People v. Lezama CA2/6

Filed 12/12/22 P. v. Lezama CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. Nos. B308578,
B310949
Plaintiff and Respondent, (Super. Ct. No. BA463515)
(Los Angeles County)
v.
GEOVANNI LEZAMA,
Defendant and Appellant.
Geovanni Lezama appeals from the judgment after the jury
convicted him of aiding and abetting both first degree murder
(Pen. Code,1 §§ 187, subd. (a), 189, subd. (a), count 1) and simple
mayhem (§ 203, count 6). On both counts, the jury found true the
allegations that Lezama committed these crimes to benefit a
criminal street gang pursuant to section 186.22, subdivision
(b)(1)(C) and that a principal in the crimes, Lezama’s accomplice,
personally and intentionally used a firearm, causing death within
1 Further unspecified statutory references are to the Penal
Code.
the meaning of section 12022.53, subdivisions (d) and (e)(1). The
trial court sentenced Lezama to a total of 50 years to life for
aiding and abetting a murder committed to benefit a criminal
street gang (25 years to life for first degree murder plus 25 years
to life for the section 12022.53, subdivision (e)(1) firearm
allegation), a consecutive two years for unlawfully possessing
ammunition, and a consecutive eight months for evading a police
officer after Lezama admitted violating probation. The court
stayed the punishment for the simple mayhem conviction
pursuant to section 654.
Lezama contends (1) there was insufficient evidence to
support his simple mayhem conviction after jury trial, (2)
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch.
699, §§ 1-5) (Assembly Bill 333) requires that we vacate the
section 186.22 gang enhancement and the section 12022.53,
subdivision (e)(1) firearm enhancement on the murder and
mayhem counts, (3) the gang enhancement must be reversed
because the prosecution’s expert relied on inadmissible hearsay,
and (4) recent changes to section 654 pursuant to Assembly Bill
No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1)
(Assembly Bill 518) require remand so that the trial court can
exercise its discretion to stay or impose the maximum sentence.
We vacate the gang (§ 186.22) and firearm (§ 12022.53,
subd. (e)(1)) enhancements on the murder and mayhem counts,
and remand to allow a trial on those enhancements pursuant to
Assembly Bill 333. In all other respects, the judgment is
affirmed, including the conviction for first degree murder.
2
FACTUAL AND PROCEDURAL HISTORY
Murder of J.M.
In December 2017, Los Angeles Port Police Officer Alfonso
Garcia discovered that his firearm and loaded magazines were
stolen from his truck. The officer found a small flashlight that
did not belong to him.
Four days later, a witness heard a commotion near his
backyard and saw J.M., a member of the White Fence gang,
running through an alley. The witness saw a black two-door
Infiniti G35 stop outside the backyard and a man get out of the
passenger side. The passenger was later identified as
codefendant Junior Rivera, a member of the rival Boyle Heights
13 gang. Rivera chased J.M. and fired a gunshot; J.M. fell.
Rivera then approached “close range” to J.M., stood over him, and
shot him four or five times in the back. Rivera ran back to the
car and drove away.
After being shot, J.M. began taking his clothes, socks, and
shoes off, saying that he felt hot. He screamed for help. When
police officers arrived, J.M. was still alive and “rolling around
and . . . moaning in pain.” J.M. ultimately died from multiple
gunshot wounds.
A medical examiner testified that J.M. had a “graze” exit
wound on his right hip, an exit wound near an armpit, one entry
gunshot wound on the left hip, an entry gunshot wound on the
right back near the spine with an exit wound on the right
shoulder, an entry and exit wound inches away from each other,
and an entry wound on the buttock (the bullet was recovered
from the hip joint).
3
Arrest and investigation
Surveillance cameras near the site of the shooting recorded
J.M. walking through an alley and the Infiniti driving through a
minute later. The footage captured the license plate numbers on
the Infiniti. Two days later, Lezama was arrested at his home as
he was getting into his black Infiniti. His license plate numbers
matched the ones from the surveillance video.
During a search of Lezama’s home, officers found a
notebook with Boyle Heights 13 gang-related graffiti in it.
Lezama was placed in a cell with an undercover agent.
Lezama told the agent that he was 13 years old when he became
a gang member, but “got out” of the gang about nine months
before the shooting. He showed the agent a “BHTS” tattoo on his
head. He said he was shot by a White Fence gang member two
years prior and hated those gang members.
Lezama told the agent he had a two-door Infiniti G35. On
the day of the shooting, he wanted to drive around to look for
White Fence gang members and he “forced” Rivera to go with
him. While driving, they saw a person with a White Fence gang
tattoo. He said Rivera was the shooter and used a gun he stole
from a “cop car.” Lezama said he did not get out of his car during
the shooting.
Rivera was arrested the next day. He was placed in a cell
with an undercover agent and told the agent “I’m going down for
murder.” He said the shooting happened “a couple days ago” and
his “stupid ass homie got caught and now everybody else is
getting caught.” He believed his companion “ratted [him] out,”
and said the plan was his companion’s idea.
Rivera said his companion was arrested at his home. He
said he “told his stupid ass to get rid of that car, and he still
4
wanted to drive it.” He said his companion drove a “two-door
Infinit[i]” and “there aren’t too many of those” in Boyle Heights.
Rivera said the shooting took place in the “White Fence’s
neighborhood.” Rivera said he used a “cop gun” he stole from a
“cop car” in Highland Park. He acknowledged the victim died.
When asked about the gun, Rivera said he “got rid of [the gun]
already.” Rivera said much of his gang “went their own way” and
that the remaining 15 members were “over here . . . putting in
their work.”2
After learning Rivera used a firearm that was stolen from a
police officer, officers investigated the burglary of Officer Garcia’s
gun and ammunitions. Officer Garcia provided the officers with
two spent cartridges to compare to the bullet fragments and
cartridges found near J.M.’s body. A forensic analysis revealed
the cartridges provided by Officer Garcia and the cartridges from
the shooting were fired from the same gun. The officers also
conducted a D.N.A. analysis on the flashlight found in Officer
Garcia’s car. The analysis showed D.N.A. matching Rivera’s
D.N.A. on the flashlight.
Statements from Vargas and Lizarraga
Natalie Vargas knew Lezama and Rivera. She believed
Lezama was a Boyle Heights 13 gang member because of the
“BHTS” tattoo on his head. Vargas met with Rivera the day after
the shooting. Rivera told her that he, Lezama, and another
companion, Arturo Lopez (known as “Boxer”), were driving in
Lezama’s car on the day of the shooting when they saw a person
with a White Fence face tattoo. When Lopez asked where that
person was from, the person replied, “White Fence.” Rivera said
2“Putting in work” means to commit crimes for the gang,
which includes a “shooting, a robbery, or a murder.”
5
they shot the person. Rivera told Vargas that he and Lopez were
both shooters and that the shooting was Lezama’s idea. He said
that he used a stolen “cop’s gun.”
Alma Lizarraga was previously in a romantic relationship
with Lopez. During an interview with police officers, she said
Lezama, Rivera, and Lopez went “cruising.” Lezama and Rivera
were in Lezama’s car and Lopez drove another car. Rivera
identified a White Fence gang member by his tattoo, and he shot
him.
Gang expert testimony
A gang expert testified he was assigned to monitor gangs,
including the Boyle Heights 13 and White Fence gangs. He
explained that these gangs have a “rivalry,” which stem from a
fight over territory. The Boyle Heights 13 gang controlled a “very
small” area and had approximately 20 members. Their territory
was located within the territory controlled by the White Fence
gang. The White Fence gang controlled a large area and had
approximately 350 members. J.M.’s murder occurred within the
White Fence territory.
Five months before J.M.’s murder, the expert participated
in the arrest and investigation of a stabbing of another Boyle
Heights 13 gang member, Ryan Ramirez, perpetrated by multiple
White Fence gang members. The stabbing occurred at a location
within “disputed [gang] territory.”
The expert testified the primary activities of the Boyle
Heights 13 gang include “weapon possession, vandalism, grand
theft auto” and robberies. He knew Lezama and Rivera through
past contacts. He knew Lezama’s gang moniker was “Goofy,” and
Rivera’s moniker was “Minor.” He was also familiar with Lopez
6
(“Boxer”) and Ramirez (“Puppy”). He opined that all four of these
individuals were Boyle Heights 13 gang members.
The expert identified Lezama in photographs in which he
posed with several Boyle Heights 13 gang members. He was
familiar with the gang members in the photographs and had
arrested some of them. In one photograph, Lezama and five
other gang members held up hand signs associated with the
Boyle Heights 13 gang.
The prosecution presented several photographs of Lezama’s
tattoos, including a “BHTS” tattooed on Lezama’s stomach and
the back of his head. The expert testified these tattoos were
associated with the Boyle Heights 13 gang. Lezama also received
a new tattoo while he was awaiting trial. The expert opined that
getting a new gang tattoo was evidence of his “full intent to
remain active in the gang.”
The prosecution presented the expert with evidence of
predicate offenses of two Boyle Heights 13 gang members. The
evidence included certified court records establishing a 2015
weapon possession conviction for Ryan Ramirez and a 2016
concealed firearm conviction for Ricky Valencia, two fellow gang
members.
The expert opined that based on a hypothetical with facts
similar to J.M.’s murder, the murder was committed to benefit
the Boyle Heights 13 gang. He opined the murder was
perpetrated by the gang because two of its members were
“together when they committed the crime.” He also opined the
murder benefited the gang: “[T]his crime is a perfect example of
how it benefits the gang. It instills fear and intimidation within
the community. It makes it known to other gang members and
rival gang members that this gang is willing to commit these
7
ruthless acts of violence. And it enhances their gang’s reputation
overall as one that is violent and is able and willing to commit
these kind[s] of crimes.”
Verdict and sentencing
Before trial, Lezama pleaded guilty to unlawful possession
of ammunition and admitted violating probation related to a
conviction for evading an officer in another case.
After trial, the jury found Lezama guilty of aiding and
abetting first degree murder and aiding and abetting simple
mayhem. The jury also found true the allegations that Lezama
committed those crimes to benefit a criminal street gang
(§ 186.22, subd. (b)(1)(C)) and that a principal, his accomplice
Rivera, personally and intentionally used a firearm, causing
death (§ 12022.53, subd. (e)(1)).
For the murder conviction, the trial court sentenced
Lezama to 50 years to life (25 years to life for murder, plus 25
years to life for the § 12033.53, subd. (e)(1) firearm enhancement)
and stayed the gang enhancement. The court stayed the
punishment for simple mayhem pursuant to section 654. The
court also sentenced Lezama to a two-year consecutive term for
unlawfully possessing ammunition, and a consecutive
eight-month term for evading a police officer.
DISCUSSION
Sufficiency of evidence for mayhem
Lezama challenges the simple mayhem conviction because
there was insufficient evidence: (1) J.M. suffered a permanent
disfiguring injury and that (2) J.M. was maimed while alive. We
disagree because substantial evidence supports the jury’s verdict.
To determine whether substantial evidence supports the
mayhem conviction, we review the whole record to determine
8
whether a rational trier of fact could have found the essential
elements of the crime established beyond a reasonable doubt. We
review the evidence in the light most favorable to the
prosecution, drawing all inferences in support of the judgment.
(People v. Manibusan (2013) 58 Cal.4th 40, 87 (Manibusan).)
Because the jury is in the best position to weigh the evidence
presented, we will not reweigh the evidence. “That the evidence
might lead to a different verdict does not warrant a conclusion
that the evidence supporting the verdict is insubstantial.”
(People v. Holt (1997) 15 Cal.4th 619, 669.) We will not reverse
“‘“unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’” the jury’s verdict.
[Citation.]’ [Citation.]” (Manibusan, at p. 87.)
To convict a person of simple mayhem, the prosecution
must prove the person “unlawfully and maliciously deprive[d] a
human being of a member of his body, or disables, disfigures, or
renders it useless, or cuts or disables the tongue, or puts out an
eye, or slits the nose, ear, or lip.” (§ 203.) Simple mayhem,
unlike aggravated mayhem (§ 205), does not require proof of a
specific intent to cause a disabling or disfiguring injury. (People
v. Ferrell (1990) 218 Cal.App.3d 828, 832-833 (Ferrell).) “‘“[T]he
modern rationale of the crime may be said to be the preservation
of the natural completeness and normal appearance of the human
face and body”’” and to “‘protect[] the integrity of the victim’s
person.’ [Citations.]” (People v. Santana (2013) 56 Cal.4th 999,
1004 (Santana).)
Here, the mayhem conviction was based on the theory that
the multiple close-range gunshot wounds inflicted a disfiguring
injury. “Disfigurement of the body ‘“impairs or injures the
beauty, symmetry or appearance of a person or thing . . . [or]
9
renders unsightly, misshapen or imperfect or deforms in some
manner.”’ [Citation.]” (People v. Romero (2019) 44 Cal.App.5th
381, 387 (Romero).) To prove mayhem based on a disfiguring
injury, the injury must be permanent. (Santana, supra, 56
Cal.4th at p. 1007; Romero, at p. 387.) An injury may be
considered legally permanent even if cosmetic repair may be
medically feasible. (People v. Hill (1994) 23 Cal.App.4th 1566,
1575.)
Several cases have recognized that an injury sustained
from a close-range gunshot may constitute a disfiguring or
disabling injury sufficient for mayhem. For instance, in
Manibusan, supra, 58 Cal.4th at page 88, our Supreme Court
upheld an aggravated mayhem conviction where the victim was
shot from “very close range—only five to 10 feet—hitting her once
in the face—her forehead—and once in the upper arm, near her
face.” The court held that these facts supported that the
defendant intended “to cause permanent disability or
disfigurement.” (Ibid.; Ferrell, supra, 218 Cal.App.3d at p. 835
[“shot in the neck from close range, if not fatal, is highly likely to
disable permanently”]; People v. Villegas (2001) 92 Cal.App.4th
1217, 1226 [“Firing a gun at someone at close range, which
results in the victim being paralyzed, is sufficient to constitute
mayhem”]; Santana, supra, 56 Cal.4th at p. 1012 [three
close-range gunshots fired with a .38-caliber revolver into the leg
and buttock area of the victim showed the intent to inflict a
“disabling injury”]; see also People v. Bui (2011) 192 Cal.App.4th
1002, 1006, 1015 [three gunshots with one bullet entering
through the elbow and another bullet retrieved from the victim’s
back inflicted injuries sufficient to constitute mayhem].)
10
Here, after firing one shot from a distance, Rivera moved
into close range, stood over J.M., and shot him four or five times
in the back. The prosecution presented the jury with several
photographs of J.M.’s body and the close-range bullet wounds,
which included a “graze” exit wound on his right hip, an exit
wound near an armpit, one entry gunshot wound on the left hip,
an entry gunshot wound on the right back near the spine with an
exit wound on the right shoulder, an entry and exit wound inches
away from each other, and an entry wound on the buttock. The
prosecution also presented two of the coroner’s diagrams, one
which showed only the entry and exit wounds, and the other one
showed all the wounds. Moreover, as the jury looked at the
photographs and diagrams, a medical examiner described the
injuries.
Lezama contends that proof “of permanent disfigurement in
the form of significant scarring [was] essential to the mayhem
conviction.” Assuming that proof of scarring was essential, a jury
could reasonably infer from the evidence that the gunshot
wounds here would have resulted in scarring, which satisfies the
requirement for a disfiguring injury. (Romero, supra, 44
Cal.App.5th at p. 387.) “‘We “must accept logical inferences that
the jury might have drawn from the circumstantial evidence.
[Citation.]” [Citation.] “Although it is the jury’s duty to acquit a
defendant if it finds the circumstantial evidence susceptible of
two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that
must be convinced of the defendant’s guilt beyond a reasonable
doubt. [Citation.]” [Citation.] Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s
conclusion the circumstances might also reasonably be reconciled
11
with a contrary finding does not warrant the judgment’s reversal.
[Citation.]” [Citation.]’” (Manibusan, supra, 58 Cal.4th at p. 87.)
Romero, supra, 44 Cal.App.5th at page 387, is instructive.
There, a victim was stabbed eight times, but there was no direct
evidence of scars. Nonetheless, the Court of Appeal concluded
that a reasonable trier of fact “could infer from the evidence
presented that [his] wounds resulted in scars,” which satisfy the
disfigurement requirement of mayhem. (Ibid.)
Similarly here, the jury could reasonably infer based on the
photographs of the injuries, testimony regarding the way J.M.
was shot in close range, and the medical examiner’s testimony,
that the injuries would have resulted in permanent scarring. 3
Lezama also contends the prosecution presented no
evidence that J.M. was disfigured while he was alive. Lezama
argues that because mayhem is intended to protect against the
“emotional, economic, and physical problems an individual . . .
likely faces in their remaining years,” there must be proof that
mayhem was committed on a living person.
Although “[m]ayhem requires a live victim,” courts have
not pronounced that a victim must remain alive for a specific
amount of time. (People v. Kraft (2000) 23 Cal.4th 978, 1058
(Kraft).) In Kraft, our Supreme Court determined whether
substantial evidence supported a mayhem conviction where the
defendant argued the record lacked evidence that the victim was
alive when he was emasculated. There, when the police officers
found the victim’s body, the victim had no pulse or respiration.
3 To the extent Lezama argues the prosecutor misstated the
law during his closing argument, that argument is forfeited
because defense counsel did not object at trial. (People v. Dykes
(2009) 46 Cal.4th 731, 770.)
12
The front of the victim’s neck bore ligature marks, and he was
emasculated. After an autopsy, the pathologist concluded the
victim died from ligature strangulation, and when the victim was
emasculated, “the bleeding was ‘not that great.’” (Id. at p. 1004.)
The pathologist believed that the victim was “‘probably dead’
when the injury was inflicted, although the emasculation could
have occurred perimortem, or around the time of death.” (Id. at
pp. 1004-1005.)
Despite this evidence, the Supreme Court concluded there
was sufficient evidence that the victim was alive at the time of
emasculation. (Kraft, supra, 23 Cal.4th at p. 1058.) The court
relied on the responding officer’s testimony that when he
discovered the body, he saw the victim’s foot “move slightly” and
the body was “warm to touch.” (Id. at pp. 1004, 1058.) The court
also noted that despite the pathologist’s opinion that
emasculation “ ‘probably’ occurred postmortem,” there was “some
bleeding and some tissue response, lending support to [the
pathologist]’s testimony the emasculation could have occurred
perimortem” or “around the time of death.” (Id. at pp. 1005,
1058.) Thus, “[t]he jury could reasonably find the elements of
mayhem were present here.” (Id. at p 1058.)
People v. Jentry (1977) 69 Cal.App.3d 615 also examined
whether the evidence supported a finding that mayhem was
committed on a live victim. There, the victim was hit in the head
multiple times with a hammer before being castrated. (Id. at p.
619.) Although the medical experts concluded that the probable
immediate cause of death was brain damage from the initial
hammer blows, the castration followed immediately thereafter.
(Id. at p. 629.) Thus, even though it was “apparent that the
victim either died during the cutting or was dead before the
13
removal of these appendages commenced,” the court nonetheless
concluded that the victim’s death did not render inapplicable the
felony-murder doctrine, with mayhem as the underlying felony,
because “the blows causing the death and the maiming took place
as part of one continuous transaction.” (Ibid.)
Kraft and Jentry suggest that while there must be evidence
that the acts of mayhem occurred on a live victim, there is no
additional requirement that the victim must live for a certain
amount of time after the acts occur.
Here, sufficient evidence establishes that J.M. was alive
after he was shot multiple times. A witness testified that J.M.
began taking his clothes and socks off, said that he was hot, and
screamed for help. Officers testified that J.M. was still alive and
“rolling around and . . . moaning in pain.” “That a contrary
conclusion might also be reasonable does not compel reversal of
the conviction.” (Kraft, supra, 23 Cal.4th at p. 1058.)
Although we conclude sufficient evidence supports the
jury’s findings, we express our concern regarding the propriety of
charging mayhem under these circumstances—where the victim
died shortly after injury and the defendant was also charged, and
ultimately convicted of, murder for the same acts supporting
mayhem. We question whether charging a defendant of mayhem
under these facts stretches the rationale and intended purpose
behind criminalizing mayhem, which is to preserve and protect
the appearance and integrity of the victim’s person. (Santana,
supra, 56 Cal.4th at p. 1004.) Nonetheless, we affirm on grounds
that were raised; the evidence supports the conviction.
14
Assembly Bill 333
Lezama contends, and the Attorney General concedes, he is
entitled to the ameliorative benefits of Assembly Bill 333,
effective January 1, 2022. We agree.
Assembly Bill 333 amends section 186.22 in several ways.
(Stats. 2021, ch. 699, § 3.) It modifies the definitions of “pattern
of criminal gang activity” and “criminal street gang” and clarifies
the evidence required to show a benefit to a criminal street gang.
It increases the threshold for conviction of the offense and
imposition of the enhancement. In addition, Assembly Bill 333
added section 1109, which provides, that if “requested by the
defense, a case in which a gang enhancement is charged under
subdivision (b) or (d) of Section 186.22 shall be tried in separate
phases.” (§ 1109, subd. (a).)
As relevant here, Assembly Bill 333 amends the law
regarding predicate offenses. Now, “(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
15
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.)” (People v. Lopez (2021) 73
Cal.App.5th 327, 345 (Lopez).)
The parties agree, as do we, that Assembly Bill 333’s
amendments affecting predicate offenses apply retroactively to
judgments of conviction that are not yet final. (In re Estrada
(1965) 63 Cal.2d 740, 744; Lopez, supra, 73 Cal.App.5th at pp.
344-345.)
The Attorney General concedes that “there was no evidence
presented that Ramirez’s or Valencia’s predicate offenses
benefited the gang in a way that was more than reputational”
and that “remand is required.” Thus, the proper remedy is to
vacate the true finding on the section 186.22, subdivision (b) gang
enhancement.
The Attorney General agrees vacating the section 186.22,
subdivision (b) gang enhancement would also “undo the section
12022.53 subdivision (e)(1)” firearm enhancement. However, the
Attorney General argues that Lezama would still be subject to
the same consecutive 25-year-to-life sentencing enhancement
under the jury’s true finding of section 12022.53, subdivision (d).
We disagree because the jury did not make a separate finding
that Lezama personally discharged the firearm that killed J.M.
Section 12022.53 provides for sentencing enhancements for
the use of firearms in the commission of certain felonies.
Subdivisions (b) through (d) “provide punishment for offenders
who personally use a firearm during the commission of their
crimes.” (Lopez, supra, 73 Cal.App.5th at p. 347, emphasis
added.) As relevant here, subdivision (d) provides that a person
who “personally and intentionally discharges a firearm” and
16
proximately causes great bodily injury or death “shall be
punished by an additional and consecutive term of imprisonment
in the state prison for 25 years to life.” (Emphasis added.)
However, section 12022.53, subdivision (e)(1) applies to a
principal in the crime only if both of the following are met: “(A)
The person violated subdivision (b) of Section 186.22” and “(B)
Any principal in the offense committed any act specified in
subdivision (b), (c), or (d).” (Emphasis added.) These “penalties
may also be imposed on any person who is a principal in the
offense,” such as Lezama, but only “under certain gang-related
circumstances.” (Lopez, supra, 73 Cal.App.5th at p. 347.) And
unlike subdivision (e)(1), subdivision (d) is inapplicable to non-
shooters because it requires that the defendant personally and
intentionally used a firearm for the 25-year-to-life sentencing
enhancement to apply.
Here, the jury found true the allegation a principal
discharged a firearm causing death pursuant to section 12022.53,
subdivision (e)(1). But the jury did not make a true finding that
Lezama “personally and intentionally discharge[d] a firearm and
proximately cause[d] great bodily injury . . . or death” pursuant to
section 12022.53, subdivision (d). The parties do not dispute that
Lezama was not the shooter, and that his codefendant Rivera was
the shooter. Thus, the 25-year-to-life firearm enhancement must
be vacated.
People v. Lopez, supra, 73 Cal.App.5th 327 supports this
conclusion. There, Lopez was convicted of three murders of
Lexing, Grant, and Robinson. The jury found true the section
12022.53, subdivision (e)(1) allegation as to all three murders.
However, with respect to the murders of Lexing and Grant only,
the jury separately found true that Lopez personally and
17
intentionally discharged a firearm pursuant to section 12022.53,
subdivision (d). The Court of Appeal held that the subdivision
(e)(1) allegation as to each victim must be vacated pursuant to
Assembly Bill 333. Thus, the 25-year-to-life sentencing
enhancement imposed for the murder of Robinson was properly
vacated. Only the two consecutive 25-year-to life sentencing
enhancements for the murders of Lexing and Grant could remain
intact because the jury separately found that Lopez personally
used a firearm in the commission of those murders within
subdivision (d).
Like Lopez, we must vacate and remand as to the section
12022.53, subdivision (e)(1) allegation. Because the jury did not
make a separate true finding that Lezama personally discharged
a firearm, and because the evidence does not support the
allegation, Lezama is not subject to the 25-year-to-life
enhancement pursuant to section 12022.53, subdivision (d). On
remand, the trial court shall allow the prosecution the
opportunity to retry the gang and firearm enhancements to meet
its burden of proof pursuant to Assembly Bill 333’s new
requirements. (See Lopez, supra, 73 Cal.App.5th at p. 346.)
Lezama contends that we must reverse his murder and
mayhem convictions because those charges were not tried
separately from the gang enhancement, as required by section
1109. (People v. Burgos (2022) 77 Cal.App.5th 550, 568-569,
review granted July 13, 2022, S274743.) The Attorney General
argues that section 1109 does not apply retroactively. (People v.
Perez (2022) 78 Cal.App.5th 192, review granted Aug. 17, 2022,
S275090; People v. Ramirez (2022) 79 Cal.App.5th 48, 64-65,
review granted Aug. 17, 2022, S275341.) There is a split of
authority on whether section 1109 applies retroactively to
18
nonfinal cases. (People v. Tran (2022) 13 Cal.5th 1169, 1208.)
We need not decide this issue. Even assuming retroactivity,
Lezama cannot show it is “reasonably probable” he would have
obtained a more favorable result if his trial had been bifurcated.
(People v. Watson (1956) 46 Cal.2d 818, 836; Tran, at pp. 1209-
1210 [applying Watson]; People v. E.H. (2022) 75 Cal.App.5th
467, 480 (E.H.).)
First, some of the gang evidence would have been
admissible because it was relevant to the underlying offenses.
(See People v. Ramos (2022) 77 Cal.App.5th 1116, 1132 [“nothing
in Assembly Bill 333 limits the introduction of gang evidence in a
bifurcated proceeding where the gang evidence is relevant to the
underlying charges”].) The gang evidence here was relevant to
prove motive—the prosecution presented evidence that the
murder was related to a gang rivalry between the Boyle Heights
13 and White Fence gangs and that the murder was retaliatory.
Second, there was overwhelming evidence supporting the
convictions. With respect to murder, both Lezama and Rivera
admitted to the informant that they participated in the murder.
Lezama also admitted that he owned the Infiniti and that it was
his idea to look for White Fence gang members. Furthermore,
Vargas and Lizarraga stated that Lezama was involved in the
shooting. With respect to the mayhem conviction, the evidence
showed that the shooter stood over J.M. and shot him multiple
times. The evidence included several photographs of the injuries
and the medical examiner’s testimony describing the wounds.
“Under these circumstances, we conclude that the jury’s verdict
was based on the evidence, not improper bias, and that
19
bifurcation would not have helped [Lezama].” (E.H., supra, 75
Cal.App.5th at p. 480.)4
Assembly Bill 518
Lezama contends he is entitled to the ameliorative benefits
of the changes to section 654 pursuant to Assembly Bill 518. The
Attorney General concedes Assembly Bill 518 is retroactive. We
agree. (In re Estrada, supra, 63 Cal.2d at p. 744; People v. Mani
(2022) 74 Cal.App.5th 343, 379.)
When the trial court sentenced Lezama, former section 654
provided that an “act or omission that is punishable in different
ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (Former § 654, subd.
(a).) Assembly Bill 518, effective January 1, 2022, amended
section 654 to provide that where an act or omission is
punishable by different provisions, the defendant “may be
punished under either of such provisions.” (§ 654, subd. (a).)
Thus, where section 654 applies, trial courts now have discretion
to determine which sentencing provision to apply.
Because we vacate the gang and firearm enhancements and
remand the matter pursuant to Assembly Bill 333, the court will
4 Although the parties agree the new evidentiary provisions
in Assembly Bill 333 retroactively apply, the Attorney General
contends there was sufficient evidence that the Boyle Heights 13
gang was an “ongoing, organized association” pursuant to section
186.22, subdivision (f). Given our decision to remand, we need
not address this issue. Moreover, we need not address Lezama’s
contention regarding the gang expert’s reliance on inadmissible
hearsay nor his contention that his counsel rendered ineffective
assistance of counsel by failing to object.
20
have the opportunity to consider all counts and the changes to
section 654 pursuant to Assembly Bill 518 upon resentencing.
(See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.)
DISPOSITION
The gang enhancement pursuant to section 186.22,
subdivision (b)(1)(C) and firearm enhancement pursuant to
section 12022.53, subdivision (e)(1) on the murder and mayhem
counts are vacated. The matter is remanded to allow the
prosecution the opportunity to prove these enhancements
pursuant to Assembly Bill 333. At resentencing, the trial court
shall exercise its discretion pursuant to Assembly Bill 518. The
judgment is otherwise affirmed, including the first degree murder
conviction.
NOT TO BE PUBLISHED.
BALTODANO, J.
I concur:
GILBERT, P. J.
21
YEGAN, J., Concurring and Dissenting:
I concur with the majority opinion except that portion of
the opinion which finds the evidence sufficient to support the
mayhem conviction. I would reverse that conviction. Where, as
here, the victim is shot multiple times at close range, there will
arguably be some permanent disfigurement if the victim
survives. He did not. In fact, he died within the hour of the
shooting. The potential mayhem conviction died with him. The
majority cites and relies upon cases which have upheld murder
and mayhem convictions upon the same victim at approximately
the same time. But as we have previously indicated: “A case is
not authority for propositions not considered.” (People v Chavez
(2020) 54 Cal.App.5th 477, 480; see also People v. Avila (2006) 38
Cal.4th 491, 566.) The cases cited by the majority opinion did not
consider and analyze the issue presented by this appeal. They do
not dictate affirmance of the mayhem conviction.
NOT TO BE PUBLISHED.
YEGAN, J.
1
Eleanor J. Hunter, Judge
Superior Court County of Los Angeles
______________________________
Jeralyn Keller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Nikhil Cooper, Deputy
Attorneys General, for Plaintiff and Respondent.