People v. Jimenez CA4/2

Filed 4/26/22 P. v. Jimenez CA4/2
(opinion on transfer from Supreme Court)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073455
v. (Super.Ct.Nos. FWV19000409 &
FWV19000410)
JESSE JIMENEZ et al.,
OPINION ON TRANSFER
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Dan W. Detienne,
Judge. Affirmed in part, vacated in part, and remanded with directions.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and
Appellant Jesse Jimenez.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and
Appellant Nicholas Mora.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, Paige B.
Hazard, and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
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Following a bench trial, defendants Jesse Jimenez and Nicolas Mora were
convicted of actively participating in a criminal street gang (Pen. Code, § 186.22,
subd. (a) (§ 186.22(a)), and Mora was convicted of first degree burglary (Pen. Code,
§ 459; unlabeled statutory citations are to this code). Defendants admitted that they had
suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike
conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and Jimenez admitted that he
had served a prior prison term within five years (§ 667.5, subd. (b)). Jimenez was
sentenced to 12 years in state prison, and Mora was sentenced to 18 years and four
months in state prison.
On appeal, Jimenez and Mora challenged the sufficiency of the evidence
supporting their convictions for actively participating in a criminal street gang.
Defendants also argued and the People conceded that a prior prison term enhancement
imposed on Jimenez should be stricken and that Mora’s sentence for the gang offense
should be stayed under section 654. In a prior unpublished opinion, we agreed with the
parties on the latter two arguments and otherwise affirmed the judgment, concluding that
sufficient evidence supported the substantive gang offenses. (People v. Jimenez
(Sept. 27, 2021, E073455) [nonpub. opn.].)
The California Supreme Court granted review and transferred the matter back to
this court with instructions to vacate our decision and to reconsider the matter in light of
recently enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333)
(Stats. 2021, ch. 699), which amended the gang offense statute. (People v. Jimenez
(Dec. 15, 2021, S271625) [2021 Cal. Lexis 8514].) We vacated our opinion and
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requested supplemental briefing from the parties, which they filed. We agree with the
parties that Assembly Bill 333 requires reversal of the gang offense convictions. We
consequently vacate those convictions and remand for further proceedings. We otherwise
affirm.
BACKGROUND
On the night of September 30 to October 1, 2018, several individuals broke into
Garcia’s Wood Work, a company that makes wooden pallets in Fontana, California. The
intrusion awakened an employee who lived at the work site, and the intruders bound,
gagged, beat, and threatened to kill him. He was later treated for head injuries and a
broken finger. The intruders also took his wallet and cell phone and the keys to his
pickup truck.
After the intruders left, the employee freed himself, walked to a neighboring
property, and had the neighbor call the owner of Garcia’s Wood Work. The employee
then returned to the pallet yard. N.G., the manager of Garcia’s Wood Work, arrived
shortly thereafter.
N.G. found that the gate to the pallet yard had been rammed open, and two trucks,
each loaded with 704 pallets, were missing. Each pallet was worth six to eight dollars, so
the value of the cargo on the two trucks was over $8,000.
N.G. sent several family members to other local pallet yards to attempt to find the
missing trucks and pallets. In particular, N.G. called his brother-in-law at about 2:10 a.m.
and sent him to a pallet yard in Riverside, California, operated by N.G.’s uncle, Dolores
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Garcia, because “there was issues” between N.G.’s father (the owner of Garcia’s Wood
Work) and Garcia. The brother-in-law saw one of the stolen trucks at the Riverside pallet
yard at about 3:00 a.m., and the truck was not then carrying any cargo. The brother-in-
law called N.G. and told him that the truck was at the Riverside yard. Then, on his way
home from the Riverside yard, the brother-in-law saw the other stolen truck, also empty,
parked on a side street.
When sheriff’s deputies arrived at Garcia’s Wood Work, N.G. conveyed the
information he had received from his brother-in-law. The deputies then went to the
Riverside pallet yard to investigate. While they were there speaking with N.G.’s uncle, a
vehicle pulled into the driveway of the yard. Jimenez was driving, and there were three
other individuals in the car. When one of the deputies walked toward the car, Jimenez
got out and walked rapidly away. The deputy detained Jimenez and searched the area for
the rest of the car’s occupants, who had scattered. The deputy found Mora hiding among
the pallets in the yard and arrested him. Two more individuals were arrested after being
found hiding in the yard.
Surveillance footage from Garcia’s Wood Work showed that one of the intruders
wore a mask and the other wore a dark-colored bandana covering his face. A deputy
searched Mora’s pockets and found a blue bandana and a pair of black latex gloves that
were identical to a black latex glove found outside the trailer of the employee who was
attacked at Garcia’s Wood Work. A blue bandana also was found inside of the vehicle in
which Jimenez and Mora arrived at the Riverside yard.
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In interviews with law enforcement and testimony at trial, Garcia gave several
different descriptions of his role in the break-in and theft of the pallets from Garcia’s
Wood Work. Garcia initially claimed that he did not know anything about the stolen
trucks and had no issues with his brother, the owner of Garcia’s Wood Work. He then
admitted that he had lied when he said he knew nothing about the stolen trucks, and he
said that he came to his pallet yard because an employee called him and told him two
trucks had arrived at the yard, so “he stopped by to check.” He then admitted that was a
lie as well. Garcia then said that he had “screwed up and made a mistake of buying
stolen pallets,” but “he did not know the pallets belonged to his brother until after he
bought them.” He said that he was at his pallet yard when the trucks arrived; one of the
trucks was driven by Mora, and Garcia opened the gate to let the trucks in and then
helped unload the pallets. Garcia claimed that Mora, whom Garcia has known since
Mora “was little,” offered to sell him the stolen pallets, and Garcia agreed to buy them.
At trial, Garcia testified with immunity and changed his story again. He claimed
that around 3:00 a.m. on October 1, 2018, he received a phone call from an unidentified
man offering to sell him pallets. He then went to his pallet yard around 3:20 a.m., and
there were already two trucks waiting outside the yard. The trucks were accompanied by
two people Garcia had never seen before. Garcia and one of his employees unloaded the
pallets from the trucks. Garcia and the seller(s) never agreed on a price, and once all of
the pallets were unloaded, the two unknown individuals left in the trucks without getting
paid. The trial court did not find Garcia’s testimony credible.
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A search of a detached garage at Jimenez’s residence in San Bernardino,
California revealed papers bearing numerous drawings of clowns and one with the initials
“H T,” as well as a T-shirt with the word “Pomona” on it. According to someone else
who resided at the property, Jimenez lived in the garage. The garage contained
correspondence addressed to Jimenez. The T-shirt was not new and appeared a “bit old”;
the law enforcement officer who found it did not verify whether it was Jimenez’s size.
Mora resided at a home in Fontana, California with three other people. A
bedroom identified by another resident as Mora’s contained a paper bearing the words
“Happy Town cartoon” in “[t]agging style writing” and “Happy Town Pomona.”
Jimenez had several tattoos: “Happy Town Pomona” on his arm, clown faces on
his shoulder, and “Happy Town Pomona” on his back. Mora also had tattoos: a clown
and the words “Just clowning” on his back, and “Mora” with the letters “H and T ” within
it.
Officer Franzesco Sacca testified as an expert on the Happy Town gang, which he
described as a criminal street gang with approximately 100 members located in the city of
Pomona, California. Happy Town’s primary activities include committing robberies and
carjacking, selling narcotics, and illegally possessing firearms. It is not uncommon for
gang members to live outside of the gang’s territory or to commit crimes outside of that
territory.
Sacca testified about two predicate offenses committed by Happy Town gang
members. For the first predicate offense, Sacca testified that a self-admitted Happy
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Town member was convicted in September 2016 of carrying a loaded firearm in violation
of section 25850, subdivision (a). On the day the offense was committed, the Happy
Town member who committed the offense was associating with several other Happy
Town gang members just outside of Happy Town’s territory. For the second predicate
offense, Sacca testified that another self-admitted Happy Town gang member was
convicted in May 2017 of being a felon in possession of a firearm in violation of section
29800. The offense was committed in Happy Town’s territory at a location where three
Happy Town gang members were located and six firearms were recovered.
In addition, the prosecution admitted the records of conviction of prior convictions
of Jimenez and Mora. In March 2017, Jimenez pled guilty to attempted possession in
January 2017 of a firearm by a prohibited person. (§§ 664, 29800, subd. (a)(1).) In May
2017, Mora pled guilty to unlawful possession in March 2017 of methamphetamine for
the purpose of sale in violation of Health & Safety Code section 11378. Neither
defendant was charged with a gang enhancement for those offenses or with actively
participating in a gang.
Happy Town’s common signs and symbols include: “Happy Town Pomona,”
“HTP” and varied combinations of those letters, clowns, and smiley faces. Happy Town
members identify themselves by the color blue, and they wear attire associated with the
Houston Astros baseball team. Every time Sacca searched a Happy Town gang
member’s residence he found Happy Town gang-related indicia, including photographs
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with other gang members and drawings of Happy Town’s common signs and symbols,
including the letters “HTP,” smiley faces, and clowns.
Sacca had never met or seen Jimenez or Mora or heard about either of them at any
law enforcement intelligence meetings about Happy Town. There were no field
identification cards for either Jimenez or Mora, but the police department does not
normally have such cards for every member of a gang. Not all law enforcement officers
fill out field identification cards when encountering suspected gang members. After
Sacca investigated this case, he did not notice Mora’s photograph in any Happy Town-
related social media posts for other cases he was investigating. Sacca did not search
social media for any postings by Mora.
On the basis of the police reports and testimony in this case, Sacca opined that
Jimenez and Mora were active participants in Happy Town. Sacca based his opinion on
Jimenez’s and Mora’s tattoos, the drawings found at Jimenez’s residence, the drawing
found at Mora’s residence, and the fact that both men were housed in general population
in county jail. Sacca would not expect to find gang-related paraphernalia at a nonactive
gang member’s residence. Sacca did not have any knowledge about the age of Mora’s
tattoos, except that they were not “very recent.” On social media, Happy Town gang
members use the hashtag “Just Clowning.”
Sacca opined that the nature of the underlying offense also tended to show that
Jimenez and Mora were active Happy Town participants because the offense required “a
lot of manpower,” which a gang provides in the form of “trusted fellow criminals.” The
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fact that Jimenez and Mora committed the offense together also supported Sacca’s belief
that they were active participants in Happy Town. Sacca further testified that active
participants in gangs are aware that members of the gang commit crimes and are
frequently around other members of their gang.
In Sacca’s experience, only active gang members would be housed in the general
population of the county jail. Former gang members with gang tattoos housed in county
jail would be placed in protective custody, and not the general population of the jail,
because they might otherwise become targets of violence by members of their former
gang. At the same time, Sacca testified that he had never worked at a jail and that
inmates are typically opposed to being placed in protective custody “for any reason.”
Gang members can drop out of a gang by being “jumped out” or renouncing
membership while in custody. Certain crimes, such as those against children, will result
in lost membership. Dropouts from a gang do not associate with active members of the
gang. Some older gang members “stop and have families” at some point. Sacca did not
believe that a member could separate from a gang “without being jumped out physically”
while remaining in “good standing” with the gang. Sacca did not know whether Happy
Town allowed older members to “age[] out” of the gang and still remain in good
standing.
After hearing the parties’ closing arguments, the trial court found Mora guilty of
first degree burglary and both men guilty of actively participating in a gang in violation
of section 186.22(a). As to the gang offenses, the court found that defendants’ prior
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convictions and the two convictions by self-admitted Happy Town members comprised
the requisite predicate offenses to establish a pattern of criminal activity as defined in
CALCRIM No. 1400, the instruction the court relied on for that offense.
DISCUSSION
The parties agree that Assembly Bill 333 should be applied retroactively to this
case and that under the new law there is insufficient evidence to support defendants’
convictions under section 186.22(a). We concur with the parties.
Among other things, section 186.22 criminalizes active participation in a “criminal
street gang.” (§ 186.22(a); People v. E.H. (2022) 75 Cal.App.5th 467, 476 (E.H.).)
Section 186.22(a) now penalizes “actively participat[ing] in a criminal street gang with
knowledge that its members engage in, or have engaged in, a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in felonious criminal conduct by
members of that gang . . . .”
As this court recently explained, Assembly Bill 333 amended section 186.22 to
impose new requirements for the offense of active gang participation. (E.H., supra, 75
Cal.App.5th at p. 477.) As relevant to the substantive gang offense in section 186.22(a),
Assembly Bill 333 “amended the definitions of ‘criminal street gang’ and ‘pattern of
criminal gang activity.’” (E.H., at p. 477.) “Previously, the statute defined a ‘criminal
street gang,’ as ‘any ongoing organization, association, or group of three or more
persons . . . whose members individually or collectively engage in, or have engaged in, a
pattern of criminal gang activity.’ (Former § 186.22, subd. (f), italics added.) Assembly
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Bill 333 narrowed the definition to ‘an ongoing, organized association or group of three
or more persons . . . whose members collectively engage in, or have engaged in, a pattern
of criminal gang activity.’ (Assem. Bill 333, § 3, revised § 186.22, subd. (f), italics
added.)” (E.H., at p. 477.)
“As for what constitutes a ‘pattern of criminal gang activity,’ previously the
prosecution needed to prove ‘only that those associated with the gang had committed at
least two offenses from a list of predicate crimes on separate occasions within three years
of one another.’” (E.H., supra, 75 Cal.App.5th at p. 477; People v. Sek (2022) 74
Cal.App.5th 657, 665 (Sek).) Assembly Bill 333 made the following changes to this
definition: (1) “the predicate offenses now must have been committed by two or more
‘members’ of the gang (as opposed to any persons)” (E.H., at p. 477; § 186.22,
subd. (e)(1)); (2) “the predicate offenses must be proven to have ‘commonly benefited a
criminal street gang’” (E.H., at p. 477; § 186.22, subd. (e)(1)), and the common benefit
must be “more than reputational” (§ 186.22, subd. (e)(1)); (3) “the last predicate offense
must have occurred within three years of the date of the currently charged offense” (E.H.,
at p. 477; § 186.22, subd. (e)(1)); (4) “the list of qualifying predicate offenses has been
reduced” (E.H., at pp. 477-478; § 186.22, subd. (e)(1)); and (5) “the currently charged
offense no longer counts as a predicate offense” (E.H., at p. 478; § 186.22, subd. (e)(2)).
In addition to those substantive changes to section 186.22, Assembly Bill 333
added section 1109, which establishes that for a defendant charged with violating section
186.22(a), that count “shall be tried separately from all other counts that do not otherwise
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require gang evidence as an element of the crime.” (§ 1109, subd. (b); E.H., supra, 75
Cal.App.5th at p. 478.)
Assembly Bill 333 does not contain an effective date. (Stats. 2021, ch. 699.) It
was enacted as nonurgency legislation in a regular legislative session in 2021
(Stats. 2021, ch. 699) and consequently became effective on January 1, 2022. (See
Cal. Const., art. IV, § 8, subd. (c)(1); People v. Henderson (1980) 107 Cal.App.3d 475,
488.) When Assembly Bill 333 became effective, the Supreme Court had already
transferred this case back to this court. The prior opinion had already been vacated, and
we were awaiting supplemental briefing from the parties. The judgments of conviction
therefore were not final. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Assembly
Bill 333 applies retroactively to defendants like Mora and Jimenez whose judgments of
conviction were not final when Assembly Bill 333 became effective. (E.H., supra, 75
Cal.App.5th at p. 478.)
The parties agree that reversal is required because Assembly Bill 333 added
elements to section 186.22(a) that the factfinder at their trial was not required to find. To
determine whether reversal is required in this case, we apply the harmlessness standard
articulated in Chapman v. California (1967) 386 U.S. 18, 24. (E.H., supra, 75
Cal.App.5th at p. 479; Sek, supra, 74 Cal.App.5th at p. 668.) Under that standard,
reversal is required unless it appears beyond a reasonable doubt that the failure to require
proof of the new elements at defendants’ trial did not contribute to the findings of guilt.
(E.H., at p. 479.)
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Here, we cannot conclude that the failure to require proof of the additional
elements under amended section 186.22(a) was harmless beyond a reasonable doubt.
First, there is no evidence that any of the predicate offenses commonly benefitted Happy
Town or that the benefit was more than reputational. Second, as to the predicate offenses
committed by Jimenez and Mora, there is no evidence that defendants were gang
members when those offenses were committed. There is no evidence about when either
of them joined Happy Town, and the predicate offenses were committed more than one
year before the underlying robbery in this case. Moreover, neither defendant was
charged with a gang enhancement related to those offenses or with active participation in
a gang in connection with the offenses. Third, there is no evidence that Happy Town
constituted a criminal street gang whose “members collectively engage in, or have
engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).) There is no
evidence that the predicate offenses were committed by Happy Town gang members
acting collectively. Nor did Sacca testify that the Happy Town gang members engaged in
the criminal enterprises comprising the gang’s primary activities through collective
action.
As we explained in E.H., “[t]he proper remedy for this type of failure of proof—
where newly required elements were ‘never tried’ to the [factfinder]—is to remand and
give the People an opportunity to retry the affected charges.” (E.H., supra, 75
Cal.App.5th at p. 480.) We thus vacate defendants’ convictions under section 186.22(a)
and remand to the trial court for further proceedings consistent with this opinion.
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Defendants’ remaining arguments about sentencing are rendered moot by the reversal of
these convictions, so we need not and do not address them.
DISPOSITION
We vacate defendants’ convictions under section 186.22(a). We remand to the
trial court to (1) give the People the opportunity to retry the offenses under the new law
as amended by Assembly Bill 333, and (2) impose appropriate dispositions should the
People elect not to retry these offenses. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.
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