Opinion
D073712
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. MONTE MARQUES WALKER et al., Defendants and Appellants.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Monte Marques Walker. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant Robert Gene Edinbyrd. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randal D. Einhorn and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1311514) APPEALS from judgments of the Superior Court of Riverside County, Charles J. Koosed, Judge. Remanded with directions. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Monte Marques Walker. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant Robert Gene Edinbyrd. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randal D. Einhorn and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Monte Marques Walker and Robert Gene Edinbyrd of six and three counts, respectively, of premeditated and deliberate attempted murder in connection with gang-related shooting incidents. As to certain of the charged offenses, the jury returned true findings against defendants on firearm enhancements. Edinbyrd was 16 years old at the time he committed the offenses.
The defendants were convicted of other offenses as well, sentences for which were stayed under Penal Code section 654.
Defendants assert numerous claims on appeal, including claims of insufficient evidence to support their convictions, evidentiary errors, instructional errors, and sentencing errors. While the appeals were pending, the electorate passed the Public Safety and Rehabilitation Act of 2016 (Proposition 57), which prohibits prosecutors from charging juveniles with crimes directly in adult court. Edinbyrd contends, and the California Supreme Court has since held, that juvenile defendants like him whose convictions were not yet final at the time of the passage of Proposition 57 are entitled to retroactive application of the new law. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304 (Lara).) Similarly, both defendants contend they are entitled to retroactive application of a statutory amendment that became effective on January 1, 2018 (hereinafter, Senate Bill 620), which permits a trial court to strike or dismiss a firearm enhancement in the interest of justice (Pen. Code, § 12022.53, subd. (h)).
Further unspecified statutory references are to the Penal Code.
For reasons we discuss, we are unpersuaded by most of defendants' arguments on appeal. Several, however, have merit as follows: (1) Edinbyrd is entitled to the benefit of Proposition 57 and thus, a conditional reversal of his judgment and remand to the juvenile court for a transfer hearing; (2) if Edinbyrd's judgment is reinstated, then he should be afforded the opportunity to make a record of information relevant to his eventual youth offender parole hearing; (3) both defendants are entitled to a resentencing hearing for the trial court to exercise its discretion whether to strike or dismiss their firearm enhancements; and (4) conceded sentencing and administrative errors in the abstracts of judgment must be corrected. Accordingly, we remand with directions.
See People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
FACTUAL AND PROCEDURAL BACKGROUND
Defendants were charged in a single information with crimes arising out of two separate shooting incidents in September 2013. Both incidents concerned attacks on rival gang members. The first incident, which took place on September 5, involved both defendants. Edinbyrd was the alleged shooter; Walker was his accomplice. In the second incident, which took place less than two weeks later on September 17, Walker was the alleged shooter, and Edinbyrd was not present. In addition to the particular crimes arising out of each incident, both defendants were charged with having participated in a criminal street gang with knowledge that its members engage in a pattern of criminal gang activity, and that defendants willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (§ 186.22, subd. (a).)
Gang background
Walker and Edinbyrd were 20 and 16 years old, respectively, in September 2013. They were members of South Side Mafia (South, South Side, or SSM), a criminal street gang claiming portions of Moreno Valley as its territory and possessing various identifying insignia, including hand signals, tattoos, and colors. Walker was a "shot caller" in the gang, i.e., he had a significant and/or decisive influence on gang members' activities. SSM used a house in Moreno Valley (trap house) as a gathering/meeting location to collect stolen items and/or for selling drugs. In the trap house, SSM stored "hood guns," consisting of multiple loaded guns for communal use by the gang's members, identified by the following calibers: .22, .25, .380, and .45.
SSM members were expected to (1) protect each other and the gang's claimed territory; (2) "gang bang," i.e., identify their gang affiliation to members of other gangs whom they perceived as potential threats; and (3) retaliate against enemy gang members who attacked them, with greater violence. Failure to engage in this behavior was considered a sign of weakness by fellow and rival gang members, and could result in a member being physically disciplined or killed by his own gang. The gang's members often armed themselves and went out in a group to protect each other. SSM's enemies and/or rivals included the following gangs: Edgemont Criminals, Brodiaea Boys (a subset of Edgemont Criminals), NAW, and Perris Loccs.
September 5 Incident
On the evening of September 5, 2013, members of SSM gathered at the trap house. At one point, Edinbyrd wanted to go out and get food, and Walker agreed to drive him in a silver sedan with a few other SSM members. The group was headed to a nearby fast food restaurant, in the same strip of businesses as a Mexican restaurant, both of which were within SSM's claimed territory.
Meanwhile, victims K.R., I.H., and B.W. were walking to the Mexican restaurant to get food. One or more of the victims was a member of Brodiaea Boys. After picking up takeout food, the group left the restaurant and started to walk back to K.R.'s house. As they walked, B.W. saw four or five people in a silver sedan who seemed to be pointing or talking to him and his group. Indeed, Edinbyrd, who was seated in the backseat of the silver sedan, had recognized K.R.'s group as Brodiaea Boys, recalled that K.R. and his companions had beaten him up in the past, and resolved with at least Walker to follow the victims. K.R., I.H., and B.W. continued to walk.
Five or six minutes later, in a residential neighborhood, the silver sedan driven by Walker rounded a street corner, proceeded down the street the victims were walking on, and pulled over to the side, right in front of K.R., I.H., and B.W. Edinbyrd, wearing a mask and beanie, hopped out of the backseat, shouted "South," and fired six shots from a .22-caliber gun at K.R., I.H., and B.W. B.W. immediately darted away from the gun; in the process, he dropped his bag of Mexican food and lost his red Nike sandals. He safely reached the backyard of a nearby home and repeatedly told the homeowners that "someone was trying to shoot him." K.R. and I.H. were each hit once in the leg as they ran away from Edinbyrd.
Walker drove the silver sedan away from the crime scene, and Edinbyrd disposed of the .22-caliber gun by throwing it out of the car on a freeway. They returned to the trap house about 45 minutes after they had left, without having purchased any food. Walker calmly told someone at the house that "shit happened" during the outing. Edinbyrd bragged about what had happened to the trap house inhabitants. He was upset, however, because he could not find his cell phone. One or more SSM members left the trap house to look for the cell phone, but did not find it.
At the crime scene, police officers found six .22-caliber spent casings, a bullet hole in the "grille" of a parked truck, victim B.W.'s dropped bag of Mexican food and red Nike sandals, and Edinbyrd's cell phone. In a later custodial interrogation, Edinbyrd admitted he shot at K.R., I.H., and B.W. with a .22-caliber gun, but stated he was trying to "scare" the victims, not kill them.
September 17 Incident
Another shooting incident occurred on September 17, 2013. Walker's accomplice during this incident, Chad Mathes, pleaded guilty to committing two counts of attempted murder for the benefit of SSM, and agreed to testify for the prosecution. At trial, the People presented the testimony and/or statements of Mathes, SSM member Tyler Hebert, and various victims, bystanders, and officers. This evidence tended to establish that on the morning of September 17, 2013, near Edinbyrd's mother's house in Perris, Edinbyrd and a few SSM members (including Hebert and Kenneth Boone) had a confrontation with members of the NAW gang, in which NAW members challenged and taunted them. Edinbyrd and company drove to the trap house and reported the Perris confrontation to the assembled SSM members. Walker, Mathes, and Boone decided they would go to Perris and confront the NAW gang members. Walker and Mathes armed themselves with loaded .45-caliber and .380-caliber guns, respectively. Mathes drove the group in a green Honda, Walker sat in the front passenger seat, and Boone accompanied them in the backseat to provide driving directions. On the drive to Perris, Mathes and Walker discussed various scenarios that might occur, including how they were prepared to shoot their enemies if necessary.
Perris is a neighboring city to Moreno Valley.
Boone directed the group to a residential neighborhood of Perris, where they observed a black Impala on the side of a street. As Mathes drove slowly by the parked Impala, he claimed to hear a gunshot, which caused him to fire one shot at the people inside the vehicle. Simultaneously, Walker pulled his gun out of his front waistband and fired five shots out of his window at the black Impala. Victims P.C., B.O.W., and M.G., were sitting inside the Impala. The driver's side window of the Impala shattered, and victim P.C. was hit by a bullet in the face. The green Honda sped off.
Various residents called 911 after hearing the gunshots, and one woman reported to officers that she heard a male shouting "South Side" from the green Honda as it sped off. Officers found two expended .45-caliber casings on the street by the Impala, and the driver's side of the Impala was strewn with six bullet holes. Later in the evening on September 17, officers observed the green Honda parked in the garage of the trap house and multiple SSM members at the house.
Other Evidence
Corporal Maurice Daugherty was the People's investigating officer and qualified expert on gang-related issues. He testified that SSM's primary activities consisted of committing assaults, burglaries, rapes, attempted murders, and murders. He was familiar with various specific criminal offenses committed by members of SSM, evidence of which was presented for the jury's consideration. In addition to assisting the jury with understanding SSM's culture and primary activities, Daugherty opined that, based on the facts of the September 5 and 17 shootings, the crimes were committed for the benefit of SSM. He explained that the shootings earned respect for the perpetrators both in and out of the gang and instilled fear in the community, making it easier for SSM to continue its criminal activities. Convictions and Sentences
The jury convicted Walker and Edinbyrd of premeditated attempted murder in the September 5 shootings of K.R., I.H., and B.W. (§§ 664, 187, subd. (a), counts 1, 2, and 3, respectively), for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), with firearm enhancements as to Edinbyrd (§ 12022.53, subds. (c), (d) & (e)). It convicted Walker of three additional counts of premeditated attempted murder in the September 17 shootings of P.C., B.O.W., and M.G. (§§ 664, 187, subd. (a); counts 5, 6, and 7, respectively), for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), with firearm enhancements (§ 12022.53, subds. (c), (d) & (e)), as well as discharging a firearm at an occupied motor vehicle (§ 246; count 8), with a gang and firearm enhancement (§§ 186.22, subds. (b)(1)(C), (b)(1)(4)(B), 12022.53, subds. (c) & (e)). Finally, the jury found defendants guilty of actively participating in a criminal street gang (§ 186.22, subd. (a); counts 4 and 9). The court sentenced Walker and Edinbyrd to total prison terms of 115 years to life and 95 years to life, respectively.
DISCUSSION
I. Sufficient Evidence Supports Defendants' Convictions for Attempted Murder in the September 5 Incident
Edinbyrd challenges the sufficiency of evidence to support his convictions for attempted murder during the September 5 incident, specifically arguing there is insufficient evidence of his intent to kill K.R., I.H., and B.W. Edinbyrd concedes he acted with implied malice, or with a reckless disregard for human life, but contends he did not act with express malice. Walker joins in Edinbyrd's arguments and additionally asserts there is insufficient evidence he aided and abetted Edinbyrd in the attempted murders.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)
" 'The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citation.]' [Citation.] In contrast, '[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citations.] Hence, in order for defendant to be convicted of the attempted murder of the [victim], the prosecution had to prove he acted with specific intent to kill that victim." (Smith, supra, 37 Cal.4th at p. 739.)
Intent to kill and express malice are, for purposes of this discussion, essentially the same mental state. (Smith, supra, 37 Cal.4th at p. 739.) Express malice requires a showing that the assailant either desires the victim's death or knows to a substantial certainty that it will occur. (Ibid.) Intent to kill or express malice may in many cases be inferred from the defendant's acts and the circumstances of the crime. (Id. at p. 741.) " 'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." ' " (Ibid.)
In this case, sufficient evidence supports Edinbyrd's intent to kill K.R., I.H., and B.W., notwithstanding Edinbyrd's minimizing statement to a police officer that he was shooting to "scare" the victims. The jury was free to discredit his self-serving statement. The People established that Edinbyrd possessed a strong motive to kill K.R., I.H., and B.W.—he perceived them to be enemy gang members, the victims had beaten him up before, and a retaliatory shooting was expected and encouraged by his gang. The physical evidence shows that Edinbyrd fired six shots at the three victims at close range, well above ground level, and struck two of them, supporting the inference he intended to kill all three. (Cf. People v. Perez (2010) 50 Cal.4th 222, 230-231 [absent other evidence, firing one indiscriminate shot at a group of eight people does not support an inference that the shooter intended to kill all eight people].) Edinbyrd concealed his identity and ensured the incriminating gun would not be found. The jury could reasonably infer Edinbyrd intended to kill the victims.
Walker argues there is insufficient evidence he knew of Edinbyrd's intent to kill and thus, the evidence only supports his intent to aid and abet an assault on the victims. We conclude sufficient evidence supports Walker's convictions for the attempted murders of K.R., I.H., and B.W. based on aiding and abetting. " '[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296.)
Here, the relevant evidence shows at least the following: Walker was a "shot caller" in the gang, i.e., he determined the gang's criminal activities, he knew that SSM members (including himself) routinely carried loaded firearms during outings, and he was driving the silver sedan on September 5. The shootings did not occur spontaneously; at least several minutes passed between the time of Edinbyrd's identification of the Brodiaea Boys who had previously beaten him up and the time when the victims were ambushed. Walker tracked the victims and drove Edinbyrd right up to them. It could not have escaped Walker's notice that Edinbyrd was wearing a mask and holding a gun when he exited the silver sedan. Based on these facts, the jury could deduce that Walker knew Edinbyrd's intent and agreed with, or even directed, the commission of the offenses. Moreover, in the aftermath of the shootings, Walker aided Edinbyrd in disposing of the gun and expressed no surprise about the shootings to the SSM members at the trap house. The jury could reasonably infer Walker had prior knowledge of Edinbyrd's intent to kill. Under the circumstances, sufficient evidence supported Walker's convictions based on the September 5 incident.
II. Defendants Received a Fair Trial on Gang-related Issues
Edinbyrd argues that several errors on gang-related issues deprived him of a fair trial and requires reversal of his conviction on the gang participation crime and true findings on various gang enhancements. Walker joins in Edinbyrd's arguments and contends reversal is required as to him for the same reasons. We conclude defendants have not established reversible error on gang-related issues.
A. Additional Background
In the same case as defendants, the district attorney suspected that SSM member Matthew Kaggwa was involved in the September 5 incident and charged him accordingly. Prior to defendants' trial, Kaggwa pleaded guilty to one count of assault with a deadly weapon other than a firearm, with a gang enhancement. (§§ 245, subd. (a)(1), 186.22, subd. (b).)
Defendant who commits an assault with a firearm likewise commits an assault with a deadly weapon under section 245, subdivision (a)(1). (See People v. Milward (2011) 52 Cal.4th 580, 587-588.)
During defendants' trial, the People sought to introduce evidence of Kaggwa's offense as a predicate offense to establish SSM as a " 'criminal street gang' " (§ 186.22, subd. (f)) whose members were engaging in a " 'pattern of criminal gang activity' " (see id., subds. (e) & (j)). The prosecutor planned for gang expert and investigating officer Corporal Daugherty to relay to the jury that Kaggwa's convicted offense was one of the bases for the corporal's opinion that SSM was a criminal street gang and that the charged offenses were committed for the benefit of the gang.
Kaggwa refused to be sworn or testify as a live witness in defendants' trial. Over defense counsel's objections, the trial court ruled the prosecutor could introduce certified court documents showing Kaggwa's conviction by guilty plea, but that no "testimonial" evidence would be admitted, such as anything Corporal Daugherty "heard" Kaggwa say or plea to in a court proceeding. Subsequently, the court admitted Kaggwa's "certified conviction packet" (Exh. 11), which included his plea form and abstract of judgment showing he was convicted of assault with a deadly weapon, with a gang enhancement. Exhibit 11 did not contain the factual basis for Kaggwa's guilty plea.
Defense counsel variously asserted objections on grounds of hearsay, confrontation clause violations (see Crawford v. Washington (2004) 541 U.S. 36 (Crawford)), and undue prejudice under Evidence Code section 352.
On direct examination, Daugherty reviewed Exhibit 11, stated he was familiar with Kaggwa's convicted offense, and testified to a few aspects of the offense based on his independent investigation and observations, sufficient to support his opinion that Kaggwa was an SSM member and committed the assault for the benefit of SSM. Daugherty also opined that Kaggwa's offense, along with three other past offenses committed by different SSM members, established SSM as a criminal street gang that was engaging in a pattern of criminal gang activity in September 2013.
B. The Trial Court Properly Admitted Evidence of Kaggwa's Offense as a Predicate Offense
Defendants argue the court improperly admitted evidence of Kaggwa's offense, conviction, and/or guilty plea as a predicate offense. Their primary objection is that Kaggwa committed the "same" offense as defendants, i.e., his conviction arose from the same September 5 incident that gave rise to defendants' charged offenses. We are not persuaded by their arguments.
The California Street Terrorism Enforcement and Prevention Act (the STEP Act, § 186.20 et seq.) criminalizes active participation in a criminal street gang (§ 186.22, subd. (a)) and imposes enhanced penalties for felony offenses committed "for the benefit of, at the direction of, or in association with any criminal street gang" (id., subd. (b)(1)). "The act defines 'criminal street gang' as any ongoing association that consists of three or more persons, that has a common name or common identifying sign or symbol, that has as one of its 'primary activities' the commission of certain specified criminal offenses, and that engages through its members in a 'pattern of criminal gang activity.' ([§ 186.22], subd. (f), italics added.) A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' specified criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' ([§ 186.22], subd. (e).)" (People v. Loeun (1997) 17 Cal.4th 1, 4 (Loeun).)
The STEP Act "allows the prosecution the choice of proving the requisite 'pattern of criminal gang activity' by evidence of 'two or more' predicate offenses committed 'on separate occasions' or by evidence of such offenses committed 'by two or more persons' on the same occasion. Therefore, when the prosecution chooses to establish the requisite 'pattern' by evidence of 'two or more' predicate offenses committed on a single occasion by 'two or more persons,' it can . . . [introduce] evidence of the defendant's commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member." (Loeun, supra, 17 Cal.4th at p. 10.)
The People may not, however, rely solely on the defendant's commission of a charged offense and a fellow gang member's aiding and abetting in that charged offense, to prove a pattern of criminal gang activity. (People v. Zermeno (1999) 21 Cal.4th 927, 932-933 (Zermeno).) In Zermeno, the court discussed how when the evidence only showed that the defendant hit the victim (with a beer bottle) and a fellow gang member aided the defendant in committing that offense, this "was a single offense" and the People had not sufficiently established a "pattern" of gang activity. (Id. at pp. 929, 932.)
Applying the foregoing principles, the trial court did not err in admitting evidence of Kaggwa's offense as a predicate offense. Contrary to defendants' contention, Zermeno is inapplicable because the People did not rely on any of the charged offenses as predicate offenses. Instead, to prove the requisite "pattern of criminal gang activity," the People introduced evidence of distinct offenses committed by different SSM members on four separate occasions, including (1) an assault with a deadly weapon (§ 245, subd. (a)(1)) committed by Shawn Childs in September 2011, (2) an assault by means of force (§ 245, subd. (a)(4)) committed by Richard Walker in October 2012, (3) a battery with serious bodily injury (§ 243, subd. (d)) committed by Robert Frushon in November 2012, and (4) the assault with a deadly weapon (§ 245, subd. (a)(1)) committed by Kaggwa in September 2013.
Defendants argue it was unfair, generally and under Evidence Code section 352, for the jury to learn Kaggwa pleaded guilty to the "very same crime" as was charged against defendants because the jury was then likely to convict defendants based on their "association" with Kaggwa. However, the jury did not know Kaggwa had faced the same charges as defendants nor did he plead guilty to the same crime of which they were convicted; he pleaded guilty to a single count of assault with a deadly weapon—not three counts of attempted murder. The jury received limited evidence regarding the underlying facts of Kaggwa's offense, hearing from Corporal Daugherty that the assault occurred on September 5, 2013, in a specified area of Moreno Valley, and involved the use of a .22-caliber firearm against Edgemont Criminals. Even had the jurors noted the commonalities between the charged crimes and the offense to which Kaggwa pled guilty, they lacked many details regarding Kaggwa's offense and would not necessarily conclude he was involved in the same shooting.
Additionally, the California Supreme Court has explicitly held that "[e]vidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities. Both past and present offenses have some tendency in reason to show the group's primary activity (see Evid. Code, § 210) and therefore fall within the general rule of admissibility (id., § 351)." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith), italics added.) Evidence of Kaggwa's "present" offense was clearly relevant to the issues in this case and therefore, generally admissible.
Nor can we say the trial court abused its discretion in finding the evidence was not unduly prejudicial. " 'Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt.' " (People v. Tran (2011) 51 Cal.4th 1040, 1048.) Evidence that is unduly prejudicial is evidence that invites the fact finder to prejudge a person or cause on the basis of extraneous factors. (Ibid., citing People v. Doolin (2009) 45 Cal.4th 390, 439.) The statute "requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' " (Tran, at p. 1047, quoting People v. Waidla (2000) 22 Cal.4th 690, 724.)
Here, evidence of Kaggwa's involvement in the September 5 incident was highly probative on issues relevant to the charge of defendants' active participation in a criminal street gang and gang benefit enhancements, providing direct evidence of a predicate offense, that defendants were furthering a fellow gang member's commission of felonious criminal conduct, and that defendants knew SSM was engaged in a pattern of criminal gang activity. Kaggwa's offense was proved in the same manner as the other three predicate offenses—by certified court documents. Thus, the jury was not presented with particularly inflammatory testimony. Even assuming the jury deduced that Kaggwa's offense occurred concurrently with the offenses charged against Edinbyrd and Walker, the jury would not likely have convicted each defendant of three counts of attempted murder based solely or even primarily on Kaggwa's admission that he committed an assault on the same day. Instead, independent of Kaggwa's plea, more than substantial evidence established Edinbyrd and Walker's involvement in the September 5 shooting of three victims, including but not limited to Edinbyrd's admission to being the shooter, his cell phone left at the crime scene, and multiple witnesses' testimony that Walker was the driver.
Lastly, defendants argue that evidence of Kaggwa's guilty plea violated their federal constitutional confrontation rights, as articulated in Crawford, supra, 541 U.S. 36. In Crawford, the court held that a declarant's "testimonial" out-of-court statements are inadmissible unless the declarant is unavailable and defendants had a prior opportunity to cross-examine him or her. (Id. at p. 68.) The court provided no overarching definition of testimonial, except that it includes ex parte in-court testimony or its functional equivalent, and excludes "business records." (Id. at pp. 56, 68.) In applying Crawford, courts have found that a declarant's statements regarding the factual basis for a guilty plea are testimonial (e.g., People v. Hill (2011) 191 Cal.App.4th 1104, 1136-1137) but documentary records of a prior conviction, which were principally prepared for administrative purposes, are not (e.g., People v. Moreno (2011) 192 Cal.App.4th 692, 710-711 [certified priors packet]; People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [same]).
We conclude defendants have failed to establish a Crawford violation. The trial court admitted Kaggwa's certified conviction packet, which, like in Moreno and Taulton, appears to have been prepared primarily to document the fact that Kaggwa was convicted of a gang-related offense based on his agreement to plead guilty. The occurrence of these events was not "testimonial" within the meaning of Crawford. (See Evid. Code, § 452.5, subd. (b) [qualifying court records may prove not only the fact of conviction, but also that the offense reflected in the record occurred]; People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1462.) Moreover, the trial court prohibited the introduction of any testimonial statements Kaggwa made in a court proceeding, which caused the parties to redact the factual statements/basis for Kaggwa's guilty plea. Defendants were free to confront Corporal Daugherty on his gang-related opinions and the underlying bases, e.g., his personal investigation of and knowledge regarding Kaggwa's offense. Defendants have failed to establish a violation of their confrontation rights.
In summary, the trial court did not abuse its discretion in admitting evidence of Kaggwa's offense, and defendants suffered no constitutional violation.
C. Evidence of South Side Mafia's Primary Activities Was Sufficient
Defendants argue that evidence of South Side Mafia's "primary activities" was insufficient to support their gang participation crime and gang benefit enhancements. "The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. . . . [¶] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (Sengpadychith, supra, 26 Cal.4th at pp. 323-324.) Also sufficient might be expert testimony based on conversations with the gang's members, the results of personal investigations, and information from police officers and other law enforcement agencies. (Id. at p. 324, citing People v. Gardeley (1996) 14 Cal.4th 605, 620.)
There is substantial evidence that SSM's primary activities was the commission of one or more of the statutorily enumerated crimes. (See § 186.22, subds. (e) & (f).) Based on information he had gathered from personal investigations, interactions with SSM's members, and other police officers over many years, Corporal Daugherty testified that SSM's primary activities consisted of "[a]ssaults . . ., burglaries, rape, attempted murder, and murder." Additionally, evidence regarding the predicate and charged offenses showed that SSM's members were consistently and repeatedly committing one or more of the statutorily enumerated crimes, namely, assaults with a deadly weapon or by force, and unlawful homicides. (See § 186.22, subd. (e)(1), (3).)
D. The Court Did Not Provide Undue Assistance to the Prosecutor
Defendants contend the trial court provided undue assistance to the prosecutor on evidentiary issues related to the gang-related charges and enhancements. For example, in response to defense counsel's objection to the admission of Kaggwa's offense as violative of Crawford (see ante, II.B), the court ruled that testimonial statements were not admissible and suggested the gang expert could rely on certified court documents. During other chambers conferences convened after defense counsel's objections to evidence, the court engaged in a colloquy with the prosecutor regarding how further objections might be avoided.
Based on our review of the record, we conclude the court did not provide undue or unfair assistance to the prosecutor, but was acting within its power to ensure an orderly, expeditious trial after sustaining defendants' objections. The court was acting as a neutral arbiter by discussing the law with all counsel outside the presence of the jury, thus ensuring that only relevant, admissible evidence would be introduced.
Defendants further complain the court abused its discretion in permitting the People, after ostensibly resting their case, to reopen their case and present further evidence on two issues. Specifically, Corporal Daugherty provided further testimony about (1) SSM's primary activities, and (2) Hebert's prior inconsistent statements regarding the September 17 incident, which corroborated accomplice Mathes's testimony. Defendants do not assert the People deliberately failed to introduce this evidence earlier in the trial to gain an advantage or the evidence was surprising in any way; rather, our review of the record leads us to conclude that the earlier omission was inadvertent. The court did not abuse its discretion in permitting the People to reopen their case. (See People v. Riley (2010) 185 Cal.App.4th 754, 766 [trial court has discretion under sections 1093 and 1094 to permit either party to reopen its case for good cause and when justice so requires, such as when prosecution inadvertently fails to present evidence in its possession].)
E. The Omitted Definition from CALCRIM No. 1401 Regarding "Pattern of Criminal Gang Activity" Was Harmless
The jury was instructed pursuant to CALCRIM No. 1400 regarding the crime of actively participating in a criminal street gang. (§ 186.22, subd. (a).) It was further instructed pursuant to CALCRIM No. 1401 regarding the enhancement applicable to crimes committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Both instructions refer to the People's burden of proving a "criminal street gang," which, by definition, has members that engage in or have engaged in a "pattern of criminal gang activity." Although the court instructed the jury on the elements of a "criminal street gang," for unknown reasons it omitted a definition of "pattern of criminal gang activity." Defendants contend this omission amounted to prejudicial error.
The People respond that the omitted definition was largely contained in CALCRIM No. 1400 and that the failure to include any additional language was harmless beyond a reasonable doubt. We agree with the People's contention.
To establish a gang participation crime or a gang benefit enhancement, the People must prove the existence of a criminal street gang. (CALCRIM Nos. 1400, 1401.) The legal definition of a "criminal street gang" includes the element that the gang's "members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity." (CALCRIM No. 1400, italics added.) The jury should have been (but was not) instructed that a "pattern of criminal gang activity," in the context of this case, meant the (1) commission, attempted commission, or conviction of two or more assaults with a deadly weapon or by means of force likely to produce great bodily injury (§ 245), or murders (§ 187); (2) at least one of the crimes was committed after September 26, 1988; (3) the most recent crime occurred within three years of one of the earlier crimes; and (4) the crimes were committed on separate occasions or were personally committed by two or more persons. (CALCRIM No. 1400; § 186.22, subd. (e).)
We conclude that omission of the definition was harmless error. Elsewhere in CALCRIM No. 1400 the court instructed the jury that a pattern of criminal gang activity consisted of "two or more crimes" committed by "a member of the alleged criminal street gang" and that a criminal street gang was defined to be engaged in the "commission of assault[s] and/or attempted murders." The only completely missing portion of the "pattern" definition was that the predicate offenses had to be committed within the statutorily specified time frame—after September 26, 1988, with the most recent predicate offense occurring within three years of an earlier predicate offense. This omission could not have possibly affected the jury's verdict because the four predicate offenses offered by the People occurred between 2011 and 2013. Further, the four predicate offenses were undoubtedly committed on separate occasions and by two or more gang members. On this record, the People overwhelmingly established the requisite "pattern of criminal gang activity." Therefore, under any standard of review, the instructional error was harmless. (See Sengpadychith, supra, 26 Cal.4th at p. 326 [discussing harmless error standard that governs a trial court's failure to instruct the jury on an element of gang enhancement provision].)
Defendants assert that Robert Frushon's plea to committing battery with serious bodily injury (§ 243, subd. (d)) was not a proper predicate offense because it is neither a statutorily enumerated offense (see § 186.22, subd. (e)) nor the equivalent of an assault by means of force likely to produce great bodily injury (§ 245, subd. (d)). However, Frushon's certified conviction packet shows that he did, in fact, commit an assault by force likely to produce great bodily injury. Further, as defendants acknowledge, the element of "serious bodily injury" required for felony battery is essentially equivalent to " 'great bodily injury' " for sentencing enhancement purposes (see People v. Moore (1992) 10 Cal.App.4th 1868, 1871). In any event, even if we discount Frushon's offense, the People still proved at least three qualifying predicate offenses, not including any of the charged offenses.
There was no cumulative effect of errors on gang-related issues, and defendants accordingly received a fair trial on those issues.
III. The Court Did Not Err in Admitting Evidence of Walker's Prior Uncharged Act
Defendants argue the court erred in admitting evidence of a prior uncharged act by Walker and the error deprived defendants of a fair trial. We conclude defendants' argument lacks merit.
A. Additional Background
During trial, the prosecutor sought to introduce the testimony of Jeron Hall, Walker's long-time associate and a percipient witness to certain of the September 5 events. Hall drove the silver sedan used in the September 5 shooting to the trap house prior to the shooting. The prosecutor informed the court and defense counsel that she would also be asking Hall about Walker's "shot caller" status in SSM, including a 2012 incident in which Hall observed Walker order another SSM member to kill a rival gang member named Lamar (Lamar shooting). Defense counsel objected to the uncharged act evidence under Evidence Code sections 1101 and 352. The court held a hearing and determined that Hall's testimony would be admissible. The judge discussed how the evidence was "highly probative" on various issues, including whether Walker was a gang member, whether he participated in criminal gang activity, and his motive and intent on September 5.
In the jury's presence, Hall testified he had been friends with Walker for many years before Walker became an SSM member. Hall believed Walker was a high-ranking member of SSM by 2013, or a "shot caller," and described the Lamar shooting as an example of Walker's ability to "call certain shots that other people can't." The incident occurred during a party at Hall's house attended by many SSM members. Lamar arrived at the party drunk and began gang "banging" on behalf of rival gang Perris Loccs. Eventually, an SSM member named Ragland shot Lamar outside the house several times, which Hall witnessed through his bedroom window. Then, in the living room of his home, Hall saw Walker make a hand gesture in the shape of a gun with a trigger to fellow gang members, which Hall interpreted as an order or signal that Ragland should "finish" Lamar. Hall went back to his bedroom window and saw more shots fired at Lamar. Hall did not know if Ragland could see Walker's hand gesture or whether Ragland acted in response to the signal.
The jury was instructed that it could consider evidence of Walker's prior uncharged act for the "limited purpose" of deciding whether Walker had acted with the intent to kill or had a motive to commit the charged offenses, and only if the People proved the occurrence of the uncharged act by a preponderance of the evidence.
B. Analysis
Evidence of an uncharged act is admissible if relevant to proving motive, intent, and absence of mistake. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (Ewoldt, at p. 402.) The recurrence of a similar result tends, with each instance, to " 'negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' " (Ibid.) The probative value of the evidence of the uncharged act must outweigh the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or misleading the jury. (Evid. Code, § 352.) We review a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)
Applying these principles, we conclude there was no abuse of discretion and no federal constitutional violation in the admission of the uncharged act evidence. As the trial court found, evidence regarding Walker's conduct during the Lamar shooting was directly relevant to his gang-related motivations, that is, it tended to show he was "motivated by . . . animosity toward rival gangs" and would "resort to violent means to express that animosity." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1059; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210-1212 [evidence of defendant's uncharged prior involvement in a gang-related drive-by shooting tended to show his motive and intent in the charged offense].) The uncharged and charged shootings, which involved retaliations against perceived challenges or acts of disrespect by rival gang members, were sufficiently similar to infer Walker's intent and motive were the same on all occasions. The same holds true even though the Lamar shooting involved a Perris Locc (rather than a Brodiaea Boy or NAW).
Defendants assert that Hall's testimony was speculative and highly prejudicial because it showed Walker as a cold-blooded killer. However, the jury was instructed to not consider the uncharged act unless the prosecution proved its occurrence by a preponderance of the evidence. Hall testified he had known Walker and other SSM members for years, the incident occurred at Hall's party and in his home, and he explained what he saw and why he believed Walker had given an order to "finish" Lamar. His testimony was sufficiently reliable for the jury's consideration. Furthermore, even if Ragland (the shooter) did not actually shoot Lamar in response to Walker's order, the jury could still consider the fact that Walker had ostensibly given such an order or signal to other SSM gang members when he felt his gang was being threatened by a rival gang.
Moreover, we are not convinced the brief incident described by Hall was unduly prejudicial under Evidence Code section 352. As we have discussed, the evidence was probative of whether Walker had a gang-related motive and intent to kill in the charged crimes. Hall explained Walker's hand gesture during the Lamar shooting in the context of why he believed Walker was a "shot caller." Hall's "testimony describing defendant's uncharged act[] . . . was no stronger and no more inflammatory than . . . testimony concerning the charged offenses." (Ewoldt, supra, 7 Cal.4th at p. 405.) Independent of the uncharged act, the jury learned how Walker participated in shooting three victims (belonging to one rival gang) on September 5, as well as directly shot at three other victims (belonging to a different rival gang) on September 17, which, in and of itself, displayed his cruel indifference to human life. It was not likely the jury would disregard the court's "limited purpose" instruction regarding Walker's conduct during the Lamar shooting and convict him due to irrational emotion. We discern no abuse of discretion by the trial court.
IV. Other Claimed Instructional Errors
Defendants argue the court committed two other instructional errors that require reversal of their convictions. We conclude there was no reversible error.
A. Kaggwa's Refusal to Testify
As noted in section II.A, the People called SSM member Kaggwa as a witness, but he refused to be sworn and to testify—conduct that was observed by the jury. Later, outside of the jury's presence, the court ruled Kaggwa had no legitimate right not to testify about the September 5 incident because he had already been convicted for his involvement in that incident. Accordingly, he was found in contempt of court. The jury learned from Corporal Daugherty as part of his expert testimony (1) about various aspects of gang culture and conduct, (2) that Kaggwa was an SSM member, and (3) that he had been convicted of committing an assault on September 5 for the benefit of SSM.
During the rebuttal portion of her closing argument, the prosecutor argued as follows with respect to Kaggwa's refusal to testify:
"[Y]ou heard about this Matthew Kaggwa and you got to see him come in here and refuse to testify. He came in here before you and refused to swear in. He was a material witness in this case, and he had no right to refuse to testify. He was convicted of that shooting on September 5th, that it was for the benefit of the South Side Mafia and he didn't want to answer questions about that. [¶] The law says you're entitled to draw a negative inference when such a witness refuses to [provide] relevant testimony. You can use his refusal as evidence that gang members act as a unit that cause the gang to protect [its] members. So that is why you got to see Mr. Kaggwa refuse to testify."
Walker's counsel filed a form that marked CALCRIM No. "320" as a requested jury instruction. There was no other discussion by the court or counsel regarding the instruction, including what the actual instruction provided to the jury should say. CALCRIM No. 320 contains two alternative instructions relating to the exercise of a privilege by a witness (Alternatives A and B); the bench notes instruct the court to "Give Alternative A when the court has sustained the exercise of privilege" or to "Give Alternative B when the witness's exercise of privilege is invalid." The court apparently selected Alternative B relating to an invalid exercise of privilege and instructed the jury as follows: "Matthew Kaggwa did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations." Defense counsel neither objected to the court's instruction nor requested clarification or amplification of it.
The People did not request CALCRIM No. 320. The record does not indicate any other discussion by the court or counsel regarding the court's given instruction.
On appeal, Walker argues the court's instruction improperly invited the jury to draw speculative evidentiary inferences. Preliminarily, we conclude his argument is forfeited. CALCRIM No. 320, which contains points of law relating to both a valid and invalid exercise of a privilege by a witness, was responsive to Kaggwa's conduct in the courtroom. "Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Andrews (1989) 49 Cal.3d 200, 218.) Walker's trial counsel requested CALCRIM No. 320, and did not object or ask for clarification when the court instructed the jury with the language of Alternative B. Alternative B was the logical instruction given that the court had ruled Kaggwa had no right to refuse to testify.
On the merits, the court's instruction correctly recited a broad legal principle, but was arguably too general or incomplete as applied. CALCRIM No. 320 is based on the following principles: "When a 'court determines a witness has a valid Fifth Amendment right not to testify, it is . . . improper to require him [or her] to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. . . . But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.' " (People v. Morgain (2009) 177 Cal.App.4th 454, 466 (Morgain); see People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez).)
Applying Morgain and Lopez, the court in People v. Sisneros (2009) 174 Cal.App.4th 142 (Sisneros) found the jury could permissibly draw a limited evidentiary inference from a gang associate's refusal to be sworn or testify in the defendant's trial when she had no legitimate right to refuse to testify. (Id. at pp. 151-152.) The court permitted the jury to consider the associate's refusal to testify for the limited purpose of supporting an expert's opinion regarding gang retribution, where the expert was familiar with the associate and had a credible basis for opining that the associate was refusing to testify for fear of gang retribution. (Id. at pp. 152-153.)
In this case, unlike Sisneros, the trial court arguably abused its discretion in allowing the jury to consider Kaggwa's refusal to testify for an unspecified purpose, creating a risk the jury would draw an unsupported evidentiary inference. " '[B]efore a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.' " (People v. Bell (2004) 118 Cal.App.4th 249, 255 (Bell) [jury left to speculate on what it was supposed to infer from defense counsel's delayed disclosures during discovery].) Of course, defense counsel did not request clarification of the court's instruction, which otherwise correctly stated a broad legal principle. (See Morgain, supra, 177 Cal.App.4th at p. 466; Lopez, supra, 71 Cal.App.4th at pp. 1555-1556; CALCRIM No. 320.)
Assuming the issue is properly before us and the court's instruction was erroneous, we conclude any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Bell, supra, 118 Cal.App.4th at p. 257 [applying Watson standard].) It is undisputed Kaggwa did not have a right to refuse to testify. The prosecutor urged the jury to consider Kaggwa's refusal to testify for only one specified purpose—that SSM members act as a unit and protect each other. Kaggwa's courtroom conduct could be considered for the purpose of supporting the gang expert's opinion regarding coordinated gang conduct. (See Sisneros, supra, 174 Cal.App.4th at p. 152; Lopez, supra, 71 Cal.App.4th at pp. 1555-1556.) The prosecutor did not argue that Kaggwa's refusal to testify established any particular element of a charged offense. Rather, defendants' guilt was established by other evidence, including Edinbyrd's admissions and multiple witnesses' testimony that Walker was the driver on September 5. Likewise, the gang expert's opinions were amply supported by other witnesses and documents. Accordingly, any instructional error was harmless.
B. Hebert's Testimony
Walker argues the trial court erred by failing to give accomplice instructions sua sponte with respect to Tyler Hebert. Walker contends the evidence was sufficient for the jury to have found that Hebert was an accomplice and thus a series of instructions relating to accomplices—e.g., to view accomplice testimony with distrust—were required.
Section 1111, which requires corroboration of accomplice testimony with " 'such other evidence as shall tend to connect the defendant with the commission of the offense,' defines an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' 'To be so chargeable, the witness must be a principal under section 31. That section defines principals as "[a]ll persons concerned in the commission of a crime, whether . . . they directly commit the act constituting the offense, or aid and abet in its commission . . . ." (§ 31.) An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense. Like a conspirator, an aider and abettor is guilty not only of the offense he intended to encourage or facilitate, but also of any reasonably foreseeable offense committed by the perpetrator he aids and abets.' " (People v. Richardson (2008) 43 Cal.4th 959, 1023.) " ' "[W]henever the testimony given upon the trial is sufficient to warrant the conclusion upon the part of the jury that a witness implicating a defendant was an accomplice," ' the trial court must instruct the jury, sua sponte, to determine whether the witness was an accomplice." (People v. Zapien (1993) 4 Cal.4th 929, 982.)
Evidence at trial showed the following: Hebert was among the SSM members who, on the morning of September 17, were confronted by several NAW gang members near Edinbyrd's mother's house in Perris. Hebert was also at the trap house when Mathes, Walker, and Boone left in the green Honda with guns to confront the NAW gang members. Hebert saw the group return to the trap house in the green Honda and was ordered to clean broken glass out of the backseat, which he did. On September 26, nine days after the shooting, Hebert was arrested for possessing the .380-caliber handgun used in the shooting. Hebert told an officer that Walker had given him the gun that very day of his arrest as protection because Hebert was going to visit his girlfriend in enemy gang territory. Hebert disclaimed having any other involvement in or knowledge regarding the September 17 incident.
At trial, the People adduced the testimony and statements of Hebert regarding the September 17 incident to corroborate Mathes's incriminating testimony and as substantive evidence of Walker's guilt. The court did not instruct the jury to determine whether Hebert was an accomplice on September 17 or that he was an accomplice.
We conclude Hebert was not an accomplice as a matter of law and likewise, the evidence was insufficient to submit the issue to the jury. As the People note, during the trial no one considered Hebert as an accomplice; Walker's counsel even relied on certain of Hebert's statements as proof of Walker's innocence. The law is well established that mere "presence at the scene of a crime or failure to prevent its commission [is not] sufficient to establish aiding and abetting." (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) There is no evidence Hebert acted "with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense." (People v. Williams (2008) 43 Cal.4th 584, 636.) Although Hebert knew Walker, Mathes, and Boone left the trap house with guns to confront the NAW gang, it cannot be reasonably inferred that Hebert, by merely remaining at the trap house, provided aid to the perpetrators or intended to encourage them in committing a crime.
Walker asserts that Hebert's possession of a gun used in the shooting, nine days after the shooting, shows he was an accomplice. To the contrary, the only evidence in the record shows he was given the gun on the day of his arrest for his own protection. The record is devoid of evidence that Hebert possessed the gun for any reason connected to the September 17 shooting. His possession of the gun nine days after-the-fact did not subject him to prosecution for the "identical" offenses as Walker, i.e., attempted murder. Thus, the court had no sua sponte duty to instruct the jury that Hebert was an accomplice or to submit the issue to the jury.
C. Defendants Were Not Deprived of a Fair Trial
We have considered defendants' claim that their convictions must be reversed due to cumulative trial errors that allegedly deprived them of a fair trial. (See Chambers v. Mississippi (1973) 410 U.S. 284, 298, 302-303 [failure to allow the accused to cross-examine a material witness and present witnesses in his own defense denied defendant a fair trial and due process].) For the same reasons we have already discussed, we conclude the court's omitting an explicit definition of "pattern of criminal gang activity" and permitting the jury to draw a negative inference from Kaggwa's refusal to testify did not rise to the level of depriving defendants of a fundamentally fair trial. Thus, defendants' claim fails.
V. Edinbyrd's Sentence Is Not Disproportionate to His Crimes
Edinbyrd was sentenced to consecutive 15-year-to-life terms for each of three counts of premeditated attempted murder and consecutive 25-year-to-life terms for firearm enhancements (§ 12022.53, subds. (c), (d) & (e)) on counts 1 and 2, totaling a 95-year-to-life prison sentence. Edinbyrd challenges the constitutionality of his imposed sentence, contending it is disproportionate to his crimes. We reject his constitutional challenge.
A. Analysis under California Constitution
Article I, section 17 of the California Constitution prohibits infliction of "[c]ruel or unusual punishment." A sentence may violate this prohibition if " 'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' " (People v. Dillon (1983) 34 Cal.3d 441, 478.) A legislatively prescribed punishment must be upheld unless its unconstitutionality " ' "clearly, positively and unmistakably appears." ' " (In re Lynch (1972) 8 Cal.3d 410, 415 (Lynch) [concluding that an indeterminate life sentence in state prison for a second offense of indecent exposure is unconstitutional].)
Our Supreme Court has promulgated a three-pronged test to determine whether a sentence is disproportionate to the offense for which it is imposed. First, we examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Lynch, supra, 8 Cal.3d at p. 425.) Second, we compare the punishment imposed with punishments prescribed by California law for more serious offenses. (Id. at pp. 426-427.) Third, we compare the punishment imposed with punishments prescribed by other jurisdictions for the same offense. (Id. at pp. 427-429.) Defendants bear a "considerable burden" to show their sentences are disproportionate to their level of culpability. (People v. Wingo (1975) 14 Cal.3d 169, 174.) Edinbyrd makes arguments regarding the first two Lynch prongs.
Regarding the first Lynch prong, Edinbyrd principally argues he was young when he committed the crimes, susceptible to negative influences, and there were no "lasting" injuries. He concedes his commission of three attempted murders, for the benefit of a criminal street gang, presented "a grave risk of danger" to society, compounded by the fact that he repeatedly discharged a firearm in a residential neighborhood at the fleeing victims. Indeed, nontargeted residents could have easily been hit and killed. Further, gang-related crimes beget more gang-related crimes. Edinbyrd was highly culpable in that he identified the victims and made a calculated decision to retaliate—tracking, ambushing, and directly shooting at them. Based on our review of the record, the victims fortuitously avoided mortal wounds. Moreover, when Edinbyrd committed the shootings, he was already firmly engaged in a criminal gang lifestyle, having been a gang member since he was 12 and committed multiple burglary offenses. Edinbyrd poses a great risk to society, and the seriousness of the crimes he committed is not outweighed by his relative youth. (See People v. Em (2009) 171 Cal.App.4th 964, 973; People v. Gonzales (2001) 87 Cal.App.4th 1, 17 (Gonzales).)
Regarding the second Lynch prong, Edinbyrd acknowledges his sentence is less severe than the 150-year-to-life term that would have been imposed under California law for three premeditated murders with a firearm, which are more serious offenses, but argues there is no practical difference between his 95-year-to-life sentence and a 150-year-to-life sentence. His sentence is undoubtedly lengthy. Nonetheless, we conclude it is not so disproportionate to his offenses as to offend fundamental notions of human dignity. As a youth offender, Edinbyrd will have an opportunity for parole during his 25th year of incarceration (see post; § 3051), and thus, a " 'realistic opportunity to obtain release' from prison during his . . . expected lifetime." (People v. Caballero (2012) 55 Cal.4th 262, 268.) We must greatly defer to the Legislature's determination that the " 'use of firearms in the commission of the designated felonies is such a danger that, "substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime." ' " (Gonzales, supra, 87 Cal.App.4th at p. 18.) We consider as well Edinbyrd's high degree of culpability and his deliberate, premeditated acts. His sentence does not constitute cruel and unusual punishment.
B. Analysis Under Federal Constitution
The Eighth Amendment to the United States Constitution states, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (U.S. Const., 8th Amend.) "The Eighth Amendment, which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' " (Ewing v. California (2003) 538 U.S. 11, 20.) The appropriate standard for determining whether a sentence for a term of years violates the Eighth Amendment is gross disproportionality. "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.), citing Solem v. Helm (1983) 463 U.S. 277, 288.) Successfully establishing a grossly disproportionate sentence is " 'exceedingly rare' " and occurs only in an " 'extreme' " case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [upholding two consecutive terms of 25 years to life in prison on two counts of petty theft with prior theft-related convictions]; see also Ewing, at pp. 18-20 [upholding a prison term of 25 years to life for felony grand theft with prior theft-related convictions].)
For the same reasons already discussed (ante, section VI.A), Edinbyrd's total sentence of 95 years to life was not "grossly disproportionate" to his commission of ambush style, attempted murders of three people, with premeditation and deliberation, for the benefit of a criminal street gang and in which a principal repeatedly discharged a firearm in a residential neighborhood. His youth does not outweigh the gravity of these crimes.
Edinbyrd also claims his sentence is the functional equivalent of a life sentence without the possibility of parole (LWOP), which is prohibited for juveniles convicted of a nonhomicide crime under Graham v. Florida (2010) 560 U.S. 48, 82. He concedes he will be entitled to a youth offender parole hearing during his 25th year of incarceration under section 3051, and that under Franklin, supra, 63 Cal.4th 261, his constitutional claim is moot. (See id. at p. 268.) We agree his Graham claim is moot since a life sentence with parole eligibility during an offender's 25th year of incarceration is not the functional equivalent of LWOP. (Id. at pp. 279-280 ["[A] life sentence that includes a meaningful opportunity for release during his 25th year of incarceration . . . is neither LWOP nor its functional equivalent.]; see also id. at pp. 276-279.)
C. Request for Hearing on Youth-Related Issues
Edinbyrd contends he was not provided an adequate opportunity to make a record of information relevant to a future youth offender parole hearing and he is entitled to a remand under Franklin, supra, 63 Cal.4th 261. We will remand the case for this limited purpose. (See People v. Rodriguez (2018) 4 Cal.5th 1123, 1131-1132 (Rodriguez) [remand required to afford juvenile defendant an opportunity to supplement the record with information relevant to his eventual youth offender parole hearing].) We are persuaded that, prior to the court's 2016 decision in Franklin, a juvenile offender would not have been on notice of the importance of making a "baseline" record of youth-related factors near the time of the offense rather than at the eventual parole hearing under section 3051. (Franklin, at pp. 287, 284.)
On remand, the trial court shall provide Edinbyrd and the prosecution an opportunity to supplement the record with information relevant to his eventual youth offender parole hearing. (Rodriguez, supra, 4 Cal.5th at pp. 1131-1132; Franklin, supra, 63 Cal.4th at p. 284.) "In so doing, the trial court may exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations." (Rodriguez, at p. 1132.)
At oral argument, Walker appeared to join in Edinbyrd's request for a Franklin hearing and the opportunity to make a baseline record. Walker's request is granted to the extent he is entitled to a youth offender parole hearing under section 3051. --------
VI. Conceded Sentencing and Administrative Errors
Walker identifies a sentencing error, which the People concede. Regarding count 5, the attempted premeditated murder of P.C., the trial court imposed a gang enhancement carrying a 15-year minimum period for parole eligibility (§ 186.22, subd. (b)(5)) in addition to a firearm enhancement (§ 12022.53, subds. (d) & (e)). The former enhancement could not be imposed in combination with the latter (§ 12022.53, subd. (e)(2)) unless it was pleaded and proved that Walker personally used or personally discharged a firearm in the commission of the offense. The People concede the element was not pleaded. Thus, on remand, Walker's sentence on count 5 must be corrected and reduced from 15 years to life to life with the possibility of parole. (§ 664, subd. (a).)
On their own initiative, the People request we direct the trial court to correct another error, to which Walker accedes. As to count 5, Walker was charged with being a principal and that at least one principal personally and intentionally discharged a firearm during the commission of the attempted murder (§ 12022.53, subds. (c), (e)). Due to a verdict form error, the jury returned a true finding on a principal discharging firearm causing great bodily injury enhancement instead (§ 12022.53, subds. (d) & (e)), although that enhancement was not pleaded. The verdict form language shows that the jury found Walker to be a principal and that at least one principal personally and intentionally discharged a firearm during the commission of offense charged in count 5 (§ 12022.53, subds. (c) & (e)), as pleaded; thus, we direct the trial court to prepare an amended abstract of judgment. Correcting this error reduces Walker's sentence on the count 5 enhancement from 25 years to life to 20 years. (§ 12022.53, subd. (c).)
Finally, defendants contend their abstracts of judgments erroneously indicate they were sentenced pursuant to sections 667, subdivisions (b)-(i), or 1170.12, i.e., under the "Three Strikes" law. The People properly concede the error. On remand, the trial court must prepare amended abstracts of judgments for both defendants, which delete all notations showing they were sentenced under the Three Strikes law.
VII. Proposition 57 Applies Retroactively to Nonfinal Judgments
Edinbyrd argues he is entitled to retroactive application of Proposition 57. After briefing was completed in this case, the California Supreme Court definitively ruled on the applicability of Proposition 57 to nonfinal judgments. (Lara, supra, 4 Cal.5th 299.) Lara held the requirement in Proposition 57, passed by voters on November 8, 2016—that all criminal charges against juveniles be initially filed in the juvenile court—is retroactively applicable to cases such as this one that are not yet final. (Id. at pp. 303-304.) We thus conditionally vacate the judgment and remand to the juvenile court to determine if Edinbyrd is fit for juvenile adjudication, to set a disposition hearing if so, and to reinstate the judgment if not.
We will follow the procedure described in People v. Vela (2017) 11 Cal.App.5th 68, 82, which was endorsed by the Lara court: " 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. ([Welf. & Inst. Code, ]§ 707.) When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. ([Welf. & Inst. Code, ]§ 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Vela's convictions and sentence are to be reinstated. ([Welf. & Inst. Code, ]§ 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, supra, 4 Cal.5th at p. 310, quoting Vela, at p. 82.)
We remand for a limited purpose, not for a retrial of the facts. The jury unanimously found Edinbyrd guilty beyond a reasonable doubt of all charged counts and enhancements. On remand, the juvenile court is directed to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707. If, at the transfer hearing, the juvenile court determines Edinbyrd is fit for juvenile adjudication, his criminal convictions will be deemed juvenile adjudications as of that date and the juvenile court shall conduct a dispositional hearing. If, however, the court determines it would have transferred Edinbyrd to a court of criminal jurisdiction because he is not fit for juvenile adjudication, the current judgment shall be reinstated. (Lara, supra, 4 Cal.5th at p. 310; see also People v. Vela (2018) 21 Cal.App.5th 1099, 1114.)
VIII. Senate Bill 620 Applies Retroactively to Nonfinal Judgments
Defendants argue that Senate Bill 620, effective January 1, 2018, retroactively applies to their case. Senate Bill 620 amended section 12022.53, subdivision (h), to read: "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." There was no like provision prior to passage of Senate Bill 620.
The Attorney General concedes that, under controlling case law, amended section 12022.53, subdivision (h), must be retroactively applied to nonfinal judgments and that remand is necessary here. We accept the Attorney General's concession. (See People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507.)
We remand this case so the trial court may exercise its discretion whether to strike or dismiss defendants' section 12022.53 firearm enhancements. We express no opinion on how the court should exercise its discretion.
DISPOSITION
Walker's sentence is vacated and the matter remanded for a resentencing hearing for the trial court to exercise its discretion whether to strike one or more of the section 12022.53 firearm enhancements under section 1385 or again impose the enhancement terms. If appropriate (see fn. 10, ante), the court shall give Walker an opportunity to make a record of information relevant to his eventual youth offender parole hearing under Franklin, supra, 63 Cal.4th 261. The court is directed to correct the sentencing and administrative errors discussed in this opinion (see § VI). In all other respects, Walker's judgment is affirmed.
Edinbyrd's judgment is conditionally reversed and remanded to the juvenile court, which shall conduct a transfer hearing as discussed within this opinion. If, at the transfer hearing, the juvenile court determines that it would not have transferred Edinbyrd to a court of criminal jurisdiction, then Edinbyrd's criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing.
If, at the transfer hearing, the juvenile court determines that it would have transferred Edinbyrd to a court of criminal jurisdiction, then his convictions and enhancement findings shall be reinstated as of that date. The trial court is then directed to conduct a resentencing hearing consistent with this opinion, to exercise its discretion whether to strike one or more of the section 12022.53 firearm enhancements under section 1385 or again impose the enhancement terms. The court is directed to give Edinbyrd an opportunity to make a record of information relevant to his eventual youth offender parole hearing under Franklin, supra, 63 Cal.4th 261. It is further directed to correct the sentencing and administrative errors discussed in this opinion (see § VI). In all other respects, Edinbyrd's judgment is affirmed.
Following the limited hearings on remand, the clerk of the superior court is instructed to prepare amended abstracts of judgment for both defendants reflecting the trial court's sentencing decisions and corrections discussed in this opinion and to serve certified copies on the Department of Corrections and Rehabilitation.
DATO, J. WE CONCUR: O'ROURKE, Acting P. J. IRION, J.