People v. Melara CA2/1 ( 2022 )

Filed 12/1/22 P. v. Melara CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B289019
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA427561)
v.
OSKAR ANTHONY MELARA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David V. Herriford, Judge. Affirmed in part,
reversed in part, and remanded with instructions.
Tanya Dellaca, 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, Zee Rodriguez and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
In 2017, a jury found defendant Oskar A. Melara guilty of
second degree murder and found true the allegations that the
murder was committed for the benefit of a criminal street gang
under Penal Code1 section 186.22, subdivision (b)(4) and that a
principal personally and intentionally discharged a firearm,
causing great bodily injury and death within the meaning of
section 12022.53, subdivision (d). The trial court sentenced
Melara to 15 years to life for the second degree murder and 25
years to life for the section 12022.53, subdivision (d)
enhancement. The court also imposed certain fines, fees, and
assessments.
In 2019, Melara raised several issues on appeal. He argued
the trial court erred in admitting certain gang expert testimony
and denying his motion for new trial based on alleged jury
misconduct and ineffective trial counsel. He also argued his
counsel was ineffective in failing to provide a mitigation report to
the trial court before sentencing and that the trial court
misunderstood the extent of its discretion in imposing a section
12022.53, subdivision (d) firearm enhancement. Finally, Melara
challenged the imposition of fines, fees, and assessments without
holding an ability to pay hearing.
In February 2020, we affirmed the judgment on appeal and
declined to remand the matter to allow the trial court to impose a
lesser, uncharged firearm enhancement, concluding the trial
court did not have discretion under the statute to do so. Melara
petitioned for review in the Supreme Court.
While that appeal was pending, the Supreme Court decided
People v. Tirado (2022) 12 Cal.5th 688, 700 (Tirado), holding that
1 Undesignated statutory citations are to the Penal Code.
2
a trial court had discretion to impose a lesser, uncharged firearm
enhancement under section 12022.53. The Supreme Court
granted Melara’s petition for review and transferred the case to
this court with directions to vacate our prior opinion and
reconsider the enhancement issue in light of Tirado. (See Cal.
Rules of Court, rule 8.528(d).) We vacated our prior opinion and
the parties submitted supplemental briefs relating to Tirado.
We also granted Melara’s request for supplemental briefing
to address whether Melara is entitled to relief under Assembly
Bill Nos. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695) and
333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699), effective
January 1, 2022, and People v. Valencia (2021) 11 Cal.5th 818. In
his supplemental briefs, Melara makes three arguments. First,
he contends that under section 186.22, amended by Assembly Bill
No. 333 (Assembly Bill 333), the matter should be remanded for
retrial of the gang enhancement allegation and reconsideration of
the sentence imposed for the firearm allegation predicated on the
gang enhancement. Second, Melara contends that under section
1170, subdivision (b)(6), enacted under Assembly Bill No. 124
(Assembly Bill 124), the matter must be remanded for the trial
court to consider whether to impose the lower term sentence for
the gang enhancement. Third, Melara argues that pursuant to
section 1109, enacted under Assembly Bill 333 and which
provides for bifurcation of the gang allegation from the
underlying offense, his second degree murder conviction must be
vacated and the charge retried.
We reissue the portions of our prior opinion rejecting
Melara’s claims of error regarding the trial court’s admission of
gang expert testimony, denial of a new trial for alleged jury
misconduct and ineffective assistance of counsel, lack of a
3
“mitigation report” and the imposition of fines, fees, and
assessments without a hearing.
As for Melara’s arguments in his supplemental briefs, there
is no dispute that sections 186.22, 1170, subdivision (b)(6) and
12022.53 provide ameliorative relief and apply retroactively to
nonfinal judgments. However, the parties (and appellate courts)
disagree whether section 1109 applies retroactively. Following
the guidance of People v. Tran (2022) 13 Cal.5th 1169 (Tran), we
conclude no prejudice arose from trying Melara’s underlying
offense and gang enhancement together, and we need not decide
the issue of section 1109’s retroactivity.
Accordingly, we remand the matter to the trial court for
retrial of the gang enhancement allegation under section 186.22
and, if found true, reconsideration of the trial court’s sentence of
the gang-firearm allegation pursuant to the principles articulated
in section 12022.53, subdivision (h) as interpreted in Tirado,
supra, 12 Cal.5th 688, as well as the principles articulated in
section 1170, subdivision (b)(6). We otherwise affirm the
judgment.
PROCEDURAL BACKGROUND
The People charged Melara with the murder of Christopher
Hernandez, a rival gang member. They further alleged the
murder was committed for the benefit of a gang within the
meaning of section 186.22, subdivision (b)(4), and that a principal
personally used and intentionally discharged a firearm within
the meaning of section 12022.53, subdivisions (b), (c), (d), and
(e)(1). The trial court later dismissed the section 12022.53,
subdivisions (b) and (c) allegations on the People’s motion.
Jurors convicted Melara of second degree murder and found
the crime was committed for the benefit of a gang under section
4
186.22, subdivision (b) and further, that a principal intentionally
discharged a firearm within the meaning of section 12022.53,
subdivision (d).
The trial court denied Melara’s motion for a new trial based
on alleged juror misconduct. It sentenced Melara to 15 years to
life for the second degree murder, and 25 years to life for the
section 12022.53, subdivision (d) enhancement, applicable
pursuant to section 12022.53, subdivision (e)(1).2 The court
denied Melara’s request to strike the enhancement in the interest
of justice.
In addition, the court ordered that Melara pay a $40 court
operations assessment (§ 1465.8, subd. (a)(1)) and a $30 criminal
conviction assessment (Gov. Code, § 70373). The court also
ordered that Melara pay a $300 restitution fine pursuant to
section 1202.4, subdivision (b) and a separate $300 parole
revocation fine, which it suspended unless parole is revoked
(§ 1202.45). Finally, the court ordered Melara pay victim
restitution in the amount of $12,420.50. Melara indicated there
was “[n]o objection” to the $12,420.50 victim restitution. The
record reflects he did not request or receive an ability to pay
hearing prior to the imposition of the above-referenced restitution
fine and assessments.
2 Section 12022.53, subdivision (e)(1) states: “The
enhancements provided in this section shall apply to any person
who is a principal in the commission of an offense if both of the
following are pled and proved: [¶] (A) The person violated
subdivision (b) of [s]ection 186.22 [referring to felonies committed
for the benefit of a criminal street gang]. [¶] (B) Any principal in
the offense committed any act specified in subdivision (b), (c), or
(d).”
5
Melara filed a timely appeal.
FACTUAL BACKGROUND
On June 5, 2014, Hernandez, a Rebels 13 gang member,
and his parents attended his sister’s middle school graduation.
Just before 11:00 a.m., the family was walking to a bus stop when
Gustavo Luna, a La Mirada Locos gang member, shot Hernandez
multiple times. Hernandez died of multiple gunshot wounds.
Shortly before the shooting, Hernandez chased Melara, who
was riding a bicycle. Melara pushed Hernandez. During the
encounter, Melara and Hernandez made signs symbolizing their
respective gangs, and Hernandez removed his shirt revealing a
Rebels 13 gang tattoo. Hernandez asked Melara to fight one on
one.
A few minutes before Luna shot Hernandez, Melara called
Luna.3 Evidence from cell phone records indicated that Melara
called Luna twice (at 10:51 a.m. and at 10:55 a.m.); the records
did not reveal whether the two spoke or the content of any
conversation.
Immediately before Luna shot Hernandez, Luna drove to
Melara and stopped to talk with him. Luna then drove up to
Hernandez, who was standing on the sidewalk, shot him, and
drove away. Cell phone records suggest that Melara entered
Luna’s car shortly after the shooting because Luna’s phone and
the phone Melara was using traveled on the same path at the
same speed to Oceanside, California.
3 Melara used his girlfriend’s phone to make these calls.
6
A. Surveillance Video
Video surveillance of the crime scene showed Hernandez
and his family walking near a Del Taco restaurant on Sunset
Boulevard. It further showed Hernandez chasing Melara, who
was riding a bicycle. Hernandez then returned to his family, and
they continued walking together.
Surveillance video depicts the following sequence of events:
Melara is holding a phone to his head while riding his bicycle.
Shortly afterwards, a black car enters the Del Taco parking lot;
Melara approaches the black car; and points towards Hernandez
twice. The black car pulls up to Hernandez and his family, and
the driver shoots Hernandez. It appears Melara is present when
the driver shoots Hernandez, who falls backwards to the ground.
B. Gang Evidence
Officer Mark Austin testified for the prosecution. Officer
Austin opined that Luna was a “low-level” member of the La
Mirada Locos gang. Austin opined Melara was a “mid-level”
member of the La Mirada Locos gang.
Officer Austin testified that a person is qualified to join a
gang when that person “put[s] in work” or commits crimes “that
benefit[ ] the gang.” Gangs, including the La Mirada Locos gang,
claim territory and are willing to fight to protect their territory.
Violence is often the consequence of entering a rival gang’s
territory. A gang member who disrespects a rival’s territory may
be killed. Officer Austin observed cases in which a gang member
would “set up a killing” to protect gang territory. Officer Austin
recalled five to seven such cases. La Mirada Locos gang members
use hand signs to threaten rival gang members. The location
where Luna shot Hernandez is in an area claimed by the La
Mirada Locos gang.
7
The two gangs were rivals. Photographs on Facebook
showed Melara using gang signs. He also wore attire commonly
associated with the La Mirada Locos gang. Photos also showed
Melara with other La Mirada Locos gang members. Police
identified Melara as a La Mirada Locos gang member on field
identification cards, and Melara admitted to officers that he had
been arrested for gang-related crimes. The prior offense involved
a vandalism charge.
The La Mirada Locos gang shared a border with the Rebels
13 gang. Officer Austin noted that Hernandez had a large tattoo
stating “Rebels 13” on his chest. Officer Austin testified that
Hernandez had to “earn” that tattoo by committing crimes or
raising money for his gang. Displaying a tattoo to a rival gang
member is an example of disrespecting the rival. According to
Officer Austin, a Rebels 13 gang member who enters another
gang’s territory is demonstrating “boldness.”
The prosecutor asked Officer Austin the following
hypothetical question: “A gang member in Rebels 13 and his
family are walking down a busy public street within a territory
claimed by the La Mirada Locos street gang at approximately
10:45 to 10:50 in the morning. As the Rebels 13 gang member is
walking, he’s pushed and taunted by a La Mirada Locos gang
member who is riding a bicycle and an argument starts between
the Rebels 13 and La Mirada Locos gang members. The Rebels
13 gang member takes off his shirt . . . and chases the La Mirada
Locos gang member who remains on his bicycle. After being
chased by the Rebels 13 gang member, the La Mirada Locos gang
member on the bicycle makes a phone call. A few minutes later a
La Mirada Locos gang member or associate arrives and stops
near the victim. The La Mirada Locos gang member is the driver
8
and sole occupant in this vehicle. There’s a brief non-verbal
communication between the La Mirada Locos gang member on
the bicycle towards the driver and the Rebels 13 gang member.
While the Rebel[s] 13 gang member is distracted by and looking
at the La Mirada Locos gang member on the bicycle, the La
Mirada Locos gang member in the vehicle drives up next to the
Rebel[s] 13 gang member and immediately and without warning
or any interaction shoots the Rebel[s] 13 gang member several
times. The La Mirada Locos gang member on the bicycle watches
the shooting from a short distance away and then both the La
Mirada Locos gang members together flee the area.”
Officer Austin was asked how the crime benefits the La
Mirada Locos gang, how it benefits the shooter, and how it
benefits the gang member on the bike. With respect to the
hypothetical gang member on the bike, Officer Austin testified:
“He is seen as someone that [sic] has had a confrontation and he’s
not going to back down. And he obviously did [not] have the
means to carry out the violence at the time, but he took
immediate action and solved what he saw as the problem. So
even though he may not be the person shooting the gun, he’s still
attaining that level of respect from his fellow gang members and
moving up [in the gang hierarchy]. And I think that is proof, just
based on this hypothetical, the fact that he didn’t call someone to
get in a fight with him. If that had happened, he wouldn’t have
ridden away and watched. He would have gotten involved in the
fight. If he wanted to fight someone, he would have gotten out.
The guy would have gotten out of the car and they both would
have [fought the rival gang member]. Now they have two-on-one
odds and have been involved in a physical altercation.” The trial
9
court overruled defense counsel’s objection of “[s]peculation”
made at the conclusion of the above summarized testimony.
Officer Austin continued his testimony as follows: “So my
opinion, based on those facts, is that he [the hypothetical gang
member on a bicycle] knew exactly what was about to happen
and it happened. It was carried out. What he wanted was
carried out. Now they both [the hypothetical shooter and the
hypothetical bicycle rider] are rising in their own personal ranks
within the gang.” Defense counsel did not object to this
testimony. During cross-examination, defense counsel asked
whether Officer Austin assumed that the hypothetical shooter
and bicycle rider had a conversation. Officer Austin eventually
testified that he did make this assumption.
Martin Flores testified as a defense gang expert. He opined
that Melara was not a gang member. Flores testified that he
could not determine whether the hypothetical shooter and
hypothetical bicycle rider acted for the benefit of the gang
because “[i]t’s not clear what initiated that conflict. If the conflict
was a gang conflict. Whether the conflict was personal. Was it a
dispute. Which one started what.”
DISCUSSION
A. Melara Demonstrates No Error in Admission of the
Gang Expert’s Answer to a Hypothetical Question
Melara argues the prosecution’s gang expert improperly
testified as to his knowledge, intent, and guilt. According to
Melara, Officer Austin “offered his opinion and conclusions about
the knowledge and intent elements of murder and the aiding and
abetting theory of liability for murder, and how the issue of guilt
should be decided.” Melara further contends the testimony not
only concerned the ultimate issue in the case, but also lessened
10
the prosecution’s burden of proof. Neither the record nor
controlling authority supports Melara’s argument.
As noted above, Officer Austin testified: “So my opinion,
based on those facts, is that he [the hypothetical gang member on
a bicycle] knew exactly what was about to happen and it
happened. It was carried out. What he wanted was carried out.
Now they both [the hypothetical shooter and the hypothetical
bicycle rider] are rising in their own personal ranks within the
gang.” Contrary to Melara’s argument, Officer Austin was not
asked, and offered no opinion about Melara’s knowledge, intent,
or guilt. Instead, the evidence Melara challenges involved the
prosecutor asking Officer Austin whether a hypothetical gang
member would benefit from certain hypothetical conduct. Under
controlling case law, the distinction between a hypothetical gang
member and the Melara gang member is critical.
People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew)
provides some support for Melara’s position. In Killebrew, the
gang expert testified that “when one gang member in a car
possesses a gun, every other gang member in the car knows of the
gun and will constructively possess the gun.” (Id. at p. 652.)
Although the record in that case was unclear as to whether the
expert was responding to a hypothetical question, the appellate
court held that the expert testimony was improper because it
concerned an “ultimate issue,” that is, “the subjective knowledge
and intent of each occupant in each vehicle.” (Id. at p. 658.)
In People v. Vang (2011) 52 Cal.4th 1038 (Vang), our high
court recognized Killebrew has “limited significance” because
Killebrew did not distinguish an expert’s opinion about the
knowledge of hypothetical persons from the knowledge of “specific
persons.” (Vang, at p. 1047.) Vang reasoned that experts are
11
permitted to opine on ultimate issues and in doing so, do not
usurp the jury’s role as fact-finder. “[E]xpert testimony is
permitted even if it embraces the ultimate issue to be decided.
(Evid. Code, § 805.) The jury still plays a critical role in two
respects. First, it must decide whether to credit the expert’s
opinion at all. Second, it must determine whether the facts
stated in the hypothetical questions are the actual facts, and the
significance of any difference between the actual facts and the
facts stated in the questions.” (Vang, at pp. 1049-1050.)
Similarly, in People v. Gonzalez (2006) 38 Cal.4th 932, our
high court concluded there was no error in admitting a gang
expert’s opinion on whether a gang member would feel
intimidated if he testified against a fellow gang member. Holding
that Killebrew “has no relevance here,” Gonzalez observed,
“[A]nswer[ing] hypothetical questions based on other evidence
the prosecution presented . . . is a proper way of presenting
expert testimony.” (Gonzalez, at p. 946, italics added.) The
Gonzalez court further reasoned, “It is true that [the expert’s]
opinion, if found credible, might, together with other evidence,
lead the jury to find the witnesses were being intimidated, which
in turn might cause the jury to credit their original statements
rather than their later repudiations of those statements. But this
circumstance makes the testimony probative, not inadmissible.”
(Id. at p. 947.)
Vang added: “To the extent Killebrew . . . purported to
condemn the use of hypothetical questions, it overlooked the
critical difference between an expert’s expressing an opinion in
response to a hypothetical question and the expert’s expressing
an opinion about the defendants themselves.” (Vang, supra, 52
12
Cal.4th at p. 1049.) Melara also fails to recognize this analytic
distinction.
As previously noted, Officer Austin did not opine on
Melara’s knowledge. Instead, he responded to a hypothetical
based on facts in evidence on whether a hypothetical gang
member’s conduct would have benefited the gang. Simply put,
Melara’s argument simply ignores the difference between himself
and the hypothetical gang member discussed in Officer Austin’s
testimony.4
B. There Was No Error in the Denial of Melara’s Motion
for New Trial Based on Alleged Jury Misconduct
After trial, Melara moved for a new trial based on alleged
jury misconduct. The trial court denied his motion. Melara
argues the trial court erred in denying his motion for new trial or
setting the matter for an evidentiary hearing. We first provide
additional background and then discuss Melara’s argument.
1. Additional Background
After the verdict, defense counsel moved for a new trial on
the ground of juror misconduct. Melara relied on Juror No. 44’s
posttrial affidavit in which she stated:
4 The Attorney General argues that Melara forfeited his
challenge to admission of officer’s testimony based on Killebrew
by failing to raise that specific objection below. Melara counters
that if we find forfeiture, then defense trial counsel was
ineffective in failing to object on the basis that admitting the
testimony invaded the province of the jury, as opposed to making
merely a speculation objection. Given our ruling on the merits,
we do not address these issues.
13
● “During the deliberations process, I observed that the
jurors made an assumption of guilt based on the fact that there
was a gang allegation in the case.”
● “Based on how the jurors spoke, I believed that many
jurors already had their mind[s] made up as to guilt because of
the gang element, even before deliberations began.”
● “The jurors used the ‘but for’ phrase as a standard in
determining guilt instead of applying the reasonable doubt
standard.”
● “One juror . . . used her personal experiences growing up
with gangs during deliberations.”
● “One juror . . . was a bully and was the worst. He created
hostility in the jury room. He discussed his personal experiences
with gangs also.” The same juror “told the jury to pray together
for the defendant and his family.”
● “I felt pressured to vote guilty because” of “bullying” by
other jurors. “I voted guilty because I just wanted to get out of
there.”
Relying on Evidence Code section 1150, the trial court
found Juror No. 44’s affidavit inadmissible and denied Melara’s
motion for a new trial.5
Evidence Code section 1150 provides in pertinent part:
“Upon an inquiry as to the validity of a verdict, any otherwise
admissible evidence may be received as to statements made, or
conduct, conditions, or events occurring, either within or without
the jury room, of such a character as is likely to have influenced
5 With one exception, the trial court provided defense
counsel the jurors’ identifying information. Other than Juror
No. 44, no juror spoke to defense counsel’s investigator.
14
the verdict improperly. No evidence is admissible to show the
effect of such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the verdict
or concerning the mental processes by which it was determined.”
“ ‘When a party seeks a new trial based upon jury
misconduct, a court must undertake a three-step inquiry. The
court must first determine whether the affidavits supporting the
motion are admissible under Evidence Code section 1150,
subdivision (a).’ [Citation.] ‘If the evidence is admissible, the
court must then consider whether the facts establish misconduct.
[Citation.] Finally, assuming misconduct, the court must
determine whether the misconduct was prejudicial.’ ” (People v.
Engstrom (2011) 201 Cal.App.4th 174, 182.) We independently
review the trial court’s denial of Melara’s new trial motion.
(People v. Ault (2004) 33 Cal.4th 1250, 1261-1262.)
2. Juror No. 44’s Affidavit Was Not Admissible
Our high court has held: “[E]vidence that the internal
thought processes of one or more jurors were biased is not
admissible to impeach a verdict. The jury’s impartiality may be
challenged by evidence of ‘statements made, or conduct,
conditions, or events occurring, either within or without the jury
room, of such a character as is likely to have influenced the
verdict improperly,’ but ‘[n]o evidence is admissible to show the
[actual] effect of such statement, conduct, condition, or event
upon a juror . . . or concerning the mental processes by which [the
verdict] was determined.” (In re Hamilton (1999) 20 Cal.4th 273,
294, italics omitted.)
“This rule ‘serves a number of important policy goals: It
excludes unreliable proof of jurors’ thought processes and thereby
preserves the stability of verdicts. It deters the harassment of
15
jurors by losing counsel eager to discover defects in the jurors’
attentive and deliberative mental processes. It reduces the risk
of postverdict jury tampering. Finally, it assures the privacy of
jury deliberations by foreclosing intrusive inquiry into the
sanctity of jurors’ thought processes.’ ” (In re Hamilton, supra, 20
Cal.4th at p. 294, fn. 17.)
Melara admits that Juror No. 44’s subjective beliefs were
inadmissible under Evidence Code section 1150, but argues that
the following three statements fall outside of Evidence Code
section 1150’s purview: (1) “ ‘jurors made an assumption of guilt
based on the gang allegation’ ”; (2) “ ‘based on how the jurors
spoke[,] . . . many jurors already had their mind[s] made up’ ”;
and (3) “ ‘jurors were using a “but for” standard instead of the
reasonable doubt standard of guilt.’ ” (Italics omitted.) Melara’s
argument is unpersuasive.
First, the statement that jurors assumed Melara was guilty
based on the gang allegation falls squarely within the ambit of
Evidence Code section 1150. In essence, Juror No. 44 asserted
her belief that other jurors subjectively believed that Melara was
guilty because the crime allegedly was committed for purposes of
Melara’s gang. As our sister court has explained: “The subjective
quality of one juror’s reasoning is not purged by the fact that
another juror heard and remembers the verbalization of that
reasoning. To hold otherwise would destroy the rule . . . which
clearly prohibits the upsetting of a jury verdict by assailing these
subjective mental processes. It would also inhibit and restrict the
free exchange of ideas during the jury’s deliberations.” (People v.
Elkins (1981) 123 Cal.App.3d 632, 638.)
Second, Juror No. 44’s statement that many jurors had
made up their minds similarly reflects Juror No. 44’s view of the
16
other jurors’ mental states during the deliberative process. Juror
No. 44’s view of other jurors’ subjective mental states is
inadmissible under Evidence Code section 1150. “The reality
that a juror may hold an opinion at the outset of deliberations is
. . . reflective of human nature. . . . We cannot reasonably expect
a juror to enter deliberations as a tabula rasa, only allowed to
form ideas as conversations continue. What we can, and do,
require is that each juror maintain an open mind, consider all the
evidence, and subject any preliminary opinion to rational and
collegial scrutiny before coming to a final determination.” (People
v. Allen and Johnson (2011) 53 Cal.4th 60, 75.)
Juror No. 44’s claim that the jurors did not follow the
court’s instruction was also inadmissible under Evidence Code
section 1150. As Bell v. Bayerische Motoren Werke
Aktiengesellschaft (2010) 181 Cal.App.4th 1108 explained: Under
Evidence Code section 1150, “juror declarations are inadmissible
to the extent that they purport to describe the jurors’
understanding of the instructions or how they arrived at their
verdict.” (Bell, at p. 1125.) Further absent “[a]n express
agreement not to follow the instructions ‘or extensive discussion
evidencing an implied agreement to that effect’ ” a juror’s
understanding of how other jurors applied the trial court’s
instructions is inadmissible under Evidence Code section 1150.6
6 “It is axiomatic that cases are not authority for
propositions that are not considered.” (California Building
Industry Assn. v. State Water Resources Control Bd. (2018) 4
Cal.5th 1032, 1043.) Ignoring this well rooted principle, Melara
relies on several cases that do not consider the application of
Evidence Code section 1150 and therefore do not support his
argument that Juror No. 44’s affidavit was admissible under
Evidence Code section 1150.
17
For example, in People v. Weatherton (2014) 59 Cal.4th 589,
the defendant argued that a juror’s misconduct during the guilt
phase of a trial required reversal. Specifically, the juror
discussed punishment and judged the case prior to deliberations.
(Id. at p. 593.) The trial court questioned jurors at a hearing and
several jurors agreed that they had discussed the case prior to
deliberations. (Id. at p. 597.) The high court accepted the
defendant’s argument that a juror “committed prejudicial
misconduct, and reversal is required.” (Id. at p. 598.) The high
court did not apply Evidence Code section 1150 or consider
whether evidence was admissible under that section. Neither
party raised the issue of Evidence Code section 1150.
(Weatherton, at p. 595, fn. 5.) Therefore, Melara cannot rely on
Weatherton to argue that Juror No. 44’s affidavit was admissible
under Evidence Code section 1150.
For the same reasons People v. Leonard (2007) 40 Cal.4th
1370 does not assist Melara. In Leonard, the high court
concluded that the jury committed misconduct “by violating the
trial court’s instruction not to discuss Melara’s failure to testify.”
(Id. at p. 1425.) The high court considered whether the
defendant was prejudiced by the juror misconduct. The high
court did not consider whether evidence of misconduct was
admissible under Evidence Code section 1150. Leonard therefore
does not support the conclusion that in this case Juror No. 44’s
affidavit was admissible under Evidence Code section 1150.
A final example of a case Melara cites that is irrelevant to
the Evidence Code section 1150 analysis is People v. Lomax
(2010) 49 Cal.4th 530. In Lomax, our Supreme Court explained
that “ ‘[a] sitting juror’s actual bias, which would have supported
a challenge for cause, renders him “unable to perform his duty”
and thus subject to discharge and substitution . . . .’ ” (Id. at
p. 589.) For example, a juror’s view on capital punishment may
disqualify him or her from a jury required to consider the death
penalty. (Ibid.) The high court held that the trial court’s
discharge of a juror based on false statements in the jury
18
(Bell, at pp. 1127-1128.) To recap, Melara identifies no
admissible evidence of jury misconduct. Without showing
admissible evidence of misconduct, he cannot show that the court
erred in denying his motion for a new trial based on jury
misconduct.7
C. Melara’s Claim of Ineffective Assistance of Counsel
in Not Uncovering Juror No. 18’s Purported
Concealed Bias Fails Because the Record
Demonstrates No Concealed Bias
Melara argues his trial counsel was ineffective for failing to
recognize that “Juror No. 18[ ] conceal[ed] . . . his gang experience
when specifically asked during voir dire.” (Bold and
capitalization omitted.)
A trial court may consider evidence that a juror concealed
bias during voir dire as evidence of juror misconduct. (In re
Hamilton, supra, 20 Cal.4th at p. 294.) Melara argues his
counsel rendered ineffective assistance of counsel by failing to
recognize that Juror No. 18 concealed his “personal experience”
with gangs “despite being asked.” There is no support for
Melara’s statement that Juror No. 18 was asked about his
questionnaire and refusal to deliberate were supported by the
evidence. (Id. at p. 590.) The high court did not consider the
applicability of Evidence Code section 1150. Lomax therefore
does not assist Melara.
7 Melara also states that the trial court should have held
an evidentiary hearing. Given the absence of any admissible
evidence, there was no basis for a hearing on jury misconduct.
(People v. Avila (2006) 38 Cal.4th 491, 604 [posttrial evidentiary
hearing on issue of jury misconduct necessary only if disputed
issue of fact].)
19
personal experience with gangs. The premise of Melara’s
argument thus lacks foundation.
During voir dire, the trial court asked prospective jurors:
“One of the allegations is that this offense was committed for the
benefit of a street gang. There may be evidence that people
affiliated with the case, whether Mr. Melara, witnesses, decedent
in this case, may have affiliation with gangs. Do any of you know
any gang members or are associated with any?” Juror No. 18 did
not answer the trial court’s inquiry.
The trial court also asked: “[A]re any of you victims of any
kind of gang-related crime whether theft or violence or anything
of that nature?” “Have any of you ever seen any gang activity?
You’ve seen things on the street or at work or somewhere that
you thought was indicia of a gang?” “Are any of you familiar with
a gang by the name of La Mirada Locos, LML?” “Are any of [you]
familiar with the gang Rebels 13?” “Do any of you have any
specific training or experience in the subject of street gangs or
any psychology or any of the things of those types of subjects or
the academic side of that?” “Will all of you be able to evaluate the
evidence fairly and not simply disregard things because gang
evidence is involved?” “Can you be fair to him? Or are you going
to say, ‘He’s affiliated with a gang and I’m done with him.’ ”
Juror No. 18 did not respond to these inquiries.
Defense counsel also asked prospective jurors about issues
related to gangs. Defense counsel asked, “Do you think that if
you’re in a gang and/or in anyway associated with a gang that
you should automatically be guilty because of association?”
Defense counsel did not ask additional questions.
Juror No. 18 responded, “Guilty of what, I would say.”
Defense counsel responded, “Of anything. Of anything that
20
another gang member does.” Juror No. 18 responded, “Not just
because of association. But if you’re related to it or you know
about it, you could have stopped it.” Defense counsel did not ask
any additional questions.
For the first time on appeal, Melara argues Juror No. 18
failed to disclose during voir dire that he had “personal
experience” with gangs. Melara argues his counsel rendered
ineffective assistance in failing to discover the purported
discrepancy between Juror No. 18 statements during voir dire
and Juror No. 44 description of Juror No. 18 as having “personal
experiences” with gangs. In her posttrial affidavit, Juror No. 44
reported that Juror No. 18 “discussed his personal experiences
with gangs.” Juror No. 44 provided no further elaboration as to
the nature of Juror No. 18’s alleged “personal experiences.”
The principal problem with Melara’s argument is that he
identifies no question posed during voir dire that mandated Juror
No. 18 to reveal his purported “personal experience” with gangs.
Juror No. 44 did not aver that Juror No. 18 knew gang members,
was associated with gang members, was the victim of a gang
violence, or observed gang activity or other indicia of a gang.
Juror No. 44’s vague statement that Juror No. 18 had “personal
experience” is not directly responsive to any question posed
during voir dire.
In sum, the record does not support Melara’s argument
that Juror No. 18 concealed a bias during voir dire. His
argument that his trial counsel was ineffective is premised on
just such a showing. As the Attorney General argues, “There was
no claim to raise, so defense counsel could not be ineffective for
failing to raise it.”
21
D. Melara’s Claim that His Trial Counsel Rendered
Ineffective Assistance in Failing to Provide a
Mitigation Report to the Trial Court Before
Sentencing Lacks Merit
Melara’s trial counsel provided a mitigation report attached
to a brief for Melara’s “youth offender parole hearing.” The
record does not show exactly when the trial court received the
report. On appeal, Melara argues his counsel rendered
ineffective assistance in failing to present the report before the
trial court exercised its sentencing discretion. For purposes of
this appeal, we assume that the trial court did not receive the
report before it sentenced Melara. We first provide additional
background and then explain why Melara’s argument lacks
merit.
1. Background
Melara’s trial counsel filed a sentencing memorandum. In
it she argued he had a minimal criminal record, and had learning
disabilities. She noted he was only 22 years old when he
committed the crime. Counsel recounted: Melara “was born to a
teenage mother, who did not have much [sic] resources to raise
him.” “Mr. Melara’s biological father was abusive towards his
mother and was an absent parent for most of his life.” “Mr.
Melara’s childhood was unstable as he lived with his mother, his
grandmother, and moved frequently.”
Defense counsel also filed a brief and an exhibit relevant to
Melara’s “youth offender parole hearing.” The exhibit was
entitled “Final Mitigation Report” and was prepared by Jessica
Pfeifer, a “Mitigation Specialist.” The report details how
Melara’s grandmother entered the United States from Mexico,
his father’s abuse of his mother, and his grandmother’s
22
undertaking caretaking responsibilities for Melara. Pfeifer
observed Melara moved frequently, and he did not complete high
school, having left his senior year. She reported no mental health
symptoms, but noted Melara sometimes disappeared from his
home. Melara reported witnessing violent incidents, including
the shooting of one of his cousins. Melara reported that he used
alcohol and marijuana. He worked at several part-time jobs.
Pfiefer identified the following mitigating circumstances:
(1) “The defendant’s mother was a teenager and overwhelmed
parent”; (2) “[t]he defendant’s father was an absent parent”;
(3) “[t]he defendant’s childhood was marked by instability”;
(4) “[t]he defendant has significant cognitive issues and was
identified as learning disabled.” (Italics and underlining
omitted.) Facts supporting each factor were described in the
mitigation report.
At sentencing, the trial court stated, “The court has read
and considered the probation report and has also read and
considered the sentence memorandum filed by the People on
July 11th as well as [the] sentencing memorandum filed by the
defense on March 19th.” Later, the court indicated it considered
a letter on behalf of Melara by Hugo Brent. That letter is not in
the appellate record.
At the sentencing hearing, Melara’s counsel argued there
were mitigating factors. She emphasized Melara’s age at the
time of the crime, his lack of an extensive criminal history, his
courteous conduct, and the fact that his mother was young at the
time Melara was born. Counsel argued Melara’s mother “was a
teenage mother when Mr. Melara was born. She, herself, did not
have to raise him. She had to finish her schooling and also work.
So he spent time with his mother and grandmother. He
23
witnessed physical abuse from his biological father toward his
mother and then his father became an[ ] absent figure for most of
his life. His family always struggled financially and they moved
around a lot living with either his mother or his grandmother or
other family members.”
Counsel also pointed out Melara suffered from “learning
disabilities.” Counsel emphasized that Melara was not the
shooter. Based on all of these factors, counsel requested that the
court strike the gun enhancement.
Prior to imposing its sentence, the trial court identified
factors in mitigation and aggravation. The court noted that
Melara had an insignificant criminal history. “With regard to
exercise of discretion [in imposing or striking the section
12022.53 enhancement], the court does not feel this would be the
appropriate case for striking the gang enhancement given the
brazenness and callousness of the offense. As the People
indicate, this happened in broad daylight and luckily no other
people were injured . . . .” The court denied Melara’s request the
court strike the firearm enhancement.
After imposing sentence and referring the matter to the
probation department, the trial court noted that Melara had
submitted a brief and the above-described mitigation report.
2. Analysis
To demonstrate ineffective assistance of counsel, a
defendant must demonstrate deficient conduct and prejudice.
(People v. Williams (1997) 16 Cal.4th 153, 214-215.) In
considering a claim of ineffective assistance of counsel, it is not
necessary to determine “ ‘whether counsel’s performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies . . . . If it is easier
24
to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course
should be followed.’ ” (In re Fields (1990) 51 Cal.3d 1063, 1079,
quoting Strickland v. Washington (1984) 466 U.S. 668, 697 [104
S.Ct. 2052, 80 L.Ed.2d 674].) To demonstrate prejudice,
defendant must show a “reasonable probability” that the errors
affected the result. (Williams, at p. 215.) “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” (Ibid.)
We assume for purposes of appeal that defense counsel
failed to timely provide the mitigation report to the court.
Melara, however, has failed to demonstrate prejudice from this
purported failure. Defense counsel informed the trial court of the
key elements of that report in the sentencing memorandum and
during oral argument prior to the court’s exercise of its
sentencing discretion. Thus, the trial court exercised its
discretion to impose the enhancement with knowledge of the
potential mitigation factors. Although the report contained
additional factual details, it is not reasonably probable that the
court’s review of the entire report would have resulted in a more
favorable result to Melara.
E. Melara Demonstrates No Error in Assessing Fines
and Fees Without an Ability to Pay Hearing
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas), Melara argues the trial court erred in imposing the $30
court facilities assessment, $40 court operations assessment and
$300 restitution fine because the trial court did not hold an
ability to pay hearing. Melara does not challenge the victim
restitution, but contends that the amount of restitution should be
25
considered in determining whether Melara has the ability to pay
the restitution fine and assessments.
In Dueñas, an unemployed, homeless mother with cerebral
palsy lost her driver’s license when she was unable to pay over
$1,000 assessed against her for three juvenile citations. (Dueñas,
supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter she received
multiple convictions related to driving with a suspended license,
each accompanied by jail time and additional fees she could not
afford to pay. (Id. at p. 1161.) The trial court rejected Dueñas’s
request to hold an ability to pay hearing despite undisputed
evidence that she was indigent. (Id. at p. 1163.)
The appellate court reversed, holding that due process
prohibited imposing the same assessments imposed in the
current case and required the trial court to stay execution of the
restitution fines until the trial court held an ability to pay
hearing. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court
expressed concern for “the cascading consequences of imposing
fines and assessments that a defendant cannot pay,” noting that
Dueñas’s case “ ‘doesn’t stem from one case for which she’s not
capable of paying the fines and fees,’ but from a series of criminal
proceedings driven by, and contributing to, Dueñas’s poverty.”
(Id. at pp. 1163-1164.) The court referenced “the
counterproductive nature of this system and its tendency to
enmesh indigent defendants in a cycle of repeated violations and
escalating debt.” (Id. at p. 1164, fn. 1.)
Dueñas is distinguishable because Melara does not face
incarceration because of his inability to pay fines and fees. He is
incarcerated because he aided and abetted the killing of a rival
gang member. (People v. Caceres (2019) 39 Cal.App.5th 917, 928
[declining to apply Dueñas’s “broad holding” beyond its “unique
26
facts”].) Also, in contrast to the defendant in Dueñas who was
unemployed and disabled, the record shows Melara held multiple
part-time jobs. Moreover, following People v. Hicks (2019) 40
Cal.App.5th 320, review granted Nov. 26, 2019, S258946, this
court has held that Dueñas was wrongly decided because it
misapplied due process precedents. (See People v. Kingston
(2019) 41 Cal.App.5th 272; see also People v. Kopp (2019) 38
Cal.App.5th 47, 95-98, review granted Nov. 13, 2019, S257844.)
Even if, arguendo, Dueñas were correctly decided, imposition of
the minimal assessments here (totaling $370) was harmless
given Melara’s ability to earn wages during his four-decade
prison sentence. (People v. Johnson (2019) 35 Cal.App.5th 134,
139-140 [any error under Dueñas harmless when the defendant
“will have the ability to earn prison wages over a sustained
period”].)
F. Remand Is Necessary to Allow for Resentencing in
Light of Tirado
Melara argues that remand is necessary because the trial
court misunderstood the scope of its discretion to impose or strike
the section 12022.53 firearm enhancement. Specifically, Melara
contends the trial court had discretion to impose a lesser
uncharged enhancement if it was not willing to strike the
enhancement altogether.
Effective January 1, 2019, section 12022.53, subdivision (h)
provides in pertinent part: “The court may, in the interest of
justice pursuant to [s]ection 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise required to be
imposed by this section.” Section 1385 in turn permits a court to
strike or dismiss an enhancement in the furtherance of justice.
(Id., subd. (b)(1).)
27
Prior to our issuance of our 2020 opinion in this matter,
there existed a split of authority on whether in exercising its
discretion to impose or strike a section 12022.53 enhancement,
the trial court may instead impose an uncharged enhancement.
(See Tirado, supra, 12 Cal.5th at pp. 696-697 [describing split
among the Courts of Appeal].)
In considering the issue in this case, we concluded the trial
court did not have the authority to apply an uncharged lesser
enhancement. As stated in the preface to this opinion, Melara’s
petition for review was granted on the issue, and the Supreme
Court remanded this case to us for reconsideration in light of its
opinion in Tirado, supra, 12 Cal.5th 688, where the court
clarified that the sentencing court does have the authority to
apply an uncharged lesser enhancement. (Id. at p. 700.) In as
much as it is not clear whether the trial court would have
exercised its discretion differently on the firearm enhancement,
the Attorney General and we agree this case must be remanded
for resentencing pursuant to the Supreme Court’s direction.
G. Remand Is Necessary to Determine If Melara Is
Entitled to the Benefits of Senate Bill No. 567
During the pendency of Melara’s appeal with the Supreme
Court, the Governor signed three bills that amended section
1170: Assembly Bill 124 (Stats. 2021, ch. 695, § 5), Assembly Bill
No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 2), and
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731,
§ 1.3). Senate Bill No. 567 incorporated Assembly Bill 124’s and
Assembly Bill No. 1540’s amendments to that section. (See Stats.
2021, ch. 731, § 3(c).)
Relevant here, amended section 1170, subdivision (b)(6),
now provides, “Notwithstanding paragraph (1) [directing that the
28
court impose a sentence not to exceed the middle term of a
sentencing triad except as provided in subdivision (b)(2)], and
unless the court finds that the aggravating circumstances
outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice, the court
shall order imposition of the lower term if any of the following
was a contributing factor in the commission of the offense: [¶]
(A) The person has experienced psychological, physical, or
childhood trauma, including, but not limited to, abuse, neglect,
exploitation, or sexual violence. [¶] (B) The person is a youth, or
was a youth as defined under subdivision (b) of [s]ection 1016.7[8]
at the time of the commission of the offense. [¶] (C) Prior to the
instant offense, or at the time of the commission of the offense,
the person is or was a victim of intimate partner violence or
human trafficking.”
The Attorney General agrees that section 1170, subdivision
(b)(6) is ameliorative and retroactive under the principle
articulated in In re Estrada (1965) 63 Cal.2d 740, that absent
evidence to the contrary, the Legislature intended amendments
to statutes that reduce the punishment for a particular crime to
apply to all defendants whose judgments are not yet final on the
amendments’ operative date. Thus, the Attorney General
observes Melara may raise his arguments that he is entitled to
the benefits of section 1170, subdivision (b)(6) upon remand of
this case.
8 Assembly Bill 124 added section 1016.7, subdivision (b),
which provides that for purposes of the section, a “ ‘youth’ ”
“includes any person under 26 years of age on the date the
offense was committed.” (Stats 2021, ch. 695, § 4.)
29
We agree. Upon remand, a trial court may revisit all of its
prior sentencing decisions under new legislation. (People v.
Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full resentencing
rule allows a [trial] court to revisit all prior sentencing decisions
when resentencing a defendant”]; accord, People v. Buycks (2018)
5 Cal.5th 857, 893 [“the ‘full resentencing rule’ ”].) Here, because
we remand the matter so that the trial court may reconsider
Melara’s sentence for the firearm enhancement under section
12022.53, Melara will have the opportunity to raise his
arguments relating to section 1170, subdivision (b)(6) to the trial
court at that time.
H. Assembly Bill 333—Remand Is Necessary to Permit
Retrial of the Gang Enhancement Allegation Under
Section 186.22, but Not for Retrial of Melara’s Second
Degree Murder Conviction Under Amended Section
1109
Melara also argues that in light of amendments made
pursuant to Assembly Bill 333, we must remand his case for
retrial of the murder charge and gang enhancement allegation
and resentencing. In 2021, the Legislature passed Assembly Bill
333, amending sections 186.22 and 1109, effective January 1,
2022. (Tran, supra, 13 Cal.5th at pp. 1207-1208.) We consider
Melara’s arguments concerning each amended statute below.
1. Remand for Retrial of the Gang Enhancement Is
Necessary Under Section 186.22
Assembly Bill 333 amended section 186.22 to require proof
of additional elements to establish a gang enhancement. (People
v. Lopez (2021) 73 Cal.App.5th 327, 343.) For example, amended
section 186.22, subdivision (e)(1) now requires proof that the
predicate offenses used to establish a pattern of gang activity
30
“commonly benefited a criminal street gang, and the common
benefit of the offense is more than reputational.” Subdivision
(e)(2) prohibits using current charged offenses to prove the
pattern of criminal gang activity; subdivision (f) redefines
“ ‘criminal street gang’ ” to require proof that members of the
gang collectively, as opposed to individually engage in or have
engaged in a pattern of criminal gang activity; and further
defines “ ‘pattern of gang activity’ ” in subdivision (g) as meaning
“to provide a common benefit to members of a gang where the
common benefit is more than reputational.” (Stats. 2021, ch. 699,
§ 3, eff. Jan. 1, 2022; Lopez, at p. 345.)9
The Attorney General agrees the changes made to section
186.22 apply retroactively to Melara under In re Estrada, supra,
63 Cal.2d 740. (See People v. Delgado (2022) 74 Cal.App.5th
1067, 1087 [Assem. Bill 333’s amendments to § 186.22 apply
retroactively to non-final judgments]; People v. Lopez, supra, 73
Cal.App.5th at pp. 343-344 [same].) We agree as well. Thus, the
gang enhancement and the sentence on the gang-firearm
enhancement must be reversed, and we remand the matter to
allow for a retrial of the gang enhancement consistent with
section 186.22. On remand, Melara may raise arguments
concerning intervening authority, including People v. Valencia,
supra, 11 Cal.5th 818.
9 Further, effective January 1, 2023, section 186.22,
subdivision (b)(3) will require the court to impose “the middle
term of the sentence enhancement, unless there are
circumstances in aggravation or mitigation. The court shall state
the reasons for its choice of sentencing enhancements on the
record at the time of the sentencing.” (Stats. 2021, ch. 699, § 4,
eff. Jan. 1, 2022, operative Jan. 1, 2023.)
31
2. Remand and Retrial of Melara’s Second Degree
Murder Conviction Under Section 1109 Is Not
Necessary Because Any Failure to Bifurcate Is
Harmless
Melara contends newly enacted section 1109, which
requires the trial court to bifurcate the adjudication of the
underlying offense and the gang enhancement upon a defendant’s
request, requires this court to vacate his second degree murder
conviction and remand the matter for retrial. The Attorney
General disagrees, arguing that section 1109 is not retroactive.
There is currently a split of authority among the Courts of
Appeal on the question whether section 1109 applies
retroactively. (Compare People v. Burgos (2022) 77 Cal.App.5th
550, 566-567, review granted July 13, 2022, S274743, and People
v. Ramos (2022) 77 Cal.App.5th 1116, 1131 with People v. Perez
(2022) 78 Cal.App.5th 192, 207, review granted Aug. 17, 2022,
S275090, and People v. Ramirez (2022) 79 Cal.App.5th 48, 65,
review granted Oct. 12, 2022, S275341.)
Our Supreme Court identified this split in its recent
opinion, Tran, supra, 13 Cal.5th at p. 1208, but declined to opine
as to whether section 1109 is retroactive. The court chose instead
to find any error harmless on the facts before it. (Tran, at
p. 1208.)
Like the defendant in Tran, Melara argues the Attorney
General must, but cannot, demonstrate that the failure to
bifurcate the trial was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17
L.Ed.2d 705].) The Tran court rejected the defendant’s argument
that Chapman applied, finding the prosecutor’s use of gang
evidence did not render the trial “fundamentally unfair,” and
32
applied the standard of prejudice articulated in People v. Watson
(1956) 46 Cal.2d 818. (Tran, supra, 13 Cal.5th at p. 1209.) We
reach the same conclusion here.
As in Tran, Melara does not explain how the exclusion of
gang evidence in this case would have been reasonably likely to
change the jury’s verdict of guilt as to the underlying murder.
Here, the case for guilt was very strong, even absent the gang
evidence. The murder was captured on video. The video showed
every step of the events leading to the crime, including showing
Melara on the phone (which was corroborated by cell phone
records), the arrival of a black car that Melara then approached,
Melara twice pointing at Hernandez, the black car then pulling
up to Hernandez, and the driver shooting Hernandez. Cell phone
records also suggested that Melara entered Luna’s car shortly
after the shooting and traveled together to Oceanside, California.
Thus, we find that even if bifurcation is retroactive and applies in
Melara’s case, the error was harmless under People v. Watson,
supra, 46 Cal.2d 818.
In summary, we conclude this case must be remanded
under section 186.22 for retrial of Melara’s gang enhancement
allegation and for reconsideration of the gang-firearm
enhancement; under section 12022.53 as articulated in Tirado, to
allow the court to consider whether to sentence Melara pursuant
to a lesser included firearm enhancement; and under section
1170, subdivision (b)(6), for the trial court to determine whether
Melara is entitled to receive a lower term for the gang
enhancement.
DISPOSITION
The matter is remanded for retrial of the gang
enhancement allegation under the amendments to section 186.22,
33
during which time Melara may raise evidentiary challenges
pursuant to People v. Valencia, supra, 11 Cal.5th 818.
The matter is also remanded for resentencing as follows: If
the gang enhancement allegation is not found to be true, the trial
court shall strike the gang-firearm enhancement sentence. If the
gang enhancement allegation is found true, the trial court shall
consider (1) whether, pursuant to section 12022.53, subdivision
(h) and Tirado, supra, 12 Cal.5th 688, to impose a term for a
lesser included uncharged gang-firearm enhancement articulated
in section 12022.53; and (2) whether, pursuant to section 1170,
subdivision (b)(6), to impose the lower term for the gang-firearm
enhancement articulated in section 12022.53.
We otherwise affirm the judgment.
NOT TO BE PUBLISHED
BENKE, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
34