People v. Mejia CA3 ( 2023 )

Filed 3/1/23 P. v. Mejia CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE, C093678
Plaintiff and Respondent, (Super. Ct. No. CRF14-
0000002-04)
v.
JESUS ALEXANDER MEJIA,
Defendant and Appellant.
We previously remanded defendant Jesus Alexander Mejia’s case for resentencing
after a jury found him guilty of five counts of attempted murder, five counts of assault
with a deadly weapon, one count of shooting at an occupied vehicle, and one count of
being an active participant in a criminal street gang (gang participation offense); and
found true multiple gun and gang enhancements. (People v. Mejia (July 30, 2019,
C081313) [nonpub. opn.] (Mejia).) Defendant now appeals following the resentencing
hearing contending that numerous newly enacted laws pertaining to the crimes he was
convicted of and the sentence he received retroactively apply to him and that his case
1
must be retried and/or he must be resentenced in light of those new laws. He also argues
the court committed instructional error at his trial.
We agree defendant’s attempted murder convictions must be reversed because of
the amendments to former Penal Code1 section 1170.95 (current section 1172.6)2 enacted
by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 10). We disagree
that reversal of the gang participation offense and gang enhancements is required because
of the amendment to section 186.22 and enactment of section 1109 by Assembly Bill
No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 4-5). Given these conclusions,
we do not address defendant’s sentencing claims or instructional error claim related to the
kill zone theory. Accordingly, we reverse defendant’s convictions for attempted murder.
We remand the matter to the trial court for further proceedings, at the end of which the
trial court shall conduct a full resentencing hearing applying newly enacted sentencing
legislation. (See People v. Buycks (2018) 5 Cal.5th 857, 893.)
FACTUAL AND PROCEDURAL BACKGROUND
The jury found defendant guilty of five counts of attempted murder, five counts of
assault with a deadly weapon, one count of shooting at an occupied vehicle, and one
count of gang participation. The jury also found that the attempted murders were not
willful, deliberate, and premeditated; that defendant committed all the offenses, other
than the gang participation offense, to benefit a criminal street gang; that defendant
willfully and unlawfully carried a firearm during the commission of a street gang crime in
connection with the attempted murders and assaults; that a principal committed the
1 Further undesignated section references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 as
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the
statute. Although defendant filed his petition under former section 1170.95, we cite the
current section 1172.6 throughout the remainder of this opinion.
2
attempted murders while discharging a gun for the benefit of a criminal street gang; that
defendant did not personally use a firearm; and that defendant did not personally inflict
great bodily injury. (Mejia, supra, C081313.)
Defendant’s convictions resulted from a drive-by shooting he committed with
Martin Gonzales, Javier Hernandez, and Christopher Hammonds against the principal
victim, Jonathan D., a Sureño gang member. (Mejia, supra, C081313.) On
December 31, 2013, Jonathan drove to a market with his girlfriend and three children.
Jonathan’s mother followed him in her own car with her boyfriend and grandson. When
Jonathan parked his car, his mother saw a car that followed them to the market drive
behind Jonathan’s car. When Jonathan got out of his car, he heard a gunshot. He ducked
behind his car door and heard more gunshots—four to five gunshots in total. Jonathan
had a gunshot wound to his wrist, a window of his car was shattered, and there were
bullet holes in his car. (Ibid.) There were conflicting accounts of the shooter’s identity,
but given the jury’s findings, it was not defendant. (Ibid.)
Defendant and his coparticipants were all members of the Varrio Linda Rifa subset
of the Norteño gang. (Mejia, supra, C081313.) Defendant admitted he had altercations
with Jonathan multiple times before December 31, 2013, because he was a Norteño
subset member while Jonathan was a Sureño gang member. He said people who
associated with Jonathan jumped defendant in late November or early December. (Ibid.)
Rap lyrics found in defendant’s jail cell tended to incriminate him in a shooting. (Ibid.)
Yuba County Sheriff’s Deputy Brandon Charter and Yuba County Sheriff’s
Detective Benjamin Martin testified as the prosecution’s gang experts. They explained
that the Norteño gang and the Sureño gang are rival gangs and that Varrio Linda Rifa is a
subset of the Norteño gang. Detective Martin described the symbols, hand signs, and
colors associated with Varrio Linda Rifa and other Norteño allied gangs. The experts
testified that they believed defendant was an active participant in the Norteño gang, as
were his coparticipants. Detective Martin’s opinion was based on defendant’s association
3
with admitted gang members and prior validations. At the time he was booked in jail,
defendant identified himself as a Norteño. He had Norteño-related tattoos on his chest
and wrist. He associated with and committed crimes with Norteños. Detective Martin
testified to his opinion that the market shooting was committed in association with
Norteño gang members and benefited the Norteño gang. (Mejia, supra, C081313.)
As for the predicate offenses, Detective Martin testified that multiple Norteño
subsets existed in Yuba County and they all worked together to commit crimes, such as
attempted murder, shooting from or at an occupied vehicle, possession of firearms,
assault with a deadly weapon, intimidation, and robbery. Detective Martin testified about
several specific offenses, including an attempted murder committed by Norteño gang
members in which they shot from a car at Sureño gang members they had just
encountered in a minimart. Enedina Soto, her brother Jonathan Bueno, Jesus Villareal,
and Alfonso Hernandez were involved in the offense. A complaint charging all of these
participants was admitted into evidence and provided that the crime occurred on April 20,
2013. Bueno pled no contest to a single count in an amended complaint, in which he was
the only named defendant.
Detective Martin also detailed another attempted murder occurring after an assault
by a group of Norteño gang members against a victim they believed was a rival gang
member based on the clothes the victim was wearing. After the assault was broken up by
bystanders, the group of Norteño gang members followed the victim’s car in their own
car and shot at the victim’s car multiple times.
Detective Martin also testified about multiple assault with deadly weapon offenses
involving Norteño gang members. He pointed to a “stabbing incident in the jail”
involving Norteño gang members attacking a nongang member who disrespected them, a
stabbing by a Norteño gang member against “a Sureño gang member in the Park Circle
area,” and a gang fight involving Norteño gang members in which brass knuckles were
used against a rival gang member. The Norteño gang members involved in the fight with
4
brass knuckles were James Chagolla, Juan Garcia, and Alex Garcia. A complaint
pertaining to an incident involving Chagolla and brass knuckles was admitted into
evidence and demonstrated the crime occurred on March 11, 2013. As a result of that
complaint, Chagolla pled no contest to assault by means of force likely to cause great
bodily injury and a gang participation offense. Chagolla had also visited defendant in jail
more than once, and when serving time together in jail on November 9, 2014, Chagolla,
defendant, and another Norteño gang member were involved in a fight against another
person about internal gang politics.
Detective Martin also pointed to a robbery spree where a group of Norteño gang
members stole a bike from a minor, assaulted the minor’s father, and assaulted/robbed a
man they encountered while fleeing. Finally, Detective Martin testified about David
Robinson, a validated Norteño and Crip gang member, who was encountered while
possessing a concealed, loaded firearm. Detective Martin testified that he considered
Robinson to be a member of a hybrid gang called the Northern Crips, which consists of
members from multiple gangs.
To Detective Martin, attacks on rival gang members benefit the Norteño gang
because the attacks strike fear in the rival gang and give the Norteño gang a perceived
higher status than the rival gang. Attacks on rival gang members also demonstrate to the
community the aggressor gang is to be feared and respected.
Following the jury’s verdicts, the trial court sentenced defendant to an aggregate
determinate term of 45 years plus an indeterminate term of 25 years to life. Among other
things, the trial court imposed a sentence of 25 years to life for the gun enhancement
attached to one of the attempted murders and six-year eight-month sentences for the
gun/gang enhancements attached to the other attempted murders. (Mejia, supra,
C081313.)
As a result of defendant’s first appeal, we remanded the matter so the trial court
could exercise its discretion whether to strike defendant’s gun enhancements under
5
legislation enacted after defendant’s conviction. (Mejia, supra, C081313.) On remand
the trial court decided to strike defendant’s gun enhancements to bring his sentence closer
in duration to his coparticipants’ sentences. Ultimately, the trial court sentenced
defendant to 23 years four months in prison. The trial court also considered defendant’s
petition for resentencing filed pursuant to section 1172.6. The trial court found defendant
ineligible for resentencing under that section because the plain meaning of the statute did
not provide relief to those convicted of attempted murder.
Defendant appeals following remand.
DISCUSSION
I
Defendant Is Entitled To Reversal Of His Attempted Murder Convictions
Defendant contends he is entitled to reversal of his attempted murder convictions
because the convictions were based on his aiding and abetting of a target felony, the
natural and probable consequences of which resulted in attempted murders. Defendant
argues this was a viable theory of attempted murder at the time of his trial but has since
become nonviable due to Senate Bill Nos. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) and 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551). The People argue
defendant’s claim is not cognizable on direct review because his convictions are final and
that, instead of addressing the issue on direct review, defendant must seek relief in a
resentencing petition pursuant to section 1172.6. We agree with defendant.
Importantly, defendant’s case is not final but still in the midst of the direct review
process. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [a judgment is not final until
the time for petitioning for a writ of certiorari in the United States Supreme Court has
passed, or such a petition, if filed, has been decided].) As such, section 1172.6,
subdivision (g) applies to defendant’s case. That provision provides: “A person
convicted of murder, attempted murder, or manslaughter whose conviction is not final
may challenge on direct appeal the validity of that conviction based on the changes made
6
to Sections 188 and 189 by Senate Bill [No.] 1437 (Chapter 1015 of the Statutes of
2018).” (See People v. Hola (2022) 77 Cal.App.5th 362, 370.)
Because the jury instructions regarding attempted murder at defendant’s trial
included an instruction on the natural and probable consequences doctrine, “we will treat
the instruction[s] as having been ‘legally erroneous at the time [they were] given’
([People v.] Gentile[ (2020)] 10 Cal.5th [830,] 851), and we will proceed to ‘assess
whether the error was harmless beyond a reasonable doubt’ under Chapman [v.
California (1967) 386 U.S. 18].” (People v. Birdsall (2022) 77 Cal.App.5th 859, 868,
fn. omitted.)
Here, the error was not harmless. The jury found that defendant did not act with
premeditation or deliberation and was not the actual shooter or the person who inflicted
great bodily injury. The jury was instructed on direct aider and abettor liability for
express malice attempted murder and the felony-murder rule predicated on defendant’s
participation in an assault with a deadly weapon, the natural and probable consequences
of which were that a death would result. During closing arguments, the prosecution
argued that defendant was guilty of attempted murder because the natural and probable
consequences of his conduct were that people could die. The prosecution did not argue
that defendant held the express intent to kill.
From the jury’s verdicts, the court’s instructions, and the prosecution’s argument,
we cannot say beyond a reasonable doubt that the jury convicted defendant of attempted
murder under an express malice theory or a still viable implied malice theory. Instead, it
appears the jury could have convicted defendant of attempted murder under a felony-
murder theory of liability. At the time of defendant’s trial, attempted murder under a
felony-murder theory was a valid theory of liability; not so after Senate Bill No. 775.
Accordingly, defendant’s convictions for attempted murder must be reversed. The
prosecution is afforded an opportunity to retry defendant on a still valid theory of
attempted murder. Because we reverse defendant’s attempted murder convictions, we do
7
not address defendant’s argument the trial court erred by instructing the jury with a kill
zone instruction that predated our Supreme Court’s clarification of the theory in People v.
Canizales (2019) 7 Cal.5th 591. We further do not address defendant’s arguments related
to recently enacted sentencing legislation because the trial court will necessarily
resentence defendant upon remand applying all applicable sentencing legislation then in
effect. (See People v. Buycks, supra, 5 Cal.5th at p. 893.)
II
Retrial Is Not Required In Light Of Newly Enacted Gang Legislation
Defendant argues his gang enhancements must be vacated and his gang
participation offense reversed because of recent amendments enacted by Assembly Bill
No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 4-5). We disagree.
A
Applicable Law
Section 186.22 provides for enhanced punishment when the defendant is convicted
of an enumerated felony committed “for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to promote, further, or
assist in criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) The section also
provides for a gang participation offense when the defendant “actively participates in a
criminal street gang with knowledge that its members engage in, or have engaged in, a
pattern of criminal gang activity, and who willfully promotes, furthers, or assists in
felonious criminal conduct by members of that gang . . . .” (§ 186.22, subd. (a).)
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 4)
amended section 186.22 in several fundamental ways. As relevant here, Assembly Bill
No. 333 “redefines ‘pattern of criminal gang activity’ to require that the last of the
predicate offenses ‘occurred within three years of the prior offense and within three years
of the date the current offense is alleged to have been committed,’ and that the predicate
offenses ‘were committed on separate occasions or by two or more members, the offenses
8
commonly benefited a criminal street gang, and the common benefit of the offenses is
more than reputational.’ ” (People v. Lopez (2021) 73 Cal.App.5th 327, 345.) In
addition, the currently charged offense cannot be used as a predicate offense under the
amendments made by Assembly Bill No. 333. (Ibid.)
Further, subdivision (g) of section 186.22 now defines the term “to benefit,
promote, further, or assist” a criminal street gang to mean “to provide a common benefit
to members of a gang where the common benefit is more than reputational,” which may
include “financial gain or motivation, retaliation, targeting a perceived or actual gang
rival, or intimidation or silencing of a potential current or previous witness or informant.”
Previously, proof of a reputational benefit to the gang would have sufficed. (People v.
Ramirez (2016) 244 Cal.App.4th 800, 819.)
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 5) also
added section 1109, which allows for a defendant charged with a gang enhancement
under section 186.22, subdivision (b) or (d) to request the enhancement be tried in a
separate phase of the trial. (§ 1109, subd. (a).) If a defendant is charged with a gang
participation offense (§ 186.22, subd. (a)), then the charge “shall be tried separately from
all other counts that do not otherwise require gang evidence as an element of the crime.
This charge may be tried in the same proceeding with an allegation of an enhancement
under subdivision (b) or (d) of Section 186.22.” (§ 1109, subd. (b).)
B
Sufficient Evidence Supports The Jury’s Gang Findings
Defendant contends the evidence was insufficient under the current gang statute to
prove that he was guilty of the gang participation offense and that he committed his other
offenses for the benefit of a criminal street gang. Specifically, defendant points to the
prosecution’s showing regarding the predicate offenses and argues the showing was
inadequate because the prosecution did not prove at least two members of defendant’s
gang committed each of the predicate offenses. Relatedly, defendant argues the jury was
9
erroneously instructed on the elements related to the predicate offenses, resulting in
prejudicial error. We disagree on all scores.
The parties agree the changes to section 186.22 apply retroactively to defendant
but disagree as to whether the evidence is sufficient under current law to sustain the
jury’s verdict and true findings. “In assessing a claim of insufficiency of evidence, the
reviewing court’s task is to review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence--that is, evidence that is
reasonable, credible, and of solid value--such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1,
11.) “The standard of review is the same where the prosecution relies primarily on
circumstantial evidence.” (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.) “ ‘An
appellate court must accept logical inferences that the [trier of fact] might have drawn
from the evidence even if the court would have concluded otherwise.’ ” (People v.
Halvorsen (2007) 42 Cal.4th 379, 419.) Before a verdict may be set aside for
insufficiency of the evidence, a party must demonstrate “ ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v.
Bolin (1998) 18 Cal.4th 297, 331.) The sufficiency of the evidence to support an
enhancement is reviewed using the same standard applied to a conviction. (People v.
Wilson (2008) 44 Cal.4th 758, 806.)
Defendant limits his insufficiency argument to the evidence supporting the
predicate offenses. He argues the evidence did not demonstrate that each predicate
offense was committed by two or more gang members. We note it is an open question
whether the current gang statute requires an alleged gang’s predicate offenses to have
been committed by at least two gang members, or whether those offenses could be found
based on individual acts committed on separate occasions. (Compare People v. Delgado
(2022) 74 Cal.App.5th 1067, 1088-1089 [“amended [§ 186.22,] subdivision (f)’s
requirement that gang members ‘collectively engage’ in a pattern of criminal gang
10
activity means the [prosecution was] required to prove that two or more gang members
committed each predicate offense in concert”] with People v. Clark (2022)
81 Cal.App.5th 133, 145-146 [pattern of “gang activity may be established by (1) two
gang members who separately committed crimes on different occasions, or (2) two gang
members who committed a crime together on a single occasion”], review granted Oct. 19,
2022, S275746.) We need not decide which interpretation is more persuasive because
sufficient evidence demonstrates that each predicate offense was committed by at least
two members of defendant’s gang.
Defendant points to the convictions involving Chagolla and Bueno as the
convictions underpinning the predicate offenses because those were the only offenses the
evidence demonstrates were committed within the timeframe required by section 186.22,
subdivision (e)(1). Defendant argues the conviction involving Chagolla’s use of brass
knuckles is insufficient because nothing outside the certified records of Chagolla’s
conviction demonstrated he committed the offense with another gang member. He
argues Detective Martin’s testimony providing for the presence of two fellow gang
members during the assault does not fill the gaps because Detective Martin did not link
his testimony to Chagolla’s record of conviction or provide a date of the assault he knew
of involving Chagolla and two gang members. Defendant’s argument goes to the weight
of the evidence and not its sufficiency. It is a reasonable inference that the assault
involving brass knuckles testified to by Detective Martin was the same 2013 assault
involving brass knuckles referred to in Chagolla’s record of conviction. We can readily
infer Detective Martin knew of Chagolla’s conduct because the conduct attracted police
attention, which then turned into prosecution, as is often the case once police scrutiny is
applied to felonious conduct. To the extent defendant argues now that Chagolla’s
conviction involves a different occasion than the incident testified to by Detective Martin,
it was incumbent upon him to cross-examine Detective Martin on that point and undercut
the reasonable inference established by the evidence.
11
Similarly, we can reasonably infer that the offense to which Bueno pled no contest
resulted from the shooting he committed with his sister and two other Norteño gang
members. The offenses for that incident were charged in the same complaint that was
ultimately amended to facilitate Bueno’s no contest plea. Defendant argues that because
Bueno pled to an amended complaint that provided for a single charge against him
individually, we may not infer that charge was committed with other gang members. We
disagree. The current, as well as the former, gang statute requires only that the jury find
defendant is a member of a gang that committed two predicate offenses. (People v.
Garcia (2014) 224 Cal.App.4th 519, 524-525.) Thus, to the extent defendant focuses
only on Bueno’s conviction, that focus is erroneous because the prosecution had to prove
only that members of defendant’s gang committed an offense, not that its members were
convicted of an offense. Detective Martin’s testimony and the complaint was thus
sufficient to show multiple members of defendant’s gang committed a drive-by shooting
targeting a perceived rival gang member in 2013. Accordingly, sufficient evidence
demonstrates that two members of defendant’s gang committed two different predicate
offenses.
C
Defendant Was Not Harmed By The Instruction Under Prior Law
Regardless of whether there is sufficient evidence, defendant argues he was
prejudicially harmed by the court’s instructing of the jury under the former gang statute.
Specifically, defendant argues the jury likely considered the current offense when
determining whether the prosecution made a sufficient showing of predicate offenses
because the evidence was questionable whether Bueno’s and Chagolla’s convictions
sufficed. We disagree.
As is clear, the jury was instructed that it could consider defendant’s current
offense when determining whether the prosecution demonstrated the required predicate
offenses. This was error under current law. (§ 186.22, subd. (e)(2).) We assess the
12
harmfulness of an instructional error pertaining to the elements of an offense or
enhancement under the Chapman standard of review. (People v. Sek (2022)
74 Cal.App.5th 657, 668, citing Chapman v. California, supra, 386 U.S. 18.) Under the
Chapman standard “it is not enough to show that substantial or strong evidence existed to
support a conviction under the correct instructions. As the United States Supreme Court
explained in Sullivan v. Louisiana (1993) 508 U.S. 275 . . . , ‘the question . . . is not what
effect the constitutional error might generally be expected to have upon a reasonable jury,
but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] . . .
The inquiry, in other words, is not whether, in a trial that occurred without the error, a
guilty verdict would surely have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.’ ” (Sek, at p. 668.)
Here, we can confidently say the jury’s finding that defendant’s gang committed
two predicate offenses was not based on defendant’s charged crimes. When arguing the
predicate offenses, the prosecution pointed to the records of conviction for Chagolla and
Bueno. While it also pointed to the current offense as an option for the jury, this was at
the end of its extended discussion of the records of conviction and Detective Martin’s
testimony regarding Chagolla and Bueno. Further, defendant admitted he was a Norteño
gang member and the Norteño gang was a criminal street gang. Defendant’s focus during
closing argument was that he was not guilty because he was not present during the
commission of the crimes. As a result, defendant’s case is like People v. Vinson (2011)
193 Cal.App.4th 1190, 1200, where the appellate court affirmed the defendant’s
conviction of petty theft with a prior theft conviction even though the law had changed
after trial to require the proof of three prior convictions, rather than one. There, the
defendant conceded he had been convicted of two prior convictions, and his attorney
stipulated at trial to a third conviction. Thus, there was no dispute as to whether the new
element in the law was proved. (See ibid.) The same is true here. For the same reasons,
13
defendant has failed to demonstrate his jury trial and due process rights were violated by
the erroneous instruction.
D
Defendant Was Not Harmed By Jointly Trying His Substantive
Offenses With His Gang Participation Offense And Gang Enhancements
Defendant argues newly enacted section 1109 applies to him and the failure of the
trial court to bifurcate his gang enhancements and gang participation offense from the
trial on his substantive offenses resulted in prejudicial harm. The People disagree that
section 1109 is retroactive to defendant’s case but argue any resulting harm does not
require reversal. We agree with the People that reversal is not required.
As it pertains to Assembly Bill No. 333’s (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 699, § 5) addition of section 1109, the Courts of Appeal are split on whether the
provision applies retroactively. Several courts have concluded section 1109 applies
retroactively given the legislative history demonstrating the intended effect of a
bifurcated trial was to lessen the prejudice gang allegations carry. (See e.g., People v.
Burgos (2022) 77 Cal.App.5th 550, 564-568, review granted July 13, 2022, S274743;
People v. Ramos (2022) 77 Cal.App.5th 1116, 1125-1131.) But others have concluded
section 1109 operates only prospectively given the procedural posture of the provision.
(See e.g., People v. Perez (2022) 78 Cal.App.5th 192, 207, review granted May 23, 2022,
S275090; People v. Ramirez (2022) 79 Cal.App.5th 48, 65, review granted Oct. 12, 2022,
S275341.) Here, it is unnecessary to decide whether section 1109 applies retroactively or
only prospectively. Even if the statute applies retroactively, defendant was not
prejudiced by the failure to bifurcate the trial on the gang participation offense and gang-
related enhancements.
Relying on dicta in People v. Burgos, supra, 77 Cal.App.5th at page 568 (rev.
granted), defendant argues the failure to bifurcate gang-related charges and enhancements
in accordance with section 1109 constitutes structural error requiring reversal of his
14
remaining convictions. We find that analysis unpersuasive. (See People v. Montano
(2022) 80 Cal.App.5th 82, 108; People v. Ramos, supra, 77 Cal.App.5th at pp. 1131-1133
[concluding § 1109 error was harmless under People v. Watson (1956) 46 Cal.2d 818,
836].) First, “[t]here is a strong presumption that any error falls within the trial error
category,” i.e., is not structural, and thus “subject to harmless error analysis.” (People v.
Anzalone (2013) 56 Cal.4th 545, 554.) Second, the right to bifurcation under section
1109 is purely statutory. (Cf. People v. Hinton (2006) 37 Cal.4th 839, 874 [describing
right to a separate proceeding under § 190.1 as “merely statutory, not constitutional”].)
“ ‘Typically, a defendant who has established error under state law must demonstrate
there is a reasonable probability that in the absence of the error he or she [or they] would
have obtained a more favorable result.’ ” (Anzalone, at p. 553; accord, People v. Epps
(2001) 25 Cal.4th 19, 29 [where the error “is purely one of state law, the Watson
harmless error test applies”].)
Defendant claims the alleged error was prejudicially harmful under the Watson
standard. Defendant argues his trial was so permeated by gang evidence that it was
impossible the jury could ignore it when determining his guilt of the substantive offenses.
Under that standard, reversal is not required unless it is reasonably probable the
defendant would have obtained a more favorable result had the error not occurred.
(People v. Watson, supra, 46 Cal.2d at p. 836.) That standard was not met here.
Defendant’s defense was that he was not involved in the shooting and it could have
been any other local Norteño gang member. Thus, the jury did not believe defendant was
a perpetrator of the drive-by shooting, as opposed to another person, simply because of
his gang involvement. Also, the gang offenses were similar to the charged conduct, but
without involving children, and the other evidence consisted of mostly pictures of people
exhibiting indicia of gang membership and expert testimony. (See People v. Hernandez
(2004) 33 Cal.4th 1040, 1051 [“Any evidence admitted solely to prove the gang
enhancement was not so minimally probative on the charged offense, and so
15
inflammatory in comparison, that it threatened to sway the jury to convict regardless of
defendants’ actual guilt”].)
Further, the trial court instructed the jury that the gang evidence offered by the
prosecution was to be considered only in connection with the gang participation offenses
and gang-related allegations and not when considering whether defendant was guilty of
the substantive charges and enhancements. We presume the jury followed these
instructions. (People v. Fuiava (2012) 53 Cal.4th 622, 669.) Finally, some of the gang
evidence was relevant to motive. (People v. Samaniego (2009) 172 Cal.App.4th 1148,
1167 [“evidence related to gang membership is not insulated from the general rule that all
relevant evidence is admissible if it is relevant to a material issue in the case other than
character, is not more prejudicial than probative, and is not cumulative”].) Taken
together, defendant was not prejudiced by the gang evidence admitted at his trial.
16
DISPOSITION
Defendant’s five convictions for attempted murder are reversed. The matter is
remanded to the trial court for further proceedings consistent with this opinion.
/s/
ROBIE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
BOULWARE EURIE, J.
17