People v. Mena CA4/3

Filed 5/19/22 P. v. Mena 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, G059183
v. (Super. Ct. No. 16NF1053)
CHARLIE MENA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
A. Leversen, Judge. Affirmed in part and reversed in part as directed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D.
Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Charlie Mena is an admitted gang member. In April 2016, he
was involved in a gang-related shooting at a public park in Anaheim. Among other
charges, he was convicted of three counts of attempted voluntary manslaughter,
possessing a firearm in a school zone, and discharging a firearm in a school zone.
Various enhancements were also found to be true, including a gang enhancement. There
is only one contested issue on appeal. Mena seeks reversal of two counts of attempted
voluntary manslaughter, arguing there is insufficient evidence showing he intended to kill
more than one person. We disagree. There is sufficient evidence showing Mena shot at a
group of rival gang members with intent to kill.
Mena also makes a series of arguments that the Attorney General does not
contest. First, his conviction for possessing a firearm in a school zone must be reversed
because it is necessarily included in his conviction for discharging a firearm in a school
zone. Second, the gang enhancement findings must be reversed due to revisions to Penal
1
Code section 186.22, which became effective at the start of this year. Third, his case
must be remanded for resentencing due to other amendments to the Penal Code, which
materially affect a judge’s sentencing discretion, that also became effective this year. We
agree with all these contentions. As such, the judgment is affirmed in part and reversed
in part, and we direct the trial court on remand to resentence Mena under current law.
I
FACTS AND PROCEDURAL HISTORY
Mena, a member of the Barrio Small Town street gang (BST), was involved
in an April 2016 shooting at Boysen Park in Anaheim, which is adjacent to Roosevelt
Elementary School. Witnesses saw Mena shooting a firearm in the direction of a group
1
All further undesignated statutory references are to the Penal Code.
2
of men, who were later identified to be rival gang members. In July 2018, the
prosecution filed an information charging Mena with eleven counts.
• Three counts of attempted murder (§§ 664, 187, subd. (a); counts 1-3).
• Three counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 4-
6).
• Discharging a firearm in a school zone (§626.9, subd. (d); count 7).
• Possession of a firearm in a school zone (§ 626.9, subd. (b); count 8).
• Possession of a firearm by a felon (§ 29800, subd. (a)(1); count 9).
• Negligent discharge of a firearm (§246.3, subd (a); count 10).
• Possessing a concealed stolen firearm (§ 25400, subds. (a)(2), (c)(2); count 11).
Various enhancements were also alleged. Firearm enhancements were
alleged as to counts 1 through 6. (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c).) All
counts were alleged to be committed for the benefit of a criminal street gang. (§ 186.22,
subd. (b)(1).) Finally, the information alleged Mena had one prior strike conviction
(§ 667, subds. (d), (e)(1); § 1170.12, subd. (b)), one serious felony prior (§ 667, subd.
(a)(1)), and one prison prior (§ 667.5, subd. (b)).
The jury reached a verdict in December 2019. As to counts 1 through 3,
the jury found Mena not guilty of attempted murder but guilty of the lesser included
offense of attempted voluntary manslaughter. He was found guilty on the remaining
counts. The jury found true the firearm enhancement as to counts 1 through 6, and it
found the gang enhancement true as to counts 8, 9, and 11.
In June 2020, the court found the prior strike and prior serious felony
allegations true. But it dismissed the prior prison allegations on the prosecution’s
motion, and it exercised its discretion to strike Mena’s prior strike. The court sentenced
Mena to an aggregate term of 26 years and eight months in state prison. The sentence
consisted of an upper term of nine years on count 4, with additional consecutive terms of
two years each for counts 5 and 6. The court added four years for the firearm
3
enhancement on count 4 and two terms of 16 months for the firearm enhancements on
counts 5 and 6. A year each was added for count 8 and the count 8 gang enhancement.
The serious felony prior added another five years. The remaining counts were imposed
concurrently and stayed under section 654.
Mena appealed and made two arguments in his opening brief. First, he
argued there is insufficient evidence to support two of the three convictions for attempted
voluntary manslaughter. Second, he asserted his conviction for possessing a firearm in a
school zone (count 8) must be reversed because it is a lesser included offense of
discharging a firearm in a school zone (count 7). After briefing was complete, however,
Mena filed a motion for leave to file a supplemental brief, which we granted. In his
supplemental brief, Mena challenged certain portions of his sentence under various
amendments to the Penal Code that became effective on January 1, 2022. Based on these
revisions, he argued the gang enhancement findings must be struck and the remainder of
his sentence must be remanded for full resentencing. The Attorney General does not
oppose most of Mena’s contentions except for his assertion that two of his convictions for
attempted voluntary manslaughter must be reversed.
As explained below, we affirm Mena’s three convictions for attempted
voluntary manslaughter. We reverse the gang enhancement findings and remand the
issue for retrial. Finally, based on amendments to the Penal Code that became effective
this year, we direct the trial court on remand to resentence Mena under current law.
II
DISCUSSION
A. Attempted Voluntary Manslaughter Convictions
Mena was convicted on three counts of attempted voluntary manslaughter.
He maintains two of these convictions must be reversed because the record contains
insufficient evidence showing he intended to kill more than one individual. We disagree.
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To be convicted of attempted voluntary manslaughter, the defendant must
act with an intent to kill. A conscious disregard for life is insufficient to sustain a
conviction. (People v. Montes (2003) 112 Cal.App.4th 1543, 1546-1547.) “When a
single act is charged as an attempt on the lives of two or more persons, the intent to kill
element must be examined independently as to each alleged attempted [manslaughter]
victim; an intent to kill cannot be ‘transferred’ from one attempted [manslaughter] victim
to another under the transferred intent doctrine.” (People v. Canizales (2019) 7 Cal.5th
591, 602.) Consequently, to affirm all of the jury’s attempted voluntary manslaughter
convictions, there must be sufficient evidence that Mena intended to kill the three
victims.
Under substantial evidence review, “we review the facts adduced at trial in
the light most favorable to the judgment, drawing all inferences in support of the
judgment to determine whether there is substantial direct or circumstantial evidence the
defendant committed the charged crime. [Citation.] The test is not whether the evidence
proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and
solid value, supports the jury’s conclusions.” (People v. Misa (2006) 140 Cal.App.4th
837, 842.) “In considering the sufficiency of the evidence, we cannot reweigh the
evidence, as the credibility of witnesses and the weight to be accorded to the evidence are
matters exclusively within the province of the trier of fact. [Citation.] Rather, we simply
consider whether any rational trier of fact could have found the essential elements of the
charged offenses beyond a reasonable doubt. [Citation.] Unless it is clearly shown that
‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict,’
the conviction will not be reversed.” (Ibid.)
It is undisputed that Mena is a member of BST. At trial, there was
testimony that Boysen Park, where the shooting occurred, was in BST territory. At the
time of the shooting, a rival criminal street gang, Kodiak Street, was attempting to claim
Boysen Park as its territory. A gang expert testified that when claiming new territory,
5
rival gang members will “post up” in the area. “Post up” means for gang members to
present themselves in public to claim an area, which can act as a form of intimidation. If
a rival gang came onto BST’s territory, that would be disrespectful to BST. A BST gang
member would be expected to confront and expel rivals from the gang’s territory, which
could reasonably be expected to include assault or murder. Further, if a gang or gang
member is disrespected, they are expected to retaliate. Shooting at rivals gains respect
for the shooter and his gang. Respect is paramount in gang culture. The aforementioned
testimony provides relevant background for the eyewitness accounts at trial.
We begin with Mena’s account of the shooting, which partially forms the
basis of his appeal. At trial, Mena described walking through Boysen Park on the
afternoon of the shooting. He was carrying a .40-caliber firearm and was heading to an
area adjacent to the park where BST gang members frequently hung out. As Mena was
walking by the primary baseball field at Boysen Park, he noticed a group of men sitting
on a bench together. He recognized two of them as rival gang members. One of them
was Hander R., a Kodiak Street gang member who had thrown a bottle at Mena from a
car window while in BST territory a few weeks prior to the shooting. Mena believed the
other members in the group were gang members based on their style of dress and their
association with the two gang members he recognized. Mena recalled seeing five men,
but other witnesses only remembered seeing three.
Mena testified that when he looked over at the group, they were already
looking directly at him. According to Mena, Hander R. then jumped up, separated
himself from the group, reached into his waistband, pulled out a silver object, and got
behind a tree. Mena believed Hander R. was holding a handgun and was going to shoot
him, so he pulled out his gun and fired at Hander R. until his gun was empty. According
to Mena, Hander R. was still behind the tree when Mena’s gun ran out of ammunition.
Mena then ran. It was later determined that Mena fired nine shots based on the cartridge
6
casings found at the scene. At trial and on appeal, Mena contends he only fired at Hander
R. and not at the other men in the group.
Police officers at Boysen Park heard gunshots coming from the direction of
the primary baseball field around 2:40 PM. While driving in the direction of the baseball
field, they noticed Mena running at full sprint. He noticed the police officers, appeared to
be startled, and continued running. The police followed Mena and eventually
apprehended him outside the park. While conducting a pat-down search, the police found
a .40-caliber handgun on him. The slide on the gun was locked back, meaning it was out
of ammunition.
There was a high school baseball game occurring at the primary field at the
time of the shooting. Thus, several players, coaches, and spectators from the game
witnessed the shooting and testified at trial. Their accounts appear to contradict Mena’s
testimony. For example, Diego D., a spectator, was sitting in the bleachers when he
noticed three males sitting on a bench dressed in “gang related” attire. Mena began
2
yelling and cursing at them. The three men did not say anything in response, but two of
them jumped up off the bench and acted aggressively toward Mena. They took two or
three steps towards him and put their hands up in a “what’s up” or “come” gesture, a
form of disrespect to BST. Mena then pulled out his gun and started shooting at them.
Diego D. did not see any weapons on the three men. After Mena fired the first shot, the
three men ran together in the same direction with their backs to Mena. Mena continued
to fire at the men as they ran away. Likewise, Maxim G., a baseball player, was on the
third-base line. He saw Mena point a gun at the people on the bench and fire shots in
their direction. He shot three times while standing before going to one knee and shooting
2
During cross-examination, Diego D. was impeached by statements he made right after
the shooting, in which he told police the shooter had not said anything. But he
maintained at trial that the shooter had yelled at the group of men. The jury reasonably
could have found Mena’s account at trial to be more credible, and we accept this
credibility determination. (People v. Misa, supra, 140 Cal.App.4th at p. 842.)
7
additional rounds. Other than Mena, Maxim G. did not see any other person with a
weapon in their hands.
Adrian S., a baseball player, was in the first-base dugout. He heard the
shooting occur behind him. After the shooting, he told an officer he had heard Mena say,
“I told you I’d catch you slippin,’” prior to opening fire. Zachary T., an assistant baseball
coach, was also in the first-base dugout. He heard someone behind him say, “something
along the lines of, ‘I knew I’d catch you guys sleeping or slipping.’” Zachary T. turned
around and saw Mena, who was about 10 to 15 feet away from him, “pull out a gun and
start firing towards the bleachers.” He could not see at whom Mena was shooting. Jacob
J. saw Mena firing towards the bleachers and then saw three males running away from
that area.
While Mena argues there is no direct evidence showing his intent, that is
common in homicide cases. “[I]ntent to kill often must be inferred from circumstantial
evidence surrounding the crime.” (People v. Canizales, supra, 7 Cal.5th at pp. 606-607.)
And on appeal, “‘[a]n appellate court must accept logical inferences that the [finder of
fact] might have drawn from the circumstantial evidence.’” (People v. Sanghera (2006)
139 Cal.App.4th 1567, 1573.) Based on the entire record, there is sufficient
circumstantial evidence to allow a rational trier of fact to conclude Mena intended to kill
three men.
There was evidence Boysen Park was in BST gang territory. It could be
inferred from expert testimony that the rival gang members Mena encountered were
disrespecting BST by “posting up” in their territory. Mena, as a BST member, would
have been expected to confront them. Killing them would have earned respect for Mena
and BST, and respect is vital to gangs. The expert’s testimony provides context for
interpreting the various eyewitness accounts. Diego D. testified that Mena acted
belligerently toward the group of men, yelling and cursing at them. There were also
multiple reports that Mena yelled something akin to “I knew I’d catch you guys sleeping
8
or slipping” before opening fire on the group. From this evidence, it can be inferred that
Mena was confronting rival gang members on BST territory and shot at them with the
3
intent to kill.
Further, “[a] jury can reasonably conclude a defendant without a primary
target who repeatedly shoots into a crowd with the intent to kill committed multiple
counts of attempted [voluntary manslaughter].” (People v. Medina (2019) 33
Cal.App.5th 146, 156].) Here, there was testimony that Mena fired at the people on the
bench, not at a single individual behind a tree as Mena claimed at trial, supporting an
inference that Mena fired at the entire group with the intent to kill, not at a single person.
Mena also continued to fire at the men as they ran away together, strengthening the
inference that he fired at the group collectively, intending to kill all of them rather than an
individual. Finally, Mena fired nine rounds at the group, emptying his gun. Given the
number of rounds fired, there is a reasonable inference he was targeting the entire group.
Mena dismisses much of the above evidence by individually examining
each piece and explaining why it alone is insufficient to support a finding of intent to kill
three people. But “‘[t]he focus of the substantial evidence test is on the whole record of
evidence presented to the trier of fact, rather than on “‘isolated bits of evidence.’”’”
(People v. Medina (2009) 46 Cal.4th 913, 919.) Even if each piece of evidence discussed
above was insufficient on its own to support multiple convictions for attempted voluntary
manslaughter, it is enough when considered collectively. Together, this evidence
reasonably establishes that Mena fired his gun at all the rival gang members on the bench
with an intent to kill.
3
Mena focuses on the testimony of Adrian S., who heard Mena say, “I told you I caught
you slippin,’” prior to opening fire. (Italics added.) He contends “you” is singular, not
plural, indicating he only intended to fire at one person. But the pronoun “you” can be
singular or plural. (Merriam-Webster’s Dict. Online (2022) [as of Apr. 23, 2022].) The jury could reasonably infer
Mena was using the plural form of “you” given the context.
9
Moreover, Mena’s argument that he only intended to kill one person
primarily relies on his testimony that he only shot at Hander G., who, according to Mena,
separated himself from the group, pulled out a weapon, and took cover behind a tree. But
multiple witnesses testified that Mena pointed the gun at the people on the bench, not at a
person behind a tree. There was also witness testimony that Mena continued firing at the
men after they all fled, undercutting Mena’s account that Hander G. remained behind the
tree after Mena ran out of ammunition. The jury could reasonably believe these
witnesses over Mena.
In response, Mena contends that even if the jury disbelieved his testimony,
it still cannot be inferred from the record at whom he was aiming. He insists there is
insufficient evidence showing he aimed his gun at more than one person. But this
argument obscures the relevant question, which is whether Mena intended to kill three
men. While aiming and intent to kill are related, they are not synonymous. Even if the
jury could not infer from the evidence that Mena aimed his gun at multiple people, it
could still infer that he intended to kill three people based on the evidence set forth
above. For example, Mena could have intended to kill three people in the group and fired
generally in their direction rather than aiming his gun at specific people within the group.
“[A] person who intends to kill can be guilty of attempted murder even if the person has
no specific target in mind. An indiscriminate would-be killer is just as culpable as one
who targets a specific person.” (People v. Stone (2009) 46 Cal.4th 131, 140.)
Finally, Mena asserts that his initial challenge to the rival gang members is
not what caused him to draw his gun. Rather, he insists he drew his gun in self-defense
after being threatened by the group. He cites witness testimony that two of the men
moved aggressively toward him. Based on his acquittal for attempted murder and various
jury questions asked during deliberation, he concludes the jury found he acted in
10
4
imperfect self-defense. Based on this theory, he argues that, at most, the jury could have
found he intended to kill two men in self-defense – the two aggressors. We are
unpersuaded.
Even if Mena correctly asserts that the jury found he acted in imperfect
self-defense, it could have inferred that Mena intended to kill all three men, not just the
two men that acted aggressively. Mena believed every member of the group was a gang
member based on their clothes and their association with the two gang members he
recognized. Mena also testified he was concerned members of the group could be armed
with a gun and could harm him. Accordingly, there is a reasonable inference that Mena
perceived the man who stayed seated as a threat and shot to kill him as well. Further,
Mena continued firing at the group of men after they ran away together and had their
backs to him. Even if Mena initially only intended to defend himself against the two
aggressors, it could be reasonably inferred that Mena’s intent shifted and that he shot to
kill all the men after they ran. After all, there was no need for him to defend himself
from the two aggressors after the men all fled.
B. Conviction for Possessing a Firearm in a School Zone
Next, Mena argues his conviction for possessing a firearm in a school zone
(count 8) must be reversed because it is necessarily included in his conviction for the
greater offense of discharging a firearm in a school zone (count 7). The Attorney General
agrees, as do we.
“In California, a single act or course of conduct by a defendant can lead to
convictions ‘of any number of the offenses charged.’ [Citations.] But a judicially created
exception to this rule prohibits multiple convictions based on necessarily included
offenses.” (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) “Our state high court has
4
The jury was instructed on both imperfect self-defense and heat of passion theories of
attempted voluntary manslaughter.
11
long held that multiple convictions may not be based on necessarily included offenses.”
(People v. Murphy (2007) 154 Cal.App.4th 979, 983.) “[I]f a crime cannot be committed
without also necessarily committing a lesser offense, the latter is a lesser included offense
within the former.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) “Under the ‘elements’
test, we look strictly to the statutory elements, not to the specific facts of a given case.
[Citation.] We inquire whether all the statutory elements of the lesser offense are
included within those of the greater offense. In other words, if a crime cannot be
committed without also committing a lesser offense, the latter is a necessarily included
5
offense.” (People v. Ramirez (2009) 45 Cal.4th 980, 984-985.)
The crime of possessing a firearm in a school zone is set forth in section
626.9, subdivision (b), which states that “[a]ny person who possesses a firearm in a place
that the person knows, or reasonably should know, is a school zone . . . shall be punished
as specified in subdivision (f).” As such, the elements for this crime are (1) possession of
a firearm, (2) in a school zone, (3) that the offender knows or should know is a school
zone. Generally, a violation of this subdivision is punishable by two, three, or five years
of imprisonment. (§ 626.9, subds. (f)(1), (f)(2)(A).)
Discharging a firearm in a school zone is a violation of section 626.9,
subdivision (d), which makes it “unlawful for any person, with reckless disregard for the
safety of another, to discharge, or attempt to discharge, a firearm in a school zone.” The
elements of this offense are (1) discharging or attempting to discharge a firearm, (2) in a
school zone, (3) in reckless disregard to the safety of another. The punishment for a
violation of subdivision (d) is three, five, or seven years of imprisonment. (§ 626.9, subd.
(f)(3).)
5
An offense can also be determined to be a necessarily included offense under “the
accusatory pleading test.” Under this test, “a lesser offense is included within the greater
charged offense ‘“if the charging allegations of the accusatory pleading include language
describing the offense in such a way that if committed as specified the lesser offense is
necessarily committed.”’” (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)
12
Here, the elements for the offense of discharging a firearm in a school zone
include all the elements of the offense of possessing a firearm in a school zone. One
cannot discharge a firearm in reckless disregard to the safety of another without
possessing it. Consequently, the jury was instructed here that to find Mena guilty of
discharging a firearm in a school zone, it must find that he “possessed a firearm.”
Though the offense of possessing a firearm explicitly includes a knowledge requirement
as to the school zone while the offense for discharging a firearm does not, a knowledge
requirement is implied for the latter. Criminal statutes are generally construed “to
include a guilty knowledge requirement even though the statutes [does] not expressly
articulate such a requirement.” (See Stark v. Superior Court (2011) 52 Cal.4th 368, 393.)
Likewise, the jury instructions in this case for the discharging a firearm count required
the jury to find that “[t]he defendant knew or reasonably should have known he was
within 1000 feet of the school.”
Since all the elements necessary to find Mena guilty of the offense of
discharging a firearm in a school zone also include the elements necessary to convict him
for possessing a firearm in a school zone, the latter is a necessarily included offense.
Therefore, we reverse Mena’s conviction for possessing a firearm within a school zone.
C. Gang Enhancements
The jury found true the prosecution’s gang allegations under section
186.22, subdivision (b)(1) as to counts 8, 9, and 11, which all pertained to illegal firearm
6
possession (the firearm possession counts). After Mena was convicted, this statute was
amended by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333). Generally, the
amendments made by AB 333 “impose new substantive and procedural requirements for
gang allegations.” (People v. Sek (2022) 74 Cal.App.5th 657, 665(Sek).) Mena asserts
6
As discussed, we reverse the conviction on count 8 (possessing a firearm in a school
zone), as it is necessarily included in count 7 (discharging a firearm in a school zone).
13
that under AB 333, which became effective on January 1, 2022, his gang enhancements
on the firearm possession counts must be vacated and retried. The Attorney General
concurs, and so do we.
Though Mena was convicted and sentenced prior to the effective date of
AB 333, the Attorney General concedes the bill applies retroactively to nonfinal
judgments, such as Mena’s. To our knowledge, all published opinions that have
considered the issue have reached the same conclusion. (See, e.g., People v. E.H. (2022)
75 Cal.App.5th 467, 478; People v. Delgado (2022) 74 Cal.App.5th 1067, 1087
(Delgado); People v. Lopez (2021) 73 Cal.App.5th 327, 344; People v. Sek, supra, 74
Cal.App.5th at p. 667.) As explained by one appellate court, our “Supreme Court [has]
held that statutory amendments that reduce the punishment for an offense apply
retroactively to a defendant whose judgment is not yet final absent a contrary legislative
intent. [Citations.] Although the amendments [under AB 333] effective in 2022 do not
alter the punishment imposed for a gang enhancement, . . . retroactivity applies because
the amendments increase the threshold for imposition of the enhancement.” (Delgado, at
p. 1087, fn. omitted.) We agree with these cases.
Under the current section 186.22, subdivision (b)(1), the gang benefit
enhancement applies to “a person who is convicted of a felony committed for the benefit
of, at the direction of, or in association with a criminal street gang, with the specific
intent to promote, further, or assist in criminal conduct by gang members . . . .”
(§ 186.22, subd. (b)(1).) While the text of this subdivision is roughly the same as the
former version (compare with former § 186.22, Stats. 2017, ch. 561, § 178, eff. Jan. 1,
2018), AB 333 changed how it is construed. As such, there are at least two errors that
warrant reversal.
The first error relates to a change in the meaning of “criminal street gang.”
As defined by statute, it “means an ongoing, organized association or group of three or
more persons, whether formal or informal, [1] having as one of its primary activities the
14
commission of one or more [enumerated] criminal acts [(the primary activity element)]
. . . , [2] having a common name or common identifying sign or symbol, and [3] whose
members collectively engage in, or have engaged in, a pattern of criminal gang activity.”
(§ 186.22, subd. (f).) Prior to AB 333, vandalism was an enumerated criminal act that
satisfied the primary activity element. (People v. Delgado, supra, 74 Cal.App.5th at p.
1086 fn. 16.) Accordingly, the prosecution’s gang expert testified that BST’s primary
activities were “possession of a firearm and felony vandalism.” Similarly, the gang
enhancement jury instruction stated the primary activity element could be met if the
prosecution showed BST “has, as one or more of its primary activities, the commission of
Felony Vandalism [citation] and Gun Possession [citation].” However, AB 333
“amended . . . the predicate offenses that can be used to establish a pattern of criminal
gang activity, removing vandalism . . . .” (Delgado, at p. 1086, fn. 16.) Since BST
cannot be deemed a criminal street gang based on acts of vandalism under section 186.22
as amended, the jury instruction is incorrect.
Second, prior to the effective date of AB 333, “a defendant who had
committed an offense to benefit the reputation of a criminal street gang, but with no other
benefit, was subject to the [gang] enhancement.” (Sek, supra, 74 Cal.App.5th at p. 667.)
But following AB 333’s effective date, the prosecution must now “prove the benefit the
gang derives from the predicate and current offenses is ‘more than reputational.’”
(People v. E.H., supra, 75 Cal.App.5th at p. 478.) “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.” (§ 186.22, subd. (g).)
It is undisputed the prosecution’s gang expert provided significant
testimony on the reputational benefits of the predicate crimes and the crimes at issue. For
example, the expert testified that possession of a deadly weapon generally increases a
member’s reputation in the gang. He also testified committing violent crimes like
15
attempted murder increase the gang’s reputation. But following the effective date of AB
333, the current and predicate offenses must be committed for some benefit other than
reputation. Therefore, this testimony is now irrelevant to establishing a gang
enhancement.
The Attorney General concedes the gang enhancement should be vacated
and the matter retried. We agree. We are not certain beyond a reasonable doubt that the
jury would have reached the same findings in the absence of the above errors. (Sek,
supra, 74 Cal.App.5th at pp. 668-669 [applying reasonable doubt standard under
Chapman v. California (1967) 386 U.S. 18, where expert improperly testified as to
reputational benefits to gang].) It is unclear whether the jury found BST to be a criminal
street gang based on criminal acts relating to gun possession, felony vandalism, or both.
Moreover, given the gang expert’s testimony, the jury reasonably could have found the
gang enhancement true based on the reputational benefits of the predicate crimes and the
crimes at issue. Consequently, we vacate the gang enhancement findings. The
7
prosecution shall be permitted to retry the issue on remand.
D. Resentencing
Mena also argues his case should be remanded for full resentencing based
on amendments to sections 654 and 1170 that became effective this year. The Attorney
General does not substantively oppose this request. Thus, on remand, we direct the trial
court to resentence Mena under current law.
We start with Mena’s arguments based on section 654. Generally, a
defendant can only be punished once for a single act even if it violates more than one
statute. (Kellett v. Superior Court of Sacramento County (1966) 63 Cal.2d 822, 824.)
Former section 654, subdivision (a), provided that “[a]n act or omission that is punishable
7
Given these findings, we do not address Mena’s argument that the gang enhancement
findings should also be vacated under People v. Valencia (2021) 11 Cal.5th 818.
16
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment.” (Stats. 1997, ch. 410, § 1, eff.
June 29, 1977, italics added.) As amended, this statute no longer requires the defendant
to be punished under the provision with the longest potential prison term. Rather, it
states “[a]n act or omission that is punishable in different ways by different provisions of
law may be punished under either of such provisions . . . .” (§ 654, subd. (a), italics
added.)
Here, Mena was sentenced under former section 654. There is no dispute
that counts 1 through 3 (attempted voluntary manslaughter) and counts 4 through 6
(assault with a semiautomatic firearm) involved the same act – Mena shooting at the three
victims. The assault counts carry a longer potential prison sentence of up to nine years’
imprisonment. (§ 245, subd. (b).) The maximum prison term for attempted voluntary
manslaughter is five and a half years. (§§ 193, subd. (a), 664, subd. (a).) Thus, the court
imposed sentences under the assault counts and stayed the sentences for the attempted
voluntary manslaughter counts under former section 654. Likewise, for the firearm
possession counts, the court imposed a consecutive prison sentence for count 8, which
carries a maximum potential sentence of five years (§ 626.9, subd. (f)(1)), and stayed the
sentences for counts 9 and 11, which each have maximum potential sentences of three
years (§§ 18, 25400, subd. (c)(2), 29800, subd. (a)(1)). Following the amendments to
section 654, however, the court may now impose sentences for the counts with lower
potential prison terms.
As to section 1170, the prior version of this statute gave the court
considerable discretion when selecting between lower, middle, and upper terms in
determinate sentences. “In determining the appropriate term, the court [could] consider
the record in the case, the probation officer’s report, other reports . . . and statements in
aggravation or mitigation . . . , and any further evidence introduced at the sentencing
hearing. The court [was only required to] select the term which, in the court’s discretion,
17
best serve[d] the interests of justice.” (Former Pen. Code, § 1170, Stats. 2020, ch. 29,
§ 14, eff. Aug. 6, 2020.) But that discretion was significantly curtailed by amendments to
section 1170 that became effective this year.
Section 1170 now contains “a presumption in favor of [the lower] prison
term when a defendant is under 26 years of age at the time of the offense.” (People v.
Flores, (2022) 73 Cal.App.5th 1032, 1038-1039(Flores).) For such youth offenders,
section 1170 now requires a trial court to impose the lower term unless it “finds that the
aggravating circumstances outweigh the mitigating circumstances [such] that imposition
of the lower term would be contrary to the interests of justice.” (§ 1170, subd. (b)(6)(B).)
Mena was 22 years old when he committed the underlying offenses. The
court imposed an upper term of nine years on count 4 (assault) because the crime
involved great violence and threat of great bodily harm, Mena’s violent conduct indicated
he was a serious danger to society, Mena had served a prior prison term, and his prior
performance on probation or parole. The court’s selection of the upper term does not
comply with current law. Among other things, it made no findings weighing the
aggravating circumstances against Mena’s youth offender status.
Other appellate courts have found the amendments to sections 654 and
1170 apply to nonfinal judgments. (Flores, supra, 73 Cal.App.5th at p. 1039 [section
1170]; People v. Mani (2022) 74 Cal.App.5th 343, 379 [section 654].) We agree. It is
presumed “that newly enacted legislation mitigating criminal punishment reflects a
determination that the ‘former penalty was too severe’ and that the ameliorative changes
are intended to ‘apply to every case to which it constitutionally could apply,’ which
would include those ‘acts committed before its passage[,] provided the judgment
convicting the defendant of the act is not final.’” (People v. Buycks (2018) 5 Cal.5th 857,
881.) Thus, absent evidence to the contrary, we assume the Legislature intended
statutory amendments mitigating criminal punishment to apply to all nonfinal judgments.
(Flores, at p. 1039.) The amendments to the statutes at issue mitigate criminal
18
punishment, and we are unaware of any evidence showing the Legislature intended to
limit their retroactivity. Since the amendments to sections 654 and 1170 could have a
material effect on Mena’s sentence, we direct the trial court on remand to resentence
Mena under current law. (See, e.g., Flores, at p. 1040; Mani, at p. 381.)
Finally, although the Attorney General does not oppose Mena’s request for
resentencing, he believes it is unnecessary for us to consider Mena’s arguments. Rather,
assuming the gang enhancement will be reversed, the Attorney General contends the full
resentencing rule already allows the trial court to conduct a full resentence on remand.
Under this rule, “when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances.’” (People v.
Buycks, supra, 5 Cal.5th at p. 893.) As we read this authority, the full resentencing rule
gives courts discretion to conduct a full resentence on remand when a portion of the
defendant’s sentence has been stricken. In this case, however, it is insufficient to simply
allow the court discretion to revisit Mena’s sentence. Given the material revisions to
sections 654 and 1170 described above, the court must reexamine Mena’s entire sentence
on remand.
III
DISPOSITION
Mena’s judgment is affirmed as to the three convictions for attempted
voluntary manslaughter. We reverse Mena’s conviction for possessing a firearm in a
school zone. The jury’s gang enhancement findings are also reversed, and the
prosecution may retry the issue on remand. The trial court is also directed to conduct a
19
full resentencing of Mena on remand as set forth in this opinion. The remainder of the
judgment is affirmed.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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