People v. Lopez

Filed 12/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B301050
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA400013-02)
v.
EDGAR A. LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Convictions
affirmed, certain gang and firearm enhancements and special
circumstances vacated and remanded for new trial.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
Edgar Lopez was convicted of the first degree murders of
Steven Robinson, Aric Lexing, and Scott Grant (Pen. Code,
§ 187)1 and sale of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a)), with associated enhancements and special
circumstances found true. On appeal, Lopez contends:
(1) insufficient evidence supported the jury’s finding on one
firearm enhancement allegation; (2) the trial court should have
given his requested jury instruction on the mental state required
for aiding and abetting a murder; (3) the court erred in admitting
evidence pertaining to a traffic stop of the car in which Lopez was
riding shortly after the Lexing and Grant murders; (4) the court
erred in excluding third party culpability evidence; and (5) the
cumulative effect of the errors deprived him of due process of law
and a fair trial. In supplemental briefing, Lopez argues that
certain enhancement and special circumstance findings must be
vacated and the matter remanded for a limited retrial due to
statutory changes made by Assembly Bill No. 333 (2021–2022
Reg. Sess.) (Stats. 2021, ch. 699). We affirm the convictions, but
vacate the gang-related special circumstance and enhancement
findings and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Robinson was shot to death on March 9, 2007; Grant and
Lexing were shot to death on July 20, 2007. The killings took
place near the territory of the 18th Street gang, and the bullets
that struck Robinson and Grant were fired from the same
handgun. The crimes went unsolved for several years, until an
1 All further references are to the Penal Code unless
otherwise indicated.
2
FBI informant within the 18th Street gang recorded a
conversation involving two high level members, Lopez and
Gustavo Guzman. Lopez and Guzman reminisced about two
shootings they had carried out, and they provided enough detail
about the crimes and subsequent events to permit the Los
Angeles Police Department to determine they were discussing the
killings of Robinson, Grant, and Lexing.
Lopez was charged with the murders of Robinson (count 1),
Grant (count 2), and Lexing (count 3), with multiple firearm
enhancements and a gang enhancement alleged for each
murder charge (§§ 187, 186.22, subd. (b)(1)(C), 12022.53,
subds. (b)-(e)(1)). Two special circumstances were alleged:
(1) Lopez intentionally committed each murder while he was an
active participant in a criminal street gang and the murder was
committed to further the activities of the gang (§ 190.2,
subd. (a)(22)), and (2) Lopez was convicted of multiple murders
(§ 190.2, subd. (a)(3)). Lopez was also charged with two counts of
selling methamphetamine, also with a gang enhancement
allegation (§ 186.22, subd. (b)(1)(A), Health & Saf. Code, § 11379,
subd. (a)) (counts 4 and 5); one count was later dismissed.
The jury found Lopez guilty of three first degree murders
and the sale of methamphetamine. For all three murders, the
jury found true the special allegation that a principal personally
and intentionally discharged a firearm, causing the victim great
bodily injury or death (§ 12022.53, subds. (d) & (e)(1)); in the
Lexing and Scott murders, the jury also found true allegations
that Lopez personally and intentionally discharged a firearm,
which caused Lexing and Scott great bodily injury or death
(§ 12022.53, subd. (d)). The jury found all four offenses were
3
committed for the benefit of a criminal street gang. Finally, the
jury found the special circumstances allegations true.
The prosecution sought the death penalty, but the jury
selected a sentence of life in prison without the possibility of
parole. For each of the three murders, Lopez was sentenced to
life in prison without the possibility of parole, plus a sentence of
25 years to life for the firearms enhancement in section 12022.53,
subdivision (d). Additionally, the court imposed the mid-term of
three years for the drug offense, plus three years for the gang
enhancement. The court designated the sentences to run
consecutively. Lopez appeals.
DISCUSSION
I. Lexing Murder: Firearm Enhancement Finding
Section 12022.53, subdivision (d) provides for a consecutive
sentence enhancement of 25 years to life when the defendant
“personally and intentionally discharges a firearm and
proximately causes great bodily injury . . . or death” during the
commission of the offense. Lopez contests the jury’s true finding
that he personally discharged a firearm, causing Lexing’s death.
He argues the jury’s finding under section 12022.53, subdivision
(d) must be vacated because there was no evidence to support the
jury’s conclusion that he, as opposed to Guzman, personally fired
the shot that struck and killed Lexing.
Sufficient evidence supports the jury’s finding. Lexing and
Grant were killed in a single incident. Grant was found dead in
the front passenger seat of Lexing’s car, with his seat belt still on.
The driver’s side door was open and the driver’s seat empty;
Lexing was discovered lying face-down in the gutter nearby.
Grant had been shot multiple times with both .40- and .45-caliber
4
bullets, suggesting he was shot with two separate firearms. The
injuries to Grant’s body were consistent with him having been
shot through both the passenger’s side window of the car and the
rear of the driver’s side of the car. Also indicating there were two
shooters were the locations of casings recovered from the scene:
.40-caliber casings were found in front and to the right of the car,
and .45-caliber casings were located to the left and to the back of
the car. Lexing had been shot once in the back as he fled from
the car.
As both Lopez and the People acknowledge, section
12022.53, subdivision (d) requires proximate causation, not
actual causation. Therefore, the validity of the jury’s finding
rests not on whether Lopez fired the shot that actually killed
Lexing, but on whether Lopez’s personal and intentional
discharge of a firearm proximately caused great bodily injury or
death. A proximate cause of great bodily injury “ ‘is an
act . . . that sets in motion a chain of events that produces as a
direct, natural and probable consequence of the act . . . the great
bodily injury or death and without which the great bodily injury
or death would not have occurred.’ ” (People v. Bland (2002)
28 Cal.4th 313, 335.) Consistent with this authority, the jury
was instructed with CALJIC No. 17.19.5, defining a proximate
cause of death as “an act or omission that sets in motion a chain
of events that produces as a direct, natural and probable
consequence of the act or omission the death and without which
the death would not have occurred.”
The evidence was sufficient to permit the jury to conclude
that regardless of which defendant fired the shot that killed
Lexing, Lopez personally and intentionally discharged a firearm,
proximately causing Lexing’s death. The act that set in motion
5
the chain of events resulting in Lexing’s death was the act,
committed by both defendants, of firing a flurry of gunfire into
the car in which Lexing and Grant were seated: Lopez and
Guzman, standing on opposite sides of the car, both fired
repeatedly into the car, killing Grant and prompting Lexing to
flee, only to be shot and killed as he ran away.
Lopez argues this case is like People v. Botello (2010)
183 Cal.App.4th 1014, in which the People conceded a section
12022.53, subdivision (d) enhancement should be vacated because
one identical twin discharged a handgun and the other merely
drove the vehicle, and there was no evidence to indicate which
twin was the actual shooter. Here, in contrast to Botello, both
Lopez and Guzman fired into the vehicle where Lexing and Grant
were sitting, setting in motion the chain of events leading to the
deaths of both victims. Botello is inapposite here, and the jury’s
finding was supported by sufficient evidence.
II. Robinson and Lexing Murders: Jury Instruction on
Aiding and Abetting
A defendant aids and abets a crime if he or she knows of
the perpetrator’s unlawful purpose and he or she specifically
intends to, and does in fact, aid, facilitate, promote, or instigate
the perpetrator’s commission of that crime. (People v. Chiu
(2014) 59 Cal.4th 155, 166–167 [a conviction for first degree
premeditated murder on direct aiding and abetting principles
requires “that the defendant aided or encouraged the commission
of the murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing,
encouraging, or facilitating its commission”], superseded by
statute on another ground as stated in People v. Lewis (2021)
11 Cal.5th 952, 959, fn. 3; People v. Hamilton (1989) 48 Cal.3d
6
1142, 1169–1170 [“to be an aider and abettor as a matter of law
an individual must ‘act with knowledge of the criminal purpose of
the perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the
offense’ ”].)
The jury was thoroughly instructed on principles of aider
and abettor liability. The court gave CALJIC No. 3.01: “A person
aids and abets the commission of a crime when he or she: [¶]
(1) With knowledge of the unlawful purpose of the perpetrator,
[¶] (2) With the intent or purpose of committing or encouraging
or facilitating the commission of the crime, and [¶] (3) By act or
advice, aids, promotes, encourages or instigates the commission
of the crime. [¶] A person who aids and abets the commission of
a crime need not be present at the scene of the crime. [¶] Mere
presence at the scene of a crime which does not itself assist the
commission of the crime does not amount to aiding and abetting.
[¶] To be guilty as an aider or abettor, a defendant’s intent or
purpose of committing or encouraging or facilitating the
commission of the crime by the perpetrator must be formed
before or during the commission of the crime. [¶] Mere
knowledge that a crime is being committed and the failure to
prevent it does not amount to aiding and abetting.”
The court also instructed the jury with CALJIC No. 3.00,
which defines principals in a crime and provides that when the
charge is murder, “the aider and abettor’s guilt is determined by
the combined acts of all the participants as well as that person[’]s
own mental state. If the aider and abettor’s mental state is more
culpable than that of the actual perpetrator, that person’s guilt
may be greater than that of the actual perpetrator. Similarly,
7
the aider and abettor’s guilt may be less than the perpetrator’s, if
the aider and abettor has a less culpable mental state.”
The jury was also instructed with CALJIC No. 8.70, a short
instruction stating there are two degrees of murder and if the
jury determines that a defendant is guilty of murder, it must also
determine whether the murder is of the first or second degree.
Additionally, the court gave CALJIC No. 8.71, which provides
that if the jury is convinced beyond a reasonable doubt that a
defendant committed murder, but has a reasonable doubt as to
whether the murder was in the first or second degree, it must
give the defendant the benefit of the doubt and return a verdict
finding the defendant guilty of second degree murder and not
guilty of first degree murder.
Lopez argues the trial court erred when it refused to
instruct the jury with his proposed modification to CALJIC
No. 8.70. That modification would have appended the following
language to the two sentences that make up CALJIC No. 8.70:
“If you are convinced beyond a reasonable doubt that a
defendant is the actual perpetrator of any of the murders alleged
in counts 1, 2, or 3, in order to return a verdict of first degree
murder you must all agree that the defendant was proven beyond
a reasonable doubt to have committed a willful, deliberate, and
premeditated killing as that has been defined for you in another
instruction.
“If you are convinced beyond a reasonable doubt that a
defendant is the actual perpetrator of any of the murders alleged
in counts 1, 2, or 3, but have a doubt as to whether the killing
was willful, deliberate, and premeditated you must give the
defendant the benefit of that doubt and return a verdict of second
degree murder as to that killing.
8
“If you have a reasonable doubt that a defendant was the
actual perpetrator of any of the murders alleged in counts 1, 2, or
3, you may still find him guilty of murder if you find that he
aided and abetted the actual perpetrator of the killing as that has
been defined for you in another instruction.
“If you find beyond a reasonable doubt that a defendant
aided and abetted the actual perpetrator of any of the murders
alleged in counts 1, 2, or 3, and have found that that murder was
murder of the first degree, in order to return a verdict of first
degree murder as to an aider and abettor you must all agree that
that person acted with knowledge that the perpetrator of the
murder intended to carry out a willful, deliberate, and
premeditated killing, that he intended to encourage or facilitate
such a killing, and that he did, by act or advi[c]e, aid, promote,
encourage or instigate the commission of such a killing.
“If you find beyond a reasonable doubt that a defendant
aided and abetted the actual perpetrator of any of the murders
alleged in count 1, 2, or 3, and have found that that murder was
murder of the first degree but have a doubt as to whether he
acted with knowledge that the actual perpetrator of the murder
intended to carry out a willful, deliberate, and premeditated
killing, or that he intended to encourage or facilitate such a
killing, or that he did, by act or advi[c]e, aid, promote, encourage,
or instigate the commission of the killing you must give the
defendant the benefit of that doubt and return a verdict of second
degree murder as to that killing as to that defendant.” (Italics
omitted.)
The trial court rejected Lopez’s proposed modification,
expressing concerns that its length “lends itself to error” and
questioning whether it was a fully correct statement of the law.
9
We review claims of instructional error de novo (People v. Guiuan
(1998) 18 Cal.4th 558, 569–570), and conclude the court did not
err. “ ‘[A] trial court may properly refuse an instruction offered
by the defendant if it incorrectly states the law, is argumentative,
duplicative, or potentially confusing [citation], or if it is not
supported by substantial evidence.’ ” (People v. Scully (2021)
11 Cal.5th 542, 592.)
The requested modification was duplicative, confusing, and
unnecessary. The first two paragraphs of the modification,
concerning the liability of actual perpetrators, are entirely
duplicative of other instructions, and Lopez does not make any
argument on appeal about this portion of his proposed
modification. Similarly, Lopez does not assert on appeal that the
court erred by not giving the third paragraph of his proposed
modification, the paragraph stating that if the jury has a
reasonable doubt whether a defendant was the actual
perpetrator, the defendant may be guilty of murder if he or she
aided and abetted the other defendant in the killing. This, too,
was addressed in other instructions given to the jury, namely
CALJIC No. 3.00.
Instead, Lopez focuses on the final two paragraphs of his
proposed modification. According to Lopez, because the court
declined to modify the instruction, the jury was not instructed the
aider and abettor must have acted willfully with premeditation
and deliberation, and therefore the jury could have convicted
Lopez of the murders of Robinson and Lexing as an aider and
abettor who acted with knowledge of Guzman’s intent to commit
a murder even if he (Lopez) did not act willfully with
10
premeditation and deliberation.2 Additionally, he argues the jury
instructions “failed to establish that an aider and abettor could be
convicted only of second-degree murder unless the jury found the
aider and abettor acted with knowledge that the direct
perpetrator intended to carry out a willful, deliberate, and
premeditated killing.”3
2 Lopez primarily bases this argument on the California
Supreme Court’s decision in People v. Chiu, supra, 59 Cal.4th
155. In Chiu, the jury had been instructed with alternate
theories of liability: direct aiding and abetting in a murder and
aiding and abetting the principal in the target offense of assault
or disturbing the peace, the natural and probable consequence of
which was murder. (Id. at p. 160.) The Supreme Court held an
aider and abettor may not be convicted of first degree
premeditated murder under the natural and probable
consequences doctrine. (Id. at pp. 158–159.) It did not change
the law concerning convictions for first degree premeditated
murder based upon direct aiding and abetting principles. (Id. at
pp. 166–167.) No natural and probable consequences theory was
involved in this case, so Chiu is inapposite.
3 Lopez cites no authority directly supporting this
contention, arguing instead by analogy from People v. Dennis
(2020) 47 Cal.App.5th 838, review granted July 29, 2020,
S262184, in which the Court of Appeal found that when a
defendant is charged with attempted premeditated murder on a
natural and probable consequences theory, the jury must be
instructed that attempted premeditated murder, not merely
murder, was a natural and probable consequence of the target
offense. (Id. at p. 854.) Again, as no natural and probable
consequences theory was asserted in this case, Dennis is of no
utility.
11
We consider the instructions as a whole to determine
whether there is a reasonable likelihood the jury misunderstood
the instructions as the defendant contends. (Estelle v. McGuire
(1991) 502 U.S. 62, 72.) We conclude the instructions as a whole
could not reasonably be interpreted as Lopez suggests. CALJIC
Nos. 3.00 and 3.01 focused the jury’s attention on the defendants’
individual mental states as to the murders, specifically noting an
aider and abettor’s culpability could be greater or lesser than that
of the actual perpetrator. The jury instructions given on murder
and the degrees of murder (CALJIC Nos. 8.00, 8.10, 8.11, 8.20,
8.30, 8.70) made it clear a defendant could not be found guilty
without possessing the required mental state and only a
premeditated murder would be first degree murder. The jury
was instructed to decide separately whether each defendant was
guilty or not guilty (CALJIC No. 17.00). The jury was further
instructed that any doubt as to a defendant’s liability for murder
in the first or second degree had to be resolved in that
defendant’s favor (CALJIC No. 8.71), and there had to be
unanimous agreement as to whether a defendant was guilty of
first degree murder or second degree murder (CALJIC No. 8.74).
Because the instructions given by the court told the jury
only a premeditated murder was a first degree murder (CALJIC
No. 8.20) and it made clear it was the aider and abettor’s own
mental state that determined his culpability (CALJIC No. 3.00),
there were only two ways the jury could find Lopez guilty of first
degree murder: jurors either had to conclude Lopez was the
actual shooter and acted with premeditation, or they had to find
he deliberately intended to aid and abet Guzman’s premeditated
murder. Therefore, any determination that Lopez was an aider
and abettor required a conclusion that he intended to further
12
Robinson’s and Lexing’s premeditated killings. While the
California Supreme Court has noted that intent to kill
establishes express malice (§ 188) but “does not itself establish
deliberation and premeditation,” it has also observed that “ ‘[i]t
would be virtually impossible for a person to know of another’s
intent to murder and decide to aid in accomplishing the crime
without at least a brief period of deliberation and premeditation,
which is all that is required.’ ” (People v. Daveggio and Michaud
(2018) 4 Cal.5th 790, 847.) There is no reasonable likelihood that
the jury convicted Lopez of the murders of Robinson and Lexing
as an aider and abettor without concluding he acted with
premeditation and deliberation and that he knew Guzman
intended to carry out a willful, deliberate, and premeditated
killing.
III. Failure to Suppress Evidence of the Traffic Stop and
Associated Evidence
Lopez and Guzman were stopped by a sheriff’s deputy
minutes after they shot Grant and Lexing; the traffic stop was
near the location of the killings. Although their vehicle was
searched because Guzman was on parole, no evidence was
recovered, and the deputy, unaware of the recent shooting,
allowed the men to leave. At trial, Guzman filed a motion to
suppress evidence of the stop; Lopez joined in the motion. The
trial court denied the motion to suppress on multiple grounds,
one of which was that the traffic stop had a lawful basis: the
vehicle’s headlights were off in the middle of the night.
Lopez contends the trial court erred when it found the
traffic stop was lawful because its finding that the stop was based
on the vehicle’s lights being off was not supported by substantial
admissible evidence. Accordingly, Lopez argues the court should
13
have suppressed “the fact that the GMC Envoy with the
particular license plate was being driven and was subsequently
stopped at that particular time,” as well as the fact that Lopez
and Guzman were the occupants of the vehicle. When reviewing
challenges to the factual findings made by the trial court at a
suppression hearing, we defer to the superior court’s express and
implied factual findings if they are supported by substantial
evidence. (People v. Tully (2012) 54 Cal.4th 952, 979 (Tully).)
“As the finder of fact in a proceeding to suppress evidence
[citation], the superior court is vested with the power to judge the
credibility of the witnesses, resolve any conflicts in the testimony,
weigh the evidence and draw factual inferences in deciding
whether a search is constitutionally unreasonable.” (People v.
Woods (1999) 21 Cal.4th 668, 673.) “Accordingly, ‘[w]e view the
evidence in a light most favorable to the order denying the
motion to suppress’ [citation], and ‘[a]ny conflicts in the evidence
are resolved in favor of the superior court ruling’ [citation].
Moreover, the reviewing court ‘must accept the trial court’s
resolution of disputed facts and its assessment of credibility.’ ”
(Tully, at p. 979.)
Viewing the evidence in the light most favorable to the trial
court’s ruling, we conclude the evidence was sufficient to support
the court’s finding that the stop was prompted by the vehicle
being operated at night without headlights. The deputy who
pulled over Guzman and Lopez, Gabrielle Graves, testified she
stopped the vehicle because it was approximately 3:00 a.m., it
was dark outside, and the vehicle’s headlights were off. At the
hearing, which took place nearly a decade after the traffic stop,
the deputy testified she initially had no independent recollection
of the stop, but her recollection had been refreshed when she
14
reviewed documents. Specifically, Graves testified she had
reviewed the testimony she had given before the grand jury and
looked at a log that described the stop as a “suspicious person”
stop, and from that she was able to remember that the vehicle
had no lights on, even though the headlights were not mentioned
in the documents she reviewed. The trial court found Graves’s
recollection of the reasons for the stop were “extremely nebulous
and greatly suffered in terms of specificity,” and it described her
as “a horrible witness.” However, the court rejected defendant
Guzman’s argument that Graves had committed perjury in her
testimony, it did not reject her testimony, and it concluded
Graves initiated the traffic stop because the vehicle’s headlights
were off. We “ ‘must accept the trial court’s resolution of disputed
facts and its assessment of credibility.’ ” (Tully, supra, 54 Cal.4th
at p. 979.)
Lopez focuses on the trial court’s assertion that the
testimony of a deputy who responded to the scene as Graves’s
backup was “more clear as to the basis for the stop.” He argues
this deputy’s testimony that Graves told him she had stopped the
vehicle because its headlights were off was inadmissible hearsay,
and that “once the inadmissible hearsay is removed from the
calculation,” the case is akin to U.S. v. Burke (D. Md. 2009)
605 F.Supp.2d 688, in which a traffic stop was found to be
unlawful where the detective did not remember the reason for the
traffic stop and there were no contemporaneous documents
describing the basis for the stop. This case is not like Burke,
however. Even if we accept for the sake of argument that the
second deputy’s testimony was inadmissible hearsay, we are not
left with a law enforcement officer who did not remember the
reason for the traffic stop, as was the situation in Burke. Graves
15
was far from an ideal witness, as the trial court noted, and her
recollection varied, but she did testify she remembered stopping
the vehicle because its lights were off; and she explained, when
questioned by the trial court, that from reviewing the
documentation relating to the traffic stop, she was able to
remember that the vehicle’s headlights had been off, prompting
her to stop the vehicle. Lopez has not established any error.
IV. Third Party Culpability Evidence
“[T]hird party culpability evidence may be admitted if it is
relevant and its probative value is not substantially outweighed
by the risk of undue delay, prejudice, or confusion, or otherwise
made inadmissible by the rules of evidence. [Citations.] ‘To be
admissible, the third-party evidence need not show “substantial
proof of a probability” that the third person committed the act; it
need only be capable of raising a reasonable doubt of defendant’s
guilt. At the same time, we do not require that any evidence,
however remote, must be admitted to show a third party’s
possible culpability.’ [Citation.] For example, ‘evidence of mere
motive or opportunity to commit the crime in another person,
without more, will not suffice to raise a reasonable doubt about a
defendant’s guilt. . . . ’ [Citation.] Moreover, admissible evidence
of this nature points to the culpability of a specific third party,
not the possibility that some unidentified third party could have
committed the crime. [Citations.] For the evidence to be relevant
and admissible, ‘there must be direct or circumstantial evidence
linking the third person to the actual perpetration of the crime.’
[Citation.] As with all evidentiary rulings, the exclusion of third
party evidence is reviewed for abuse of discretion.” (People v.
Turner (2020) 10 Cal.5th 786, 816-817 (Turner).) Lopez argues
16
the trial court erred in excluding three types of third party
culpability evidence. We consider each in turn.
A. .45-Caliber Firearm
The same .45-caliber firearm was used in the Robinson
murder in March 2007 and the Grant/Lexing murders in July
2007. The People moved to exclude evidence that on the night of
June 10, 2007, the same weapon was fired into the home of Javier
Carrillo at 210 E. 93rd Street, striking him. An unidentified
person reported hearing gunshots and “observed what appeared
to be a male black figure standing in front of 208 E. 93rd Street.”
She reported the “male black figure got into an unknown type
[b]lack vehicle and drove off.” Six .45-caliber casings were
recovered from 208 E. 93rd Street. Firearms analysis showed the
casings were fired from the same weapon that was fired at the
Lexing/Grant murder scene, and therefore, from the weapon used
to kill Robinson.
The court excluded this evidence, stating that for third
party culpability evidence to be admissible, “[Y]ou have to show
not only that it was this third party, but somehow link it to this
crime. [¶] Even if you had a third party identified as discharging
a .40 or .45 caliber weapon, then you still need to show, under
third-party culpability, some link to this case by that third party,
even if that person had the opportunity or the motive to have
committed the crime. [¶] That’s not enough under the law.”
Lopez argues the court erred in excluding evidence of the
Carrillo shooting. He contends the evidence of an unidentified
third party who is Black, when Lopez and Guzman are Hispanic,
“directly implicated a third party in the charged offenses.” Not
so. The only evidence here was that an eyewitness identified a
person in the vicinity of the Carrillo shooting as Black and as
17
leaving the area in a car. The eyewitness did not observe the
shooting, nor did she identify the figure she saw beyond “Black”
and “male.” Evidence suggesting another person possessed the
firearm during the months between the murders charged here
does not raise a reasonable inference that someone other than
Lopez or Guzman committed the shootings charged in this case.
Admissible third party culpability evidence “points to the
culpability of a specific third party, not the possibility that some
unidentified third party could have committed the crime.
[Citations.] For the evidence to be relevant and admissible,
‘there must be direct or circumstantial evidence linking the third
person to the actual perpetration of the crime.’ ” (Turner, supra,
10 Cal.5th at pp. 816–817.) Here, the evidence at best links a
third party to the instrument used in the crime; it does not link
that third party to the actual perpetration of the charged
murders.
Lopez likens this case to People v. Basuta (2001)
94 Cal.App.4th 370, where evidence that a mother had previously
shaken her baby was excluded at the trial of a daycare operator
charged with inflicting injuries causing the child’s death. The
reviewing court concluded it was error to exclude the evidence
because it would have allowed the jury to conclude the child died
from a rebleed of a prior brain injury that previously had been
inflicted by the child’s mother rather than from a violent assault
by the daycare operator. (Id. at p. 387.) Lopez argues this case is
like Basuta because both cases involve a cause of death being
linked to another individual: In Basuta, the possible cause of
death was shaken baby syndrome, directly linked to the child’s
mother, while here the cause of death was the .45-caliber firearm
in the hands of the third party who performed the Carrillo
18
shooting. But in Basuta, the third party culpability evidence
directly connected the mother’s actions to the death of her child;
that is very different from the situation presented here, which
merely establishes that at some point between the charged
offenses, the weapon used to commit the charged offenses may
have been used by someone other than Lopez or Guzman. This
ostensible third party culpability evidence failed to directly link
any third party to the actual murders of Robinson, Grant, or
Lexing, and the trial court properly excluded the evidence.
B. .40-Caliber Firearm
A .40-caliber firearm was used in the Lexing and Grant
murders in July 2007. The trial court excluded evidence the
same .40-caliber firearm was fired in April 2007 and that it may
have been used in a pawn shop robbery in November 2007 in
which the suspect was described as an African-American male.
Specifically, a cartridge casing recovered from the pawn shop
robbery was identified as potentially linked with the casings from
the Lexing and Grant murder, but no confirmatory analysis was
ever performed and the firearm was later destroyed. The weapon
used in the pawn shop robbery was recovered in April 2009 in
conjunction with the arrest of a Rolling 60’s gang member. Lopez
argues this evidence raised a reasonable doubt as to his
culpability because it demonstrated the firearm potentially had
been used in another crime by a suspect whose description did
not match Lopez or Guzman’s description, and the potential
murder weapon was found in the possession of a different
individual.
The trial court did not abuse its discretion. None of this
evidence linked any third party to the murders. The facts that
the weapon was fired three months before the murders and that
19
three months after the murders it may have been used in another
crime simply does not directly link any third party to the
shooting deaths of Lexing and Grant. (See Turner, supra,
10 Cal.5th at p. 817.)
C. Glen McNeil
Guzman, joined by Lopez, attempted to introduce evidence
Grant had told friends he had caused a gang member’s girlfriend
to be arrested and he was afraid for his life. According to
Guzman’s counsel, “[t]here is also a suggestion that [Grant] may
have robbed the girlfriend” of drugs or money. One of Grant’s
friends, Eric Dotson, took Grant to the police station the day
before Grant’s death. Grant identified the gang member in
question as “Outlaw,” “Castro,” or “Peso,” and Dotson later
identified “Castro” as Glen McNeil, a member of the Crips. Cell
phone records for McNeil indicated he placed a telephone call the
night of the Grant and Lexing murders at 3:35 a.m., a few
minutes after the shooting.
The prosecution advised the court McNeil had been a
person of potential interest who was eliminated from
consideration by the police. The People proffered a cell tower
analysis demonstrating McNeil was not in the area of the
murders when he made the 3:35 a.m. telephone call. The court
excluded evidence pertaining to McNeil, finding even if McNeil
had a motive to kill Grant, there was no link to the actual
killings.
On appeal, Lopez argues the trial court abused its
discretion when it excluded this evidence. He contends three
facts linked McNeil to Grant’s murder: Grant’s report to law
enforcement that he was being targeted by a gang member;
Grant’s 12 bullet wounds compared to the single shot that hit
20
Lexing, suggesting Grant was the primary target of the shooting;
and McNeil’s phone call shortly after the murders. Lopez
acknowledges the People’s representation that McNeil was not in
the vicinity of the shooting when he placed his telephone call, but
he suggests McNeil “could have either driven away or,
alternatively, acted as a coordinator of the shooting.”
The trial court did not abuse its discretion in excluding this
evidence. “ ‘[E]vidence of mere motive or opportunity to commit
the crime in another person, without more, will not suffice to
raise a reasonable doubt about a defendant’s guilt.’ ” (Turner,
supra, 10 Cal.5th at p. 816.) There must be evidence tending to
directly connect that person with the actual commission of the
offense. (People v. Yeoman (2003) 31 Cal.4th 93, 140–141.) At
most, the evidence suggested McNeil had a possible motive to kill
Grant, but there was no evidence directly linking him to the
actual commission of the shootings. If anything, the evidence
tended to demonstrate McNeil was not present when the murders
were committed; Lopez’s argument he might have fled the area or
coordinated the shooting is purely speculative. Lopez has not
demonstrated any error here.
V. Assembly Bill No. 333
Lopez asked for leave to file supplemental briefing
regarding the impact of newly enacted Assembly Bill No. 333
(2021–2022 Reg. Sess.) (Assembly Bill 333) on this case. (See
Stats. 2021, ch. 699, §§ 1–5.) Assembly Bill 333 amends section
186.22 to require proof of additional elements to establish a gang
enhancement. (Assem. Bill 333, § 3, amended § 186.22, eff. Jan.
1, 2022.) We granted Lopez’s request and received briefing from
both parties.
21
Lopez asserts that Assembly Bill 333 should be applied
retroactively to his case and that, under the new law, there is
insufficient evidence to support imposition of not only the gang
enhancements under section 186.22 but also the related special
circumstance findings under section 190.2, subdivision (a)(22)
and the firearms enhancements under section 12022.53,
subdivisions (d) and (e)(1). He asks us to strike the true findings
on these allegations and remand the matter so the prosecutor can
either elect to retry the allegations or the trial court can
resentence him.
The People concede that Lopez is entitled to the
ameliorative effects of Assembly Bill 333’s amendments to section
186.22 because his judgment will not be final when the new
legislation takes effect. They argue, however, that substantial
evidence was presented or could have been presented to support
Lopez’s gang enhancement, even under the amended statute, and
thus remand would be an idle act. We conclude that the
amendments to section 186.22 apply retroactively here and that
the special circumstances and enhancement allegations that are
based on that statute must be vacated and the matter remanded.
A. Retroactivity
When Assembly Bill 333 goes into effect on January 1,
2022, Lopez’s judgment will not yet be final. In In re Estrada
(1965) 63 Cal.2d 740, 744–746, the California Supreme Court
held that, absent evidence to the contrary, the Legislature
intended amendments to statutes that reduce punishment for a
particular crime to apply to all whose judgments are not yet final
on the amendments’ operative date. (People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 307–308; People v. Brown (2012)
54 Cal.4th 314, 323.) This principle also applies when an
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enhancement has been amended to redefine to an appellant’s
benefit the conduct subject to the enhancement. (People v.
Figueroa (1993) 20 Cal.App.4th 65, 68, 70–71 (Figueroa).) As
Assembly Bill 333 increases the threshold for conviction of the
section 186.22 offense and the imposition of the enhancement, we
agree with Lopez and the People that Lopez is entitled to the
benefit of this change in the law. “[A] defendant is entitled to the
benefit of an amendment to an enhancement statute, adding a
new element to the enhancement, where the statutory change
becomes effective while the case was on appeal, and the
Legislature did not preclude its effect to pending case.” (Id. at
p. 68.)
B. Statutory Framework and Impact of Assembly
Bill 333
Section 186.22 provides for enhanced punishment when a
person is convicted of an enumerated 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.” (§ 186.22, subd.
(b)(1).) A “ ‘criminal street gang’ ” is defined under current law as
“any ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary
activities the commission of one or more [enumerated criminal
acts], having a common name or common identifying sign or
symbol, and whose members individually or collectively engage
in, or have engaged in, a pattern of criminal gang activity.” (Id.,
subd. (f), italics added.) Effective January 1, 2022, Assembly
Bill 333 narrows the definition of “ ‘criminal street gang’ ” to “an
ongoing, organized association or group of three or more persons,
whether formal or informal, having as one of its primary
23
activities the commission of one or more [enumerated criminal
acts], having a common name or common identifying sign or
symbol, and whose members collectively engage in, or have
engaged in, a pattern of criminal gang activity.” (Assem.
Bill 333, § 3; amended § 186.22, subd. (f), eff. Jan. 1, 2022, italics
added.)
At trial, the People introduced evidence that gang member
William Vasquez committed two murders in 2005 and gang
member Guillermo de Los Angeles committed a carjacking and
robbery in 2005. The evidence that these gang members
individually engaged in a pattern of criminal gang activity was
sufficient at the time of trial to meet the requirements of section
186.22, but when it becomes effective, Assembly Bill 333 will
require the prosecution to prove collective, not merely individual,
engagement in a pattern of criminal gang activity. No evidence
was introduced at trial to establish that the crimes committed by
Vasquez and de Los Angeles constitute collective criminal activity
by the 18th Street gang.
Assembly Bill 333 also altered the requirements for proving
the “pattern of criminal gang activity” necessary to establish the
existence of a criminal street gang. Currently, a “pattern of
criminal gang activity” means “the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of two or more of [enumerated]
offenses, provided at least one of these offenses occurred after the
effective date of this chapter and the last of those offenses
occurred within three years after a prior offense, and the offenses
were committed on separate occasions, or by two or more
persons.” (§ 186.22, subd. (e).) As of the effective date, Assembly
Bill 333 redefines “pattern of criminal gang activity” to require
24
that the last of the predicate offenses “occurred within three
years of the prior offense and within three years of the date the
current offense is alleged to have been committed,” and that the
predicate offenses “were committed on separate occasions or by
two or more members, the offenses commonly benefited a
criminal street gang, and the common benefit of the offenses is
more than reputational.” (Assem. Bill 333, § 3; amended
§ 186.22, subd. (e)(1), eff. Jan. 1, 2022.) In addition, the currently
charged offense cannot be used as a predicate offense under the
amendments. (Id., subd. (e)(2).)
Thus, pursuant to the new legislation, imposition of a gang
enhancement 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, as opposed to persons; and (4) the charged offense
cannot be used as a predicate offense. (Assem. Bill 333, § 3,
amended § 186.22, subd. (e)(1)–(2), eff. Jan. 1, 2022.) With
respect to common benefit, the new legislation explains: “[T]o
benefit, promote, further, or assist 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, 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.” (Assem. Bill 333, § 3, amended
§ 186.22, subd. (g), eff. Jan. 1, 2022.)
25
Although the People did submit evidence of two predicate
offenses that were committed in the new time frame, the People
did not prove that the predicate offenses commonly benefitted a
criminal street gang and that the benefit was more than
reputational. The People argue that the omission of proof that
the predicate offenses commonly benefitted a criminal street gang
in a way that was more than reputational was harmless because
there exists evidence that they benefitted the gang in a way
compliant with the new statutory provisions. However, the
evidence described by the People in their supplemental briefing
was not evidence presented to the jury in this case—instead, the
People draw their information from unpublished appellate
decisions concerning Vasquez and a codefendant of De Los
Angeles. We are not aware of any authority that would permit
this court to draw on evidence not presented to the jury but
derived from appellate opinions in other cases to support the
gang allegations here. Lopez has a constitutional right to a jury
trial on every element of the charged enhancement. (People v.
Ramos (2016) 244 Cal.App.4th 99, 104 (Ramos); Figueroa, supra,
20 Cal.App.4th at p. 71.)
Additionally, the jury was not prohibited from relying upon
the currently charged offenses in determining whether a pattern
of criminal gang activity had been proven, nor was it instructed
that it had to find that the benefit to the gang from the charged
offenses was more than reputational. As the People note,
evidence on these two points was presented to the jury that
would have been sufficient to comply with these new statutory
requirements, but as the trial took place long before the statute
was amended, the jury was not asked to, and therefore did not,
make the factual determinations that are now required by the
26
amendments to section 186.22. To rule that the existence of
evidence in the record that would permit a jury to make a
particular finding means that the jury need not actually be asked
to make that finding would usurp the jury’s role and violate
Lopez’s right to a jury trial on all the elements of the charged
allegations. (Ramos, supra, 244 Cal.App.4th at pp. 103–104;
Figueroa, supra, 20 Cal.App.4th at p. 71.) We therefore conclude
that the gang-related 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.
As Lopez notes, Assembly Bill 333’s changes to section
186.22 affect not only the gang enhancement allegations under
that statute but other statutes that expressly incorporate
provisions of section 186.22. Here, two other statutes that refer
specifically to section 186.22 are implicated: section 190.2,
subdivision (a)(22) and section 12022.53, subdivision (e)(1).
Section 190.2, subdivision (a)(22) establishes a gang murder
special circumstance: “The defendant intentionally killed the
victim while the defendant was an active participant in a
criminal street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the activities of
the criminal street gang.” As the definition of a criminal street
gang has been narrowed by Assembly Bill 333 and new elements
added in order to prove a criminal street gang and a pattern of
criminal activity, Lopez is entitled to the benefit of this change in
the law. The special circumstances findings under section 190.2,
subdivision (a)(22) must be vacated; on remand, the People must
be afforded the opportunity to prove this special circumstance in
compliance with the amended section 186.22, subdivision (f). We
27
note, however, that the jury’s other special circumstance finding,
the multiple murder special circumstance under section 190.2,
subdivision (a)(3), remains unaffected by the statutory changes
made by Assembly Bill 333.
Section 12022.53 provides for sentence enhancements for
the use of firearms in the commission of an enumerated felony.
The statute first provides for escalating punishments depending
on how the firearm is used. The least severe penalty is set forth
in section 12022.53, subdivision (b), which provides for a
consecutive 10-year term for a defendant who “personally uses” a
firearm in a felony. Next, a consecutive 20-year term is imposed
under section 12022.53, subdivision (c), if the defendant
“personally and intentionally discharges a firearm” in the
commission of the offense. Finally, section 12022.53,
subdivision (d) provides for a consecutive sentence enhancement
of 25 years to life when the defendant “personally and
intentionally discharges a firearm and proximately causes great
bodily injury . . . or death” during the commission of the offense.
While these subdivisions provide punishment for offenders
who personally use a firearm during the commission of their
crimes, the penalties may also be imposed on any person who is a
principal in the offense under certain gang-related circumstances:
First, the person who is a principal must be “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” as
set forth in section 186.22, subdivision (b). (§ 12022.53,
subd. (e)(1)(A).) Second, “[a]ny principal in the offense” must
have “committed any act specified in subdivision (b), (c), or (d),”
that is, any principal involved in the offense must have
28
personally used a firearm in the escalating use categories
provided in section 12022.53, subdivisions (b) through (d).
(§ 12022.53, subd. (e)(1)(B).)
Here, with respect to each murder, the jury found true the
allegations that a principal in the offense was convicted of a
felony committed for the benefit of a criminal street gang under
section 186.22, subdivision (b), and personally and intentionally
discharged a firearm within the meaning of section 12022.53,
subdivisions (d) and (e)(1), which caused great bodily injury or
death to Robinson, Grant, and Lexing. Because this
enhancement depends on a finding that the principal was
“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” as set forth in section 186.22,
subdivision (b) (§ 12022.53, subd. (e)(1)(A)), the changes to
section 186.22 made by Assembly Bill 333 require that the true
findings on these enhancements, too, be vacated and the matter
remanded to the trial court. We note, however, that with respect
to the murders of Lexing and Grant, the jury separately found
true the allegation under section 12022.53, subdivision (d) that
Lopez “personally and intentionally discharged a
firearm . . . which caused great bodily injury or death” to Lexing
and Grant. Accordingly, Lopez was sentenced to two consecutive
25-years-to-life terms under section 12022.53, subdivision (d) for
personally and intentionally discharging a firearm and
proximately causing death in the murders of Lexing and Grant.
Although we vacate the findings under section 12022.53,
subdivision (e)(1), those findings under section 12022.53,
subdivision (d), which carry the same penalty, remain intact.
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VI. Remaining Arguments
Lopez argues that if we conclude he failed to preserve any
of the issues raised in his appeal, we should nonetheless consider
those issues because he was denied the effective assistance of
counsel in the trial court. As we have not determined that Lopez
failed to preserve any of the issues he raised on appeal, no
question arises here as to the effectiveness of the representation
he received.
We reject Lopez’s final contention that the cumulative
effect of the claimed errors identified in his appeal deprived him
of due process of law and a fair trial. Because we have found
none of Lopez’s claimed errors to constitute individual errors,
they cannot as a group constitute cumulative error. (People v.
Richardson (2008) 43 Cal.4th 959, 1036, abrogated on other
grounds by statutory repeal as stated in People v. Nieves (2021)
11 Cal.5th 404, 535.)
30
DISPOSITION
The convictions are affirmed. The gang enhancement
allegation findings under section 186.22, the special
circumstances findings under section 190.2, subdivision (a)(2),
and the gang-related firearm enhancement findings under section
12022.53, subdivision (e) are vacated, and the matter is
remanded to the trial court for further proceedings consistent
with this opinion.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
31