People v. Perez CA5

Filed 12/7/22 P. v. Perez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082332
Plaintiff and Respondent,
(Super. Ct. No. PCF317388A)
v.
ELIJAH ELOJIO PEREZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Melinda
Myrle Reed, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren
Indermill, Robert K. Gezi, and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
Defendant Elijah Elojio Perez was convicted of several crimes arising out of an
alleged gang-related attack on a dropout of the Norteño gang. We accept the Attorney
General’s concession that the gang-related conviction and enhancements must be
reversed pursuant to Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill
333), but otherwise reject defendant’s contentions and affirm the remainder of the
judgment.
BACKGROUND
In an information filed September 22, 2015, the Tulare County District Attorney
charged defendant with willful, deliberate and premeditated attempted murder (count 1;
Pen. Code,1 §§ 187, 664), assault with a deadly weapon by means of force likely to cause
great bodily injury (count 2; § 245, subd. (a)(1)), and active participation in a criminal
street gang (count 3; § 186.22, subd. (a).) The information further alleged that the
attempted murder and assault with a deadly weapon were committed for the benefit of, at
the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
Finally, the information alleged a prior prison term allegation under section 667.5, former
subdivision (b).
Defendant admitted the prior prison term. A jury convicted him on all three
charges and the gang enhancements.
The court sentenced defendant to 15 years to life on count 1, to run consecutively
to his sentence in another case. The court also sentenced defendant to stayed (§ 654)
counts of four years on count 2, plus five years for the gang enhancement, and three years
on count 3.
1Undesignated statutory references are to the Penal Code
2.
FACTS
Testimony of Jose Alcantar
When he was younger, Jose Alcantar2 was jumped into a gang called the East Side
Poros, which is a Northern (i.e., Norteño) gang. Jose remained in the gang for eight or
nine years. By the time of his trial testimony in February 2016, Jose claimed his gang
membership was a long time ago and that he had made a mistake.
Jose said it is “pretty bad” for someone to leave a gang because the rule is that
when “[y]ou are in, you are in.” Gang members take the issue “very seriously” and
consider those who drop out to be “enemies.” Dropouts are sometimes attacked, but
more often are ignored.
Jose said his fellow gang members “probably” told him about gang activities, but
he does not remember because he had alcohol problems. When Jose left the gang, he
relocated and tried to stay away from “everyone.”
On April 28, 2015, Jose went to meet his friend Beto around 9:00 p.m. at an alley
in Porterville. As Jose was driving his truck down the alley, he saw “a lot of people,” and
it seemed liked a party. The people were “[d]rinking, mellowing, just hanging out.”
Beto was not there. Jose stopped in his truck and stayed for a couple of minutes. He got
out of the truck, went to a little house nearby, and smoked a joint for “probably about 20
minutes.”3 As he was about to leave, he was attacked by “like ten scum bags.”4 He was
stabbed nine or 10 times. As he ran away, he noticed he was bleeding “a lot” from the
side of his chest.
Jose was hospitalized for about five days and underwent surgery as a result of his
injuries. He has several scars from the attack.
2We will refer to Jose and his brother Cesar by their first names to distinguish one from
the other.
3Elsewhere the residence is referred to as an “apartment” rather than a “little house.”
4Later, he estimated there were 15 assailants.
3.
Statement to Police
Jose told Detective Tyson Tashiro that a man named Elijah was one of the
attackers. Jose said he knew Elijah from “prior gang association.”
Jose also said a man with the moniker “B-rad” was involved in the attack. Jose
said he had a prior conflict with B-rad because Jose was known as a “dropout” or a “rat.”
Jose said that while he was in the apartment, “some chubby dude” came in and
asked him, “‘Hey can I talk to you real quick?’” B-rad and defendant were outside with a
group of people. Jose said, “What’s up?” and the group surrounded him. Defendant was
standing in the center and asked Jose what his name was. B-rad asked Jose if he
remembered who he was. Jose said he remembered. The group of about 15 or 20 people
then attacked Jose, hitting and punching him. Eventually, a “young dude” wearing a red
shirt stabbed him. The attackers were yelling out, “West Side.”
Defendant was “the main one” involved in the attack. Defendant was telling the
group to attack Jose. When Jose took off running, defendant told people nearby, “‘Stop
him, stop him.’”
Detective Tashiro interviewed Jose again the next day and showed him a
photographic lineup. Jose identified defendant as the “Elijah” who had been involved in
his attack. Jose also identified codefendant Albert Garcia as “B-rad.”5
Additional Trial Testimony of Jose Alcantar
At trial, Jose testified he did not remember who stabbed him. Nor did he
remember telling police that one of the individuals involved was named Elijah. He also
testified he did not remember telling police he had connections with an individual named
“B-rad.”
Jose testified he did not remember viewing or signing a photographic lineup.
However, he recognized the signature on a lineup presented by the prosecutor as his own.
5Albert Garcia suffered several convictions as a result of this incident, which we affirmed
in our nonpublished opinion in People v. Garcia (Jan. 22, 2019, F073921).
4.
He admitted he did not want to come to court and had to be arrested and compelled to
come to court.6
Jose denied telling police that B-rad had previously accused him of being a rat.
However, he acknowledged that if he had been accused of being a rat, that would make
him subject to attack by his gang. He would have had to leave the gang.
Jose claimed he did not even remember speaking to police, due to his prior heavy
marijuana use.
Detective Tyson Tashiro
When Detective Tyson Tashiro initially tried to talk to Jose after the attack, Jose
was “loopy, in and out” and was in a lot of pain. Jose was reluctant to talk to him.
However, he eventually did speak with Tashiro as described above.
Detective Tashiro also met defendant about a month later. He matched the
description Jose had given him for the Elijah involved in the attack with the description
of defendant.
Detective Tashiro testified B-rad had tattoos of “T” and “C” on his right and left
arms, respectively. Northern gang members often have “T.C.” tattoos to reflect their
loyalty and affiliation with the Tulare County Northern gang clique.
Christina D. and Megan D.
Christina D. testified she lived in a trailer with her boyfriend Gerald and a man
named Elijah.7 Elijah did not respect her home and would play music loudly.
On April 28, Jose walked through Megan D.’s house even though she did not
know him. Jose went to Christina’s trailer nearby. Eventually, Jose left.
6Later testimony clarified that Jose had to be compelled to testify in earlier proceedings
in this case, but not for his trial testimony.
7Other testimony establishes Gerald’s last name is Salas. An investigator testified that he
attempted to locate Salas to obtain his testimony for trial but was unable to do so after almost
three months of searching.
5.
Christina told police she saw 20 individuals surrounding Jose outside. When
asked what she saw next, Christina said she did not see exactly what happened, but that
Jose was attacked. She said her roommate, Elijah, seemed to be leading the attackers.
Christina believed Jose was stabbed and then ran down the driveway as the group chased
him. In a photographic lineup following the incident, Christina identified a photograph
of defendant as the “Elijah” she witnessed in the crime.
At trial, however, Christina denied telling Detective Ward that she saw Jose
surrounded by 20 individuals. When asked if she told Ward that Jose had been stabbed
and fled on foot, Christina testified: “I don’t know.” When asked if she told Ward that
Elijah had “started it,” Christina testified: “I don’t know.” Christina also denied seeing
Elijah in the courtroom at trial.
Megan D. also saw Jose being hit and fall to the floor. A lot of the people in the
crowd were wearing red clothing. Jose then “took off.” Megan did not see anyone get
stabbed. Megan testified defendant was present in the crowd at the time, but she could
not tell what he or any of the other people around were doing.
During the law enforcement investigation, Megan was unwilling to meet with
Detective Tashiro at her residence because gang members were possibly watching.
Tashiro scheduled a meeting with Megan at a different location, but she did not show up.
Tashiro was not able to contact Megan thereafter. Megan was subpoenaed but failed to
contact Tashiro for court arrangements. She was taken into custody and brought to court.
Megan was scared.
Tina G.
Tina G. has a child with defendant. On June 28, 2013, Tina told a sheriff’s deputy
that defendant had threatened her. Tina told the deputy that defendant was possibly a
Northern gang member. While they were speaking, defendant sent her a picture via text
message of him making gang signs. The picture, which was later admitted into evidence,
6.
depicted defendant “throwing out gang signs with a ‘W’ and ‘S.’” The deputy testified
that his training and experience indicated the sign represented “West Side.”
Gang Expert
Detective Lancelot Kirk testified as a gang expert for the prosecution. The
Northerners or Norteños is a gang active in Tulare County. It is the largest Hispanic gang
in Northern California, with a presence in virtually every community in Northern
California.
In Porterville, the Norteño gang has three “cliques” or “subsets”: the East Side
Poros (or East Side Varrios Poros), the Varrios Centro Poros, and the West Side Poros.
Above the “clique” level, Norteño leaders coordinate and keep them together as a gang.
The leader of Porterville Norteños at the time of the present incident was named Pedro
Sanchez, also known as “Pistol Pete.”
The symbol of the Norteños is the number 14, referring to the letter “N” as in
Nuestra Familia or Norteño. The colors of the Norteño gang are red, black, and white.
One of the rules of the Norteño gang is that members must remain members for
life and never drop out. Becoming a dropout is “completely unacceptable” to the
Norteño gang. It is expected that active Norteños will punish any dropout they come
across.
DISCUSSION
I. The Evidence Adduced at Trial Concerning Predicate Offenses Failed to
Satisfy Requirements Subsequently Enacted by Assembly Bill 333
A. Background
Detective Kirk testified about a robbery he investigated that was committed by
other Norteño gang members in June 2009. The corresponding felony complaint
reflected the robbery was committed on June 8, 2009. Kirk also testified about a robbery
committed by Norteños in April 2011.
7.
Justin H. testified that on June 11, 2012, several males approached him saying this
was “their street” and to “F off.” The males called him “Peckerwood.” They threw
bottles at him and stabbed him with an ice pick. Defendant was one of the males Justin
was fighting with. However, defendant was not the person who stabbed him.
B. Concession
In the initial respondent’s brief, the Attorney General argued the current offense
plus the 2012 incident involving Justin H. satisfied the predicate offense requirements of
the gang statute. In subsequent briefing, the Attorney General now concedes that under
Assembly Bill 333, the current offense may no longer be used to establish the predicate
offense requirements, that reversal of the substantive gang offense and enhancements is
required, and that defendant may be retried.8 Defendant requests that we accept this
concession, which we do.
We reverse both the gang offense and gang enhancements, and defendant may be
retried on remand. (See People v. Vasquez, supra, 74 Cal.App.5th at p. 1033.)
II. Sufficient Evidence Supported Jury’s Findings of Intent to Kill and
Premeditation/Deliberation
Defendant contends there was insufficient evidence of intent to kill and
premeditation/deliberation.
8“While defendant’s appeal was pending, the Legislature enacted Assembly Bill 333, the
STEP Forward Act of 2021, which, in part, amends section 186.22 to impose new substantive
and procedural requirements for gang allegations. Assembly Bill 333 … ‘redefines “pattern of
criminal gang activity” to require that the last of the predicate 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,” and that the predicate 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 offenses is more than reputational.” [Citation.]’ [Citation.] ‘In addition, the
currently charged offense cannot be used as a predicate offense under the amendments’ made by
Assembly Bill 333.” (People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032.) The legislation
went into effect on January 1, 2022.
8.
A. Applicable Law
“In reviewing the sufficiency of evidence to support a conviction, we review the
entire record to determine whether there is reasonable and credible evidence such that a
reasonable trier of fact could find defendant guilty beyond a reasonable doubt. [Citation.]
We view the evidence and draw all reasonable inferences therefrom in favor of the
judgment. [Citation.] We do not reevaluate witness credibility nor do we reweigh the
evidence. [Citation.] The same standard of review applies to prosecutions relying upon
circumstantial evidence of guilt.” (People v. Ramos (2011) 193 Cal.App.4th 43, 47.)
“‘“Even where, as here, the evidence of guilt is largely circumstantial, our task is
not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the
evidence might ‘“‘be reasonably reconciled with the defendant’s innocence.’”’”’”
(People v. Pettigrew (2021) 62 Cal.App.5th 477, 490–491.) “‘“If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.”’” (Id. at p. 491.)
“Evidence of intent to kill is usually inferred from defendant’s acts and the
circumstances of the crime.” (People v. Ramos, supra, 193 Cal.App.4th at p. 48.)
Reviewing courts consider a number of factors in determining whether there was
sufficient evidence of deliberation and premeditation, including planning activity, motive,
and the manner in which the crime was committed. (People v. Pettigrew, supra, 62
Cal.App.5th at p. 492.)
B. Analysis
Evidence favorable to the judgment supported the following version of events.
The Norteño gang expects its members to punish any dropout they come across.
Jose had a prior conflict with a member of the Norteño gang because he was known as a
dropout.
9.
One day, Jose was lured outside to a group of 15 to 20 people who quickly
surrounded him. Defendant, a Norteño, was the apparent leader of the group. The group
included at least one other known Norteño. Many of the people were wearing red, the
color of the Norteño gang, and the group was yelling out, “West Side.”
B-rad, the Norteño with whom Jose had a prior conflict over his dropout status,
asked Jose if he remembered who he was. Defendant, the “main one,” who was standing
at the center, told the group to attack Jose. The group brutally attacked Jose, punching
and stabbing him. When Jose tried to escape, defendant asked people nearby to stop him.
Jose sustained serious injuries and was drifting in and out of consciousness when
he made it to the front porch of his brother Cesar’s home. His injuries necessitated
surgery and a five-day hospitalization.
These facts support several relevant inferences the jury could have reasonably
accepted. First, that sometime before Jose was lured outside, defendant planned with the
group to conduct a gang-related physical attack on Jose because he was a dropout.9 Such
a finding would in turn support an inference that defendant, as an apparent leader of the
group, would have directed, or at least known, how the attack would occur—including
the usage of a knife.10 Defendant’s efforts to stop Jose from escaping after the stabbing
are also consistent with such a conclusion.
9Defendant posits that “the mere fact a number of people were outside in the area does
not indicate planning activity” because a group of people were congregated in the area when the
victim arrived. But we have more than the mere fact a number of people were outside in the
area; we also know that the group quickly surrounded Jose after he was called outside by an
individual. This circumstance certainly supports an inference that the attack was planned, even if
only minutes before it began.
10Defendant counters that this reasoning is “speculation.” Not so.
“[W]hether evidence ‘raises’ or ‘supports’ a particular inference is a matter of
probability. Relevant evidence increases the apparent probability a particular fact is true. Some
evidence increases that apparent probability greatly, and other evidence does so slightly. There
is a point on this spectrum above which the probabilistic connections between the evidence and
proposed inference are deemed ‘reasonable’ and below which weaker probabilistic connections
10.
This evidence and chain of inferences clearly support findings of intent to kill and
premeditation/deliberation. Defendant tried to stop Jose from escaping even after he
sustained substantial injuries and stab wounds. A jury could reasonably conclude that
defendant was not content with injuring Jose and wanted him dead. The inference that
the group, including defendant, planned the attack coupled with the near-deadly force
used in the attack and the attempt to prevent escape, supports a finding of
premeditation/deliberation.11 (See People v. Pettigrew, supra, 62 Cal.App.5th at p. 492
[evidence of planning and manner of attack is pertinent to sufficiency of evidence of
premeditation/deliberation].)
Defendant says there is “no evidence” he advised the use of a knife, had advanced
knowledge of its use, or shared the knife-wielder’s intent. Not so. While there is
(unsurprisingly) no direct evidence of defendant’s knowledge or intent—such as
defendant testifying that he knew and intended that a knife would be used—there is
circumstantial evidence to that effect, as summarized above.
are deemed ‘speculation’ or ‘conjecture.’ (Evid. Code, § 600, subd. (b) [an inference is a
deduction of fact that may logically and ‘reasonably’ be drawn from another fact].) In this way,
the law distinguishes between facts that can ‘logically and reasonably be drawn’ from the
evidence [citation] versus evidence which ‘merely raises a possibility’ a particular fact is true.
[Citation.] The former is called a reasonable inference; the latter is called speculation and is ‘not
a sufficient basis for an inference of fact.’” (People v. Bell (2020) 47 Cal.App.5th 153, 180.)
That defendant would know the particulars of the attack—including the usage of a
knife—is an inference that can be “logically and reasonably” drawn from the facts that (1)
defendant was an apparent leader of the group which comprised at least some Norteños, (2) the
attack was likely planned at least some point in advance given that Jose was lured outside, and
(3) defendant tried to stop Jose’s escape even after the stabbing. Of course, this evidence does
not prove the inference “to a certainty,” but that is not required. (People v. Bell, supra, 47
Cal.App.5th at p. 180.) Because the inference here can be logically and reasonably drawn from
the evidence, it is not speculation.
11Defendant acknowledges there was evidence of motive but contends that is not
independently sufficient to establish premeditation/deliberation. As summarized herein, there
was substantial evidence beyond motive.
11.
Defendant discounts the evidence he tried to prevent Jose from escaping,
contending there was “no evidence” he knew Jose had been stabbed. Again, while there
is no direct evidence of defendant’s knowledge, there was circumstantial evidence
supporting an inference that he knew. The evidence that defendant was himself attacking
Jose and was, therefore, in close proximity to him when he was stabbed, raises an
inference that defendant saw the stabbing or its after-effects.
It is not dispositive that some of the circumstances might point the other way. For
example, defendant argues that the manner of attempted killing lacked “particularity and
exactitude” but instead was more “frenzied.” But the jury’s verdict was supported by the
planning and motive evidence. The fact that there were some aspects of the evidence that
could be reconciled with a contrary finding is immaterial on substantial evidence review.
III. Hearsay and Confrontation Clause Issues
Defendant contends testimonial hearsay was admitted at trial in violation of the
confrontation clause.
A. Applicable Law
The Sixth Amendment guarantees a defendant the right “to be confronted with the
witnesses against him.” (U.S. Const., 6th Amend.) The constitutional right refers to
“witnesses,” meaning those who “‘bear testimony.’” (Crawford v. Washington (2004)
541 U.S. 36, 51.) As a result, testimonial statements of witnesses absent from trial are
admissible “only where the declarant is unavailable, and only where the defendant has
had a prior opportunity to cross-examine.” (Id. at p. 59.)
However, “[g]ang experts, like all others, can rely on background information
accepted in their field of expertise under the traditional latitude given by the Evidence
Code. They can rely on information within their personal knowledge, and they can give
an opinion based on a hypothetical including case-specific facts that are properly
proven.” (People v. Sanchez (2016) 63 Cal.4th 665, 685 (Sanchez).) “‘In addition to
12.
matters within their own personal knowledge, experts may relate information acquired
through their training and experience, even though that information may have been
derived from conversations with others, lectures, study of learned treatises, etc.’
[Citation.] ‘[A]n expert’s testimony concerning his general knowledge, even if
technically hearsay, has not been subject to exclusion on hearsay grounds.’” (People v.
Valencia (2021) 11 Cal.5th 818, 831 (Valencia).) For example, a gang expert may testify
about a specific gang’s conduct, territory, history, general operations, symbols, and
colors. (Sanchez, at p. 698; Valencia, at p. 838.) A gang expert may also render an
opinion regarding the gang membership of the perpetrator of a predicate offense in
response to a proper hypothetical question based on premises established by competent
evidence. (Valencia, at p. 839.)
“What they cannot do is present, as facts, the content of testimonial hearsay
statements.” (Sanchez, supra, 63 Cal.4th at p. 685.) For example, the prosecution may
not use a gang expert’s recitation of testimonial hearsay concerning a defendant’s police
contacts to prove intent to benefit a particular gang. (See id. at pp. 698–699.) Nor may
an expert testify as to the commission of a particular offense on a specific occasion
without personal knowledge or independent, admissible evidence thereof. (Valencia,
supra, 11 Cal.5th at p. 838.)
“When the People offer statements about a completed crime, made to an
investigating officer by a nontestifying witness, … those hearsay statements are generally
testimonial unless they are made in the context of an ongoing emergency …, or for some
primary purpose other than preserving facts for use at trial.” (Sanchez, supra, 63 Cal.4th
at p. 694.) Field identification cards are testimonial when they are produced in the course
of an ongoing criminal investigation. (Id. at p. 697.)
The key dividing line is between “hearsay that may be admitted because it is
generally accepted by experts in the field” versus “facts that cannot be proven by hearsay
because that reliability justification is absent.” (Valencia, supra, 11 Cal.5th at p. 837.)
13.
These rules reflect the proper role of expert testimony, which is “to help the jury
understand the significance of case-specific facts proven by competent evidence, not to
place before the jury otherwise unsubstantiated assertions of fact.” (Valencia, supra, 11
Cal.5th at p. 837.)
B. Background
Detective Kirk testified that he “researched” defendant’s gang history and “found”
a number of contacts with law enforcement. In conducting his research, Kirk used police
reports, field interviews, prior jail classifications, and “any sort of law enforcement
documentation.”
Detective Kirk testified that defendant had been the subject of seven separate field
interviews and 12 arrests by the Porterville Police Department. Kirk testified that “a
good majority” of defendant’s criminal history and arrests were violent in nature.
In closing argument, the prosecutor argued defendant “has done this before and he
knows how to do this type of assault.” The prosecutor then discussed the Justin H.
incident. The prosecutor argued the Justin H. incident had “the same exact setup as we
have in this case.” Defendant “allows someone else to do knifing while he uses his fist.
That’s what he does. He is a strong guy. He is leading the attack that way. That’s what
he did here.”
C. Analysis
1. Confrontation Clause
Whether Detective Kirk’s challenged testimony ran afoul of the confrontation
clause depends on where the information was obtained. Kirk broadly identified several
sources for his “research” in the case: police reports, field interviews, prior jail
classifications and “any sort of law enforcement documentation.” But most of the time
Kirk did not identify which of these various sources supported each specific part of his
14.
testimony. And that is crucial to determining whether a confrontation clause violation
occurred.
If Detective Kirk’s testimony concerning defendant’s 12 arrests and the violent
nature of the offenses for which he was arrested was predicated on police reports, it was
almost certainly testimonial and violative of the confrontation clause. (See Sanchez,
supra, 63 Cal.4th at pp. 694–695.) If the testimony was based on a field interview Kirk
did not conduct, it would violate the confrontation clause if the field identification card
was produced in the course of an ongoing criminal investigation. (Id. at p. 697.)
However, if it was based on a field identification card created in a casual, nontestimonial
situation, it would not violate the confrontation clause. (See People v. Martinez (2018)
19 Cal.App.5th 853, 860 [field identification cards can be created in casual,
nontestimonial situations].) If the testimony was based on other “law enforcement
documentation,” its propriety would depend on whether the documentation in question
was testimonial hearsay. Finally, if the testimony was based on prior jail classification
interviews, it likely did not violate the confrontation clause. (See People v. Leon (2016)
243 Cal.App.4th 1003, 1018–1020.)
On the present record, we cannot determine whether this portion of Detective
Kirk’s testimony was inadmissible under federal law. Defendant has failed to carry his
burden of demonstrating error under the confrontation clause. (See People v. Ochoa
(2017) 7 Cal.App.5th 575, 585–586 [absent showing in the record, court will not assume
expert relied on testimonial hearsay].) We next turn to whether the evidence was
admissible under state hearsay rules.
2. State Hearsay Rule
While the confrontation clause prohibits recitation of testimonial hearsay in most
circumstances, our state hearsay rules generally prohibit recitation of case-specific
hearsay on a matter which the expert has no personal knowledge, regardless of whether
15.
the hearsay is testimonial or not. (See Sanchez, supra, 63 Cal.4th at pp. 676, 684.)
Detective Kirk’s testimony that he “researched” defendant’s gang history and “found” a
number of contacts with law enforcement strongly indicates he was relying on hearsay
rather than personal knowledge of the contacts. And the hearsay concerned specific
events involving defendant, rather than information generally accepted in a field of
expertise, which means it was case-specific and therefore inadmissible. (See Valencia,
supra, 11 Cal.5th at p. 838.)
Accordingly, we turn to the issue of prejudice, which we analyze under the
familiar rule of People v. Watson (1956) 46 Cal.2d 818.12 (See People v. Thompkins
(2020) 50 Cal.App.5th 365, 419.)
In seeking to establish prejudice, defendant points to the importance of
defendant’s (and B-rad’s) gang membership. We do not doubt the importance of their
gang membership to the prosecution’s case. However, defendant correctly concedes that
his gang membership was established by other, properly admitted evidence. He contends
that “nevertheless,” Detective Kirk’s testimony about defendant’s arrests for violent
offenses was prejudicial. He argues the jury likely used the testimony to conclude he was
“a man of bad character, with a criminal disposition, predisposed to violence.” However,
the jury was expressly and specifically instructed not to do that. The court told the jury
that it may not conclude from gang activity evidence that “the defendant is [a] person of
bad character or that he has a disposition to commit crime.”
12Because we are reversing them other grounds, we do not reach defendant’s hearsay
challenge to the gang participation conviction and gang enhancement. (See, e.g., People v.
Mendez (2018) 21 Cal.App.5th 654, 662; People v. Navarrete (2010) 181 Cal.App.4th 828, 837.)
In several instances, defendant’s brief suggests his hearsay/Sixth Amendment claim is directed
only to the gang participation conviction and the gang enhancement. However, there are some
comments in the briefing touching on the issues of intent to kill and premeditation/deliberation.
Consequently, we will evaluate prejudice as to those determinations.
16.
3. Prosecutor’s Argument
Defendant responds that the prosecutor’s argument gave the jury “every reason to
disregard the court’s instruction.” However, this contention contravenes the well-known
assumption that jurors follow the court’s instructions. (See People v. McCurdy (2014) 59
Cal.4th 1063, 1096; People v. Malik (2017) 16 Cal.App.5th 587, 599.)
Moreover, the court instructed the jurors that they must decide the facts based on
the evidence, and the statements of counsel in closing argument are not evidence. The
court also instructed the jurors that they must follow the law as stated by the court even if
they believed it conflicted with an attorney’s comments on the law. Again, we assume
the jurors followed these instructions.
Finally, the prosecutor’s argument cited by defendant spoke of the Justin H.
incident as evidence defendant knew how to assault people and had a particular modus
operandi, not evidence of bad character. (See Evid. Code, § 1101 [distinguishing prior
acts evidence used to establish character versus knowledge].) Moreover, defendant has
not established the Justin H. incident was proven by inadmissible evidence.
For these reasons, we conclude Detective Kirk’s improper hearsay testimony was
not prejudicial.
IV. Defendant Has Not Established Ineffective Assistance of Counsel
“To establish ineffective assistance of counsel, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and counsel’s deficient performance was prejudicial, that
is, there is a reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.” (People v. Sepulveda (2020) 47 Cal.App.5th 291,
301.)
“‘In the usual case, where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance of counsel
17.
on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1051, italics added.)
A. Ineffective Assistance for Failing to Object to Opinion Evidence
Defendant contends trial counsel was ineffective for failing to object to Detective
Kirk’s testimony regarding how Norteño gang members treat dropouts.
Kirk testified as follows:
“Q. If someone had violated the real important rules of the gang,
would that lead to attempted murder rather than something—or someone
just being jumped?
“A. Yes. I think I have testified to earlier that becoming a dropout
of the Norteño gang is punishable oftentimes by severe injury or death so if
a dropout Norteño is the victim of assault by Norteño gang members where
Norteño gang members are using weapons, deadly weapons during the
assault of him, it would be my belief that they are attempting to kill him.”
Defendant notes that experts cannot express their general belief as to how the case
should be decided. True, but that is not what Detective Kirk was doing. Instead, he was
testifying about the significance of certain circumstances in light of his expertise. He
employed his knowledge about Norteño culture and conduct to offer an opinion on the
significance of armed Norteños assaulting a dropout. This was not improper.
“‘An examiner may ask an expert to assume a certain set of case-specific facts for
which there is independent competent evidence, then ask the expert what conclusions the
expert would draw from those assumed facts. … The expert is permitted to give his
opinion because the significance of certain facts may not be clear to a lay juror lacking
the expert’s specialized knowledge and experience.’” (Valencia, supra, 11 Cal.5th at p.
832.)
Counsel is not ineffective for failing to make a meritless objection.
18.
B. Lack of Objection to Jail Classification Admissions
Detective Kirk testified that defendant and Garcia had been taken into custody on
multiple prior occasions, and their “gang classification while going into the jail was
documented as Northern.”
Defendant argues his counsel was ineffective for failing to object to this
testimony, since non-Mirandized13 responses to jail classification questions are
inadmissible. (See People v. Elizalde (2015) 61 Cal.4th 523, 538–540.) However, the
record sheds no light on why counsel did not object to jail classification evidence. As a
result, we must reject the claim if there is any conceivable explanation for counsel’s
inaction. (See People v. Nguyen, supra, 61 Cal.4th at p. 1051.)
Here there are several possible explanations for the lack of objection, including at
least one that would not involve deficient performance. One conceivable explanation is
that defendant was Mirandized before giving the responses to the jail classification
questions and counsel was aware of that fact. In that circumstance, an objection made
pursuant to People v. Elizalde would be meritless and counsel would not be ineffective
for declining to make one. Because there is a conceivable explanation, we must reject the
claim on direct appeal.14
C. Lack of Objection to Predicate Offense Evidence
Defendant contends counsel was ineffective for failing to object to the facts and
circumstances of the predicate offenses. It appears defendant believes counsel should
have made an objection on relevance or Evidence Code section 352 grounds. He asserts
that proof the offense was committed is all that was required, and that the facts and
circumstances of the offense “have no probative value.” But the “facts” of the offense is
13Miranda v. Arizona (1966) 384 U.S. 436.
14Of course, it is also possible that, even though People v. Elizalde was decided seven
months before the testimony in question was elicited, counsel simply missed the issue. In that
scenario, counsel’s failure to object would likely constitute deficient performance. Any such
claim would need to be pursued, if at all, in habeas corpus proceedings.
19.
the proof that it was committed. In other words, the “facts” of a predicate offense have
probative value in that they can show the predicate offense was committed as required by
statute.
Surely, it is conceivable a prosecutor might improperly include gratuitous details
of a predicate offense unnecessary to prove its commission and instead intended to
inflame the jury. But, in his argument, defendant does not point to any specific
circumstance of any particular predicate offense that was irrelevant or inflammatory.
Rather, he argues that facts and circumstances of predicate offenses are generally not
probative—a proposition we reject above.
D. Lack of Objection to Evidence Concerning Tina G.
Recall that the prosecution introduced evidence that Tina G. told law enforcement
that defendant was possibly a Northern gang member. Defendant also sent her a picture
via text message of him making gang signs that represented “West Side.”
Defendant argues counsel was ineffective for failure to object on relevance
grounds. However, the bar for relevance is quite low. Evidence is relevant if it has any
“tendency in reason to prove or disprove any disputed act that is of consequence to the
determination of the action.” (Evid. Code, § 210.) The evidence involving Tina G. was
relevant in that it tended to show defendant’s prior gang affiliation.
Defendant also refers to the “prejudice” inherent in this evidence. However, the
sheriff’s deputy simply testified that Tina G. said she had “been threatened” by
defendant. No details of the alleged threat were provided. And Tina G. actually denied
at trial that defendant had threatened her. Because no details—inflammatory or
otherwise—of the alleged threat were shared by Tina G. or the sheriff’s deputy, we
cannot conclude counsel was prejudicially ineffective for failing to object.
20.
E. Lack of Objection to Prosecutor’s Argument
1. References to Inability to Find Gerald Salas
Defendant’s next contention centers on the following portions of the prosecutor’s
closing argument:
“There’s really a river of fear that’s been seeping through this entire case.
Every one of the witnesses has been affected by it. Each civilian witness
that we brought up has been either unwilling to repeat their statement about
the gang, unwilling to repeat the statements that they had, unwilling to
come forward and testify.”
The prosecutor discussed the apparent fear Megan D. and Christina D. exhibited
while testifying. The prosecutor then argued that Jose had the “most to lose” and had no
incentive to implicate defendant and Garcia.
The following then occurred:
“[PROSECUTOR:] … And moreover, as I mentioned, Gerald Salas is
in hiding. We can’t find him. We spent three months looking for him. He
doesn’t want to come into court. That all goes to show you—
“[GARCIA’S COUNSEL:] Objection, states facts not in evidence.
“[PROSECUTOR:] I believe there was evidence of Gerald Salas not
being able to be found.
“[GARCIA’S COUNSEL:] Not the ID.
“THE COURT: Any further statement other than they couldn’t find
him, you cannot consider. [¶] Sustained.”
The prosecutor then argued that the inability to find Salas further demonstrated the
power of the gang.
Defendant argues that his counsel’s failure to object to this argument constituted
ineffective assistance of counsel. However, in order to establish such a claim, defendant
must show prejudice resulting from the allegedly deficient performance. Here, counsel
21.
for codefendant Garcia did make an objection. Given that fact, there is no reason to
conclude that defendant’s counsel’s lack of objection resulted in any prejudice.15
In any event, the prosecutor never said Salas had identified defendant. Defendant
says that prosecutor’s argument “suggested” Salas had identified defendant and Garcia.
Not so. The prosecutor made clear why he was referring to the inability to find Salas—to
show the “power of the gang” and “what they are trying to accomplish.” In sum, the
prosecutor did not refer to facts outside the record, and defense counsel was not deficient
for failing to object.
2. References to Law and Order
In rebuttal closing argument, the prosecutor argued:
“[PROSECUTOR:] This case is a very important case, not just because
Jose Alcantar who is the victim that he is involved in a lot of bad things
before, involved a lot of gangs before, may not be the most sympathetic
victim, involved in drugs. It’s not really all about him. It’s about whether
or not we allow the Norteño street gang to rule our streets. It’s about
whether or not we allow them—
“[GARCIA’S COUNSEL:] Objection, improper argument.
“THE COURT: Overruled.
“[PROSECUTOR:] It’s about whether we allow him to intimidate to
stop them from coming forward to report crimes, and we allow them, to let
gang crimes go unpunished. The fact that Jose Alcantar was almost killed
is a testament of what Norteños can do and if these individuals are not held
accountable it will no doubt occur again.
“We are going to ask you to follow the evidence in this case and we
believe based on the evidence, there’s no other reasonable explanation that
these two gang members attempted to kill Jose Alcantar .…”
Defendant contends this argument was an improper appeal to have the jury convict
to protect community values and civil order. (See U.S. v. Weatherspoon (9th Cir. 2005)
15While the brief comments discussed in the next paragraph were made after Garcia’s
counsel’s objection, they were not objectionable as explained therein.
22.
410 F.3d 1142, 1149.) However, prosecutors are entitled to “‘comment on the serious
and increasing menace of criminal conduct and the necessity of a strong sense of duty on
the part of jurors.’” (People v. Adanandus (2007) 157 Cal.App.4th 496, 513.)
Moreover, immediately after the comments in question, the prosecutor urged the
jury to convict based on the “evidence in this case” that defendant and Garcia attempted
to murder. Therefore, we do not believe the jury would have taken the prosecutor’s
argument to be an invitation to disregard the facts of the case and instead convict based
solely on a desire for safe communities or an antagonism towards Norteños generally.
We conclude that, under the circumstances presented here, “[n]o reasonable juror would
have construed the remarks as urging the jurors to follow community sentiment rather
than their own judgment.” (People v. Lang (1989) 49 Cal.3d 991, 1041 abrogated on
another point by People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
V. Section 1109 and Failure to Bifurcate the Charges
Defendant contends that the judgment should be reversed because newly enacted
section 1109 “requires bifurcation upon request of counsel” and therefore “the trial
court’s denial of the request constitutes error.” We conclude any failure to bifurcate the
gang allegations was harmless; thus, reversal of the underlying convictions is not
required.
A. Applicable Law
Assembly Bill 333, effective January 1, 2022, added section 1109, which requires
bifurcation of gang enhancements charged under section 186.22, subdivision (b) or (d) to
be tried separately from the underlying charges upon request from the defense. (Stats.
2021, ch. 699, § 5.) Section 1109 also requires that the substantive offense of active
participation in a criminal street gang (§ 186.22, subd. (a)) be tried separately from all
other counts that do not require gang evidence as an element of the crime (§ 1109, subd.
(b)).
23.
B. Analysis
The parties first dispute whether section 1109 applies retroactively. The courts of
appeal are split on whether section 1109 applies retroactively. (Compare People v.
Burgos (2022) 77 Cal.App.5th 550, 565–568 [holding § 1109 applies retroactively under
Estrada], review granted July 13, 2022, S274743, and People v. Ramos (2022) 77
Cal.App.5th 1116, 1128–1131 [same], with People v. Ramirez (2022) 79 Cal.App.5th 48,
65 [holding § 1109 is not retroactive], review granted Aug. 17, 2022, S275341, People v.
Boukes (2022) 83 Cal.App.5th 937, 948 [same], and People v. Perez (2022) 78
Cal.App.5th 192, 207 [same], review granted Aug. 17, 2022, S275090.)
Recently, in People v. Tran (2022) 13 Cal.5th 1169, 1208–1210 (Tran), the
California Supreme Court declined to resolve the split, concluding any failure to bifurcate
the gang allegations was harmless. Notably, whether section 1109 applies retroactively
to nonfinal cases is an issue currently pending before the California Supreme Court in
People v. Burgos, supra, 77 Cal.App.5th 550.16
In reviewing for prejudice in Tran, the California Supreme Court concluded the
failure to bifurcate in that case did not render the trial fundamentally unfair such that it
required review under the standard for federal constitutional error articulated in Chapman
v. California (1967) 386 U.S. 18. (Tran, supra, 13 Cal.5th at p. 1209.) Accordingly, the
court considered whether the defendant was prejudiced under the state law standard of
review articulated in People v. Watson, supra, 46 Cal.2d 818 and concluded the
defendant had failed to establish prejudice as to his guilt verdicts. (Tran, at p. 1209.) In
16The California Supreme Court granted review in People v. Burgos, supra, 77
Cal.App.5th 550 and initially deferred action pending consideration and disposition of Tran.
However, after issuing its opinion in Tran, the California Supreme Court issued a briefing order
in Burgos on October 12, 2022, directing the respondent to file an opening brief on the merits
limited to the following issue: Does the provision of Penal Code section 1109 governing the
bifurcation at trial of gang enhancements from the substantive offense or offenses apply
retroactively to cases that are not yet final?
24.
so holding, the Tran court rejected the contention the failure to bifurcate as required
under section 1109 constitutes structural error. (Tran, at p. 1208.)
Here, as in Tran, it is unnecessary to address the parties’ claims regarding
retroactivity because we conclude the failure to bifurcate the proceedings was harmless.
In so holding, and for the reasons discussed further post, we cannot conclude the
admission of the gang evidence rendered the trial “fundamentally unfair” such that it
resulted in a due process violation and requires us to review for prejudice under the
Chapman standard for constitutional error. (See Tran, supra, 13 Cal.5th at p. 1209.)
Applying the Watson standard for state law error, we cannot conclude it is
reasonably probable defendant would have obtained a more favorable verdict in the
absence of the gang evidence that would not have been presented had the gang
allegations been bifurcated. (See People v. Watson, supra, 46 Cal.2d at p. 836.) First, as
in Tran, “[t]he case for guilt here was strong.” (People v. Tran, supra, 13 Cal.5th at pp.
1209–1210.) While hospitalized after the attack, Jose identified defendant by his first
name as the “main” perpetrator and then, the following day, Jose identified a picture of
defendant in a photographic lineup. Additionally, two other witnesses to the incident—
Christina D. and Megan D.— also reported defendant was present during the attack.
Indeed, Christina reported to police that defendant, her roommate, was leading the attack.
Thus, the reports of multiple eyewitnesses, including the victim, implicated defendant as
a participant and leader in the attack.
Furthermore, nothing in Assembly Bill 333 limits the introduction of gang
evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying
charges. “The People are generally entitled to introduce evidence of a defendant’s gang
affiliation and activity if it is relevant to the charged offense.” (People v. Chhoun (2021)
11 Cal.5th 1, 31.) Gang evidence—“‘including evidence of the gang’s territory,
membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific intent, means of applying
25.
force or fear, or other issues pertinent to guilt of the charged crime.’” (Ibid., quoting
People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Additionally, “[e]vidence that a
witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of
that witness and … [a]n explanation of the basis for the witness’s fear is likewise relevant
to her credibility ….” (People v. Burgener (2003) 29 Cal.4th 833, 869.)
And here, much of the gang evidence was relevant to the charged offenses. First,
gang evidence was relevant to motive in that the People’s theory of the case was that
defendant and his group attacked Jose because Jose was an ex-gang member who had
turned on the gang and was accused of being a “snitch.” (See People v. Williams (1997)
16 Cal.4th 153, 193 [“in a gang-related case, gang evidence is admissible if relevant to
motive or identity, so long as its probative value is not outweighed by its prejudicial
effect”].) Thus, evidence of Jose’s gang history, defendant’s gang affiliation, and gang
culture, particularly the view and treatment of drop-outs and “snitches” and expectations
of gang members, was relevant to disputed factual issues in the case. (See People v.
Holmes, McClain, and Newborn (2022) 12 Cal.5th 719, 772 [“Given the circumstances of
the shootings, which were clearly intended as gang retaliation, defendants’ membership
was highly relevant to prove their involvement, motive, and intent to kill”]; accord,
People v. Duong (2020) 10 Cal.5th 36, 64 [court did not prejudicially err in admitting
gang evidence where “there was little question that evidence of defendant’s gang
membership was relevant to motive” and “gang affiliation evidence gave context to the
shooting”].) There was also evidence the attackers shouted “West Side” during the
attack. Such evidence was relevant to the circumstances of the charged offense and the
expert testimony related to gang culture was relevant to help the jury understand the
significance of the announcement of gang affiliation. (See People v. Hernandez, supra,33 Cal.4th at pp. 1050–1051 [concluding failure to bifurcate gang allegations was
harmless, reasoning, in part, “[m]uch of the gang evidence here was relevant to the
charged offense … defendant … himself injected his gang status into the crime” by
26.
identifying himself as a gang member; so, expert testimony regarding the significance of
defendant’s announcement of his gang affiliation was relevant to motive and use of
fear].) Furthermore, the gang evidence, including the expert testimony regarding
witnesses’ reluctance to talk to police or give information based on their fear of gangs,
was relevant to the credibility of numerous witnesses whose statements at trial conflicted
with their reports to police following the attack, to explain witnesses’ reluctance to
testify, and to explain Jose’s failure to identify defendant at trial. (See CALCRIM
No. 1403; accord, People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168–1169 [gang
evidence may be relevant to witnesses’ reluctance to testify and inconsistent statements];
People v. Harris (1985) 175 Cal.App.3d 944, 957 [“The trial court specifically and
correctly found the evidence of gang membership to be admissible on the issue of
credibility”]; see generally Tran, supra, 13 Cal.5th at p. 1209 [“We have held that a trial
court is entitled to admit evidence demonstrating a fear of testifying”]; People v. Sanchez
(1997) 58 Cal.App.4th 1435, 1449–1450 [“Testimony a witness is fearful of retaliation
similarly relates to that witness’s credibility and is also admissible. [Citation.] It is not
necessary to show threats against the witness were made by the defendant personally, or
the witness’s fear of retaliation is directly linked to the defendant for the evidence to be
admissible”].) Thus, even if section 1109 required bifurcation of the gang enhancements,
it is likely some, though not all, of the evidence of defendant’s gang membership would
have come in at a trial on the other substantive offenses. (See People v. Hernandez,
supra, at pp. 1049–1050 [“To the extent the evidence supporting the gang enhancement
would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and
bifurcation would not be necessary”]; People v. Samaniego, supra, at p. 1167 [“evidence
related to gang membership is not insulated from the general rule that all relevant
evidence is admissible if it is relevant to a material issue in the case other than character,
is not more prejudicial than probative, and is not cumulative”].)
27.
Additionally, the jury was given a limiting instruction regarding its consideration
of the gang evidence. Specifically, the court instructed the jury: “You may consider
evidence of gang activity only for the limited purpose of deciding whether the defendant
acted with the intent, purpose and knowledge that are required to prove the gang-related
crimes and enhancements or special allegations charged or the defendant had a motive to
commit the crimes charged. [¶] You may also consider this evidence when you evaluate
the credibility or believability of a witness and when you consider the facts or
information relied on by an expert witness in reaching his or her opinion. You may not
consider this evidence for any other purpose. You may not conclude from this evidence
that the defendant is [a] person of bad character or that he has a disposition to commit
crime.” We presume the jury followed these instructions. (See People v. Franklin
(2016) 248 Cal.App.4th 938, 953 [“We presume that the jury followed these limiting
instructions (regarding considering gang evidence for a limited purpose), and there is
nothing in this record to rebut that presumption”].)
We note some of the gang evidence, including evidence of the predicate offense in
which defendant participated that involved another group attack during which the victim
was stabbed, may not have been admissible in a bifurcated trial. Nevertheless, this does
not change our conclusion. Here, evidence of the predicate offense involving defendant
was limited—the entirety of the victim’s testimony of the predicate offense with which
defendant was involved constituted five pages of the multiple volume trial transcript.
Additionally, the circumstances of that crime were not more inflammatory than those of
the current offense. Furthermore, such evidence may have been held admissible on other
grounds.17
17Notably, evidence of the predicate offense with which defendant was involved may
have been admissible under Evidence Code section 1101, subdivision (b) for another purpose
such as on the issues of motive or intent to engage in violent coordinated group crimes without
any reason or provocation other than to benefit his criminal street gang and pursue the gang’s
28.
Irrespective, based on the strength of the evidence of defendant’s guilt, the
relevance of much of the gang evidence in a trial on the underlying charges, and the
admonitions to the jury, we cannot conclude defendant was prejudiced by the failure to
bifurcate the gang allegations from the other charges. (See People v. Hernandez, supra,33 Cal.4th at p. 1051 [“Any evidence admitted solely to prove the gang enhancement was
not so minimally probative on the charged offense, and so inflammatory in comparison,
that it threatened to sway the jury to convict regardless of defendants’ actual guilt”].)
Thus, we cannot conclude defendant is entitled to reversal and retrial of his remaining
convictions on this basis.
VI. Additional Considerations on Remand
Because we are reversing the substantive gang count and the gang enhancements
as discussed herein, a new sentencing hearing will necessarily result. At resentencing,
the court and parties are advised to consider and apply any pertinent new laws the
Legislature has passed during the pendency of this appeal including, but not limited to,
Senate Bill No. 567 (2021–2022 Reg. Sess.) and Assembly Bill No. 518 (2021–2022
Reg. Sess.).
DISPOSITION
Defendant’s conviction for active participation in a criminal street gang (§ 186.22,
subd. (a)) and the gang enhancements (§ 186.22, subd. (b)(1)) to counts 1 and 2 are
reversed and the matter is remanded to the trial court for further proceedings consistent
with this opinion. The People shall have 60 days from the date of the remittitur in which
objectives. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212.) With regard to that
predicate offense, the gang expert noted the group called the victim of the offense a
“Peckerwood,” which refers to a Caucasian gang, and that several subjects yelled “West Side”
before or after that assault (as they did here). The gang expert testified the circumstances of the
predicate offense suggested West Side Poros gang members were confronting the victim, who
they believed to be a member of a rival gang in their territory, telling him to get off this street or
get out of that area. However, the victim denied being involved in gangs, stated he only knew
one of the five males from juvenile hall, and he did not have a dispute with them before.
29.
to file an election to retry defendant on the active participation in a criminal street gang
charge and the gang enhancements. If the People elect not to retry the defendant on this
charge and the enhancements, the trial court shall modify the judgment by striking
defendant’s convictions for count 3 (§ 186.22, subd. (a)) and the gang enhancements and
shall resentence defendant accordingly. In all other respects, the judgment is affirmed.
PEÑA, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
DETJEN, J.
30.