People v. Manzano CA4/2

Filed 6/10/22 P. v. Manzano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075445
v. (Super.Ct.No. FSB18002623)
MATHEW RUBEN MANZANO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with
directions.
Cliff Gardner and Daniel Buffington, under appointment of the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Adrian R.
Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant and appellant, Mathew Ruben Manzano, was prosecuted as an aider
and abettor to the January 18, 2017, first-degree premeditated shooting and murder of
Carmen R. in a parking lot outside of a café in San Bernardino. (Pen. Code, § 187,
subd. (a);1 count 1.) Defendant was not the shooter; at the time of the murder, he was in
prison serving a sentence of life without parole (LWOP) for a 2005 murder.
Defendant was tried separately from other defendants for the murder. John Doe 2,
an undisputed accomplice to the murder and an in-custody informant, testified that
several incarcerated Mexican Mafia members or associates, including defendant,
participated in a telephone conference call or “mesa call” with John Doe 2, in which John
Doe 2 was ordered to see that Carmen R. was killed and that Isaac Aguirre would be the
shooter.
John Doe 2 planned the shooting, including its location, and witnessed it from his
vehicle. As planned, Aguirre shot and killed Carmen R. in the parking lot outside of the
café as she was walking toward John Doe 2’s car. Before the shooting, defendant sent
electronic messages to Carmen R.’s phone, giving her directions to the café parking lot,
describing John Doe 2’s car, and indicating that her purpose in going there was to pick up
money (taxes) from John Doe 2 on behalf of the Mexican Mafia.
In February 2020, a jury found defendant guilty as charged of Carmen R.’s murder
and found two gang-related enhancement allegations true: a gang enhancement (former
1 Unspecified statutory references are to the Penal Code.
2
§ 186.22, subd. (b); Stats. 2017, ch. 561, § 178 ), and a gang-related firearm enhancement
(§ 12022.53, subds. (d), (e)(1)) [requiring showings that the defendant violated former
§ 186.22, subd. (b) and that a principal in the crime discharged a firearm causing great
bodily injury or death]).
In a bifurcated trial, the court found a prior-murder special circumstance allegation
true, mandating a life-without-parole (LWOP) sentence for the murder, regardless of the
gang enhancement and gang-related firearm enhancement. (§ 190.2, subd. (a)(2).) The
court also found defendant guilty of active gang participation (former § 186.22, subd. (a);
count 2) and it found that defendant had two prior serious felony convictions (§ 667,
subd. (a)) and a prior strike (§ 667, subds. (b)-(i)). The court made no finding on a gang-
related special circumstance allegation (§ 190.2, subd. (a)(22)), which was bifurcated
with the active gang participation charge.
In July 2020, defendant was sentenced to LWOP for the murder plus 25 years to
life for the firearm enhancement (§12022.53, subds. (d), (e)(1)), plus 10 years (five years
each) for the two “nickel” priors.2 (§ 667, subd. (a)(1).)
In this appeal, defendant raises four claims of error. First, he claims the trial court
erroneously denied his pretrial Faretta3 motion to represent himself on the ground the
2 In light of the 25-year-to-life enhancement on the gang-related firearm
enhancement (§ 12022.52, subds. (d), (e)), the court imposed but stayed a 10-year term
on the gang enhancement on count 1 (former § 186.22, subd. (b)(1)(C)) and imposed but
stayed a 25-year-to-life term on the active gang participation conviction in count 2.
(Former § 186.22, subd. (a)).
3 Faretta v. California (1975) 422 U.S. 806 (Faretta).
3
motion was equivocal at the time it was made. We conclude that the motion was
properly denied because it was equivocal and, even if it should have been granted, the
record unequivocally shows that defendant abandoned his right of self-representation by
failing to renew his motion within a reasonable time before trial.
Second, defendant claims the court prejudicially erred and violated his due process
rights in instructing the jury on how it could evaluate John Doe 2’s credibility.
CALCRIM No. 337 told the jury it could not consider John Doe 2’s physical constraints
(shackles) while testifying and that his in-custody status did not, by itself, make him more
or less believable. Defendant claims the instruction (1) prevented the jury from properly
assessing John Doe 2’s credibility, and (2) violated his due process rights by undercutting
his defense that John Doe 2 was not a credible witness. We find no merit to these claims;
the jury was properly instructed concerning its evaluation of John Doe 2’s credibility.
Third, in light of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 633, §§ 3-5) (Assembly Bill 333), the parties and we agree that defendant’s active
gang participation conviction in count 2, and the jury’s true findings on the gang
enhancement and gang-related firearm enhancements on count 1, must each be reversed
and the matter remanded for a new trial on count 2 and the enhancements on count 1.
Assembly Bill 333 changed the substantive and procedural requirements for proving
active gang participation charges, gang enhancement allegations, and, by extension,
gang-related firearm enhancement allegations. (§§ 186.22, subds. (a), (b), 1109,
12022.53, subd. (e)(1).) The parties and we also agree that a court or jury is not
4
precluded from making a finding on the gang-related special circumstance allegation on
count 1 (§ 190.2, subd. (a)(22)) in a subsequent retrial on that issue.
Fourth and lastly, defendant claims that several fines and assessments imposed at
his July 10, 2020 sentencing must be stricken.4 With the exception of $70 in per-
conviction fees on count 1, we reverse the fines and assessments along with defendant’s
active gang participation conviction in count 2 and the two gang-related enhancements on
count 1. We affirm the judgment in all other respects, including defendant’s murder
conviction and LWOP sentence on count 1. We remand the matter for further
proceedings on count 2 and the three gang-related enhancements on count 1.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. Carmen R. and the Mexican Mafia
When Carmen R. was murdered on January 18, 2017, her husband, “Huero,” was
an inmate at Pelican Bay State prison. Huero was a member of the Westside Verdugo, a
San Bernardino Hispanic criminal street gang, and he was also a member of the Mexican
Mafia, a powerful prison gang that controls all Southern California-based Hispanic gangs
known as “Sureños” gangs. The Mexican Mafia is comprised of high-ranking Sureños
gang members, and most Mexican Mafia members are incarcerated.
4 The court imposed a total of $140 in per-conviction court operations and court
facilities assessments on counts 1 (murder) and 2 (active gang participation), or $70 on
each conviction, and a $2,000 restitution fine, even though the court found that defendant
was unable to pay the costs of his appointed counsel and the presentence investigation
report. The court also imposed a $2,000 parole revocation fine, even though defendant’s
sentence did not include a parole period.
5
The Mexican Mafia controls the operations of Sureños gangs, both in custodial
settings and on the streets, in exchange for protecting Sureños gang members from
Hispanic gangs in custodial settings. Although a Sureños gang member may work for a
particular Mexican Mafia member, all Sureños gang members owe their allegiance to the
Mexican Mafia “organization” rather than to any particular Mexican Mafia member,
including one from the Sureños gang member’s local gang.
The Mexican Mafia collects money or “taxes” from Sureños gangs, representing
portions of the monies that the gangs receive from the sales of drugs, guns, and other
contraband. Sureños gangs pay their taxes to Mexican Mafia members through
“secretaries” and other intermediaries. Huero collected taxes from Sureños gangs
operating in parts of Riverside and San Bernardino Counties, including Westside
Verdugo, his local gang. Carmen R. was a secretary for Huero and, by extension, for the
Mexican Mafia; she collected taxes from the Sureños gangs under Huero’s control.
In late 2016, the Mexican Mafia placed Huero on “disregard,” meaning he was not
in good standing with the Mexican Mafia and that Sureños gangs had to disregard his
orders. According to John Doe 2, Carmen R. was suspected of keeping some of the taxes
she was supposed to be paying either to Huero or to other Mexican Mafia members.
Other evidence showed that, at the time of Carmen R.’s murder, there was a power
struggle within the Mexican Mafia for control over the areas and the taxes that Huero
controlled.
To carry out their orders on the streets, incarcerated Mexican Mafia members may
use “secretar[ies]” who may act as messengers, “keyholder[s]” or trusted gang members
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in charge of a local gang’s operations, and telephone conference calls known as “mesa”
(“table”) calls. In a mesa call, Mexican Mafia members or their associates may give
orders directly to the persons who are to carry out the orders.
A mesa call typically includes several Mexican Mafia members or their associates,
and may include secretaries and keyholders. A mesa call begins with a roll call in which
each mesa participant announces himself. Typically, only gang members who will be
involved in carrying out the orders made in the mesa call will be included in that mesa
call.
2. Gang Members Involved in Carmen R.’s Murder
John Doe 2 was a Mexican Mafia associate, a lifelong founding member of the Sur
Crazy Ones clique, one of several cliques or subsets of the Westside Verdugo, as well as
a keyholder for Huero, and, by extension, for the Mexican Mafia’s control of the Sureños
gangs that reported to Huero. John Doe 2 would carry out Mexican Mafia orders given to
him through a secretary or a mesa call. Following his release from prison in July 2016,
John Doe 2 began collecting taxes from the Sureño gangs under Huero’s control and
giving the money to Carmen R., who was supposed to be giving the money either to
Huero or to other Mexican Mafia members or associates.
Like John Doe 2, Eric Moreno (“Green Eyes”), Richard Garcia (“Easy”), and
Aguirre (“Crook”) were members of the Sur Crazy Ones clique of the Westside Verdugo.
Moreno and Garcia were also Mexican Mafia members or associates, and Moreno had
also worked as a secretary or messenger for Huero. Aguirre was in trouble with the
Mexican Mafia and had to perform tasks in order to return to good standing.
7
Defendant, known as “Nips” and “Chino” or “Chinito,” was a Mexican Mafia
associate from the Varrio Redlands gang, another Sureños gang, which, like the Westside
Verdugo and its cliques, worked under and owed allegiance to the Mexican Mafia
organization. Defendant had worked as a secretary for the Mexican Mafia and had also
done work for Huero. The Varrio Redlands and Westside Verdugo gangs sometimes
collaborated in carrying out Mexican Mafia-related business.
3. John Doe 2’s Testimony, the Mesa Call, and Carmen R.’s Murder
John Doe 2 testified for the prosecution, physically restrained with shackles visible
to the jury, and wearing a green jumpsuit showing that he was in protective custody.
John Doe 2 was on the Mexican Mafia’s “hard candy” list, meaning he was in “big
trouble” and could be physically assaulted or killed. John Doe 2 testified that, one day in
January 2017, Moreno contacted him and told him he needed to join a mesa call later that
day. Moreno was the “head of the table” or mesa. John Doe 2 was “taking orders” from
Moreno but knew that Moreno was “doing things” for other Mexican Mafia members.
John Doe 2 joined the mesa call around 5:20 p.m., 20 minutes after it began, using
his cousin’s “boyfriend’s phone” because he was having trouble charging his own phone.
The other participants in the mesa call, namely, Moreno, Garcia, “Nips,”5 and “Joker,”6
5 John Doe 2 did not identify defendant as Nips and testified that he did not know
Nips’s legal name. He had spoken with Nips only once before the January 2017 mesa
call, and he had never met Nips in person; but he believed that Nips was from Redlands.
6Joker was not identified at trial. John Doe 2 knew that Joker was from the
Westside Verdugo, but he had never met Joker in person and only knew Joker’s last
name.
8
each announced their presence. With the exception of John Doe 2, who was out of
custody, all of the participants in the mesa call were in state prison.
Moreno led the mesa call and summarized what was to be done: Carmen R. was
to be murdered that night; Aguirre was to be the shooter, and John Doe 2 was to see that
the murder was carried out. After the mesa call, John Doe 2 drove to Aguirre’s home in
San Bernardino and told Aguirre how the murder was to be done: Carmen R. would be
lured to a café near Aguirre’s home; John Doe 2 and Aguirre would drive to and from the
café in separate cars; Aguirre would wait in a field near the café until Carmen R. got out
of her car and walked toward John Doe 2’s car; then Aguirre would approach, shoot and
kill her. By staying in his car, John Doe 2 was planning to “force” Carmen R. to get out
of her car and walk toward John Doe 2’s car so that Aguirre could shoot her as she was
walking in the parking lot.
John Doe 2 purchased a .38-caliber revolver, which does not expend shell casings
when fired, and gave it to Aguirre to use in the shooting. John Doe 2 also obtained a
rental car for Aguirre, had its license plates covered with paper dealer plates to evade
detection, and told Aguirre to park the rental car around the corner from the café, near a
field, and to approach the café and shopping center parking lot through the field.
At some point, either during or after the mesa call, John Doe 2 told the mesa call
participants to have someone “lure” or direct Carmen R. to the café because John Doe 2’s
phone would not stay charged and he could not communicate with Carmen R. by phone.
Aguirre was in contact with Moreno after the mesa call and told John Doe 2 that “Nips”
9
would lure Carmen R. to the café, using a ruse that she would be picking up taxes from
John Doe 2 for delivery to the Mexican Mafia.
Around 9:30 p.m. on January 18, 2017, Carmen R. arrived in the parking lot
outside of the café and parked in front of the café. Her 14-year-old daughter was in her
passenger seat, and John Doe 2 was parked nearby. Carmen R.’s daughter waved at John
Doe 2 to get him to walk over to them, but John Doe 2 ignored her and stayed in his car.
Carmen R. got out of her car and walked toward John Doe 2’s car; when she was close to
the front of John Doe 2’s car, Aguirre shot her 4 to 5 times from behind John Doe 2’s car.
Carmen R. collapsed on the ground and died a short time later of gunshot wounds to her
chest and abdomen. Carmen R.’s daughter identified Aguirre in a photographic lineup as
the shooter. Bullet fragments, but no shell casings, were found at the scene.
After the shooting, Aguirre returned to his home near the café. John Doe 2 went
to a home in Riverside County, recharged his cell phone, called Moreno, and told him
that Carmen R.’s murder had been successfully carried out. Huero was murdered in April
2017.
Moreno was murdered on or about July 15, 2018, several days after murder
charges were filed in this case against Moreno, defendant, and others. After Carmen R.
was murdered, Moreno controlled the Westside Verdugo and the other gangs that Huero
had previously controlled for the Mexican Mafia. After Moreno was murdered, Garcia
controlled the same gangs for the Mexican Mafia.
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4. Evidence Identifying Defendant as Nips and of Nips’s Role in the Shooting
On Carmen R.’s phone, officers found several electronic messages from a contact
she saved as “Nips” and a phone number ending in “4771,” which were sent to Carmen
R.’s phone shortly before the shooting. The messages gave Carmen R. directions to the
café, described John Doe 2’s car, and indicated that the purpose of the trip was to collect
taxes from John Doe 2 for the Mexican Mafia. Carmen R. also sent electronic messages
to Nips, describing her location and where she was parked in relation to the café. Around
the same time, “Nips,” or the phone number ending in “4771,” was communicating with
phone numbers associated with Moreno and Garcia.
Shortly before the murder, the “4771” phone number pinged at cell phone towers
near Kern Valley State Prison where defendant was incarcerated. In an interview,
defendant admitted that the “4771” phone number was his and, in a recorded jail call,
defendant admitted to his grandmother that he sent electronic messages to Carmen R.
before she was murdered.
The subscriber for the “4771” phone number was listed as “Ruben M.,” at
defendant’s former address in Redlands with the e-mail address,
“mattypooh23@gmail.com.” Internet browsing records linked to this e-mail address
showed that, within hours of the shooting and before a news release of the shooting had
been issued, the user searched a San Bernardino newspaper for reports of the shooting.
The “4771” phone number was also linked to the user name Ruben Manzano on a
social media platform, and a social media page under the same user name contained
numerous photographs of defendant and messages referring to the user as “Nips.” The
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social media account for the user Ruben Manzano also listed defendant’s mailing address
and his California Department of Corrections and Rehabilitation (CDCR) inmate number.
In a social media post, the same Ruben Manzano stated that he used the name Ruben to
be “low key,” but his true name was Mathew.
5. John Doe 2’s Cooperation Agreement
Investigators interviewed John Doe 2 in July 2017, following his arrest for an
unrelated offense and parole violation. John Doe 2 initially denied knowing anything
about the murder but admitted his involvement after investigators allowed him to listen to
wiretapped recordings of his phone conversations with Moreno and other gang members.
John Doe 2 later entered into a cooperation agreement with the prosecution: he agreed to
serve 25 years to resolve all of his pending criminal charges, including a charge for the
murder of Carmen R., if he testified truthfully for the prosecution in this case. Without
the cooperation agreement, John Doe 2 faced two life sentences: one for Carmen R.’s
murder and another for unrelated charges.
B. Defense Case
Defendant did not testify or present any affirmative evidence. Nor did the defense
dispute that Carmen R. was murdered. Rather, the defense claimed that John Doe 2 was
not a credible witness; defendant did not participate in the mesa call, if any, in which the
murder was directed; nor did defendant “lure” or direct Carmen R. to the café where she
was murdered. The defense claimed that someone other than defendant must have used
defendant’s “4771” phone number for the mesa call and to send the electronic messages
directing Carmen R. to the scene of her murder.
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III. DISCUSSION
A. Defendant’s Faretta Motion Was Properly Denied and Was Ultimately Abandoned
Defendant claims the court violated his constitutional rights to self-representation
in denying his May 9, 2019 Faretta motion to represent himself at trial. We conclude the
motion was properly denied on the ground it was equivocal. Even if the motion should
have been granted, defendant abandoned his right to self-representation by failing to
renew his Faretta motion within a reasonable time before trial.
1. Relevant Background
In July 2018, the prosecution filed a felony complaint charging defendant, Garcia,
Aguirre, Moreno, and Robert Fernandez, Jr., with Carmen R.’s murder. On August 15,
defendant pled not guilty to the murder charge and denied the enhancement allegations.
On August 23, the public defender declared a conflict of interest in defendant’s case, and
attorney Scott Brown was appointed to represent defendant. On the scheduled date for
the preliminary hearing, September 10, the attorneys for Fernandez and Moreno were not
available to proceed, and Aguirre objected to proceeding due to his medical condition
because he had had surgery that morning. Defendant and Garcia were willing to waive
their rights to a preliminary hearing. The preliminary hearing was trailed to September
11 and was held over the course of six days: September 11, 21, and 24, October 12, and
November 9 and 16.
On December 12, 2018, the People filed a first amended information, adding two
special circumstance allegations to the murder charges against defendant, Garcia, and
13
Aguirre.7 The special circumstance allegations made defendant eligible for an LWOP
sentence for the murder, so the court relieved attorney Brown and said it would “get the
name of another attorney from the LWOP list to take over” defendant’s case.
On the next court date, January 4, 2019, attorney Dan Mangan from the LWOP list
substituted into the case for defendant. On January 18, Mangan asked the court to
continue the trial from January 22 to April 5 to give Mangan more time to prepare and to
ensure defendant’s right to effective assistance of counsel. Defendant was refusing to
waive time so his trial had to begin by January 25, unless the court found good cause to
continue it. Over defendant’s objection, the court found good cause for Mangan’s
requested continuance and set a pretrial conference on April 5.
On April 5, 2019, counsel for Aguirre, who like Mangan had been appointed in
January 2019, asked the court to continue the trial for 120 days, to August 2019, but
noted that defendant and Garcia were still not willing to waive time for trial. Counsel for
Garcia specially appeared for Mangan and said that Garcia and defendant had been “clear
and consistent that they were not going to waive any time,” and had even “tried to waive
the prelim to get a trial date sooner.” Counsel said he and Mangan were ready for trial
and that severing Garcia’s and defendant’s cases from Aguirre’s case appeared to be
appropriate. The court continued the trial to May 13 for all of the defendants and set a
May 9 trial readiness conference. Garcia and defendant were ordered to file severance
motions by April 19 if they wanted their cases to be severed.
7 By this time, Moreno was dead, and neither Moreno nor Fernandez were named
in the first amended information.
14
On May 9, 2019, the court severed Garcia’s case and assigned it for trial. Mangan
said he expected to be engaged in another trial until May 23, so May 24 was the earliest
day he could be ready for defendant’s trial. For Aguirre’s and defendant’s cases, the
court scheduled a trial readiness conference on May 31 and a June 3 trial date. The
prosecutor then told the court that defendant had indicated he wanted to “go pro per.”
The court asked defendant whether that was correct, and defendant said, “Yes, I’m ready
to announce ready for trial. If we want, we can come back and take care of that on the
24th . . . if my lawyer [Mangan] is not ready.”
The court explained to defendant that Mangan was in trial and would be ready to
begin defendant’s trial after he completed his current trial. The court continued: “You
have the right to request to represent yourself. . . . [M]y understanding at bench
conference [is that] you were going to request to represent yourself and go ahead and be
tried along with Mr. Garcia. Is that your intent?” Defendant responded, “My intent is to
get a trial by myself, so. . . .” The court then said, “So you’re saying you would not be
ready to go to trial with Mr. Garcia starting probably Monday of next week if you were
representing yourself?” Defendant responded, “I’m ready, your Honor. If we go next
week, I’m ready. If we come back on the 24th and my lawyer says he’s not ready, I’m
ready.” Mangan then said, “I won’t schedule another trial. He’ll be next up.”
At this point, the court said it would return to defendant’s case in a moment and
briefly handled two other matters. Returning to defendant’s case, the court said, “Based
on the record for Mr. Manzano, I find that his request to represent himself is at the
moment equivocal. He, I think, [p]refers that Mr. Mangan represent him. That looks like
15
it’s going to be able to occur soon. So the Faretta motion is denied today without
prejudice. That case will be recalled on May 31 . . . for assignment calendar.”
Aguirre’s and defendant’s cases were later continued to June 17, 2019. On June
17, the court found good cause to continue the cases to September 13, both because
Aguirre’s counsel would not be ready for trial until September 13 and because no
courtrooms were available on June 17, even though Mangan was ready for trial. On
September 13, Mangan again announced ready for trial, but the court found good cause to
continue Aguirre’s and defendant’s cases to November 22, based on Aguirre’s medical
condition. Defendant objected to the continuance on the grounds he had not waived time
and had a right to a speedy trial.
On November 22, 2019, the court severed Aguirre’s and defendant’s cases and
continued defendant’s case to November 26 so it could find an available courtroom for
defendant. Mangan moved to dismiss defendant’s case on the ground the case had been
continued for good cause only through November 25 and could not be trailed for 10 days
beyond November 25. The court disagreed and denied the dismissal motion. On
November 26, defendant’s case was assigned for trial on December 4. On December 4,
Mangan renewed his dismissal motion, but the court again denied it, finding defendant’s
constitutional and statutory rights to a speedy trial had not been denied. Defendant never
renewed his Faretta motion after the court denied it without prejudice on May 9.
Defendant’s trial began on December 4, and Mangan represented defendant throughout
his trial and sentencing.
16
2. Applicable Law
A criminal defendant has a constitutionally mandated right of self-representation.
(Faretta, supra, 422 U.S. at p. 817.) “The right of self-representation is absolute, but
only if a request to do so is knowingly and voluntarily made and if asserted a reasonable
time before trial begins. Otherwise, requests for self-representation are addressed to the
trial court’s sound discretion. [Citation.] Moreover, whether timely or untimely, a
request for self-representation must be unequivocal.” (People v. Doolin (2009)
45 Cal.4th 390, 453.) The requirement that a Faretta motion be unequivocal helps to
ensure that the motion is knowingly and voluntarily made, that the defendant “truly
desires” to represent himself, and that the defendant’s constitutional right to effective
assistance of counsel, which secures the protection of many of the defendant’s other
constitutional rights, will not be abridged. (People v. Marshall (1997) 15 Cal.4th 1, 23.)
The erroneous denial of a Faretta motion is reversible per se. (People v. Best
(2020) 49 Cal.App.5th 747, 756.) On appeal, we independently examine the entire record
to determine whether the defendant unequivocally, or knowingly and voluntarily, invoked
his right of self-representation. (People v. Doolin, supra, 45 Cal.4th at p. 453; People v.
Stanley (2006) 39 Cal.4th 913, 932-933.) A defendant’s request for self-representation is
equivocal if the defendant’s “ ‘statements or actions create any ambiguity as to his desire
to represent himself.’ ” (People v. Marshall, supra, 15 Cal.4th at p. 23.) Courts “draw
every inference against supposing that the defendant wishes to waive his right to
counsel.” (Ibid.) Thus, a motion made “out of a temporary whim, or out of annoyance or
frustration, is not unequivocal—even if the defendant has said he or she seeks self-
17
representation.” (Id. at p. 21.) In “some circumstances, remarks facially resembling
requests for self-representation [are] equivocal, insincere, or the transitory product of
emotion.” (People v. Tena (2007) 156 Cal.App.4th 598, 607.)
3. Analysis
Defendant claims his Faretta motion was erroneously denied as equivocal because
his request for self-representation was plainly unequivocal. We disagree. Although
when defendant made the motion he told the court that he was “ready” to go to trial, even
if his trial began the following week and regardless of whether his case was severed from
Garcia’s and Aguirre’s cases, the court was required to consider all of defendant’s words
and conduct in determining whether his request for self-representation was unequivocal
(People v. Doolin, supra, 45 Cal.4th at p. 453) and whether he “truly desired” to
represent himself (People v. Marshall, supra, 15 Cal.4th at p. 23).
Some of the words defendant used in making his Faretta motion show that the
motion was equivocal, and indicated that he did not truly wish to represent himself, as he
said, regardless of whether his counsel would be ready on May 24. In making the
motion, defendant said, “If we want, we can come back and take care of [my Faretta
motion] on the 24th . . . if my lawyer is not ready.” (Italics added.) He later said, “If we
come back on the 24th and my lawyer says he’s not ready, I’m ready.” (Italics added.)
These words show that defendant truly wanted to wait until May 24, when he would
know whether his appointed counsel, Mangan, would be available for his trial, to decide
whether he wanted to represent himself. Defendant did not express the unequivocal
desire for immediate self-representation but rather made the request with a wait-and-see
18
approach as to whether his lawyer would be available and ready for trial at the next
appearance. Thus, defendant’s motion was equivocal, as the court said, at the time it was
made.
Defendant’s conduct also shows his Faretta motion was equivocal. Throughout
the pretrial proceedings, defendant refused to waive his speedy trial rights; he objected to
every continuance request made at the behest of the other defendants or their counsel; and
he told the court he wanted his case to be tried separately. In this context, he ostensibly
saw his Faretta motion as a means of advancing his case to trial as quickly as possible.
But again, his words indicated that he wanted to wait until May 24, when he would know
whether Mangan would be available to try his case beginning on May 24, to decide
whether he truly wanted to represent himself.
Defendant stresses that he never said, and the court never asked him, whether he
preferred to be represented by Mangan. But there was no need for the court to ask
defendant whether he preferred to be represented by Mangan because defendant’s words
showed he wanted Mangan to continue representing him, if Mangan would be available
to begin his trial on May 24. In asking the court to defer ruling on his motion until May
24, and in saying that he would be ready for trial on May 24 if Mangan was not ready, he
effectively conditioned his motion on Mangan being unavailable for trial on May 24.
This made his motion conditional and therefore equivocal.
Defendant argues that his frustration with the progress of his case, as of
May 9, 2019, does not mean that his Faretta motion was equivocal. He relies on People
v. Burgener (2016) 1 Cal.5th 461 (Burgener) where the defendant claimed his Faretta
19
motion to represent himself on a motion to modify his death penalty sentence to LWOP
(§ 190.4, subd. (e)) was erroneously granted because his Faretta motion was equivocal
(Burgener, at pp. 465, 471). The Burgener court concluded that the Faretta motion was
unequivocal, reasoning that the defendant’s expressions of frustration with the slow
progress of his case, and his stated desire to “ ‘get [his] case . . . through the courts’ ”
before he “ ‘die[d] of old age,’ ” did not, under the circumstances, show that his Faretta
motion was equivocal. (Id. at p. 471.)
Burgener is distinguishable. Unlike defendant, the defendant in Burgener did not
indicate to the court that he wanted the court to defer ruling on his motion, nor did the
defendant appear to condition his request for self-representation on anything occurring in
the future, including his attorney being unavailable to represent him at a specified time.
Rather, the defendant in Burgener was “resolute” in invoking his right to represent
himself on his motion to modify his death penalty verdict. (Burgener, supra, 1 Cal.5th at
pp. 464-471.) The defendant’s case had been pending for many years, and two earlier
orders denying the defendant’s motion to modify his death penalty verdict had been
overturned on appeal. (Id. at pp. 464-465, 471.) The defendant had also made two prior
requests to represent himself on the modification motion. (Id. at p. 471.) And when the
defendant made his current Faretta motion, the court, prosecutor, and defense counsel
“all agreed, based on their direct observations,” that the defendant made a “careful and
informed judgment” in moving to represent himself. (Id. at pp. 464-465, 471.)
Thus, the Burgener defendant’s expressed frustration with the slow progress of his
case did not, under all of the circumstances that obtained in that case, make his Faretta
20
request equivocal. (Burgener, supra, 1 Cal.5th at p. 471.) But here, the entire record,
including defendant’s words and actions, and the circumstances in which his motion was
made, show he did not truly wish to represent himself when he made his Faretta motion
on May 9, 2019. His frustration with the ongoing continuances of his trial was the
ostensible, motivating factor for his Faretta motion. Had he truly wished to represent
himself, he would not have told the court that it could defer ruling on his Faretta motion
until May 24, when he would know whether Mangan would be available to begin his
trial. (People v. Danks (2004) 32 Cal.4th 269, 296 [The “defendant’s references to self-
representation were equivocal, born primarily of frustration regarding the granting of
counsel’s requests for continuances and [the defendant’s] desire to avoid further
psychiatric examination.”].)
Lastly, and as the People point out, defendant abandoned his Faretta motion by
failing to renew it within a reasonable time before his trial began on December 4, 2019
and by accepting Mangan as his trial counsel. “The Faretta right, once asserted, may be
waived or abandoned,” even if the Faretta motion was erroneously denied when it was
made. (People v. Dunkle (2005) 36 Cal.4th 861, 909-910 [Faretta motion waived or
abandoned by the defendant’s conduct after motion was erroneously denied]; People v.
Stanley, supra, 39 Cal.4th at p. 933 [Faretta motion abandoned by the defendant’s
subsequent acceptance of several appointed counsel to represent him during trial].) That
defendant did not renew his Faretta motion after May 9, and that Mangan continued to
represent him throughout his trial and sentencing, also shows that he did not truly wish to
represent himself when he made the motion on May 9.
21
B. The Jury Was Properly Instructed Concerning John Doe 2’s Credibility
Defendant next claims the court prejudicially erred in instructing the jury pursuant
to CALCRIM No. 337 [Witness in Custody or Physically Restrained] that it could not
consider John Doe 2’s physical constraints and in-custody status, in and of themselves, in
evaluating the credibility of his testimony. Defendant argues these two factors were
“directly relevant” to John Doe 2’s credibility and, by instructing the jury not to consider
them, the court prevented the jury from properly assessing John Doe 2’s credibility based
on all relevant factors, under the circumstances of this case. Defendant claims the error
deprived him of his constitutional right “to have the jury determine every material issue
presented by the evidence” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351) along
with a “ ‘meaningful opportunity to present a complete defense’ ” (Crane v. Kentucky
(1986) 476 U.S. 683, 690), and that the error was prejudicial under the Chapman8
standard. We find no error.9
8 Chapman v. California (1967) 386 U.S. 18 (Chapman).
9 The People argue defendant has forfeited this claim of instructional and
constitutional error by failing to object to CALCRIM No. 337 in the trial court or by
asking the court to modify the instruction with “appropriate clarifying or amplifying
language.” The People do not explain what modifying language defendant should have
requested. Defendant acknowledges he did not object to or ask the court to modify
CALRCIM No. 337, but he argues we should consider his claim because the alleged error
in giving CALCRIM No. 337 affected his substantial rights. (§ 1259.) We consider the
merits of the claim because this is necessary to ascertain whether there was any error and,
if so, whether the error affected defendant’s substantial rights. (People v. Mason (2013)
218 Cal.App.4th 818, 824.) As we explain, we find no error.
22
1. The Instructions on Witness Credibility
CALCRIM No. 337 addressed the testimony of John Doe 2 and another witness,
John Doe 1.10 It stated: “When John Doe 1 and John Doe 2 testified, they were
physically restrained. Do not speculate about the reason. You must completely disregard
the circumstance in deciding the issues in this case. Do not consider it for any purpose or
discuss it during your deliberations. Evaluate the witness’s testimony according to the
instructions I have given you. [¶] When John Doe 1 and John Doe 2 testified, they were
in custody. [Do not speculate about the reason.] The fact that a witness is in custody
does not by itself make a witness more or less believable. Evaluate the witness’s
testimony according to the instructions I have given you.”
The court also gave CALCRIM No. 226, which told the jury that it was to “judge
the credibility or believability of the witnesses,” and, in evaluating a witness’s testimony,
it could “consider anything that reasonably tends to prove or disprove the truth or
accuracy of” the testimony. This instruction then listed several nonexclusive factors that
the jury could consider in assessing witness credibility, which included whether the
witness’s testimony was influenced by “a factor such as bias or prejudice” or “a personal
interest in how the case is decided,” and whether the witness was “promised immunity or
leniency in exchange for his or her testimony.”
The jury was also instructed that it could consider the fact a witness had
committed a crime in evaluating the credibility of the witness’s testimony (CALCRIM
10 Defendant does not challenge CALCRIM No. 337 as it applied to John Doe 1.
23
No. 316); if the crime of murder was committed, John Doe 2 was an accomplice to the
murder; defendant could not be convicted of murder based on John Doe 2’s testimony
alone; and accomplice testimony could be used only if it was supported by other evidence
that the jury believed, which was independent of the accomplice’s testimony, and which
tended to connect the defendant to the commission of the crime. (CALCRIM No. 335.)
The jury was also instructed to “[v]iew the testimony of an in-custody informant against
the defendant with caution and close scrutiny. In evaluating such testimony, you should
consider the extent to which it may have been influenced by the receipt of, or the
expectation of, any benefits . . . .” (CALCRIM No. 336.)
2. Applicable Law and Analysis
We review claims of instructional error de novo. That is, we determine whether
the instruction correctly stated the law and whether there is a reasonable likelihood that it
caused the jury to misapply the law in violation of the Constitution. (People v. Mitchell
(2019) 7 Cal.5th 561, 579; Estelle v. McGuire (1991) 502 U.S. 62, 72.) The challenged
instruction is viewed “in the context of the instructions as a whole and the trial record to
determine whether there is a reasonable likelihood that the jury applied the instruction in
an impermissible manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229.) We also
“ ‘ “assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.” ’ ” (People v. Martin (2000)
78 Cal.App.4th 1107, 1111.)
Trial courts have a sua sponte duty to give CALCRIM No. 337 “if the witness has
been physically restrained in a manner that is visible to the jury.” (Judicial Council of
24
Cal., Crim. Jury Instns. (2020) Bench Notes to CALCRIM No. 337, p. 111; People v.
Duran (1976) 16 Cal.3d 282, 291-292 (Duran). The instruction applies to all physically
restrained or in-custody witnesses, including accomplices who testify for the prosecution.
(People v. Mackey (2015) 233 Cal.App.4th 32, 114 (Mackey) [noting that although the
ruled articulated in Duran only concern physical restraints on defendants and defense
witnesses (Duran, at p. 288, fn. 4), the Bench Notes to CALCRIM No. 337, “seem to
require the same treatment of a shackled prosecution witness,” and finding no authority
not to give CALCRIM No. 337 for a prosecution accomplice witness].)
Defendant argues, however, that giving CALCRIM No. 337 was unconstitutional
“[g]iven the circumstances of this case.” He claims John Doe 2’s physical restraints and
in-custody status were “directly relevant to assessing his desire to testify favorably for the
state,” thus, “the jury should not have been foreclosed from considering” these facts in
evaluating his credibility. We disagree.
Many factors were relevant to evaluating John Doe 2’s credibility, but his physical
restraints and his in-custody status while testifying were not among them. CALCRIM
No. 337 properly conveyed this to the jury. The relevant credibility factors, that is, the
reasons underlying his custodial status, were made known to the jury. Further, all of the
instructions concerning witness credibility (CALCRIM Nos. 226, 316, 335, 336 & 337)
allowed the jury to completely evaluate John Doe 2’s credibility based on all relevant
factors. These included: (1) John Doe 2’s status as an accomplice to Carmen R.’s
murder, if the jury found there was a murder (CALCRIM No. 335); and (2) John Doe 2’s
status as an in-custody informant against defendant, who had been promised a 25-year
25
sentence in lieu of two potential life sentences for testifying for the prosecution
(CALCRIM No. 336).
As noted, and given John Doe 2’s status as an accomplice and in-custody
informant testifying against defendant, the jury was instructed that it could not convict
defendant of Carmen R.’s murder based on John Doe 2’s testimony alone, and that it had
to view his testimony “with caution and close scrutiny.” (CALCRIM Nos. 335 & 336.)
The jury was also instructed to consider other relevant and overlapping factors in
evaluating John Doe 2’s credibility, including his criminal history (CALCRIM N0. 316),
his bias or prejudice, his personal interest in how the case was decided, whether he was
“promised immunity or leniency in exchange for his or her testimony,” and “anything
that reasonably tend[ed] to prove or disprove the truth or accuracy” of his testimony
(CALCRIM No. 226).
In sum, all of the instructions on witness credibility allowed the jury to consider
anything that may have been relevant to John Doe 2’s credibility, including any motive
he may have to “shade” his testimony “favorably” to the state, as defendant argues.
Thus, we discern no reasonable likelihood that the jury applied CALCRIM No. 337 in an
impermissible or unconstitutional manner. (People v. Houston, supra, 54 Cal.4th at p.
1229.) That is, CALCRIM No. 337 did not deprive defendant of his constitutional right
to present a complete defense or to have the jury determine every material issue presented
by the evidence. CALCRIM No. 337 did not prevent the jury from considering any
factors relevant to John Doe 2’s credibility.
26
Defendant does not explain why John Doe 2’s physical restraints and in-custody
status were, alone or in and of themselves, “directly relevant” to evaluating John Doe 2’s
credibility under the circumstances of this case, or why all of the instructions on witness
credibility did not allow the jury to “completely” assess John Doe 2’s credibility.
Instead, he stresses that John Doe 2 was a crucial prosecution witness because he was the
only witness who testified that “Nips” participated in the mesa call in which Carmen R.’s
murder was ordered. Thus, he argues, John Doe 2’s credibility was “critical” to the
prosecution’s case. But even though John Doe 2’s testimony was critical to the
prosecution’s case, and the defense vehemently disputed his credibility, CALCRIM No.
337 did not, as defendant argues, “undercut” defendant’s claim that John Doe 2 was not a
credible witness, and thus violate defendant’s constitutional right to present a complete
defense.
A substantially identical argument was rejected in Mackey. (Mackey, supra,
233 Cal.App.4th at p. 115.) The defendants there argued that CALCRIM No. 337
“undercut” their claim that a shackled, in-custody prosecution’s witness was not credible.
(Ibid.) In rejecting the argument, Mackey observed that CALCRIM No. 337 “did not tell
the jury not to consider the reasons underlying” the prosecution witness’s in-custody
status, and noted that defendants were “confus[ing] the credibility inferences properly
drawn” from the witness’s “criminal conduct and conflicting stories with those that are
not allowable on the basis of shackling or in-custody status alone.” (Ibid.)
Similarly here, defendant is confusing the credibility inferences properly drawn
from defendant’s status as an accomplice to Carmen R.’s murder (CALCRIM No. 335)
27
and as in-custody informant testifying against defendant (CALCRIM No. 336), with the
facts he was physically restrained and in-custody while testifying. His status as an
accomplice and an in-custody informant against defendant was directly relevant to his
credibility, and the jury was properly instructed on how to evaluate those factors. But
those factors are not to be confused with his shackles and in-custody status while
testifying, which were not, in and of themselves, relevant to his credibility, much less
“directly relevant” to his credibility. (Mackey, supra, 233 Cal.App.4th at p. 115.)
C. Defendant’s Gang Participation Conviction (§ 186.22, subd. (a)) and Gang-related
Enhancements (§ 186.22, subds. (b)(1)(C), 12022.53, subd. (e)(1)) Must be Vacated
Defendant claims his active gang participation conviction in count 2 (§ 186.22,
subd. (a)), and the two gang-related enhancements on his murder conviction in count 1
(§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (d), (e)(1)) must be vacated in light of
Assembly Bill 333 (2021-2022 Reg. Sess.), the “STEP Forward Act of 2021.” (Stats
2021, ch. 699, § 3-5, eff. Jan 1, 2022.) The People agree, and so do we.
Thus, we vacate defendant’s active gang participation conviction in count 2 and
the gang enhancement and gang-related firearm enhancement on his murder conviction in
count 1. We remand the matter to the superior court so the People may elect whether or
not they wish to retry the vacated charge and enhancement allegations, along with the
gang-related special circumstance allegation that the court did not make a finding on, all
in accordance with the law as it has been amended by Assembly Bill 333.
28
1. Retroactivity
Assembly Bill 333 amended section 186.22 and added section 1109 to the Penal
Code, effective January 1, 2022. (Stats. 2021, ch. 699, §§ 3-5.) The parties agree, and so
do we, that Assembly Bill 333’s ameliorative changes to section 186.22 apply
retroactively to judgments not final on appeal as of the bill’s January 1, 2022 effective
date. (People v. Lopez (2021) 73 Cal.App.5th 327, 343-344 [substantive changes in
Assembly Bill 333 apply retroactively because they “increase[] the threshold for
conviction of the section 186.22 offense and the imposition of the enhancement[;]”];
People v. E.H. (2022) 75 Cal.App.5th 467, 478 [same].) Because defendant’s
July 10, 2020 judgment of conviction and sentence is not final on appeal (People v.
Vieira (2005) 35 Cal.4th 264, 306), the amendments to section 186.22 retroactively apply
to the judgment.
The parties also agree, and so do we, that the amendments to section 186.22,
subdivision (e), together with newly enacted subdivision (g), which changed the criteria
for establishing a predicate offenses and, by extension, the existence of a pattern of
criminal gang activity and a criminal street gang (§ 186.22, subds. (e)-(g); Assembly
Bill 333, § 5), require us to vacate defendant’s active gang participation conviction in
count 2 and the gang-related enhancements on count 1. It is therefore unnecessary to
decide whether the conviction and enhancements must be vacated on any other ground.11
11 For example, it is unnecessary to decide whether newly enacted section 1109
(Assembly Bill 333, § 5), which, at the defendant’s request, requires the court to allow
charges to be tried before and separately from gang-related allegations on the charges,
[footnote continued on next page]
29
2. Assembly Bill 333’s Amendments to Section 186.22
Section 186.22 makes it a crime to actively participate in a “criminal street gang.”
(§ 186.22, subd. (a).) It also provides for enhanced punishment (gang enhancements)
when an enumerated felony, including murder, was committed “for the benefit of , at the
direction of, or in association with a criminal street gang . . . .” (§ 186.22, subd. (b).)
Thus, neither the active gang participation statute (§ 186.22, subd. (a)), nor the gang
enhancement statute (§ 186.22, subd. (b)) can be violated unless the crime involved a
“criminal street gang.” Likewise, a gang-related firearm enhancement (§ 12022.53,
subd. (e)(1)) requires proof that the defendant violated the gang enhancement statute
(§186.22, subd. (b)), which includes proof that the crime involved “a criminal street
gang.”
Assembly Bill 333 amended section 186.22 to change the definition of “criminal
street gang.” (Stats. 2021, ch. 699, § 3.) Section 186.22 formerly defined “criminal
street gang” as “any ongoing organization, association, or group of three or more
persons . . . whose members individually or collectively engage in, or have engaged in, a
pattern of criminal gang activity.” (Former § 186.22, subd. (f); Stats. 2017, ch. 561,
§ 178; italics added.) The bill narrowed this definition to, “an ongoing, organized
association or group of three or more persons . . . whose members collectively engage in,
also applies retroactively (People v. Burgos (2022) 77 Cal.App5th 550, 562, 564-568)
and, if so, whether section 1109 requires us to vacate the gang conviction and gang-
related enhancements (see id. at pp. 568-569 [reversing robbery convictions under any
applicable standard of reversible error based on failure to bifurcate gang enhancement
allegations from the robbery charges under § 1109 as retroactively applied]).
30
or have engaged in, a pattern of criminal gang activity.” (Assem. Bill 333, § 3,
revised § 186.22, subd. (f), italics added.)
The bill also changed the requirements for proving the “pattern of criminal gang
activity” necessary to establish the existence of a criminal street gang. Formerly, “pattern
of criminal gang activity” meant “the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of
two or more of [predicate] 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.” (Former § 186.22, subd. (e); Stats. 2017, ch. 561, § 178.)
Now, however, a “pattern of criminal gang activity” requires proof of additional
elements with respect to predicate offenses. (§ 186.22, subds. (e), (g).) Among other
things, the predicate offenses must have “commonly benefited a criminal street gang” and
the common benefit must be “more than reputational.” (§ 186.22, subds. (e)(1).)
Examples of a common benefit that are “more than reputational” 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), enacted by Stats. 2021, ch. 699, § 3.)
In addition, the most recent predicate offense must have occurred within three
years of charged offense (not the most recent qualifying offense, as under prior law,), and
the predicate offenses must have been committed on separate occasions or by two or
more gang members (as opposed to persons, as under prior law). (§ 186.22, subd. (e)(1).)
31
The list of qualifying predicate offenses has also been reduced (ibid.), and the charged
offense can no longer be used as a predicate offense (id. at subd. (e)(2)).
3. Application
At the jury trial, the parties entered into an evidentiary stipulation concerning the
gang-related allegations on count 1. The court relied on the same stipulation and facts
stated in it in finding defendant guilty of the active gang participation charge (count 2) in
the bifurcated trial.
There is no question that the stipulation and other evidence was sufficient to prove
the criminal street gang element of the gang charge and gang-related enhancement
allegations under former section 186.22. Among other things, the stipulation stated that
the Westside Verdugo, Varrio Redlands, Sureños, and Mexican Mafia were criminal
street gangs within the meaning of former section 186.22, subdivision (f), and listed
predicate offenses for each gang that met the requirements of former section 186.22,
subdivision (e)(1). (Stats. 2017, ch. 561, § 178.).
But neither the stipulation nor any other evidence showed that any of the alleged
predicate offenses “commonly benefited a criminal street gang” in a way that was “more
than reputational,” as section 186.22, subdivision (e)(1) now requires. (Assem. Bill 333,
§ 3, amended § 186.22, subd. (e)(1).) This failure of proof is not surprising, given that no
such showings were required to establish predicate offenses, or by extension a pattern of
criminal gang activity and a criminal street gang, at the time of trial. (Former § 186.22,
subds. (e), (f).) But as the parties agree, this failure of proof requires us to vacate
32
defendant’s gang conviction in count 2 and the gang-related enhancements on his murder
conviction in count 1 based on insufficient evidence.
The conviction and true findings must also be reversed based on instructional error
concerning the new, common benefit showings required to establish predicate offenses
and, by extension, a pattern of criminal gang activity and a criminal street gang.
(§ 186.22, subds. (e)-(g).) Of course, the jury and the court determined whether the
alleged predicate offenses were proved based on former section 186.22, not the statute as
amended by Assembly Bill 333. Thus, in effect, neither the jury nor the court were
instructed on the common benefit showings necessary to establish a predicate offense,
specifically that the predicate offense must have commonly benefited a criminal street
gang in a way that was more than reputational. (§ 186.22, subds. (e)(1), (g).)
Instructional error that omits an element of an offense or enhancement is reviewed
for prejudice under the standard of reversible error articulated in Chapman, supra,386 U.S. 18. (People v. E.H., supra, 75 Cal.App.5th at p. 479 [“Because Assembly Bill
333 essentially add[ed] new elements to the substantive offense and enhancements in
section 186.22 . . . [,] the prejudice standard articulated in” Chapman applies.]; People v.
Sek (2022) 74 Cal.App.5th 657, 668 [“When jury instructions are deficient for omitting
an element of an offense, they implicate the defendant’s federal constitutional rights, and
we review for harmless error under the strict standard of Chapman . . . .”].) Under
Chapman, “the absence of instruction on the amended version of section 186.22 requires
reversal unless ‘it appears beyond a reasonable doubt that the error did not contribute’ ”
to the verdict or findings. (E.H., at p. 479.)
33
As the People concede, “the parties’ stipulations and the People’s expert testimony
contain no factual details about the predicate offenses consistent with Assembly Bill
No. 333.” That is, no evidence showed that any of the alleged predicate offenses
“commonly benefited a criminal street gang” or that the common benefit to the gang was
“more than reputational.” (§ 186.22, subd. (e)(1), (g).) Nor, as noted, was the jury or the
court aware, or effectively instructed, that these showings were necessary to establish
each requisite predicate offenses and, by extension, a pattern of criminal gang activity
and a criminal street gang. (§ 186.22, subds. (e)-(g).)
Thus, we cannot say that the retroactive instructional error in omitting the
common benefit elements of the predicate offenses did not contribute to the court’s
verdict on the gang conviction or to the jury’s true findings on the two gang-related
enhancements. Rather, given the failure of proof on the common benefit elements of the
predicate offenses, the verdicts and findings must have been based on the retroactive
instructional error. Simply stated, the gang conviction and gang-related findings are
based on former section 186.22, and insufficient evidence supports them under the
current, retroactive provisions of the statute. Thus, based on both insufficient evidence
and retroactive instructional error, defendant’s gang conviction in count 2 and gang-
related enhancements on count 1 must be vacated.12
12 The parties dispute whether the gang conviction and gang-related
enhancements must also be vacated because the parties’ stipulation did not state, and no
other evidence showed, that the Westside Verdugo, Varrio Redlands, Sureños, or the
Mexican Mafia were criminal street gangs whose members “collectively,” as opposed to
“acting alone or together,” engaged in, or had engaged in a pattern of criminal gang
[footnote continued on next page]
34
The People, however, are not precluded from retrying the gang charge or the gang-
related enhancements allegations. “The proper remedy for this type of failure of proof—
where newly required elements were ‘never tried’ to the jury [or the court]—is to remand
and give the People an opportunity to retry the affected” charge and enhancements.
(People v. E.H., supra, 75 Cal.App.5th at p. 480; People v. Eagle (2016) 246 Cal.App.4th
275, 280 [“When a statutory amendment adds an additional element to an offense, the
prosecution must be afforded the opportunity to establish the additional element upon
remand. [Citation.] Such a retrial is not barred by the double jeopardy clause or ex post
facto principles . . . .”]; People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2.)
D. Fines and Assessments
Defendant challenges several fines and assessments imposed at his July 10, 2020
sentencing hearing. First, he argues, and the People and we agree, that the $2,000 parole
revocation fine (Pen. Code, § 1202.45) is unauthorized and must be stricken because
defendant’s LWOP sentence on his murder conviction, together with the prior-murder
activity. (Cf. § 186.22, subd. (f) as amended by Assembly Bill 333 with former § 186.22,
subd. (f).) Defendant claims the term “collectively” means that more than one gang
member must have been involved in a predicate offense. (People v. Lopez, supra,
73 Cal.App.5th at pp. 345-346 [reversing true findings on gang enhancement allegations
because no evidence showed that more than one gang member was involved in each
predicate offense].) The People claim this reading of the statute is unsupported and, if
newly amended subdivisions (e) and (f) of section 186.22 are read together, as they are
required to be, then “evidence that two predicate offenses, each committed by individual
gang members who were engaged in a collective purpose, satisfies Assembly Bill No.
333’s requirement that they committed them ‘collectively.’ ” It is unnecessary to address
this question given that the gang conviction and gang-related enhancements must be
vacated based on insufficient evidence that the predicate offenses commonly benefited of
a criminal street gang in a way that was more than reputational. (§186.22, subds. (e)(1),
(g).)
35
special-circumstance enhancement (§ 190.2, subd. (a)(2)) does not include a parole
period (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1183).
Second, defendant claims that the $140 in per-conviction assessments on his
convictions in counts 1 and 2, or $70 on each conviction (Gov. Code, § 70373 [$30 per
conviction fee for court facilities]; Pen. Code, § 1465.8 [$40 per conviction fee for court
operations]), and the $2,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), violate his
due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) because
the court imposed them without finding he was able to pay them.
Regardless of defendant’s ability to pay the $70 in assessments on count 2, those
assessments must be stricken because defendant’s conviction in count 2 is being vacated.
Regarding the $70 in assessments on count 1, the People argue that any Dueñas error was
harmless beyond a reasonable doubt because “there is nothing in the record to indicate
that [defendant] did not have the ability to pay the[se] relatively small fees.” We agree.
Although the court found that defendant was unable to reimburse the court for his
appointed counsel fees and pre-sentence investigation costs, the record indicates that
defendant will be able to pay the $70 fee from prison earnings over time. (People v.
Aviles (2019) 39 Cal.App.5th 1055, 1069-1072.) Defendant is young. He was 37 years
old at the time he was sentenced in 2020, and the record does not show that he has any
physical disabilities or is otherwise unable to work.
Regarding the $2,000 restitution fine, the People argue that the excessive fines
clause of the Eighth Amendment, rather than the Dueñas decision, provides “the proper
analytic framework” for assessing whether punitive restitution fines are excessive.
36
(People v. Kopp (2019) 38 Cal.App.5th 47, 96-98, review granted Nov. 13, 2019,
S257844; People v. Hicks (2019) 40 Cal.App.5th 320, 324-329, review granted
Nov. 26, 2019, S258946; People v. Aviles, supra, 39 Cal.App.5th at p. 1069.) Under this
analytic framework, the People argue, the $2,000 restitution fine is not excessive.
It is unnecessary to decide this question in this case. Even if the $2,000 restitution
fine is not excessive under the excessive fines clause, there is an overriding reason why
the $2,000 restitution fine must be stricken, without prejudice to the court recalculating
and imposing a new restitution fine on remand: the calculation of the $2,000 restitution
fine may have been based, in part, on defendant’s now-vacated gang participation
conviction in count 2 and the two gang-related enhancements on count 1, and the
sentences on each of them. The amount of the restitution fine is left to the court’s sound
discretion and must be commensurate with the seriousness of the offense. (§1202.4,
subd. (b)(2).) In setting the restitution fine, the court may, but is not required to, use the
formula set out in section 1202.4, subdivision (b)(2). That section provides that “the
court may determine the amount of the fine as the product of the minimum fine pursuant
to paragraph (1) [$300 for a single felony conviction] multiplied by the number of years
of imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.” (1202.4, subd. (b)(2).)
When the court calculated the $2,000 restitution fine at sentencing on
July 10, 2020, defendant stood convicted in count 2, and the court was sentencing him to
25 years to life on the gang-related firearm enhancement on count 1. (§ 12022.53,
subds. (d), (e)(1).) The record does not show that the conviction in count 2, or the
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unstayed sentence on the gang-related firearm enhancement on count 1, did not form part
of the $2,000 restitution fine. (See § 1202.4, subd. (b).) Thus, we strike the $2,000
restitution fine in its entirety, without prejudice to the court recalculating and imposing a
new restitution fine on remand, regardless of whether the People elect to retry defendant
on the active gang participation charge in count 2, the gang-related enhancement
allegations on count 1, or the gang-related special circumstance allegation on count 1.
IV. DISPOSITION
Defendant’s active gang participation conviction in count 2 (former § 186.22,
subd. (a)) and his two gang-related enhancements on his murder conviction in count 1
(Former §§ 186.22, subd. (b), 12022.53, subds. (d), (e)(1)) are vacated. Defendant’s
murder conviction in count 1 and the true finding on the prior-murder special-
circumstance allegation on count 1 are unaffected by this decision.
The matter is remanded to the trial court for further proceedings. The People shall
have 60 days from the date of the remittitur in which to file an election to retry defendant
on the active gang participation charge, the two gang-related enhancement allegations on
the murder charge, and the gang-related special circumstance allegation on the murder
charge, on which no finding was made. If the People elect not to retry defendant on the
gang charge or either gang-related enhancement allegation, the court shall modify the
judgment by striking the affected conviction and enhancement(s) and resentence
defendant accordingly.
The $2,000 restitution fine, the $2,000 parole revocation restitution fine, and the
$70 in per-conviction assessments on count 2 are stricken. On remand, the court may
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recalculate and impose a new restitution fine (§ 1202.4, subd. (b)) regardless of whether
the People elect to retry defendant on count 2, the gang-related enhancements on count 1,
or the gang-related special circumstance allegation on count 1. Following the conclusion
of proceedings on remand, the court is directed to amend defendant’s abstracts of
judgment (determinate and indeterminate) in a manner consistent with this disposition
and to forward copies of the amended abstracts to Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P.J.
MILLER
J.
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