Opinion
F083017
05-08-2023
THE PEOPLE, Plaintiff and Respondent, v. DONOVAN JAWAUN KELLEY, Defendant and Appellant.
Spolin Law and Aaron Spolin for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F20905507 Gary D. Hoff, Judge.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
On March 18, 2021, a jury convicted defendant Donovan Jawaun Kelley of the murders of Brian M. and Kiara A. (Pen. Code, § 187, subd. (a); counts 1 &2) and the attempted murders of Queshawn M., Nandi W., and Mary M. (§§ 187, subd. (a), 664; counts 3, 4, &5), and as to all offenses found true the enhancement he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Kelley to a determinate term of 67 years, 6 months, with an indeterminate term of 149 years to life. This case proceeded to trial in February 2021, in the midst of the COVID-19 pandemic. At the time, the Fresno County Superior Court was operating under safety protocols which mandated, among other things, that all persons entering the courthouse wear face masks.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.
Undesignated statutory references are to the Penal Code.
The jury found Kelley guilty of additional offenses and enhancements. We discuss these offenses and enhancements in detail below.
On appeal, Kelley contends: (1) the trial court committed structural, reversible error when it required him, the witnesses, and the jury to wear facial masks throughout the trial; (2) that if this court concludes his constitutional claims are forfeited based on his trial counsel failing to object to the masking requirement, defendant contends he received ineffective assistance of counsel because the masking requirement deprived him of his confrontation rights guaranteed by the Sixth Amendment; and (3) he is entitled to the benefit of newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333), which amended the language of section 186.22, and added section 1109 requiring bifurcation of the trial of gang enhancements from that of the underlying offenses upon a defendant's request. The People concede the amendments to section 186.22 apply retroactively and that Kelley is entitled to a dismissal of the gang enhancements. However, the People argue newly added section 1109 does not apply retroactively and regardless, any failure by the trial court to bifurcate the gang enhancements was harmless based on the fact that "[m]uch, if not all of the gang evidence would have been admissible in relation to the substantive offenses."
Finally, Kelley contends newly enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) (SB 81) applies retroactively to his case, and that he is entitled to the benefit of newly amended section 1385. The People argue this court need not address both SB 81's retroactivity and its applicability to this case because Kelley is already entitled to be resentenced.
We accept the People's concession, vacate the sentence, and remand for resentencing. We conclude AB 333 applies retroactively to the section 186.22 gang enhancements and therefore Kelley is entitled to a dismissal of these enhancements. However, the People are not foreclosed from retrying Kelley on the gang enhancements upon remand. Further, we do not address whether section 1109 applies retroactively, but conclude that any failure by the trial court to bifurcate the gang enhancements was harmless under the state law standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). Lastly, because Kelley is entitled to resentencing, we do not address whether SB 81 applies retroactively to this case. The other claims lack merit. Accordingly, in all other respects, we affirm the judgment.
STATEMENT OF THE CASE
On August 20, 2020, the Fresno County District Attorney filed a dismissed and refiled felony complaint, which was later deemed to be an information, charging Kelley with the murders of Brian and Kiara (§ 187, subd. (a), counts 1 &2) with the enhancement he personally and intentionally discharged a firearm, which proximately caused great bodily injury or death to Brian and Kiara (§ 12022.53, subd. (d)), and the special circumstances there were multiple murders (§ 190.2, subd. (a)(3)) and the murders were intentional, and that he was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)); the premediated attempted murders of Queshawn, Nandi, and Mary (§§ 187, subd. (a), 664, counts 3, 4, &5) with the enhancements he personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (d)); and knowingly and maliciously dissuaded Alicia W. from testifying (§ 136.1, subd. (a)(1), count 6). As to all counts, it was further alleged Kelley committed the offenses in the furtherance of a criminal street gang (§ 186.22, subd. (b)(1)) and that he suffered a prior juvenile strike adjudication for robbery ((§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 211).
As to count 3, it was further alleged Kelley personally inflicted great bodily injury upon Queshawn (§ 12022.7, subd. (a)).
On March 18, 2021, a jury convicted Kelley of the second degree murders of Brian and Kiara (§ 187, subd. (a), counts 1 &2) and as to both counts found true the firearm enhancements (§ 12022.53, subd. (d)); the attempted murders of Queshawn, Nandi, and Mary (§§ 187, subd. (a), 664, counts 3, 4, &5) and found true the firearm enhancements (§ 12022.53, subds. (c), (d)); and dissuading Alicia from testifying as a witness (§ 136.1, subd. (a)(1), count 6) and found true the allegation the threat was made with an express or implicit threat of force or violence upon Alicia (§ 136.1, subd. (c)(1)). As to all counts, the jury found true the gang enhancements (§ 186.22, subd. (b)(1)). As to counts 1 and 2, the jury found defendant not guilty of first degree murder (§§ 187, subd. (a), 189, counts 1 &2) and found not true the allegations the attempted murders were committed willfully, deliberately, and with premeditation (§§ 187, subd. (a), 189, 664, counts 3, 4, &5). Kelley stipulated that he suffered a prior juvenile strike adjudication for robbery (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 211).
As to counts 1 and 2, because the jury found Kelley not guilty of first degree murder, the jury also found not true the multiple murder special circumstance (§ 190.2, subd. (a)(3)) and was not required to address the gang special circumstance (§ 190.2, subd. (a)(22)).
As to the attempted murder of Queshawn, the jury also found not true the enhancement Kelley personally inflicted great bodily injury upon Queshawn (§ 12022.7, subd. (a)).
As to count 1, the trial court imposed an indeterminate term of 15 years to life, doubled to 30 years to life because of the prior strike adjudication, and imposed a consecutive indeterminate term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). As to count 2, the trial court imposed a consecutive indeterminate term of 15 years to life, doubled to 30 years to life because of the prior strike adjudication, imposed a consecutive indeterminate term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and imposed an additional consecutive 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)). As to count 3, the trial court imposed the upper term of nine years, doubled to 18 years because of the prior strike adjudication, to run consecutive to count 2, and imposed a consecutive indeterminate term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)) and a consecutive 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)). As to count 4, the trial court imposed the middle term of four years, eight months (one-third the middle term of seven years, doubled to 14 years because of the prior strike adjudication), to run consecutive to count 3, and imposed consecutive terms of six years, eight months (one-third of the 20-year term) for the gun enhancement and three years, four months (one-third of the 10-year term) for the gang enhancement. As to count 5, the trial court imposed the middle term of 4 years, 8 months (one-third the middle term of seven years, doubled to 14 years because of the prior strike adjudication), to run consecutive to count 4, and imposed consecutive terms of six years, eight months (one-third of the 20 year term) for the gun enhancement and three years, four months (one-third of the 10-year term) for the gang enhancement. Lastly, as to count 6, the trial court imposed an indeterminate term of seven years to life, doubled to 14 years to life because of the prior strike adjudication, to run consecutive to count 1. The total term imposed was a determinate term of 67 years, 6 months and an indeterminate term of 149 years to life.
There are numerous discrepancies between the oral pronouncement of judgment, minute order, and abstract of judgment regarding Kelley's determinate sentence. As we discuss below, Kelley is entitled to a full resentencing and therefore, any discrepancies can be addressed by the trial court during his resentencing.
FACTS
I. Prosecution Case-in-Chief
A. Events Prior to the Shooting
Tenzie J. lived in an apartment complex in Fresno, near Ashlan Avenue, and sold marijuana to Brian from his apartment. Brian, Mary, and Queshawn were siblings, and Brian and Kiara were in a relationship. Mary and Nandi were also in a relationship. At some point, a North Side Pleasant (NSP) gang member told Tenzie to not sell marijuana to rival gang members. Subsequently, after Brian had purchased marijuana, NSP gang members approached Tenzie and asked him whether Brian was a rival gang member. The group believed Tenzie was selling marijuana to rival gang members, which included Brian, and told Tenzie if we "catch these niggas over there we'll smoke them."
B. The Shooting
On April 28, 2019, at approximately 1:45 a.m., Nandi drove Brian, Mary, Queshawn, and Kiara in a car to the apartment complex to use the apartment's Wi-Fi. While Nandi was driving, Queshawn was seated in the front passenger seat and Brian, Mary, and Kiara were seated in the back seats. After arriving at the apartment complex, Brian got out of the car and went into Tenzie's apartment. Brian "asked if [Tenzie] had a firearm for sale" and appeared "a little shook up or nervous." Tenzie did not provide Brian a firearm. Brian then returned to the car and sat in the driver's seat, whereas Queshawn remained in the front passenger seat and Nandi sat in the back seat with Mary and Kiara.
Brian "started the car and started backing out" of the parking space when four African American men, including Kelley who was wearing a black hoodie, approached the car. Kelley had a handgun and another individual had an assault rifle. Queshawn testified he recognized Kelley because they had been housed together at juvenile hall.Queshawn and Tenzie knew Kelley by the street name of "Doughboy." Kelley asked," 'Where you from'" and Queshawn replied," 'We don't bang.'" and" 'You know me, we was - you know, incarcerated together.'" At this point, Kelley and the other individual fired at the car more than 10 times.
Probation Officer A. Apodaca testified, and the People introduced juvenile records demonstrating that Kelley and Queshawn were housed in the same location at juvenile hall between the dates of September 19, 2013, and October 10, 2013.
Both Nandi and Queshawn identified Kelley as a shooter in court.
Brian then accelerated the car and "went through a brick wall" into a canal. Before going into the canal, Brian was "face down on the steering wheel" and Mary "told Queshawn to hit the brakes, but he couldn't and then [they] went into the canal." Mary then tried to pull Brian out of the car and "take off his seatbelt but it wouldn't come off." Mary and Queshawn were able to exit the car and get out of the canal, while Nandi pulled Kiara out of the car and got onto its roof. The gunshots killed Brian and Kiara, whereas Queshawn sustained a bone fracture to his left arm caused by a gunshot. After the shooting, a white Dodge Charger and a dark colored car sped away from the apartment complex towards Fruit Avenue.
C. Subsequent Law Enforcement Investigation
Law enforcement arrived on scene and observed several bullet holes on the rearend of the victims' car. Officers also located bullets of two different calibers at the apartment complex - "[o]ne of them was a rifle round 7.62 and the second was a nine millimeter." Officers interviewed Tenzie who believed the NSP gang was responsible for the shooting because he had been confronted several different times by its members with guns. Tenzie and Queshawn told officers Kelley went by the nickname of" 'Dough Boy.'" Based on this information, officers monitored two Facebook accounts with the names of" 'Dough Hannlin'" and" 'Dough and Getem,'" and linked both of them to Kelley based on his repeatedly appearing in pictures throughout both accounts.
D. Events After the Shooting
In April 2019, Alicia and Kelley were in a sexual relationship. During their relationship, Kelley was physically abusive towards Alicia. In one instance, prior to the shooting, Kelley pointed a gun at Alicia's back and fired the gun up into the air.
On the night of the shooting, Alicia was awakened by a phone call from Kelley. The next morning Kelley told Alicia "he thought he had shot a kid while he was shooting at the car. He thought a kid was in the car." They both ended up leaving Fresno either that day or the next. On their way out of town, Kelley threw his cell phone in the dirt near a Madera hospital and told Alicia he got rid of the phone "[s]o it wouldn't be tracked or something." Later on, Kelley told Alicia they "had shot at the car because they thought that the car was about to shoot them." Kelley then told Alicia if she told anyone about the shooting she "would end up like that lame ass nigga." Alicia further testified Kelley's friends referred to him as "Dough" or "Dough Boy."
E. Gang Evidence
Officer J. Moreno testified as an expert on the NSP gang. She testified the NSP gang is a mostly African American criminal street gang that resides in Fresno County and their main rival is the East Lane Crips. Officer Moreno testified the NSP is "heavily involved in human trafficking, robberies. They get into a lot of fights that result in great injury [] [a]nd they're involved in a lot of shootings and then often homicides." Further, the NSP "control[s] what goes on in th[eir] turf" and "if you were to be caught doing narcotics inside of that turf, there would be results. There would be some type of consequence for that."
Officer Moreno testified Jarmal Packard was a member of the NSP gang. Packard was convicted of assault with means likely to cause great bodily injury with a gang enhancement. She opined Packard committed this crime for the benefit of the NSP gang. Officer Moreno further testified Lawrence Chiles "was a very active member of [NSP]" in May 2013. Chiles was convicted of shooting at an inhabited dwelling and Officer Moreno testified he committed this crime for the benefit of the NSP gang. Officer Moreno further testified Jack Henderson was an active NSP gang member. Henderson was convicted of assault with a firearm and felony evading, and Officer Moreno testified he committed these crimes for the benefit of the NSP gang.
Lastly, Officer Moreno testified Kelley was an active member of the NSP gang. Officer Moreno was then presented with a hypothetical based on the facts of the underlying offenses and she testified the crimes were "100 percent . . . for the benefit of the [NSP] gang."
II. Defense Case-In-Chief
Trial counsel called several officers to the stand who testified they did not collect any physical evidence or surveillance footage connecting Kelley to the shooting. Further, trial counsel recalled Alicia who, after being presented with social media photographs purportedly showing her making gang signs, denied making any gang signs. She further maintained she was afraid of Kelley, but admitted she asked him to come back even after being abused.
Trial counsel then recalled several of the apartment complex's residents who reiterated they did not observe Kelley after hearing the gunshots. Further, Tenzie also testified he did not observe Kelley near the apartment complex the night of the shooting. Trial counsel also recalled Queshawn who testified he did not immediately identify Kelley as the shooter because he "was real angry, basically trying to push [the officers] away." However, he reiterated he recognized Kelley from juvenile hall and saw him "[e]very day."
DISCUSSION
I. COVID-19 Masking
First, Kelley contends the trial court committed structural, reversible error when it required him, the witnesses, and the jury to wear face masks throughout the trial due to the COVID-19 pandemic. Second, assuming this court concludes his constitutional claims are forfeited based on his trial counsel failing to object to the masking requirement, Kelley contends he received ineffective assistance of counsel.
Kelley concedes his trial counsel failed to object to the trial court's masking requirement and therefore, he has forfeited the present constitutional claims on appeal. (See People v. Arredondo (2019) 8 Cal.5th 694, 710 (Arredondo) [a defendant's failure to object to an alleged confrontation clause violation forfeits the claim on appeal].) However, as discussed below, we have discretion to consider the claim on its merits (In re Sheena K. (2007) 40 Cal.4th 875, 887), and conclude the trial court did not err in requiring masks throughout the trial. Alternatively, we conclude Kelley did not receive ineffective assistance of counsel.
A. Additional Background
Prior to jury selection and throughout the jury selection process, the trial court informed the jury it would be requiring face masks throughout the trial. The trial court stated the following immediately before jury selection:
"Because of the pandemic and the current emergency rules of court, the Court has created certain protocols to protect the health, safety[,] and welfare of those who are required to access the courthouses in Fresno County, and that certainly includes those of you summoned for jury duty. Those protocols include a screening process at the entry level of each courthouse, and we ask for your understanding and patience as we go through this process. All persons within courthouse facilities are also required to wear masks and to the extent that we can, we are trying to abide by social distancing. Because of that, you will see in this room we have chairs in certain locations. Please do not move your chairs. You may be in a position because of pillars you can't see. We'll try to move ourselves to see you rather than have you move unless we direct you to do so because those spots of the chairs right now are for your own welfare.
"Wearing of masks at times diminishes our ability to speak clearly and to be heard. We all need to remember that everyone in this room needs to be able to see and hear what's being said, so please, if we're speaking to you, speak loudly so that everyone can hear you. If you cannot hear or see what's being said, please let me know immediately and we'll make an adjustment to the situation by either repeating matters or restating matters or perhaps moving you so you can see and hear."
Additionally, as it related to testifying witnesses, the trial court stated the following:
"We do have the plexiglass shields. I am going to require that witnesses keep their masks on while testifying unless and until I'm satisfied that for whatever reason they cannot be heard distinctly at which point I may allow them to take off their mask. They are shielded from the jurors and from me and the court reporter who are the closest people to them by the plexiglass."
Prior to the commencement of trial and before the jury entered the courtroom, the trial court noted:
"The record will reflect that everyone in the court is abiding by the Court's protocols, social distancing, and wearing masks pursuant to presiding judge's directive because of the pandemic."
Throughout the trial proceedings neither party objected to the masking order.
The record is clear that all parties, specifically Kelley, the witnesses, and the jury were masked throughout the entire trial.
B. Right to a Fair Trial
Kelley contends the trial court's masking requirement constituted a structural, reversible error because it denied him his constitutional right to a fair trial. We disagree.
" 'A criminal defendant's right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by [Penal Code] sections 977 and 1043.'" (People v. Blacksher (2011) 52 Cal.4th 769, 798-799.) Our high court has recognized that "most constitutional errors can be harmless." (Arizona v. Fulminante (1991) 499 U.S. 279, 306 (Fulminante).) "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." (Rose v. Clark (1986) 478 U.S. 570, 579.) "Indeed, [our high court] ha[s] found an error to be 'structural,' and thus subject to automatic reversal, only in a 'very limited class of cases.' [Johnson v. United States (1997) 520 U.S. 461, 468 (complete denial of counsel); Turney v. Ohio (1927) 273 U.S. 510 (biased trial judge); Vasquez v. Hillery (1986) 474 U.S. 254 (racial discrimination in selection of grand jury); McKaskle v. Wiggins (1984) 465 U.S. 168 (denial of self-representation at trial); Waller v. Georgia (1984) 467 U.S. 39 (denial of public trial); Sullivan v. Louisiana (1993) 508 U.S. 275 (defective reasonable-doubt instruction)]." (Neder v. United States (1999) 527 U.S. 1, 8 (Neder).) "Put another way, these errors deprive defendants of 'basic protections' without which 'a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.'" (Id. at pp. 8-9.)
First, Kelley has cited no authority that a masking requirement is a structural error, requiring automatic reversal. Second, trial courts have inherent authority and "broad discretion to control courtroom proceedings in a manner directed toward promoting the safety of witnesses" and all parties involved in the trial proceedings. (People v. Pena (2012) 207 Cal.App.4th 944, 949.) Third," '[a]lthough a defendant is entitled to a fair trial, he or she is not entitled to 'a perfect one.'" (People v. Capers (2019) 7 Cal.5th 989, 1017.)
Therefore, we do not find the trial court's implementation of COVID-19 safety protocols, implemented in accordance with the emergency rules of court and the presiding judge's directive, deprived Kelley of" 'basic protections'" such that his "criminal trial [could not] reliably serve its function as a vehicle for determination of guilt or innocence." (Neder, supra, 527 U.S. at pp. 8-9.) Accordingly, this absence of authority, coupled with the COVID-19 public health emergency and the need for safety measures, undercuts Kelley's assertion the trial court's masking requirement is a fundamental constitutional error that" 'transcends the criminal process.'" (Fulminante, supra, 499 U.S. at p. 311.) Additionally, we conclude the masking requirement was neither constitutional, nor state law error.
Because we conclude the masking requirement was not error, we do not address the standard of prejudice to be applied. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [Prejudice analyzed under the standard of "harmless beyond a reasonable doubt"]; Watson, supra, 46 Cal.2d at p. 836 [Prejudice analyzed under the standard of whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"].)
C. Ineffective Assistance of Counsel Claims
Alternatively, Kelley contends he received ineffective assistance of counsel when his trial counsel did not object to the trial court's requirement that he, the witnesses, and the jury be masked throughout the extent of the trial because it violated his right to confrontation under the Sixth Amendment. Additionally, he argues his trial counsel was ineffective for failing to request that clear masks be issued to all parties, specifically himself and the witnesses, during the trial. We again disagree.
i. Standard of Review
Kelley 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 (Anderson).) 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.'" (Arredondo, supra, 8 Cal.5th at p. 711.)
ii. Applicable Law
" 'The Sixth Amendment to the United States Constitution, . . . provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." . . . [I]t guarantees a defendant's right to confront those "who 'bear testimony'" against him.'" (People v. Powell (2011) 194 Cal.App.4th 1268, 1281.) "The confrontation clause not only affords defendants the right to personally examine adverse witnesses, it also' "(1) insures that the witness will give his statements under oath - thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to crossexamination, the 'greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." [Citation.] [¶] The combined effect of these elements of confrontation . . . serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.'" (In re Ruedas (2018) 23 Cal.App.5th 777, 786, quoting Maryland v. Craig (1990) 497 U.S. 836, 845-846 (Craig).)
In Craig, our high court recognized "that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person." (Craig, supra, 497 U.S. at p. 846.) Specifically, as Justice Kennedy in his concurring opinion in Riggins v. Nevada (1992) 504 U.S. 127 (Riggins) emphasized:
"It is a fundamental assumption of the adversary system that the trier of fact observes the accused throughout the trial, while the accused is either on the stand or sitting at the defense table. This assumption derives from the right to be present at trial, which in turn derives from the right to testify and rights under the Confrontation Clause. [Citation.] At all stages of the proceedings, the defendant's behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an overall impression on the trier of the fact, an impression that can have a powerful influence on the outcome of the trial. If the defendant takes the stand, as [the defendant] did, his demeanor can have a great bearing on his credibility, persuasiveness, and on the degree to which he evokes sympathy. The defendant's demeanor may also be relevant to his confrontation rights." (Riggins, at p. 142, conc. opn. Kennedy, J.).)
However, our high court also recognized that "[a]lthough face-to-face confrontation forms 'the core of the values furthered by the Confrontation Clause,' [citation], we have nevertheless recognized that it is not the sine qua non of the confrontation right." (Craig, supra, 497 U.S. at p. 847; accord, People v. Wilson (2021) 11 Cal.5th 259, 290.) Rather," 'the Confrontation Clause reflects a preference for face-to-face confrontation at trial,' [citation], a preference that 'must occasionally give way to considerations of public policy and the necessities of the case[.]'" (Craig, at p. 849, italics in original.) Though the "face-to-face confrontation requirement is not absolute," it cannot "easily be dispensed with," and may be denied "only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." (Id. at p. 850.)
iii. Analysis
a. The Masking Requirement for Kelley and the Jury.
Here, the masking requirement for Kelley and the jury did not violate Kelley's right to confrontation. Being able to see jurors' noses and mouths "is not essential" for assessing credibility because "[d]emeanor consists of more than those two body parts" since it "includes the language of the entire body." (United States v. Crittenden (M.D. Ga., Aug. 21, 2020, No. 4:20-CR-7 (CDL)) 2020 WL 4917733, 2020 U.S. Dist. LEXIS 151950 (Crittenden).) During the trial, even with the masking requirement, trial counsel could still observe and evaluate other aspects of a jurors' body language that was fully visible during the trial. Further, although trial counsel could not see the jurors' noses and mouths, trial counsel still had the opportunity to assess the credibility of the potential jurors, which he did through questionnaires and voir dire during the jury selection process. Therefore, Kelley's right to confrontation was not violated when the jurors were required to wear masks throughout the trial.
Additionally, Kelley argues his wearing of a mask throughout the trial inhibited the jury from "properly examin[ing] [his] behavior, manner, facial expressions, and emotional responses, or their absence." As noted above, demeanor consists of more than observing the nose and mouth and "includes the language of the entire body" (Crittenden, supra, 2020 WL 4917733), and therefore, the jury had the ability to observe his demeanor throughout the trial. Accordingly, Kelley's right to confrontation was not violated when both he and the jury were required to wear masks throughout the length of the trial.
b. The Masking Requirement for Witnesses
Second, Kelley's right to confrontation was not violated when the witnesses were also required to wear masks. Three cases, People v. Edwards (2022) 76 Cal.App.5th 523 (Edwards), People v. Lopez (2022) 75 Cal.App.5th 227 (Lopez), and People v. Alvarez (2022) 75 Cal.App.5th 28 (Alvarez), have concluded that requiring witnesses to wear masks covering their nose and mouth during their testimony does not violate the confrontation clause because of the substantial risks created by the COVID-19 pandemic. Because there were no California published cases addressing whether the mask requirement violated the confrontation clause when Alvarez and Lopez were decided, both cases adopted and expanded upon the reasoning in numerous federal cases, which concluded that due to the substantial public health risks created by the COVID-19 pandemic, having witnesses wear masks did not violate the confrontation clause. (Alvarez, at pp. 36-38, fn. 7; Lopez, at pp. 232-233.)
As Alvarez points out, nearly every state and federal court to consider the issue during the COVID-19 pandemic has found no confrontation clause violation even though a witness was wearing a mask. (Alvarez, supra, 75 Cal.App.5th at p. 38, fn. 7, citing to United States v. Holder (D. Colo. Sept. 27, 2021, No. 18-cr-00381-CMA-GPG-01) 2021 WL 4427254, 2021 U.S. Dist. Lexis 184017; United States v. Maynard (S.D.W.Va. Nov. 3, 2021, No. 2:21-cr-00065) 2021 WL 5139514, 2021 U.S. Dist. Lexis 211943; State v. Jesenya O. (N.M. Ct. App. 2021) 493 P.3d 418; United States v. James (D. Ariz. Oct. 14, 2020, No. CR-19-08019-001-PCT-DLR) 2020 WL 6081501, 2020 U.S. Dist. Lexis 190783; States v. Clemons (D. Md. Nov. 4, 2020, No. RDB-19-0438) 2020 WL 6485087, 2020 U.S. Dist. Lexis 206221; but cf. United States v. Thompson (D.N.M. 2021) 543 F.Supp.3d 1156 [granting motion in limine requesting unvaccinated testifying witnesses to wear a clear face shield to protect against virus transmission; such an order "appropriately strike[s] the balance of minimizing health risks" while "retaining the full force of Mr. Thompson's Sixth Amendment rights"].)
In Alvarez, defense counsel expressed concern that allowing witnesses to wear masks while testifying would violate the defendant's constitutional right to confrontation. (Alvarez, supra, 75 Cal.App.5th at p. 34.) However, the trial judge required witnesses to wear masks but allowed them to remove the masks" 'momentarily'" so they could be seen. (Ibid.) The Alvarez court agreed with the trial judge's order because mask wearing during the COVID-19 pandemic "served an important state interest in protecting the public from a contagious, and too often, lethal, disease." (Id. at p. 36.) As to less restrictive alternatives, such as face shields and plexiglass screens, the court reasoned," 'The CDC [(Center for Disease Control and Prevention]) also makes a distinction between "masks" and "face shields," which is what the Government recommends here. The CDC finds that face shields are not as effective as masks, and it does not recommend substituting face shields for masks. [Citation.] Given the CDC recommendations, which are based on the best available science in this area,'" the court concluded the CDC's" 'social distancing and mask protocols are necessary and essential to protect the courtroom participants during a trial.'" (Id. at. p. 37.)
The Alvarez court concluded the Craig elements inherent in the confrontation clause were satisfied because the witnesses were physically present in the courtroom, under oath, and subject to "rigorous cross-examination, '" 'the greatest legal engine ever invented for the discovery of truth.'" '" (Alvarez, supra, 75 Cal.App.5th at pp. 37-38, quoting Craig, supra, 497 U.S. at p. 846.) Although the masks covered their mouths and noses, the court observed "significant aspects of their appearance, including the eyes, tops of the cheeks, and the body, [along with] posture, tone of voice, cadence and numerous other aspects of demeanor: 'Demeanor includes the language of the entire body [and] jurors will be able to observe most facets of the witnesses' demeanor.'" (Id. at p. 38.) Accordingly, the court concluded that as long as all procedural safeguards for ensuring reliability were present, "despite some minimal limitation on a jury's ability to assess witness demeanor," the confrontation clause was not violated. (Id. at pp. 38-39.)
Similarly, the courts in Lopez and Edwards held the mask requirements did not violate a defendant's right to confrontation. (Lopez, supra, 75 Cal.App.5th at p. 236; Edwards, supra, 76 Cal.App.5th at p. 525.) In Lopez, the court declined to infringe on the trial court's inherent authority to "promulgate procedures best suited for their particular courtrooms as they confront the challenges presented by the global pandemic." (Lopez, at p. 236.) Additionally, Edwards held the trial court properly denied the defendant's motion to bar witnesses from testifying through a mask because "[t]he trial court in this case was not trying to hide or obscure identities or the truth. It was following national safety guidelines and court orders in response to a deadly and worldwide pandemic. This pandemic potentially affects everyone. The disease spreads through social contact. This pandemic has been long and unpredictable." (Edwards, at p. 527.)
Here, we agree with the reasonings of Alvarez, Lopez, and Edwards, and reject Kelley's claims for the reasons expressed in each case. In view of the COVID-19 pandemic, we hold the trial court's masking order was justified by the strong interest in safeguarding the health and safety of everyone in the courtroom. This public health emergency, where protective measures such as plexiglass dividers, face masks, and social distancing were implemented, redefined how a "normal" trial operates. With that being said, different does not equate to unfair. The masking order still allowed the jury and Kelley to assess the reliability and credibility of the witnesses by taking into consideration such factors as their demeanor, appearance, tone of their voice, recollection, and consistency and inconsistency in their testimony and accordingly, did not violate the confrontation clause.
c. Trial Counsel was Competent
Here, as noted above, Kelley's right to confrontation was not violated when the trial court required him, the witnesses, and the jury to wear masks throughout the entire trial. Accordingly, trial counsel's decision to not object to the masking requirement did not constitute deficient performance because an objection would have been futile. (People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would have been futile."].)
Nonetheless, Kelley argues trial counsel was ineffective for failing to request that he, the witnesses, and the jury be required to wear clear masks to ensure all parties were fully able to observe each other's demeanor throughout the trial. Edwards is again instructive. In Edwards, the defendant argued "the trial court instead could have ordered 'clear masks' or use of 'a face shield with a cloth drape along the bottom'" in lieu of the opaque masks permitted throughout the trial. (Edwards, supra, 76 Cal.App.5th at p. 527.) However, the court disagreed because the defendant "offered no evidence an objective authority appraised these alternatives to be effective in combatting the disease's spread." (Ibid.)
It appears that clear masks became available to the parties in the middle of trial. Specifically, prior to Dr. V. Gopal's testimony, the trial court asked him whether he would prefer to wear his own mask, or a clear mask made available by the court. It is unclear whether Dr. Gopal chose to wear his own mask or the clear mask.
Here, the record is silent as to whether trial counsel spoke with Kelley about the options of wearing a clear mask or requesting witnesses and the jury to be required to wear them once they became available. Because the record is silent, "the conviction must be affirmed unless there could be no reasonable satisfactory explanation." (Anderson, supra, 25 Cal.4th at p. 569.) Trial counsel and Kelley may have preferred their own masks and followed CDC guidelines available at the time which stated, "Cloth masks and medical procedure masks substantially reduce exposure from infected wearers . . . and reduce exposure of uninfected wearers[,]" both of which are opaque in nature. (Center for Disease Control and Prevention, Maximizing Fit for Cloth and Medical Procedure Masks to Improve Performance and Reduce SARS-CoV-2 Transmission and Exposure, 2021, Feb. 10, 2021, <https://www.cdc.gov/mmwr/volumes/70/wr/mm7007e1.htm?s_cid =mm7007e1_w>.) Further, trial counsel may have concluded clear masks were unnecessary for him to effectively cross-examine the witnesses and present his defense. In fact, the jury ended up acquitting Kelley of the first degree murders of Brian and Kiara (§ 187, subd. (a), counts 1 &2), and finding not true the multiple murder special circumstance alleged in counts 1 and 2 (§ 190.3, subd. (a)(3)); the premeditated attempted murders alleged in counts 3, 4, and 5 (§§ 187, subd. (a), 664); and the great bodily injury allegation in count 3 (§ 12022.7, subd. (a)). We conclude trial counsel's decision to not request that Kelley, the witnesses and the jury be required to wear clear masks did not constitute deficient performance.
Because we conclude trial counsel's performance was not deficient, we do not address whether Kelley was prejudiced by trial counsel's performance. (See People v. McDermott (2002) 28 Cal.4th 946, 991 ["[A] defendant claiming ineffective assistance of trial counsel must show both that counsel's performance was deficient and that this deficient performance prejudiced defendant's case"], italics added.)
II. AB 333
AB 333 amended the language of section 186.22 to modify the showing necessary to prove gang offenses and gang enhancement (Stats. 2021, ch. 699, § 3, eff. Jan. 1, 2022), and added section 1109, requiring bifurcation of the trial of gang enhancements and substantive gang offenses from that of the underlying offenses upon a defendant's request. (§ 1109, subds. (a), (b).)
Kelley contends he is entitled to the benefit of newly enacted AB 333 because it applies retroactively and argues the gang enhancements should be dismissed because the prosecution admitted "gang member's individual participation in a given crime," which "does not qualify as a predicate offense" under the amended law. The People concede the amendments to section 186.22 apply retroactively and agree the section 186.22 enhancements must be dismissed. We therefore accept the People's concession and reverse the section 186.22 enhancements, but also conclude that on remand the People may elect to retry Kelley on the enhancements.
i. Applicable Law
As to all counts, the jury found true the gang enhancements (§ 186.22, subd. (b)(1)). At the time of Kelley'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 [enumerated] criminal acts ..., 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).) AB 333 amended the language of section 186.22 to modify the showing necessary to prove gang offenses and gang enhancements (Stats. 2021, ch. 699, § 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, AB 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 (Rodriguez).) "The offenses comprising a pattern of gang activity are referred to as predicate offenses." (Id. at p. 822.) At the time of Kelley'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. (Former § 186.22, subd. (e); see People v. Sek (2022) 74 Cal.App.5th 657, 665 (Sek).) It was unnecessary to prove the predicate offenses were gang related. (Former § 186.22, subd. (e); Rodriguez, supra, 75 Cal.App.5th 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, italics in original.] 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." (Id. at subd. (e)(1).) A new subdivision (g) was also added specifying that "[e]examples 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).)
ii. Analysis
The parties agree, as do we, that AB 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, Kelley - 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 AB 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 new requirement of a common benefit to the gang derived from the predicate offenses, and that the benefit must 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 jury's true findings as to the section 186.22 gang enhancements as alleged in all counts.
"However, the People are not foreclosed from retrying [Kelley] 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."' (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.) Thus, "the proper remedy is to vacate the gang enhancements and remand the matter to allow the prosecution the opportunity for a retrial." (People v. Burgos (2022) 77 Cal.App.5th 550, 564 (Burgos), review granted July 13, 2022, S274743.)
B. Section 1109
Kelley also contends newly enacted section 1109 should apply retroactively to his case and requires reversal of his underlying conviction; he is "entitled to a new trial which bifurcates the gang enhancements." The People contend Kelley's failure to request bifurcation of the gang enhancements forfeited his claim on appeal, that section 1109 applies prospectively only, and moreover, any failure to bifurcate was harmless based on the fact that "[m]uch, if not all of the gang evidence would have been admissible in relation to the substantive offenses." We need not decide whether there was a forfeiture, and need not address the retroactivity of section 1109, because any failure to bifurcate was harmless.
i. Applicable Law
"Pursuant to section 1109, subdivision (a), upon a defendant's request, a case in which a gang enhancement is charged under section 186.22, subdivision (b) or (d) must be tried in separate phases. Section 1109, subdivision (b) provides that '[i]f a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.'" (Ramos, supra, 77 Cal.App.5th at p. 1129.)
Section 1109 was added because:
"(e) "California courts have long recognized how prejudicial gang evidence is. [Citation.] Studies suggest that allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions. [Citations.] The mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence.
"(f) Bifurcation of trials where gang evidence is alleged can help reduce its harmful and prejudicial impact." (Stats. 2021, ch. 699, § 2, subds. (e), (f).)
As of today, the Courts of Appeal are split on whether section 1109 applies retroactively. (Compare Burgos, supra, 77 Cal.App.5th at pp. 565-568 [holding section 1109 applies retroactively under the Estrada rule], review granted, Ramos, supra, 77 Cal.App.5th at pp. 1128-1131 [same], with People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [holding section 1109 is not retroactive], review granted Aug. 17, 2022, S275341; People v. Boukes (2022) 83 Cal.App.5th 937, 947-948 [same], review granted Dec. 14, 2022, S277103; and People v. Perez (2022) 78 Cal.App.5th 192, 207 [same], review granted Aug. 17, 2022, S275090.) Our Supreme Court in People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran), declined to resolve this split, concluding any failure to bifurcate the gang enhancements was harmless. Notably, whether section 1109 applies retroactively to nonfinal cases is an issue currently pending before our Supreme Court in Burgos.
In re Estrada (1965) 63 Cal.2d 740.
In Tran, our Supreme Court concluded the failure to bifurcate did not render the trial fundamentally unfair such that it required under the standard for federal constitutional error articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (Tran, supra, 13 Cal.5th at p. 1209.) Accordingly, the court considered whether the defendant was prejudiced under the state law standard of review in Watson, supra, 46 Cal.2d 818, and concluded the defendant had failed to establish prejudice as to his guilty verdicts. (Tran, at p. 1209.) Therefore, the court rejected the contention the failure to bifurcate as required under section 1109 constitutes structural error. (Id. at p. 1208.)
Here, as in Tran, it is unnecessary to address the parties' claims regarding retroactivity because we conclude the failure to bifurcate the proceedings was harmless. For the reasons discussed further below, we cannot conclude the admission of the gang evidence rendered Kelley's trial "fundamentally unfair" such that it resulted in a due process violation and requires us to review for prejudice under the Chapman standard for constitutional error. (See Tran, supra, 13 Cal.5th at p. 1209.)
ii. Analysis
Therefore, applying the Watson standard for state law error, we cannot conclude it is reasonably probable Kelley would have obtained a more favorable result in the absence of the gang evidence that would not have been presented had the gang enhancements been bifurcated. (See Watson, supra, 46 Cal.2d at p. 836.) As in Tran, "the case for guilt here was strong." (Tran, supra, 13 Cal.5th at pp. 1209-1210.) Two of the victims, Nandi and Queshawn, identified Kelley in court as a shooter. Queshawn identified Kelley as the individual with the handgun, and testified he recognized Kelley from when they were housed together at juvenile hall. Further, Queshawn referred to Kelley by his street name of "Dough Boy," which was then corroborated by both Tenzie and Kelley's girlfriend, Alicia. In addition, the morning after the shooting, Alicia testified that Kelley told her "he thought he had shot a kid while he was shooting at the car. He thought a kid was in the car" and later on told her he "shot at the car because they thought that the car was about to shoot them."
Second, nothing in AB 333 limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges. "The People are generally entitled to introduce evidence of a defendant's gang affiliation and activity if it is relevant to the charged offense." (People v. Chhoun (2021) 11 Cal.5th 1, 31.) Here, the gang evidence could have been admissible and relevant to the underlying charges to establish a motive for the shooting. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 ["[E]vidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative"].) It was relevant for the jury to hear that Tenzie sold marijuana to Brian, and that the NSP gang was angry at him for selling drugs to potential rival gang members. Therefore, the gang evidence was relevant to establish motive to kill Brian because the NSP gang "control[s] what goes on in th[eir] turf" and "if you were to be caught doing narcotics inside of that turf, there would be . . . some type of consequence for that."
We further note the jury was provided a limiting instruction regarding its consideration of the gang evidence, which we presume it followed. (People v. Pearson (2013) 56 Cal.4th 393, 414 ["We presume that jurors understand and follow the court's instructions."].) Specifically, the jury was instructed that it could consider gang evidence in deciding whether Kelley: (1) acted with intent, purpose, and knowledge; (2) had a motive to commit the crimes charged; (3) believed in the need to defend himself; or (4) acted in the heat of passion. The trial court further instructed the jury it could "not consider this evidence for any other purpose" and "may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime." Accordingly, on this record, we cannot conclude Kelley was prejudiced by the failure to bifurcate the gang enhancements from the underlying charges. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051 ["Any evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants' actual guilt."].) Accordingly, Kelley is not entitled to a reversal on this ground.
III. SB 81
Lastly, Kelley contends newly enacted SB 81 applies retroactively to his case, and that he is entitled to the benefit of newly amended section 1385. The People disagree and contend SB 81 "applies only to sentencings that occur on or after January 1, 2022," but argue that this court need not address SB 81's retroactivity because Kelley is already entitled to be resentenced. We agree with the People and do address SB 81's retroactivity because Kelley is entitled to a full resentencing. (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["[T]he full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant"]; accord, People v. Buycks (2018) 5 Cal.5th 857, 893-894 ["the full resentencing rule"].)
DISPOSITION
Defendant's sentence is vacated and this matter is remanded for resentencing consistent with this opinion. Pursuant to AB 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 Kelley 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: LEVY, Acting P. J. SMITH, J.