People v. Perez ( 2022 )

Filed 5/23/22 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300396
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. TA143448)
v. ORDER MODIFYING
OPINION AND DENYING
LUIS JULIAN BELTRAN REHEARING
PEREZ et al.,
[CHANGE IN JUDGMENT]
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed herein on May 2, 2022 be
modified as follows:
1. On page 1, the unnumbered footnote, delete XV to read
as the below unnumbered footnote.
* This opinion is certified for publication with the exception
of the CONTENTIONS section and parts I, II, IV, V, VII, VIII,
IX, X, XI, XII, XIII, XIV of the DISCUSSION section. (Cal. Rules
of Court, rule 8.1110.)
2. On page 16, second to fifth lines from the top, beginning
with “(13) the trial court failed to consider its discretion” and
ending with “sentencing minute orders must be corrected” are
deleted and the following is inserted in its place:
and (13) the abstracts of judgment and sentencing orders
must be corrected.
3. On page 29, seventh line in the first full paragraph, the
word “not” is inserted between the words “are” and “supported,”
so that it reads:
theory of aiding and abetting, are not supported by
substantial evidence.
4. On page 38, footnote 11, the sentence beginning with
“Because we are reversing” is deleted and the following is
inserted in its place:
We must also reverse the vicarious gang-related firearm
enhancements alleged under section 12022.53. To find the
gang-related firearm enhancements true, the jury was
required to find that the defendants violated section 186.22,
subdivision (b), and that a principal in the offense
committed an act in violation of section 12022.53. With the
reversal of the gang enhancements under section 186.22,
there is an insufficient basis to support the true findings on
the vicarious gang-related firearm use enhancements under
section 12022.53. They must be reversed.
5. On page 55, part XIII of the DISCUSSION section is
deleted. Part XIV of the DISCUSSION section is renumbered as
part XIII. Part XV of the DISCUSSION section is renumbered as
part XIV.
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6. On page 59, the first two sentences of the last paragraph
beginning with “The parties agree that various errors in the
abstracts of judgment” and ending with “and not the determinate
abstract of judgment” are deleted.
7. On page 60, after the first full paragraph, ending “as
amended by Assembly Bill No. 333” insert the following
sentences:
We reverse the gang-related firearm use enhancements
under section 12022.53. The prosecution is allowed 60 days
from the date of the remittitur to retry the gang
enhancements and gang-related firearm use enhancements.
The trial court must modify the judgment and resentence
defendants accordingly.
8. On page 60, the third sentence in the second full
paragraph, beginning with “The trial court is directed to correct
Perez’s abstract of judgment” and ending with “on an
indeterminate abstract of judgment” is deleted.
9. On page 61, the second sentence from the top, delete the
words “and place the indeterminate sentences on counts 6, 7, and
8 and the corresponding firearm enhancements on an
indeterminate abstract of judgment form.”
10. On page 61, the third sentence in the first full
paragraph, beginning with “The trial court is directed to correct
Sanchez’s abstracts of judgment” and ending with “on an
indeterminate abstract of judgment form” is deleted.
3
This modification changes the judgment.
The petitions for rehearing are denied.
CERTIFIED FOR PARTIAL PUBLICATION.
____________________________________________________________
VIRAMONTES, J.* LAVIN, Acting P. J. EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
4
Filed 5/2/22 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300396
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143448)
v.
LUIS JULIAN BELTRAN
PEREZ et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Kelvin D. Filer, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant Luis Julian Beltran Perez.
* This opinion is certified for publication with the exception
of the Contentions and parts I, II, IV, V, VII, VIII, IX, X, XI, XII,
XIII, XIV, XV of the Discussion. (Cal. Rules of Court, rule
8.1110.)
Valerie G. Wass, under appointment by the Court of
Appeal, for Defendant and Appellant Edgar Manuel Rosas.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant Salvador Sanchez.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Appellants Luis Julian Beltran Perez, Edgar Manuel
Rosas, and Salvador Sanchez engaged in a fist fight with two
men outside of a liquor store in the middle of the day. During the
fight, Perez retrieved a gun from his car and fired at the two men
as they ran into a busy street. Perez’s shots missed the men, but
struck three passing vehicles, including a four-year-old boy in the
backseat of his mother’s car. Appellants raise numerous claims
on appeal, including the sufficiency of the evidence, admission of
expert testimony, application of the natural and probable
consequences doctrine to the attempted murder counts,
prosecutorial misconduct, and instructional error. Appellants
also argue that the abstracts of judgment must be corrected. For
the following reasons, we affirm in part and reverse in part the
judgments and remand with directions.
BACKGROUND
A. Prosecution evidence
1. Testimony of Tyler Oliver and Danny
Candler
Around 11:42 a.m. on June 7, 2017, Tyler Oliver and Danny
Candler walked to LMG Liquor (LMG) located on East Compton
Boulevard, about one block east of Atlantic Avenue in Compton.
2
As Oliver and Candler approached LMG, Candler saw a group of
three to four Hispanic men outside LMG talking to a Black
woman. When Oliver and Candler were near LMG’s entrance,
Candler noticed that the Hispanic men were staring at him, and
he felt uncomfortable. Candler approached one of the men and
asked the group, “What are you staring at?” No one responded,
and Candler asked again. Someone in the group said, “Fuck
niggers.” Someone asked Candler, “[W]here you from?” and “[D]o
you bang?” Candler responded, “[N]o.” Someone repeated, “Fuck
niggers,” and another yelled out, “Compton Varrio Segundos.”
A fight broke out between Candler and the Hispanic males,
which Oliver joined. The fight proceeded west on the sidewalk of
Compton Boulevard toward Atlantic Avenue. Oliver saw a glare
from something that he thought was a knife or a gun in the hand
of one of the Hispanic men. Oliver told Candler, “[L]et’s go.”
Oliver and Candler ran side by side into the middle of Compton
Boulevard and toward Atlantic Avenue before splitting up, with
Candler running down the sidewalk away from the group and
Oliver cutting an angle across Compton Boulevard. When
Candler looked back, he saw someone with a gun on the sidewalk
and heard a shot fire and saw a muzzle flash. The back window
of a green SUV shattered. When Candler looked back again, the
shooter was in the middle of Compton Boulevard. Candler heard
four or five more shots before he ran across the crosswalk on
Atlantic Avenue.
As Oliver neared the intersection at Atlantic Avenue, he
asked Silvia U., who had pulled over in her black pickup truck, if
he could get in. Silvia U. unlocked the door and Oliver got in the
front passenger seat. Oliver yelled to Candler to get in as well
and the two sat together in the front passenger area. Silvia U.
3
drove a short distance before Oliver and Candler got out of the
vehicle and thanked her for picking them up. Oliver and Candler
proceeded to Candler’s aunt’s house but did not call the police.
Approximately six months after the shooting, Oliver was
pulled over for running a red light. He had a loaded revolver in
his car and told deputies he was a “West Coast Crip” gang
member.1
2. Testimony of Sharice Johnson and Miriam
Rios
On the day of the shooting, Sharice Johnson went to LMG
to purchase something. Johnson spoke with Miriam Rios outside
LMG’s front door. As Johnson and Rios were talking, Oliver and
Candler walked up to LMG while a group of three or four young
Hispanic men were talking amongst themselves. Candler
aggressively walked up to one of the Hispanic men and asked
him, “[W]hat the fuck you lookin’ at?” The man looked scared
and responded, “I’m not looking at you. I’m not worried about
you.” Rios heard Candler ask one of the Hispanic men, “[W]here
you from,” and the man answered, “I don’t bang.” Johnson then
heard Candler say “Duccy Hood Crip.” Rios did not hear anyone
yell out “Duccy Hood Crips” or “Compton Varrio Segundos.” 2
Candler moved backwards, and the Hispanic group moved
towards him. Candler swung first and the other Hispanic men
joined in the fight. As the fight moved down the sidewalk
1 At trial, Oliver denied that he said he was a gang member
when he was pulled over; rather, Oliver testified that he told the
deputy who pulled him over that he knew he was in Crip
territory.
2 Neither Johnson nor Rios heard anyone say the “N word.”
4
towards Atlantic Avenue, another man came from LMG’s parking
lot area holding a gun by his side. Oliver and Candler ran
diagonally into Compton Boulevard. The shooter ran after Oliver
and Candler into the middle of the street and then fired two or
three shots at them. When Johnson heard the gunshots, she
grabbed Rios and took shelter inside LMG.
Johnson called 911.3 She reported that “two Black boys”
walked up to “the Mexicans,” who were talking to each other,
“and just banged on ‘em.” The “short Mexican” was getting
beaten up and “the other Mexican” showed up with a gun and
“just started shooting and they all ran across the street.”
3. LMG’s surveillance videos
The fight and subsequent shooting were captured on LMG’s
surveillance system. The video shows Johnson and Rios arriving
at LMG separately. A few moments later, four Hispanic men,
including a man on a bike, Sanchez, and Miguel Cano arrive at
LMG together. Two of the men wait outside while Sanchez and
Cano walk into LMG. A few moments later, Perez pulls into
LMG’s parking lot with his car and Rosas arrives on his bike.
The group gathers on the sidewalk in front of LMG’s entrance
and appears to be talking amongst themselves while Cano and
Perez stare in the direction of Atlantic Avenue where Candler
and Oliver are approaching. Johnson and Rios are seen standing
separately outside of LMG talking.
Candler and Oliver approach LMG from Atlantic Avenue.
When they are close to LMG’s entrance, Candler walks directly to
Cano and stops less than a foot away from Cano while Oliver
stops in front of LMG’s entrance. Candler exchanges words with
3 An audio recording of the 911 call was played to the jury.
5
Cano and Sanchez, and Oliver moves closer to Candler. Candler
walks backwards and puts his hands up like he is getting ready
to fight. Cano and Sanchez move towards Candler, and Oliver
walks backwards toward Atlantic Avenue. As the fight breaks
out, Perez runs to his car and retrieves a handgun.
As Candler and Tyler fight with Cano and Sanchez, Rosas
joins. The fight continues down the sidewalk towards Atlantic
Avenue. Perez returns to the front of the store, holding a gun
down by his right side. When Candler and Oliver notice Perez
approaching with a gun by his side, they turn and run onto
Compton Boulevard as Perez points the gun at them. As Candler
and Oliver run behind a parked car and out of view, Perez lowers
his gun and chases them into the street.
Appellants’ group runs back to LMG while Candler runs in
the opposite direction on Compton Boulevard. When appellants’
group reaches LMG’s parking lot, they run in different directions
down an alley behind LMG. Before driving away, Perez hands
the gun to Cano and then drives down the alley in the same
direction as Rosas and Sanchez.
4. Silvia U.’s testimony
Silvia U. was driving westbound on Compton Boulevard
approaching Atlantic Avenue while her four-year-old son,
Pedro B., and three-year-old daughter, Silvia B., were seated in
their car seats behind her. As she approached LMG on her left,
she saw two Hispanic men fighting with two Black men in front
of the store. Silvia U. stopped at the intersection of Compton
Boulevard and Atlantic Avenue for a red light. While Silvia U.
was stopped, she heard five to six gunshots and her window
break. She panicked and turned right on Atlantic Boulevard and
stopped when two Black men approached the passenger side of
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her car and asked if they could get in. The men appeared scared,
and Silvia U. wanted to help so she let them in the front
passenger seat. She did not see if the men were armed.
Silvia U. drove down Atlantic Avenue for a few seconds
before stopping to check on her children. As she got out of her
vehicle, the two men also exited and left. One of them said, “God
bless you.” When Silvia U. checked on her children, Silvia B. was
crying, and Pedro B. was nonresponsive. Silvia U. noticed blood
on Pedro B.’s head and on the headrest behind his car seat.
5. Testimony of Angel Manzo and Ingrid
Fuentes
On the day of the shooting, Angel Manzo was driving
westbound on Compton Boulevard when he noticed two Black
men and a group of Hispanic men fighting next to LMG. As he
drove by, one of the Black men ran behind his truck and the
second Black man ran on the sidewalk on his driver’s side. Both
men ran towards Atlantic Avenue. Manzo stopped his truck
when his rear windows exploded. He did not hear any gunshots.
Ingrid Fuentes and her three-year-old son were driving
near Compton Boulevard and Atlantic Avenue. Fuentes pulled
onto Compton Boulevard, heading westbound towards Atlantic
Avenue. She heard gunshots and something like a rock hit her
car. A black vehicle crossed in front of Fuentes’s vehicle, and she
saw a Black man carrying a pistol in his left hand get in the
passenger side of the black vehicle. Fuentes entered a nearby
school’s parking lot and told a security guard that her car had
been struck by a bullet. She called 911 and reported the
shooting.
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6. Pedro B.’s injuries and treatment
Los Angeles County Sheriff’s deputies responded to the
shooting. They transported Pedro B. to the hospital to treat the
gunshot wound to the back of his head.4
7. Sheriff’s investigation
Deputies Francis Quinones and Lamar Johnson responded
to the scene and saw Silvia U.’s truck with a shattered window
and Pedro B. suffering from a gunshot wound. There was a
bullet hole on the rear driver side window, and a bullet had gone
through the rear driver’s side headrest.
Manzo’s vehicle was on the northeast corner of Compton
Boulevard and Atlantic Avenue. The back glass and rear
passenger side windows were shattered. Two bullets were
recovered from the floorboard of the front passenger seat and
from the front center area.
There was a bullet hole on the back of Fuentes’s vehicle. A
bullet was recovered in the rear door handle area. Deputies
interviewed Fuentes in the elementary school parking lot. After
Fuentes heard gunshots, she stopped her car and saw a young
Black man wearing a black hoody run past her car towards
Compton Boulevard and Atlantic Avenue. The young man
entered a dark vehicle, and the vehicle drove off. Fuentes did not
mention that the man had a gun, and she was not sure if he was
the shooter.
Five cartridge casings were found on Compton Boulevard in
4 Pedro B. had the bullet surgically removed from his head
and was placed in a medically induced coma for five days. When
he woke up, he could not talk or move his right side. At the time
of trial, Pedro B., who was six years old, was able to walk, run,
and talk like a three year old.
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front of a business adjacent to LMG. The five cartridges were the
same brand and fired from the same firearm. The bullets
recovered from Manzo’s vehicle, Fuentes’s vehicle, and Pedro B.’s
head were all fired from the same weapon.
On the evening of the shooting, detectives searched Rosas’s
residence and recovered a rifle with an empty magazine in his
dresser. Rosas had found the rifle about three weeks prior and
did not know if it worked.
Deputies arrested Rosas and interviewed him a few days
after the shooting. He admitted that he had been a member of
Compton Varrio Segundos since he was 14 or 15 years old.5
Rosas said that Compton Varrio Segundos get along with other
gangs and that he had never heard of Duccy Hood. He did not
know the Black men who came towards them and did not believe
they were in a gang or that they said a gang name before the
fight. He could not recall if they were armed. Rosas admitted
that he was at LMG that day to buy a blunt when he saw persons
that he knew and spoke with them. According to Rosas, the two
Black men approached his group and started a fight. Rosas did
not strike anyone. He said that, after the fight, someone shot
“the little kid.” Rosas did not know the shooter had a gun.
Detectives identified Perez’s vehicle from the surveillance
video and located it at a nearby tire shop where Perez worked.
On the morning of the shooting, Perez arrived around 8:00 a.m.
and left for lunch around 11:30 a.m.
8. Gang evidence
Los Angeles County Sheriff’s Detective Joseph Sumner
testified as the prosecution’s gang expert. Detective Sumner had
5 Rosas was 33 years old at the time of the shooting.
9
been a gang investigator in Compton and was an expert on
Compton Varrio Segundos.
At the time of the shooting, Compton Varrio Segundos had
about 80 to 100 members. Compton Varrio Segundos had few
allies in the area, but associated with Duccy Hood Compton
Crips. Although Compton Varrio Segundos and Duccy Hood
Compton Crips fought in the past, at the time of the shooting,
there was no conflict between them. Duccy Hood Compton
Crips’s and Compton Varrio Segundos’s territory overlapped, but
Duccy Hood had only about 10 members and had mostly
disbanded over the past 15 years. Detective Sumner found no
evidence that Candler or Oliver were members of Duccy Hood
Compton Crips.
LMG is located in Compton Varrio Segundos’s territory,
and members frequently hang out in front of the store. Detective
Sumner opined that gangs use business establishments like LMG
to control their territory. They can use it to look out for other
gang members coming into their neighborhood, harass people,
and to sell narcotics. When a perceived enemy enters a gang’s
territory, the gang member will ask where they are from and
possibly say their gang name.
Detective Sumner testified about rules that gangs tend to
follow. If gang members hang out on their territory’s borders,
someone must have a firearm. Gangs use firearms or weapons to
defend themselves and to boost their reputation. Violence
escalates more quickly in gang-related fist fights because
someone will usually go for a weapon. Committing shootings for
the gang elevates the member’s reputation and the gang’s
reputation generally.
Detective Sumner identified Rosas, Perez, Sanchez, and
10
Cano in the surveillance video. He also identified them based on
photographs of their gang tattoos.
Based on a hypothetical comprised of the facts of the case,
Detective Sumner opined that the fistfight and the shooting were
committed for the benefit of the gang because it showed that they
were willing to attack anybody that comes into their territory and
instilled fear in the community. He also stated that when one
member of a gang decides to fight an enemy, other gang members
have to join the fight. A group of Hispanic gang members staring
down individuals of another race in their territory would
constitute a gang challenge.
B. Defense evidence
1. Perez’s testimony
Perez testified on his own behalf. On the day of the
shooting, he went to work at the tire shop around 8:00 a.m.
Around 11:30 a.m., his mother stopped by with Perez’s
grandmother. Perez dropped his grandmother off nearby before
driving to LMG at 11:40 a.m.
Perez did not plan to meet anyone at LMG. He saw some
people he knew inside LMG and greeted them. When he was
outside talking with his friends, Candler and Oliver approached
the group. Candler yelled at Cano, “[W]hat you lookin’ at?” Cano
responded, “not at you.” No one from Perez’s group said Compton
Varrio Segundos. Candler said, “I’m from West Coast Crip” and
raised his fists. Perez saw Oliver with his hand in his pocket and
saw a handle of a gun next to Oliver’s right arm. When the two
groups started fighting, Perez ran to his car to grab his gun to
defend himself and his friends.
After Perez returned from his car, the fight had moved
from the front of LMG and down the sidewalk toward Atlantic
11
Avenue. Perez fired four shots when he saw Oliver in the middle
of the street pointing a gun toward him and his friends. Perez
did not aim at the cars or Oliver but shot in the air.
After the shooting, Perez returned to the tire shop. He did
not contact police. Deputies arrested Perez at the tire shop and
took him into custody and left him handcuffed in the back of the
patrol car for about eight hours before interviewing him. Perez
denied being a current member of Compton Varrio Segundos.
2. Perez’s interview
Detectives interviewed Perez. On the day of the shooting,
Perez was at work when his grandmother came to see him
around 11:30 a.m. Around 11:45 a.m., Perez’s friends Jerry and
Karen, who had borrowed Perez’s car, came to the tire shop and
drove Perez and his grandmother to a nearby charter bus
terminal. After his grandmother left on a bus at 12:30 p.m.,
Perez returned to work. While Perez was waiting at the
terminal, he heard two or three gunshots, but did not see anyone
shooting.
Perez had been to LMG before but was not there on the day
of the shooting. While Perez was with his grandmother at the
bus terminal, Karen and Jerry drove around the area. Perez
used to be a member of Compton Varrio Segundos but was no
longer active. Perez did not own a gun and was scared of guns.
When shown the surveillance video, Perez denied that he
was the person shown in the video or that the car was his.
3. Defense gang expert
Martin Flores testified as the defense’s gang expert. He
opined that LMG was not a hangout for Compton Varrio
Segundos because the gang’s illegal activity would be captured by
the surveillance cameras around the store. Further, LMG’s
12
location on a main street made the gang an easy target by rival
gangs or law enforcement. There was also tagging on and around
LMG that did not belong to Compton Varrio Segundos. While
Flores found that LMG was within Compton Varrio Segundos’s
territory, Flores stated that, except in some rare circumstances,
gangs do not control local businesses.
He further opined that gangs do not have a rule that
members must be armed. Although he admitted that gang-
related fights could escalate into a more violent confrontation if a
weapon was brought out, they do not have to necessarily escalate
into something more violent.
C. Procedure
An amended information charged appellants with
premeditated attempted murder (Pen. Code,6 §§ 187, 664;
counts 1, 2), and shooting at an occupied motor vehicle (§ 246;
counts 6, 7, 8). Perez was additionally charged with three counts
of premeditated attempted murder (§§ 187, 664; counts 3, 4, 5),
and Rosas was additionally charged with possession of a firearm
by a felon with priors (§ 29800, subd. (a)(1); count 9). As to all
counts, it was alleged that the offenses were committed for the
benefit of, at the direction of, or in association with a criminal
street gang (§ 186.22, subd. (b)). As to counts 1 through 8, it was
alleged that Perez personally and intentionally discharged a
firearm causing great bodily injury (§ 12022.53, subds. (b), (c),
& (d)). As to counts 1, 2, 6, 7, and 8, it was alleged that a
principal personally and intentionally discharged a firearm
6 All
further undesignated statutory references are to the
Penal Code.
13
causing great bodily injury (§ 12022.53, subds. (b), (c), (d)
& (e)(1)).
The jury convicted Perez of attempted murder in counts 1
and 2 and shooting at an occupied motor vehicle in counts 6, 7,
and 8. It found the firearm, gang, and premeditation allegations
to be true. The jury also convicted Perez of the lesser included
offense of attempted voluntary manslaughter in counts 3, 4,
and 5. The jury found the gang allegation and the allegation that
Perez personally and intentionally discharged a firearm causing
great bodily injury pursuant to section 12022.5, subdivision (a), to
be true.
The jury convicted Sanchez and Rosas of attempted murder
in counts 1 and 2 and shooting at an occupied motor vehicle in
counts 6, 7, and 8. The jury found the firearm and gang
allegations to be true as to counts 1, 2, 6, 7, and 8, and rejected
the premeditation allegations as to counts 1 and 2. The jury also
convicted Rosas of possession of a firearm by a felon in count 9
but found the gang allegations not true as to that count.
The trial court sentenced Perez to 120 years to life in state
prison. His sentence consisted of three consecutive 40-years-to-
life terms on counts 1, 2, and 6, which each included a 15-years-
to-life term plus 25 years to life for the firearm enhancement.
The trial court imposed concurrent terms on counts 3, 4, 5, 7,
and 8.
Rosas was sentenced to 30 years to life in state prison. The
trial court imposed consecutive 15-years-to-life terms on counts 6
and 7, and imposed concurrent terms on counts 1, 2, 8, and 9.
The trial court struck the firearm and prior conviction
enhancements. Similarly, the trial court sentenced Sanchez to 30
years to life in state prison. It imposed consecutive 15-years-to-
14
life terms on counts 6 and 7, and imposed concurrent terms on
counts 1, 2, and 8. The trial court struck the firearm
enhancements.
Appellants appealed.
CONTENTIONS
Appellants raise numerous issues, including: (1) the
evidence was insufficient to support Perez’s conviction for
attempted premeditated murder of Candler in count 2; (2) the
trial court erred in instructing the jury on the “kill zone” theory;
(3) Rosas’s and Sanchez’s attempted murder convictions should
be vacated based on recent amendments that abrogated the
natural and probable consequences theory of aiding and abetting
attempted murder; (4) the gang enhancements must be vacated
based on new legislation; (5) the evidence was insufficient to
support Rosas’s and Sanchez’s convictions for shooting at an
occupied motor vehicle under a natural and probable
consequences theory of aiding and abetting the uncharged target
offense of disturbing the peace; (6) the evidence was insufficient
to support the gang enhancements; (7) the trial court erred by
instructing the jury with CALCRIM No. 3472 [right to self-
defense: may not be contrived]; (8) the trial court erred by not
instructing the jury with CALCRIM No. 917 [insulting words are
not a defense]; (9) the trial court committed Sanchez7 error by
allowing the prosecution’s gang expert to testify as to case-
specific hearsay; (10) the prosecutor misstated the law of
attempted murder; (11) the prosecutor committed Doyle8 error;
(12) the prosecutor committed misconduct by making disparaging
7 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
8 Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
15
remarks about defense counsel; (13) the trial court failed to
consider its discretion to reduce Perez’s punishment for the gun
enhancements; and (14) the abstracts of judgment and sentencing
minute orders must be corrected.
Appellants joined in each other’s arguments to the extent
they benefitted their respective claims.
DISCUSSION
I. The evidence supports Perez’s conviction for
attempted premeditated murder of Candler in
count 2.
Perez contends there was insufficient evidence of his intent
to kill Candler to convict him of attempted murder in count 2.
While Perez concedes that the evidence was sufficient to convict
him of the attempted murder of Oliver, he argues that the
evidence was insufficient as to Candler because Candler had
separated from Oliver and was running on the south side of
Compton Boulevard when Perez fired his weapon. We disagree.
A. Applicable law
In addressing a challenge to the sufficiency of the evidence
supporting a conviction, we examine the whole record in the light
most favorable to the judgment to determine whether it discloses
substantial evidence. (People v. Kraft (2000) 23 Cal.4th 978,
1053.) Substantial evidence is evidence that is reasonable,
credible and of solid value. (People v. Johnson (1980) 26 Cal.3d
557, 578.) We presume the existence of every fact the trier could
reasonably deduce from the evidence in support of the judgment.
(People v. Reilly (1970) 3 Cal.3d 421, 425.) We do not reevaluate
witness credibility or reweigh evidence. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.) “If the circumstances reasonably justify
the trier of fact’s findings, reversal of the judgment is not
16
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People v.
Albillar (2010) 51 Cal.4th 47, 60.) “The standard of review is the
same in cases in which the People rely mainly on circumstantial
evidence.” (People v. Stanley (1995) 10 Cal.4th 764, 792.)
“Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Lee (2003)
31 Cal.4th 613, 623.) To be guilty of attempted murder, the
defendant must intend to kill the alleged victim and the intent to
kill must be judged separately as to each alleged victim. (People
v. Smith (2005) 37 Cal.4th 733, 740.) Because direct evidence of
defendant’s intent to kill is rare, proof of intent is usually derived
from the circumstances of the attempt, including the defendant’s
actions. (Id. at p. 736.) Firing a lethal weapon at the victim,
without legal excuse, generally gives rise to an inference that the
shooter acted with an intent to kill. (Id. at p. 742.) The fact that
the victim may have escaped death because of the shooter’s poor
marksmanship does not necessarily establish a less culpable
state of mind. (Ibid.)
B. Analysis
There was substantial evidence to support the jury’s
finding that Perez intended to kill Candler. It is undisputed that
Perez fired his gun while standing in the street in front of a
parked van. The surveillance video showed that Candler was
still in the street with Oliver when Perez stood in front of a van
and fired his gun. While the video shows that Candler veered
toward the sidewalk after running into the street, it is clear that
he did not reach the sidewalk until Perez had turned around to
run back toward LMG. From the video and the ballistics
17
evidence, the jury could reasonably infer that Perez shot at both
Oliver and Candler because Candler was still in the street and
had not veered off from Oliver until after the shots were fired.
Accordingly, there was substantial evidence Perez intended to
kill Candler.
II. The trial court erred in instructing the jury on the
“kill zone” theory.
Perez argues that his convictions for attempted voluntary
manslaughter in counts 3, 4, and 5 must be reversed because
there was insufficient evidence to support the People’s “kill zone”
theory and the jury instruction on that issue was erroneous. We
agree.
A. Relevant proceedings
The trial court instructed the jury with CALCRIM No. 600
on the kill zone theory of liability as to the attempted murder
charges as follows: “A person may intend to kill a specific victim
or victims and at the same time intend to kill everyone in a
particular zone of harm or kill zone. In order to convict the
defendant of the attempted murder of Silvia U[.], Pedro B. and/or
Silvia B., the People must prove that the defendant not only
intended to kill Tyler Oliver and/or Danny Candler but also
either intended to kill Silvia U[.], Pedro B., and/or Silvia B., or
intended to kill everyone within the kill zone. If you have a
reasonable doubt whether the defendant intended to kill
Silvia U[.], Pedro B., and Silvia B., or intended to kill Tyler
Oliver and/or Danny Candler by killing everyone in the kill zone,
then you must find the defendant not guilty of the attempted
murder of Silvia U[.], Pedro B.[,] and Silvia B.”
The trial court also instructed the jury on the lesser
included offenses of attempted voluntary manslaughter
18
(CALCRIM Nos. 603 [heat of passion] and 604 [imperfect self-
defense]). CALCRIM No. 603 instructed that Perez had to intend
to kill the victim, and CALCRIM No. 604 instructed that Perez
had to intend to kill when he acted. The instructions for
attempted voluntary manslaughter did not mention the kill zone
theory.
In her closing argument, the prosecutor argued that Perez
created a kill zone around Silvia U.’s vehicle. “Kill zone. This is
an instruction that you’re going to receive. So how does this
apply to attempted murder and specifically to shooting. What it
says is that a shooter—a kill zone is essentially when a shooter
intends to kill everyone in a particular . . . zone of harm, and your
job . . . is to figure out a zone of harm in this case. And I argue to
you that the zone of harm was near Silvia’s car. And you can use
some of the exhibits that were marked on to see how we got to a
zone of harm because essentially as Tyler ran towards Silvia’s
car, Perez fired multiple shots. So in intending to kill Tyler[,]
Perez also intended to kill everyone in that area including Silvia,
Pedro, age four, and Silvia[,] age three.”
During her rebuttal, the prosecutor argued: “And you want
to know why it’s attempted murder and kill zone and nothing less
and why you shouldn’t even consider attempted voluntary
manslaughter? There’s a reason why the sheriffs took
measurements of where that bullet hole was. There’s a reason
why they did that. Because defendant Perez was going for the
kill shot. He was going for the head shot. And because Pedro
just happened to be riding in a truck in a car seat, his head—
[¶] . . . [¶] Because Pedro happened to be in a truck riding in a
car seat and at a higher level than he otherwise would be, when
defendant Perez shot towards Tyler Oliver near [the] car trying
19
to kill him with a head shot, he hit the wrong head. And that’s
why, you know, it’s attempted murder. Kill zone. It’s willful,
deliberate, premeditated.”
B. Applicable law
The kill zone theory was introduced to California in People
v. Bland (2002) 28 Cal.4th 313. There, the defendant shot into a
car and, as the driver began to drive away, the defendant and
another man continued shooting at the car. (Id. at p. 318.) The
driver died, and the two passengers in the vehicle were wounded.
(Ibid.) The defendant was convicted of the murder of the driver
and the attempted murder of the two passengers. (Ibid.) Our
Supreme Court held that “although the intent to kill a primary
target does not transfer to a survivor, the fact the person desires
to kill a particular target does not preclude finding that the
person also, concurrently, intended to kill others within . . . the
‘kill zone.’ ‘The intent is concurrent . . . when the nature and
scope of the attack, while directed at a primary victim, are such
that we can conclude the perpetrator intended to ensure harm to
the primary victim by harming everyone in that victim’s vicinity.
For example, an assailant who places a bomb on a commercial
airplane intending to harm a primary target on board ensures by
this method of attack that all passengers will be killed.
Similarly, consider a defendant who intends to kill A and, in
order to ensure A’s death, drives by a group consisting of A, B,
and C, and attacks the group with automatic weapon fire or an
explosive device devastating enough to kill everyone in the group.
The defendant has intentionally created a “kill zone” to ensure
the death of his primary victim, and the trier of fact may
reasonably infer from the method employed an intent to kill
others concurrent with the intent to kill the primary victim.
20
When the defendant escalated his mode of attack from a single
bullet aimed at A’s head to a hail of bullets or an explosive device,
the factfinder can infer that, whether or not the defendant
succeeded in killing A, the defendant concurrently intended to
kill everyone in A’s immediate vicinity to ensure A’s death. The
defendant’s intent need not be transferred from A to B, because
although the defendant’s goal was to kill A, his intent to kill B
was also direct; it was concurrent with his intent to kill A. Where
the means employed to commit the crime against a primary
victim create a zone of harm around that victim, the factfinder
can reasonably infer that the defendant intended that harm to all
who are in the anticipated zone.’ ” (Id. at pp. 329–330.)
In People v. Canizales (2019) 7 Cal.5th 591, our Supreme
Court limited kill zone liability. In Canizales, the defendants
encountered a rival gang member at a neighborhood block party
attended by 30 or so people. One of the defendants fired five
bullets from either 100 or 160 feet away at the intended victim
who was standing next to a gang associate. Neither the intended
victim nor the gang associate was hit, but a bystander was killed.
(Id. at pp. 599–600.) The defendants were charged with one
count of murder and two counts of attempted murder of the
intended victim and his gang associate. (Id. at p. 600.) The trial
court gave CALCRIM No. 600, a kill zone instruction, addressed
to the attempted murder of the gang associate. (Id. at p. 601.)
The Canizales court found the kill zone instruction to be
prejudicial error. It held that “a jury may convict a defendant
under the kill zone theory only when the jury finds that: (1) the
circumstances of the defendant’s attack on a primary target,
including the type and extent of force the defendant used, are
such that the only reasonable inference is that the defendant
21
intended to create a zone of fatal harm—that is, an area in which
the defendant intended to kill everyone present to ensure the
primary target’s death—around the primary target and (2) the
alleged attempted murder victim who was not the primary target
was located within that zone of harm. Taken together, such
evidence will support a finding that the defendant harbored the
requisite specific intent to kill both the primary target and
everyone within the zone of fatal harm.” (People v. Canizales,
supra, 7 Cal.5th at pp. 596–597.) It also held that, “the kill zone
theory does not apply where ‘the defendant merely subjected
persons near the primary target to lethal risk. Rather, in a kill
zone case, the defendant has a primary target and reasons [that]
he cannot miss that intended target if he kills everyone in the
area in which the target is located.’ ” (Id. at p. 607.) The court
stated that in “determining the defendant’s intent to create a
zone of fatal harm and the scope of any such zone, the jury should
consider the circumstances of the offense, such as the type of
weapon used, the number of shots fired (where a firearm is used),
the distance between the defendant and the alleged victims, and
the proximity of the alleged victims to the primary target.”
(Ibid.)
Based on the evidence here, we cannot say that the only
reasonable inference from the evidence was that Perez created a
kill zone around Candler and Oliver and that Silvia U., Silvia B.,
and Pedro B. were within that zone. The ballistics evidence
shows that Perez fired at Candler and Oliver as they ran into
Compton Boulevard and in the process hit three separate
vehicles. There was a bullet hole on the back of Fuentes’s
vehicle, and a bullet was found in the rear door handle area. A
bullet shattered the rear windshield of Silvia U.’s vehicle and
22
there was a bullet hole on the rear driver side window. A bullet
went through the rear driver’s side headrest and a fired bullet
was recovered from Pedro’s head. In Manzo’s vehicle,
investigators recovered a fired bullet from the front center area
and a bullet fragment from the floorboard of the front passenger
seat. The ballistics evidence clearly shows that Perez was
targeting Oliver and Candler as they ran away, but it does not
support the conclusion that Perez intended to kill everyone
around Oliver and Candler. Rather, the evidence supports the
inference that Perez acted with conscious disregard of the risk of
death when he fired into a busy street in the middle of the day,
not that he intended to create a zone of fatal harm to ensure his
primary targets’ death. Accordingly, we conclude that the kill
zone instruction was error under the circumstances of this case.
The People assert that even if the kill zone instruction was
erroneous, it was harmless beyond a reasonable doubt. We
disagree.
To determine whether an erroneous kill zone instruction
was prejudicial and requires reversal, we examine the entire
record and ask “ ‘whether it is clear beyond a reasonable doubt
that a rational jury would have rendered the same verdict absent
the error.’ ” (People v. Canizales, supra, 7 Cal.5th at p. 615.)
Considering the evidence regarding the shooting, the prosecutor’s
argument, and the jury’s verdict, we conclude that the error was
not harmless beyond a reasonable doubt.
There is no evidence that Perez specifically intended to kill
Silvia U., Silvia B., and Pedro B. The record shows that Perez
shot at Candler and Oliver as they ran down Compton Boulevard
and happened to hit the vehicles as they passed by or stopped for
a red light. There is no evidence that Perez targeted any of the
23
vehicles or that he was aware of their occupants. The People
contend that there was evidence in the record to suggest Perez
specifically intended to kill the occupants of Silvia U.’s vehicle
based on Fuentes’s testimony that she heard gunshots and saw
Silvia U.’s truck cross in front of her, then saw a Black man with
a gun get in the passenger side of the vehicle. The People further
contend that from Fuentes’s testimony, the jury could reasonably
infer that Perez targeted Silvia U.’s vehicle because he believed
that Silvia U. was an associate of Oliver and Candler trying to
pick them up. The People’s contention, however, is unsupported
by the record. There is no evidence that Perez targeted Oliver
and Candler as they entered Silvia U.’s vehicle. The evidence
shows that, by the time Oliver approached Silvia U. for
assistance, she had already turned onto Atlantic Avenue and
pulled over because she panicked after her vehicle was struck by
bullets. Oliver stated that he heard gunshots as he ran up
Compton Boulevard toward Atlantic Avenue, not when he was
near or entering Silvia U.’s vehicle. Further, by the time Candler
ran in the direction where Silvia U.’s vehicle had stopped and
picked up Oliver, Perez and his group were running back towards
LMG’s parking lot. Thus, there was insufficient evidence that
Perez intended to kill Silvia U., Silvia B., and Pedro B.
Moreover, the prosecutor’s closing argument shows that she
relied exclusively on the kill zone theory to convict Perez in
counts 3, 4 and 5. While the People are correct that the
attempted voluntary manslaughter instructions did not mention
the kill zone theory, the jury was instructed that it could find
that Perez intended to kill Silvia U., Silvia B., and Pedro B. by
intending to kill everyone in a particular zone. Because there
was no evidence of Perez’s specific intent to kill the occupants of
24
Silvia U.’s vehicle, the jury must have accepted the prosecution’s
theory that the intent to kill was established by Perez’s intent to
create a fatal zone of harm around Candler and Oliver when he
fired one to two shots that struck Silvia U.’s vehicle. Accordingly,
the trial court’s kill zone instruction amounted to prejudicial
error and the attempted voluntary manslaughter convictions in
counts 3, 4, and 5 must be reversed.9
Additionally, we must decide whether the prosecution may
retry these counts on remand. We conclude that it may not. If
reversal is required for instructional error but substantial
evidence supports the verdict, double jeopardy does not bar
retrial. (People v. Hallock (1989) 208 Cal.App.3d 595, 607.)
However, a reversal based on the insufficiency of the evidence
constitutes an acquittal and bars retrial. (People v. Seel (2004)
34 Cal.4th 535, 544.) Because we find there was insufficient
evidence that Perez specifically intended to kill Silvia U., Silvia
B., and Pedro B., we conclude that double jeopardy bars retrial of
counts 3, 4, and 5.
III. Rosas’s and Sanchez’s convictions for attempted
murder must be reversed.
Sanchez and Rosas argue that their attempted murder
convictions must be vacated and redesignated as violations of
disturbing the peace because the jury was instructed on the
natural and probable consequences theory of aiding and abetting,
which was invalidated by Senate Bill No. 775. The People agree
9 Because we are reversing the attempted voluntary
manslaughter counts against Perez, we do not address his
remaining arguments related to those convictions, specifically,
whether his sentence for attempted voluntary manslaughter in
count 5 should have been stayed pursuant to section 654.
25
that the attempted murder counts must be reversed, however,
they assert that we should remand the matter to give the
prosecution the opportunity to retry counts 1 and 2.
Senate Bill No. 1437 amended the law of accomplice
liability for murder by amending the felony murder rule and the
natural and probable consequences doctrine. (People v. Gentile
(2020) 10 Cal.5th 830, 842.)
Senate Bill No. 1437 also added section 1170.95, which
created a procedure by which a person convicted of felony murder
or murder under a natural and probable consequences theory
could apply to have his or her murder conviction vacated and be
resentenced on any remaining counts. (§ 1170.95, subd. (a).)
Pursuant to section 1170.95, an offender must file a petition
averring that: “(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine. . . . [¶] (2) The
petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could be convicted for first degree or second degree
murder. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subds. (a)(1)–(3).)
If the petitioner makes a prima facie showing that he falls
within the provisions of section 1170.95, the court issues an order
to show cause. (§ 1170.95, subd. (c).) The court then holds a
hearing to determine whether to vacate the murder conviction,
recall the sentence, and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) The burden of proof
is on the prosecution “to prove, beyond a reasonable doubt, that
26
the petitioner is ineligible for resentencing. If the prosecution
fails to sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining
charges. The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens.” (§ 1170.95, subd. (d)(3).) In People v.
Gentile, supra, 10 Cal.5th at page 855, our Supreme Court held
that the section 1170.95 petitioning process was the exclusive
mechanism for seeking retroactive relief for those defendants who
were convicted under a natural and probable consequences
theory of murder regardless of whether a sentence was final.
Senate Bill No. 775 (2021–2022 Reg. Sess.), which took
effect on January 1, 2022, amended the section 1170.95 petition
process to include individuals convicted of “attempted murder
under the natural and probable consequences doctrine.” (Stats.
2021, ch. 551, § 2.) It further allows offenders to challenge their
convictions that come under the purview of section 1170.95 on
direct appeal. (§ 1170.95, subd. (g).)
The parties agree that the trial court erred by instructing
the jury on the natural and probable consequences doctrine with
respect to the attempted murder charges. Moreover, they agree
that Senate Bill No. 775 applies to this case because Rosas and
Sanchez will not have exhausted their appeal rights from their
judgments of conviction and sentence before January 1, 2022
when the law became effective. (See In re Estrada (1965)
63 Cal.2d 740, 744–745 [absent evidence of contrary legislative
intent, we infer Legislature intended ameliorative criminal
statutes to apply to all cases not final when statutes become
effective].) The parties disagree, however, as to the appropriate
27
remedy. Rosas and Sanchez assert that we must reverse their
convictions and redesignate their attempted murder convictions
to the uncharged target offense of disturbing the peace.
Senate Bill No. 775 was silent on what the appropriate
remedy is for a defendant who successfully challenges the
validity of his conviction on direct appeal. Thus, it is unclear
whether we should find the evidence insufficient and vacate the
murder conviction or whether we must find the evidence
insufficient and remand the matter to the trial court to allow the
prosecution to offer new or additional evidence to meet its burden
to prove beyond a reasonable doubt that the defendants are guilty
under a still valid theory of murder. Section 1170.95,
subdivision (d)(3) allows both parties to produce additional
evidence and gives the prosecution an opportunity to establish a
valid theory of murder, such as direct aiding and abetting implied
or express malice murder. While the Legislature amended both
subdivisions (d)(3) and (g), it did not state that vacation of the
conviction on appeal without a subdivision (d)(3) hearing is the
appropriate remedy.
Here, we conclude that reversing the convictions and
remanding the matter to give the prosecution the opportunity to
retry the attempted murder counts against Sanchez and Rosas is
appropriate. The statutes clearly contemplate an opportunity for
the prosecution to present new or additional evidence to show
that defendants can still be convicted under a valid theory of
aiding and abetting. Moreover, double jeopardy principles do not
forbid retrial here even though the prosecutor acknowledged at
trial that there was insufficient evidence to support a direct
aiding and abetting theory. Where the prosecution makes its
case under the law as it stood at trial, double jeopardy is not
28
implicated as it would otherwise be where there is insufficient
evidence. (People v. Shirley (1982) 31 Cal.3d 18, 71; see Burks v.
United States (1978) 437 U.S. 1, 11–15.) Thus, we reverse the
attempted murder counts as to Sanchez and Rosas and direct the
trial court to allow the prosecutor to retry those counts based on
a currently valid theory.
IV. Sanchez’s and Rosas’s convictions for shooting at an
occupied motor vehicle are supported by substantial
evidence.
Although we conclude that Rosas’s and Sanchez’s
convictions for attempted murder must be reversed because they
were based on the now invalid theory of the natural and probable
consequences doctrine as applied to attempted murder, we must
still address their contentions that their convictions for shooting
at an occupied motor vehicle, which were based on the same
theory of aiding and abetting, are supported by substantial
evidence. We conclude that they are.
A. Additional background
The prosecution’s theory of guilt in counts 6, 7, and 8 as to
Sanchez and Rosas was based on the natural and probable
consequences theory of aiding and abetting the uncharged target
offense of disturbing the peace by unlawfully fighting or
challenging someone to fight in a public place (§ 415, subd. (1)).
The jury was instructed with CALCRIM No. 403, which
read in part: “To prove that the defendant is guilty of
[a]ttempted [m]urder or [s]hooting [a]t [an] [o]ccupied [m]otor
[v]ehicle, the People must prove that: [¶] 1. The defendant is
guilty of [d]isturbing the [p]eace: [f]ighting or [c]hallenging
[s]omeone to a [f]ight; [¶] 2. During the commission of
[d]isturbing the [p]eace: [f]ighting or [c]hallenging [s]omeone to a
29
[f]ight, a co-participant in that crime committed the crime of
[a]ttempted [m]urder or [s]hooting [a]t [an] [o]ccupied [m]otor
[v]ehicle; [¶] AND [¶] 3. Under all of the circumstances, a
reasonable person in the defendant’s position would have known
that the commission of the [a]ttempted [m]urder or [s]hooting [a]t
[an] [o]ccupied [m]otor [v]ehicle was a natural and probable
consequence of the commission of [d]isturbing the [p]eace:
[f]ighting or [c]hallenging [s]omeone to a [f]ight.” For the
uncharged target offense of disturbing the peace, the trial court
instructed the jury with CALCRIM No. 2688 as follows: “The
defendant is charged with disturbing the peace in violation
of . . . section 415(1). [¶] To prove that the defendant is guilty of
this crime, the People must prove that: [¶] 1. The defendant
willfully and unlawfully fought or challenged someone to fight;
[¶] 2. The defendant and the other person were in a public place
when the fight occurred or the challenge was made; [¶] 3. The
defendant did not act in self-defense or in defense of someone
else. [¶] Someone commits an act willfully when he or she does
it willingly or on purpose.”
B. Applicable law
“Under California law, a person who aids and abets a
confederate in the commission of a criminal act is liable not only
for that crime (the target crime), but also for any other offense
(nontarget crime) committed by the confederate as a ‘natural and
probable consequence’ of the crime originally aided and abetted.”
(People v. Prettyman (1996) 14 Cal.4th 248, 254.) To convict a
defendant of a nontarget crime as an aider and abettor under the
natural and probable consequences doctrine, the prosecution
must show that the defendant “(1) with knowledge of the
confederate’s unlawful purpose; and (2) with the intent of
30
committing, encouraging, or facilitating the commission of any
target crime(s); (3) aided, promoted, encouraged, or instigated the
commission of the target crime(s). The jury must also determine
whether (4) the defendant’s confederate committed an offense
other than the target crime(s); and whether (5) the offense
committed by the confederate was a natural and probable
consequence of the target crime(s) that the defendant encouraged
or facilitated.” (Id. at p. 271.)
“A nontarget offense is a ‘ “natural and probable
consequence” ’ of the target offense if, judged objectively, the
additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor
actually foresaw the nontarget offense. [Citation.] Rather,
liability ‘ “is measured by whether a reasonable person in the
defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the
act aided and abetted.” ’ [Citation.] Reasonable foreseeability ‘is
a factual issue to be resolved by the jury.’ ” (People v. Chiu (2014)
59 Cal.4th 155, 161–162.)
As stated above, we review a challenge to the sufficiency of
the evidence by examining the whole record in the light most
favorable to the judgment to determine whether there is
substantial evidence. (People v. Alexander (2010) 49 Cal.4th 846,
917.)
C. Analysis
Sanchez and Rosas argue that substantial evidence does
not support their convictions for shooting at an occupied motor
vehicle under a natural and probable consequences theory of
aiding and abetting because Perez was not a coparticipant in the
uncharged target offense of disturbing the peace and shooting at
31
an occupied vehicle was not a foreseeable consequence of
disturbing the peace. Rosas argues separately that there is
insufficient evidence that he participated in the fight. These
contentions are without merit.
First, there is substantial evidence that Perez was a co-
participant in the fight. Although he was not involved in the
verbal altercation and the subsequent fist fight, he engaged in
the “maddogging” that led to the altercation, which the
prosecution’s gang expert testified could constitute a challenge to
fight. Specifically, when gang members of one race stare down
people of another race in their territory, this constitutes a gang
challenge. Candler testified that appellants’ group, including
Perez, stared at him and Oliver as they neared LMG. From this
evidence, the jury could infer that Perez’s initial conduct of
staring at Tyler and Oliver constituted an unlawful challenge to
fight.
Second, the shooting was a foreseeable consequence of
engaging in a gang-related fist fight. Courts have found that
gang-related fist fights are likely to escalate to more violent
confrontations involving weapons. (See, e.g., People v. Medina
(2009) 46 Cal.4th 913, 923 [shooting a reasonably foreseeable
consequence of the gang assault]; People v. Smith (2014)
60 Cal.4th 603, 619–620 [murder a foreseeable consequence from
gang-related assault or battery or disturbing the peace].) It is
immaterial that Perez did not have a gun when the fist fight
broke out or that Sanchez and Rosas were unaware that Perez
had a gun. “[P]rior knowledge that a fellow gang member is
armed is not necessary to support a defendant’s . . . conviction as
an aider and abettor.” (Medina, at p. 921.) Given the great
potential for escalating violence during gang confrontations, it is
32
not necessary that defendants specifically knew their fellow gang
member had a gun. (People v. Montes (1999) 74 Cal.App.4th
1050, 1056.) As such, there was substantial evidence from which
a jury could reasonably infer that appellants would have known
that the shooting was a foreseeable consequence of disturbing the
peace.
Third, we disagree with Rosas’s contention that he did not
participate in the target crime because he was acting in defense
of Cano and Sanchez. The surveillance video supports the
conclusion that Rosas was engaged in mutual combat as he
walked toward the fight and then joined himself. The jury was
free to reject his argument that he was acting in defense of
Sanchez and Cano.
V. The prosecutor did not misstate the law of attempted
murder.
Perez contends that the prosecutor committed misconduct
during closing argument by misstating the law on attempted
murder as to Candler when she argued that pointing a gun at
Candler was sufficient evidence of Perez’s intent to kill.
A. Relevant proceedings
During closing argument, the prosecutor argued counts 1
and 2 for the attempted murders of Tyler and Candler as follows:
“Let’s start with attempted murder. There[ ] [are] two
elements . . . [d]efendant committed at least one direct but
ineffective step towards killing another person. So it’s a step.
You do something towards killing another person. And when you
do the step you had the intent to kill. He—as in the defendant—
intended to kill that person. So how do we know that in this
case? Perez pointed a gun at Danny and Tyler as they ran away.
We know that. You see it on the video. He lifts up the gun. I
33
don’t think he even gets it past this point, and they run. Their
backs are towards him, and he points it. Now, I don’t know if he
got a shot off in that first moment because the cartridge casings
are where he was standing later in the video. But even just the
mere pointing that gun is a direct but ineffective step towards
killing another person. And why is that? Because we all know
that guns are used to kill. So when you point a gun at another
person, you’re telling the world you intend to kill them. [¶] Tyler
ran into the street. He’s by three, occupied cars. That’s when we
know for certain now defendant Perez is in the street and how
he’s shooting. So that too goes to a direct but ineffective step
towards killing another person. And we know he had the intent
to kill. He fired off five shots. He hit all three cars that were in
the street at the time as Tyler is running beside those cars.
Defendant Perez is a pretty good shot.” Appellants’ trial counsel
did not object to the argument.
B. Applicable law
“ ‘[I]t is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the
prosecution from its prima facie obligation to overcome
reasonable doubt on all elements.’ ” (People v. Hill (1998)
17 Cal.4th 800, 829.)
Instances of misconduct require reversal under the federal
Constitution when they infect the trial with such unfairness as to
make the resulting conviction a denial of due process. (Darden v.
Wainwright (1986) 477 U.S. 168, 181.) Under California law, a
prosecutor who uses deceptive or reprehensible methods to
persuade the jury commits misconduct even when those actions
do not result in a fundamentally unfair trial. (People v. Alfaro
(2007) 41 Cal.4th 1277, 1328.) “When a claim of misconduct is
34
based on the prosecutor’s comments before the jury, ‘ “the
question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an
objectionable fashion.” ’ ” (People v. Friend (2009) 47 Cal.4th 1,
29.)
C. Analysis
Perez contends that the prosecutor misstated the law of
attempted murder by arguing that he could be guilty of
attempted murder by merely pointing the gun at Candler. Perez
argues that this statement relieved the prosecution of its burden
to prove that Perez took a direct but ineffective step towards
killing Candler.
As stated above, to be guilty of attempted murder, the
prosecution must prove that defendant intended to kill the victim
and took a direct but ineffectual step toward accomplishing the
intended killing. (People v. Ervine (2009) 47 Cal.4th 745, 785.) A
direct act is something more than mere preparation. (People v.
Superior Court (Decker) (2007) 41 Cal.4th 1, 12.) “Conduct that
qualifies as mere preparation and conduct that qualifies as a
direct but ineffectual act toward commission of the crime exist on
a continuum, ‘ “since all acts leading up to the ultimate
consummation of a crime are by their very nature
preparatory.” ’ ” (Ibid.) Whether acts are merely preparatory or
sufficiently close to the consummation of the crime to constitute
an attempt depends on the circumstances of the case. (Ibid.) Our
Supreme Court has recognized that “the law of attempts would be
largely without function if it could not be invoked until the
trigger was pulled, the blow struck, or the money seized.” (People
v. Dillon (1983) 34 Cal.3d 441, 455.)
35
As Perez acknowledges, there are certain circumstances
where pointing a gun at a victim will support an attempted
murder conviction. In People v. Ervine, supra, 47 Cal.4th 745 at
page 786 our Supreme Court concluded that sufficient evidence
supported a conviction for attempting to murder a third police
officer, because the evidence indicated that the defendant wanted
to kill all the officers at the scene but had undertaken a direct
but ineffectual act toward accomplishing the intended killing by
firing at the two officers who posed the most immediate threat.
In People v. Nelson (2011) 51 Cal.4th 198, 212, there was
sufficient evidence to convict defendant of attempted murder
even though he merely pointed his gun at the victim because he
only changed his target when he noticed a nearby patrol car and
decided to shoot at the officers who posed a more immediate
threat.
The circumstances in this case are such that Perez’s
pointing the gun at Candler was sufficient to show that he took
an ineffectual act toward Candler’s killing. The surveillance
video shows Perez point his gun at Candler and Oliver while they
were on the sidewalk and still close to other members of Perez’s
group. Perez lowered his gun to chase Candler and Oliver when
they ran behind a parked car and then into the street where
Perez fired five shots. Such evidence creates an inference that
Perez would have shot at Candler and Oliver in the first instance
but for his aim being blocked by cars as well as the presence of
his cohorts in his line of fire.10
10 Because we find that the prosecutor did not misstate the
law of attempted murder under the circumstances of this case, we
do not address the People’s forfeiture argument or Perez’s
36
VI. The gang enhancements must be vacated.
Appellants argue that Assembly Bill No. 333 requires that
we reverse the true findings on the gang allegations and remand
for resentencing pursuant to recently amended Penal Code
section 186.22 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 3,
4). The People agree.
Assembly Bill No. 333 took effect on January 1, 2022 and
amended section 186.22 by modifying the definitions of “pattern
of criminal activity” and “criminal street gang,” and it clarified
what is required to show an offense “benefit[s], promote[s],
further[s], or assist[s]” a criminal street gang. It also added
section 1109, which requires that, if requested by the defense, a
gang enhancement charged under section 186.22, subdivision (d)
must be tried separately and only after defendant’s guilt of the
underlying offense has been established.
“[P]ursuant to the new legislation, imposition of a gang
enhancement requires proof of the following additional
requirements with respect to predicate offenses: (1) the offenses
must have ‘commonly benefited a criminal street gang’ where the
‘common benefit . . . is more than reputational’; (2) the last
predicate offense must have occurred within three years of the
date of the currently charged offense; (3) the predicate offenses
must be committed on separate occasions or by two or more gang
members, as opposed to persons; and (4) the charged offense
cannot be used as a predicate offense.” (People v. Lopez (2021)
73 Cal.App.5th 327, 345.)
contention that his counsel was ineffective for failing to object to
the prosecutor’s statements.
37
The parties agree that Assembly Bill No. 333 applies
retroactively as the judgments are not yet final. In In re Estrada,
supra, 63 Cal.2d 740, our Supreme Court held that, absent
evidence to the contrary, the Legislature intended amendments
to statutes that reduce punishment for a particular crime to
apply to all whose judgments are not yet final on the
amendments’ operative date. Because Assembly Bill No. 333
increases the threshold for conviction of the section 186.22
offense and the imposition of the enhancement, the defendants
are entitled to the benefit of this change in the law. We therefore
vacate the gang-related enhancement findings and remand the
matter to give the People the opportunity to prove the
applicability of the enhancements under the amendments to
section 186.22.11
In addition to vacating the gang enhancements, appellants
also ask us to reverse the judgements in their entirety because
the trial was tainted by the fact that the underlying crimes and
the gang enhancements were tried together. They contend that
newly added section 1109, which requires a separate trial on the
gang allegations if requested by the defense, should be applied
retroactively. We disagree.
“ ‘No part of the Penal Code “is retroactive, unless expressly
so declared.” (§ 3.) “[T]he language of section 3 erects a strong
presumption of prospective operation, codifying the principle
that, ‘in the absence of an express retroactivity provision, a
statute will not be applied retroactively unless it is very clear
11 Becausewe are reversing the gang enhancements, we do
not address appellants’ remaining arguments related to those
allegations.
38
from extrinsic sources that the [lawmakers] . . . must have
intended a retroactive application.’ [Citations.] Accordingly, ‘ “a
statute that is ambiguous with respect to retroactive application
is construed . . . to be unambiguously prospective.” ’ ”’ ” (People
v. Cervantes (2020) 55 Cal.App.5th 927, 938.) However, “a
‘limited rule of retroactivity’ applies to newly enacted criminal
statutes that are intended to ameliorate criminal punishment.”
(Ibid.)
Although section 1109 is designed to minimize the
prejudicial impact of gang evidence, it does not reduce the
punishment or narrow the scope of the application of the gang
statute. We therefore conclude that the statute does not apply
retroactively to a trial that has already occurred. Appellants’
reliance on People v. Superior Court (Lara) (2018) 4 Cal.5th 299is not persuasive. There, our Supreme Court held that newly
enacted legislation prohibited prosecutors from charging
juveniles with crimes directly in adult court before holding a
transfer hearing. (Id. at p. 303.) It concluded that the new law
potentially reduced the punishment for a class of person, namely
juveniles, and should be applied retroactively. The court
reasoned that, although the law did not directly reduce the
punishment for a particular crime, it was nonetheless
ameliorative because a person convicted of serious crimes in
adult court could be punished by a long prison sentence whereas
juveniles are generally sentenced with rehabilitation as the goal.
(Id. at p. 306.) Unlike the new law in Lara, which was a new
procedural law that had the effect of potentially reducing the
punishment for a class of defendants, here, section 1109 is a
procedural statute that ensures a jury will not be prejudiced by
39
the introduction of evidence to support gang enhancement
allegations—it does not reduce the punishment imposed.
Accordingly, we conclude that section 1109 does not require
a reversal of the entire judgment.
VII. CALCRIM No. 3472 did not prevent the jury from
considering appellants’ claims of self-defense.
Appellants contend that the trial court’s instruction of
CALCRIM No. 3472 (right to self-defense: may not be contrived)
prevented the jury from considering their claims of self-defense
and defense of others if the jurors found that someone from
appellants’ group provoked the fight and Candler or Oliver
responded with deadly force or a threat of deadly force. We
disagree.
A. Relevant proceedings
The trial court instructed the jury on the right to self-
defense or defense of others as to attempted murder, and as to
shooting at an occupied motor vehicle and/or disturbing the
peace. The trial court also instructed the jury with CALCRIM
Nos. 3471 and 3472. CALCRIM No. 3471 covers the right to self-
defense in a mutual combat scenario or where the defendant is
the initial aggressor, and states in relevant part: “[I]f the
defendant used only non-deadly force, and the opponent
responded with such sudden and deadly force that the defendant
could not withdraw from the fight, then the defendant had the
right to defend himself with deadly force and was not required to
try to stop fighting, communicate the desire to stop to the
opponent, or give the opponent a chance to stop fighting.”
CALCRIM No. 3472 instructs that a “person does not have the
right to self-defense if he or she provokes a fight or quarrel with
the intent to create an excuse to use force.”
40
During the prosecutor’s closing argument, she discussed
CALCRIM No. 3472. She argued, “There’s an instruction you’re
going to get about mutual combat, and that’s exactly what’s going
on in this case. We can . . . sit here for weeks, try to figure out,
well, who really started the fight because the male Hispanics
were staring them down. He’s then saying what are you staring
at? . . . [M]utual combat. And you will get an instruction on that.
And what it says is a person who engages in mutual combat,
starts a fight, has a right to self-defense only if the defendant
actually and in good faith tried to stop fighting. Defendant
indicated by word or conduct to his opponent that he wanted to
stop fighting. Defendant gave his opponent [a] chance to stop
fighting. [¶] So that’s what we have in this case. You can spend
hours trying to figure out who started this fight, but it really boils
down to a mutual combat situation. They all mutually decided to
fight? And when I say all, I’m including [Candler], Oliver, Perez,
Sanchez, Rosas. Law says it can’t be contrived. The person does
not have the right to self-defense if he provokes his right to create
or use force. This is the problem with the staring. This is why
the staring is a big deal because you can’t stare someone down
then say, oh, my god, why did you come up to me, ask me why I
was staring at you. That’s the problem. All of them staring down
Tyler, Danny as they walk down the sidewalk. So as to Rosas
[and] Sanchez, this is the process you go through. Was the
shooting a natural and probable consequence of the gang fist
fight?”
B. Applicable law
We review whether a jury instruction correctly states the
law de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) We
also independently review whether an instruction effectively
41
directs an adverse finding to the defendant by removing an issue
from the consideration of the jury. (Ibid.)
Generally, the self-defense doctrine “ ‘ “may not be invoked
by a defendant who, through his own wrongful conduct (e.g., the
invitation of a physical attack or the commission of a felony), has
created circumstances under which his adversary’s attack or
pursuit is legally justified.” ’ ” (People v. Enraca (2012)
53 Cal.4th 735, 761.)
In People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez),
the court found that CALCRIM No. 3472 may be inappropriate in
circumstances where a defendant intended to provoke only a non-
deadly confrontation and the victim responds with deadly force.
There, defendants sought out rival gang members for a fight. (Id.
at p. 944.) A fight broke out and one of the rival gang members
raised his hand, holding an object that looked like a gun. (Id. at
p. 945.) One of the defendants pulled a gun from his pocket and
shot the rival gang member. (Ibid.) The trial court instructed
the jury on mutual combat and contrived self-defense using
CALCRIM Nos. 3471 and 3472. (Id. at pp. 945–946.) In closing
argument, the prosecutor invoked CALCRIM No. 3472 and
misstated self-defense law, arguing that a defendant’s intent to
provoke a fight of any kind barred any self-defense claim. (Id. at
pp. 943, 946–949.) The Ramirez court found that CALCRIM
No. 3472 in conjunction with the prosecutor’s argument deprived
the defendants of their self-defense theory because if the
defendants intended to start a nonlethal fight, they still had the
right to defend themselves when the victims responded with
lethal force. (Id. at pp. 947–948.)
Appellants make a similar argument here that CALCRIM
No. 3472 and the prosecutor’s closing argument precluded the
42
jury from accepting their theories of self-defense and defense of
others if the jury found that someone in appellants’ group
provoked the fight even if Candler or Oliver responded with
deadly force or a threat of deadly force by displaying a gun.
However, the prosecutor did not argue that appellants’
group provoked the fight or were the initial aggressors; rather,
she argued that the staring by appellants’ group led to a verbal
altercation and then everyone mutually agreed to fight. Her
argument did not negate CALCRIM No. 3471’s instruction that a
mutual combatant or an initial aggressor is still entitled to self-
defense “if the defendant used only non-deadly force, and the
opponent responded with such sudden and deadly force that the
defendant could not withdraw from the fight.” Indeed, defense
counsel argued that Candler and Oliver were armed and that
appellants acted in self-defense or in defense of each other.
Moreover, unlike the prosecutor in Ramirez, who repeatedly
emphasized that it did not matter that the original victim
escalated a nondeadly conflict to a deadly one, here, the
prosecutor referred to CALCRIM No. 3472 once in passing and
never stated that appellants forfeited their right to self-defense
by participating in a fist fight.
Accordingly, there was no instructional error and Ramirez
does not compel reversal.
VIII. The trial court properly refused to instruct the jury
with CALCRIM No. 917.
Appellants contend that the trial court erred when it
refused to give the first paragraph of CALCRIM No. 917 that
words and nonthreatening acts are insufficient to justify an
assault or battery.
A. Relevant proceedings
43
After the prosecutor’s closing argument Rosas’s counsel
requested the trial court to instruct with a portion of CALCRIM
No. 917, which states, “[w]ords[,] no matter how offensive[,] and
acts that are not threatening[,] are not enough to justify” an
assault or battery. Rosas asserted that “[i]nsulting words are not
a defense because she’s arguing here they’re maddogging him; so
it’s a mutual combat. This is not—I mean, she can use that
argument, but it cannot be somebody is maddogging you, you can
throw punches. That is something we should be able to argue.”
The trial court denied the request, noting that the instruction
only applied to battery or assault and that there was no sua
sponte duty to give it. The trial court also noted that the jury
was instructed on self-defense and that the defendants were not
required to retreat thus the parties could argue whether
defendants were maddogging at all or whether maddogging was
sufficient to justify a response from Candler and Oliver, which
were factual questions for the jury.
B. Applicable law
A trial court must instruct the jury sua sponte on all
general principles of law that are connected to the facts and that
are necessary for the jury’s understanding of the case. (People v.
Hovarter (2008) 44 Cal.4th 983, 1021.) In addition, a defendant
has the right to an instruction that pinpoints the theory of the
defense. (Ibid.) However, the trial court may refuse an
instruction “if it incorrectly states the law, is argumentative,
duplicative, or potentially confusing [citation], or if it is not
supported by substantial evidence.” (People v. Moon (2005)
37 Cal.4th 1, 30.) The trial court’s duty to give a pinpoint
instruction only extends to instances where the instruction
“would not be readily apparent to the jury from the remaining
44
instructions.” (People v. Bolden (2002) 29 Cal.4th 515, 558–559.)
“In determining the correctness of jury instructions, we consider
the instructions as a whole.” (People v. Carrasco (2006)
137 Cal.App.4th 1050, 1061.)
C. Analysis
Here, the trial court properly refused to give the first
paragraph of CALCRIM No. 917 as it would have been confusing
to the jury. The defense wanted to use the instruction to argue
that Candler could not throw punches just because someone was
“maddogging” him. However, as the trial court correctly pointed
out, the instruction applied to cases where a defendant was
charged with assault and battery. Contrastingly, here, the
prosecution’s theory of the case was that appellants’ group along
with Candler and Oliver engaged in mutual combat. Whether
Candler was justified in his actions was irrelevant. The issue
was whether appellants engaged in fighting or challenged
someone to fight.
IX. Admission of Detective Sumner’s testimony was not
error.
Appellants contend that the admission of the prosecution’s
gang expert’s testimony violated California hearsay law and their
Sixth Amendment right of confrontation as articulated by our
Supreme Court’s decision in Sanchez, supra, 63 Cal.4th 665.
Appellants assert that Detective Sumner’s testimony that
gang members commonly come to LMG because they know that is
a place other gang members will visit, they seek to harass other
gang members at liquor stores, a gang fist fight will escalate to a
gang member retrieving a weapon, and a gang rule is to be armed
with a gun should not have been presented to the jury. We
45
conclude that this testimony did not violate the principles
articulated in Sanchez.
A. Applicable law
The Sixth Amendment guarantees a defendant’s right to be
confronted by the witness against him. (U.S. Const., 6th Amend.;
Sanchez, supra, 63 Cal.4th at p. 679.) Generally, the Sixth
Amendment bars admission at trial of a testimonial out-of-court
statement offered for its truth against a criminal defendant,
unless the maker of the statement is unavailable to testify, and
the defendant had a prior opportunity for cross-examination.
(Crawford v. Washington (2004) 541 U.S. 36, 68.)
In Sanchez, supra, 63 Cal.4th 665 the defendant was
charged with drug and firearm offenses and active participation
in a street gang. The prosecution’s gang expert relied upon
various documents, including a STEP notice,12 a field
identification card, and police reports. (Id. at pp. 671–673.)
Based on the documents, the expert opined that the defendant
was a member of a gang, and the charged crimes benefitted the
gang. (Id. at p. 673.) The expert had never met the defendant
and had not been present when the STEP notice was issued or
during any of the defendant’s other police contacts. (Ibid.)
Sanchez held “the case-specific statements related by the
prosecution expert concerning defendant’s gang membership
constituted inadmissible hearsay under California law.” (Id. at
p. 670.) “They were recited by the expert, who presented them as
12 STEP notices inform individuals that he or she is
associating with a known gang and that if the individual commits
certain crimes with gang members, he or she may face increased
penalties.
46
true statements of fact, without the requisite independent proof.”
(Ibid.)
Nonetheless, Sanchez, supra, 63 Cal.4th at pages 676 to
677 did not preclude experts from testifying about general
background information or the use of hypothetical questions, in
which an examiner could ask an expert to assume certain case-
specific facts for which there was independent competent
evidence. Further, an “expert may still rely on hearsay in
forming an opinion, and may tell the jury in general terms that he
did so. Because the jury must independently evaluate the
probative value of an expert’s testimony, Evidence Code section
802 properly allows an expert to relate generally the kind and
source of the ‘matter’ upon which his opinion rests.” (Id. at
pp. 685–686.) “Gang experts, like all others, can rely on
background information accepted in their field of expertise under
the traditional latitude given by the Evidence Code. They can
rely on information within their personal knowledge, and they
can give an opinion based on a hypothetical including case-
specific facts that are properly proven. They may also rely on
nontestimonial hearsay properly admitted under a statutory
hearsay exception. What they cannot do is present, as facts, the
content of testimonial hearsay statements.” (Id. at p. 685.)
B. Analysis
Here, the admission of Detective Sumner’s statements was
not error under Sanchez. First, his testimony that Compton
Varrio Segundos members frequented LMG was based on his
personal knowledge of handling calls at that location when he
was still a patrol deputy. A gang expert’s testimony that is based
on personal knowledge is permissible under Sanchez. (People v.
Iraheta (2017) 14 Cal.App.5th 1228, 1248.) Detective Sumner’s
47
testimony that gang members hang out at locations like liquor
stores within their territory related to gangs generally, not
specifically to Compton Varrio Segundos or LMG. His testimony
that gangs have rules that require someone to be armed when
members are hanging out on the border of their territory or
where confrontations are likely was also about gangs generally
and not case specific. His testimony that violence escalates faster
in gang-related fist fights because someone will retrieve a weapon
related to general background information about gang behavior
and was also permissible under Sanchez. Appellants’ contention
that Detective Sumner’s testimony related directly to their intent
is not supported by the record. As discussed above, the
detective’s testimony that Compton Varrio Segundo members
frequented LMG was based on his personal knowledge and his
remaining testimony concerned background information about
general gang conduct and behavior. Accordingly, we find no error
under Sanchez.
X. There was no Doyle error.
Appellants contend we must reverse their convictions on all
counts because the prosecutor committed Doyle error by
commenting on Perez’s postarrest silence. We disagree.
A. Relevant proceedings
At trial, Perez testified that he fired multiple shots after
seeing Oliver point a gun at him and his friends, fearing they
would be shot.
During the prosecutor’s cross-examination of Perez, the
following colloquy occurred:
“Q. So some of your testimony yesterday and today, you
shot multiple times into the street because you were in fear for
your safety and the safety of your homies, right?
48
“A. Safety of my friends. Yes.
“Q. And yet this is the first time you’ve ever told anyone
from law enforcement your story?
“A. Yes.
“Q. You didn’t testify to this at the preliminary hearing,
right?
“A. No.
“Q. So you waited a year and a half, three weeks into this
trial, almost thirty witnesses, listened to all the evidence, looked
at all the exhibits, and now you’re here to tell us that you were so
in fear you had to shoot, right?
“A. Yes.”
During a sidebar conference, the trial court cautioned the
prosecutor about Doyle error and appellants moved for a mistrial.
The trial court denied the motions but stated that it would strike
Perez’s responses and admonish the jurors that Perez had no
obligation to testify or present any evidence at any time during
the course of legal proceedings.
The trial court then admonished the jury as follows:
“[L]adies and gentlemen of the jury, just let me indicate to you I
sustained the objection to the last two questions in regards to
when Mr. Perez testified or told a story or talked because, as
we’ve said, there’s no burden on defense to testify, to produce any
witness, to put on a defense. That includes at the preliminary
hearing or even here. So there was no requirement, obligation on
his part. So just disregard those answers. Treat them as though
you had never heard of them. Okay. Everybody understand
that? Can you do that?” The jurors indicated that they
understood the trial court’s admonishment.
49
B. Applicable law and analysis
In Doyle, supra, 426 U.S. at page 619, the United States
Supreme Court held that a prosecutor violates the federal due
process clause by using a defendant’s postarrest, post-Miranda13
silence to impeach his or her exculpatory story told for the first
time at trial. A Doyle violation has two components: (1) the
prosecutor makes use of a defendant’s postarrest silence for
impeachment purposes and (2) the trial court permits that use
thus conveying the unmistakable impression that what the
prosecution is doing is legitimate. (Greer v. Miller (1987)
483 U.S. 756, 761–764.)
Here, the record shows that the trial court took immediate
action when the prosecutor asked Perez about his postarrest
silence by striking the answers, telling the jury to not consider
those answers, and explaining that Perez had no obligation to
testify or speak during the course of legal proceedings. The trial
court clearly gave its disapproval of the prosecutor’s questions
and in no way gave the impression that the prosecutor’s inquiry
was legitimate. The prosecutor made no further mention of
Perez’s silence, and the trial court did not permit the prosecutor
to make use of Perez’s postarrest silence for impeachment
purposes. Accordingly, there was no Doyle error.
XI. The prosecutor did not make disparaging remarks
about Rosas’s trial counsel.
Rosas contends that the prosecutor committed misconduct
during her examination of Oliver by disparaging his counsel and
implying she had deceived Oliver.
A. Relevant proceedings
13 Miranda v. Arizona (1966) 384 U.S. 436.
50
On direct examination, Oliver testified that he was not a
member of a gang on the day of the shooting and that he had
never been a gang member. During cross-examination of Oliver,
Rosas’s counsel asked him about the first time that she tried to
contact him.
“Q. A few months ago I tried to talk to you, right?
“A. Yes.
“Q. And you refused to talk to me, right?
“A. No.
“Q. You wouldn’t talk with me unless the prosecutor was
present, right?
“A. I told you I felt uncomfortable without the prosecutor
there. Yes.
“Q. The reason you were uncomfortable is because you
knew you had already lied, right?
“A. No. I knew because I just wasn’t familiar with
anything, and I wasn’t going to let anybody try to swindle me.
“Q. Right. But I introduced myself to you, right?
“A. Yes, ma’am.
“Q. And you had already been in court and you knew I
represented one of the guys charged in this case, right?
“A. That was the same day. Yes. First day.
“Q. And you never met me before, right?
“A. No.
“Q. So I never tried to swindle you in the past, right?
“A. No.”
During recross, she asked Oliver why he did not contact the
police after the shooting.
“Q. The reason you didn’t call the cops is—well, let me
back up. You’d been shot at that day, right?
51
“A. Yes.
“Q. And according to you, you had done nothing to
instigate this shooting, right?
“A. Right.
“Q. So you didn’t call the cops because what’s the point,
right?
“A. Right.
“Q. Because as a gang member, you know, you don’t call
the cops when you’re shot at. You just take care of it personally
amongst the gangs yourself, right?
“A. I guess so.
“Q. You guess so. Thank you.”
On further redirect, the prosecutor asked Oliver about his
interaction with Rosas’s counsel.
“Q. The female defense attorney asked you, you know,
why you didn’t call the police. She said something along the lines
because as a gang member, you know, that rule you don’t talk to
the police. Did you understand that question to mean that you’re
a gang member?
“A. That’s how that felt, but I didn’t understand it
because I’m not a gang member. That’s why I just said it was no
point for me to call because it was done.
“Q. So do you feel like you just got swindled?
“A. Yeah. A little bit.”
The following exchange between Rosas’s counsel and Oliver
took place just before the trial court recessed until the next day.
“Q. Just like how you swindled all of us right now?
“A. Um-mm.
“Q. Thank you. [¶] No further questions.”
52
The following day, Rosas’s counsel moved for a mistrial
based on prosecutorial misconduct. She argued that the
prosecutor’s questioning implied that she had “swindled” Oliver
and thus was “swindling the jurors.”
The prosecutor noted that counsel had used the “same
verbiage” on further recross examination instead of objecting.
The trial court denied the mistrial motion, finding no
prosecutorial misconduct and that it would instruct the jurors
that what the attorneys say during the course of their
questioning was not evidence.
B. Applicable law
A prosecutor cannot attack the integrity of or cast
aspersions on defense counsel. (People v. Sandoval (1992)
4 Cal.4th 155, 183–184.) While counsel have broad discretion in
discussing the legal and factual merits of a case, personal attacks
on the integrity of opposing counsel are prohibited. (People v.
Spector (2011) 194 Cal.App.4th 1335, 1405.) If the prosecutor’s
comments create the impression that defense counsel is
attempting to deceive the jury, that is prosecutorial misconduct.
(Ibid.) “On the other hand, ‘[a]n argument which does no more
than point out that the defense is attempting to confuse the
issues and urges the jury to focus on what the prosecution
believes is the relevant evidence is not improper.’ ” (Ibid.)
C. Analysis
Here, it is clear that the prosecutor was not attacking
defense counsel’s integrity. Rather, the prosecutor was simply
using language Oliver had initially used and adopted by Rosas’s
counsel in explaining why he was reluctant to speak with Rosas’s
counsel without the prosecutor present and to highlight the prior
question that assumed Oliver was a gang member even after he
53
repeatedly denied that fact. The prosecutor never accused
Rosas’s counsel of swindling Oliver or implied that counsel had
sought to deceive the jury. There was no misconduct.
XII. Perez’s contention that the abstract of judgment
needs be corrected to reflect a possibility of parole
with a 15-year minimum parole eligibility is moot.
Perez contends that his abstract of judgment must be
corrected to reflect the sentence for counts 1 and 2 is life with the
possibility of parole with a 15-year minimum parole eligibility.
Perez was convicted in counts 1 and 2 of attempted willful,
deliberate and premeditated murder, and the jury found the
firearm and gang allegations to be true. The trial court
sentenced Perez to 40 years to life, consisting of 15 years to life,
pursuant to section 186.22, subdivision (b)(5), plus 25 years to life
for the gun enhancement pursuant to section 12022.53,
subdivision (d) for each count. However, the abstract of judgment
indicates that Perez was sentenced to 15 years to life pursuant to
section 186.22, subdivision (b)(1)(C).
Perez contends that his sentences on counts 1 and 2 should
be corrected in the abstract of judgment and the minute order to
make clear that he was sentenced to life with a 15-year minimum
parole eligibility for the gang enhancement pursuant to section
186.22, subdivision (b)(5) plus 25 years to life for the gun
enhancement.
Because we are vacating appellants’ sentences for the gang
enhancements, this argument is moot.
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XIII. Remand is not required for the court to consider its
discretion under Morrison.
A. Relevant background
On counts 1, 2, 6, 7, and 8, the jury found true the firearm
allegations under section 12022.53, subdivisions (b), (c), and (d),
as to Perez.
In Perez’s sentencing memorandum, Perez reminded the
trial court that it had discretion to strike or dismiss
enhancements under sections 1385, 186.22, subdivision (g),
12022.53, subdivision (h), 12022.5, subdivision (c), and California
Rules of Court, rule 4.420(c).
Before sentencing, the trial court commented, “I’ll just
point out for the record how tragic this case really was. It really
was totally an avoidable situation and really reflected
unnecessary violence and senseless shooting on the part
particularly of Mr. Perez.” Further, the trial court noted that
Perez “brought a gun to a fist fight. He did that. And he fired
multiple times. And he chased after the victims. So in this
instance certainly the victims were particularly vulnerable, and
particularly in the way Mr. Perez carried out the offense
indicates planning, sophistication, and professionalism.”
The trial court sentenced Perez to 120 years to life in prison
as follows: as to counts 1 and 2 (§§ 187, 664), the trial court
imposed consecutive terms of 15 years to life (§ 186.22,
subd. (b)(5)), plus 25 years to life for the gun enhancement
(§ 12022.53, subd. (d)) as to each count; and as to count 6 (§ 246),
the trial court imposed a consecutive term of 15 years to life, plus
25 years to life for the gun enhancement (§ 12022.53, subd. (d)).
Perez moved to strike the punishment for the 12022.53,
subdivision (d) gun enhancements, which the trial court denied.
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Neither the trial court nor Perez’s trial counsel discussed the
possibility of sentencing Perez to a lesser-included enhancement
on counts 1 and 2 or whether it would be appropriate to reduce
the punishment, rather than strike it completely.
B. Applicable law
Effective January 1, 2018, and before Perez was sentenced,
section 12022.53, subdivision (h), was amended in relevant part
to read: “The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.”
While section 12022.53, subdivision (h), as amended, authorized
a court to strike a section 12022.53, subdivision (d) enhancement
entirely and impose no additional punishment under
section 12022.53, the question remained whether the court could
also strike the section 12022.53, subdivision (d) enhancement and
then impose a lesser enhancement under section 12022.53,
subdivision (b) or section 12022.53, subdivision (c), even if the
lesser enhancements were not specifically charged in the
information or found true by the jury. (People v. Morrison (2019)
34 Cal.App.5th 217, 222–223 (Morrison).) Morrison held that a
“court had the discretion to impose an enhancement under
section 12022.53, subdivision (b) or (c) as a middle ground to a
lifetime enhancement under section 12022.53, subdivision (d), if
such an outcome was found to be in the interests of justice under
section 1385.” (Morrison, at p. 223.) Our Supreme Court
recently affirmed Morrison’s conclusion that courts had the
discretion to impose a lesser enhancement under section
12022.53, subdivisions (b) or (c), even when the section 12022.53,
subdivision (d) enhancement was not legally or factually
inapplicable. (People v. Tirado (2022) 12 Cal.5th 688, 697.)
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“ ‘Defendants are entitled to sentencing decisions made in
the exercise of the “informed discretion” of the sentencing court.’ ”
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) When a court
is unaware of the scope of its discretion, it cannot exercise that
informed discretion. (Ibid.) “In such circumstances, . . . the
appropriate remedy is to remand for resentencing unless the
record ‘clearly indicate[s]’ that the trial court would have reached
the same conclusion ‘even if it had been aware that it had such
discretion.’ ” (Ibid.) “Absent evidence to the contrary, we
presume that the trial court knew and applied the governing
law.” (Id. at p. 1390.) We do not presume the sentencing court
was unaware of its discretion simply because it failed to refer to
its alternative sentencing choices. (Ibid.)
C. Analysis
Perez argues the trial court was unaware of the scope of its
discretion because whether a court had discretion to impose a
lesser enhancement under amended section 12022.53 had been
decided only a few months prior to the hearing in Morrison,
supra, 34 Cal.App.5th 217.
We find Morrison inapplicable to this case. As stated
above, Morrison, supra, 34 Cal.App.5th at pages 222 to 223 held
that a trial court had discretion to strike a section 12022.53,
subdivision (d) enhancement and then impose a lesser
enhancement under section 12022.53, subdivisions (b) or (c), even
if the lesser enhancements were not specifically charged in the
information or found true by the jury. Here, Perez was charged
with the lesser enhancements under section 12022.53,
subdivisions (b) and (c), as well as the greater enhancement
under subdivision (d). The jury found each of those allegations
true. Thus, when Perez asked the trial court to strike the greater
57
enhancement, it was presumably aware that it could have
imposed one of the lesser enhancements, which were also charged
and proved, by striking the greater enhancement. (See People v.
Wang (2020) 46 Cal.App.5th 1055, 1090 [distinguishing Morrison
where all § 12022.53 enhancements were found true].) As such,
we reject Perez’s contention that the trial court was unaware of
the scope of its sentencing discretion.
Because we conclude that Morrison is inapposite, we also
reject Perez’s contention that his counsel was ineffective for
failing to apprise the trial court of its discretion to impose a
lesser enhancement under section 12022.53, subdivisions (c)
and (d).
XIV. Perez was entitled to an additional day of
presentence custody credit.
Perez contends that he is entitled to 909 days of
presentence custody credit, consisting of 791 actual days plus
118 days of local conduct credit. We agree.
Section 2900.5, subdivision (a), provides that a defendant is
entitled to receive full credit for actual confinement time prior to
the commencement of the sentence. “In all felony and
misdemeanor convictions, either by plea or by verdict, when the
defendant has been in custody, including, but not limited to, any
time spent in a jail . . . , all days of custody of the
defendant . . . shall be credited upon his or her term of
imprisonment.” (Ibid.)
At sentencing, Perez was awarded 790 days of actual credit
and 118 days of local conduct credit for a total of 908 days of
presentence custody credit. However, Perez was arrested on
June 7, 2017, and was sentenced on August 6, 2019. Based on
58
these dates, Perez is entitled to one additional day of presentence
custody credit for a total of 909 days.
While generally a defendant must seek correction of credits
in the trial court before the error may be raised on appeal, a
defendant may raise the issue directly in the appellate court first
where it is raised in addition to other non-credit issues for the
sake of judicial efficiency. (People v. Acosta (1996) 48 Cal.App.4th
411, 427.) An incorrect award of presentence custody credits is
an unauthorized sentence which may be corrected at any time.
(People v. Gisbert (2012) 205 Cal.App.4th 277, 282.) We shall,
therefore, order its correction.
XV. The abstracts of judgment and minute orders should
be corrected.
The parties agree that various errors in the abstracts of
judgment and minute orders must be corrected. Appellants
argue that the indeterminate sentences on counts 6, 7, and 8 and
the corresponding firearm enhancements should be reflected in
the indeterminate abstract of judgment, and not the determinate
abstract of judgment. The People also indicate that Perez’s
abstract of judgment and sentencing minute order should reflect
the trial court’s monetary orders regarding the trial court’s
imposition of fines and fees. Rosas contends, and the People
agree, that his abstract of judgment must be corrected to reflect
the jury’s findings that the gang enhancement as to count 9 was
not true.14 As such, we shall order the abstracts of judgment and
minute orders corrected to reflect the judgments.
14 Rosas
and Sanchez also contend that their abstracts of
judgment must be corrected to reflect the jury’s finding that the
attempted murders in counts 1 and 2 were not willful, deliberate,
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DISPOSITION
We reverse the judgments as to the gang enhancements for
all defendants and remand the matter to provide the prosecution
with the opportunity to retry the Penal Code section 186.22
enhancements under the law as amended by Assembly Bill
No. 333.
We affirm the judgment as to counts 1 and 2 against Luis
Julian Beltran Perez. We reverse the judgment as to counts 3, 4,
and 5 for voluntary attempted manslaughter against Perez and
conclude that double jeopardy bars retrial of those counts. The
trial court is directed to correct Perez’s abstract of judgment and
place the indeterminate sentences on counts 6, 7, and 8 and the
corresponding firearm enhancements on an indeterminate
abstract of judgment. The trial court is directed to modify Perez’s
judgment to reflect that Perez is entitled to an additional day of
presentence custody credit and modify Perez’s sentencing minute
order and abstract of judgment to reflect its imposition of fines
and fees.
We reverse the judgment as to counts 1 and 2 against
Edgar Manuel Rosas and remand the matter to provide the
prosecution with the opportunity to retry those causes of action
under a currently valid theory of aiding and abetting attempted
murder. We affirm the judgment as to counts 6, 7, and 8 against
Rosas. The trial court is directed to correct Rosas’s abstract of
judgment to reflect the jury’s finding that the gang allegation as
to count 9 was not true and place the indeterminate sentences on
or premeditated. Because we are reversing those counts, their
contention is moot.
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counts 6, 7, and 8 and the corresponding firearm enhancements
on an indeterminate abstract of judgment form.
We reverse counts 1 and 2 against Salvador Sanchez and
remand the matter to provide the prosecution with the
opportunity to retry those causes of action under a currently valid
theory of aiding and abetting attempted murder. We affirm the
judgment as to counts 6, 7, and 8 against Sanchez. The trial
court is directed to correct Sanchez’s abstracts of judgment and
place the indeterminate sentences on counts 6, 7, and 8 and the
corresponding firearm enhancements on an indeterminate
abstract of judgment form.
CERTIFIED FOR PARTIAL PUBLICATION.
VIRAMONTES, J.*
We concur:
LAVIN, Acting P. J. EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
61