People v. Mendiola CA2/4

Filed 1/6/23 P. v. Mendiola CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B313404
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA151048)
v.
JOSE MENDIOLA,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kelvin D. Filer, Judge. Affirmed as
modified and remanded with instructions.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, William H. Shin and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
After a jury trial, appellant Jose Mendiola was found guilty
of murdering Alexiz Orona; conspiring to murder and attempting
to murder Orona’s boyfriend, Valentin Quintero; and shooting at
an occupied motor vehicle. The jury found true various gang and
firearm enhancements, and the court sentenced appellant to a
total prison term of 70 years to life.
Appellant now raises several challenges to his convictions
and sentence. He contends all his convictions must be reversed
because the trial court erred in denying his Batson/Wheeler1
challenge to the prosecution’s peremptory strikes of young
Hispanic prospective jurors. He further contends his murder
conviction must be reversed because the court erroneously
instructed the jury it could return a verdict without deciding on
the degree, accepted such a verdict, and deemed the conviction
one for second degree murder under Penal Code section 1157.2
Appellant also contends the jury’s true findings on the gang
enhancements and gang-related firearm enhancements must be
reversed in light of Assembly Bill No. 333 (2021-2022 Reg. Sess.;
Stats. 2021, ch. 699) (AB 333), which amended Penal Code
section 186.22 to require proof of additional elements to establish
a gang enhancement and added section 1109, which requires trial
of gang allegations to be bifurcated if the defense so requests.
With regard to his sentence, appellant contends the court
erred in sentencing him pursuant to section 190, subdivision (d)
in the absence of a jury finding that he shot Orona from a vehicle.
1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v.
California (2005) 545 U.S. 162 (Wheeler).
2 All further statutory references are to the Penal Code
unless otherwise indicated.
2
He further contends that Senate Bill No. 567 (2021-2022 Reg.
Sess.; Stats. 2021, ch. 731, §§ 1.3, 3(c)) (SB 567) requires
resentencing on the conviction for shooting at an occupied motor
vehicle, because the court failed to make findings now required to
sentence youthful offenders to the high term. Finally, he
contends the court erred by imposing fines and fees without
properly assessing his ability to pay them.
Respondent Attorney General concedes AB 333 requires
remand for retrial of the gang and gang-related firearm
enhancements, and SB 567 and related Assembly Bill No. 124
(2021-2022 Reg. Sess.; Stats. 2021, ch. 695) (AB 124) require
remand for resentencing on the shooting count. We accept these
concessions and agree that remand is required for these
purposes. We further agree with appellant that the court erred
in imposing sentence under section 190, subdivision (d). We
accordingly vacate the gang and gang-related firearm
enhancements, and remand the matter for resentencing. We
otherwise reject appellant’s claims, including his contention that
section 1109 is retroactive, and affirm the judgment.
PROCEDURAL HISTORY
On September 29, 2020, appellant was charged by amended
information with the murder of Alexiz Orona (§ 187, subd. (a),
count 1); conspiracy to commit murder (§§ 182, subd. (a), 187,
subd. (a), count 2); attempted willful, deliberate, and
premeditated murder of Valentin Quintero (§§ 187, subd. (a), 664,
count 3); and shooting at an occupied motor vehicle (§ 246, count
4). The amended information alleged as to all counts that either
appellant or a principal personally used a firearm (§ 12022.53,
subds. (b), (e)(1)), personally and intentionally discharged a
firearm (§ 12022.53, subds. (c), (e)(1)), and personally and
3
intentionally discharged a firearm causing great bodily injury
and death (§ 12022.53, subds. (d), (e)(1).) It also alleged that all
counts were committed for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to
promote, further, or assist in criminal conduct by gang members
(§ 186.22, subd. (b)(1)(C) (counts 1-3); § 186.22, subd. (b)(4) (count
4)), and counts 1, 2, and 3 were subject to sentencing under
section 186.22, subdivision (b)(5).
Appellant proceeded to jury trial in September 2020.3 The
jury found appellant guilty of all counts, though it failed to
specify a degree for the murder charge in count 1. The court later
found the conviction was of the second degree pursuant to section
1157. The jury also found all the gang allegations true. On count
1, it found that a principal personally and intentionally
discharged a firearm, causing death; it found that appellant did
not personally do so. On count 2, the jury found true the
allegations that appellant and a principal personally and
intentionally discharged a firearm. On counts 3 and 4, the jury
found true the allegations that appellant and a principal
personally and intentionally discharged a firearm, causing
death.4
The court sentenced appellant to an aggregate term of 70
years to life. On count 1, murder, the court sentenced appellant
to 20 years to life pursuant to section 190, subdivision (d), plus a
consecutive term of 25 years to life for the firearm enhancement;
3 The amended information was filed after a pre-trial
hearing. It added personal use firearm allegations to the original
information filed January 30, 2020.
4 Appellant does not challenge the seemingly inconsistent
findings on the firearm enhancements.
4
the court struck punishment for the gang enhancement. On
count 2, conspiracy to commit murder, the court sentenced
appellant to 25 years to life, consecutive to the sentence on count
1. The court struck the firearm and gang enhancements on count
2. On count 3, attempted willful, deliberate, and premeditated
murder, the court sentenced appellant to 25 years to life, but
stayed the sentence pursuant to section 654. It also struck
punishment for the gang and firearm enhancements. On count 4,
shooting at an occupied vehicle, the court imposed the high term
of seven years, to run concurrent to the sentences on counts 1 and
2. It struck punishment on the firearm and gang enhancements.
The court imposed the minimum fines and assessments required
by sections 1202.4, subdivision (b)(1), 1202.45, subdivision (a),
1465.8, and Government Code section 70373, subdivision (a)(1).
FACTUAL BACKGROUND
Because the issues raised in this appeal are exclusively
legal in nature, we provide only an abbreviated summary of the
evidence the prosecution presented at trial. Appellant did not
present any evidence; defense counsel argued that he acted in
self-defense.
I. Appellant’s Brother Martin is Killed
In 2016, appellant’s 18-year-old brother, Martin Mendiola,
belonged to the Sur Trece gang. On the evening of May 27, 2016,
Martin5 and fellow Sur Trece member Eduardo Prado were
hanging out on West Raymond Street in Compton. Valentin
Quintero, a member of the Barrio Trece gang who was dating
Martin’s ex-girlfriend Alexiz Orona, approached Martin and
Prado, said “Barrio,” and shot them both. Martin suffered a
5 For clarity, we refer to Martin by his first name.
5
gunshot wound to the head and died at the scene. Prado was
shot in the neck but survived.
Prado initially told sheriff’s deputies investigating the
shooting that he did not know who the shooter was. More than a
year later, after the events described below, he identified
Quintero as the shooter. Prado also told law enforcement that
appellant wanted to avenge Martin’s death.
II. Appellant Looks for Quintero
Appellant became a member of the Sur Trece gang in April
2017. On the afternoon of April 13, 2017, he went to Quintero’s
previous residence on East Raymond Street, said he was from
Barrio Trece, and asked if Quintero was there. A current
occupant of the home, a friend of Quintero’s, said Quintero was
not there, but gave appellant Quintero’s phone number. The
person also told Quintero that appellant was looking for him.
Appellant returned to Quintero’s former residence later
that night. One of the occupants covertly photographed appellant
and his car and shared the photographs with Quintero. She also
later shared them with law enforcement.
Appellant and Quintero exchanged numerous text
messages over the next day; appellant asked for Quintero’s
location multiple times. Appellant also returned to Quintero’s
former residence a third time, on the morning of April 14, 2017;
the occupants again told him that Quintero was not there.
III. Non-Fatal Shootings
On the afternoon of April 13, 2017, Quintero and Orona
went to the home of Sur Trece member Johnnyne Ramirez.
Orona exchanged words with Ramirez before firing a gun at
Ramirez and her girlfriend. Quintero urged Orona to “finish
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them” before he and Orona drove away, but neither Ramirez nor
her girlfriend sustained any injuries.
Later that day, appellant and Ramirez drove to an alley
near the Buena Park home where Orona lived with her
grandmother. Ramirez got out of the car and fired several shots
into the backyard of the home, striking Orona’s dog in the face.
The dog survived, and the bullet recovered from its body and
another from the scene were given to law enforcement.
IV. Fatal Shooting
Quintero and Orona went to Quintero’s former residence on
April 14, 2017, after appellant had left. Melissa Moreno, who
was seeking to buy a cell phone from Orona, arrived at the home
in a car similar to appellant’s. Moreno testified that Orona
looked shocked when she arrived, and said she thought Moreno
was Ramirez. Moreno drove Quintero and Orona to a nearby cell
phone store to check the identification number on Orona’s phone.
While they were gone, appellant, Prado, and Ramirez arrived at
Quintero’s former residence in appellant’s car. They parked on
the street nearby and sat in the car. According to Prado,
appellant was armed with a “22 revolver,” Prado was armed with
a “38,” and Ramirez was armed with a “9mm.”
Moreno, Quintero, and Orona returned about 30 to 40
minutes later. Moreno was driving, Orona was in the front
passenger seat, and Quintero was in the back behind Orona.
Moreno testified that as they neared the home, Orona said,
“Babe, babe. That’s the car.” Quintero responded, “Shoot,
momma, shoot,” and Orona fired at appellant’s car. Shots were
returned immediately. Within seconds, the car was hit several
times, and Orona slumped onto the dashboard.
7
Moreno drove to the hospital, where Orona was pronounced
dead. A deputy medical examiner who performed an autopsy on
Orona testified she sustained two shots, one to the armpit and
one to the back. Both were fatal. A bullet and a bullet fragment
were retrieved from Orona’s body and given to law enforcement.
V. Investigation
After arresting Quintero on April 18, 2017 and searching
his cell phone, law enforcement obtained a search warrant for
appellant’s cell phone subscriber information and certain location
data. They located appellant on April 24, 2017 using cell phone
location data and a ruse phone call.
Historic cell phone location data was consistent with
appellant’s and Ramirez’s presence at Orona’s home on April 13,
2017 and at the scene of the April 14, 2017 shooting.
Law enforcement searched appellant’s home on April 26,
2017 and recovered loose 9mm ammunition and a revolver loaded
with .32 caliber ammunition. They also recovered a t-shirt
resembling the one appellant was photographed in while looking
for Quintero at his former residence.
A senior criminalist examined bullets recovered from the
Buena Park shooting, including the one from the dog; the bullet
and bullet fragment retrieved from Orona’s body; and a bullet
core and fragment retrieved from the vehicle in which Orona was
riding when she was shot. She determined that the bullets from
the Buena Park shooting were consistent with bullets loaded into
.32 auto caliber cartridges and were fired from the gun recovered
from appellant’s home. The bullet fragment from Orona’s body
was consistent with a 9mm caliber luger bullet. The criminalist
was unable to determine the caliber of the other items she
examined.
8
The prosecution introduced evidence that Sur Trece is a
gang whose primary activities include possession of firearms,
assaults, robberies, carjackings, attempted murders, murders,
and drug sales. It also introduced evidence that four Sur Trece
members were convicted of felonies after incidents in 2015 and
2017, and Sur Trece and Barrio Trece became rivals after Martin
was killed. When presented with a hypothetical mirroring the
facts of the case, the prosecution’s gang expert opined that the
April 14, 2017 shooting was gang-related and benefited the Sur
Trece gang by bolstering its reputation for violence in the
community.
DISCUSSION
I. Batson/Wheeler
Appellant contends the trial court erred in denying his
Batson/Wheeler motion during jury selection. He argues the
prosecutor improperly dismissed three prospective jurors because
they, like appellant, were young and Hispanic. He asserts the
prosecutor failed to offer credible, non-discriminatory reasons for
striking the jurors in question, and the trial court failed to make
a sincere and reasoned inquiry into the prosecutor’s asserted
reasons. We conclude the trial court properly denied the motion.
A. Background
Prior to the exercise of peremptory challenges in this case,
the court and counsel questioned approximately 104 prospective
jurors over the course of three days. On the fourth day, the court
seated a group of 20 prospective jurors so the parties could
exercise peremptory challenges.
With his first peremptory challenge, the prosecutor excused
Panelist No. 3457. After the prosecutor’s fourth peremptory
challenge, with which the prosecutor excused Panelist No. 9846,
9
defense counsel requested a sidebar and made a Batson/Wheeler
motion asserting that the prosecutor was impermissibly excusing
“young, male Hispanics; the same demographic as my client.”
The court stated it did not think there was an “inference or
pattern of discriminatory use of peremptory challenges, but out of
abundance of caution” invited the prosecutor to state the reasons
for the strikes.
The prosecutor stated that he struck Panelist No. 3457
because “he indicated that he had a problem with gang
prosecution, a question I asked early on I believe of this group.
Didn’t get to follow up and delve into it more, but without more
information that was a clear flag for me. And so based on that,
based on that compared to everyone else - - and my preference is
not to put people on a jury who have an issue with prosecuting
gang members or gangs.” The prosecutor gave the following
explanation for striking Panelist No. 9846: “I don’t have much
information on him except I understand that he said he was a
glazer at first and then he talked about installing glass and then
he indicated that he cut hair for a hobby. . . . I had a defendant .
. . back in Long Beach - - who was a glass installer and whatnot.
And from just - - and obviously I can’t generalize, but this is the
only information I have. I didn’t get a sense from him that he
would have been a juror - - well, first of all, from that experience
I just had a bad experience with him and learning things about
that defendant who was itinerant and also . . . there’s some
profession[s] and people that sometimes have flags. For me that
became a flag. [¶] And the other more obvious thing of the jurors
remaining, the next juror is a juror who has had a verdict and I
have much more information about. And so compared to that
juror and this juror, I’d rather have the juror that’s coming in.”
10
Defense counsel asserted that these reasons were “bogus,
made-up, manufactured excuses . . . that make absolutely no
sense,” and the prosecutor could have asked more questions if he
needed more information. The prosecutor maintained that his
reasons were non-discriminatory, and pointed out that there were
“a few other[s] who fit that demographic . . . I’m planning to
keep.” Defense counsel responded that the standard was animus
toward any one juror, and “I think we have that here.” The court
denied the motion, stating, “I don’t think we have that here. It’s
non racial reasons provided for the exercise of the peremptory
challenge. So the motion is denied. Thank you.”
The parties continued exercising their peremptory
challenges in alternating fashion. After each dismissed four
additional prospective jurors, defense counsel objected to the
prosecutor’s request to dismiss Panelist No. 7903. She stated,
“Your Honor, he keeps kicking off young Latinos. And this juror -
- she has an uncle who is a lieutenant. She has friends that are
part of the police department. And, again, this is just all racial
animus toward kicking off anyone who could have any type of
sympathy because of race for my client.” The court again stated
that it was “not finding a pattern has been established,” but
asked the prosecutor for his reasons so “the record [can] be clear.”
The prosecutor explained that Panelist No. 7903 “has a Facebook
page which I was able to see and - - indicating a personality that
is very opinionated. And although I will admit she hasn’t posted
since maybe 2015, 2016 but based on the comments on her
Facebook page. Despite the fact that . . . I do like actually a lot of
the things about her, I don’t at this point feel comfortable keeping
her based on that.” He added that the panelist in line to replace
11
her was “someone who has had a verdict,” and “I like those
people.”
The court stated, “I’ve heard enough. I think there’s been .
. . race neutral reasons. Most of the jurors here are Hispanics.
Most of the proposed venire.” The prosecutor then added that
there were several panelists “who fit that profile” that he
expected to remain on the jury “unless they’re kicked by the
defense.” He further stated that he considered the personalities
and experiences of the entire venire, and he “tend[ed] to be
hesitant keeping” those with “strong personalities . . .especially
when there’s someone else who has already gone through the
process and appears to have been able to come to verdict with
other people.” Defense counsel responded, “I again believe this is
all made up. Looking at a Facebook page, you can’t tell anyone’s
personality. He’s just coming up with excuses because the reason
he keeps kicking these people are young Latinos [sic] and he will
continue to do it unless the court stops him.” The court
reiterated that the challenge was denied.
As jury selection progressed, the prosecutor made two
Batson/Wheeler motions, alleging that defense counsel was
impermissibly striking white and older Hispanic panelists. The
court denied both motions.
After jury selection concluded, the prosecutor stated for the
record that at least five of the 12 jurors in the box were young
individuals who appeared to be Hispanic or Latino. The court
stated that it had noted “six Latinos in the jury of twelve and five
of our six alternates are Latino.” The court also noted that four
of the 12 jurors were Black, as was the remaining alternate.
12
B. Governing Law
“The law is clear and firmly established. ‘“Both the federal
and state Constitutions prohibit any advocate’s use of peremptory
challenges to exclude prospective jurors based on race.”‘
[Citation.] ‘“Doing so violates both the equal protection clause of
the United States Constitution and the right to trial by a jury
drawn from a representative cross-section of the community
under article I, section 16 of the California Constitution.”‘
[Citation.] The law also recognizes ‘“a rebuttable presumption
that a peremptory challenge is being exercised properly, and the
burden is on the opposing party to demonstrate impermissible
discrimination.” [Citation.] “A three-step procedure applies at
trial when a defendant alleges discriminatory use of peremptory
challenges. First, the defendant must make a prima facie
showing that the prosecution exercised a challenge based on
impermissible criteria. Second, if the trial court finds a prima
facie case, then the prosecution must offer nondiscriminatory
reasons for the challenge. Third, the trial court must determine
whether the prosecution’s offered justification is credible and
whether, in light of all relevant circumstances, the defendant has
shown purposeful race discrimination. [Citation.] ‘The ultimate
burden of persuasion regarding [discriminatory] motivation rests
with, and never shifts from, the [defendant].’”‘“ [Citation.]”
(People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719,
759-760.)
“[W]here (1) the trial court has determined that no prima
facie case of discrimination exists, (2) the trial court allows or
invites the prosecutor to state his or her reasons for excusing the
juror for the record, (3) the prosecutor provides
nondiscriminatory reasons, and (4) the trial court determines
13
that the prosecutor’s nondiscriminatory reasons are genuine, an
appellate court should begin its analysis of the trial court’s denial
of the Batson/Wheeler motion with a review of the first-stage
ruling.” (People v. Scott (2015) 61 Cal.4th 363, 391 (Scott).)
At the first step, the defendant must set forth a prima facie
case of discrimination “by showing that the totality of the
relevant facts gives rise to an inference of discriminatory
purpose.” (Scott, supra, 61 Cal.4th at p. 383.) The bar is
relatively low; “[i]t is satisfied simply by evidence sufficient to
permit us to draw an inference that discrimination may have
occurred.” (People v. Battle (2021) 11 Cal.5th 749, 773.) The
ultimate issue is not whether there is systematic exclusion of a
protected class, but rather whether a particular panelist has been
challenged on the basis of group bias. (Ibid.)
Applying the substantial evidence standard,6 “[w]e examine
the entire record before the trial court to determine whether it
supports an inference of such group bias.” (People v. Battle,
supra, 11 Cal.5th at pp. 772-773.) Facts relevant to this showing
include “that a party has struck most or all of the members of the
identified group from the venire, that a party has used a
disproportionate number of strikes against the group, that the
party has failed to engage these jurors in more than desultory
voir dire, that the defendant is a member of the identified group,
and that the victim is a member of the group to which the
majority of jurors belong.” (Scott, supra, 61 Cal.4th at p. 384.)
6 We reject appellant’s suggestion that we should apply the
de novo standard of review here because the trial court failed to
make a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered. (People v. Mai (2013) 57
Cal.4th 986, 1048-1049.)
14
We also may consider nondiscriminatory reasons for the
challenge that are “apparent from and ‘clearly established’ in the
record.” (Ibid.) We “may not rely on a prosecutor’s statement of
reasons to support a trial court’s finding that the defendant failed
to make out a prima facie case of discrimination.” (Id. at p. 390.)
C. Analysis
Appellant contends he established a prima facie case
because he asserted his challenges immediately after Hispanic
panelists were excused, he established that he was Hispanic,
there was nothing in the panelists’ voir dire responses that
“supported excusal” by “suggest[ing] a bias against the
prosecution,” and the prosecutor failed to appropriately follow up
on Panelist No. 3457’s assertion that he had a problem with gang
prosecutions. We disagree.
The record reflects that Hispanic panelists made up “most
of” the approximately 104-person jury pool. A significant
percentage of the jurors ultimately selected, either 40 or 50
percent, was Hispanic. Five of the six alternate jurors ultimately
selected were Hispanic. Appellant’s assertion that the prosecutor
demonstrated racial animus by using three of his first four
strikes on Hispanic panelists—one of whom appellant did not
challenge at the time—is thus minimally persuasive. (See People
v Bonilla (2007) 41 Cal.4th 313, 344 [“the statistical frequency
with which the prosecution struck Hispanics from the juror pool
provides no basis at all to infer discrimination” where frequency
of strikes aligned with composition of panel].) Appellant
demonstrated that he was Hispanic, but appears to disregard the
racial identities of victims Quintero and Orona, both of whom the
record suggests were also Hispanic.
15
All three panelists at issue stated during voir dire that they
had never served on jury duty before. Lack of jury experience is a
valid, nondiscriminatory reason to exercise a peremptory
challenge. (See People v. Manibusan (2013) 58 Cal.4th 40, 83.)
Panelist No. 7903 also stated that she was working two jobs
while attending college. The prosecutor reasonably could
conclude that such a busy panelist might not be the most
attentive juror during this lengthy, complex case.
Appellant suggests that the prosecutor engaged the
challenged jurors in only superficial voir dire. However, the
record shows that he asked Panelist No. 3457 about prejudging
the testimony of certain witnesses, his feelings about the concept
of self-defense, and his feelings about gang prosecutions. The
prosecutor asked Panelist No. 7903 about judging the credibility
of witnesses by their occupations, whether she would be affected
by displays of emotion or remorse, and whether she could follow
instructions regarding self-defense. The prosecutor asked
Panelist No. 9846 about judging the credibility of witnesses by
their occupations, whether his verdict would be influenced by his
feelings toward the victims, and whether he had any problems
with the concept of coconspirator liability. By the time the
prosecutor asked these questions, the panelists already had been
questioned by the court and defense counsel; the court also placed
time limits on both sides’ questioning. The prosecutor’s failure to
specifically follow up with Panelist No. 3457 on the gang question
does not on this record suggest desultory questioning or
discrimination. Panelist No. 3457’s generalized answer to the
question likewise cannot be characterized as “explicitly race-
tied.” (Contra People v. Silas (2021) 68 Cal.App.5th 1057, 1099
[panelist’s view that Black defendants are sentenced more
16
harshly was “explicitly race-tied” and did not constitute a
nondiscriminatory reason dispelling an inference of bias].)
II. Degree of Murder
A. Background
Count 1 of the amended information charged appellant
with murder of unspecified degree. The jury was instructed on
both first and second degree murder, as well as the lesser
included offense of voluntary manslaughter. One of the
instructions, CALCRIM No. 520, stated, “If you decide that the
defendant committed murder, it is murder of the second degree
unless the People have proved beyond a reasonable doubt that it
is murder of the first degree as defined in INSTRUCTION 521.”
Another, CALCRIM No. 640, instructed the jury that it could
consider first degree murder, second degree murder, and
voluntary manslaughter “in whatever order you wish, but I can
only accept a verdict of guilty or not guilty for second degree
murder and voluntary manslaughter only if all of you have found
the defendant not guilty of first degree murder and I can accept a
verdict of guilty or not guilty of voluntary manslaughter only if
all of you have found the defendant not guilty of both first and
second degree murder. [¶] As with all of the charges in this case,
to return a verdict of guilty or not guilty on a count, you must all
agree on that decision.” CALCRIM No. 640 further instructed
the jury how to complete the verdict forms under various
scenarios, including: “If all of you cannot agree whether the
defendant is guilty of first degree murder, inform me that you
cannot reach an agreement and do not complete or sign any
verdict forms for that count,” and “If all of you agree that the
defendant is not guilty of first degree murder but cannot agree
whether the defendant is guilty of second degree murder,
17
complete and sign the form for not guilty of first degree murder
and inform me that you cannot reach further agreement. Do not
complete or sign any other verdict forms for that count.”
Defense counsel expressly agreed that CALCRIM No. 520
“looks fine.” Defense counsel also agreed with giving CALCRIM
No. 640 instead of CALCRIM No. 641 or 642, after expressing
concern about past juror confusion over CALCRIM No. 641. At
the conclusion of the jury instructions conference, the court asked
counsel if there were further objections to the instructions. Both
sides said there were none.
The jury was given one guilty verdict form and one not
guilty verdict form for count 1. The guilty verdict form included a
space for the jury to write in the degree of murder of which it
found appellant guilty: “We further find it to be MURDER of the
_______ degree.” The jury was also given guilty and not guilty
forms for the lesser included offense of voluntary manslaughter.
There is no indication in the record that either the prosecutor or
defense counsel objected to the verdict forms.
During deliberations, the jury sent a note to the court
asking, “The instructions say leave the form blank? So do you
want us to fill in the spaces or leave them blank. [¶] We put a
tab on the instruction sections.” The court “conferred with both
counsel to get their suggestions and their input as to how we
should respond,” sent counsel a proposal, and expressly asked for
objections before sending the following written response: “If you
have found the defendant ‘not guilty’ of murder in count one, then
sign the form for ‘Not Guilty’ as to that count. [¶] If you have
found the defendant ‘guilty’ of murder in count one but cannot
agree on whether it is 1st or 2nd degree, then sign the form for
18
‘guilty’ as to that count and leave the space blank where it asks
for degree.” Neither side objected.
The jury also sent a note stating, “If we find the defendant
guilty of count 1, do we have to select 1 or 2nd degree murder? [¶]
Also on the count 1 verdict form do we have to all agree on the
true or not true answers.” The court responded, in writing,
“‘YES’ – your findings on the degree and the allegations must be
unanimous. I have flagged the instructions.” The jury sent a
separate note stating, “We cannot agree on 1st or 2nd degree
murder.” The court provided the following written response: “If
you have reached a unanimous verdict on any of the counts, sign
the verdict forms for those counts. If you decide that the
defendant committed murder, it is murder of the second degree
unless the People have proved beyond a reasonable doubt that it
is murder of the first degree. [¶] If you cannot agree whether it is
first or second degree murder, then leave that space on the
verdict form blank.”
It is unclear in what order these questions were asked and
answered, and the court’s discussions with counsel occurred off
the record. However, minute orders indicate that the court
conferred with counsel as to all jury questions, and “both agree
with the court’s response.” The court stated on the record that
“everyone agreed in regards to their question about the form and
I guess the degree of murder it appears they’re making reference
to.”
After the jury indicated it had reached a verdict, the
prosecutor notified the court he had “concerns about what the
court was going to do in terms of its answer with regards to the
jurors [sic] latest questions. Or question.” The prosecutor
explained that he had located, read, and shared with defense
19
counsel and the court People v. Avalos (1984) 37 Cal.3d 216(Avalos), which gave him a “change of mind of how . . . the court
should respond to the question that was asked by the jury.”
Specifically, he stated, “I think we could have just indicated to
them that they have to have a unanimous decision as to the
degree and left it at that. I’m just a little concerned about some
of the language in the Avalos case given the current posture of
where the jury was at the time.”
Defense counsel stated that after reviewing Avalos, “I kind
of agree with what he said. . . . I don’t know how we interact in a
situation when the jury is hung as to the degree of murder. But
that’s what this case says. So probably they should have been
brought out, inquired whether they were hung and then for the
court to take – if they were hung – to take the hand or whatever
was necessary for the court to assist them.” The prosecutor then
stated that he was “not sure whether or not they mean they have
a verdict except for the degree of murder or whether, you know,
they actually came to some sort of agreement. My concern is if
they think they have a verdict as to count 1 but they have not
agreed on the degree, I’m concerned about the legal effect of
that.”
The court responded that “if they can’t agree on the degree
of murder, then it’s going to be deemed to be second degree
murder pursuant to Penal Code section 1157.”7 The court added
7 Section 1157 states: “Whenever a defendant is convicted of
a crime or attempt to commit a crime which is distinguished into
degrees, the jury, or the court if a jury trial is waived, must find
the degree of the crime or attempted crime of which he is guilty.
Upon the failure of the jury or the court to so determine, the
degree of the crime or attempted crime of which the defendant is
guilty, shall be deemed to be of the lesser degree.” Notably, as
20
that it had not wanted to influence the jury when answering its
questions. It continued, “If anything, it should be favored
towards the – giving the defendant the benefit of the doubt which
is why I included the first part if you find the defendant not
guilty in count 1, then sign the verdict form not guilty as to that
count. And then if you find the defendant guilty, then you should
sign the guilty form. But if you can’t agree on first or second
degree, you don’t put anything because they could not agree.
Obviously that’s where 1157 kicks in. If they cannot agree then
it’s murder of the second degree. I mean, I don’t know what other
option we could have given them.”
Defense counsel responded, “No.” The court then
reiterated, “We had to answer their question,” to which defense
counsel responded, “Yes.” The court then stated that it found
Avalos distinguishable, because there the court “gave them a
different instruction, additional instruction. Then the court
offered to provide separate verdict forms for the three possible
findings in this case. That’s totally different from what we did.
All I did is reiterate really what was contained in the instruction
they already had and that is murder is murder of the second
degree unless the People have proven it’s murder in the first
degree. [¶] And so if they don’t fill out that form, my intention at
discussed more fully below, Avalos expressly reiterates the
Supreme Court’s earlier holding that section 1157 “was not
intended to apply to cases in which the jury does not fix the
degree of a crime because it cannot reach a unanimous verdict on
that issue.” (Avalos, supra, 37 Cal.3d at p. 220; see also id. at p.
228 [“it is improper for a trial court to instruct a jury that it can
avoid reaching a unanimous verdict on the question of degree by
returning a general verdict finding the defendant guilty of an
unspecified degree of murder”].)
21
the time of sentencing would be to deem that it’s murder of the
second degree which is what we do if that’s the case.”
The court then invited defense counsel to respond. She
stated, “the way I read Avalos, it doesn’t really need any rule for
when the jurors are hung and that was what I was concerned
about. So if the jurors are hung, there has to be a mechanism for
that to happen.” The court stated, “the verdict form says that if
they found him guilty of murder, then they would decide the
degree.” After defense counsel agreed, the court continued, “they
only get to the degree if they find him guilty of murder.” Defense
counsel said, “Correct. So if they are hung on the degree of
murder, there has to be a mechanism for that to happen, right?”
The court said “Yes, section 1157.” Defense counsel responded,
“Okay.” The court then quoted section 1157, and defense counsel
said, “That was my understanding.”
The court asked defense counsel what she was “asking or
suggesting that I could have done other than what I did which
was just reiterate what the law says?” Defense counsel
responded, “I wish I had just thought about requesting that they
be brought back, questioned. But obviously now they’ve reached
a verdict; so that might be too late. But . . . I think if they can’t
agree on the degree of it, they can’t agree on the degree of it, and
that is what happens. You’re right.” The court asked the
prosecutor if he had anything further; he did not.
After a recess, however, the prosecutor raised the issue
again, asking if it was the court’s and defense counsel’s
understanding that the jury’s failure to designate a degree would
result in a conviction for second degree murder. The court said it
was, and the prosecutor said he did not “have a quibble with it”
“so long as counsel and the court are on the same page about
22
that.” Defense counsel responded, “The instruction specifically
tells them if it’s not of the first degree then it’s of the second
degree.” The court then asked both sides if they had anything
further; neither did.
The following day, before the jury was brought to the
courtroom for the verdict to be read, the prosecutor raised the
issue a third time, indicating he had “misgivings about the
Avalos case.” He explained, “I don’t want us to have instructed
the jury the way that we have and to receive the verdicts the way
that we have and later on for the defense to argue that . . . if the
jury has not come back with a decision on the degree of murder
then in fact that is a hang on the entire count of count 1.” The
court asked the prosecutor if he had any cases that “even come[ ]
close to saying that.” The prosecutor clarified he was not arguing
for any particular outcome, but rather expressing “concern [that]
an argument can be made that . . . if they don’t come back with
the degree of murder that this is a mistrial or that’s a hang,
mistrial on that complete count and the People would have the
burden to retry the entire count.” The court responded, “I don’t
think there’s any case to say that. Not the way the verdict forms
are made out. The situation in that case [presumably Avalos] is
not the type of verdict forms we used.” The prosecutor reiterated
his concern about the potential need to retry the entire count,
and added, “That’s why I think if it is in fact blank we need to go
through the - -” Before he finished, the court interjected, “No.
That’s not going to happen. I know exactly what I’m going to do if
that happens. I’m not going to ask them if they want to
deliberate further on that. Absolutely not. I will ask them what
the tally was if we reach that point.”
23
The prosecutor responded that he wanted “to be clear so
counsel has an opportunity to make a record one way or the
other.” After the court interjected that the prosecutor had “made
it an issue now,” the prosecutor specifically requested that the
court direct further deliberations if the jury failed to reach a
verdict on the degree. The court asked defense counsel if she
wanted to be heard. After she said “no,” the court ordered the
jury brought to the courtroom for the verdicts to be read.
On count 1, the jury completed the guilty form for murder
but left the degree line blank. After polling the jury and ordering
the verdicts recorded, the court at the prosecutor’s request asked
the jury foreperson what the jury’s vote had been on the degree.
The foreperson answered that 11 jurors voted for first degree and
one voted for second degree. Neither the prosecution nor the
defense made any further statements on the issue. At
sentencing, the court deemed the conviction on count 1 to be for
second degree murder pursuant to section 1157. No objections
were raised.
B. Contentions
Appellant now contends the court erred in instructing the
jury it could reach a verdict on the murder charge without
specifying a degree, and in accepting the verdict of unspecified
degree. He contends the error is structural and requires reversal
of his murder conviction. Appellant asserts the issue is preserved
for review either because no objection was required or because his
counsel “agreed with the prosecutor’s claim that the trial court’s
handling of the jury’s inability to reach a unanimous verdict on
the degree was incorrect.” He alternatively contends that his
trial counsel rendered ineffective assistance to the extent she
failed to preserve the claim. Respondent acknowledges the
24
verdict “arguably did not comply with 1157 by failing to further
state a unanimous verdict as to first degree murder,” but
contends defense counsel invited the error. In reply, appellant
asserts respondent “misconstrues the record,” and defense
counsel sufficiently questioned the court’s procedure to preserve
the issue for appeal.
C. Analysis
We agree with respondent that the invited error doctrine
precludes substantive review of this issue.
“‘The doctrine of invited error is designed to prevent an
accused from gaining a reversal on appeal because of an error
made by the trial court at his behest. If defense counsel
intentionally caused the trial court to err, the appellant cannot be
heard to complain on appeal. . . . [I]t also must be clear that
counsel acted for tactical reasons and not out of ignorance or
mistake.’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
49.) “In cases involving an action affirmatively taken by defense
counsel, we have found a clearly implied tactical purpose to be
sufficient to invoke the invited error rule.” (Ibid.)
Avalos, supra, 37 Cal.3d 216 is instructive. In Avalos, as
here, the defendant was charged with one count of murder. (Id.
at p. 221.) During deliberations, the jury “inquired whether if
they had determined that defendant was guilty of murder but
disagreed upon the degree, they would have reached a verdict of
guilty of second degree murder or no verdict at all. The jury
further indicated that it was ‘unable to agree unanimously on
which degree of murder the defendant is guilty of.’” (Id. at p.
222.) As here, the record indicated that the court and counsel
conferred off the record and agreed the jury should be instructed
to reexamine two instructions previously given. (Id. at p. 223.)
25
Later that day, as deliberations continued, the court stated that
it believed its response had been inadequate and instructed the
jury that it could return a verdict “as to those portions of the
murder verdict upon which they unanimously agreed.” (Ibid.)
The court then provided the jury with separate verdict forms for
(1) guilt on the count; (2) degree of murder; and (3) firearm
enhancements. (Ibid.) Defense counsel did not object, though the
prosecutor “asked to place in the record that the legal basis for
the court’s decision was Penal Code section 1157.” (Ibid.)
“Defense counsel said nothing on the record at this point.” (Ibid.)
The jury subsequently returned a verdict of guilty on the
murder count, and findings of true on the firearm allegations. It
stated it was divided seven to five on the degree of murder,
however, and that future deliberations were unlikely to resolve
the impasse. (Avalos, supra, 37 Cal.3d at p. 223.) Both counsel
declined a jury poll, and the court entered the verdict. (Ibid.) At
the sentencing hearing, defense counsel emphasized that the
defendant had not been convicted of premeditated murder and
argued that the court should “make sure that it’s second degree.”
(Id. at p. 224.) The court subsequently invoked section 1157 and
deemed the conviction to be for second degree murder. (Ibid.) On
appeal, the defendant argued “for the first time that the trial
court committed error when it told the jury that it might return a
verdict which did not specify the degree of murder and then
applied section 1157 to fix the degree at second.” (Ibid.)
The Supreme Court agreed that the court erred by applying
section 1157. Relying upon and reiterating its previous decision
in People v. Dixon (1979) 24 Cal.3d 43 (Dixon), it explained that
section 1157 “‘should apply only to situations in which the jury
has neglected to fix the degree, and not to situations in which
26
express disagreement among the members of the jury on the
matter of degree has precluded it from achieving unanimity.’”
(Avalos, supra, 37 Cal.3d at p. 225.) The court observed that
section 1157 “‘used the word “failure” solely in the sense of
omission to perform and not in the alternative sense of inability
to achieve success,’” and that “a contrary conclusion would lead to
‘absurd results, in which a clear minority favoring a lesser degree
could effectively prevail over a clear majority favoring the greater
degree.’” (Id. at p. 226.)
The court further concluded, however, that the invited
error doctrine precluded reversal of the defendant’s conviction.
The court observed that “the court was led into error
by counsel for both the people and the defense, and . . .
the defense took full advantage of the tactical benefit made
available by the court’s error.” (Avalos, supra, 37 Cal.3d at p.
220.) The court concluded that “defense counsel’s actions taken
as a whole, and particularly his argument at the time of
sentencing, show that his lack of objection to the proposed
instruction was more than mere unconsidered acquiescence.
Counsel had participated in a discussion of the proper response to
the jury’s request for further instruction. He agreed to the
proposed instruction and made no objection to the verdict which
followed. At sentencing counsel urged the court to enter a verdict
in accord with the erroneous theory on which the instruction was
based. Although this argument came later in time than the
error, it shows that counsel had a deliberate tactical purpose for
accepting the instruction and the verdict based upon it. Counsel
thereby avoided subjecting defendant to a new trial at which he
might possibly have been convicted of a more serious offense than
second degree murder.” (Id. at p. 229.)
27
Avalos is virtually indistinguishable from the instant case.
Here, defense counsel agreed to the jury instructions stating that
murder was second degree unless the prosecution proved
otherwise. She did not object to the verdict forms, and expressly
agreed with the court’s responses to the jury’s numerous
questions. When the prosecutor raised Avalos the first time,
defense counsel equivocally said she “kind of” agreed with the
prosecutor that perhaps the jury should have been questioned
about a potential deadlock. However, when the prosecutor raised
the issue for a second and then a third time, defense counsel
agreed with the court that section 1157 would cure any infirmity
in the verdict. Even after the prosecutor raised the specter of a
possible mistrial, suggested making further inquiry of the jury if
necessary, and specifically invited defense counsel to take “an
opportunity to make a record one way or the other,” defense
counsel expressly declined to be heard on the issue. Taken as a
whole, particularly in light of counsel’s aggressive objections
throughout trial, self-described strategy of disputing “every single
thing in this case,” and the repeated, time-separated
opportunities counsel had to review the issue and make
objections, the record shows that counsel’s lack of objection on
this issue was more than mere unconsidered acquiescence.
Appellant contends there cannot have been a tactical
purpose behind defense counsel’s conduct, because “a hung jury is
preferable to a conviction.” We disagree. As the Avalos court
recognized, “the defense in fact made a tactical decision that the
erroneous instruction and the resulting verdict of second degree
murder would be more advantageous to the defendant than a
mistrial and subsequent retrial on the charge of first degree
murder.” (Id. at p. 228.) The tactical nature of that decision is
28
underscored here, where the jury split 11-1 in favor of first degree
murder, found appellant guilty of conspiring to commit murder
and attempted premeditated murder, and found true numerous
personal use firearm enhancements.
We accord great deference to tactical decisions by counsel,
which are generally not found reversible in the context of
ineffective assistance of counsel claims. (People v. Stanley (2006)
39 Cal.4th 913, 954.) To establish counsel was ineffective,
appellant must show both that trial counsel’s representation was
deficient because it fell below an objective standard of
reasonableness under prevailing professional norms and that he
was prejudiced such that but for counsel’s deficient performance,
the outcome of the proceeding would have been different. (People
v. Mai, supra, 57 Cal.4th at p. 1009.) We presume counsel acted
within the wide range of reasonable professional assistance
(ibid.) and appellant has given us no reason to depart from that
presumption here.
III. Gang and Gang-Related Enhancements (AB 333)
While this appeal was pending, the Governor signed AB
333 into law, amending section 186.22 and adding section 1109,
effective January 1, 2022. Appellant contends, and respondent
agrees, that the amendments AB 333 made to section 186.22
apply retroactively to this case. Appellant also contends that
section 1109, as enacted by AB 333, applies retroactively to this
case and compels a reversal of his convictions. Respondent
disputes this contention. We review the question of retroactivity
de novo. (In re David C. (2020) 53 Cal.App.5th 514, 519.)
We agree with the parties that the substantive
amendments to section 186.22 are retroactive and require the
jury’s findings on the gang allegations and firearm allegations
29
predicated thereon to be vacated. We remand the matter to
afford the prosecution the opportunity to retry these allegations,
should it choose to do so. We reject appellant’s remaining
contention concerning section 1109.
A. Amendments to section 186.22
As relevant here, section 186.22 provides enhanced
punishment for defendants convicted of a felony “committed for
the benefit of, at the direction of, or in association with a criminal
street gang, with the specific intent to promote, further, or assist
in criminal conduct by gang members.” (§ 186.22, subds. (b)(1),
(b)(4).) The version of section 186.22 in effect at the time of
appellant’s trial defined a “criminal street gang” as “any ongoing
organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts
enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e), having a common name or common
identifying sign or symbol, and whose members individually or
collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (Former § 186.22, subd. (f).) It defined “pattern of
criminal gang activity” as “the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of two or more of the following
[listed] 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).)
AB 333 narrowed both these definitions, effectively
heightening the prosecution’s burden to prove the enhancement
30
applies. (See People v. Tran (2022) 13 Cal.5th 1169, 1207 (Tran).)
Under the current version of section 186.22, a “criminal street
gang” is defined as “an ongoing, organized association or group of
three or more persons, whether formal or informal, having as one
of its primary activities the commission of one or more of the
criminal acts enumerated in subdivision (e) [a shorter list than
previously], having a common name or common identifying sign
or symbol, and whose members collectively engage in, or have
engaged in, a pattern of criminal gang activity.” (§ 186.22, subd.
(f), emphasis added.) The statute also more narrowly defines
“pattern of criminal gang activity” as “the commission of,
attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of, two or more of the
following 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 of the prior offense and
within three years of the date the current offense is alleged to have
been committed, the offenses were committed on separate
occasions or by two or more members, the offenses commonly
benefited a criminal street gang, and the common benefit of the
offense is more than reputational.” (§ 186.22, subd. (e)(1),
emphases added.)
In light of the amendments, “imposition of a gang
enhancement [now] requires proof of the following additional
requirements with respect to predicate offenses: (1) the offenses
must have ‘commonly benefited a criminal street gang’ where the
‘common benefit . . . is more than reputational’; (2) the last
predicate offense must have occurred within three years of the
date of the currently charged offense; (3) the predicate offenses
must be committed on separate occasions or by two or more gang
31
members, as opposed to persons; and (4) the charged offense
cannot be used as a predicate offense.” (People v. Lopez (2021) 73
Cal.App.5th 327, 345, quoting § 186.22, subds. (e)(1)-(2).) The
statute also sets forth examples “of a common benefit that are
more than reputational,” which include “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).)
The parties agree, and our Supreme Court has held, that
these changes ameliorate punishment and thus apply
retroactively to all cases not yet final as of the statute’s January
1, 2022 effective date. (See Tran, supra, 13 Cal.5th at pp. 1206-
1207, citing In re Estrada (1965) 63 Cal.2d 740 (Estrada).)
“When a substantive change occurs in the elements of an offense
and the jury is not instructed as to the proper elements, the
omission implicates the defendant’s right to a jury trial under the
Sixth Amendment, and reversal is required unless ‘it appears
beyond a reasonable doubt’ that the jury verdict would have been
the same in the absence of the error.” (Id. at p. 1207.) Here,
respondent concedes reversal is required, reasoning that the
evidence presented at trial failed to establish that the predicate
offenses commonly benefitted the gang in a way that was more
than merely reputational, as required by section 186.22 as newly
amended. We agree. On this record, reversal of the gang
enhancements is required, and the prosecution must be given the
opportunity to establish the additional elements on remand,
should it choose to do so.8 (See People v. Eagle (2016) 246
Cal.App.4th 275, 280.)
8 We note that the court struck punishment for each of the
gang enhancements. Should the prosecution successfully retry
32
The same rationale applies to the jury’s findings on the
section 12022.53, subdivision (e)(1) firearm allegations, which
require findings under section 186.22, subdivision (b). (See
People v. Lopez, supra, 73 Cal.App.5th at pp. 346-348.) Section
12022.53, subdivision (e)(1) provides for enhanced firearm
penalties for “any person who is a principal in the commission of
an offense” if the prosecution pleads and proves that (1) the
person violated section 186.22, subdivision (b), and (2) any
principal in the offense committed a firearm violation specified in
section 12022.53, subdivisions (b), (c), or (d). (§ 12022.53, subd.
(e)(1).) Here, the jury found section 12022.53, subdivision (e)(1)
allegations true on all four counts. Because this enhancement
depends on a finding that the principal was “convicted of a felony
committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members” as
set forth in section 186.22, subdivision (b) (§ 12022.53, subd.
(e)(1)(A)), the changes to section 186.22 made by AB 333 require
that the true findings on these enhancements, too, be vacated
and the matter remanded to the trial court.
We note, however, that with respect to all charges except
the murder of Orona, the jury separately found true allegations
that appellant personally and intentionally discharged a firearm
(count 2, conspiracy to commit murder) or “personally and
intentionally discharged a firearm . . . which proximately caused
bodily injury and death to Alexiz Orona” (counts 3 and 4,
attempted murder and shooting at an occupied vehicle). These
findings, which appellant does not challenge, remain intact.
the gang allegations, the court is not bound by these previous
sentencing choices.
33
B. Section 1109
In addition to amending section 186.22, AB 333 added
section 1109, which requires trial of gang enhancement
allegations to be bifurcated from trial of the underlying offenses if
the defendant so requests. (See § 1109, subd. (a).) Appellant
requested bifurcation here, but the trial court denied the request.
He now contends that his convictions must be vacated and the
offenses retried separately from the gang allegations, because
section 1109 applies retroactively under Estrada, supra, 63
Cal.2d 740. We agree with respondent that the exception
provided in Estrada does not apply to section 1109, and the
statute does not apply retroactively to this appeal. We further
conclude that even if section 1109 does apply retroactively, the
failure to bifurcate was harmless here.
Our Supreme Court has explained that Estrada
“established an exception to the general rule that no part of the
Penal Code is retroactive. (§ 3 [no part of the Pen. Code is
retroactive ‘unless expressly so declared’]; [citation].) In Estrada,
we held that ‘where [an] amendatory statute mitigates
punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter
punishment is imposed.’ [Citation.] [¶] . . . Estrada represents
‘an important, contextually specific qualification to the ordinary
presumption that statutes operate prospectively: When the
Legislature has amended a statute to reduce the punishment for
a particular criminal offense, we will assume, absent evidence to
the contrary, that the Legislature intended the amended statute
to apply to all defendants whose judgments are not yet final on
the statute’s operative date.’ [Citation.]” (People v. Hajek and Vo
34
(2014) 58 Cal.4th 1144, 1195-1196 (Hajek), overruled on another
ground in People v. Rangel (2016) 62 Cal.4th 1192.)
The Estrada presumption applies where an amended
statute mitigates or eliminates punishment for a criminal offense
or enhancement. (People v. Buycks (2018) 5 Cal.5th 857, 882;
Estrada, supra, 63 Cal.2d at pp. 743-744; Hajek, supra, 58
Cal.4th at p. 1196; see also People v. Wright (2006) 40 Cal.4th 81,
95–96 [Estrada applied to statute creating a new affirmative
defense]; People v. Babylon (1985) 39 Cal.3d 719, 721-722, 728
[Estrada applied to statute narrowing class of prohibited acts];
People v. Frahs (2020) 9 Cal.5th 618, 631 [Estrada applied to
statute that offered “a potentially ameliorative benefit for a class
of individuals”].)
The Courts of Appeal are currently split as to whether
section 1109 applies retroactively to nonfinal judgments, and the
Supreme Court declined to resolve the matter in People v. Tran,
supra, 13 Cal.5th at p. 1208. (Compare, e.g., People v. Montano
(2022) 80 Cal.App.5th 82, 105-108 [§ 1109 applies retroactively];
People v. Ramos (2022) 77 Cal.App.5th 1116, 1128-1131 [same];
People v. Burgos (2022) 77 Cal.App.5th 550, 564-568, rev. granted
July 13, 2022, S274743 [same]; with People v. Ramirez (2022) 79
Cal.App.5th 48, 65, rev. granted Aug. 17, 2022, S275341 [§ 1109
does not apply retroactively]; People v. Perez (2022) 78
Cal.App.5th 192, 207, rev. granted Aug. 17, 2022, S275090
[same].) We agree with the courts that have held Estrada does
not apply to section 1109.
Section 1109 does not reduce or eliminate punishment for
an offense or enhancement, provide a new affirmative defense to
a charged crime, or otherwise ameliorate the punishment for a
class of individuals. It modifies trial procedures for defendants
35
who have been charged with a gang enhancement and choose to
request a bifurcated trial. When used in an appropriate case,
section 1109 will require adjudication of a defendant’s guilt of an
underlying offense before further adjudicating “the question of
the truth of the [gang] enhancement.” (§ 1109, subds. (a)-(b).)
The Estrada presumption does not apply to this type of
procedural rule.
We are not persuaded otherwise by appellant’s alternative
contentions that section 1109 must be applied retroactively to
ensure equal protection of the laws and receipt of due process. As
appellant acknowledges, “[t]he instant case does not involve a
classification scheme in which persons, or classes of persons, are
expressly treated differently.” There is thus no basis to apply
strict scrutiny here, as appellant urges. Moreover, there is a
rational basis for applying section 1109 prospectively:
“[r]equiring retrial of the substantive offenses in every case in
which there were gang allegations would be both disruptive and
wasteful of judicial resources.” (People v. Burgos, supra, 77
Cal.App.5th at p. 575 (dis. opn. of Elia, J.).) Appellant claims his
due process rights were violated by a “unitary trial in which
prejudicial gang evidence [was] presented.” Yet the court
expressly instructed the jury that it could consider the gang
evidence only for limited purposes, and could “not conclude from
this evidence that a defendant is a person of bad character or
that he has a disposition to commit crime.” (CALCRIM No.
1403.) We presume the jury followed this limiting instruction
regarding its consideration of the gang evidence, which appellant
has not challenged. (See People v. Ramos, supra, 77 Cal.App.5th
at p. 1132; People v. Burgos, supra, 77 Cal.App.5th at p. 574 (dis.
opn. of Elia, J.).)
36
In any event, the failure to bifurcate gang allegations does
not constitute structural error. (See Tran, supra, 13 Cal.5th at p.
1208.) Even if we were to apply section 1109 retroactively, we
would conclude the failure to bifurcate the gang allegations was
harmless under both the standards of People v. Watson (1956) 46
Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18,
24.
First, as the trial court recognized when it denied
appellant’s motion to bifurcate, a large portion of the gang
evidence would have been admitted in the first stage of any
bifurcated trial. Such evidence was relevant at minimum to
explain appellant’s relationship and history with Quintero and
Orona, his relationship with alleged coconspirators Prado and
Ramirez, and his motive for committing the crimes.
Second, any gang evidence that was introduced for
purposes other than establishing motive was relatively sanitized.
To prove that Sur Trece was a criminal street gang within the
meaning of former section 186.22, the prosecution introduced
certified court dockets in which other Sur Trece members had
been convicted of predicate offenses no more serious than those
charged here, which did not bear on appellant’s criminal conduct.
Third, as noted above, the jury was instructed not to use any
gang evidence to conclude appellant had bad character or was
disposed to commit crime. Absent any showing by appellant to
the contrary, we presume the jurors followed these instructions.
(People v. Krebs (2019) 8 Cal.5th 265, 335; see also People v.
Ramos, supra, 77 Cal.App.5th at p. 1132 [“the jury was given a
limiting instruction regarding its consideration of the gang
evidence, which we presume it followed”].)
37
Finally, there was compelling evidence of appellant’s guilt
beyond use of gang evidence in this case. Approximately one year
after his brother was killed, appellant began actively hunting for
Quintero, whom he believed was the assailant. Text messages
between appellant and Quintero and appellant and his
coconspirators documented these efforts. Cell phone data, along
with eyewitness testimony and photographic evidence, placed
him not only at the scene of the shooting but also at Quintero’s
former residence and Orona’s Buena Park home. A gun used in
the Buena Park shooting was found during a search of appellant’s
home, and ballistics evidence from the fatal shooting was
consistent with ammunition found in appellant’s home. In light
of the foregoing, we find no reasonable probability of a different
result in a bifurcated trial, and find any purported error
harmless beyond a reasonable doubt.
IV. Sentence for Murder (§ 190, subd. (d))
As discussed above, appellant was found guilty of second
degree murder. Pursuant to section 190, subdivision (a), the
default punishment for second degree murder is 15 years to life.
(§ 190, subd. (a).) Section 190, subdivision (d) increases the
punishment for second degree murder to 20 years to life “if the
killing was perpetrated by means of shooting a firearm from a
motor vehicle, intentionally at another person outside of the
vehicle with the intent to inflict great bodily injury.” (§ 190,
subd. (d).) The trial court imposed a sentence of 20 years to life
pursuant to section 190, subdivision (d), citing its “recollection
[that] defendant was inside the car when he fired those shots.”9
9 The court appears to have considered section 190,
subdivision (d) sua sponte; it was not mentioned in the
prosecutor’s sentencing memorandum.
38
Defense counsel objected that was “not a jury finding,” but the
court overruled the objection.
Appellant now contends the court erred in imposing the
heightened sentence, because no section 190, subdivision (d)
allegation was pled in the amended information or found true by
the jury. Respondent acknowledges “[t]he information did not
mention section 190, or include a specific allegation as to count 1
that the killing was perpetrated by means of shooting a firearm
from a motor vehicle,” “[t]he jury instruction as to second degree
murder did not include an allegation that appellant fired from a
motor vehicle,” and “the verdict form as to count 1 did not
mention an allegation regarding shooting from an occupied motor
vehicle.” It nevertheless contends any error was harmless beyond
a reasonable doubt. Upon de novo review of this legal question,
we agree with appellant that the sentence was improper. (See
People v. Tua (2018) 18 Cal.App.5th 1136, 1140 [unauthorized
sentence], People v. Cromer (2001) 24 Cal.4th 889, 894.)
“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466,
490.) Similarly, any fact that increases the mandatory minimum
sentence also must be submitted to a jury and proved beyond a
reasonable doubt. (Alleyne v. United States (2013) 570 U.S. 99,
103.) “As a rule, all sentence enhancements ‘shall be alleged in
the accusatory pleading and either admitted by the defendant in
open court or found to be true by the trier of fact.’” (People v.
Anderson (2020) 9 Cal.5th 946, 953, quoting § 1170.1, subd. (e).)
Failing to submit a sentencing factor to the jury is not structural
error, however, and does not require reversal if the error is found
39
to be harmless beyond a reasonable doubt. (Washington v.
Recuenco (2006) 548 U.S. 212, 222.)
Here, there is no dispute that the jury was not asked to find
and did not find that appellant shot from a motor vehicle.
Respondent contends this omission was harmless because “the
information put appellant on notice, the jury instructions
specifically advised appellant he faced a first degree murder
conviction if the murder was committed from a motor vehicle, [ ]
there was no dispute that the shooting occurred from a motor
vehicle,” and “the jury found true the allegation that a principal
personally discharged a firearm causing death.” We reject these
contentions.
First, as discussed above, the jury’s finding that a principal
discharged a firearm and caused death is no longer valid in light
of AB 333, a point respondent conceded. It is unclear in any
event how a finding that a principal discharged a firearm implies
or even suggests that appellant shot a firearm from a motor
vehicle. Second, the jury was instructed that appellant would be
“guilty of first degree murder if the people have proved that the
defendant murdered by shooting a firearm from a motor vehicle.”
(CALCRIM No. 521.) As discussed above, the jury did not find
appellant guilty of first degree murder. Absent some showing to
the contrary, we presume the jury followed the instructions and
did not fail to convict appellant of first degree murder despite
finding he shot a firearm from a motor vehicle. (People v. Krebs,
supra, 8 Cal.5th at p. 335.) Moreover, the instruction only gave
appellant notice that he could be convicted of first degree murder,
not that his sentence for second degree murder could be
enhanced.
40
Third, the information generically charged appellant with
murder; no degree was specified. Respondent asserts without
explanation that such a charge “was adequate to advise appellant
his sentence could be increased if found guilty of second degree
murder and to have fired from a motor vehicle, and also that such
finding would elevate the crime to first degree murder.”
Respondent cites People v. Valenzuela (2011) 199 Cal.App.4th
1214, 1237-1238 (Valenzuela), but the case is distinguishable.
In Valenzuela, the defendant was charged with first degree
murder. (See Valenzuela, supra, 199 Cal.App.4th at p. 1217.)
During discussion of jury instructions, the court advised the
parties it planned to instruct on the lesser included offense of
second degree murder. (Id. at 1236.) The court noted that it had
also added an instruction for section 190, subdivision (d), and
explained, “I understand that normally it’s something that would
have to be pled and proved in the information. But because we’re
dealing with the lesser-included offense and what was charged
originally, was first-degree murder, obviously, the allegation
wasn’t there. I assume neither of you has any objection to me
instructing on it or including it in the verdict form.” (Ibid.)
Defense counsel expressly stated, “No objection, your honor.”
(Ibid.) The jury found the defendant guilty of second degree
murder and found that he fired from a motor vehicle. The trial
court sentenced him to 20 years to life pursuant to section 190,
subdivision (d). (Id. at p. 1237.) The defendant then challenged
the section 190, subdivision (d) allegation on appeal, arguing he
lacked notice because it was not charged in the information. (Id.
at p. 1236.) The appellate court rejected this argument, finding
there was no question that defendant was on notice that he could
be convicted of a lesser offense, and that his counsel plainly
41
consented to the jury’s consideration of the special allegation.
(See id. at pp. 1237-1238.)
Here, the generic murder charge certainly gave defendant
notice that he could be convicted of second degree murder. No
enhancements related to second degree murder were alleged,
however, and counsel did not consent to asking the jury to make
any findings pursuant to section 190, subdivision (d). The jury
also made no such findings, further distinguishing this case from
Valenzuela.
Respondent finally contends the error is harmless because
it was undisputed that appellant fired from a motor vehicle.
Respondent points to appellant’s opening statement, in which his
counsel asserted, “Now, the truth is the instant Valentin
Quintero, sitting in some third party’s car with no care about
them, same as Alexiz, orders and tells Alexiz to shoot, and she
does shoot, the occupants of the white car shoot back in self-
defense.” It also points to her closing argument, in which she
contended, “the people in the white car had every right to shoot
back.” Neither opening statements nor closing arguments are
evidence, however, and stating that appellant was “in” or an
“occupant of” the car does not preclude him stepping outside the
stationary vehicle. Indeed, the actual evidence presented on the
point was unclear. While it certainly could be inferred from
Moreno’s testimony that the shots were fired from inside the
parked car as she drove past, she testified that she did not look
toward the car as the shots were being fired. Prado told
detectives that appellant “hopped out” or “came out the car
shooting” after shots were fired at them. The jury was not
required to believe this statement, but it certainly could have.
42
In short, on the record before us, we cannot conclude that
the jury’s failure to find that appellant shot from a motor vehicle
was harmless beyond a reasonable doubt. We accordingly order
the sentence on count 1 modified from 20 years to life to 15 years
to life.
V. Sentence for Shooting at an Occupied Vehicle (SB
567 & AB 124)
Appellant contends his upper term sentence on count 4 for
shooting at an occupied vehicle may no longer be proper in light
of recent, retroactive amendments to section 1170. Respondent
concedes the statutory changes are retroactive and remand for
resentencing is necessary.10 After a de novo review, we agree.
(See In re David C., supra, 53 Cal.App.5th at p. 519.)
“Effective January 1, 2022, our determinate sentencing
law, section 1170, was amended in several fundamental ways.
(See Sen. Bill No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch.
731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats.
2021, ch. 695, § 5.)” (People v. Flores (2022) 73 Cal.App.5th 1032,
1038 (Flores).) SB 567 amended section 1170, subdivision (b) to
authorize determinate sentences above the middle term “only
when there are circumstances in aggravation of the crime that
justify the imposition of a term of imprisonment exceeding the
middle term, and the facts underlying those circumstances have
been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
10 We note that appellant’s opening brief discusses only SB
567, while respondent’s brief discusses only AB 124. In his reply
brief, appellant acknowledges that both bills contemporaneously
amended section 1170, and notes that the parties agree remand
for resentencing is necessary.
43
court trial.” (§ 1170, subd. (b)(2).) Additionally, it added
language requiring aggravating circumstances to be bifurcated
from trial of the charges, and mandates that the jury “not be
informed of the bifurcated allegations until there has been a
conviction of a felony offense.” (Ibid.)
Meanwhile, AB 124 made a low-term sentence
presumptively appropriate under specified circumstances,
including where a defendant was a “youth” as defined section
1016.7, subdivision (b) at the time of the offense, unless the court
finds that imposition of the low term would be contrary to the
interests of justice. (See § 1170, subd. (b)(6)(B); People v. Gerson
(2022) 80 Cal.App.5th 1067, 1095 (Gerson).) Section 1016.7,
subdivision (b) defines “youth” as “any person under 26 years of
age on the date the offense was committed.” Appellant was 20
years old on April 14, 2017.
The parties agree that the changes SB 567 and AB 124
made to section 1170 apply retroactively because they are
potentially ameliorative with respect to punishment and
appellant’s conviction is not final. We agree. (Flores, supra, 73
Cal.App.5th at p. 1039; Gerson, supra, 80 Cal.App.5th at p. 1095;
see Estrada, supra, 63 Cal.2d 740.) Upon resentencing appellant,
the trial court should consider the ameliorative changes effected
by SB 567 and AB 124.
VI. Fines and Fees
At sentencing, the court imposed a $40 court operations
assessment on each count (§ 1465.8), a $30 criminal conviction
facilities assessment on each count (Gov. Code, § 70373), and the
minimum restitution fine of $300 (§ 1202.4, subd. (b)(1)). It also
imposed and stayed the minimum parole revocation fine of $300.
(§ 1202.45, subd. (a).) The court told appellant, “Those
44
mandatory fines, fees can be collected from your prison earnings.”
Appellant’s counsel, citing People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas) then asserted that appellant lacked
the ability to pay the fines and fees, particularly in light of the
“large amount of actual restitution” she expected the court to
impose after a future victim restitution hearing. She accordingly
requested that the court stay the fines and fees. The court denied
the request “at this time,” and told counsel “we can review it if it
turns out that he can’t earn any sort of income while he’s
incarcerated. But we’ll see.”
Appellant now contends the court violated his federal and
state due process and equal protection rights by imposing the
fines and fees without first finding he had the ability to pay
them. He further contends the prosecution bore the burden of
proving he had the ability to pay, and that the absence of such
proof requires the assessments to be stricken and the restitution
fine suspended. Alternatively, he contends that imposing the
fines and fees without considering his ability to pay rendered
them unconstitutionally excessive. We reject these contentions.
In Dueñas, our colleagues in Division Seven concluded the
imposition of fines and fees on an indigent unhoused mother who
lacked the ability to pay was an unconstitutional violation of her
due process rights. (Dueñas, supra, 30 Cal.App.5th at p. 1160.)
“Dueñas held that it violates due process under the federal and
state Constitutions to impose . . . court operations and facilities
fees without first determining the convicted defendant’s ability to
pay them. [Citation.] In addition, ‘to avoid serious constitutional
questions’ raised by the statutory restitution scheme, [Dueñas
held that] the [trial] court must stay execution of the mandatory
restitution fine unless the court determines that the defendant
45
has the ability to pay it.” (People v. Taylor (2019) 43 Cal.App.5th
390, 397.)11
Even under Dueñas, however, fines and fees are properly
imposed if a defendant has the ability to pay them. We follow the
case law holding that a defendant bears the burden of showing he
or she lacks an ability to pay. (E.g., People v. Castellano (2019)
33 Cal.App.5th 485, 490 [“a defendant must in the first instance
contest in the trial court his or her ability to pay the fines, fees
and assessments to be imposed and at a hearing present evidence
of his or her inability to pay the amounts contemplated by the
trial court”]; People v. Kopp, supra, 38 Cal.App.5th at p. 96.) We
review the factual determination of ability to pay for substantial
evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
““‘Ability to pay does not necessarily require existing
employment or cash on hand.” [Citation.] “[I]n determining
whether a defendant has the ability to pay a restitution fine, the
court is not limited to considering a defendant’s present ability
but may consider a defendant’s ability to pay in the future.”
[Citation.] This include[s] the defendant’s ability to obtain prison
wages and to earn money after his release from custody.’” (People
v. Aviles (2019) 39 Cal.App.5th 1055, 1076.) Here, the trial court
11 The Supreme Court is currently considering whether a
court is required to assess a defendant’s ability to pay before
imposing fines and fees and, if so, which party bears the burden
of proof on that issue. (People v. Kopp, (2019) 38 Cal.App.5th 47,
96, review granted Nov. 13, 2019, S257844, Supreme Court Mins.
Nov. 13, 2019 [“The issues to be briefed and argued are limited to
the following: Must a court consider a defendant’s ability to pay
before imposing or executing fines, fees, and assessments? If so,
which party bears the burden of proof regarding defendant’s
inability to pay?”].)
46
inferred that appellant had the ability to pay the fines and fees
imposed upon him from his probable future wages, including his
prison wages. That was a permissible inference supported by the
minimal evidence before the court; appellant, who is currently 26
years old, has no identified infirmities precluding him from
earning wages during his imprisonment and thereafter. The
court also expressed willingness to revisit the issue if it
transpired that appellant was unable to earn prison wages, which
can range from $12 to $56 per month. (See ibid.) Any error in
the court’s failure to provide appellant an ability-to-pay hearing
based on his unsupported assertion of indigency accordingly is
harmless beyond a reasonable doubt. (See People v. Johnson
(2019) 35 Cal.App.5th 134, 139-140, citing Chapman, supra, 386
U.S. at p. 24.)
DISPOSITION
The jury’s findings on the section 186.22 and 12022.53,
subdivision (e)(1) enhancement allegations are vacated, and the
related sentences thereon are stricken. The sentence on count 1
is also vacated, as is the sentence on count 4. On remand, the
prosecution shall have the option to retry appellant on the section
186.22 and 12022.53, subdivision (e)(1) enhancements, and after
the status of those enhancements is resolved (either by no retrial
or by retrial and final resolution), the trial court shall resentence
appellant according to applicable law. In all other respects, the
judgment is affirmed.
47
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
48