Opinion
H045176
09-10-2019
THE PEOPLE, Plaintiff and Respondent, v. RAY LEDESMA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. C1243135, 21195)
In 2012, defendant Ray Ledesma, a member of the Varrio Mas Chingon Norteño gang subset, shot and killed Dashawn Brown in a drive-by shooting. Following a jury trial, defendant was convicted of first degree murder (Pen. Code, § 187). The jury also found true a drive-by special circumstance (§ 190.2, subd. (a)(21)), a gang special circumstance (§ 190.2, subd. (a)(22)), a gang enhancement (§ 186.22, subd. (b)(1)(C)), and a firearm enhancement (§ 12022.53, subds. (d), (e)(1)). In a separate case, defendant pleaded no contest to active participation in a criminal street gang (§ 186.22, subd. (a)) and unlawful possession of a loaded firearm (§ 25850, subd. (a)). He also admitted a gang enhancement (§ 186.22, subd. (b)(1)(A)). The trial court sentenced defendant to an aggregate prison term of life without the possibility of parole, consecutive to 50 years to life, consecutive to 14 years.
Unspecified statutory references are to the Penal Code.
On appeal, defendant argues that insufficient evidence supports the gang enhancement (§ 186.22, subd. (b)) and the gang special circumstance (§ 190.2, subd. (a)(22)) that were found true in his murder case, the drive-by special circumstance (§ 190.2, subd. (a)(21)) is unconstitutionally overbroad and vague, the use of the standard motive instruction (CALCRIM No. 370) during his murder trial impermissibly lowered the prosecution's burden of proof, the use of defendant's juvenile adjudications as prior strikes violated his due process and jury trial rights, and the trial court abused its discretion when it refused to dismiss his strikes in both cases. Defendant also raises several sentencing issues with respect to his gang (§ 186.22, subd. (b)(1)(A), (b)(1)(C)) and firearm (§ 12022.53, subds. (d), (e)(1)) enhancements. In two supplemental briefs, defendant further argues that section 12022.53, subdivision (h) applies retroactively to his case, and the court operations fee (§ 1465.8, subd. (a)), criminal conviction assessment (Gov. Code, § 70373), and restitution fine (§ 1202.4) should not have been imposed absent a determination of his ability to pay.
As we explain in detail below, we agree with defendant that the sentences for the gang enhancements imposed under section 186.22, subdivision (b)(1)(A) and (b)(1)(C) should be stricken and the matter should be remanded to allow the trial court to exercise its discretion as to whether to strike his firearm enhancement in light of Senate Bill No. 620. We reject his other claims of error. We reverse and remand with directions.
BACKGROUND
1. Procedural History
On January 31, 2013, an information was filed in case No. C1243135 charging defendant with participation in a criminal street gang (§ 186.22, subd. (a); count 1), two counts of unlawful possession of a loaded firearm (§ 25850, subd. (a); counts 2 & 3), and receipt of stolen property (§ 496, subd. (a); count 4). Counts 2 through 4 alleged that defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)). It was further alleged that defendant had two prior strikes—juvenile adjudications for robbery (§ 211) and assault with a deadly weapon (§ 245, subd. (a)(1)) with personal infliction of great bodily injury (§ 12022.7).
On September 19, 2013, an indictment was filed in case No. 213195 charging defendant with first degree murder (§ 187; count 1). Two special circumstances were alleged: defendant intentionally killed the victim by firing a firearm from a vehicle (§ 190.2, subd. (a)(21)) and defendant was an active participant in a criminal street gang and the murder was carried out to further the gang's activities (§ 190.2, subd. (a)(22)). It was also alleged that defendant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)) and at least one principal intentionally and personally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)). The same prior strike convictions alleged in case No. C1243135 were alleged in case No. 213195.
The indictment also charged defendant's codefendant, Vicente Duarte. Prior to trial, Duarte pleaded guilty to accessory to murder and admitted the charged enhancements and allegations. Duarte testified against defendant at his trial.
2. The Murder Trial (Case No. 213195)
a. The Shooting
On March 8, 2012, Charles Williams walked with his friend Dashawn Brown to the "6 to Late" liquor store, near Roeder Road and Monterey Road. Williams separated from Brown briefly and went inside the liquor store first. While inside the store, Williams heard a noise that sounded like firecrackers. When Williams turned around, he realized that Brown was not with him. Williams went outside and saw Brown lying on the ground near the curb with a bullet wound to his head. Brown was unable to say anything to Williams and was unable to move. Williams did not see who shot Brown and did not see anyone flee the scene. Williams said that Brown hung around the "Round Table area" and spent time with two gang members.
Two bystanders, a brother and a sister, were driving in a car near the scene of the murder when it occurred. The sister noticed a car on the road with a man coming out of its back window. The sister believed that the man looked like he was taking out a gun, and she could see something that looked like flashes coming out of the gun.
b. Dianna Gonzalez's Testimony
On March 8, 2012, Dianna Gonzalez drove to a park in her sister's light brown sedan, where she spent some time with her ex-boyfriend, Vicente Duarte. At some point, defendant came over to the park and joined Gonzalez and Duarte. The group stayed at the park for about an hour before they left. Gonzalez intended to drive Duarte and defendant to a nearby party. They had all been drinking but Gonzalez did not think Duarte or defendant were intoxicated.
Gonzalez drove Duarte and defendant to the 6 to Late liquor store so they could buy some beer before going to the party. Duarte sat in the front passenger seat, and defendant sat behind the driver's seat. When they arrived at the liquor store, Gonzalez parked the car. She and Duarte went inside the liquor store. When Gonzalez and Duarte returned to the car, they resumed their original positions, with Duarte again sitting in the front passenger seat and Gonzalez in the driver's seat. Defendant remained sitting behind the driver's seat.
Gonzalez started driving. From the liquor store, Gonzalez made a left turn onto Edenview Drive. As she turned, Gonzalez heard something that sounded like firecrackers. Right after she heard the sound, she heard either Duarte or defendant say, "Go, go, go." In response, Gonzalez sped up. During the car ride, Duarte and defendant talked amongst themselves. Gonzalez remembered that Duarte looked back at defendant and laughed, and she thought that defendant said, "I got him." Duarte told Gonzalez not to say anything, which Gonzalez interpreted as a threat. At the time, she did not realize that someone had been shot. She never saw a gun in defendant's possession. She did not hear anyone yell anything gang related during the shooting and did not notice anybody "mean-mugging" her or throwing anything at her car.
Gonzalez drove to the party, which was held at a house on Senter Road. Duarte told Gonzalez to park the car and to go inside. Duarte told her that it was "hot" outside, which meant that police were out patrolling. While at the party, Duarte and defendant listened to the police scanner. Gonzalez remembered that Duarte and defendant talked about a "black guy from 95" and discussed a shooting. Gonzalez could not remember defendant's exact words, but she remembered that he bragged about shooting someone. There were other people at the party who had gang tattoos and appeared to be gang members.
Gonzalez told Duarte that she was unhappy about what had happened. She knew that defendant had shot someone while inside her car, but she had not been told that they planned on shooting someone. Gonzalez stayed at the party for a while and later left with Duarte.
Gonzalez used to be affiliated with the North Star Norteñas, a female gang, while she was in high school. She was familiar with a Norteño gang called "VMC," which was short for Varrio Mas Chingon. At the time of the murder, Duarte was a VMC gang member. Gonzalez, however, did not know that defendant was a gang member until the day of the murder. At the park, Gonzalez noticed that defendant had a VMC tattoo on his forehead. She did not recall that defendant had a teardrop tattoo that day. Gonzalez recognized the reference to the "95" as meaning the Round Table gang.
Gonzalez did not willingly report the shooting to the police. She initially withheld information from officers, including Duarte's last name. Gonzalez told the police what happened after they offered her protection. She was given money to help her relocate with her daughter.
c. Duarte's Testimony
Duarte had originally been charged with murder, a crime that carries a potential maximum sentence of life in prison, in connection with this case. He negotiated a plea agreement with the district attorney's office and agreed to plead guilty to accessory after the fact, a crime that carries a potential maximum sentence of 15 years in prison. The only condition of Duarte's deal was that he was to testify truthfully at defendant's trial.
On March 8, 2012, Duarte was at the park with Gonzalez. Duarte and Gonzalez drank and took some "Percocets." Later, defendant joined them at the park. Duarte and defendant decided to go to a party after the park and asked Gonzalez to help them get some beer on the way. Duarte said that he could feel the effects of the alcohol and the pills, but he was able to function and clearly remembered what happened next. He did not believe that Gonzalez was under the influence, and she did not have any problems driving.
Gonzalez, who was driving a brown sedan, took Duarte and defendant to the 6 to Late liquor store. Defendant sat behind Gonzalez, who was in the driver's seat, and Duarte sat in the front passenger seat. When they arrived at the liquor store, Gonzalez and Duarte went inside to purchase beer. After they were finished, they went back to the car and sat in their original positions.
Defendant did not say anything to Duarte when Duarte went back inside the car. Gonzalez started to drive, and as soon as Gonzalez made a left turn onto Edenview Drive, Duarte heard gunshots. At first, he thought that someone was shooting at him, so he looked around. He saw defendant's arms sticking out the rear window of Gonzalez's car. When defendant pulled his arms back inside the car, Duarte saw that defendant had a gun, which Duarte described as a semiautomatic 0.22-caliber Ruger. Defendant hit the back of Gonzalez's seat and told her, "Go, go, go." Defendant looked at Duarte and said, "That was him; I got him." At that point, Duarte knew that defendant was talking about the victim, Brown.
Duarte did not know that defendant had a gun with him that day. Duarte did not hear anyone yell anything before the shots were fired. Duarte told Gonzalez to slow down and drive normally because a car that was speeding away could draw attention from law enforcement.
Duarte, Gonzalez, and defendant did not talk to each other during the car ride after the shooting. The only conversation that they had was when Duarte told Gonzalez the directions to the house with the party that they planned to attend. On the way, Duarte saw police officers drive toward Monterey Road. By the time they got to the house with the party, defendant was still "ramped up." A VMC member named "Silent" opened the door for them, and defendant told him that he had "shot a Crip from 95." Silent downloaded an application on his phone to listen to the police scanner.
Duarte stayed with Gonzalez at the party and drove her home afterwards. Duarte thought Gonzalez looked shaky. They did not talk during the drive.
About a week and a half after the shooting, defendant asked Duarte if he wanted to go with him to get rid of the gun. Duarte told him to do that by himself because he did not want to know where the gun was located. Some time afterwards, Duarte saw defendant, and defendant told him he had gotten rid of the gun. Defendant did not tell Duarte where he hid the gun.
According to Duarte, defendant was verbally warned not to carry firearms by other VMC gang members because of his involvement in multiple shooting incidents. Defendant, however, was elevated to the status of "Bro" sometime after the shooting occurred. Defendant talked about the shooting at parties and referred to himself as a "Crip killer." Duarte warned defendant against talking about the crime, but defendant did not listen.
Duarte knew that Brown was a high-ranking member of the 95 Crips gang. Duarte also knew that defendant and Brown had altercations in the past, and Duarte had been concerned that the issues between defendant and Brown could escalate to the point of one of them killing the other. Duarte even tried to reach out to another 95 Crips gang member to resolve the situation between defendant and Brown.
Duarte described the general structure of the VMC gang. According to Duarte, there are about 50 VMC gang members, and VMC regularly holds gang meetings. During gang meetings, gang members discuss topics such as regimental mandates, which are directives passed down from the Nuestra Familia prison gang, or raising revenues from drug or gun sales. Each member contributes money, called "taxes," during meetings.
Duarte was presently incarcerated in county jail but was in protective custody due to his cooperation with law enforcement. Duarte had previously been convicted in 2008 of attempted armed robbery with a gang enhancement. He committed the crime with a member of the Varrio Meadow Fair Norteño subset.
Duarte decided to cooperate with law enforcement after he started going to church towards the end of 2012. At that point, he cut off ties with the gang. Before he left the gang, Duarte had achieved a high rank, "N-Sol" or " Norteño Soldado," which was a Nuestra Raza gang "right below NF."
Duarte testified that a teardrop tattoo, which defendant had on his face, signified either that you had lost someone due to violence or that you had killed someone.
d. The Forensic Police Investigation
San Jose Police Department Officer Christopher Jolliff responded to the shooting. When he arrived, he saw people standing around the victim, Brown, who was lying on the ground on the edge of the parking lot. Jolliff noticed that Brown was bleeding from a large wound to the front of his forehead. It did not appear that Brown was breathing or responsive.
Officer Jolliff began canvassing the area for evidence. He came across a beer can and a car that had bullet holes. He walked up Edenview Drive and found 0.22-caliber gun casings. The bullet casings were found in the eastbound lane of the street. Jolliff took pictures and noticed that there were surveillance cameras in the area, including surveillance cameras at the 7-Eleven store and the 6 to Late liquor store.
Officer Jolliff reviewed the surveillance footage from the 7-Eleven store. The video showed Brown walking through the strip mall's parking lot with another individual. A brown sedan can be seen driving eastbound on Edenview Drive, after making a left-hand turn. The car's path was consistent with the path of the 0.22-caliber casings that Jolliff found on Edenview.
Consistent with Officer Jolliff's testimony, San Jose Police Department Officer Michael Borges testified that officers found seven shell casings primarily in the middle of the roadway on Edenview Drive. All of the shell casings were 0.22-caliber. Based on the shell casings and other evidence at the crime scene, Borges determined that the shots were fired by someone in a car traveling eastbound on Edenview Drive.
San Jose Police Department Sergeant John Barg investigated the homicide. Barg spoke with Gonzalez on September 13, 2012, after she was arrested as an accessory to murder. Gonzalez identified defendant and Duarte as the other individuals who were with her in her car that evening. She made the identification after she told officers that she was scared and needed witness protection.
Dr. Joseph O'Hara, a forensic pathologist with the Santa Clara County Medical Examiner Coroner's Office, testified about Brown's autopsy results. Brown suffered from three gunshot wounds, including a gunshot to his head that would have prohibited him from making "purposeful movements." In Dr. O'Hara's opinion, Brown died from multiple gunshot wounds, and the gunshot wound to the head was fatal.
e. Prior History Between Defendant and Brown
1. The 2008 Stabbing
On May 13, 2008, San Jose Police Department Officer Casey Higgins responded to a report of a stabbing. The stabbing occurred at the intersection of Calero Avenue and Snell Avenue, near Alternative Placement Academy, at approximately 4:00 p.m. When he arrived, Higgins saw that a probation officer had detained two male suspects, Francisco Gonzalez and Kevin Medina. Medina looked like he had been in a physical altercation. Gonzalez had a tattoo of four dots on his elbow.
Officer Mark Natividad also responded to the stabbing. When he arrived, the fire department was attending to the victim, later identified as Brown. Natividad noticed that Brown had a gang tattoo. Natividad asked Brown if he was willing to identify the two suspects that officers had detained, and Brown declined to help. At the hospital, Brown again refused to cooperate. Brown told Natividad that the person who stabbed him had questioned why he was "tagging in his 'hood." The person then asked Brown if his name was "Sean." The two men then started fighting. At some point during the fight, Brown felt something hit his side, and he looked down and realized he had been stabbed.
Before defendant shot Brown, defendant told Duarte about a prior altercation that he had with Brown. Defendant said that a friend had gotten into a fight with Brown, and defendant stabbed Brown when he saw that his friend was losing the fight. According to Duarte, the incident occurred when defendant was still in high school.
2. Incident with a Gun Two Months Before Shooting
Two months before the shooting, defendant called Duarte and told him that he had come across Brown at a mall, and Brown had pulled out a firearm. Afterwards, defendant boarded a bus, and Brown followed. Duarte told defendant to take the bus until a certain stop, where Duarte would be waiting. When defendant got to the bus stop, Duarte was waiting for him. Defendant told Duarte that Brown had stopped following him and had "turned away a couple [of] lights ahead."
3. Other Incidents
According to Duarte, defendant got into numerous physical altercations with Brown. Duarte testified that the fights happened between the time when defendant stabbed Brown and when defendant shot Brown.
4. Testimony from Brown's Girlfriend
Brown's girlfriend dated Brown for four years starting in 2008 and had a daughter with him. She knew that Brown was in a gang, the "95," which was affiliated with "Crips and Northerners." Brown's girlfriend went to high school with both defendant and Brown. She knew that defendant and Brown had problems with each other. Defendant sometimes commented on her relationship with Brown, made fun of Brown, questioned why she was with Brown, and called Brown the "N word." Defendant told Brown's girlfriend that he did not like that she was dating someone who was African American. The problems between defendant and Brown predated Brown's stabbing in 2008.
Brown's girlfriend recalled that after Brown was stabbed, she had a three-way call with defendant's cousin. During the three-way call, defendant asked Brown's girlfriend for Brown's address. Brown's girlfriend lied and told defendant that she did not know Brown's address. Defendant told Brown's girlfriend that "he wasn't trying to wound or hurt [Brown]," "[h]e was trying to take his life." Defendant told her that it would save him "a lot of homework" if she was cooperative and gave him Brown's address. Brown's girlfriend told Brown about defendant's threat, and he told her to ignore it.
Brown's girlfriend initially said that the call happened after the stabbing. During direct examination, she later said that she was not sure about when the phone call took place. Shortly thereafter, she stated that the call happened "after he got stabbed."
After Brown was stabbed when he was in high school, Brown's girlfriend noticed that defendant had four dots tattooed on his hand. Defendant did not have this tattoo before.
Sometime after finishing high school, possibly around January 2012, Brown's girlfriend recalled that defendant and Brown had a verbal confrontation near a light rail station.
f. Gang Evidence
Michael Whittington, an investigator with the Santa Clara County District Attorney's Office, was qualified to testify as an expert on "Hispanic criminal street gangs in general and Norteño and VMC in particular." Whittington described gangs as groups of more than three people that commit certain enumerated crimes as their primary activity. Members often have a common name, sign, or symbol. Gang members are initiated by getting "jumped in" and are subject to a probationary period. Members "put in work" by committing various crimes, such as committing robberies, graffitiing, and assaulting others. Members that put in work are elevated within the gang. Gang members can earn certain tattoos, such as stars or dots.
According to Whittington, a person who snitches on the gang and cooperates with law enforcement can be placed on the "bad news list." The list gets passed around from Norteño to Norteño, and any Norteño can attack and hurt a snitch. For those in jail, gang members will assault those who are placed in protective custody because that generally means that the person has snitched on the gang.
Whittington described respect as the "currency of the streets." Gang members crave respect and will react violently if disrespected. Gang members also get elevated within the gang if they react violently against someone who has showed the gang disrespect, even if the disrespect happened in the past. "Tagging," or spray painting graffiti, can be a significant sign of disrespect for gangs if a rival gang tags in another gang's territory or if a rival gang tags over another gang's graffiti.
Photos of various VMC gang members and their tattoos were displayed for the jury. Whittington testified that four dots symbolized the number 14, for the 14th letter of the alphabet (N), which was a symbol for the Norteños' governing body, the Nuestra Familia prison gang.
Whittington outlined the history of the Norteño gang and its structure. In the 1950s, the Mexican Mafia prison gang was started with the goal to protect Mexican and Mexican-American immigrants in the prison system. After about 10 years, some members of the Mexican Mafia grew disgruntled and broke away from the gang, calling themselves the Nuestra Familia. The gangs that are loyal to the Nuestra Familia are Norteños, and the gangs loyal to the Mexican Mafia are Sureños. According to Whittington, the Norteño gang is the largest criminal street gang in San Jose. San Jose has thousands of Norteños and "no less than 50 subsets" that are actively working together under the Norteño banner.
Nuestra Familia members associate with the color red and use the "huelga bird" as a symbol. Below the Nuestra Familia is the Nuestra Raza, a group that Whittington described as the "minor league" for the Nuestra Familia. Below the Nuestra Raza are the Norteños. The "hundreds if not thousands" of Norteño gang members are all under the Nuestra Familia umbrella and are loyal to the organization, paying taxes and receiving rules from those who are connected to the Nuestra Familia in prison.
Whittington described the VMC gang as an active Norteño gang subset operating out of the south side of San Jose. He believed that the VMC gang has at least 10 members, possibly more. The VMC gang has formal rules and procedures; the gang holds meetings and members pay taxes. The VMC gang's primary activities include committing robbery, assault with a deadly weapon, and carrying illegal firearms.
Several predicate offenses were introduced into evidence. Among the predicate offenses were a prior conviction involving several Norteño gang members for assault with a deadly weapon, defendant's sustained juvenile adjudications for assault with a deadly weapon and robbery, a conviction for attempted murder committed in 2007, and a conviction for attempted robbery committed by Duarte and a gang member from the Varrio Meadow Fair gang.
One of the victims of the assault and robbery that resulted in defendant's juvenile adjudications, Christopher Conetta, testified at defendant's trial. Conetta described that defendant and several other men assaulted him and his friend when they went to buy marijuana after attending a house party. Conetta described that the assailants hit him, and he threw the assailants his phone and keys. Another assailant hit his friend. Defendant was 16 years old at the time of the crime.
Whittington testified that the "95 Gangster Crips" is an active gang that operates off Monterey Road and Round Table Drive. The area with the 6 to Late liquor store was not in contested gang territory, and Norteños would not generally feel unsafe going there. Whittington stated that back in 2012, the gangs all coexisted in that general area. In the last five years, Whittington had seen a growing rivalry between Norteños and Crips, even though the two gangs were historically aligned.
Whittington testified that defendant had a VMC gang tattoo over his right eye with a teardrop. He also had a chest tattoo that indicated that he was a third-generation VMC gang member and a tattoo of the number 14 behind his ear. Evidence indicated that defendant continued to get gang tattoos even after he shot Brown, demonstrating that he remained an active gang member. Furthermore, there was evidence that defendant did not have a teardrop tattoo before Brown's murder, and gang members typically receive tear drop tattoos after they have committed some sort of violence.
Whittington opined that Brown's murder was committed for the benefit of or in association with a criminal street gang. He based his opinion on the fact that there were two VMC members in the car who were "basically" in VMC's territory, and one of the VMC members shot an individual that at one time had disrespected the gang with graffiti. Whittington stated, "The fact that two VMC members were together during the commission of that crime is enough to say it was in association with a criminal street gang." Whittington testified that gang members who have been disrespected in the past over graffiti will be perceived as weak if they do not overcome that disrespect with violence. Moreover, after the shooting, there was evidence that defendant and Duarte went to a house associated with VMC gang members and spoke to other gang members about the crime.
According to Whittington, Brown's death had an impact on the community. A memorial to "Young Smoke," Brown's moniker, was erected where Brown was shot. Whittington opined that the murder benefited the VMC gang by discouraging community cooperation with law enforcement. It also eliminated a rival gang member that stood in the gang's way.
Whittington was asked to assume the following hypothetical: a VMC gang member shot and killed a Crip gang member in the presence of a higher-ranking VMC gang member, the shooter then reported the crime to other members of the gang, and the shooter and the victim had ongoing issues related to challenges over graffiti. Based on these facts, Whittington opined that such a crime was committed to promote or assist in the gang's criminal conduct.
3. The Verdict in the Murder Trial (Case No. 213195)
After the trial, the jury found defendant guilty of first degree murder (§ 187). The jury also found true the special circumstance that defendant intentionally killed the victim by firing a firearm from a vehicle (§ 190.2, subd. (a)(21)) and defendant was an active participant in a criminal street gang and the murder was carried out to further the gang's activities (§ 190.2, subd. (a)(22)). The jury also found true the gang enhancement alleged under section 186.22, subdivision (b)(1)(C) and the firearm enhancement alleged under section 12022.53, subdivisions (d) and (e)(1).
A court trial was held on defendant's prior strikes, and the trial court found both prior strikes to be true.
4. The Factual Circumstances of Case No. C1243135
Since defendant pleaded no contest in this case, we derive the facts from the probation report, which was based on a report prepared by the Santa Clara County Sheriff's Office.
On October 16, 2012, sheriff's officers responded to a report of gunshots. On the way to the crime scene, the officers noticed a car with four occupants drive past them. After passing the officers, the car sped up. The officers made a U-turn and gave chase. Eventually, the car collided with a stoplight, and the officers initiated a high-risk vehicle stop. One of the passengers stated that she had purchased a gun earlier, and she and the other passengers had driven up Mount Hamilton Road to see the view. The passenger said that when they were pulled off to the side of the road, another car drove by and the occupants of that car shot at them twice in a " 'non-threatening manner.' " The passenger said she took her gun out and shot one time. She also said that nobody else fired a gun, and she later threw the gun out of the car window.
After the officers spoke with this passenger, defendant, who was one of the other passengers in the car, signaled to speak with the officers and told them that the gun was his and he would " 'take the rap.' " The officers asked him if he would like to speak about the incident, and defendant said, " 'Naw, I just want to let you know it's all mine. I'll take the heat.' " All of the passengers were arrested.
Later, at the sheriff's office, defendant "waived his rights" and told the officers that he had found two guns a few days prior to the incident, and he fired one of the guns once. Defendant said that he did not see anyone else shoot a gun, and he threw both guns out of the window in opposite directions. The officers were later able to recover the guns, and it was determined that one of the guns was stolen.
5. The No Contest Plea in Case No. C1243135
On August 22, 2017, defendant pleaded no contest to a count of active gang participation (§ 186.22, subd. (a)) and unlawful possession of a loaded firearm (§ 25850, subd. (a)). He also admitted the gang allegation (§ 186.22, subd. (b)(1)(A)) that was attached to the count of unlawful possession of a firearm and his prior strikes. The remaining counts were submitted for dismissal at the time of sentencing.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In both cases, defendant submitted motions requesting that the trial court exercise its discretion to strike one or more of his prior serious or violent felony adjudications. The court denied both motions.
7. Sentencing
In case No. 213195, the trial court sentenced defendant to life without the possibility of parole for first degree murder (§ 187), 25 years to life for the firearm enhancement (§ 12022.53, subds. (d), (e)(1)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)). Pursuant to the Three Strikes law, in case No. C1243135, the court imposed a sentence of 25 years to life for unlawful possession of a loaded firearm (§ 25850) and a four-year sentence for the gang enhancement (§ 186.22, subd. (b)(1)(A)). The court also imposed and stayed a sentence of 25 years to life for participating in a criminal street gang (§ 186.22, subd. (a)). The sentences in case No. C1243135 were made consecutive to the sentences imposed in case No. 213195. Defendant was sentenced to an aggregate term of life in prison without the possibility of parole consecutive to 50 years to life consecutive to 14 years.
The trial court also imposed various fines and fees. In case No. 213195, the trial court imposed a $240 restitution fine (§ 1202.4), a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373). In case No. C1243135, the trial court imposed a $240 restitution fine (§ 1202.4), a $80 court operations assessment (§ 1465.8), and a $60 court facilities assessment (Gov. Code, § 70373). When imposing the restitution fines, the trial court imposed the minimum amount after citing defendant's "limited resources." Defense counsel did not object to the imposition of these fees and fines.
DISCUSSION
1. Insufficient Evidence for the Gang Enhancement and Gang Special Circumstance
In connection with Brown's murder, defendant was charged and convicted of a gang enhancement (§ 186.22, subd. (b)(1)(C)) and a gang-murder special circumstance (§ 190.2, subd. (a)(22)). Defendant argues that insufficient evidence supports the enhancement and the special circumstance because the prosecution failed to prove that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang. Defendant further claims that the prosecution failed to prove that he had the specific intent to benefit the gang when he committed the murder.
a. Legal Principles and Standard of Review
"In reviewing a criminal conviction challenged as lacking evidentiary support, ' "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (People v. Maury (2003) 30 Cal.4th 342, 396.) This applies to cases where prosecutors rely on circumstantial evidence. (Ibid.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (Ibid.)
Here, defendant challenges the sufficiency of the evidence to support the gang enhancement and the gang special circumstance. In pertinent part, section 186.22, subdivision (b)(1) provides: "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the association of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall . . . be punished" as specified in the statute. In other words, there are two requirements for a gang enhancement to apply: the crime must be gang-related and the defendant had the specific intent to promote or further the gang.
Likewise, section 190.2, subdivision (a)(22) provides that a defendant found guilty of first degree murder is punished with a sentence of death or life without the possibility of parole if the special circumstance that the defendant "intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang" is found to be true. The language of section 190.2, subdivision (a)(22) "substantially parallels the language of section 186.22, subdivision (b)(1)." (People v. Carr (2010) 190 Cal.App.4th 475, 488.)
b. Substantial Evidence Supported the Gang Allegation and Special Circumstance
On appeal, defendant challenges the jury's findings on the gang enhancement and the gang special circumstance. He argues there is insufficient evidence that the crime was gang related and he had the requisite specific intent to promote or further the gang when he committed the crime. Citing People v. Perez (2017) 18 Cal.App.5th 598, defendant contends that " 'purely conclusory and factually unsupported opinions' that the charged crimes are for the benefit of the gang because any violent crime enhances the gang's reputation is insufficient to support a gang enhancement." (Id. at p. 608.) Defendant characterizes the gang evidence as solely derived from Whittington's expert testimony, which he claims was largely speculative.
We agree that "[a] gang expert's testimony alone is insufficient to find an offense gang related." (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) Whittington, however, did not opine that every act of violence committed by a gang member must necessarily be committed for the benefit of or in association with a gang. Whittington's expert opinion was based on the evidence presented in this case, which supported the prosecution's theory that the murder was gang-motivated. In other words, Whittington's testimony that the crime was gang-related is substantial evidence that supports the enhancement and the special circumstance.
Our conclusion is supported by two California Supreme Court cases that discuss the sufficiency of evidence of gang enhancements, People v. Albillar (2010) 51 Cal.4th 47 (Albillar) and People v. Vang (2011) 52 Cal.4th 1038 (Vang).
In Albillar, three defendants were convicted of several sex offenses, a substantive gang offense, and a gang enhancement after committing a gang rape. (Albillar, supra, 51 Cal.4th at p. 51.) The prosecutor's gang expert was presented with a hypothetical scenario based on the circumstances of the gang rape and was asked if such a crime would have been committed for the gang's benefit. (Id. at p. 53.) The expert answered in the affirmative. (Ibid.) The expert based his opinion on the way that the gang members worked cooperatively to accomplish the rape, the brutality and viciousness of the crimes, and the enhancement to the reputations for violence and viciousness of the gang and the participating gang members that the crime would have brought. (Id. at pp. 53-54.) The California Supreme Court determined that the record supported a finding that the crimes were committed to benefit the defendants' gang because "[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22[, subdivision] (b)(1)." (Id. at p. 63.)
In Vang, supra, 52 Cal.4th 1038, four defendants were convicted of assault by means of force likely to produce great bodily injury with a gang enhancement. (Id. at p. 1041.) The victim was lured to a garage and beaten. At trial, the victim testified that he did not know why he was attacked but theorized that it might have been because he was trying to disassociate himself from the defendants' gang or because he had accidentally overheard something that he was not supposed to hear. (Id. at p. 1042.) The prosecutor's gang expert, using hypothetical facts based on the case, opined that the attack was gang-motivated because the gang members perpetrated the assault to maintain the gang's strength, and the assaulted victim had done something to the gang that the gang perceived to be wrong. (Id. at pp. 1042-1043.) The expert also observed that the attack was planned since the victim was lured to the garage, and the crime was committed in concert with other gang members. (Id. at p. 1043.) On appeal, the defendants argued that the trial court erroneously permitted the gang expert to testify in response to the hypothetical that the attack was committed for the gang's benefit. (Id. at p. 1044.) The California Supreme Court disagreed, holding that an expert can "express an opinion, based on hypothetical questions that tracked the evidence, whether the [crime], if the jury found it in fact occurred, would have been for a gang purpose." (Id. at p. 1048.) Quoting Albillar, the Supreme Court again reiterated that " '[e]xpert opinion that particular criminal conduct benefitted a gang' is not only permissible but can be sufficient to support the . . . gang enhancement." (Vang, supra, at p. 1048.)
Consistent with Albillar and Vang, Whittington's expert testimony that the murder benefitted the VMC gang supported the jury's determination that the crime was gang-related. Here, the evidence showed that Brown was a member of a Crips gang subset, defendant was a VMC gang member, and Duarte was a higher-ranking VMC gang member. Several years before the murder, there was evidence that Brown was stabbed after getting in trouble for spray painting graffiti, and defendant may have been involved in Brown's stabbing. Whittington testified that spray painting graffiti is a significant sign of disrespect for another gang if done in a rival gang's territory or if the graffiti is spray painted over another gang's graffiti. And, according to Whittington, gang members will be perceived as weak if they do not overcome disrespect with violence. After the shooting, there was evidence that defendant and Duarte went over to a house associated with VMC gang members and spoke to other gang members about the crime. Whittington was presented with a hypothetical that tracked the evidence associated with defendant's case. Based on the hypothetical, Whittington opined that the crime benefitted VMC because the murder eliminated a rival gang member that stood in the gang's way. Whittington further testified that committing this type of violence in public benefitted the gang by dissuading community members from assisting law enforcement. In sum, Whittington's expert opinion was not speculative.
Setting aside Whittington's testimony, the jury could have also independently concluded that the murder was committed for the gang's benefit based on the other evidence that was presented at trial. Defendant was in the car with Duarte, a fellow VMC gang member, when he shot Brown. After defendant shot Brown, Gonzalez testified that defendant and Duarte talked, and Duarte turned and laughed at defendant after defendant said, "I got him." In other words, an eyewitness described the two gang members conversing about the shooting after it happened. Based on this testimony, the jury could have inferred that defendant and Duarte cooperated with each other when defendant committed the crime. At trial, Duarte testified that he did not know that defendant was going to shoot Brown, but the jury could have disbelieved Duarte's testimony and could have concluded that Duarte wanted to minimize his own role in the crime. As a result, there was evidence independent of Whittington's testimony that defendant committed the crime in association with another gang member. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [jury can reasonably infer requisite association required for gang enhancement from evidence that the defendant committed charged crimes with other gang members].)
We also conclude there was also substantial evidence to support the second prong of the gang enhancement, that defendant had the specific intent to promote, further, or assist criminal conduct by gang members. "[T]he scienter requirement in section 186.22[, subdivision] (b)(1) . . . applies to any criminal conduct." (Albillar, supra, 51 Cal.4th at p. 66.) Based on Whittington's testimony, the jury could reasonably infer that defendant committed the murder with the intent to assist fellow gang members commit future crimes by instilling fear in the community, thereby reducing the amount of community cooperation with law enforcement.
To support his argument that there is insufficient evidence to support the jury's gang findings, defendant cites to several appellate court decisions that found evidence insufficient to support gang enhancements. "Reviewing the sufficiency of evidence, however, necessarily calls for analysis of the unique facts and inferences present in each case, and therefore comparisons between cases are of little value." (People v. Rundle (2008) 43 Cal.4th 76, 137-138, disapproved of on a different point as stated in People v. Doolin (2009) 45 Cal.4th 390, 421.) Moreover, to the extent they are applicable to defendant's case, the cases cited by defendant are factually distinguishable.
Primarily, defendant cites to cases where the only evidence of the defendants' specific intent to promote, further, or assist the gang came from an expert's uncorroborated opinion, including People v. Ramon (2009) 175 Cal.App.4th 843, 851-852 (Ramon), In re Frank S. (2006) 141 Cal.App.4th 1192, 1197-1199 (Frank S.), In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.), and People v. Rios (2013) 222 Cal.App.4th 542, 564 (Rios).
In Ramon, the defendant was convicted of multiple crimes including possessing a stolen truck and carrying an unregistered firearm. (Ramon, supra, 175 Cal.App.4th at p. 847.) He was also convicted of a gang enhancement under section 186.22, subdivision (b)(1). (Ramon, supra, at p. 846.) The defendant was stopped by police in gang territory while driving a stolen truck with a fellow gang member in the passenger's seat. (Id. at p. 847.) A handgun was found under the driver's seat. (Ibid.) At trial, the prosecution's gang expert opined that the defendant's crimes were committed for the gang's benefit because the gun and stolen vehicle could be used to facilitate crimes, and gangs commit crimes. (Id. at p. 849.)
The Ramon defendant challenged the sufficiency of the evidence to support the gang enhancement. (Ramon, supra, 175 Cal.App.4th at p. 849.) The appellate court agreed that there was insufficient evidence, concluding that the prosecution's expert "simply informed the jury of how he felt the case should be resolved" and provided an "improper opinion." (Id. at p. 851.) The appellate court determined that there were no facts from which the expert could have discerned whether the two men were acting on their own behalf or on their gang's behalf. (Ibid.) Thus, the appellate court concluded that there was insufficient evidence for the expert to "construct an opinion about [the defendant's] specific intent in this case." (Id. at p. 852.)
In Frank S., the minor was stopped by the police after he ran a red light while on his bicycle and was found in possession of a concealed knife, a bindle of methamphetamine, and a red bandana. (Frank S., supra, 141 Cal.App.4th at p. 1195.) The minor admitted to officers that he carried the knife to protect himself from " 'Southerners.' " (Ibid.) During trial, the prosecution's gang expert opined that the minor possessed the knife to protect himself. (Ibid.) She also opined that gang members use knives to protect themselves from rival gang members and to assault rival gang members. (Id. at pp. 1195-1196.) On appeal, the appellate court concluded that the expert should not have been permitted to testify on the ultimate issue that a person possessed a specific intent. (Id. at p. 1197.) Since the expert's testimony was the only evidence of the minor's intent, the gang enhancement was not supported by substantial evidence. (Id. at pp. 1197-1199.) In its decision, the appellate court noted that "[t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Id. at p. 1199.)
In Daniel C., supra, 195 Cal.App.4th 1350 the trial court found true the allegations that the minor committed robbery with a gang enhancement. (Id. at p. 1357.) The minor, a Norteño gang member, had been with two other men, including a Norteño affiliate, at a supermarket when he took a bottle of liquor and tried to leave without paying for it, injuring the store's assistant manager in the process. (Id. at pp. 1353, 1355.) The prosecutor's gang expert opined that based on the facts of the case, the crime was committed in association with and for the benefit of the Norteño gang. (Id. at p. 1355.)
On appeal, the appellate court concluded that there was insufficient evidence to support the specific intent required for a gang enhancement. (Daniel C., supra, 195 Cal.App.4th at p. 1364.) The prosecutor's gang expert had opined that the minor committed the crime to further the Norteño gang's interests because it was a violent crime, and violent crimes are used to gain respect and to intimidate others in the community. (Id. at p. 1363.) However, there was no evidence that the minor or his companions identified themselves as affiliated with a gang, and there was no evidence that anyone who witnessed the crime knew that gang members or affiliates were involved. (Ibid.) Therefore, there was no evidence that the crime could have enhanced the gang's reputation or instilled fear in the community. (Ibid.) The appellate court also rejected the gang expert's alternate theory that the crime was committed with the intent to benefit the gang because it showed that the minor was willing to " 'put[] in work' " to commit a crime and to obtain alcohol for underage gang members. (Id. at p. 1364.)
Lastly, defendant cites to Rios, supra, 222 Cal.App.4th at page 564. In Rios, a different panel from this court concluded there was insufficient evidence of the defendant's specific intent to promote or assist gang activity to support gang enhancements attached to the defendant's crimes of vehicle theft and carrying a loaded firearm in a vehicle. (Id. at pp. 574-575.) At trial, the only evidence of the defendant's intent was the opinion given by the prosecution's gang expert. The gang expert was asked to consider two facts, whether the person was a gang member and whether the person possessed a gun. (Id. at p. 574.) This court held that "in a case such as this, where the defendant acts alone, the combination of the charged offense and gang membership alone is insufficient to support an inference on the specific intent prong of the gang enhancement" (id. at pp. 573-574) because "[o]therwise, the gang enhancement would be used merely to punish gang membership." (Id. at p. 574.)
Ramon, Frank S., Daniel C., and Rios are all distinguishable. In those cases, the gang experts' respective testimonies were deemed insufficient because they were speculative and unsupported with evidence from the record. (See Ramon, supra, 175 Cal.App.4th at p. 851; Frank S., supra, 141 Cal.App.4th at pp. 1197-1199; Daniel C., supra, 195 Cal.App.4th at pp. 1363-1364; Rios, supra, 222 Cal.App.4th at pp. 573-574.) In contrast, Whittington's opinion was based on multiple pieces of evidence, such as Brown's status as a 95 Crips gang member, Brown's prior history of getting into trouble over his graffiti, defendant's VMC gang membership, Duarte's VMC gang membership, and the fact that defendant committed the murder with Duarte in the car. There was also evidence supporting Whittington's conclusion that the crime impacted the community, discouraging cooperation with law enforcement. A memorial was erected in honor of Brown after he was killed, and Duarte testified that defendant told others about the murder, including fellow gang members. Duarte also recalled that he heard defendant refer to himself as a "Crip killer" at various social events. Whittington's opinion was not based solely on the fact that the crime was committed near gang territory or perpetrated by gang members.
Finally, defendant argues that the evidence demonstrated that his decision to kill Brown was motivated by personal reasons rather than gang-related reasons. He cites to evidence of his preexisting problems with Brown, including his disapproval of Brown's relationship with his girlfriend. Although we agree with defendant that there is evidence in the record to support the conclusion that he had a personal motive to kill Brown, our role in substantial evidence review is not to reweigh the evidence or examine which competing inference takes precedence over another. "[T]he jury, which was presented with the competing inferences, was entitled to credit the evidence that the [crime] was gang related, not [personal]." (Albillar, supra, 51 Cal.4th at p. 62.) Since substantial evidence supports the jury's determination that the murder was committed for the gang's benefit, our review ends and we must uphold the jury's findings.
In sum, we find that the record reflects that there was substantial evidence to support the gang enhancement and the gang special circumstance.
2. Constitutionality of Section 190 .2, Subdivision (a)(21)
a. Substantive Due Process (Fourteenth Amendment) and Eighth Amendment Claims
Defendant contends that the drive-by shooting special circumstance (§ 190.2, subd. (a)(21)) is unconstitutional both facially and as-applied in his case because it is overinclusive in violation of substantive due process under the Fourteenth Amendment. He also argues that the special circumstance violates the prohibition against cruel and unusual punishment under the Eighth Amendment.
The People contend that defendant has forfeited his constitutional arguments because he failed to object to his sentence on these grounds below. The People also argue that defendant lacks standing to challenge section 190.2, subdivision (a)(21) as applied to those that are sentenced to death under the statutory scheme because the prosecution in his case did not seek the death penalty; defendant was sentenced to life without the possibility of parole (LWOP).
In his reply brief, defendant acknowledges that he references the term "death-eligibility" in connection with his Eighth Amendment argument, and his Eighth Amendment claims are premised on the proscription against cruel and unusual punishment in the context of death judgments. (See Maynard v. Cartwright (1988) 486 U.S. 356, 362 [a state must provide a "principled means" for distinguishing between those who are eligible to receive the death penalty and those who are not]; Godfrey v. Georgia (1980) 446 U.S. 420, 428 [Eighth Amendment imposes requirement on state "to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty"].) Defendant, however, claims that his argument is equally based on the fact that section 190.2, subdivision (a)(21) renders a defendant eligible for a LWOP sentence. In other words, he concedes that his argument presupposes that the constitutional requirements that apply to capital sentencing are applicable to LWOP sentencing.
Assuming that defendant did not forfeit his argument below and assuming that the constitutional requirements that apply to death judgments also apply when a LWOP sentence is imposed, we determine that defendant's constitutional arguments are meritless.
We find People v. Rodriguez (1998) 66 Cal.App.4th 157 (Rodriguez), a decision from the Second Appellate District that rejected arguments identical to the ones raised by defendant here, to be persuasive. In Rodriguez, the appellate court determined that the defendant's argument that the drive-by special circumstance was overinclusive undermined his claim that the statute was facially unconstitutional. (Id. at p. 172.) " '[A] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.' " (Id. at p. 166.) By arguing that the special circumstance was overinclusive, the Rodriguez defendant effectively conceded that there were some circumstances where the special circumstance could be valid, refuting his claim of facial invalidity. (Id. at p. 172.)
Rodriguez acknowledged that there are exceptions to the general rule that a statute is facially valid if any constitutional application exists. One exception is if the statute is overbroad and "restricts or interferes with, or might possibly criminalize or penalize, the exercise of constitutionally protected rights." (Rodriguez, supra, 66 Cal.App.4th at p. 169.) Rodriguez, however, observed that the " 'overbreadth doctrine' " is applicable "primarily (if not exclusively) only when First Amendment rights are implicated." (Ibid.) Since the application of the special circumstance did not implicate First Amendment rights, nor did it restrict the defendant from exercising his constitutional rights, the overbreadth exception did not apply. (Id. at p. 172.)
Rodriguez also rejected the defendant's claim that the special circumstance violated substantive due process under the Fourteenth Amendment. (Rodriguez, supra, 66 Cal.App.4th at p. 181.) Rodriguez observed that the Legislature does not violate substantive due process so long as the enacted statute is reasonably related to a proper legislative goal. (Id. at p. 175.) Thus, Rodriguez held that "the statute under review here is supported by the proper legislative purpose of reducing firearm carnage, particularly on the streets, and the increased punishment imposed for such conduct is rationally related to that broad purpose." (Id. at p. 181.)
As for the defendant's as-applied challenge under the Eighth Amendment, Rodriguez concluded that the jury was instructed that it must find that the defendant intended to kill to find the defendant guilty of first degree murder, and the intent to kill satisfied the culpability requirement necessary for capital sentencing as set forth in Enmund v. Florida (1982) 458 U.S. 782 (Enmund). (Rodriguez, supra, 66 Cal.App.4th at pp. 173-174.) Thus, the defendant's sentence was not excessive under the Eighth Amendment. (Id. at p. 174.)
Defendant argues that Rodriguez was wrongly decided. He claims that when addressing the substantive due process argument, Rodriguez found no exception to the general rule that a statute is facially unconstitutional only if it is unenforceable in all of its applications. We disagree with defendant's interpretation of Rodriguez, which conflates its discussion of facial unconstitutionality with its discussion of substantive due process. (See Rodriguez, supra, 66 Cal.App.4th at pp. 166-172.) Rodriguez addressed both claims separately, and we see nothing wrong with its analysis of these issues.
Defendant also contends that Rodriguez applied an incorrect standard when examining the defendant's claim that the special circumstance's LWOP sentence was excessive under the Eighth Amendment. Defendant argues that the constitutional minimum standard for imposing the death penalty specified in Enmund, supra, 458 U.S. 782 should not have been used. Instead of Enmund's baseline of finding that a defendant had the intent to kill, defendant argues that the jury must find that the murder is elevated above an " 'ordinary' premediated murder" as specified in People v. Morales (1989) 48 Cal.3d 527, 557 (Morales), disapproved of on a different point as stated in People v. Williams (2010) 49 Cal.4th 405, 459.
Defendant's reliance on Morales is unavailing, and his citation to the case is taken out of context. In Morales, the California Supreme Court examined whether the lying-in-wait special circumstance under section 190.2, subdivision (a)(15) ran afoul of the "constitutional principles barring the arbitrary selection of certain murders as justifying the death penalty." (Morales, supra, 48 Cal.3d at p. 557.) The Supreme Court thereafter determined that an intentional murder committed under certain circumstances that include a concealment of purpose, a substantial period of watching and waiting for an opportune time to commit the murder, and a surprise attack on an unsuspecting victim from an advantageous position, "present[ed] a factual matrix sufficiently distinct from 'ordinary' premeditated murder to justify treating it as a special circumstance." (Ibid.) In other words, Morales reiterated the general principle that application of the death penalty should not be arbitrary or capricious. (See People v. Davenport (1985) 41 Cal.3d 247, 260-261.) This principle is distinct from the principle that punishments may violate the Eighth Amendment's proscription against excessive punishments as described in Enmund, supra, 458 U.S. 782.
Furthermore, we find that the drive-by special circumstance does not violate the Eighth Amendment by permitting arbitrary and capricious selection of certain murders as qualifying for LWOP. When considering the legislative intent behind section 12022.55, the sentencing enhancement for discharging a firearm from a vehicle, the appellate court in People v. Bostick (1996) 46 Cal.App.4th 287 noted that "firing a gun from a motor vehicle is an especially treacherous and cowardly crime. It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension . . . . The Legislature could rationally have determined that the foregoing considerations justify imposing an increased sentence on the perpetrator." (Id. at p. 292.) The same logic applies here. The unique circumstance of shooting and killing a victim from a vehicle sufficiently distinguishes a drive-by shooting and justifies the existence of the heightened sentence under the special circumstance.
b. Vagueness
Next, defendant argues that the drive-by special circumstance is unconstitutionally vague. He contends that the statute is not precise enough "to provide standards for its application and adjudication to avoid arbitrary and discriminatory enforcement" (People v. Andreasen (2013) 214 Cal.App.4th 70, 79-80 (Andreasen)) because the elements are the same as the crime of first degree murder (§ 189).
Defendant's vagueness challenge also derives from the right to substantive due process under the Fourteenth Amendment. His prior argument regarding substantive due process was that the statute was not narrowly drawn and provided for unequal punishment for equally culpable defendants.
Under section 190.2, subdivision (a)(21), the drive-by special circumstance applies in cases where "[t]he murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, 'motor vehicle' means any vehicle as defined in Section 415 of the Vehicle Code." Under section 189, subdivision (a), first degree murder is defined in part as all "murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death . . . ."
These statutes provide defendant with notice that if he intentionally kills by discharging a firearm from a car, he or she is eligible for sentences of 25 years to life with the possibility of parole, life without the possibility of parole, or death. The statutes are not vague. "The mere fact that the prosecution has discretion to select which punishment it will seek does not render a statute unconstitutionally vague or create an improper risk of arbitrary enforcement of a criminal statute." (Andreasen, supra, 214 Cal.App.4th at p. 80.)
For example, in United States v. Batchelder (1979) 442 U.S. 114, the United States Supreme Court considered whether two statutes, both of which prohibited convicted felons from receiving firearms but authorized different penalties, were constitutionally infirm. (Id. at pp. 115-116, 122-123.) The Supreme Court observed that it had "long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." (Id. at pp. 123-124.) Furthermore, "there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements." (Id. at p. 125.) "The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause." (Ibid.) Although the two statutes provided for different punishment schemes, "the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each [statute], Congress has fulfilled its duty." (Id. at p. 126.)
The principles underlying Andreasen and Batchelder foreclose defendant's argument. The fact that first degree murder and the drive-by special circumstance criminalize the same conduct but prescribe different punishments does not render the statutes unconstitutionally vague.
3. Motive Instruction Under CALCRIM No. 370
Defendant contends that the prosecution's burden of proof was reduced by CALCRIM No. 370, the standard motive instruction. He argues that CALCRIM No. 370 undermined the element that the prosecutor was required to prove that defendant had the specific intent to further the activities of the criminal street gang to find the gang special circumstance alleged under section 190.2, subdivision (a)(22) to be true.
Before deliberations, the jury was instructed on the elements of the gang special circumstance using CALCRIM No. 736, which states that the jury must find that "[t]he murder was carried out to further the activities of the criminal street gang. . . ." The jury was also instructed with CALCRIM No. 370, which states: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." Defendant argues that these two instructions conflict, and CALCRIM No. 370 essentially instructed the jury that it did not need to find that the murder "was carried out to further the activities of the criminal street gang" to determine that the special circumstance was true.
The Fifth Appellate District rejected this identical argument in People v. Fuentes (2009) 171 Cal.App.4th 1133, and we find Fuentes persuasive. In Fuentes, the appellate court rejected the presupposition that "[a]n intent to further criminal gang activity" was a motive rather than a specific intent. (Id. at p. 1139.) Fuentes acknowledged that the argument made by the defendant had a "superficial attractiveness" because of the commonly understood concept of a "motive." (Id. at p. 1140.) Fuentes observed that "[a]ny reason for doing something can rightly be called a motive in common language, including—but not limited to—reasons that stand behind other reasons. For example, we could say that when A shot B, A was motivated by a wish to kill B, which in turn was motivated by a desire to receive an inheritance, which in turn was motivated by a plan to pay off a debt, which in turn was motivated by a plan to avoid the wrath of a creditor. That is why there is some plausibility in saying the intent to further gang activity is a motive for committing the murder: A wish to kill the victim was a reason for the shooting, and a wish to further gang activity stood behind that reason." (Ibid.) In other words, the prosecution was not required to prove a motive but was required to prove the defendant's specific intent (i.e., the intent to further gang activity), and the instructions that were given merely instructed the jury where to "cut off the chain of reasons." (Ibid.)
The distinction between motive and intent has also been emphasized by the California Supreme Court. In People v. Hillhouse (2002) 27 Cal.4th 469 (Hillhouse), the Supreme Court explained that "[m]otive describes the reason a person chooses to commit a crime," which "is different from a required mental state such as intent or malice." (Id. at p. 504.)
Both Fuentes and Hillhouse distinguished People v. Maurer (1995) 32 Cal.App.4th 1121, upon which defendant relies. (Fuentes, supra, 171 Cal.App.4th at p. 1140; Hillhouse, supra, 27 Cal.4th at p. 504.) In Maurer, the trial court instructed the jury with the standard motive instruction in conjunction with an instruction on section 647.6, which sets forth the punishments for "[e]very person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child" if the conduct would be criminal if the other person was a child. (§ 647.6, subd. (a)(2); Maurer, supra, at pp. 1125-1126.) The Maurer court found that the standard motive instruction was erroneously given after observing that section 647.6 did not prescribe a specific intent but had motive as one of its required elements. (Maurer, supra, at pp. 1126-1127.) Unlike the statute contemplated in Maurer, motive is not an element of the gang special circumstance. Therefore, CALCRIM No. 370 would not have confused the jury or lowered the prosecution's burden of proof.
4. Use of Juvenile Adjudications as Prior Strikes
Both of defendant's prior strikes were juvenile adjudications. Defendant contends that the use of his juvenile adjudications as strike priors violated his due process and jury trial rights under the Fifth, Sixth, and Fourteenth Amendments.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.)
In People v. Nguyen (2009) 46 Cal.4th 1007, the California Supreme Court determined that "the Fifth, Sixth, and Fourteenth Amendments, as construed in Apprendi, do not preclude the sentence-enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication that defendant, while a minor, previously engaged in felony misconduct, where the juvenile proceeding included all the constitutional protections applicable to such matters, even though these protections do not include the right to jury trial." (Id. at p. 1019.)
Defendant observes that this court "may find that it must" follow Nguyen and rule against him on this issue. He argues that for the purpose of preserving the issue for federal review, he believes that Nguyen was wrongly decided, and recent United States and California Supreme Court decisions suggest that the issue should be revisited.
Defendant incorrectly characterizes our decision to follow the California Supreme Court's decision in Nguyen as a choice. "Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. . . . The decisions of this court are binding upon and must be followed by all the state courts of California. . . . Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We are bound to follow Nguyen. "It is not [our] function to attempt to overrule decisions of a higher court." (Ibid.) As a result, we find that Nguyen forecloses defendant's claim.
Moreover, defendant's argument that recent decisions by the United States and California Supreme Courts support his position is without merit. Defendant primarily relies on Descamps v. United States (2013) 570 U.S. 254 (Descamps), Mathis v. United States (2016) 579 U.S. ___ (Mathis), and People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). He argues that these three cases have "significantly eroded (if not erased) the rationale" underlying Nguyen.
In Descamps, the United States Supreme Court held that judicial factfinding under the federal Armed Career Criminal Act, which increases sentences of certain federal defendants who have certain prior convictions, violated the Sixth Amendment under Apprendi. (Descamps, supra, 570 U.S. at pp. 257, 269-270.) The United States Supreme Court reaffirmed this principle in Mathis, holding that under the Sixth Amendment and Apprendi, "a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense." (Mathis, supra, 579 U.S. at p. ___ .)
In Gallardo, the defendant waived her right to a jury trial over an allegation that she had a prior assault conviction but disputed the allegation that the assault constituted a serious felony and qualified as a prior strike. (Gallardo, supra, 4 Cal.5th at p. 126.) The defendant had entered a plea in her prior assault case. (Id. at p. 125.) To resolve the dispute, the trial court reviewed a preliminary hearing transcript and determined that the assault qualified as a prior strike. (Id. at p. 126.) Citing Descamps and Mathis, the California Supreme Court determined that the trial court's method was not tenable because the trial court essentially "engaged in a form of factfinding that strayed beyond the bounds of the Sixth Amendment." (Gallardo, supra, at p. 136.)
Descamps, Mathis, and Gallardo may have limited the scope of judicial factfinding that a trial court may undertake when determining whether a prior conviction qualifies as a prior strike. However, these cases do not address—and, as a result, do not change—the California Supreme Court's decision in Nguyen that the use of juvenile adjudications is constitutional. Moreover, as recently as 2016, after Descamps and Mathis were decided, the California Supreme Court expressly declined to reconsider Nguyen. (People v. Landry (2016) 2 Cal.5th 52, 117, fn. 18.) Accordingly, Nguyen remains binding on this court.
5. Dismissal of Prior Serious Felony Adjudications
Defendant argues that the trial court abused its discretion when it declined to exercise its discretion under section 1385 and dismiss his prior strikes. He argues that based on his limited criminal history and his personal circumstances, he fell outside the spirit of the Three Strikes law. He further argues that his juvenile adjudications for robbery and assault arose out of the same incident, a factor that supports striking the prior strikes. As we explain, we find that the trial court did not abuse its discretion by declining to strike defendant's prior strikes.
a. Legal Principles and Standard of Review
"[A] trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice' pursuant to . . . section 1385[,] [subdivision] (a)." (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) When a trial court decides whether to dismiss a prior strike, it "must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects, the defendant may be deemed outside the [spirit of the Three Strikes law] scheme[] . . . in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.)
The sentencing court can give " 'no weight whatsoever . . . to factors extrinsic to the [three strikes] scheme.' [Citation.] On the other hand, the court must accord 'preponderant weight . . . to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.' " People v. Garcia (1999) 20 Cal.4th 490, 498-499 (Garcia), quoting Williams, supra, 17 Cal.4th at p. 161.)
We review the trial court's denial of defendant's Romero motion for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 504.) Given that the law creates a "strong presumption that any sentence that conforms to these sentencing norms is both rational and proper," a court will abuse its discretion in failing to strike a prior strike only under limited circumstances. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) An abuse of discretion may occur if a court fails to be aware of its discretion to dismiss a prior strike, or if it considered impermissible factors when making its decision. (Ibid.)
b. The Strike Priors and the Trial Court's Decision
Defendants two prior strikes stemmed from his juvenile adjudications for robbery and assault with a deadly weapon. Since these offenses were used as predicate offenses to prove the gang enhancement, one of the victims, Conetta, testified during defendant's murder trial. Defendant filed Romero motions requesting that the trial court dismiss the prior strike allegations in both case Nos. 213195 and C1243135.
The trial court denied defendant's motions. In its written order, the trial court acknowledged that defendant committed his prior strikes when he was a minor. Defendant, however, was not successful on probation and was ultimately released from probation due to his age. Less than a year after he was released from probation, he committed one of his current offenses, murder. Charges were not filed until January 2013, and between the time he committed murder and the time charges were filed, defendant was convicted of two Vehicle Code violations. In 2013, he was convicted of possession of a switchblade knife (§ 21510, subd. (b)). And in October 2012, he was arrested for actively participating in a gang and carrying a loaded firearm in case No. C1243135.
The trial court concluded: "While the defense claimed that Defendant's current felony [in case No. C1243135] is not violent or serious, it involves defendant shooting a firearm out of a moving vehicle just seven months after he shot and killed Dashawn Brown out of a moving vehicle. Both the current offense, the 187 against Dashawn Brown, and the strike priors occurred in the context of gang activity and represent a significant danger to society. As to the strike priors, they were [a] serious and violent assault and robbery against two separate victims. Although these priors occurred three years before the charge in this docket, during that time, Defendant continued to engage in gang activity and was unsuccessful under probation. The fact that the Defendant's behavior advanced from serious assaults to murder demonstrate that his criminality increased over time. While Defendant provided multiple letters to the court as well as family members who spoke in court, Defendant's character is best demonstrated by his actions. Defendant has assaulted and killed individuals for the benefit of the gang and with complete disregard for human life. Defendant's youthful age is no excuse for his behaviors. He has chosen the gang lifestyle and chosen to commit violence in the name of the gang. Such actions and behaviors fall squarely within the spirit of the strike law, removing the Defendant from society for the protection of the community." The court further noted that defendant's future prospects were limited, considering the lengthy prison sentence he would be required to serve for his murder conviction.
c. Application to Defendant's Case
Defendant fails to meet his burden to demonstrate that the trial court's decision not to strike his prior strikes was an abuse of discretion. The trial court's reasoned order demonstrates that it did not consider impermissible factors when it determined that defendant did not fall outside the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 378.) The trial court considered factors intrinsic to the scheme, such as the nature of defendant's current offenses and his prior strike convictions, and the particulars of his character, background, and future prospects. (Garcia, supra, 20 Cal.4th at pp. 498-499.)
Defendant argues that he has a limited criminal history, and his juvenile adjudications were three years old by the time he committed the present offenses in 2012. Defendant insists that his age is an ameliorative factor, as he was not even 17 years old when he committed his prior strike offenses. Citing strong support from his family and friends, and his completion of various education and recovery programs, defendant further claims that his personal life was relatively stable. In essence, defendant urges us to reweigh the factors considered by the trial court, but that is not our role as the reviewing court. (Carmony, supra, 33 Cal.4th at p. 378.) " '[I]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction[s]." (Ibid.)
Defendant contends that the trial court abused its discretion because his two prior strike offenses arose out of the same incident, when he robbed and assaulted Conetta and his friend. Defendant cites to People v. Benson (1998) 18 Cal.4th 24 and argues that it may be an abuse of discretion to deny a motion to strike a prior strike if the strikes arose out of the same incident. Defendant's reliance on Benson is misplaced. In dicta, Benson noted that it "need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors." (Id. at p. 36, fn. 8.) The principle outlined in Benson's footnote was affirmed by the California Supreme Court in People v. Vargas (2014) 59 Cal.4th 635 (Vargas), which held that if two prior strikes arise from the same act, the trial court is required to dismiss one of the prior strike convictions. (Id. at p. 645.)
Neither Vargas nor the dicta in Benson are applicable to defendant's case. Conetta, a victim of the assault and robbery, testified at defendant's trial. According to Conetta, the men, including defendant, first assaulted his friend then assaulted him. Conetta then threw his phone and key to the assailants. In other words, defendant's offenses involved separate acts—the assault and the subsequent robbery. As a result, the trial court was not required to strike one of defendant's prior convictions, and its decision not to do so was not an abuse of discretion. (See Vargas, supra, 59 Cal.4th at p. 645.)
6. Imposition of Gang Enhancement to Indeterminate Life Terms
In case No. 213195, the trial court imposed a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) on his sentence of life without the possibility of parole for first-degree murder (§ 187). In case No. C1243135, the court imposed a four-year gang enhancement (§ 186.22, subd. (b)(1)(A)) on his three strike sentence of 25 years to life for possession of a loaded firearm (§ 25850). On appeal, defendant argues that the sentences for the gang enhancements were unauthorized because his murder and firearm possession convictions resulted in life terms.
Section 186.22, subdivision (b)(1) describes additional punishments for those who are found to have committed a felony for the benefit of, at the direction of, or in association with a criminal street gang. Under section 186.22, subdivision (b)(1)(A), a person "shall be punished by an additional term of two, three, or four years at the court's discretion." (§ 186.22, subd. (b)(1)(A).) Under section 186.22, subdivision (b)(1)(C), a person shall be punished by an additional term of 10 years in prison if the felony is a violent felony as defined under section 667.5, subdivision (c). Murder is listed as a violent felony under section 667.5, subdivision (c)(1).
Section 186.22, subdivision (b)(5) provides, "[e]xcept as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
Defendant argues that his sentences of life without the possibility of parole and 25 years to life triggered section 186.22, subdivision (b)(5), rendering the trial court's imposition of a 10-year enhancement and a four-year enhancement erroneous. Defendant's argument is supported by People v. Lopez (2005) 34 Cal.4th 1002 (Lopez). In Lopez, the California Supreme Court determined that section 186.22, subdivision (b)(5) applied to a defendant who was sentenced to a term of 25 years to life and struck the section 186.22, subdivision (b)(1) enhancement that had been imposed. (Lopez, supra, at pp. 1005, 1010.)
Lopez did not consider whether section 186.22, subdivision (b)(5) applies to defendants facing LWOP sentences. In dicta, Lopez suggests that section 186.22, subdivision (b)(5) was not intended to apply to persons who are sentenced to LWOP. After examining the history of the California Street Terrorism Enforcement and Prevention Act, the Lopez court observed that the predecessor to section 186.22, subdivision (b)(5) "was understood to apply to all lifers, except those sentenced to life without the possibility of parole." (Lopez, supra, 34 Cal.4th at p. 1010.)
Despite this language, Lopez's analysis suggests that section 186.22, subdivision (b)(5) does apply to LWOP sentences. Lopez rejected the argument that section 186.22, subdivision (b)(5) is inapplicable to sentences for first or second degree murders, given that the provision would have "no practical effect" since the minimum parole eligibility term for those offenses are 25 years for first degree murder and 15 years for second degree murder. (Lopez, supra, 34 Cal.4th at p. 1009.) Citing to the initiative's legislative history, which stated that " 'if any provision in this act conflicts with another section of law which provides for a greater penalty or longer period of imprisonment that the latter provision shall apply,' " Lopez upheld section 186.22, subdivision (b)(5)'s application to first and second degree murder sentences even though those sentences carry either the same or longer minimum parole terms. (Lopez, supra, at p. 1009.) Lopez concluded that "the fact that section 190 [the statute that sets the minimum parole eligibility for first- and second-degree murder] fixes a parole eligibility date equal to or greater than that provided by section 186.22[, subdivision] (b)(5) is neither an absurdity nor an anomaly . . . ." (Ibid.) In the defendant's case, "the greater penalty set forth in section 190—i.e., 25 years to life—is the proper punishment for defendant's first degree murder conviction." (Ibid.)
Like the 25-year-to-life sentence contemplated in Lopez, defendant's LWOP sentence will not be affected by the 15-year minimum parole eligibility described in section 186.22, subdivision (b)(5). However, under Lopez's analysis, this result is not anomalous. The greater penalty—LWOP—is the punishment that defendant will face for his conviction. Therefore, the trial court incorrectly imposed the 10-year gang enhancement on his conviction for first degree murder because section 186.22, subdivision (b)(5) applies.
Likewise, we also conclude that defendant's four-year gang enhancement, which was imposed on his sentence of 25 years to life for his conviction for unlawful possession of a loaded firearm, was erroneously imposed. (People v. Williams (2014) 227 Cal.App.4th 733, 745 [§ 186.22, subd. (b)(5)'s minimum parole eligibility provision is applicable to sentence of 25 years to life under Three Strikes law].) Section 186.22, subdivision (b)(5) applies, and the trial court should not have imposed the gang enhancement under section 186.22, subdivision (b)(1)(A).
7. The Firearm Enhancement
In case No. 213195, the trial court sentenced defendant to 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1). Defendant argues that his 25-year-to-life sentence for the firearm enhancement must be stayed under section 654 because it is based on the same criminal conduct underlying the gang special circumstance (§ 190.2, subd. (a)(22)) and the gang enhancement (§ 186.22, subd. (b)(1)(C)).
In his opening brief, defendant also argues that the firearm enhancement is based on the same conduct as the gang enhancement that was imposed under section 186.22, subdivision (b). In the preceding section of the opinion, we struck the 10-year enhancement imposed under section 186.22, subdivision (b). We therefore do not need to address this argument.
Section 654, subdivision (a) provides in pertinent part that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358.)
In People v. Ahmed (2011) 53 Cal.4th 156, the California Supreme Court determined that section 654 may apply to bar multiple enhancements. (Ahmed, supra, at pp. 163-164.) The Supreme Court clarified that "the sentencing statute themselves will [often] supply the answer whether multiple enhancements can be imposed." (Id. at p. 163.) If that is the case, section 654 is inapplicable because "a specific statute prevails over a more general one relating to the same subject." (Ahmed, supra, at p. 163.) It is only if the specific statutes at issue are silent that a court should utilize section 654. "[A]s a default, section 654 does apply to enhancements when the specific statutes do not provide the answer." (Ahmed, supra, at p. 163.)
It is well-established that the Legislature can create exception to application of section 654 by stating a specific legislative intent to impose an additional punishment. (People v. Ramirez (1995) 33 Cal.App.4th 559, 572-573.) For example, the Legislature can specify that a defendant shall receive a sentence enhancement in addition to any other authorized sentence. (Ibid.)
We find the language of section 12022.53 dispositive of defendant's claim. Section 12022.53, subdivision (d), specifically states that "[n]otwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplish, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (Italics added.) Section 12022.53, subdivision (e)(1) imposes the enhancement under section 12022.53 on "aiders and abettors who commit crimes in participation of a criminal street gang." (People v. Garcia (2002) 28 Cal.4th 1166, 1171.)
Murder is one of the enumerated felonies described in section 12022.53, subdivision (a).
Here, the language of section 12022.53, subdivision (d) establishes the Legislature's specific intent that the firearm enhancement be imposed in addition to any other mandated sentence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1313-1314 ["the express language of the statute indicates the Legislature's intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties" imposed under § 12022.53].)
As a result, the firearm enhancement imposed under section 12022.53, subdivisions (d) and (e)(1) was not precluded by section 654.
8. Section 12022.53, Subdivision (h) is Retroactive
While defendant's appeal was pending, the Legislature enacted Senate Bill No. 620. Senate Bill No. 620 amended section 12022.53, subdivision (h), which now reads: "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." Senate Bill No. 620 took effect on January 1, 2018. Prior to its passage, trial courts did not have the discretion to strike or dismiss firearm enhancements imposed under section 12022.53.
After briefing in this case was completed, defendant submitted a supplemental brief arguing that Senate Bill No. 620 retroactively applies to his case, and we should remand the matter to the trial court so it may exercise its discretion in deciding whether to strike the 25-year-to-life firearm enhancement imposed under section 12022.53, subdivisions (d) and (e)(1). The People concede that Senate Bill No. 620 retroactively applies to defendant's case because his judgment was not yet final when it came into effect. We agree with the parties that section 12022.53, subdivision (h) applies to defendant's case. (People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425 (McDaniels).)
Even though the amendment is retroactive to defendant's case, remand is not automatic. We must determine whether a remand is required or if it would be an " 'idle act.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.) 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.) There is an exception to this rule, however, where " 'the record shows that the trial court would not have exercised its discretion even if it believed it could do so,' " in which case, " 'remand would be an idle act and is not required.' " (Gamble, supra, at p. 901.)
In McDaniels, supra, 22 Cal.App.5th 420, the appellate court addressed the appropriate standard to "apply in assessing whether to remand a case for resentencing in light of Senate Bill [No.] 620." (Id. at p. 425.) Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894, which dealt with reconsidering three strikes sentencing in light of the California Supreme Court's decision in Romero, McDaniels determined that a "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." (McDaniels, supra, at p. 425.) McDaniels held that the salient question is whether the trial court "express[ed] its intent to impose the maximum sentence permitted." (Id. at p. 427.) "When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Ibid.) Likewise, in People v. Almanza (2018) 24 Cal.App.5th 1104, the appellate court remanded the matter for resentencing because the court's imposition of consecutive sentences was not a clear indication of how the trial court would ultimately rule on remand. (Id. at pp. 1110-1111.)
In contrast, the appellate court in People v. McVey (2018) 24 Cal.App.5th 405 determined that remand for resentencing under Senate Bill No. 620 was unnecessary because the record reflected no possibility that the trial court would exercise its discretion to strike the firearm enhancement that was imposed. (Id. at p. 419.) In McVey, 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.' " (Ibid.) Thus, the appellate court concluded that "remand in these circumstances would serve no purpose but to squander scarce judicial resources." (Ibid.) And in People v. Jones (2019) 32 Cal.App.5th 267, the appellate court determined that remand was unnecessary after observing that the trial court denied the defendant's new trial motion and commented during sentencing that it had " 'great satisfaction in imposing the very lengthy sentence here today.' " (Id. at p. 274.)
The People argue remand is not required in defendant's case because the trial court's denial of defendant's Romero motions and its decision to impose the enhancements and sentences consecutively strongly indicate that it would not have exercised its discretion to strike defendant's firearm enhancement. We are not persuaded by this argument. The trial court's decision on defendant's Romero motions focused on whether defendant fell outside the purview of the Three Strikes law (see People v. Williams, supra, 17 Cal.4th at p. 161 [describing factors court must consider when deciding whether defendant falls outside spirit of Three Strikes law]). Such a decision requires a different analysis than a decision as to whether to strike a firearm enhancement.
Some of the comments made by the trial court during defendant's sentencing hearing also persuade us that remand is required. After hearing defendant's family members speak on his behalf, the trial court remarked that it may be difficult for those not familiar with the legal system to understand that there are "restrictions that are put on the Court and really how much discretion the Court actually has in certain matters." The trial court continued its comments by noting that it could not "just decide a case based on any sentence that [the trial court] think[s] might be right." After examining the opportunities that defendant had received to try to change his life, the trial court observed that it had "very, very little discretion" in its sentencing because defendant had committed "a serious and violent crime." The trial court then concluded that "[defendant] had some chances in this society. I can't give him a chance after murder. The law, first of all, would—just really doesn't account for it. And in this Court's analysis of the facts and the circumstances and his prior strikes—do not believe that it would be appropriate, even in the case of [case No. C1243135]."
Although these comments indicate that the trial court intended to impose a lengthy sentence and did not believe that defendant fell outside the purview of the Three Strikes law, the trial court's repeated emphasis of the limits to its sentencing discretion leads us to conclude that the record is not sufficiently clear for us to determine that it would not have stricken defendant's firearm enhancement had it had the power to do so.
As a result, remand for resentencing is necessary for the limited purpose of allowing the trial court to consider if defendant's firearm enhancement should be stricken.
9. Ability to Pay Fines and Fees
In a second supplemental brief, defendant argues that we must order the trial court to strike the aggregate $120 court operations assessment (§ 1465.8, subd. (a)) and the aggregate $90 court facilities assessment (Gov. Code, § 70373) that were imposed in his two cases because they were imposed without determining if he had an ability to pay them. He further argues that this court must order the trial court to stay the execution of the two $240 restitution fines imposed under section 1202.4 unless and until the prosecution proves that he has the ability to pay the fine. Defendant's arguments are based on the Second Appellate District's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
As the People observe in their supplemental respondent's brief, the challenged fees were imposed in both of defendant's cases. As we have described, in case No. 213195, defendant was convicted by a jury of first degree murder. In case No. C1243135, defendant pleaded no contest to participating in a criminal street gang and unlawful possession of a firearm. When the trial court sentenced defendant in both cases, it imposed a $240 restitution fine, a $40 court operations assessment, and a $30 court facilities assessment in case No. 213194. It further imposed a $240 restitution fine, a $80 court operations assessment, and a $60 court facilities assessment in case No. C1243135.
Accordingly, the People argue that in case No. C1243135, defendant expressly agreed to the fines and fees as a term of his plea agreement. And with respect to the fines and fees imposed in both case Nos. C1243135 and 213195, the People argue that defendant forfeited his arguments by failing to object below on the basis of his inability to pay.
Currently, appellate courts are split on whether a failure to object to the imposition of fines and fees based on an inability to pay forfeits the issue on appeal. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126 [failure to object due to inability to pay forfeited issue on appeal] with People v. Castellano (2019) 33 Cal.App.5th 485 [failure to object due to inability to pay did not forfeit issue on appeal].) --------
Even if we assume that defendant did not forfeit his arguments, we reject defendant's contention that he is entitled to remand under Dueñas because we find Dueñas to be distinguishable. In Dueñas, the defendant was an unemployed homeless probationer with cerebral palsy who spent her benefits and food stamps on her two children. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The defendant had received juvenile citations when she was a teenager, which led to fines, which led to her driver's license getting suspended after she could not repay her debts. (Id. at p. 1161.) She was then convicted several times for driving with a suspended license, which resulted in her spending time in jail because she could not afford to pay the fines associated with her convictions. (Ibid.) After her most recent conviction of driving with a suspended license, the defendant requested the trial court set a hearing to determine her ability to pay the attorney fees that had been previously assessed and the other court fees that were imposed. (Id. at p. 1162.) After an ability to pay hearing, the trial court determined that the defendant lacked the ability to pay attorney fees and waived them. (Id. at p. 1163.) The trial court, however, determined that the court facilities assessment imposed under Government Code section 70373 and the court operations assessment imposed under section 1465.8 were mandatory regardless of the defendant's ability to pay, and the defendant had not shown the " 'compelling and extraordinary reasons' " required by section 1202.4, subdivision (c) to justify waiving the fine. (Dueñas, supra, at p. 1163.)
On appeal, the Second Appellate District reversed the trial court's order. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) With respect to the court facilities and court operations assessments, Dueñas first observed that both assessments were not intended to be punitive in nature. (Id. at p. 1165.) Dueñas then examined several California and United States Supreme Court decisions involving indigent defendants and fees: Griffin v. Illinois (1956) 351 U.S. 12, which held that due process and equal protection principles require that all people charged with a crime must be treated equally, In re Antazo (1970) 3 Cal.3d 100, which invalidated the practice of requiring defendants to serve jail time if they are unable to pay a fine and penalty assessment, and Bearden v. Georgia (1983) 461 U.S. 660, which held that it violated the federal Constitution to revoke an indigent defendant's probation for failing to pay a fine and restitution. (Dueñas, supra, at pp. 1166-1169.) Relying on these three cases, Dueñas held that imposing the court facilities and court operations assessment without determining a defendant's ability to pay was fundamentally unfair and violated due process. (Id. at pp. 1168-1169.)
With respect to the restitution fine, Dueñas acknowledged that unlike the court facilities and court operations assessments, the restitution fine is intended to be punitive in nature. (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Dueñas, however, noted that " '[t]he principle that a punitive award be considered in light of the defendant's financial condition is ancient.' " (Id. at p. 1170.) Yet "[i]n this [current] statutory scheme . . . the wealthy defendant is offered an ultimate outcome that the indigent one will never be able to obtain—the successful completion of all the terms of probation and the resultant absolute right to relief from the conviction, charges, penalties, and disabilities of the offense." (Id. at p. 1171.) Thus, Dueñas concluded that the trial court must stay the execution of a restitution fine until the People demonstrate that the defendant has the ability to pay the fine. (Id. at p. 1172.)
The People do not take issue with Dueñas's conclusion that court operations assessment and the court facilities assessment should not be imposed if a defendant demonstrates an inability to pay. With respect to the restitution fine, the People argue that Dueñas was not properly decided because it incorrectly applied due process principles. In its supplemental brief, the People argue that analysis of defendant's challenge to the restitution fine must begin with the excessive fines clause, rather than substantive due process. This approach has been suggested by other appellate courts. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1035 (conc. opn. of Benke, J.) [suggesting that constitutionality of restitution fine should be evaluated under the excessive fines clause of the Eighth Amendment and article 1, section 17, of the California Constitution].)
We do not reach this argument for several reasons. First, the constitutionality of the restitution fine under the excessive fines clause was not raised by defendant in his supplemental brief. Furthermore, we find that defendant's situation is markedly distinguishable from the situation faced by the defendant in Dueñas. Unlike the Dueñas defendant, who was placed on probation and subjected to a recurring cycle of debt, defendant has been sentenced to multiple life sentences, including a sentence of life in prison without the possibility of parole. When imposing the minimum restitution fines in both of defendant's cases, the trial court noted that it was doing so on the request of defense counsel due to defendant's limited financial resources. However, it is illogical to conclude that defendant will not have the ability to pay the challenged amount of fines and fees, totaling $690, over the course of his lifetime in prison. Although the record does not clearly outline his past work history, defendant, who was 25 years old at the time of his sentencing, will be incarcerated for many years and will have the opportunity to earn prison wages over a substantial period of time. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's prison wages].) There is nothing in the record that indicates that defendant would be ineligible for a prison work assignment. Thus, even assuming that a due process violation occurred, any alleged error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson (2019) 35 Cal.App.5th 134, 139.) Therefore, we do not believe remand is necessary.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for the limited purpose of exercising its discretion under Senate Bill No. 620 to determine if defendant's firearm enhancement should be stricken in the furtherance of justice. On remand, the trial court is further directed to modify the judgment by striking the 10-year gang enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(C) in case No. 213195 and the four-year gang enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(A) in case No. C1243135. If the trial court strikes defendant's firearm enhancement, it shall resentence defendant accordingly. If the court declines to strike the firearm enhancement, the trial court will reinstate the original sentence, subject to the above modifications.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P. J. /s/_________
Elia, J.