People v. Palacios CA2/8 ( 2022 )

Filed 7/6/22 P. v. Palacios CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B310844
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.BA465253)
v.
ANDREW PALACIOS et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Affirmed in part,
reversed in part, and remanded with directions.
David Y. Stanley, under appointment by the Court of
Appeal, for Defendant and Appellant Andrew Palacios.
Heather J. Manolakas, under appointment by the Court of
Appeal, for Defendant and Appellant Jimmy Perez.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
A jury convicted Andrew Palacios of the murder of Daniel
Duarte (Pen. Code,1 § 187, subd. (a)). It also convicted him of the
premeditated, willful and deliberate attempted murder of D.G.
(§§ 664/187, subd. (a)) and possession of a handgun by a
prohibited person (§ 29800, subd. (b)).
The same jury convicted Jimmy Perez of the willful,
deliberate and premeditated attempted murder of D.G. and
possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury
acquitted Perez of the murder of Daniel Duarte.2 The jury found
true numerous gang and non-gang related enhancements for both
defendants. We discuss those in more detail in Section V.
Both defendants appeal their convictions. Palacios
contends the trial court erred in declining to instruct the jury on
imperfect self-defense for the murder and attempted murder
counts. For his part, Perez contends the evidence is insufficient
to support his conviction of attempted murder. He also contends
the trial court improperly admitted against him statements
Palacios made to an undercover Perkins agent.3 All parties filed
supplemental briefing on whether newly enacted Assembly Bill
No. 333 requires us to vacate and remand for retrial the gang and
firearm enhancements. We affirm the underlying convictions and
the non-gang-related firearm findings. We vacate and remand
for retrial the gang enhancement findings and the gang-related
1 Undesignated statutory references are to the Penal Code.
2 We note the abstract of judgment for Perez incorrectly
states he was convicted of murder, not attempted murder. We
direct the trial court upon remand to issue a corrected abstract of
judgment.
3 Illinois v. Perkins (1990) 496 U.S. 292.
2
firearm enhancement findings. We also direct the trial court to
correct Perez’s abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 21, 2018, victims Daniel Duarte and D.G. lived
near each other in a homeless encampment in “The Wash,” an
area at Avenue 52 and Figueroa Street near the 110 Freeway
corridor in Los Angeles. Around 2:00 a.m., Duarte went to D.G.’s
makeshift shelter/tent so the two of them could smoke
methamphetamine together. Duarte was on his knees with his
back to the door, rooting around in his backpack for his lighter,
when two men came into the shelter. One of the men (appellant
Palacios) stood about one foot from Duarte as Duarte continued
to look for his lighter. Palacios was the first person to enter the
tent with appellant Perez following behind him. Palacios entered
with gun drawn; Perez was openly armed with his gun pointed at
the ground.
Palacios asked the victims where they were from, that is,
what was their gang. Still on his knees, unarmed, and with his
back to Palacios, Duarte said he was from “la Pasadena.” D.G.
said he was “paisa,” meaning he had no gang affiliation.
Immediately and suddenly Palacios shot Duarte. Palacios then
pointed the gun at D.G. and shot him behind the left ear. D.G.
also felt a second shot, but was not sure who fired it. D.G. fell
bleeding onto his bed and pretended to be dead. Palacios shouted
“Avenues” (the name of a local gang) and the two men left the
tent. D.G. continued to play dead for five minutes.
Leaving a trail of blood in his wake, D.G. stumbled out of
the tent to look for help and found a friend who called 911. At
5:10 a.m. D.G. was aided by paramedics who took him to the
3
hospital. Police arrived while he was being treated by the
paramedics. D.G. told the police there was another victim who
had been shot with him about 10 minutes earlier. Police found
Duarte, in a pair of shorts and a black hoodie, dead in the tent as
a result of a gunshot wound to his head. The bullet traveled from
the back to the front of his head. No weapons were found in the
shelter. However, two 9-millimeter cartridge casings were
discovered at the scene.
Over the next few days, D.G. identified Palacios from a
photo spread. Palacios was arrested and placed in a jail cell with
a paid confidential informant, also called a Perkins agent. In a
monitored conversation, Palacios told the informant he was a
member of the Avenues gang, his moniker was “Flaps” and he
had 9-millimeter ammunition at his house. Palacios also said he
and his companion “Husky” had gone to The Wash to look for
enemies, that is, rival gang members. They were walking along
the freeway, went into a tent, and found some “bums.” Palacios
indicated “boom boom boom” and said he shot two people in the
tent. He said the gun he used was across the street from his
house at his aunt’s house. A 9-millimeter Beretta was later
recovered from the aunt’s house. The casings in evidence from
the scene were fired from that Beretta.
At Palacios’s house police recovered 9-millimeter
ammunition and a baseball cap with the letter “A,” a kind of cap
often worn by members of the Avenues, one of the main gangs in
the neighborhood where the shooting occurred. Also recovered
from a nearby 7-Eleven one block from The Wash was a video
surveillance tape showing two men in the store at 1:00 a.m. on
January 21, 2018, four hours before the shooting. Police
identified the two men as appellants.
4
Police determined that “Husky” was a moniker used by
Perez and created a photospread which included his photo. At
trial a gang officer testified that on a prior occasion, Perez had
said his gang moniker was “Husky.” D.G. later identified Perez
from the photospread as “kind of” looking like the second person
who entered the tent. Perez’s home was searched and two hats
and a belt buckle, each with an “A” on it, were found in his
bedroom.
DISCUSSION
I. The Trial Court Properly Refused to Instruct on
Imperfect Self Defense for the Murder and
Attempted Murder Counts as to Palacios
Palacios requested instructions on manslaughter,
attempted manslaughter, and imperfect self-defense. He
contended he shot the victims in imperfect self-defense, that is,
under an actual good faith but unreasonable belief that he was in
imminent danger of great bodily injury or death. The theory of
unreasonable, or imperfect, self-defense reduces murder to the
lesser included offense of voluntary manslaughter because it
negates the requisite mental element of malice. (People v.
Gutierrez (2003) 112 Cal.App.4th 704, 708; In re Christian S.
(1994) 7 Cal.4th 768, 783; CALCRIM No. 571 [“A killing that
would otherwise be murder is reduced to voluntary manslaughter
if the defendant killed a person because he acted in imperfect
self-defense.”].)
The trial court is required to instruct a jury on all general
principles of law raised by the evidence, whether or not the
defendant makes a formal request. (People v. Avila (2009)
46 Cal.4th 680, 704.) This includes a sua sponte duty to instruct
5
on all lesser necessarily included offenses supported by the
evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148–149.)
However, the evidence that will justify a conviction on a lesser
offense must be substantial, that is, evidence a reasonable jury
could find persuasive and from which the jury could reasonably
conclude the defendant was not guilty of the charged offense but
only of the lesser-included offense. (People v. Rogers (2006)
39 Cal.4th 826, 866–867.) Put another way, the instruction is
warranted when the evidence is substantial that the defendant
killed in unreasonable self-defense, “not when the evidence is
‘minimal and insubstantial.’ ” (People v. Barton (1995) 12 Cal.4th
186, 201.) The trial court is not required to present theories the
jury could not reasonably find to exist. (People v. Oropeza (2007)
151 Cal.App.4th 73, 78.)
We review de novo the trial court’s failure to instruct on a
lesser included offense, reviewing the evidence in the light most
favorable to the defendant. (People v. Millbrook (2014)
222 Cal.App.4th 1122, 1137; People v. Oropeza, supra,
151 Cal.App.4th at p. 78.)
In support of his request, Palacios argued that when he
entered the shelter, it was very dark as only two flashlights
illuminated the interior of the tent. As Palacios entered, Duarte
was on his knees in front of Palacios with his back to him.
Duarte’s hands were in front of him and at one point he twisted
his body to look up at Palacios. Palacios argued the instruction
on imperfect self-defense was warranted because it was dark and
he could not see what Duarte was doing with his hands, causing
him to fear for his safety.
The trial court denied the request, explaining that a lesser
instruction on manslaughter had to be supported by substantial
6
evidence such that the jury could find the defendant guilty of
manslaughter, not murder. The trial court noted there was no
evidence Palacios honestly believed he had to resort to self-
defense. The court observed Palacios never said, when he
described the events of that night to the Perkins agent, that he
thought the victim was going for a weapon.
The trial court properly declined to give the requested
instructions. There was no substantial evidence that Palacios
held an honest belief he had to shoot Duarte and D.G. to defend
himself. To begin with, there was never any indication that
Duarte or D.G. were armed when Palacios and Perez entered
D.G.’s tent and Palacios asked the victims where they were from.
The coroner testified Duarte did not have any firearms or knives
on his person. Neither was there evidence Duarte or D.G reached
for anything that could be construed as a weapon. Duarte was
searching through his backpack for his lighter when Palacios and
Perez entered the tent with guns already and openly drawn.
That Duarte had his hands in his backpack apparently did not
prompt Palacios, upon entry, to immediately fire out of fear.
Indeed, Palacios did not raise his gun to fire until after he issued
a gang challenge and learned Duarte was from a Pasadena gang.
His victims neither presented weapons nor attempted to use
force. Duarte never even faced his assailants as he was still
rooting around in the backpack when Palacios shot him.
Most significantly, Palacios was the aggressor from the
very start. He entered the tent with a drawn gun and an openly
armed companion. He issued the gang challenge and then
immediately and without warning fired at the victims after
hearing their answers. Even if the victims had attempted to use
force, Palacios’s own conduct created the very situation he
7
allegedly found life-threatening. He cannot now claim his
adversaries’ conduct mitigated the shooting. (People v. Enraca
(2012) 53 Cal.4th 735, 761 [imperfect self-defense may not be
invoked by a defendant whose own wrongful conduct created the
circumstances that caused his adversary to use force]; People v.
Seaton (2001) 26 Cal.4th 598, 664 [where defendant was the
initial aggressor and victim’s response was legally justified,
defendant could not rely on unreasonable self-defense].)
Palacios argues the trial court drew unfavorable
conclusions from his statements to the Perkins agent, instead of
viewing the evidence in the light most favorable to him. Paying
no heed to statements Palacios made to the Perkins agent still
leaves in play the evidence we have recounted, which is not
sufficient to warrant the instructions Palacios requested. The
trial court did not err in declining to instruct the jury on
imperfect self-defense, manslaughter, or attempted
manslaughter.
II. The Evidence was Sufficient to Support Perez’s
Conviction of Attempted Murder
Perez argues the evidence presented at trial was
insufficient to support his conviction of attempted murder. He
argues two grounds: 1) the identification evidence was too weak
to place him at the scene; and 2) if he was the second person in
the tent, there was no proof he acted with knowledge of Palacios’s
criminal purpose and with an intent or purpose either of
committing, encouraging, or facilitating commission of the
offense. Perez argues that because neither victim was a rival
gang member and he and Palacios were out hunting rival gang
members only, he did not share Palacios’s intent when Palacios
pulled the trigger on the non-rival victims.
8
“ ‘ “When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.] We determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” [Citation.] In so doing, a
reviewing court “presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1212—
1213 (Rangel).) This court neither reweighs the evidence nor
reevaluates the credibility of witnesses. (People v. Mohamed
(2011) 201 Cal.App.4th 515, 521.) And juries may accept all,
part, or none of a witness’s testimony. (People v. Collins (2021)
65 Cal.App.5th 333, 345.)
Unless the testimony is physically impossible or inherently
improbable, the testimony of a single eyewitness may be
sufficient to prove the defendant’s identity as the perpetrator of a
crime. (People v. Young (2005) 34 Cal.4th 1149, 1181; Evid. Code,
§ 411.) Furthermore, the identification may be tentative. (People
v. Primo (1953) 121 Cal.App.2d 466, 468.) A reviewing court can
set aside a jury’s finding of guilt only if the evidence of identity is
so weak as to constitute practically no evidence at all. (People v.
Braun (1939) 14 Cal.2d 1, 5.) The reviewing court also presumes
in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence. (People v. Virgil
(2011) 51 Cal.4th 1210, 1263.) Before setting aside the judgment
9
of the trial court for insufficiency of the evidence, it must clearly
appear there was no hypothesis whatsoever upon which there
was substantial evidence to support the verdict. (People v.
Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1573.)
A. The Identification Evidence
Victim D.G. and appellants provided the identification
evidence linking Perez to the shootings.
In his conversation with the undercover informant,
Palacios identified himself as a member of the Avenues and
identified “Husky” as his “homie” from the Avenues who went
“hunting” with him into The Wash and the tent.
Law enforcement took the name “Husky” and identified
Perez as the only member of the Avenues they knew of with that
moniker. They then put Perez’s photo in a six-pack photospread
which was shown to D.G. D.G. chose Perez’s photograph out of
the six-pack because appellant looked most like his assailant,
despite having a “slightly different face.” When D.G. was asked
to identify his assailant in court, he identified Perez. Perez also
confirmed in an earlier encounter with police that his gang
moniker was “Husky.” D.G. testified he feared the Avenues
because it was a very strong gang whose members could come
after him or his family.
We conclude D.G.’s identification of Perez as the second
man in the tent, however tentative, was sufficient to support the
verdict. Also supporting the verdict is Palacios’s identification of
his crime partner that night as his homie with the moniker
“Husky” and Perez’s prior statement that he was known as
“Husky.” We do not view this combination of facts as so weak as
to constitute practically no evidence at all. (People v. Braun,
10
supra, 14 Cal.3d at p. 5; People v. Jackson (1960) 183 Cal.App.2d
562, 567.) That a different jury may have viewed the evidence in
a different light is no ground to accept Perez’s invitation to
overturn the verdict. “[W]hen two or more inferences can
reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions for those of the jury.
It is of no consequence that the jury believing other evidence, or
drawing different inferences, might have reached a contrary
conclusion.” (People v. Brown (1984) 150 Cal.App.3d 968, 970;
see also People v. Lindberg (2008) 45 Cal.4th 1, 27.)
B. Shared Intent
To prove that a defendant is an accomplice the prosecution
must show that the defendant acted “ ‘ “with knowledge of the
criminal purpose of the perpetrator and with an intent or purpose
either of committing, or of encouraging or facilitating commission
of, the offense.” ’ ” (People v. McCoy (2001) 25 Cal.4th 1111, 1118;
see also People v. Beeman (1984) 35 Cal.3d 547, 560.) When the
offense charged is a specific intent crime, the accomplice must
share the specific intent of the perpetrator; this occurs when the
accomplice knows the full extent of the perpetrator’s criminal
purpose and gives aid or encouragement with the intent or
purpose of facilitating the perpetrator’s commission of the crime.
(McCoy, at p. 1118.) Perez argues there is no evidence that he
shared Palacios’s intent to murder Duarte and D.G. because, as it
turned out, neither victim was a member of rival gangs they were
hunting that night. Instead, the victims were homeless men.
We do not agree that this fact exonerates Perez. The
testimony by the gang experts established that as gang members
Palacios and Perez shared an interest in burnishing the
reputation of their own gang, the Avenues. According to
11
Palacios, they were hunting for "enemies” as they walked through
The Wash, entering multiple tents and looking for rivals. They
displayed their weapons openly as they entered D.G.’s shelter.
Upon entering, Palacios immediately issued a gang challenge by
asking where the victims were from and then immediately
responded to their answers by shooting Duarte point black in the
back of the head. He then turned to D.G. and shot him in the
neck and arm. After the shooting Palacios yelled “Avenues” and
the two men left the tent together.
Perez’s armed presence in the tent no doubt offered
Palacios support and encouragement in the “hunt” that night.
The evidence establishes Palacios and Perez had one joint goal in
entering that tent – to further the interests of their gang – and
that included committing acts of violence for which their gang
could take credit, enhancing its reputation. That the two victims
were not members of a specifically targeted rival gang is not
material. Appellants entered the tent openly armed and ready to
shoot for the glory of their gang. The evidence was sufficient to
support Perez’s conviction of attempted murder.
III. Admission of Statements Palacios Made to the
Perkins Agent Did Not Violate Perez’s Right to
Confront Witnesses under the Confrontation Clause
Perez contends his constitutional right to confront
witnesses was violated when the trial court admitted statements
Palacios made to the jailhouse informant which incriminated
Perez. We disagree.
After Palacios was arrested, he was placed in a jail cell
with a Perkins agent – an informant who is jailed with an
arrestee for the purpose of eliciting incriminating information
from the arrestee. When they met, Palacios introduced himself
12
as “Flaps” from the Avenues. The Perkins agent identified
himself to Palacios as a 45-year-old from Riverside arrested for a
double murder. Palacios told the agent he was 19. The
conversation between the Perkins agent and Palacios was audio-
recorded and monitored in real time by Officer Manriquez. As
described by Officer Manriquez, he and his partner would go into
the “tank and introduce something to stimulate the conversation
between the Perkins agent and the arrestee.”
And, indeed, that is what happened in this case. Fourteen
minutes into the conversation, Detective Alfaro entered the cell
briefly to tell Palacios that the detectives have a video they want
to show him and that one of the victims of the shooting survived
and said he had a flashlight on Palacios. At 47 minutes,
Detective Alfaro opens the cell door and makes a comment about
a “nine millimeter” to an unidentified male in the background.
He then tells Palacios he is going to question Palacios’s brother
first. After Alfaro leaves the cell, the Perkins agent picks up the
thread and tells Palacios the police are looking for the murder
weapon, intend to “sweat” Palacios’s brother “real bad” and
accuse him of the murder, and keep his brother until he says
something.
Palacios ends up telling the Perkins agent that he has
ammunition at his house and has hidden the weapon the police
are looking for in a place his “little cousin” knows about.
Again, police return to take photos of the Perkins agent.
Palacios is allowed to leave the cell to use the restroom. After
they leave, the Perkins agent begins a discussion with Palacios
about photographs, DNA, and swabbing. Soon the detectives
return to tell Palacios they have a lot of evidence and one person
survived and told them “a lot.” “We know exactly what happened
13
in there. And there’s no denying it.” They tell Palacios that even
though he placed himself at the scene in his prior statement to
police, “your story from what happened inside that tent is not
quite there.” They take a DNA swab and leave.
The Perkins agent follows up and asks Palacios
incredulously, “Damn, what happened? You told him you were
there? I didn’t know that.” Palacios then states he knew the
murder victim; “The homie” just went in there and did it for the
“fuck of it”; after the shooting, he took the weapon and his homie
took the bullets; his homie is still on the streets; the weapon was
in his cousin’s house; only two people were in the tent; he was in
fact in the tent that night; they went into the tent and “boom,
boom, boom”; he asked the victim where he was from before
shooting; he and his homie both had guns; they were in The
Wash looking among the bums for their enemies, the Highland
Park gang; he put one bullet in each of the victims; the victims
got one bullet in the head; the murder occurred at 5:00 a.m.; he
and his homie were partying that night and then his homie
insisted on going hunting when Palacios just wanted to go home.
Towards the end of the conversation the Perkins agent
offers to get the word out to the homie to be careful and he asks
for his name. Palacios answers: “Husky.”
In sum, the Perkins operation elicited the following
information from Palacios: 1) Palacios is a member of the
Avenues gang and is known as “Flaps” 2) he was accompanied to
the homeless encampment by his fellow gang member, whose
moniker is “Husky”; 3) “Husky” had not yet been arrested to his
knowledge; 4) he and Husky were “hunting” rival gang members
as they went through the homeless encampment; 5) both of them
14
entered the tent and only Palacios shot the victims;
6) alternatively “Husky” shot the victims.
The Sixth Amendment’s Confrontation Clause provides
that, “ ‘[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.’ ”
(Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford);
People v Lopez (2012) 55 Cal.4th 569, 576.) When a codefendant’s
confession implicates the defendant and is introduced into
evidence at their joint trial, a potential constitutional violation
arises. If the codefendant invokes the Fifth Amendment right
against self-incrimination and declines to testify at trial, the
implicated defendant is unable to cross-examine him about the
contents of his prior statement. Thus, as set out in People v.
Aranda (1965) 63 Cal.2d 518, 528–530, abrogated in part by
Cal. Const. art. 1, §28, subd. (d) and Bruton v. United States
(1968) 391 U.S. 123, 126, a defendant is deprived of the Sixth
Amendment right to confront witnesses when a facially
incriminating statement of a non-testifying codefendant is
introduced at their joint trial, even if the jury is instructed to
consider the statement only against the co-defendant declarant.
This is the Aranda/Bruton rule.
Decades later, the United States Supreme Court and our
own Supreme Court limited the application of the
Aranda/Bruton rule to testimonial statements only. (People v.
Cortez (2016) 63 Cal.4th 101, 129; Crawford, supra, 541 U.S. at
p. 53 [Sixth Amendment right of confrontation applies to
testimonial statements only].) The Court reasoned that the right
of confrontation extends only to “witnesses” against a defendant
and witnesses are those who “bear testimony.” “Testimony” is
typically a solemn declaration or affirmation made for the
15
purpose of establishing or proving some fact. Thus, a testimonial
statement is one the declarant would reasonably expect to be
used prosecutorially or a statement made under circumstances
which would lead an objective witness reasonably to believe the
statement would be available for use at a later trial. (Crawford,
at pp. 51–52.)
Although Crawford did not precisely define “testimonial,” it
did describe types of statements that constitute a “core class” of
testimonial statements. (Crawford, supra, 541 U.S. at p. 51.)
These include functional equivalents of in-court testimony, such
as affidavits and similar pretrial statements “ ‘made under
circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a later
trial.’ ” (Id. at pp. 51–52.) As the California Supreme Court
summarized, “the confrontation clause is concerned solely with
hearsay statements that are testimonial, in that they are out-of-
court analogs, in purpose and form, of the testimony given by
witnesses at trial.” (People v. Cage (2007) 40 Cal.4th 965, 984.)
“Generally speaking, a declarant’s hearsay statement is
testimonial if made ‘with a primary purpose of creating an out-of-
court substitute for trial testimony.’ (Michigan v. Bryant (2011)
562 U.S. 344, 358 [179 L.Ed.2d 93, 131 S.Ct. 1143].)
Notwithstanding the lack of a comprehensive definition of
‘testimonial’ (Ohio v. Clark (2015) 576 U.S. 237, 242 [192 L.Ed.2d
306, 135 S.Ct. 2173, 2179]), the high court has nonetheless
emphasized that only hearsay statements that are ‘testimonial’
are subject to the confrontation clause.” (People v. Fayed (2020)
9 Cal.5th 147, 168 (Fayed).)
Davis v. Washington (2006) 547 U.S. 813 (Davis) explained
how statements qualify as “testimonial”: “Statements are
16
nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later
criminal prosecution.” (Id. at p. 822.) Later, in Michigan v.
Bryant, the Supreme Court explained how to determine the
“primary purpose” of an “interrogation.” In “addition to the
circumstances in which an encounter occurs, the statements and
actions of both the declarant and interrogators provide objective
evidence of the primary purpose of the interrogation.” (Michigan
v. Bryant, supra, 562 U.S. at pp. 359, 367.)
In Rangel, our Supreme Court summarized Crawford and
its aftermath: “Crawford held that, in general, admission of
‘testimonial’ statements of a witness who was not subject to
cross-examination at trial violates a defendant’s Sixth
Amendment right of confrontation, unless the witness is
unavailable and the defendant had a prior opportunity for cross-
examination. (Crawford, [supra, 541 U.S.] at pp. 59–60, 68.)”
(Rangel, supra, 62 Cal.4th at p. 1214.) Rangel acknowledged that
although Crawford did not offer an exhaustive definition of
“testimonial statements,” the Supreme Court had since clarified
that a statement cannot fall within the Confrontation Clause
unless its primary purpose was to establish or prove past events
potentially relevant to later criminal prosecution. (Rangel, at
p. 1214.) It also acknowledged that the primary purpose test is a
necessary, but not always sufficient, condition for the exclusion of
out-of-court statements under the Confrontation Clause. (Ibid).
17
Under the test, statements made to someone who is not
principally charged with uncovering and prosecuting criminal
behavior are significantly less likely to be testimonial than
statements given to law enforcement officers. A court also
considers the formality “of the situation and the interrogation” in
determining the primary purpose of a challenged statements. In
the end, the question is whether, in light of the circumstances,
viewed objectively, the primary purpose of the conversion was to
create an out-of-court substitute for trial testimony. (Id. at
pp. 1214–1215.)
Here there can be no question that the primary purpose of
the interchange between the Perkins agent and Palacios was to
create evidence for use at a subsequent prosecution. The agent
was used to elicit information from Palacios about the offenses;
the conversation was recorded (and, indeed, played for the jury at
trial). The conversation was interrupted when detectives would
enter the cell to “disclose” to Palacios information about the
investigation to date or to make comments the Perkins agent
could use to spark more conversation about the offenses. And no
party claims the conversation was part and parcel of an
emergency situation or necessary for some other non-
prosecutorial purpose.
Nevertheless, if satisfying the primary purpose test is
necessary but not always sufficient to characterize a statement
was “testimonial,” what factor trumps the test? Crawford and
Davis both focus on the expectations of the declarant in
determining whether a statement is testimonial. Davis states a
statement is “clearly non-testimonial” where the speaker had no
expectation that their statements would be used at a subsequent
trial, such as when the speaker was talking to a fellow inmate or
18
co-conspirator or was unaware they were talking to an informant.
(Davis, supra, 547 U.S. at p. 825.) Crawford cites with approval
Bourjaily v. United States (1987) 483 U.S. 171, 173–174, where
the court found non-testimonial a co-defendant’s unwitting
statements to an informant which incriminated the defendant
and were admitted against him at trial. (Crawford, supra,541 U.S. at p. 58; People v. Dalton (2019) 7 Cal.5th 166, 209
[statement to a fellow inmates is not testimonial within the
meaning of Crawford]; Fayed, supra, 9 Cal.5th at p. 169 [same];
People v. Gallardo (2017) 18 Cal.App.5th 51, 67 (Gallardo)
[statements made to wired informants are not testimonial
because declarant had no belief that his statements were being
monitored and would be used in a subsequent trial]; People v.
Arauz (2012) 210 Cal.App.4th 1394, 1402 [same].)
Under the authorities cited above, we hold that admission
of Palacios’s statements to the Perkins agent implicating Perez in
the offenses does not violate the Confrontation Clause as
Palacios’s oblivious statements to the Perkins agent were not
testimonial. Based on objective circumstances, no reasonable
person in Palacios’s position would have believed his statements
would be introduced at a later prosecution. (Gallardo, supra,
18 Cal.App.5th at pp. 67–69 [statements were nontestimonial
because, regardless of informant’s intent in asking the question,
there was no evidence defendant knew or suspected the
informant was a government agent or that his comments might
be used at trial].) The trial court did not err in admitting
Palacios’s statements about Perez to the Perkins agent.
Finally, Perez argues that “to hold that the confrontation
clause does not prevent the police from using a paid agent to
obtain the information on their behalf when the police are in fact
19
directing the interaction completely eviscerates the confrontation
clause and the approach dictated by the United States Supreme
Court in evaluating the primary purpose of such interrogation.
The police should not be able to pay non-law enforcement
personnel to void a defendant’s constitutional rights.” We draw
on three United States Supreme Court decisions as the
touchstones for our holding: Davis, Crawford, and Bourjaily.
IV. Assuming the Trial Court Committed Error in
Admitting Palacios’s Statement to the Perkins Agent,
the Error was Harmless.
Alternatively, Perez contends that statements made by
Palacios to the Perkins agent about “Husky” are inadmissible
hearsay. The trial court disagreed and found them admissible as
declarations against penal interest. We review a trial court’s
evidentiary rulings for abuse of discretion. (People v. Grimes
(2016) 1 Cal.5th 698, 711.) Error in admitting a statement or
failing to excise it is reviewed under the harmless error standard
of People v. Watson (1956) 46 Cal.2d 818. (People v. Duarte
(2000) 24 Cal.4th 603, 618–619.) Assuming error, we conclude it
is harmless.
At first, Palacios denied all culpability. Then he revealed
the murder weapon was stashed at his aunt’s house. After being
called out twice by the detectives and told the police had
incriminating videotape, he returned and pondered aloud to the
Perkins agent how he would defend himself if he had been taped.
Then he describes that he shot his gun at the victims with a
“boom boom boom.”
Palacios then states it was his cousin’s idea to go “hunting”
for rival gang members and all he wanted to do was go home
after partying all night. At one point he says his “homie” was the
20
shooter, not him. Then he gives up his not-yet-arrested homie’s
name – Husky—when the Perkins agent suggests that he himself
will help get word to Husky to keep quiet or leave town.
We find the error harmless under People v. Watson. D.G.’s
identifications of Perez in the photospread and then in court do
not make it reasonably probable that a result more favorable to
Perez would have been reached in the absence of the error.
(People v. Valencia (2021) 11 Cal.5th 818, 840.)
V. Assembly Bill No. 333 Compels Remand and Retrial
of the Gang Enhancements and Gang-Related
Firearm Enhancements
The jury found true several gang and firearm
enhancements as to Palacios. It found the murder was
committed for the benefit of a street gang and to promote and
assist criminal conduct by gang members in violation of section
186.22, subdivisions (b)(1)(C) and (e)(1). Further it found
Palacios personally used a handgun, personally and intentionally
discharged a handgun, and personally and intentionally
discharged a handgun which caused Duarte’s death, all in
violation of section 12022.53, subdivisions (b), (c), and (d). It also
found that a principal had personally used a handgun, personally
and intentionally discharged a handgun and personally and
intentional discharged a handgun proximately causing death to
Duarte while committing a crime to benefit a street gang in
violation of section 12022.53, subdivisions (b)-(d) and (e)(1).
As for the attempted murder of D.G., the jury found it was
committed for the benefit of and to promote criminal activity by a
street gang in violation of section 186.22, subdivisions (b)(1)(C)
and (b)(5). Again, the jury found a principal personally used,
personally and intentionally discharged, and personally and
21
intentionally discharged a handgun which proximately cause
great bodily injury to D.G. while acting for the benefit of a street
gang in violation of section 12022.53, subdivisions (b)-(d) and
(e)(1). As to the possession count, the jury found it was
committed for the benefit of a street gang in violation of section
186.22, subdivision (b)(1)(A).
The jury also rendered findings as to Perez. The jury found
both crimes were committed for the benefit of and to promote
criminal activity by a street gang in violation of section 186.22,
subdivisions (b)(1)(A) and (b)(1)(C). As to the attempted murder,
the jury found a principal personally and intentionally
discharged a firearm which proximately caused great bodily
injury to D.G. while committing a crime to benefit a street gang,
in violation of section 12022.53, subdivisions (d) and (e)(1).
The findings can be divided into three categories: gang
allegations under section 186.22; gang-related firearm
enhancements under 12022.53, subdivisions (b)-(d) and (e)(1);
and non-gang related firearm enhancements under section
12022.53, subdivisions (b), (c), and (d).
The parties filed supplemental briefing addressing the
impact of newly enacted Assembly Bill No. 333 (2021–2022 Reg.
Sess.) (Assembly Bill 333) on the gang enhancements. (See Stats.
2021, ch. 699, §§ 1–5.) Assembly Bill 333 amends section 186.22
to require proof of additional elements to prove a gang
enhancement. (Assem. Bill No. 333, § 3, amended § 186.22, eff.
Jan. 1, 2022.)
Appellants assert that under the new law, there is no
evidence to support imposition of the gang enhancements under
sections 186.22 and 12022.53, subdivisions (b) and (e)(1), (c) and
(e)(1), and (d) and (e)(1). They ask us to vacate the true findings
22
on these allegations and remand the matter for retrial, at the
election of the People.
The People argue substantial evidence was presented to
support the gang enhancements, even under the amended
statute, and thus remand would be an idle act. We conclude the
gang enhancement and gang-related firearm findings must be
vacated and remanded for retrial.
A. Retroactivity
We agree with the parties that Assembly Bill 333 applies
retroactively to appellants’ gang enhancements. In In re Estrada
(1965) 63 Cal.2d 740, 744–746, the California 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. (People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 307–308; People v. Brown (2012)
54 Cal.4th 314, 323.) This principle also applies when an
enhancement has been amended to redefine to an appellant’s
benefit the conduct subject to the enhancement. (People v.
Figueroa (1993) 20 Cal.App.4th 65, 68, 70–71 (Figueroa).) As
Assembly Bill 333 increases the threshold for conviction of
section 186.22 offenses, we agree with the parties that appellants
are entitled to the benefit of this change in the law. “[A]
defendant is entitled to the benefit of an amendment to an
enhancement statute, adding a new element to the enhancement,
where the statutory change becomes effective while the case was
on appeal, and the Legislature did not preclude its effect to
pending cases.” (Figueroa, at p. 68.)
23
B. Statutory Framework and Impact of Assembly Bill 333
Section 186.22 provides for enhanced punishment when a
person is convicted of an enumerated felony committed “for the
benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1).)
Assembly Bill 333 altered the requirements for proving the
“pattern of criminal gang activity” necessary to establish the
existence of a criminal street gang. Before Assembly Bill 333
became effective, a “pattern of criminal gang activity” meant “the
commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction of, two
or more of [enumerated] offenses, provided at least one of these
offenses occurred after the effective date of this chapter and the
last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions,
or by two or more persons.” (§ 186.22, former subd. (e).) As of the
effective date, Assembly Bill 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
commonly benefited a criminal street gang, and the common
benefit of the offense is more than reputational.” (Assem. Bill
No. 333, § 3; amended § 186.22, subd. (e)(1), eff. Jan. 1, 2022.) In
addition, the currently charged offense cannot be used as a
predicate offense under the amendments. (§ 186.22, subd. (e)(2).)
24
Thus, pursuant 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. (Assem. Bill No. 333, § 3,
amended § 186.22, subd. (e)(1)–(2), eff. Jan. 1, 2022.) With
respect to common benefit, the new legislation explains: “[T]o
benefit, promote, further, or assist means to provide a common
benefit to members of a gang where the common benefit is more
than reputational. Examples of a common benefit that are more
than reputational may include, but are not limited to, financial
gain or motivation, retaliation, targeting a perceived or actual
gang rival, or intimidation or silencing of a potential current or
previous witness or informant.” (Assem. Bill No. 333, § 3,
amended § 186.22, subd. (g), eff. Jan. 1, 2022.)
Putting aside whether the People did submit evidence of
two predicate offenses committed within the new time frame, the
People did not prove that the predicate offenses commonly
benefitted a criminal street gang in a way that was more than
reputational. The People did not address this last point in their
supplemental briefing. Reputational benefit was, nonetheless,
the theoretical linchpin of the People’s case as to the gang
allegations. Their gang expert testified about how the charged
crimes benefited the Avenues street gang: “It goes to the violent
reputation that this gang has, enhancing that violent reputation
25
which contributes to create this atmosphere of fear and
intimidation which have a stronghold on the individuals who live
within the territory that they claim or work within the territory
that the Avenues criminal street gang claims, which makes them
hesitant to come forward to crimes that they witnessed to police
or coming to court and testify in court against them for fear of
retaliation knowing that this gang is so violent in nature.”
The People’s closing argument elaborated on the theme of
reputational benefit: “The purpose of them committing both those
crimes was to demonstrate that deadly power that benefits the
Avenues gang. They want to benefit the Avenues territory over
an area that is a narcotics area where they’re going to make
money off of taxing dealers or some of the homies, people that are
using there. And they’re both looking to enhance the reputation,
not only the Avenues gang, but the reputation inside the gang as
well.”
At the time of this trial, the People could prove that the
charged offenses benefitted a criminal street gang merely by
showing that the offenses enhanced the reputation of the gang.
(People v. Albillar (2010) 51 Cal.4th 47, 63.) Assembly Bill 333
changed all that by specifically mandating that a showing of
reputational benefit is insufficient to prove the allegation.
Additionally, the jury was not prohibited from relying upon
the currently charged offenses in determining whether a pattern
of criminal gang activity had been proven. Nor was the jury
instructed on these new requirements. Appellants have a
constitutional right to a jury instructed on every element of the
charged enhancement. (People v. Ramos (2016) 244 Cal.App.4th
99, 104; Figueroa, supra, 20 Cal.App.4th at p. 71.) Thus, the jury
was not asked to, and therefore did not, make the actual
26
determinations that are now required by the amendments to
section 186.22. We therefore conclude that the gang-related
enhancement findings must be vacated and the matter remanded
to give the People the opportunity to prove up all the elements of
the enhancements under the amendments to section 186.22.
Assembly Bill 333’s changes to section 186.22 affect not
only the gang enhancement allegations under that statute but
other statutes that expressly incorporate provisions of section
186.22. Here, one other statute specifically referring to section
186.22 is implicated: section 12022.53, subdivision (e)(1).
Section 12022.53 provides for sentence enhancements for
the use of firearms in the commission of an enumerated felony.
The statute first provides for escalating punishments depending
on how the firearm is used. The least severe penalty is set forth
in section 12022.53, subdivision (b), which provides for a
consecutive 10-year term for a defendant who “personally uses” a
firearm in a felony. Next, a consecutive 20-year term is imposed
under section 12022.53, subdivision (c), if the defendant
“personally and intentionally discharges a firearm” in the
commission of the offense. Finally, section 12022.53,
subdivision (d) provides for a consecutive sentence enhancement
of 25 years to life when the defendant “personally and
intentionally discharges a firearm and proximately causes great
bodily injury . . . or death” during the commission of the offense.
While these subdivisions provide punishment for offenders
who personally use a firearm during the commission of their
crimes, the penalties may also be imposed under subdivision
(e)(1) where a principal in the offense acts under certain gang-
related circumstances: First, the person who is a principal must
be “convicted of a felony committed for the benefit of, at the
27
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members” as set forth in section 186.22,
subdivision (b). (§ 12022.53, subd. (e)(1)(A).) Second, “[a]ny
principal in the offense” must have “committed any act specified
in subdivision (b), (c), or (d),” that is, any principal involved in
the offense must have personally used a firearm in the escalating
use categories provided in section 12022.53, subdivisions (b)
through (d). (§ 12022.53, subd. (e)(1)(B).)
Here, with respect to the murder of Duarte and attempted
murder of D.G., the jury found that the offense was committed for
the offense for the benefit of a criminal street gang under section
186.22, subdivision (b). It also found that a principal personally
and intentionally discharged a firearm within the meaning of
section 12022.53, subdivisions (d) and (e)(1), causing great bodily
injury or death to Duarte and D.G. Because this enhancement
depends on a finding that the principal was “convicted of a 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 any criminal conduct by gang members” as
set forth in section 186.22, subdivision (b) (§ 12022.53,
subd. (e)(1)(A)), the changes to section 186.22 made by Assembly
Bill 333 require that the true findings on these enhancements be
vacated as well and the matter remanded to the trial court.
We note, however, that with respect to the murder of
Duarte and the attempted murder of D.G., the jury separately
found true allegations under section 12022.53, subdivision (b), (c)
and (d), the escalating firearm enhancements which did not
involve gang-related activity. Accordingly, both appellants were
sentenced to consecutive terms of 25-years-to-life under section
28
12022.53, subdivision (d) for personally and intentionally
discharging a firearm and proximately causing injury and death
in the murder and attempted murder. Although we vacate the
findings made under section 12022.53, subdivision (e)(1), those
findings under section 12022.53, subdivision (b), (c), and (d),
which carry the same penalty, remain intact.
DISPOSITION
The convictions and non-gang-related firearm findings are
affirmed. The gang enhancement findings under section 186.22,
and the gang-related firearm enhancement findings under section
12022.53, subdivision (e)(1) are vacated and remanded for retrial,
at the election of the People.
The trial court is directed to correct Perez’s abstract of
judgment to delete the reference to murder in count 1 and add
the attempted murder conviction in count 2.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
29