People v. Quevedo CA2/6 ( 2023 )

Filed 3/21/23 P. v. Quevedo CA2/6
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B300862
(Super. Ct. No. BA456662)
Plaintiff and Respondent, (Los Angeles County)
v. OPINION ON TRANSFER
FROM SUPREME COURT
JONATHAN QUEVEDO,
Defendant and Appellant.
Jonathan Quevedo appeals from the judgment entered after
a jury had found him guilty on 10 counts involving four victims:
three counts of assault with a deadly weapon, to wit, a cane and
the base unit of a telephone (Pen. Code, § 245, subd. (a)(1));1 two
counts of willful, deliberate, and premeditated attempted murder
(§§ 187, subd. (a), 189); one count of discharging a firearm at an
occupied motor vehicle (§ 246); one count of dissuading a witness
by use of force (§ 136.1, subd. (c)(1)); two counts of assault with a
1
All statutory references are to the Penal Code.
semiautomatic firearm (§ 245, subd. (b)); and one count of
possession of a firearm by a convicted felon (§ 29800, subd. (a)(1)).
The jury found true allegations that all of the offenses had
been committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). As to the convictions for attempted
murder and shooting at an occupied motor vehicle, the jury found
true allegations that appellant had personally discharged a
firearm causing great bodily injury (§ 12022.53, subd. (d)).
Except for the convictions of assault with a deadly weapon, the
jury found true allegations that appellant had committed the
offenses while released from custody on another felony offense
(§ 12022.1).
The court found true one prior serious felony conviction
(§ 667, subd. (a)(1)), three prior prison terms (§ 667.5, subd. (b)),
and one prior strike within the meaning of California’s “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Appellant was sentenced to prison for an aggregate determinate
term of 22 years, 8 months, plus an aggregate indeterminate
term of 158 years to life. The indeterminate term included two
years for two prior prison terms (§ 667.5, subd. (b)). The court
directed that appellant shall serve the determinate sentence
prior to serving the indeterminate sentence.
In his opening brief appellant contends that, as to all of the
convictions except the three convictions for assault with a deadly
weapon, the evidence is insufficient to support the gang
allegations. In addition, he claims that his trial counsel was
ineffective because counsel failed to object to a portion of a jury
instruction on eyewitness identification. Finally, appellant
argues, and the Attorney General concedes, that the two one-year
enhancements for prior prison terms must be stricken because of
2
an amendment to section 667.5, subdivision (b). In our original
unpublished opinion filed on August 17, 2021, we struck the prior
prison terms and affirmed in all other respects.2
Our Supreme Court granted review (S270879). It
transferred the matter back to us “with directions to vacate [our]
decision and reconsider the cause in light of People v. Renteria
(2022) 13 Ca1.5th 951 [Renteria] and Assembly Bill No. 333
(Stats. 2021, ch. 699) [AB 333].”
We vacate our original decision. We strike the two one-
year enhancements imposed for prior prison terms under section
667.5, subdivision (b). We reject appellant’s contention that,
based on Renteria, the evidence is insufficient to support the true
findings on the gang enhancement allegations as to all of the
convictions except the three convictions for assault with a deadly
weapon. On the other hand, we accept the People’s concession
that the true findings on all of the gang enhancement allegations
must be vacated pursuant to AB 333. We remand the matter to
the trial court to afford the People an opportunity to retry the
gang enhancement allegations. In all other respects, we affirm.
Facts
Three Counts of Assault with a Deadly Weapon
Appellant was a member of the Temple Street criminal
street gang. One evening in March 2017, E.P. (husband) and his
wife, V.P. (wife), were eating dinner at a restaurant within the
territory claimed by the Temple Street gang. Appellant entered
the restaurant and “looked at . . . husband with . . . a bad face.”
“He was mad-dogging [husband] . . . .” “ [‘M]ad-dogging[’] . . . is
street vernacular for staring at him to intimidate him.” Husband
2
We grant appellant’s request for judicial notice of our
original opinion.
3
and appellant exchanged words. “[A] verbal altercation between
the two took place.”
Husband and wife finished their meal and got up to leave.
As they were walking toward the exit, appellant ran toward
husband and tried to hit him. Wife “got in between” appellant
and husband. Appellant kicked wife in the “left side” of her
“inner thigh.” He picked up the base unit of the restaurant’s
telephone and threw it at either husband or wife. The base unit
hit wife in the head, causing a wound that began to bleed.
Appellant was yelling, “‘This is Temple Street.’”
In an apparent attempt to mollify appellant, husband said
he knew “Thumper,” a member of the Temple Street gang.
Appellant replied, “‘He ain’t shit in our neighborhood.’ . . . ‘Fuck
him.’” Appellant hit husband and wife with a cane. Appellant
was yelling, “‘This is Temple Street, this is Temple Street.’”
Husband and wife left the restaurant, drove away, and
contacted the police. Husband told the police that the assailant
had said, “‘I’m from Temple Street, and I will get my homies to
come through.’”
Appellant was arrested for the assault at the restaurant.
Thumper told husband’s and wife’s relatives that husband/wife
should “not . . . go to court and not . . . testify.”
Remaining Seven Counts Based on Shooting
Husband and wife came to court for the preliminary
hearing, but did not see appellant. They remained in the witness
waiting room. Wife told detectives about Thumper’s warning and
said she was afraid to testify against appellant. The prosecutor
obtained a protective order for wife and her family. Appellant,
who was out on bail, was served with the protective order in open
court. The preliminary hearing was continued.
4
Wife was horrified when she read the protective order
served on appellant. The order stated her name, home address,
and the names of her children. Wife complained to a detective,
“‘You just basically gave [appellant] the keys to my house.’”
Husband’s and wife’s son, J.P. (son), lived at his parents’
home with his wife, D.V. Early one morning after the protective
order had been served on appellant, son was in his car at home
waiting for D.V. so he could drive her to work. It was the day
before appellant was supposed to participate in a live lineup in
the restaurant assault case. Son and D.V. were not aware of the
assault or Thumper’s warning. Husband and wife said nothing
about the incident to son and D.V. because they “didn’t want to
spook [their] kids out.”
Son was seated in the driver’s seat. Appellant approached
the driver’s side and told son to lower his window. Son complied.
Appellant said, “‘You’re [wife’s] son; right?’” Son answered,
“‘Yeah.’” Appellant warned, “‘You need to tell your mom that she
better not show up to court.’” “‘She better not show up to the
fucking lineup tomorrow.’” Son said, “‘Well, who are you?’”
Appellant replied, “‘She knows who the fuck I am. Better tell her
that I’m gonna hurt you guys.’” Appellant displayed the form of a
gun under his sweater. A car alarm sounded, and appellant ran
“down the driveway.”
D.V. entered son’s vehicle. Son slowly drove away and
stopped at a nearby stop sign. Appellant was waiting for him
there. Son persisted in questioning appellant as to his identity.
Appellant removed a gun from under his sweater and “just
open[ed] fire on us.” He fired six to eight times.
5
D.V. was shot three times – in the stomach, right leg, and
left hand. She had “open stomach surgery.” Son was shot twice –
in the shoulder and the back of the head.
Gang Expert’s Testimony
A gang expert testified: “Temple Street’s been around since
1923. . . . So . . . you have multiple generations of this gang. You
also have multiple generations of people who have lived in this
area, who’ve known of Temple Street . . . . [¶] . . . [T]hey’ve seen
the shootings, seen the murders, they’ve seen the robberies . . . .”
When a Temple Street gang member yells the name of his gang
within hearing distance of other persons, he “not only is
identifying himself with that gang, but he’s also using the
established reputation of that gang to intimidate people around
him.”
The expert noted how engendering fear in the community
serves the purpose of the gang: “[I]f you have a gang [such as
Temple Street] within a community, and the residents of that
community know that this gang . . . is willing to use violence or is
a violent gang, it creates an atmosphere of fear within that
community. And once that [fear] takes . . . ahold of that
community, . . . you have community members who are more
hesitant to cooperate with law enforcement [out of concern for
retaliation by the gang]. [¶] So . . . you have victims who won’t
report a crime . . . ; you have witnesses . . . who won’t cooperate
or won’t come forward with the police. [¶] . . . [T]hat . . .
emboldens the gang.”
The prosecutor presented the gang expert with a
hypothetical that tracked the facts underlying the assault at the
restaurant. The expert opined that the gang member “did . . . the
acts for the benefit of the gang.” The expert explained: When the
6
gang member announced, “This is Temple Street,” he was saying
“he’s got an entire gang behind him.” The gang benefited from
the member’s announcement and attack on husband/wife because
his actions would enhance the gang’s reputation for violence and
would “create[] this atmosphere of intimidation and fear within
the community.” “Now you have potential witnesses, and maybe
even future victims, who will be hesitant to cooperate with law
enforcement.”
The gang member’s assault “would enhance his status
within the gang.” Gangs “equate violence with respect. So the
more violent a particular gang member . . . or a gang is, the more
they’re respected, and their reputation . . . is enhanced.”
The prosecutor added facts to the hypothetical that tracked
appellant’s shooting of son and D.V. The expert opined that the
shooting “was done for the benefit of the gang.” The expert
explained: The shooting shows “that Temple Street . . . will take
the ultimate step to prevent any potential witnesses or victims
from testifying in court.” “Now you have an individual who has
committed that ultimate act, and he’s associated with this . . .
gang. . . . [I]f anybody ever gets involved with Temple Street,
either they’re a witness or victim, they know that this gang has
committed this act and it would strongly . . . dissuade anybody
from cooperating with police.” The shooter personally benefited
because the violence of his act elevated “his level of status within
the gang.”
Substantial Evidence Supports Gang
Enhancements as to the Shooting
Appellant argues that the evidence is insufficient to prove
the gang enhancements as to the seven counts based on his
shooting of son and D.V. “In considering a challenge to the
7
sufficiency of the evidence to support an enhancement, we review
the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from
which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably
deduced from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.
[Citation.] ‘A reviewing court neither reweighs evidence nor
reevaluates a witness's credibility.’” (People v. Albillar (2010) 51
Cal.4th 47, 59-60.)
Section 186, subdivision (b) (section 186(b)), the gang
enhancement statute, “sets out what is, in effect, a two-pronged
requirement: the felony must be committed (1) for the benefit of,
at the direction of, or in association with a criminal street gang,
and (2) with the specific intent to promote, further, or assist in
any criminal conduct by gang members.” (Renteria, supra, 13
Cal.5th at p. 964.) The prosecution must “show that defendant
acted on behalf of a gang rather than [solely] for personal
reasons.” (Id. at p. 968.)
“Without more, expert testimony about the reputational
benefits of crime does not support an inference that a lone gang
member committed a crime for gang-related reasons — as
opposed to acting from other, more personal motives.” (Renteria,
supra, 13 Cal.5th at p. 957.) “[A]ny inference that might
otherwise be drawn from testimony that ‘particular criminal
conduct benefited a gang by enhancing its reputation for
8
viciousness’ [citation] must be cabined so that section 186.22(b)
prosecutions avoid punishing mere gang membership, as opposed
to gang-related conduct. In a case involving a gang member who
has acted alone in the commission of a felony, there must be
evidence connecting testimony about any general reputational
advantage that might accrue to the gang because of its members’
crimes to the defendant’s commission of a crime on a particular
occasion for the benefit of the gang, and with the specific intent to
promote criminal activities by the gang's members.” (Id. at
p. 969.) Testimony that a gang member engaged in a shooting “to
maintain his own respect within the gang . . . fails to explain how
enhancing his personal reputation within the gang would
facilitate the criminal activities of the gang and its members, as
section 186.22(b) requires.” (Id. at p. 972, fn. omitted.)
Appellant asserts: “Apart from [his] gang status, . . . there
was no evidence [other than the gang expert’s opinion] that the
shooting . . . [was] committed for the benefit of Temple Street.”
“Nor was there any evidence that Temple Street’s status or
reputation had been enhanced due to the violent nature of
appellant’s crimes.” “At the time of the shooting, neither [son]
[n]or [D.V.] knew that the suspect was a gang member charged in
a gang-related case. Nor did appellant do anything to let them
know. Appellant did not shout out the gang’s name, or make
gang symbols. . . . There was no evidence that the shooting was
in Temple Street territory. Likewise, there was no evidence that
appellant’s status or reputation for violence increased within the
Temple Street gang.” “[T]here was no evidence that other gang
members were involved in the shooting. . . . [A]ny person charged
with a crime, not only a gang member, would benefit by violently
attempting to prevent a witness from testifying by attempting to
9
murder the witness’s relatives . . . .” The “facts reasonably
indicate . . . that appellant acted alone.” Thus, there is no
“substantial evidence that appellant was committing the shooting
for the benefit of Temple Street ‘as opposed to acting from other,
more personal motives.’ (Renteria, supra, 13 Cal.5th at p. 957.)”
Appellant is viewing the shooting with blinders on. The
shooting must be viewed together with the earlier assault on
son’s parents at the restaurant. When appellant committed the
earlier assault, he made clear he was acting for the benefit of
Temple Street. He repeatedly invoked the gang’s name: “‘This is
Temple Street, this is Temple Street.’” At the subsequent
shooting of son and D.V., there was no need for appellant to again
invoke the gang’s name. Any reasonable person in the
community, and certainly son’s parents, would understand the
message of the shooting – if you bring charges against appellant
or other West Temple gang members, your family will face life-
threatening retribution. When son asked appellant to identify
himself, appellant replied, “‘She [son’s mother] knows who the
fuck I am.’” Appellant understood that son’s mother would
realize he was the gang member who had assaulted her at the
restaurant.
It did not matter whether the shooting was committed in
the gang’s territory. The frightening message would be the same
irrespective of where the shooting had occurred. Based on the
gang expert’s testimony, the jury could reasonably infer that the
shooting would benefit the gang because it would deter the public
from reporting gang crimes and from cooperating in the
investigation and prosecution of such crimes. This “would
facilitate the criminal activities of the gang and its members, as
10
section 186.22(b) requires.” (Renteria, supra, 13 Cal.5th at p.
972.)
The evidence as to the gang enhancements is not
insufficient because appellant acted alone during the shooting.
Nor is it insufficient because the shooting personally benefited
appellant by having the potential of dissuading witnesses from
testifying against him in the restaurant assault case. A
reasonable trier of fact could find beyond a reasonable doubt that
appellant specifically intended not only to dissuade witnesses
from testifying against him, but also “to promote the criminal
activities of gang members” by instilling fear in the community,
thus facilitating their commission of crimes with impunity.
(Renteria, supra, 13 Cal.5th at p. 973; see People v. Vazquez
(2009) 178 Cal.App.4th 347, 353 [“A reasonable jury could
infer . . . that appellant intended for the Lopez murder to have
the predicted effect of intimidating . . . neighborhood residents,
thus facilitating future crimes committed by himself and his
fellow gang members”]; § 186.22, subd. (g), as amended by AB
333 [“As used in this chapter, to benefit, promote, further, or
assist [criminal conduct by gang members] means to provide a
common benefit to members of a gang where the common benefit
is more than reputational. Examples of a common benefit that
are more than reputational may include . . . intimidation or
silencing of a potential current or previous witness”].)
People’s Concession that True Findings on All
Gang Enhancement Allegations Must Be Vacated
“[AB] 333 amended section 186.22 to, in various
respects, increase the evidentiary burden necessary to prove a
gang-related crime enhancement.” (People v. Rodriguez (2022) 75
Cal.App.5th 816, 822.) The amendment applies retroactively to
11
cases not yet final on appeal. (People v. Tran (2022) 13 Cal.5th
1169, 1206-1207 (Tran).)
The People concede that the true findings on all of the gang
enhancements must be reversed because “the current record does
not satisfy the requirements of amended section 186.22.” (Bold
omitted.) For example, “[AB] 333 . . . ‘redefines “pattern of
criminal gang activity” to require that the last of the predicate
[gang-related] offenses “occurred . . . within three years of
the date the current offense is alleged to have been
committed” . . . .’ [Citation.].” (People v. Vasquez (2022) 74
Cal.App.5th 1021, 1032 (Vasquez).) The People note that in the
present case none of the three predicate gang-related offenses
occurred “within three years of the charged offenses.”
“‘We therefore conclude that the [gang] enhancement
findings must be vacated and the matter remanded to give the
People the opportunity to prove the applicability of the
enhancements under the amendments to section 186.22.’”
(Vasquez, supra, 74 Cal.App.5th at p. 1033.)
New Section 1109 Does Not Require
Reversal of Appellant’s Convictions
AB 333 added section 1109 to the Penal Code. (Stats. 2021,
ch. 699, § 5.) Section 1109 “requires the trial court to bifurcate
the adjudication of the underlying offense and the gang
enhancement upon a defendant's request.” (Tran, supra, 13
Cal.5th at p. 1207.) Appellant maintains that section 1109
applies retroactively and requires reversal of his convictions
because the gang enhancements were not bifurcated.
“The question of whether section 1109 applies retroactively
is the subject of a split of authority among the Courts of Appeal.”
(Tran, supra, 13 Cal.5th at p. 1208.) The issue is pending before
12
our Supreme Court in People v. Burgos (2022) 77 Cal.App.5th
550, review granted July 13, 2022 (S274743). We need not decide
this issue because pursuant to the standard articulated in People
v. Watson (1956) 46 Cal.2d 818, appellant has failed to show it is
“reasonably probable that a result more favorable to [him] would
have been reached” had the gang enhancements been bifurcated.
(Id. at p. 836.)
We reject appellant’s contention that our review is subject
to the beyond-a-reasonable-doubt standard of Chapman v.
California (1967) 386 U.S. 18. Appellant has not shown that the
admission of the gang evidence rendered his trial fundamentally
unfair. (See Tran, supra, 13 Cal.5th at pp. 1208-1209 [because
admission of gang evidence did not render defendant’s trial
fundamentally unfair, Supreme Court applied Watson standard
to claim that failure to bifurcate gang enhancements under
section 1109 was reversible error].)
Our Supreme court has “held that gang evidence, even if
not admitted to prove a gang enhancement, may still be relevant
and admissible to prove other facts related to a crime.” (Tran,
supra, 13 Cal.5th at p. 1208; see People v. Ramos (2022) 77
Cal.App.5th 1116, 1132 [“nothing in [AB] 333 limits the
introduction of gang evidence in a bifurcated proceeding where
the gang evidence is relevant to the underlying charges”].)
“[E]vidence related to gang membership is not insulated from the
general rule that all relevant evidence is admissible if it is
relevant to a material issue in the case other than character, is
not more prejudicial than probative, and is not cumulative.”
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.)
Irrespective of the gang allegations, much of the gang
evidence here was relevant and admissible on the issues of
13
identity, motive, and intent. (People v. Hernandez (2004) 33
Cal.4th 1040, 1049 [“Evidence of the defendant’s gang
affiliation . . . can help prove identity, motive, . . . specific
intent, . . . or other issues pertinent to guilt of the charged
crime”].) Appellant alleges, “[D]efense counsel’s primary
contention was that, despite their certainty, [son and his wife,
D.V.,] had wrongly identified appellant as the shooter.”
Appellant acknowledges, “[S]ome of the gang evidence may have
been admissible as to the shooting charges to show appellant had
a motive to commit these offenses.”
Moreover, appellant “cannot show it is ‘reasonably
probable’ he would have obtained a more favorable result if his
trial had been bifurcated . . . because when the evidence of guilt
on the relevant charges is ‘overwhelming’ [without the gang
evidence], as it was here, it is unlikely the defendant was harmed
by the format of the trial. [Citation.] The People presented
strong evidence that [appellant] committed the charged
[offenses]. . . . Under these circumstances, we conclude that
. . . bifurcation would not have helped [him].” (People v. E.H.
(2022) 75 Cal.App.5th 467, 480.) Appellant in effect identified
himself when, in response to son’s question, “‘Well, who are you,’”
he replied, “‘She [i.e., son’s mother,] knows who the fuck I am.’”
Obviously, he was the same person who had assaulted son’s
parents at the restaurant. Appellant’s identity as the perpetrator
of this assault was not in question.
Counsel Was Not Ineffective
Appellant contends that trial counsel was constitutionally
ineffective for not objecting to the portion of CALCRIM No. 315
providing that, “[i]n evaluating identification testimony,” the jury
should consider “[h]ow certain” a witness was “when he or she
14
made an identification.” We refer to this portion of the
instruction as “the certainty factor.”
“To establish constitutionally inadequate representation, a
defendant must show that (1) counsel’s representation was
deficient, i.e., it fell below an objective standard of
reasonableness under prevailing professional norms; and (2)
counsel’s representation subjected the defendant to prejudice, i.e.,
there is a reasonable probability that, but for counsel’s failings,
the result would have been more favorable to the defendant.”
(People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058.)
Counsel’s representation was not deficient. An objection to
the certainty factor would have been futile. Three years earlier,
our state Supreme Court upheld the inclusion of the certainty
factor in a similar jury instruction (CALJIC No. 2.92) on
eyewitness identification. (People v. Sanchez (2016) 63 Cal.4th
411, 461-462.) The court noted that, in a prior opinion, “[w]e
specifically approved CALJIC No. 2.92, including its certainty
factor. [Citation.] We have since reiterated the propriety of
including this factor. [Citation.]” (Id. at p. 462.) Pursuant to the
principle of stare decisis, the trial court was required to follow
Sanchez. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) “Counsel does not render ineffective assistance
by failing to make motions or objections that counsel reasonably
determines would be futile.” (People v. Price (1991) 1 Cal.4th 324,
387.)
Even if counsel’s performance had been deficient, appellant
would not have been prejudiced in view of our state Supreme
Court’s recent decision in People v. Lemcke (2021) 11 Cal.5th 644,
(Lemcke). The Supreme Court concluded that the defendant had
“failed to establish that the trial court's decision to include the
15
certainty factor in CALCRIM No. 315 violated his due process
rights or otherwise constituted error under the circumstances
presented here.” (Id. at p. 669.) The Supreme Court reasoned:
“[W]e find nothing in CALCRIM No. 315’s instruction on witness
certainty that operates to ‘lower the prosecution’s burden of
proof.’ . . . [T]he instruction does not direct the jury that ‘certainty
equals accuracy.’ [Citation.] Nor does the instruction state that
the jury must presume an identification is accurate if the
eyewitness has expressed certainty. [Citation.] Instead, the
instruction merely lists the witness's level of certainty at the time
of identification as one of 15 different factors that the jury should
consider when evaluating the credibility and accuracy of
eyewitness testimony. The instruction leaves the jury to decide
whether the witness expressed a credible claim of certainty and
what weight, if any, should be placed on that certainty in relation
to the numerous other factors listed in CALCRIM No. 315.
Indeed, even [the defendant] acknowledges that, on its face, the
instruction is ‘superficially neutral.’”3 (Id. at p. 657.)
The One-Year Prior Prison Terms Must Be Stricken
Appellant was sentenced in August 2019. Effective
January 1, 2020, Senate Bill No. “136 amended Penal Code
3
Nevertheless, the Supreme Court stated: “[W]e believe
there is a risk that the current version of the instruction will
prompt jurors to infer that an eyewitness’s certainty in an
identification is generally a reliable indicator of accuracy.
Accordingly, in the exercise of our supervisory powers, we direct
our trial courts to omit the certainty factor from CALCRIM No.
315 until the Judicial Council has the opportunity to consider
how the language might be better worded to minimize juror
confusion on this point.” (Lemcke, supra, 11 Cal.5th at p. 669.)
16
section 667.5, subdivision (b) such that a one-year enhancement
for a prior prison term shall be imposed only if the prior term was
for a sexually violent offense.” (People v. Winn (2020) 44
Cal.App.5th 859, 872.) “The trial court imposed [two] one-year
terms under the prior version of . . . section 667.5. None of the
prior prison terms was imposed for a sexually violent offense as
defined by the amended version of section 667.5.” (Ibid.) “The
Attorney General concedes the merit of [appellant’s] claim [that
the two prior prison terms must be stricken]. [¶] The concession
is well-taken.” (Ibid.)
Disposition
Our original decision filed on August 17, 2021, is vacated.
The two one-year enhancements imposed for prior prison terms
under section 667.5, subdivision (b) are stricken. The true
findings on all of the gang enhancement allegations (§ 186.22(b))
are vacated. The matter is remanded to afford the People an
opportunity to retry these allegations under the law as amended
by AB 333 and for resentencing as appropriate. In all other
respects, the judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment and to forward a
certified copy to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J. BALTODANO, J.
17
Eleanor J. Hunter, Judge
Superior Court County of Los Angeles
______________________________
Alex Green, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Colleen M.
Tiedemann, Scott A. Taryle, Daniel C. Chang, Deputy Attorneys
General, for Plaintiff and Respondent.