People v. Cortinas CA6

Filed 5/30/23 P. v. Cortinas CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047790
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1497382)
v.
MOSES CORTINAS,
Defendant and Appellant.
A jury found defendant Moses Cortinas guilty of first degree murder, attempted
murder, and active participation in a criminal street gang. The jury further found true
firearm allegations and gang allegations. The trial court imposed an aggregate term of
life in prison with the possibility of parole, consecutive to terms of 30 years to life, 50
years to life, and 3 years.
Cortinas raises numerous claims on appeal. First, he contends the trial court erred
by denying his motion to exclude portions of statements he made to the police. Second,
he contends the evidence was insufficient to support a finding of willful, deliberate, and
premeditated first degree murder. For the reasons below, we conclude these claims are
without merit.
Third, Cortinas contends the gang-related conviction and enhancements must be
vacated based on the retroactive application of Assembly Bill No. 333 (Assembly Bill
333). Fourth, he contends the trial court improperly imposed a term of 20 years to life
instead of 20 years for one of the firearm enhancements. Fifth, he contends we must
vacate the criminal justice administration fee based on recently enacted legislation. The
Attorney General concedes the merits of these claims, and we accept the concessions.
We will reverse the judgment and remand to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
In 2018, the prosecution charged Cortinas with four counts: count 1—murder
(Pen. Code, § 187)1 ; count 2—attempted murder (§§ 664, subd. (a), 187); count 3—first
degree burglary (§§ 459, 460, subd. (a)); and count 4—participating in a criminal street
gang (§ 186.22, subd. (a)). As to counts 1, 2, and 3, the prosecution alleged Cortinas
committed the offenses for the benefit of, at the direction of, and in association with a
criminal street gang. (§ 186.22, subds. (b)(1)(C) & (b)(5).) As to counts 1 and 2, the
prosecution alleged Cortinas personally discharged a firearm causing the death of a
person other than an accomplice (§ 12022.53, subd. (d)). As to count 3, the prosecution
alleged a person was present in the residence during the offense, and that Cortinas
personally used a firearm in the commission of the offense. (§§ 667.5, subd. (c)(21),
12022.5, subd. (a).) Finally, the prosecution alleged Cortinas had served a prior prison
term. (§ 667.5, subd. (b).)
The trial court granted the prosecution’s motion to dismiss count 3 (first degree
burglary) for insufficient evidence, as well as the allegations on count 3. The jury found
Cortinas guilty of willful, deliberate, and premeditated first degree murder on count 1,
and found him guilty on counts 2 and 4 as charged. The jury found true all remaining
firearm and gang allegations, and the trial court granted the prosecution’s motion to
dismiss the prior prison term allegation.
The trial court imposed an aggregate term of life in prison with the possibility of
parole, consecutive to terms of 30 years to life, 50 years to life, and 3 years. The terms
1 Subsequent undesignated statutory references are to the Penal Code.
2
consisted of 50 years to life on count 1 (25 years to life for first degree murder plus 25
years to life for the firearm enhancement), life with parole consecutive to 30 years on
count 2 (life with parole for attempted murder plus 20 years for the firearm enhancement
and 10 years for the gang enhancement), and three years on count 4.
B. Facts of the Offenses
On November 4, 2014, Moses Cortinas shot and killed Juan Guillen and nonfatally
shot Manuel Castillo. Guillen, Castillo, and another man were “hanging out” in a vacant
apartment when Cortinas and Jose Quiroz, Sr. (Senior) entered the apartment by kicking
open the door. Cortinas said, “What’s up? You guys are scrapas?” Cortinas then began
shooting at Castillo, but Castillo escaped out a window after a bullet grazed his stomach.
Cortinas then fatally shot Guillen, who had been hiding. Cortinas claimed he shot
Guillen after Guillen attacked him with a pole. A gang expert testified that Cortinas and
Senior were members of a Norteño gang, and that they committed the offenses with the
intent to retaliate against Sureño gang members for a prior altercation with Senior the
week before this attack.
Senior testified for the prosecution. He had been “jumped into” the El Hoyo
Palmas (EHP) gang when he was around 15 or 16 years old. He considered the gang
“Norteño-affiliated” and he testified that he was a “first generation” member. He met
Cortinas around 2009 when they were in custody together. Cortinas told Senior that he
(Cortinas) was a fifth generation EHP member.
In 2014, Senior had a son, Jose Quiroz, Jr. (Junior), who was experiencing
“pressure” in the form of Sureño gang activity. Junior had never been jumped into a
gang, but he associated with Norteños and “put himself a little bit out there as a
Northerner.” Sureños wrote graffiti on Junior’s mother’s walls and broke her windows in
an attempt to provoke Junior. After Sureños repeatedly broke Junior’s car windows,
Senior “felt compelled to have to do something about it.” Senior believed the harassment
was coming from a young group of Sureños in the Via Monte area.
3
On October 24, 2014, Senior, Junior, Cortinas, and another man drove to Via
Monte to look for the Sureños who had been harassing Junior. Cortinas was wearing a
blue jersey to make himself look like a Southerner in an attempt to “bring some out.”
Senior saw someone he believed to be a Southerner and confronted the man. The man
tried to run, but Senior stabbed him in the back with a small pocketknife. After that
event, the conflict between the two groups escalated, and the Southerners retaliated at
Junior’s mother’s residence, breaking her windows and tagging her apartment. In the
following days, Senior and Cortinas exchanged text messages with each other about the
conflict.
On November 4, 2014, Senior got a call from Junior, who wanted to buy some
marijuana in the Via Monte area. Senior knew there were Southerners in the area, so he
agreed to go with Junior to “[m]ake sure nobody fucks with him.” Cortinas volunteered
to go with them. After they got the marijuana, the man who gave it to them told them,
“Hey, you know those guys that broke your windshield, they’re right there,” indicating a
nearby apartment building. Senior said, “I’m going to talk to these guys,” and got out of
the car. Cortinas got out and followed Senior. They saw someone in a carport, and the
person told them there were Southsiders partying upstairs in an empty apartment. Senior
and Cortinas went upstairs and looked through a window into the apartment, where
Senior saw someone scrambling around. Senior thought the person was a Sureño.
Senior kicked open the door, entered the apartment, and yelled out, “Hey.”
Cortinas entered the apartment behind Senior. Senior saw someone scrambling around in
the back and Cortinas began shooting. Senior saw a young man jumping headfirst out of
a window. Cortinas fired two shots at him. Senior then ran out of the apartment, and he
heard three more shots fired. Junior had backed the car into the neighboring alley, so
Senior got in and told him, “Let’s go, let’s go. Let’s get the fuck out of here.” While
Junior was fumbling with the keys, Cortinas got into the car as well. Senior asked
Cortinas, “What the fuck did you do?” Cortinas responded, “I shot two of them.”
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Cortinas said he had gone into a back room, and one of the occupants had hit him with a
stick, so Cortinas shot him.
The police later interviewed Cortinas twice. After initially lying about his
whereabouts and claiming another person was responsible for the shootings, Cortinas
admitted he had been the shooter. He claimed Senior pressured him into it. Cortinas
admitted he fired two shots at the man who jumped out the window, and when he
(Cortinas) walked into a back bedroom, he was hit with a two-by-four by a second man
he had seen. Cortinas admitted he shot at the man and ran out of the apartment. He fired
five shots total.
Cortinas testified in his defense. He testified that Senior had directed him
(Cortinas) to go with them to get the marijuana in Via Monte, and that he felt he had no
choice. Cortinas knew about the stabbing incident the prior week because he was present
at the incident. Senior had given him a gun after the incident, and Cortinas saw that it
was loaded with five rounds. Cortinas admitted he had it in his pocket when they were
approaching the apartment. He testified that Senior kicked open the door and motioned
for Cortinas to enter. Cortinas saw some rapid movement in a hallway and fired the gun
two times in the direction of the movement. Cortinas denied he intended to hit anyone.
Cortinas saw the man jump out a window and he walked towards a back bedroom,
whereupon he was hit with a heavy stick or pole. Cortinas testified that out of a reflex
reaction, he started firing off multiple shots. He denied that he intended to shoot anyone
and denied he even saw anyone.
II. DISCUSSION
A. The Denial of Cortinas’s Motion to Exclude His Statements to Police
Cortinas contends the trial court erred by denying his pretrial motion to exclude
certain portions of his statements to the police on the ground that he had invoked his right
to remain silent during one of the interviews. The Attorney General contends the trial
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court properly admitted the challenged portions of the statements because Cortinas did
not unambiguously invoke his right to remain silent.
1. Factual and Procedural Background
The police interviewed Cortinas twice—first in November 2014, and again in
December 2014. At the start of the November 2014 interview, the police advised
Cortinas of his Miranda2 rights and he verbally acknowledged that he understood them.
He then began answering the officers’ questions, and when they asked him where he was
on the afternoon of November 4 (at the time the offenses occurred), Cortinas told them he
was sitting on a bench in a park. He said Senior gave him a ride to the park but claimed
he (Cortinas) did not see Junior that day. When the police told Cortinas they were talking
to Junior and Senior, who told them Cortinas was with them that afternoon, Cortinas then
said he had “mixed up” things and that he was actually at his cousin’s house that
afternoon.
About 40 minutes into the interview, after the officers continued to question
Cortinas about what he was doing that afternoon, the following exchange took place:
“[Cortinas:] I’m just saying, sir, like I’m not trying to bullshit you guys about
nothing dude, and--
“[Detective:] Well there’s one thing I -- I -- you are bullshitting me about--
“[Cortinas:] Alright.
“[Detective:] --is that--
“[Cortinas:] I won’t talk no more. It’s cool. [Unintelligible.]
“[Detective:] --you tell me that--
“[Cortinas:] I won’t talk no more.
“[Detective:] What do you mean you won’t talk no more?
2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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“[Cortinas:] I won’t talk no more. Like I’m, I’m, I’m just trying to like, like I’m
not trying dick you guys, be like, I understand whatever you’s trying to figure out, I don't
know, but, and I’m just trying to get, give you guys everything straight up dude.
“[Detective:] I’m trying to get, I’m trying to get what happened on -- I’m trying to
get you to admit that um, that you and, and Junior and Senior were together on Tuesday.
“[Cortinas:] I don’t remember, I like, I don’t remember that honestly and I mean I
don’t know, like I said I got a lot of shit going on.”3
Cortinas then continued to answer the officers’ questions.
The police interviewed Cortinas again in December 2014, and they advised him of
his Miranda rights at the start of the interview. Cortinas verbally acknowledged that he
understood his rights and continued to answer questions.
Cortinas moved in limine to exclude his statements to the police. He argued that
the Miranda admonitions were inadequate, that he did not expressly waive his rights, and
that he had invoked his right to remain silent during the first interview. The prosecution
argued Cortinas impliedly waived his rights by continuing to answer questions after being
admonished, and that he did not unambiguously invoke his right to remain silent.
The trial court found Cortinas had been adequately admonished and impliedly
waived his Miranda rights. The court found no evidence of coercion, nor any evidence
Cortinas did not understand his rights. As to Cortinas’s statements that he did not want to
talk any more, the court found he made the initial statement because he was frustrated by
the officers’ refusal to believe his claims about where he was at the time of the offenses.
As to the officer’s response, “What do you mean you won’t talk no more,” the court
found “the officer’s question appeared to have been calculated toward determining
whether the defendant was attempting to invoke the right to remain silent rather than
3 Our transcription of this exchange is based on the video recording of the
interview, not the transcription set forth in the related exhibits. Any differences are
immaterial to this analysis.
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toward coercing him to answer more questions.” The court acknowledged that the
statement, “I won’t talk no more,” would likely be an adequate invocation of the right not
to speak if considered in isolation, but that viewing the statements in context, Cortinas
made them “out of frustration or a desire to stick with his story that he was not involved
with the murder and attempted murder.” On these grounds, the court ruled there was no
Miranda violation and denied the motion to exclude the statements.
2. Legal Principles
The Fifth Amendment to the United States Constitution provides that no person
“shall be compelled in any criminal case to be a witness against himself . . . .” (U.S.
Const., 5th Amend.) “Prior to any questioning, the person must be warned that he [or
she] has a right to remain silent, that any statement he [or she] does make may be used as
evidence against him [or her], and that he [or she] has a right to the presence of an
attorney, either retained or appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however,
he [or she] indicates in any manner and at any stage of the process that he [or she] wishes
to consult with an attorney before speaking there can be no questioning. Likewise, if the
individual is alone and indicates in any manner that he [or she] does not wish to be
interrogated, the police may not question him. The mere fact that he [or she] may have
answered some questions or volunteered some statements on his or [her] own does not
deprive him [or her] of the right to refrain from answering any further inquiries until he
[or she] has consulted with an attorney and thereafter consents to be questioned.”
(Miranda, supra, 384 U.S. at pp. 444-445.)
“If a defendant invokes his [or her] Miranda rights, questioning must cease.”
(People v. Sanchez (2019) 7 Cal.5th 14, 49 (Sanchez).) “However, when, as in this case,
a defendant has waived his [or her] Miranda rights and agreed to talk with police, any
subsequent invocation of the right to counsel or the right to remain silent must be
unequivocal and unambiguous.” (Berghuis v. Thompkins (2010) 560 U.S. 370, 381.) “A
8
requirement of an unambiguous invocation of Miranda rights results in an objective
inquiry that ‘avoid[s] difficulties of proof and . . . provide[s] guidance to officers’ on how
to proceed in the face of ambiguity. [Citation.]” (Ibid.) The test is whether the
invocation was “articulated sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be an invocation of such rights.”
(People v. Nelson (2012) 53 Cal.4th 367, 380.) “[T]he question of ambiguity in an
asserted invocation must include a consideration of the communicative aspect of the
invocation—what would a listener understand to be the defendant’s meaning.” (People
v. Williams (2010) 49 Cal.4th 405, 428 (Williams).)
The prosecution bears the burden of proof by a preponderance of the evidence to
show the statements were admissible. (Sanchez, supra, 7 Cal.5th at p. 48.) “On appeal,
we review independently the trial court’s legal determinations of whether a
defendant’s . . . Miranda waivers were knowingly, intelligently, and voluntarily made
[citation], and whether his later actions constituted an invocation of his right to silence
[citation]. We evaluate the trial court’s factual findings regarding the circumstances
surrounding the defendant’s statements and waivers, and “ ‘ “accept the trial court’s
resolution of disputed facts and inferences, and its evaluations of credibility, if supported
by substantial evidence.” ’ ” (People v. Rundle (2008) 43 Cal.4th 76, 115 (Rundle),
disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390.)
3. The Trial Court Did Not Err in Denying the Motion to Exclude
The Attorney General does not dispute that the interrogations were custodial for
purposes of the Miranda analysis. Cortinas does not dispute that the initial Miranda
warnings were adequate, or that he understood and voluntarily waived them at the
initiation of the November interview. The sole issue is whether he unambiguously
invoked his right to remain silent in the exchange quoted above, such that officers were
required to stop questioning him.
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Our assessment of the record accords with the trial court’s findings. Viewing
Cortinas’s statements in isolation and in transcript form, his assertion that “I won’t talk
no more,” could constitute an adequate and unambiguous invocation of the right to
remain silent. Upon viewing the video of the interview, however, the context shows that
a reasonable police officer in those circumstances would not have understood the
statement to be such an invocation. After Cortinas told the officers he was at a park
during the relevant time period, the officers continued to question him on his
whereabouts and told him they had information contradicting his claims. Cortinas
changed his story, feigned confusion about where he was at the time of the offenses, and
asserted he was “not trying to bullshit you guys.” When the detective refused to accept
this and responded, “Well there’s one thing . . . you are bullshitting me about,” Cortinas
reacted with, “Alright . . . I won’t talk no more.” The video of the exchange shows
Cortinas’s body language, tone of voice, and the timing of the exchange, which
objectively show he was not seriously invoking his right to remain silent. Rather, it
appears Cortinas was reacting out of anger or frustration with the officers’ refusal to
believe him—what the trial court described as “frustration or a desire to stick with his
story.”
The detective asked Cortinas what he meant—an objectively reasonable attempt to
determine whether Cortinas was actually invoking his right to remain silent. “In certain
situations, words that would be plain if taken literally actually may be equivocal under an
objective standard, in the sense that in context it would not be clear to the reasonable
listener what the defendant intends. In those instances, the protective purpose of the
Miranda rule is not impaired if the authorities are permitted to pose a limited number of
followup questions to render more apparent the true intent of the defendant.” (Williams,
supra, 49 Cal.4th at p. 429.)
Although Cortinas then repeated his statement, “I won’t talk no more,” he
immediately continued to talk, asserting, “I’m not trying dick you guys,” and “I’m just
10
trying to get, give you guys everything straight up.” After this, he continued to answer
officers’ questions about where he was and who he was with. Given the overall context
and brevity of the exchange, a reasonable police officer in those circumstances would not
have understood Cortinas’s statements to be an unambiguous invocation of the right to
remain silent. “A defendant has not invoked his or her right to silence when the
defendant’s statements were merely expressions of passing frustration or animosity
toward the officers, or amounted only to a refusal to discuss a particular subject covered
by the questioning.” (Rundle, supra, 43 Cal.4th at p. 115.)
Cortinas’s statements are analogous to those of the defendant in Sanchez, supra, 7
Cal.5th 14. In Sanchez, the police were interviewing the defendant with the objective of
giving him a “voice stress analyzer” test. (Id. at p. 47.) He agreed to submit to
questioning in preparation for the test and waived his Miranda rights. Later in the
interview, the defendant demanded that the police administer the voice test, and when the
officer did not comply, the defendant responded, “I’m not going to say nothing more. I
told you the truth. That’s the truth.” (Id. at p. 48.) The California Supreme Court held
this did not constitute an unambiguous invocation because viewed in context the
statement was instead an expression of impatience to take the voice stress analyzer test.
(Id. at p. 50.) Relying on Williams and Rundle, supra, the Court emphasized the
importance of viewing the statement in context and considering from an objective
standpoint how a listener in the questioner’s situation would understand the defendant’s
statement.
The same analysis applies here, and we reach the same conclusion the trial court
did: Cortinas’s statements were not an unambiguous invocation of the right to remain
silent, but rather an expression of frustration or a similar reaction to officers’ refusal to
accept his version of events. Accordingly, we conclude the trial court did not err in
denying the motion to exclude the statements.
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B. Sufficiency of the Evidence for Willful, Deliberate, and Premeditated Murder
Cortinas contends the evidence was insufficient to support his conviction for first
degree murder because the record does not hold substantial evidence of deliberation and
premeditation in his killing of Guillen. The Attorney General argues the evidence shows
Cortinas committed the killing as the result of a planned retaliatory attack against gang
members, supporting a finding of premeditation.
1. Legal Principles
“To assess the evidence’s sufficiency, we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008) 43
Cal.4th 327, 357, citing People v. Maury (2003) 30 Cal.4th 342, 403.) The record must
disclose substantial evidence to support the verdict such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (Ibid.) The substantial
evidence must be reasonable, credible, and of solid value. (Ibid.) We review the
evidence “in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence.” (Ibid.) “A reversal for insufficient evidence ‘is unwarranted unless it appears
that upon no hypothesis whatever is there sufficient substantial evidence to support’ the
jury’s verdict.” (Ibid.) The standard is the same under both the California Constitution
and the federal Constitution. (People v. Jimenez (2019) 35 Cal.App.5th 373, 392.)
“An intentional killing is premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or rash impulse.” (People v.
Stitely (2005) 35 Cal.4th 514, 543.) “A verdict of deliberate and premeditated first
degree murder requires more than a showing of intent to kill. [Citation.] ‘Deliberation’
refers to careful weighing of considerations in forming a course of action; ‘premeditation’
means thought over in advance. [Citations.] ‘The process of premeditation does not
require any extended period of time. “The true test is not the duration of time as much as
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it is the extent of the reflection. Thoughts may follow each other with great rapidity and
cold, calculated judgment may be arrived at quickly . . . .” [Citations.]’ ’’ (People v.
Koontz (2002) 27 Cal.4th 1041, 1080.) Evidence of “planning activity” is relevant to
show premeditation. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Planning activity
consists of facts about how and what the defendant did before the killing that show the
defendant was engaged in activity directed toward, and intended to result in, the killing.
(Ibid.)
2. Substantial Evidence Supported a Finding of Premeditation and Deliberation
Cortinas concedes the evidence shows he carried a gun from the car to the
apartment, supporting an inference “he considered the possibility there might be a violent
encounter.” (See People v. Lee (2011) 51 Cal.4th 620, 636 [evidence of premeditation
included fact that defendant brought a loaded handgun with him on the night the victim
was killed].) He acknowledges he fired multiple shots at Guillen in rapid succession, but
he argues he was unaware of Guillen’s presence in the apartment, and that he only
became aware of his presence when Guillen hit him with a pole.
The Attorney General points to multiple factors supporting findings of planning
and premeditation based on evidence that Cortinas and the others had a gang-related
motive for the killing. The Attorney General argues the evidence shows this was a
planned retaliation against Sureño gang members in response to Sureños who had
previously been harassing Junior. A week before the killing of Guillen, Cortinas went to
Via Monte with Junior and Senior, where Senior stabbed in a man in the back, thinking
the man was a Sureño. The Attorney General points to text messages between Cortinas
and Senior on this date and three days later as evidence of plans to retaliate. On the day
of the killing, Cortinas knew they were going to Sureño territory with the potential to
retaliate, and Cortinas had armed himself with a loaded gun in anticipation of an attack.
Senior testified that he had told Cortinas about his (Senior’s) plan to go with Junior to
Via Monte, and that Cortinas volunteered to go with them. Just prior to the shootings,
13
Senior and Cortinas were informed of the possible presence of Sureños in the apartment.
They entered the apartment to look for the Sureños, and upon entering, Cortinas said,
“You guys are scrapas?” before opening fire.
Based on this evidence, a jury could reasonably infer that Cortinas purposefully
armed himself with a loaded gun before the group drove to Via Monte for the purpose of
retaliating against Sureños. This was sufficient evidence of planning to support a finding
of premeditation and deliberation. Cortinas attempts to distinguish between his shooting
at Castillo and killing of Guillen, but the jury could reasonably infer that Cortinas entered
the apartment with a plan to kill anyone inside, regardless of whether it was Castillo or
Guillen. This inference was well-supported by the manner in which Cortinas fired at
Castillo and followed him to the window from which Castillo had exited. The jury could
reasonably infer that Cortinas planned to shoot at anyone he could find, and this inference
is not necessarily negated by the fact that Guillen may have gone undetected, allowing
him to catch Cortinas by surprise before Cortinas could shoot at him.
For the reasons above, we conclude this claim is without merit.
C. Remand for Retrial on Gang-Related Charges
Cortinas contends we must vacate the gang-related findings—the conviction on
count 4 (active participation in a criminal street gang) and the true findings on the gang
enhancements for counts 1 and 2—based on the retroactive application of Assembly
Bill 333. The Attorney General concedes that Assembly Bill 333 applies retroactively
and that we must vacate the conviction and enhancements, remanding for possible retrial.
The concession is well-taken.
“Assembly Bill 333 made the following changes to the law on gang
enhancements: First, it narrowed the definition of a ‘criminal street gang’ to require that
any gang be an ‘ongoing, organized association or group of three or more persons.’
(§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision
(f) required only that a gang's members ‘individually or collectively engage in’ a pattern
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of criminal activity in order to constitute a ‘criminal street gang,’ Assembly Bill 333
requires that any such pattern have been ‘collectively engage[d] in’ by members of the
gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also narrowed the
definition of a ‘pattern of criminal activity’ by requiring that (1) the last offense used to
show a pattern of criminal gang activity occurred within three years of the date that the
currently charged offense is alleged to have been committed; (2) the offenses were
committed by two or more gang ‘members,’ as opposed to just ‘persons’; (3) the offenses
commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of
gang activity must be ones other than the currently charged offense. (§ 186.22, subd.
(e)(1), (2).) Fourth, Assembly Bill 333 narrowed what it means for an offense to have
commonly benefitted a street gang, requiring that any ‘common benefit’ be ‘more than
reputational.’ (§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169, 1206
(Tran).)
Under the rule of In re Estrada (1965) 63 Cal.2d 740, these amendments apply
retroactively to Cortinas’s case because his trial occurred prior to the enactment of
Assembly Bill 333 and his conviction is not yet final. (Tran, supra, 13 Cal.5th at
p. 1207.) “When a substantive change occurs in the elements of an offense and the jury
is not instructed as to the proper elements, the omission implicates the defendant’s right
to a jury trial under the Sixth Amendment, and reversal is required unless ‘it appears
beyond a reasonable doubt’ that the jury verdict would have been the same in the absence
of the error. [Citation.]” (Ibid.) The burden is on the Attorney General to make that
showing, but he declines to do so here. Accordingly, we will vacate the conviction on
count 4 and the gang enhancements on counts 1 and 2, and we will remand to give the
prosecution the opportunity to retry them.
D. Improper Term Imposed for the Firearm Enhancement on Count 2
Cortinas contends the trial court incorrectly imposed a term of 20 years to life for
the firearm enhancement on count 2 (attempted murder charge), and that the correct term
15
should have been 20 years. The Attorney General concedes the correct term should be 20
years under the applicable statute, and he asks that we correct the abstract. The
concession is well-taken, but because the trial court orally imposed the term at
sentencing, we will vacate it and order the trial court to impose the correct term.
On count 2, the jury found true the allegation that Cortinas personally and
intentionally discharged a firearm during the commission of the offense under section
12022.53, subdivision (c). The jury found not true the allegation that he personally and
intentionally discharged a firearm causing great bodily injury under subdivision (d) of
that section. The proper term for the enhancement should have been 20 years in prison.
(§ 12022.53, subd. (c).) At sentencing, the trial court orally imposed a term of “20 years
to life under Penal Code section 12022.53(c).” The abstract of judgment lists a term of
“20 to life” for this enhancement. However, the trial court correctly stated the total term
for this count as well as the aggregate term for all counts.
In any event, because we must remand this matter for the reasons above, we will
vacate the term of 20 years to life on this enhancement and order the trial court to impose
the correct term of 20 years at resentencing.
E. Retroactive Application of Assembly Bill No. 1869
The trial court imposed a $129.75 criminal justice administration fee under
Government Code sections 29550, 29550.1, and 29550.2. Cortinas contends we must
vacate the fee based on the newly enacted Assembly Bill No. 1869 (Assembly Bill 1869).
The Attorney General concedes this claim. We accept the concession insofar as the fee
must be modified, but the new law does not empower us to strike it in its entirety.
Effective July 1, 2021, Assembly Bill 1869 revised Government Code section 611,
which now provides, “On and after July 1, 2021, the unpaid balance of any court-
imposed costs pursuant to . . . [Government Code] [s]ections 29550.1, 29550.2, and
29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and
any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111,
16
subd. (a).) “[B]y its plain terms the ameliorative changes of Assembly Bill 1869 apply
retroactively to make any unpaid portion of the identified assessments, as they existed on
June 30, 2021, ‘unenforceable and uncollectible’ as of July 1, 2021. (Stats. 2020, ch. 92,
§§ 11, 62.).” (People v. Greeley (2021) 70 Cal.App.5th 609, 626.) “[A]lthough the
unpaid balance of the identified fees is no longer enforceable and collectible, the statute
also mandates that any portion of a judgment imposing those fees be vacated.
Accordingly, based on the plain language of the statute, the unpaid balance of the
probation supervision and criminal justice administration fees must be vacated.” (Id. at
pp. 626-627, fns. omitted.)
The record does not show what portion of the criminal justice administration fee,
if any, remained unpaid as of July 1, 2021. Accordingly, we will order the trial court on
remand to vacate the portion of the judgment requiring payment of any balance on the
criminal justice administration fee that remained unpaid as of July 1, 2021.
III. DISPOSITION
The judgment is reversed. The conviction on count 4 is vacated, the true findings
on counts 1 and 2 as to the gang-related enhancements under section 186.22 are vacated,
and the term of 20 years to life for the firearm enhancement under subdivision (c) of
section 12022.53 on count 2 is vacated. The matter is remanded to the trial court for
further proceedings. On remand, the trial court shall vacate any portion of the $129.75
criminal justice administration fee that remained unpaid as of July 1, 2021, and for the
firearm enhancement under subdivision (c) of section 12022.53 on count 2, the court
shall impose a term of 20 years in state prison.
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_______________________________
Greenwood, P. J.
WE CONCUR:
_______________________________
Grover, J.
_______________________________
Bromberg, J.
H047790 People v. Cortinas