Opinion
B313468
06-23-2023
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS GONZALES, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA113372-01, Jacqueline H. Lewis, Judge. Affirmed in part, reversed in part and remanded with direction.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, P. J.
Juan Gonzales appeals from a judgment that sentences him to 50 years to life for the murder of Nicholas Pletcher, known as "Dazer." Gonzales's primary contention on appeal is that he received ineffective assistance of counsel during his trial. Gonzales also contends his gang enhancement must be stricken and his sentence modified due to statutory changes made by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699) (AB 333). We agree AB 333 retroactively applies to Gonzales's case and remand the matter for further proceedings. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On August 21, 2016, 16-year-old Gonzales fatally shot the victim four times in an alley in Pomona. The District Attorney charged Gonzales with murder. (Pen. Code, § 187, subd. (a).) It was further alleged that Gonzales personally used and discharged a handgun (§ 12022.53, subds. (b), (c), (d)), that the offense was committed for the benefit of a criminal street gang, and that Gonzales was an active participant in the gang (§§ 186.22, subd. (b)(1)(c) and 190.2, subd. (a)(22)).
All undesignated section references are to the Penal Code.
Gonzales argued at trial that he acted in self-defense because the victim had previously threatened him and held a gun to his head twice. The prosecution's theory at trial was that Gonzales, a member of the 18th Street gang, shot the victim because the 18th Street gang wanted to control the sale of narcotics in that area of Pomona. The victim was a member of a tagging crew called HA or "High Artists," which claimed that territory, and sold marijuana there. The mother of the victim's children testified the victim appeared nervous and scared in the month before his death.
The People presented the following evidence:
1. Gonzales's Confession
On August 25, 2016, Gonzales was arrested and interviewed by police. After initially denying any involvement in the shooting, Gonzales confessed: "I got popped out twice by him .... With a gun. On my faith . . . he took my shit twice, mister. Uh, this how it went down. I pass through the park. I was walking and then, all of a sudden, I go - I go through this, and I see him. And he starts banging on me, like, 'Oh, you ain't from nowhere. You're a little bitch.' This and this. And I was mad, mister. I did have the burner. I was mad. Just - I couldn't do nothing about it. [¶] And then I was posted right there in the alley, and he comes up to me, like, 'Oh, you're a bitch. What's up? Give me - start giving me all your shit.' Like, he tried to tax me, and I got scared of him, you know. Straight up. I got scared. Pulled it out, mister. Started popping. Straight up."
Portions of the recorded interview were played to the jury and a transcript of it was admitted into evidence.
Gonzales explained the victim had twice previously put a gun to his head and he did not want to go through that again. On the day of the shooting, Gonzales believed the victim was reaching for a gun because he saw the victim reaching in his pocket. When the victim walked up close to Gonzales, Gonzales "just got scared and just popped it out." He admitted he shot the victim three or four times. He also stated "Richard" was with him.
No guns were recovered from the alley or from the victim's body. A can of spray paint was found in the victim's right front pocket and a bottle of cologne in his right back pocket.
2. Richard Guerrero's Testimony
Richard Guerrero had known Gonzales since middle school and knew Gonzales's street name was Polar. Guerrero testified that Gonzales told him he did not like the victim. On the day of the shooting, Guerrero was smoking marijuana with a friend in a park when the two of them heard the sound of gunfire. Guerrero and his friend immediately got up. Guerrero was curious to see what happened so he ran towards the sound while his friend left the park.
Guerrero's trial testimony differed somewhat from what he told the police shortly after the shooting. In the police interview, he stated he walked to the alley, not with a "friend," but with Gonzales. Guerrero neither mentioned the park nor his friend. The prosecutor refreshed his recollection at trial with his statements to the police which Guerrero then adopted as his testimony. Guerrero also admitted he first heard a gunshot when he was near the alley, not while he was at the park.
Guerrero came upon Gonzales and the victim in a nearby alley. Guerrero heard the victim say to someone on the phone, "Danny, come as quick as possible and bring the burner." Guerrero understood "burner" to mean a gun. Guerrero then saw Gonzales shoot the victim twice a few seconds after that phone call. The victim screamed and fell to the ground. The gun then appeared to jam. Gonzales kicked the victim. After fixing the gun, Gonzales approached within inches of the victim and shot him in the head. Afterwards, Gonzales said to the victim, "18, bitch."
Surveillance video showed Gonzales and Guerrero walking away from the alley shortly after the shooting. They hid in a vacant house for a few minutes when they thought a white van was following them. Gonzales asked Guerrero to hold and hide the gun for him, but Guerrero refused. They ended up at Gonzales's house, where they smoked marijuana for two hours. Gonzales told Guerrero he shot the victim because "it was business." When pressed by the prosecutor about what that meant, Guerrero said, "Just business. Personal business." The prosecutor then asked, "Gang business?" And Guerrero replied, "that's what I thought."
Guerrero explained that he sometimes bought marijuana from Gonzales. Although he did not know Gonzales sold drugs for the 18th Street gang, he knew Gonzales associated with them. He also knew the 18th Street gang wanted to control drug sales in that area of Pomona.
3. Ballistics Evidence
The medical examiner testified the victim had four gunshot wounds: one to at the back of his head, which was fatal; a second to the right side of his abdomen, which was also fatal; a third to his left hip region, which was potentially fatal; and a fourth to the area near his torso, abdomen, neck, and right arm, which caused superficial non-fatal injuries.
Police found seven .380 caliber cartridge casings, four were recovered near the victim's body and three were located further away, near the mouth of the alley. Three bullet or bullet fragments were also recovered at the scene of the crime. In a search of Gonzales's home four days after the killing, police recovered inside a dresser drawer a .380 semi-automatic handgun manufactured by Lorcin, and an empty magazine underneath the mattress. The firearms expert stated that four of the seven cartridge casings she examined from the crime scene were fired from the Lorcin .380 handgun.
4. Facebook Evidence
Police obtained a search warrant to access Gonzales's Facebook account. They recovered a photograph, "authored" by Gonzales, of a face with the number "18" under the left eye. In a Facebook message dated August 22, 2016, someone with the username "Tony Montana" messaged Gonzales, "LOL, finally Dazer [victim Fletcher] is dead." Gonzales replied, "Ha, ha, ha, ha." Later, Gonzales messaged Montana, "Have you heard?" Montana responded, "Yep. I heard. So who is next target to get smoke?" Gonzales responded, "IDK." The next day, Montana messaged, "Yo. Someone snitching on you guys. Keep low key." To this, Gonzales stated, "What did we do?" and "I want to know who smoked Dazer."
The homicide detective investigating the case testified "who is next to get smoke" means who is next to be shot or killed.
The homicide detective who testified about the message stated that "IDK" means "I don't know."
5. Gang Evidence
Los Angeles Police Department Detective Arthur Castro testified he was assigned to the FBI gang task force to monitor the 18th Street gang. Castro provided a summary of the 18th Street gang's history, its territory, and its cliques and subsets. He described the gang tattoos as including an "18," a big "E," and "13." He identified the 18th Street hand sign as an "E" and the primary colors as navy or dark blue. Detective Castro listed the primary activities of 18th Street as murder, violent acts, shootings, robberies, burglaries, narcotics sales, and extortion. He said 18th Street was involved in everything from selling narcotics to vandalism. He also described the hierarchy of gangs and the 18th Street gang's allegiance to the Mexican Mafia and what that entailed, including paying rent to the shot caller.
Castro testified he had conducted two or three investigations involving violent crimes committed by 18th Street gang members against a tagging crew or low-level drug dealer to take control of an area. He stated the 18th Street gang sometimes absorbed the crew into its organization.
Although Detective Castro had no prior personal contact with Gonzales, he confirmed Gonzales's tattoos showed allegiance to the Mexican Mafia and included 18th Street gang symbols. It was Castro's opinion that Gonzales murdered the victim to benefit the 18th Street gang. Pomona Police Department Detective Richard Machado and LAPD Officer Daniel Garcia testified to predicate cases involving 18th Street gang members to prove the gang enhancement. We discuss their testimony in detail below.
6. Expert Reports
In 2017, Dr. Ronald Markman evaluated Gonzales and prepared a report that concluded: "Minor appears to have acted impulsively, in a highly emotional state, without any thoughtful consideration, feeling threatened by someone who had previously been aggressive towards him, and fearing for his life. However, he was capable of forming the intent to kill, distinguishing between right and wrong and premeditating, but his emotional state likely precluded an ability to deliberate, leading to this tragic event." Dr. Markman noted testing revealed an "individual with a suspicious, impulsive and emotional potential to act out thoughtlessly."
In 2021, Dr. Francesca Lehman evaluated Gonzales. Dr. Lehman agreed with Dr. Markman that Gonzales "acted impulsively, in a highly emotional state, without any thoughtful consideration in the instant offense." Dr. Lehman further described the continuing brain development in youths which result in youthful impetuosity.
On October 21, 2020, the court held a pretrial hearing during which the prosecutor moved to exclude any mention of Gonzales's age (he was 16 years old at the time of the shooting) at trial. The prosecutor argued his age was irrelevant to the proceedings. The prosecutor noted that Gonzales was initially charged as an adult but the matter was transferred to juvenile court after the passage of Proposition 57. The juvenile court found Gonzales unfit for juvenile proceedings and the matter was transferred back to criminal court. Gonzales was 20 years old at the time of trial.
Proposition 57 requires prosecutors to commence all cases involving a minor in juvenile court but allows prosecutors to transfer a minor 16 years or older who is charged with a listed offense to adult criminal court. (O.G. v. Superior Court (2021) 11 Cal.5th 82, 87; see Welf. & Inst. Code, § 707, subd. (a)(1)-(2).)
Gonzales's trial attorney initially opposed the motion to exclude: "I do think it's very relevant. Developmental stages of teens is different than the mindset and the development of an adult. And I think it's important that a jury knows the age of my client at the time of the crimes in order to take that into consideration when determining any type of mindset needed as an element of the crime."
The prosecutor countered that "unless the defense is going to call experts to opine or testify that the minor's age and brain development at the time weighed on his ability to form the necessary specific intent to commit murder, I would make the same objection, that any of that testimony is irrelevant. [¶] Nothing in the elements of the charged account require us to prove that a minor had any different specific intent than an adult would in this particular crime."
When the court asked whether defense counsel intended to call any experts to testify to that effect, she responded, "No, I'm not. Perhaps for sentencing, but not for the case in chief." The court then granted the prosecution's motion that Gonzales's age not be mentioned at trial.
7. The Verdict and Sentence
The jury found Gonzales guilty of first degree murder and found each of the firearm and gang enhancements true. The trial court sentenced Gonzales to 50 years to life, comprised of a 25-years-to-life term for the murder conviction plus another 25-years-to-life term for the firearm enhancement under subdivision (d) of section 12022.53. The remaining sentence enhancements were stayed pursuant to section 654.
Gonzales timely filed a notice of appeal.
On January 3, 2023, after briefing in the appeal was completed and oral argument had twice been scheduled and continued, Gonzales filed a petition for writ of habeas corpus in this court, arguing he received ineffective assistance of counsel because his trial counsel failed to present expert testimony as to his state of mind, a claim he also raises in this appeal. (In re Juan Gonzales on Habeas Corpus, No. B325363.) We resolve that matter separately.
DISCUSSION
1. Gonzales Has Failed to Demonstrate Deficient Performance or Prejudice
Gonzales contends his trial counsel rendered ineffective assistance because she failed to: (1) present expert testimony that Gonzales lacked the capacity to premeditate or deliberate, and therefore did not form the requisite intent; (2) move to bifurcate the criminal street gang enhancement; (3) object to prosecutorial misconduct during questioning of the gang expert; and (4) object to parts of the prosecutor's questioning of witness Guerrero.
"When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009; Strickland v. Washington (1984) 466 U.S. 668, 687.) Where, as here, a defendant challenges his counsel's failure to act,"' "[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." '" (People v. Seumanu (2015) 61 Cal.4th 1293, 1312-1313.)
a. Failure to Present Expert Testimony
Gonzales initially faults his trial counsel for failing to introduce in the case in chief expert testimony on Gonzales' state of mind. Gonzales argues such testimony would have been critical to whether he had the capacity to form the required intent to kill, by premeditating and deliberating. He claims, it was "unconscionable" for his trial counsel to fail to present this evidence to the jury in support of an argument that he lacked the requisite state of mind.
Trial counsel presented evidence of Gonzales's mental state, including his youth and brain development, at sentencing.
Assuming trial counsel's failure to present testimony from Dr. Markman or Dr. Lehman fell below an objective standard of reasonableness under prevailing professional norms, Gonzales has failed to show a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 697 ["a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies"].)
It was undisputed that Gonzales shot the victim four times. Witness Guerrero's description of the shooting was uncontradicted: He testified that the second and third shots were fired at close range within several feet of the victim. Gonzales then kicked the victim after the victim had fallen screaming to the ground and no longer posed any danger to Gonzales. Gonzales took the time to fix a jam in his gun before approaching the victim as he continued to lay screaming on the ground and shooting the victim in the head. Afterwards, he said, "18, bitch" to the victim. He then left with Guerrero. Expert testimony regarding Gonzales's impulsivity, emotional state, or youthful impetuosity would not have refuted the deliberate nature of the shooting. Indeed, Gonzales does not explain how the experts' testimony would have countered Guerrero's testimony. Gonzales has failed to demonstrate a reasonable probability that, but for counsel's failure to present expert testimony on state of mind, the outcome of the proceeding would have been different. (People v. Mai, supra, 57 Cal.4th at p. 1009.)
Guerrero testified he did not see the first shot but heard it and went to investigate.
b. Failure to Seek Bifurcation of Gang Enhancements
Gonzales next contends his trial counsel was ineffective when she failed to move to bifurcate the trial on the gang enhancement from the trial on the substantive crime. Gonzales argues there was no reason to expose the jury to such inflammatory and prejudicial evidence, particularly when it was irrelevant to his defense. The record and the law are to the contrary.
Our Supreme Court has explained, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation- including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050; see also People v. Tran (2022) 13 Cal.5th 1169, 1208.)
Here, critical parts of the gang testimony would have been admitted even in a bifurcated trial of the underlying charge as it was relevant to the parties' primary dispute - whether Gonzales had the requisite state of mind for a first degree murder conviction. Gonzales argued he acted in self-defense while the prosecution argued this was an intentional gang shooting because the 18th Street gang, of which Gonzales was a member, wanted to take control of narcotics sales in the area.
Given these facts and the prevailing case law, counsel reasonably could have concluded that a motion to bifurcate would have been futile. (See People v. Thompson (2010) 49 Cal.4th 79, 122 ["Counsel is not ineffective for failing to make frivolous or futile motions"].) Significant gang evidence would have been admissible at the first stage of a bifurcated trial, and Gonzales has not argued, let alone demonstrated, that specific gang evidence that would not have been admissible at the first stage of a bifurcated trial would have been prejudicial.
We are not persuaded by People v. Albarran (2007) 149 Cal.App.4th 214, a case upon which Gonzales relies. There, the court concluded the gang evidence was irrelevant to the underlying charges because the People failed to present sufficient evidence the crimes were gang motivated. (Id. at p. 217.) Here, the gang evidence was relevant and admissible as part of the prosecution's proof of the underlying murder charge. It established Gonzales's gang-related motive to kill the victim.
c. Failure to Object to Hypothetical Question
Gonzales next contends the prosecutor committed misconduct when he presented a hypothetical question to the gang expert that improperly introduced a fact not in evidence. Because defense counsel failed to object to the prosecutor's hypothetical, Gonzales asserts he received ineffective assistance of counsel.
At trial, the prosecutor asked the gang expert to opine as to whether the crime, as presented in a hypothetical, was committed for the benefit of a criminal street gang. The prosecutor then set out hypothetical facts identical to the underlying facts of this case: "on August 21, 2016, around 6:30 p.m. in the afternoon, an 18th Street gang member and his associate confront a tagger in northeast Pomona in the county of Los Angeles. [¶] I want you to further assume that the 18th Street gang member is armed with a .380 semi-automatic pistol. [¶] I want you to further assume that the 18th Street gang member pulls out that pistol, approaches the tagger, and at close range shoots him three times. [¶] I want you to further assume that the 18th Street gang member kicks the tagger as he's falling to the ground and finally shoots a fourth shot into the tagger's head, but before doing so says the words '18th, Bitch.' [¶] I want you to further assume that when the 18th Street gang member and his associate flee the area, the associate asks the 18th Street gang member why he shot the tagger. I want you to further assume that the 18th Street gang member responds 'business.'" Defense counsel did not object to the hypothetical.
On appeal, Gonzales takes issue with the addition of an "associate" to the hypothetical, arguing there was no evidence that witness Guerrero was a member or associate of the 18th Street gang. Rather, Guerrero testified he was not a member of or affiliated with the 18th Street gang or any other gang. According to Gonzales, the addition of an "associate" allowed the prosecutor to fulfill the requirement that the crime was committed "in association" with a criminal street gang without evidence of such "association."
We find this argument meritless. The prosecutor's two references to the "18th Street gang member and his associate" indicate the association was with Gonzales, not the 18th Street gang. The hypothetical is therefore not inconsistent with the evidence that Gonzales and Guerrero were friends.
Even if the prosecutor's hypothetical can be interpreted in the manner Gonzales argues, the evidence shows that Guerrero was an associate of the 18th Street gang, his self-serving testimony notwithstanding. Guerrero testified he hung out with Gonzales, a known 18th Street gang member, almost every day. He also admitted he took photographs with members of the 18th Street gang that showed him throwing up the 18th Street gang sign. Given these facts, the predicate to Gonzales's ineffective assistance of counsel argument - that the prosecutor committed misconduct that should have drawn a defense objection - does not exist.
Separately, the record discloses defense counsel had a rational purpose for her failure to object to the hypothetical: discrediting Guerrero, the prosecution's chief witness. In closing, defense counsel argued Guerrero was an "actual associate" of the 18th Street gang and that his testimony was not credible.
d. Failure to Object to Guerrero's Testimony
Gonzales next contends defense counsel was ineffective for failing to object to two of the prosecutor's questions to Guerrero. First, Gonzales contends the prosecutor improperly led Guerrero to testify that "business" meant "gang business." Gonzales asserts trial counsel should have objected to the question on the ground it was leading, called for speculation, and was irrelevant. Second, Gonzales contends trial counsel was ineffective for failing to object to Guerrero's testimony that Gonzales's statement, "18, bitch" meant the shooting was gang related. According to Gonzales, Guerrero was not qualified to testify to the meaning of "18, bitch" because he was not a gang member or associate. (As we have just quoted, defense counsel argued that Guerrero was an associate.)
Guerrero testified: Q Okay. So you heard [Gonzales] say the reason he shot Dazer moments before was, quote, "Business," end quote? A Yes. Q All right. And what did you take that to mean? A Just business. Personal business. Q Gang business? A That's what I thought, yes.
"We have long recognized that counsel's decision whether or not to object to inadmissible evidence is a matter of trial tactics. [Citation.] Because we accord great deference to trial counsel's tactical decisions, counsel's failure to object rarely provides a basis for finding incompetence of counsel." (People v. Lewis (2001) 25 Cal.4th 610, 661.) Here, nothing in the record suggests defense counsel lacked a rational tactical reason for not objecting to these two parts of Guerrero's testimony. Counsel could reasonably have believed objections to Guerrero's "business" and "18, bitch" testimony would have been futile because that testimony was admissible. As we have discussed, counsel argued Guerrero was a gang associate, and there was sufficient evidence of Guerrero's association with the 18th Street gang. Testimony regarding what Guerrero understood Gonzales to mean when he made those statements was relevant and within Guerrero's personal knowledge. (People v. Sanchez (2016) 63 Cal.4th 665, 675; Evid. Code, § 702, subd. (a).)
2. The Gang Finding Under Former Section 186.22 Is Supported by Substantial Evidence But That Evidence Does Not Meet the Requirements Under the Amended Statute; Remand is Necessary
Gonzales next contends the evidence was insufficient to support a true finding as to the gang allegation under former section 186.22 or as section 186.22 is amended by AB 333. We find substantial evidence supported the jury's gang finding under the statute in effect at the time of the trial. We conclude reversal of the gang finding is nevertheless necessary because of the changes made by AB 333.
Gonzales also contends his trial counsel was deficient because she failed to argue to the jury that there was insufficient evidence to support the gang enhancement. Given the ample evidence submitted by the People to prove the gang enhancement, as a matter of trial strategy, defense counsel could reasonably have decided instead to focus her closing argument on self-defense. (See People v. Carter (2003) 30 Cal.4th 1166, 1211 ["A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy."].)
We observe that a reversal of the gang enhancement does not reduce the sentence Gonzales is currently serving. The trial court sentenced Gonzales to 50 years to life, comprised of a 25-years-to-life term for the murder conviction plus another 25-years-to-life term for the firearm enhancement under subdivision (d) of section 12022.53. The trial court imposed and stayed the gang enhancement pursuant to section 654. Gonzales thus must still serve a 50-years-to-life term even if gang enhancement were stricken. Although a reversal has no practical effect on Gonzales's current sentence, we nevertheless address his argument because the sentence on the gang enhancement was imposed (although stayed).
The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction-that is, we review the entire record in the light most favorable to the People and determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Mejia (2012) 211 Cal.App.4th 586, 614.) Given this standard of review, we begin by setting out the evidence presented by the prosecution in support of the gang allegation.
a. Gang and Predicate Offense Testimony
As we have discussed, Detective Castro testified to the primary activities, common name, common identifying signs and symbols of the 18th Street gang. He also identified Gonzales as a member of the 18th Street gang from his tattoos and social media.
Detective Machado testified to arresting Steven Ray Palma, known as "G Money" and a self-identified member of the 18th Street gang, for being a felon in possession of firearms on June 19, 2013.
Officer Garcia testified to his background, training, education, and experience as it related to criminal street gangs, specifically the 18th Street gang. Officer Garcia had previously testified as the gang expert in two cases involving 18th Street gang members: Jose Luis Munoz, an 18th Street gang member known as "Diablo," was convicted of an August 12, 2011 murder and 18th Street gang members Roberto Epifanio Sanchez, Carlos Numberto Morales, Philip Joseph Jojola, and Arthur John Quesada were convicted of conspiracy to commit murder and attempted murder occurring on July 7, 2012. Garcia also testified as the gang expert in a case involving Clique 54 members, which he identified as a subset of the 18th Street gang. In that case, Julio Cesar Reyes, Daniel Alonzo Martinez, and Eric Sailor were convicted of a June 20, 2014 murder.
b. The Evidence Was Sufficient to Establish the Gang Enhancement in Effect Prior to the AB 333 Amendments
We first discuss Gonzales's sufficiency of the evidence argument because if the evidence was insufficient to meet the requirements of the statute at the time of trial, there can be no retrial. (People v. Vasquez (2022) 74 Cal.App.5th 1021, 1033.) An error based solely on AB 333 permits a retrial if the prosecution so chooses.
At the time Gonzales was tried, the prosecution was required to prove the defendant committed the offense "for the benefit of, at the direction of, or in association with a criminal street gang" in order to establish the gang enhancement. (Former § 186.22, subd. (b)(1).) A "criminal street gang" was defined as an ongoing association or group of three or more persons, having as one of its primary activities the commission of certain criminal acts, "having a common name or common identifying sign or symbol," and whose members have engaged in a "pattern of criminal gang activity." (Former § 186.22, subd. (f).) A "pattern of criminal gang activity" in turn, meant the commission of "two or more" statutorily listed offenses. (Former § 186.22, subd. (e)(1).)
Here, the prosecution presented evidence that Gonzales portrayed himself as an 18th Street gang member on social media and had tattoos indicating his allegiance to the 18th Street gang. Guerrero testified Gonzales associated with the 18th Street gang and said, "18, bitch" immediately after shooting the victim. Gonzales later told Guerrero he shot the victim because "it was business." Gonzales and Detective Castro testified to the 18th Street gang's intention to control the sale of narcotics in areas of Pomona. Based on his experience and a hypothetical mirroring the facts of this case, Castro testified that in his opinion the victim's murder was committed to benefit the 18th Street gang.
As to whether the 18th Street gang was a criminal street gang engaged in a pattern of criminal gang activity, Detective Castro testified to the primary activities, common name, common identifying signs and symbols of the 18th Street gang. Officer Garcia described the predicate offenses which had been committed by members of the 18th Street gang, including a 2011 murder by an 18th Street gang member and a 2012 conspiracy to commit murder and attempted murder by four 18th Street gang members. At the time of the trial, there were no temporal limits on the date on which a predicate offense occurred. (This changed under the AB 333 amendments.) This is sufficient to support a true finding on the gang enhancement under the former statute.
c. The People Failed to Produce Sufficient Evidence of a Gang Enhancement Under AB 333
During the pendency of this appeal, the Legislature enacted AB 333, which took effect on January 1, 2022. The parties agree AB 333 applies retroactively to Gonzales's case. The Supreme Court recently confirmed the parties' position. (People v. Tran (2022) 13 Cal.5th 1169, 1207.) Gonzales contends the People failed to present evidence to meet the new requirements under AB 333 for predicate offenses. Although the Attorney General does not counter Gonzales's argument, he nevertheless asks us to affirm the judgment without explaining why affirmance is appropriate under these circumstances. As we discuss next, we conclude reversal and remand for further proceedings is proper.
(1) AB 333
Both before and after its amendment by AB 333, section 186.22 applied only to a defendant who 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).) AB 333 added a new definition, explaining, "to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).)
AB 333 also changed the requirements for predicate offenses. AB 333 amends section 186.22's definition of "criminal street gang" to require that members collectively (no longer individually or collectively) engage in a pattern of criminal gang activity. (§ 186.22, subd. (f).) Now, to establish a "pattern of criminal activity," the prosecution must show the commission of two or more itemized offenses, "provided at least one of these offenses occurred after the effective date of this chapter, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational." (§ 186.22, subd. (e)(1).)
We observe that Gonzales misreads the amended statute; he asserts "the predicate offenses could not have occurred prior to August 21, 2013," which is three years before the current offense. Section 186.22, subd. (e)(1) specifies that only one of the predicate offenses need occur within three years of the current offense and the second, earlier predicate offense must occur within three years of the later predicate offense (not within three years of the current offense).
(2) Analysis
Gonzales contends the People failed to prove the elements of the amended statute. The Attorney General does not dispute the lack of evidence.
At trial, the People presented evidence of four predicate offenses: (1) a 2011 murder by an 18th Street gang member known as Diablo, (2) a 2012 conspiracy to commit murder and attempted murder by four 18th Street gang members; (3) a 2013 arrest of an 18th Street gang member known as G-Money for being a felon in possession of a firearm, and (4) a 2014 murder committed by Clique 54 members, a subset of 18th Street.
In addition to the officers' testimony regarding the predicate offenses, the People admitted into evidence the minute orders in each of the cases. The minute orders do not disclose any further information pertinent to the gang enhancement inquiry beyond the testimony.
The 2011, 2012 and 2013 crimes.
The evidence presented to the jury did not demonstrate the offense "commonly benefited a criminal street gang" where the "common benefit . . . is more than reputational." (§ 186.22, subd. (e)(1). In the 2011 offense, the 18th Street gang member shot a motorist who he believed was following him after a fight. There is no indication that the shooting or the initial fight was gang related, much less that it benefited the 18th Street gang. In the 2013 offense for being a felon in possession of two firearms, there was no testimony that G Money possessed the firearms for gang-related activities rather than for personal protection.
The evidence concerning the 2012 crime also did not demonstrate a common benefit to the 18th Street gang. Officer Garcia summarized the 2012 offense as follows: "[The defendant gang members] meet a victim. The victim tells them where to buy narcotics. So the victim takes them there. They end up being stopped, all of them. So they blamed - these four blamed the victim for taking them to a hot place, which is raided by police. [¶] So from there, they take him to a house in Baldwin Park. They held the victim hostage, asked the girlfriend to get some money, like a ransom. [¶] The girlfriend doesn't come up with the ransom. Mr. Carlos Morales takes him to San Dimas, shoots him, but the victim survives." There is nothing in the summary that indicates the attempted murder was connected to the 18th Street gang, aside from the fact that the defendants were members of the gang. Garcia did not testify the four were looking to acquire drugs for the gang rather than for personal use.
The 2014 crime.
Although the parties do not argue the point, it appears the evidence is also insufficient to support a finding that the 2014 offense was committed to benefit the 18th Street gang rather than only Clique 54. In People v. Prunty (2015) 62 Cal.4th 59, 67, the Supreme Court held, "when the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang's alleged subsets, it must prove a connection between the gang and the subsets." Neither party cites to or addresses Prunty, much less discusses whether the evidence presented at trial proved a connection between the 18th Street gang and Clique 54 beyond the bare conclusion that one was a subset of the other. Prunty tells us that is not enough to satisfy section 186.22's definition of a "criminal street gang." (Ibid.) Even if we assume the 2014 offense meets the AB 333 requirements - it occurred within three years of the current offense, it involved collective action, and the common benefit was more than reputational in that the perpetrators killed a gang rival - one predicate offense is not sufficient to establish a pattern of criminal activity under section 186.22, subdivisions (e) &(f).
Given the state of the evidence of the four predicate crimes, we reverse the gang enhancement. The prosecution may elect to retry the enhancement if it chooses.
Because we find the common benefit requirement under AB 333 has not been met, we need not address whether the predicate crimes involved collective action. (People v. Delgado (2022) 74 Cal.App.5th 1067, 1088-1089; People v. Lopez (2021) 73 Cal.App.5th 327, 344-345; contra, People v. Clark (2022) 81 Cal.App.5th 133, 145 , review granted Oct. 19, 2022, S275746.)
3. The Abstract of Judgment Must be Corrected
Gonzales points out the abstract of judgment incorrectly lists the applicable code section for his murder conviction as section 245, subdivision (a)(1). The murder conviction was pursuant to section 187, subdivision (a), not section 245, which describes the crime of assault with a deadly weapon. On remand the trial court shall correct the abstract.
DISPOSITION
The gang enhancement is reversed, and the matter remanded with directions that the prosecution may elect to retry the gang enhancement if it chooses. If the prosecution chooses not to retry the gang enhancement, the court shall prepare an amended abstract of judgment correcting the citation to the murder conviction to Penal Code section 187, subdivision (a) and striking the imposition of a 25-years-to-life sentence for the gang enhancement (which is presently stayed pursuant to section 654). The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BAKER, J., MOOR, J.