Opinion
F072687
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID FIGUEROA, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF158387A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant David Figueroa shot and wounded Ivan Lopez multiple times after Figueroa's associate, Oscar Garcia, argued and fought with Lopez. Figueroa and Garcia were charged with multiple felonies with gang enhancements. The People's theory was that Figueroa and Garcia were members of the Norteño gang, and they committed the offenses for the benefit of that gang. The defense theory was that Garcia and Lopez argued about whether Lopez talked to Garcia's girlfriend, and the incident was not gang-related.
After a joint jury trial, Figueroa was convicted of count I, attempted murder of Lopez (Pen. Code, §§ 664, 187, subd. (a)); count II, active participation in a criminal street gang (§ 186.22, subd. (a)); and count III, carrying a loaded firearm in a public place while an active participant in a criminal street gang (§ 25850, subd. (c)(3)), with firearm (§ 12022.53, subd. (d); § 12022.5, subd. (a)) and great bodily injury enhancements (§ 12022.7). Figueroa was found not guilty of count IV, conspiracy with Garcia to commit assault with a firearm (§§ 182, 245, subd. (a)(2)). The jury found the gang enhancements were not true as to Figueroa (§ 186.22, subd. (b)(1)).
All further statutory citations are to the Penal Code unless otherwise indicated.
Garcia was tried for attempted murder, active participation in a criminal street gang, and conspiracy, with gang enhancements; the same jury found him not guilty of all charges.
As a result of Garcia's acquittal, the trial court subsequently dismissed Figueroa's conviction in count II for active participation in a criminal street gang because Garcia's acquittal meant that two or more gang members did not commit any underlying offenses.
Figueroa was sentenced to the upper term of nine years for attempted murder, plus 25 years to life for the firearm enhancement.
On appeal, the parties agree that the court erroneously sentenced Figueroa for count II, active participation in a criminal street gang, even though the court dismissed that conviction. The parties also agree that Figueroa's conviction in count III for the felony of carrying a loaded firearm in a public place while an active participant in a criminal street gang must be modified since the court dismissed count II, but disagree whether it should be modified to a misdemeanor.
Figueroa's primary issue is that since the jury found the gang enhancements were not true, the admission of the gang evidence had a "prejudicial spillover" effect on his conviction for attempted murder. Figueroa concedes that the witnesses identified him as the gunman who shot and wounded Lopez, but argues that the "prejudicial spillover" effect of the gang evidence prevented the jury from convicting him of the lesser offense of attempted voluntary manslaughter.
We strike the conviction and sentence imposed for count II, modify count III to a misdemeanor and remand for sentencing on that count.
We also remand the matter for the court to consider whether to exercise its discretion for imposition of the firearm enhancement found true in this case, under the newly-enacted provisions of section 12022.53, subdivision (h), as amended by Senate Bill 620.
In all other respects, we affirm.
FACTS
In the early morning hours of November 22, 2014, Ivan Lopez drove to Aldo's nightclub in Bakersfield. Lopez had consumed six beers about three hours earlier.
Lopez pulled into Aldo's parking lot and recognized a vehicle that belonged to Jerrina and Nancy Rodriguez, his sisters-in-law. Lopez called them and learned they were in the nightclub. Lopez invited them to meet him at Tacos La Villa, a small restaurant near Aldo's, and they agreed.
Given their identical last names, we will refer to these witnesses by their first names for ease of reference.
Lopez met Nancy and Jerrina in the restaurant's parking lot. The restaurant was very busy with people who were leaving the clubs. Lopez and the sisters went inside, stood in line, and waited to order at the counter. Nancy and Jerrina chatted with Lopez, and two women who were standing in front of them.
Lopez also talked with a woman who was standing behind him. Lopez testified he was joking around and being friendly with her. Lopez did not recall anyone telling him not to talk to the woman. Figueroa and Garcia
Nancy testified that as they waited in line, she heard a man speak to Lopez in a "foul" manner. Nancy and Jerrina testified that this man was trying to instigate a fight with Lopez. A second man was with him, and he tried to look tough. One of these men asked Lopez, "[W]hat are you looking at?"
Nancy subsequently identified Garcia as the first man who used foul language, and Figueroa as the second man who was trying to look tough. Lopez and the sisters did not know Garcia or Figueroa.
Nancy testified that Garcia and Figueroa were with two women. Garcia continued to use "foul" language and challenged Lopez to a fight. Garcia told Lopez, " 'Let's go outside.' " Jerrina believed that Garcia thought Lopez was flirting with his girlfriend.
Lopez testified that the first man, later identified as Garcia, started making hand signs at him. Lopez thought Garcia was "trying to look for problems." Lopez could not recall if someone accused him of trying to "hit on" Garcia's girlfriend.
Nancy testified that Lopez and Garcia argued. Nancy tried to hold Lopez back, but he pushed her away. Lopez ran out of the restaurant's back door and went into the parking lot. Garcia and Figueroa ran in the opposite direction, and left through the restaurant's front door. Tiffany Zavala's testimony
Tiffany Zavala was also waiting in line at the restaurant. She was not with Lopez, Garcia, or Figueroa. Zavala testified that she saw Garcia with two women, and a man with a mole on the back of his head (later identified as Figueroa). Garcia started to argue with Lopez, who was with the two sisters. Zavala testified that Garcia appeared to be the aggressor, and he kept saying things as the sisters tried to calm down Lopez. The man with the mole, and one of the females from Garcia's group, yelled antagonizing things at Lopez.
Zavala testified that Lopez started to walk away, but Garcia said more things to antagonize him. The sisters finally got Lopez to leave, and they went into the parking lot. Zavala saw Garcia and the man with the mole leave through the restaurant's front door. The women from Garcia's group stayed in the restaurant. The shooting
Nancy testified that she followed Lopez into the parking lot. Garcia was already there and waiting for Lopez. Garcia stood in front of Lopez, he swung his fist at Lopez's head, and hit his face. Lopez tried to punch Garcia but missed.
Nancy testified that Figueroa was standing near Garcia during the altercation. No one else was near them. After Lopez missed with his punch, Garcia turned toward Figueroa and said, " 'Do what you got to do.' "
Nancy testified that just seconds after Garcia made this statement, she saw Figueroa with a gun. Figueroa looked at Lopez and fired multiple gunshots at him. Nancy heard three shots fired one after another, then there was a break, and then she heard two more shots. All of the gunshots were quickly fired, within a short period of time.
Jerrina testified that she was also in the parking lot, and Figueroa turned around and showed her that he had a gun. Jerrina turned away and looked toward the restaurant, and suddenly heard five gunshots.
Lopez testified he did not see anyone with a gun, but heard about six gunshots and realized he was wounded. He fell to the ground and called out for help. After the shooting
Nancy and Jerrina testified that after the shots were fired, a woman who had been with Garcia shouted, "[L]et's go, let's go." Garcia got into a truck with two women and another man. Jerrina used her cell phone and took pictures of the truck as it pulled out of the restaurant's parking lot. The driver almost hit Jerrina as the truck left the area.
Nancy and Jerrina testified that Figueroa, the gunman, ran away and did not get into the truck. The initial investigation
At 2:20 a.m., Officer Chris Denman was on patrol just a few hundred feet from the restaurant and heard seven gunshots. Denham drove to the restaurant and spoke to the witnesses in the parking lot. He learned that the people connected to the shooting had just left in a silver Chevrolet Silverado, the vehicle pulled out "pretty quickly," and one of the witnesses took cell phone pictures of the vehicle.
Officer Denman immediately pursued the Silverado, which was speeding away from the area. Denman conducted a traffic stop and the Silverado pulled over. The occupants were Garcia, Jessica Trujillo, Eva Chavez, and Luis Sanchez. Figueroa was not in the vehicle. Lopez's injuries
Lopez was shot multiple times. When the police arrived, Lopez was lying in the parking lot, and Jerrina and Nancy were trying to apply pressure to his wounds. Lopez was not found in possession of any weapons.
The police found five .40-caliber shell casings in the restaurant's parking lot, about 15 to 20 feet from where emergency personnel initially treated Lopez.
Lopez was taken to the hospital and went through several surgeries. As a result of the bullet wounds, Lopez was left with kidney problems, a colostomy, and scars on his stomach, hip, and legs. Identification of Garcia
After Lopez was treated, a baggie containing 1.6 grams of methampethamine was found in his clothing. At trial, Lopez admitted he used methamphetamine, but denied that he sold narcotics.
Shortly after the shooting, the police escorted Nancy and Jerrina to the location where the Silverado had been stopped, and separately asked them to look at the four occupants. Jerrina and Nancy separately identified Garcia as the man who started the fight. Nancy identified one of the women as being involved in the argument.
The police also escorted Tiffany Zavala to a separate infield showup. Zavala identified Garcia as the man who argued with Lopez. Zavala also identified the other occupants as people who had been with Garcia. Zavala stated that the man with the mole on the back of his head was not present during the infield showup. Identification of Figueroa
The witnesses stated the gunman had a mole on the back of his head. Sergeant Ortiz of the Delano Police Department recognized the physical description and believed it matched Figueroa.
A few hours after the shooting, Officer Jessica Amos contacted Jerrina at the hospital where Lopez was being treated. Officer Amos showed Jerrina a photographic lineup that contained Figueroa's picture. Jerrina pointed to Figueroa and said she was 70 percent sure that he was the gunman. "She stated that his hair was shorter when she had seen him earlier in the day, but she was pretty sure that it was him." Jerrina was upset about the shooting and Lopez's condition. She kept "staring at the picture and just shaking her head and pointed" at Figueroa's picture.
Later that day, Officer Amos separately met with Nancy and showed her another photographic lineup that contained Figueroa's picture. Nancy looked at the lineup, and started trembling and crying. "Within 20 seconds of seeing the photo, she began pointing" at Figueroa's picture and said, " 'That's him. That's him.' She physically became upset." Nancy did not hesitate when she identified Figueroa as the gunman.
Tiffany Zavala also identified Figueroa from a photographic lineup as the second suspect with the mole on the back of his head.
GANG EVIDENCE
As we will explain in issue III, post, Figueroa asserts that since the jury found the gang enhancements were not true, the admission of the gang evidence had a "prejudicial spillover" effect on his conviction for attempted murder, based on a series of federal circuit cases. Thus, while Figueroa no longer stands convicted of any gang-related charges, we are compelled to review the entirety of the gang evidence introduced by the prosecution as to both Figueroa and Garcia to address his contentions.
Officer Michael Strand of the Delano Police Department testified as the prosecution's gang expert and stated that Figueroa and Garcia were active members of the Norteño gang.
Officer Strand testified the Norteño gang answered to the Nuestro Familia gang, a prison gang that controlled the Norteños on the street. The Sureños were their rival gang. The primary activities of the Norteño gang included murder, attempted murder, firearm offenses, armed robbery, burglary, vehicle theft, extortion, vandalism, carjacking, criminal threats, and kidnapping. The Norteño gang's symbols included the color red, the letter "N," and the number "14." The Norteños claimed Delano and part of McFarland.
Officer Strand testified that within the gang's culture, firearms were used both offensively and defensively against rival gang members, and also for intimidation, threats, and control. Strand testified that a gang member in possession of a gun instilled fear into the community. A member of the Norteño gang with a reputation for violence would be greatly feared and earn respect. A member of the Norteño gang would typically respond to acts of disrespect with violence, and he would be considered a coward if he failed to do so.
Officer Strand testified that members of the Norteño gang follow the "14 bonds" or "rules." The 12th "bond" stated that all Norteños were required to engage in battle to help another Norteño, and the failure to do so would be considered an act of cowardice that would be met with extreme violence. Predicate offenses
Officer Strand testified about the following predicate offenses, based on his review of police reports and familiarity with certain cases.
Both prior to and during trial, Figueroa and Garcia raised objections to certain aspects of Officer Strand's testimony. The court partially granted but primarily denied the objections. On appeal, Figueroa has not claimed that Strand's testimony constituted hearsay pursuant to People v. Sanchez (2016) 63 Cal.4th 665 or that any of his prior statements to officers were inadmissible under People v. Elizalde (2015) 61 Cal.4th 523.
On October 7, 2012, Abraham Prado and Alvaro Fernandez, Norteño members, assaulted and seriously injured a Norteño dropout. Prado and Fernandez were charged with multiple offenses, and pleaded no contest to assault with a deadly weapon and gang participation.
On April 8, 2013, Christian Torres, a Norteño member, joined with two other Norteños and assaulted several victims with knives, and called them "scraps," meaning Sureños.
On April 26, 2013, Justin Escalante, Antonio Montemeyer, and Benjamin Cantu, members of the Delano Norteños, were casing a neighborhood in Shafter. Escalante admitted to police that they went to Shafter to commit burglaries. Escalante pleaded no contest to second degree burglary.
On December 31, 2013, police conducted a traffic stop on Ellington Street in Bakersfield. Omar Valdez, an active Norteño, was a passenger. A loaded handgun was under Valdez's seat. The handgun had been reported stolen. Valdez was convicted of carrying a loaded and stolen firearm.
On September 10, 2014, at 4:30 a.m., the police conducted a traffic stop on a car. The occupants were Norteño members, including Marcos Romero and Miguel Martinez. A loaded handgun was found near Romero, who was charged with firearm and gang offenses. Garcia and Figueroa
Officer Strand testified to his opinion that Garcia and Figueroa were active members of the Norteños in Delano at the time that Lopez was shot. Strand's opinion was based on his review of police reports, photographs, and field interviews.
Officer Strand testified that based on his review of recent photographs, Figueroa had a large mole on the back of his head. He also had numerous Norteño-related tattoos, including one that signified that he had committed an attack on a rival.
Officer Strand testified that on November 12, 2003, the police investigated a report of criminal threats. The victim and her boyfriend, a Norteño dropout, were driving in Delano. Figueroa was driving behind them and wearing a red shirt. At an intersection, Figueroa produced a gun and approached the former Norteño, who drove away. While the victim filed a police report, he was later uncooperative.
On March 22, 2005, the police conducted a traffic stop of a vehicle. Figueroa and several other Norteños were in the car, along with a sawed-off shotgun. Everyone in the car, except defendant, admitted being gang members. However, defendant had a keychain with two Norteño symbols. Defendant was charged with gang and weapons offenses.
On December 20, 2005, the police conducted a traffic stop. Figueroa was in the car with a documented Norteño member.
On October 27, 2007, the police responded to a family disturbance and contacted defendant, who was wearing a red shirt. Figueroa's "significant other" said she was concerned because he was associating with someone who was connected to a gang.
In January 2008, the police investigated the theft of a cell phone and numerous firearms from a vehicle that was owned by hunters. Later that day, the police conducted a traffic stop of another vehicle. The occupants were several members of the Norteños, including defendant. The stolen cell phone and one of the stolen weapons were found in the car.
On March 28, 2015, Figueroa and Garcia were in custody at the Lerdo facility, in an area where Norteños were housed. Figueroa, Garcia, and two other inmates conducted a "coordinated Norteño assault" on another inmate, who had been a police informant and was convicted an enemy of the Norteños.
Officer Strand testified there were numerous posts on Garcia's Facebook page of photographs of Garcia with other members of the Norteños that showed his possession of a gun and other gang activities. Garcia did not have any gang tattoos. Strand testified about several criminal cases where the police encountered Garcia with other members of the Norteño gang. Strand believed Garcia was also an active member of the Norteños on the day of the shooting.
Given a hypothetical based on the facts of the instant case, Officer Strand testified that the offenses were committed for the benefit of and in association with the Norteño gang. One Norteño called out a non-Norteño over a matter of disrespect about a girl. The crimes were committed in association with another gang member when the first man told the gunman, " 'Do what you gotta do.' " Both men showed they were not afraid performed the acts in front of other members of the Norteño gang, and increased their reputations for fear and violence, particularly since they were in Bakersfield, which was primarily Sureño territory.
DEFENSE EVIDENCE
Figueroa did not testify and did not introduce any defense evidence. Garcia introduced evidence and testified. Garcia's defense evidence
Officer James Dickson testified that he interviewed Nancy after she attended the infield showup. Nancy was crying and very emotional, but provided details about the argument and shooting. In providing those details, however, Nancy never said that Garcia told Figueroa, " 'Do what you got to do' " just prior to the shooting, and made that allegation for the first time in her trial testimony.
Harlan Hunter, a private investigator and adjunct faculty member of Bakersfield College, testified to his opinion that Garcia was not an active member of the Norteños at the time of the charged offenses. Given a hypothetical based on the instant case, Hunter testified that the shooting was not committed for the benefit of a criminal street gang. Garcia's testimony
Garcia testified he was not a member of the Norteños, he did not have any gang tattoos or a criminal record, he was employed, and he had never been jumped into a gang. Garcia testified the prosecution's photographs from his Facebook page did not show him throwing any gang signs.
Garcia testified on the night of the shooting, he was at the restaurant with Jessica Trujillo, his girlfriend; and Luis Sanchez and his girlfriend, Eva. Figueroa arrived with Sanchez. Garcia did not know Figueroa and had never met him before that night. Garcia had about seven beers and felt "tipsy." Garcia and his friends were not looking for trouble.
Garcia testified he was standing in line with Trujillo and saw Lopez put his hand on Trujillo's buttock. Lopez said he was going to go home with her and asked for her number. Garcia testified Lopez looked strange, his jaw was "moving everywhere," he was licking his lips, and his eyes "popped out."
Garcia admitted he started to argue with Lopez about why he was touching Trujillo, and said he had a problem with that. Garcia never threw a gang sign, but he asked Lopez what was up and made a gesture with his hands.
Garcia testified Lopez left the restaurant. Garcia left through the opposite door to avoid any trouble. When he got into the parking lot, however, he found Lopez had removed his shirt. Lopez insulted Garcia and challenged him to a fight. Garcia decided to fight him so he would not look scared in front of his girlfriend. Lopez threw a punch at Garcia but missed. Garcia hit Lopez, and they kept fighting. Garcia admitted that Lopez knocked him down.
Garcia testified they fought until gunshots were fired. Garcia never saw anyone with a gun that night, and did not see who fired the shots. Garcia thought someone was shooting at him.
Garcia and his friends ran to their truck and left the parking lot. Figueroa did not get into their truck and Garcia did not see where he went.
Garcia testified the police pulled over their truck. Garcia told the officers that he argued with a guy, it became a fistfight, and he heard gunshots. Garcia testified he did not give all the details because he was somewhat intoxicated and did not know what was happening.
Garcia testified he was arrested and remained in custody. Garcia denied that he claimed the Norteño gang when he was booked into jail. Garcia also denied that he assaulted any inmates while he was in jail. The charges
Figueroa and Garcia were jointly charged with count I, attempted murder of Lopez (§§ 664, 187, subd. (a)); count II, active participation in a criminal street gang (§ 186.22, subd. (a)); and count IV, that Figueroa and Garcia conspired to commit assault with a firearm on Lopez (§§ 182, 245, subd. (a)(2)), with firearm, great bodily injury, and gang enhancements. Figueroa was separately charged with count III, carrying a loaded firearm in a public place while an active participant in a criminal street gang (§ 25850, subd. (c)(3)), with a gang enhancement. Verdicts and sentence
It was originally alleged that the attempted murder was premeditated. Prior to trial, the court granted the defense motion to set aside the premeditation allegation.
On June 15, 2015, the joint jury trial began for Figueroa and Garcia.
On June 25, 2015, the jury found Garcia not guilty of all charges.
The same jury convicted Figueroa of count I, attempted murder of Lopez; count II, active participation in a criminal street gang; and count III, carrying a loaded firearm in a public place while an active participant in a criminal street gang. Figueroa was found not guilty of count IV, conspiring with Garcia to assault Lopez.
Also as to Figueroa, the jury found the firearm and great bodily injury allegations were true, but found the gang enhancements were not true.
The court subsequently decided to dismiss Figueroa's conviction in count II for active participation in a street gang. The court stated that since the jury found Garcia was not guilty of the same charge, that meant that two or more gang members did not commit the underlying offenses, and count II was not supported by the evidence.
At the sentencing hearing, the court found aggravating circumstances that Figueroa's prior convictions were numerous, and his prior performance on misdemeanor probation was unsatisfactory; there were no mitigating circumstances.
The court also found Figueroa was statutorily ineligible for probation based on his current offense, there were no unusual circumstances, and even if he had been eligible, he was not a suitable candidate for probation because of the seriousness of his crime.
The court sentenced Figueroa to the upper term of nine years for count I, attempted murder, plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement.
The court also sentenced Figueroa for counts II and III, and stayed the terms imposed pursuant to section 654.
DISCUSSION
I. Erroneous Imposition of Sentence for Count II
In count II, Figueroa was charged and convicted of active participation in a street gang (§ 186.22, subd. (a)). As explained above, Garcia was tried for the same offense and found not guilty.
After the verdicts were returned, the court stated that it was going to dismiss Figueroa's conviction in count II for active participation in a street gang. The court explained that since Garcia was found not guilty of all charges, that meant that two or more gang members did not commit the underlying offenses as required by section 186.22, subdivision (a). The People agreed, and the court dismissed count II.
At the sentencing hearing, however, the court erroneously sentenced Figueroa to the upper term of three years for count II, plus 10 years for the section 12022.53, subdivision (d) firearm enhancement and three years for the great bodily injury enhancement, and then stayed those terms pursuant to section 654.The abstract of judgment reflects that Figueroa was convicted and sentenced for count II.
The parties agree that the court erroneously imposed and stayed the sentence for count II since it had already dismissed that count.
The abstract of judgment must be corrected to delete the entry that Figueroa was convicted of count II, and the sentence imposed for count II must be stricken.
II. Figueroa's Conviction in Count III
In count III, Figueroa was charged and convicted of the felony of carrying a loaded firearm in a public place while an active participant in a criminal street gang (§ 25850, subd. (c)(3)). He was sentenced to the upper term of three years, plus terms for the firearm and great bodily injury enhancements, and the court stayed the terms pursuant to section 654.
As we have explained, the court properly dismissed Figueroa's conviction in count II for active participation in a criminal street gang since Garcia was acquitted of all charges.
Figueroa contends that since the court dismissed his conviction in count II for active participation in a street gang, then his felony conviction in count III, which incorporates the elements of active participation, must be reduced from a felony to a misdemeanor.
Figueroa is correct that all of the elements in section 186.22, subdivision (a) must be satisfied as part of a conviction for section 25850, subdivision (c)(3). (People v. Lamas (2007) 42 Cal.4th 516, 524; People v. Infante (2014) 58 Cal.4th 688, 690.)
The People agree that the court's dismissal of count II affects the felony conviction in count III, but assert the charge should be reduced to a violation of section 25850, subdivision (c)(5), carrying a loaded firearm with a conviction for a crime against a person, that is a "wobbler" offense punishable as either a felony or a misdemeanor.
In order to resolve this matter, we must examine the provisions of section 25850.
Section 25850, subdivision (a) states:
"A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory."
Section 25850 was formerly section 12031. (People v. Infante, supra, 58 Cal.4th at p. 692.) --------
Subdivisions (c)(1) to (c)(7) of section 25850 provide for whether the offense is punishable as a felony, a wobbler offense, or a misdemeanor, depending on the circumstances of the offense and the offender. (People v. Ramon (2009) 175 Cal.App.4th 843, 854-857; see also People v. Lamas, supra, 42 Cal.4th at p. 524; People v. Infante, supra, 58 Cal.4th at p. 690.)
Subdivisions (c)(1) to (c)(4) of section 25850 define the following offenses as felonies:
"(1) Where the person previously has been convicted of any felony, or of any crime made punishable by a provision listed in Section 16580 ....
"(2) Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen....
"(3) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1)....
"(4) Where the person is not in lawful possession of the firearm, or is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code...."
Subdivisions (c)(5) and (c)(6) define the following offenses as "wobblers," punishable as either a felony or misdemeanor:
"(5) Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation ....
"(6) Where the person is not listed with the Department of Justice pursuant to Section 11106 as the registered owner of the handgun....
Finally, subdivision (c)(7) defines carrying a loaded firearm in a public place as a misdemeanor "[i]n all cases other than those specified in paragraphs (1) to (6), inclusive...."
The factors set forth in subdivision (c) of section 25850 are not elements of the offense, but penalty provisions prescribing " 'an added penalty to be imposed when the offense is committed under specified circumstances.' " (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899; People v. Ramon, supra, 175 Cal.App.4th at p. 854; People v. Robles (2000) 23 Cal.4th 1106, 1115.)
The trial court has a sua sponte duty to instruct the jury on the definition of the substantive offense of carrying a loaded firearm in a public place (§ 25850 subd. (a); CALCRIM No. 2530). It also has a sua sponte duty to instruct the jury on the elements of the applicable sentencing factor alleged against the defendant as defined in subdivision (c), unless the court has bifurcated the matter or the defendant has stipulated to those elements. (People v. Hall (1998) 67 Cal.App.4th 128, 135; People v. Sengpadychith (2001) 26 Cal.4th 316, 327; People v. Robles, supra, 23 Cal.4th at p. 1115; CALCRIM Nos. 2540-2546; former CALJIC No. 12.54.1.)
B. Analysis
Figueroa was charged in count III of carrying a loaded firearm in a public place while an active participant in a criminal street gang, defined as a felony by subdivision (c)(3) of section 25850.
The parties agree that Figueroa's conviction in count III must be modified since the court properly dismissed his conviction in count II for active participation in a gang.
The People contend count III must be modified to a violation of section 25850, subdivision (c)(5), that he was carrying a loaded firearm in a public place "[w]here the person has been convicted of a crime against a person...," which is a wobbler offense punishable as either a felony or a misdemeanor. The People argue that Figueroa's conviction in this case for the attempted murder of Lopez qualifies as a "crime against a person" within the meaning of subdivision (c)(5), and he had notice to defend against that conviction, so that due process would not be offended to modify count III accordingly.
The People's argument fails for several reasons. Section 25850, subdivision (a) defines the elements of the offense of carrying a loaded firearm in a public place. Subdivisions (c)(1) to (c)(7) define sentencing factors that make the offense a felony, a wobbler, or a misdemeanor. These are sentencing factors and not elements of the offense itself. However, the trial court has a sua sponte duty to instruct the jury on the elements of these sentencing factors unless the defendant stipulates to those elements.
In this case, the jury was instructed on the charged offense of carrying a loaded firearm while an active participant in a criminal street gang, with the requirements to prove active participation; and the lesser offense of simply carrying a loaded firearm.
While Figueroa was on notice to defend against the attempted murder charge, that conviction cannot qualify as the sentencing factor defined by section 25850, subdivision (c)(5), since that subdivision addresses a defendant who carries a loaded firearm and has prior convictions at the time he commits offense: "Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation...." (Italics added; see also CALCRIM No. 2540) The language of subdivision (c)(5) is retrospective and not prospective - that the defendant was carrying a loaded firearm and had a prior conviction for a crime against a person. The jury herein was instructed with elements of carrying a loaded firearm while an active participant in a gang, and the lesser offense of simply carrying a loaded firearm. More importantly, the prosecution did not introduce any evidence that Figueroa had any prior convictions at the time he carried a loaded firearm in the restaurant's parking lot.
Figueroa's felony conviction in count III must be reduced to the misdemeanor offense defined in section 25850, subdivision (c)(7), the felony sentence stricken, and the matter remanded for resentencing.
III. "Prejudicial Spillover" of the Gang Evidence on Attempted Murder Conviction
Figueroa next contends that since the jury in this case found the gang enhancements were not true, the admission of the gang evidence in this case resulted in "prejudicial spillover" that violated his due process rights and resulted in the jury's verdict in count II of attempted murder, instead of the lesser offense of attempted voluntary manslaughter.
As we will explain, Figueroa's argument relies on the procedural history of this case, the court's comments at the preliminary hearing, and an evidentiary concept relied upon by federal circuit courts but not adopted by California courts.
A. Procedural Background
After a joint preliminary hearing, the court held both Figueroa and Garcia to answer on count I, attempted murder with gang enhancements, and count II, active participation in a criminal street gang. In doing so, the court said it had "difficulties" about the gang allegations because "violent crimes can be committed by street gang members that aren't for the benefit of the gang...." The court said while it was "struggling" with the gang allegations, it would still hold both defendants to answer because the standard at the preliminary hearing was probable cause. "And while, candidly, if there isn't more, I don't know that I would see there would be enough for a conviction at trial. There may be more than I'm unaware of that's not before me today."
The information charged Figueroa and Garcia with premeditated attempted murder and conspiracy with gang enhancements, and active participation in a gang.
Figueroa moved to set aside the premeditation allegation as to attempted murder, and also set aside all the gang allegations.
The court granted defendants' motion to set aside the premeditation allegation for attempted murder, and denied the motion to set aside the gang allegations.
Prior to trial, Figueroa moved to bifurcate all evidence regarding the gang allegations because they were not connected to the attempted murder charge. The prosecutor argued the gang evidence was relevant to motive and intent.
The court denied the motion to bifurcate. However, the court partially granted defense motions to limit certain aspects of the prosecution's gang evidence.
After the joint jury trial, Figueroa was convicted of attempted murder, active participation, and carrying a loaded firearm in public while actively participating in a criminal street gang; the jury found the gang allegations were not true. Garcia was found not guilty of all charges.
B. Figueroa's Appellate Contentions
On appeal, Figueroa has not challenged the trial court's specific evidentiary rulings as to the admissibility of the gang evidence at his joint jury trial with Garcia. Figueroa has not argued that the trial court abused its discretion when it overruled his evidentiary objections and granted the People's motion to admit the testimony from the prosecution's gang expert about Figueroa's alleged Norteno membership, or the court's denial of his motion to bifurcate the gang allegations. Figueroa also concedes that the prosecution evidence showed that he was the gunman who shot Lopez in the parking lot. He has not challenged the sufficiency of the evidence to support his conviction for attempted murder.
Instead, Figueroa relies on a series of federal circuit cases and argues that given the jury's findings that the gang enhancements were not true, the introduction of the gang evidence in this case resulted in the "prejudicial spillover" of this evidence that adversely affected the defense theory that the shooting of Lopez constituted an attempted voluntary manslaughter instead of an attempted murder, and prevented the jury from considering the lesser offense, in violation of his right to due process.
In making this argument, Figueroa relies on well-recognized holdings from the courts of this state about the prejudicial nature of gang evidence. "Given its highly inflammatory impact, the California Supreme Court has condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses. [Citation.] In fact, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. [Citation.] 'Gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense.' [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 223.)
Figueroa also relies on the superior court's stated concerns at the joint preliminary hearing, as set forth above, about whether the charged offenses were gang-related incidents, and the jury's findings that the gang enhancements were not true in this case, and asserts that the gang evidence had "no evidentiary value."
Figueroa asserts that since the jury found the gang enhancements were not true, it agreed with the defense theory that the incident in the parking lot was triggered by a dispute over Garcia's girlfriend, and the assault and shooting were not gang-related. Figueroa concludes that the jury's findings show the gang evidence had little or no probative value, the evidence never should have been admitted, and it amounted to nothing more than inadmissible propensity evidence.
C. "Prejudicial Spillover"
Figueroa relies on United States v. Wright (3d Cir. 2012) 665 F.3d 560 (Wright), for the following discussion of the prejudicial spillover concept:
"When two charges are closely linked and we vacate a conviction on one of them, we must ensure that the error on the vacated charge has not affected the remaining charge. If there has been such prejudicial spillover, we must order a new trial on the remaining charge as well. [Citation.]
"We apply a two-step test for prejudicial spillover. First, we ask 'whether the jury heard evidence that would have been inadmissible at a trial limited to the remaining valid count[s].' [Citation.] If all evidence on the discarded counts ... would remain admissible at a trial on the remaining valid counts ..., then our inquiry ends. We would remand for resentencing on the valid counts only.
"If some evidence would be inadmissible, then we proceed to the second step. There, we ask whether that evidence ... was prejudicial. [Citation.] We answer that question by weighing four factors: 'whether (1) the charges are intertwined with each other; (2) the evidence for the remaining counts is sufficiently distinct to support the verdict on these counts; (3) the elimination of the invalid count significantly changed the strategy of the trial; and (4) the prosecution used language of the sort to
arouse a jury.' [Citation.] We evaluate these factors in a light ' "somewhat favorable to the defendant." ' [Citations.] If the otherwise inadmissible evidence was prejudicial, we remand for a new trial on the 'tainted' count." (Id. at p. 575, italics added, quoting United States v. Pelullo (3d Cir. 1994) 14 F.3d 881, 898-899; see also United States v. Lazarenko (9th Cir. 2009) 564 F.3d 1026, 1043.)
D. Analysis
We begin with the well-recognized principle that federal circuit court opinions are persuasive and not binding authorities on the courts of this state. (People v. Memro (1995) 11 Cal.4th 786, 882; Mathews v. Becerra (2017) 7 Cal.App.5th 334, 367; Soliz v. Williams (1999) 74 Cal.App.4th 577, 594.)
The California Supreme Court has not addressed or adopted the prejudicial spillover doctrine quoted above from Wright, and set forth in other federal circuit opinions. Instead, the court has addressed the concept of "spillover prejudice" in the context of improper joinder of multiple counts or gang enhancements (People v. Soper (2009) 45 Cal.4th 759, 772, 782; People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051), or where joinder resulted in a stronger case filling evidentiary gaps in a weak case (People v. Ruiz (1988) 44 Cal.3d 589, 606; but see In re Ponce De Leon (2004) 117 Cal.App.4th 1116, 1120-1121 .) In this case, Figueroa has not argued that the trial court abused its discretion when it denied his motion to bifurcate the gang allegations, or that he should not have been tried with Garcia.
1. Due Process
Figueroa asserts that his due process rights were violated by the introduction of the gang evidence since the jury found the gang allegations were not true, the evidence had little probative value on any issue, and the evidence tainted the attempted murder charge. However, Figueroa was not simply charged with gang enhancements. He was also charged with count II, active participation in a criminal street gang and count III, carrying a loaded firearm while an active participant in a criminal street gang. The gang expert's testimony was relevant and admissible regarding those charged offenses and enhancements. (People v. Hernandez, supra, 33 Cal.4th at p. 1048.)
To the extent that Figueroa is raising a due process argument, the California Supreme Court had explained that "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional [People v. Watson (1956) 46 Cal.2d 818] test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]" (People v. Partida (2005) 37 Cal.4th 428, 439.) Again, Figueroa has not challenged the court's underlying evidentiary rulings that the gang evidence was admissible in this case.
We cannot say that the gang evidence in this case rendered Figueroa's trial fundamentally unfair. As we have explained above, the jury convicted Figueroa of count II, active participation and count III, carrying a firearm while an active participant - two substantive gang-related offenses. The trial court properly dismissed count II because of the unique circumstances where the jury found Garcia not guilty of also being an active participant; the court did not make any findings that the evidence as to Figueroa's active participation was insufficient. We have necessarily modified count III because of that same circumstance.
The jury's verdicts on these charges indicate that it concluded Figueroa was an active member of the Norteño gang at the time of the shooting. However, the jury also found the gang enhancements alleged as to the attempted murder and firearm offenses were not true. It thus agreed with the defense theory that Figueroa's shooting of Lopez was not gang-related, but instead resulted from an apparent dispute about whether Lopez was talking to Garcia's girlfriend while they waited in line at the restaurant.
A jury's verdict with respect to one count can have no bearing upon the meaning or validity of the verdict or findings in other counts, regardless of how similar the facts underlying each count may be. (People v. Keltie (1983) 148 Cal.App.3d 773, 775-776; People v. Palmer (2001) 24 Cal.4th 856, 861.) In addition, courts that have addressed the concept of "prejudicial spillover" have concluded that the charges were not intertwined with each other where the jury convicted on some counts but acquitted the defendant on other counts, so that the alleged evidentiary error was not prejudicial. (See, e.g., United States v. Lee (3d Cir. 2010) 612 F.3d 170, 181.)
2. Attempted Voluntary Manslaughter
Figueroa argues that the gang evidence resulted in prejudicial spillover to prevent the jury from considering whether he was guilty of the lesser offense of attempted voluntary manslaughter. "Attempted murder is the attempt to commit an unlawful killing of a human being, or a fetus, with malice aforethought. [Citations.] A killing committed upon a sudden quarrel or heat of passion or under an honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury may negate malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to attempted manslaughter. [Citation.] For a finding of attempted voluntary manslaughter under the heat of passion theory, both provocation and heat of passion must be demonstrated. [Citation.]" (People v. Williams (1988) 199 Cal.App.3d 469, 475.) " 'To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection.... [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene.' [Citation.]" (People v. Rangel (2016) 62 Cal.4th 1192, 1225, first italics added, second italics in original.)
While the court instructed the jury on this lesser offense, it cannot be concluded that the gang evidence prejudicially prevented the jury from considering attempted voluntary manslaughter. The quarrel in this case was between Garcia and Lopez. Nancy Rodriguez testified that Figueroa tried to look tough while Garcia exchanged foul words with Lopez inside the restaurant. Tiffany Zavala testified that Figueroa yelled antagonizing things at Lopez during the confrontation. However, there was no evidence that Lopez confronted or threatened Figueroa. When they moved into the parking lot, Nancy testified that Lopez and Garcia started fighting, and Figueroa was just standing there. There was no evidence that Lopez attacked Figueroa.
Nancy further testified that Figueroa was standing next to Garcia, Garcia told Figueroa, " 'Do what you got to do,' " and Figueroa shot Lopez just seconds after Garcia made this statement. Garcia testified at trial that he had never met Figueroa before that night, he never told Figueroa to do anything to Lopez, he did not know who fired the shots, and he thought someone was firing at him.
Nancy's testimony about Garcia's alleged direction to Figueroa, just before Figueroa shot Lopez, was impeached by the defense evidence that she failed to disclose this statement to the police when she was interviewed. The jury acquitted Garcia of all charges, and found Figueroa not guilty of conspiring with Garcia to assault Lopez, indicating the jury discounted Nancy's testimony about Garcia's statement to Figueroa.
Figueroa has not challenged the sufficiency of the evidence to support his conviction for attempted murder, but asserts the gang evidence prevented the jury from considering that Lopez engaged in the requisite provocation such that he was only guilty of attempted voluntary manslaughter. Figueroa frames the provocation based on Lopez's act of grabbing Garcia's girlfriend in the restaurant that triggered a verbal argument, and the matter escalated when they went into the parking lot. However, there was scant evidence that Lopez engaged in any conduct to provoke Figueroa to fire multiple gunshots at him in the parking lot. There was no evidence that Lopez threatened Garcia's life or menaced Figueroa.
While Zavala's testimony might have been sufficient to instruct the jury on attempted voluntary manslaughter, we cannot conclude that the jury convicted Figueroa of attempted murder because it was improperly influenced by the gang evidence in this case. Instead, the entirety of the record shows that Figueroa was not involved in the fight in the parking lot, but suddenly shot Lopez multiple times without provocation. The record and the verdicts also demonstrate that the jury carefully convicted the admissible evidence and the charged offenses.
We thus conclude even if the "prejudicial spillover" doctrine was applicable, the record demonstrates the admission of the gang evidence did not violate Figueroa's due process rights.
IV. Senate Bill 620
As set forth above, the court sentenced Figueroa to the upper term of nine years for count I, attempted murder, plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. We have already determined the matter must be remanded for resentencing because the court erroneously imposed a sentence for count II, even though it had already dismissed that conviction, and Figueroa's felony conviction and sentence in count III must be reversed and the offense reduced to a misdemeanor.
Defendant has filed supplementary briefing to argue that on remand, the court must consider whether it should strike the section 12022.53 firearm enhancement, based on the recent legislative amendment to that statute.
At the time of the sentencing hearing in this case, imposition of an enhancement under section 12022.53 was mandatory, and it could not be stricken in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Felix (2003) 108 Cal.App.4th 994, 999; People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853; People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.)
On October 11, 2017, the Governor signed Senate Bill 620, effective January 1, 2018. (Stats. 2017, c. 682 (S.B. 620), § 2.) As relevant to this case, Senate Bill 620 amends section 12022.53, subdivision (h) to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Subdivision (h) now states:
"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."
Defendant argues Senate Bill 620's amendment to section 12022.53 applies herein because his case is not yet final on appeal, and on remand the court must consider whether to exercise its discretion to strike the enhancement under the newly-enacted version of section 12022.53, subdivision (h).
Both defendant and the People agree that Senate Bill 620's amendment to section 12022.53, subdivision (h) applies retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4ath 314, 323.) They disagree as to whether the matter must be remanded for the court to consider whether to exercise its discretion under section 12022.53, subdivision (h) in this particular case.
At the sentencing hearing, the trial court made findings as to the exercise of its discretion when it imposed the sentence. Since it did not have discretion to strike the section 12022.53, subdivision (d) enhancement, it did not address or consider whether imposition of the enhancement under the facts and circumstances of this case would be in furtherance of justice pursuant to section 1385.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous 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. [Citations.] Defendants 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. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
The court was statutorily prohibited from considering whether to exercise its discretion when it imposed the section 12022.53 enhancement, and made no discretionary sentencing findings that would eliminate the need for a remand in this case.
We therefore conclude that when the matter is remanded for resentencing, the court should also determine in the first instance whether to exercise its new statutory discretion to strike the firearm enhancement in this case under section 12022.53, subdivision (h). By remanding the matter, we do not find that the court must strike the enhancement, but only that the court must consider whether to exercise its discretion pursuant to the newly-enacted provisions of section 12022.53, subdivision (h).
DISPOSITION
The abstract of judgment shall be amended to omit the reference that Figueroa was convicted of count II, active participation in a criminal street gang; and to strike the sentence imposed and stayed on that count.
The abstract of judgment shall also be amended to strike the felony conviction and sentence imposed and stayed for count III, carrying a loaded firearm while an active participant in a criminal street gang; and modify count III to the misdemeanor offense of carrying a loaded firearm in a public place in violation of section 25850, subdivision (c)(7).
The matter is remanded for the court to resentence Figueroa for misdemeanor count III, and to determine whether to exercise its discretion pursuant to section 12022.53, subdivision (h).
The trial court shall prepare and forward to all appropriate parties a certified copy of an amended abstract of judgment.
In all other respects, the judgment, as modified, is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
MEEHAN, J.