People v. Paredes CA2/8 ( 2023 )

Filed 7/31/23 P. v. Paredes CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
THE PEOPLE, B315125
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA472690)
v.
MIGUEL A. PAREDES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mark Arnold, Judge. Affirmed in part and
remanded in part.
Jin H. Kim, 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, Steven D. Matthews and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Appellant Miguel A. Paredes was convicted of several gang-
related violent crimes involving firearms. On appeal, he argues
the trial court erroneously refused to consider the District
Attorney’s Special Directives when it considered the prosecution’s
motion to dismiss the gang and firearm allegations and when it
allowed the introduction of preliminary hearing testimony of an
unavailable witness. He also contends the gang enhancements
should be vacated due to changes in the law. We affirm the
convictions, vacate the true findings on the gang and firearm
enhancement allegations, and remand the matter for a new
hearing on the prosecution’s motion to dismiss those allegations.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 1:30 a.m. on October 27, 2018, Paredes
walked through a tent encampment and encountered Audriana
Sandoval, Rene Figueroa, and a man called “Joe Joe.” Paredes
asked Figueroa where he was from; Figueroa denied being a gang
member. Paredes demanded Figueroa lift his shirt, and when
Figueroa hesitated, Paredes pulled out a gun and pointed it at
Figueroa’s head. Figueroa, concerned for his safety, complied.
Paredes asked Joe Joe if he was a gang member, and Joe Joe said
no. Paredes walked away toward a bridge, tagging a pillar with
spray paint as he went. When Paredes painted on the pillar, he
crossed out “Avenues” and painted “HLP.”
Omar Herrera1 was under the bridge with Anahi Flores
when Paredes walked by holding a flashlight in one hand and a
gun in the other. Paredes pointed the gun at Herrera’s face,
1 Herrera also used the last name “Barrera” and other
aliases.
2
asked what gang Herrera belonged to, and identified himself as a
member of the Highland Park gang. Herrera was afraid for his
safety. Herrera denied gang membership, and Paredes laughed
and walked on. Paredes next approached Jesus Baena, who was
either a former or current member of the Avenues gang. Baena
and Paredes exchanged words, and then Paredes fatally shot
Baena.
Figueroa heard gunfire, then saw Paredes walking back the
way he had entered the encampment. As he passed Figueroa,
Paredes smiled and said, “[A]ll right, good night.”
Herrera ran after Paredes and saw him enter a truck.
Herrera described the truck to the police, and a truck matching
Herrera’s description was seen in surveillance video from the
night of the shooting. The surveillance video also depicted the
license plate of the truck, which led police to an address where
they found the truck. The police began surveillance and Paredes
was arrested.
After Paredes’s arrest, he was placed in a cell with an
undercover agent pretending to be a fellow inmate. Their
conversations were recorded. Paredes identified himself as a
Highland Park gang member, said he “popped” an “enemy” from
“A-V-E-S” (the Avenues gang) under the bridge, and told the
agent he had gone to the encampment for that purpose. During
the conversation, Paredes described where he parked and how he
entered the area. He also demonstrated how he shot the victim.
Paredes expressed the hope that the police did not find his
clothes or “all the [gun]powder.” The agent asked if he got rid of
his clothes, and Paredes admitted he had kept his pants and had
his belt with him. Paredes asked the agent to contact his family
and ensure his pants were destroyed.
3
A few days after the shooting, Figueroa identified
photograph numbers three and six in a photographic lineup,
saying the man he saw had the facial structure of the person in
photograph six but his face was more rounded, like the face of the
person in photograph three. Paredes’s photo was number six.
Figueroa also selected a photograph in a second photographic
lineup that did not include Paredes.
The police also showed Sandoval a photographic lineup. As
soon as she saw the photographs, Sandoval looked scared and
began to cry. Sandoval initially said, “I think that looks like
him,” but when the detective asked her which photograph she
meant, she claimed not to know and said none of the photographs
looked like the man she saw. The detective encouraged Sandoval
to be strong and tell the truth and promised she would not have
to write anything down. Sandoval pointed to Paredes’s
photograph and acknowledged she pointed at the photograph in
position six.
Herrera selected Paredes’s photograph from a photographic
lineup but said he did not see the man well. When the detective
asked Herrera to write down his identification, Herrera froze, his
eyes widened, and he appeared frightened. The detective assured
Herrera he did not have to write anything down, thanked him,
and asked where he wanted to be dropped off. Herrera looked
down, and then, after an awkward silence, he laughed nervously
and said Paredes’s photograph did not look like the man he had
seen.
After a jury trial, Paredes was convicted of first degree
murder (Pen. Code,2 § 187, subd. (a)), two counts of assault with a
2 Undesignated statutory references are to the Penal Code.
4
semiautomatic firearm (§ 245, subd. (b)), and possession of a
firearm by a felon (§ 29800, subd. (a)(1)), all committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Additionally, the jury found true the allegations that in the
commission of the murder Paredes used and personally
discharged a firearm, causing death (§ 12022.53, subds. (b)–(d)),
and that he personally used a firearm in the commission of the
assaults with a semiautomatic firearm (§ 12022.5). Paredes was
sentenced to 50 years to life plus 15 years in state prison. He
appeals.
DISCUSSION
I. Motion to Dismiss Special Allegations
Section 1385, subdivision (a), provides that a judge may,
upon the motion of the prosecutor, “ ‘and in furtherance of
justice’ ” order an enhancement allegation dismissed. (People v.
Bonnetta (2009) 46 Cal.4th 143, 145–146.) Prior to trial, the
prosecutor filed a motion to dismiss the firearm and gang
enhancements pursuant to section 1385 based on Los Angeles
County District Attorney Special Directives 20-08, 20-08.1, 20-
08.2, and 20-14. The court held a hearing at which the
prosecutor confirmed he was seeking to dismiss the enhancement
allegations solely because of the new District Attorney’s policy.
The court denied the motion, stating, “These allegations . . . have
been enacted into law by the Legislature. Just because it’s
something that the newly elected district attorney doesn’t like or
doesn’t agree with, that is not legal authority. It’s not legal
precedent. It does not rise to the level required in [section] 1385.
[¶] I do not find that the motion to dismiss comports with the
interest of justice, and therefore the motion is denied.”
5
Paredes argues the court abused its discretion by refusing
to consider the Special Directives. The Attorney General agrees.
We review an order denying a motion to dismiss a sentence
enhancement under section 1385 for an abuse of discretion.
(Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490 (Nazir).)
“A trial court may abuse its discretion where ‘its decision is so
irrational or arbitrary that no reasonable person could agree with
it,’ ‘where the trial court was not “aware of its discretion” ’ to
dismiss a sentencing allegation under section 1385, or ‘where the
court considered impermissible factors in declining to dismiss.’ ”
(Ibid.)
In deciding whether to dismiss an enhancement, “a court
considers the same factors considered ‘ “when handing down a
sentence in the first instance.” ’ [Citations.] These factors
include those listed in California Rules of Court, rule 4.410
(general objectives in sentencing), rules 4.421 and 4.423
(circumstances in aggravation and mitigation), and rule 4.428(b)
(discretion in striking an enhancement and punishment for an
enhancement under section 1385). These rules refer to
circumstances specific to the crime and the defendant’s criminal
history, as well as to broader societal objectives, such as
‘[d]eterring others from criminal conduct by demonstrating its
consequences’ and ‘[i]ncreasing public safety by reducing
recidivism through community-based corrections programs and
evidence-based practices.’ (Cal. Rules of Court, rule 4.410(a)(4)
& (8).) The rules state the trial court ‘should be guided by
statutory statements of policy, the criteria in [the Rules of Court],
and any other facts and circumstances relevant to the case.’ (Id.,
rule 4.410(b).)” (Nazir, supra, 79 Cal.App.5th at p. 497.)
6
In Nazir, the prosecutor moved to dismiss firearm
enhancements alleged under sections 12022.5 and 12022.53
based on the Los Angeles District Attorney’s Special Directive
20-08, which “instructed deputy district attorneys in pending
cases to move to dismiss or withdraw sentence enhancement
allegations.” (Nazir, supra, 79 Cal.App.5th at p. 486.) The trial
court denied the motion based on its belief that it was not
permitted to rely on the directive under People v. Williams (1998)
17 Cal.4th 148. (Nazir, at pp. 497–498.) The Nazir Court held
Williams did not preclude the trial court from relying on the
Special Directive, and therefore the trial court “misunderstood
the scope of its discretion when it refused to consider Special
Directive 20-08 in determining whether to grant the motion to
dismiss the firearm enhancements.” (Id. at pp. 497–498.) By its
terms, the directive “was based on research showing that existing
sentence enhancements do not deter crime or reduce recidivism,
objectives of the criminal justice system which a court may
consider in determining whether to impose a firearm
enhancement under section 12022.5 or 12022.53, and thus are
relevant to determining whether to dismiss an enhancement.”
(Nazir, at p. 497.)
Here, the trial court’s comments that the Special Directives
were not “legal authority” or “legal precedent” and did not “rise to
the level” required for section 1385 indicate it refused to consider
the Special Directives in determining whether to dismiss the
gang and firearm allegations in the furtherance of justice. As in
Nazir, this refusal demonstrates the court misunderstood the
scope of its discretion. (See Nazir, supra, 79 Cal.App.5th at
pp. 497–498.) The matter must be remanded for the trial court to
consider the Special Directives, as well as the other relevant
7
factors, in determining whether dismissing the enhancement
allegations is in furtherance of justice.
II. Admission of Preliminary Hearing Testimony
Herrera was the victim in count 4, one of the counts
alleging assault with a semiautomatic firearm. Herrera testified
at the preliminary hearing, but he had been deported by the time
of trial, approximately 18 months later. The trial court found
Herrera was unavailable because he was absent, the court was
unable to compel his attendance by its process (Evid. Code, § 240,
subd. (a)(4)), and the prosecution had exercised due diligence in
securing his attendance at trial (Evid. Code, § 240, subd. (a)(5)).
Herrera’s preliminary hearing testimony was read to the jury.
Paredes argues the court erred and his conviction on count 4
must be reversed.
A. Factual Background and Hearing
Herrera was incarcerated when he testified at Paredes’s
preliminary hearing on February 6, 2020. On February 7, 2020,
the court held Paredes to answer. Paredes was arraigned on
February 21, 2020, and the court set the trial for April 21, 2020.
Over the following year and a half, the trial was repeatedly
delayed. At the March 16, 2020 pretrial conference, the court
continued the trial to April 30, 2020 at Paredes’s request. Due to
the COVID-19 emergency, the court later continued the case to
June 17, 2020, and then to August 3, 2020. On August 3, 2020,
at the request of counsel, the court set the trial for August 10,
2020. At the August 10, 2020, hearing, based on the COVID-19
emergency and Paredes’s request, the court set the case for
pretrial conference on September 1, 2020.
8
At the September 1, 2020 pretrial conference, the court set
a pretrial conference for October 5, 2020, at both counsel’s
request. On October 5, 2020, Paredes asked for a continuance,
and the court set the pretrial conference for November 5, 2020.
The case was continued to December 7, 2020, and to January 12,
2021, at both parties’ request.
Paredes missed court on January 12, 2021, and at the
request of both counsel, the pretrial conference was trailed to
January 28, 2021, then February 17, 2021, and then March 18,
2021. Due to quarantine, Paredes missed court on March 18,
2021, and the court trailed the hearing to March 25, 2021. At
Paredes’s request, the court continued the case three more times:
to May 3, 2021, May 10, 2021, and May 19, 2021. On May 19,
2021, the court set a trial setting date of June 8, 2021.
On June 8, 2021, the defense announced ready for trial, but
over defense objection the court continued the case to July 8,
2021 because the People indicated there were outstanding
discovery issues and asked for a continuance. On July 8, 2021,
Paredes waived his speedy trial right and agreed the trial could
begin within five days of July 12, 2021; the court transferred the
case for trial.
Paredes was a medical miss-out on July 12, 2021. The
defense requested the matter be sent out for trial nonetheless,
but the court put it over to July 15, 2021, with instructions to
defense counsel to alert the court if Paredes left quarantine
sooner. Paredes was still medically unable to appear on July 15,
2021, and the case was trailed to July 19, 2021, at defense
request.
The case was transferred for trial on July 19, 2021, and the
next day the court held a hearing on Herrera’s unavailability to
9
testify. Jason Roberts, a district attorney investigator, testified
he was assigned to locate and serve Herrera with a subpoena on
June 24, 2021, and began searching for him that day. Roberts
searched computer databases looking for addresses for Herrera.
He began with the Consolidated Criminal History Reporting
System, which tracks arrest records. He checked for Department
of Motor Vehicles information and searched for Herrera using a
prominent search engine and social media services.
When Roberts visited the encampment and the area where
the crime occurred, witness Victor Concepcion told him Herrera
was in state custody. At a separate location, Roberts spoke with
Flores, Figueroa, and Sandoval. All said Herrera was in custody.
The Department of Corrections and Rehabilitation
confirmed for Roberts that Herrera had been in state custody but
was released on September 1, 2020, at which time he was
deported. Roberts called Immigration and Customs Enforcement
(ICE), which confirmed Herrera had been deported on September
1, 2020.
Roberts contacted Herrera’s mother and sister. Herrera’s
mother told Roberts she believed Herrera was in Tijuana, Mexico.
Herrera’s sister did not have Herrera’s phone number but agreed
to convey a message to him to call Roberts. Roberts came to
suspect Herrera might be avoiding service based on his call with
Herrera’s sister. Herrera’s sister said she did not trust what
Roberts was saying and that Herrera had been tricked into
meeting with some law enforcement agencies, leading to his
deportation. She felt Roberts might be trying a similar ruse.
Roberts first spoke with Herrera’s sister July 15, 2021, and
he followed up with her the day before the hearing, July 19, 2021.
Although Roberts had located a Los Angeles city address for
10
Herrera’s mother and sister, Roberts did not go to that address,
nor did he send a letter or subpoena to Herrera there.
Roberts advised ICE agent Christopher Bourdas that he
was trying to locate Herrera, and Bourdas was working with an
official in Tijuana to locate Herrera so Roberts could contact him.
Roberts also contacted Adolfo Batres, a Los Angeles Police
Department officer on the U.S. Marshal’s Fugitive Task Force.
Batres, too, had a contact in the Tijuana area and was
attempting to locate Herrera. To date, neither contact had
located Herrera.
Roberts checked local county custody records for the
counties of Los Angeles, Orange, Riverside, San Bernardino, and
Ventura. He learned from his database searches that Herrera
used multiple names, and he ran numerous name variations
through the databases to see if Herrera was present in any
systems or institutions within the jurisdiction. Roberts found no
sign of Herrera in the databases.
Roberts did not speak with the parole department about
Herrera because he knew Herrera had been deported. The Los
Angeles County Probation Department gave Roberts an address
for Herrera, but when he went to that location, the person who
answered the door said she had lived there for two years and did
not know Herrera.
After Roberts testified, the prosecutor argued in a brief,
one-sentence argument, that under People v. Herrera (2010)
49 Cal.4th 613, due diligence is satisfied for the purposes of the
Evidence Code by making efforts to locate the witness in the
jurisdiction, finding information from the Department of
Homeland Security that the individual was deported, and
continuing to look for the witness.
11
Defense counsel argued the investigator was insufficiently
diligent because he telephoned Herrera’s mother and sister but
did not visit, send a subpoena, or send a letter to their address.
Although defense counsel had been notified the prosecution was
unable to find Herrera, she did not know until the day of the
hearing that he had been deported. Defense counsel analogized
the case to People v. Roldan (2012) 205 Cal.App.4th 969 (Roldan),
which also involved a witness who was in custody when he
testified at the preliminary hearing. In Roldan, she argued, the
court “really analyzed whether or not the People did anything to
try to secure his presence and keep his presence, knowing that he
was subject to deportation while in custody.” Because the People
had not made significant efforts to keep the witness in Roldan in
custody, the Roldan court found they had not exercised
reasonable diligence.
Defense counsel argued the People knew Herrera was in
custody when he testified at the preliminary hearing, as they
subpoenaed him and brought him to court to testify. She
contended the People had not shown they “did anything to try to
maintain contact with him, knowing that this is a murder case,
and knowing that he may evade the system again, to try to keep
in contact with him. [¶] There were no—at least with the
evidence presented today—no such efforts to say, hey, where are
you going to be? Where can we find you? What phone number
can we get? We didn’t hear any evidence of that. The last
contact that we know of is at the preliminary hearing, and that’s
it. The efforts started again June 24th. And defense’s position,
that wasn’t sufficient, knowing he was in custody and could be
subject to deportation.”
12
The trial court found Herrera unavailable under Evidence
Code section 240 for two reasons: “[S]ubsection (a)(4) states that
the witness is absent from the hearing and the court is unable to
compel his attendance by its process; and also subdivision (a)(5),
the proponent, which is the People, they have exercised
reasonable diligence but has been unable to procure the
attendance by the court’s process.” The court explained, “I think
what Investigator Roberts has done is he has absolutely done
more than, I believe, exercise reasonable diligence. This case was
set for trial 17 times prior to now and I think it would have been
a waste of time and an exercise of futility to try to keep track of
him during those 17 times. And that occurred over a year and a
half period. [¶] I believe that the People have demonstrated that
the witness is unavailable under Evidence Code section 240.”
Herrera’s preliminary hearing testimony was read to the
jury during trial.
B. Applicable Law
“A criminal defendant has a state and federal
constitutional right to confront witnesses, but the right is not
absolute. If a witness is unavailable at trial and has given
testimony at a previous court proceeding against the same
defendant at which the defendant had the opportunity to cross-
examine the witness, the previous testimony may be admitted at
trial. In a criminal case, the prosecution bears the burden of
showing that the witness is unavailable and, additionally, that it
made a ‘good-faith effort’ [citation] or, equivalently, exercised
reasonable or due diligence to obtain the witness’s presence at
trial.” (People v. Sanchez (2016) 63 Cal.4th 411, 440 (Sanchez).)
“ ‘[T]he term “due diligence” is “incapable of a mechanical
definition,” but it “connotes persevering application, untiring
13
efforts in good earnest, efforts of a substantial character.” ’
[Citation.] Relevant considerations include the timeliness of the
search, the importance of the witness’s testimony, and whether
leads were competently explored.” (Ibid.)
“The reviewing court defers to the trial court’s
determination of the historical facts if supported by substantial
evidence, but it reviews the trial court’s ultimate finding of due
diligence independently, not deferentially.” (Sanchez, supra,
63 Cal.4th at p. 440.)
C. Analysis
1. Prior to Deportation
Paredes argues the prosecution did not undertake
reasonable efforts before Herrera was deported to secure his
presence at trial. He relies on Roldan, supra, 205 Cal.App.4th at
page 980, in which the court held that due diligence requires the
prosecution to undertake reasonable efforts in order to prevent a
witness who is going to be deported from becoming unavailable
before trial. The witness in Roldan had finished serving his
sentence and was being held on a federal immigration hold when
he testified at the preliminary hearing. (Id. at p. 976.) The
prosecution “knew the federal government intended to deport
[the witness] following the preliminary hearing,” (id. at p. 981),
but did nothing; and after the hearing, the witness “was promptly
released to federal authorities and deported to Mexico.” (Id. at
p. 976.) Given their knowledge of the witness’s “impending
deportation,” the court ruled that due diligence required the
People to take steps to “forestall his deportation prior to trial,” or,
if that was not possible, at least to “increase the chances of his
returning for trial.” (Id. at p. 985.)
14
Here, Herrera was in state custody when he testified at the
preliminary hearing, not on an immigration hold. There is no
evidence the prosecution knew Herrera would be deported upon
the conclusion of his prison term, and therefore the due diligence
obligations outlined in Roldan for imminent deportations did not
arise here.
Paredes does not contend there was actual evidence the
prosecution knew Herrera would be deported. Instead, he argues
such knowledge should be imputed to the prosecution because at
the hearing, the prosecutor did not contest defense counsel’s
statement that it was the “defense’s position, that [starting to
look for Herrera on June 24, 2021] wasn’t sufficient, knowing he
was in custody and could be subject to deportation.” (Italics
added.) According to Paredes, the prosecutor’s failure to contest
this statement constituted an admission.
We strongly question whether it would be appropriate to
treat the prosecution’s silence here as an admission, but even if
we were inclined to do so, defense counsel did not actually allege
the prosecution knew Herrera was going to be deported. She
argued the prosecution knew Herrera “was in custody and could
be subject to deportation.” “Could be” is conditional. Any person
in custody could be subject to deportation; whether that inmate
actually is deportable depends on whether he or she is an
American citizen and on the offense committed. (See, e.g.,
8 U.S.C. § 1227 [classes of deportable aliens]; § 1016.5, subd. (a)
[advising defendants prior to plea of potential immigration
consequences if they are not citizens].) Knowing someone is in
custody and “could be” subject to deportation is not the same as
knowing that person is going to be deported upon their release.
15
Paredes fails to demonstrate the prosecution knew Herrera was
going to be deported or that Roldan applies to this case.
2. Post-Deportation
Paredes’s other argument is that the prosecution failed to
exercise due diligence attempting to locate Herrera after his
deportation. We conclude the trial court properly ruled the
prosecution exercised reasonable diligence in attempting to locate
Herrera.
Roberts competently pursued the leads he had concerning
Paredes’s whereabouts. He spent nearly one month searching for
Herrera across Southern California and in Mexico, checking
databases, looking for witnesses, contacting Herrera’s family, and
reaching out to government officials to try to locate him in
Mexico. Roberts checked criminal history and motor vehicle
records; he searched the records of five Southern California
counties. He ran searches using Herrera’s many aliases. He
went to the location of the crime, and he spoke to multiple
witnesses to attempt to identify Herrera’s location. Roberts also
spoke with family members and tried to have a message relayed
to Herrera through them.
Paredes argues the People “unreasonably delayed” its
search for Herrera because the defense had announced it was
ready for trial on June 8, 2021, but the investigator was not
assigned to investigate until June 24, 2021. But on June 8, 2021,
the court had yet again continued the matter to July 8, 2021,
because of outstanding discovery issues. Given the many
continuances and delays in this matter over the prior 17 months,
we cannot say that waiting until two weeks before trial was an
unreasonable delay. The People began the search a reasonable
period of time before the trial was to start.
16
Paredes emphasizes the importance of Herrera’s testimony,
characterizing it as “critically important” to one of the two
charges of assault with a semiautomatic firearm. This is
unquestionably true, but the assault with a firearm charge was
only one of four counts alleged against Paredes, and it was less
serious than the primary charge, first degree murder.
Paredes argues the People should have exhausted the
Bourdas and Batres leads, but this does not change our
conclusion that the prosecution exercised reasonable diligence.
“That additional efforts might have been made or other lines of
inquiry pursued does not affect this conclusion. [Citation.] It is
enough that the People used reasonable efforts to locate the
witness.” (People v. Cummings (1993) 4 Cal.4th 1233, 1298,
overruled on other grounds in People v. Merritt (2017) 2 Cal.5th
819, 821-822.) Due diligence does not require exhausting every
lead. (People v. Fuiava (2012) 53 Cal.4th 622, 677 [Sixth
Amendment does not require the prosecution to exhaust every
avenue of inquiry].) Thus, the court did not err in determining
Herrera was unavailable as a witness (Evid. Code, § 240), and the
presentation of Herrera’s preliminary hearing testimony at trial
did not violate Paredes’s statutory and constitutional rights.
D. The Gang Enhancements Must be Reversed
We agree with the People and Paredes that the gang
enhancement findings must be reversed due to postconviction
legislative changes to section 186.22. “In 2021, the Legislature
passed Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly
Bill 333), which became effective on January 1, 2022 (see Stats.
2021, ch. 699). Assembly Bill 333 made the following changes to
the law on gang enhancements: First, it narrowed the definition
of a ‘criminal street gang’ to require that any gang be an ‘ongoing,
17
organized association or group of three or more persons.’
(§ 186.22, subd. (f), italics added.) Second, whereas section
186.22, former subdivision (f) required only that a gang’s
members ‘individually or collectively engage in’ a pattern of
criminal activity in order to constitute a “criminal street gang,”
Assembly Bill 333 requires that any such pattern have been
‘collectively engage[d] in’ by members of the gang. (§ 186.22,
subd. (f), italics added.) Third, Assembly Bill 333 also narrowed
the definition of a ‘pattern of criminal activity’ by requiring that
(1) the last offense used to show a pattern of criminal gang
activity occurred within three years of the date that the currently
charged offense is alleged to have been committed; (2) the
offenses were committed by two or more gang “members,” as
opposed to just ‘persons’; (3) the offenses commonly benefitted a
criminal street gang; and (4) the offenses establishing a pattern
of gang activity must be ones other than the currently charged
offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333
narrowed what it means for an offense to have commonly
benefitted a street gang, requiring that any ‘common benefit’ be
‘more than reputational.’ (§ 186.22, subd. (g).)” (People v. Tran
(2022) 13 Cal.5th 1169, 1206 (Tran).) These ameliorative
changes apply retroactively to defendants whose convictions are
not yet final. (Id. at pp. 1206–1207.)
“When a substantive change occurs in the elements of an
offense and the jury is not instructed as to the proper elements,
the omission implicates the defendant’s right to a jury trial under
the Sixth Amendment and reversal is required unless ‘it appears
beyond a reasonable doubt’ that the jury verdict would have been
the same in the absence of the error.” (Tran, supra, 13 Cal.5th at
p. 1207.) Here, reversal is necessary because, as the People
18
concede, Paredes’s conviction is not final and the evidence
presented at trial failed to establish that the predicate offenses
commonly benefited a criminal street gang, and that the common
benefit was more than reputational, as now required by section
186.22.
Accordingly, all gang findings and enhancements must be
reversed. On remand, if the court does not dismiss the gang
allegations at the hearing on the prosecution’s motion to dismiss
the enhancement allegations, the prosecution shall have the
opportunity to retry the gang allegations under the amended
requirements of section 186.22. (People v. Lopez (2021)
73 Cal.App.5th 327, 346; People v. Eagle (2016) 246 Cal.App.4th
275, 280 [when a statutory amendment adds an additional
element to an offense, the prosecution must be afforded the
opportunity to establish the additional element upon remand].)3
3 The parties agree the abstract of judgment contains an
error in how firearms and gang enhancement allegations are
listed with respect to one count. We need not direct that the
abstract be corrected because a new abstract of judgment will be
necessary after further proceedings in the trial court.
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DISPOSITION
The convictions are affirmed. The gang enhancement
allegation findings under section 186.22 and the firearm
enhancement findings under section 12022.53 and 12022.5 are
vacated. The matter is remanded to the trial court for a new
hearing on the prosecution’s motion to dismiss the gang and
firearm enhancement allegations and a new trial on the gang
allegations if they are not dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
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