People v. Casillas CA2/7

Filed 6/20/22 P. v. Casillas CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306934
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA098865-02)
v.
FRANCISCO JAVIER
CASILLAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven D. Blades, Judge. Remanded with
directions.
Rudolph J. Alejo, 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, Senior
Assistant Attorney General, Amanda V. Lopez and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
______________________
INTRODUCTION
A jury convicted Francisco Javier Casillas of three counts of
attempted premeditated murder, three counts of assault with a
semiautomatic firearm and one count of carrying a loaded
firearm while an active gang member. The jury also found true
the allegations supporting firearm and gang enhancements.
Casillas appealed, asserting instructional, sentencing and
cumulative errors.
During the pendency of his appeal, the Legislature
amended various statutory provisions governing gang
enhancements and the requisite proof for gang-related crimes.
The parties agree Casillas is entitled to the retroactive benefit of
certain of these changes, necessitating the vacatur of his
conviction for carrying a loaded firearm while an active gang
member and other gang enhancements. The parties also agree
the trial court erred in imposing a 15-year minimum parole
eligibility period on the attempted murder counts.
We vacate the gang enhancement findings, vacate the
firearm enhancement findings under section 12022.53 (but not
the firearm enhancements on the aggravated assault counts),
strike the 15-year parole eligibility minimum, reverse the gang
crime conviction and remand to provide the People an
opportunity to retry the enhancements and the gang crime count
pursuant to these new statutory requirements. If the People
elect not to retry Casillas, the trial court shall resentence him
accordingly. We otherwise affirm Casillas’s conviction for
attempted murder and assault.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Casillas and His Friend Open Fire in a Liquor Store
Parking Lot
On the evening of July 4, 2012, Casillas and his friend
Raymond Montanez went to a liquor store in the City of Pomona
to buy beer. While they were inside, the store’s external
surveillance cameras captured a silver sedan pulling into the
parking lot and parking to the right of Casillas’s dark sedan. As
Casillas and Montanez exited the store, they walked in front of
the silver sedan as they headed to Casillas’s car. Montanez got
into the front passenger seat, and Casillas got into the driver’s
seat of his car. Three unidentified men (Does 1-3) exited the
silver sedan and began walking in the direction of the store
before turning toward Casillas’s car as it was reversing out of its
parking spot. Montanez’s window rolled down, and some sort of
exchange, verbal or visual, transpired between Montanez and the
Does. Casillas stopped his car when it was nearly perpendicular
to, and blocking, the parked silver sedan. Both Casillas and
Montanez got out. Casillas walked toward the back of his car,
while Montanez exited on the passenger side, which was closest
to the Does and their vehicle. The Does began backing away from
Casillas and Montanez, toward the liquor store, and moved
behind the passenger side of their own car. What happened next
occurred quickly and was captured on the liquor store
surveillance video camera in granulated pixelation, without
audio. The critical details were vigorously contested between the
parties at trial and remain so on appeal.
At trial, Casillas’s attorney asserted Doe 1 pulled a gun and
“point[ed] that gun in the direction of either Montanez or
Casillas” and Casillas fired to defend himself and Montanez
“from being shot and possibly killed.” The prosecutor posited
3
that Casillas and Montanez implicitly or verbally agreed, while
still in the car, that “they were about to get into a gunfight” and
then “[Casillas] walks around the rear of his car and immediately
opens fire.” On appeal the People suggest that Doe 1 “pointed
toward” Montanez and Montanez ducked down.
What is undisputed is that Casillas and Montanez
collectively fired 15 rounds from their .40 caliber semiautomatics
in a matter of seconds as Does 1 and 3 dove for cover behind the
silver sedan and Doe 2 ran away. Casillas and Montanez
promptly jumped back into Casillas’s car and sped away. Doe 1
began shooting, firing a total of 14 rounds from a .9 millimeter
semiautomatic firearm at Casillas’s fleeing vehicle. All three
Does got into and then quickly exited their sedan before Does 1
and 3 ran from the parking lot. Doe 2 surveyed the sedan’s
exterior and drove away.
Meanwhile, inside the store, Atalla Trad was working as a
clerk. Trad heard what he believed to be the sound of fireworks
until he looked and saw his arm dripping with blood from a
gunshot wound. Paramedics transported Trad via ambulance to
the hospital, where he spent 10 days and received five surgical
staples in his arm.
Approximately six years later, in 2018, Casillas was
arrested in Hawaii and extradited to California.
B. Casillas Is Charged, Tried, Convicted and Sentenced
In March 2020 the Los Angeles County District Attorney
filed an eight-count1 amended information charging Casillas with
carrying a loaded firearm while an active street gang member
1 For purposes of the verdict forms at trial, counts 2 through
9 were listed as counts 1 through 8.
4
(Pen. Code,2 § 25850, subd. (a); count 2), attempted willful,
deliberate, and premeditated murder (§§ 664, 187, subd. (a);
counts 3-5), assault with a semiautomatic firearm (§ 245, subd.
(b); counts 6-8) and shooting at an occupied building (§ 246; count
9). As to counts 3, 4 and 5 it was further alleged that a principal
personally and intentionally discharged a firearm, which
proximately caused great bodily injury to Trad (§ 12022.53,
subds. (b)-(d), (e)(1)). Regarding counts 6, 7 and 8 it was further
alleged Casillas personally used a firearm in the commission of
the offenses (§ 12022.5, subd. (a)). Finally, for all counts, it was
alleged the offenses were committed for the benefit of the gang
(§ 186.22, subds. (b)(1)(A), (b)(1)(C), (b)(4)). Casillas pleaded not
guilty and denied the special allegations.
At trial,3 Detective Andrew Bebon, a veteran of the Pomona
Police Department, testified as an expert on criminal street gangs
in the City of Pomona. Bebon identified Casillas and Montanez
on the liquor store surveillance videos and opined Casillas and
Montanez were “absolutely” members of a criminal street gang
known as the Pomona 12th Street Sharkies and had the gang
monikers of “Lil Cisko” and “Drunx” respectively.4 According to
Bebon, the Sharkies are predominately Hispanic and the oldest
2 Undesignated statutory references are to the Penal Code.
3 Montanez was separately arrested and taken into federal
custody; he was not tried with Casillas, nor did he testify at
Casillas’s trial. The jury was instructed not to speculate as to his
absence.
4 Casillas’s trial counsel conceded Casillas “associated with
members of 12th Street Sharkies” and was “not going to
challenge” the testimony that Casillas was a gang member.
5
gang operating in Pomona, dating back to the 1940’s. Their
primary activities include the sale and distribution of narcotics,
extortion and engaging in acts of violence for the purpose of
instilling fear and intimidation in the community and amongst
other gangs in order to reinforce their reputation and control
their geographic area. Bebon testified the liquor store was on the
edge of the Sharkies’ territory, bordering that of their bitter rival
Olive Street, another Hispanic gang. In Bebon’s opinion, if
members of these two rival gangs encountered one another in
public, he would expect whoever is “strapped” (carrying a
firearm) to start shooting. Bebon further opined that if a gang
member goes unarmed into enemy territory, or close to it, he or
she is said to be “caught slippin’”—a situation gang members
typically avoid so as not to be murdered. Bebon testified Casillas
and Montanez were part of the same subset or “crew” within the
Sharkies, which had a reputation as the most feared, and
fearless, killers in the city who sought to take control of the drug
trade in Pomona.
Casillas did not testify, and the defense did not call any
other witnesses. Casillas’s trial counsel argued Casillas fired
only in self-defense, or in defense of Montanez, after Doe 1 raised
his firearm in the direction of Montanez or Casillas. The liquor
store surveillance videos were played for the jury, and the
relevant footage was available for the jury’s review during their
deliberations.
The jury convicted Casillas on counts 1 through 7 and
found the firearm and gang allegations to be true. The court
declared a mistrial as to count 8 due to jury deadlock.
The trial court sentenced Casillas to state prison for an
aggregate term of 127 years to life. The sentence was comprised
6
of the following terms: on count 2, seven years (the upper term of
three years, plus four years pursuant to section 186.22,
subdivision (b)(1)(A)); on counts 3-5, consecutive life terms plus
25 years to life pursuant to section 12022.53, subdivisions (d) and
(e)(1), plus a minimum parole eligibility period of 15 years
pursuant to section 186.22, subdivision (b)(5); and on counts 6-8,
concurrent upper terms of nine years, stayed pursuant to section
654, plus 10-year concurrent gang and firearm enhancements,
stayed pursuant to section 654.
Casillas appealed.
DISCUSSION
A. Standard of Review
In assessing whether jury instructions correctly state the
law, we apply a de novo standard of review. (People v. Mitchell
(2019) 7 Cal.5th 561, 579; People v. Posey (2004) 32 Cal.4th 193,
218; accord, People v. Morales (2021) 69 Cal.App.5th 978, 990.)
“‘A court’s discretionary decision to dismiss or strike a sentencing
allegation under section 1385 is’ reviewable for abuse of
discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 373;
accord, People v. Pearson (2019) 38 Cal.App.5th 112, 116.)
B. The Jury Instruction on Justifiable Homicide Was
Correct
The trial court, with no objection from defense counsel,
instructed the jury on the elements of perfect self-defense in
accordance with CALCRIM No. 505.5 The instruction stated, in
pertinent part: “The defendant is not guilty of attempted
5 The trial court and the parties augmented the pattern jury
instruction slightly to reflect that the crimes at issue here were
attempted murder and attempted manslaughter.
7
murder, attempted manslaughter, assault with a semiautomatic
firearm, and shooting at an occupied building if he was justified
in attempting to kill someone in self-defense or defense of
another. The defendant acted in lawful self-defense or defense of
another if: [¶] 1. The defendant reasonably believed that he or
someone else was in imminent danger of being killed or suffering
great bodily injury. [¶] 2. The defendant reasonably believed that
the immediate use of deadly force was necessary to defend
against that danger. [¶] AND [¶] 3. The defendant used no more
force than was reasonably necessary to defend against that
danger. . . . Defendant’s belief must have been reasonable and he
must have acted only because of that belief. . . .” (Italics added.)
Casillas asserts the requirements that a defendant’s belief
was reasonable, and he or she acted only because of that belief,
only applies to claims of self-defense under section 197,
subdivisions (2) and (3). Casillas argues the trial court’s use of
CALCRIM No. 505 thus improperly imposed the italicized
limitations (found in section 198) on his claim of self-defense
under section 197, subdivision (1). Casillas’s argument is
predicated on the interplay between sections 197 and 198.
Section 197 in relevant part provides: “Homicide is
justifiable when committed by any person in any of the following
cases: [¶] (1) When resisting any attempt to murder any person,
or to commit a felony, or to do some great bodily injury upon any
person. [¶] (2) When committed in defense of habitation,
property, or person, against one who manifestly intends or
endeavors, by violence or surprise, to commit a felony . . . . [¶] (3)
When committed in the lawful defense of such person . . . when
there is a reasonable ground to apprehend a design to commit a
felony or to do some great bodily injury, and imminent danger of
8
such design being accomplished; but such person, or the person in
whose behalf the defense was made, if he or she was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide
was committed . . . .”
Section 198 provides: “A bare fear of the commission of any
of the offenses mentioned in subdivisions 2 and 3 of Section 197,
to prevent which homicide may be lawfully committed, is not
sufficient to justify it. But the circumstances must be sufficient
to excite the fears of a reasonable person, and the party killing
must have acted under the influence of such fears alone.”
Casillas argues the limitations of section 198 (i.e., that a
defendant’s fear was objectively reasonable, and he or she killed
solely because of that fear), do not apply to a claim of felony-
resistance self-defense under section 197, subdivision (1), because
section 198 only refers to subdivisions (2) and (3). Casillas
further asserts that “[f]or more than 140 years, a California
defendant has been entitled to rely on self-defense or defense of
another while resisting an actual attempt to kill or cause him
great bodily injury regardless of whether there may have been
other motives for his actions as well.” Thus, according to
Casillas, giving CALCRIM No. 505 here, in a purported section
197, subdivision (1) case, constituted constitutional error, and his
convictions on counts 3 through 8 must be reversed. 6 We
disagree.
6 As a threshold matter, despite the People’s assertion to the
contrary, Casillas did not forfeit this argument by failing to raise
it before the trial court. Generally, a party seeking additions to,
or clarifications of, otherwise legally sound jury instructions,
must first do so in the trial court, or forfeit the claim. (People v.
9
In People v. Trevino, the Court of Appeal rejected an
attempt to parse the language of section 198 and apply its
qualifications only to section 197, subdivisions (2) and (3).
(People v. Trevino (1988) 200 Cal.App.3d 874, 878 (Trevino).)
Trevino found the law “settled that ‘[t]o be exculpated on a theory
of self-defense one must have an honest and reasonable belief in
the need to defend. [Citations.] A bare fear is not enough; “the
circumstances must be sufficient to excite the fears of a
reasonable person, and the party killing must have acted under
the influence of such fears alone.” (Pen. Code § 198.)’ [Citations.]
Hence, an instruction which states that the party killing must act
under the influence of such fears alone, is a correct statement of
the law.”’ (Id. at pp. 878-879; accord, People v. Vernon (1925) 71
Cal.App. 628, 629 [“the use of the word ‘alone’ . . . limits the right
to take the life of another in self-defense to cases where the act is
done under the influence of fear of the danger designed. . . .
[which is] a correct statement of the law, and conforms to the
provisions of sections 197 and 198”].) Trevino explained “we do
not mean to imply that a person who feels anger or even hatred
toward the person killed, may never justifiably use deadly force
in self-defense.” (Id. at p. 879.) Indeed, “it would be
unreasonable to require the absence of any feelings other than
fear, before the homicide could be considered justifiable. . . .
Instead, the law requires that the party killing act out of fear
alone. . . . The party killing is not precluded from feeling anger or
other emotions save and except for fear; however, those other
Hudson (2006) 38 Cal.4th 1002, 1011-1012.) However, here,
because Casillas argues the instruction was an incorrect
statement of the applicable law, he may raise the issue for the
first time on appeal. (Id. at p. 1012.)
10
emotions cannot be causal factors in his decision to use deadly
force. If they are, the homicide cannot be justified on a theory of
self-defense. But if the only causation of the killing was the
reasonable fear that there was imminent danger of death or great
bodily injury, then the use of deadly force in self-defense is
proper, regardless of what other emotions the party who kills
may have been feeling, but not acting upon.” (Ibid.)
More recently, the California Supreme Court endorsed the
holding in Trevino and its analysis of the statutory phrase “such
fears alone.” (See People v. Nguyen (2015) 61 Cal.4th 1015, 1045
(Nguyen) [citing section 197, subdivisions (1) and (2), along with
section 198 in discussing the law of perfect self-defense].)7 The
Supreme Court explained “Trevino clarified that this rule does
not ‘imply that a person who feels anger or even hatred toward
the person killed, may never justifiably use deadly force in self-
defense.’” (Nguyen, at p. 1045.) Consistent with the Supreme
Court’s holding in Nguyen, we agree with Trevino’s summation of
the law of perfect self-defense and reject Casillas’s attempt to
parse the language of section 198 to exempt certain claims of self-
defense from its qualifications.
Casillas also argues the jury should have been instructed
on perfect self-defense using only CALJIC No. 5.10,8 which he
asserts generally reflects the language of section 197, subdivision
7 Casillas did not address or attempt to distinguish either
Trevino, supra, 200 Cal.App.3d at pp. 878-880 or Nguyen, supra,
61 Cal.4th at p. 1045 in his opening brief and did not file a reply
brief.
8 CALJIC No. 5.10 provides: “Homicide is justifiable and not
unlawful when committed by any person who is resisting an
attempt to commit a forcible and atrocious crime.”
11
(1). However, the Court of Appeal in People v. Barillas (1996) 49
Cal.App.4th 1012, 1022-1023 referred to CALJIC No. 5.10 as
mere “surplusage,” which “added nothing to the other
instructions, and should not have been given,” where the jury
received multiple self-defense instructions, including CALJIC No.
5.12 [Justifiable Homicide in Self-Defense], which we note
expressly incorporates the limitations of section 198.9 Perhaps
unsurprisingly, there is no CALCRIM instruction analogous to
the “surplusage” of CALJIC No. 5.10. Rather, CALCRIM No. 505
is the applicable, complete instruction for perfect self-defense and
the trial court did not err in instructing the jury accordingly.
9 CALJIC No. 5.12 provides: “The killing of another person
in self-defense is justifiable and not unlawful when the person
who does the killing actually and reasonably believes: [¶] 1. That
there is imminent danger that the other person will either kill
[him][her] or cause great bodily injury; and [¶] 2. That it is
necessary under the circumstances for [him][her] to use in self-
defense force or means that might cause the death of other
person for the purpose of avoiding death or great bodily injury to
[himself][herself]. [¶] A bare fear of death or great bodily injury is
not sufficient to justify a homicide. To justify taking the life of
another in self-defense, the circumstances must be such as would
excite the fears of a reasonable person placed in a similar
position, and the party killing must act under the influence of
those fears alone. The danger must be apparent, present,
immediate and instantly dealt with, or must so appear at the
time to the slayer as a reasonable person, and the killing must be
done under a well-founded belief that it is necessary to save one’s
self from death or great bodily harm.”
12
Casillas relies on People v. Morine10 (1882) 61 Cal. 367, 371
and People v. Young (1963) 214 Cal.App.2d 641, 644 for the
proposition that “the jury need not make either of the inquiries
required by section 198 . . . under section 197, subdivision 1.”
Casillas’s reliance is misplaced. In People v. Young, the
erroneously excluded jury instructions included the predecessor
versions of both CALJIC 5.10 and 5.12, the latter of which
incorporates the same limitations found in section 198, i.e., that
one’s fear must be reasonable and the sole motivation for killing.
(People v. Young, supra, 214 Cal.App.2d at pp. 643-644, fn. 2.)
Likewise, in People v. Morine, supra, 61 Cal. at p. 371, while the
trial court instructed the jury using the language of section 197,
subdivision (1), it also incorporated subdivision (3), and section
198. Thus, neither Young nor Morine stands for the proposition
that a jury may properly be instructed on CALJIC 5.10 alone,
divorced from the well-settled qualifications on perfect self-
defense codified in section 198. And it is not definitive that
CALJIC No. 5.10, standing alone, does not expressly include the
section 198 qualifications contained in CALJIC Nos. 5.12 and
5.14, because as Morine notes when evaluating the accuracy of
jury instructions, ‘“[w]e must take the charge together, and if
without straining any portion of the language, it harmonizes as a
whole, and fairly and correctly presents the law bearing on the
issues tried, we will not disturb the judgment because a separate
instruction does not contain all the conditions and limitations
10 In his brief Casillas cites to People v. Lewis (1882) 61 Cal.
367, a case with the same reporter cite as People v. Morine. We
assume Casillas intended to cite Morine, as Lewis does not
address the issues relevant here.
13
which are to be gathered from the entire text.’” (61 Cal. at
p. 370.)
Casillas further argues that when the trial court instructed
the jury with CALCRIM No. 505 it constituted an ex post facto
violation because the instruction retroactively abolished a
defense that existed in 2012 when the events occurred in this
case. Casillas’s invocation of the ex post facto clause is inapposite
here.
In order to establish perfect self-defense under California
law “[i]t must appear that the circumstances were sufficient to
excite the fears of a reasonable person, and that the party killing
really acted under the influence of those fears, and not in a spirit
of revenge.” (Stats. 1850, ch. 99, § 30, p. 232.) CALCRIM No.
505 did not operate to eliminate or augment any pre-existing
defense but rather was an accurate statement of the law of self-
defense as it exists now and when these events occurred in 2012.
C. The Trial Court Was Not Required To Instruct on
Principles of Aiding and Abetting
Casillas asserts the trial court was obligated sua sponte to
give instructions on aiding and abetting liability after the
prosecutor made certain comments in his closing argument and
rebuttal, and the failure to do so amounted to reversible error. In
his closing argument, the prosecutor argued self-defense was not
applicable “given that [Casillas] and [Montanez] were the initial
aggressors in this case.” Casillas takes issue with the following
excerpt from the prosecutor’s rebuttal: “Defense counsel also
argued that there’s no evidence of a gun in [Montanez’s] hand
when the window goes down and when he opened the front
passenger door. If that were the case, why does John Doe 2, the
driver, flee towards the liquor store? What causes a man like
14
that to run for safety? In this case there could only be one
answer to that, and that is that the driver knew that there [were]
impending gunshots coming, that he had to flee for his life
because he probably was unarmed and did not have a gun on
him. When he sees Raymond Montanez begin to open that door,
roll down that window, it’s because Montanez, or Drunx, had a
gun, and that [Casillas] was already out of the driver’s seat
walking around, and that the driver knew what was about to
happen. That is circumstantial evidence that [Montanez] had a
gun and was initiating the gun battle.”
Casillas contends the aiding and abetting instructions were
necessary “after the prosecutor argued that [Casillas’s] friend’s
conduct could cause him to lose his rights to perfect self-defense
and defense of another.” Casillas claims without the benefit of
instructions on aiding and abetting “the jury was simply left with
the prosecutor’s ‘Well, his friend started it, so self-defense does
not apply’ argument.” Casillas insists “[t]he prosecutor’s
comments make clear that he sought to hold [Casillas]
responsible for Montanez’s conduct under an accomplice theory of
liability.” Casillas is incorrect.
When we review a claim of instructional error de novo, we
“must consider whether there is a reasonable likelihood that the
trial court’s instructions caused the jury to misapply the law in
violation of the Constitution.” (People v. Mitchell, supra, 7
Cal.5th at p. 579.) The instructional challenge “is viewed ‘in the
context of the instructions as a whole and the trial record to
determine whether there is a reasonable likelihood the jury
applied the instruction in an impermissible manner.’” (Ibid.) “‘It
is settled that in criminal cases, even in the absence of a request,
the trial court must instruct on general principles of law relevant
15
to the issues raised by the evidence. [Citations.] The general
principles of law governing the case are those principles closely
and openly connected with the facts before the court, and which
are necessary for the jury’s understanding of the case.”’ (People v.
Diaz (2015) 60 Cal.4th 1176, 1189.)
“In particular, instructions delineating an aiding and
abetting theory of liability must be given when such derivative
culpability ‘form[s] a part of the prosecution’s theory of criminal
liability and substantial evidence supports the theory.’” (People
v. Delgado (2013) 56 Cal.4th 480, 488; see People v. Prettyman
(1996) 14 Cal.4th 248, 259 [“[a]ccomplice liability is ‘derivative,’
that is, it results from an act by the perpetrator to which the
accomplice contributed”].) However, “the jury need not receive
instructions on aiding and abetting when the prosecutor tries the
case on the theory that the defendant was one of the direct
perpetrators of the crime, neither side relies on an aiding and
abetting theory, and no evidence is presented suggesting that the
defendant acted merely as an aider and abettor of the crimes.”
(People v. Whitmer (2014) 230 Cal.App.4th 906, 926; see People v.
Young (2005) 34 Cal.4th 1149, 1201 [“[i]nstructions on aiding and
abetting are not required where ‘[t]he defendant was not tried as
an aider and abettor, [and] there was no evidence to support such
a theory”].)
Here, the prosecution’s theory was that both Casillas and
Montanez were working in concert as direct perpetrators:
“What’s also relevant here is that as [Montanez] exits the car,
simultaneously [Casillas] also exits the driver’s area. You see,
it’s not that [Casillas] was in the driver’s seat unaware of
[Montanez’s] intentions. . . . [Casillas] simultaneously, in tandem,
working together, exited the driver’s seat to walk around the car.
16
. . ., whether they said it verbally to one another, or understood it
implicitly, that they were about to get into a gunfight. Watch as
[Casillas] walks around the rear of his car and immediately opens
fire.” Casillas’s actions showing his direct participation were
captured on video: Casillas was the driver, he stopped the car
rather than continuing to drive away and he fired his own
weapon multiple times at the three Does before jumping back
into the car and speeding away.
Casillas posits that “[t]he trial court’s failure to provide
CALCRIM No. 401 [Aiding and Abetting: Intended Crimes]
allowed the jury to create its own homespun theory of accomplice
liability.” But, the jury was instructed on the principles and
limitations of accomplice liability, albeit in relation to count 2, to
prove that Casillas aided and abetted felonious criminal conduct
by Montanez. Given that instruction, it is unreasonable to
assume the jurors resorted to “homespun” principles of
accomplice liability.
In any event, as discussed, the prosecutor had no reason to,
and indeed did not, resort to arguing derivative accomplice
liability because there was undisputed video evidence that
Casillas was a direct, active participant in the crime. When
Casillas backed his car out of the parking space at the liquor
store, he could have simply driven away and not engaged the
Does. Instead, as Casillas reversed, his passenger window
lowered, and an exchange occurred with the Does. Casillas still
had the option to drive away but he elected to stop and then park
his car in a manner that blocked the Does’s sedan. As the Does
backed away, Casillas exited his car with a gun, quickly moved to
the rear of his vehicle and began firing at the Does. (See People
v. Sassounian (1986) 182 Cal.App.3d 361, 404 [“the record herein
17
reflects that the defendant was not tried as an aider and abettor,
but as one of the direct and active participants in this crime”].)
The jury was fully informed and properly instructed
regarding Casillas’s self-defense theory; the jury rejected that
theory, finding Casillas guilty of three counts of attempted,
premediated, deliberate murder. The prosecutor’s isolated
comment that Montanez “initiat[ed] this gun battle,” when
elsewhere he specifically cast both Montanez and Casillas as
active participants working together to engage the Does in a gun
fight, could not reasonably have misled the jury into improperly
convicting Casillas pursuant to accomplice liability. (See People
v. Sassounian, supra, 182 Cal.App.3d at p. 404 [“the sole basis for
the defendant’s conviction was that he was the actual perpetrator
of the offense, and that ‘under no reasonable hypothesis’ could
the jury have been misled into convicting on an aiding and
abetting theory”].) Accordingly, the court did not err in omitting
instructions on aiding and abetting.11
D. Assembly Bill 333 Requires Reversal of the Gang
Enhancements and Count 2 (Carrying a Loaded Firearm
While an Active Gang Member)
“Section 186.22 provides for enhanced punishment when a
defendant is convicted of an enumerated felony committed ‘for
11 Additionally, Casillas asserts his convictions should be
reversed because cumulative errors deprived him of a fair trial in
contravention of his federal constitutional rights. As discussed,
we have not found individual error at trial let alone cumulative
error. (See People v. Lopez (2021) 73 Cal.App.5th 327, 375
[“[b]ecause we have found none of [appellant’s] claimed errors to
constitute individual errors, they cannot as a group constitute
cumulative error”].)
18
the benefit of, at the direction of, or in association with a criminal
street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.’” (People v. Delgado
(2022) 74 Cal.App.5th 1067, 1085; accord, People v. Lopez, supra,
73 Cal.App.5th at p. 344; § 186.22, subd. (b)(1).) One requisite
element to establish such a gang enhancement is that the alleged
gang has engaged in a “pattern of criminal gang activity,” which,
at the time of Casillas’s trial, was defined as “commission of,
attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of two or more
[enumerated] offenses, provided at least one of these offenses
occurred after the effective date of this [Act] 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).) “The offenses
comprising a pattern of criminal gang activity are referred to as
predicate offenses.” (People v. Valencia (2021) 11 Cal.5th 818,
829.)
While Casillas’s appeal was pending the Legislature
enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 699, § 3) (AB 333), which “impose[d] new substantive
and procedural requirements for gang allegations.” (People v. Sek
(2022) 74 Cal.App.5th 657, 665.) Effective January 1, 2022, AB
333 altered the requirements for proving a defendant is an active
participant in a criminal street gang as defined by section 186.22,
subdivision (a), and for proving gang enhancements pursuant to
section 186.22, subdivision (b). Among other changes, AB 333
also amended the definition of “pattern of criminal gang activity”
provided in section 186.22, subdivision (e), and modified the
requisite proof of predicate offenses, including that the currently
19
charged offense may not be used to establish such a pattern and
that the predicate offenses “commonly benefited a criminal street
gang, and the common benefit of the offense is more than
reputational.” (§ 186.22, subd. (e)(1), (2).) In addition, newly-
added subdivision (g) of section 186.22 provides that the language
to “benefit, promote, further, or assist” a criminal street gang
“means to provide a common benefit” to members that is likewise
“more than reputational.” (§ 186.22, subd. (g) [“Examples of a
common benefit that are more than reputational may include, but
are not limited to, financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or intimidation or
silencing of a potential current or previous witness or
informant”].) AB 333 also added section 1109, which requires, at
a defendant’s request, the trial court bifurcate the gang
participation charges and enhancements from other counts that
do not otherwise require gang evidence as an element of the
crime.12
Casillas asserts, the People concede, and we agree that
Casillas is entitled to the retroactive benefit of AB 333’s
amendments to section 186.22. (See In re Estrada (1965) 63
Cal.2d 740 (Estrada);13 see also People v. Rodriguez (2022) 75
12 In response to our request, the parties submitted
supplemental briefs addressing what impact, if any, AB 333 has
on Casillas’s appeal.
13 In Estrada, our Supreme Court explained that when the
Legislature “amends a statute so as to lessen the punishment” it
must have intended the new statute imposing the “lighter
punishment” to “apply to every case to which it constitutionally
could apply,” i.e., “to acts committed before its passage provided
the judgment convicting the defendant of the act is not final.”
20
Cal.App.5th 816, 822-823; People v. Delgado, supra, 74
Cal.App.5th at p. 1087 [“we agree Assembly Bill 333’s
amendments to section 186.22 . . . apply retroactively”]; People v.
Lopez, supra, 73 Cal.App.5th at p. 343 [“Assembly Bill 333
increases the threshold for conviction of the section 186.22
offense and the imposition of the enhancement . . . ‘[A] defendant
is entitled to the benefit of an amendment to an enhancement
statute, adding a new element to the enhancement, where the
statutory change becomes effective while the case was on appeal,
and the Legislature did not preclude its effect to pending
case[s].’”]) The parties also agree that here, the evidence of
predicate offenses introduced at Casillas’s trial was insufficient
under the new requirements prescribed by section 186.22 as
revised, to prove a pattern of criminal gang activity.
Accordingly, the gang enhancement allegation findings
under section 186.22 as to all counts are vacated. Casillas’s
conviction on count 2 (carrying a firearm while an active gang
member (§ 25850, subd. (a)) must also be reversed because
subdivision (c) of section 25850 expressly incorporates
(Estrada, supra, 63 Cal.2d at p. 745; see People v. Delgado, supra,
74 Cal.App.5th at p. 1087 [explaining that “[i]n Estrada, the
Supreme Court held that statutory amendments that reduce the
punishment for an offense apply retroactively to a defendant who
judgment is not yet final absent a contrary legislative intent”].)
The Supreme Court has since expanded the applicability of the
doctrine enunciated in Estrada “broadly ‘to statutes changing the
law to the benefit of defendants.’” (People v. Sek, supra, 74
Cal.App.5th at p. 666, quoting Tapia v. Superior Court (1991) 53
Cal.3d 282, 301.) This presumption of retroactivity “applies to
laws that change the substantive requirements for an
enhancement in the defendant’s favor.” (Sek, at p. 666.)
21
subdivision (a) of section 186.22. (See People v. Lopez, supra, 73
Cal.App.5th at p. 373 [“Assembly Bill 333’s changes to section
186.22 affect not only the gang enhancement allegations under
that statute but other statutes that expressly incorporate
provisions of section 186.22”].)
Because the gang enhancements are vacated, the firearm
enhancements imposed as to counts 3, 4 and 5 under section
12022.53, subdivision (d), can also no longer stand. The 25-year-
to-life enhancements provided by section 12022.53, subdivision
(d), require that the defendant “personally” discharge a firearm
proximately causing great bodily injury, except where a gang
enhancement has been pleaded and proved, pursuant to
subdivision (e). (See People v. Lopez, supra, 73 Cal.App.5th at
pp. 374-375; § 12022.53, subd. (e)(1) [“[t]he enhancements
provided in this section shall apply to any person who is a
principal in the commission of an offense if both of the following
are pled and proved: [¶] (A) The person violated subdivision (b) of
Section 186.22”]. [¶] (B) Any principal in the offense committed
any act specified in subdivision (b), (c), or (d)”].) Here, on the
attempted murder counts the jury did not find that Casillas
personally discharged a firearm causing great bodily injury, but
rather that “a principal” did so. Thus, the firearm enhancements
under subdivision (d), were only proper if the gang enhancements
were proven. Given that the gang enhancements are now
vacated, the firearm enhancements predicated thereupon must
likewise be vacated.
Casillas also asserts that newly-added section 1109 is both
retroactive and necessitates reversal of all counts, including his
attempted murder and assault convictions, because the gang
evidence “played a central role in undermining [Casillas’s] claim
22
of self-defense.” The People disagree, asserting that section 1109
is prospective, and regardless, any error was harmless because it
is not reasonably probable a more favorable result would have
occurred. Section 1109 provides that, at the request of the
defendant, a gang enhancement allegation or gang-related crime
be bifurcated from other charges. However, we need not decide
the retroactive application of section 1109 because we find any
such error in failing to bifurcate Casillas’s trial was harmless. In
this case, the gang evidence was inextricably linked with and
relevant to the remaining charges of attempted murder and
assault⎯in particular, this evidence was necessary to prove
motive and intent. Casillas asserts that section 1109 “makes
clear that gang evidence is no longer either relevant or
admissible in the guilt phase of a criminal trial.” We see no
indication the Legislature intended that otherwise-relevant and
admissible gang evidence would now be categorically barred from
the guilt phase of all trials. (See generally People v. Hernandez
(2004) 33 Cal.4th 1040, 1049-1050 [“evidence of gang membership
is often relevant to, and admissible regarding, the charged
offense . . . [and] can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime”].)
Here, most of the gang evidence introduced at Casillas’s
trial would have been admissible regardless of bifurcation
because the evidence was not only relevant, but integral, to
proving motive and intent. Without such evidence the gun battle
between Casillas and Montanez and three unidentified men in a
liquor store parking lot would otherwise be inexplicable and
nonsensical. Instead, the inclusion of evidence explaining
Casillas’s and Montanez’s gang affiliation, their bitter rivalry
23
with a neighboring gang, the location of the liquor store on the
borderline of the respective gangs’ territories, the need to be
“strapped” when entering rival gang territory, and the
inevitability of rival gang encounters leading to shootings if
anyone is indeed “strapped” collectively explained the motive
behind the events that occurred in the parking lot. Casillas’s
counsel used this testimony in his closing argument to explain
why, even though Casillas was armed, he was not precluded from
claiming reasonable self-defense: “[Detective Bebon said a few
things which I think are true and I think are relevant to your
analysis. He said, being a gang member, or even a gang member
associate, is dangerous. . . . He said the smart ones⎯remember,
if you’re slipping, you don’t have a gun. The smart ones are
always armed. That’s not just 12th Street Sharkies, that’s gang
members. It’s a dangerous world. He talked about how you’re
always on 24/7. You’re always on offense and defense.”
Casillas does not demonstrate how the inclusion of gang
evidence introduced to meet the requirements of section 186.22,
such as predicate offenses by other gang members, would have
unduly prejudiced the jury. Even if the initial guilt phase of
Casillas’s trial was today, the vast majority of the gang evidence
would be admissible. Casillas cannot therefore show it is
“reasonably probable” that bifurcation would have resulted in a
more favorable outcome. (See People v. E.H. (2022) 75
Cal.App.5th 467, 480.)
Accordingly, we reverse Casillas’s conviction for carrying a
loaded firearm while an active gang member (count 2)14 and
14 Effective January 1, 2022, the Legislature also enacted
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731,
§ 1.3), which changed various sentencing laws, including section
24
vacate the gang enhancements on all counts and the firearm
enhancements as to counts 3, 4 and 5.
We further agree with the People that the proper remedy is
to remand and give the People the opportunity to retry the gang
and firearm enhancements, as well as count 2, in accordance with
AB 333’s newly-enacted requirements. (People v. E.H., supra, 75
Cal.App.5th at p. 480 (“[t]he proper remedy for this type of failure
of proof—where newly required elements were ‘never tried’ to the
jury—is to remand and give the People an opportunity to retry
the affected charges”]; see People v. Eagle (2016) 246 Cal.App.4th
275, 280 [“[w]hen 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”]; see also People v. Figueroa
(1993) 20 Cal.App.4th 65, 72 [“[w]here, as here, evidence is not
introduced at trial because the law at the time would have
rendered it irrelevant, the remand to prove that element is
proper and the reviewing court does not treat the issue as one of
sufficiency of the evidence”].)
We therefore remand to afford the People the opportunity
to retry Casillas on count 2 and the gang and firearm
enhancements. Should the People decline to do so, the trial court
shall resentence Casillas in accordance with this opinion.
1170. We requested the parties provide supplemental briefing as
to what impact, if any, these changes to section 1170 have on
Casillas’s sentence on count 2 (carrying a loaded firearm while an
active gang member). The People assert, and Casillas concurs,
that this issue is now moot given the People’s concession that the
finding of guilt on count 2 must be reversed. We agree.
25
E. The Trial Court Erred in Sentencing Casillas
We requested supplemental briefing as to whether the trial
court erred in imposing both the firearm enhancement and the
alternative penalty provision of section 186.22, subdivision (b)(5),
as to counts 3 through 5, in light of section 12022.53, subdivision
(e)(2), given that the jury’s verdicts on the attempted murder
counts found true only that “a principal, personally and
intentionally discharged a firearm . . . which proximately caused
great bodily injury,” (italics added) rather than Casillas
specifically. In particular, section 12022.53, subdivision (e)(2),
provides “[a]n enhancement for participation in a criminal street
gang . . . shall not be imposed on a person in addition to an
enhancement imposed pursuant to this subdivision, unless the
person personally used or personally discharged a firearm in the
commission of the offense.”
Because the jury did not find that Casillas personally used
or personally discharged a firearm proximately causing great
bodily injury, the parties agree, and we concur, imposition of the
alternative penalty provision pursuant to section 186.22,
subdivision (b)(5), on the attempted murder counts was
erroneous. (See People v. Brookfield (2009) 47 Cal.4th 583, 593
[“[a] defendant who personally uses or discharges a firearm in the
commission of a gang-related offense is subject to both the
increased punishment provided for in section 186.22 and the
increased punishment provided for in section 12022.53. In
contrast, when another principal in the offense uses or discharges
a firearm but the defendant does not, there is no imposition of an
‘enhancement for participation in a criminal street gang . . . in
addition to an enhancement imposed pursuant to’ section
12022.53”], quoting § 12022.53 (e)(2).) The trial court’s
26
imposition of the 15-year minimum parole eligibility period as to
counts 3 through 5 is stricken.
F. Casillas’s Additional Sentencing Challenges Are Moot
Casillas further argues the trial court abused its discretion
by refusing to strike the firearm enhancements at sentencing,
resulting in an aggregate sentence violative of the Eighth and
Fourteenth Amendments of the U.S. Constitution. Casillas also
asserts his 127 years-to-life sentence constitutes cruel and
unusual punishment under the Eighth Amendment, because he
had only one prior conviction for a traffic offense and his conduct
at issue “occurred immediately after a man pulled a gun on him
and his companion.” Because we reverse Casillas’s conviction on
count 2, as well as the gang and firearm enhancements, and
permit his retrial and mandate resentencing regardless, these
issues related to his original sentence are now moot.
27
DISPOSITION
We affirm Casillas’s convictions for attempted deliberate,
willful and premeditated murder (counts 3, 4 and 5) and
aggravated assault (counts 6, 7 and 8) and reverse his conviction
for carrying a loaded firearm while an active street gang member
(count 2). We vacate the gang enhancement findings made under
section 186.22, subdivision (b), as to counts 3, 4, 5, 6, 7 and 8. We
also vacate the firearm enhancement findings made under
section 12022.53, subdivisions (d) and (e)(1), as to counts 3, 4 and
5. We reverse Casillas’s conviction as to count 2. Finally, we
strike the 15-year minimum parole eligibility period imposed
under section 186.22, subdivision (b)(5).
We remand this matter to the trial court to afford the People
an opportunity to retry count 2, the gang enhancements for counts
3, 4, 5, 6, 7 and 8 and the firearm enhancements for counts 3, 4
and 5. If the People elect not to retry Casillas, then the court shall
resentence Casillas in a manner consistent with this opinion.
WISE, J.*
We concur:
PERLUSS, P. J. FEUER, J.
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
28