People v. Lima ( 2020 )

Filed 5/27/20
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B293030
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA141014)
v.
ANDRES LIMA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Allen J. Webster, Judge. Affirmed as modified
and remanded for further proceedings.
C. Matthew Missakian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, Steven D. Matthews, Idan
Ivri, and Roberta L. Davis, Deputy Attorneys General, for
Plaintiff and Respondent.
 Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of the Discussion parts A, B, D, and E.
1
I. INTRODUCTION
A jury convicted defendant and appellant Andres Lima of
the attempted willful, deliberate, and premeditated murder of
Israel R. (Pen. Code, §§ 664/187, subd. (a)1) and the assault of
Omar O. by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4)). The jury found true the allegations that in
the commission of the attempted murder, a principal personally
used and personally and intentionally discharged a firearm
causing great bodily injury (§ 12022.53, subds. (b)-(d) & (e)(1))
and defendant committed the offenses 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, subds. (b)(1)(C) (attempted
murder) & (b)(1)(A) (assault)).2 Defendant admitted he served
two prior prison terms. (§ 667.5, subd. (b).) The trial court
sentenced defendant to 32 years to life in state prison.
On appeal, defendant contends we must reverse his
conviction for attempted murder in light of Senate Bill No. 1437
which abrogated the natural and probable consequences doctrine;
even if Senate Bill No. 1437 did not abrogate the natural and
1 All statutory references are to the Penal Code unless
otherwise noted.
2 The jury was unable to reach verdicts as to codefendants
Daniel Gutierrez and Raymundo Hernandez, who also were
alleged to have committed willful, deliberate, and premeditated
attempted murder and assault by means of force likely to produce
great bodily injury with the accompanying firearm and gang
allegations, as well as other alleged enhancements specific to
those defendants.
2
probable consequences doctrine as to attempted murder, the trial
court erred in failing to instruct the jury that a premeditated and
deliberate attempted murder had to be a natural and probable
consequence of the target crime; the prosecutor committed
misconduct by using prospective jurors’ comments to bolster the
prosecution’s factual theories and inflame the jury’s passions and
biases; remand is warranted to allow the trial court to exercise its
discretion whether to strike the firearm enhancements pursuant
to section 12022.53, subdivision (h); and he is entitled to 116 days
of conduct credit. We remand the matter to the trial court so it
may exercise its discretion whether to strike any of defendant’s
section 12022.53 firearm enhancements, order the sentencing
minute order modified to reflect that defendant was awarded 116
days of conduct credit, and affirm the judgment in all other
respects.
II. BACKGROUND3
A. The Prosecution’s Case
1. The Fight and Shooting
At around 10:00 a.m. on July 17, 2016, 16-year-old Israel O.
had a dispute on Facebook with another minor, Miguel R., during
which Miguel challenged Israel to a fight at the Rosecrans
Recreational Center, a park. Israel agreed. Israel wanted
“backup,” so he asked his brothers Aaron O. and Omar O. and
3 Because Gutierrez and Hernandez are not parties to this
appeal, our recitation of facts focuses on those related to
defendant and the issues he raises on appeal.
3
Omar’s friend Alvaro Q. to accompany him.4 At about 12:45 p.m.
that day, Israel and the others went to the Rosecrans
Recreational Center.
The Rosecrans Recreation Center was in the Gardena 13
gang’s territory. Neither Israel nor Miguel was a gang member.
Omar, Aaron, and Alvaro also were not gang members.
After arriving at the park, Israel and the others sat on a
bench. Israel got up to put his sweatshirt in Aaron’s car. As
Israel walked to Aaron’s car, two groups of people approached
him. The groups totaled 10 people and consisted mostly of
Hispanic males. Defendant approached Israel and said, “‘Where
the shoelaces at?’” “Shoelaces” was a derogatory term that
referred to South Los gang members. South Los and Gardena 13
were rival gangs. Defendant then asked Israel where he was
from. Israel, who understood defendant to be asking to which
gang he belonged, did not respond. Defendant punched Israel in
the face multiple times. Israel defended himself.
Omar and Aaron ran to assist Israel and became involved
in fights with defendant’s companions. Omar approached the
group and said, “[W]hoa, stop, what’s happening?” He heard
someone say “‘Nah, fuck that’” and was then struck in the face
and the back of the head, multiple times, by two of defendant’s
companions. Omar could not identify his attackers. He suffered
a cut to his left eyebrow and lost vision in his left eye for some
period of time.
4 Israel testified that he did not tell his brothers that he was
going to the park to fight someone because he believed they
would not take him. Omar testified that Israel told him about
the planned fight with Miguel.
4
Aaron heard defendant say, “‘This is Gardena.’” Aaron
responded, “‘I don’t bang.’” Alvaro saw a man other than
defendant make a gang sign with his hand and heard him say,
“‘Gardena’” and “‘Fuck your dead homies.’”
At the same time, Alvaro approached Miguel, whom he
knew, to ask what was taking place. They argued and attempted
to fight, but a woman with a baby interceded.
At some point, defendant picked up Israel by the legs and
slammed him to the ground. Defendant picked up Israel again
and pinned his arms behind his back. On direct examination,
Israel testified that defendant then said, “‘Get the burner.’”
Israel understood a “burner” to be a gun. On cross-examination,
Israel testified he was not sure if he heard the word “burner” or if
defendant used that word. On redirect examination, Israel
explained that he was having trouble remembering, given the
passage of time. When he told a detective in July 2016 that
defendant said, “‘Get the burner,’” he was very clear.
Omar testified that he heard defendant say, “‘Get the
burner, get the burner, come shoot him.’” Aaron testified that he
heard defendant or one of his codefendants say something like,
“‘Take out the strap,’” or “‘Take out the burner.’” He understood
“strap” or “burner” to be a gun. Aaron heard defendant say—
referring to Israel—“Shoot him . . . .”
A juvenile, Leonardo E., shot Israel in his lower abdomen.
Leonardo said something about the number 13, and defendant
and his companions ran away.
A three-second video of part of the incident at the park was
provided to the police. Los Angeles Police Department Detective
Christian Mrakich showed the video to Gardena Police
Department Officer Jason Hooker and Los Angeles Police
5
Department Officer Joseph Chavez who identified, among others,
defendant and Leonardo from the video.
2. Gang Evidence
In July 2016, Officer Hooker worked in a unit that handled
all gang-related crimes in Gardena. Gardena 13 was the largest
gang in Gardena. The number 13 in the gang’s name showed it
was “paired up” with the Mexican Mafia. Officer Hooker opined
that defendant and Hernandez were members and Leonardo was
an associate of the Gardena 13 gang.
Officer Chavez testified as the prosecution’s gang expert.
As a member of the Los Angeles Police Department’s gang unit,
one of the gangs he was assigned was the Gardena 13 gang.
Officer Chavez opined that Gutierrez was an associate and
defendant, Hernandez, and Leonardo were members of Gardena
13. Defendant and Hernandez stipulated that they were
members of Gardena 13.
Officer Chavez testified that the inquiry, “‘Where are you
from’” is gang-related and usually leads to a confrontation or an
altercation. According to Officer Chavez, veteran gang members
use juvenile gang members—veterans know that juveniles will
not receive the same punishment for committing the same crimes
as adults. “Up-and-comer[s]” in a gang “have to show that they’re
willing to do what the older members ask of them and be who the
older members want them to be.”
The prosecutor gave Officer Chavez a set of hypothetical
facts based on the facts in this case and asked if the attempted
murder and assault were committed for the benefit of, at the
direction of or in association with the Gardena 13 gang, with the
6
specific intent to promote, further, or assist in any criminal
conduct by gang members. Officer Chavez testified that the
shooting in the hypothetical was committed for the benefit of, in
association with, and at the direction of Gardena 13.
B. The Defense Case5
Martin Flores testified as a gang expert for Gutierrez.6 He
testified that he was one of 12 non-law enforcement gang experts
on the Los Angeles County Superior Court’s panel. He grew up
in East Los Angeles where he was exposed to gangs. As an adult,
he worked throughout Los Angeles County to divert young people
from gang participation. Later, he worked with high risk and
incarcerated young people through a conference he developed
called “Wake Up, It Ain’t No Game.” Flores “work[ed] a lot” as a
gang expert and earned $220,000 the previous year.
Flores testified he was familiar with the case. He had read
the police reports and listened to some of the testimony. He
opined that simply because Gutierrez lived in an area where gang
members lived and spoke to people in that area did not make
Gutierrez a gang associate. Flores believed that Gutierrez was
not a Gardena 13 associate or member. Gutierrez was not at the
Rosecrans Recreational Center in a gang capacity; he was there
with other members of the community, a couple of whom had
5 None of the defendants testified at trial. Neither defendant
nor Hernandez called any witnesses.
6 Derek Ibanez also testified for Gutierrez. Because his
testimony is not relevant to the issues on appeal, we do not
summarize it here.
7
gang histories. Like Gutierrez, those community members were
not at the park in a gang capacity.
Flores explained that the fight and shooting resulted from a
personal conflict and were not gang related. The victim and his
companions were not gang associates or members. Leonardo did
not have gang tattoos and testimony about his gang status was
speculation.
On cross-examination, the prosecutor told Flores to assume
that the first thing the person who was shot was asked was,
“Where are you from?”; Gutierrez was actively involved in the
fight and threw punches; he threw up a “G”; he said, “Gardena”;
he said, “[F]uck your dead homies” at the beginning of the fight;
and he said, “[S]hoot him” and asked if that was enough to
change his opinion that Gutierrez was not a gang associate or
member. Flores said it would not change his opinion without
further information. Flores explained that the inquiry, “‘[W]here
are you from?’” is not automatically a gang challenge and may be
an attempt to recall a person’s identity.
III. DISCUSSION
A. Senate Bill No. 1437
Defendant contends we must vacate his willful, deliberate,
and premeditated attempted murder conviction, which rested on
a natural and probable consequences theory of aiding and
abetting, in light of Senate Bill No. 1437 which abrogated the
natural and probable consequences doctrine. Whether Senate
Bill No. 1437 applies to attempted murder is pending before the
California Supreme Court. (People v. Dennis (2020) 47
8
Cal.App.5th 838, 844.) We agree with those cases that hold
Senate Bill No. 1437 does not apply to attempted murder. (See
e.g., People v. Dennis, supra, 47 Cal.App.5th at p. 844; People v.
Lopez (2019) 38 Cal.App.5th 1087, 1106, review granted
Nov. 13, 2019, S258175 [“As a matter of statutory interpretation,
Senate Bill [No.] 1437’s legislative prohibition of vicarious
liability for murder does not, either expressly or impliedly,
require elimination of vicarious liability for attempted murder”].)
B. The Trial Court’s Failure to Instruct on Premeditation and
Deliberation
Defendant contends that if we do not hold that Senate Bill
No. 1437 abrogated the natural and probable consequences
doctrine as to attempted murder, we still must reverse his
conviction for willful, deliberate, and premeditated attempted
murder because the trial court erred in failing to instruct the jury
that premeditated and deliberate attempted murder had to be a
natural and probable consequence of the target crime.7
7 The trial court instructed the jury on the natural and
probable consequences doctrine as to attempted murder with
CALCRIM No. 403 as follows:
“To prove that the defendant is guilty of Attempted Murder
under a theory of Natural and Probable Consequences, the People
must prove that:
“1. The defendant is guilty of Disturbing the Peace:
Fighting or Challenging Someone to a Fight;
“2. During the commission of Disturbing the Peace:
Fighting or Challenging Someone to a Fight, a co-participant in
that Disturbing the Peace: Fighting or Challenging Someone to a
Fight committed the crime of Attempted Murder;
9
Defendant concedes that “[t]he instruction given was consistent
with” the California Supreme Court’s holding in People v. Favor
(2012) 54 Cal.4th 868” (Favor) [“Under the natural and probable
consequences doctrine, there is no requirement that an aider and
abettor reasonably foresee an attempted premeditated murder as
the natural and probable consequence of the target offense. It is
sufficient that attempted murder is a reasonably foreseeable
consequence of the crime aided and abetted, and the attempted
murder itself was committed willfully, deliberately and with
premeditation”], but argues that “decisions since Favor placed it
“AND
“3. Under all of the circumstances, a reasonable person
in the defendant’s position would have known that the
commission of the Attempted Murder was a natural and probable
consequence of the commission of the Disturbing the Peace:
Fighting or Challenging Someone to a Fight.
“A co-participant in a crime is the perpetrator or anyone
who aided and abetted the perpetrator. It does not include a
victim or innocent bystander.
“A natural and probable consequence is one that a
reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is
natural and probable, consider all of the circumstances
established by the evidence.
“To decide whether crime of Attempted Murder was
committed, please refer to the separate instructions that I have
given you on those crimes.
“The People are alleging that the defendant originally
intended to aid and abet Disturbing the Peace: Fighting or
Challenging Someone to a Fight. If you decide that the defendant
aided and abetted that crime and that Attempted Murder was a
natural and probable consequence of that crime, the defendant is
guilty of Attempted Murder. You do not need to agree about
which of these crimes the defendant aided and abetted.”
10
on shaky ground and the Legislative message conveyed by
[Senate Bill No.] 1437 topples it completely. Favor can no longer
be viable.”
1. Standard of Review
We apply the de novo standard of review when assessing
whether jury instructions correctly state the law. (People v. Posey
(2004) 32 Cal.4th 193, 218.)
2. Analysis
In support of his argument, defendant cites People v. Chiu
(2014) 59 Cal.4th 155, 167 (Chiu), in which the California
Supreme Court concluded that a first degree premeditated and
deliberate murder conviction for an aider and abettor cannot be
based on the natural and probable consequences doctrine as a
matter of law. Defendant concedes that his argument is contrary
to the California Supreme Court’s holding in Favor, supra, 54
Cal.4th 868, that Chiu cited but did not overrule Favor, and that
we are bound by Favor.
There is a split of authority as to whether Chiu’s holding
applies to premeditated attempted murder convictions.
(Compare People v. Mejia (2019) 40 Cal.App.5th 42, 43
[concluding that the trial court “improperly instructed the jury on
premeditated attempted murder under the natural and probable
consequences doctrine”] with People v. Gallardo (2017) 18
Cal.App.5th 51, 85 [“[s]imply put, there is no language in Chiu
that overrules or otherwise questions the continuing validity of
. . . Favor”].) This issue is currently pending before the California
11
Supreme Court. (People v. Lopez (Aug. 21, 2019, B271516, review
granted Nov. 13, 2019, S258175) [rehearing petition granted on
two questions, including: “In order to convict an aider and
abettor of attempted willful, deliberate and premeditated murder
under the natural and probable consequences doctrine, must a
premeditated attempt to murder have been a natural and
probable consequence of the target offense? In other words,
should [Favor, supra,] 54 Cal.4th 868 . . . be reconsidered in light
of Alleyne v. United States (2013) 570 U.S. 99 . . . [(Alleyne)] and
[Chiu, supra,] 59 Cal.4th 155 . . . ?”].)
The Attorney General argues that we are bound by stare
decisis to follow Favor, supra, 54 Cal.4th 868 and affirm the
conviction for attempted premeditated murder. (People v.
Johnson (2012) 53 Cal.4th 519, 528; Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales,
Inc.).) We agree with the Attorney General and defendant that
we are bound by Favor. (Auto Equity Sales, Inc., supra, 57 Cal.2d
at p. 455.)
Defendant also argues that the United States Supreme
Court’s holding in Alleyne, supra, 58 U.S. at page 103,
undermines Favor. Because Alleyne does not deal with natural
and probable consequences in a prosecution for attempted willful,
deliberate, and premeditated murder, in our view we are bound
to follow Favor. As we note, the continuing viability of Favor in
light of Alleyne is a matter that is currently pending before the
California Supreme Court. (People v. Lopez (Aug. 21, 2019,
B271516, review granted Nov. 13, 2019, S258175.)
12
C. Prosecutorial Misconduct
Defendant argues that the prosecutor committed
misconduct when she referred to prospective jurors’ comments in
her rebuttal argument to bolster the prosecution’s factual
theories and inflame the jury’s passions and biases. We agree
that the prosecutor committed misconduct, but conclude the
misconduct was not prejudicial.
1. Background
During her rebuttal argument, the prosecutor addressed
the testimony of Flores, Gutierrez’s gang expert. She noted that
Flores “pretty much would not say that this was a gang crime on
any level with any facts.” The prosecutor then said she wanted to
direct the jury’s attention to jury selection, stating that “some of
the things that the perspective [sic] jurors said during that
conversation, if you were listening carefully, are the exact
concepts we are dealing with in this case.”8 She then said to the
jury:
“How about the man who talked about his special needs son
who was crossing the street. And he was hit up by a group of
guys who said where you from, before they shot him five times
and he still has five bullets in his body.
8 Only portions of the jury voir dire are in the record on
appeal, so we are unable to determine the accuracy of the
prosecutor’s characterizations of the prospective jurors’
responses. In any event, defendant does not challenge the
accuracy of the prosecutor’s recitation of voir dire.
13
“How about the woman who said her god daughter’s sister
was part of a gang and that gang was called Gardena 13. We
hadn’t even mentioned what gang was involved in this case.
“How about the guy who went to Vegas, remember him.”
Defense counsel objected, “Objection, your Honor,
[Evidence Code section] 352.” The trial court overruled the
objection stating, “Argument of counsel is not evidence. Evidence
is that which has been testified to, stipulations[,] and exhibits.
And you’ve had a combination of all three.”
The prosecutor resumed her argument:
“How about the man who went to Vegas. Remember him.
He was pretty likeable. And he talked about gangs because he
grew up around gangs and he told you the veteran gang members
make the younger gang members prove themselves and they
prove themselves by committing crimes.
“Now, the defense wants you to think that Martin Flores is
a true gang expert. These concepts are basic and they are things
that people are dealing with in the community. I didn’t even
need to bring a gang expert in here to explain some of these
concepts. But Officer Chavez is a police officer who is risking his
life every day in this neighborhood to protect the community
against gang crimes. But I guess they don’t want you to think
that he’s an expert. They want Martin Flores, who is paid
$220,000 a year to testify for the defense to explain to you that
this isn’t a gang crime. That is not credible. And you know that.”
Later, discussing whether prosecution witnesses had
motives to lie, the prosecutor said to the jury, “What is the motive
to lie for these kids. Honestly. Do you think they want to be
here? You think they want to be going through this? You think
they want to sit on that witness stand and identify known gang
14
members? There was a very powerful moment in this trial where
I was asking [a witness] what his concerns were. And he said it
in a way that I wouldn’t necessarily say it and maybe you
wouldn’t say it. I would probably just say straight out, I’m scared
of retaliation. What he said, though, was so powerful. He said,
I’m afraid that what I say up here, is going to affect me out
there.[9]
“And if there is one thing that you all can agree on, [it] is
that witnesses who testify in gang cases, do get retaliated
against. Do you remember the young girl, she was sitting right
here. She was very sharp. She was the one that ditched school to
go to Starbucks. She was talking about her friend in Carson, who
was killed on his door step. She was like, I know who did it. I
know who did it and the police are not arresting them and she
[was] frustrated. But then when I asked her, did you pick that
person out of a photo?
“Yes, I told them.
“Okay, are you willing to go to court?
“No. She wanted nothing to do with that responsibility.
Why? Because it [is] scarry [sic]. Because gang cases are scarry
[sic]. And, so, you think these witnesses are going to come in
here, that they’re going to point people out in sic-packs [sic] and
9 During direct examination, the prosecutor had asked Aaron
if he was nervous about testifying. Aaron responded that he was.
The prosecutor asked what caused him to be nervous. Aaron
responded, “Just saying something I shouldn’t.” The prosecutor
asked, “And when you say that you’re worried about saying
something you shouldn’t say, what do you mean?” Aaron
answered, “I just don’t want to say anything that’s going to put
my life in threat.” The prosecutor asked, “So you have a fear of
retaliation?” Aaron responded, “Yes.”
15
they’re going to identify these defendants. If they are lying, what
do they have to gain from that? Nothing.”
Later, the prosecutor, discussing gang culture, said,
“[Defense counsel] got up here, at the very beginning of the
defense’s argument and he said oh, you know, a young man got
shot. And there’s a cultural [sic] out there. Kind of breezed by it.
But let’s talk about the culture. And this is where I’m going to
end. There is a culture of adult gang members, making juveniles
commit their crimes. Why? Because gangs want to stay in
business. They want to keep doing what they do, which is engage
in violence on our sheets [sic]. And the way they’re going to do it,
is they’re going to target our youth. They’re going to go after the
young boys and girls of our communities. They’re going to go
after the teenagers and they’re going to make them do their dirty
work. And that’s exactly what these three defendants did. And
they should be ashame[d] of themselves.”
After returning from a lunch recess, defense counsel moved
for a mistrial, arguing that several parts of the prosecutor’s
argument were inflammatory and misconduct including, as
relevant here, her reference to gang shootings that were not part
of the trial evidence and to the statement by the prospective juror
who “went to Vegas” and had grown up around gangs that
veteran gang members made younger gang members prove
themselves by committing crimes. The trial court denied
defendant’s mistrial motion, ruling the jury had heard about the
other shootings and the prospective juror’s comment about the
actions of “veteran gang members” during voir dire.
16
2. Standard of Review
A claim of prosecutorial misconduct is governed by the
abuse of discretion standard of review. (People v. Alvarez (1996)
14 Cal.4th 155, 213.) “To prevail on a claim of prosecutorial
misconduct based on remarks to the jury, the defendant must
show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we ‘do not lightly infer’
that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements. [Citation.]”
(People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
3. Analysis
‘“‘A prosecutor’s misconduct violates the Fourteenth
Amendment to the United States Constitution when it “infects
the trial with such unfairness as to make the conviction a denial
of due process.” [Citations.] In other words, the misconduct must
be “of sufficient significance to result in the denial of the
defendant’s right to a fair trial.” [Citation.] A prosecutor’s
misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves “the use of
deceptive or reprehensible methods to attempt to persuade either
the court or the jury.”’”’ ([People v. Powell (2018) 6 Cal.5th 136,]
172, 237 Cal.Rptr.3d 793, 425 P.3d 1006.)” (People v. Hoyt (2020)
8 Cal.5th 892, 943.)
“It is well settled that it is misconduct for a prosecutor to
base argument on facts not in evidence. [Citation.]” (People v.
17
Mendoza (2016) 62 Cal.4th 856, 906.) Similarly, it is misconduct
for prosecutors to “quote individual jurors in their argument to
the entire jury.” (People v. Freeman (1994) 8 Cal.4th 450, 517.)
Nevertheless, “‘it does not follow that such conduct is necessarily
prejudicial in any given case.’ [Citations.]” (Id. at p. 518.)
a. Forfeiture
“[T]o preserve a claim of prosecutorial misconduct for
appeal, ‘“‘a criminal defendant must make a timely and specific
objection and ask the trial court to admonish the jury to
disregard the impropriety.’” [Citation.] The lack of a timely
objection and request for admonition will be excused only if either
would have been futile or if an admonition would not have cured
the harm.’ [Citation.]” (People v. Hoyt, supra, 8 Cal.5th at
pp. 942–943.)
On appeal, defendant contends the prosecutor’s references
to statements by prospective jurors were impermissible because
those statements were not evidence admitted at trial. Those
statements concerned (1) the man with the special needs son who
was asked, “‘Where you from?’” before being shot, (2) the woman
whose goddaughter’s sister was part of the Gardena 13 gang, (3)
the man who had grown up around gangs and said that veteran
gang members made younger gang members prove themselves by
committing crimes, and (4) the woman who was afraid to testify
about a gang killing. Defendant further contends the prosecutor
improperly argued that “guilty verdicts would help reduce the
ability of gangs to ‘target our youth,’ ‘go after the young boys and
girls of our communities’ and ‘go after the teenagers and . . .
make them do their dirty work.’”
18
The Attorney General argues that defendant forfeited most
of his claims on appeal because he failed to object on the same
grounds and request an admonition in the trial court. Defendant
argues there was no forfeiture because any objection would have
been futile as the trial court had instructed the attorneys to not
interrupt each other’s arguments with objections “if at all
possible” and it overruled defense counsel’s first objection to the
prosecutor’s argument.
In defense counsel’s motion for a mistrial, he initially
argued, “I think that it was highly prejudicial, inflammatory and
misconduct for the prosecutor to bring in statements about other
shootings, other gang shootings, other gun incidents outside this
court, referring to mask [sic] killings, I believe. And I believe
that . . . was strictly inflammatory and I would be moving for
mistrial on behalf of [defendant] based upon that.” During
argument on his mistrial motion, defense counsel added, “But
with that statement, a man went to Vegas . . . and [what] she’s
talking about . . . brings that into context with veteran gang
members . . . and comparing what they do with new or young
gang members, that’s not a part of this case and I think was
improper and insightful [sic] to bring that up.”
Defendant’s failure to object timely, or at all, in the trial
court to the references to the prospective juror whose
goddaughter’s sister was part of the Gardena 13 gang or to the
need for guilty verdicts to impede the ability of gangs to “‘target
our youth’” to make them do the gang’s “‘dirty work’” forfeits
these claims on appeal. (People v. Hoyt, supra, 8 Cal.5th at
pp. 942–943.) The futility exception to the forfeiture rule does
not save these claims. That exception applies in “unusual” or
“extreme” circumstances like those in People v. Hill (1998) 17
19
Cal.4th 800, 821, 826 where defense counsel’s failure to object
was excused by the prosecutor’s “continual misconduct, coupled
with the trial court’s failure to rein in her excesses, [which]
created a trial atmosphere so poisonous” that further objections
“would have been futile and counterproductive” to the defendant.
(Id. at p. 821; see also id. at p. 836.) No such “unusual” or
“extreme” circumstances were present here.
Defendant’s motion for mistrial as to the remaining
claims—the references to the man with the special needs son who
was shot after being asked, “‘Where you from?,’” the man who
spoke about veteran gang members making younger gang
members prove themselves by committing crimes, and the
woman who was afraid to testify about a gang killing—was
sufficiently timely to preserve these claims for appeal. (See
People v. Peoples (2016) 62 Cal.4th 718, 801 [the failure to object
timely to prosecutorial misconduct did not result in forfeiture
where defense counsel moved for a mistrial the following day—
before defense closing arguments began—thus giving trial court
the opportunity to admonish the jury before deliberations
began].)
b. Merits
As noted, after application of the forfeiture doctrine,
defendant’s remaining misconduct claims concern the
prosecutor’s references to the man whose special needs son was
shot after being asked, “‘Where you from?,’” the man who spoke
about veteran gang members making younger gang members
prove themselves by committing crimes, and the woman who was
afraid to testify about a gang killing. We agree with defendant
20
that the prosecutor, during closing argument, improperly argued
facts not in the evidence (People v. Mendoza, supra, 62 Cal.4th at
p. 906) and improperly quoted individual jurors (People v.
Freeman, supra, 8 Cal.4th at p. 517). But the misconduct was
harmless in light of the overwhelming evidence of guilt adduced
at trial.
The evidence showed that defendant—an admitted member
of the Gardena 13 gang who was accompanied by other Gardena
13 gang associates and members—approached Israel and issued
the gang challenge, “‘Where you from?’” Israel did not respond,
and defendant attacked him. In the ensuing brawl, defendant
said, “‘This is Gardena.’” One of his companions made a gang
sign with his hand and said, “‘Gardena,’” and “‘Fuck your dead
homies.’” After slamming Israel to the ground, defendant picked
up Israel and held his arms behind his back. Then defendant or
one of his companions called for someone to get a “burner”—i.e. a
gun. Defendant told Leonardo to shoot Israel. Defendant held
Israel while Leonardo, a Gardena 13 gang member, shot Israel.
Leonardo said something about the number “13.” Law
enforcement identified defendant from the three-second video,
other witnesses identified him and described his role in the fight
and shooting before and at trial.
Defendant argues that to the extent the jury relied on a
direct aiding and abetting theory, it was a close case because the
testimony that suggested defendant said somebody should get a
gun was “very uncertain.” He reasons that the jury’s failure to
convict either Gutierrez or Hernandez “suggests that
[defendant’s] mere participation in the fight would not have been
enough to convince the jury that he aided and abetted the
shooter.”
21
Even without evidence that defendant called for someone to
get a gun, the case for direct aiding and abetting was not close.
Contrary to his assertion, defendant did not “mere[ly]
participat[e] in [a] fight.” He was the primary actor in the
assault on Israel. He approached Israel, issued a gang challenge,
repeatedly struck Israel, and held Israel’s arms behind his back—
after at least someone called for a gun—while Leonardo shot him.
Moreover, the fact that the jury did not convict Gutierrez or
Hernandez tends to demonstrate that the jury did not rely on any
improper remarks by the prosecutor. The prosecutor made the
challenged remarks generally and not specifically in reference to
defendant. Had the jury relied on any improper remarks in
convicting defendant, it would have also convicted Gutierrez and
Hernandez.
Finally, the trial court instructed the jury that the
attorney’s arguments were not evidence. We presume the jury
understood and followed the court’s instructions. (People v. Hajek
and Vo (2014) 58 Cal.4th 1144, 1178, overruled on another
ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
D. Senate Bill No. 620
Under section 12022.53, subdivision (h),10 (which became
effective January 1, 2018, pursuant to Senate Bill No. 620 (Stats.
10 “The court may, in the interest of justice pursuant to
[s]ection 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.
The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.”
(§ 12022.53, subd. (h).)
22
2017, ch. 682, § 2)), a trial court may strike a section 12022.53
firearm enhancement in the interest of justice. Defendant
contends the trial court made two errors in exercising its section
12022.53, subdivision (h) discretion. First, in imposing the 25-
years-to-life subdivisions (d) and (e)(1) enhancement, it relied on
the fact that the case was serious, gang-related, and involved a
shooting when that enhancement can only be imposed in a
serious, gang-related case that involves a shooting. Second, the
record suggests the court was unaware that it could strike the
subdivisions (d) and (e)(1) enhancement and impose a lesser
enhancement under subdivisions (b) or (c) and (e)(1). We agree
that the court erred in relying on the fact that defendant’s
attempted murder offense was gang-related and involved a
shooting in declining to strike defendant’s section 12022.53,
subdivisions (d) and (e)(1) enhancement.11 Accordingly, we
remand the matter for the court to exercise its informed
sentencing discretion.
1. Background
At defendant’s sentencing hearing, the trial court observed
that Senate Bill No. 620 was a new law that it had addressed in
two prior cases. About its application in defendant’s case, the
court said:
11 Because we hold the trial court misperceived its discretion
to strike the section 12022.53, subdivisions (d) and (e)(1)
enhancement, we need not reach defendant’s additional claim
that the court misperceived its discretion to impose a lesser
subdivisions (b) or (c) and (e)(1) enhancement.
23
“And I looked at this in terms of [defendant] with respect
to, is this a case that really should be reduced and [Senate Bill
No. 620] basically should be applied based upon the fact that the
court does have discretion.
“But the problem with this case, [defense counsel] and
[defendant], is this is a serious case and this is a gang case. And
this case could have resulted in death. The only reason that it
didn’t, thankfully it didn’t, is because of the relatively quick work
by the paramedics.
“But using guns and shooting people because of gang
activity is not what [Senate Bill No. 620] is all about. And so it’s
very difficult for the court to somehow, in good conscience and
trying to be as fair to [defendant] as I can, to really consider
imposing a [Senate Bill No.] 620 reduction when this is a gang
case and a gang shooting.
“And [defendant] is the oldest of all these people out there.
And instead of basically exercising some maturity—maybe his
brain is not fully developed. But I would think a 24-year-old
brain is more developed than a 15-year-old’s brain, based on my
life experience. But it could have been handled differently. I
realize it’s stupid, it’s silly, and it’s childish and it should not
have happened.
“But it’s just a serious case. And this is not a case that, as
far as the court is concerned, merits the 17 years. I would love to
give him the 17 years. But this is basically a gang case and a
shooting. And this is not the kind of activity that [Senate Bill
No. 620] basically was—how shall I put it—was passed to allow
the court to exercise some discretion.
24
“So I looked at the cases, and because of that, [defense
counsel] and [defendant], I don’t see where this case is a [Senate
Bill No.] 620-case at all.”
2. Standard of Review
We review a trial court’s decision not to strike a sentence
enhancement pursuant to section 1385 under the abuse of
discretion standard. (People v. Carmony (2004) 33 Cal.4th 367,
371.)
3. Analysis
Section 12022.53, subdivision (d) provides in relevant part:
“Notwithstanding any other provision of law, any person who, in
the commission of a felony specified in subdivision (a) . . .
personally and intentionally discharges a firearm and
proximately causes great bodily injury, as defined in Section
12022.7, or death, to any person other than an accomplice, shall
be punished by an additional and consecutive term of
imprisonment in the state prison for 25 years to life.”12
Subdivision (e)(1) makes subdivision (d) applicable to a defendant
who did not personally and intentionally discharge a firearm if
that defendant was found to have violated section 186.22 (the
gang statute) and a principal in the commission of the offense
12 Attempted murder is an offense specified in section
12022.53, subdivision (a). (§ 12022.53, subd. (a)(1) & (18).)
25
personally and intentionally discharged a firearm in violation of
subdivision (d).13
In sentencing defendant, the trial court observed that this
was a serious case—i.e., attempted murder—and a gang case and
that “using guns and shooting people because of gang activity is
not what [Senate Bill No. 620] is all about.” However, the only
reason that defendant was subject to the section 12022.53,
subdivisions (d) and (e)(1) enhancement was because he
committed an attempted murder and the jury found true the
gang allegation. Senate Bill No. 620, through section 12022.53,
subdivision (h), conferred upon trial courts the discretion to
strike all of section 12022.53’s enhancements including those
imposed because the defendant committed a gang-related
attempted murder. (See People v. Vela (2018) 21 Cal.App.5th
1099, 1114 [remanding for the trial court to exercise its discretion
whether to strike or dismiss the jury’s true finding that during
the commission of a gang-related murder and attempted murder,
another principal intentionally discharged a firearm causing
death and great bodily injury].) Because the trial court
misperceived Senate Bill No. 620’s application, remand is
appropriate so the court can exercise its informed discretion.
13 Subdivision (e)(1) states: “The enhancements provided in
this section shall apply to any person who is a principal in the
commission of an offense if both of the following are pled and
proved: [¶] (A) The person violated subdivision (b) of Section
186.22. [¶] (B) Any principal in the offense committed any act
specified in subdivision (b), (c), or (d).”
26
E. Conduct Credit
At defendant’s sentencing hearing, the prosecutor appears
to have argued that defendant was not entitled to any conduct
credit because he was sentenced to a life term. The trial court
stated that it did not believe that defendant was entitled to
conduct credit and awarded defendant 777 days of presentence
custody credit and no days of conduct credit.
Section 2933.1, subdivision (c) limits the presentence
conduct credit a defendant convicted of a violent felony may
receive to 15 percent of the defendant’s actual presentence
custody. Section 2933.2, subdivision (a) prohibits an award of
conduct credit to a defendant convicted of murder. As the
Attorney General notes, section 2933.2, subdivision (a) does not
apply to attempted murder.
Defendant argues that his conviction for a violent felony14
limits his conduct credit to 15 percent of his actual presentence
custody, but his life term does not bar an award of any credit.
Citing People v. Duff (2010) 50 Cal.4th 787, 793 [“The
circumstance that a defendant is sentenced to an indeterminate
sentence does not preclude the earning of presentence conduct
credit”], the Attorney General agrees. So do we. Accordingly,
defendant is entitled to 116 days of conduct credit. (People v.
Ramos (1996) 50 Cal.App.4th 810, 816 [a defendant is entitled to
the greatest whole number of days that does not exceed 15
percent of his actual presentence custody].)
14 Violent felonies under section 667.5, subdivision (c) include
attempted murder ((c)(12)) and any violation of section 12022.53
((c)(22)).
27
IV. DISPOSITION
The matter is remanded to the trial court so it may exercise
its discretion whether to strike any of defendant’s section
12022.53 firearm enhancements and the sentencing minute order
is ordered modified to reflect that defendant was awarded 116
days of conduct credit. In all other respects, the judgment is
affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
KIM, J.
I concur:
BAKER, J.
28
People v. Lima -- B293030
RUBIN, P. J. – Concurring;
I have signed the majority, but I write separately to express
additional thoughts about the prosecutorial misconduct in this
case. The prosecutor made a conscious decision that she would
structure at least part of her rebuttal argument along the line
that seemingly much of the evidence in the trial conformed to the
experiences with, and fear of, gangs that several of the
prospective jurors had expressed earlier in voir dire. Twenty-six
lines of reporter’s transcript into her rebuttal argument, the
prosecutor harkened back to the lengthy voir dire process. She
then argued, “And some of the things that the perspective [sic]
jurors said in that conversation, if you were listening carefully,
are the exact concepts we are dealing with this case.” Her first
example was the prospective juror whose son was crossing the
street. Gang members threatened the son and shot him five
times.
This was not just an isolated moment of overzealousness at
the end of a stressful attempted murder trial. Instead, the
prosecutor proceeded to match the experiences of other
prospective jurors to the evidence at trial. Off and on, for the
next 18 pages of transcript, the prosecutor returned to the theme
that might be described as, “The prosecution evidence must be
true because something similar happened to several of the
prospective jurors.”
The majority has quoted at length of the prosecutor’s other
invocations of the experiences of the prospective jurors. There is
no need to repeat them here.
I agree with the majority that the argument was
1
improper, at a minimum, because “it is misconduct for a
prosecutor to base argument on facts not in evidence.
[Citation.]” (People v. Mendoza (2016) 62 Cal.4th 856, 906.)
Significantly, these were not just any “facts not in evidence,”
these were voir dire statements by prospective jurors who
were not testifying but whose words would carry special
weight, far beyond a remark improperly attributed to a
person the jury had never seen. Referring to facts not in
evidence has the serious potential of interfering with a fair
trial. As our Supreme Court said just the other day, an
argument based on facts not in evidence, “ ‘ “ ‘although
worthless as a matter of law, can be “dynamite” to the jury
because of the special regard the jury has for the prosecutor,
thereby effectively circumventing the rules of evidence.’ ”
[Citations.]’ [Citations.] ‘ “Statements of supposed facts not
in evidence . . . are a highly prejudicial form of misconduct,
and a frequent basis for reversal.” ’ ” (People v. Rodriguez
(May 21, 2020, S251706) __ Cal.5th __ quoting People v. Hill
(1998) 17 Cal.4th 800, 828, overruled on another ground in
Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Beyond referring to facts not in evidence, the
prosecutor’s argument seemed calculated to inflame the jury.
This was a gang case – and the referenced voir dire passages
all dealt with painful and sometimes horrific experiences the
prospective jurors had had with gangs. Our Supreme Court
has advised of the critical line between forceful advocacy and
argument designed to inflame the passions of the jury. The
“jury should not be given the impression that emotion may
reign over reason. . . . [I]rrelevant information or
inflammatory rhetoric that diverts the jury’s attention from
2
its proper role, or invites an irrational, purely subjective
response, should be curtailed.” (People v. Lewis (1990)
50 Cal.3d 262, 284.)
At bottom, the prosecutor’s argument violated a short but
direct rule of law expressed by the Supreme Court in People v.
Freeman (1994) 8 Cal.4th 450, 517: “[C]ounsel should not quote
individual jurors in their argument to the entire jury.” The
prosecutor here did just that.
If this court had reversed defendant’s conviction, we would
have been required by statute to report the prosecutor to the
State Bar, for such reporting is required, “[w]henever a
modification or reversal of a judgment in a judicial proceeding is
based in whole or in part on the misconduct, incompetent
representation, or willful misrepresentation of an attorney.”
(Bus. & Prof. Code, § 6086.7; see also People v. Hill, supra,
17 Cal.4th at p. 853, fn. 13 [reversal of murder conviction for
prosecutorial misconduct required Supreme Court to notify State
Bar].)
I agree with the majority that the evidence against
defendant was overwhelming, and reversal is not required.
There will be no report to the State Bar. Nevertheless, it may be
time to bring forward the words of our first district in People v.
Lambert (1975) 52 Cal.App.3d 905, 911–912:
“Despite our conclusion that the misconduct here was
nonprejudicial, we feel compelled to forewarn prosecutors that we
have too often of late been faced with the task of determining
whether unnecessarily zealous prosecutors have committed
misconduct, and if so, determining whether, on the basis of the
whole record, that misconduct was prejudicial. Frequently, it
seems that deputy district attorneys see their sole function as
3
winning cases even at the expense of a fair trial for the defendant
and the proper administration of justice in the courts. These
excesses then force the Attorney General’s office into often
extreme positions in an effort to justify the prosecutor’s actions.
The Attorney General might consider whether it is more
profitable to spend some time schooling such individuals in
proper prosecutorial conduct. Certainly the courts’ time could be
better spent than having to review the entire record in numerous
cases to determine whether a reversal is mandated by
prosecutorial misconduct or not.
“While this court is not inclined to find prosecutorial
misconduct where we feel none exists, we do feel that the
instances of such improprieties have come before us too often.
Similarly, while we are not inclined to find such conduct
prejudicial if the record does not warrant such a conclusion, we
feel compelled to warn prosecutors that they cannot continue
with impunity to engage in such conduct thinking that appellate
courts will save them by applying the harmless error rule.
Convictions have been reversed before, and will continue to be,
whenever prejudicial misconduct occurs. The Attorney General,
district attorneys, and deputy district attorneys should take
appropriate steps to minimize such occurrences.” (See also
People v. Denard (2015) 242 Cal.App.4th 1012, 1023, fn. 4; People
v. Sanchez (2014) 228 Cal.App.4th 1517, 1537.)
RUBIN, P. J.
4