People v. Montano ( 2022 )

Filed 6/22/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079222
Plaintiff and Respondent,
(Super. Ct. Nos. BF169286A–C)
v.
JUAN ALEJANDRO MONTANO et al., OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant
and Appellant Juan Alejandro Montano.
Solomon Wollack, under appointment by the Court of Appeal, for Defendant and
Appellant Jose Antonio Montano.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and
Appellant Giovanni Thomas Jasso.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I., II.E., and III. through VI.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie Hokans
and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Juan Alejandro Montano (Juan), his brother, Jose Antonio Montano (Jose), and
Giovanni Thomas Jasso (Jasso) (collectively, defendants) appeal from judgments of
conviction entered upon jury verdicts of first degree murder with the special circumstance
of lying in wait, and unlawful participation in a criminal street gang. Juan was also found
guilty of gun possession by a convicted felon. The jury made true findings on various
firearm- and gang-enhancement allegations. It hung on a special circumstance allegation
of gang murder within the meaning of Penal Code section 190.2, subdivision (a)(22)
(section 190.2(a)(22)). (All undesignated statutory references are to the Penal Code.)
In the published part of the opinion, we hold Assembly Bill No. 333 (2021–2022
Reg. Sess.) (Assembly Bill 333), which amended section 186.22 and added a new statute,
section 1109, is fully retroactive to all nonfinal judgments. We further hold section 1109,
as currently written, does not apply to gang special circumstance allegations under
section 190.2(a)(22). Section 1109, subdivision (a) provides for bifurcation of gang
enhancement allegations “charged under subdivision (b) or (d) of Section 186.22.”
Section 1109, subdivision (b) requires a charge of violating subdivision (a) of section
186.22, i.e., the substantive gang offense, to be “tried separately from all other counts that
do not otherwise require gang evidence as an element of the crime.” (§ 1109, subd. (b).)
Although failure to account for section 190.2(a)(22) may have been an oversight by the
drafters of section 1109, it is not our place to rewrite the statute. Such changes must
come from the Legislature.
In the unpublished part of the opinion, we address defendants’ claims of
insufficient evidence, improper admission of evidence, instructional error, and sentencing
error. We affirm in part, reverse in part, and remand for further proceedings.
2.
FACTUAL AND PROCEDURAL BACKGROUND
On July 21, 2017, victim Abraham Rubio (age 17) was shot while walking on
Paradise Road in Lamont. The shooting occurred in front of a house rented by defendant
Jose, his girlfriend, and the girlfriend’s mother. Jose’s girlfriend called 911 after hearing
the gunshots and seeing the wounded victim in distress.
A sheriff’s deputy arrived soon after the emergency dispatch. Rubio was able to
provide his name and age but declined to answer questions about the shooting. He died
from internal injuries later that evening. A postmortem toxicology analysis indicated
prior consumption of alcohol, marijuana, and methamphetamine.
The deputy had found Rubio in the street lying on his back in between a Ford
Bronco and a Lincoln pickup truck. The vehicles were parallel parked along the southern
curb of Paradise Road, facing east. The Bronco was parked west of the driveway to
Jose’s residence, and the Lincoln was parked a few feet behind the Bronco. Four 9-
millimeter bullet casings were located northeast of the Bronco, within approximately
eight feet of where Rubio had fallen after being shot. Three of the casings were of the
same brand, but the fourth was made by a different manufacturer.
Rubio sustained two bullet wounds to the right abdominal area. A third bullet hit
his left thigh, close to the knee. The fourth shot apparently missed him. Investigators
found a bullet lodged above the front driver’s side bumper of the Lincoln truck, close to
where Rubio had collapsed.
The events were captured on video by a security camera located outside of a
nearby restaurant. The video showed that four people had either witnessed or
participated in the shooting. After reviewing hours of footage and conducting further
investigation, detectives obtained arrest warrants for Juan (age 22), Jose (age 21), and
Jasso (age 19). Search warrants were obtained for defendants’ Facebook accounts and
“to ping the realtime location” of a phone associated with Juan. Authorities did not seek
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to arrest the fourth suspect, Kasey Villegas, who was later stabbed to death in an
unrelated incident.
On July 27, 2017, a relative turned Rubio’s mobile phone over to law
enforcement. It was covered in dried blood. The person did not explain how the item
was obtained but alleged it had “passed through several different hands.” The name of a
local gang, “Varrio Chico Lamont,” was etched into the back of the device.
On August 4, 2017, Jasso was taken into custody during a traffic stop. He waived
the right to remain silent and briefly answered questions about the shooting. Jasso stated
that he lived in Bakersfield. He denied knowing anyone in Lamont or being there on the
day of the incident.
On August 5, 2017, Jose was arrested at his home. He waived the right to remain
silent and submitted to a lengthy interrogation. Jose’s girlfriend voluntarily accompanied
him to the Kern County Sheriff’s Office and, while there, she agreed to answer questions
about the shooting. Both interviews were recorded.
Jose told detectives that the victim, Rubio, had previously lived in the house he
had rented on Paradise Road. Rubio was also a longtime friend of Jose’s girlfriend. The
details were vague, but Jose alleged Rubio had shown up at his residence under the
influence of narcotics on the day in question. Rubio had wanted to discuss drug dealing,
and Jose told him that he did not want any drug trafficking near the house. Jose had been
polite, but Rubio was upset by the conversation.
Rubio departed from Jose’s residence but confronted him again “like, three more
times” that day. The second encounter was outside of a liquor store. Rubio still appeared
to be “on drugs,” and Jose claimed to have “smelled alcohol on his breath.” Rubio
challenged Jose to a fistfight, but Jose declined. He had been concerned about Rubio’s
friends, explaining to detectives that “some of his buddies that he knows that he grew up
with, they were right there around him.” Jose further claimed to have told Rubio, “[I]f I
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even touch you, I know you’re gonna go tell your friends. And your friends are gonna
come try to beat me up.” Jose said this incident occurred around 5:00 p.m.
Jose did not recount any further interactions with Rubio prior to the shooting. He
claimed to have been asleep when the shots were fired, which was shortly after 8:00 p.m.
In Jose’s initial story, the sound of gunfire woke him from a nap. He then went outside to
investigate and render aid. Jose denied having had any other visitors that day except for
his girlfriend’s father and someone who came over to see his girlfriend’s mother.
A detective asked Jose, “Why are people on the streets sayin’ that you and [Rubio]
were fightin’ over some tagging?” He replied, “Exactly. That was the whole reason.”
He then explained Rubio had been upset about some graffiti on an abandoned house
previously occupied by Rubio’s grandmother. Jose alleged the graffiti was placed there
five years earlier by one of his friends, but it included Jose’s nickname (“Toker”), so
Rubio had assumed Jose was involved.
Jose admitted the “tagging” of Rubio’s grandmother’s house included references
to a Bakersfield gang called Varrio Bakers. Jose had previously lived in Bakersfield, but
he denied being a gang member and downplayed the significance of a gang-related tattoo
on his hand. When pressed about the gang angle, Jose said the dispute with Rubio was
not about the graffiti and only concerned Rubio’s drug use and drug dealing. The
detectives then confronted Jose with still images from the surveillance video.
When Jose was shown images of his brother (Juan), Jasso, and Kasey Villegas, he
denied knowing any of them. He stuck to the story about being inside the house when
Rubio was shot. Amid repeated denials, Jose remarked, “I could’ve died too.” A
detective then asked, “Why, did [Rubio] have a gun?” Jose answered, “I don’t know if he
had a gun[,] [but] I could’ve got shot that day he was calling me out.” Jose was then
asked, “Did he pull a gun on you?” He replied, “No.”
Jose eventually admitted to being in his front yard when the shooting occurred but
denied seeing who fired the shots. Conceding his prior dishonesty, he said, “I’m sorry
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that I did fall off the train a little bit. … But at the same time it’s ’cause I have four
beautiful kids. … I didn’t want anything to happen to me, to my kids, or, like, to Rubio,
or to my family. … I know I left some parts out about what [Rubio] said. But, like I
said, I ain’t a bitch or a—a snitch or whatever it is. … I just don’t want, like, you guys
think that I’m the one that did it.” When asked again if Rubio was armed, Jose continued
to deny having seen anything. He later made a comment about knowing “my brother’s
buddies did it,” implying he came to that realization after being shown the surveillance
images.
Jose’s girlfriend corroborated parts of his story but also contradicted him on
important details. She claimed to have witnessed Rubio’s initial argument with Jose over
the “tagging” of his grandmother’s house. Rubio had wanted to “go to the alley and
[fight],” referring to an alley intersecting Paradise Road between the restaurant and the
home of Jose’s neighbor, i.e., the house adjacent to the Ford Bronco and the Lincoln
pickup truck.
The girlfriend discussed how Jose went to the liquor store and returned alleging
Rubio had confronted him again, this time with “all his homies.” She also referred to
Rubio’s friends as “gangsters from Lamont.” Whereas Jose had generally characterized
the dispute as a minor “misunderstanding,” the girlfriend alleged Rubio had threated to
obtain a firearm and kill Jose. Rubio was supposedly living with her uncle at the time,
and she believed her uncle would have let Rubio borrow his gun. Her exact statement
was, “Jose has told me, well, Jose, if it wasn’t [Rubio], it would have been Jose, cuz
(unintelligible) if you guys would have heard what he was saying to Jose about him
killing him too or shooting him and I know my [uncle] has a gun and he would have
lended [sic] it to him.”
Jose’s girlfriend identified Jasso and Juan from the surveillance images. She
confirmed they had visited Jose that evening, which she admitted was “weird” because
Juan, who lived in Bakersfield, rarely travelled to Lamont. She had suspected the visit
6.
had something to do with Rubio and claimed to have warned Juan, “[Y]ou better not do
nothing stupid.” She further alleged Jose later confided to her that Juan was the shooter.1
Juan was arrested on the same day as Jose. It is unclear from the record whether
he submitted to custodial interrogation.
On September 5, 2017, detectives recontacted Jose’s girlfriend and arranged to
speak with her younger sister, who was a juvenile. Jose’s girlfriend had previously
identified her sister as an eyewitness to the shooting. The sister denied this and claimed
she was inside with Jose when the shots were fired. However, the sister admitted to
having let Jose use her mobile phone earlier that day. The detectives photographed her
call log, which showed calls to and from Juan’s phone between 5:10 p.m. and 6:32 p.m.
The sister denied placing those calls herself or recognizing the phone number.
In January 2018, while speaking with a sheriff’s deputy, the sister reportedly
claimed to have seen Juan shoot Rubio. According to the deputy, the sister admitted to
being untruthful with the homicide detectives and alleged unspecified family members
“had told her to lie to try to protect Juan.” The sister allegedly believed Juan shot Rubio
because Rubio “had kicked in his door and robbed him and … had committed crimes
against him in the past.” In the prior interview with detectives, she claimed to have heard
Jose say he feared Rubio because Rubio “said he was gonna get a gun to shoot him.”
Defendants were each charged with first degree murder (§§ 187, 189; count 1) and
unlawful participation in a criminal street gang (§ 186.22, subd. (a); count 2). Juan was
additionally charged with possession of a firearm by a convicted felon (§ 29800, subd.
(a)(1); count 3). Count 1 included special circumstance allegations of lying in wait
1Jose’s alleged identification of Juan as the shooter was redacted from the recording used
at trial. Part of the redacted material was potentially exculpatory as to Jose and Jasso.
According to the girlfriend, Jose had told her, “I believe it was my brother but I don’t know. He
just popped, it happened so quick and I told him not to ….” Jasso’s attorney objected to the
redaction but was overruled. The redacted version makes clear Jose’s girlfriend believed Juan
was the shooter but omits the explanations as to why.
7.
(§ 190.2, subd. (a)(15)) and murder committed to further the activities of a criminal street
gang (id., subd. (a)(22)). Firearm and gang enhancement allegations were also included.
(§§ 186.22, subd. (b), 12022.53, subds. (d), (e)(1).)
As to Juan only, two prior convictions were alleged for purposes of the “Three
Strikes” law. (§§ 667, subds. (b)–(i), 1170.12.) The strike offenses of second degree
robbery and unlawful participation in a criminal street gang were alleged to also qualify
as prior serious felony convictions under section 667, subdivision (a). Juan was further
alleged to have served two prior prison terms within the meaning of section 667.5, former
subdivision (b).
Defendants were jointly tried before a jury in early 2019. The prior conviction
allegations against Juan were decided in a subsequent bench trial. Jasso filed multiple
unsuccessful motions to be tried separately from Jose and Juan. Jasso also filed a motion,
in which Jose and Juan joined, to bifurcate all “gang counts and gang allegations.”2 The
requests for bifurcation were denied.
Prosecution Case
The People’s case included testimony from homicide detectives and a gang expert.
The expert opined Jose, Juan, and Jasso were all active members of a criminal street gang
called Varrio Bakers at the time of the shooting. The opinion was based on defendants’
criminal history, tattoos, and content found on their social media accounts. The gang
evidence is summarized in the Discussion, post.
Jose’s girlfriend and her sister were examined as hostile witnesses. Redacted
recordings of their interviews with detectives, as well as the interviews of Jose and Jasso,
were admitted into evidence. Several crime scene photographs were also admitted.
2Technically, Juan did not join in Jasso’s motion but filed a separate motion in limine “to
clarify and limit gang evidence,” which the trial court treated as a motion to bifurcate and heard
in conjunction with Jasso’s motion. Jose filed a similar motion to “limit” the gang evidence,
which the trial court likewise construed as a motion to bifurcate, and Jose’s trial counsel joined
in the arguments made by Jasso’s attorney during the motion hearing.
8.
All parties agreed to a jury view of the crime scene. This occurred on the third
day of evidence presentation. In addition to walking along the relevant sections of
Paradise Road and Velma Avenue, the jury was driven past the “dilapidated, burnt-out
house” previously occupied by Rubio’s grandmother.3
The restaurant’s surveillance video was, in the People’s words, “the keystone of
the prosecution’s case.” Over three hours of footage was admitted into evidence. A 24-
hour clock on the video showed the time of day down to one-thousandth of a second, but
it was reportedly off by about two minutes. All times noted herein are approximated
without the two-minute adjustment and primarily stated in a 12-hour format for ease of
reference. Summarized in the light most favorable to the judgment, the video depicted
the following events.
At 5:07 p.m., Rubio walked southbound on Velma Avenue and veered slightly
west at the intersection of Paradise Road. He continued southwest toward Jose’s
residence, which faced Paradise on the opposite corner of the intersection. After
gesturing to someone at or near Jose’s property, Rubio moved in front of the Ford Bronco
and lingered there for about 25 seconds. At 5:08 p.m., Rubio took a few steps toward
Jose’s house and appeared to enter the driveway. He then disappeared from the camera’s
view for about one minute. The prosecutor alleged this was the initial dispute described
by Jose and his girlfriend in their recorded interviews.
At 5:09 p.m., Rubio walked away from Jose’s residence. He stopped in front of
the Ford Bronco for about 45 seconds, during which time he was obscured from view.
He eventually proceeded west, past the Bronco and Lincoln truck, and moved toward the
sidewalk on the southern side of Paradise Road. At 5:10 p.m., he stopped at the alley and
3The trial court informed the jury, “The house was burned down and delipidated [sic]
long before the date of the shooting. [The condition of the house] is completely unrelated to the
case but there’s graffiti. You haven’t heard about this graffiti yet but you’ll hear about it from
other witnesses.”
9.
turned back toward Jose’s residence as if calling out to someone. He then turned around
and continued walking toward the restaurant. His fists were clenched as he passed by the
camera and out of view.
At 5:11 p.m., Jose exited his driveway and walked into the street. He looked west,
in the direction Rubio had just gone, and appeared to be on a phone call. This was
consistent with the call log of Jose’s girlfriend’s sister’s phone, which showed a call
placed to Juan at 5:10 p.m. At 5:13 p.m., Jose left his house and walked west on Paradise
Road. He was off camera for about five minutes and reappeared shortly before 5:19 p.m.,
heading east on Paradise before disappearing from view near his house. As indicated by
the call log, Jose then placed a second call to Juan.
At 5:23 p.m., Rubio walked east on Paradise Road and turned north at the Velma
Avenue intersection. Fifteen minutes later, he reappeared with an unidentified man.
They emerged from Velma Avenue, walked into the Paradise Road intersection, and
stood there in conversation for half a minute. The man then returned in the direction
from which he had come, and Rubio continued walking south on Velma.
At 6:15 p.m., Jose walked out to the middle of Paradise Road. He appeared to be
on a phone call, which corresponded to the call log showing an outgoing call to Juan’s
phone at 6:14 p.m. Jose eventually strolled westbound on Paradise, then came jogging
back toward his house at 6:18 p.m. Moments later, Jasso, Juan, and Kasey Villegas drove
up in Jasso’s black Honda Civic, stopping in front of the restaurant. Jose walked to the
north side of the street and gestured for the car to drive north through the alley running
parallel to Velma Avenue. The car pulled away from the curb and drove up the alley.
Jose walked off along the northern side of Paradise, disappearing from the camera’s view
after turning north on Velma.
A black sedan, which the People alleged was Jasso’s car, circled through the area
again at 6:29 p.m. At 7:09 p.m., the car turned west onto Paradise Road from northbound
Velma Avenue and parallel parked along the northern curb, directly across from Jose’s
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residence. Jasso exited the car alone, crossed the street, and disappeared from view into
Jose’s driveway. Jose, Juan, and Kasey Villegas had evidently gone to the house on foot
at some earlier point in time.4
At 7:14 p.m., Jose, Juan, Jasso, and Kasey Villegas exited Jose’s driveway on foot
and proceeded west on Paradise Road. They returned four minutes later, heading east,
and Jose was now carrying a bulging plastic grocery bag. All four men appeared to be
scanning the area as they walked, turning their heads and looking in various directions
before moving into Jose’s driveway and out of view.
The prosecutor theorized defendants had roamed the neighborhood in search of
Rubio for about an hour. Unable to find him, they decided to wait outside of Jose’s
residence. At 7:32 p.m., Jasso walked out to the middle of Paradise Road, paused, and
then returned to Jose’s driveway. At 7:47 p.m., Juan came out of the driveway,
proceeded west, and stood between the Ford Bronco and Lincoln pickup truck for
approximately 15 seconds. He then continued west on Paradise, stopped at the alley next
to the restaurant, and stood watch for about 45 seconds before returning to Jose’s
driveway. Meanwhile, Jose walked out onto Paradise Road, looked around, and was
joined by Jasso near the front end of the Bronco. By 7:50 p.m., all three had returned to
Jose’s driveway and were no longer visible on camera.
At 8:00 p.m., Rubio walked past the restaurant along the southern curb of Paradise
Road. He was holding a bottle of beer in his left hand.5 Shortly before moving past the
alley, he entered the street and continued on a northeastward trajectory toward Velma
Avenue, taking a swig of his beer while passing by the Lincoln pickup truck. At virtually
4The video shows movement outside of Jose’s residence, near the corner of Paradise
Road and Velma Avenue, at 6:32 p.m. About one minute later, a person resembling Kasey
Villegas comes into view and then walks off camera at the approximate location of Jose’s
driveway.
5Sheriff’s deputies later found an aluminum Bud Light beer bottle near Rubio’s body. It
was visible in some of the crime scene photographs admitted at trial.
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the same moment (20:00:57 on the video clock), Jasso exited the driveway and walked in
front of the Ford Bronco. Six seconds later, Juan appeared on camera.
Juan also stepped in front of the Bronco, but he was closer to it than Jasso. Rubio
suddenly turned to his right (i.e., toward Juan), took a step backwards while extending
both arms out from his waist, then staggered farther backwards and fell down in between
the Bronco and the pickup truck. He ceased to be visible at approximately 20:01:07 on
the video clock.
Jasso had first come into view at approximately 20:00:57 and remained in front of
the Bronco until approximately 20:01:09. Juan came into view at approximately
20:01:03, disappeared in front of the Bronco at 20:01:05, and reappeared at 20:01:10
running toward Jasso’s parked car across the street. Meanwhile, Jose and Kasey Villegas
stepped out of the driveway and into the camera’s view at 20:01:07. Kasey turned back
around almost immediately, and Jose did the same approximately one second later.
Jasso, from his position in front of the Bronco, very briefly moved in the direction of Jose
and Kasey but then turned and ran across the street to his car (arriving there a few steps
behind Juan). A few seconds later, Kasey ran after Juan and Jasso and fled with them in
Jasso’s vehicle.
Jasso drove west on Paradise Road at 8:01 p.m. His vehicle disappeared from the
camera’s view when the video clock hit 20:01:30. At 8:02 p.m., Jose and his girlfriend
exited the driveway. Jose jogged over to where Rubio lay, knelt down for a few seconds,
then stood up and jogged back to his house. Jose’s girlfriend walked around the Bronco
and momentarily looked down at Rubio before moving in between the vehicles and out of
view for about 30 seconds. Unidentified onlookers began to approach the scene and
watched from a distance as Jose’s girlfriend paced back and forth near Rubio’s body,
appearing to talk on a phone.
At 8:04 p.m., a person later alleged to be Jose’s neighbor walked in between the
vehicles and disappeared from the camera’s view. About 24 seconds later, he returned to
12.
the southern curb of Paradise Road and handed something to an unknown person. A
sheriff’s deputy pulled up in a patrol car shortly thereafter.
Defense Case
Jasso’s defense was mere presence during the shooting. He testified on his own
behalf. His attorney introduced photographs of Rubio displaying “gang signs” with his
hands and fingers, which had been uploaded to Rubio’s Facebook account one day prior
to his death. Defense counsel also introduced what had reportedly been Rubio’s
Facebook “cover photo” in November 2015, i.e., two years prior to the shooting. It is
described in the record as “a photograph of two semi-automatic pistols with the words
‘May God have mercy on my enemies because I won’t.’”
Jasso preemptively stipulated to being “an active participant in the Varrio Bakers”
and to “knowingly sell[ing] illegal narcotics for a profit with other members of the Varrio
Bakers.” He alleged Jose, Juan, and Kasey Villegas were fellow Varrio Bakers members.
Jasso also admitted to having made false statements during his custodial interview.
Regarding the day of the shooting, Jasso testified, “Juan had called me, told me he
wanted to go visit with Jose and his kids. [Jose] had just moved into his new house.”
Jasso agreed to drive Juan to Lamont in his Honda Civic. Kasey Villegas joined them.
Jasso testified there was never any discussion among the group about Rubio or the
possibility of a confrontation in Lamont. His expectations for the trip were to “have a
couple of beers, smoke a blunt, [and] catch up with Jose.” Rubio was a person
completely unknown to him, even at the time of the shooting. He stated, “I never knew
who he was. The first time I heard about him was when I got arrested for this case.”
In his initial telling of the events, Jasso omitted nearly an hour’s worth of activity.
He testified to arriving in Lamont with Juan and Kasey, smoking marijuana with them
while parked in front of Jose’s house, getting out and socializing with Jose in the front
yard “for a little bit,” and then walking to the store to purchase some Tecate beer. Jasso
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confirmed the video footage at 7:14 p.m. and 7:19 p.m. showed the four of them on their
beer errand.
On cross-examination, Jasso admitted that the video showed him exiting his
parked car alone at 7:09 p.m. and walking to Jose’s residence. The prosecutor asked
where he had been “for almost an hour, 51 minutes about, after you first arrived in
Lamont[?]” Jasso testified to dropping Juan and Kasey off on the Velma Avenue side of
Jose’s residence “when we first arrived,” then traveling alone to the town of Arvin to
deliver a package of cocaine. This was not entirely consistent with the footage of Jose
standing in the street at 6:18 p.m., directing Jasso away from his house, and Jasso
proceeding to drive north with his passengers still in the vehicle. In other testimony,
Jasso alleged Jose had been pointing in the direction of where he intended to meet
someone to buy marijuana.
Jasso gave the following testimony about the shooting: “As I’m—as we’re
walking out of the gate, I had to leave early to go pick up my girl from work and as we’re
walking out, I don’t know. I guess I thought it was one of Jose’s friends or something.
He just—Jose told him like, ‘I told you I’m not trippin.’ [¶] [Rubio] goes, ‘I don’t give a
fuck. I’m keeping my palabra [word].’”
After follow-up questions about Jose’s and Rubio’s exact statements, Jasso
continued: “Yeah, it was something like that because me and Kasey were walking out.
We were talking. I heard Jose say something about, ‘I already told you I’m not trippin.’
The car is right here. As I come around, I see someone approaching us. [¶] He’s already
saying, ‘I don’t give a fuck. I already told you. I keep my palabra’ ….”
Jasso’s attorney asked, “Did you see [Rubio] with something in his hand?” Jasso
answered, “Yes, well, he grabbed—he went under his shirt. He pulled out like those
little—you know those guns off the side races, those little black revolvers from the
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movies that they show when they start the race.” Defense counsel then asked, “You saw
him with a small handgun?” Jasso replied, “Yeah, it’s like a revolver.”6
Describing the sequence of events, Jasso testified: “So I seen him pull it out. I
dodged behind the car. I just heard four pops, so I thought we were getting shot at and
[Jose’s child] was outside. [¶] … [¶] So I ran to the gate and closed the gate and then
when I turned back around, it was just like [Rubio] wasn’t standing there no more so we
took off.”7
Jasso denied knowing Rubio had been shot when he fled the scene. He testified,
“[T]o my understanding, [Rubio] was the one that was shooting at us.” When Jasso,
Juan, and Kasey got into the car, Juan asked, “‘You guys all right?’” Jasso claimed to
have replied, “‘Yeah, fuck. I’ll take you guys home. I have to pick up my bitch.’” His
testimony indicated there was no discussion of the incident on the drive back to
Bakersfield. Jasso did not ask Juan about the person who had shot at them, i.e., Rubio,
because he “was pretty sure Juan wouldn’t know who he was either.”
6On cross-examination, the prosecutor had Jasso confirm the gun he allegedly saw in
Rubio’s possession was a revolver. This was an important detail because, as explained by a law
enforcement witness, when an automatic pistol is fired the spent bullet casing is “ejected from
the firearm[,] which causes the following rounds to be loaded into the barrel or chamber if
there’s accompanying rounds in it.” When shots are fired from a revolver, however, the empty
casings remain inside the gun until manually removed. Although one of the casings found at the
scene was of a different brand than the other three, that did not necessarily indicate the use of
two guns. But if there were two gunmen, Rubio’s alleged possession of a revolver meant the
second shooter was almost certainly not him.
7Jasso’s reference to the “gate” was not explained, but it likely made sense to the jury
given their trip to the crime scene. The crime scene photos showed chain link fencing in front of
Jose’s house and the home of his neighbor. The neighbor’s driveway, located between the Ford
Bronco and Lincoln truck, was blocked by a metallic fence-like gate. Jose may have had a
similar gate for his driveway, but the space was open in the photos admitted at trial. In any
event, the prosecutor argued Jasso’s testimony about closing the gate was demonstrably false.
His movement toward Jose’s house before running in the opposite direction happened in less
than two seconds, and Jose was in front of Jasso when Jasso turned around to flee.
15.
Jose rested his defense case without introducing any evidence. Like Jasso, he
relied on a theory of mere presence. His trial counsel argued Jose had truthfully told
detectives that he did not see who fired the shots. Counsel also disputed the People’s
theory of aiding and abetting, claiming the evidence allowed for a reasonable doubt on
the element of intent. Jose’s attorney did not argue self-defense.
Juan did not call any witnesses, but his attorney introduced additional content
from Rubio’s Facebook account to argue Rubio was a Varrio Chico Lamont gang
member or associate. Building upon Jasso’s testimony about Rubio being armed, Juan’s
counsel alleged certain video footage showed a black handgun in Rubio’s waistband.
Counsel offered multiple alternative defense theories during closing argument, including
self-defense and defense of others.
Verdicts and Sentencing
The jury deliberated for approximately 14 hours over the course of three days. On
the third day, toward the end of its deliberations, it submitted questions about section
190.2(a)(22) and later reported being evenly divided on whether defendants killed Rubio
to further the activities of a criminal street gang. A mistrial was declared as to the gang
special circumstance allegation, which was ultimately dismissed. Defendants were
otherwise convicted as charged and all remaining allegations were found true. The
recidivism allegations against Juan were sustained by the trial court.
Juan was sentenced to life in prison without the possibility of parole (LWOP) for
first degree murder committed by means of lying in wait. Sentencing on count 1 included
consecutive terms of 25 years to life for the firearm enhancement, 10 years for the gang
enhancement, and 10 years for two prior serious felony convictions. Punishment
imposed for counts 2 and 3, which was said to include 2 one-year terms for the prison
priors, was ordered stayed pursuant to section 654.
Jose’s count 1 sentence was LWOP plus a consecutive term of 25 years to life for
the firearm enhancement. Because the latter term was imposed pursuant to section
16.
12022.53, subdivision (e)(1), punishment for the separate gang enhancement was stayed
(see id., subd. (e)(2)). Punishment for count 2 was stayed pursuant to section 654.
Jasso’s count 1 sentence was LWOP plus 25 years to life for the firearm
enhancement. The gang enhancement was omitted from the pronouncement of judgment
without explanation. Punishment for count 2 was stayed pursuant to section 654.
DISCUSSION
I. Sufficiency of the Evidence*
Jasso’s murder conviction was based on a theory of aiding and abetting. He seeks
reversal of count 1 for insufficient evidence. The People dispute the claim.
A. Standard of Review
“On appeal, the test of legal sufficiency is whether there is substantial evidence,
i.e., evidence from which a reasonable trier of fact could conclude that the prosecution
sustained its burden of proof beyond a reasonable doubt.” (People v. Boyer (2006) 38
Cal.4th 412, 479.) We construe the record in the light most favorable to the judgment
and presume “‘the existence of every fact the jury could reasonably have deduced from
the evidence.’” (People v. Mendez (2019) 7 Cal.5th 680, 702.) “‘Substantial evidence
includes circumstantial evidence and any reasonable inferences drawn from that
evidence.’” (People v. Grant (2020) 57 Cal.App.5th 323, 330.)
It is the jury’s role “to decide whether an inference should be drawn and the
weight to be accorded the inference.” (People v. Massie (2006) 142 Cal.App.4th 365,
374.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th 978,
1053–1054.) “If the circumstances reasonably justify the jury’s findings, the reviewing
*See footnote, ante, page 1.
17.
court may not reverse the judgment merely because it believes that the circumstances
might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139;
accord, People v. Ghobrial (2018) 5 Cal.5th 250, 278.)
B. Law and Analysis
An aider and abettor is one who acts “with knowledge of the criminal purpose of
the perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
To be guilty of first degree murder, the aider and abettor must share the mens rea of the
actual killer. (See § 188, subd. (a)(3); People v. Gonzalez (2012) 54 Cal.4th 643, 653 [“A
person who kills unlawfully and intentionally is guilty of first degree murder if the intent
to kill is formed after premeditation and deliberation”].) The required actus reus is
conduct “that in fact assists the achievement of the crime.” (People v. Perez (2005) 35
Cal.4th 1219, 1225.)
Jasso argues he was not shown to have encouraged or assisted in the murder of
Rubio. To assess his claim, we consider the factors of “‘presence at the scene of the
crime, companionship, and conduct before and after the offense.’” (People v. Nguyen
(2015) 61 Cal.4th 1015, 1054.) “‘Mere presence at the scene of a crime which does not
itself assist its commission or mere knowledge that a crime is being committed and the
failure to prevent it does not amount to aiding and abetting.’” (People v. Pettie (2017) 16
Cal.App.5th 23, 57.) Whether Jasso provided assistance is a question of fact, so “all
conflicts in the evidence and reasonable inferences must be resolved in favor of the
judgment.” (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.)
The video evidence is fairly interpreted as showing more than Jasso’s mere
presence during the shooting. He walked out onto Paradise Road several seconds before
Juan appeared on camera, during which time Rubio was heading northeast toward Velma
Avenue. Jasso testified that Rubio approached him and Kasey Villegas as they were
18.
walking to Jasso’s car, but the video permits the finding it was Jasso who approached
Rubio. Kasey Villegas did not enter the street until approximately 10 seconds later, after
Rubio had been shot, and he was walking behind Jose.
Jose’s trial counsel argued the video showed Rubio having some kind of
“reaction” at or near the time Juan walked in front of the Bronco. Juan’s trial counsel
similarly argued Rubio was already “reacting to something in front of him” and it was
“doubtful” he could see Juan, who was farther off to his right, because the Bronco was in
between them. The video and surrounding circumstances support the inference Jasso
engaged with Rubio as a diversionary measure, i.e., he distracted Rubio to help facilitate
the ambush by Juan. Such behavior constitutes aiding and abetting. (See, e.g., People v.
Ngaue (1992) 8 Cal.App.4th 896, 906–907.)
In his reply brief, Jasso argues “[a] distraction was not necessary for Juan to safely
shoot Rubio.” He misses the point. “The ‘act’ required for aiding and abetting liability
need not be a substantial factor in the offense.” (People v. Swanson-Birabent (2003) 114
Cal.App.4th 733, 743; accord, People v. Franzen (2012) 210 Cal.App.4th 1193, 1216.)
“‘It has been held, therefore, that one who is present for the purpose of diverting
suspicion, or to serve as a lookout, or to give warning of anyone seeking to interfere, …
or to drive the “getaway” car and to give direct aid to others in making their escape from
the scene of the crime, is a principal in the crime committed.’” (Swanson-Birabent, at pp.
743–744.)
“Giving a false statement evincing consciousness of guilt is another circumstance
tending to prove aiding and abetting.” (People v. Glukhoy (2022) 77 Cal.App.5th 576,
602; see People v. Showers (1968) 68 Cal.2d 639, 643 [“False statements regarding
incriminating circumstances constitute evidence which may support an inference of
consciousness of guilt”].) The jury may thus have considered Jasso’s dishonesty in his
custodial interview and on the witness stand. He initially denied even being in Lamont
on the day of the shooting. When detectives showed him a surveillance image of his
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vehicle, he told them, “It’s not my car.” At trial he claimed to have “dodged behind the
car” upon seeing Rubio reach for a gun, but the video showed Jasso was in the street and
in front of the Bronco the entire time. The jury could have also concluded, as argued by
the prosecutor, the video disproved Jasso’s testimony that he “ran to the gate and closed
the gate” before fleeing.
“As noted, a defendant’s conduct after a crime, including flight, is a relevant factor
in determining his liability for aiding and abetting the crime.” (People v. Garcia (2008)
168 Cal.App.4th 261, 274.) Jasso’s flight was especially probative considering he drove
Juan to and from the crime scene. He testified Juan was a fellow gang member, a
frequent companion, and someone he had known “for a long time.” Juan ran directly to
Jasso’s car after shooting Rubio, clearly expecting the assistance in flight that Jasso
provided.
The evidence permitted the inference the trip to Lamont was directly related to
Jose’s problems with Rubio. (See People v. Glukhoy, supra, 77 Cal.App.5th at p. 599
[“Motive is another circumstance to be considered in determining aiding and abetting
liability”].) Jasso admitted Jose was a friend and fellow gang member, and the jury was
free to disbelieve his professed ignorance about the dispute with Rubio. For all these
reasons, we reject Jasso’s claim of insufficient evidence.
II. Assembly Bill 333
Assembly Bill 333 was enacted during the pendency of this appeal. Defendants
claim its amendments to section 186.22 apply retroactively and warrant reversal of their
count 2 convictions and gang-related enhancements. The People concede those
arguments. Defendants further contend that section 1109, a new procedural statute
concerning gang charges and enhancements, applies retroactively and entitles them to
complete reversal of the judgments. The People dispute the section 1109 claims. We
20.
agree with defendants on the question of retroactivity but reject the claims regarding
prejudice.
A. Overview
Section 186.22 prohibits unlawful participation in a criminal street gang, as set
forth in subdivision (a), and includes sentencing enhancement provisions, which are
found in subdivision (b). The statute also has alternate penalty provisions, section
186.22, subdivisions (b)(4), (5), and (d), the latter of which allows for punishment of up
to three years in prison if the defendant is “convicted of a gang-related misdemeanor
offense.” (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)
A criminal street gang is “an ongoing, organized association or group of three or
more persons, whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated in subdivision (e), having a
common name or common identifying sign or symbol, and whose members collectively
engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
A “‘pattern of criminal gang activity’ means the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or
conviction of” two or more offenses listed in section 186.22, subdivision (e), if such
conduct occurred within certain time frames and under particular circumstances specified
therein. (§ 186.22, subd. (e)(1).) This is commonly known as the “predicate offenses”
requirement. (People v. Navarro (2021) 12 Cal.5th 285, 311.)
“The elements of the gang participation offense in section 186.22[,] [subdivision]
(a) are: First, active participation in a criminal street gang, in the sense of participation
that is more than nominal or passive; second, knowledge that the gang’s members engage
in or have engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) The enhancements and alternate
21.
penalty provisions apply only to gang-related crimes, meaning offenses “committed for
the benefit of, at the direction of, or in association with a criminal street gang.”
(§ 186.22, subds. (b), (d); accord, People v. Livingston (2012) 53 Cal.4th 1145, 1170.)
The enhancements and alternate penalties further require “the specific intent to promote,
further, or assist in criminal conduct by gang members.” (§ 186.22, subds. (b)(1), (4),
(d).)
By enactment of Assembly Bill 333, section 186.22 has new requirements for
establishing liability under subdivisions (a), (b), and (d). (Stats. 2021, ch. 699, § 3.) As
of January 1, 2022, predicate offenses must be shown to have “commonly benefited” the
alleged gang, and the common benefit must have been “more than reputational.”
(§ 186.22, subd. (e)(1).) Currently charged offenses no longer qualify (id., subd. (e)(2)),
and at least one predicate offense must have been committed “within three years of the
date the current offense is alleged to have been committed …” (id., subd. (e)(1)). Among
other additional changes, the terms “benefit,” “promote,” “further,” and “assist” are now
defined to mean providing “a common benefit to members of a gang where the common
benefit is more than reputational.” (Id., subd. (g).)
Assembly Bill 333 also added section 1109. (Stats. 2021, ch. 699, § 5.) The new
statute provides:
“(a) 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
22.
conduct by gang members shall be proved by direct or circumstantial
evidence.
“(b) If 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.”
B. Retroactivity of Amendments to Section 186.22
Section 3 states that no part of the Penal Code is retroactive “unless expressly so
declared.” However, in In re Estrada (1965) 63 Cal.2d 740 (Estrada), an amendment to
a criminal statute was held to apply retroactively despite the Legislature’s failure to
expressly declare such an intent. (Id. at pp. 742–745.) The rationale for this outcome has
come to be known as the “Estrada rule.” (E.g., People v. Frahs (2020) 9 Cal.5th 618,
624 (Frahs).) In brief, “[w]hen new legislation reduces the punishment for an offense,
we presume that the legislation applies to all cases not yet final as of the legislation’s
effective date.” (People v. Esquivel (2021) 11 Cal.5th 671, 673.)
The Estrada rule has been applied “to statutes that merely made a reduced
punishment possible.” (Frahs, supra, 9 Cal.5th at p. 629.) In People v. Superior Court
(Lara) (2018) 4 Cal.5th 299 (Lara), the inference of retroactivity was extended to
legislation that “ameliorated the possible punishment for a class of persons.” (Id. at p.
308.) In Frahs, a pretrial diversion statute (§ 1001.36) was held to apply retroactively
because it “offers a potentially ameliorative benefit for a class of individuals—namely,
criminal defendants who suffer from a qualifying mental disorder.” (Frahs, at p. 631.)
Further inferences of retroactive intent were drawn from the Legislature’s stated goal of
“‘[i]ncreased diversion of individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system …,’” and because “the procedures
instituted by the enactment carry the potential of substantial reductions in punishment for
the aforementioned parties.” (Ibid.)
23.
The Frahs opinion holds “that in order to rebut Estrada’s inference of retroactivity
concerning ameliorative statutes, the Legislature must ‘demonstrate its intention with
sufficient clarity that a reviewing court can discern and effectuate it.’” (Frahs, supra, 9
Cal.5th at p. 634.) Assembly Bill 333 “increases the threshold for conviction of the
section 186.22 offense and the imposition of the enhancement” (People v. Lopez (2021)
73 Cal.App.5th 327, 344), which obviously confers potentially ameliorative benefits upon
a class of persons to which defendants belong. (See Tapia v. Superior Court (1991) 53
Cal.3d 282, 301 [Estrada rule applies “to statutes which redefine, to the benefit of
defendants, conduct subject to criminal sanctions”].) We thus conclude the amendments
to section 186.22 apply retroactively in this case.
The parties’ arguments for reversal of the count 2 convictions and the gang
enhancements are sound. The People concede their gang expert “failed to describe how
the predicate offenses commonly benefited the gang, as required under the new
legislation.” “The proper remedy for this type of failure of proof—where newly required
elements were ‘never tried’ to the jury—is to remand and give the People an opportunity
to retry the affected charges.” (People v. E.H. (2022) 75 Cal.App.5th 467, 480; accord,
People v. Rodriguez (2022) 75 Cal.App.5th 816, 822–823; People v. Lopez, supra, 73
Cal.App.5th at p. 346.)
Jasso and Jose further contend that reversal of the gang enhancements invalidates
their firearm enhancements, which were imposed pursuant to section 12022.53,
subdivisions (d) and (e)(1). The People acknowledge the claim but do not expressly
concede it. The claim has merit.
“Ordinarily, section 12022.53’s sentence enhancements apply only to personal use
or discharge of a firearm in the commission of a statutorily specified offense, but when
the offense is committed to benefit a criminal street gang, the statute’s additional
punishments apply even if, as in this case, [a] defendant did not personally use or
discharge a firearm but another principal did.” (People v. Brookfield (2009) 47 Cal.4th
24.
583, 589.) Jose and Jasso were not found to have personally used or discharged a
firearm, so reversal of the gang findings eliminates the only basis for liability under
section 12022.53. Their gun enhancements must therefore be vacated. (People v. Lopez,
supra, 73 Cal.App.5th at pp. 347–348; People v. Cornejo (2016) 3 Cal.App.5th 36, 43,
50.)
C. Retroactivity of Section 1109
There is a split of authority on the retroactive application of section 1109. In
People v. Burgos (2022) 77 Cal.App.5th 550 (Burgos), a divided panel of the Sixth
Appellate District held the statute applies retroactively to nonfinal judgments. (Id. at pp.
564–568.) In People v. Ramos (2022) 77 Cal.App.5th 1116, this district reached the
same conclusion. (Id. at p. 1119.) Division Three of the Second Appellate District took
an opposing view in People v. Perez (2022) 78 Cal.App.5th 192 (Perez), holding “that
the statute does not apply retroactively to a trial that has already occurred.” (Id. at p.
207.) The People urge us to follow Perez and the dissent in Burgos.8 We decline to do
so.
“Our inquiry into legislative intent begins, as always, with the statutory text.”
(People v. Lopez (2022) 12 Cal.5th 957, 971.) Section 1109 contains two provisions.
The first requires bifurcation of gang enhancement allegations if requested by the
defense. (§ 1109, subd. (a).) The second requires counts alleging violations of section
186.22, subdivision (a) to be “tried separately from all other counts that do not otherwise
require gang evidence as an element of the crime.” (§ 1109, subd. (b).)
8After briefing was completed in this matter, the Sixth Appellate District published
another opinion addressing this issue, People v. Ramirez (2022) 79 Cal.App.5th 48. There, the
majority of a divided panel “adopt[ed] the analysis in Justice Elia’s dissent in Burgos” and held
section 1109 does not apply retroactively to nonfinal judgments. (Ramirez, at p. 65.) Writing
separately, Justice Wilson concurred in the result reached by the Ramirez majority but opined
that section 1109 “is ameliorative within the meaning of the Estrada rule and therefore
retroactive as well.” (Id. at p. 67.)
25.
Section 1109 contains no express declaration of retroactivity. However, there is a
statement of legislative findings in an uncodified section of Assembly Bill 333. (Stats.
2021, ch. 699, § 2.) “An uncodified section is part of the statutory law.” (Carter v.
California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925.) We therefore consider
the following declarations of the Legislature:
“According to the Committee on Revision of the Penal Code’s 2020
report: [¶] … [¶] Gang enhancement evidence can be unreliable and
prejudicial to a jury because it is lumped into evidence of the underlying
charges which further perpetuates unfair prejudice in juries and convictions
of innocent people.” (Stats. 2021, ch. 699, § 2, subd. (d)(6).)
“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.” (Stats. 2021, ch.
699, § 2, subd. (e).)
“Bifurcation of trials where gang evidence is alleged can help reduce
its harmful and prejudicial impact.” (Stats. 2021, ch. 699, § 2, subd. (f).)
The dissenting opinion in Burgos discussed the quoted excerpts and conceded the
Legislature “expressed the belief that bifurcation could help reduce the risk of prejudice.”
(Burgos, supra, 77 Cal.App.5th at p. 570 (dis. opn. of Elia, J.).) The Burgos dissent also
recognized that our state Supreme Court has construed new laws as “‘ameliorative’” if
they potentially eliminate punishment for an offense. (Id. at p. 572, quoting Frahs,
supra, 9 Cal.5th at p. 631.) However, the dissenting opinion concluded “section 1109 is
not an ameliorative statute within the meaning of the Estrada rule,” but rather “a ‘purely
procedural’ change … that will not have any impact ‘directly’ or indirectly on
punishment.” (Burgos, at pp. 569, 572.) We disagree. The uncodified preamble in
Assembly Bill 333 clearly reflects the Legislature’s intent to eliminate or reduce what it
26.
views as unwarranted punishment stemming from the admission of prejudicial gang
evidence.
The Perez opinion does not go into depth on the issue. It states that “[u]nlike the
new law in Lara, which was a new procedural law that had the effect of potentially
reducing the punishment for a class of defendants, here, section 1109 is a procedural
statute that ensures a jury will not be prejudiced by the introduction of evidence to
support gang enhancement allegations—it does not reduce the punishment imposed.”
(Perez, supra, 78 Cal.App.5th at p. 207.) We do not follow this reasoning. In Lara, the
California Supreme Court acknowledged “Estrada is not directly on point” if the statute
in question “does not reduce the punishment for a crime.” (Lara, supra, 4 Cal.5th at p.
303.) “But its rationale does apply” if the new legislation “reduces the possible
punishment for a class of persons.” (Ibid.) A possible reduction in the extent of
punishment and the possibility of avoiding any punishment whatsoever are both
“potentially ameliorative benefit[s].” (Frahs, supra, 9 Cal.5th at p. 631.)
Section 1109 is intended to “reduce [the] harmful and prejudicial impact” of gang
evidence (Stats. 2021, ch. 699, § 2, subd. (f)), and ultimately prevent wrongful
convictions and unfair plea bargains (id., subds. (d)(6), (e)). The “increased possibility of
acquittal … necessarily reduces possible punishment.” (Burgos, supra, 77 Cal.App.5th at
p. 567.) Likewise, “[b]y reducing the pressure to accept longer sentences, [section 1109]
will necessarily reduce the degree of punishment for many defendants charged with gang
enhancements, even if they never have to invoke its prophylactic protections at trial.”
(Ibid.; see Stats. 2021, ch. 699, § 2, subd. (e).)
The People argue that “until Burgos, no case had ever applied the Estrada
exception to the rule of nonretroactivity stated in section 3 to a statute like section 1109
that does not alter the punishment or the required elements.” We disagree. The statute at
issue in Frahs does not alter the prescribed punishment for, or the required elements of,
any offense. “[S]ection 1001.36 by design and function provides a possible ameliorating
27.
benefit for a class of persons—namely, certain defendants with mental disorders—by
offering an opportunity for diversion and ultimately the dismissal of charges.” (Frahs,
supra, 9 Cal.5th at p. 624.) The “potentially ameliorative benefit” is the possibility of
avoiding being tried, convicted, and sentenced for alleged criminal behavior. (Id. at p.
631.)
The People also overlook Frahs by arguing “[a] legislative reduction in
punishment does not exist when defendants who were lawfully convicted and punished
under pre-2022 procedures would still be lawfully convicted and subject to identical
punishment under 2022 procedures.” They restate the argument this way: “A defendant
who receives the benefit of a severed or bifurcated trial may ultimately receive the same
sentence he or she could have received without severance or bifurcation. Although the
persuasiveness of the evidence at trial on the underlying offenses might be impacted, the
potential punishment for a defendant is not reduced by section 1109.”
The Frahs appellant had already been tried and convicted of two felonies, and an
appeal of the judgment was pending, when section 1001.36 went into effect. (Frahs,
supra, 9 Cal.5th at pp. 625–626.) Retroactive application of the pretrial diversion statute
did not guarantee a change in the judgment. The appellant still needed to demonstrate
eligibility for diversion on remand and, if eligible, persuade the trial court to grant relief
under section 1001.36 and, if granted relief, perform successfully in a diversion program.
(Frahs, at p. 641.) If any of those contingencies did not occur, the appellant’s
convictions and sentence were to be reinstated. (Ibid.) What made the statute
“ameliorative” was the possibility of a more favorable outcome that did not exist prior to
its enactment. (See id. at p. 631.)
Because it “provides a possible benefit to a class of criminal defendants and the
statute does not contain an express savings clause that limits the [procedures] to
prospective-only application, the specific question before us boils down to whether the
Legislature ‘clearly signal[ed] its intent’ to overcome the Estrada inference that section
28.
[1109] applies retroactively to all cases not yet final on appeal.” (Frahs, supra, 9 Cal.5th
at pp. 631–632.) The People fail to identify any such indicators in Assembly Bill 333 or
its legislative history. The only argument presented is that “deeming section 1109 to be
retroactive would also impose an unsurmountable financial burden and prevent judicial
economy.”
The People cite to a statement in the Burgos dissent: “[The Legislature] relied on
a fiscal analysis of the bifurcation provisions in section 1109 that was based on the
assumption that the provisions would apply only prospectively. (Sen. Com. on
Appropriations, Analysis of Assem. Bill No. 333 (2021–2022 Reg. Sess.) as amended
July 13, 2021, p. 3.)” (Burgos, supra, 77 Cal.App.5th at p. 571 (dis. opn. of Elia, J.).)
But what the Appropriations Committee said was that the fiscal impact of Assembly Bill
333 is unknown and difficult to predict. (Sen. Com. on Appropriations, Analysis of
Assem. Bill No. 333, supra, pp. 1, 3.) Although section 1109 may increase “workload
costs to the courts” (id., p. 3), it could also produce “cost savings to [the California
Department of Corrections and Rehabilitation] if it results in some individuals serving a
shorter (or no) term of imprisonment” (id., p. 4). This is not a clear indication of the
Legislature’s intent for prospective-only application. (Cf. Frahs, supra, 9 Cal.5th at p.
635 [“[F]or an individual like defendant, who is currently serving a nine-year prison
sentence, participation in a mental health diversion program rather than serving the
remainder of his sentence could potentially result in substantial cost savings to the
state”].) Accordingly, we conclude section 1109 applies retroactively to nonfinal
judgments.
Juan contends retroactive application of section 1109 “results in structural error or,
alternatively, [his entire] judgment must be reversed because of actual prejudice ….”
Jasso and Jose make similar arguments. The structural error claim relies on Burgos,
supra, 77 Cal.App.5th at page 568, which we do not find persuasive. “There is a strong
presumption that any error falls within the trial error category,” i.e., is not structural, and
29.
thus “subject to harmless error analysis.” (People v. Anzalone (2013) 56 Cal.4th 545,
554; see, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 162 [“Even if a trial court’s
severance or joinder ruling is correct at the time it was made, a reviewing court must
reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross
unfairness” amounting to a denial of due process’”].)
Defendants’ ability to demonstrate prejudice depends on whether section 1109
affects the statutory scheme governing special circumstance allegations. In other words,
prejudice cannot be shown if all the gang evidence would have been admitted due to the
allegation of a gang murder for purposes of section 190.2(a)(22). We must therefore
determine the interplay between section 1109 and section 190.1 et seq.9
D. Section 1109 Does Not Apply to Section 190.1 et seq.
Assembly Bill 333 has been held to affect “other statutes that expressly
incorporate provisions of section 186.22,” including the “gang murder special
circumstance” provision of section 190.2. (People v. Lopez, supra, 73 Cal.App.5th at p.
346.) Section 190.2 makes first degree murder punishable by death or LWOP if “[t]he
defendant intentionally killed the victim while the defendant was an active participant in
a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder
was carried out to further the activities of the criminal street gang.” (§ 190.2(a)(22).)
“As the definition of a criminal street gang has been narrowed by Assembly Bill 333 and
9All three defendants claim section 1109 requires bifurcation of special circumstance
allegations pleaded under section 190.2(a)(22). The People were given the opportunity to refute
the argument but chose not to address it. The People’s position is that retroactive application of
section 1109 would not require reversal of the murder convictions under any circumstances
because prejudice could not be shown.
Juan additionally contends that section 1109 requires bifurcation of gun enhancement
allegations pleaded under section 12022.53, subdivision (e). However, Juan’s firearm
enhancement was imposed pursuant to section 12022.53, subdivision (d), meaning it was not
dependent upon the gang findings. Because the issue does not affect Juan’s judgment, we
decline to reach the merits of his claim.
30.
new elements added in order to prove a criminal street gang and a pattern of criminal
activity,” the requirements for establishing liability under section 190.2(a)(22) have also
changed. (Lopez, at p. 347.) Section 190.2 does not, however, contain any references to
section 1109.
Section 1109 says nothing about the special circumstance statutes, and its
provisions are specific to section 186.22, subdivisions (a), (b), and (d). Moreover, the
procedures required by section 1109 conflict with the procedures set forth in section
190.1 et seq. For that reason, we first consider whether bifurcation of a gang special
circumstance allegation is even permissible.10
Section 190.1 provides, in relevant part:
“A case in which the death penalty may be imposed pursuant to this
chapter shall be tried in separate phases as follows:
“(a) The question of the defendant’s guilt shall be first determined.
If the trier of fact finds the defendant guilty of first degree murder, it shall
at the same time determine the truth of all special circumstances charged as
enumerated in Section 190.2 except for a special circumstance charged
pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is
alleged that the defendant had been convicted in a prior proceeding of the
offense of murder in the first or second degree.
“(b) If the defendant is found guilty of first degree murder and one
of the special circumstances is charged pursuant to paragraph (2) of
subdivision (a) of Section 190.2 which charges that the defendant had been
convicted in a prior proceeding of the offense of murder of the first or
second degree, there shall thereupon be further proceedings on the question
of the truth of such special circumstance.”
10The general authority to bifurcate trial issues is found in section 1044, “which vests the
trial court with broad discretion to control the conduct of a criminal trial.” (People v. Calderon
(1994) 9 Cal.4th 69, 74–75.) Bifurcation “‘means that different issues in a case will be tried
seriatim by the same jury with the jury returning separate verdicts as to the issues bifurcated.
There is but one trial.’” (People v. Givan (1992) 4 Cal.App.4th 1107, 1114; accord, People v.
Hernandez (2004) 33 Cal.4th 1040, 1050.)
31.
Summarized, section 190.1 “require[s] the truth of a prior murder conviction
special circumstance be tried only after the guilt determination, but other special
circumstances, including a gang special circumstance …, be determined at the same time
as the guilt determination.” (People v. Hernandez, supra, 33 Cal.4th at p. 1049; accord,
People v. Sivongxxay (2017) 3 Cal.5th 151, 171.) The limited exception for allegations
of a prior murder conviction “is intended for the benefit of capital defendants.” (People
v. Farnam (2002) 28 Cal.4th 107, 146.) “In essence, the statute recognizes that evidence
of such a conviction may potentially have an inflammatory effect on jurors who are asked
to determine a defendant’s guilt or innocence on a current charge of murder.” (Ibid.)
It could be argued the phrase, “A case in which the death penalty may be
imposed” means bifurcation is authorized without limitation where, as here, the
prosecution elects not to seek the death penalty and the defendant’s maximum exposure
is LWOP. (§ 190.1, subd. (a).) But this interpretation is difficult to reconcile with other
parts of the statutory scheme. Section 190.2 requires special circumstance allegations to
be found true “under Section 190.4.” (§ 190.2, subds. (a), (c).) Section 190.4 provides,
in relevant part:
“Whenever special circumstances as enumerated in Section 190.2 are
alleged and the trier of fact finds the defendant guilty of first degree
murder, the trier of fact shall also make a special finding on the truth of
each alleged special circumstance. The determination of the truth of any or
all of the special circumstances shall be made by the trier of fact on the
evidence presented at the trial or at the hearing held pursuant to Subdivision
(b) of Section 190.1.” (§ 190.4, subd. (a).)
As stated in People v. Fierro (1991) 1 Cal.4th 173, “The statutory scheme plainly
contemplates that, except where the special circumstance alleged is that of a prior
murder, the same jury which determines guilt shall also at the same time determine the
truth of the special circumstance allegation.” (Id. at p. 229, italics added.) The only
judicially recognized exception we have found appears in People v. Bigelow (1984) 37
Cal.3d 731 (Bigelow), which the Fierro court summarized as follows:
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“In that case, one of the special circumstance allegations was murder for the
purpose of avoiding arrest or perfecting an escape. (§ 190.2, subd. (a)(5).)
At the guilt phase the prosecution presented evidence highly prejudicial to
the defendant, indicating that he had committed a dozen uncharged
burglaries, robberies and thefts; the prosecution’s primary theory of
relevance was that the defendant committed each of the crimes to finance
and perpetuate an escape from custody, which was relevant to the special
circumstance allegation. Because of the ‘highly prejudicial’ nature of the
prior-crimes evidence, we concluded that the trial court should have
conducted a separate trial of the special circumstance allegation.” (Fierro,
at p. 229.)
The Fierro appellant had moved to bifurcate a special circumstance allegation of
murder committed during the perpetration of a robbery. (People v. Fierro, supra, 1
Cal.4th at pp. 200, 228.) The California Supreme Court held the trial court’s denial of the
motion “was correct,” explaining (1) such bifurcation is not contemplated by the statutory
scheme and (2) the Bigelow case was distinguishable. (Fierro, at p. 229.) The Bigelow
exception, which allows for a “separate trial,” applies where “highly prejudicial”
evidence is “relevant only to a special circumstance” or so marginally relevant to the
murder charge as to otherwise be inadmissible under Evidence Code section 1101,
subdivision (b). (Bigelow, supra, 37 Cal.3d at pp. 747–748.)
Our research discloses no published case holding bifurcation of a special
circumstance murder allegation is permissible other than as provided in section 190.1 et
seq. The very few unpublished decisions addressing this issue have reached different
conclusions. Either way, as now explained, we are unable to conclude section 1109
applies to gang murder allegations under section 190.2(a)(22).
Statutory interpretation is a matter of de novo review. (People v. Lewis (2021) 11
Cal.5th 952, 961.) “Our fundamental task … is to determine the Legislature’s intent so as
to effectuate the law’s purpose. We first examine the statutory language, giving it a plain
and commonsense meaning. We do not examine that language in isolation, but in the
context of the statutory framework as a whole in order to determine its scope and purpose
and to harmonize the various parts of the enactment. If the language is clear, courts must
33.
generally follow its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend.” (Coalition of Concerned Communities,
Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)
Defendants contend section 1109’s silence regarding section 190.2 is a legislative
oversight that must be corrected to prevent absurd results. They argue the circumstances
of this case perfectly illustrate the problem. Even if section 1109 had existed when
defendants were charged in Rubio’s death, the special circumstance allegation of a gang
murder would have effectively circumvented its provisions.
“Section 190.2, subdivision (a)(22) ‘contains three basic elements: (1) the
defendant must intentionally kill the victim; (2) while an active participant in a criminal
street gang; (3) in order to further the activities of the gang.’” (People v. Arce (2020) 47
Cal.App.5th 700, 712.) The “active participant” requirement is indistinguishable from
the “active participation” element of section 186.22, subdivision (a). (Ibid.; see People v.
Castenada (2000) 23 Cal.4th 743, 747.) The special circumstance provision expressly
incorporates section 186.22, subdivision (f)’s definition of a criminal street gang, and the
third element “substantially parallels the language of section 186.22, subdivision (b)(1).”
(People v. Carr (2010) 190 Cal.App.4th 475, 488.) The phrase “activities of the criminal
street gang” has been held to mean “the same activities that constitute the gang’s pattern
of criminal activity as described in section 186.22, subdivision (e).” (Arce, at p. 713.)
We agree with defendants insofar as section 1109 creates a potential for mischief.
Prosecutors may now be incentivized to plead section 190.2(a)(22) allegations in
purportedly gang-related homicide cases to introduce evidence that might otherwise be
excluded because of section 1109. A gang murder allegation could also be used to
leverage the type of one-sided plea bargains Assembly Bill 333 was intended to mitigate
and prevent. (See Stats. 2021, ch. 699, § 2, subd. (e) [“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”].)
34.
To reiterate, “judicial construction of unambiguous statutes is appropriate only
when literal interpretation would yield absurd results.” (Simmons v. Ghaderi (2008) 44
Cal.4th 570, 583.) The dilemma here is that absurd results are not attributable to a literal
interpretation of any part of section 1109. (Cf. In re Mohammad (2022) 12 Cal.5th 518,
531 [“language that seems plain when considered in isolation may be ambiguous when
examined within the context of the scheme it implements”].) The statute provides for
bifurcation of gang enhancement allegations “charged under subdivision (b) or (d) of
Section 186.22,” and mandates 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.” (§ 1109,
subds. (a), (b).)
Defendants are asking us to rewrite section 1109 to expand the scope of its
application, which would also require us to judicially amend multiple parts of a different
statutory scheme, i.e., section 190.1 et seq. “Doing so would violate the cardinal rule that
courts may not add provisions to a statute.” (Adoption of Kelsey S. (1992) 1 Cal.4th 816,
827; accord, People v. Guzman (2005) 35 Cal.4th 577, 587.) “When construing a statute,
our job is ‘simply to ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted, or to omit what has been inserted.’” (People
v. Bell (2015) 241 Cal.App.4th 315, 321, quoting Code Civ. Proc., § 1858.)
“‘The Legislature is presumed to know the existing law and have in mind its
previous enactments when legislating on a particular subject.’” (Unzueta v. Ocean View
School Dist. (1992) 6 Cal.App.4th 1689, 1697; accord, People v. Overstreet (1986) 42
Cal.3d 891, 897.) The following statement appears in the legislative history of Assembly
Bill 333: “Existing law: [¶] … [¶] Provides for a bifurcated trial process in determining
guilt separately from punishment in cases where the death penalty may be imposed.
(Pen. Code, Section 190.1.)” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill 333, as amended July 13, 2021, pp. 1, 4; accord, Assem. Com. on
35.
Public Safety, Rep. on Assem. Bill No. 333 (2021–2022 Reg. Sess.) as amended Mar. 30,
2021, pp. 2, 3.) This shows the Legislature was cognizant of the statutory procedures
governing special circumstance murder allegations. We can only guess why there is no
other mention of those procedures generally, or section 190.2(a)(22) specifically, in
section 1109, or Assembly Bill 333, or elsewhere in the legislative history materials.
Furthermore, the potential to circumvent section 1109 by alleging a gang murder
under section 190.2(a)(22) is not the only loophole in Assembly Bill 333. Also missing
from section 1109 is any mention of the offense proscribed by section 182.5.
“Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, …
created a new crime of gang conspiracy, which punishes ‘any person who actively
participates in any criminal street gang … with knowledge that its members engage in or
have engaged in a pattern of criminal gang activity … and who willfully promotes,
furthers, assists, or benefits from any felonious criminal conduct by members of that
gang.’” (People v. Lopez, supra, 12 Cal.5th at p. 969, quoting § 182.5.) A determined
prosecutor might even charge a traditional conspiracy (§ 182, subd. (a)(1)) based on an
alleged agreement to violate section 186.22, subdivision (a), which has already happened
and withstood appellate review. (See People v. Johnson (2013) 57 Cal.4th 250, 255,
259–265.) Another example, which Juan notes in his briefing, is section 1109’s silence
regarding the gang-related vicarious liability provision of section 12022.53. (See fn. 9,
ante.)
Expanding the reach of section 1109 under the pretext of statutory construction
would only invite more requests to amend the statute in future appeals. “‘Each time the
judiciary utilizes the “absurd result” rule, a little piece is stripped from the written rule of
law and confidence in legislative enactments is lessened.…’ [Citation.] Unlike a court’s
notion of absurdity and the revisions it would impose as a result, the text of the statute
‘has successfully braved the legislative gauntlet.…’ [Citation].” (People v. Bell, supra,
241 Cal.App.4th at pp. 351–352.) Thus, “even when a legislature likely would have
36.
enacted a differently worded law had it foreseen future developments, any statutory
revision reflecting that reality must come from that legislature, not the judiciary.” (Id. at
p. 344; accord, People v. White (2017) 2 Cal.5th 349, 371 (dis. opn. of Liu, J.) [“It is not
our role to rewrite statutes, especially criminal statutes, to conform to the court’s
sensibilities”].) Therefore, we hold that section 1109, as originally enacted by Assembly
Bill 333, does not apply to the determination of special circumstance allegations under
section 190.2(a)(22).
E. Prejudice*
1. Additional Background
The People’s gang expert testified Varrio Bakers is a “southern Hispanic gang,”
meaning a criminal street gang aligned “with the Southern California prison gang known
as the Mexican Mafia.” The gang’s primary activities include “assaults with a deadly
weapon, illegal weapons possessions, and robberies,” as well as “homicides” and
“narcotics sales.” Its primary rivals include the Oakie Bakers and the Colonia Bakers.
The expert was not aware of any rivalry between Varrio Bakers and Varrio Chico
Lamont, i.e., the gang with which Rubio was allegedly associated.11
The predicate offenses evidence showed that two Varrio Bakers members not
involved in this case had committed assault with a deadly weapon and unlawful
possession of a firearm by a felon in 2015 and 2013, respectively. A third predicate
offense was unnecessary, but the People also introduced evidence of Juan’s commission
*See footnote, ante, page 1.
11The expert opined Rubio was an “associate” of Lamont 13, which has two “subsets”:
Lamont Familia Sureños and Varrio Chico Lamont. The evidence suggested Rubio had closer
ties to the latter. According to the expert, there is a difference between gang members and gang
associates. An associate is “a hang-around. It’s someone that hangs out with maybe one of the
gang members but has not put in work, doesn’t have tattoos, similar stuff to that.” The phrase
“putting in work” was elsewhere defined as committing crimes for a gang or engaging in other
activities to promote or assist the gang.
37.
of robbery in 2013. Further evidence of Juan’s criminal history was admitted to show he
was a gang member.
The jury learned Juan was arrested in 2012, at age 16, for being out after curfew
and possessing spray paint in violation of local ordinances. He was on probation at the
time, which explained a related search of his home and the discovery of gang-related
writing and imagery in the bedroom he shared with Jose. The police reportedly asked
him about Varrio Bakers, and Juan said he “backs them up and … puts in work for
them.”
Another police witness discussed a 2015 investigation regarding Juan’s
involvement in an assault with a deadly weapon. This testimony also mentioned Juan’s
gang-related tattoos. The jury saw multiple photographs of the tattoos, which included
the letters “VB” on the back of his head. Among at least six additional tattoos was one of
the letters “OBK,” meaning “Oakie Baker Killer.”
Multiple witnesses testified about Juan’s Facebook account. The content included
an image of “two bats crossed with a ski mask in front of it” and the words “Goon
Squad,” which the expert testified was significant because Varrio Bakers members call
themselves goons. Juan had a tattoo that said Goon Squad. The jury also saw Facebook
photos of Juan posing with Jasso and other individuals, forming gang signs with their
hands and fingers.
The gang evidence concerning Jasso included Facebook material. Jasso’s account
identified his employer as “Goon” and his job title as “Varrio boy.” His e-mail address
contained the words “varriobakers” and the number 13. In one inflammatory exchange of
messages with another Facebook user, Jasso had written, “I’m still gunning down niggas
that throw up the ce-be,” referring to the rival Colonia Bakers gang. The jury was
repeatedly shown photos of Jasso’s gang-related tattoos on his neck, back, arms, and
wrist.
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As for Jose, a police officer testified to detaining him in 2011, at age 14, for
committing gang-related vandalism. Jose had reportedly denied being a gang member,
but the officer concluded he was a Varrio Bakers associate. The People’s expert later
misstated this testimony, claiming to have relied on Jose “admit[ing] to his membership
with the gang” in forming his opinions. Although Jose denied gang membership when
arrested for Rubio’s death, his girlfriend arguably gave a contradictory response when
police asked her, “How long has he represented Varrio Bakers?” The jury saw photos of
Jose’s allegedly gang-related tattoos (he had fewer than Juan or Jasso), and it learned
Jose had previously been arrested and charged with possessing an illegal sawed-off
shotgun.
In response to hypothetical questions, the gang expert opined the shooting was
committed for the benefit of, or in association with, the Varrio Bakers gang. His
explanation included this testimony: “[I]n gangs there is what is known as
hyperviolence, that they go above and beyond what people could think would happen.
Such as if a gang member feels disrespected over being asked to leave a store or leave a
party, instead of a normal person leaving or possibly being in a fistfight, a gang member
can come back and use a firearm or a knife. [¶] That is what is considered as
hyperviolence. They go above and beyond. When it’s regarding the graffiti, … or the
victim is challenging the Varrio Bakers gang member regarding the tagging so that
member of the Varrio Bakers now has to assist in that hyperviolence by now calling
additional subjects over and then committing the primary activity of the murder.”
2. Analysis
Defendants’ right to bifurcation under section 1109 is purely statutory. (Cf.
People v. Hinton (2006) 37 Cal.4th 839, 874 [describing right to a separate proceeding
under § 190.1 as “merely statutory, not constitutional”].) “‘Typically, a defendant who
has established error under state law must demonstrate there is a reasonable probability
39.
that in the absence of the error he or she would have obtained a more favorable result.’”
(People v. Anzalone, supra, 56 Cal.4th at p. 554; accord, People v. Lewis, supra, 11
Cal.5th at p. 973 [“Typically, when an ‘error is purely one of state law, the [People v.
Watson (1956) 46 Cal.2d 818] harmless error test applies’”].) “[T]he admission of
evidence, even if erroneous under state law, results in a due process violation only if it
makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.)
We reject defendants’ fundamental unfairness claims, especially because the gang
evidence was admissible to prove the gang-murder special-circumstance allegation. (Cf.
People v. Hartsch (2010) 49 Cal.4th 472, 492–494 [denial of severance motion not
fundamentally unfair where evidence was “cross-admissible as to identity, intent, and
plan”].) “Erroneous admission of gang-related evidence, particularly regarding criminal
activities, has frequently been found to be reversible error, because of its inflammatory
nature and tendency to imply criminal disposition, or actual culpability.” (People v.
Bojorquez (2002) 104 Cal.App.4th 335, 345, italics added.) Section 1109 does not bar
the admission of gang evidence, and “it is likely some, though not all, of the evidence”
would have been admitted to prove the murder charges. (People v. Ramos, supra, 77
Cal.App.5th at p. 1132; see Evid. Code, §§ 352, 1101, subds. (b), (c).)
Nevertheless, if section 1109 applied to gang murder allegations under section
190.2(a)(22), defendants would have a good argument even under the standard of People
v. Watson, supra, 46 Cal.2d 818 (Watson). As noted, the jury deliberated for
approximately 14 hours over a three-day period. Deliberations of such length indicate
close issues. (See People v. Cardenas (1982) 31 Cal.3d 897, 907 [12 hours of
deliberations in an attempted murder trial described as “a graphic demonstration of the
closeness of this case”]; accord, In re Martin (1987) 44 Cal.3d 1, 51 [citing additional
examples].) Even the trial court, in denying Jasso’s motion for acquittal under section
1118.1, opined, “This is a close call. This is by no means a case where the evidence is
overwhelming to convict Mr. Jasso on any of these charges. It is a close call.”
40.
The evidence of Jose’s mental state was circumstantial. It appeared he intended
for Juan to intervene in the dispute with Rubio, and the group may have gone out looking
for Rubio, but this did not mean Jose intended for Juan to kill Rubio or was guilty of
lying in wait. The jury may have wrestled with the question Jose raised during his
custodial interview: What sense did it make to kill Rubio directly in front of Jose’s
house? The expert’s “hyperviolence” testimony may have swayed some jurors on this
issue. Jurors may have drawn other inferences about Jose’s mental state from prejudicial
evidence concerning Juan and Jasso. The prosecutor argued: “This just reeks of a gang-
related murder. Just the fact that Jose called up gang members to come help deal with his
problem is enough to establish this allegation.”
Finally, although the evidence indicated Juan was the shooter, it did not
necessarily compel the most consequential findings on his mental state. The California
Supreme Court has “recognized that admission of evidence of a criminal defendant’s
gang membership creates a risk the jury will improperly infer the defendant has a
criminal disposition and is therefore guilty” as charged. (People v. Williams (1997) 16
Cal.4th 153, 193.) However, as defendants generally concede, the gang evidence would
have still come in because of the section 190.2(a)(22) gang murder allegation. Therefore,
prejudice is not established. (See People v. Hernandez, supra, 33 Cal.4th at pp. 1049–
1050 [“To the extent the evidence supporting the gang enhancement would be admissible
at a trial of guilt, any inference of prejudice would be dispelled”]; People v. Osband
(1996) 13 Cal.4th 622, 667 [if evidence is cross-admissible, prejudice is dispelled].)
III. Erroneously Admitted Evidence*
Jose claims the trial court erred by admitting evidence of his prior possession of an
illegal firearm. The People argue the ruling was valid or, alternatively, nonprejudicial.
*See footnote, ante, page 1.
41.
We agree with the harmless error argument. Assuming Jose is correct on the question of
error, the claim fails for lack of prejudice.
A. Background
Jose was previously convicted of possessing a short-barreled rifle or short-barreled
shotgun in violation of section 33215. The underlying arrest occurred in June 2016. He
accepted a plea bargain and received probation in September of the same year.
While being interrogated in this case in August 2017, Jose was asked, “What was
wrong with having a shotgun?” In his response, Jose discussed how a “cop” had once
stopped him while he was carrying “a little shotgun.” The detective asked if it was “an
illegal shotgun,” and Jose said, “[W]ell it’s not an illegal shotgun. It was in a backpack.”
A subsequent exchange clarified the item was a “sawed off shotgun,” which Jose
claimed to have found in an alley. According to his story, he had been out drinking with
friends and needed to “‘use the restroom.’” The car in which he was traveling pulled
over, Jose stepped into the alley to relieve himself, and he found the gun. He took
possession of the weapon, brought it into his friend’s car, and was apparently arrested for
it during a subsequent traffic stop.
Jose’s attorney objected to the shotgun discussion being included in the recording
and transcript of his interrogation. Counsel said, “My objections are based on Evidence
Code 1101(A), inadmissible character evidence, propensity, also Evidence Code 352, that
is, the probative value of this is outweighed by the prejudicial effect. [¶] I think that it
has minimal relevance to any of the issues in this case, if any relevance.… [W]e’ve had
[an Evidence Code section] 402 hearing with [the People’s gang expert] and there’s been
no mention of this.”
The prosecutor argued the gang expert might rely upon the evidence “to help
formulate his opinion that Mr. Jose Montano is a gang member.” The prosecutor added,
“I expect him to say the possession of illegal weapons is a primary activity.” The trial
42.
court ruled: “I’m allowing it. I have thought about 352. I don’t believe it’s more
prejudicial than probative. It’s simply the defendant talking about it and he chose to talk
about it.”
The transcript of the redacted recording of Jose’s interrogation was 149 pages in
length. The segment in dispute spans two pages. The recording was played in court on
the third day of the prosecution’s case-in-chief, which was two weeks prior to closing
arguments and juror deliberations. The only other mention of the shotgun in front of
jurors was by Jose’s attorney during a cross-examination. The relevant exchange was as
follows:
“[DEFENSE COUNSEL:] Q. With regard to the interview, I just want
to do this real quick. You spoke with Jose, you and Detective Kimball
actually spoke with Jose about a shotgun possession; right?
“[WITNESS:] A. Yes, there was talk about that. [¶] … [¶]
Q. You would agree with me that this discussion about this shotgun
possession is unrelated to what we’re here for today?
“A. Yes.
“Q. It’s not any evidence in this case; correct?
“A. No.
“Q. That is correct?
“A. That’s correct.”
B. Standard of Review
“We review the trial court’s rulings on relevance and the admission of evidence
under Evidence Code sections 352 and 1101 for abuse of discretion.” (People v. Battle
(2021) 11 Cal.5th 749, 799.) Jose argues the test for prejudice is the one described in
Chapman v. California (1967) 386 U.S. 18. “But the admission of evidence, even if
erroneous under state law, results in a due process violation only if it makes the trial
fundamentally unfair. [Citations.] Absent fundamental unfairness, state law error in
43.
admitting evidence is subject to the traditional Watson test: The reviewing court must
ask whether it is reasonably probable the verdict would have been more favorable to the
defendant absent the error.” (People v. Partida, supra, 37 Cal.4th at p. 439.)
“A person seeking to overturn a conviction on due process grounds bears a heavy
burden to show the procedures used at trial were not simply violations of some rule, but
are fundamentally unfair.” (People v. Esayian (2003) 112 Cal.App.4th 1031, 1042.) It is
“rare and unusual” for the erroneous admission of evidence to violate a defendant’s
constitutional due process rights. (People v. Albarran (2007) 149 Cal.App.4th 214, 232;
see id. at pp. 229–230 [“‘The dispositive issue is … whether the trial court committed an
error which rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated
federal due process”’”].) We perceive no fundamental unfairness based on the ruling at
issue and thus evaluate Jose’s claim under the Watson standard.
C. Law and Analysis
“Evidence Code section 1101, subdivision (a), generally prohibits ‘evidence of a
person’s character or a trait of his or her character’ when it is ‘offered to prove his or her
conduct on a specified occasion.’ Subdivision (b) of section 1101, however, provides:
‘Nothing in this section prohibits the admission of evidence that a person committed a
crime, civil wrong, or other act when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident
…) other than his or her disposition to commit such an act.’” (People v. Kelly (2007) 42
Cal.4th 763, 782–783.)
The California Supreme Court has explained “that ‘[t]he admissibility of other
crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the
tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule
or policy requiring exclusion of the evidence.’ [Citation.] The main policy that may
require exclusion of the evidence is the familiar one stated in Evidence Code section 352:
44.
Evidence may be excluded if its prejudicial effect substantially outweighs its probative
value. Because substantial prejudice is inherent in the case of uncharged offenses, such
evidence is admissible only if it has substantial probative value.” (People v. Kelly, supra,42 Cal.4th at p. 783.)
Jose argues the shotgun arrest did not have substantial probative value as to his
alleged involvement with a criminal street gang. First, his trial counsel had accurately
noted the gang expert’s testimony during an evidentiary hearing conducted two weeks
earlier. The expert did not rely on Jose’s prior arrest or conviction to support any
opinions regarding his gang ties. Second, the prosecutor did not substantiate his remarks
about “possession of illegal weapons” being a primary activity of the Varrio Bakers gang.
Neither the current nor former versions of section 186.22 specifically identify
possession of illegal weapons as a primary activity or predicate offense indicative of the
existence of a criminal street gang. At the preliminary hearing, the People’s gang expert
testified the primary activities of Varrio Bakers include “murder, assault with a deadly
weapon, weapons possessions, and robberies.” When asked to clarify whether “weapons
possessions” included “illegal weapons possession,” the expert replied, “Yes. Like felon
in possession of a firearm.” The response alluded to section 186.22, former subdivision
(e)(31).
There was no evidence Jose’s violation of section 33215 also satisfied the
elements of section 29800, i.e., possession of a firearm by a convicted felon. The record
on appeal indicates Jose had no prior felony convictions when he was arrested for
possessing the sawed-off shotgun. In the respondent’s brief, the People now argue
“[i]llegal weapons possession is listed in section 186.22, subdivision (e)(23), as in effect
at the time of Jose’s trial.” However, the cited provision concerned violations of section
29610. (§ 186.22, former subd. (e)(23).) Section 29610 prohibits the possession of
certain firearms by minors, i.e., persons under the age of 18. The record shows Jose was
20 years old when he was arrested for possessing the sawed-off shotgun.
45.
In any event, the asserted error was clearly harmless. The evidence Jose had
previously been arrested and “charged with possession” of a “sawed[-]off shotgun” was a
miniscule part of the People’s case. The prosecutor never mentioned it to the jury, nor
did any witnesses except for testimony elicited by defense counsel, and the evidence had
no implied or apparent connection to any theories of liability. It is not reasonably
probable the jury’s verdicts would have been different had the evidence been excluded.
(Cf. People v. Penunuri (2018) 5 Cal.5th 126, 166 [erroneously admitted testimony held
harmless where the witnesses’ statements were “brief” and “a small part of the
prosecution’s case”]; People v. Sully (1991) 53 Cal.3d 1195, 1242 [allegedly improper
penalty phase evidence “represented but a small portion of the information received by
the jury regarding the offenses [and] the prosecutor made no attempt to exploit its
presence in the record during final argument or otherwise”]; People v. Humiston (1993)
20 Cal.App.4th 460, 477 [in murder case, allowing evidence of defendant’s “use of the
Penal Code section for murder as an identifying code” in pager communications held to
be harmless error].)
IV. Jury Instructions*
A. Failure to Instruct on Heat of Passion Manslaughter
The jury received verdict forms for voluntary manslaughter and was instructed on
provocation with CALCRIM No. 522, but it was not instructed on provocation/heat of
passion pursuant to CALCRIM No. 570. Jose claims the trial court had a sua sponte duty
to give the latter instruction. He relies on the concept of fear-based provocation. (See
People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [“The provocation may be
anything which arouses great fear, anger or jealousy”].)
Jasso joins in the claim, arguing that “[b]y going to Jose’s aid, [he] reasonably
shared the feelings of fear and anger Jose was experiencing [toward Rubio].” Juan also
*See footnote, ante, page 1.
46.
joins in the claim, alleging “the circumstantial evidence supporting instruction on perfect
and imperfect defense of self and others consisted of evidence of provocation which
could support an inference that Juan killed Rubio while acting under heat of passion ….”
We conclude the alleged error was harmless under any standard of prejudice.
“Murder involves the unlawful killing of a human being with malice aforethought,
but a defendant who intentionally commits an unlawful killing without malice is guilty
only of voluntary manslaughter. [Citation.] For purposes of voluntary manslaughter, an
intentional unlawful killing can lack malice when the defendant acted under a ‘“‘sudden
quarrel or heat of passion’”’ ….” (People v. Blacksher (2011) 52 Cal.4th 769, 832.)
“The ‘“heat of passion must be such a passion as would naturally be aroused in the mind
of an ordinarily reasonable person under the given facts and circumstances ….”’
[Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 705.) “‘The provocation which
incites the defendant to homicidal conduct in the heat of passion must be caused by the
victim [citation], or be conduct reasonably believed by the defendant to have been
engaged in by the victim.’” (Ibid.)
None of the defendants argued provocation or heat of passion in their respective
theories of the case. Jasso’s counsel requested there be no instructions on lesser included
offenses because they conflicted with his defense of mere presence. Jasso testified to
complete ignorance of Jose’s dispute with Rubio and claimed to have not even realized
Juan shot Rubio (“[T]o my understanding, [Rubio] was the one that was shooting at us”).
Thus, as to Jasso, the claim of error likely fails on the merits. (See People v. Chestra
(2017) 9 Cal.App.5th 1116, 1122 [“the duty to instruct on inconsistent defenses does not
extend to cases such as this where the sworn testimony of the accused … completely
obviates any basis for finding a lesser included offense”].)
In People v. Cruz (2008) 44 Cal.4th 636, it was held that a jury’s lying-in-wait
findings negated “any possibility that defendant was prejudiced from the failure to
instruct on provocation/heat of passion or unreasonable self-defense theories of
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manslaughter.” (Id. at p. 665.) Jose attempts to distinguish Cruz by the fact that case
also involved an additional special circumstance finding. (Id. at p. 643.) We perceive no
material distinction.
Jose concedes that “several” cases are in accord with Cruz, including People v.
Wright (2015) 242 Cal.App.4th 1461. His attempt to distinguish Wright is based on a
misreading of the opinion. Jose contends Wright “did not involve a failure to instruct on
heat of passion manslaughter, but a failure to instruct, or misinstruction, on second degree
murder.” In fact, the issue in Wright was the trial court’s refusal to instruct pursuant to
“CALCRIM Nos. 505 (justifiable homicide and self-defense), 570 (voluntary
manslaughter—provocation and heat of passion), 571 (voluntary manslaughter—
imperfect self-defense), and 522 (provocation may reduce first degree murder to second
degree murder).” (Wright, at p. 1480.) Following an analysis of how heat of passion can
develop “over a ‘provocatory’ period as opposed to sudden and heightened instigative
situations” (id. at p. 1486), the appellate panel concluded “it was error for the court to
refuse to give requested manslaughter instructions premised on heat of
passion/provocation” (id. at p. 1494). The opinion goes on to say, in a subsequent
prejudice analysis, “our Supreme Court has found that a lying-in-wait special-
circumstance finding renders the failure to instruct on provocation/heat of passion
manslaughter harmless error.” (Id. at p. 1498, citing People v. Cruz, supra, 44 Cal.4th at
p. 665.)
Because defendants were found to have committed first degree murder by means
of lying in wait, any error in failing to instruct on heat of passion manslaughter was
harmless.
B. Special Instruction re: Self-Defense
The jury received five “special” instructions. The first of those instructions read
as follows:
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“A person has a right to self-defense or defense of another in
response to a perceived threat only if he or she actually believes the danger
is imminent—a belief that there is danger but that it is not imminent will
not suffice. A mere fear that it will become imminent or that it will in the
future become imminent is not enough.
“A threat is imminent when there is such a demonstration of an
immediate intention to execute the threat as to induce a reasonable belief
that the party threatened will lose life or suffer serious bodily injury unless
he or she immediately defends himself or herself against the attack of the
adversary.
“A previous threat alone, and unaccompanied by any immediate
demonstration of force at the time of the encounter, will not justify or
excuse an assault, because it may be that the party making the threat has
relented or abandoned his or her purpose, or his or her courage may have
failed; or the threat may have been only idle without any purpose to execute
it. Fear of future harm—no matter how great the fear and no matter how
great the likelihood of the harm—is insufficient.”
Jose argues the instruction is misleading because it fails to distinguish between
perfect and imperfect self-defense. Specifically, the term “reasonable belief” is alleged to
wrongly imply that imperfect self-defense requires an objectively reasonable belief in the
imminence of the perceived danger. Jose submits the claim may be raised on appeal
despite his failure to object below. Alternatively, he alleges ineffective assistance of
counsel (IAC). Jasso and Juan join in these arguments.
“A party may not argue on appeal that an instruction correct in law was too
general or incomplete, and thus needed clarification, without first requesting such
clarification at trial.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) The first
paragraph of the instruction is a correct statement of law. Self-defense and defense of
others both require an actual fear of imminent harm. (People v. Butler (2009) 46 Cal.4th
847, 868.) A fear of future harm is insufficient. (People v. Humphrey (1996) 13 Cal.4th
1073, 1082.)
The second paragraph of the instruction tracks certain language in People v.
Scoggins (1869) 37 Cal. 676: “There must be such a demonstration of an immediate
49.
intention to execute the threat as to induce a reasonable belief that the party threatened
will lose his life or suffer serious bodily injury unless he immediately defends himself
against the attack of his adversary.” (Id. at pp. 683–684.) The first sentence of the third
paragraph is taken from Scoggins at page 684, with only slight alteration, and the final
sentence is a near verbatim quote from In re Christian S. (1994) 7 Cal.4th 768 at page
783. Since no part of the instruction misstates the law, defendants’ claim is forfeited.
Regarding the claim of IAC, the threshold inquiry is “whether counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Reviewing courts
“‘must indulge a “strong presumption” that counsel’s conduct falls within the wide range
of reasonable professional assistance.’” (In re Long (2020) 10 Cal.5th 764, 773.) “An
attorney may choose not to object for many reasons, and the failure to object rarely
establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) If
deficient performance is shown, the appellant must also demonstrate prejudice.
“Prejudice requires ‘a reasonable probability that a more favorable outcome would have
resulted …, i.e., a probability sufficient to undermine confidence in the outcome.’”
(People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Jose focuses on the distinction between perfect and imperfect self-defense.
“Imperfect self-defense, which reduces murder to voluntary manslaughter, arises when a
defendant acts in the actual but unreasonable belief that he is in imminent danger of
death or great bodily injury.” (People v. Duff (2014) 58 Cal.4th 527, 561, italics added.)
Jose argues the jury likely interpreted the special instruction to mean imperfect self-
defense cannot be established unless the defendant’s fear of imminent harm was
reasonable. But the special instruction does not purport to explain the requirements of
imperfect self-defense; it refers to the “right to self-defense or defense of another.”
The jury was further instructed on self-defense pursuant to CALCRIM No. 505,
and it received a separate instruction on imperfect self-defense pursuant to CALCRIM
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No. 571. Given the jury’s presumed ability “to understand and correlate instructions”
(People v. Sanchez (2001) 26 Cal.4th 834, 852), Jose’s trial attorney could have
reasonably concluded there was no reason to object to the special instruction—especially
since Jose was not arguing perfect or imperfect self-defense. As discussed, his defense
theories were mere presence and reasonable doubt as to intent to kill. And even if
deficient performance could be shown, the jury’s findings of lying in wait defeat the
claims of all three defendants. (See People v. Cruz, supra, 44 Cal.4th at p. 665 [special
circumstance findings, including lying in wait, “negate[d] any possibility that defendant
was prejudiced from the failure to instruct on provocation/heat of passion or
unreasonable self-defense theories of manslaughter” (italics added)].)
C. CALCRIM No. 1403
The following version of CALCRIM No. 1403, which is a limiting instruction,
was given to the jury without objection:
“You may consider evidence of gang activity only for the limited
purpose of deciding whether:
“• The defendant acted with the intent, purpose, and knowledge
that are required to prove the gang-related crime,
enhancements, and special circumstances allegations charged;
“OR
“• The defendant had a motive to commit the crime charged;
“OR
“• The defendant actually believed in the need to defend
himself.
“You may not consider this evidence for any other purpose. You
may not conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit crime.”
Jasso claims CALCRIM No. 1403 is unlawful to the extent it allows consideration
of gang evidence to determine whether a defendant actually believed in the need to
51.
defend himself. He alleges this effectively tells jurors that “gang members are subject to
a different standard for self-defense.” Jasso submits the alleged error affects his
substantial rights and, therefore, the claim is not forfeited. He alternatively claims IAC
based on his trial counsel’s failure to object. Jose summarily joins in these arguments.
Juan joins in the claim and makes additional arguments.
In People v. Kaihea (2021) 70 Cal.App.5th 257 (Kaihea), the Third Appellate
District held the disputed portion of CALCRIM No. 1403 is “correct in law.” (Id. at p.
265.) The opinion discusses how a challenge to the “motive” language of the instruction
was rejected in People v. Samaniego (2009) 172 Cal.App.4th 1148, which says “[g]ang
evidence is relevant and admissible when the very reason for the underlying crime, that is
the motive, is gang related.” (Id. at p. 1167.) The Kaihea court “further note[d] that
motive, self-defense, and heat of passion are similar in that they all relate to the reason
why a defendant engaged in the alleged conduct.” (Kaihea, at p. 265.)
The Kaihea appellant and his codefendant were Tongan Crips gang members who
had fought with two Norteño gang members. “[A] state of war existed between the two
gangs at the time.” (Kaihea, supra, 70 Cal.App.5th at p. 262.) As in this case, the
altercation was captured on video. (Id. at p. 261.) At some point during the fight, one of
the Norteños stabbed the codefendant multiple times in the chest. The appellant shot at
both Norteños, killing one of them, but the bullets entered the decedent’s body from
behind and there was evidence he was killed while trying to run away. (Id. at p. 261.)
The Kaihea appellant claimed self-defense and defense of others. (Kaihea, supra,
70 Cal.App.5th at p. 263.) So “the question was why did [he] shoot [the decedent]—was
it because he was motivated to kill a warring gang rival, was it because he believed in the
need to defend himself or others, or was it because of a sudden quarrel/heat of passion?”
(Id. at p. 265.) The appellate court said “[t]he interrelationship of these reasons for
engaging in homicidal conduct has long since been recognized; evidence of motive is
relevant to refute a claim of self-defense or sudden quarrel/heat of passion.” (Ibid.)
52.
The Kaihea appellant’s gang activity “logically informed a determination of
whether he was motivated to kill a gang rival because of the war between his gang and
the Norteños. Moreover, [he] had a personal gang-related motive—his brother was killed
by Norteños in the first skirmish in the ongoing war between the two gangs. CALCRIM
No. 1403, as given, was thus, correct in law as it informed the jury it could consider gang
evidence for the limited purpose of establishing whether defendant actually believed in
the need to defend himself.” (Kaihea, supra, 70 Cal.App.5th at p. 266.)
Here, there was evidence the dispute between Jose and Rubio arose over gang
graffiti on a house formerly occupied by Rubio’s grandmother. The gang expert testified,
“When it’s regarding the graffiti, it’s showing that a—or the victim is challenging the
Varrio Bakers gang member [Jose] regarding the tagging so that member of the Varrio
Bakers now has to assist in that hyperviolence by now calling additional subjects over
and then committing the primary activity of the murder.” For the jury to evaluate Juan’s
various defenses, it had to determine whether he shot Rubio because Rubio pulled out a
gun, or because Rubio had threatened to harm his brother, or because Rubio had
disrespected the Varrio Bakers, or a combination of those things. Therefore, based on the
holding of Kaihea, defendants’ claim of instructional error fails on the merits.
The Kaihea opinion further holds “that gang evidence is relevant to defense of
others.” (Kaihea, supra, 70 Cal.App.5th at p. 265.) Therefore, CALCRIM No. 1403
may be modified upon request to allow consideration of gang evidence “for the limited
purpose of deciding whether the defendant actually believed in the need to defend
himself or someone else.” (Kaihea, at p. 267.) This holding is relevant to a specific
argument made by Juan.
In his briefing, Juan complains the instruction used at trial “did not permit
evidence of Rubio’s gang association to decide whether Juan actually believed he needed
to defend Jose,” which allegedly “undermined Juan’s defense.” The assertions are made
in support of his argument that CALCRIM No. 1403 is unlawful. However, because the
53.
instruction is legally correct, it was “incumbent [upon him] to request clarifying
language, and his failure to do so forfeits the issue.” (Kaihea, supra, 70 Cal.App.5th at p.
265.) Although Juan summarily joins in Jasso’s claim of IAC, neither Jasso nor Juan
have argued their trial lawyers should have requested clarifying language.
Insofar as Juan might now allege IAC based on his counsel’s failure to request that
defense of others language be added to the instruction, prejudice is lacking. In Kaihea,
the same IAC claim was rejected because the appellant could only have benefitted from
the omission: “[S]ince the instruction limited the purpose for which the gang evidence
could be used to whether [he] actually believed in the need to defend himself and told the
jury it could not be used for any other purpose (other than the other three listed limited
purposes), the instruction effectively barred the jury’s use of the gang evidence to negate
defense of others.” (Kaihea, supra, 70 Cal.App.5th at p. 267, italics added.)
Juan’s prejudice argument fails for other reasons. First, there was virtually no
evidence of “gang activity” by Rubio probative of whether Juan actually believed in the
need to use lethal force to defend Jose. Rubio had “Varrio Chico Lamont” etched into his
cell phone, and there were photos on his Facebook account of him flashing gang signs,
but there was no indication Juan had knowledge of those facts on the day of the shooting.
Second, the instruction did not preclude the jury from considering the evidence of
Rubio’s alleged threats to shoot and kill Jose and of his alleged possession of a firearm.
There is no likelihood the jury would have accepted Juan’s defense of others theory,
instead of returning its verdicts of premeditated murder and lying in wait, but for the
wording of the CALCRIM No. 1403 instruction.
D. CALCRIM No. 505
CALCRIM No. 505 explains justifiable homicide in terms of self-defense and
defense of others. It begins by stating the required elements, which were described for
jury in this way:
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“The defendants are not guilty of murder or manslaughter if they
were justified in killing someone in self-defense or defense of another. A
defendant acted in lawful self-defense or defense of another if:
“1. The defendant reasonably believed that he or Jose Montano or
Giovann[i] Jasso or Kasey Villegas was in imminent danger
of being killed or suffering great bodily injury.
“2. The defendant reasonably believed that the immediate use of
deadly force was necessary to defend against that danger.
“AND
“3. The defendant used no more force than was reasonably
necessary to defend against that danger.”
CALCRIM No. 505 continues with two paragraphs concerning the defendant’s
“beliefs.” The instruction given to the jury below mirrored the pattern instruction:
“Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have believed there
was imminent danger of death or great bodily injury to himself or someone
else. Defendant’s belief must have been reasonable and he must have acted
only because of that belief. The defendant is only entitled to use that
amount of force that a reasonable person would believe is necessary in the
same situation. If the defendant used more force than was reasonable, the
killing was not justified.
“When deciding whether the defendant’s beliefs were reasonable,
consider all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation with
similar knowledge would have believed. If the defendant’s conduct and
beliefs were reasonable, the danger does not need to have actually existed.”
The pattern instruction has additional, optional language. Relevant here is this
bracketed sentence: “[If you find that ______
threatened or harmed the defendant [or others] in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs were reasonable.]”
The trial court modified the optional language to read: “If you find from the
evidence that prior to the shooting, Juan Montano had received information of threats by
Abraham Rubio against Juan Montano or Jose Montano then Juan Montano may be
55.
justified in acting more quickly and taking harsher measures than would a person who
had not received such threats. You may consider that information in evaluating the
defendant’s beliefs.”
The “acting more quickly and taking harsher measures” segment was likely taken
from CALJIC No. 5.50.1. This language was more favorable to Juan than the bracketed
option in CALCRIM No. 505, and he has no complaints about that variance. Juan
claims, however, that the trial court erred by omitting the word “conduct.” Whereas the
pattern instruction refers to “whether the defendant’s conduct and beliefs were
reasonable,” the modified instruction refers only to his “beliefs.” Juan alleges the trial
court breached a sua sponte duty to provide a complete and accurate instruction. We
disagree.
“We determine the correctness of jury instructions from the entire charge of the
court, not from a consideration of parts of an instruction or from a particular instruction.”
(People v. Pescador (2004) 119 Cal.App.4th 252, 257.) “When an instruction is
potentially ambiguous or misleading, the instruction is not reversible error unless there is
a reasonable likelihood that the jurors misunderstood or misapplied the pertinent
instruction.” (People v. Iboa (2012) 207 Cal.App.4th 111, 121.) These assessments are
made with the presumption jurors are “‘intelligent, capable of understanding instructions
and applying them to the facts of the case.’” (People v. Lewis (2001) 26 Cal.4th 334,
390.) No such juror would understand the instruction to require analysis of the
reasonableness of Juan’s beliefs in the abstract. The instruction obviously requires the
evaluation of a defendant’s beliefs in relation to the conduct that may qualify as self-
defense or defense of others, i.e., the act of “killing someone.”
E. CALCRIM No. 521
Juan asserts a multipart claim regarding the version of CALCRIM No. 521 given
to the jury. He correctly identifies error in the omission of statements concerning the
56.
intent to kill. We reject the People’s argument that the claim is forfeited.12 However, we
conclude the error was harmless beyond a reasonable doubt.
1. Background
CALCRIM No. 521 explains several different theories of first degree murder
liability. Only parts of the instruction will be applicable in any given case. Relevant here
are the sections addressing “Deliberation and Premeditation” and “Lying in Wait.” As
stated in the pattern instruction, those sections provide:
“
“[The defendant is guilty of first degree murder if the People have
proved that (he/she) acted willfully, deliberately, and with premeditation.
The defendant acted willfully if (he/she) intended to kill. The defendant
acted deliberately if (he/she) carefully weighed the considerations for and
against (his/her) choice and, knowing the consequences, decided to kill.
The defendant acted with premeditation if (he/she) decided to kill before
completing the act[s] that caused death.
“The length of time the person spends considering whether to kill
does not alone determine whether the killing is deliberate and premeditated.
The amount of time required for deliberation and premeditation may vary
from person to person and according to the circumstances. A decision to
kill made rashly, impulsively, or without careful consideration is not
deliberate and premeditated. On the other hand, a cold, calculated decision
to kill can be reached quickly. The test is the extent of the reflection, not the
length of time.] [¶] … [¶]
“
“[The defendant is guilty of first degree murder if the People have
proved that the defendant murdered while lying-in-wait or immediately
thereafter. The defendant murdered by lying in wait if:
“1. (He/She) concealed (his/her) purpose from the person killed;
12“The trial court’s duty to fully and correctly instruct the jury on the basic principles of
law relevant to the issues raised by the evidence in a criminal case is so important that it cannot
be nullified by defense counsel’s negligent or mistaken failure to object to an erroneous
instruction or the failure to request an appropriate instruction.” (People v. Avalos (1984) 37
Cal.3d 216, 229.)
57.
“2. (He/She) waited and watched for an opportunity to act;
“AND
“3. Then, from a position of advantage, (he/she) intended to and did
make a surprise attack on the person killed.
“The lying in wait does not need to continue for any particular
period of time, but its duration must be substantial enough to show a state
of mind equivalent to deliberation or premeditation. [Deliberation means
carefully weighing the considerations for and against a choice and,
knowing the consequences, deciding to act. An act is done with
premeditation if the decision to commit the act is made before the act is
done.]
“[A person can conceal his or her purpose even if the person killed is
aware of the person’s physical presence.]
“[The concealment can be accomplished by ambush or some other
secret plan.]”
Here, the trial court combined the above sections together but omitted the first
paragraph of “Deliberation and Premeditation.” The second paragraph of “Deliberation
and Premeditation” was inserted in the middle of the “Lying in Wait” section, so the
entire instruction read as follows (the out-of-place paragraph is italicized):
“A defendant is guilty of first degree murder if the People have
proved that the defendant murdered while lying in wait or immediately
thereafter. The defendant murdered by lying in wait if:
“1. He concealed his purpose from the person killed;
“2. He waited and watched for an opportunity to act;
“AND
“3. Then, from a position of advantage, he intended to and did make
a surprise attack on the person killed.
“The lying in wait does not need to continue for any particular
period of time, but its duration must be substantial enough to show a state
of mind equivalent to deliberation or premeditation. Deliberation means
carefully weighing the considerations for and against a choice and,
knowing the consequences, deciding to act. An act is done with
58.
premeditation if the decision to commit the act is made before the act is
done.
“The length of time the person spends considering whether to kill
does not alone determine whether the killing is deliberate and
premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to
circumstances. A decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated. On the other
hand, a cold, calculated decision to kill can be reached quickly. The test is
the extent of the reflection, not the length of time.
“A person can conceal his or her purpose even if the person killed is
aware of the persons [sic] physical presence.
“The concealment can be accomplished by ambush or some other
secret plan.” (First italics in original, second italics added.)
The partial omission of the “Deliberation and Premeditation” section of
CALCRIM No. 521 resulted in the jury not being fully instructed on willfulness, i.e., the
intent to kill. The record shows this was accidental. Defense counsel noted the omission
in the proposed instruction, the trial court stated its intention to include the language, and
the correction was never made.
In a separate instruction (CALCRIM No. 520), the jury was instructed on express
and implied malice. Because the modified version of the CALCRIM No. 521 instruction
did not specify an intent-to-kill requirement under the “Deliberation and Premeditation”
theory, Juan argues the jury’s verdict of premeditated murder might have been based on
insufficient findings.
Juan further submits that including the above italicized language in the CALCRIM
No. 521 instruction created a misstatement of law. He argues: “[I]nserting language
describing the quickness with which premeditation might be formed in conjunction with
the elements of a ‘substantial period of watching and waiting’ altered that defining
distinction between an ordinary malice murder and first-degree lying-in-wait murder.”
He continues, “To the extent the jury was guided to consider only first degree lying-in-
59.
wait murder (as opposed to premeditated first-degree murder), the jury did so with
conflicting standards, i.e., ‘substantial period of watching and waiting’ equivalent to
premeditation and deliberation, but premeditation defined as possibly ‘reached quickly’
requiring only sufficient reflection, but not a substantial length of time.”
2. Analysis
Pattern instructions are not the law; they are “merely an attempt at a statement
thereof.” (People v. Alvarez (1996) 14 Cal.4th 155, 217.) Error and prejudice do not
necessarily follow from the failure to perfectly recite a CALCRIM instruction, but rather
from a failure to convey the legal principles necessary for jurors to render an informed
verdict. The issue here boils down to whether the jury determined Juan acted with the
intent to kill.
According to the verdict forms, the jury found Juan’s commission of murder “was
done with premeditation and deliberation within the meaning of … Section 189, as
alleged in the first count of the Information.” The jury asked no questions about these
concepts, and it presumably relied on the modified CALCRIM No. 521 instruction. We
note the following language therein: “The length of time the person spends considering
whether to kill does not alone determine whether the killing is deliberate and
premeditated. … A decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated. On the other hand, a cold, calculated
decision to kill can be reached quickly.” (Italics added.) In light of this language, Juan’s
suggestion the finding of premeditation and deliberation was made without the belief he
intended to kill Rubio is unconvincing.
Had the jury based its verdict of first degree murder on findings that did not
include the intent to kill, it would have presumably rejected the special circumstance
allegation of lying in wait. (See People v. Holt (1997) 15 Cal.4th 619, 662 [jurors are
60.
presumed to follow the trial court’s instructions].) The jury was separately instructed on
the special circumstance pursuant to CALCRIM No. 728. It stated, in relevant part:
“The defendants are charged with the special circumstance of
murder committed while lying in wait.
“To prove that this special circumstance is true, the People must
prove that:
“1. The defendants intentionally killed Abraham Rubio;
“AND
“2. The defendants committed the murder by means of lying in
wait.
“A person commits a murder by means of lying in wait if:
“1. He or she concealed his or her purpose from the person killed;
“2. He or she waited and watched for an opportunity to act;
“3. Then he or she made a surprise attack on the person killed
from a position of advantage;
“AND
“4. He or she intended to kill the person by taking the person by
surprise.
“The lying in wait does not need to continue for any particular
period of time, but its duration must be substantial and must show a state of
mind equivalent to deliberation or premeditation.
“The defendants [sic] acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the consequences,
decided to kill. The defendant acted with premeditation if he decided to kill
before committing the act that caused death.” (Italics added, original italics
deleted.)
The jury’s true finding on the lying-in-wait special-circumstance allegation dispels
any suggestion of prejudice in the erroneous modification of CALCRIM No. 521. It is
apparent, beyond a reasonable doubt, that the jury found Juan acted with the intent to kill.
61.
Juan’s secondary argument regarding the temporal distinctions between
premeditation/deliberation and the “substantial” period of time required for lying in wait
is unavailing. “The lying in wait need not continue for any particular period of time
provided that its duration is substantial in the sense that it shows a state of mind
equivalent to premeditation or deliberation.” (People v. Cage (2015) 62 Cal.4th 256,
279; see id. at p. 281 [“The difference between lying-in-wait murder and the lying-in-
wait special circumstance does ‘not touch on th[is] durational element of lying in
wait’”].) Juan also ignores that the language of which he complains is part of CALCRIM
No. 521 and, because of the People’s dual theories of first degree murder, would have
been in the instruction regardless of the modification mistake. We reject the assertion of
error. (See People v. Moon (2005) 37 Cal.4th 1, 23 [“Although we have held the period
of watchful waiting must be ‘substantial’ [citation], we have never placed a fixed time
limit on this requirement. Indeed, the opposite is true, for we have previously explained
that ‘[t]he precise period of time is also not critical’”]; People v. Battle (2011) 198
Cal.App.4th 50, 81 [“As shown by Moon, 90 seconds can be a sufficient period of time to
support a lying-in-wait instruction”].)
The failure of Juan’s secondary claim entirely negates his prejudice argument as to
the instructional error on the intent to kill. This is so because the jury was fully instructed
under CALCRIM No. 521 on the lying-in-wait theory of first degree murder. “‘Lying in
wait is the functional equivalent of proof of premeditation, deliberation, and intent to
kill.’” (People v. Sandoval (2015) 62 Cal.4th 394, 416.) “‘Thus, a showing of lying in
wait obviates the necessity of separately proving premeditation and deliberation …’
[citation] or intent to kill [citation].” (People v. Wright, supra, 242 Cal.App.4th at p.
1496, italics added.) As such, the instructional error does not require reversal of Juan’s
conviction of first degree murder.
62.
F. CALCRIM No. 703
Jasso’s trial counsel proposed a special instruction highlighting, among other
things, the intent to kill requirement for aiding and abetting liability. The trial court later
said CALCRIM No. 703 “does address to some extent [Jasso’s counsel’s] proposed
language,” and then stated its intention to use CALCRIM No. 703. All counsel expressed
either concern or uncertainty regarding the applicability of CALCRIM No. 703, which is
designed for special circumstance allegations in felony-murder cases. During this initial
discussion, Juan’s counsel said, “Here is the problem. 703 has nothing to do with this
case. This is felony murder.”
The prosecutor suggested using a very truncated version of CALCRIM No. 703 to
explain the required mental state of the aiders and abettors (intent to kill). This led to
further discussion among the parties and trial court, and further editing to the proposed
version of the instruction. Days later, the trial court informed counsel of all the
instructions it intended to use. The court specifically said, “I intend to read 640, 700,
703, 704, 705, 706, 728, 736. Any issues, objections, or concerns, other than already
articulated last week, in regards to 640 and the 700s?” All counsel replied, “No.”
The modified version of CALCRIM No. 703 read as follows:
“If you decide that a defendant is guilty of first degree murder but
was not the actual killer, then, when you consider the special circumstances
of lying in wait within the meaning of PC Section 190.2(a)(15), you must
also decide whether the defendant acted with intent to kill.
“In order to prove these special circumstances for a defendant who is
not the actual killer but who is guilty of first degree murder as an aider and
abettor, the People must prove that the defendant intended to kill.
“If the People have not met this burden, you must find these special
circumstances have not been proved true for that defendant.”
The jury was also instructed with CALCRIM No. 728, i.e., the pattern instruction
on the special circumstance of lying in wait quoted in the preceding section of this
opinion. The instruction stated, in relevant part, “the People must prove that” “[t]he
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defendants intentionally killed Abraham Rubio” and “[a] person commits a murder by
means of lying in wait if” “[h]e or she intended to kill the person by taking the person by
surprise.”
Juan now claims the modified CALCRIM No. 703 instruction was potentially
misleading. According to him, the instruction “logically suggested the specific intent to
kill element in [CALCRIM No.] 728 applied only to the codefendants. Understood in
this fashion, [CALCRIM No.] 703 read together with [CALCRIM No.] 728 implicitly
excused jurors from finding the actual killer acted with intent to kill in order to find the
lying-in-wait special circumstance true with regard to the actual killer.”
The People argue this claim was forfeited, and we agree. The modified version of
CALCRIM No. 703 was an entirely correct statement of law. (See § 190.2, subd. (c)
[“Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels,
commands, induces, solicits, requests, or assists any actor in the commission of murder in
the first degree shall be punished by death or [LWOP] if one or more of the special
circumstances enumerated in subdivision (a) has been found to be true under Section
190.4”].) As previously noted, “[a] party may not argue on appeal that an instruction
correct in law was too general or incomplete, and thus needed clarification, without first
requesting such clarification at trial.” (People v. Hillhouse, supra, 27 Cal.4th at p. 503;
accord, People v. Hardy (1992) 2 Cal.4th 86, 153 [“[B]ecause the instruction given was
correct, it was incumbent on defendants to request clarifying language. Their failure to
do so waived the issue”].)
V. Cumulative Error*
Under the cumulative error doctrine, “a series of trial errors, though independently
harmless, may in some circumstances rise by accretion to the level of reversible and
prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844; accord, People v. Capers
*See footnote, ante, page 1.
64.
(2019) 7 Cal.5th 989, 1017.) Giving due consideration to the collective impact of the
errors found herein, we conclude further reversal of the judgments beyond count 2 and
the gang-related enhancements is unwarranted.
VI. Sentencing Issues*
A. Cruel and/or Unusual Punishment
Jose was 21 years old at the time of Rubio’s murder. He claims his statutorily
mandated LWOP sentence is unconstitutionally punitive “because it deprives the
sentencing court of the discretion to consider an adult defendant’s youth and immaturity
and to impose a sentence less than LWOP.” Jasso (then age 19) and Juan (then age 22)
summarily join in this claim.
As used in the Eighth Amendment to the federal Constitution, the phrase “cruel
and unusual punishments” refers to “‘extreme sentences that are “grossly
disproportionate” to the crime.’” (Graham v. Florida (2010) 560 U.S. 48, 59–60.) The
California Constitution forbids cruel or unusual punishment (Cal. Const., art. I, § 17),
which precludes a sentence that is “‘so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human
dignity.’” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085, quoting In re Lynch
(1972) 8 Cal.3d 410, 424.) Jose relies on cases dealing with the constitutional limits of
punishment for juvenile offenders, including Miller v. Alabama (2012) 567 U.S. 460(Miller).
The Miller case holds it is cruel and unusual to impose a mandatory sentence of
LWOP for a homicide committed prior to the defendant’s 18th birthday. Therefore,
sentencing courts must be given discretion to consider the juvenile offender’s age and
youthful characteristics before imposing such punishment. (Miller, supra, 567 U.S. at p.
489.) Although defendants were not juveniles when they killed Rubio, Jose argues the
*See footnote, ante, page 1.
65.
rationale of Miller is equally applicable to offenders who have reached the age of
majority but are not yet “mature adult[s] with fully developed executive functioning.” He
concedes the judiciary has “drawn a bright line at the age of 18,” but he asks us to take a
new approach. (See, e.g., Roper v. Simmons (2005) 543 U.S. 551, 574 [stating “a line
must be drawn,” and “[t]he age of 18 is the point where society draws the line for many
purposes between childhood and adulthood”]; People v. Edwards (2019) 34 Cal.App.5th
183, 186, 190–192, [upholding as constitutional sentences of 95 years to life and 129
years to life imposed against 19-year-old sex offenders]; People v. Perez (2016) 3
Cal.App.5th 612, 617 [“We decline … to conclude the bright line of 18 years old in the
criminal sentencing context is unconstitutional”].) We are not persuaded to break from
precedent on this issue.
The Legislature has also established a dividing line with regard to youthful
offenders. Section 3051 provides an opportunity for early release to most defendants
serving life terms for crimes committed prior to the age of 26. (Id., subd. (b)(2)–(3).)
This includes defendants who are serving “de facto” LWOP sentences, i.e., life terms
with decades-long periods of parole ineligibility. (See People v. Scott (2016) 3
Cal.App.5th 1265, 1281–1282.) Section 3051 was enacted and later amended in response
to Miller and its progeny. (People v. Perez, supra, 3 Cal.App.5th at p. 618; see In re
Jenson (2018) 24 Cal.App.5th 266, 277.) However, the statute does not apply to
defendants who are “sentenced to life in prison without the possibility of parole for a
controlling offense that was committed after the person had attained 18 years of age.”
(§ 3051, subd. (h).)
As stated in People v. Martinez (1999) 76 Cal.App.4th 489, “Fixing the penalty
for crimes is the province of the Legislature, which is in the best position to evaluate the
gravity of different crimes and to make judgments among different penological
approaches. [Citations.] Only in the rarest of cases could a court declare that the length
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of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]
This is not such a case.” (Id. at p. 494.)
B. Equal Protection Claim
“[S]ection 3051 provides that an offender who committed a ‘controlling offense’
as a youth is entitled to a “youth offender parole hearing” after a fixed period of years set
by statute. The ‘controlling offense’ is ‘the offense or enhancement for which any
sentencing court imposed the longest term of imprisonment.’ [Citation.] [¶] As
originally enacted, section 3051 applied only to non-LWOP offenses committed before
the offender was 18 years old. (Stats. 2013, ch. 312, § 4.) An amendment effective
January 1, 2016, raised the age of eligibility to 23 years; and an amendment effective
January 1, 2018, raised the age of eligibility to 25 years and included LWOP offenses
committed before age 18. [Citations].” (In re Jenson, supra, 24 Cal.App.5th at p. 277.)
“Thus, section 3051 now provides that an offender who committed a ‘controlling
offense’ under the age of 26 is entitled to a ‘youth offender parole hearing’ during his or
her 15th year of incarceration if he received a determinate sentence; during his or her
20th year of incarceration if he or she received a life term of less than 25 years to life;
and during his or her 25th year of incarceration if he or she received a term of 25 years to
life. (§ 3051, subd. (b)(1)–(3).) An offender convicted of a controlling offense
committed before the age of 18 for which he or she was sentenced to LWOP is entitled to
a youth offender parole hearing during his or her 25th year of incarceration. (§ 3051,
subd. (b)(4).)” (In re Jenson, supra, 24 Cal.App.5th at p. 277.) However, as discussed
above, the statute provides no relief for defendants “sentenced to life in prison without
the possibility of parole for a controlling offense that was committed after the person had
attained 18 years of age.” (§ 3051, subd. (h).)
Jasso claims section 3051 violates constitutional guarantees of equal protection by
treating “two similarly situated groups unequally: those aged 18 to 25 sentenced to
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LWOP and those aged 18 to 25 sentenced to life terms with a minimum sentence of 25
years or more.” He contends “[i]t also treats unequally those who were sentenced to
LWOP when they were under the age of 18 when they committed the controlling offense
and those sentenced to LWOP who were 18 to 25 when they committed the controlling
offense.” Jose and Juan join in these arguments.
“We review an equal protection claim de novo.” (People v. Laird (2018) 27
Cal.App.5th 458, 469.) “The California equal protection clause offers substantially
similar protection to the federal equal protection clause.” (Ibid.) “The first step in an
equal protection analysis is to determine whether the defendant is similarly situated with
those who are entitled to the statutory benefit.” (People v. Cervantes (2020) 44
Cal.App.5th 884, 888.) Defendants’ claim satisfies this requirement. (People v. Acosta
(2021) 60 Cal.App.5th 769, 779.)
“If a class of criminal defendants is similarly situated for purposes of the law
challenged to another class of defendants who are treated differently, ‘courts look to
determine whether there is a rational basis for the difference.’ [Citation.] ‘[E]qual
protection of the law is denied only where there is no ‘rational relationship between the
disparity of treatment and some legitimate governmental purpose.’” (People v. Acosta,
supra, 60 Cal.App.5th at p. 778.) “To successfully challenge a law on equal protection
grounds, the defendant must negate ‘“‘every conceivable basis’”’ on which ‘the disputed
statutory disparity’ might be supported. [Citation.] ‘If a plausible basis exists for the
disparity, “[e]qual protection analysis does not entitle the judiciary to second-guess the
wisdom, fairness, or logic of the law.”’” (Ibid.)
In Acosta, Division Three of the Fourth Appellate District held “there is a rational
basis for treating young adult LWOP offenders differently than juvenile offenders
sentenced to life or LWOP [and] young adult offenders sentenced to life.” (People v.
Acosta, supra, 60 Cal.App.5th at p. 779.) The same conclusion was reached by Division
One of the Fourth Appellate District in People v. Jackson (2021) 61 Cal.App.5th 189 and
68.
by Division Five of the Second Appellate District in In re Williams (2020) 57
Cal.App.5th 427. We agree with these decisions.
The Acosta court determined that the expansion of section 3051 to include juvenile
LWOP offenders was in response to the United States Supreme Court’s decision in
Montgomery v. Louisiana (2016) 577 U.S. 190. (People v. Acosta, supra, 60 Cal.App.5th
at p. 777.) Montgomery held that Miller, supra, 567 U.S. 460 announced a substantive
rule of constitutional law and, therefore, applied retroactively, but states could “remedy a
Miller violation by permitting juvenile homicide offenders to be considered for parole,
rather than by resentencing them.” (Montgomery, at p. 212.) The amendment to section
3051 allowed for compliance “without resorting to costly resentencing hearings.”
(Acosta, supra, at p. at p. 779.) Because Montgomery did not compel the same treatment
of young adult offenders, age is “a constitutionally sufficient basis for distinguishing
juvenile LWOP offenders from young adult LWOP offenders.” (Acosta, at p. 780.) The
Jackson court analyzed this issue differently, observing that “both the United States
Supreme Court and our high court have repeatedly found the bright line drawn between
juveniles and nonjuveniles to be a rational one when it comes to criminal sentencing.”
(People v. Jackson, supra, 61 Cal.App.5th at pp. 196–197.)
With respect to young adult offenders serving LWOP and non-LWOP sentences,
the Acosta court reasoned that “‘[t]he Legislature has prescribed an LWOP sentence for
only a small number of crimes. These are the crimes the Legislature deems so morally
depraved and so injurious as to warrant a sentence that carries no hope of release for the
criminal and no threat of recidivism for society.’” (People v. Acosta, supra, 60
Cal.App.5th at p. 780.) Therefore, “the severity of the crime committed” provides a
rational basis for distinguishing between the groups. (Ibid.; accord, In re Williams,
supra, 57 Cal.App.5th at p. 436.)
We will follow the published case law on this issue. We also agree with the
People’s reliance on the following language from Johnson v. Department of Justice
69.
(2015) 60 Cal.4th 871: “[T]he rational basis standard does not give courts free license to
judge the wisdom or desirability of statutes or to act as a super-Legislature.” (Id. at p.
880, fn. 5.) “‘[W]hen conducting rational basis review, we must accept any gross
generalizations and rough accommodations that the Legislature seems to have made.’
[Citation.] ‘A classification is not arbitrary or irrational simply because there is an
“imperfect fit between means and ends”’ [citations], or ‘because it may be “to some
extent both underinclusive and overinclusive”’ [citations].… [¶] At bottom, the
Legislature is afforded considerable latitude in defining and setting the consequences of
criminal offenses.” (Id. at p. 887.)
C. Juan’s 10-year Gang Enhancement
Juan and the People dispute whether the imposition of LWOP on the murder
conviction precludes a separate gang enhancement term. Since the enhancement is being
reversed and the corresponding punishment vacated, we view this claim as moot and
decline to address it.
D. Juan’s Prior Prison Term Enhancements
Juan argues, and the People concede, the prior prison term enhancements must be
stricken from the judgment. Effective January 1, 2020, the one-year enhancement
provided for in section 667.5, subdivision (b) is inapplicable to all prior prison terms
except those served for a sexually violent offense within the meaning of Welfare and
Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) This change
in the law has been held to apply retroactively to nonfinal judgments. (People v. Lopez
(2019) 42 Cal.App.5th 337, 341–342.)
The recent enactment of section 1171.1 confirms the Legislature’s intent for
retroactive relief. The new statute provides: “Any sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for
any enhancement imposed for a prior conviction for a sexually violent offense as defined
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in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally
invalid.” (Id., subd. (a).) Juan’s prior prison terms were served for robbery and unlawful
participation in a criminal street gang. We therefore reverse the enhancement findings
made under section 667.5 and order the corresponding punishment stricken from the
judgment.
DISPOSITION
As to all defendants, the convictions of unlawful participation in a criminal street
gang in violation of section 186.22, subdivision (a), and all enhancement allegations
found true under subdivision (b) of the same statute, are reversed. As to Giovanni Jasso
and Jose Montano only, the firearm enhancements imposed pursuant to section 12022.53
are reversed. As to Juan Montano, the prior prison term enhancements imposed pursuant
to section 667.5 are reversed. In all other respects, the judgments are affirmed. The
matter is remanded for further proceedings consistent with this opinion.
PEÑA, J.
WE CONCUR:
HILL, P. J.
SMITH, J.
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