People v. Atlas CA2/5 ( 2022 )

Filed 5/19/22 P. v. Atlas CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B306982
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA460994)
JEREMIAH ATLAS,
Defendant and Appellant.
THE PEOPLE, B307748
Plaintiff and Respondent,
v.
TIMOTHY LOVE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, George G. Lomeli, Judge. Affirmed in part,
vacated in part, and remanded with directions.
Kevin D. Sheehy, under appointment by the Court of
Appeal, for Defendant and Appellant Jeremiah Atlas.
Dwyer + Kim and Jin H. Kim, under appointment by the
Court of Appeal, for Defendant and Appellant Timothy Love.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez, David A.
Wildman, and Shezad H. Thakor, Deputy Attorneys General, for
Plaintiff and Respondent.
2
Defendants and appellants Jeremiah Atlas (defendant
Atlas) and Timothy Love (defendant Love), along with two other
companions, fired more than thirty bullets into a car and killed
Ontario Courtney. Defendants were each convicted of one count
of first degree murder and one count of shooting into an occupied
vehicle; the jury acquitted defendants of attempting to murder
other observed occupants of the car, who did not testify at trial.
In these consolidated appeals from the judgments of conviction,
we consider several issues concerning sentencing enhancements:
whether the change Assembly Bill No. 333 (2021-2022 Reg. Sess.)
(AB 333) makes to law requiring proof of gang predicate offenses
applies retroactively and requires vacatur of true findings on the
gang allegations and firearm enhancements that depend on the
validity of gang enhancements; whether punishment for the
shooting into an occupied vehicle conviction should have been
stayed, or barred based on the felony murder “merger” doctrine;
and whether there is substantial evidence defendants
proximately caused the murder victim’s death for purposes of a
firearm enhancement.
I. BACKGROUND
A. The Murder of Ontario Courtney
1. The testifying co-defendant’s account of the
shooting
At around 2:00 a.m. on September 13, 2017, co-defendant
Dasha Goldston (Goldston) arranged to meet with Jailen Yoakum
(Yoakum), a young man with whom she was in a relationship.
Goldston drove to Yoakum’s home between 3:00 a.m. and 4:00
a.m. The two smoked marijuana in her car for some period of
time.
3
Eventually Yoakum went back inside the residence and
reemerged with defendant Atlas, defendant Love, and another
man. Yoakum said he wanted to take the other men to their
homes. Goldston knew Yoakum and defendant Atlas were Main
Street Mafia Crips (Main Street) and she considered herself an
associate of the gang. Yoakum drove, Goldston sat in the front
passenger seat, and defendant Love, defendant Atlas, and the
other man sat in the back seat.
Rather than driving his companions home, however,
Yoakum drove the car into the territory of the Hoover Criminals
street gang. The men in the car started pulling out guns. At
some point during the ride, Goldston saw defendant Love
flashing his gun and asked him to hand it over. He gave it to her
and she tried to put it in the glove compartment. Defendant Love
then told her to give the gun back, and she did.
Near an intersection at 51st Street and Hoover Street,
defendants and the other men got out of the car with their
weapons and Goldston heard a lot of gunfire for approximately
five minutes. She ducked down in the car and did not see
anything. Goldston heard all four men yell “Main Street.” When
the men reentered the car, Yoakum was bleeding. He began
driving away, but Goldston took over driving at the next traffic
light. The police gave chase, and Goldston claimed she did not
immediately realize the police were following them.1
1
Goldston described events somewhat differently during an
interview with police officers than she did at trial. During the
interview, Goldston said a man in the back of the other car asked
the men in her car “Where are you from,” after which they replied
“Main Street” and got out of the car and started shooting.
4
2. Other witness accounts
At around 4:30 a.m. on September 13, 2017, Morris Garay
was awakened by the sound of gunshots. Garay looked out the
window of his home near the intersection of Hoover and 51st
Street and saw a dark four door car parked next to a red car. He
observed a person standing next to the passenger side of the dark
car, and he saw the person fire shots at the red car before getting
into the passenger side of the dark car. Garay saw a man who
had been “hit,” later identified as Courtney, exit the passenger
side of the red car, walk toward the front of a house, and fall.
Two other occupants of the red car, later identified as Shquana
Phillips (Phillips) and Miesha Tyars (Tyars), got out of the car,
ran to the wounded man, and screamed for someone to call the
police.
Officer Steven Zaby responded to the scene of the shooting.
The video from his body camera shows Courtney lying on the
ground when Officer Zaby arrived and Phillips and Tyars, along
with others, nearby. A medical examiner would later find
Courtney sustained three gunshot wounds, one of which was
rapidly fatal.
Officer Thomas Call was driving and approaching the
intersection of Hoover and 51st Street when he heard three to
five seconds of continuous gunfire. He then saw a black Honda
traveling westbound on 51st Street turn right on Hoover Street
and accelerate quickly. A frantic woman on the sidewalk
screamed “go get that vehicle” and Officer Call gave chase. The
chase ended when the Honda crashed. Goldston got out of the car
and attempted to walk away from the vehicle before she was
stopped by the police. Defendants got out of the car too, and they
were apprehended. Two firearms were found and recovered
5
inside the vehicle, and two other firearms were found and located
outside of and nearby the vehicle.
3. The aftermath
Law enforcement officials discovered nine bullet impacts in
a church near the scene of the shooting. They identified thirty to
forty shell casings in the street, which they determined came
from four different caliber guns. A firearms analyst would later
determine, from an analysis of the shell casings and the guns
recovered in and near the black Honda, that 37 shots were fired
by the recovered guns: 11 shots from a .45 caliber semiautomatic,
11 shots from a .22 caliber handgun, 10 shots from a nine
millimeter handgun, and five shots from a .40 caliber gun. There
were also a slew of bullet impacts observed on the red car (also
identified as a maroon SUV), including 20 on the left side of the
vehicle alone.
Defendants were placed in a cell together at the police
station. The cell had hidden recording equipment in it.
Defendant Love noted “Tiny East and Bink” were lucky because
they were juveniles. Defendant Love wondered how “cuz” (i.e.,
Yoakum) was shot. Defendant Atlas thought someone might
have shot back at them, but defendant Love disagreed.
Defendant Atlas then concluded “cuz shot his self.” Defendants
also discussed the story they should tell their lawyers to avoid
criminal liability and expressed some concern that “bitch”
(presumably Goldston) would be “running her mouth.”
B. The Charges
Defendant Love was charged in a four count information in
May 2019. In February 2020, the prosecution filed an amended
6
information charging both defendants; Goldston was also named
as a co-defendant.
As relevant for our purposes,2 the amended information
alleges defendants and Goldston committed four crimes. Count
one alleges defendants and Goldston murdered Courtney with
malice aforethought in violation of Penal Code section 187,
subdivision (a).3 Counts two and three allege defendants and
Goldston attempted to murder Phillips and Tyars willfully,
deliberately, and with premeditation, in violation of sections 664
and 187, subdivision (a). Count four alleges defendants and
Goldston willfully, unlawfully, and maliciously discharged a
firearm at an occupied motor vehicle in violation of section 246.
As to each of these counts, the information alleged the
offense was 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.
It further alleged as to these counts that defendants personally
and intentionally discharged a handgun causing Courtney’s
death (§ 12022.53, subd. (d)), personally and intentionally
discharged a handgun (§ 12022.53, subd. (c)), and personally used
a handgun (§ 12022.53, subd. (b)). Additionally, the information
alleged a principal (§ 12022.53, subd. (e)) personally and
intentionally discharged a firearm causing great bodily injury
2
The information also alleged fifteen counts against
defendant Atlas in connection with a separate incident. Those
counts were severed and tried separately, and they are not at
issue in this appeal.
3
Undesignated statutory references that follow are to the
Penal Code.
7
and death, personally and intentionally discharged a firearm,
and personally used a firearm.
C. Pertinent Trial Proceedings
The prosecution called numerous witnesses, including
Garay and law enforcement personnel.4 Goldston called
witnesses and testified in her own defense. Neither defendant
Atlas nor defendant Love testified.
Among the many witnesses for the prosecution was Officer
Alex Zamora of the Los Angeles Police Department, who served
as the prosecution’s gang expert on Main Street. Among other
things, Officer Zamora testified regarding two predicate offenses
committed by individuals he knew to be members of Main Street.
The first, Austin Milligan, was convicted of a robbery that
occurred on or about September 13, 2017. The second, Gary
Wooley, was convicted of an attempted murder perpetrated on
November 10, 2017. Officer Zamora opined that defendants were
members of Main Street.
Officer Zamora was also presented with a hypothetical that
tracked the facts of this case. He opined the crimes would have
been committed in association with the gang and for the benefit
of the gang, with the specific intent to further criminal conduct
by gang members.
D. Verdicts and Sentencing
The jury convicted both defendants of murder as charged in
count one and fixed the degree at first degree murder. The jury
4
Phillips and Tyars were subpoenaed to appear at trial, but
neither did.
8
also found true the following allegations in connection with the
murder conviction in count one: (1) a principal personally and
intentionally discharged a handgun, which caused Courtney’s
death, within the meaning of section 12022.53, subdivisions (d)
and (e)(1); (2) a principal personally and intentionally discharged
a handgun within the meaning of section 12022.53, subdivisions
(c) and (e)(1); (3) a principal personally used a handgun within
the meaning of section 12022.53, subdivisions (b) and (e)(1); and
(4) the offense was committed for the benefit of, at the direction
of, or in association with a criminal street gang with the specific
intent to promote, further and assist criminal conduct by gang
members, pursuant to section 186.22, subdivision (b)(1)(C).
The jury also convicted both defendants of shooting at an
occupied motor vehicle as charged in count four. The jury found
true the following allegations in connection with that conviction:
(1) defendants personally and intentionally discharged a
handgun, which caused Courtney’s death, within the meaning of
section 12022.53, subdivision (d); (2) defendants personally and
intentionally discharged a firearm within the meaning of section
12022.53, subdivision (c); (3) defendants personally used a
firearm within the meaning of section 12022.53, subdivision (b);
and (4) the offense was committed for the benefit of, at the
direction of, or in association with a criminal street gang with the
specific intent to promote, further, and assist criminal conduct by
gang members, pursuant to section 186.22, subdivisions (b)(1)(C)
and (b)(4).
The jury acquitted defendants on the two attempted
murder charges in counts two and three of the amended
information that named Phillips and Tyars as the victims.
9
In advance of sentencing, defendant Love filed a
memorandum arguing, in pertinent part, that the jury’s not
guilty finding regarding the two counts of attempted murder
demonstrated there was insufficient evidence to conclude Tyars
and Phillips were in the vehicle at the time of the shooting, and
thus, the sentence on count four should be stayed pursuant to
section 654. Defendant Atlas’s sentencing memorandum
similarly argued section 654 required staying his sentence on
count four.
The trial court found no section 654 stay was warranted.
The court reasoned the jury could have concluded, without
contradiction, that defendants were not guilty of the attempted
murder of Tyars and Phillips but both occupied the car at the
time of the shooting for purposes of section 246. Giving an
example, the court explained that firing at an occupied vehicle is
a general intent crime and the jury could have accordingly
believed Tyars and Phillips were in the car but defendants were
not aware of their presence—which would negate the intent
required for attempted murder but not the intent required for
shooting at an occupied vehicle.
The trial court sentenced each defendant to a term of 25
years to life for Courtney’s murder. It added an additional term
of 25 years to life under section 12022.53, subdivisions (d) and (e),
based on the jury’s true finding on the principal-discharge of a
firearm causing death and gang allegations. For the shooting at
an occupied vehicle conviction, the court sentenced both
defendants to a consecutive term of 15 years to life, plus an
additional term of 20 years to life—not the 20-year determinate
term that is actually authorized by the statute—for personal
10
discharge of a firearm pursuant to section 12022.53, subdivision
(c).
As to count four, the minute orders of the sentencing
hearing state as follows: “15 years to life pursuant to Penal Code
section 246, elevated pursuant to the dictates of Penal Code
section 186.22(b)(4)[.] [¶] 20 years to life pursuant to Penal Code
section 12022.53(c)[.]”
II. DISCUSSION
For reasons we first summarize and then explain, all of the
trial court’s rulings predicated on then-existing law do not
warrant reversal but the gang enhancement true findings and
related firearm enhancement true findings must be vacated in
light of AB 333.
The “merger” doctrine discussed in People v. Chun (2009)
45 Cal.4th 1172 (Chun) has no application here because it is
limited to felony murder cases and this is not a felony murder
case; merger-like principles instead arise in connection with the
issue of whether section 654 compels staying defendants’
sentences for shooting at an occupied vehicle. Substantial
evidence supports the trial court’s decision to refrain from
ordering such a stay. Garay saw three people in the car that
defendants and their accomplices fired at 37 times, and those
facts permit a finding that defendants harbored an objective in
shooting at the car independent of the objective to kill Courtney.
The jury’s acquittal of defendants on the two attempted murder
charges does not fatally undermine this conclusion, and no Sixth
Amendment issue arises with such a finding because section 654
operates to reduce a sentence, not to increase it. Substantial
evidence also supports the jury’s true finding, in connection with
11
the shooting at an occupied vehicle convictions, that defendants
personally discharged a handgun causing victim Courtney’s
death. Though there is no evidence indicating which gun fired
the fatal bullet, there is adequate evidence defendants were each
a substantial concurrent cause of Courtney’s death—and that is
enough under controlling and persuasive precedent.
Defendants’ arguments concerning the effect of AB 333, on
the other hand, have merit—as the Attorney General largely
concedes. The amendments AB 333 made to the definition of a
“pattern of criminal gang activity” in section 186.22 apply
retroactively to defendants and render the prosecution’s evidence
of predicate acts insufficient. We shall accordingly vacate the
gang enhancement true findings and remand for retrial if the
People so elect. We will also vacate the related firearm
enhancements that depend on the validity of the gang
enhancement true findings, and all this will require resentencing
whether or not the vacated enhancements are retried.
A. The Merger Doctrine Is Inapposite
Defendant Atlas, joined by defendant Love, contends the
count four offense of shooting at an occupied vehicle should
“merge” into the count one offense of murder, relying on the
merger doctrine as set forth in Chun, supra, 45 Cal.4th 1172.
The flaw in this argument is that the merger doctrine only
controls cases in which the felony murder rule applies.
The felony-murder rule makes a killing that occurs during
the commission of certain felonies murder “without the necessity
of further examining the defendant’s mental state.” (Chun,
supra, 45 Cal.4th at 1182.) “First degree felony murder is a
killing during the course of a felony specified in section 189, such
12
as rape, burglary, or robbery. Second degree felony murder is ‘an
unlawful killing in the course of the commission of a felony that
is inherently dangerous to human life but is not included among
the felonies enumerated in section 189 . . . .’ [Citation.]” (Ibid.)
The merger doctrine developed as a limit on the second
degree felony-murder rule to “ameliorate [the rule’s] perceived
harshness.” (Chun, supra, 45 Cal.4th at 1188.) Under the
merger doctrine, “the underlying felony must be an independent
crime and not merely the killing itself. Thus, certain underlying
felonies ‘merge’ with the homicide and cannot be used for
purposes of felony murder.” (Id. at 1189.) “When the underlying
felony is assaultive in nature, such as violation of section 246 or
246.3, . . . the felony merges with the homicide and cannot be the
basis of a [second degree] felony-murder instruction.” (Id. at
1200.)
No felony murder instruction was given in this case: the
jury was instructed on malice aforethought, premeditation and
deliberation, and unpremeditated murder of the second degree,
but not felony murder. Pulling selected quotes from Chun that
use more general language, defendant Atlas contends Chun and
the merger doctrine are not limited to felony-murder scenarios.
But this is a misreading of Chun, which describes the merger
doctrine only as a restriction on the second degree felony-murder
rule. (Chun, supra, 45 Cal.4th at 1188-1189; see also People v.
Ireland (1969) 70 Cal.2d 522, 540.) The merger doctrine has no
application here.
13
B. Substantial Evidence Supports the Trial Court’s
Section 654 Determination
Section 654 provides in pertinent part: “An act or omission
that is punishable in different ways by different provisions of law
may be punished under either of such provisions, but in no case
shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a); see generally People v. Corpening
(2016) 2 Cal.5th 307, 311-312.) Both defendants appropriately
concede the crimes here involved a course of conduct (a
multiplicity of gunshots), not a single physical act.
Section 654 prohibits punishment for multiple crimes
arising from a single indivisible course of conduct. (People v.
Latimer (1993) 5 Cal.4th 1203, 1207-1208.) The application of
section 654 “turns on the defendant’s objective in violating”
multiple statutory provisions rather than temporal proximity.
(People v. Britt (2004) 32 Cal.4th 944, 952.) If both crimes for
which defendants were convicted (murder and shooting at an
occupied vehicle) were merely incidental to or were the means of
accomplishing or facilitating one objective, defendants may be
punished only once. (Ibid.) “If[, on the other hand,] a defendant
‘entertain[s] multiple criminal objectives which [are] independent
of and not merely incidental to each other, he may be punished
for independent violations committed in pursuit of each objective
even though the violations share[ ] common acts or [are] parts of
an otherwise indivisible course of conduct.’ [Citation.]” (People v.
Williams (1992) 9 Cal.App.4th 1465, 1473, first bracketed
insertion added.)
The question of whether section 654 applies is a question of
fact for the trial court; “[i]ts findings will not be reversed on
appeal if there is any substantial evidence to support them.”
14
(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) “We review
the trial court’s determination in the light most favorable to the
[People] and presume the existence of every fact the trial court
could reasonably deduce from the evidence.” (Ibid.)
Substantial evidence supports the decision here to refrain
from staying punishment for the shooting at an occupied vehicle
conviction. The evidence presented at trial permits a finding that
defendants entertained multiple independent criminal objectives,
for instance, an objective to kill one of the occupants and an
objective to only injure or harass and intimidate the others (or,
alternatively, to damage and disable the car they occupied to
prevent them from giving chase after the shooting). In our view,
these differing objectives are fully consistent with the jury’s
verdicts, including the acquittal of defendants on the charge of
attempting to murder Phillips and Tyars. But even if defendants
were right that positing separate objectives would be inconsistent
with the jury’s not guilty verdicts on the attempted murder
charges, that still would not be cause to reverse because the
verdicts can be explained on lenity grounds and do not
necessarily reflect a belief by the jury, as defendants assume
(contrary to Garay’s testimony), that Courtney was “the only
person who ‘occupied’ the red car . . . during the lethal shooting.”
(See People v. Abilez (2007) 41 Cal.4th 472, 512-513
[inconsistency in verdicts “‘may show no more than jury lenity,
compromise, or mistake, none of which undermines the validity of
a verdict’”].)
Defendants, however, protest that it was a violation of their
Sixth Amendment rights for the trial court to make the factual
finding that there were multiple victims in the car because the
question was neither posed to nor answered by the jury. The
15
prohibition against such findings discussed in People v.
Gallardo (2017) 4 Cal.5th 120 pertains to the circumstance of a
sentencing court making findings about the facts underlying a
defendant’s prior conviction in order to impose additional
punishment for a current conviction. (Id. at 124.) That, of
course, is not the situation here. Regardless, the Sixth
Amendment right to a jury trial does not apply to trial court
findings under section 654 anyway. (See, e.g., People v. Deegan
(2016) 247 Cal.App.4th 532, 547-550; People v. Solis (2001) 90
Cal.App.4th 1002, 1021-1022.) “‘“The question of whether section
654 operates to ‘stay’ a particular sentence does not involve the
determination of any fact that could increase the penalty for a
crime beyond the prescribed statutory maximum for the
underlying crime. . . .’ [Citation.] ‘ . . . [S]ection 654 is not a
sentencing ‘enhancement.’ On the contrary, it is a sentencing
‘reduction’ statute.”’” (People v. Carter (2019) 34 Cal.App.5th 831,
846.)
C. Substantial Evidence Supports the Section 12022.53,
Subdivision (d) Enhancement Found True in
Connection with the Shooting at an Occupied Vehicle
Conviction
Section 12022.53 prescribes “sentence enhancements
(prison terms of 10 years, 20 years, and 25 years to life) for
increasingly serious circumstances of firearm use.” (People v.
Palmer (2005) 133 Cal.App.4th 1141, 1149.) Subdivision (d)
authorizes an additional, consecutive term of 25-years-to-life
when a defendant “personally and intentionally discharges a
firearm and proximately causes great bodily injury, as defined in
16
Section 12022.7, or death, to any person other than an
accomplice . . . .” (§ 12022.53, subd. (d).)
“Section 12022.53(d) requires . . . only that [the defendant]
‘proximately caused’ the great bodily injury or death.” (People v.
Bland (2002) 28 Cal.4th 313, 336 (Bland).) “A person can
proximately cause a gunshot injury without personally firing the
weapon that discharged the harm-inflicting
bullet . . . . [¶] . . . [S]ection 12022.53(d) does not require that the
defendant fire a bullet that directly inflicts the harm. The
enhancement applies so long as defendant’s personal discharge of
a firearm was a proximate, i.e., a substantial, factor contributing
to the result.” (Id. at 337-338.)
“[I]t has long been recognized that there may be multiple
proximate causes of a homicide, even where there is only one
known actual or direct cause of death.” (People v. Sanchez (2001)
26 Cal.4th 834, 846 (Sanchez).) “The circumstance that it cannot
be determined who fired the single fatal bullet, i.e., that direct or
actual causation cannot be established, does not undermine
defendant’s . . . murder conviction if it was shown beyond a
reasonable doubt that defendant’s conduct was a substantial
concurrent cause of [the victim’s] death.” (Id. at 845.) Multiple
individuals engaged in the same gun battle resulting in the death
of a victim from a single bullet may thus all be proximate causes
of the victim’s death. (Ibid.)
The facts in Sanchez bear this out. Two members of rival
gangs engaged in a gun fight and an innocent bystander was hit
by a stray bullet and killed. (Sanchez, supra, 26 Cal.4th at 838.)
The parties agreed they could not establish whether the
defendant or the rival gang member fired the fatal shot. (Id. at
845.) Our high court found that though “it could not be
17
determined who was the direct or actual shooter of the single
fatal round, the evidence, with all reasonable inferences drawn in
favor of the guilty verdicts, supports a finding that defendant’s
commission of life-threatening deadly acts in connection with his
attempt on [the rival gang member’s] life was a substantial
concurrent, and hence proximate, cause of [the bystander’s]
death.” (Id. at 848-849.)
Here, substantial evidence supports the conclusion that
both defendants were proximate causes of Courtney’s death.
They were both in the car when it arrived at the scene of
Courtney’s murder. Goldston testified both defendants had guns,
and both defendants exited the car along with Yoakum and the
other man, proclaiming their affiliation to Main Street. As much
as five minutes of gunfire followed. When police investigated the
scene after the shooting, they found multiple shell casings from
four different guns. This is sufficient evidence for the jury to find
beyond a reasonable doubt that both defendants shot at Courtney
and their deadly acts were proximate causes of his death—
regardless of whose bullet inflicted the fatal blow.
Defendants agree there is substantial evidence they each
personally discharged a firearm, but they contend they could
have proximately caused Courtney’s death only if the act of firing
their guns “set[ ] in motion a chain of events that produce[d] as a
direct, natural, and probable consequence” the shooting of
Courtney and “without which the . . . death would not have
occurred.” Defendants extrapolate upon this quoted statement,
taken from Bland, to posit that setting a chain of events in
motion necessarily contains a temporal requirement—meaning
defendants could only be a proximate cause of Courtney’s death if
they shot first.
18
The quoted language from Bland is a recitation of CALJIC
No. 17.19.5, the pattern jury instruction regarding the section
12022.53, subdivision (d) enhancement (Bland, supra, 28 Cal.4th
at 335), and Bland itself does not establish such a temporal
requirement. Moreover, Bland cites with approval the concept of
concurrent causation, as explained in CALJIC 3.41.5 (Id. at 335,
338 [“‘There may be more than one cause of the [great bodily
injury or death]. When the conduct of two or more persons
contributes concurrently as a cause of the [great bodily injury or
death], the conduct of each is a cause of the [great bodily injury or
death] if that conduct was also a substantial factor contributing
to the result. A cause is concurrent if it was operative at the
moment of the [great bodily injury or death] and acted with
another cause to produce the [great bodily injury or
death]. [¶] [If you find that the defendant’s conduct was a cause
of [great bodily injury or death] to another person, then it is no
defense that the conduct of some other person [, even the
[injured] [deceased] person,] contributed to the [great bodily
injury or death]]”].) Defendants’ reliance on Justice Kennard’s
dissenting opinion in Bland is unpersuasive.
5
The jury in this case was instructed with CALJIC 17.19.5.
Though the Use Notes to that instruction provide that CALJIC
3.41 should also be given where there is more than one cause of
the bodily injury or death, CALJIC 3.41 was not read to the jury.
Neither defendant objected to the omission below, or requested
the inclusion of the instruction, and neither argue on appeal that
the instruction should have been given.
19
D. Gang Allegations and AB 333
In his opening brief, defendant Love argued the jury’s true
findings on the gang allegations (namely, that both counts one
and four were committed for the benefit of, at the direction of, or
in association with a criminal street gang with the specific intent
to promote, further and assist criminal conduct by gang
members) should be vacated because the trial court erred by
instructing the jury to consider crimes that did not qualify as
predicate offenses when determining whether the prosecution
had proved the requisite elements. Defendant Atlas joined in the
argument. In supplemental briefing, defendants argue newly
enacted AB 333 applies retroactively to them because their
convictions are not final. Specifically, defendants argue they
should benefit from the amendment to section 186.22 that
provides the offenses used to prove a pattern of criminal gang
activity cannot include the offense for which the defendant is
being tried. (See Stats. 2021, ch. 699, § 3, adding Pen.
Code § 186.22, subd. (e)(2) [“The currently charged offense shall
not be used to establish the pattern of criminal gang activity”].)
The Attorney General concedes defendants are entitled to
the benefit of this amendment to section 186.22. The concession
is appropriate; we agree the statutory change applies
retroactively under the rule announced in In re Estrada (1965) 63
Cal.2d 740 at pages 744-745 and further discussed in People v.
Figueroa (1993) 20 Cal.App.4th 65 at pages 68 and 70-71
(Figueroa).
As the Attorney General further concedes, one of the
predicate offenses used to establish the gang’s pattern of criminal
activity in this case occurred after the date of defendants’
offenses. “Crimes occurring after the charged offense cannot
20
serve as predicate offenses to prove a pattern of criminal gang
activity.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1458.)
Thus, the prosecution cannot have sufficiently proven the
existence of two or more predicate offenses under the law as
amended by AB 333 because the current offenses of conviction
cannot be relied on as predicate offenses that prove a pattern of
gang activity.
Under the circumstances, we believe the proper remedy is
to vacate the gang enhancements—specifically, the true findings
on the section 186.22, subdivision (b) allegations attached to both
counts of conviction—and to remand with directions to permit
retrial of those enhancements (under currently prevailing law) if
the People so elect. (See Figueroa, supra, 20 Cal.App.4th at 71-72
& fn. 2 [remand appropriate to allow prosecution to establish
additional element retroactively added by statutory amendment];
see also People v. Lopez (2021) 73 Cal.App.5th 327, 346 [vacating
enhancements in light of AB 333 and remanding for limited
retrial].)
Defendants argue that if the true findings on the gang
allegations are vacated, certain other enhancements must also be
vacated. Specifically, defendants argue the jury’s true finding in
connection with count one that a principal personally used and
discharged a firearm causing death under sections 12022.53,
subdivisions (b), (c), (d), and (e)(1), and its true findings on count
four that they personally used firearms under section 12022.53,
subdivision (b) and personally discharged firearms under section
12022.53, subdivision (c), should be vacated. That is correct and
we shall vacate those enhancements as well, though they are
likewise subject to re-imposition if the gang enhancements are
retried.
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One final matter. At sentencing, the trial court’s oral
pronouncement of sentence added an additional term of
imprisonment, pursuant to section 12022.53, subdivision (c), to
each defendant’s sentence on count four. The court remarked
imposing additional punishment pursuant to section 12022.53,
subdivision (d) may be subject to section 654 but punishment for
personal discharge pursuant to section 12022.53, subdivision (c)
was not. As stated, we are vacating the enhancement imposed
pursuant to section 12022.53, subdivision (c), and this will
require resentencing and a final determination regarding staying
punishment for the section 12022.53, subdivision (d)
enhancement.
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DISPOSITION
Defendants’ convictions are affirmed. The gang allegation
true findings (§ 186.22, subd. (b)) attached to counts one and four
are vacated as to both defendants. The principal-armed
allegation true findings (§ 12022.53, subds. (b)-(d), (e)(1))
attached to count one are vacated as to both defendants. The
personal discharge (§ 12022.53, subd. (c)) and personal use
(§ 12022.53, subd. (b)) firearm allegation true findings attached
to count four are vacated as to both defendants. The People may
retry the vacated gang and firearm allegation true findings if
they so elect. At resentencing, which is required whether or not
the vacated true findings are retried, the trial court shall resolve
the issue of a section 654 stay of punishment for the section
12022.53, subdivision (d) true finding attached to count four.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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