Opinion
F084095
05-03-2023
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JUAN ALVAREZ, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. 20CR-02663 Ronald W. Hansen, Judge. Retired Judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, Acting P. J.
INTRODUCTION
On May 11, 2020, defendant Francisco Juan Alvarez murdered a gang dropout, Michael S. A jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a), count 1) and found true the enhancement he committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)). The trial court sentenced defendant to an indeterminate term of 80 years to life, plus a determinate term of one year four months.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.
All further references are to the Penal Code, unless otherwise stated.
The jury found defendant guilty of additional offenses and enhancements. We discuss these offenses and enhancements further below.
On appeal, defendant contends: (1) he received ineffective assistance of counsel based on his trial counsel's failure to object to the "certainty" instruction regarding eyewitness identification, i.e. CALCRIM No. 315; (2) he is entitled to the benefit of newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) because it applies retroactively and thus, the gang enhancements, including his 2019 conviction, should be dismissed; and (3) he is entitled to be resentenced consistent with the changes made by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518) and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567).
As to the applicability of Assembly Bill 333, the People concede the changes to the law apply retroactively to defendant's case and that he is entitled to a dismissal of the gang enhancements, but contend he is not entitled to a dismissal of his 2019 conviction because it is a final judgment. Further, the People concede defendant is entitled to the benefits of the recent changes in the law, made by Assembly Bill 518 and Senate Bill 567, and thus, remand is required.
We accept the People's concessions, dismiss the section 186.22 gang enhancements, vacate the sentence, and remand for resentencing consistent with the recent changes to the law. On remand, the People are not foreclosed from retrying defendant on the gang enhancements. However, we do not address whether Assembly Bill 333 applies to defendant's 2019 conviction. The other claim lacks merit. Accordingly, in all other respects, we affirm the judgment.
STATEMENT OF CASE
On February 17, 2021, the Merced County District Attorney filed an information charging defendant with premeditated first degree murder (§§ 187, subd. (a), 189; count 1) with the enhancements he personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c), (d)); felon in possession of a firearm (§ 29800, subd. (a)(1); count 2); felon in possession of ammunition (§ 30305, subd. (a)(1); count 3); attempted premeditated first degree murder (§§ 187, subd. (a), 189, 664; count 4) with the enhancement he used a deadly and dangerous weapon, to wit, a car (§ 12022, subd. (b)(1)); assault with a deadly weapon, to wit, a car (§ 245, subd. (a)(1); count 5); battery (§ 242; count 6); felony evading (Veh. Code, § 2800.2, subd. (a); count 7); resisting arrest (§ 148, subd. (a)(1); count 8); and felon in possession of ammunition (§ 30305, subd. (a)(1); count 9). As to counts 1 through 6, the information further alleged the enhancement defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subds. (b), (d)).
The information alleged defendant committed the misdemeanor battery for the benefit of a criminal street gang, which transformed the offense into a wobbler. (See § 186.22, subd. (d) ["A person who is convicted of .. a misdemeanor, that is committed for the benefit of .. a criminal street gang .. shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years ..."].)
On June 1, 2021, the jury found defendant guilty of each offense and found true all allegations and enhancements. All parties stipulated to defendant's 2019 strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). As to count 1, the trial court sentenced defendant to 25 years to life, doubled to 50 years to life because of the strike prior. As to count 4, the trial court sentenced defendant to 15 years to life, doubled to 30 years to life because of the strike prior, to run consecutive to count 1. As to count 7, the trial court sentenced defendant to a term of eight months, doubled to 16 months because of the strike prior, to run consecutive with counts 1 and 4. As to counts 2, 3, and 5, the trial court imposed the upper terms, but stayed the sentences pursuant to section 654. As to counts 6 and 9, the trial court imposed the upper terms to run concurrent with counts 1 and 4. The total aggregate term imposed was a determinate term of one year four months, with an indeterminate term of 80 years to life.
SUMMARY OF FACTS
I. March 30, 2020 Incident (Counts 4 &5)
On March 30, 2020, Anthony L. was on his bicycle with his brothers, Ronnie L. and Michael, at a motel in Merced. During the daytime, Anthony observed defendant, whom he had seen a few times in the past, drive a Toyota Corolla ("Corolla") into the motel. Prior to March 30, 2020, defendant had problems with both Michael and Ronnie.Further, Anthony and Michael were both Norteno gang dropouts, whereas defendant was an active Norteno gang member and went by the name of "Cisco." Michael's dropout gang status caused additional tension between him and defendant.
Michael's first name appears to be "Joseph." However, throughout the entire trial, he is referred to as Michael.
Ronnie testified that he and a man "had words[,]" which resulted in the man punching him at a convenience store. In an interview with Detective Pinnegar, Ronnie identified defendant as the individual who punched him. These facts were the basis for count 6 (§ 242).
Merced Police Officer Odom, who was qualified as an expert on the Norteno gang, testified that a gang dropout is "someone who was once an active gang member once claiming some participation in a criminal street gang" but has subsequently "drop[ped] out." The gang "consider[s it] an act of treason to desert or leave a gang."
During the day, defendant got out of the Corolla and exchanged words with Anthony. Anthony believed defendant was trying "[t]o be intimidating" and "[p]ush his weight around" and thus, he called defendant some bad words and "wanted to fight him." At some point, defendant got back into the Corolla and Anthony pulled up on his bike behind the vehicle. Anthony "said a few more things[,]" and at this point defendant revved the engine and drove the car in reverse hitting Anthony and causing him to land on his face and wrist. Defendant then tried to hit Anthony two other times with the Corolla but failed. In the second attempt, the Corolla" 'stalled out'" and in the third attempt, Anthony "ran behind [a] pillar." After defendant hit Anthony, Michael told defendant," 'Bring it on. Get out of the car.'" Defendant then "smashed through [a] couple cars and took off" with Anthony's bicycle dragging behind until it popped out from under the vehicle. Michael grabbed the bicycle and threw it at the Corolla. As a result of the collision, Anthony suffered a broken wrist, broken finger, and nerve damage.
II. May 10, 2020 Incident
On May 10, 2020, Monica S. saw defendant with an "evil look, driv[e] past [her]." Monica had spoken with defendant "[t]wo or three times," and he had told her he was an active Norteno gang member. During one specific occasion at the motel, defendant confronted a room full of gang dropouts with a firearm, which caused them to scream," '[W]hat are you doing here? Get out of here. Get out of here.'" At this point, defendant pulled out the firearm "so they would all shut up." Defendant then told Monica, "[I]t was not a good area to be in around pieces of shits, and if I'm around them, he's going to think of [her] as a piece of shit so whatever happens to [her] he's not going to feel bad for."
Michael called Monica for a ride approximately 10 minutes after Monica observed defendant drive past her. Michael was panicked because "Cisco shot at him." Monica picked up Michael, and he was "nervous" and "quiet."
III. May 11, 2020 Incident (Counts 1-3)
On May 11, 2020, Antonio J. lived at a residence in Merced. At or around midnight, Antonio walked home from a convenience store when he observed Michael ride up on his bicycle. Antonio was friends with Michael and knew he was a gang dropout. He also observed defendant walk up wearing "[a] gray hoodie, blue jeans[,]" red knee high shoes, and "a red bandanna around his mouth." Prior to this date, Antonio had seen defendant "three to four times" and testified that he was 100 percent certain this individual was defendant. Antonio was aware defendant was "[a]n active Norteno gang member."
Defendant approached Antonio and asked if he "was affiliated, if [he] banged." Antonio understood this as a question of whether he "was a gang member ... an active gang member, or a dropout gang member." Defendant then walked up to Michael and an argument ensued. Subsequently, defendant shot Michael multiple times in the face and chest and killed him. Defendant then ran off, and Antonio ran inside his residence, "locked the door and [he] stayed there and [he] didn't come out."
Antonio was also a gang dropout.
Forensic Pathologist Mark Super testified that he observed nine separate gunshot wounds on Michael's body. It was determined the cause of Michael's death was "[m]ultiple gunshot wounds."
Juan H. testified that on the night of the shooting he was inside his residence when he "heard, like, some arguing outside" and then "10 minutes later, [he] heard, like, some gunshots." During the argument, Juan recognized Michael's voice, but did not recognize the other voice and described it as being "deeper." He then heard six to seven shots one right after the other.
Subsequently, Detective Haygood contacted Antonio at his residence. At first, Antonio did not want to talk or cooperate with law enforcement. Officers searched Antonio's residence and located a firearm. Although Antonio did not want to cooperate, he did describe the shooter during his first interview as" 'thin and around Detective Pinnegar's height or shorter[,]'" which was five feet five inches. During the second interview, Antonio stated he was between 90 to 100 percent sure defendant was the shooter, and subsequently identified defendant in a photograph.
The firearm retrieved from Antonio's residence was a .25-caliber handgun, whereas the cartridge casings retrieved from the murder scene were from a nine-millimeter Luger Extreme ST. Detective Haygood testified that "it's physically [im]possible" for a nine-millimeter bullet to be fired from a .25-caliber handgun because "the larger cartridge would [not] be able to go into the barrel of the .25[-]caliber pistol."
Detective Haygood testified that defendant was five feet four inches tall.
IV. May 13, 2020 Incident (Counts 7-9)
After the shooting, officers obtained a search warrant and placed a GPS trackeron defendant's girlfriend's car - a 2013 blue Chevrolet Malibu ("Malibu"). On May 13, 2020, at approximately 2:00 a.m., Officer Richter was informed defendant was driving the Malibu in Merced. Officer Richter, while driving a clearly marked Merced Police Department vehicle, got behind the Malibu and initiated a traffic stop. At this point, the Malibu accelerated to a speed of 75 miles per hour, reaching speeds of over 100 miles per hour. The Malibu continued accelerating down the highway at speeds of over 100 miles per hour and proceeded to speed through an intersection. During the pursuit, the Malibu drove over the double yellow lines "[m]ore than three times." Eventually, the Malibu drove into a field and came to a complete stop. Officer Richter came on scene and observed defendant "running ... maybe 20 yards from the vehicle[.]" Eventually, Officer Richter found defendant laying in the field; he was then taken into custody. Officer Richter located a bullet near defendant.
The GPS tracker "sends an alert to an online program that officers are given a log-in to log into and monitor the ... device."
V. Subsequent Law Enforcement Investigation
Investigator Nelson listened to multiple phone calls between defendant and Stuart Nagata, a suspect in an unrelated murder case. During a May 8, 2020 phone call, defendant told Nagata," 'N[**]ga, I did a little thing.'" In a later call, defendant told Nagata," '[E]verybody is afraid of me for some reason'" and that" 'Nobody can hide from me in Merced, fool, anywhere Merced [C]ounty.'" On May 11, 2020, at 8:49 p.m., Nagata told defendant," 'I was trying to get ahold of you, man. Are you good?'" and defendant replied," '[N]ah. It's bad right now.'" Defendant then told Nagata to call his sister and get him a new phone number because" 'it's bad now.' "
VI. Gang Evidence
Officer Odom testified as an expert on the Norteno street gang. He testified that the Norteno street gang is a criminal organization that "fall[s] under the umbrella of the Nuestra Familia gang." The Nortenos have common signs and symbols, such as the letter N and the color red. The primary activities of the gang are "[m]urder, shooting at inhabited dwelling[s] . . . assaults with deadly weapon; assaults in general; selling narcotics for the gang, which those proceeds wi[ll] funnel to the gang; being prohibited persons; and gang members in possession of firearms." The Norteno's rivals are "Surenos and Crips, most notably, Riders, dropouts, and anyone who's against their organization essentially ._" Dropouts are "seen as trash. Lowest of the low, degenerates. They were once one of them. So now they're no longer one of them, so it's considered an act of treason, desertion. So definitely with disrespect, let alone some kind of repercussions."
Officer Odom testified that he had many contacts with an individual by the name of Lorenzo Flores. Flores has a "large 14 on his face," which is relevant because "[f]ourteen is the 14th letter of the alphabet being the letter N, which stands for Norteno." Officer Odom opined Flores was a Norteno gang member based on "[h]is multiple gang tattoos, his prior contacts and arrests, him associating with other Norteno gang members, [and] his self-admissions and statements." In September 2017, Flores was arrested and later convicted of being a felon in possession of a firearm.
Officer Odom then testified that he made numerous contacts with an individual by the name of Ari Gonzalez Cardenas. Officer Odom opined Cardenas was a Norteno gang member based on "[h]is prior contacts and arrests, his self-admissions, his gang tattoo of VPX, which is a subset called Vario Planet X, Norteno subset in Planada, and his prior associates." On November 11, 2017, Cardenas was arrested and later convicted of being a felon in possession of a firearm.
Officer Odom then testified that he had contacted Nagata in the past. He opined Nagata was an active Nuestra Familia prion gang member "[b]ased off all his involvement in the criminal street gang, his tattoos, his prior contacts and arrests[,] [h]is associations, prior documentation, and [California Department of Corrections and Rehabilitation]." On July 14, 2019, Nagata was arrested and later convicted of murder.
Further, Officer Odom opined defendant was an active Norteno gang member "[b]ased off first, this investigation, his involvement, and role in the investigation; statements made from witnesses, victims, or witnesses, some victims, [Anthony]; his prior associations to this case; his jail calls with Mr. Stuart Nagata; his tattoos seen in gang photographs wearing gang clothing, attire, [and] displaying hand gang signs." He also opined that each of the victims in this case were Norteno dropouts. Lastly, Officer Odom opined the crimes in this case benefited the Norteno gang because "the gang's put on notice again that this Norteno Street gang is to be feared and not disrespected in any way."
DISCUSSION
I. Defendant Did Not Receive Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel based on his trial counsel's failure to object to the "certainty" factor instruction regarding eyewitness identification, i.e., CALCRIM No. 315. Specifically, he argues his trial counsel should have been aware of our Supreme Court's decision in People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), decided on the final day of trial, which directed trial courts to omit the certainty factor from CALCRIM No. 315 based on" 'eyewitness confidence [being] generally an unreliable indicator of accuracy.'" (Id. at p. 647.) We disagree.
A. Additional Factual Background
As relevant here, the jury was instructed with CALCRIM No. 315, which stated the following:
"You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.
"In evaluating identification testimony, consider the following questions:
"[1] Did the witness know or have contact with the defendant before the event?
"[2] How well could the witness see the perpetrator?
"[3] What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation?
"[4] How closely was the witness paying attention?
"[5] Was the witness under stress when he or she made the observation?
"[6] Did the witness give a description and how does that description compare to the defendant?
"[7] How much time passed between the event and the time when the witness identified the defendant?
"[8] Was the witness asked to pick the perpetrator out of a group?
"[9] Did the witness ever fail to identify the defendant?
"[10] Did the witness ever change his or her mind about the identification?
"[11] How certain was the witness when he or she made an identification?
"[12] Are the witness and the defendant of different races?
"[13] Were there any other circumstances affecting the witness's ability to make an accurate identification?
"The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty."
Trial counsel did not object to this instruction. On that same day, May 27, 2021, the jury began deliberations.
On May 28, 2021, the jury foreperson informed the trial court it was hung on count 1 (§ 187, subd. (a)) with a vote of 11 guilty, one not guilty. Subsequently, on June 1, 2021, the jurors asked for a read back of testimony, which included Detective Haygood's testimony regarding" 'how certain are you Cisco shot at [Michael].'" On that same day, the jury reached their verdict and found defendant guilty of count 1.
B. Standard of Review
Defendant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To establish such a claim, a defendant must show (1) his counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
"Because of the difficulties inherent in making the evaluation [of counsel's performance], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Strickland, supra, 466 U.S. at p. 689.) "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Reversal is permitted" 'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.'" (People v. Arredondo (2019) 8 Cal.5th 694, 711.)
C. Applicable Law
Our Supreme Court in Lemcke, supra, 11 Cal.5th 644, considered whether the "certainty" instruction, stated in CALCRIM No. 315, violated due process. The Lemcke court held the defendant's due process rights were not violated and that the certainty factor did not render the defendant's trial fundamentally unfair based on the context of the trial record as a whole, which included an eyewitness identification expert who testified for the defense. (Lemcke, at pp. 646-647.) However, the court agreed that, despite the absence of a constitutional violation, a "reevaluation of the certainty instruction" was warranted. (Id. at p. 647.) Lemcke concluded that "near unanimity in the empirical research" now exists that" 'eyewitness confidence is generally an unreliable indicator of accuracy.'" (Ibid.) This conclusion was based on many studies where "eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an identification." (Ibid.) Therefore, in light of these concerns, our Supreme Court referred the matter to the Judicial Council of California and its Advisory Committee on Criminal Jury Instructions to evaluate whether or how this instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy. (Ibid.) The Lemcke court directed trial courts to omit the certainty factor from CALCRIM No. 315 (unless a defendant requests otherwise) until the Judicial Council has completed its evaluation. (Lemcke, at pp. 647-648.)
Following our Supreme Court's directive, the Judicial Council of California modified CALCRIM No. 315 to include the following additional instruction when an eyewitness testifies to certainty: "A witness's expression of certainty about an identification, whether the identification was made before or at the trial, may not be a reliable indicator of accuracy. Among the factors you may consider when evaluating the significance of the witness's certainty in the identification are the following: "[1] How soon after the event did the witness express certainty about the identification? "[2] If the witness made an identification before trial, did the witness express certainty at the time of that identification? "[3] Before the identification, did the witness express confidence in being able to make an identification? "[4] How confident was the witness in making the identification? "[5] Did the witness receive information before or after the identification that may have increased the witness's level of confidence? "[6] Did the police use procedures that increased the witness's level of confidence about the identification? "_______<insert other relevant factors raised by the evidence>."
Following Lemcke, our Supreme Court in People v. Wright (2021) 12 Cal.5th 419 (Wright) again addressed concerns associated with the certainty instruction, but in this case, it dealt with the eyewitness identification instruction articulated in CALJIC No. 2.92. (Wright, at pp. 452-453.) Although in Wright, no eyewitness identification expert testified for the defense (id. at p. 453), the defendant's primary trial strategy was to discredit the eyewitnesses who had testified against him, and "to imply that the eyewitnesses were testifying falsely[and] [a]t no point did [the] defendant argue that the witnesses mistook his identity. This was in contrast to Lemcke, where the defense strategy focused on questioning the victim's identification of the defendant." (Ibid., citing Lemcke, supra, 11 Cal.5th at pp. 652-653.) In Wright, "[t]he instant case involved the identification of [the] defendant by multiple witnesses, and, unlike in Lemcke, at least two of the witnesses had known [the] defendant in some capacity prior to the attack." (Wright, at p. 453.)
Prior to the Fall 2021 Revisions, CALJIC No. 2.92 stated the jury could consider "[t]he extent to which the witness is either certain or uncertain of the identification[.]"
D. Analysis
1. The Certainty Factor Listed in CALCRIM No. 315
Here, Antonio knew defendant and had seen him "three to four times" prior to the shooting. Antonio identified him as the shooter during both his interview and at trial and did so with "100 percent" certainty. It is clear in the record the jury considered the level of certainty behind Antonio's identification in finding defendant guilty of count 1. As it related to identity, the prosecutor stated the following during her closing argument:
"[Antonio] identified the defendant as the shooter, and he said he was a hundred percent sure no doubt in his mind that it was the defendant. He said that multiple times."
She continued:
"[Antonio] was between 90 and 100 percent sure it was Cisco... [¶] Finally, identity. How do we know the defendant was ... the shooter? Well, we're told that. Told that by an eyewitness to the shooting. He said many times he was 100 percent it was him."
Subsequently, during the prosecutor's rebuttal argument, she acknowledged the issues surrounding the identification, but stated:
"But most important, he told each and every one of you, I think about four times, he was a hundred percent sure the defendant was the one that shot [Michael]. Hundred percent. [Trial] [c]ounsel pressed him on it. He didn't waive."
Prior to closing arguments, the jury was instructed with CALCRIM No. 315, which included the certainty factor without the now required bracketed language. This instruction, as referenced by the discussion in Lemcke, invited the jury to infer a direct relationship between the certainty of Antonio's identification and its accuracy despite the fact that "[t]here is near unanimity in the empirical research that' "under most circumstances, witness confidence or certainty is not a good indicator of identification accuracy." '" (Lemcke, supra, 11 Cal.5th at p. 665.) This was error.
2. Trial Counsel's Performance Did Not Fall Below an Objective Standard of Reasonableness
As noted above, it was error for the jury to consider the certainty factor in CALCRIM No. 315, without the now required bracketed language. (See Lemcke, supra, 11 Cal.5th at pp. 665, 669.) Therefore, we must determine whether trial counsel's failure to object to this factor constituted ineffective assistance of counsel. Applying Strickland's two-part test for analyzing these types of claims, defendant's argument fails on both prongs.
Although it was error for the jury to be instructed with the flawed certainty factor instruction in CALCRIM No. 315, trial counsel's performance was not deficient because (1) competent counsel is not required to follow a three-year long pending case decided on the final day of trial; (2) the law regarding the certainty factor listed in CALCRIM No. 315 remained unsettled at the time of trial; and (3) trial counsel's cross-examination of Antonio effectively challenged his credibility and the accuracy behind defendant's identification. As defendant points out, "An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland." (Hinton v. Alabama (2014) 571 U.S. 263, 274.) However, in the context of a change in the law created by the courts, "defense counsel could not reasonably have been expected to anticipate [a] change in the law" (People v. Harris (2013) 57 Cal.4th 804, 840) and while a skilled attorney may craft an argument anticipating a change in the law "it was not objectively unreasonable within the meaning of Strickland for ... trial counsel to fail to predict" a change in the law. (Larrea v. Bennett (2d Cir. 2004) 368 F.3d 179, 184, fn. omitted.) Accordingly, a failure to anticipate changes in the law is not generally considered ineffective assistance of counsel. (See Green v. Johnson (5th Cir. 1997) 116 F.3d 1115, 1125 ["there is no general duty on the part of defense counsel to anticipate changes in the law"]; Alcorn v. Smith (6th Cir. 1986) 781 F.2d 58, 62 ["nonegregious errors such as failure to perceive or anticipate a change in the law ... generally cannot be considered ineffective assistance of counsel"].)
Here, as both parties acknowledge, our Supreme Court issued Lemcke on May 27, 2021, which was the same day as the jury instruction conference, closing arguments, and the start of jury deliberations in this case. (Lemcke, supra, 11 Cal.5th 644.) Defendant argues competent trial counsel should have followed the Lemcke decision and read it "before the jurors were instructed and asked the trial court to omit the 'certainty factor' from CALCRIM No. 315, which the trial court would have been compelled to do." On the other hand, the People argue "it is not reasonable to expect [trial] counsel to have been tracking the Lemcke decision closely during this trial."
No court has yet addressed the issue of whether competent counsel is required to be aware of changes to the law that occur at or near the end of trial proceedings. As Strickland makes clear, when "deciding an actual ineffectiveness claim [we] must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Strickland, supra, 466 U.S. at p. 690, italics added.) "In determining whether the significance of a change in the law excuses counsel's failure to object at trial, we consider the 'state of the law as it would have appeared to competent and knowledgeable counsel at the time of trial.'" (People v. Black (2007) 41 Cal.4th 799, 811, overruled on other grounds by Cunningham v. California (2007) 549 U.S. 270, 293.) As both parties point out, our Supreme Court issues its slip opinions "at 10:00 a.m. on Mondays and Thursdays" (<https://www.courts.ca.gov/opinions-slip.htm>), which meant the Lemcke slip opinion was issued after the close of evidence and 22 minutes before trial counsel, the prosecutor, and the trial court discussed the relevant jury instructions, and then proceeded with closing arguments an hour later. To require competent trial counsel to have meticulously followed Lemcke for a three-year period and then be required to fully read and understand its implications on CALCRIM No. 315, minutes before heading into court to discuss jury instructions, and commence closing arguments an hour later is unreasonable. (See, e.g., People v. Kitchens (1956) 46 Cal.2d 260, 263 ["A contrary holding would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal"].)
Further, the law surrounding CALCRIM No. 315's certainty factor remained ambiguous at the time of the trial. (See Cal. Rules of Court, rule 8.532 (b)(1) ["Except as provided in (2), a Supreme Court decision is final 30 days after filing ..."].) After all, until Lemcke became final, our Supreme Court could have modified the opinion or granted a rehearing. Therefore, although Lemcke directed the "trial courts to omit the certainty factor from CALCRIM No. 315" (Lemcke, supra, 11 Cal.5th at p. 669), we analyze the ineffective claim "viewed as of the time of counsel's conduct." (Strickland, supra, 466 U.S. at p. 690.) Because of the uncertainty surrounding the instruction, trial counsel could not have been expected to be aware of this change in the law occurring on the final day of trial. Accordingly, because Lemcke was decided the same day as the jury instruction conference, closing arguments, and the start of jury deliberations, we cannot say that trial counsel's failure to direct the trial court to this decision was conduct that fell below an objective standard of reasonableness.
Finally, trial counsel effectively cross-examined Antonio regarding his identification. Trial counsel questioned both Antonio's description of the shooter's attire and his credibility as an eyewitness. Specifically, he questioned whether Antonio was a "100 percent sure" defendant was the shooter, even though he never met him and could not see the shooter's eyes, beard, hair, or mouth due to the shooter wearing a mask. Further, he elicited testimony that Antonio after the shooting never called 911, but rather ran inside his residence and locked the door. Lastly, Antonio admitted he had suffered more than five felony convictions, which included drug and gun possession, and assault. The jury, after being instructed with CALCRIM No. 226, could have considered any of these facts as evidence to discredit Antonio's testimony in its entirety. In sum, trial counsel's conduct did not fall below an objective standard of reasonableness.
3. Defendant Was Not Prejudiced
However, even assuming trial counsel's conduct fell below an objective standard of reasonableness, defendant is unable to establish that but for trial counsel's error, a different result would have been reasonably probable. (Strickland, supra, 466 U.S. at pp. 687-688, 694.) Here, although defendant is correct the identity of the shooter was "hotly contested," the testimony regarding Antonio's identification was one of several pieces of evidence connecting defendant to the shooting. First, the "certainty" instruction was one of thirteen separate instructions provided to the jury regarding eyewitness identification. Thus, besides certainty, there were 12 other factors for the jury to consider, which defendant does not challenge as misleading, confusing, or flawed. (See Lemcke, supra, 11 Cal.5th at 659-660 ["We therefore fail to see how a due process violation could be found in a case like this one, where the [certainty] instruction merely directed the jury that it should consider the eyewitness's level of certainty as one of 15 enumerated factors ..."].)
Because Lemcke, supra, 11 Cal.5th at p. 661, held that "listing the witness's level of certainty as one of 15 factors the jury should consider when evaluating an eyewitness identification did not render [the defendant's] trial fundamentally unfair or otherwise amount to a due process violation[,]" and defendant does not make a due process violation argument in his briefing, we analyze prejudice under Strickland's reasonably probable standard. (Strickland, supra, 466 U.S. at pp. 687-688, 694.)
Second, jurors are presumed to have understood and correctly applied the trial court's instructions unless there was evidence of confusion, or the jury requested further guidance on the issue at hand. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) CALCRIM No. 315 stated, "The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." Prior to reading CALCRIM No. 315, the trial court instructed the jury that "[i]n evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony[,]" which included "[h]ow well could the witness see, hear, or otherwise perceive the things about which the witness testified?" and "How well was the witness able to remember and describe what happened?" (CALCRIM No. 226). During the prosecutor's closing argument, she noted that Antonio was "15 feet or so" from defendant and that "he knew [defendant] from prior incidents, prior times that he had ran into [] defendant and a prior incident where [] defendant had asked if he banged." Further, Antonio "described [defendant's] height, said he was the same height as [Detective] Pinnegar," which was five-foot five inches. Lastly, and most importantly, Antonio had seen defendant "three to four times" before the shooting, which alleviated any potential for jury confusion. (Cf. Lemcke, supra, 11 Cal.5th at p. 666 [The certainty instruction "raises particular concerns in a case like this one, where the conviction was based almost entirely on the testimony of a single witness who expressed certainty in her identification and had no prior relationship with the defendant"]; People v. McDonald (1984) 37 Cal.3d 351, 363, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 924-925 [" 'Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect,'" italics added].)
Third, the evidence of defendant's guilt as to count 1 was substantial. Unlike Lemcke, "where the conviction was based almost entirely on the testimony of a single witness who expressed certainty in her identification and had no prior relationship with the defendant" (Lemcke, supra, 11 Cal.5th at p. 666), in this case, Antonio not only knew defendant prior to the shooting, but other corroborating evidence existed to support the verdict. First, the prosecution introduced evidence that defendant had motive to kill Michael based on his status as a gang dropout. Michael, who was a gang dropout, was seen by defendant "as trash. Lowest of the low, [a] degenerate[]." Michael's dropout status provided motive behind the violent, verbal exchange that occurred on March 30, 2020, and then the subsequent incident on May 10, 2020 (the day before the shooting), where Michael told Monica that "Cisco [defendant] shot at him." Second, the prosecution introduced evidence of phone calls made between defendant and Nagata than on the night after the shooting, defendant states," 'It's bad right now'" and that he needed Nagata to call his sister and get him a new phone number because" 'it's bad now.'" In light of this corroborating evidence, we conclude there is no reasonable likelihood the result of the proceeding would have been different had the jury not been instructed to consider Antonio's level of certainty in identifying defendant as the shooter. Accordingly, even if trial counsel's performance fell below an objective standard of reasonableness, we conclude it was harmless.
The prosecutor also admitted a Facebook photograph (Exh. No. 130D), which apparently showed defendant "wearing a red bandanna across his face" matching the description of the shooter provided by Antonio. However, this exhibit was not included in the record before this court.
III. Assembly Bill 333
Defendant contends he is entitled to the benefit of newly enacted Assembly Bill 333 because it applies retroactively and argues the gang evidence was insufficient to prove that (1) defendant intended his crimes to commonly benefit the Norteno gang in way that was more than reputational and (2) that the Norteno gang engaged in a pattern of gang activity under newly amended section 186. 22. Further, defendant contends the changes to section 186.22 require reversal of his 2019 serious and/or felony strike prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The People concede the amendments to section 186.22 apply retroactively to defendant's case and that "the prosecution failed to present any evidence that the predicate offenses commonly benefitted [defendant's] gang" requiring reversal of the gang enhancements but argue the People should be provided an opportunity to retry the enhancements on remand. The People further contend defendant "cannot challenge the validity of his prior conviction in the 2019 case in this direct appeal" because his conviction "was final before [Assembly Bill] 333 went into effect." We accept the People's concession and conclude defendant is entitled to reversal of his section 186.22 gang enhancements, but also conclude the People are entitled to retry defendant on the enhancement if they so choose. Further, as discussed further below, we do not address defendant's contention he entitled to a reversal of his prior 2019 conviction due to Assembly Bill 333.
A. Section 186.22 Enhancements
1. Applicable Law
As to counts 1 through 6, the jury found true the gang enhancements (§ 186.22, subd. (b)). At the time of defendant's trial, "criminal street gang" was defined as "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 paragraphs (1) to (25), inclusive, or (31) to (33), inclusive of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (Former § 186.22, subd. (f).) Assembly Bill 333 amended the language of section 186.22 to modify the showing necessary to prove gang offenses and gang enhancements (Stats. 2021, ch. 669, § 3, eff. Jan. 1, 2022). The bill revised the definition of "criminal street gang" to require that members "collectively" (no longer "individually or collectively") engaged in a pattern of criminal activity. (§ 186.22, subd. (f); People v. Delgado (2022) 74 Cal.App.5th 1067, 1086.)
Additionally, Assembly Bill 333 redefined" 'pattern of criminal gang activity'" (§ 186.22, subd. (e)(1)), a necessary requirement to proving the existence of a "criminal street gang" and thus a "prerequisite to proving the gang crime and the gang enhancement." (See § 186.22, subds. (a), (b)(1); People v. Rodriguez (2022) 75 Cal.App.5th 816, 823.)" 'The offenses comprising a pattern of gang activity are referred to as predicate offenses.'" (People v. Rodriguez, at p. 822.) At the time of defendant's trial, "pattern of criminal activity" meant "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 after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (Former § 186.22, subd. (e).) Under this former definition, the prosecution only had to prove that those associated with a gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another. (Ibid.; see People v. Sek (2022) 74 Cal.App.5th 657, 665.) It was unnecessary to prove the predicate offenses were gang related. (Former § 186.22, subd. (e); People v. Rodriguez, at p. 822.)
The amended statute made several changes to the definition and limited type of predicate offenses sufficient to prove the gang enhancement. "First, the predicate offenses now must have been committed by two or more 'members' of the gang (as opposed to any persons). [Citation.] Second, the predicate offenses must be proven to have 'commonly benefited a criminal street gang.' [Citation.] Third, the last predicate offense must have occurred within three years of the date of the currently charged offense. [Citation.] Fourth, the list of qualifying predicate offenses has been reduced. [Citation.] And fifth, the currently charged offense no longer counts as a predicate offense." (People v. E.H. (2022) 75 Cal.App.5th 467, 477-478; § 186.22, subd. (e)(1), (e)(2).) Most notably, the new element that the predicate offenses "commonly benefited a criminal street gang" requires that "the common benefit of the offense is more than reputational." (§ 186.22, subd. (e)(1).) A new subdivision (g) was also added specifying that "[e]xamples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).)
2. Analysis
The parties agree, as do we, that Assembly Bill 333's amendments to section 186.22 apply retroactively to this case, which is not yet final on appeal. Since the amendments to section 186.22 increase the threshold for conviction of a section 186.22 enhancement, defendant - whose judgment of conviction is not yet final - is entitled to the benefit of these changes to the law. (People v. Ramos (2022) 77 Cal.App.5th 1116, 1127 (Ramos).)
Further, the parties agree, as do we, that the changes made by Assembly Bill 333 to section 186.22 undermined the jury's true findings on the gang enhancement allegations. Here, the jury was not allowed to consider whether the evidence presented at trial was sufficient to prove a "pattern of criminal activity" under the amended law. As noted above, the revised definition of "pattern of criminal activity" increased the threshold of proof for the predicate offenses necessary for the gang enhancement. (§ 186.22, subd. (e)(1).) This included the notable new requirement of a common benefit to the gang derived from the predicate offenses, and that benefit be more than reputational (§ 186.22, subd. (e)(1) [" 'pattern of criminal gang activity' means ... the offenses commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational"].) Because the prosecution failed to present any evidence the predicate offenses commonly benefited the Norteno gang, we vacate the section 186.22 gang enhancements alleged in counts 1 through 6.
Defendant further contends, that due to Assembly Bill 333, his sentence as to count 6 (§ 242) must be vacated because his offense would no longer qualify as a felony. (See § 186.22, subd. (d) ["A person who is convicted of . . . a misdemeanor, that is committed for the benefit of . . . a criminal street gang ... shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years ..."].) As we discuss further below, defendant is entitled to a full resentencing, and thus on remand the trial court can reconsider his sentence as to count 6.
"However, the People are not foreclosed from retrying [defendant] on the gang enhancement upon remand under the new requirements of amended section 186.22. Put differently,' "[b]ecause we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial."' (People v. Sek, supra, 74 Cal.App.5th at p. 669; accord, People v. Figueroa (1993) 20 Cal.App.4th 65, 72 .. ['Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence']; see People v. Eagle (2016) 246 Cal.App.4th 275, 280 .. ['When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand'].)" (Ramos, supra, 77 Cal.App.5th at p. 1128.)
B. Defendant's Prior Strike Conviction
Lastly, defendant contends that Assembly Bill 333's amendments to section 186.22 require reversal of his prior 2019 strike conviction. Specifically, he argues "the evidence was insufficient to prove that [his] 2019 conviction qualified as a serious prior felony or strike prior under current law." As noted above, Assembly Bill 333 applies "to all cases ... in which the judgment of conviction is not yet final." (Ramos, supra, 77 Cal.App.5th at p. 1127, italics added.) As the People correctly point out, defendant in his briefing fails to address the issue of whether his 2019 conviction was not yet final as of Assembly Bill 333's effective date of January 1, 2022, and thus, we do not address this argument in this appeal. As we discuss further below, defendant is entitled to resentencing and thus, this decision does not foreclose his ability to address the applicability of Assembly Bill 333 to his 2019 conviction at his later resentencing date.
IV. Defendant is Entitled to Resentencing
Defendant further contends newly enacted Assembly Bill 518 and Senate Bill 567 apply retroactively to his case, and that he is entitled to the benefits of these amendments to the Penal Code. The People concede defendant is entitled to the benefit of these recent amendments, and thus, remand is required. We accept the People's concession, vacate defendant's sentence, and remand for resentencing.
Former section 654 required that an act or omission that was punishable in different ways by different law be punished under the law that provided for the longest possible term of imprisonment. (Former § 654, subd. (a).) Operative January 1, 2021, Assembly Bill 518 amended section 654, removing this requirement and granting the trial court discretion to impose punishment under any of the applicable provisions (Stats. 2021, ch. 441, § 1). Section 654 now provides:
"An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).)
Here, Assembly Bill 518 went into effect on January 1, 2022. Absent evidence to the contrary, the Legislature intends amendments to statutes that reduce the punishment for a particular crime to apply to all defendants whose judgments are not yet final on the amendment's operative date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308, citing to In re Estrada (1965) 63 Cal.2d 740.) Because Assembly Bill 518's amendments to section 654 gives the trial court discretion to lessen punishment, and there is no indication the Legislature intended it to apply prospectively only, the new law must be retroactively applied to all cases not yet final on its effective date. (In re Estrada, at pp. 745-746.) Defendant contends and the People agree the trial court must be permitted to exercise its new discretion under section 654, as amended by Assembly Bill 518, to determine whether to use of the shorter-term offenses that it previously stayed as the basis for defendant's, rather than apply the offenses with the longer term of confinement, as former section 654 required. Accordingly, we agree with the parties that remand is necessary to allow the trial court to exercise its newfound discretion under section 654. We do not address the merits for defendant's claim regarding the application of Senate Bill 567 to his sentence in light of our decision remand is necessary under Assembly
Bill 518. (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["[T]he full resentencing rule allows a court to revisit all prior resentencing decisions when resentencing a defendant"]; accord, People v. Buycks (2018) 5 Cal.5th 857, 893 ["The full resentencing rule"].)
DISPOSITION
Defendant's sentence is vacated and this matter is remanded for resentencing consistent with this opinion. Pursuant to Assembly Bill 333, we dismiss the gang enhancements (§ 186.22, subd. (b)(1)) as to counts 1 through 6, but conclude the People are not foreclosed from retrying defendant on these enhancements on remand.
Thereafter, the trial court is directed to file an amended and corrected abstract of judgment and transmit copies thereof to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR: DETJEN, J., SMITH, J.