowledges that the video clips introduced at trial showed "Williams in possession of what appeared to be guns inside the marijuana dispensary" and that "Williams was seen with other men" in the videos, Williams argues that Detective Pearce "failed to offer any basis for [his] opinion" that the men shown in the videos were gang members. We rejected that argument for the reasons provided in Discussion, part A, ante. Therefore, at least insofar as Williams contests the gang enhancements vis-à-vis his possession of firearms on June 10 and 13, 2017, his challenge to the sufficiency of the evidence that he committed those offenses in association with the Grape Street Crips gang fails. It follows that Renteria's statements regarding the showing the People must make "[i]n a lone-actor case" have no bearing on those two gang enhancements. (See Renteria, at p. 964; see also id. at pp. 963-964 [observing that "in cases where multiple gang members were involved in the charged offense, the fact of their joint involvement in a crime often provides sufficient evidence of association and benefit, as well as circumstantial evidence of an intent to promote the criminal activity of other gang members, in connection with the very same criminal offense," whereas "[i]n a lone-actor case," "the prosecution cannot rely on the joint nature of the offense to establish either the requisite benefit to the gang or the specific intent to promote the criminal activity of gang members"].)
Additionally, Williams argues the Renteria decision establishes "[t]he evidence did not show that [Williams] 'intended his actions to be attributed to his gang.' [Citation.]" (Quoting Renteria, supra, 13 Cal.5th at p. 971.) He asserts, "The only evidence that [the] prosecution presented that the guns were related to the gang at all was the opinion from the expert that because . . . Williams was a member of the Grape Street Crips, . . . Williams could only have possessed the guns in furtherance of the gang." Although he acknowledges the gang expert testified that "guns are important to the Grape Street Crips because they use the guns to shoot people and to defend the gang territory," Williams insists "nothing in the record indicated that . . . Williams was using the guns in this case to shoot people or defend the gang territory." Williams further claims the videos "did not show him making gang signs or calling out the name of his gang" and "[t]here was no evidence presented that the men [at the dispensary] were wearing gang colors."
Williams's characterization of the trial evidence is not accurate. The People offered substantial evidence that Williams possessed the firearms in question on June 10, 11, and 13, 2017 at a dispensary that was connected to, and run by, the Grape Street Crips. (See Discussion, part A, ante.) Detective Pearce testified that the dispensary was susceptible to being robbed by rival gangs in part because it was essentially surrounded by territory claimed by traditional rivals of the Grape Street Crips. (See ibid.) Detective Pearce further testified that gang members are expected to use available weapons to defend their gang's business from rivals, and they are not permitted to request assistance from the police. (See Factual Background, part 2.a, ante.) Furthermore, the trial evidence indicated that during a December 5, 2017 telephone call, Williams expressed an interest in obtaining a firearm to protect the dispensary, suggesting that he was aware of, and intended to act in compliance with, his obligation to protect the gang's marijuana business. (See Factual Background, part 2.b, ante; Discussion, part A, ante.) In addition, the People presented substantial evidence that on June 10 and 13, 2017, Williams possessed a firearm in association with fellow Grape Street Crips gang members at the dispensary. (See Discussion, part A, ante.)
Regardless of whether we agree with Williams that there is no substantial evidence he" 'intended his actions to be attributed to [his] gang'" (quoting Renteria, supra, 13 Cal.5th at p. 971), a rational factfinder could have relied on the evidence described in the immediately preceding paragraph to conclude that Williams possessed the firearms at issue for a gang-related purpose, to wit, ensuring that Williams and his confederates were able to use violence to defend the Grape Street Crips' marijuana business. In contrast, in Renteria, the only evidence that tied the defendant's offenses (i.e., shooting at inhabited dwellings) to a gang-related purpose was "an expert's testimony that a gang member's acts of violence both benefit the gang and promote its members' criminal activities by enhancing the gang's reputation for violence in the community." (See Renteria, at p. 957.) Because Detective Pearce's expert opinion concerning Williams's gang-related intent is corroborated by circumstantial evidence, Renteria does not undermine the jury's finding that Williams possessed the guns for the benefit of, and (on at least two occasions) in association with, the Grape Street Crips, and with the specific intent to promote, further, or assist in criminal conduct by the gang's members.
D. Even Assuming that Newly-Added Section 1109 Applies Retroactively to This Case, Williams Does Not Establish that the Failure To Bifurcate the Trial of the Gang Enhancements Prejudiced Him in the Trial of the Underlying Offenses
As we noted in Applicable Law, ante, "Assembly Bill 333 added section 1109, which requires, if requested by the defendant, a gang enhancement charge to be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime." (Tran, supra, 13 Cal.5th at p. 1206.) Williams maintains that section 1109 applies retroactively to his case, and that the trial court's alleged erroneous denial of his request to bifurcate trial of the gang allegations from that of the underlying offenses calls for the reversal of his convictions. Regarding his second contention, Williams relies upon the Sixth District's decision in People v. Burgos (2022) 77 Cal.App.5th 550 (Burgos), review granted July 13, 2022, S274743, for the proposition that a violation of section 1109" 'likely constitutes "structural error" because it "def[ies] analysis by harmless-error standards." '" (Quoting Burgos, at p. 568, review granted.) Williams further argues that "[e]ven if harmless error analysis were applied, . . . Williams suffered prejudice under either the Chapman v. California (1967) 386 U.S. 18, or People v. Watson [(1956) 46 Cal.2d 818] standards."
"The question of whether section 1109 applies retroactively is the subject of a split of authority among the Courts of Appeal." (Tran, supra, 13 Cal.5th at p. 1208 [collecting cases].) In Tran, the Supreme Court "decline[d] to resolve this split . . . because [the court] conclude[d] that any asserted error in failing to bifurcate [in that case] was harmless as to [the defendant's] guilt verdicts and penalty judgment." (See ibid.) In arriving at this conclusion, the high court found that the Chapman harmless error standard did not apply because "the prosecutor's use of the gang evidence [in that case] did not render the trial 'fundamentally unfair[.]'" (See Tran, at p. 1209.) The Supreme Court then "[a]ppl[ied] the People v. Watson (1956) 46 Cal.2d 818 standard for state law error" and found that the defendant had "failed to demonstrate prejudice as to his guilt verdicts." (See Tran, at pp. 1209-1210.) For the reasons discussed below, we too conclude that regardless of whether section 1109 retroactively applies to this case, any violation of the statute was harmless under Watson.
On October 12, 2022, the Supreme Court requested briefing on that question in connection with its review of the Sixth District's decision in Burgos. (See People v. Burgos, case No. S274743 [Oct. 12, 2022 order].) To date, the Supreme Court has not issued an opinion in the Burgos matter. (See People v. Burgos, case No. S274743 [docket as of Mar. 28, 2023].) Additionally, we note that People v. Ramirez (2022) 79 Cal.App.5th 48, held that "section 1109 applies prospectively only" (see Ramirez, at pp. 52-53, 65), and that the Supreme Court has granted review in that case as well. (See People v. Ramirez, case No. S275341 [Aug. 17, 2022 order].) To date, the Supreme Court has not issued an opinion in Ramirez. (See People v. Ramirez, case No. S275341 [docket as of Mar. 28, 2023].)
Because the trial court in the Tran matter had sentenced the defendant to death, the Supreme Court determined whether"' "there [was] a reasonable possibility [the failure to bifurcate] affected the [death] verdict,"' a standard that is' "the same, in substance and effect"' as the standard set out in Chapman." (See Tran, supra, 13 Cal.5th at pp. 1180-1181, 1210.) We do not apply that standard because this is not a capital case. (See Procedural Background, ante [noting the trial court sentenced Williams to an aggregate prison term of 11 years].)
As a preliminary matter, the Tran decision forecloses Williams's argument that the failure to bifurcate the trial is per se reversible. After the Sixth District issued its opinion in Burgos, the Tran court held explicitly that a violation of section 1109 is not structural error. (See Tran, supra, 13 Cal.5th at p. 1208; see also Burgos, supra, 77 Cal.App.5th at p. 550, review granted [opinion issued on Apr. 15, 2022]; Tran, at p. 1169 [opinion issued on Aug. 29, 2022]). The Supreme Court reasoned that section 1109 was not designed to protect some interest independent from the defendant's right to avoid an erroneous conviction; "errors relating to wrongful admission of evidence are traditionally subject to harmless error review [citation], demonstrating that the effects of these types of errors are not 'simply too hard to measure' [citation]"; and "although the admission of gang evidence may sometimes result in fundamental unfairness [citation], this is not always the case." (See Tran, at p. 1208.) Thus, we are bound to follow Tran on this point. (See People v. Perez (2020) 9 Cal.5th 1, 13 [" 'The decisions of [the state supreme court] are binding upon and must be followed by all the state courts of California.' "].)
We note that Williams does not mention this aspect of the Tran decision in his supplemental brief, even though Williams filed this brief more than three months after the high court had issued its decision in that case. (Tran, supra, 13 Cal.5th at p. 1169 [decision issued on Aug. 29, 2022].)
Williams asserts that under either the Chapman or Watson standards, "[t]he jury in this case heard highly prejudicial and inflammatory gang evidence, which rendered his trial fundamentally unfair." Accordingly, he argues that we should reverse his three felon-in-possession convictions. Williams does not offer any analysis or citation to the record to support this argument. Instead, Williams relies upon certain legislative findings accompanying Assembly Bill 333 and appellate decisions for the generalized propositions that "[g]ang evidence is highly prejudicial" and such evidence "can render a trial fundamentally unfair, in violation of the federal constitutional right to due process." Williams thus fails to establish that the Chapman standard governs, or that the introduction of gang evidence during the guilt phase of the trial was prejudicial under Watson. (See Stanley, supra, 10 Cal.4th at p. 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "]; People v. Evans (2011) 200 Cal.App.4th 735, 756, fn. 12 [declining to address an argument that a party failed to support adequately]; People v. Flint (2018) 22 Cal.App.5th 983, 1006, fn. 17 [" '[C]ourts will decline to consider any factual assertion unsupported by record citation at the point where it is asserted[.]' "].)
E. Based on Assembly Bill 333's Amendments to Section 186.22, We Vacate the Gang Enhancement Findings, and Remand to the Trial Court for Retrial of Those Enhancements or, Absent Such a Retrial, for Resentencing
The Attorney General and Williams concede that Assembly Bill 333's amendments to the substantive elements of the gang enhancement in section 186.22 apply retroactively to the instant case because Williams's judgment was not final when the legislation went into effect on January 1, 2022. (See also Tran, supra, 13 Cal.5th at p. 1206 [noting that Assembly Bill 333 "became effective on January 1, 2022"].) We agree with the parties. (See Tran, at pp. 1206-1207 ["Starting with the changes to the elements of a section 186.22 gang enhancement, the Attorney General concedes that the rule of In re Estrada (1965) 63 Cal.2d 740 applies, and we agree. Estrada 'stand[s] for the proposition that (i) in the absence of a contrary indication of legislative intent, (ii) legislation that ameliorates punishment (iii) applies to all cases that are not yet final as of the legislation's effective date.' "]; see also People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 [indicating that a judgment in a criminal case is not final until the defendant has "exhaust[ed] his appeal rights"].)
Furthermore, the Attorney General maintains (and Williams agrees) that, "[b]ecause the offenses used to prove the pattern of gang activity occurred more than three years before the charged offenses, under the evidence adduced at trial, the Grape Street Crips would not qualify as a criminal street gang under A[ssembly Bill] 333." In accordance with the parties' concession, we vacate the gang enhancement findings for Williams's three convictions for possession of a firearm by a felon. (See People v. Lopez (2021) 73 Cal.App.5th 327, 343, 346 [vacating gang enhancement findings because the jury did not make the findings required by Assembly Bill 333's amendments to section 186.22]; see also Williams v. Superior Court (1964) 226 Cal.App.2d 666, 668, 674 [criminal case in which the Court of Appeal stated:" 'An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.' "].)
Further, the Attorney General contends, Williams does not dispute, and we agree, that "the prosecution must be given the opportunity to retry the enhancements and meet its burden of proof pursuant to A[ssembly Bill] 333's requirements." (See People v. Sek (2022) 74 Cal.App.5th 657, 669 [" '" 'Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, [a] remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.'"' "].) If the People do not elect to retry Williams on the gang enhancements, then the trial court shall resentence Williams accordingly. (See People v. Delgado (2022) 74 Cal.App.5th 1067, 1073, 1091 [reversing the true findings on certain gang enhancements, remanding to afford the People an opportunity to retry the gang enhancements under Assembly Bill 333's new requirements, and instructing the trial court to resentence the defendant "[i]f the People elect not to" retry him].)
DISPOSITION
We vacate the gang enhancement findings made under Penal Code section 186.22, subdivision (b) for counts 7, 8, and 10. The remainder of the judgment is affirmed. We remand this matter to the trial court to afford the People an opportunity to retry the gang enhancements for counts 7, 8, and 10. If the People elect not to retry these enhancements, then Vernon Williams shall be resentenced in a manner consistent with this opinion.
We concur: ROTHSCHILD, P. J. CHANEY, J.