Opinion
F078228
07-27-2021
The PEOPLE, Plaintiff and Respondent, v. Guillermo VASQUEZ et al., Defendants and Appellants.
Jeffrey S. Kross, Oakland, under appointment by the Court of Appeal, for Guillermo Vasquez, Defendant and Appellant. Benjamin Owens, El Cerrito, under appointment by the Court of Appeal, for Nicky Diaz Carrillo, Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II. and III. of the Discussion and the concurring and dissenting opinion.
Jeffrey S. Kross, Oakland, under appointment by the Court of Appeal, for Guillermo Vasquez, Defendant and Appellant.
Benjamin Owens, El Cerrito, under appointment by the Court of Appeal, for Nicky Diaz Carrillo, Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
POOCHIGIAN, J.
In an information filed January 16, 2018, the Kern County District Attorney charged defendants Guillermo Vasquez and Nicky Diaz Carrillo with first degree murder (count 1; Pen. Code, §§ 187, subd. (a), 189, subd. (a) ) and assault with a firearm (count 2; § 245, subd. (a)(2).) As to both defendants, the information also alleged that a principal discharged a firearm during the commission of the murder, proximately causing death to a nonaccomplice (§ 12022.53, subds. (d) & (e)(1).) The information further alleged both defendants were active gang participants who carried out the murder to further the activities of the criminal street gang. (§ 190.2, subd. (a)(22).) The information also alleged that both defendants committed both offenses "for the benefit of, at the direction of, or in association with Sure[ñ]os, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Finally, the information alleged three enhancements under section 667.5, subdivision (b) against Vasquez, asserting he had committed a felony offense within five years of being released from a prison term. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise stated.
Count 2 was later dismissed at the prosecutor's request.
Trial was trifurcated into the following proceedings: trial of the murder charge and personal firearm use enhancement ( § 12022.53, subd. (d) ); trial of the gang enhancements under sections 186.22 and the use of a firearm by a principal enhancement ( § 12022.53, subds. (d) & (e) ); and trial of Vasquez's three prison priors. In the first proceeding, a jury convicted defendants of first degree murder, and found the personal firearm use enhancement to be true as to both defendants. In the second proceeding, the jury found true the gang enhancement ( § 186.22, subd. (b)(1) ) and the discharge of a firearm by a principal causing death enhancement ( § 12022.53, subds. (d) & (e)(1) ) as to both defendants. Finally, in the third proceeding, the court found true the prior prison term allegations against Vasquez.
Initially this portion of trial was to also resolve the allegation under section 190.2, but that allegation was later dismissed at the prosecutor's request.
At the court's prompting, the parties stipulated that the court would "dismiss" and strike the jury's "finding" that both defendants personally discharged a firearm causing death. The stipulation was based on an agreement that there was not substantial evidence that each of the defendants personally discharged a firearm causing death. However, the court still sentenced defendants on the use of a firearm by a principal enhancement. (See § 12022.53, subd. (e)(1).)
The court sentenced Vasquez to 25 years to life in prison, plus 25 years to life ( § 12022.53, subds. (d) & (e)(1) ), plus three years ( § 667.5, subd. (b).) The court sentenced Carrillo to 25 years to life, plus 25 years to life ( § 12022.53, subds. (d) & (e)(1) ). Both defendants appeal.
FACTS
I. Phase One of Trial
The Residence Motel in Bakersfield is a known hot spot for criminal activity. It is bounded by Eureka Avenue to the north; Truxtun Avenue to the south; and Union Avenue to the west.
Motel surveillance footage showed Francisco Amavisca wandering around the motel premises through the early evening of February 18, 2017. The footage also shows defendant Carrillo going to various locations on the premises of the Residence Motel that day. At one point, Carrillo knocked on the door of room 245.
The prosecution's theory was that defendants shot Amavisca on the motel grounds at 7:14 p.m. About 16 minutes prior to the shooting, defendant Vasquez arrived at the motel. At 7:14 p.m., surveillance footage shows Vasquez walking out of the main gate. The jersey he was wearing was pulled up over his head. Following closely behind was Carrillo, wearing a mask. The two made their way along the exterior of the motel, first heading north (near Union Ave), then east (near Eureka Street).
According to the surveillance video's timestamp.
At 7:14:58, they leave the field of view of a surveillance camera in the direction of a stairwell on the north side of the motel. A second or two later, Amavisca came running into view of the camera from defendants' location. Amavisca ran down Union Avenue before collapsing. Amavisca bled to death from a gunshot wound that perforated his femoral artery. Various bystanders reported hearing four to five gunshots.
Defendants went up the stairs and headed towards room 245. They crouched below a partial wall as they approached the room. They entered room 245 shortly after 7:15 p.m.
Police arrived at the room about 16 minutes later. Carrillo was in room 245 along with a woman and a child. On the bed was a gray sweatshirt and blue jeans, identical to what Carrillo was wearing in the surveillance videos. Underneath a sofa cushion was a black ski mask. DNA from the sweatshirt and mask matched Carrillo.
Vasquez was not in room 245 when police arrived. From the time defendants entered room 245 until police arrived, surveillance cameras showed that no one left through the front door of the room. However, from the back windows of room 245, it is possible to step onto a flat roof nearby. Police officers exited room 245 via a back window onto the flat roof and found a black grocery bag with six spent rounds of .357-caliber ammunition.
Hours later, officers entered room 200. The door was ajar, but no one was inside. Inside the room, police found a disconnected security camera that resembled the security cameras on the motel premises. Inside the room's air conditioning unit, officers found a .357-caliber revolver. The firearm was capable of being loaded with seven bullets. There was a single live bullet in the revolver when it was found by police.
Officers also found a Pittsburgh Steelers jersey on the bed, and a drawstring backpack on the floor. The drawstring backpack had .357-caliber ammunition inside and a mask. They also found a Visa card with the name Yvette Garcia.
Years prior, Vasquez was pulled over by police. Yvette Garcia was his passenger.
Vasquez's DNA matched DNA on the revolver, the jersey, and the mask found in the drawstring backpack.
Police located Vasquez the next day at a residence on East 3rd Street in Bakersfield. Yvette Garcia was also at the residence. Inside a bedroom, officers located the key to room 200 of the Residence Motel. Officers also located a bag of .357-caliber ammunition at the home.
Officers interrogated Carrillo on the evening of February 18. Carrillo identified himself in still shots from the surveillance video of the Residence Motel. Carrillo said he had been watching the baby in the motel room when he heard gun shots. Carrillo claimed he had nothing to do with the shooting.
After hearing this evidence, the jury returned guilty verdicts on count 1, and true findings as to premeditation/deliberation ( § 189 ), and the personal firearm use resulting in great bodily injury or death enhancement ( § 12022.53, subd. (d) ) as to both defendants.
II. Phase Two of Trial
After the verdicts from the first phase were recorded, the second phase of the trial began. This phase pertained to the gang enhancement ( § 186.22, subd. (b)(1) ) and the use of a firearm by a principal enhancement ( § 12022.53, subds. (d) & (e)(1).)
A. Prosecution Gang Expert – Officer Barajas
Officer Barajas testified as the prosecution's gang expert. Barajas testified about several topics, including gang structure and hierarchy. Barajas explained that the Mexican Mafia was originally a prison gang. The Mexican Mafia "spills out into the streets ... through the Sure[ñ]os." The Mexican Mafia has created a gang structure, using Sureños as their "foot soldiers." At the top is a group of Mexican Mafia members referred to as the "Mesa" or "the table." They have monthly meetings, usually on the 13th of every month. This group then puts out "orders" that go down to the Sureños. The local, Kern County Sureño gangs also have monthly meetings.
The Mexican Mafia also "taxes" the Sureños. For example, if a member of a Sureño subset is given the ability to sell drugs in a particular area, he must pay "taxes" that eventually go to members of the Mexican Mafia.
In Bakersfield, the Sureño gang has several "subsets." A subset is a "smaller kind of clique" under the "umbrella" of the Sureños. Sureño subsets in Bakersfield include the Varrio Bakers, Colonia Bakers, West Side Bakers, East Side Bakers, South Side Bakers, Okie Bakers, Loma Bakers, and Uptown Bakers. Members of different subsets commit crimes together. Occasionally, subsets will have feuds with one another.
All Sureño gangs are associated with the Mexican Mafia. Sureño gang members pay homage to Mexican Mafia by getting tattoos associated with the number 13.
"M" is the thirteenth letter of the alphabet.
The "big gang rival" of the Sureños are the Norteños. Generally, everything south of Delano is Sureño territory; and everything north of Delano is Norteño territory. The Residence Motel is in Sureño territory. It is a "melting pot" for various Sureño subsets.
Navy blue is the Sureño gang's color. The primary color of the West Side Bakers subset is turquoise.
B. Predicate Offenses
Officer Barajas testified that an individual named Jimmy Ramirez was involved in a court case arising out of an incident that occurred on December 6, 2014. Barajas opined that Ramirez is, and was, an active Sureño gang member and also belonged to the West Side Bakers subset.
An individual named George Mendoza was involved in a court case arising out of an incident that occurred on May 23, 2012. Officer Barajas opined that Mendoza is a member of the Sureño criminal street gang.
Officer Barajas also opined that Vasquez was an active member of the Sureños on February 18, 2017.
C. Primary Activities
The primary activities of the Sureños are narcotics sales, prostitutions, homicide, murder for hire, robberies, burglaries, and "the list goes on."
D. Gang Evidence Concerning Defendant Vasquez
1. Prior Contacts with Law Enforcement
Officer Harless testified that he went to Vasquez's residence on October 9, 2010, as part of his police duties. A picture was found, under a mattress, depicting Vasquez holding a firearm. Another individual in the photo was wearing a hat with the letters "VB" on the front, and a third individual was holding his hands in the shape of a "V." Officer Barajas testified that the "V" hand symbol stood for "Varrio Bakers."
Officer Jones testified that he conducted a vehicle stop on April 14, 2013. Vasquez was driving the vehicle. Yvette Garcia was in the passenger seat. Underneath the driver's seat was a .22-caliber revolver.
2. Vasquez's Tattoos
Vasquez has a tattoo on the top of his back that says, "Varrio" which is Spanish for neighborhood. Vasquez also has a tattoo that says, "BKS," which stands for "Bakers." Vasquez has another tattoo that says, "Lil Lokos" which is a smaller clique within the Varrio Bakers. This is a common tattoo on Sureño gang members. Above his left eye, Vasquez has a tattoo that reads, "VBKS" which stands for "Varrio Bakers." There exists a picture showing Vasquez also had the three-dot tattoo, which is a "commonality across all Sure[ñ]os."
Officer Barajas testified that you would never see a nongang member with tattoos like Vasquez's.
3. Gang Evidence Concerning Defendant Carrillo
Officer Harless testified that on October 29, 2011, he stopped a vehicle in which Carrillo was riding as a passenger. Both Carrillo and the driver were wearing baseball caps with the letter, "W." Carrillo told Harless he was a member of the West Side Bakers.
Sergeant Wood testified that on May 12, 2011, he contacted Carrillo and informed him of his Miranda rights. Carrillo was wearing a baseball cap with the letter, "W." Carrillo initially said he wore the hat because he liked the design. Carrillo later admitted that the "W" on the hat stood for West Side Bakers.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
Officer Harless again contacted Carrillo on January 31, 2012. Carrillo was wearing a turquoise shirt and a baseball cap with the letter, "W." Carrillo again mentioned that he was a member of the West Side Bakers.
Officer Benavente testified that he contacted Carrillo on September 3, 2015. Benavente observed that Carrillo had the letters, "WSB," on his right cheek. Carrillo said the acronym stood for West Side Bakers.
4. Carrillo's Tattoos
Carrillo has tattoos reading, "KC," "VB," "WS," "V," and "S." "KC" stands for Kern County; "WS" stands for West Side; "V" stands for Varrio; "S" stands for South or "Sur."
Carrillo also has a tattoo of three dots
Carrillo also has a tattoo of a large "V" with the letters "arrio" inside. When "you put it together, you have Varrio."
Based on Officer Barajas's experience and training, Carrillo's tattoos are consistent with membership in the Sureño gang.
Officer Barajas testified that while he was taking pictures of his tattoos, Carrillo asked, "You guys take pictures of nongang ones too[?]"
5. Gang Membership
Officer Barajas testified that, in his opinion, Carrillo was a member of the Sureño gang on February 18, 2017. Officer Barajas's opinion was based on prior police contacts, gang apparel, self-admissions, and tattoos.
Officer Barajas also opined that Vasquez was an active member of the Sureños on February 18, 2017. That opinion was based on the surveillance video, tattoos, prior contacts, and prior weapons possession.
The prosecutor presented Officer Barajas with a hypothetical that matched the prosecution's theory of what the evidence showed. Barajas opined that such a crime would have been committed for the benefit of, at the direction of, and in association with a street gang. Since there were two Sureño gang members involved, the nonshooter can confirm to other Sureño gang members that the shooter had in fact followed through. The location also benefits the gang because it demonstrates that gang members are not afraid to shoot in a public place. Finally, it demonstrates that the shooter was willing to kill for the gang.
The "in association" prong is also satisfied because the two gang members were "together" when they committed the crime. E. Defense Gang Expert – Dr. Jesse De La Cruz
Dr. Jesse De La Cruz testified as a gang expert for the defense. Dr. De La Cruz has a doctoral degree in education and is a former member of the Nuestra Familia prison gang.
When gang members from Southern California go to prison, they are "automatically under the umbrella of the Mexican Mafia." "Same thing with Norteños or Northerners," who automatically "become under the umbrella of the Nuestra Familia." Whatever "street gang" you belonged to "is no longer applicable."
Dr. De La Cruz opined that Officer Barajas's opinion expressed at the preliminary hearing was not connected to the evidence in this case. In determining whether a crime was done for the benefit of, in association with, or at the direction of a gang, Dr. De La Cruz looks at several factors. Dr. De La Cruz considers whether the participants "throw or yell out any gang slogans;" use gang signs; wear clothing associated with gangs; send text messages relating to the gang; or make gang-related posts on social media. Dr. De La Cruz testified that he did not find any of these factors present in the current case. However, Dr. De La Cruz conceded the factors are not required under the law.
Dr. De La Cruz testified it is possible for gang members to commit crimes that are not gang related. Dr. De La Cruz testified that he himself had committed several crimes, some related to the gang and others unrelated.
Dr. De La Cruz testified that a person may be a member of a Sureño subset without being a Sureño. Alternatively, a person can be in a subset and the Sureño gang itself.
DISCUSSION
I. Prosecution was not Required to Show Connection Between Sureño Subsets
A. Introduction
Carrillo argues the gang enhancement was not supported by substantial evidence. Specifically, he argues that "because the government's theory was that the gang appellants benefitted for purposes of the enhancement was the broader Sure[ñ]os gang, under [ People v. ] Prunty [(2015) 62 Cal.4th 59 [192 Cal.Rptr.3d 309, 355 P.3d 480] ( Prunty ),] it had to show a connection between the local subsets and the Sure[ñ]os." Carrillo contends the prosecution failed to show this requisite connection.
Vasquez joins in Carrillo's argument.
As we will explain, Carrillo's legal premise is flawed. The prosecution did not have to show a connection between the subsets and the broader Sureño gang, so long as it otherwise showed that the group defendant acted in association with, "the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." ( Prunty, supra , 62 Cal.4th at p. 81, 192 Cal.Rptr.3d 309, 355 P.3d 480.) Because the prosecution showed that the broader Sureño gang satisfied all three, it need not show a connection between subsets. (See, e.g., People v. Pettie (2017) 16 Cal.App.5th 23, 49–50, 224 Cal.Rptr.3d 160.) We reject defendants' challenge.
B. Law
To establish the existence of a gang under the Street Terrorism Enforcement and Protection Act, also known as the STEP Act ( § 186.20 et seq. ), "the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. [Citation.]" ( People v. Gardeley (1996) 14 Cal.4th 605, 617, 59 Cal.Rptr.2d 356, 927 P.2d 713 ( Gardeley ), disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13, 204 Cal.Rptr.3d 102, 374 P.3d 320.)
To establish the gang enhancement, the prosecution must then show that the relevant crimes were "committed ‘for the benefit of, at the direction of, or in association with’ " the criminal street gang. ( Gardeley, supra , 14 Cal.4th at pp. 609–610, 59 Cal.Rptr.2d 356, 927 P.2d 713.)
C. The Sameness Requirement
The definition of a "gang" and the elements of the gang enhancement converge in an obvious, but important way. "[T]he prosecution must show that the group the defendant acted to benefit,[ ] the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." ( Prunty, supra , 62 Cal.4th at p. 81, 192 Cal.Rptr.3d 309, 355 P.3d 480 ; see also id. at p. 75, 192 Cal.Rptr.3d 309, 355 P.3d 480.) This is referred to as the " ‘sameness’ requirement." ( Id. at pp. 76, 81, 192 Cal.Rptr.3d 309, 355 P.3d 480.)
"... [ ]or which directed or associated with the defendant in connection with the crime[ ]." (Prunty, supra , 62 Cal.4th at pp. 80–81, 192 Cal.Rptr.3d 309, 355 P.3d 480.)
Satisfying this requirement is often straightforward because "many gang-related prosecutions involve the conduct of discrete criminal street gangs and do not turn on the relationship between alleged gang subsets. [Citations.]" ( Prunty, supra , 62 Cal.4th at p. 80, 192 Cal.Rptr.3d 309, 355 P.3d 480.)
However, a different circumstance is presented when "when the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang's alleged subsets ...." ( Prunty, supra , 62 Cal.4th at pp. 67–68, 192 Cal.Rptr.3d 309, 355 P.3d 480.) In that situation, "it must prove a connection between the gang and the subsets." ( Id. at p. 68, 192 Cal.Rptr.3d 309, 355 P.3d 480.) This "connection" evidence is necessary to satisfy the sameness requirement because it shows "the groups in fact constitute the same ‘criminal street gang.’ " ( Id. at p. 79, 192 Cal.Rptr.3d 309, 355 P.3d 480.)
But there is no need to show that various gangs or subsets should be treated as one group, when there is a single group that, itself , satisfies all aspects of the sameness requirement. (See People v. Pettie, supra , 16 Cal.App.5th at pp. 49–50, 224 Cal.Rptr.3d 160 ; see also Prunty, supra , 62 Cal.4th at p. 80, 192 Cal.Rptr.3d 309, 355 P.3d 480.)
D. Gang Organization
Some gangs have associational or even hierarchal relationships to other groups or gangs. For example, experts testified in the present case that the Mexican Mafia prison gang issues orders and imposes "taxes" on the Sureño gang. The Sureño gang is itself an "umbrella" gang over several cliques or subset gangs.
Similarly, the rival prison gang, Nuestra Familia is an umbrella gang over the Norteños.
E. Gang Membership
However, while some subset gangs fall under the organizational umbrella of a larger gang, not every member of the subset gang is necessarily a member of the larger, umbrella gang. Indeed, an individual's gang membership may take one of several forms. The individual may (1) only be a member of a subset; (2) only be a member of an umbrella gang; or (3) be a member of both a subset and an umbrella gang. For example, Dr. De La Cruz was a member of the Nuestra Familia prison gang, but not a member of the Norteño street gang. The predicate offenders in Prunty were members of a subset gang but not the umbrella gang ( Prunty, supra , 62 Cal.4th at pp. 82–83, 192 Cal.Rptr.3d 309, 355 P.3d 480 ), while Prunty himself belonged to both the subset gang and the broader umbrella gang ( ibid. [Prunty belonged to subset and umbrella gang, in contrast to predicate offenders who only belonged to subset]).
Similarly, Dr. De La Cruz testified that not all members of subsets "partake in the actual Sure[ñ]o umbrella unless they choose to."
The problem that arose in Prunty was that the defendant belonged to the umbrella Norteño gang, but the predicate offenders belonged only to subset gangs. (See Prunty, supra , 62 Cal.4th at pp. 82–83, 192 Cal.Rptr.3d 309, 355 P.3d 480.) This discrepancy raised questions about the sameness requirement, because "the group the defendant acted to benefit" and "the group that committed the predicate offenses" must be "one and the same." ( Id. at p. 81, 192 Cal.Rptr.3d 309, 355 P.3d 480.)
The prosecution could have prevailed nonetheless if it had shown that the various groups were so organizationally connected that they were realistically a single gang. (See Prunty, supra , 62 Cal.4th at pp. 79–80, 192 Cal.Rptr.3d 309, 355 P.3d 480.)
However, this problem does not arise when the defendant seeks to benefit, associates with, or acts under the direction of a particular gang, and the predicate offenders are members of the same gang. In that circumstance, the sameness requirement is satisfied tautologically. Thus, when a defendant commits a crime to benefit an umbrella gang, and the umbrella gang in question satisfies the primary activities and predicate offense requirements, it is not necessary to establish any connection between subsets of the umbrella gang. ( People v. Pettie, supra , 16 Cal.App.5th at pp. 49–50, 224 Cal.Rptr.3d 160.)
Similarly, as Prunty itself explains, "when a defendant commits a crime to benefit a particular subset, and the prosecution can show that the subset in question satisfies the primary activities and predicate offense requirements, there will be no need to link together the activities of various alleged cliques ; nor is there likely to be uncertainty about what the relevant ‘criminal street gang’ is. Indeed, [Supreme Court] cases suggest that many gang-related prosecutions involve the conduct of discrete criminal street gangs and do not turn on the relationship between alleged gang subsets. [Citations.]" ( Prunty, supra , 62 Cal.4th at p. 80, 192 Cal.Rptr.3d 309, 355 P.3d 480, italics added.)
Thus, it is clear there are multiple ways to satisfy the sameness requirement, depending on the circumstances of the case. First, the prosecution can establish that the defendant sought to benefit an umbrella or subset gang, and members of the same umbrella or subset gang also committed the requisite predicate offenses/primary activities. (See People v. Pettie, supra , 16 Cal.App.5th at pp. 49–50, 224 Cal.Rptr.3d 160 ; see also People v. Ewing (2016) 244 Cal.App.4th 359, 372–373, 197 Cal.Rptr.3d 813.) Alternatively, the prosecution can introduce evidence the defendant sought to benefit an umbrella gang, plus evidence that another gang/subset committed the predicate offenses/primary activities, plus evidence showing a sufficient associational connection between the umbrella gang and the other gang/subset. ( Prunty, supra , 62 Cal.4th at p. 82, 192 Cal.Rptr.3d 309, 355 P.3d 480.) The sameness requirement is satisfied by either approach. Meaning, if the prosecution does the former, it need not do the latter. In other words, the associational evidence described in Prunty is not required in every case.
F. Application
Here, there is no violation of the sameness requirement because there was substantial evidence that the gang whose members Carrillo acted in association with, the gang whose members committed the predicate offenses, and the gang whose primary activities were established by expert testimony is one and the same: the broader Sureño gang.
Carrillo very may well have been acting to benefit his specific subset as well. But since the sameness requirement was satisfied through the Sureño gang, it is immaterial that defendants may also have sought to benefit their respective subsets as well.
Carrillo points out that there was evidence he and Vasquez were members of different Sureño subsets. Indeed, if this was the only evidence of their gang membership, the prosecution likely would have needed to produce the associational evidence described in Prunty. However, the evidence also showed that, in addition to his membership in a subset, Carrillo was also a member of the umbrella Sureño gang.
Carrillo argues there was no evidence he was a Sureño. However, there was clear evidence Carrillo was a Sureño: Officer Barajas's expert opinion that Carrillo was a Sureño.
Carrillo goes on to suggests Officer Barajas's opinion that he was a Sureño lacked foundational evidentiary support. We disagree. Carrillo had several gang-related tattoos. While some were associated with the West Side Bakers subset, others were associated with the broader Sureño gang. Carrillo had a tattoo of three dots, which is a tattoo associated with the Sureño gang. Carrillo also had a tattoo with the letters, "KC," which is also associated with the Sureño gang. Finally, Carrillo had a tattoo of the letter "S," which stood for "South" or "Sur."
See footnote *, ante .
IV. We Accept the Attorney General's Concession that Vasquez is Entitled to Relief Under Senate Bill No. 136
In supplemental briefing, Vasquez argues he is entitled to retroactive relief under Senate Bill No. 136. (2019–2020 Reg. Sess.) The Attorney General agrees that Vasquez is entitled to the benefits of this legislation.
Because Vasquez's prior prison terms were not imposed for sexually violent offenses, the one-year prison term enhancements can no longer be applied to him under Senate Bill No. 136. (See People v. Gastelum (2020) 45 Cal.App.5th 757, 772, 259 Cal.Rptr.3d 44.) Therefore, we accept the Attorney General's concession.
DISPOSITION
The judgment is modified as to defendant Guillermo Vasquez to reflect that the three, one-year prison term enhancements imposed under former section 667.5, subdivision (b) are stricken. As so modified, the judgment as to Vasquez is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to appropriate parties and entities.
The judgment as to defendant Nicky Carrillo is affirmed.
I CONCUR:
LEVY, Acting P.J.
De SANTOS, J., Concurring and Dissenting
See footnote *, ante.