People v. Medina CA2/1 ( 2023 )

Filed 7/26/23 P. v. Medina CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B319905
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA447145)
v.
OSCAR MEDINA,
Defendant and Appellant.
Appeal from judgment of the Superior Court of Los Angeles
County, James R. Dabney, Judge. Reversed.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
This is Oscar Medina’s (Medina) third appeal following
his 2017 convictions for attempted murder and assault with a
firearm. In addition to returning convictions on all counts, the
jury found true allegations that Medina committed the crimes
for the benefit of a criminal street gang, pursuant to Penal Code1
section 186.22, subdivision (b)(1)(C). The jury also found true
allegations that, in committing the attempted murders, “a
principal personally and intentionally discharged a firearm,
a handgun, within the meaning of . . . section 12022.53[,
subdivisions] (c) and (e)(1).”
The trial court initially sentenced Medina to 62 years
to life in prison. (See People v. Medina (Feb. 2, 2021, B303952)
[nonpub. opn.] at p. 3 (Medina II), as mod. on denial of rehg.
(Feb. 24, 2021).) The sentence consisted in part of a 20-year
firearm enhancement under section 12022.53, subdivision (c).
(Medina II, supra, B303952, at pp. 3–4.) Although Medina did
not himself fire a gun in committing the crimes, the trial court
applied the firearm enhancement to the four attempted murder
counts because of the jury’s finding that Medina had committed
the offenses for the benefit of a criminal street gang.2 (Medina II,
supra, B303952, at p. 4, fn. 3; see § 12022.53, subd. (e)(1).)
On remand from Medina’s second appeal, the trial court
corrected certain sentencing errors and reduced the sentence
to 47 years to life in prison. The court, however, left intact the
20-year firearm enhancements.
1 Unless otherwise indicated, all statutory references are to
the Penal Code.
2 The trial court ordered the sentences on counts 1 through
4 to run concurrently, and the firearm enhancements therefore
added only 20 years (rather than 80 years) to Medina’s sentence.
2
Medina now asks us to remand his case to the trial court
a third time, in light of certain amendments to section 186.22
effected by Assembly Bill No. 333. Among other changes,
Assembly Bill No. 333 eliminated felony vandalism (§ 594) as a
predicate offense for proving that a group meets section 186.22’s
definition of “criminal street gang.” (See People v. Avalos (2022)
85 Cal.App.5th 926, 955–956 (Avalos).) At Medina’s trial, the
prosecution relied on a felony vandalism conviction to establish
that the Headhunters gang—of which Medina was a member—
constituted a “criminal street gang.”3 Because felony vandalism
no longer qualifies as a predicate offense under the amended
version of section 186.22, Medina urges that we must reverse
the jury’s findings on the gang allegations and strike the 20-year
firearm enhancements triggered by those gang allegations.
The Attorney General concedes, and we agree, that we
must reverse the gang allegation findings and strike the firearm
enhancements. Contrary to Medina’s suggestion, however, we
conclude that the prosecution may retry the gang allegations on
remand. Finally, we conclude that the trial court should conduct
a full resentencing on remand and should correct certain clerical
errors Medina identifies in the amended abstract of judgment.
3 We have access to the record of Medina’s trial through
the records on his prior appeals. (See People v. Medina (2019) 33
Cal.App.5th 146, 149 (Medina I) and Medina II, supra, B303952.)
On January 23, 2023, we granted Medina’s request that we take
judicial notice of certain portions of those records. In addition,
we exercise our authority to take judicial notice of the portions of
the records not encompassed within Medina’s request. (See Evid.
Code, § 452, subd. (d).)
3
FACTUAL SUMMARY AND PROCEDURAL HISTORY4
In our opinions in Medina’s prior appeals (discussed
post), we briefly summarized the facts of the case as follows:
“ ‘Defendants Antonio Silva and Oscar Medina, members of the
Headhunters gang, were driving through the turf of a rival gang
called Diamond Street. They lost control of their car and crashed
into an apartment building. Bystanders gathered to look at the
accident. Unable to move the disabled vehicle, Silva and Medina
left and returned in another car. Silva got out of the car, pointed
his gun, and started shooting at bystanders while Medina
attempted to recover the crashed car. The people on the street
(including two individuals, Juan Alcaraz and Jose Sanchez, who
lived in the apartment building) fled in terror. None ended up
being hit by the gunfire. Medina was still unable to move the
car, and Silva and Medina then left separately. Silva left in the
car in which he and Medina had returned to the accident scene.
Before Medina left on foot, he screamed his gang’s name and
a derogatory term for the Diamond Street gang.’ ”5 (Medina II,
supra, B303952, at p. 3, quoting Medina I, supra, 33 Cal.App.5th
at p. 149.)
The district attorney charged Medina6 with four counts
of attempted murder (§§ 187, subd. (a), 664), and four counts
4 We summarize here only the facts and procedural history
relevant to our resolution of this appeal.
5 Medina disputes this characterization of the facts in
certain respects, but none of the facts he contests is material
to our resolution of his appeal.
6 The district attorney charged Silva with the same crimes,
but we omit further discussion of the charges against Silva, as he
is not a party to this appeal.
4
of assault with a firearm (§ 245, subd. (a)(2)). The charging
document alleged further that, in committing the attempted
murders, “a principal personally and intentionally discharged a
firearm, a handgun, within the meaning of . . . section 12022.53[,
subdivisions] (c) and (e)(1).” Finally, the prosecution alleged
that Medina committed each offense “for the benefit of, at
the direction of, or in association with a criminal street gang,”
pursuant to section 186.22, subdivision (b)(1)(C).7
To establish that the Headhunters gang met the statutory
definition of a “criminal street gang,” the prosecution presented
at trial evidence of two prior offenses—felony vandalism and
carrying a concealed firearm—committed by other Headhunters
gang members.
On August 30, 2017, the jury convicted Medina on
all counts. The jury also found true the gang and firearm
allegations.
“The trial court sentenced Medina to 62 years to life in
prison. The sentence consisted of a base high term of nine years
to life for one count of attempted murder (§ 664, subd. (a)), tripled
7 The version of section 186.22, subdivision (b)(1)(C)
in effect at the time of Medina’s 2017 trial provided: “Except as
provided in paragraphs (4) and (5), any person who is convicted
of a felony committed for the benefit of, at the direction of, or
in association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct
by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the
felony or attempted felony of which he or she has been convicted,
be punished as follows: [¶] . . . [¶] (C) If the felony is a violent
felony, as defined in subdivision (c) of [s]ection 667.5, the person
shall be punished by an additional term of 10 years.” (Former
§ 186.22, subd. (b)(1)(C).)
5
because Medina had suffered two prior strike convictions (see
§§ 667, subd. (e)(2)(A)(1), 1170.12, subd. (c)(2)(A)(i)).” (Medina II,
supra, B303952, at p. 3.)
The trial court then added 20 years to the sentence
pursuant to section 12022.53, subdivision (c)8 because a
principal—here, Silva—personally and intentionally discharged
a firearm in the commission of the offense. (Medina II, supra,
B303952, at pp. 3–4.) “Although Medina did not personally fire
the weapon, the firearm enhancement nevertheless applied to
him [pursuant to section 12022.53, subdivision (e)(1)9] because
the jury found that Medina committed the offense[s] for the
benefit of, at the direction of, or in association with a criminal
street gang,” under section 186.22, subdivision (b)(1)(C). (Medina
II, supra, B303952, at p. 4, fn. 3.) Finally, the court imposed
five additional years for each of three prior serious felony
enhancements under section 667, subdivision (a)(1), resulting
in an aggregate sentence of 62 years to life. (Medina II, supra,
B303952, at p. 4.)
8 Section 12022.53, subdivision (c) provides:
“Notwithstanding any other law, a person who, in the
commission of a felony specified in subdivision (a), personally
and intentionally discharges a firearm, shall be punished by
an additional and consecutive term of imprisonment in the
state prison for 20 years.” (§ 12022.53, subd. (c).)
9 Section 12022.53, subdivision (e)(1) provides: “The
enhancements . . . 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 [s]ection 186.22. [¶] (B) Any principal in the offense committed
any act specified in subdivision (b), (c), or (d).”
6
“The court imposed the same sentence, to run concurrently,
on each of the three other attempted murder convictions. As
to the convictions on four counts of assault with a firearm, the
court stated that these counts would all ‘merge pursuant to . . .
section 654.’ The abstract of judgment indicated a concurrent
sentence for those four counts. In addition to other fines, the
trial court imposed a restitution fine of $5,000.” (Medina II,
supra, B303952, at p. 4.)
Medina filed a series of appeals. In our opinion considering
his first appeal, “[w]e affirmed [his] convictions[,] but remanded
the case to the trial court with instructions to strike one 5-year
prior serious felony enhancement (§ 667, subd. (a)(1)), to consider
whether to strike other serious felony and firearm enhancements
in light of new laws enacted after the [initial] sentencing hearing,
and to stay rather than impose concurrent sentences for assault
with a firearm.” (Medina II, supra, B303952, at p. 2.)
“At a hearing following remand, the trial court elected not
to strike the firearm enhancement[s], but did not discuss the
serious felony enhancements. The abstract of judgment filed
after the hearing include[d] all of the previously imposed serious
felony enhancements. The abstract of judgment also indicate[d]
that the trial court stayed the sentences for assault with a
firearm, but the court made no statement about this during
the hearing.” (Medina II, supra, B303952, at p. 2.) Thus, the
abstract of judgment “did not change the number of serious
felony enhancements, nor the aggregate length of the sentence
of 62 years to life.” (Id. at p. 6.)
Medina then filed a second appeal, in which he argued
“that the trial court erred by failing to act on the serious
felony enhancements and by failing to state during the hearing
that the sentences for assault with a firearm were stayed.”
7
(Medina II, supra, B303952, at p. 2.) He argued further “that
the trial court abused its discretion by refusing to strike the
firearm enhancement[s], that his sentence violate[d] the state
and federal constitutional protections against cruel and unusual
punishments, and that the court abused its discretion by refusing
to reduce his $5,000 restitution fine.” (Id. at pp. 2–3.)
We “agree[d] with Medina as to the [trial court’s] failure
to act on the serious felony enhancements and to declare on the
record that the sentences for assault with a firearm were stayed,”
but affirmed the trial court in all other respects. (Medina II,
supra, B303952, at p. 3.) We therefore remanded the matter
with directions that the trial court “strike one enhancement
under section 667, subdivision (a)(1) from each of the four counts
of attempted murder,” “decide with respect to each count of
attempted murder whether or not to strike the two additional
enhancements under section 667, subdivision (a)(1),” and “declare
on the record that the four counts of assault with a firearm are
stayed under section 654.” (Medina II, supra, B303952, at p. 16.)
We directed further that “[a]fter it takes all of these actions, the
trial court must recalculate [Medina’s] sentence and prepare a
new abstract of judgment and forward it to the Department of
Corrections and Rehabilitation.” (Ibid.)
At the March 16, 2022 hearing following the second
remand, the trial court struck all three of the originally imposed
serious felony enhancements, thereby reducing Medina’s
sentence from 62 years to life to 47 years to life. The trial
court, however, denied Medina’s motion to strike the firearm
enhancements. Although Assembly Bill No. 333 already had
taken effect, Medina did not raise the bill as authority in support
of his motion to strike the firearm enhancements. Instead, he
relied exclusively on other provisions that he argued afforded the
8
trial court discretion to strike the enhancements. The trial court
rejected Medina’s request, explaining, “I don’t believe I have
jurisdiction [to strike the firearm enhancements], and if I had—
and if I do, because I don’t want this back again, let me make it
clear, I would not exercise my discretion to—for the reasons I
stated before at the last hearing to strike the gun.”
Medina timely appealed.
DISCUSSION
As set forth, ante, the trial court imposed the 20-year
firearm enhancements on Medina only because the jury found
that he committed the attempted murders for the benefit of
a criminal street gang, within the meaning of section 186.22,
subdivision (b)(1)(C). (Medina II, supra, B303952, at p. 4, fn. 3.)
Assembly Bill No. 333 amended section 186.22 to eliminate
felony vandalism as a predicate offense for establishing that a
gang qualifies as a “criminal street gang.” (See Avalos, supra,
85 Cal.App.5th at pp. 955–956.) Because the prosecution in this
case relied on a felony vandalism conviction in proving that the
Headhunters gang met section 186.22’s definition of “criminal
street gang,” Medina urges that we must reverse the jury’s “true”
findings as to the gang allegations. And as a result, he argues,
we also must strike the firearm enhancements, which the trial
court imposed only as a result of the gang allegations. Medina
contends further that the prosecution should not be permitted
to retry the gang allegations on remand and that the trial court
should not engage in a full resentencing. Finally, Medina
requests that we direct the trial court to correct certain clerical
errors in the amended abstract of judgment.
The Attorney General concedes—and we agree—that
Assembly Bill No. 333 requires that we reverse the gang
9
allegation findings and strike the firearm enhancements. We
conclude, however, that the prosecution is entitled to retry the
gang allegations on remand, and that the trial court should
perform a full resentencing. Finally, we agree with Medina that
the trial court must correct the clerical errors in the amended
abstract of judgment.
A. Assembly Bill No. 333
Pursuant to section 186.22, “[a] defendant who commits
a felony ‘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’ is subject
to increased punishment upon conviction.” (People v. Sek (2022)
74 Cal.App.5th 657, 664 (Sek), quoting § 186.22, subd. (b)(1).)
Assembly Bill No. 333, which took effect on January 1,
2022, “amended section 186.22 to impose new substantive and
procedural requirements for gang allegations.” (Sek, supra,
74 Cal.App.5th at p. 665.) “Most notably, the law defined ‘to
benefit, promote, further, or assist’ as ‘to provide a common
benefit to members of a gang where the common benefit is more
than reputational. Examples of a common benefit that are more
than reputational may include, but are not limited to, financial
gain or motivation, retaliation, targeting a perceived or actual
gang rival, or intimidation or silencing of a potential current or
previous witness or informant.” (Id. at p. 665, quoting § 186.22,
subd. (g).)
In addition, “the law created a stricter requirement for
proof of ‘a pattern of criminal gang activity,’ which is necessary
to prove that the group with which the defendant is associated
is indeed a criminal street gang.” (Sek, supra, 74 Cal.App.5th
at p. 665, citing § 186.22, subd. (f).) “Previously, the prosecution
10
needed to prove only that those associated with the gang had
committed at least two offenses from a list of predicate crimes”—
a list that included felony vandalism—“on separate occasions
within three years of one another.” (Ibid., citing former § 186.22,
subd. (e).) Under the newly amended law, felony vandalism no
longer constitutes a qualifying predicate offense, and “the offense
with which the defendant is currently charged cannot be used
as one of the two predicate offenses.” (Ibid., citing § 186.22,
subd. (e)(2).) “In addition, both predicate offenses must have
been committed ‘within three years of the date the current
offense is alleged to have been committed,’ by gang ‘members,’
and must have been for the ‘common[ ] benefit[ ] [of] a criminal
street gang.’ ” (Ibid., citing § 186.22, subd. (e)(1).)
“Finally, under Assembly Bill No. 333, the defendant may
request a bifurcated trial, in which the defendant is first tried
for the underlying offense, and only upon conviction is tried for
any gang enhancements.” (Sek, supra, 74 Cal.App.5th at p. 665,
citing § 1109, subd. (a).)
B. Assembly Bill No. 333 Requires That We Reverse
the Gang Allegation Findings and Strike the
Firearm Enhancements
We agree with the parties that the amendments to
section 186.22 at issue here apply retroactively to Medina’s case
(see Sek, supra, 74 Cal.App.5th at pp. 666–667; Avalos, supra, 85
Cal.App.5th at pp. 955–956), and that the prosecution’s reliance
on a prior felony vandalism conviction as a predicate offense
requires that we reverse the jury’s “true” findings on the gang
allegations. (See Avalos, supra, 85 Cal.App.5th at pp. 955–956
[reversing defendant’s gang offense conviction under a prior
version of section 186.22 because “with the recent statutory
changes [resulting from Assembly Bill No. 333], felony vandalism
11
no longer qualifies as a predicate offense”].) We therefore reverse
the jury’s findings with respect to the gang allegations on all
counts, and we strike the firearm enhancements on counts 1
through 4.10
C. The Prosecution May Retry the Gang Allegations
on Remand
We disagree with Medina’s contention that the prosecution
may not retry the gang allegations on remand. Medina cites no
authority in support of his position, and he fails to acknowledge
or distinguish the many cases holding that, where a court
reverses gang allegation findings due to Assembly Bill No. 333,
the proper remedy is to remand the matter to permit the
prosecution an opportunity to retry the allegations. (See, e.g.,
Sek, supra, 74 Cal.App.5th at p. 669 [“Our decision does not bar
the prosecution from retrying Sek on the gang enhancements
upon remand. ‘Because we do not reverse based on the
10 In light of our conclusion, we need not address
Medina’s remaining arguments in support of striking the firearm
enhancements—namely, that the prosecution purportedly failed
to prove that the attempted murders and the other predicate
offenses introduced at trial benefited the Headhunters gang in
a manner that was “more than reputational.” Because we have
elected to address Medina’s arguments concerning Assembly
Bill No. 333 on the merits, we also need not analyze Medina’s
contention that his counsel rendered ineffective assistance by
failing to raise the bill at the March 16, 2022 hearing. (See,
e.g., Avalos, supra, 85 Cal.App.5th at p. 935, fn. 1 [a reviewing
court has discretion to consider a forfeited issue that presents
a pure question of law].) Finally, we need not address Medina’s
assertion that his trial counsel provided ineffective assistance by
failing to request that the court exercise its discretion to impose
a 10-year firearm enhancement.
12
insufficiency of the evidence required to prove a violation of the
statute as it read at the time of trial, the double jeopardy clause
of the Constitution will not bar a retrial’ ”]; People v. Ramos
(2022) 77 Cal.App.5th 1116, 1128 [“[T]he existing record is
insufficient to support the heightened evidentiary requirements
set forth by amended section 186.22 following the enactment
of Assembly Bill [No.] 333. As a result, the criminal gang
enhancement applied to [the defendant’s] sentence must be
reversed. However, the People are not foreclosed from retrying
[the defendant] on the gang enhancement upon remand under
the new requirements of amended section 186.22”]; People v.
Burgos (2022) 77 Cal.App.5th 550, 564 [“the proper remedy is to
vacate the gang enhancements and remand the matter to allow
the prosecution the opportunity for a retrial”].)
If the prosecution elects not to retry the gang allegations
under amended section 186.22 or is unable to meet its burden
in proving those allegations, then the gang allegation findings
and firearm enhancements shall remain stricken. The trial
court should then conduct a full resentencing as to all counts.
(See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a
sentence is stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed
circumstances’ ”].)11
11 We are not persuaded by Medina’s argument that a
full resentencing is inappropriate, as he provides no authority
in support of his position. In addition, we decline to address
Medina’s contention that his “aggregate sentence in this case on
resentencing cannot exceed his current sentence in this case of
47 years to life, because that would effectively penalize [him] for
13
D. The Trial Court Must Correct Certain Clerical
Errors in the Amended Abstract of Judgment
Finally, we agree with Medina that the March 22, 2022
amended abstract of judgment appears to contain a clerical
error. At the March 16, 2022 hearing—in accordance with the
remittitur we issued following our opinion in Medina II—the trial
court struck one of the five-year section 667, subdivision (a)(1)
enhancements with respect to all counts.12 The trial court then
went on to exercise its discretion to strike the two remaining
section 667, subdivision (a)(1) enhancements, at least with
respect to counts 1 through 4.13
At most, then, the amended abstract of judgment
should reflect 10 such enhancements—i.e., two enhancements
corresponding to each of counts 5 through 8. The amended
abstract of judgment, however, appears to reflect 21 such
enhancements. We therefore direct the trial court to correct
the amended abstract of judgment to reflect the correct number
taking an appeal.” That issue is not ripe because the trial court
has not imposed a new sentence in excess of Medina’s current
sentence. (See Stonehouse Homes LLC v. City of Sierra Madre
(2008) 167 Cal.App.4th 531, 542 [“[c]ourts may not render
advisory opinions on disputes which the parties anticipate might
arise but which do not presently exist”].)
12 We directed the trial court that it must strike one such
enhancement “from each of the four counts of attempted murder”
(Medina II, supra, B303952, at p. 16), but the record appears to
reflect that the trial court struck one such enhancement from
each of Medina’s eight counts of conviction.
13 It is unclear from the record whether the trial court also
intended to exercise its discretion to strike the two remaining
section 667, subdivision (a)(1) enhancements as to each of
counts 5 through 8.
14
(if any) of section 667, subdivision (a)(1) enhancements that
remains applicable to Medina’s sentence.
DISPOSITION
The March 16, 2022 judgment is reversed, and the matter
is remanded to the trial court. We reverse the jury’s “true”
findings on the gang allegations with respect to counts 1 through
8, and we strike the firearm enhancements imposed on counts 1
through 4. On remand, the prosecution shall have the option to
retry Medina on the gang allegations. The trial court then shall
perform a full resentencing, shall prepare a new abstract of
judgment in which it has corrected the clerical errors described
in the Discussion, part D, ante, and shall forward certified
copies of the new abstract of judgment to the Department of
Corrections and Rehabilitation. The clerk of the court is directed
to send a copy of the opinion and remittitur to the Department
of Corrections and Rehabilitation. (See Cal. Rules of Court,
rule 8.272(d)(2).)
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
15