Opinion
H048507
01-09-2023
In re ADRIAN L., A Person Coming Under the Juvenile Court Law. v. ADRIAN L., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 20JV000378
BAMATTRE-MANOUKIAN, ACTING P.J.
Appellant Adrian L. appeals from the juvenile court's order committing him to the Department of Juvenile Justice (DJJ) for a term of 15 years to life after the court found true allegations that Adrian had maliciously and willfully discharged a firearm at an inhabited dwelling (Pen. Code, § 246) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise specified.
Adrian challenges only the true finding on the gang enhancement allegation. He contends that the prosecution failed to prove the existence of a criminal street gang because there was not substantial evidence of the group's primary activities or of the required pattern of criminal activity by the group's members. The Attorney General concedes that reversal is required due to the prosecution's failure to satisfy the requirement in the amended version of section 186.22, subdivision (e)(1), which was amended after Adrian's jurisdictional hearing, that the pattern offenses commonly benefited the gang and the benefit was "more than reputational."
Because we find that the order must be reversed due to the lack of substantial evidence to support the gang enhancement allegation, we need not address Adrian's remaining substantive contentions, all of which concern only whether the true finding on the gang enhancement allegation can stand. Since there will necessarily be a new disposition hearing, we also need not address the custody credit issue.
We accept this concession and conclude that the record does not contain substantial evidence to support the juvenile court's true finding on the gang enhancement allegation under the amended version of section 186.22, subdivision (e)(1). We therefore reverse the juvenile court's order and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Around 2:00 p.m. on January 26, 2020, Seaside police officers were dispatched to a report of shots fired. When an officer arrived at the residence to which they were dispatched, which was on the corner of Trinity and Prospect (the corner residence), he saw evidence that two bullets had made contact with the residence. Five or six of the corner residence's occupants were present when the first officer arrived, and there were multiple vehicles in the corner residence's driveway. There was a bullet hole in the front window of the corner residence next to the front door, and that bullet had impacted a shoe rack inside the corner residence. The police were able to determine from the trajectory of that bullet that it had been fired from the intersection of Trinity and Prospect. There were two other bullet impacts, one to a wall of the corner residence and another to a tree. The police found no casings, but they did find a bullet in the driveway near the wall impact. The corner residence was associated with the Crip criminal street gang. Crips are enemies of members of the Norteno gang.
Surveillance video from another residence in the vicinity showed two individuals approaching the corner residence, and one of them advancing toward the corner residence and extending his arms as if he was holding a firearm in his hands. A total of five individuals could be seen running away from the area of the shooting. Surveillance video from a different residence captured the sound of five gunshots from two different weapons at the time of the reported shooting.
Four hours after the shooting, the police saw an individual in the vicinity wearing clothing that matched the clothing (a gray hoodie and light pants) of one of the individuals in one of the surveillance videos. This individual, Marcos Conseco, was detained by the police. Conseco had a fully loaded .22 caliber revolver in his front pocket. Conseco's phone contained a video that showed Adrian, Conseco, and several other males making Norteno gang signs while one of them held a firearm. In this video, Adrian was wearing red clothing and making a hand gesture for "N" and a hand sign for Seaside.
A few days later, the police obtained additional surveillance video from a nearby church. On this video, five young males, most of whom are wearing red clothing, can be seen walking down the sidewalk shortly before the shooting.
A search warrant was obtained for Adrian's residence. When the warrant was executed, Adrian was taken into custody and searched. Adrian's room contained "a lot of red clothing," 49ers clothing and a 49ers flag, a seahorse figure, and Nike Air Max shoes that were white, red, and black. These shoes appeared to match ones worn in one of the surveillance videos by a male wearing a "red and black Jordan logo" hoodie. After his arrest, Adrian told the police: "You guys didn't find anything, hah."
Detective Joshua Parker, who was familiar with Adrian from multiple prior contacts, subsequently reviewed the church's video and was able to identify Adrian from his "distinctive" way of walking. Officer David Rice, who was a school resource officer in 2019 and was very familiar with Adrian, also reviewed the video and identified Adrian by his face, his frame, his mannerisms, and his way of walking. Adrian was wearing red clothing in the church video.
In May 2020, a petition was filed alleging that Adrian had violated section 246 and that he had committed this offense for the benefit of a criminal street gang. After a contested jurisdictional hearing at which the defense presented no evidence, the court found the allegations true. In October 2020, the juvenile court declared Adrian a ward, found his offense to be a felony, and committed him to the DJJ. The court noted that the maximum term was 15 years to life (§ 186.22, subd. (b)(4)(B)), but the DJJ would have jurisdiction over 17-year-old Adrian only until he was 25 years old. Adrian timely filed a notice of appeal.
II. DISCUSSION
Adrian contends that the prosecution failed to prove that the shooting was perpetrated by Adrian for the benefit of a "criminal street gang" within the meaning of section 186.22, subdivision (b).
To prove a section 186.22, subdivision (b) allegation under the amended version of the statute, the prosecution must establish, among other things, the existence of "an ongoing, organized association or group of three or more persons, whether formal or informal" that has "as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e) . . . and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f), italics added.)" '[P]attern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational." (§ 186.22, subd. (e)(1), italics added.) "[B]enefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational." (§ 186.22, subd. (g).)
We quote the current version of section 186.22, which was amended by Assembly Bill No. 333 (2021-2022 Reg. Sess.) after Adrian's jurisdictional hearing. It is undisputed that the amended version of section 186.22 is retroactive and applies to this case even though it did not take effect until after the juvenile court's order. However, there is a distinction between the remedies that apply where there is lack of substantial evidence under the current version as opposed to a lack of substantial evidence under the prior version. If the record lacks substantial evidence to support a requirement under the prior version, the enhancement cannot be retried. If the record lacks substantial evidence to support a requirement under the amended version, the enhancement may be retried as that requirement did not exist at the time of the jurisdictional hearing. (People v. Ramos (2022) 77 Cal.App.5th 1116, 1128.)
"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction." (People v. Wilson (2008) 44 Cal.4th 758, 806.)" '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. [Citation.]' [Citation.]" (People v. Perez (2010) 50 Cal.4th 222, 229.) "Evidence is sufficient . . . if it' "reasonably inspires confidence"' [citation] and is 'credible and of solid value.'" (People v. Raley (1992) 2 Cal.4th 870, 890-891.)
A. Primary Activities
Adrian asserts that the prosecution failed to present substantial evidence to satisfy the "primary activities" requirement.
" '[C]riminal street gang' means an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in" certain parts of subdivision (e)(1). (§ 186.22, subd. (f), italics added.)
This portion of section 186.22, subdivision (f) was not substantially altered by Assembly Bill No. 333 with regard to the primary activities requirement. It previously read:" '[C]riminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in" certain parts of subdivision (e)(1). (Stats. 2017, ch. 561, § 178.)
In People v. Sengpadychith (2001) 26 Cal.4th 316 (Sengpadychith), the California Supreme Court held that, to prove that a group's "primary activities" satisfy section 186.22, subdivision (f), the prosecution must establish that crimes listed in section 186.22, subdivision (e) are "one of the group's 'chief' or 'principal' occupations." It is not enough for the prosecution to show "the occasional commission of those crimes by the group's members." (Sengpadychith, supra, at p. 323.) "[E]vidence that the group's members consistently and repeatedly" commit listed crimes would be sufficient to establish the primary activities requirement as would "expert testimony" that the gang "was primarily engaged" in "statutorily enumerated felonies." (Id. at p. 324.)
The only evidence presented by the prosecution regarding the "primary activities" requirement was the testimony of the prosecution's gang expert, Detective David Dillon, who was the investigating officer and testified as an expert on "the Norteno criminal street gang." Dillon testified that he had been a police officer for five years, had personally investigated crimes committed by Nortenos, and had testified as a gang expert three or four times before. Dillon answered a single question concerning the primary activities of the Norteno gang: "Q [by the prosecutor]. And as of January 26th, 2020, what were the primary activities of the Nortenos in Monterey County? [¶] A [by Dillon]. I'd say primary activities being committing several crimes numerated in 186.22(e) PC, which lists about 33 different crimes. I would say the Norteno criminal street gang and within Monterey County commits several of those, which would include murder, attempted murder, assault with a deadly weapon, drug sales, a variety of kind, et cetera." Neither Dillon nor any other witness offered any further testimony about the primary activities of the Norteno gang. The prosecution presented evidence of several prior offenses committed by Norteno gang members in Monterey County, but only one of those (a possession of marijuana for sale offense) fell within the list of offenses identified by Dillon in his answer to the prosecutor's question about primary activities. The remaining predicates were exclusively firearm possession offenses, which are listed in section 186.22, subdivision (e), but were not identified by Dillon as among the Norteno gang's primary activities.
While Dillon's testimony was fairly minimal, our standard of review requires us to presume in support of the juvenile court's finding every fact it could reasonably deduce from Dillon's testimony. The prosecution was required to prove that the Norteno gang's" 'chief' or 'principal' occupation[]'" was the commission of crimes listed in section 186.22, subdivision (e). (Sengpadychith, supra, 26 Cal.4th at p. 323.)" '[E]xpert testimony'" that the Norteno gang "was primarily engaged" in "statutorily enumerated felonies" is sufficient to support the primary activities requirement. (Id. at p. 324.)
Dillon's two sentences of testimony about the Norteno gang's primary activities were minimally sufficient to satisfy this standard under our deferential standard of review. His initial response to the prosecutor's request that he identify the primary activities of the Norteno gang in Monterey County was that the primary activities were those listed in section 186.22, subdivision (e). His additional response added some detail to his initial response by identifying some of the crimes in section 186.22, subdivision (e) that the Norteno gang in Monterey County commits. While the additional response did not use the word "primary" and his initial response did not use the word "Norteno," the juvenile court was entitled to take these two sentences together along with the nature of the prosecutor's question to deduce that Dillon was testifying that the primary activities of the Norteno gang in Monterey County were the crimes he identified in his additional response. We do not find this testimony to be legally insufficient.
Adrian relies on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.). In Alexander L., "[w]hen asked about the primary activities of the gang, [the expert] replied: 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.'" (Id. at p. 611.) The expert in Alexander L. did not testify that any of the crimes he identified were the gang's primary activities. That omission distinguishes Alexander L. from the case before us. "Alexander L. is different because there the expert never specifically testified about the primary activities of the gang." (People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.) Here, Dillon expressly testified, in response to the prosecutor's request that he identify the primary activities of the Norteno gang in Monterey County, that the "primary activities" were "committing several crimes" listed in section 186.22, subdivision (e). While his initial response was conclusionary, Dillon's express use of the term "primary activities" satisfied the statutory requirement, which the expert's testimony in Alexander L. did not satisfy.
Adrian's reliance on People v. Prunty (2015) 62 Cal.4th 59 (Prunty) is misplaced. In Prunty, which did not concern the primary activities requirement, the expert's mere characterization of "the Nortenos" "as a 'criminal street gang'" was found "insufficient" to establish the requisite link between "gang subsets" and "a larger Sacramento-area Norteno group" "absent some reason to believe that conclusion was based on the evidence necessary to show a single criminal street gang ...." (Prunty, at pp. 84-85.) Here, in contrast, Dillon testified that he had personally investigated crimes committed by Nortenos in Monterey County, which provided some foundation for his testimony identifying the primary activities of the Norteno gang in Monterey County.
B. Statutory Time Period for "Pattern" Offenses
Adrian contends that the prosecution failed to prove that the prior offenses upon which it relied to prove a "pattern" had occurred within the statutorily required period.
1. Background
The prosecution introduced four exhibits to prove the required pattern offenses.
Exhibit 13 concerned Robert David Lopez. This exhibit consisted of a Monterey County information from December 2017, a plea minute order from October 2018, a plea waiver form from October 2018, a sentencing minute order from December 2018, and an abstract of judgment from December 2018. The information charged Robert David Lopez with two counts of felon in possession of a firearm, one count of possession of an assault weapon, and one count of being an active participant in a criminal street gang, all alleged to have occurred on September 9, 2017, along with allegations that he had committed the offenses for the benefit of "the Norteno Criminal Street Gang." The plea minute order and the plea waiver form showed that Robert David Lopez had pleaded no contest to the three possession counts and admitted one gang enhancement allegation. The abstract showed these convictions and stated that the offenses had occurred in "2017."
Dillon testified that he was "familiar" with the facts of the Robert David Lopez case and that Robert David Lopez had been an active participant in the Norteno gang when he committed those offenses. When the prosecutor moved to admit Exhibit 13, Adrian's trial counsel objected that the exhibit did not identify "what subset." The prosecutor responded that she was using it "for the Norteno street gang as a whole," not for any "specific subset." The court overruled the objection because "the exhibit is admitted as a predicate offense for the Norteno Street Gang, not for a particular subset."
Exhibit 14 consisted of a Monterey County complaint, minutes of a November 2015 hearing, a plea waiver form, and sentencing minutes. The complaint, which bore the designation "PRVNT TM1502486," charged Daniel Bello Perez with unlawful possession of a handgun on June 11, 2015 with an allegation that he had possessed the handgun for the benefit of the "Norteno Criminal Street Gang." At the November 2015 plea hearing, the complaint was amended to add additional counts charging Perez with carrying a concealed firearm and active participation in a criminal street gang, and Perez pleaded no contest to those two new counts. The parties stipulated that the factual basis for the pleas was contained in "PRVNT Report # 1502486." The plea waiver form also stated that the factual basis for the pleas was a police report identified as "TM1502486." The sentencing minutes showed that Perez had been placed on probation.
Dillon testified that he had "review[ed] the underlying facts" of the Perez case and that Perez was an active participant in the Norteno gang when he committed those offenses. Adrian's trial counsel objected to the admission of Exhibit 14 on the same grounds he had interposed to Exhibit 13, and the court overruled the objection.
Exhibit 15 consisted of a Monterey County information, minutes of several hearings, and a plea waiver form. The information charged Victor Gonzales and Ricardo Gonzales with possession of marijuana for sale and active participation in a criminal street gang on October 30, 2012. The active participation count did not allege the identity of the gang. The information also alleged that they had committed the possession offense for the benefit of "the NORTENO CRIMINAL STREET GANG." The remaining documents concerned only Ricardo Gonzales. The plea waiver form showed that Ricardo Gonzales had pleaded no contest to those counts. There was no indication that he had admitted the gang enhancement allegation.
The offense of active participation in a criminal street gang (§ 186.22, subd. (a)) cannot serve as a predicate offense to show a pattern because it is not one of the offenses listed in section 186.22, subdivision (e)(1).
Dillon testified that he was "familiar" with Ricardo Gonzales and the facts of the 2012 case and that Ricardo Gonzales was an active participant in the Norteno gang when he committed the 2012 offense. Adrian's trial counsel made the same objection to Exhibit 15 as to the others, and it was overruled.
Exhibit 16 consisted of a Monterey County information, plea minutes, a plea waiver form, an abstract of judgment, and sentencing minutes. The information charged Enrique Velasco Lopez with carrying a concealed firearm in a vehicle, possession of a firearm with its identification number removed, and active participation in a criminal street gang, all on October 11, 2012. It further alleged that he had committed the two firearm offenses for the benefit of the "NORTENO CRIMINAL STREET GANG." The plea minutes reflected that he had pleaded no contest to the carrying a concealed firearm count and the active participation count but had not admitted the gang enhancement allegations. The plea waiver form was to the same effect. The abstract reflected those two convictions with no gang enhancement and stated that the offenses had occurred in 2012. The sentencing minutes contained no additional information. Dillon testified that he was "familiar with" the facts of that case and that Enrique Velasco Lopez was an active participant in the Norteno gang when he committed the firearm offense. When the prosecutor sought admission of Exhibit 16, Adrian's trial counsel made the same objection, and it was again overruled.
2. Analysis
Adrian maintains that the four exhibits and Dillon's testimony did not establish that the dates of the pattern offenses occurred within the statutorily required periods set forth in section 186.22, subdivision (e)(1). There must be "two or more" pattern offenses, and "the last of those offenses [must have] occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed ...." (§ 186.22, subd. (e)(1).)
The prior version of section 186.22, subdivision (e) did not contain all of these requirements. It required that "least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense." (Stats. 2017, ch. 561, § 178.) Assembly Bill No. 333 added that the last pattern offense must have occurred "within three years of the date the current offense is alleged to have been committed ...." (§ 186.22, subd. (e)(1).)
The current offense occurred on January 26, 2020. Thus, "the last of" the pattern offenses was required to have "occurred . . . within three years" of January 26, 2020 and "within three years of the prior [pattern] offense." Exhibit 13 appeared to demonstrate that the "last" of the four pattern offenses, Robert David Lopez's firearm possession, had occurred in September 2017, which was well within the statutory three-year period. Exhibit 14 seemed to establish that the offense prior to Robert David Lopez's offense, Daniel Bello Perez's firearm possession, had occurred in June 2015, which is well within the three-year statutory period before Robert David Lopez's September 2017 offense.
The other pattern offenses could not satisfy this requirement because the certified records stated that they occurred in 2012.
Adrian's argument largely hinges on this court's decision in People v. Garcia (2020) 46 Cal.App.5th 123 (Garcia). He also argues that the certified records did not establish when Daniel Bello Perez's offense occurred.
In Garcia, this court held that the trial court had erred in permitting the use of certified records of prior criminal convictions to prove the date of commission of a pattern offense because the Sixth Amendment prohibits the use of such records to prove any "facts other than the fact of conviction itself ...." (Garcia, supra, 46 Cal.App.5th at pp. 171-173.) The Garcia opinion was issued in March 2020, which was six months prior to the jurisdictional hearing in this case. Adrian's trial counsel made no Sixth Amendment objection to the use of the certified records to prove the date of commission of the pattern offenses, and he therefore forfeited any contention that these records could not be used for that purpose. Even if the records were erroneously admitted for that purpose, that would not establish that the prosecution failed to produce substantial evidence of the dates on which the pattern offenses were committed. At most, it would establish an evidentiary error. Since Exhibit 13 facially demonstrated that Robert David Lopez's offense occurred in September 2017, Adrian's claim that there was not substantial evidence of when that offense occurred lacks merit.
Nevertheless, Adrian maintains that the exhibits did not provide substantial evidence of the dates of the offenses. He reasons that "the prosecutor did not offer these records to prove the date of the predicate offenses because doing so would constitute prosecutorial misconduct" in light of Garcia. He acknowledges that "the prosecutor did not state the exact purpose for offering the records," but he maintains that the testimony adduced by the prosecutor from Dillon with respect to each exhibit "show[s] that the prosecutor's purpose was only to prove the fact of a prior conviction."
This claim is at odds with the prosecutor's argument to the juvenile court regarding the pattern offenses. The prosecutor argued: "[F]inally for pattern of criminal gang activity for Element 1 of the predicates that were submitted and moved into evidence in People's Exhibit 13, 14, 15 and 16, I would ask the Court to take notice of the fact that those predicates were committed after September 26th of 1988 and the most recent crimes occurred within three years of the -- one of the earlier crimes."
We find no merit in this argument. Since Adrian's trial counsel did not object to the use of the exhibits to prove the dates of the pattern offenses, the prosecutor did not commit misconduct by offering them to prove those dates. The record does not reflect that the exhibits were offered by the prosecutor or admitted by the court for a limited purpose that precluded their use to prove the dates of the offenses. While the exhibits were subject to an objection under Garcia to their use to establish the dates of the pattern offenses, in the absence of such an objection the exhibits provided substantial evidence of the dates of the pattern offenses."' "[I]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding." '" (People v. Panah (2005) 35 Cal.4th 395, 476.)
Because we reverse on other grounds, we need not address Adrian's claim that his trial counsel was prejudicially deficient in failing to object based on Garcia.
Adrian's remaining contention regarding the sufficiency of the evidence to establish that the dates of the pattern offenses fell within the statutory period concerns only the date of the firearm possession offense for which Daniel Bello Perez was convicted. Adrian points out that, although the original complaint charged an offense that occurred on June 11, 2015, Perez actually pleaded no contest to only the two additional counts that were amended into the complaint without any express indication of the date on which they had been committed. Nevertheless, the record provides substantial evidence that the offenses amended into the complaint arose from the same June 11, 2015 incident as the offenses originally alleged in the complaint. This is true because the complaint bore the designation "PRVNT TM1502486," and the factual basis for Perez's no contest plea to the amended carrying a concealed firearm count was stipulated to be contained in "PRVNT Report # 1502486," which was also referred to as a police report designated "TM1502486." The juvenile court could reasonably deduce that this police report did not describe multiple firearm possession offenses by Perez occurring on disparate dates but a single group of offenses occurring on a single date. Accordingly, the juvenile court could properly conclude that Perez's carrying a concealed firearm conviction arose from an offense that occurred on June 11, 2015, which is well within the three-year statutory period before Robert David Lopez's September 2017 offense.
We reject Adrian's challenge to the sufficiency of the evidence to establish that the dates of the pattern offenses fell within the statutory time period.
C. Compliance With Prunty
Adrian also contends that the prosecution failed to satisfy the requirements that Prunty imposes to show that the individuals who committed the pattern offenses belonged to the same gang that Adrian acted to benefit when he committed the current offense. (Prunty, supra, 62 Cal.4th at p. 76.)
1. Background
Dillon expressed the opinion that Adrian was a member of and active participant in "[t]he Norteno Criminal Street Gang" when he committed the January 2020 shooting and that the shooting was committed for the benefit of and to promote that gang. Dillon based this opinion on, among other things, the fact that Adrian's Instagram account used the number 14, bore the notation "NSS" surrounded by red triangles, and identified Adrian as being from "Seaside, Kilafornia." Dillon also opined that Adrian was a member of the NSS subset of the Norteno Criminal Street Gang. Dillon testified that Nortenos associated with the color red, the numbers 14, and 1-4, and, in Seaside, "the seahorse" that was part of the city's crest.
The prosecutor asked Dillon to describe "different subsets of the Norteno criminal street gang in Monterey County." Dillon testified that there were two Norteno "subsets" in Seaside and numerous others throughout Monterey County. The two subsets in Seaside were Varrio Seaside Norte (VSN) and Northside Seaside (NSS). At that point, Adrian's trial counsel objected: "And I'd object as to foundation. And I believe it's -- I think the case is Prunty whether these subsets are engaged in same crimes as the overarching Norteno group." The court overruled the objection.
Dillon was asked: "Do all Nortenos identify with the word Nortenos, or is there some variation that they'll use amongst themselves?" He responded: "For formality, I guess street Norteno gang members will refer to themselves as Northerners, and then once they are -- they graduate to a higher level, the higher level being the Nuestra Familia, the prison gang, then they could formally say they are Nortenos. [¶] So I guess the street version is Northerners, they refer to themselves as. And then in custody, it's different." Dillon testified that "the Norteno gang" is "throughout the State of California." Dillon testified that "Nuestra Familia" (or "NF") was "essentially the ultimate overseer of the Norteno Criminal Street Gang." He explained that NF and "the Norteno Criminal Street Gang" were "created" "in conjunction" and operated together, with the "street version" funding NF. He also testified that NSS "provides money to the overall hierarchy," and NF "issue[s] orders" to the subsets "[t]hrough the chain of command."
In argument, the prosecutor repeatedly identified the gang at issue as "the Norteno criminal street gang," although she also noted that "Dillon did testify that the NSS, North Side Seaside, is the subset of the Norteno criminal street gang."
The prosecutor did not mention the gang enhancement in her final argument.
Adrian's trial counsel argued to the juvenile court that the prosecution had failed to connect NSS to the Norteno gang. He argued: "There is no showing of NSS or payment to the Norteno taxes, no showing Adrian paid taxes to gang members. There is no showing at all." "Predicates, there is no showing that the predicate offenses were committed by NSS. It's predicates for general Nortenos and not this subset. There was no evidence that any of the people involved -- that they believed were involved in the shooting were Nortenos from NSS or Nortenos in general. There is speculation about Adrian, however no evidence any of the people are Nortenos for NSS."
The juvenile court expressly found that the shooting had been committed "for the benefit of the Norteno street gang."
2. Analysis
In Prunty, the California Supreme Court held: "[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization." (Prunty, supra, 62 Cal.4th at p. 71.)
Adrian claims that there was insufficient evidence to support the court's true finding on the gang enhancement allegation because the prosecution failed to show a "connection uniting" subsets as required by Prunty in cases where the prosecution's case turns on the existence and conduct of subsets. However, the flaw in his claim is that this was not a case in which the prosecution's case turned on the existence or conduct of gang subsets. The prosecution's theory was that Adrian was a member of "the Norteno Criminal Street Gang" who committed the current offense for the benefit of that gang, and that the pattern offenses were committed by other members of "the Norteno Criminal Street Gang." The prosecution's evidence was consistent with this theory and did not "turn[] on" the existence or conduct of any subsets. The only role that any subset played in this case was that there was evidence that Adrian was not only a member of "the Norteno Criminal Street Gang" but also a member of that gang's subset, NSS.
Dillon testified that Adrian "was associating with" and "an active member of the Norteno Criminal Street Gang" when he committed the shooting offense. While Dillon testified that Adrian was also a member of "the subset of NSS," his testimony was that Adrian committed the shooting "with the specific intent to further promote and assist the Norteno Criminal Street Gang." Since the evidence concerning the pattern offenses demonstrated that those offenses were also committed by members of the Norteno Criminal Street Gang, this was not a case that turned on the existence or conduct of subsets, so the prosecution was not obligated to show a link or connection between subsets.
Furthermore, even if evidence of some kind of link had been required, Dillon provided such testimony when he testified that NF, "the Norteno Criminal Street Gang," and NSS had such a link. Dillon testified that NF and "the Norteno Criminal Street Gang" were "created" "in conjunction" and operated together, with the "street version" funding NF. He also testified that NSS "provides money to the overall hierarchy," and NF "issue[s] orders" to the subsets, which would include NSS, "[t]hrough the chain of command."
We also find no merit in Adrian's contention that the prosecution violated Prunty by failing to prove that "the Norteno group in Monterey County" qualified as a criminal street gang. (Italics added.) The prosecution did not seek to prove that Adrian or any of the individuals who committed the pattern offenses were members of a criminal street gang identified as "the Norteno group in Monterey County." Instead, the prosecution sought to prove that Adrian and the individuals who committed the pattern offenses were members of "the Norteno Criminal Street Gang." While Dillon testified about his familiarity with Norteno offenses committed in Monterey County, that was simply a product of the fact that he was employed by a Monterey County police department and therefore was largely exposed to Monterey County offenses, rather than those committed throughout the state. The prosecution did not fail to comply with Prunty.
D. Assembly Bill No. 333: "More Than Reputational" Requirement
Adrian contends that amendments to section 186.22 made by Assembly Bill No. 333-which took effect on January 1, 2022, but applies retroactively-made the prosecution's evidence insufficient to prove the gang enhancement allegation.
The Attorney General concedes that the amendments made by Assembly Bill No. 333 to section 186.22 are retroactive, and we agree. (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) Retroactive application of a statute that redefines the elements of an enhancement requires remand where the findings required by the amended statute were not made by the factfinder unless the Attorney General can establish that the absence of such findings was harmless beyond a reasonable doubt. (Ibid.; cf. People v. Figueroa (1993) 20 Cal.App.4th 65, 72; People v. Chiu (2014) 59 Cal.4th 155, 167.)
Assembly Bill No. 333 redefined the elements of the section 186.22, subdivision (b) gang enhancement in several respects. (Tran, supra, 13 Cal.5th at p. 1206.) One of those changes concerns subdivision (e)'s definition of" 'pattern of criminal gang activity.'" Before the 2022 amendment, the last clause of the paragraph that is now subdivision (e)(1) provided that the pattern offenses must be "offenses [that] were committed on separate occasions, or by two or more persons." (Former § 186.22, subd. (e)(1); Stats. 2017, ch. 561, § 178.) The 2022 amendment expanded that clause so that now the pattern offenses must be "offenses [that] were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational." (§ 186.22, subd. (e), italics added.) The legislative history characterized this amendment as an additional requirement. (Sen. Com. on Approp., Report on Assem. Bill No. 333 (2021-2022 Reg. Sess.) as amended July 13, 2021, p. 2.) The Legislature expressly stated that Assembly Bill No. 333 was intended to "narrow" "what constitutes a 'pattern of criminal gang activity" (Sen. Com. on Approp., Report on Assem. Bill No. 333 (2021-2022 Reg. Sess.) as amended July 13, 2021, p. 1) and "limit the scope" of and "redefine" the term "criminal street gang" (Assem. Com. on Pub. Saf., Report on Assem. Bill No. 333 (2021-2022 Reg. Sess.) as amended March 30, 2021, pp. 1, 5).
The meaning of this statutory change is currently pending before the California Supreme Court in People v. Cooper, review granted May 11, 2022, S273134.
Adrian contends that the prosecution failed to produce substantial evidence at the jurisdictional hearing that the prior offenses alleged to be pattern offenses "commonly benefited" the group and that this benefit was "more than reputational." The Attorney General, in his brief, originally argued that this requirement was necessarily satisfied because one of the prior offenses was accompanied by a gang enhancement finding and the others were coupled with convictions for active participation in a criminal street gang (§ 186.22, subd. (a)). At oral argument, the Attorney General conceded that the prosecution had failed to establish that the prior offenses satisfied the new requirement for pattern offenses that the "common benefit from the offenses is more than reputational."
We agree with the parties that reversal is required due to the prosecution's failure to establish that the benefit from the prior offenses was "more than reputational" as is now required to prove that they were pattern offenses. The prosecution presented no evidence of the facts of any of the prior offenses. The mere fact that a prior offense was accompanied by a gang enhancement finding or an active participation conviction does not establish that the offense provided a common benefit that was more than reputational because neither former section 186.22, subdivision (b) [gang enhancement] nor former section 186.22, subdivision (a) [active participation offense] required that the benefit be "more than reputational." Accordingly, we must reverse the juvenile court's true finding on the gang enhancement allegation and remand to give the prosecution the opportunity to retry that allegation.
III. DISPOSITION
The juvenile court's order is reversed, and the matter is remanded with directions to vacate the true finding on the gang enhancement allegation. The juvenile court shall afford the prosecution the opportunity to retry that allegation. If the prosecution chooses not to, the court shall strike that allegation and hold a new dispositional hearing.
WE CONCUR: DANNER, J., WILSON, J.