People v. Moore CA3

Filed 3/25/22 P. v. Moore CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C091062
Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-
2017-0008934)
v.
AARON ROBERT MOORE,
Defendant and Appellant.
A jury found defendant Aaron Robert Moore guilty of four counts of attempted
premeditated murder, three counts of shooting at an inhabited dwelling or occupied
vehicle, and assault with a firearm related to two driveby shootings he committed a week
apart. As to each of those counts of conviction, the jury found true that defendant
committed those offenses for the benefit of, at the direction of, or in association with a
criminal street gang, and with the specific intent to promote, further, or assist in any
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criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1), (4) & (5).)1 The
jury also found true multiple firearm enhancements. Relating to a separate incident, the
jury found defendant guilty of carrying a concealed and unregistered firearm in a vehicle.
On appeal, defendant contends the evidence is insufficient to support the jury’s
finding regarding the gang enhancements. He also raises claims related to his sentencing,
which, as we explain post, we need not and do not reach.
Following completion of briefing, defendant requested leave to file supplemental
briefing regarding the effect of newly enacted Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (Assembly Bill No. 333) on this case. Assembly Bill No. 333 amended section
186.22 to require proof of additional elements to establish a gang enhancement. (Stats.
2021, ch. 699, § 3, eff. Jan. 1, 2022.) We granted defendant’s request and received
briefing from both parties. Defendant argues that changes to section 186.22 made by
Assembly Bill No. 333 require that we vacate the gang enhancement and certain firearm
enhancement findings and remand the matter for a limited retrial. The Attorney General
agrees, and we agree with the parties. Accordingly, we vacate the gang enhancement and
certain firearm enhancement findings, as discussed post, and remand for further
proceedings. Because we remand for possible retrial and full resentencing, we need not
and do not address the remainder of defendant’s claims.
FACTS AND PROCEEDINGS
Sleeperz Dream Background
Law enforcement began monitoring Sleeperz Dream in January 2017 and
documented it as a criminal street gang in May 2017. Sleeperz Dream did not have a
specific territory, but its members could be found in the north Stockton area and some
areas of the Weston Ranch community. In the spring and summer of 2017, the gang had
1 Further undesignated statutory references are to the Penal Code.
2
approximately 10 members, many of whom had gone to high school together. Detective
Julio Morales, who testified as an expert on Stockton gangs and whose testimony we will
recount in greater detail post, identified defendant as a Sleeperz Dream gang member.
June 17, 2017 Shooting2
On June 17, Daniel B., Jessica B., Josh D., and Michael A. attended a family party
in South Stockton. Other guests included Daniel’s sister, Alyssa B., Julia Calderon, and
Calderon’s friend, Ariana Foster.
At the time of the party, Foster was seeing and talking to defendant every day; she
did not remember whether she was dating him at the time, but at some point she was.
Calderon was dating Freddie Collins, a Sleeperz Dream member. Defendant and Collins
were cousins. Daniel, Alyssa, Jessica, Calderon, Foster, Collins, and defendant had all
attended the same high school. Collins did not like Daniel because Calderon was
previously romantically interested in Daniel, and Alyssa did not get along with Foster
because defendant had previously dated Alyssa.
As Daniel, Jessica, Josh, and Michael were leaving the party, Michael yelled
something at Calderon.3 Foster testified that a White or Mexican male said to Calderon:
“You stupid fat bitch. What are you doing out south?” According to Foster, Calderon
did not respond. As the group drove away, Foster testified that the male told Calderon,
“You’re about to get caught lacking for being on the south side.” Foster did not
understand what that meant, but she believed it had been a threat to Calderon. Foster
thought Calderon had dated the male, and there had been a “conflict” between him and
Calderon. Jessica heard Calderon yell something along the lines of, “[w]e’ll see. We’ll
2 All future date references are to 2017, unless otherwise stated.
3 Michael testified that he knew who Calderon was, but he did not remember if he saw
her at the party or if anything happened between them.
3
see.” After that incident, Foster and Calderon stayed at the party for approximately 30 to
45 minutes.
When Daniel, Jessica, Josh, and Michael arrived back at their house, Josh parked
his SUV in the driveway. The garage door opener was not functioning, so Daniel and
Michael got out of the SUV and walked toward the front door of the house. Josh and
Jessica waited in the SUV.
A car drove down the street, and someone inside the car fired gunshots at the
house and SUV. Daniel and Michael hid behind a pillar near the front door until the
gunshots stopped. Josh and Jessica ducked down inside the SUV. Bullets hit the SUV,
house, and garage door. Daniel did not hear anyone in the car say anything before,
during, or after the shooting. Josh heard someone inside the car scream after the car
drove past the house, but he did not recall what the person said. No one was wounded.
At 10:40 p.m., a 911 caller reported the gunshots. Cell tower site evidence was
consistent with defendant’s and Collins’ cell phones traveling from Calderon’s house to
the area of the shooting minutes before the 911 call and then traveling back to Calderon’s
house. Collins was later convicted of attempted murder and admitted a gang
enhancement. Police officers located seven shell casings from a .40-caliber handgun--
that a firearms expert testified matched a gun later seized from defendant--and two shell
casings from a nine-millimeter handgun.
Cell phone records demonstrated that multiple calls took place between Calderon,
Collins, defendant, and Foster between 10:17 and 10:50 p.m. Notably, a call from
Calderon to Collins at 10:17 p.m. lasted for 35 seconds, and a call from Collins to
defendant one minute later lasted for 17 seconds. Collins called Calderon at 10:20 p.m.,
Calderon called Collins at 10:21 p.m., and Collins called Calderon at 10:35 and 10:38
p.m. At 10:34 p.m., Calderon texted Alyssa, “You with your brother [Daniel] and them?”
Alyssa responded that she was not, and asked her why she wanted to know; Calderon did
not respond. Defendant called Foster at 10:19 p.m. and 10:39 p.m. Defendant also called
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Sleeperz Dream member Michael Serrano at 10:38 p.m., but the call went to voicemail.
At 10:40 p.m., when the shots were reported, Serrano called defendant and Collins called
Calderon. Defendant then called Sleeperz Dream member Marlin Logan.
The day after the shooting, defendant posted on his Twitter account, “Ima shooter.
If I’m shot, Ik [I know] I had it comin.”
June 25 Shooting
On June 24, one week after the previous shooting, defendant posted a series of
tweets referring generally to a robbery, stating that he “[m]ade it on the starting lineup
because I was shooting,” discussing driveby shootings, and stating, “[w]e shutting shit
down if they don’t let us in the party.”
Later that night, approximately 100 people attended a party at a house in the
Weston Ranch area of Stockton. The party lasted into the early morning hours of
June 25. Sierra Riggleman attended the party with a friend--who had previously been in
a romantic relationship with defendant--and Sleeperz Dream member Johnny Rodriguez.
Riggleman knew multiple Sleeperz Dream members, was in “some kind of romantic
relationship” with Sleeperz Dream member Michael Serrano, and was close friends with
defendant. Riggleman had appeared in photographs with Sleeperz Dream members
wearing a Sleeperz Dream sweatshirt and holding a gun or, in some instances, guns she
described as “props.” Riggleman was not invited to the party and she did not know the
hosts of the party. Cell tower site evidence was consistent with Riggleman’s cell phone
being near the party’s location at 12:37 a.m. and between 1:45 and 2:15 a.m.
The host of the party later told a police officer that a group of approximately 15 to
20 “Hispanic” teenage males and females, whom he did not know, came to his house at
approximately 2:00 a.m. He told them it was a private party and asked them to leave.
Riggleman did not remember if anyone from the party had asked her to leave.
5
Approximately 10 minutes later, multiple gunshots were fired from a car driving
past the party. The bullets struck the house, garage, and a car parked in front of the house.
One attendee was shot in the hip. At 2:06 a.m., a 911 caller reported that shots had been
fired. Police officers responding to the scene attempted to talk to people attending the
party, including the person who was shot, but no one wanted to make a statement. A
neighbor told police she heard 10 to 15 gunshots.
Cell tower site evidence was consistent with defendant and Serrano being near the
location of the party between 1:45 and 2:15 a.m. Other cell tower evidence suggested
Serrano and defendant had not been at the party prior to the shooting. Officers located 14
shell casings fired from a .40-caliber handgun--that a firearms expert testified matched a
gun later seized from defendant--and shell casings from a nine-millimeter handgun.
Social Media Activity
In the afternoon of June 25, defendant posted a Snapchat video that included two
handguns; one of them was a Glock and the other appeared to be a Glock. The overlay
caption on the video said, “[w]hat should I rock today?” Later that day, defendant posted
a Snapchat video that included a vehicle and a hand holding a handgun with an extended
magazine. The caption on the video said, “[t]his is how I coming.”
The next day, defendant retweeted a post by another Sleeperz Dream member that
said: “I really love my niggas when I called then they slid right away,” and a reply to that
tweet stating: “for me brother’s anybody can get it!!” To “slide” means to commit a
crime, typically a shooting.
On June 29, defendant replied to a tweet that said: “How is you niggas shootin
broad day recklessly with kids outside, parents and shit [¶] You niggaz trippin.”
Defendant replied, “If it’s fonk then it’s fonk.” “Fonk” is a dispute or conflict. The next
day, defendant posted a Snapchat video that showed him pointing a handgun at the
camera and Logan holding a handgun. The overlay caption on the video said: “Two
phone calls and it’s over.”
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On June 30, defendant posted a series of five tweets that referred to guns or
bullets, suggested taking credit for killing somebody, suggested he was on a “team full of
shooters,” and referenced trying to shoot opponents. He also tweeted, “We got the cops
like stop all of that drilling [shooting], we begging just [please].” Detective Morales
testified that a group called Project Cease Fire worked with the police department to try
to identify individuals who had been committing violent crimes, particularly gun
violence. After the individuals had been identified through Project Cease Fire or other
law enforcement tools, the individuals were given a “cease fire admonishment” from a
law enforcement officer and told to stop the gun violence. During the spring and summer
of 2017, Sleeperz Dream was identified as needing that admonishment and its members
were given the message.
On July 2, defendant again tweeted about killing people every time “we pop out.”
The following day he tweeted: “Don’t do street shit if you ain’t ready to do life or die.”
The next day he tweeted: “I’m surrounded by my niggas and some 40’s, you surrounded
by some snitches and the police.”
Law Enforcement Investigation
On July 5, defendant was detained in a traffic stop, and a loaded .40-caliber
handgun was discovered in the car; he was arrested and charged with gun possession.
The gun’s serial number matched the serial number of a gun appearing in one of
defendant’s Snapchat videos, and a firearms expert opined that the .40-caliber shell
casings found at the scenes of the June 17 and June 25 shootings were fired from the gun.
The expert testified that the nine-millimeter shell casings found at the two shootings had
been fired from different guns.
Officers searched defendant’s house and discovered an unfired .40-caliber round,
an empty plastic bag with a manufacturer’s tag identifying the contents as an extended
magazine for a .40-caliber Glock, and a backpack with “Sleeperz Dream” written on one
of the straps. The extended magazine would have fit the gun seized from defendant.
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Defendant’s Subsequent Statements
On August 11, more than a month after his arrest for gun possession, defendant
tweeted: “Any type of snitching ain’t tolerated.” The next day he tweeted, “[m]y name
rings bells through the city streets,” which meant that he had been so active committing
crimes that other people had been talking about him. On August 17, he tweeted, “[g]et
out of Stockton, move to L.A. where I ain’t gotta keep a tool [handgun].” On August 25,
defendant tweeted, “I don’t do this shit for fame, bitch. I do this shit for gang!”
Criminal Street Gang Evidence
Detective Morales was assigned to the gang violence suppression unit from
January 2015 to December 2018; his primary duty was to investigate African-American
gangs.4 Before being assigned to the gang violence suppression unit, Morales worked in
the community response team, which patrolled high crime areas and required him to
make contact with gang members and to conduct arrests and searches. He attended basic
and advanced 40-hour gang investigation courses in addition to gang-related conferences.
He had participated in approximately 500 gang-related investigations and 300 gang-
related arrests. As part of his duties, Morales spoke to gang members in and out of
custody about gang lifestyle, current trends in gang behavior and popular culture, other
gang members, the types of crimes they commit, and the types of crimes other gang
members commit. He also used social media to investigate gangs because members often
post photographs of themselves holding gang signs with other gang members, and to
learn which gangs are feuding. He had qualified to testify as a gang expert in 21 previous
trials.
4 Defendant is of African-American and Laotian descent.
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Morales testified that Sleeperz Dream had engaged in a pattern of criminal gang
activity during the previous three years, and the primary activities of the gang were
attempted murder, shooting at an inhabited dwelling or occupied vehicle, robbery,
burglary, and possession of illegal weapons. Specifically, Morales noted that Sleeperz
Dream member Steve Johnson was convicted of carrying a loaded firearm at the time he
was arrested on May 19, 2017, and Collins was convicted of attempted second degree
murder with a gang enhancement related to the June 17 shooting.
Morales opined that defendant was a Sleeperz Dream gang member. He pointed
to an August 2016 traffic stop when officers discovered two firearms in a car driven by
Logan in which defendant was a passenger; one of the firearms was a .40-caliber Glock
that was discovered on the front passenger side floorboard. Morales also cited the
backpack found in defendant’s room that had Sleeperz Dreams written on it.
Additionally, Morales relied on pictures, other social media posts, and publicly
posted rap videos to identify and document individuals as gang members. He testified
that gangs often use social media to bolster their reputation, and he used defendant’s
posts to explain aspects of gang culture. For example, on June 5, defendant tweeted, “If I
tell my nigga get ‘em, he gonna get ‘em. If I tell my nigga strip ‘em, he gonna strip ‘em.”
Morales testified that this tweet meant that his friend would shoot or rob someone if
directed. On June 9, defendant tweeted, “nigga don’t slide [commit a shooting] or shoot
back.” On June 11, defendant tweeted, “[h]ow you all shooters but ain’t pop shit . . . .
Your whole team broke.” Morales opined that the tweet was “basically saying how are
you guys shooters when you actually” have never shot anyone. On June 13, he tweeted,
“[h]ow do you claim you niggas hard, but when we slid, you’ll ain’t bust [shoot] back.”
Morales understood these tweets to be making fun of people who do not shoot back after
they were victims of violence. On June 17, defendant tweeted: “My niggas fighting
cases because all my niggas are active.” “Fighting cases” referred to fighting cases in a
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criminal court. Morales explained that the tweet meant that defendant’s associates had
been committing crimes for the gang and getting arrested for them.
Morales testified that having a reputation for violence was important in gang
culture because violence demonstrates power and that the gang was capable of
committing acts of violence without fear of repercussions. Committing a shooting means
the individual gang members are willing to use violence whether or not they are
disrespected. This instills fear in rivals and the community, making people less likely to
report crimes. Additionally, being labeled as a shooter--someone who has committed a
violent crime using a firearm--is “kind of a high level status for somebody.” A gang
member who is challenged may turn to another member who is a shooter for support. In
gang culture, a person will be disrespected if he calls himself a shooter but has never shot
anyone. If an act of violence was committed against a gang or its members, the gang
must retaliate or it and its members will be considered weak. This could include driveby
shootings, which Morales knew to be committed by gangs in Stockton. To that end, it
was important for a gang to possess and carry firearms to protect the gang members and
to commit crimes.
Loyalty is also an important part of gang culture. On May 30, defendant tweeted,
“I’ll pop my own nigga if he disloyal.” Morales testified that the tweet meant defendant
would shoot his own friend if he were disloyal to him. Morales explained that the tweet
could have been directed at a particular person, but only that person or a small group of
people would have understood for whom the tweet had been intended. “Snitching,” or
talking to the police about a crime that was committed, is prohibited and can be punished
by violence against the individual or their family.
Sleeperz Dream had several rap videos publicly posted on YouTube; they glorified
acts of violence. In the videos, gang members discussed the use of firearms and the
requirement that a gang member must shoot someone before being labeled a “shooter.”
If someone successfully commits a crime, that is considered a “win” for the group.
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Members will do what they can to make a name for themselves, and killing someone is
the best way to make such a reputation. These videos were a way to tell rivals that the
gang included shooters. In one video, defendant appeared with several other Sleeperz
Dream members, and some of the people in the video, including defendant, held firearms.
The rap videos also discussed expensive clothing and other items and having the financial
ability to purchase them. Gangs and their members value money because it demonstrates
that the gang is successful. Posting pictures of firearms, nice cars, and stacks of money
on social media is a way to demonstrate the gang’s success.
In response to a hypothetical question based on the facts of the June 17 shooting,
Morales opined that the shooting was committed for the benefit of and in association with
the gang. The shooting was committed in association with the gang because the
girlfriend of a gang member was disrespected; she then communicated that disrespect to
her gang member boyfriend, who responded to the location of the disrespect in the
company of other gang members. Failing to respond to the disrespect would have been a
sign of weakness. The gang member would seek assistance from fellow gang members
with a reputation for being shooters, and the gang members would trust one another to
not talk to law enforcement. The gang benefitted from the shooting because its members
retaliated and addressed the disrespect, bolstering their reputation for committing violent
crimes. Boasting about being a shooter on social media soon after the crime was
committed showed that the gang was taking responsibility for the crime, even if the posts
did not provide specific details of the crime.
In response to a hypothetical question based on the facts of the June 25 shooting,
Morales opined the shooting was in association with and benefited the gang. The
shooting was in association with the gang because “the group of people that you’re with,
they’re associated with the gang. You have your fellow members there.” The shooting
benefitted the gang because members, friends, or associates of the gang were disrespected
and potentially embarrassed when they were told to leave the party. It would be a sign of
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weakness to not respond to that disrespect, and therefore the gang needed to retaliate.
Boasting about the crime on social media bolstered the reputation of the gang, and the
people who were responsible for the crime would be labeled as “shooters.” Finally, the
shooting instilled fear in the community and in rivals, which allowed the gang to commit
additional crimes without fear of police intervention.
Morales acknowledged that there was no evidence anyone yelled out a gang name,
wore gang colors, or flashed gang signs during the two incidents at issue in this case.
Indeed, Morales agreed that the gang had no known colors, tattoos, rivals, or initiation
process. No member of the gang acted as a confidential informant, and no former
member of the gang had been debriefed. However, Morales observed that it was rare for
a gang member to yell out the gang’s name when committing a crime. He also agreed
that none of defendant’s Twitter posts referenced Sleeperz Dream. He did not know the
identity of the people asked to leave the June 24 party, or if defendant was among them.
There were no statements from the people attending the party that they knew of Sleeperz
Dream or defendant. Morales did not know if any of the victims had gang ties.
Verdict and Sentence
As to the June 17 shooting, the jury found defendant guilty of four counts of
attempted premeditated murder (§§ 664, 187, subd. (a); counts 1-4) and two counts of
shooting at an inhabited dwelling or occupied vehicle (§ 246; counts 5-6). As to each of
counts 1 through 4, the jury found true the allegations that defendant personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)), and a principal personally and
intentionally discharged a firearm during the commission of the crimes (§ 12022.53,
subds. (c), (e)(1)). We refer to these latter four enhancements as the “gang-related
firearm enhancements,” as does defendant in his briefing, see post.
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Regarding the June 25 shooting, the jury found defendant guilty of assault with a
semiautomatic firearm (§ 245, subd. (b); count 8), and shooting at an inhabited dwelling
(§ 246; count 9). As to count 8, the jury found defendant personally used a firearm
during the commission of the crime (§ 12022.5, subd. (a)), and as to count 9, that he
personally and intentionally discharged a firearm causing great bodily injury during the
commission of the crime (§ 12022.53, subd. (d)).
As to counts 1 through 6, 8, and 9, the jury found true the allegation that the
crimes were committed for the benefit of, at the direction of, or in association with a
criminal street gang, and with the specific intent to promote, further, or assist in any
criminal conduct by gang members. (§ 186.22, subd. (b)(1), (4)(B), (5).)
Related to his arrest on July 5, the jury found defendant guilty of carrying an
unregistered loaded firearm in a vehicle (§ 25850, subds. (a)(1), (c)(6); count 10), and of
carrying a concealed firearm in a vehicle (§ 25400, subds. (a)(1), (c)(6); count 11).5
On December 2, 2019, the trial court sentenced defendant to prison for a
determinate term of 99 years eight months, plus an indeterminate term of 115 years to
life. On each of counts 1 through 4 and the accompanying firearm and gang
enhancements, the court sentenced defendant to consecutive sentences of 15 years to life
(§ 186.22, subd. (b)(5)), plus 20 years on each count for the section 12022.53,
subdivision (c) enhancements, staying imposition of the gang-related firearm
enhancements. (§ 12022.53, subds. (c), (e)(1).)
5 The trial court granted the People’s motion to dismiss count 7, which charged
defendant with attempted premeditated murder regarding the June 25 shooting (§§ 664,
187, subd. (a)), and count 12, which charged defendant with possession of a firearm by a
restricted person (§ 29815, subd. (a)).
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On count 5, the trial court sentenced defendant to 15 years to life in prison.
(§ 186.22, subd. (b)(4)(B).) On count 8, the court imposed the upper term of nine years,
plus the upper term of 10 years for the firearm enhancement (§ 12022.5, subd. (a)), but it
stayed the gang enhancement as to that count (§ 186.22, subd. (b)(1)). As to count 9, the
court imposed a sentence of 15 years to life (§ 186.22, subd. (b)(4)(B)), plus 25 years to
life on the firearm enhancement (§ 12022.53, subd. (d)). The court sentenced defendant
to eight months on count 10, to run consecutive to the sentence on count 8. It imposed a
sentence of 15 years to life on count 6 (§ 186.22, subd. (b)(4)(B)), and eight months on
count 11, but stayed those sentences pursuant to section 654.
Defendant timely filed a notice of appeal. The case was fully briefed on
August 30, 2021. On November 10, 2021, we sent an oral argument waiver notice to the
parties, but, two days later, defendant requested leave to file supplemental briefing on the
effect of Assembly Bill No. 333 on this case. We granted that request, and the parties
completed supplemental briefing on February 3, 2022, and waived oral argument
thereafter.
DISCUSSION
I
Assembly Bill No. 333
In his supplemental briefing, defendant asserts that Assembly Bill No. 333 should
be applied retroactively to his case and that, under the law as amended, there is
insufficient evidence to support imposition of not only the gang enhancements under
section 186.22, subdivision (b), but also the gang-related firearm enhancements
(§ 12022.53, subds. (c), (e)(1)). He asks us to strike the true findings on these
enhancements and remand the matter to the trial court for possible retrial.
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The Attorney General concedes that defendant is entitled to the ameliorative
effects of Assembly Bill No. 333’s amendments to section 186.22 because his judgment
will not be final when the new legislation takes effect, and he agrees that the gang
enhancements must be vacated and the matter remanded. As we next explain, we agree
with the parties.
A. Retroactivity
Generally, “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,” so long as the amended statute takes effect before the judgment
of conviction is final. (In re Estrada (1965) 63 Cal.2d 740, 748; People v. Floyd (2003)
31 Cal.4th 179, 184.) Estrada’s retroactivity rule pertains to statutory amendments that
reduce penal sanctions, those that eliminate penal sanctions entirely, and those that
redefine the conduct subject to an enhancement to a defendant’s benefit. (People v.
McKenzie (2020) 9 Cal.5th 40, 45; People v. Lopez (2021) 73 Cal.App.5th 327, 344.)
“This rule rests on an inference that when the Legislature has reduced the punishment for
an offense, it has determined the ‘former penalty was too severe’ [citation] and therefore
‘must have intended that the new statute imposing the new lighter penalty . . . should
apply to every case to which it constitutionally could apply.’ ” (People v. DeHoyos
(2018) 4 Cal.5th 594, 600.)
“ ‘[F]or purposes of Estrada retroactivity, the focus is not on when a conviction
becomes final but rather when the sentence imposed on that conviction becomes final,’ a
question of law that we review de novo.” (People v. Andahl (2021) 62 Cal.App.5th 203,
208, review granted June 16, 2021, S268336.) Because defendant’s case is not yet final
on appeal, he is eligible to take advantage of the ameliorative benefits of Assembly Bill
No. 333. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“ ‘[A] judgment is not final
until the time for petitioning for a writ of certiorari in the United States Supreme Court
has passed’ ”].)
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B. Statutory Framework
Section 186.22 provides for enhanced punishment when a person is convicted of
an enumerated 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, subd. (b)(1).) Prior to the enactment of
Assembly Bill No. 333, a “ ‘criminal street gang’ ” was defined 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 [enumerated
criminal acts], 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.” (§ 186.22, former subd. (f), italics added.) Effective January 1, 2022,
Assembly Bill No. 333 narrowed the definition of “ ‘criminal street gang’ ” to be “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
[enumerated criminal acts], 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), as amended by Stats. 2021, ch. 699, § 3, eff.
Jan. 1, 2022, italics added.)
Assembly Bill No. 333 also altered the requirements for proving the “pattern of
criminal gang activity” necessary to establish the existence of a criminal street gang.
Before Assembly Bill No. 333 was enacted, section 186.22, subdivision (e) defined a
“ ‘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 [enumerated] 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.” (§ 186.22, former subd. (e).) Assembly Bill No. 333 redefined
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“ ‘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.” (§ 186.22, subd. (e)(1), as amended by Stats. 2021, ch. 699, § 3.)
Additionally, the currently charged offense can no longer be used as a predicate offense.
(§ 186.22, subd. (e)(2), as amended by Stats. 2021, ch. 699, § 3.) With respect to
common benefit, section 186.22, subdivision (g) now explains: “[T]o benefit, promote,
further, or assist means to provide a common benefit to members of a gang where the
common benefit is more than reputational. Examples of a common benefit that are more
than reputational may include, but are not limited to, financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a
potential current or previous witness or informant.” (§ 186.22, subd. (g), as amended by
Stats. 2021, ch. 699, § 3.)
C. Analysis
Defendant contends that the evidence presented at trial is no longer sufficient to
sustain the jury’s true finding on the gang enhancement allegations. The Attorney
General agrees, and we agree with the parties.
To prove the pattern of gang activity necessary to establish the existence of a
criminal street gang, the prosecution offered evidence of two predicate crimes: Johnson’s
2017 conviction for carrying a loaded firearm in a vehicle (§ 25850, subd. (c)(6)), and
Collins’ January 2019 conviction for attempted second degree murder (§§ 664, 187, subd.
(a)) and true finding on a gang enhancement, related to his involvement in the June 17
shooting charged here. However, following the amendments to section 186.22 made by
Assembly Bill No. 333, the evidence presented at trial regarding these predicate offenses
is insufficient to prove a pattern of gang activity.
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Regarding Johnson’s crime, there was no evidence that his crime “commonly
benefited” the gang in a way that was more than reputational, and the jury was not
instructed that it had to make such a finding. Additionally, there was no evidence that he
committed the crime with more than one gang member, as now required by section
186.22. Thus, absent additional evidence regarding the circumstances of that crime,
Johnson’s conviction no longer qualifies as a predicate offense supporting a gang
enhancement.
Next, Collins’ conviction of attempted murder was related to the charged June 17
shooting, and therefore that conviction can no longer be used to support a gang allegation
because the amended statute prohibits using the current offense as a predicate offense.
(§ 186.22, subd. (e)(2).) Thus, while there was evidence that Collins committed that
crime with another gang member--defendant--and that his crime was committed on
behalf of the gang, that crime cannot be used as a predicate offense to establish a pattern
of criminal gang activity.
Defendant further contends the evidence presented at trial is insufficient to support
a finding that Sleeperz Dream was a criminal street gang under the amended statute,
which now defines “ ‘criminal street gang’ ” in part as “an ongoing, organized
association or group of three or more persons, whether formal or informal.” (§ 186.22,
subd. (f), italics added, as amended by Stats. 2021, ch. 699, § 3.) The statute previously
defined the term in part as “any ongoing organization, association, or group of three or
more persons, whether formal or informal.” (§ 186.22, former subd. (f), italics added.)
Defendant contends Sleeperz Dream was newly formed, had no known connections to
larger gangs, did not have a specific territory, was not identified with specific colors,
symbols, signs, graffiti, or tattoos, did not have a known initiation process, and there
were no gang affiliations mentioned during the charged shootings.
Defendant does not discuss how Assembly Bill No. 333’s amendment to the
definition of “ ‘criminal street gang’ ” affects the proof required to establish the existence
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of a criminal street gang. However, a plain reading of the amended statute demonstrates
the Legislature’s intent to require that a criminal street gang be “organized” in a way that
was not previously required. The legislative history of Assembly Bill No. 333 supports
this conclusion. A bill analysis by the Assembly Committee on Public Safety stated:
“This bill would redefine the term[] . . . ‘criminal street gang.’ In doing so, this
bill . . . would require proof of organization (an established [hierarchy]).” (Assem. Com.
on Public Safety, Analysis of Assem. Bill No. 333 (2021-2022 Reg. Sess.) as amended
March 30, 2021, p. 5.) That same bill analysis quoted the Committee on Revision of the
Penal Code’s 2020 Annual Report: “ ‘[I]n comparison to California, other states require
more evidence of connection or organization between gang members for gang
enhancements to apply. For example, in Illinois, to qualify as a criminal street gang, it
must be shown that a group has ‘an established hierarchy.[’] In Arkansas, a person
commits the offense of engaging in a criminal gang when they commit two or more
predicate offenses ‘in concert’ with two or more other persons. In Maryland, a ‘criminal
organization’ is required to have an ‘organizational or command structure,’ and to
convict a person of participating in a criminal organization, the prosecution must prove
the defendant had knowledge of the pattern of criminality of members of the gang.”
(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 333 (2021-2022 Reg. Sess.)
as amended March 30, 2021, p. 7, quoting Com. on Revision of the Penal Code, 2020
Annual Report, Feb. 2020, p. 47.) The analysis further noted the Committee’s
recommendation to “[f]ocus the definition of ‘criminal street gang’ to target organized,
violent enterprises.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 333
(2021-2022 Reg. Sess.) as amended March 30, 2021, p. 7, italics added, quoting Com. on
Revision of the Penal Code, 2020 Annual Report, Feb. 2020, p. 44.) Pursuant to that
recommendation, according to the analysis, “this bill’s definition of ‘criminal street gang’
would include a requirement that the prosecution prove that the organization, association
or group of three or more persons has an ‘established hierarchy.’ ” (Assem. Com. on
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Public Safety, Analysis of Assem. Bill No. 333 (2021-2022 Reg. Sess.) as amended
March 30, 2021, p. 8.)
Here, there was no evidence presented regarding the hierarchy of Sleeperz Dream
that would satisfy the definition of “ ‘criminal street gang’ ” under Assembly Bill No.
333. Accordingly, because we conclude that the evidence was insufficient to show a
pattern of gang activity or the existence of an organized association or group, the gang
enhancement findings must be vacated and the matter remanded to give the prosecution
the opportunity to prove the applicability of the enhancements under the amendments to
section 186.22. (See People v. Lopez, supra, 73 Cal.App.5th at p. 346.)
D. Firearm Enhancements
Defendant further contends that we must vacate the true findings regarding the
“gang-related firearm enhancements.” Although he does not identify the specific
findings he seeks to vacate, because section 12022.53, subdivision (e)(1) requires a
violation of section 186.22, subdivision (b), we assume the allegations accompanying
counts 1 through 4 that a principal personally and intentionally discharged a firearm
during the commission of the crimes (§ 12022.53, subds. (c), (e)(1)) are the gang-related
firearm enhancements he challenges here. The Attorney General does not specifically
address firearm enhancements in his briefing, but we agree with defendant’s claims.
As to each of counts 1 through 4, the jury found true the separate allegations that
defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and
that a principal personally and intentionally discharged a firearm during the commission
of the crimes (§ 12022.53, subds. (c), (e)(1)). Each of the enhancements specified in
section 12022.53, subdivisions (b) through (d) provide for punishment of varying lengths
for crimes involving a firearm--depending on how the firearm is used and the harm that
results from the use--independent of any gang-related finding. However, pursuant to
section 12022.53, subdivision (e)(1), these enhancements may also be imposed on any
person who is a principal in the offense where the person violated section 186.22,
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subdivision (b), and any principal in the offense committed any act specified in section
12022.53, subdivisions (b) through (d). Accordingly, where a jury finds true an
enhancement allegation pursuant to section 12022.53, subdivision (e)(1), that finding
must be vacated and remanded for retrial along with the gang enhancement allegations
vacated pursuant to Assembly Bill No. 333’s amendments to section 186.22. Here,
because the jury’s findings that a principal personally and intentionally discharged a
firearm during the commission of the crimes charged in counts 1 through 4 were
predicated upon its findings regarding the gang enhancement, we vacate these findings.
(§ 12022.53, subds. (c), (e)(1).)
Because the state of the law has changed since defendant’s original sentencing
(see, e.g., People v. Morrison (2019) 34 Cal.App.5th 217, 222 [court exercising
discretion to strike enhancement under § 1385 can instead impose lesser enhancement in
the interest of justice]; People v. Tirado (2022) 12 Cal.5th 688, 697 [“Morrison correctly
described the scope of a trial court’s sentencing discretion under section 12022.53”];
§ 1170, subd. (b)(1)-(3), as amended by Stats. 2021, ch. 731, § 1.3 [limiting sentencing
court’s ability to impose aggravated term of imprisonment absent specific
circumstances]; § 654, as amended by Stats. 2021, ch. 441, § 1 [authorizing sentencing
court to punish a defendant under “either of such provisions” where an act or omission is
punishable in different ways by different provisions of law]), the trial court is directed to
conduct a full resentencing on remand after all charges and allegations against defendant
are resolved (People v. Buycks (2018) 5 Cal.5th 857, 893).
DISPOSITION
We vacate the gang enhancements (§ 186.22, subd. (b)(1)) found true as to counts
1 through 6, 8, and 9, and the gang-related firearm enhancements (§ 12022.53, subds. (c),
(e)(1)) as to counts 1 through 4. We remand the matter to the trial court to provide the
prosecution with the opportunity to retry the sections 186.22 and 12022.53, subdivisions
(c) and (e)(1) enhancement allegations under the law as amended by Assembly Bill No.
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333 and to provide defendant with a full resentencing at the conclusion of retrial or at
such time as the prosecution elects not to retry the vacated enhancement allegations. In
all other respects, the judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Hoch, J.
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