People v. Ohlinger CA4/1 ( 2022 )

Filed 5/27/22 P. v. Ohlinger CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078839
Plaintiff and Respondent,
v.
(Super. Ct. No. FVI19002547)
WILLIAM DEXTER OHLINGER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Michael A. Smith, Judge. Affirmed in part; reversed in part, with
instructions.
Steven A. Torres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Arlene A. Sedival, Assistant Attorney General, Steve
Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant William Dexter Ohlinger was sentenced to 22 years in
prison based on a 20-count amended information that included multiple
enhancements for crimes he committed between April and September 2019.
These crimes were committed by Ohlinger while a member of the White
Power Gangsters (WPG), and included robbery, burglary, possession of a
firearm and live ammunition, transportation of methamphetamine for sale,
false impersonation, felony evasion, and participation in a criminal street
gang. By mid-2019, WPG had committed about 80 robberies and burglaries
of marijuana grow houses, with the proceeds benefitting WPG and the Aryan
Brotherhood prison gang. All of the crimes in this case were investigated by
the San Bernardino County Sheriff ’s Department.
On appeal, Ohlinger contends: (1) the trial court erred in failing to
instruct the jury sua sponte on unanimity for second degree robbery (count
18); (2) insufficient evidence supports his conviction for transportation of
methamphetamine for sale (count 7); and (3) the trial court erred in not
staying various counts under former Penal Code section 654, subdivision (a).1
In supplemental briefing, Ohlinger contends Assembly Bill Nos. 518
and 124, and Senate Bill No. 567, each effective January 1, 2022,
retroactively apply to this case under the Estrada2 rule; and therefore, he is
entitled to resentencing on various counts based on changes to sections 654
and 1170. He further contends that Assembly Bill No. 333 (also effective
January 1, 2022) changed the evidentiary and procedural requirements for
the substantive gang offense (§ 186.22, subd. (a)) and the gang enhancements
1 All further statutory references are to the Penal Code unless otherwise
noted.
2 In re Estrada (1965) 63 Cal.2d 740 (Estrada).
2
(id., subd. (b)), and retroactively applies in this case and entitles him to a
reversal of the gang enhancements imposed under the former law.
The People in their supplemental brief agree these legislative
enactments retroactively apply to Ohlinger’s case; that the convictions on the
gang enhancements must be reversed, subject to retrial by the People; and
that his sentence on various counts must be vacated and that Ohlinger be
resentenced in accordance with the new laws.
As we explain, we conclude the trial court was not required to give a
unanimity instruction for Ohlinger’s robbery conviction; and substantial
evidence supports his conviction for transportation of methamphetamine for
sale.
We further conclude the new laws retroactively apply to Ohlinger. As
such, we (1) reverse the true findings on Ohlinger’s gang enhancements,
which the People may retry in accordance with Assembly Bill No. 333; and
(2) vacate his sentence on various counts, as we will explain, to allow the trial
court to resentence him in accordance with Assembly Bill Nos. 518 and 124,
and Senate Bill No. 567. In all other respects we affirm the judgment.
FACTUAL OVERVIEW
1. April 21
M.F. testified that on April 21, 2019,3 she saw a black Chevrolet
Camaro and a Ford F-150 parked in front of her neighbor’s home. As M.F.
approached the home, she was met by a man who claimed to be a “detective
from a joint task force.” The man said his name was “Glen” and showed M.F.
his police badge. M.F. saw that the man was carrying a gun and as they
3 As noted, all of the crimes in this case took place in 2019.
3
talked, she saw another man taking “stuff ” from the home and putting it
under a tarp in the bed of the F-150.
A short while later, M.F. saw deputies with guns drawn at her
neighbor’s home. M.F. told a deputy about her conversation with “Glen.” On
May 1, M.F. was shown a six-pack of photographs and picked out Ohlinger as
the man she had spoken with on April 21.
2. April 26 (Counts 1-9)
Sheriff deputies assigned to the “gang team” were conducting
surveillance at a home on April 26 looking for a wanted individual (not
Ohlinger). During the surveillance, deputies observed a silver Camry and a
black Camaro leave the residence. One of the deputies believed the man
driving the Camaro may have been involved in a recent shooting incident at a
cannabis cultivation operation. The man, who had identified himself to
investigators as a member of the marijuana eradication team, also drove a
black “soft top” Camaro.
Deputies followed the vehicles, attempting to identify their occupants
to determine if the person of interest was inside. Both vehicles were lawfully
stopped. Ohlinger was found to be the driver of the Camaro. Initially, he
gave false identification to the deputies, handing them a California driver’s
license belonging to “Glenn Rock.”
During the stop, Ohlinger was searched and found to be in possession
of a firearm and 11.2 grams of methamphetamine (including packaging). He
consented to a search of the vehicle and inside the vehicle, deputies found a
“security badge which consisted of a gold seven-point star similar to” a
sheriff ’s department badge; two unused hypodermic needles; and several
bank access cards, none of which bore Ohlinger’s name.
4
In the vehicle’s trunk, deputies found a loaded “black Maverick 88
pump-action shotgun” with its serial number “obliterated” and its barrel
“sawed-off ”; an ammunition can; three ballistic vests; two “nylon law
enforcement style duty belts”; and “law enforcement style black boots.”
Inside the ammunition can deputies discovered more than 200 live rounds of
.40 caliber, and more than 60 live rounds of .233 rifle, ammunition. Also in
the trunk, deputies found two fully loaded handgun magazines; three rifle
magazines, one of which was loaded with “green tip ammunition” capable of
piercing “steel plating or armor”; several pairs of handcuffs; a “retractable
expandable metal baton”; and a digital scale.
On April 27, deputies conducted a lawful search of the residence they
had surveilled the previous day and discovered a cannabis cultivation
operation.
3. July 2 (Counts 10-11, 13-14)
While on routine patrol on July 2, a deputy was dispatched to an
intersection to investigate the report of a stolen vehicle, described as a
maroon, 2007 Chrysler 300. The deputy spotted a vehicle matching that
description and attempted a traffic stop by activating his patrol vehicle’s
overhead lights and siren. The driver of the Chrysler 300 sped off, leading
deputies on about a 20-mile pursuit that reached speeds of up to 125 miles
per hour.
With the aid of a police helicopter, the Chrysler 300 was surveilled
until it crashed into a berm. Its driver, later identified as Ohlinger, exited
the vehicle and fled on foot. Deputies caught up to Ohlinger, who gave up
without further incident.
Once in custody, deputies searched Ohlinger and found 20 unspent
rounds of .22 caliber ammunition in one of his pockets. Deputies also
5
searched the vehicle and found more live ammunition; and a rifle bag
containing a scope, a correctional badge, a laser, and what appeared to be a
methamphetamine pipe.
4. July 24 (Counts 15-16)
While on routine patrol at about 1:00 a.m. on July 24, a deputy
observed a silver Infiniti with a broken front headlamp traveling in the
opposite direction. The Infiniti crossed over double yellow lines before
entering an intersection. The deputy made a U-turn, activated the overhead
lights and siren from his patrol vehicle, and attempted to stop the Infiniti.
The driver, later identified as Ohlinger, did not stop, but instead continued
traveling (below the speed limit) through multiple intersections, crossing
double yellow lines, and passing vehicles on the right-hand side. Ohlinger
finally pulled to the right hand shoulder and stopped.
Following Ohlinger’s arrest, the deputy searched the Infiniti and found
six government-issued identification cards, each one bearing a different name
but with the same photograph; eight rounds of 9-millimeter, and 10 rounds of
.223 caliber, ammunition.
5. August 12 (Count 17)
B.A. told the jury he returned from work the evening of August 12 and
found the front door of his home ajar, and the back door “cracked open” in
what appeared to be a forced entry. Once inside, B.A. saw the home had been
ransacked and many items missing, including guitars, tools, a computer, and
a shotgun.
A camera by the front door recorded video that B.A. retrieved and
shared with deputies. The video was played for the jury. According to B.A.’s
testimony, the video showed a person coming to his front door, “ripping” down
one of the outdoor cameras, and a young man standing a distance away by a
6
pickup truck. A deputy reviewed the surveillance video and a “screenshot” of
the two suspects. Ohlinger was identified as one of the suspects in the
screenshot.
6. September 19 (counts 18-20)
James Kendall testified he was in custody for an incident with Ohlinger
that occurred in the evening of September 19.4 Earlier that day, while
driving with his girlfriend, Kendall smelled what he believed was marijuana
coming from a “grow house.” Kendall directed his girlfriend to notify
Ohlinger about the home. At some point later that day, Kendall and
Ohlinger met up and Ohlinger suggested they “do it” that night.
Sometime after 10:00 p.m., Kendall and Ohlinger separately drove to
the suspected grow house. Ohlinger was wearing a bulletproof vest and was
armed with an AR-15 rifle. Kendall was armed with a .45 Glock. Kendall’s
girlfriend accompanied him, while Ohlinger had a female and a male named
“Cody” as passengers.
Once they arrived at the grow house, Kendall told his girlfriend and the
other female to take Kendall’s vehicle and drive around the block, as Kendall
did not “want the girls there.” Although Kendall and Ohlinger were armed,
Cody was not. The three men jumped a perimeter fence, scouted the house,
and concluded it was a “grow op” based on the smell emanating from the
home.
Kendall testified he had misgivings about going inside the home, as he
felt there were “eyes” on them. Ohlinger, however, instructed Cody to use a
crowbar to pry open the backdoor. Ohlinger and Cody entered first, while
Kendall waited outside by the back door. Once inside, Kendall saw Cody
4 Kendall was given “use immunity” in return for his agreement to
testify in this case.
7
escorting the occupant of the home, later identified as Hong Huang, into one
of the grow rooms. Ohlinger told Kendall and Cody to instruct Huang to cut
down the marijuana plants.
While Huang cut down the plants, Kendall received a phone call from
his girlfriend. In a “real panic,” she reported there were people “chasing her
in a car, shooting at her with weapons.” Kendall informed Ohlinger.
Ohlinger, who was in possession of Huang’s cellphone, handed the cellphone
to Huang and insisted he call his (Huang’s) “boss.” Huang made a call, and
Ohlinger got on the line and told whoever had received the call to “stand
down.” Ohlinger then instructed Huang to continue cutting down the
marijuana plants, as Cody bundled them up. Kendall took the bundles of
marijuana to the front door of the home.
As he continued to move the bundles of marijuana, Kendall saw lights
outside by the front gate. Kendall initially believed the lights were from
Huang’s companions, but then realized they were spotlights from a deputy’s
patrol vehicle. In response, Kendall and Ohlinger sought to “hide [their]
weapons.” Kendall watched as Ohlinger broke down his rifle into pieces and
hid them in some sort of “filter.” Kendall hid the Glock in a “side room by the
kitchen.” Kendall then went into the “kitchen,” laid face-down on a mattress,
and waited for the police.
Huang (through an interpreter) testified he had been working at the
grow house for about a month; was paid $3,000 to water the marijuana plants
every two or three days; and over the course of that month, had spent only
about three or four nights at the home, as it was not his permanent
residence.5
5 Huang, like Kendall, was given use immunity for his testimony in this
case.
8
In the evening of September 19, Huang was inside the bathroom
getting ready to take a shower when “two or three” people entered the home.
Huang could not be sure of the number of intruders, nor could he identify
them at the time of the incident or at trial, because it was “kind of dark” and
he could “not see clearly.” However, Huang did notice one of the men “looked
like a police officer,” as the man was wearing a “badge” and “body armor.”
Once directed into the garage, Huang saw the two men had guns. They
gave Huang a pair of scissors and told him to cut down the marijuana plants.
The armed men then wrapped up the marijuana and moved it to the front
door. After Huang cut down the plants, the two men bound his hands with
tape. It was then police arrived.
Deputies were dispatched to the grow house at about midnight. While
enroute, deputies were informed of shots being fired and a flare being shot
into the air near the home. Once backup arrived, deputies entered the home
and took Kendall into custody without incident. The deputies subsequently
located Ohlinger in a bathroom, and he too was taken into custody without
incident.
Deputies searched the home and recovered a loaded Glock 21; a
“security badge holder and . . . metal sergeant rank insignia[s]”; a cellphone;
a bulletproof vest; and an AR-15 magazine containing 28 rounds of
ammunition hidden in loose dirt in a container used to grow marijuana.
Deputies also searched a black Honda parked outside the perimeter
fence of the home. In the vehicle’s back cargo area, they found a rifle case
and a duty style pistol holder. Inside the rifle case they found a “muzzle
break” for an AR-15 rifle, a “small quantity” of methamphetamine, and a
loaded .22 rifle magazine containing 13 rounds of “long rifle [ammunition].”
Also inside the vehicle deputies found an unloaded 10-round AR-15
9
magazine; two 9 millimeter unloaded Glock magazines; “numerous driver’s
licenses belonging to various people”; and trash bags filled with marijuana.6
PROCEDURAL HISTORY
A jury convicted Ohlinger of the following crimes:
Counts 1-2 and 20: Felon in possession of a firearm (§ 29800, subd.
(a)(1));
Counts 3-5 and 13-15: Felon in possession of live ammunition (§ 30305,
subd. (a)(1));
Count 6: Possession of methamphetamine while armed (Health & Saf.
Code, § 11370.1, subd. (a));
Count 7: Transportation of methamphetamine for sale (Health & Saf.
Code, § 11379, subd. (a));
Count 8: Possession of a loaded firearm (§ 25850, subd. (a));
Count 9: False impersonation (§ 529);
Counts 10 and 16: Felony evasion (Veh. Code, § 2800.2, subd. (a));
Count 11: Illegally taking or driving a vehicle (Veh. Code, § 10851,
subd. (a));
Count 17: Residential burglary (§ 459);
Count 18: Robbery (§ 211); and
Count 19: Participation in a criminal street gang (former § 186.22,
subd. (a)).7
6 Evidence of gang activity by Ohlinger was also presented at trial. This
evidence included jailhouse recordings of phone calls between Ohlinger and
another WPG member discussing the gang. In light of our decision reversing
the gang enhancements (§ 186.22, subd. (b)—counts 1-9 and 18) as discussed
post, we find it unnecessary to summarize the gang evidence in this opinion.
7 Following the jury verdicts, the court dismissed count 19 at the People’s
request.
10
The jury, and, in one instance, the court, also found true a number of
enhancements. As to counts 1-9 and 18, the jury found true allegations that
Ohlinger committed the crimes for the benefit of, at the direction of, or in
association with a criminal street gang (former § 186.22, subd. (b)). As to
count 18, the court found true that Ohlinger had committed the offense while
released on bail (§ 12022.1, subd. (b)), after Ohlinger waived his right to a
jury trial on this particular enhancement.
The court sentenced Ohlinger as follows to 22 years in prison: On
count 18 for second degree robbery (deemed the primary count), the upper
term of five years, plus 10 years for the firearm enhancement and two years
for the on-bail enhancement; on count 6, a consecutive one-year term plus one
year for the gang enhancement; on count 10, a consecutive one-year term; on
count 11, a consecutive eight-month term; and on count 17, a consecutive 16-
month term.
The trial court also imposed concurrent two-year terms, plus a three-
year gang enhancement, on counts 1 through 5 and 7; a concurrent three-year
term, plus a three-year gang enhancement, on counts 8 and 9; and a
concurrent two-year term on counts 13 through 16 and 20.
11
DISCUSSION
I. Unanimity Instruction
A. Additional Background
After the close of evidence and outside the presence of the jury, the trial
court held a hearing on Ohlinger’s section 1118.1 motion.8 As relevant here,
the trial court found the evidence was insufficient to support first degree
robbery on count 18 because Huang was not using the grow house for
“dwelling purposes” but instead it “was his place of work.” The trial court,
however, found there was sufficient evidence to support second degree
robbery for the jury’s determination.9
During the section 1118.1 hearing, the parties discussed jury
instructions pertaining to second degree robbery. The trial court noted the
marijuana plants had been cut down, bundled up, and “piled up at the front
door ready to be taken out of the residence.” The court found this evidence
was sufficient to support a taking.
Defense counsel then asked whether the People intended to argue
Ohlinger’s retention of Huang’s cellphone during the robbery also supported a
taking. The court responded robbery (and the lesser-included offense of
8 Section 1118.1 provides: “In a case tried before a jury, the court on
motion of the defendant or on its own motion, at the close of the evidence on
either side and before the case is submitted to the jury for decision, shall
order the entry of a judgment of acquittal of one or more of the offenses
charged in the accusatory pleading if the evidence then before the court is
insufficient to sustain a conviction of such offense or offenses on appeal. If
such a motion for judgment of acquittal at the close of the evidence offered by
the prosecution is not granted, the defendant may offer evidence without first
having reserved that right.”
9 Pursuant to section 1118.1, the court also dismissed count 12, receiving
a stolen vehicle (§ 496, subd. (d)).
12
attempted robbery) could be based on the taking of either the marijuana
plants or the cellphone. The prosecutor agreed, adding, “And I don’t believe
that that would require any sort of unanimity instruction or anything.”
Defense counsel agreed that a unanimity instruction was unnecessary.
The court instructed the jury with CALCRIM No. 1600, “Robbery (Pen.
Code, § 211).”10 During closing, the prosecutor argued that Ohlinger could
be guilty of second degree robbery as a result of either his taking control of,
and his instruction to cut down, the marijuana plants, or his possession of
Huang’s cellphone, as in both instances the “property was moved some
distance.” The prosecutor added, “It doesn’t have to be a significant distance.
It could be a matter of feet”; and, “Either way the defendant is still guilty of
robbery.”
10 The court gave CALCRIM No. 1600 in relevant part as follows: “The
defendant is charged [in count] 18 with robbery [in violation of Penal Code
section 211]. To prove that the defendant is guilty of this crime, the People
must prove that: [¶] 1. The defendant took property that was not his own; [¶]
2. The property was in the possession of another person; [¶] 3. The property
was taken from the other person or his immediate presence; [¶] 4. The
property was taken against that person’s will; [¶] 5. The defendant used force
or fear to take the property or to prevent the person from resisting; [¶] AND
[¶] 6. When the defendant used force or, fear, he intended to deprive the
owner of the property permanently or to remove the property from the
owner’s possession for so extended a period of time that the owner would be
deprived of a major portion of the value or enjoyment of the property.
“The defendant’s intent to take the property must have been formed
before or during the time he used force or fear. If the defendant did not form
this required intent until after using the force or fear, then [he] did not
commit robbery.
“[If you find the defendant guilty of robbery, it is robbery of the second
degree.]
“[A person takes something when he or she gains possession of it and
moves it some distance. The distance moved may be short.]”
13
Ohlinger contends on appeal the prosecutor’s argument that the taking
for purposes of second degree robbery could be satisfied either by Ohlinger’s
control of the marijuana plants or his possession of Huang’s cellphone
required a unanimity instruction such as in CALCRIM No. 3500. 11 We
disagree.
B. Guiding Principles
A criminal defendant has a constitutional right to a unanimous jury
verdict, meaning “the jury must agree unanimously the defendant is guilty of
a specific crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)
Thus, “if one criminal act is charged, but the evidence tends to show the
commission of more than one such act, ‘either the prosecution must elect the
specific act relied upon to prove the charge to the jury, or the court must
instruct the jury that it must unanimously agree that the defendant
committed the same specific criminal act.’ ” (People v. Napoles (2002)
104 Cal.App.4th 108, 114.) In such a case, where no election has been made
by the prosecution, the trial court possesses a sua sponte duty to provide a
unanimity instruction. (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-
275.)
However, there are exceptions to this instructional duty: “For example,
no unanimity instruction is required if the case falls within the continuous-
course-of-conduct exception, which arises ‘when the acts are so closely
11 CALCRIM No. 3500 provides: “The defendant is charged with [in Count __ ] [sometime during the period
of __ to __]. [¶] The People have presented evidence of more than one act to
prove that the defendant committed this offense. You must not find the
defendant guilty unless you all agree that the People have proved that the
defendant committed at least one of these acts and you all agree on which act
(he/she) committed.”
14
connected in time as to form part of one transaction’ [citation], or . . . ‘when
the statute contemplates a continuous course of conduct of a series of acts
over a period of time.’ [Citation.] There also is no need for a unanimity
instruction if the defendant offers the same defense or defenses to the various
acts constituting the charged crime.” (People v. Jennings (2010) 50 Cal.4th
616, 679 (Jennings).) We review de novo whether the trial court erred in
failing to give a unanimity instruction. (People v. Hernandez (2013) 217
Cal.App.4th 559, 568 (Hernandez).)
C. Analysis
We conclude the continuous-course-of-conduct exception applies in this
case because the facts demonstrate “ ‘ “the acts alleged are so closely
connected” ’ ” they formed part of one and the same transaction, and thus,
one offense. (People v. Williams (2013) 56 Cal.4th 630, 682 (Williams).) “[A]
continuous course of conduct exists when the same actor performs the same
type of conduct at the same place within a short period of time, such that a
jury cannot reasonably distinguish different instances of conduct.”
(Hernandez, supra, 217 Cal.App.4th at p. 573.)
Here, Ohlinger’s instruction to cut down the marijuana plants from
inside the garage and other rooms in the grow house and move them to the
front door, and his act of taking possession of Huang’s cellphone and keeping
it throughout the robbery of the marijuana, including at one point using it to
talk to Huang’s “boss” and ordering him or her to “stand down,” were the
result of a “continuous course of conduct.” (See Williams, supra, 56 Cal.4th
at p. 682; Jennings, supra, 50 Cal.4th at p. 679.)
Our conclusion no unanimity instruction was required in this case finds
support in Russo: “The key to deciding whether to give the unanimity
instruction lies in considering its purpose. The jury must agree on a
15
‘particular crime’ [citation]; it would be unacceptable if some jurors believed
the defendant guilty of one crime and other jurors believed [him or] her guilty
of another. But unanimity as to exactly how the crime was committed is not
required. Thus, the unanimity instruction is appropriate ‘when conviction on
a single count could be based on two or more discrete criminal events,’ but not
‘where multiple theories or acts may form the basis of a guilty verdict on one
discrete criminal event.’ [Citation.] In deciding whether to give the
instruction, the trial court must ask whether (1) there is a risk the jury may
divide on two discrete crimes and not agree on any particular crime, or (2) the
evidence merely presents the possibility the jury may divide, or be uncertain,
as to the exact way the defendant is guilty of a single discrete crime. In the
first situation, but not the second, it should give the unanimity instruction.”
(Russo, supra, 25 Cal.4th at pp. 1134-1135, italics added.)
In the instant case, there was one criminal “event,” a “single discrete
crime” that was committed in the same place against the same victim within
a short time-span. (See Russo, supra, 25 Cal.4th at pp. 1134-1135;
Hernandez, supra, 217 Cal.App.4th at p. 573.) Ohlinger may not parse out
each stage of the robbery into distinct criminal acts and then require the jury
be instructed to agree on which of these acts constituted the taking for
purposes of this offense. (See People v. Flores (2007) 157 Cal.App.4th 216,
223 [no unanimity instruction required where the defendant fired multiple
rounds using the same firearm in the same location, as there was no
reasonable basis for the jury to distinguish between each gunshot for
purposes of assault with a semiautomatic weapon]; People v. Percelle (2005)
126 Cal.App.4th 164, 181-182 (Percelle) [no unanimity instruction required
where the defendant twice within an hour attempted to purchase 60 cartons
of cigarettes with the same fraudulent credit card, and where the defendant
16
offered the same defense to both acts, which the jury rejected in toto in
rendering a guilty verdict].)
In addition, even if required, we find the failure to give a unanimity
instruction harmless under the circumstances of this case because Ohlinger
offered the same defense to each of the acts constituting the robbery. (See
Jennings, supra, 50 Cal.4th at p. 679 [unanimity not required if the
defendant offers the same defense to the various acts constituting the crime];
Percelle, supra, 126 Cal.App.4th at pp. 181-182.)
During closing argument, defense counsel focused on the robbery
charge and argued Huang was unable to identify Ohlinger as one of the
participants in the crime, while also arguing that Huang stated only two
people participated in the robbery, in contravention of Kendall’s testimony
that there were three participants. Defense counsel argued the “discrepancy”
between the testimony of Huang and Kendall suggested Ohlinger did not
participate in the “robbery to the degree that is necessary” for its commission,
as either a direct participant or as an aider and abettor. Instead, defense
counsel argued it was Kendall and not Ohlinger who planned and carried out
the robbery with Cody; as Kendall found the grow house; Kendall (through
his girlfriend) told Ohlinger about the operation; and Kendall took Ohlinger
to the home later that evening.
However, as the trier of fact, it was up to the jury to decide whether or
not Ohlinger participated in the robbery based on his instruction to cut,
bundle, and transport the marijuana plants to the front door, or his taking of
Huang’s cellphone and his keeping it throughout the robbery of the
marijuana. Clearly, the jury rejected Ohlinger’s only defense—that he was
not an active participant in either of these acts during the commission of this
offense. (See Jennings, supra, 50 Cal.4th at p. 679; see also Hernandez,
17
supra, 217 Cal.App.4th at p. 577.) As such, for this separate reason we reject
this claim, as any purported error in failing to give a unanimity instruction
was harmless.
II. Sufficiency of the Evidence
Ohlinger next contends the evidence was insufficient to support his
conviction on count 7, transportation for sale of methamphetamine. We
disagree.
A. Guiding Principles
“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we “examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from
the evidence. [Citation.] . . . We do not reweigh evidence or reevaluate a
witness’s credibility.’ [Citations.] ‘Resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a
conviction.’ ” (People v. Brown (2014) 59 Cal.4th 86, 105-106.)
Moreover, if the record contains substantial evidence from which a
reasonable trier of fact could have found the essential elements of the crime
proved beyond a reasonable doubt, “the possibility that the trier of fact might
reasonably have reached a different conclusion does not warrant reversal.”
(People v. Taylor (2004) 119 Cal.App.4th 628, 639 (Taylor); see People v.
Zamudio (2008) 43 Cal.4th 327, 358 (Zamudio) [“Where the circumstances
18
reasonably justify the trier of fact’s findings, a reviewing court’s conclusion
the circumstances might also reasonably be reconciled with a contrary
finding does not warrant the judgment’s reversal.”].)
To be convicted of transporting methamphetamine for sale, the
prosecution must prove beyond a reasonable doubt the defendant transported
methamphetamine, knew of its presence and its nature as a controlled
substance, and the methamphetamine was a useable amount. (See Health &
Saf. Code, § 11379, subds. (a), (c);12 see also CALCRIM No. 230013 [stating
the elements of transportation for sale].)
“Intent to sell may be established by circumstantial evidence.” (People
v. Harris (2000) 83 Cal.App.4th 371, 374 (Harris).) “ ‘In cases involving
possession of marijuana or [methamphetamine], experienced officers may
give their opinion that the narcotics are held for purposes of sale based upon
12 Subdivision (a) of Health & Safety Code section 11379 provides in part:
“[E]very person who transports, imports into this state, sells, furnishes,
administers, or gives away, or offers to transport, import into this state, sell,
furnish, administer, or give away, or attempts to import into this state or
transport any controlled substance [as defined by statute], unless upon the
prescription of a physician, dentist, podiatrist, or veterinarian, licensed to
practice in this state, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or
four years.” Subdivision (c) of this statute provides: “For purposes of this
section, ‘transports’ means to transport for sale.”
13 The court gave CALCRIM No. 2300 in relevant part as follows: “The
defendant is charged in Count 7 with transporting for sale a controlled
substance in violation of Health & Safety Code Section 11379. [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶]
1. The defendant transported for sale a controlled substance; [¶] 2. The
defendant knew of its presence; [¶] 3. The defendant knew of the substance’s
nature or character as a controlled substance; [¶] 4. When the defendant
transported the controlled substance, he intended to sell it or that someone
else sell it; [¶] AND [¶] 5. The controlled substance was in a usable amount.”
19
such matters as the quantity, packaging and normal use of an individual; on
the basis of such testimony convictions of possession for purpose of sale have
been upheld.’ (People v. Newman (1971) 5 Cal.3d 48, 53.) Thereafter, it is for
the jury to credit such opinion or reject it.” (Harris, at pp. 374-375.)
B. Analysis
In the instant case, deputy sheriff Cory Drost testified as an expert for
the People regarding the items recovered from the traffic stop of Ohlinger on
April 26. Deputy Drost opined Ohlinger transported the methamphetamine
for sale based on the “totality” of the circumstances, including the digital
scale found in the trunk of Ohlinger’s vehicle; and his possession of 11.2
grams of methamphetamine (including packaging), $570, consisting primarily
of $20 bills, and a firearm.
As to the firearm, Deputy Drost noted it was another important
indicator of illegal drug sales because such activities are “inherently
dangerous, whether it be from a consumer trying to rob the individual for
their product, their supply, or their proceeds.” Also indicative that Ohlinger
transported the methamphetamine for sale was the lack of any “consumption
device” that Deputy Drost would have expected to find on Ohlinger or in his
vehicle if the drug was for personal use.14
Based on the physical evidence and Deputy Drost’s expert testimony,
we conclude the jury was provided with reasonable, credible, and solid
evidence from which it could find beyond a reasonable doubt that Ohlinger
transported methamphetamine for sale. (See Harris, supra, 83 Cal.App.4th
at p. 374.)
14 Deputy Drost noted that through the course of investigation, he
interviewed Ohlinger who denied the two hypodermic needles found inside
the Camaro belonged to him, while admitting the methamphetamine was his.
20
Ohlinger nonetheless contends this evidence is insufficient to support
his conviction on count 7 because he stated during a police interview that he
did not sell illegal substances including methamphetamine; and because the
evidence is consistent with his “job of raiding grow houses,” as opposed to
selling illegal substances.
These contentions by Ohlinger amount to an invitation to reweigh the
evidence, which, as a court of review, we cannot and will not do. (See
Zamudio, supra, 43 Cal.4th at p. 358; Taylor, supra, 119 Cal.App.4th at
p. 639.) As we have already explained, substantial evidence supports the
jury’s finding that Ohlinger transported the methamphetamine for sale. (See
Health & Saf. Code, § 11379, subds. (a), (c).) We thus reject this claim of
error.
III. Sentencing Errors under Former Section 654
Ohlinger contends the court erred in imposing a term on count 6,
possession of methamphetamine while armed (Health & Saf. Code, § 11370.1,
subd. (a)), while also imposing a term on count 7, transportation of
methamphetamine for sale (id, § 11379, subds. (a), (c)), because both counts
involve possession of the same 11.2 grams of methamphetamine. Ohlinger
thus contends one of these terms should have been stayed under former15
section 654, subdivision (a). The People agree, as do we. (See People v. Jones
(2012) 54 Cal.4th 350, 358 (Jones) [former section 654 “prohibits multiple
punishment for a single physical act that violates different provisions of
law”].)
15 As discussed post, effective January 1, 2022, section 654, subdivision (a)
no longer requires a trial court to sentence a defendant to the longest
potential term of imprisonment for an act or omission that is punishable in
different ways by different provisions of the law.
21
Moreover, Ohlinger was sentenced to separate terms on count 1,
possession of a firearm by a felon (§ 29800, subd. (a)(1)), and on count 6,
based on possession of the same firearm. (See Jones, supra, 54 Cal.4th at
p. 370 [“ ‘single possession . . . of a single firearm on a single occasion may be
punished only once under [former] section 654’ ”].) Ohlinger therefore
contends he may be punished for counts 1 or 6, but not both. The People
agree, as do we.
Ohlinger also contends the court erred in imposing concurrent two-year
sentences on count 2, possession of a firearm as a felon (§ 29800, subd. (a)(1)),
and on count 5, possession of live ammunition as a felon (inside the same
firearm) (§ 30305, subd. (a)(1)), as each count was based on the same shotgun
found in the trunk of Ohlinger’s vehicle when he was stopped on April 26.
The People agree, as do we, that one of the concurrent terms should have
been stayed. (See Jones, supra, 54 Cal.4th at p. 353 [noting concurrent
sentences, like consecutive sentences, constitute multiple punishment and
are “ ‘precluded by [former] section 654 . . . because the defendant is deemed
to be subjected to the term of both sentences although they are served
simultaneously’ ”].)
IV. Supplemental Briefing
The parties filed supplemental briefs addressing several changes to the
law effective January 1, 2022, which they agree are applicable in this case.
We address these new laws, and the convictions affected, in seriatim.
A. Assembly Bill No. 333
Section 186.22 provides for enhanced punishment when a defendant is
convicted of an enumerated felony committed “for the benefit of, at the
direction of, or in association with any criminal street gang.” (Former
22
§ 186.22, subd. (b)(1).) As noted above, Ohlinger’s judgment included 10
enhancements (counts 1-9 and 18) under this law.
Effective January 1, 2022, Assembly Bill No. 333 made significant
modifications to section 186.22—it amended the definitions of “criminal
street gang” and “pattern of criminal gang activity,” and clarified the
evidence needed to establish whether an offense benefits, promotes, furthers
or assists a criminal street gang. Under the former law, a “criminal street
gang” was defined as “any ongoing organization, association, or group of three
or more persons . . . whose members individually or collectively engage in, or
have engaged in, a pattern of criminal gang activity.” (Former § 186.22,
subd. (f), italics added.) Assembly Bill No. 333 narrowed the definition to “an
ongoing, organized association or group of three or more persons . . . whose
members collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (See Stats. 2021, ch. 699, § 3; current § 186.22, subd. (f),
italics added.)
Under the former law, for “pattern of criminal gang activity” the
prosecution needed to prove “only that those associated with the gang had
committed at least two offenses from a list of predicate crimes on separate
occasions within three years of one another.” (People v. Sek (2022) 74
Cal.App.5th 657, 665, citing former § 186.22, subd. (e).) Assembly Bill No.
333 made several changes to this definition. “First, the predicate offenses
now must have been committed by two or more ‘members’ of the gang (as
opposed to any persons). (§ 186.22, subd. (e)(1).) 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
23
currently charged offense no longer counts as a predicate offense. (§ 186.22,
subd. (e)(2).)” (People v. E.H. (2022) 75 Cal.App.5th 467, 477-478 (E.H.).)
Moreover, Assembly Bill No. 333 now requires the prosecution to prove
the benefit derived by the gang from the predicate and current offenses is
“ ‘more than reputational.’ ” (Stats. 2021, ch. 699, § 3; § 186.22, subd. (g)
[providing in part: “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.”].)
In addition to these substantive changes to section 186.22, Assembly
Bill No. 333 added section 1109. As relevant here, subdivision (a) of section
110916 requires the trial court to bifurcate the trial of any gang
enhancements upon the request of the defendant.
As noted, the parties agree, as do we, that, with the exception of section
1109, Assembly Bill No. 333 retroactively applies in this case because
16 Section 1109, subdivision (a) provides: “If requested by the defense, a
case in which a gang enhancement is charged under subdivision (b) or (d) of
Section 186.22 shall be tried in separate phases as follows: [¶] (1) The
question of the defendant’s guilt of the underlying offense shall be first
determined. [¶] (2) If the defendant is found guilty of the underlying offense
and there is an allegation of an enhancement under subdivision (b) or (d) of
Section 186.22, there shall be further proceedings to the trier of fact on the
question of the truth of the enhancement. Allegations that the underlying
offense was committed for the benefit of, at the direction of, or in association
with, a criminal street gang and that the underlying offense was committed
with the specific intent to promote, further, or assist in criminal conduct by
gang members shall be proved by direct or circumstantial evidence.”
24
Ohlinger’s judgment of conviction is not yet final. 17 (See Estrada, supra,
63 Cal.2d at p. 744; E.H., supra, 75 Cal.App.5th at p. 478; see also People
v. Lopez (2019) 42 Cal.App.5th 337, 341 (Lopez) [under established law, we
“assume, absent evidence to the contrary, that the Legislature intended an
‘amended statute to apply to all defendants whose judgments are not yet final
on the statute’s operative date’ ”].)
Moreover, because newly amended section 186.22 contains new
elements that were “never tried” to the jury, we conclude the proper remedy
is to remand and give the People an opportunity to retry the gang
enhancements. (See E.H., supra, 75 Cal.App.5th at p. 480; see also 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.”]; 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.”].)
B. Assembly Bill 518
At the time of sentencing, former section 654, subdivision (a) required
that a defendant who committed an act punishable by two or more provisions
of law be punished under the provision that provided for the longest possible
term. (Stats. 1997, ch. 410, § 1.) Effective January 1, 2022, Assembly Bill
No. 518 (2021-2022 Reg. Sess.) amended section 654, subdivision (a) to permit
17 Although the parties agree the new evidentiary provisions in Assembly
Bill No. 333 retroactively apply to Ohlinger’s case, they did not address
whether section 1109’s new procedural rules are also retroactive. As such,
and given our decision to remand, we find it unnecessary to address this
issue, and offer no opinion regarding its resolution in this case.
25
an act or omission punishable under two or more provisions of law to “be
punished under either of such provisions.” (§ 654, subd. (a); Stats. 2021, ch.
441, § 1.) Thus, under newly amended section 654, a trial court now has the
discretion to punish a defendant under any of the applicable laws.
As noted, the parties also agree, as do we, that Assembly Bill No. 518
retroactively applies in this case. (See Estrada, supra, 63 Cal.2d at p. 744;
E.H., supra, 75 Cal.App.5th at p. 478; Lopez, supra, 42 Cal.App.5th at p. 341.)
As we previously noted, the trial court erred in not staying under
former section 654, subdivision (a) either the term for count 6 (Health & Saf.
Code, § 11370.1, subd. (a)) or the term for count 7 (id., § 11379, subd. (a))
because both counts involved possession of the same 11.2 grams of
methamphetamine. Similarly, the trial court also erred by not staying either
the term on count 6 or the term on count 1 (§ 29800), inasmuch as both
involved possession of the same gun.
Under newly amended section 654, subdivision (a), the trial court will
have the discretion to impose a one-year sentence on count 6 in lieu of the
two-year sentence on counts 1 or 7. As such, the case should be remanded for
the trial court to exercise its discretion to determine which of Ohlinger’s
sentences should be stayed pursuant to revised section 654, under the
authority granted by Assembly Bill No. 518.
C. Assembly Bill No. 124 and Senate Bill No. 567
Assembly Bill No. 124 also became effective January 1, 2022. (Stats.
2021, ch. 695, § 5.3; Stats. 2021, ch. 731, § 1.3.) Among other changes,
Assembly Bill 124 sets a presumption that the trial court “shall order
imposition of the lower term if any of the [enumerated circumstances] was a
contributing factor in the commission of the offense.” (§ 1170. subd. (b)(6).)
These circumstances include when the “person has experienced psychological,
26
physical, or childhood trauma, including but not limited to, abuse, neglect,
exploitation, or sexual violence.” (Ibid.; Stats. 2021, ch. 695, § 5.3.)
Here, the trial court imposed the upper term of five years on count 18,
second degree robbery.18 Ohlinger contends he is entitled to the benefit of
Assembly Bill No. 124 because the “record suggests childhood trauma,” which
he further contends should be addressed on remand inasmuch as “no
probation report was prepared in this case”; and therefore, “no social history”
of Ohlinger was considered by the trial court at his sentencing.
As noted, the People also concede Assembly Bill No. 124 is retroactive.
We agree with the parties. (See Estrada, supra, 63 Cal.2d at p. 744; E.H.,
supra, 75 Cal.App.5th at p. 478; People v. Flores (2022) 73 Cal.App.5th 1032,
1038 [concluding Assembly Bill No. 124 retroactively applies to the defendant
and remanding for resentencing]; Lopez, supra, 42 Cal.App.5th at p. 341.)
Senate Bill No. 567, effective January 1, 2022, made other changes to
section 1170. This new law makes the middle term the presumptive sentence
when a “judgment of imprisonment is to be imposed and the statute specifies
three possible terms.” (See Stats. 2021, ch. 731, § 1.3, adding § 1170, subd.
(b)(1), (2).) It further modified section 1170, subdivision (b)(2) to require that
the circumstances in aggravation be found true beyond a reasonable doubt or
be stipulated to by the defendant; and that, with certain limited exceptions,
at the request of the defendant the trial on the circumstances in aggravation
be bifurcated from the trial of the charges and any enhancements.
18 The court (without the benefit of the new law) explained it imposed the
upper term because the robbery “was a well-planned and coordinated offense
that was committed with a cold participant. The evidence indicates that this
was an ongoing course of action by the defendant and [other] participants.”
27
As was the case with Assembly Bill Nos. 333, 518, and 124, the parties
agree Senate Bill No. 567 retroactively applies to Ohlinger’s judgment, as do
we. (See Estrada, supra, 63 Cal.2d at p. 744; E.H., supra, 75 Cal.App.5th at
p. 478; Lopez, supra, 42 Cal.App.5th at p. 341.) On remand, the court may
exercise its discretion in sentencing Ohlinger under count 18, as provided in
newly amended section 1170.
Finally, we note the general rule that on remand, the trial court may
revisit all of its prior sentencing decisions. (See People v. Valenzuela (2019)
7 Cal.5th 415, 424-425 [“the 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 [under the full resentencing rule, when
part of a sentence is stricken, a remand for a full resentencing is appropriate
to allow the trial court to exercise its sentencing discretion in light of the
changed circumstances].) However, we take no position on how the trial
court should exercise its discretion when resentencing Ohlinger.
DISPOSITION
Ohlinger’s convictions on count 18 for robbery and on count 7 for
transportation of methamphetamine for sale are affirmed. We reverse the
true findings on the gang enhancements (counts 1-9 and 18) and remand to
give the People the opportunity, if they so choose, to retry the enhancements
under newly enacted Assembly Bill No. 333.
In addition, we vacate Ohlinger’s sentences on counts 1, 6, 7, and 18.
The trial court is directed to resentence Ohlinger on these counts in
accordance with newly enacted Assembly Bill Nos. 518 and 124, and Senate
Bill No. 567. The trial court is further directed to stay under section 654 one
of the two-year concurrent sentences imposed on counts 2 and 5, which
involved the same shotgun containing live ammunition.
28
In all other respects we affirm the judgment.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
29