People v. Chambers CA4/3 ( 2024 )

Filed 10/24/24 P. v. Chambers CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063918
v. (Super. Ct. No.
FSB19003215)
HEATHER SHIREE CHAMBERS,
OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of San Bernardino
County, Steve Malone, Judge. Affirmed in part, reversed in part, remanded.
Cindy Brines, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier and James H. Flaherty III, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
Defendant Heather Shiree Chambers was convicted of one count
of murder with a true finding on a gang enhancement and a firearm
enhancement. (Pen. Code, §§ 187, 186.22, subd. (b)(1), 12022.53, subds. (d),
(e)(1).)1 She was also convicted of one count of the substantive crime of street
terrorism. (§ 186.22, subd. (a).) Chambers contends that effective January 1,
2022, a change in the law amended the gang statute by adding new elements.
She claims she is entitled to a reversal of the substantive street terrorism
count, the gang enhancement, and the firearm enhancement. She also
contends the firearm enhancement required a violation of section 186.22.
The Attorney General concedes the street terrorism count and
the gang enhancement should be reversed, and we agree. The Attorney
General does not agree with respect to the firearm enhancement, arguing it
could be proved without reference to the gang allegations.
We conclude that the firearm enhancement required proof of a
violation of section 186.22. Accordingly, the firearm enhancement must also
be reversed. Both enhancements and the street terrorism count may be
retried should the prosecution wish to pursue them.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
We limit our discussion of the facts to those necessary to decide
this appeal.
1 Subsequent statutory references are to the Penal Code unless
otherwise indicated.
2
I.
THE HOOKAH LOUNGE INCIDENT
On August 25, 2019, there was an incident in which John Doe 2
(JD2),2 a 4 Blocc Gang member, and Chambers went to the Hookah Lounge, a
location known for gang activity in San Bernardino. JD2 was armed with a
loaded 9mm Beretta handgun. Once at the Hookah Lounge, JD2 met up with
an individual named Remy Moore. Moore was also armed.
Later that evening, JD2 and Moore were involved in an
altercation with Vernon Singleton, who “was drunk and disrespecting the
women” at the bar. Later, in the parking lot, Singleton pulled up in his car
and began shooting at JD2 and Moore. JD2 aimed his gun in the air and fired
what he described as warning shots. Moore returned fire. JD2 left the scene.
JD2 described Moore’s vehicle as a silver Nissan Sentra.
II.
THE AUGUST 26 SHOOTING
The next day, two friends, John Doe (JD1) and Nitesh Kumar
drove to JD1’s apartment. As they walked through the apartment parking
lot, a car matching Moore’s Nissan drove slowly through the lot. JD1 saw
three people in the vehicle. The car drove by several times. The rear
passenger and the front passenger eventually shot at Kumar and JD1,
striking and killing Kumar. The police later matched the shell casings at the
scene to the casings that had been found in the Hookah Lounge parking lot
the night before.
2 There are two witnesses referred to as John Doe in the record,
John Doe 1 (JD1) and John Doe 2 (JD2).
3
It was later learned that shortly before Kumar’s shooting, JD2
had received a video call from Chambers. Chambers was in a car, and JD2
was able to see that she was with Moore and Rasheem Wade, called Uno.
Moore was in the front passenger seat and Wade was in the backseat. After
some general conversation, JD2 asked the vehicle occupants what they were
going to do, and Chambers said she was going to take the others to “go slide,”
which means “try to shoot at people.” They were looking for members of rival
gangs. They were considering shooting at members of the California Gardens,
a rival of 4 Blocc. Shooting a member of the California Gardens allowed a
member of 4 Blocc to refer to themselves as GK, or Gardens Killers.
Chambers told JD2 that she wanted Moore “to do a shooting in
front of her” because he hadn’t done so before. Chambers was a “shot-caller”
in the 4 Blocc gang, and subordinate gang members were required to follow
her instructions.
Chambers called JD2 again a few hours later. Thereafter, Moore,
Wade, and Chambers arrived to see JD2 in Moore’s Nissan Sentra. Chambers
told JD2 that they had “tried to go find somebody, they thought they seen an
enemy, and they had shot at them.” They had been looking for Colton City
Crips to shoot. Chambers told JD2 that while they were looking, “they were
riding down the block, she was driving, and I guess they seen the dude sitting
on a brick wall and Wade and Moore had started shooting at him. And I
guess the dude ran and they said he had fell. They thought, you know, they
had killed him, so they ended up leaving after that.” Chambers had seen the
person walking and told the others to start shooting.
About a week later, JD2 told Chambers he had heard that an
innocent person had been killed in the shooting, and she appeared shocked
and said the situation was “f***ed up.”
4
After her arrest, Chambers participated in several phone calls
that were routinely recorded. In one call, she complained that JD2 had
“snitched,” which caused her to be caught and arrested. In addition to JD2’s
statement, the prosecution had evidence that Chambers’s cell phone had been
in the vicinity of the murder near the time it took place.
At the conclusion of trial, the jury convicted Chambers of one
count of murder with the street gang enhancement and the firearm
enhancement, as well as one count of street terrorism. (§§ 187, 186.22, subds.
(a), (b)(1), 12022.53, subds. (d), (e)(1).) Chambers now appeals.
DISCUSSION
I.
THE GANG ENHANCEMENT AND STREET TERRORISM COUNT
The Legislature enacted Assembly Bill No. 333 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 699, §3) (Assem. Bill No. 333), which altered the law
regarding gang crimes under section 186.22. As relevant here, pursuant to
the new legislation, imposition of a gang enhancement under subdivision
(b)(1) or conviction for street terrorism under subdivision (a) requires proof of
the following additional requirements with respect to predicate offenses: (1)
the offenses must have “commonly benefited a criminal street gang” where
the “common benefit . . . is more than reputational”; (2) the last predicate
offense must have occurred within three years of the date of the currently
charged offense; (3) the predicate offenses must be committed on separate
occasions or by two or more gang members; and (4) the charged offense
cannot be used as a predicate offense. (Assem. Bill No. 333; § 186.22, subd.
(e)(1)–(2).)
5
The Attorney General concedes, and the parties do not dispute,
that the revisions to section 186.22 apply retroactively to cases not yet final
on appeal. (People v. Clark (2024) 15 Cal.5th 743, 751.)
The record reflects that the evidence at trial did not establish the
murder, or all of the predicate offenses, were committed by two or more gang
members. Nor does the evidence establish the other requirements of the
revised statute. The Attorney General concedes, and we agree, that both the
street terrorism count and the street gang enhancement on the murder count
require reversal.
II.
THE FIREARM ENHANCEMENT
Where the parties disagree, however, is about the status of the
firearm enhancement to the murder count pursuant to section 12022.53,
subdivisions (d) and (e)(1). Chambers contends the firearm enhancement
must also be reversed because the record indicated that she was charged,
convicted, and sentenced based on a gang-related firearm enhancement
under both relevant subdivisions of section 12022.53, subdivisions (d) and
(e)(1).
Section 12022.53, subdivision (d) states, in relevant part:
“Notwithstanding any other law, a person who, in the commission of a felony
specified in subdivision (a) . . . personally and intentionally discharges a
firearm and proximately causes . . . death . . . shall be punished by an
additional and consecutive term of imprisonment in the state prison for 25
years to life.”
Section 12022.53, 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)
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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).” (Italics
added.) In the amended information, it was alleged that a firearm
enhancement applied “within the meaning of Penal Code sections 12022.53
(d) and (e)(1).”3
“The changes wrought by Assembly Bill [No.] 333 also require
that we vacate the firearm enhancement . . . findings in this case (§ 12022.53,
subds. (b)-(d), (e)(1) . . .). Every true finding on the firearm enhancement
allegations that the jury made was based on subdivision (e)(1) of section
12022.53, which provides that the court may impose additional sentences
listed in subdivisions (b) through (d) if two conditions are found to be true: (1)
the defendant was a principal in the underlying crime and violated section
186.22, subdivision (b); and (2) any principal in the offense committed any act
listed in subdivisions (b) through (d) in section 12022.53.” (People v. Lee
(2022) 81 Cal.App.5th 232, 239.)
The same is true here. Given the facts, the jury must have
concluded the firearm enhancement was true under both subdivisions (d) and
(e)(1). As the trial court noted “[t]he evidence is clear that Ms. Chambers did
not actually fire the firearm. . . . Her involvement is, she was involved in a
[crime] that was committed for the benefit of a criminal street gang, which is
evidenced by the fact that the jury found . . . a violation of Penal Code Section
186.22(a).”
The jury was instructed with both CALCRIM Nos. 1402 and
3 The prosecution also alleged firearm enhancements under
“sections 12022.53(c) and (e)(1)” and section “12022.53(b) and (e)(1),”
although it appears that the only theory pursued at trial was under section
12022.53, subdivisions (d) and (e)(1).
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3150. CALCRIM No. 1402, the instruction on the “gang-related firearm
enhancement” under section 12022.53, subdivision (e), is very clear that
finding the defendant guilty of murder for the benefit of, at the direction of,
or in association with, a criminal street gang was a prerequisite to
considering the firearm enhancement. The Bench Notes for CALCRIM No.
1402 state: “In order for the defendant to receive an enhancement under
Penal Code section 12022.53(e), the jury must find both that the defendant
committed a felony for the benefit of a street gang and that a principal used
or intentionally discharged a firearm in the offense. Thus, the court must
give CALCRIM No. 1401, Felony or Misdemeanor Committed for Benefit of
Criminal Street Gang, with this instruction and the jury must find both
allegations have been proved before the enhancement may be applied.” (The
record reflects the jury was also instructed with CALCRIM No. 1401.)
The court also instructed the jury with CALCRIM No. 3150,
which is the general instruction on the personal use of a firearm
enhancement under sections 667.61, subdivision (e)(3), and 12022.53,
subdivision (d). No gang connection is required for this version of the
enhancement.
The special verdict forms reflect the jury found the firearm
enhancement true under section 12022.53, subdivision (e), which requires the
connection to the street gang. The jury found it true that Chambers
“committed the crime for the benefit of, at the direction of, or in association
with a criminal street gang.” There was no special verdict form for the
version of the enhancement that did not require a connection to a street gang.
While the Attorney General contends “the verdict form demonstrates that the
firearm enhancement was premised on a violation of section 12022.53,
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subdivision (b)”4 this is clearly inaccurate. The verdict form closely tracks the
language of CALCRIM No. 1402. A minute order from the date of the jury’s
verdict reflects that the jury found the firearm enhancement true pursuant to
section 12022.53, subdivisions (d) and (e)(1). Accordingly, the most
reasonable interpretation of the record is that Chambers was found guilty of
the version of the firearm enhancement under 12022.53, subdivisions (d) and
(e)(1), which require both proof of street gang participation and the use of a
firearm by a principal.
This is further supported by the fact that the court relied almost
entirely on Chambers’s gang involvement as the reasoning behind sentencing
her to an additional 25 years under section 12022.53, subdivisions (d) and
(e)(1). “[I]t appears from the evidence that the clear motive to this killing . . .
was that Ms. Chambers had a place of standing within her criminal street
gang, and she wanted to bring up other gang members, two younger
members—I believe the evidence showed they were not actually other
admitted gang members, but she was trying to promote them into the gang.
So she was trying to encourage them to commit violent acts, felonies, so that
they could have increased standing and be more likely to be placed into the
criminal street gang.”
The court continued: “Chambers took a leadership role in the
commission of this offense. She played a domina[nt] role in that she was
driving, searching out someone to kill for the purpose of street gang violence
rivalry. She drove by and she slowed the car down so the other shooters
4 In offering this argument, the Attorney General cites to a page
in the record that does not exist. The Attorney General also argues its
position based on the fact that CALCRIM No. 3150 was provided to the jury,
while ignoring that the jury was also instructed with CALCRIM No. 1402.
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would have an opportunity to fire their shots. [¶] Under our California law,
she therefore is responsible for an additional 25-year enhancement for the
gang involvement. I do believe that in the interest of justice, it’s appropriate
to apply that.” (Italics added.)
Because the firearm enhancement was dependent on the jury’s
underlying findings regarding the gang pursuant to section 186.22, the
firearm enhancement must also be reversed, subject to retrial at the
prosecution’s discretion.
DISPOSITION
Both the firearm enhancement (§ 12022.53, subds. (d), (e)(1)) and
the gang enhancement (§ 186.22, subd. (b)(1)) on the murder count are
reversed and the matter is remanded for resentencing. The street terrorism
count (§ 186.22, subd. (a)) is also reversed. The prosecution is entitled to a
retrial if it so desires. (People v. Figueroa (1993) 20 Cal.App.4th 65, 71.) In all
other respects, the judgment is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
MOTOIKE, J.
GOODING, J.
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