People v. Astorga CA2/4 ( 2022 )

Filed 8/19/22 P. v. Astorga CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B302888
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA438063)
v. OPINION FOLLOWING
TRANSFER FROM
ARIC AARON ASTORGA, SUPREME COURT
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert J. Perry, Judge. Affirmed in part and remanded.
Gail Harper, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David
E. Madeo, Acting Supervising Deputy Attorney General, and Marc A. Kohm,
Deputy Attorney General, for Plaintiff and Respondent.
In August 2019, a jury convicted appellant Aric Aaron Astorga of one
count of first-degree murder (Pen. Code, § 187, subd. (a)).1 The jury also true
the allegations that appellant had personally and intentionally discharged a
firearm (§ 12022.53, subd. (d)), and committed the murder for the benefit of,
at the direction of, and in association with a criminal street gang, with the
specific intent to promote, further, and assist in criminal conduct by gang
members (§ 186.22, subd. (b)(1)(C)). Appellant was sentenced to 25 years to
life for first-degree murder (§ 190, subd. (a)), plus a consecutive term of 25
years to life for the firearm enhancement (§ 12022.53, subd. (d)). The court
elected not to impose an additional 10-year term under the gang
enhancement (§ 186.22, subd. (b)(1)(C)), and instead set a 15-year minimum
term of parole eligibility (§ 186.22, subd. (b)(5)).
In his direct appeal, appellant challenged only the sufficiency of the
evidence to support the jury’s finding sustaining the gang enhancement.
Appellant did not challenge his murder conviction. In an opinion filed in
March 2022, we rejected appellant’s argument and affirmed the judgment.
(People v. Aric Aaron Astorga (Mar. 4, 2022, B302888) [nonpub. opn.].)
Appellant petitioned for review in the California Supreme Court and
requested that the Court review whether the evidence adduced at trial was
sufficient to support the gang enhancement under Assembly Bill No. 333
(2021-2022 Reg. Sess.) (A.B. 333), which went into effect after appellant’s
trial but before the parties completed briefing in his direct appeal. A.B. 333
amended section 186.22 to require proof of additional elements to establish a
gang enhancement. A.B. 333 also added section 1109 to the Penal Code,
1 Subsequent statutory references are to the Penal Code unless
otherwise indicated.
2
which provides that that “[i]f requested by the defense, a case in which a
gang enhancement is charged under subdivision (b) or (d) of Section 186.22
shall be tried in separate phases.” (§ 1109, subd. (a).)
The Court granted review and transferred the case to this court with
directions to vacate our previous decision, and to reconsider the case in light
of A.B. 333. We now vacate our March 2022 opinion, and issue this opinion
considering the effect of A.B. 333. We conclude that current section 186.22,
as amended by A.B. 333, applies to this case and requires vacating the jury’s
gang enhancement finding. We reject appellant’s contention that section
1109, as enacted by A.B. 333, mandates a reversal of his underlying
conviction for first-degree murder. We reverse the gang enhancement
finding, and remand the matter to allow the People to retry the gang
enhancement allegation in accordance with the new law. In all other
respects, we affirm.
FACTUAL BACKGROUND
A. The Murder
In the early morning hours of November 14, 2014, deputies from the
Los Angeles County Sheriff’s Department responded to a warehouse complex
in the City of Los Angeles. After walking through a gated fence and into the
warehouse yard, the deputies discovered the body of Luciano Rubio lying face
down in a pool of blood near an open doorway to the warehouse. Rubio had
been pistol whipped and shot three times with a .357 magnum revolver:
twice in the right shoulder and once in the back of the head. He was
pronounced dead around 6:00 a.m.
Inside the warehouse, investigating officers located a living space with
couches, a table, and a large television. Criminalists collected fingerprints
3
from a cup and Gatorade bottle inside the warehouse. The fingerprints
matched those of Michael Perdomo, a gang member who went by the name
“Little P.” According to Rubio’s best friend, Jose Perez, on November 12,
2014 (two days before the murder), Rubio was with Perez and Perdomo inside
the warehouse. While hanging out, Perdomo accused Rubio of raping
Perdomo’s former girlfriend (and the mother of his child).2
The investigating officers and criminalists also searched an adjacent
junkyard that was located on the opposite end of a retaining wall. Shoe print
impressions were collected from the bed and hood of a pickup truck that had
been parked against the wall. Palmprints and fingerprints were lifted from
the bed, passenger side hood, and top of the truck. Subsequent comparisons
showed that the fingerprints matched appellant’s, and the shoeprints
matched the sole pattern of a pair of appellant’s shoes.
B. Appellant’s Arrest
On January 12, 2015, Baldwin Park Police Department Officer Mike
Hemenway pulled behind a suspected stolen vehicle. After following the car
into a parking lot, Officer Hemenway watched Alexandro Coto-Martinez get
out of the vehicle and flee. As he chased Coto-Martinez on foot, Officer
Hemenway called for support. Officer Martin Herrera located the stolen
vehicle and quickly realized it had been abandoned. After searching the area
for several minutes, Officer Herrera stopped appellant, who was short of
breath and “sweating profusely.”
2 Originally charged as a codefendant in this case, Perdomo was not tried
alongside appellant.
4
A loaded .357 revolver was recovered approximately 12 feet away from
where Officer Hemenway detained Coto-Martinez. Later analysis showed
that the three bullets recovered from Rubio’s body had been fired by the
recovered .357 revolver, and that appellant’s DNA was present on the gun
trigger and trigger guard.
C. The Jailhouse Conversation
In July 2015, appellant was placed in a jail cell with an inmate who
portrayed himself as a member of the Huntington Park Locos who had spent
several years in prison. Unknown to appellant, the inmate was cooperating
with the police. The conversation was recorded, and the recording was
played for the jury, with a transcript for assistance.
During his conversation with the inmate, appellant introduced himself
as “Twisted” from Eastside Bolen, and said he was a “big dude” in the gang
who had come up from the Rascals, a clique or subset of the gang. The
inmate told appellant he had “just met [his] home boy” from Eastside Bolen.
Appellant described his gang participation as “all the time every time.” He
said that in the last “couple months everybody knew [to] watch out for”
appellant, because he was known for “running up on people” with a .357
revolver and .44 magnum. Prior to his arrest, appellant had been “on it” with
the .357 revolver.
In describing the murder of Rubio, appellant said that he had heard a
rumor that a “homie’s baby momma” had been raped. One day, a guy named
“Suso,” a “homie” who “bangs with [appellant’s] clique,” introduced appellant
to his “uncle,” an older gang member named Little P. Little P. was not from
appellant’s neighborhood, but was a self-proclaimed member of a gang in
5
Duarte.3 Little P. told appellant that the woman named in the rumor was his
former girlfriend. Little P. told appellant “we’re going to see what you’re
about . . . you know, (inaudible) homie. You hear me?” Appellant replied,
“you want to pressure me, I’ll show you who the fuck I am.”
Appellant “roll[ed] around” in a car with Little P. and Suso for two-to-
three hours before traveling to a warehouse to find the man who had raped
Little P.’s former girlfriend. When they arrived, Suso kept watch outside
while appellant and Little P. went into the warehouse.4
Appellant found Rubio laying on a couch inside the warehouse.
Appellant approached Rubio and pistol whipped him several times before he
“let off three times” with his gun, dropping Rubio “like a sack of potatoes.”
After the shooting, appellant got into the car, emptied the revolver into his
pocket,5 and reloaded the gun “in case the fools I’m with start getting fucking
stupid.”
After the shooting, appellant never saw Little P. again. Appellant
thought maybe Little P. had “pretend[ed] like he was connected” to persuade
appellant to killing Rubio.
3 An investigating officer testified that he had met Perdomo in
connection with this case. The officer testified that Perdomo was extensively
tattooed and had “Duarte Eastside” tattooed across his back. The inmate
with whom appellant was speaking told appellant that he had “heard that
name [Little P.] before.”
4 Earlier in the conversation, the inmate asked appellant if he was with
people “[f]rom the hood.” Appellant stated, “No. One of them was, but he
was keeping watch outside.” Appellant subsequently stated that Suso
wanted to be in his “hood,” but “ain’t no way it’s going down after that, you
hear me.”
5 No shell casings were recovered at the scene of the murder.
6
D. The Gang Expert and Evidence
The prosecutor called Rialto Police Department Officer Adam Acuna to
testify as an expert on gang activity in Baldwin Park. Prior to his current
assignment, Officer Acuna was an officer with the Baldwin Park Police
Department for approximately 11 years. Officer Acuna explained that
Eastside Bolen originated in Baldwin Park around the late 1950’s. The gang
has five different subsets or “cliques”: the Midget Charros, Charros, Locos,
Dukes, and Rascals. Eastside Bolen was responsible for vandalism, theft,
robbery, burglary, assault, and murder. Acuna testified that he had
previously made contact with appellant, who previously admitted being a
member of Eastside Bolen during a consensual encounter.
According to Officer Acuna, reputation, respect, and fear are important
in gang culture. A gang makes itself known “[b]y fear, intimidation. By the
crimes they commit. By how bold they want to be as far as their criminal
activity.” Also important is an individual’s reputation within a gang, and the
reputation of the gang itself. A gang member gains reputation and respect by
defending the reputation of the gang and by committing crimes. The more
severe the crime, “the more fear you put into the public, you’re gonna [sic]
gain more status.” Murder is considered “the highest level of respect” a
member could gain for the gang. From that point forward, if the gang wanted
“to commit a crime or . . . sell drugs and people know that you’re Eastside
Bolen and Eastside Bolen is willing to kill somebody, then they’re not gonna
[sic] necessarily mess with you.” Falsely claiming to have committed a crime
could result in lost respect for the gang member or his gang.
The prosecutor posed a hypothetical question mirroring the facts as
established by the trial evidence, asking whether the murder of Rubio was
7
committed for the benefit of Eastside Bolen.6 While acknowledging there
could be other motivations behind the Rubio murder,7 Officer Acuna replied
that in his expert opinion, the murder was committed for the benefit of the
gang. He explained: “This individual is being challenged as to what his gang
status and his gang . . . is about by going and pushing—once he’s challenged
and he’s pushing forward with this crime . . . and in taking that next level of
executing another human being, . . . his résumé is elevated to another
status.” The murder would also “elevate the status of Eastside Bolen,” as
“this individual would be a representation of Eastside Bolen. . . . There’s
another individual from . . . from Eastside Bolen that is willing to commit a
crime such as that.”
The prosecution introduced certified court dockets of three other
Eastside Bolen members: Gary Galvez, Sivar Osorio, and Arthur Monarque.
The dockets established that between March 2015 and January 2018, Galvez,
Osorio, and Monarque had each been convicted of assault (§ 245) or selling
6 “If a member of a gang was in another area outside of his territory and
he was speaking to someone who he thought was a member of a different
gang, not his rival gang but a different gang, and that person started kind of
challenging him saying, like, what are you about? And started talking about
how a big homie or someone high up in the gangs’ girlfriend or old lady was
raped. And that individual agreed to go out with this person, climbed a fence,
went in, beat the alleged rapist, and then shot the alleged rapist three times,
do you have an opinion of if that crime would have been done for the benefit
of, at the direction of, or in association with a criminal street gang?”
7 On recross-examination, Acuna agreed that the gang member who had
committed the murder in the hypothetical could have harbored motivations
beyond his or her gang. Acuna testified that the killer could “simply have a
hatred towards people who they believe are rapists.”
8
narcotics (Health & Saf. Code, § 11378).8 After admitting these exhibits into
evidence, the court admonished the jury that the crimes committed by
Galvez, Osorio, and Monarque “had nothing to do with the events leading up
to or the fact of this prior conviction. But it’s part of proving whether or not
Eastside Bolen is a criminal street gang. That’s the only way you can
consider that evidence.”
E. Defense Evidence
Appellant called Perdomo’s former girlfriend to testify on matters not
relevant to this appeal.
F. Relevant Jury Instructions
As part of its instruction to the jury on homicide and murder, the court
informed the jury that “[t]he people are not required to prove that [appellant]
had a motive to commit any of the crimes charged.” However, “[h]aving a
motive may be a factor tending to show that [appellant] is guilty. Not having
a motive may be a factor tending to show [appellant] is not guilty.”
The court also instructed the jury on former section 186.22. Under that
instruction, the People were required to prove beyond a reasonable doubt
that appellant “committed the crime for the benefit of, at the direction of, or
in association with a criminal street gang,” and “intended to assist, further,
8 The certified court dockets established a March 2015 conviction of Gary
Galvez for selling narcotics (Health & Saf. Code, § 11378); a November 2016
conviction of Sivar Osorio for also selling narcotics (ibid.); and a January
2018 conviction of Arthur Monarque for assault and unlawful possession of
ammunition and a firearm (§§ 245, 30305, subd. (a)(1); former § 29800, subd.
(a)(1)).
9
or promote criminal conduct by gang members.”9 In the event the jury found
appellant guilty of murder, it could “consider that crime in deciding whether
one of the group’s primary activities was commission of that crime, and
whether a pattern of criminal gang activity has been proved.” (Former
CALCRIM No. 1401.)
DISCUSSION
Appellant does not challenge the sufficiency of the evidence to support
his conviction for murder, or the jury’s finding that he personally discharged
a firearm during the commission of the murder. Instead, appellant contends,
and the Attorney General agrees, that the amendments made by A.B. 333 to
the gang enhancement (§ 186.22, subd. (b)) apply retroactively to this case.
Appellant also contends that section 1109, as enacted by A.B. 333, applies
retroactively to this case and compels a reversal of his underlying conviction
for murder.
9 The jury instruction defined a “criminal street gang” as “any ongoing
organization, association, or group of three or more persons, whether formal
or informal: [¶] 1. That has a common name or common identifying sign or
symbol; [¶] 2. That has, as one or more of its primary activities, the
commission of murder, attempted murder, robbery, assault with a firearm,
felon in possession of a firearm and sales of narcotics; [¶] AND [¶] 3.
Whose members, whether acting alone or together, engage in or have
engaged in a pattern of criminal gang activity.”
The instruction also defined a “pattern of criminal gang activity” as “1.
The commission of murder, attempted murder, robbery, assault with a
firearm, felon in possession of a firearm, and sales of narcotics; [¶] 2. At
least one of those crimes was committed after September 26, 1988; [¶] 3.
The most recent crime occurred within three years of one of the earlier
crimes; [¶] AND [¶] 4. The crimes were committed on separate occasions,
or were personally committed by two or more persons.”
10
We agree that the amendments to section 186.22 apply retroactively in
this case. Moreover, because the record does not demonstrate that the jury
received complete instruction under the law, and because the record evidence
is insufficient to support a finding under the current law, we vacate the true
finding, strike the portion of appellant’s sentence imposed under section
186.22, subdivision (b)(5), and remand the matter to afford the People the
opportunity to retry the gang allegation. We reject appellant’s remaining
contention concerning section 1109.
1. Assembly Bill No. 333
While appellant’s direct appeal was pending, A.B. 333 (Stats. 2021, ch.
669, §§ 1-5) became effective. A.B. 333 amended the gang enhancement
statute to impose additional elements beyond those already in place to
establish a gang enhancement. A.B. 333 also enacted section 1109 to the
Penal Code, which provides in relevant part for the bifurcation of trial, upon
the defendant’s request, of the gang enhancement allegations charged under
section 186.22, subdivision (b).
2. Current Section 186.22
The parties agree, as do we, that the amendments to section 186.22
should be applied retroactively to the gang enhancement under section
186.22, subdivision (b)(1)(C) in this case, and that under the current law,
there is insufficient evidence to support imposition of that enhancement.
Section 186.22 provides for an enhanced punishment whenever 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
11
members.” (§ 186.22, subd. (b)(1).) “A.B. 333’s amendments to section 186.22
apply retroactively to cases like the one here, in which the judgments of
conviction have not become final prior to the effective date of A.B. 333.”
(People v. Lee (2022) 81 Cal.App.5th 232, 237 (Lee), citing People v. Lopez
(2021) 73 Cal.App.5th 327, 343–344 (Lopez); People v. E.H. (2022) 75
Cal.App.5th 467, 478 (E.H.).)
We also agree that the amendments require the reversal of the gang
enhancement under section 186.22. Prior to the amendments made by A.B.
333, a criminal street gang was defined as “any ongoing organization,
association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more
[enumerated criminal acts], having a common name or common identifying
sign or symbol, and whose members individually or collectively engage in, or
have engaged in, a pattern of criminal gang activity.” (Former § 186.22,
subd. (f), italics added.) A “‘pattern of criminal gang activity’” was defined as
“the commission of . . . two or more of [the 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.” (Former § 186.22, subd. (e).)
The court instructed the jury in this case consistent with these
definitions under former section 186.22. (See fn. 12 ante; former CALCRIM
No. 1401.) Also consistent with former section 186.22, the court instructed
the jury that the predicate crimes used to establish a pattern of criminal gang
activity and criminal street gang “need not be gang-related.”
A.B. 333 became effective on January 1, 2022, while appellant’s direct
appeal was pending. A.B. 333 modified the definition of criminal street gang
12
to now require “an ongoing, organized association or group of three or more
persons, whether formal or informal, having as one of its primary activities
the commission of one or more [enumerated criminal acts], having a common
name or common identifying sign or symbol, and whose members collectively
engage in, or have engaged in, a pattern of criminal gang activity.” (Current
§ 186.22, subd. (f), italics added.) A.B. 333 also redefined “‘pattern of
criminal gang activity’” to mean “the commission of . . . two or more
[enumerated criminal acts], 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 of the prior offense and within three years of the date the
current offense is alleged to have been committed, the offenses were
committed on separate occasions or by two or more members, the offenses
commonly benefited a criminal street gang, and the common benefit from the
offenses is more than reputational.” (Current § 186.22, subd. (e)(1), italics
added.)
In light of the foregoing amendments, “imposition of a gang
enhancement [now] 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.” (Lopez, supra, 73 Cal.App.5th at p. 345, quoting § 186.22,
subds. (e)(1)-(2).) The statute also sets forth examples “of a common benefit
that are more than reputational,” which include “financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or intimidation or
13
silencing of a potential current or previous witness or informant.” (§ 186.22,
subd. (g).)
Under the harmless-error standard of Chapman v. California (1967)
386 U.S. 18, 24 (Chapman), “the absence of instruction on the amended
version of section 186.22 requires reversal unless ‘it appears beyond a
reasonable doubt that the error did not contribute the th[e] jury’s verdict.’
(People v. Flood (1998) 18 Cal.4th 470, 504.)” (E.H., supra, 75 Cal.App.5th at
p. 479; People v. Sek (2022) 74 Cal.App.5th 657, 668–670; see People v.
Merritt (2017) 2 Cal.5th 819, 826–831 [instructional error involving the
omission of multiple elements subject to harmless error review].)
Here, to prove Eastside Bolen was a criminal street gang under former
section 186.22, the prosecution submitted evidence that three known
Eastside Bolen gang members (Gary Galvez, Sivar Osorio, and Arthur
Monarque) had each been convicted of assault or selling narcotics (§ 245;
Health & Saf. Code, § 11378) between 2015 and 2018. However, the
prosecution did not introduce evidence (required by the amendments of A.B.
333) that those predicate offenses commonly benefitted Eastside Bolen, or
that the common benefit of the predicate crimes was more than reputational.
Nor was the jury instructed to determine these additional elements; on the
contrary, the jury was instructed that it need not find the predicate offenses
gang-related. On this record, we cannot conclude beyond a reasonable doubt
that the omission of the new elements in section 186.22 did not contribute to
the jury’s verdict. The true finding under section 186.22 must be vacated,
and the matter remanded to give the People the opportunity to prove the
applicability of the enhancements under the amended law. (Lee, supra, 81
Cal.App.5th at p. 239; Lopez, supra, 73 Cal.App.5th at p. 346; E.H., supra, 75
Cal.App.5th at p. 480.)
14
3. Section 1109
According to appellant, the procedural provision of section 1109
requiring a bifurcated trial of gang enhancements upon the request of a
defendant applies retroactively to judgments not yet final on appeal. On that
premise, he contends that the failure to bifurcate the gang enhancement at
his trial requires reversal of his convictions, because had there been a
bifurcation, the jury would not have heard the prejudicial gang evidence in
determining his guilt of the charges.
California courts are currently split on the issue of retroactivity.
(Compare People v. Montano (2022) 80 Cal.App.5th 82, 105–108 [§ 1109
applies retroactively]; People v. Ramos (2022) 77 Cal.App.5th 1116, 1128–
1131 (Ramos) [same]; People v. Burgos (2022) 77 Cal.App.5th 550, 564–568,
rev. granted July 13, 2022, S274743 [same]; with People v. Ramirez (2022) 79
Cal.App.5th 48, 65 (Ramirez), rev. granted Aug. 17, 2022, S275341 [§ 1109
does not apply retroactively]; People v. Perez (2022) 78 Cal.App.5th 192, 207
(Perez), rev. granted Aug. 17, 2022, S275090 [same].) Consistent with our
prior decisions on this issue, we conclude that section 1109 does not apply
retroactively to this case. (Accord, Ramirez, supra, 79 Cal.App.5th at p. 65;
Perez, supra, 78 Cal.App.5th at p. 207; see also People v. Hayes (1989) 49
Cal.3d 1260, 1264.)
In any event, even were we to apply section 1109 retroactively to this
case, any failure to bifurcate under section 1109 was harmless, regardless of
whether we use the standard of People v. Watson (1956) 46 Cal.2d 818(Watson), or Chapman, supra, 386 U.S. 18. (See Watson, supra, at p. 836
[state law error requires reversal only if it is reasonably probable that the
error had an effect on the verdict]; Chapman, supra, at p. 24 [reversal is
15
required under the federal Constitution unless the error was harmless
beyond a reasonable doubt].)
First, a large portion of the gang evidence would have been admitted in
the first stage of any bifurcated trial, as that evidence was relevant to
appellant’s motive to commit the murder. According to the recorded jailhouse
conversation, appellant was introduced to an older gang member (Little P.)
through one of appellant’s “homies” (Suso) who had “bang[ed]” in appellant’s
clique. It was only after Little P. challenged appellant’s status in Eastside
Bolen that appellant agreed to kill Rubio. To explain why a gang member
like appellant would be motivated to kill a complete stranger, Acuna testified
that committing such crimes would maintain or elevate a gang member’s
status within a gang, or to increase the gang’s overall reputation in the
community. Obviously, evidence of this gang-related motive for the killing
was admissible as relevant to the substantive offense. (See People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 295 [evidence of motive probative
of premeditation and deliberation]; People v. Smith (2005) 37 Cal.4th 733,
741 [evidence of motive often probative of intent to kill]; see also People v.
Hernandez (2004) 33 Cal.4th 1040, 1049 [gang evidence relevant to
establishing motive and identity].)
Second, any gang evidence that was introduced for purposes other than
establishing motive was relatively sanitized. To prove Eastside Bolen was a
criminal street gang within the meaning of section 186.22, the prosecution
introduced certified court dockets in which other Eastside Bolen members
had been convicted of assault or selling narcotics. This evidence, which
established predicate offenses far less serious than the current charge of
murder, did not bear on appellant’s own criminal conduct.
16
Third, the jury admonitions and instructions prevented the jury from
using any gang evidence to establish appellant’s bad character or disposition
to commit crime. Absent any showing by appellant to the contrary, we
presume the jurors followed these instructions. (People v. Krebs (2019) 8
Cal.5th 265, 335; see also Ramos, supra, 77 Cal.App.5th at p. 1132 [“the jury
was given a limiting instruction regarding its consideration of the gang
evidence, which we presume it followed”].)
Finally, there was compelling evidence of appellant’s guilt beyond use
of gang evidence in this case. Through his own confession, appellant
provided details of the Rubio murder that were corroborated by the physical
evidence appearing at the scene. As appellant had described, Rubio was
found pistol whipped and shot three times, once in the back of the head, by a
firearm containing appellant’s DNA. (See People v. Hawkins (1995) 10
Cal.4th 920, 957 [execution-style shooting at close range may establish
premeditation and deliberation]; People v. Bolin (1998) 18 Cal.4th 297, 332–
333.) Fingerprint and shoeprint impressions matching appellant’s were
found on the area near the warehouse retaining wall, verifying appellant’s
confession that he had sneaked into the warehouse to kill Rubio. In light of
the foregoing, we find no reasonable probability of a different result in a
bifurcated trial, and find any purported error harmless beyond a reasonable
doubt.
//
//
//
//
17
DISPOSITION
The true finding on the gang enhancement allegation (§ 186.22, subd.
(b)) is vacated, the related sentence on the enhancement (§ 186.22, subd.
(b)(5)) is stricken, and the matter is remanded to the superior court. On
remand, the People shall decide whether to retry appellant on the gang
enhancement allegation (§ 186.22, subd. (b)). If the People elect not to retry
this allegation, the superior court is directed to resentence appellant by
striking the minimum term of parole eligibility under section 186.22,
subdivision (b)(5). If the People decide to retry appellant on the gang
enhancement allegation, and if the allegation is found true, the court shall
resentence appellant according to applicable law.
Upon determination as to the status of the gang enhancement
allegation (no retrial, or retrial and final resolution), the clerk of the superior
court shall prepare an amended abstract of judgment for appellant reflect the
appropriate modifications, and forward it to the California Department of
Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
18