People v. Hall CA2/1

Filed 4/12/22 P. v. Hall CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B308502
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA104968)
v.
ELIJAH KAREEM SHABAZZ
HALL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Judith Levey Meyer, Judge. Vacated in
part, affirmed in part as modified, and remanded with directions.
Robert L.S. Angres, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Paul M. Roadarmel,
Jr., Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Elijah Kareem Shabazz Hall was convicted of
one count of first degree murder, two counts of attempted second
degree robbery, and three counts of second degree robbery. The
jury found true gang enhancement allegations relating to all six
offenses, and it also found true certain firearm enhancement
allegations pertaining to the first degree murder and second
degree robbery counts. The trial court sentenced Hall to a total
state prison term of 23 years plus 75 years to life, which includes
the gang and firearm enhancements, several of which were
stayed.
On appeal, Hall claims the trial court erred in resuming his
trial after suspending it for six months due to the COVID-19
pandemic. He also challenges the sufficiency of the evidence
supporting the gang enhancements, and claims the judgment
must be modified to include an additional day of presentence
custody credit. The Attorney General concedes Hall is entitled to
one more day of presentence custody credit, but otherwise
maintains the trial court did not commit reversible error.
We issued an opinion that rejected Hall’s first two appellate
claims, and would have modified the judgment to include an
additional day of presentence custody credit and affirmed the
judgment as modified. In particular, we concluded that Hall’s
first claim of error failed because it is supported by only his
speculative assertion that the six-month continuance prevented
the jury from remaining impartial and open-minded, and because
Hall could have mitigated any such hypothetical prejudice by
asking the trial court to repeat the preliminary instructions prior
to and after the suspension of trial, requesting leave to
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recapitulate evidence that had been presented before the
continuance, and, upon the resumption of trial, requesting that
the trial court question jurors regarding whether they had
received any extrajudicial information concerning this case
during the hiatus.
We further concluded that Hall’s second appellate claim
failed because the People offered evidence that (1) Hall made
recorded statements in gang vernacular suggesting that Hall and
an accomplice perpetrated the robberies and attempted robberies
together to accomplish a mission for their gang; and (2) Hall used
a shotgun to kill a member of a rival gang in territory claimed by
the victim’s gang and Hall’s gang, and, shortly before the murder,
Hall manifested his intent to use a shotgun in connection with
gang business.
The Supreme Court granted Hall’s petition for review of
our decision and transferred the matter back to us “with
directions to vacate [our] decision and reconsider the cause in
light” of certain amendments to the gang enhancement statute
that took effect after we issued our opinion.
Although the Supreme Court instructed us to reconsider
the cause in light of the new amendments to the gang
enhancement statute, we again address Hall’s first two claims of
error and the presentence custody credit issue in this opinion.
We do so because our prior opinion that resolved these matters
has been vacated, Hall explicitly reasserts these issues in his
supplemental briefing, the claim of error concerning the
six-month continuance and the presentence custody credit issue
are not mooted by the amendments to the gang enhancement
statute, and it is unclear whether Hall could be retried on the
3
gang enhancements and certain firearm enhancements if he were
to prevail on his initial sufficiency-of-the-evidence challenge.
As was the case in our prior opinion, we reject Hall’s first
two claims of error and, because the parties agree that Hall is
entitled to one additional day of presentence custody credit, we
modify the judgment to include that credit. Furthermore, the
parties do not dispute that Hall is entitled to the benefit of the
new amendments to the gang enhancement statute, and that the
People did not offer sufficient evidence to warrant the imposition
of the gang enhancements under the newly-amended statute.
Accordingly, we vacate the gang enhancement findings and the
related firearm enhancement findings, modify the judgment to
include an additional day of presentence custody credit, and
affirm the remainder of the judgment as modified. On remand,
the People may elect to retry Hall on the gang enhancement
allegations and the firearm enhancement allegations relating
thereto. If the People do not elect to retry Hall, then the trial
court shall resentence him accordingly.
PROCEDURAL BACKGROUND
On November 4, 2019, the People filed a first amended
information charging Hall and Avonte Zarion Jones (Jones) with
two counts of attempted second degree robbery, in violation of
Penal Code1 sections 211 and 664 (counts 1 and 2); one count of
murder, in violation of section 187, subdivision (a) (count 3); and
three counts of second degree robbery, in violation of section 211
(counts 4, 5, and 6). The People also alleged certain gang and
firearm enhancements. In particular, the People averred Hall
1 Undesignated statutory citations are to the Penal Code.
4
and Jones committed all six offenses 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 for the purposes of section 186.22,
subdivision (b)(1)(C). With respect to count 3, the People averred
Hall personally and intentionally discharged a firearm, a
shotgun, which caused great bodily injury and death to the victim
within the meaning of section 12022.53, subdivision (d). In
connection with counts 1, 2, 4, 5, and 6, the People asserted that
a principal personally used a firearm, a shotgun, within the
meaning of section 12022.53, subdivisions (b) and (e)(1).
On March 11, 2020, the trial court impaneled the jury. On
March 12, 2020, the court provided its preliminary instructions to
the jury, the People and Jones delivered their respective opening
statements, Hall reserved his right to make an opening
statement at a later time, and five witnesses testified for the
People. On Friday, March 13, 2020, five more witnesses testified
for the People. On Monday, March 16, 2020, the trial court
suspended the jury trial on account of the COVID-19 pandemic.2
The court ultimately continued the trial to
September 14, 2020 due to the pandemic. Several days before the
trial resumed, Hall filed a motion to “(1) declare a mistrial;
(2) grant a continuance in this matter to some time in early 2021;
[or] (3) sever the trial of [Hall] from that of [codefendant Jones],
and then continue the trial of [Hall] and allow the [trial of Jones]
2 We, sua sponte, take judicial notice of the fact that
March 13, 2020 and March 16, 2020 were Friday and Monday,
respectively. (See Evid. Code, §§ 452, subd. (h) & 459.)
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to proceed.”3 In his motion, Hall argued the court’s health and
safety rules (e.g., the requirement that witnesses wear masks)
interfered with his right to a fair trial, and, given the prevalence
of COVID-19, the courthouse was not a safe environment for the
trial. The trial court denied Hall’s motion on
September 14, 2020.4
On September 15, 2020, the trial court allowed both parties
to provide “brief reopening” statements prior to the resumption of
the People’s case in chief. On September 21, 2020, both sides
rested, the parties made their closing arguments, the trial court
issued its final instructions, and the matter was submitted to the
jury. On September 22, 2020, the jury found Hall guilty on all
six counts. In connection with count 3, the jury found that Hall
committed first degree murder. The jury also found true all the
enhancements alleged in the first amended information, except
for the firearm enhancements pertaining to the two attempted
second degree robbery counts (i.e., counts 1 and 2).
On October 20, 2020, the trial court sentenced Hall to a
determinate prison term of 23 years on counts 1, 2, 4, 5, and 6,
followed by an indeterminate term with no parole eligibility for
3 On September 14, 2020, Jones pleaded no contest to
manslaughter, robbery, and a gang enhancement. Jones is not a
party to this appeal.
4 On September 15, 2020, Hall’s counsel orally moved for a
mistrial because the witnesses were wearing face masks while
testifying. The trial court denied this motion as well. On appeal,
Hall does not challenge the trial court’s ruling on this second
mistrial motion.
6
75 years on count 3.5 With regard to the gang and firearm
enhancements, the trial court: imposed a gang enhancement of
1 year 8 months on count 1; stayed the gang enhancement on
count 2; imposed a firearm enhancement of 25 years to life on
count 3 and stayed the gang enhancement on that count; imposed
a firearm enhancement of 10 years on count 4 and stayed the
gang enhancement on that count; and imposed firearm
enhancements of 10 years each on counts 5 and 6, respectively,
and stayed the gang enhancements for those two counts. The
trial court awarded Hall 1,500 presentence custody credits
toward his determinate sentence. Hall timely appealed the
judgment.
On November 29, 2021, we issued a decision that would
have modified the judgment to reflect that Hall is entitled to
1,501 days of presentence custody credit, and affirmed the
judgment as modified.
On February 9, 2022, the Supreme Court granted Hall’s
petition for review and transferred the case to us “with
instructions to vacate [our] decision and reconsider the cause in
light of Assembly Bill No. 333 (Stats. 2021, ch. 699)” (AB 333).
We vacated our decision later that day. The parties thereafter
filed supplemental briefing in which they agree that AB 333
applies to this case.
5 Hall’s three-year prison sentence for count 1 is
consecutive to his 20-year prison sentence for count 4, whereas
his prison terms for counts 2, 5, and 6 run concurrent to the
sentence imposed on count 4.
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FACTUAL BACKGROUND
This part summarizes (a) relevant aspects of the evidence
offered by the People, and (b) Hall’s defense. We summarize only
those facts that are pertinent to this appeal.
1. The People’s Evidence
A. The Attempted Second Degree Robberies of
D.C. and J.H. (Counts 1 and 2)
At around 3:00 a.m. on September 11, 2016, D.C. and J.H.
stood near D.C.’s Buick in front of D.C.’s residence on West 9th
Street in Long Beach. A Mercedes-Benz approached the men
with its headlights dimmed; two African-Americans were inside
this vehicle. One man jumped out of the backseat of the vehicle,
pointed a single-barrel shotgun over the top of the hood, and said
“run them pockets,” at which point D.C. realized that he was
being robbed.
D.C. responded by claiming that he did not have anything.
The driver of the vehicle replied, “[H]urry up before you get
blasted.” D.C. and J.H. turned and ran away from the scene.
The passenger got back into the car, and the two African-
Americans used the vehicle to pursue D.C. and J.H. D.C. and
J.H. successfully evaded the vehicle by fleeing on foot, and they
both later returned to D.C.’s home and contacted the police.
D.C. was unable to identify the two perpetrators from a
photographic lineup the police later showed to him.
B. The First Degree Murder of Juan Garcia
(Count 3)
At around 3:18 a.m. on September 11, 2016, C.G. heard
what she thought was a car crash outside her residence on East
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12th Street in Long Beach. She later told the police that she
heard a loud bang followed by footsteps and then a door closing.
At around 3:39 a.m., a police dispatcher informed Long
Beach Police Officer Robert Cruz (Officer Cruz) of a shooting on
West 12th Street. Upon Officer Cruz’s arrival at the scene, he
found a man on the ground who appeared to be dead. Shotgun
wadding was discovered nearby, yet no weapon was found at the
scene. The wadding was manufactured by Remington for use in a
12-gauge shotgun. A wallet found on the man revealed that his
name was Juan Garcia. An autopsy of Garcia’s body later
concluded that he died from a shotgun wound to the back of the
head, and that 20 to 30 feet separated Garcia from the shooter.
At about 3:15 a.m. on September 11, 2016, Signal Hill
Police Officer Brandon Moulton (Officer Moulton) saw a gray
Mercedes-Benz run a red light on the Pacific Coast Highway.
The Pacific Coast Highway is located approximately six blocks
away from the location where Officer Cruz found Garcia’s body.
The Mercedes-Benz made its way into a parking lot where a man
later identified as Deshawn Brittman got out of the vehicle and
walked toward a nearby convenience store. The Mercedes-Benz
then sped out of the parking lot.
On October 7, 2016, Mauricio Hernandez arrived at the
underground parking lot of his apartment complex in Long Beach
and discovered a shotgun near a fence. The police later took
possession of the weapon, which was a black 12-gauge Mossberg
shotgun that had a bloodstain on it. A forensic analysis of DNA
found on the shotgun revealed that the chance the DNA belonged
to a person other than Hall was 1 in 980 octillion. The shotgun
also had another person’s DNA on it, but there was not enough of
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this genetic material to allow a forensic analyst to draw any
conclusions from it.
C. The Second Degree Robberies of D.G., H.G., and
O.G. (Counts 4, 5, and 6)
At about 3:40 a.m. on September 11, 2016, three brothers—
D.G., H.G., and O.G.—were drinking beer outside on East 14th
Street in Long Beach. Several African-American men emerged
from two vehicles and approached D.G., H.G., and O.G. Two of
these men had firearms—i.e., a handgun and a shotgun or a rifle.
The African-American men pointed the guns at the brothers and
demanded their wallets. D.G., H.G., and O.G. handed over their
personal property, including H.G.’s gold chain and the keys to
O.G.’s Audi. The robbers then returned to their vehicles, one of
which was a gray car, and drove away.
After the perpetrators exited the scene, O.G. stood guard
over his Audi. O.G. eventually left this location, and when he
later returned, he discovered that the Audi was missing.
D. The Police Investigation
A video recording from a pawnshop depicted “a vehicle
consistent with being” the Audi stolen from O.G. arriving at the
establishment at about 11:20 a.m. on September 11, 2016. The
recording also showed the car’s five African-American occupants
get out of the vehicle and enter the building. At about 11:35 a.m.,
a pawnbroker at the location purchased various items, including
a gold chain, from an African-American customer who had a “rat
tail” hairdo.
That afternoon, police observed a Mercedes-Benz park at a
strip mall; the vehicle’s three African-American occupants
entered a telephone store. Later, police saw Hall (who at that
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time had a pony tail) drive an Audi into that parking lot and go
into the telephone store and then a nearby pizzeria. Several
minutes later, Hall returned to the Audi and backed out of the
parking lot. After police initiated their pursuit of the Audi, Hall
crashed the vehicle, fled on foot, and was apprehended by the
police.
Police searched the Audi and found a telephone that
belonged to Jones, which contained a photograph of Hall that was
taken on August 25, 2016. Another telephone that was found in
the Audi belonged to Hall.
Cellular telephone records indicate that at 3:00 a.m. on
September 11, 2016, Hall’s telephone was in an area just north of
the scene of the shooting. These records also show that between
12:04 p.m. and 1:05 p.m. that day, Hall’s telephone was in the
vicinity of the pawnshop. The records further indicate that Hall’s
and Jones’s telephones were near Hall at the time he was
arrested.
2. Hall’s Defense
Hall’s counsel suggested in her closing argument that
although the People presented circumstantial evidence the
homicide was committed with a shotgun, the People had not
shown that Hall was the person who shot Juan Garcia. The
attorney further argued the People had not established that Hall
was “anywhere near the Mercedes-Benz” at issue on
September 11, 2016. Hall’s counsel also stated that D.C. failed to
identify Hall as the perpetrator of the attempted robberies, and
intimated that D.G., H.G., and O.G. could not accurately recall
the circumstances of the robberies. For instance, Hall’s counsel
argued there were discrepancies in the brothers’ accounts
regarding, among other things, the number of perpetrators
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involved and the brothers’ descriptions of the perpetrators and
the vehicles and weapons at issue.
DISCUSSION
In Hall’s opening brief, which was filed more than three
months before AB 333’s enactment, he challenges the trial court’s
decision to resume the trial after a six-month recess, the
sufficiency of the evidence supporting the gang enhancements
under the pre-AB 333 version of the gang enhancement statute,
and the court’s award of only 1,500 (as opposed to 1,501)
presentence custody credits. (See also Stats. 2021, ch. 699
[AB 333 was filed with the Sec’y of State on Oct. 8, 2021, more
than three months after Hall filed his opening brief].) Although
our prior opinion resolved each of these issues, we since vacated
the opinion in accordance with the Supreme Court’s instructions.
Before addressing AB 333’s amendments to the gang
enhancement statute, we reach the merits of the three claims
Hall had initially raised for the following reasons. First, Hall’s
claims of error remain unadjudicated because our prior opinion
was vacated. Second, Hall clarifies in his supplemental brief he
still believes “the judgment should be reversed” for “the reasons
stated in [his] prior briefing,” meaning that he has not withdrawn
his initial claims. Third, Hall’s invocation of AB 333 does not
moot his challenge to the trial court’s decision to resume the trial
after a six-month suspension of the proceedings because he
argues the court’s resumption of the trial is an error that
invalidates the entirety of the judgment. Fourth, it is unclear
whether double jeopardy would preclude retrying Hall on the
gang enhancements and the related firearm enhancements if he
were to prevail on his initial insufficiency-of-the-evidence claim
under the pre-AB 333 version of the statute. (See People v. Seel
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(2004) 34 Cal.4th 535, 546–547 [suggesting that, to determine
whether double jeopardy protections apply to a sentencing
enhancement that is reversed for insufficient evidence, an
appellate court must ascertain whether the enhancement “ ‘is the
functional equivalent of an element of a greater offense’ ”]).
Without deciding that issue, and in an abundance of caution, we
address the sufficiency of the evidence as to the gang and related
firearm enhancements under the older version of the statute.
Lastly, Hall’s reliance on AB 333 has no impact on whether he is
entitled to an additional day of presentence custody credit.
A. Hall Fails to Show the Trial Court Erred in Denying
His Motion for a Mistrial and in Allowing the Trial to
Resume after a Six-Month Suspension of the
Proceedings
“ ‘We review a ruling on a mistrial motion for an abuse of
discretion. [Citations.]’ ” (People v. Bell (2019) 7 Cal.5th 70, 121
(Bell).) “In general, ‘a motion for mistrial should be granted only
when “ ‘a party’s chances of receiving a fair trial have been
irreparably damaged.’ ” ’ [Citation.]” (Ibid.) “ ‘A trial court
should declare a mistrial only “ ‘if the court is apprised of
prejudice that it judges incurable by admonition or instruction.’ ”
[Citation.] “In making this assessment of incurable prejudice, a
trial court has considerable discretion.” ’ [Citation.]” (Ibid.)
“ ‘Due process requires that the accused receive a trial by
an impartial jury free from outside influences.’ [Citation.]”
(People v. Santamaria (1991) 229 Cal.App.3d 269, 281
(Santamaria).) “ ‘[T]he very character of certain procedures
[makes] it impractical to establish the degrees of prejudice which
[have] resulted therefrom. [Citation.] In these circumstances the
defendant need not show that he was actually prejudiced during
13
his trial in order to establish a denial of due process of law; it is
enough if he can show there was a reasonable probability of
prejudice. [Citations.]’ [Citation.]” (Id. at p. 280.)
“An error is ‘ “structural,” and thus subject to automatic
reversal, only in a “very limited class of cases,” ’ such as the
complete denial of counsel, a biased decision maker, racial
discrimination in jury selection, denial of self-representation at
trial, denial of a public trial, and a defective reasonable-doubt
instruction. [Citation.] What unites this class of errors is ‘a
“defect affecting the framework within which the trial proceeds,
rather than simply an error in the trial process itself.” . . . Put
another way, these errors deprive defendants of “basic
protections” without which “a criminal trial cannot reliably serve
its function as a vehicle for determination of guilt or
innocence . . . and no criminal punishment may be regarded as
fundamentally fair.” ’ [Citation.]” (People v. Mil (2012)
53 Cal.4th 400, 410 (Mil).)
Hall does not contend the emergence of the COVID-19
pandemic was an improper ground for suspending the trial.
Rather, Hall argues the trial court abused its discretion in
denying his motion for a mistrial “because [the court] should have
recognized that a recess of six months deprived [Hall] of a trial
that comported with fairness,” and that, “even if it did not err in
this regard, the lengthy [six-month] recess adversely impacted
the fairness of the trial itself,” thus “depriv[ing] [Hall] of his state
and federal constitutional rights to a fair and impartial jury
trial.” With regard to his constitutional claim, Hall argues the
continuance “ ‘involve[d] such a probability that prejudice will
result that it is deemed inherently lacking in due process.’ ” Hall
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further contends that the resumption of trial amounts to
structural error that is “reversible per se.”
Hall’s claims of error arising out of the six-month
continuance of his trial arise from four premises (several of which
overlap): (1) “[N]o juror in this case could have adequately
recalled the trial court’s initial instructions such that [we] can
presume that the jurors followed them”; (2) “the likelihood that
each juror could recall the demeanor and comportment of” the
People’s witnesses who testified before the six-month continuance
“strains credulity and places into question the reliability of the
fact-finding process”; (3) “in the absence of questioning by the
trial court, no reasonable basis existed for the trial court to
assure itself that the jury’s impartiality remained intact after
such a long time period”; and (4) “a danger lurked that the jurors’
exposure to only part of the prosecution’s case [before the six-
month recess] resulted in premature conclusions and a
determination of guilt before both sides had rested,” “especially
since the trial court did not reread the [initial] instructions” upon
the resumption of trial.
We acknowledge the better practice would have been for
the trial court to reread its preliminary instructions to the jury
prior to the six-month recess and immediately upon the
continuation of the trial.6 Nonetheless, we conclude Hall has not
established this omission amounts to reversible error.
6 Hall does not argue that during the six-month recess, the
trial court should have summoned the jurors for the purposes of
repeating the court’s preliminary instructions to them or that the
health concerns raised by the COVID-19 pandemic would have
even allowed such a gathering.
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That the trial court read the preliminary instructions a
mere four calendar days before the suspension of trial suggests
the jury had little difficulty recalling the instructions at the
outset of the recess. Those preliminary instructions directed the
jurors not to (inter alia): “read, listen to, or watch any reports or
commentaries about this case during the trial”; “listen to anyone
who tries to talk to [the jurors] about the case or about any of the
people or subjects involved in it”; or “make up [their] mind[s]
about the verdict or any issue until after [they have] discussed
the case . . . during deliberations.” The initial instructions also
provided: “If you do receive such information or if anyone
influences you or you witness someone trying to influence
another juror, you must immediately tell [the] bailiff.”
Furthermore, the record shows that during this 11-day jury trial,
the court ordered the jurors not to discuss the case with anyone
on at least eight occasions after it had given the introductory
instructions; on four of those occasions, the court also told the
jurors not to decide the case until it was formally submitted to
them; and two of the admonitions not to discuss the matter and
prematurely decide the case were given before the trial was
suspended on March 16, 2020. (See People v. Gray (2005)
37 Cal.4th 168, 230 (Gray) [“To give an abbreviated
admonishment after first delivering a full one is permissible.”].)
As important, Hall does not claim to have asked the trial
court to repeat the preliminary instructions when the trial
resumed, nor is it apparent from the record that he ever made
such a request. Because Hall has not shown he requested that
the court repeat the preliminary instructions or that he suffered
any prejudice from the court’s failure to repeat the instructions
sua sponte, we cannot conclude this omission deprived him of a
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fair and impartial jury trial. (Cf. Gray, supra, 37 Cal.4th at
pp. 229–230 [“ ‘ “[E]rror in failing to give [a] required admonition
does not require reversal unless the defendant calls the trial
court’s attention to the omission at the time of the adjournment,
or unless the defendant on appeal affirmatively points to
prejudice resulting from the omission.” ’ [Citation.]”].)
We also reject Hall’s complaint that the continuance
deprived him of a fair and impartial jury trial because (a) the jury
heard only witnesses from the People before the trial was
suspended, and (b) the jury may have forgotten the witnesses’
demeanor and comportment during their testimony.
At an April 1, 2020 hearing regarding the status of the
case, the court observed that continuing the trial had resulted in
“no prejudice” to Hall because “no identifications [had been]
made, no direct witnesses to any of the charges ha[d] come and
testified yet and no one ha[d] made any formal [identifications] in
court yet . . . .” In the court’s minute order for that hearing, the
court further found that: “1. The jury only heard testimony
regarding the crime scene as to count 3 [(i.e., the murder charge)]
and the collection of evidence involving count 3. [¶] A. This
includes crime scene photos. [¶] B. Photos of cars[. ¶] C.
Collection of shot gun pellets, etc. [¶] 2. No victims for counts 1,
2, 4, 5 or 6 [(i.e., the remaining counts)] ha[d] testified. [¶] 3. No
identifications of the defendants ha[d] occurred.” Hall fails to
dispute the trial court’s characterization of the evidence
presented up to that point, and thus admits it is accurate. (See
People v. Giordano (2007) 42 Cal.4th 644, 666 [“On appeal,
we presume that a judgment or order of the trial court is correct,
‘ “[a]ll intendments and presumptions are indulged to support it
on matters as to which the record is silent, and error must be
17
affirmatively shown.” ’ [Citation.]”].) It is also not apparent that
the jurors’ exposure to this evidence prior to the six-month
continuance in any way prejudiced Hall’s defense, given that
Hall’s closing argument indicates his theory was that he did not
perpetrate these offenses, and not that these offenses did not in
fact occur.
Insofar as Hall was concerned the six-month delay of the
trial hindered the jurors’ ability to recall the demeanor and
conduct of the witnesses who testified before the recess, he could
have mitigated any such prejudice by asking the trial court for
permission to summarize the testimony given up to that point.
(Cf. Santamaria, supra, 229 Cal.App.3d at p. 282 [“Had the
adjournment occurred in midtrial, counsels’ recapitulation of the
evidence during argument might have nullified or minimized the
effect of the delay on the jurors’ recall.”].) Here, the trial court
did afford the parties the opportunity once again to provide
opening statements upon the resumption of trial.
Instead of requesting leave to use the opening statement to
remind the jury of any weaknesses in the evidence the People had
presented, Hall’s counsel objected to the trial court’s offer to
present new opening statements on the ground that counsel
did not “think it[ was] proper to make an opening statement after
[the prosecutor] already kn[ew] what [his] evidence [was] . . . .”
In response to that objection, the court ruled the parties could
provide only “a very brief reopening, just to remind [the jury]
what the charges [we]re and the gist of what the trial [was
about].” Hall’s counsel thereafter decided to provide the following
terse opening statement: “Just to remind the jurors, nothing
counsel said is evidence. It’s merely his hopes.” Because Hall
had a reasonable opportunity to remind the jury of the witnesses’
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demeanor and comportment while testifying, any juror’s failure
to recall that information does not constitute unfair prejudice
warranting reversal of the judgment. (See People v. Houston
(2005) 130 Cal.App.4th 279, 320 [“[A]ppellant ‘ “ ‘is entitled to a
fair trial . . . not a perfect one[,]’ ” ’ [citation],” italics added].)
Next, Hall’s concern that the delay in the proceedings may
have prevented the jury from continuing to be open-minded is
entirely speculative. Hall does not claim that upon resumption of
the trial, he asked the trial court to assess the jurors’ continued
ability to be impartial, and it does not appear that he did so. (See
Gray, supra, 37 Cal.4th at pp. 230–231 [noting that a defendant
may move to reopen voir dire of the jury].) Nor does Hall claim to
have submitted any juror affidavits to the trial court to
demonstrate the jurors had been exposed to extrajudicial
information during the trial’s suspension. (See, e.g., People v.
Engstrom (2011) 201 Cal.App.4th 174, 182–184 [noting that a
defendant may prove juror misconduct with affidavits describing
“ ‘statements, conduct, conditions, or events as are “open to sight,
hearing, and the other senses and thus subject to
corroboration” ’ ”].) Instead, Hall’s argument seems to be that the
six-month continuance alone gives rise to an unreasonable risk
that the jurors could not remain fair and neutral. In the absence
of any evidence that this delay had any tendency to compromise
the objectivity of the jurors, we cannot presume that it infringed
on Hall’s rights to a fair and impartial jury trial. (Cf. Gray, at
pp. 225–226, 228–230 [holding that “the mere possibility the jury
may have acquired or been exposed to some extrajudicial
information about the case [was] an insufficient basis on which to
reverse [the] judgment” when there was a 338-day delay between
the guilt and penalty phases of a capital trial and “the trial
19
court . . . carefully admonished the jurors not to discuss the case,
to avoid improper influences, not to speculate about the reason
for the delay, and to inform the court if any such improper
contact occurred”].)
Lastly, although Hall paraphrases, and quotes extensively
from, several judicial opinions in the “[a]pplicable [l]aw” part of
his briefing, he makes no attempt to analogize any of those cases
to the instant matter. (Boldface omitted.) Accordingly, his
reliance on this case authority is unavailing. (See Hodjat v. State
Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10
[“[A]n appellant is required to not only cite to valid legal
authority, but also explain how it applies in his case.”].)
For these reasons, we conclude Hall has not shown the trial
court abused its discretion in resuming the trial after suspending
the proceedings for six months due to the COVID-19 pandemic
(see Bell, supra, 7 Cal.5th at p. 121), or that there is “ ‘a
reasonable probability’ ” the continuance abridged his
constitutional right to a fair and impartial jury trial. (See
Santamaria, supra, 229 Cal.App.3d at p. 280.) Because Hall has
not shown the trial court erred, we do not reach his argument
that the judgment is subject to automatic reversal. (See Mil,
supra, 53 Cal.4th at pp. 409–410 [indicating that the structural
error doctrine applies only if an appellate court has found error].)
B. We Reject Hall’s Sufficiency-of-the-Evidence
Challenge Under the Pre-AB 333 Version of the Gang
Enhancement Statute
“ ‘In addressing a challenge to the sufficiency of the
evidence supporting a conviction, the reviewing court must
examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial
20
evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v. Ochoa
(2009) 179 Cal.App.4th 650, 656–657 (Ochoa).) In conducting
this analysis, the reviewing court must “view[ ] all the evidence
in the light most favorable to the prosecution, and draw[ ] all
reasonable inferences in favor of the jury’s findings.” (See
People v. Perez (2017) 18 Cal.App.5th 598, 607 (Perez).)
“[W]e must begin with the presumption that the
evidence . . . was sufficient, and the defendant bears the burden
of convincing us otherwise. . . . [¶] . . . [A]n appellate court is ‘not
required to search the record to ascertain whether it contains
evidence that will sustain [the appellant’s] contentions.’
[Citation.] . . . [¶] . . . [T]he defendant must set forth in his
opening brief all of the material evidence . . . in the light most
favorable to the People, and then must persuade us that evidence
cannot reasonably support the jury’s verdict.” (See People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573–1574 (Sanghera).)
This substantial evidence standard applies to sufficiency-of-
the-evidence challenges to enhancements imposed pursuant to
section 186.22, subdivision (b). (See Ochoa, supra,
179 Cal.App.4th at pp. 656–657.) Section 186.22, subdivision (b)
authorized the trial court to enhance a defendant’s prison
sentence if “[t]he evidence . . . establish[es] both of the two prongs
to the gang enhancement under section 186.22, subdivision (b)(1).
‘First, the prosecution is required to prove that the underlying
felonies were “committed for the benefit of, at the direction of, or
in association with any criminal street gang.” [Citation.] Second,
there must be evidence that the crimes were committed “with the
specific intent to promote, further, or assist in any criminal
21
conduct by gang members.” ’ [Citation.]” (See Perez, supra,
18 Cal.App.5th at pp. 606–607.)
Although Hall does not challenge the sufficiency of the
evidence underlying his convictions, he does maintain in his
opening brief that “[b]ecause insufficient evidence supports the
allegations that [Hall’s] criminal conduct was gang related [under
the pre-AB 333 version of section 186.22], the gang
enhancements found true by the jury must be stricken as well as
the gang related firearm enhancements as to counts four through
six.” (Citing, inter alia, § 12022.53, subds. (b) & (e)(1) [provisions
concerning the 10-year firearm enhancement].)
Specifically, he contends “the record contains no evidence
that during this crime spree, [Hall] or anyone with him shouted
out a gang name or flashed a gang sign,” “any of the complaining
witnesses knew that the perpetrators were gang members,” “any
of the offenses were committed as retaliation in response to prior
gang activity,” “[Hall] knew or at least thought that Juan
Garcia . . . belonged to a rival gang,” or “any gang profited
monetarily or through enhancement of its reputation as a result
of the criminal conduct charged in this case” (e.g., by leaving
graffiti taking credit for these offenses).
Hall further asserts that “while [he] and Jones may have
been gang members whose crimes were committed in their gang’s
territory, the record contains no facts that permitted the
prosecution’s gang expert to discern whether the two men were
acting on their own during the commission of their offenses or
whether the men came together as gang members for that
purpose.”7 Additionally, Hall argues that “while robbery and
7 Hall does not dispute the Attorney General’s claim that
Hall and Jones committed the robberies and attempted robberies
22
murder may constitute primary activities of [Hall’s] gang,
[citation], ‘[t]here was no evidence that only gang members
committed [these offenses] or that a gang member could not
commit [these offenses] for personal benefit, rather than for the
benefit of the gang.’ [Citation.]” For the reasons discussed below,
we reject Hall’s claim of error because, under the pre-AB 333
version of the statute, substantial evidence supported both
prongs of the gang enhancement for all six counts.
together. (See Reygoza v. Superior Court (1991) 230 Cal.App.3d
514, 519 & fn. 4 (Reygoza) [criminal case in which the Court of
Appeal assumed that an assertion made by respondent was
correct because “defendant did not dispute respondent’s claim in
his reply”]; Rudick v. State Bd. of Optometry (2019)
41 Cal.App.5th 77, 89–90 (Rudick) [concluding that the
appellants made an implicit concession by “failing to respond in
their reply brief to the [respondent’s] argument on th[at] point”].)
23
1. The record contains substantial evidence that, under the
pre-AB 333 version of section 186.22, Hall committed the
robberies and attempted robberies for the benefit of, and in
association with, a criminal street gang, with the specific
intent to promote, further, and assist in criminal conduct
by gang members
Statements Hall made to jailhouse informants between
September 11 and 12, 2016 indicate that Hall and Jones
committed the robbery and attempted robbery offenses for the
benefit of their gang, the Rollin 20s Crips.8 The transcript of
these conversations indicates that while he was in a cell with the
informants, Hall referred to Jones by his gang moniker (“2 T’s”)
and also called him “cuz,” Hall told the informants “cuz” was
“with the business” and “solid,” and Hall answered in the
affirmative when one of the informants asked him if Hall and
“cuz” were “putting in work” when they perpetrated the
robberies.9
Detective Sean Magee, the People’s gang expert,10 testified
gang members use the phrase “putting in work” to refer to going
8 At trial, Hall stipulated that he and Jones are members
of the Rollin 20s Crips gang. On appeal, Hall does not retract
this concession, nor does he contest the jury’s implicit finding
that the Rollin 20s Crips is a “criminal street gang” for the
purposes of the pre-AB 333 version of section 186.22,
subdivision (b).
9 We rely upon this transcript for the content of Hall’s
conversations with the informants, just as the parties do in their
briefing.
10 At trial, the parties stipulated that Detective Magee
qualified as an expert “regarding gangs in this case.”
24
on a “mission” for their gang, and missions may include
robberies. Detective Magee further testified that a robbery
committed by gang members “benefits the gang because robberies
make money and money allows the gang to buy weapons, to buy
drugs, to defend themselves or protect their neighborhood.”
Detective Magee testified that if a person asks whether someone
is “with the business,” that person is trying to determine whether
an individual has a “solid” reputation with the gang—i.e.,
whether he or she “is willing to put in work,” is loyal to the gang,
and “will not cooperate” with the police “at a later date.” Under
these circumstances, the jury could have reasonably interpreted
Hall’s statements to the informants as evidence that Hall and
Jones committed the robberies and attempted robberies as part of
a mission for the benefit of their gang. The detective also told the
jury that gang members themselves benefit from committing a
crime together because it establishes “comradery” and “trust”
between them, enabling these members to carry out future
missions together on behalf of the gang.
Similarly, certain text messages sent from Hall’s telephone
on the evening of September 10, 2016 also suggest Hall
perpetrated the robberies and attempted robberies in his capacity
as a gang member. At just before 6 p.m. that day, “Danile T.”
sent Hall’s telephone a message that read: “ ‘You got a pistal
[sic]’ ”; and the user of Hall’s telephone sent the following
message in response: “ ‘IK got the gage.’ ” Later on in the text
message conversation, Danile T. stated, “ ‘Shit, IDK what’s popen
after tho’ ” and, “ ‘Might be a lic or somethings lol.’ ” In response,
the user of Hall’s telephone sent a message that read: “ ‘We gon
make some shyt happen, T.’ ”
25
Detective Magee testified that a Rollin 20s gang member
would use the term “IK” as a shorthand for “Insane Killer,” a
reference to a rival of the Rollin 20s called the Insane Crips.
Detective Shea Robertson testified the term “gage” is a slang
term for a shotgun. The People offered evidence showing that a
shotgun was used to perpetrate the murder and robberies.11
Furthermore, Detective Robertson explained that “ ‘lick’ ” is a
slang term for a robbery, suggesting Hall expressed his intent to
commit robberies with the “gage” in his text message
conversation with Danile T. Hence, these text message
conversations from September 10, 2016 constitute circumstantial
evidence that Hall used a shotgun the following day in connection
with gang business (i.e., as an “Insane Killer” committing “lics” or
robberies), and not simply for his own benefit. (See Perez, supra,
18 Cal.App.5th at p. 607 [“Rarely is the perpetrator’s intent
proven by direct evidence; usually it must be inferred from the
facts and circumstances surrounding the case.”].) Furthermore,
Detective Magee testified robbery is one of the primary criminal
activities of the Rollin 20s Crips, which further suggests that
Hall robbed and attempted to rob the victims in his capacity as a
gang member.
That the jury could reasonably have found Hall and Jones
perpetrated the robbery and attempted robbery counts together
as members of the Rollin 20s Crips is relevant to both prongs of
11 Although the parties acknowledge in their briefing the
People offered evidence that one of the perpetrators used a single-
barrel shotgun to commit the attempted robberies against D.C.
and J.H., the jury apparently rejected that evidence because the
jury did not find that a principal personally used a firearm to
commit those two offenses.
26
the pre-AB 333 version of section 186.22, subdivision (b). The
first prong of the gang enhancement is not satisfied if “ ‘several
gang members . . . commit a crime together, yet [are] on a frolic
and detour unrelated to the gang.’ [Citation.]” (See People v.
Albillar (2010) 51 Cal.4th 47, 62 (Albillar).) Conversely, where,
as is the case here, the perpetrators’ “common gang membership
ensured that they could rely on each other’s cooperation in
committing . . . crimes and that they would benefit from
committing them together” (e.g., by building comradery and
trust), “they commit[ ] [such] crimes in association with the gang”
for the purposes of the first prong. (See Albillar, at p. 62.)
Likewise, because “substantial evidence establishes that [Hall]
intended to and did commit the charged [robberies and attempted
robberies] with [a] known member[ ] of [his] gang, the jury may
[have] fairly infer[red] that [Hall] had the specific intent to
promote, further, or assist criminal conduct by [that fellow] gang
member[ ].”12 (See Albillar, at p. 68.)
12 As noted at the beginning of this part, the second prong
of the pre-AB 333 version of section 186.22, subdivision (b)
required that the defendant commit the felony “with the specific
intent to promote, further, or assist in any criminal conduct by
gang members.” The statutory text’s use of the plural term “gang
members” and not the singular phrase “a gang member” arguably
suggests the defendant must intend to “promote, further, or
assist” more than one gang member’s criminal conduct. This
interpretation, however, “overlooks section 7, which provides that
when construing words and phrases throughout the Penal Code,
‘the singular number includes the plural, and the plural the
singular. . . .’ [Citation.]” (See People v. Watson (2021)
64 Cal.App.5th 474, 485 (Watson), quoting § 7; Watson, at p. 485
[“ ‘The rule of construction enunciated in [Penal Code] section 7 is
no mere rubric—it is the law.’ [Citation.]”].) Further, such an
27
In addition, Detective Magee testified that the perpetration
of a robbery on behalf of a gang supplies the gang with funds,
thus allowing the gang to commit other crimes, to wit, “buy
weapons, . . . buy drugs, [and] to defend themselves or protect
their neighborhood.” In light of the aforementioned evidence that
Hall committed the robbery and attempted robbery offenses in
his capacity as a gang member, this testimony from Detective
Magee constitutes substantial evidence supporting the second
prong of the gang enhancement as to those counts.
In sum, notwithstanding the fact that Hall and Jones
did not advertise their gang membership to their robbery and
attempted robbery victims, there was substantial evidence that,
under the pre-AB 333 version of the gang enhancement statute,
Hall committed these crimes for the benefit of, and in association
with, the Rollin 20s Crips, and with the specific intent of
promoting, furthering, and assisting criminal conduct by its
members.
unduly technical construction would significantly undercut the
gang enhancement statute’s objective of “eradicat[ing] . . .
criminal activity by street gangs . . . .” (See § 186.21 [announcing
the enhancement’s legislative purpose]; see also Albillar, supra,51 Cal.4th at pp. 54–55 [“[W]hen construing statutes, our goal is
‘ “ ‘to ascertain the intent of the enacting legislative body so that
we may adopt the construction that best effectuates the purpose
of the law.’ ” ’ [Citation.]”].)
28
2. The record contains substantial evidence that, under
the pre-AB 333 version of section 186.22, Hall
murdered Juan Garcia for the benefit of a criminal
street gang, with the specific intent to promote and
further criminal conduct by gang members
Substantial evidence supports the pre-AB 333 version of
the gang enhancement to Hall’s sentence for murder as well.
The aforesaid evidence that Hall’s telephone sent a text
message that reads “IK got the gage” and that a shotgun was the
murder weapon (see Discussion, part B.1, ante), along with
Detective Magee’s testimony that murder is one of the primary
activities of the Rollin 20s Crips, tend to show Hall committed
the murder to “put in work” for his gang.
The record also contains substantial evidence that Hall
killed a rival gang member in territory claimed by Hall’s and the
victim’s respective gangs, which supports the jury’s finding that
the gang allegation on the murder count was true. (See People v.
Rios (2013) 222 Cal.App.4th 542, 574 [noting that whether (a) the
defendant perpetrated the offense in gang territory and (b) the
victim was a rival gang member are relevant factors under
section 186.22, subdivision (b)].) Detective Magee opined the
decedent, Juan Garcia, was a member of a rival of the Rollin 20s
Crips (i.e., the Eastside Longos) because Garcia had an “HA”
tattoo indicative of membership in that gang, Garcia was caught
writing graffiti associated with his gang in 2010, and he was
named as a defendant on an Eastside Longos gang injunction.
Detective Magee stated the Eastside Longos gang claims the
same territory as the Rollin 20s Crips, and Hall does not
contest—and thus impliedly agrees with—the Attorney General’s
assertion the detective’s testimony demonstrates that all the
29
offenses at issue, including the murder, “were committed in
territory claimed by the Rollin 20’s Crips.”13
Hall argues the People did not present “any evidence that
[Hall] knew or at least thought that Juan Garcia . . . belonged to
a rival gang.” Yet, Hall fails to explain why Garcia’s “HA” tattoo
does not constitute substantial evidence that Hall was aware of
Garcia’s membership in the Eastside Longos, even though the
Attorney General mentioned in the respondent’s brief that Garcia
had a tattoo “denoting his membership in” the gang and
referenced Detective Magee’s testimony about the tattoo.
Because Hall has made no effort to “persuade us that [this]
evidence cannot reasonably support the jury’s verdict,” he has
failed to discharge his burden of “affirmatively demonstrat[ing]
that the evidence is insufficient” to show Hall was aware that the
decedent was a member of a rival gang. (See Sanghera, supra,
139 Cal.App.4th at pp. 1573–1574; see also id. at p. 1573 [“To
meet that burden, it is not enough for the defendant to simply
contend, ‘without a statement or analysis of the evidence, . . . that
the evidence is insufficient to support the judgment[ ] of
conviction[,]’ [citation],” italics added]; People v. Anthony (2019)
32 Cal.App.5th 1102, 1139 [“We must presume all intendments
and presumptions in favor of the judgment . . . .”].)
Moreover, the People presented evidence suggesting Hall
could have seen Garcia’s “HA” tattoo. Specifically, an autopsy
report reveals that the “HA” tattoo was on Garcia’s left elbow.
Photographs of the decedent at the crime scene indicate that
when his body was discovered, he was wearing a short sleeve
13 (See Reygoza, supra, 230 Cal.App.3d at p. 519 & fn. 4;
Rudick, supra, 41 Cal.App.5th at pp. 89–90.)
30
shirt exposing his elbows. Based on this evidence, a reasonable
factfinder could have concluded Hall was aware of Garcia’s
membership in the Eastside Longos.
Detective Magee also testified that gang members leave
graffiti on, and conduct “illegal narcotics sales” in, territory
claimed by their gang, and that gang members use violence to
defend that territory from their enemies. Detective Magee
further opined that if a member of the Rollin 20s Crips were to
kill an Eastside Longos gang member, that offense would
“benefit[ ] the gang because an enemy gang member [has been]
eliminated.”
Given this evidence, the jury could have concluded Hall
used a shotgun to murder Juan Garcia in order to put in work for
his gang and defend gang territory, and thus allow his fellow
gang members to continue to conduct criminal activities
(including illicit drug sales and vandalizing private property) on
Rollin 20s Crips’ turf. In sum, we conclude there was substantial
evidence that, under the pre-AB 333 version of the gang
enhancement statute, Hall murdered Juan Garcia for the benefit
of the Rollin 20s Crips with the specific intent to promote and
further criminal conduct by the gang’s members in territory that
they claim.
31
C. We Award Hall One Additional Day of Presentence
Custody Credit
A defendant convicted of a felony is entitled to credit for the
number of days he or she was in pretrial custody. (See People v.
Raygoza (2016) 2 Cal.App.5th 593, 598–599.) “Computational
errors [in the calculation of presentence custody credit] result in
an unauthorized sentence, and are subject to correction by the
trial court or the appellate court when presented.” (See People v.
Guillen (1994) 25 Cal.App.4th 756, 764.) The parties concede
that Hall should have been awarded 1,501—rather than 1,500—
days of presentence custody credit. Accordingly, we modify the
judgment to reflect that Hall is entitled 1,501 days of presentence
custody credit. (Artal v. Allen (2003) 111 Cal.App.4th 273, 275,
fn. 2 [“ ‘[B]riefs and argument . . . are reliable indications of a
party’s position on the facts as well as the law, and a reviewing
court may make use of statements therein as admissions against
the party. [Citations.]’ [Citations.]”].)
D. Based on AB 333’s Amendments to Section 186.22, We
Vacate the Gang and Related Firearm Enhancement
Findings, and Remand to the Trial Court for Retrial
of Those Enhancements, or, Absent Such a Retrial,
for Resentencing
AB 333, which went into effect on January 1, 2022,
“amends section 186.22 to require proof of additional elements
to establish a gang enhancement.” (People v. Lopez (2021)
73 Cal.App.5th 327, 343 (Lopez).) Among other things, the
statute “altered the requirements for proving the ‘pattern of
criminal gang activity’ necessary to establish the existence of a
criminal street gang.” (Id. at p. 345.) Prior to AB 333’s
32
enactment, “a ‘pattern of criminal gang activity’ mean[t] ‘the
commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction of two
or more of [certain 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].’ [Citation.]” (See Lopez, at p. 345.)
“[AB] 333 redefine[d] ‘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.] In addition, the currently charged
offense cannot be used as a predicate offense under the
amendments. [Citation.]” (Lopez, at p. 345, quoting Stats. 2021,
ch. 699, § 3.)
AB 333 also made several other changes to the definition of
“ ‘criminal street gang’ ”; defined “ ‘[t]o benefit, promote, further,
or assist’ ”; and added a new provision to the Penal Code
requiring the trial court, upon request, to bifurcate the guilt and
gang enhancement allegation phases of the trial (i.e., newly-
added § 1109). (See Lopez, supra, 73 Cal.App.5th at pp. 344–345;
Stats. 2021, ch. 699, § 5 [adding § 1109].)
As an initial matter, we agree with the parties that Hall “is
entitled to the benefit of AB 333’s amendments to section 186.22
33
as his judgment is not yet final.”14 (See People v. Delgado (2022)
74 Cal.App.5th 1067, 1087 (Delgado) [“[W]e agree [AB] 333’s
amendments to section 186.22 that became effective
January 1, 2022 apply retroactively . . . . to a defendant whose
judgment is not yet final . . . .”]; Lopez, supra, 73 Cal.App.5th at
pp. 343–344 [“When [AB] 333 goes into effect on January 1, 2022,
[the defendant’s] judgment will not yet be final. . . . As [AB] 333
increases the threshold for . . . the imposition of the
enhancement, we agree with [the defendant] and the People that
[the defendant] is entitled to the benefit of this change in the law.
‘[A] defendant is entitled to the benefit of an amendment to an
enhancement statute, adding a new element to the enhancement,
where the statutory change becomes effective while the case was
on appeal, and the Legislature did not preclude its effect to the
pending case.’ [Citation.]”]; see also People v. Sek (2022)
74 Cal.App.5th 657, 664–667 & fn. 4 (Sek) [holding that AB 333’s
new definition of “ ‘for the benefit of . . . a criminal street gang’ ”
applies retroactively to judgments that are not yet final].)
Furthermore, the parties do not dispute “no substantial
evidence was presented that one of the [two] predicate offenses”
offered to establish the “pattern of gang activity” required to
satisfy the statutory definition of “criminal street gang” (i.e., the
voluntary manslaughter committed by Miquan Jackson) had
14 The Attorney General clarifies that “[t]his concession
does not extend to the provisions of newly-added section 1109,”
which is the provision calling for the bifurcation of guilt and gang
enhancement allegations upon a defendant’s request. (See
§ 1109, subd. (a).) This limitation has no impact on the instant
appeal because Hall does not claim section 1109 applies
retroactively to his case.
34
“benefitted the gang beyond enhancing its reputation.” It is
further undisputed that, because of this defect, “insufficient
evidence supports the gang allegation under the law as amended
by AB 333.” Accordingly, we vacate the gang enhancement
findings for counts 1, 2, 3, 4, 5, and 6.15 (Cf. Lopez, supra,
73 Cal.App.5th at pp. 343, 346 [vacating the gang enhancement
findings because the jury did not make the findings required by
AB 333’s amendments to section 186.22].)
Hall argues “the gang related gun enhancements attached
to [his] convictions” must be vacated as well. In his supplemental
brief, however, Hall does not identify specifically which firearm
enhancements must be vacated. Nonetheless, in his opening
brief, Hall contends that “the gang related firearm enhancements
as to counts four through six” “must be stricken” “[b]ecause
insufficient evidence supports the allegations that [his] criminal
conduct was gang related . . . .”
We agree and vacate the firearm enhancement findings
relating to counts 4, 5, and 6. The verdict forms indicate the
firearm enhancements for these counts were based upon the
jury’s findings that “a principal personally used a firearm, within
the meaning of Penal Code Section 12022.53(b) and (e)(1) . . . .”
Under these provisions, a firearm enhancement may be imposed
on an individual who did not personally use a firearm, but only if,
15 Given the Attorney General’s concession that
substantial evidence does not support the gang enhancements
under AB 333’s amendments to section 186.22, we need not
address Hall’s arguments that the prosecution failed to offer
evidence satisfying other elements of the newly-amended gang
enhancement statute (e.g., whether “the predicate offenses
constituted ‘collective criminal activity’ by its members”).
35
inter alia, that individual was “ ‘convicted of a felony committed
for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members’ as set forth in
section 186.22, subdivision (b). [Citation.]” (See Lopez, supra,
73 Cal.App.5th at p. 347, quoting § 12022.53, subd. (e)(1)(A).)
Because it is undisputed that AB 333’s amendments negated the
jury’s gang enhancement findings under section 186.22,
subdivision (b), “the true findings on these [firearm]
enhancements, too, [must] be vacated . . . .” (See Lopez, at pp.
347–348.)
Conversely, with regard to the murder conviction (i.e.,
count 3), the jury found Hall “personally and intentionally
discharged a firearm, a shotgun, which caused great bodily injury
and death . . . within the meaning of Penal Code
Section 12022.53(d) . . . .” In accordance with that finding, the
trial court imposed an enhancement of 25 years to life on that
count. (See § 12022.53, subd. (d) [authorizing “an additional and
consecutive term of imprisonment . . . [of] 25 years to life”].)
Because this firearm enhancement is not premised on a violation
of section 186.22, AB 333 does not affect the jury’s true finding
on this enhancement to the sentence for count 3. (See Lopez,
supra, 73 Cal.App.5th at pp. 347–348 [holding that,
notwithstanding AB 333, a firearm enhancement imposed
pursuant to a finding that the defendant “ ‘personally and
intentionally discharge[d] a firearm . . . which caused great bodily
injury or death’ ” under § 12022.53, subd. (d) “remain[ed]
intact”].)
The Attorney General concedes, Hall does not dispute, and
we agree, that we “should remand the matter and order that the
36
prosecution be afforded an opportunity to . . . meet its burden of
proof pursuant to AB 333’s new requirements.” (See Sek, supra,
74 Cal.App.5th at p. 669 [“ ‘ “ ‘Where, as here, evidence is not
introduced at trial because the law at that time would have
rendered it irrelevant, [a] remand to prove that element is proper
and the reviewing court does not treat the issue as one of
sufficiency of the evidence.’ [Citation.]” [Citation.]’
[Citations.]”].) If the prosecution does not elect to retry Hall on
the gang and related firearm enhancements, then the trial court
shall resentence Hall accordingly. (See Delgado, supra,
74 Cal.App.5th at pp. 1088–1091 [reversing the true findings on
certain gang enhancements on account of AB 333’s amendments,
remanding the case “to provide the People an opportunity to retry
the criminal street gang enhancement[s,]” and stating that “[i]f
the People elect not to do so, [the defendant] is to be resentenced
in a manner consistent with this opinion”].)
37
DISPOSITION
We vacate the gang enhancement findings made under
Penal Code section 186.22, subdivision (b) for counts 1, 2, 3, 4, 5,
and 6. We also vacate the firearm enhancement findings made
under Penal Code section 12022.53, subdivisions (b) and (e)(1) for
counts 4, 5, and 6. The judgment is modified to reflect that
Defendant Elijah Kareem Shabazz Hall (Hall) is entitled to 1,501
days of presentence custody credit toward his state prison
sentence. As modified, the remainder of the judgment is
affirmed.
We remand this matter to the trial court to afford the
People an opportunity to retry the gang enhancements for
counts 1, 2, 3, 4, 5, and 6 and the firearm enhancements for
counts 4, 5, and 6. If the People elect not to retry these
enhancements, then Hall shall be resentenced in a manner
consistent with this opinion.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J. CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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