Opinion
H044758
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. BRANDON ROSS BRACAMONTE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 213441)
I. INTRODUCTION
Defendant Brandon Ross Bracamonte appeals after a jury found him guilty of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count 1); conspiracy to commit robbery (§§ 182, subd. (a)(1), 211, 212.5, subd. (c); count 4); five counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 10, 12-15); and attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 11), and found true the allegations that defendant committed count 4 and counts 10 through 15 for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that a principal personally used a firearm in the commission of counts 12 through 15 (§ 12022.53, subds. (b), (e)(1)). Defendant admitted that he had been previously convicted of a "strike" offense (§§ 667, subds. (b)-(i), 1170.12) and a serious felony (§ 667, subd. (a)). The trial court sentenced defendant to 28 years 4 months in this case plus a consecutive 8 years 4 months in case No. C1229580 for a total aggregate term of 36 years 8 months.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that his convictions must be reversed and a judgment of acquittal entered because the convictions were based on accomplice testimony that lacked sufficient corroboration. Defendant also contends that the matter should be remanded for resentencing to permit the trial court to exercise its discretion under newly amended sections 12022.53, subdivision (h), 667, subdivision (a), and 1385.
For reasons that we will explain, we will reverse the judgment and remand the matter for resentencing.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. The Two Robberies and Attempted Robbery
On December 23, 2011 at approximately 12:40 p.m., a man armed with a small semiautomatic weapon approached a teller at the Pacific Postal Credit Union on Leigh Avenue in San Jose and presented her with a demand note. The teller handed over $4,500.
On December 29, 2011, an assistant manager at the U.S. Bank on The Villages Parkway in San Jose was in the parking lot when she saw two men sitting in a vehicle 10 feet away. One man was wearing a wig. She had seen the man in the wig a couple of days earlier. He had come into the bank dressed as a woman and was seen several hours later walking around the outside of the branch. On the 29th, bank employees locked the doors and called the police. Police received the call for service at 12:50 p.m.
At approximately 1:10 p.m. on December 29, a woman and a man wearing a woman's wig entered Alliance Credit Union on Snell Avenue in San Jose. The woman yelled that they had a bomb and the man brandished a small handgun. They approached a teller and the man demanded money while pointing the gun at her. After getting approximately $3,000 from the first teller, they demanded money from two other tellers, getting approximately $4,000 more. The robbers fled in a getaway car that someone else was driving. One of the tellers pulled a silent alarm and locked the bank's doors.
2. Accomplice Testimony
The Nuestra Familia (NF) is a California prison gang. Luis Barrios was an NF member and three-striker who was given use immunity by the district attorney for his trial testimony. At the time of trial in 2016, Barrios was facing life in prison on pending robbery, gang, theft, and conspiracy charges and had dropped out of the gang.
When Barrios was released from prison in July 2011, the NF directed him to set up an NF street regiment in Santa Clara County and appointed him to be the regiment's leader. Barrios worked closely with Angel Martinez, an NF member. Martinez introduced Barrios to defendant around September 2011. Defendant agreed to "function" for the regiment and had a good source of methamphetamine and cocaine. Defendant supplied both Barrios and Martinez with an ounce of methamphetamine a week for the next three months. Barrios and defendant spoke everyday by phone. In November 2011, NF member Larry Lucero was released from prison and Barrios became his subordinate.
On December 21, 2011, Barrios, who was on parole, cut off his GPS bracelet because he was financially strapped and had decided to rob a couple of banks. Barrios and Robert Pacheco, a member of the street regiment, met with Lucero in Gilroy and told him about the plan to rob banks. Afterwards, Barrios and Pacheco went to Alfred Apaiz's house in San Jose. Apaiz had also "committed himself to function . . . in the regiment." Barrios told Apaiz about his bank robbery plan and Apaiz agreed to participate. Pacheco then took Barrios to a hotel room, where Barrios told Anthony Chavez, a Northerner and possible NF associate, about the plan. Chavez agreed to participate.
Barrios wanted to rob one or two banks. He planned to use the proceeds to buy drugs, which Apaiz would then sell while Barrios served time on a parole violation for cutting off his GPS bracelet. Apaiz would give the money from the drug sales to Pacheco who would get it to Barrios's wife.
a. December 23 , 2011 Robbery at Pacific Postal Credit Union
Chavez located a small bank off Leigh Avenue for the first robbery. On the morning of the robbery, December 23, 2011, Barrios and Chavez constructed a fake bomb out of a couple of road flares, some wires, and black tape. Barrios called defendant for a ride. Defendant arrived with his cousin, Johnny Page, and Barrios told defendant he planned to rob a bank. Defendant drove Barrios, Page, and Chavez to Target, where they bought supplies for the robbery. The men then went to Apaiz's house to pick up Apaiz's car.
Once they got to Apaiz's house, Barrios and Chavez finalized the plan while defendant waited in his car. Chavez was going to wear a brown, curly, shoulder-length wig and cover his neck tattoo. Chavez would stand in line like a regular customer and then hand the teller a note that said that he had a bomb and this was a robbery. Chavez would also take a revolver with him for backup.
Barrios asked defendant to follow them to the bank. The plan was for defendant to be "a chase car" to divert anyone following them and to try to block Apaiz's license plate from view. Defendant agreed.
Barrios and Chavez left Apaiz's house in Apaiz's car. Defendant, with Page in the car, followed Barrios. They went directly to Pacific Postal Credit Union on Leigh Avenue and parked. Chavez entered the bank wearing the wig, a beanie, and a ski vest.
Chavez exited the bank carrying a plastic bag and got into the car with Barrios. They drove to a school with defendant and Page following them. They parked Apaiz's car at the school and got into defendant's car. Barrios asked defendant whether anyone had come out of the bank, and defendant said that as soon as Chavez left the bank, a security guard locked the doors so no one could leave. Defendant dropped Barrios and Chavez off at Chavez's house and left with Page.
Chavez told Barrios that the tellers did not take him seriously at first so he had to show them the bomb and pull out his gun. Chavez got close to $7,000. Barrios gave Chavez $3,000 and set aside $400 for Lucero, taking the remaining proceeds for himself. Defendant and Page were not given any of the money.
The branch manager testified that $4,500 was stolen in the robbery.
b. December 29 , 2011 Attempted Robbery at U.S. Bank
The next bank robbery was planned for December 29. Instead of working with Chavez, Barrios decided to involve Martha Castro, whom he met through Lucero. On December 28, Barrios spoke with defendant about his plans. Defendant agreed to take him to rob another bank. Barrios told defendant that "this time he would get some money out of it."
Defendant picked Barrios up on the morning of December 29 and drove him to Gilroy to pick up Castro. Once they got there, Barrios and defendant went inside, and Barrios told Castro the plan with defendant in earshot. Barrios told Castro that she would go inside the bank with a fake bomb. He would have a gun. Castro would say that they had a bomb and it was a robbery and they did not want any dye packs or GPS devices. With defendant and Castro present, Barrios built a fake bomb out of road flares, wire, something that looked like a timer, and black tape.
Defendant drove Barrios and Castro back to his place in San Jose. Defendant's wife applied makeup on Barrios and gave him a wig, clothing, and a purse so he could disguise himself as a woman. Defendant told Barrios about a bank that had no security guard and an easy escape route. Defendant said that Page could drive. Defendant, Barrios, and Castro went to Page's house in defendant's car.
They decided that defendant would drive Page's car and Page would drive Barrios and Castro in defendant's car because defendant's car had dealer plates. Defendant drove Page's car to a U.S. Bank in the Evergreen area of San Jose, and Page and the others followed defendant to the bank. They parked next to a hedge with the bank out of view.
As Barrios and Castro walked toward the bank, Barrios noticed someone in the bank's parking lot on a cell phone. He then saw that the bank was very busy. When they reached the bank's doors, Barrios decided that it did not feel right, so they left. Barrios had been armed with a .22-caliber gun he had gotten from Lucero and Castro had the fake bomb.
c. December 29 , 2011 Robbery at Alliance Credit Union
As they drove away from U.S. Bank, Page suggested a different bank with no security guard. Page called defendant and told him they were going to a different bank. Defendant followed them there.
Barrios and Castro entered Alliance Credit Union on Snell Avenue in San Jose. Castro told everyone it was a robbery and they had a bomb. No one seemed to take her seriously, so Barrios said, "[T]his is a fucking robbery. Don't nobody move," and took out his gun, pointing it at the tellers. They got approximately $7,000 from two different registers and left.
They got into Page's car and fled with defendant following them. They drove back to defendant's apartment where Barrios divided up the proceeds. He gave defendant $400 and also set aside money for Lucero. Defendant threw away the clothing and wig Barrios used and took the dealer plates off his car.
d. Subsequent Events
On January 5, 2012, Barrios, Pacheco, and an individual known as "Skater" robbed a Chase Bank in a shopping center off Capitol Expressway in San Jose. On January 10, 2012, Barrios and Pacheco robbed another bank in San Jose off of McKee Road.
Sometime after the robbery on January 10, Barrios and Pacheco went to the Creekside Inn in San Jose, where defendant was working security. A fight broke out while they were there, and someone hit Barrios with a bottle and Barrios hit him back. Defendant had a knife. Pacheco stabbed two people with defendant's knife and Jesse Cervantes, Martinez's driver, shot someone. Afterwards, Barrios talked to defendant because Pacheco had dropped the knife. Defendant assured Barrios it was alright because "they recovered the knife, and they took the DVR out so there is no footage."
On the morning of January 12, Apaiz told Barrios that he needed some money. He asked Barrios if he was willing to do another robbery to help him out, and Barrios agreed.
Barrios drove his Cadillac and Apaiz followed him in a stolen blue Honda to a Bank of America on Snell Avenue in south San Jose. Barrios parked his Cadillac in a side street near a freeway entrance and they drove to the bank in the Honda. Barrios went into the bank to rob it while Apaiz waited in the car. Barrios was unarmed but had a fake bomb with him. Barrios told everyone it was a robbery and he wanted money without GPS devices. After he got the money, he got back into Apaiz's Honda.
They were supposed to go back to get Barrios's car, but Apaiz took a wrong turn. A police siren activated across the street, and Apaiz panicked, ran a red light, and got onto a freeway onramp. Before they entered the freeway, Apaiz hit the van in front of them. They spun around, collided with the van again, and hit the center divider. Barrios and Apaiz got out and ran.
Barrios was dazed from the accident. At some point when he was running up an embankment, he turned around and thought he saw a police officer behind him. Barrios complied with orders to get down.
3. Police Investigation
Barrios was interviewed by the police after his arrest on January 12, 2012 and again on February 3, 2012. Based on his statements, police located Barrios's Cadillac on the night of February 3. Barrios's cell phone was found in his car. Barrios's cell phone company provided the police with his call-detail records in response to a search warrant dated February 8, 2012.
4. Expert Testimony
a. Campbell Police Sergeant Dan Livingston
Campbell Police Sergeant Dan Livingston testified as an expert on criminal street gangs. Sergeant Livingston stated that the NF started as a California prison gang in the 1960s. Since the 1970s, the NF has operated "street regiment[s]" that answer to incarcerated NF leadership. Currently, there are approximately 250 to 300 NF members. NF members identify with the number 14 and the color red.
In Sergeant Livingston's opinion, NF members engage in a pattern of criminal gang activity individually and collectively. The NF's primary activities are homicides, assaults with deadly weapons, drug sales, extortion, kidnappings, robberies, identity theft, weapons possession, theft, and burglary.
The prosecution moved conviction records for several individuals into evidence, which were necessary to establish the existence of a criminal street gang. (See § 186.22.)
Sergeant Livingston opined that between December 2011 and April 2012, defendant was a member of an NF street regiment based on his tattoos, text messages, call-detail records, contacts list, and participation in the bank robberies. In Sergeant Livingston's opinion, the December 23, 2011 and December 29, 2011 robberies and the December 29, 2011 attempted robbery were committed in association with and at the direction of the NF, and the NF benefited monetarily from the robberies.
Sergeant Livingston also testified regarding his review of the cellular phone call-detail records for the phone numbers associated with defendant and Barrios. After the phone number associated with defendant was activated on December 21, 2011, there were 138 calls between that number and the number associated with Barrios. There were multiple calls between those numbers on the date of the Pacific Postal Credit Union robbery and the date of the U.S. Bank attempted robbery and Alliance Credit Union robbery. There was also a text-message communication between the phones at 12:29 p.m. on the date of the Pacific Postal Credit Union robbery; Pacific Postal Credit Union was robbed at 12:34 p.m.
b. Marshall Norton
Marshall Norton testified as an expert in the analysis of cellular phone call-detail records. Norton analyzed the December 23, 2011 call-detail records between 10:00 a.m. and 2:00 p.m. for the cellular phone number associated with defendant and the number associated with Chavez. Based on the call-detail records and cell-tower logs, Norton prepared a video slide showing the towers that the phones connected with during that timeframe. Norton also prepared a video slide showing the towers that the phone associated with defendant and the phone associated with Castro connected with on December 29 between 6:00 a.m. and 4:00 p.m.
The slide based on the December 23, 2011 call-detail records showed that the phone number associated with defendant connected with a cell-phone tower in the vicinity of Pacific Postal Credit Union at approximately 12:06 p.m. The slide based on the December 29, 2011 call-detail records showed that the phone number associated with defendant connected with a cell-phone tower in the vicinity of U.S. Bank at approximately 12:47 p.m. The December 29, 2011 slide also showed that the phone number associated with defendant connected with a cell-phone tower in the vicinity of Alliance Credit Union at approximately 1:07 p.m. In addition, the December 29, 2011 slide showed that the phone number associated with Castro connected with a cell-phone tower in the vicinity of defendant's home at approximately 11:08 a.m., 11:52 a.m., and 2:01 p.m.
B. Defense Evidence
Defendant called Steve Brown to testify. Brown owned a security company and had graduated from the police academy. On January 12, 2012, as Brown was entering Highway 85, he observed a dark blue or black Honda driving erratically. The Honda nearly hit the vehicle in front of Brown and crossed several lanes at a high rate of speed to get onto the onramp.
After Brown traveled approximately 100 yards down the freeway, he saw a "[m]assive" traffic collision. The Honda was on the far left side of the freeway while the other vehicle involved in the accident, a gray or silver minivan, had come to rest on the far right side of the freeway.
Brown observed the Honda's passengers run from the median across the freeway toward an onramp. Brown was concerned because there was a school beside the freeway. Brown stopped his vehicle and chased after the Honda's occupants, who were hiding in some shrubbery. He then saw one of the occupants try to enter an unoccupied truck that was parked on the freeway. Brown grabbed the man's right wrist and tried to lock it behind his back. The man spun around, so Brown kicked the man's leg out. The man fell. After Brown completed an "arrest control technique," the man indicated that he would cooperate. Brown turned the man over to the police.
Defendant did not testify on his own behalf.
C. Charges , Verdicts , and Sentence
A 77-count indictment against 48 individuals charged defendant with participation in a criminal street gang (§ 186.22, subd. (a); count 1); conspiracy to sell methamphetamine (§ 182, subd. (a)(1); Health & Saf. Code, § 11379; count 2); conspiracy to commit robbery (§§ 182, subd. (a)(1), 211, 212.5, subd. (c); count 4); five counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 10, 12-15); and attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 11). The indictment alleged that defendant committed counts 2, 4, and 10 through 15 for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that a principal personally used a firearm in the commission of counts 12 through 15 (§ 12022.53, subds. (b), (e)(1)). The indictment also alleged that defendant had suffered four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and one prior serious felony (§ 667, subd. (a)) and that he had served a prior prison term for a violent felony (§ 667.5, subd. (a)). Before trial, the court struck two of the prior strike allegations at the prosecution's request because they had been alleged in error.
The jury deadlocked on count 2 (conspiracy to sell methamphetamine), but found defendant guilty of the remaining charges. It also found true the allegations that defendant committed count 4 and counts 10 through 15 for the benefit of a criminal street gang and that a principal personally used a firearm in the commission of counts 12 through 15. The trial court dismissed count 2 at the prosecution's request. Defendant admitted that he had been previously convicted of a strike offense and a serious felony (§§ 667, subds. (a), (b)-(i), 1170.12). The court struck the remaining prior strike allegation at the prosecution's request.
The trial court denied defendant's Romero motion and sentenced defendant to a term of 28 years 4 months in this case plus a consecutive 8 years 4 months in case No. C1229580, for a total aggregate term of 36 years 8 months.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The record on appeal does not include any of the records in case No. C1229580 apart from the resentencing hearing and the abstract of judgment reflecting defendant's aggregate sentence.
III. DISCUSSION
A. Corroboration of Accomplice Testimony
The trial court instructed the jury that Barrios was an accomplice to defendant's crimes as a matter of law. Defendant contends that his convictions must be reversed and a judgment of acquittal entered because the convictions were based solely on Barrios's testimony, which he asserts was uncorroborated. The Attorney General counters that evidence of "the timing, location, and pattern of communications from [defendant's] cell phone" sufficiently corroborated Barrios's testimony.
The trial court instructed the jury pursuant to CALCRIM No. 335 as follows: "If the crimes of conspiracy or robbery were committed, then Luis Barrios was an accomplice to those crimes. You may not convict the defendant of conspiracy or robbery based on the testimony of an accomplice alone. [¶] You may use the testimony of an accomplice to convict the defendant only if, [¶] One. The accomplice's testimony is supported by other evidence that you believe. [¶] Two. That supporting evidence is independent of the accomplice's testimony. [¶] Three. That supporting evidence tends to connect the defendant to the commission of the crimes. [¶] Supporting evidence however may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crime. And it does not need to support every fact about which the witness testified. [¶] On the other hand, it's not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not however arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence."
The Attorney General also argues that testimony of the Pacific Postal Credit Union's branch manager provided sufficient corroboration of Barrios's testimony. The manager testified that he locked the bank's doors immediately after the robbery. The Attorney General contends that this evidence corroborated Barrios's testimony that defendant told him a security guard locked the bank's doors after Chavez left the bank.
However, as we will explain below, in order to sufficiently corroborate an accomplice's testimony, the evidence must independently tend to connect defendant with the crimes. "[A]n accomplice's testimony is not corroborated by the circumstance that the testimony is consistent with the victim's description of the crime or physical evidence from the crime scene. Such consistency and knowledge of the details of the crime simply proves the accomplice was at the crime scene, something the accomplice by definition admits. Rather, . . . the corroboration must connect the defendant to the crime independent of the accomplice's testimony." (See People v. Romero and Self (2015) 62 Cal.4th 1, 36.)
Section 1111 mandates that "[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."
"This statute reflects the Legislature's determination that ' "because of the reliability questions posed by" ' accomplice testimony, such testimony ' "by itself is insufficient as a matter of law to support a conviction." ' [Citation.] 'Thus, for the jury to rely on an accomplice's testimony about the circumstances of an offense, it must find evidence that, " 'without aid from the accomplice's testimony, tend[s] to connect the defendant with the crime.' " ' [Citation.] ' "The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration." ' [Citations.]" (People v. Rodriguez (2018) 4 Cal.5th 1123, 1128 (Rodriguez).) This includes the defendant's statements and conduct. (People v. Gurule (2002) 28 Cal.4th 557, 628.)
" 'The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime.' " (People v. Abilez (2007) 41 Cal.4th 472, 505 (Abilez).) The independent evidence need not corroborate the accomplice as to every fact on which the accomplice testifies. (People v. Davis (2005) 36 Cal.4th 510, 543.) " ' "Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant." ' " (People v. Szeto (1981) 29 Cal.3d 20, 27 (Szeto).)
" 'The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.' [Citations.]" (Abilez, supra, 41 Cal.4th at p. 505.)
We determine that Barrios's testimony was sufficiently corroborated by independent evidence of defendant's motive and opportunity that " 'reasonably tend[ed] to connect . . . defendant with the commission of the crime[s].' " (Abilez, supra, 41 Cal.4th at p. 505; see Szeto, supra, 29 Cal.3d at p. 28 [evidence of the defendant's motive and opportunity to commit the crimes provided sufficient corroboration of the accomplice's testimony]; People v. Vu (2006) 143 Cal.App.4th 1009, 1022-1023 (Vu) [same].)
In Szeto, an accomplice, Chester Yu, testified that the defendant brought the killers soup the morning after members of the Joe Boys gang opened fire at a crowded restaurant on a Saturday night, killing several bystanders. (Szeto, supra, 29 Cal.3d at pp. 26-27.) Yu also testified that the defendant disposed of the guns used in the offenses near a restaurant where the defendant said he had worked. (Id. at pp. 27-28.) The California Supreme Court determined that "Yu's testimony was corroborated by independent evidence that defendant had a motive to aid the killers in escaping punishment, namely, to assist fellow Joe Boys in gaining revenge" for an earlier slaying of a Joe Boys member. (Id. at p. 28.) The court also found that Yu's testimony was corroborated by independent evidence that bore on the defendant's "opportunity to commit the crimes." (Ibid.) That evidence included a nonaccomplice's testimony that the defendant brought soup to her house on Sunday morning and that the Joe Boys, whom she did not know to be gang members, had free access to her house. (Ibid.) Another nonaccomplice testified that the Joe Boys members were at the house on Saturday night and, as far as he knew, so were the guns used in the offenses. (Ibid.) The guns were no longer at the house on Sunday evening. (Ibid.) Finally, an assistant manager of the restaurant near the gun disposal site testified that the defendant had worked there several months before the incident. (Id. at p. 29.)
In Vu, supra, 143 Cal.App.4th at page 1022, the Court of Appeal followed Szeto to determine that the accomplice testimony was sufficiently corroborated by independent evidence that "connected [defendant] to the crime by establishing motive and opportunity and by discrediting [his] alibi." The independent evidence of the defendant's motive consisted of the defendant's membership in a gang, his attendance at a fellow gang member's funeral, the gang's rivalry with another gang, and the testimony of the prosecution's gang expert that the crime was committed at the direction and for the benefit of a criminal street gang. (Vu, supra, at p. 1022.) The independent evidence of opportunity was nonaccomplice testimony placing defendant at a coparticipant's and fellow gang member's home with other gang members and associates on the night of the crime. (Id. at pp. 1012, 1022, 1027.) In addition, the nonaccomplice discredited the defendant's alibi, as did cell phone records and a cell-site location. (Id. at p. 1023.)
Here, the prosecution's gang evidence provided independent evidence of defendant's motive to commit the crimes. (See Szeto, supra, 29 Cal.3d at p. 28; Vu, supra, 143 Cal.App.4th at p. 1022; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1178 ["Gang membership can be a significant factor in corroborating an accomplice's testimony"].) The prosecution's gang expert, Sergeant Livingston, testified that in his opinion, defendant was a member of an NF street regiment in December 2011. "[A] street regiment is an extension of the NF [membership] in custody" and the regiment's members "answer to the [incarcerated] leadership." Sergeant Livingston testified that in order to participate in an NF street regiment, a person must commit themselves to function on the streets for the NF. Regiment members typically pay dues, supply the regiment with drugs, or commit crimes on the regiment's behalf. Street gang members must "kick[] back to the NF." If they do not, "the NF will force them to do it." Sergeant Livingston opined that the NF's primary activities included robbery. In Sergeant Livingston's opinion, the crimes in this case were committed in association with and at the direction of the NF.
The prosecution's independent cellular-phone evidence established defendant's opportunity to commit the crimes. (See Szeto, supra, 29 Cal.3d at p. 28; Vu, supra, 143 Cal.App.4th at p. 1022; cf. Rodriguez, supra, 4 Cal.5th at p. 1128 [observing that although there was evidence that the defendant was a Sureño gang member, the evidence " 'failed to personally connect [the defendant] to the shooting itself, the physical evidence, the accomplices and victims involved, the vehicle used by the perpetrators, or any particular location related to the crime such as Oregon Park, [the Thrasher Avenue] residence, and the areas where physical evidence was found' " (italics added)].)
Because Barrios's testimony provided the only evidence of Castro's cellular phone numbers, we do not rely on Castro's call-detail records for independent evidence of corroboration. (See Rodriguez, supra, 4 Cal.5th at p. 1128.)
Here, defendant gave the police his phone number during a police contact on January 11, 2012. Cellular phone call-detail records for defendant's phone number and cell-phone tower logs placed defendant's phone in the vicinity of Pacific Postal Credit Union on December 23, 2011 at 12:32 p.m. The bank was robbed around 12:40 p.m. The evidence also placed defendant's phone in the vicinity of U.S. Bank on December 29, 2011 at 12:47 p.m. Police received a call for service from U.S. Bank at 12:50 p.m., after a bank employee noticed suspicious individuals, one of whom was in a wig, in the bank's parking lot. Finally, the call-detail records for defendant's phone number placed defendant's phone in the vicinity of Alliance Credit Union on December 29, 2011 at 1:07 p.m. Alliance Credit Union was robbed around 1:10 p.m.
Marshall Norton, the prosecution's expert on cellular phone call-detail records, plotted the cell-phone towers defendant's phone connected with on the dates of the crimes. Norton used that information to create computer-generated videos showing the various towers defendant's phone connected with on the crime dates in chronological order. The video of December 23, 2011, the date of the Pacific Postal Credit Union robbery, showed that defendant's phone repeatedly connected with towers in the vicinity of his home that morning. Around 12:06 p.m., his phone connected with a tower in the vicinity of Pacific Postal Credit Union. It continued to connect to towers near the bank, with the last connection to a tower in the vicinity of the bank occurring around 12:47 p.m. As we stated above, Pacific Postal Credit Union was robbed around 12:40 p.m. The next time defendant's phone connected with a tower, it was back in the vicinity of his home at approximately 1:02 p.m. It continued to connect to that tower until close to 2:00 p.m.
The parties stipulated to defendant's address.
The video of December 29, 2011, the date of the U.S. Bank attempted robbery and the Alliance Credit Union robbery, showed that defendant's phone connected to a tower in the vicinity of his home a little after 7:00 a.m. The phone then connected to various towers around San Jose and a tower in Gilroy during the morning. It connected to a tower near his home again around noon before it started to connect with towers traveling in a southerly path from his home from approximately 12:15 p.m. to 12:28 p.m., until it connected with a tower in the vicinity of U.S. Bank at approximately 12:47 p.m. Police were called to U.S. Bank at 12:50 p.m. The next time defendant's phone connected with a tower, it was with a tower in the vicinity of Alliance Credit Union at approximately 1:07 p.m. Alliance Credit Union was robbed around 1:10 p.m. After that, defendant's phone connected with a tower to the northeast of the credit union in the direction of his home at approximately 1:23 p.m. and then with a tower in the vicinity of his home around 1:31 p.m.
In addition, the cellular phone call-detail records established there were over 100 calls between defendant's phone number and Barrios's phone number beginning on December 21, 2011 until Barrios's arrest in mid-January 2012. Multiple calls occurred between those phone numbers on the crime dates, and the phone records established a text message communication between the numbers five minutes before Pacific Postal Credit Union was robbed.
Defendant argues that the extent of his cell-phone contact with Barrios is not probative because the call-detail records show that his phone "made and received a total of 2,101 calls" between December 21 and January 5, rendering the number of calls between his phone and Barrios's phone unremarkable. Defendant also points out that Norton did not provide the typical distance or range between a cell phone and the tower it has connected with, testifying solely that cell phones " 'want to connect to the strongest signal or antennae' " and that " '[i]n most cases that is the closest tower.' " Finally, defendant observes that on various dates from December 21, 2011 through mid-January 2012, his phone routinely connected with the same towers it connected with on the dates of the robberies.
However, corroboration of accomplice testimony may be " ' "established entirely by circumstantial evidence." ' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) The question whether defendant's phone's connections with towers in the vicinity of the Pacific Postal Credit Union, U.S. Bank, and Alliance Credit Union on the same dates and within minutes of the crimes supported the inference that defendant committed the robberies and attempted robbery was for the jury to decide. The jury clearly rejected defendant's argument at trial that the "unknown phone usage" did not provide sufficient corroboration of Barrios's testimony because there was no evidence of who was using the cell phones, what was being said, or the location of the phones in relation to the towers.
Based on our careful review of the record, we conclude that the expert's evidence of gang motive and the cell-phone evidence of opportunity sufficiently corroborated Barrios's accomplice testimony because it " 'reasonably tend[ed] to connect' " defendant with the crimes without aid from Barrios's testimony. (Szeto, supra, 29 Cal.3d at p. 27, italics omitted; see also Abilez, supra, 41 Cal.4th at p. 505 [we are bound by " '[t]he trier of fact's determination on the issue of corroboration . . . unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.' "].)
B. Amendment to Section 12022 .53
The trial court sentenced defendant to an additional 10 years in prison because a principal personally used a firearm in the commission of counts 12 through 15. (§ 12022.53, subds. (b), (e).) At the time of sentencing, the trial court lacked discretion to strike the firearm enhancements. (Former § 12022.53, subd. (h).) Senate Bill No. 620, which went into effect on January 1, 2018, gives the trial court new discretion to strike a firearm enhancement under section 12022.53: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) We agree with the parties that section 12022.53, subdivision (h) retroactively applies to this case. (Accord, People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).)
Even though the amendment is retroactive, however, remand is not automatic. We must determine whether remand is required or if it would be an " 'idle act.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901 (Gamble).) Generally, "when the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The rationale for this general rule is that "[d]efendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (Ibid.) However, where " 'the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.' " (Gamble, supra, at p. 901.)
In McDaniels, the Court of Appeal addressed the appropriate standard to "apply in assessing whether to remand a case for resentencing in light of Senate Bill [No.] 620." (McDaniels, supra, 22 Cal.App.5th at p. 425.) The court determined that "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (Ibid.) If the trial court "express[ed] its intent to impose the maximum sentence permitted," remand was not required "because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Id. at p. 427.)
People v. McVey (2018) 24 Cal.App.5th 405 (McVey) is illustrative of when remand for resentencing would constitute an idle act. There, the trial court chose the maximum term for the firearm enhancement, described the defendant's attitude as " 'pretty haunting,' " and commented that " 'the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement.' " (Id. at p. 419.) The Court of Appeal concluded that remand for resentencing under Senate Bill No. 620 "would serve no purpose but to squander scarce judicial resources." (McVey, supra, at p. 419; see also People v. Jones (2019) 32 Cal.App.5th 267, 274 [concluding that remand was unnecessary based on the trial court's comment that it had " 'great satisfaction in imposing the very lengthy sentence here today' "].)
Here, the trial court denied defendant's Romero motion. It also found numerous factors in aggravation and no factors in mitigation and selected the upper term on count 12. However, we agree with the Attorney General that there is "no clear indication" in the record that the court would not have stricken the firearm enhancements had it had the discretion to do so. (See McDaniels, supra, 22 Cal.App.5th at p. 427.)
Accordingly, because there is no clear indication in the record that it would be futile to allow the trial court to consider whether to strike the firearm enhancements previously imposed under section 12022.53, remand for resentencing is appropriate.
C. Amendment to Section 667 , Subdivision (a)
The trial court imposed and stayed the section 667, subdivision (a) prior serious felony conviction enhancement in this case and imposed a consecutive five-year term for the enhancement in case No. C1229580. "On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amend[ed] sections 667(a) and 1385(b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)" (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
Defendant contends that remand for resentencing is required to permit the trial court to exercise its discretion to strike the section 667, subdivision (a) enhancement. The Attorney General acknowledges that the new law applies retroactively, but argues we should not remand for resentencing on the enhancement because the trial court stayed imposition of the enhancement in this case, imposing it in a separate matter (case No. C1229580) that is not before us on appeal. We are not persuaded.
"Section 1170.1 generally governs the calculation and imposition of a determinate sentence when a defendant has been convicted of more than one felony offense." (People v. Williams (2004) 34 Cal.4th 397, 402.) Section 1170.1, subdivision (a) states: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1."
As the California Supreme Court has explained, "if a defendant is convicted of more than one offense carrying a determinate term, and the trial court imposes consecutive sentences, the term with the longest sentence is the 'principal term'; any term consecutive to the principal term is a 'subordinate term.' (§ 1170.1, subd. (a).)" (People v. Felix (2000) 22 Cal.4th 651, 655.) "The court imposes the full term, either lower, middle, or upper, for the principal term." (Ibid.) "However, in general (there are exceptions), the court imposes only 'one-third of the middle term' for subordinate terms. [Citation.]" (Ibid.) Where, as here, the defendant has one prior strike conviction, the Three Strikes law (§§ 667, subd. (b)-(i), 1170.12) requires the sentencing court to "designate principal and subordinate terms as required by section 1170.1, calculating the subordinate terms as one-third the middle term (except when full-term consecutive sentences are otherwise permitted or required), and then double each of the resulting terms." (People v. Nguyen (1999) 21 Cal.4th 197, 203-204.)
The trial court followed section 1170.1 when it imposed sentence in this case and in case No. C1229580, selecting a principal term (count 12 in this case) and imposing one-third of the midterm on all consecutive terms imposed. The aggregate sentence of 36 years 8 months resulted in one judgment, from which defendant appeals. (See Cal. Rules of Court, rule 4.452(a)(1) ["The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case"]; In re Reeves (2005) 35 Cal.4th 765, 772-773.) That defendant's notice of appeal did not include case No. C1229580 does not change that fact. (See rule 8.304(a)(4) ["The notice of appeal must be liberally construed. . . . [T]he notice is sufficient if it identifies the particular judgment or order being appealed"].)
The trial court selected count 12 in this case as the principal term and imposed the upper term of 10 years plus an additional 10 years for the section 12022.53 enhancement. As required pursuant to section 12022.53, subdivision (e)(2), the court did not impose an additional term for the section 186.22, subdivision (b) enhancement on count 12. The court imposed and stayed the midterm of two years on count 1 and the midterm of 16 years on count 4. On count 10, the court imposed a consecutive sentence of one-third the midterm plus one-third of the section 186.22, subdivision (b) enhancement term for a total of five years four months. On count 11, the court imposed a consecutive sentence of one-third the midterm plus one-third of the section 186.22, subdivision (b) enhancement term for a total of three years. The court imposed concurrent sentences of 16 years each on counts 13, 14, and 15, consisting of the midterm of six years plus 10 years for the section 12022.53 enhancements. The court stayed the section 667, subdivision (a) enhancement.
In case No. C1229580, the trial court imposed a consecutive three years four months on count 1, a violation of section 215 (carjacking), which was one-third the midterm. It struck the section 12022, subdivision (a)(1) arming enhancement pursuant to section 1385. It imposed a concurrent low-term sentence of six years on count 2, a violation of section 245, subdivision (b) (assault with a semiautomatic firearm). Finally, the court imposed a consecutive five-year term for the section 667, subdivision (a) enhancement.
We note that pursuant to People v. Gutierrez (2002) 28 Cal.4th 1083, 1163-1164, the trial court should have struck the section 667, subdivision (a) enhancement alleged in this case rather than imposing and staying it.
All subsequent rule references are to the California Rules of Court.
Because nothing in Senate Bill No. 1393 suggests a legislative intent that the amendments to sections 667, subdivision (a), and 1385, subdivision (b), apply prospectively only, "it is appropriate to infer, as a matter of statutory construction, that the Legislature intended Senate Bill [No.] 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when Senate Bill [No.] 1393 becomes effective on January 1, 2019." (Garcia, supra, 28 Cal.App.5th at p. 973.) The judgment against defendant was not final on January 1, 2019. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [" 'a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' "].)
As we stated above, " '[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.]' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) When the record shows that the trial court proceeded with sentencing on the assumption that it lacked discretion, remand for resentencing is necessary "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (Ibid.)
Here, the trial court did not express an intent to impose the maximum sentence permitted and exercised its discretion to strike the section 12022, subdivision (a)(1) enhancement pursuant to section 1385. Thus, the record before us does not clearly indicate that the trial court would have declined to strike defendant's prior serious felony conviction if it had the discretion to do so for the purposes of sentencing him under section 667, subdivision (a). (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand for resentencing because "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence"].)
Accordingly, we conclude that remand is appropriate to allow the trial court to exercise its discretion regarding whether to strike defendant's prior serious felony conviction for sentencing purposes.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing. The trial court shall determine whether to exercise its discretion pursuant to Penal Code section 1385 to strike the Penal Code section 12022.53 firearm-use allegations. The trial court shall also determine whether to exercise its discretion pursuant to Penal Code section 1385 to strike defendant's prior serious felony conviction for the purposes of sentencing him under Penal Code section 667, subdivision (a). If the trial court does not strike the enhancements, it shall reinstate the sentence.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
GROVER, J.