People v. Garnica CA2/2 ( 2022 )

Filed 2/10/22 P. v. Garnica CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307386
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA452909)
v.
ORDER MODIFYING
JOAN GARNICA et al., OPINION AND DENYING
REHEARING
Defendants and
Appellants. NO CHANGE IN THE
JUDGEMENT
THE COURT:
It is ordered that the opinion filed herein on February 3, 2022, be
modified as follows:
1. In the fourth full sentence on page 6: before the first
parenthesis, insert “or great bodily injury”; after
“and,” insert “, for the other defendants,”; and after
“death,” insert “or great bodily injury.” The sentence
should read:
The indictment also alleged that Salas
personally discharged a firearm resulting in
death or great bodily injury (§ 12022.53, subd.
(d)), and, for the other defendants, that a
principal in a gang-related offense personally
discharged a firearm resulting in death or great
bodily injury (§ 12022.53, subds. (d) & (e)(1)).
2. Before the first full sentence on page 7, which begins
“The indictment alleged that,” add the following
sentence:
The indictment also alleged that, as to the
kidnapping and torture offenses, a principal
used a firearm in the commission of a felony
“committed for the benefit of, at the direction
of, or in association with a criminal street
gang” (§ 12022.53, subds. (b), (e)(1)).
3. In the first full sentence on page 7 (not counting the
sentence to be added above), insert “, except for the
charge of being a felon in possession of a firearm,”
between “crimes” and “were,” so that the sentence
reads:
2
The indictment alleged that all of the above-
enumerated crimes, except for the charge of
being a felon in possession of a firearm, were
committed “for the benefit of, at the direction
of, or in association with a criminal street
gang.” (§ 186.22, subd. (b)(1)(C).)
4. On page 7, in the last sentence before part II.B. of the
opinion, add “s” to “circumstance” to make it plural,
and add
“, and that the murders were for criminal street gang
purposes (§ 190.2, subd. (a)(22))” to the end of the
sentence. The sentence should read:
The indictment further alleged the special
circumstances that Salas had committed
multiple murders (§ 190.2, subd. (a)(3)), and
that the murders were for criminal street gang
purposes (§ 190.2, subd. (a)(22)).
5. On page 8, in the first sentence of part II.D. of the
opinion, replace “15” with “25,” and replace “187”
with “177,” so that the sentence reads:
The trial court sentenced Salas to prison for a
determinate term of 25 years, plus two
indeterminate terms of life without the
possibility of parole, plus 177 years to life, and
3
sentenced Garnica to prison for 125 years to
life.
6. On page 26, in the first sentence of part VI.A.1. of the
opinion, replace “15” with “25,” and replace “187”
with “177,” so that the sentence reads:
As to Salas, the trial court imposed a
determinate prison sentence of 25 years,
followed by two sentences of life without the
possibility of parole (LWOP), followed by 177
years to life.
7. In the sentence beginning on page 26 and continuing
onto page 27, and comprising the first bullet point of
part VI.A.1.: replace “use” with “personal discharge”;
replace “by a principal in a felony ‘committed for the
benefit of, at the direction of, or in association with a
criminal street gang,’” with “causing death”; and
replace “(§§ 12022.53, subds. (d), (e)(1), § 186.22,
subd. (b))” with “(§ 12022.53, subd. (d)).” That
sentence should read:
For the murder during the Saticoy Street
shooting, the trial court imposed a sentence of
LWOP plus 25 years, with the LWOP sentence
based on the special circumstance that Salas
“intentionally killed [the victim] while [Salas]
was an active participant in a criminal street
gang and the murder was carried out to further
4
the activities of the criminal street gang” (§
190.2, subd. (a)(22)), and with the 25-year
enhancement based on the personal discharge
of a firearm causing death (§§ 12022.53, subd.
(d)).
8. On page 27, in the sentence comprising the second
bullet point of part VI.A.1.: replace “use” with
“personal discharge”; replace “by a principal in a
felony ‘committed for the benefit of, at the direction
of, or in association with a criminal street gang’” with
“causing great bodily injury”; and replace “(§§
12022.53, subds. (d), (e)(1), 186.22, subd. (b))” with “(§
12022.53, subd. (d)).” That sentence should read:
For each of the three attempted murders
during the Saticoy Street shooting, the trial
court imposed a base sentence of 15 years to life
plus a 25-year enhancement based on the
personal discharge of a firearm causing great
bodily injury (§ 12022.53, subd. (d)).
9. On page 28, at the end of the sentence that begins,
“For the kidnapping,” replace the “(d)” (referring to a
subdivision of section 12022.53) with “(b),” so that the
citation ending the sentence reads:
(§§ 12022.53, subds. (b), (e)(1), 186.22, subd.
(b)).
5
10. On page 28, in the sentence beginning “For the
torture”: insert “the commission of” before “a felony”;
and replace “(d)” (referring to a subdivision of section
12022.53) with “(b),” so that the sentence reads:
For the torture of Covarrubias during the
forced tattooing, the court imposed a life
sentence plus 10 years, with the 10 years based
on the use of a firearm by a principal in the
commission of a felony “committed for the
benefit of, at the direction of, or in association
with a criminal street gang” (§§ 12022.53,
subds. (b), (e)(1), 186.22, subd. (b)).
11. On page 30, in the first sentence of the first full
paragraph, insert “special circumstance finding and
the gang and firearm” between “the” and
“enhancements,” so that the sentence reads:
Because the People did not ask the jury to find
at least some of the elements that Assembly
Bill No. 333 requires (and that the prior law
did not require), the special circumstance
finding and the gang and firearm
enhancements affected by that new law must
now be vacated. (Accord, People v.
Sengpadychith (2001) 26 Cal.4th 316, 325-326.)
12. On page 30: delete “Here is a list of the
enhancements that must now be vacated:”; delete the
6
two bulleted paragraphs that follow; and delete
footnote 7.
* * *
There is no change in the judgment.
Appellant Salas’s petition for rehearing is denied.
—————————————————————————————
LUI, P.J. ASHMANN-GERST, J. HOFFSTADT, J.
7
Filed 2/3/22 P. v. Garnica CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307386
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA452909)
v.
JOAN GARNICA et al.,
Defendants and
Appellants.
APPEAL from judgments of the Los Angeles Superior
Court, Lisa B. Lench, Judge. Affirmed, but sentences vacated in
part and remanded for further proceedings.
Mark S. Givens, under appointment by the Court of Appeal,
for Defendant and Appellant Joan Garnica.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant Rene Salas.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Joan Garnica (Garnica) and Rene Salas (Salas)
(collectively, defendants) appeal their convictions for murder,
attempted murder and other crimes arising out of several
incidents of gang-related violence. Specifically, they argue that
the trial court erred (1) in admitting certain evidence against
Garnica, (2) in denying their motions to sever the joint trial of the
charged incidents into several different trials, one for each
defendant as to each incident, (3) in not granting a mistrial after
the prosecutor elicited an in-court identification he knew to be
false, and, potentially, (4) in its review of discovery sought by the
defense. We conclude there was no individual or cumulative
error, and affirm defendants’ convictions. After this matter was
initially set for argument, the parties provided supplemental
briefing on whether the gang enhancements and other sentencing
enhancements premised on gang activity must be vacated in light
of the recently enacted Assembly Bill No. 333 (Stats. 2021, ch.
699, § 3). We conclude that they must, and vacate all of the
sentencing enhancements imposed under Penal Code section
186.22, section 12022.53, subdivision (e)(1), or section 190.2,
subdivision (a)(22); all other enhancements remain intact. We
remand the matter back to the trial court to give the People the
2
opportunity to decide whether to retry those enhancements.
Upon resentencing, the trial court may consider which sentences
to stay under the broader discretion granted under section 654
due to recently enacted Assembly Bill No. 518 (Stats. 2021, ch.
441, § 1).
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The Valerio Street Gang
Valerio Street is a street gang that operates in the San
Fernando Valley. Both Salas and Garnica are members of the
gang; Salas’s moniker is “Lucky,” Garnica’s is “Little Joe” or “Fat
Joe.”
B. Incidents in 2015 and 2016
1. The Saticoy Street shootings
On December 22, 2015, Salas, Garnica and others drove in
a caravan to Saticoy Street in Van Nuys. Salas was transported
in a car driven by his then-girlfriend, Lorena Gonzalez (Lorena).1
Garnica was transported in a Camaro driven by another Valerio
Street gang member.
Salas and three other gang members got out of the car.
After the Camaro drove up Saticoy Street, Salas and the others
followed on foot. When Salas and the others encountered
pedestrians, they asked, “Where you from?” Juan Santos
(Santos), one of the pedestrians, walked up to the group. When
he did, someone in Salas’s group said, “Fuck you” and “Valerio,”
and multiple group members opened fire on Santos and others in
the street. As they fired, they shouted, “Woo hoo!” When they
1 Because the facts involve several unrelated individuals
with the last name “Gonzalez,” we will use first names for clarity.
We intend no disrespect.
3
ceased firing, they ran back to the caravan of cars, cheering.
Santos died from the 13 bullets in his body; the other shooting
victims survived.
A surveillance camera captured four men walking up
Saticoy Street moments before the shooting began. Garnica’s cell
phone pinged off the tower nearest the shooting. Within hours of
the shootings, Salas used his cell phone to search on Google for
news relating to a “shooting in Van Nuys.” Salas later told Luz
Ramirez (Ramirez), another of his girlfriends, that he and his
friends “shot . . . a guy” on December 22, 2015. And when Lorena
revealed that she “heard what happened” as she waited around
the corner during the shooting, Salas struck her and told her that
he could get at her “in or outside.”
2. The Vega shooting
Just over four months later, on April 29, 2016, Ramirez
drove Salas and Garnica to the home where Alexander Vega
(Vega) lived. Vega was a member of the Pacoima Crazy Boys
street gang, a rival of the Valerio Street gang. In the weeks
leading up to April 29, Salas and Vega exchanged text messages
in which they used their gang monikers and referred to their
gangs’ territories; in one message, Salas warned, “This is Lucky
[from] Valerio Street. I’ll get at you, homey.” Vega was also
using a printer belonging to Yessenia Ventura (Ventura), who
was a Valerio Street gang associate, to print up fake checks.
Both men had also dated Ramirez, but Salas on the ride over told
Ramirez, “Whatever I do, bitch, don’t think it’s because of you.”
Salas and Garnica arrived at Vega’s house just before
midnight. Both men got out of the car, pulled up the hoodies they
had donned, and approached the closed garage where Vega
usually hung out. Salas was armed. With Garnica at his side,
4
Salas entered the garage and, seeing Vega and one other person,
shot Vega four times. Vega died from his wounds.
The next day, Salas ran Google searches for news about the
shooting. He also told Ramirez that he had shot Vega.
3. The forced tattooing of Covarrubias
Four days later, on April 30, 2016, Garnica and two others
met up with Marcela Covarrubias (Covarrubias). They drove her
to a house where Salas and others were hanging out.
Covarrubias was a member of the Barrio Van Nuys street gang, a
rival of the Valerio Street gang. When she began to boast about
her gang, Garnica smashed a glass bottle on her head and she
collapsed. When she regained consciousness, she was lying in a
reclining position with Salas atop her. He put a gun in her
mouth and ordered her to “suck it” while another gang member
tattooed Valerio Street-related symbols on her neck and arms.
Someone else at the gathering recorded the incident on a cell
phone.
4. The prostitution sting
Four days later, on May 4, 2016, Salas, Garnica and
Ramirez were hanging out at a Motel 6 in Sylmar. While there,
Garnica started talking to several women who indicated that
they were prostitutes but who were, in actuality, undercover
police officers. Garnica bragged that he was a member of the
Valerio Street gang; told them, “I’m a be strapped the fuck up”
(that is, that he was armed); attempted to coerce them into
working for him by indicating, “you guys are working for me,
right?”; and then offered to serve as their enforcer if a “john”
refused to pay or if they decided instead to “set[] . . . up” and rob a
“john.” After Garnica and Salas began to suspect that women
were undercover police, they gave the gun they were carrying to
5
Ramirez so the police would not seize the gun and possibly match
it as a weapon used in the prior incidents.
II. Procedural Background
A. Charges
In May 2017, a grand jury returned a 20-count indictment
against Salas, Garnica and several others. As pertinent here, the
grand jury returned charges with respect to the (1) Saticoy Street
shooting, (2) the shooting of Vega, and (3) the forced tattooing of
Covarrubias. With respect to the Saticoy Street shooting, the
grand jury charged Salas and Garnica with the murder of Santos
(Pen. Code, § 187)2 and three counts of attempted premeditated
murder (§§ 187, 664, subd. (a)). The indictment also alleged that
Salas personally discharged a firearm resulting in death (§
12022.53, subd. (d)), and that a principal in a gang-related
offense personally discharged a firearm resulting in death (§
12022.53, subds. (d) & (e)(1)). For the same set of crimes, the
grand jury charged Salas with (1) witness intimidation for his
postshooting threat to Lorena (§ 136.1), and (2) being a felon in
possession (§ 29800, subd. (a)(1)). With respect to the shooting of
Vega, the grand jury charged Salas (and Ventura) with (1)
conspiracy to murder (§ 182) and (2) the murder of Vega (§ 187).3
The indictment alleged that Salas had personally discharged a
firearm causing death (§ 12022.53, subd. (d)). With respect to the
forced tattooing of Covarrubias, the grand jury charged Salas and
Garnica with (1) torture (§ 206), (2) aggravated mayhem (§ 205),
2 All further statutory references are to the Penal Code
unless otherwise indicated.
3 The People sought to indict Garnica on these same counts,
but the grand jury declined to do so.
6
and (3) kidnapping (§ 207). The indictment alleged that all of the
above-enumerated crimes were committed “for the benefit of, at
the direction of, or in association with a criminal street gang.” (§
186.22, subd. (b)(1)(C).) The indictment further alleged the
special circumstance that Salas had committed multiple murders
(§ 190.2, subd. (a)(3)).
B. Severance motions
The trial court set a joint trial for Salas and Garnica.
Garnica moved to be tried separately from Salas, and Salas
moved to sever each of the incidents—the Saticoy Street
shootings, the shooting of Vega, and the forced tattooing of
Covarrubias—into a separate trial. The trial court denied both
severance requests.
C. Trial
The matter proceeded to a joint jury trial that lasted nine
days in January and February 2020.
Overruling Garnica’s motion in limine, the court ruled that
the shooting of Vega was admissible against him under Evidence
Code section 1101, subdivision (b), but only to prove (1) “the
intent necessary for the gang allegation[s] in this case”; (2)
Garnica’s motive to commit the Saticoy shootings and the forced
tattooing of Covarrubias; and (3) Garnica’s intent to kill for the
Saticoy shootings. The court also ruled that the prostitution
sting was admissible to prove why Salas gave the gun he had
used in the prior incidents to Ramirez to hide; however, the court
excluded mention of the arrests and charges arising out of the
sting.
The trial court instructed the jury that Garnica and Salas
could be convicted of these crimes as the actual perpetrator or as
direct aiders and abettors. The court did not instruct the jury on
7
the natural and probable consequences theory of aiding and
abetting or on any felony-murder theory.
The jury found Salas guilty of all charged crimes, all
alleged enhancements, and the special circumstance. The jury
found Garnica guilty of the crimes relating to the Saticoy Street
shootings, but acquitted him of the crimes relating to the forced
tattooing of Covarrubias (as well as any lesser-included offenses).
D. Sentencing and appeal
The trial court sentenced Salas to prison for a determinate
term of 15 years, plus two indeterminate terms of life without the
possibility of parole, plus 187 years to life, and sentenced Garnica
to prison for 125 years to life.
Both defendants filed timely notices of appeal.
DISCUSSION
I. Evidentiary Issues
Garnica argues that the trial court erred in ruling that the
jury could consider the Vega shooting and the prostitution sting
against him. We review these evidentiary rulings for an abuse of
discretion. (People v. Clark (2016) 63 Cal.4th 522, 590.)
A. The Vega shooting
The trial court admitted the Vega shooting under Evidence
Code section 1101, subdivision (b). That provision authorizes the
admission of uncharged acts to “prove some fact,” including
“motive” and “intent.” (Evid. Code, § 1101, subd. (b).) To be
admissible as so-called “1101(b) evidence,” a court must find that
(1) the purpose for which the uncharged act is offered is relevant
to the pending case (People v. Daniels (1991) 52 Cal.3d 815, 857-
858), (2) the uncharged act has the requisite degree of similarity,
which ensures that it has a tendency to prove the purpose for
which it is offered (People v. Lindberg (2008) 45 Cal.4th 1, 22
8
(Lindberg); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403
(Ewoldt), superseded on other grounds by Evid. Code, § 1108),
and (3) the probative value of the evidence is not substantially
outweighed by the “substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury” (Evid. Code, §
352; Lindberg, at pp. 22-23). To prove intent, the “least degree of
similarity []between the uncharged act and the charged offense[]
is required” (Ewoldt, at p. 402)—namely, the proponent need only
prove that there are “‘sufficient similarities [between the act and
the crime] to demonstrate that in each instance the perpetrator
acted with the same intent . . . .’” (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 827, quoting People v. McCurdy
(2014) 59 Cal.4th 1063, 1097.) No similarity between an
uncharged act and a charged offense is required before the act is
admissible to prove motive; instead, there need only be a “nexus”
concerning motive. (People v. Thompson (2016) 1 Cal.5th 1043,
1115.)
Under these standards and as pertinent to this appeal,4 the
trial court did not abuse its discretion in admitting the Vega
shooting to prove (1) Garnica’s intent to kill underlying the
Saticoy Street shootings, (2) Garnica’s intent to “to assist,
further, or promote criminal conduct by gang members”
underlying the gang enhancement alleged as to the Saticoy Street
shootings, and (3) Garnica’s motive for committing the Saticoy
Street shootings. Here, Garnica’s intent and motive are certainly
relevant: Not only did Garnica plead not guilty to the crimes and
thereby put every element at issue, but his defense at trial—
4 We need not discuss the admission of this evidence vis-à-vis
the forced tattooing of Covarrubias in light of Garnica’s acquittal
of those charges.
9
which he maintains on appeal—is that he was “merely present”
at the Saticoy Street shootings. This places his intent and motive
squarely at issue. The Vega shooting also had sufficient
similarity to the Saticoy shootings that it tends to prove his
intent to kill and to further and promote the conduct of his fellow
gang member Salas, as well as his motive for committing the
Saticoy shootings. The Vega shooting was motivated in part by
Salas’s gang-related animosity toward Vega; further, Salas
formulated a plan to shoot Vega in his garage near midnight,
Garnica accompanied Salas to the garage so Salas would not be
alone when he accosted Vega without definitive knowledge of who
else was in the garage with him. Garnica’s act of accompanying
Salas while Salas committed a gang-motivated killing is evidence
that he directly aided and abetted Salas in that killing, and thus
tends to prove that Garnica had a similar intent to kill the
victims of the Saticoy Street shootings, had the intent to assist
Salas and his fellow gang members on Saticoy Street when he
drove by in the Camaro as a distraction, and had the same motive
to kill his rival gangs’ members. (Cf. People v. Bigelow (1984) 37
Cal.3d 731, 748 [evidence that defendant had previously robbed
someone else insufficient evidence of motive to qualify for
admission under section 1101].) Lastly, the probative value of
this evidence of motive and intent is not substantially outweighed
by the considerations listed in Evidence Code section 352: Any
danger of undue prejudice, confusing the issues or misleading the
jury (from the jury’s improper consideration of this evidence as
“propensity” evidence) was blunted by the court’s instruction
limiting the purposes for which the Vega shooting was to be
considered; further, the need to prove the same offense as
10
charged against Salas means that there was no undue
consumption of time.
Garnica responds with three arguments.
First, he argues that the trial court erred in admitting the
Vega shooting against him because it came after the Saticoy
shooting. However, the timing of the uncharged act is not a basis
for excluding section 1101(b) evidence. (People v. Leon (2015) 61
Cal.4th 569, 597-598.)
Second, he argues that the Vega incident is not sufficiently
similar because (1) the Vega incident was really an
“interpersonal, specific dispute” between Salas and Vega over
their romantic interest in Ramirez and over a printer, and (2) the
Vega incident is not sufficiently similar because there is
insufficient evidence to prove that Garnica was actually involved
in either crime. We reject both arguments. As explained above,
the Vega incident was also motivated by the gang rivalry between
Salas and Vega. And there is sufficient similarity: Garnica
contends that the sole evidence is that he was merely present at
both locales, but Garnica was more than present during both
incidents (he drove in the Camaro as a diversion and
accompanied Salas to Vega’s garage for backup) and presence can
be the basis for aiding and abetting where such presence serves a
function that encourages the perpetrator and is done with the
requisite specific intent (here, the intent to kill). (E.g., People v.
Swanson-Birabent (2003) 114 Cal.App.4th 733, 744; People v.
Stankewitz (1990) 51 Cal.3d 72, 90-91.)
Third, he argues that the probative value of the Vega
incident is substantially outweighed by the danger that the jury
will consider the Vega incident solely as evidence of his bad
character. This argument is premised on his earlier argument
11
that he was not involved in either set of crimes; our rejection of
the latter means we reject the former.
Because we find there is no evidentiary error, there is no
violation of due process. (People v. Fudge (1994) 7 Cal.4th 1075,
1102-1103.)
B. The prostitution sting
The trial court admitted evidence of the prosecution sting
as conduct that was part and parcel of the charged crimes—
namely, the disposal of the gun Salas had been using in the prior
months. (Accord, United States v. Dorsey (9th Cir. 2012) 677 F.3d
944, 951 [when evidence is “inextricably intertwined” with
evidence of charged crime such that it “constitute[s] a part of the
transaction that serves as the basis for the criminal charge,” it
need not satisfy the standards for admission of “other act”
evidence].) Indeed, Garnica does not dispute this logic when he
concedes that the prostitution sting is admissible as a means of
explaining Garnica’s gang affiliation and why Salas was
disposing of the firearm. However, Garnica urges that the trial
court went too far in also admitting the facts that (1) he was
pandering (that is, recruiting prostitutes), (2) he was bragging
about having a gun, and (3) he was willing to enforce payment
and/or rob the faux prostitutes’ clientele.
The trial court did not abuse its discretion in admitting
these additional facts. These facts were inextricably intertwined
with the charged crimes insofar as they were necessary to explain
why Salas and Garnica felt it necessary to get rid of the gun:
They feared arrest once they started to suspect the “prostitutes”
were undercover cops because Salas and Garnica had been
engaged in the illegal conduct of pandering and expressing a
willingness to assault or extort their clientele. (Because there is
12
nothing to suggest that Garnica was referring to a different
firearm when he bragged about “being strapped,” this additional
fact is necessary to explain that he and/or Salas possessed the
gun they later sought to hide.) And even if we consider these
additional facts as section 1101(b) evidence, the trial court did
not abuse its discretion in admitting it because it is relevant to
show a consciousness of guilt regarding use of the gun (and hence
why they needed to get rid of it) (accord, People v. Farnam (2002)
28 Cal.4th 107, 163 [consciousness of guilt evidence may be
admitted as section 1101(b) evidence]), and this probative value
was not substantially outweighed by the danger of unfair
prejudice given how minor Garnica’s boasting was as compared
with the murder, attempted murder, torture, mayhem and
kidnapping crimes for which Garnica was standing trial.
II. Severance Issues
Salas and Garnica also argue that the trial court’s
severance rulings were wrong. Garnica asked that his trial be
severed from Salas’s, to prevent the jury from hearing about the
Vega shooting with which he was not charged. Salas asked that
he have three trials, one for each of the incidents (the Saticoy
shootings, the Vega murder, and the forced tattooing of
Covarrubias).
A. Severance of Garnica’s Trial from Salas’s
“When two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials.” (§ 1098.)
“‘Our Legislature has thus “expressed a preference for joint
trials.” [Citation.] But the [trial] court may, in its discretion,
order separate trials “in the face of an incriminating confession,
prejudicial association with codefendants, likely confusion
13
resulting from evidence on multiple counts, conflicting defenses,
or the possibility that at a separate trial a codefendant would
give exonerating testimony.”’” (People v. Letner and Tobin (2010)
50 Cal.4th 99, 150.) “We review a trial court’s denial of a
severance motion for abuse of discretion based on the facts as
they appeared at the time the court ruled on the motion.” (People
v. Avila (2006) 38 Cal.4th 491, 575.) “If the court’s joinder ruling
was proper at the time, a reviewing court may reverse a
judgment only on a showing that joinder ‘“resulted in “gross
unfairness” amounting to a denial of due process.’” (Ibid.) We
review the constitutional question de novo. (In re Taylor (2015)
60 Cal.4th 1019, 1035.)
The trial court did not err in declining to sever Garnica’s
trial from Salas’s trial. As to the Saticoy Street shootings and the
forced tattooing of Covarrubias, defendants were mutually
charged with the same crimes arising from the same events,
which our Supreme Court has characterized as a ‘“classic case”’
for a joint trial. (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 40.) Although only Salas was charged in the counts associated
with the Vega shooting, those events were admissible against
Garnica under section 1101, subdivision (b), as we have
concluded above. As a result, none of the circumstances listed
above as a basis for severance were present in this case at the
time of the court’s severance ruling. Moreover, even in
retrospect, we discern no “gross unfairness” that denied Garnica
due process.
Garnica responds with what boils down to two arguments.
First, he contends that the trial court’s ruling was erroneous
under the multifactor test for severing counts under section 954
because (1) the Vega shooting is not cross-admissible against
14
him, (2) the Vega shooting was likely to inflame the jurors
against him, and (3) the Vega shooting was designed to
compensate for the People’s weak case on the Saticoy shootings
and forced tattooing of Covarrubias. (People v. Bradford (1997)
15 Cal.4th 1229, 1314-1315.) We reject this contention. To begin,
it is far from clear that section 954’s multifactor test for severing
counts applies under section 1098 for severing defendants.
However, even if we assume that section 954’s test applies, we
have concluded that all of the evidence admissible against Salas
is also admissible against Garnica, and it is well settled that the
“[c]ross-admissibility of evidence is sufficient . . . to deny
severance” under section 954. (People v. Ochoa (2001) 26 Cal.4th
398, 423 (Ochoa).) Second, Garnica urges that the trial court’s
ruling was deficient because the court did not analyze the section
954 factors on the record. Even assuming (once again) that those
factors are relevant, we review the trial court’s ruling—not its
reasoning—so the absence of an on-the-record analysis is of no
consequence. (People v. Carter (2005) 36 Cal.4th 1114, 1155
(Carter) [so holding].)
B. Severance of counts against Salas
As pertinent here, a trial court may join for trial “two or
more different offenses of the same class of crimes or offenses” or
“two or more different offenses connected together in their
commission” unless the court “in its discretion” finds, on the basis
of “good cause shown,” that severance of the offenses is
nevertheless “in the interests of justice.” (§ 954.) Here, the
crimes charged for each of the three incidents—murder,
attempted murder, torture, aggravated mayhem and
kidnapping—are all assaultive crimes, and hence crimes of the
“same class.” (People v. O’Malley (2016) 62 Cal.4th 944, 967;
15
People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) The crimes
charged are also ‘“connected together in their commission”’
because, as discussed below, they are “‘linked by a “‘common
element of substantial importance’”’”, which includes having the
same intent or motive. (People v. Landry (2016) 2 Cal.5th 52, 76;
Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1219 (Alcala).)
Thus, severance is required only if the defendant makes a “‘clear
showing of prejudice’” arising from joinder—either under the
information available at the time the severance request is denied
or if, in retrospect, the joinder actually resulted in “gross
unfairness” amounting to a denial of due process. (People v.
Armstrong (2016) 1 Cal.5th 432, 456; People v. Simon (2016) 1
Cal.5th 98, 122.)
The trial court did not abuse its discretion in determining
that defendant had not made a clear showing of prejudice at the
time of its ruling. (People v. Merriman (2014) 60 Cal.4th 1, 37-
38.) In assessing whether severance of counts is compelled under
section 954, courts examine whether “‘(1) evidence on the crimes
to be jointly tried would not be cross-admissible in separate
trials; (2) certain of the charges are unusually likely to inflame
the jury against the defendant; [and] (3) a “weak” case has been
joined with a “strong” case, or with another “weak” case, so that
the “spillover” effect of aggregate evidence on several charges
might well alter the outcome of some or all of the charges.’”
(People v. Kraft (2000) 23 Cal.4th 978, 1030.)5 Here, the evidence
as to the Saticoy Street shootings, the Vega shooting, and the
5 Courts will also examine a fourth factor—namely, whether
“‘any one of the charges carries the death penalty or joinder of
them turns the matter into a capital case.’” (Ibid.) But that
factor is not implicated in this case.
16
forced tattooing of Covarrubias is cross-admissible, as the
evidence of Salas’s gang motivation underlying each incident was
relevant to prove that same intent and motive for the gang
allegations charged as to each incident. Further, the facts of the
Saticoy Street shootings and the Vega shooting are sufficiently
similar—Salas in each case was dropped off, approached the
victim(s) on foot with back-up from other gang members, fired his
weapon, and then fled on foot to a waiting car—to establish
intent to kill as to those two incidents. As noted above, such
cross-admissibility is sufficient by itself to deny severance.
(Ochoa, supra, 26 Cal.4th at p. 423.) None of these incidents is
any more inflammatory than the others; all are grave and horrific
acts resulting in death or mutilation. And we do not view the
evidence supporting Salas’s guilt for each of these incidents as
“weak”: He was seen on video approaching Saticoy Street
moments before the shooting, Googled for police reports of the
incident hours later, and even admitted shooting someone; he
had Ramirez drive him to Vega’s house, Googled for police reports
of the incident hours later, and even admitted to shooting Vega;
and he was on cell phone video holding a gun in Covarrubias’s
mouth while another gang member tattooed her.
Nor do we conclude that, in retrospect, the joinder of these
incidents—all gang-related and within five months of one
another—was grossly unfair as to deny Salas due process.
Salas responds with four arguments that we have not
already addressed above.
First, he contends that the events are too far apart in time.
We disagree. The Saticoy Street shootings and the Vega shooting
are four months apart; the Vega shooting and the forced tattooing
17
of Covarrubias are four days apart. These events are not so
temporally remote as to compel severance.
Second, Salas asserts that the three incidents are not cross-
admissible to prove motive or intent because they are not
sufficiently similar because (1) they occurred at different times
and places, (2) they involved different victims, including victims
who belonged to different rival gangs, and (3) Salas acted with a
different motive in each incident. Because the issues of intent
and motive were “essentially undisputed” at trial, Salas
continues, the incidents were only admissible to prove his
identity, and the degree of similarity required for cross-
admissibility to prove identity is exacting and is not met here.
Evidence of a gang motive is, Salas continues, not enough to
allow for cross-admissibility; for support on this point, he cites
People v. Williams (1997) 16 Cal.4th 153, 193 (Williams); People
v. Cox (1991) 53 Cal.3d 618, 660 (Cox); and Williams v. Superior
Court (1984) 36 Cal.3d 441, 453, superseded by statute as stated
in Alcala, supra, 43 Cal.4th at p. 1229, fn. 19. We disagree. For
the reasons discussed above with regard to Garnica’s evidentiary
challenges, the various incidents are sufficiently similar to be
cross-admissible on the issues of Salas’s intent to kill as to the
Saticoy Street shootings and the Vega shooting as well as his
intent to aid the gang and his motive as to all three incidents: In
the two shooting incidents, Salas made gang-related challenges,
was dropped off and approached his victim(s) on foot, was
accompanied by other gang members, opened fire on his victims,
and fled to a waiting car. Salas also disputed the issues of his
intent to kill at trial when he denied having anything to do with
the shootings or tattooing, and claimed that the Vega shooting
was a wholly personal matter rather than a gang-motivated
18
event. And the cases Salas cites—Williams, Cox, and Williams v.
Superior Court, supra, 36 Cal.3d 441—held that evidence of a
defendant’s gang membership was inadmissible to prove guilt by
association; none of those cases involved a gang enhancement,
where proof of gang association is an element. Because that
enhancement was alleged as to all three incidents here, Salas’s
gang motivation was cross-admissible as to all three incidents.
Third, Salas posits that (1) each incident was inflammatory
in its “own unique way” because (a) the Saticoy Street shootings
involved shooting at bystanders, (b) the Vega shooting involved
shooting someone in his home, and (c) the Covarrubias incident
involving kidnapping and forced tattooing; and (2) there was
danger of a spillover effect because (a) no one saw Salas fire a
gun during the Saticoy Street shootings or the Vega shooting, (b)
no physical evidence tied Salas to those shootings, and (c) the
only witness as to the Vega shooting was Ramirez, who was a
weak witness. These further factors are irrelevant because, as
noted above, the evidence between the incidents is cross-
admissible and that, by itself, is sufficient for denying severance.
Moreover, the incidents were inflammatory to the same degree—
two were murders and attempted murders, and the third
involved kidnapping with forced mutilation. (Accord, Kraft,
supra, 23 Cal.4th at pp. 1029-1031 [joinder of 16 murder counts,
with some involving strangulation, some involving sexual
activity, and some involving mutilation; not sufficiently
inflammatory to warrant severance]; Alcala, supra, 43 Cal.4th at
p. 1227 [joinder of five murders with underlying sexual assaults;
not sufficiently inflammatory to warrant severance].) We also
reject that any spillover effect justified severance. Contrary to
what Salas argues, we conclude that the evidence against Salas
19
as to all three incidents was compelling: Salas admitted to fellow
gang members that he had engaged in the Saticoy Street
shootings and the Vega shooting, and he was on video forcing
Covarrubias to remain still while she was tattooed.
Lastly, Salas notes that the trial court did not spell out its
analysis on the record. As noted above, this is not a basis for
reversal where, as here, the trial court’s ultimate ruling is
correct. (Carter, supra, 36 Cal.4th at p. 1155.)
III. Prosecutorial Misconduct
Garnica and Salas argue that the trial court violated their
due process rights by denying their motion for mistrial after the
prosecutor elicited an in-court identification of both defendants as
shooters during the Saticoy Street shooting, while knowing that
the identification was false. Because this is a constitutional
issue, our review is de novo. (In re Taylor (2015) 60 Cal.4th 1019,
1035.)
A. Pertinent facts
Maria Josefina Marron Gonzalez (Marron) lived on Saticoy
Street on the date of the Saticoy Street shootings.
The next day, her son thought that the shooter looked a lot
like one of his former high school classmates, Andrew Pinedo
(Pinedo). The son pulled down a photograph of Pinedo from
Facebook, and showed it to Marron. She told her son Pinedo was
the man in a white t-shirt (of the two men she saw) that she saw
running down the sidewalk across the street immediately after
she heard gunshots. When questioned by Detective Ryan Verna
(Det. Verna) a few days later, Marron affirmed that Pinedo was
the shooter and, after that, picked him out of a photospread.
After police investigation determined that Pinedo was not
the shooter, Marron still insisted that he was. When Det. Verna
20
showed her a photograph of Salas, she said he was not the
shooter.
The People called Marron as a witness at the trial. During
a break in her testimony, she told the prosecutor that the two
men she saw in the courtroom (Salas and Garnica) were the
shooters. The prosecutor immediately told Salas’s and Garnica’s
attorneys. The prosecutor shared his view that Marron’s
revelation that Salas and Garnica were the shooters was “very
inconsistent with the evidence” and was not “accurate.”
However, the prosecutor sought to elicit the in-court
identification—not to prove it was true—but instead to show that
Marron’s prior identification of Pinedo was unreliable because
“you put two people in front of [Marron] she’s going to I.D. them.”
When Marron resumed testifying, she identified Salas and
Garnica as the shooters and, inconsistently, testified that only
one of them had a gun. She also disavowed that she ever told her
son—or Det. Verna—that Pinedo was the shooter. She also
testified that she told Det. Verna that Salas was the shooter
when he showed her a photograph of him. Inconsistently,
Marron also denied ever being shown photographs of anyone
between 2015 and 2019.
Garnica and Salas moved for a mistrial on the ground that
the prosecutor had knowingly elicited false testimony. The trial
court denied the motion, finding that the prosecutor had elicited
the in-court information—not as proof of the shooters’ identity—
but rather to show that Marron’s prior identification of Pinedo
was tainted by Marron’s willingness to implicate anyone
presented to her as possibly involved. The court invited the
parties to submit an instruction on this point, but neither Salas
nor Garnica did so.
21
The prosecutor thereafter called Det. Verna as a witness to
testify that Marron had identified Pinedo as the perpetrator and
that she had said Salas was not the shooter.
In his initial closing argument, the prosecutor argued that
Marron’s initial identification of Pinedo happened after her son
“show[ed] [her] a photograph of a guy in a white shirt . . . with a
gun,” that Marron was not “able” “to make an identification” of
the shooter(s) from her vantage point, and that “no identifications
could have been made that night.”
The prosecutor noted that Marron’s in-court identification
of Salas and Garnica was made “[u]nder a very highly suggestive
environment,” and continued:
“I’m not saying . . . Miss Marron is a vindictive
person or she’s a bad person. I think she’s a very
helpful person and she wants to help out and . . . she
will choose anyone who is front of her and say that’s
the guy who did it and that’s what you all saw here
directly when she made those in-court identifications.
She wants to help out but that doesn’t make it right.
There have been no good identifications made in the
[Saticoy Street] murder in terms of the actual
shooters on that night of people who were strangers.”
In his rebuttal argument, the prosecutor again emphasized
that Marron identified Pinedo simply because a “single
photograph” was placed in front of her.
B. Analysis
Due process prohibits a prosecutor seeking a criminal
conviction to “‘present evidence [he or she] knows is false’” and
obligates the prosecutor to ‘“correct any falsity of which it is
aware in the evidence . . . present[ed], even if the false evidence
22
was not intentionally submitted.’” (People v. Morrison (2004) 34
Cal.4th 698, 716, quoting People v. Seaton (2001) 26 Cal.4th 598,
647; see generally, Napue v. Illinois (1959) 360 U.S. 264, 265,
269.) However, due process does not prohibit the introduction of
evidence the prosecutor knows to be false if the evidence is not
presented as if it were true; in other words, due process is not
offended where the prosecutor elicits testimony he or she knows
to be false, tells the jury it is false, and uses that falsity to prove
some other point. (People v. Morales (2003) 112 Cal.App.4th
1176, 1192-1195; People v. Marshall (1996) 13 Cal.4th 799, 829-
830.) This makes sense, as parties are generally allowed to
impeach their own witnesses (Evid. Code, §§ 780 & 785) and a
jury is not deceived by false testimony if it is told the testimony is
false.
The trial court did not err in denying the mistrial motions
in this case. Although the prosecutor knew that Marron’s in-
court identifications of Salas and Garnica were false, he told the
jury as much when he (1) called Det. Verna to contradict
Marron’s disavowal of her earlier identifications, and (2) argued
to the jury that “no identifications could have been made” on the
night of the Saticoy Street shootings and that her in-court
identifications of Salas and Garnica were a product of her
penchant for “choos[ing] anyone who is front of her and say that’s
the guy who did it,” such that Marron’s earlier identification of
Pinedo was equally suspect.
Defendants respond with three arguments.
First, they argue that there is no exception to the general
prohibition on eliciting false testimony because that prohibition,
according to the pertinent case law, “applies even if the false or
misleading testimony goes only to witness credibility.”
23
(Morrison, supra, 34 Cal.4th at p. 717; Napue, supra, 360 U.S. at
269.) The argument misreads this language. What this language
means is that a prosecutor cannot elicit false testimony, while
passing it off as true, in order to make a witness appear more or
less credible. Where, as here, the prosecutor tells the jury that
the false testimony is false, there is no violation of due process.
Second, defendants argue that the prosecutor was not
explicit enough in advising the jury that Marron’s in-court
identification was false because he did not tell the jury something
akin to, “She just committed perjury.” What the prosecutor said
here in his initial closing argument was sufficient because it
made clear that Marron’s in-court testimony was not consistent
with the evidence and was the product of her willingness to
identify anyone, at any time. This view was reinforced by the
prosecutor’s decision to recall Det. Verna to impeach Marron’s
disavowal of her prior identifications of Pineda. (Cf. United
States v. LaPage (9th Cir. 2000) 231 F.3d 488, 490-491
[prosecutor argues witness’s testimony is true in initial closing
argument and waits until rebuttal closing argument to argue
that testimony is false; due process violated].)
Lastly, defendants argue that the trial court did not give an
instruction telling the jury not to consider Marron’s in-court
identification as being true and that, absent such an instruction,
the jury was still free to do so. As a threshold matter, the trial
court invited defendants to submit a limiting instruction and
they evidently declined to do so. There was no error in any event.
No one argued that the in-court identification was accurate and,
in fact, everyone argued that it was inaccurate. On such facts,
there was no need for an instruction and any error in failing to
24
give one was necessarily speculative and hence harmless beyond
a reasonable doubt.6
IV. Review of In Camera Discovery
Salas’s trial counsel made a pretrial motion to discover the
prosecution witnesses’ unredacted personal information. The
prosecutor opposed the request. The trial court conducted an in
camera, ex parte hearing, and ruled that the names of witnesses
would be provided to all defendants’ attorneys, but that the other
contact information and personal identifying information did not
have to be disclosed. Salas requests that we independently
review the sealed reporter’s transcripts of the trial court’s in
camera hearing to determine whether the trial court erred and
violated his due process rights.
The names and addresses of prosecution witnesses are
subject to disclosure under section 1054.1, but section 1054.7
gives the trial court discretion to deny, restrict, or defer such
disclosure for good cause. Good cause includes “threats or
possible danger to the safety of a victim or witness.” (Ibid.) A
showing of good cause may be made in camera, and a “verbatim
record” of the in camera hearing must be made available on
appeal. (Ibid.)
Orders under section 1054.7 are subject to review for abuse
of discretion. (People v. Williams (2013) 58 Cal.4th 197, 263
[good cause based on evidence that witness’s life had been
threatened and detective declared disclosure would compromise
witness’s safety and integrity of investigation]; People v. Panah
6 In light of our conclusion, we have no occasion to address
the People’s argument that defendants forfeited this issue
entirely by not seeking an instruction admonishing the jury.
25
(2005) 35 Cal.4th 395, 458 [good cause based on credible
allegations defendant had conspired to kill witness].)
Having conducted a “careful review” of the in camera
hearing (People v. Webb (1993) 6 Cal.4th 494, 518), we find no
error in the trial court’s determination that redaction of the
contact information and personal identifying of the witnesses was
necessary.
V. Cumulative Error
Because we reject defendants’ individual claims of error, we
necessarily conclude there was no cumulative error. (Accord,
People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative
error where no individual error exists].)
VI. Sentencing Issues
Salas and Garnica argue that the recent enactment of
Assembly Bill No. 333 and Assembly Bill No. 518 require that
portions of their sentences be vacated. Because this issue entails
questions of retroactivity and the application of the law to
undisputed facts, our review is de novo. (In re Marriage of
Fellows (2006) 39 Cal.4th 179, 183 [retroactivity]; Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018 [law to
undisputed facts].)
A. Pertinent facts
1. Salas’s sentence
As to Salas, the trial court imposed a determinate prison
sentence of 15 years, followed by two sentences of life without the
possibility of parole (LWOP), followed by 187 years to life. The
court calculated this sentence as follows:
● For the murder during the Saticoy Street shooting,
the trial court imposed a sentence of LWOP plus 25 years, with
the LWOP sentence based on the special circumstance that Salas
26
“intentionally killed [the victim] while [Salas] was an active
participant in a criminal street gang and the murder was carried
out to further the activities of the criminal street gang” (§ 190.2,
subd. (a)(22)), and with the 25-year enhancement based on the
use of a firearm by a principal in a felony “committed for the
benefit of, at the direction of, or in association with a criminal
street gang” (§§ 12022.53, subds. (d), (e)(1), 186.22, subd. (b)).
● For each of the three attempted murders during the
Saticoy Street shooting, the trial court imposed a base sentence of
15 years to life plus a 25-year enhancement based on the use of a
firearm by a principal in a felony “committed for the benefit of, at
the direction of, or in association with a criminal street gang” (§§
12022.53, subds. (d), (e)(1), 186.22, subd. (b)).
● For dissuading a witness in the course of the Saticoy
Street shooting, the court imposed a sentence of seven years to
life.
● For being a felon in possession of a firearm during
the Saticoy Street shooting, the court imposed a determinate
sentence of two years, but stayed the sentence pursuant to
section 654.
● For the murder during the Vega shooting, the court
imposed a sentence of LWOP plus 25 years, with the LWOP
sentence based on the special circumstance of committing “more
than one offense of murder in the first or second degree” (§ 190.2,
subd. (a)(3)) and the special circumstance that Salas
“intentionally killed the victim while [Salas] was an active
participant in a criminal street gang . . . and the murder was
carried out to further the activities of the criminal street gang” (§
190.2, subd. (a)(22)), and with the 25-year enhancement based on
27
Salas’s “personal” discharge of a firearm causing death (§
12022.53, subd. (d).
● For the conspiracy to commit murder regarding the
Vega shooting, the court imposed a sentence of 25 years to life
but stayed the sentence pursuant to section 654.
● For the kidnapping of Covarrubias, the court imposed
a sentence of 15 years, comprised of a five-year base sentence
plus 10 years based on the use of a firearm by a principal in a
felony “committed for the benefit of, at the direction of, or in
association with a criminal street gang” (§§ 12022.53, subds. (d),
(e)(1), 186.22, subd. (b)).
● For the torture of Covarrubias during the forced
tattooing, the court imposed a life sentence plus 10 years, with
the 10 years based on the use of a firearm by a principal in a
felony “committed for the benefit of, at the direction of, or in
association with a criminal street gang” (§§ 12022.53, subds. (d),
(e)(1), 186.22, subd. (b)).
● For the aggravated mayhem during the forced
tattooing of Covarrubias, the court imposed a sentence of life plus
10 years, but stayed the sentence pursuant to section 654.
b. Garnica’s sentence
As to Garnica, the trial court imposed a sentence of 125
years to life. The court calculated this sentence as follows:
● For the murder during the Saticoy Street shooting,
the trial court imposed a base sentence of 25 years to life plus an
additional 25 years to life based on the use of a firearm by a
principal in a felony “committed for the benefit of, at the direction
of, or in association with a criminal street gang” (§§ 12022.53,
subds. (d), (e)(1), 186.22, subd. (b)).
28
● For each of the three attempted murders during the
Saticoy Street shooting, the trial court imposed a base sentence of
life plus a 25-year enhancement based on the use of a firearm by
a principal in a felony “committed for the benefit of, at the
direction of, or in association with a criminal street gang” (§§
12022.53, subds. (d), (e)(1), 186.22, subd. (b)).
B. Analysis
Effective January 1, 2022, the law affecting Salas’s and
Garnica’s sentences changed. Assembly Bill No. 333 amended
the definition of the term “pattern of criminal gang activity” to,
among other things, now require proof of a benefit to the gang
that is “more than reputational.” (§ 186.22, subds. (e)(1), (g);
compare People v. Albillar (2010) 51 Cal.4th 47, 63 [reputation
injury does constitute a benefit to a gang].) Because the
definition of a “criminal street gang” incorporates the definition
of a “pattern of gang activity,” Assembly Bill No. 333’s
amendment of that definition implicates not only the gang
enhancement set forth in section 186.22, but also the firearm
enhancement under section 12022.53, subdivision (e)(1) and the
special circumstance under section 190.2, subdivision (a)(22) that
require proof of the involvement of a “criminal street gang.” The
People concede as much.
Because Assembly Bill No. 333, at a minimum, now
requires the People to prove elements (such as a benefit to the
gang that is “more than reputational”) that were not previously
required, it is an ameliorative statute that applies retroactively
to cases—like Salas’s and Garnica’s—that are not yet final on
appeal. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 300 [so
holding]; see generally, In re Estrada (1965) 63 Cal.2d 740, 748-
29
750.) Again, the People concede as much (at least as to these
definitional changes).
Because the People did not ask the jury to find at least
some of the elements that Assembly Bill No. 333 requires (and
that the prior law did not require), the enhancements affected by
that new law must now be vacated. (Accord, People v.
Sengpadychith (2001) 26 Cal.4th 316, 325-326.) Here is a list of
the enhancements that must now be vacated:
● The special circumstance finding accompanying
Salas’s murder conviction arising out of the Saticoy Street
shooting, because that finding rests solely on the definition of a
“criminal street gang” (under section 190.2, subd. (a)(22)).
● The firearm enhancements based on the use of a
firearm by a principal in a felony “committed for the benefit of, at
the direction of, or in association with a criminal street gang” (§§
12022.53, subds. (d), (e)(1), 186.22, subd. (b))—which were
imposed as part of the sentences for (1) Salas’s and Garnica’s
attempted murder convictions arising out of the Saticoy Street
shooting, (2) Garnica’s murder conviction arising out of the
Saticoy Street shooting, (3) Salas’s conspiracy to commit the Vega
murder (although it was stayed), and (3) Salas’s convictions for
torture, aggravated mayhem and kidnapping arising out of the
forced tattooing of Covarrubias (although the enhancement for
aggravated mayhem was stayed).7
The LWOP plus 25 years sentence for Salas’s murder
conviction during the Vega shooting is unaffected by Assembly
Bill No. 333 because there is an independent basis for the
imposition of the special circumstance (i.e. due to multiple
7 Although several gang enhancements were charged under
section 186.22, the trial court struck all of them.
30
murders) and because the firearm enhancement was based on
Salas’s personal discharge of a firearm
Because the elements newly required by Assembly Bill No.
333 were “never tried” to the jury, the People should be given the
opportunity to decide whether to retry the affected enhancements
to a jury. (People v. Figueroa (1993) 20 Cal.App.4th 65, 72, fn. 2.)
We remand to give the People the opportunity to make that
decision.
Salas and Garnica also urge us to remand to permit the
trial court to exercise its discretion—newly conferred by
Assembly Bill No. 518—to decide which counts to stay under
section 654. The People urge us to specify to which counts that
discretion may apply. We decline to enter that fray. By virtue of
our ruling regarding Assembly Bill No. 333’s effect on defendants’
sentences, the trial court will have to resentence defendants.
That will be a full resentencing. (E.g., People v. Walker (2021) 67
Cal.App.5th 198, 201, 204.) At that time, the trial court can
consider the full range of options under the law as it exists on the
date of resentencing, which will include the changes wrought by
Assembly Bill No. 518. We decline to intervene when the trial
court has yet to act.
31
DISPOSITION
The judgments are vacated. The convictions are affirmed,
but the sentences are vacated and remanded for further
proceedings to enable the People to elect whether to retry the
enhancements and special circumstance affected by Assembly
Bill No. 333.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
32