People v. Harris CA2/3 ( 2022 )

Filed 12/19/22 P. v. Harris CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B310323
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA086936
v.
TEVIN HARRIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James D. Otto, Judge. Reversed and
remanded with directions.
Law Office of Paul Kleven and Paul Kleven, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant was sentenced to state prison for a term
of 50 years to life on his conviction for first degree murder,
under the felony murder doctrine, and robbery, with criminal
street gang and firearm use enhancements. (Pen. Code, §§ 187,
subd. (a), 190.2, subd. (a)(17), 211; 186.22, subd. (b)(1)(C),
12022.53, subds. (d) & (e)(1).)1 The court later vacated the
murder conviction under section 1172.6 and resentenced
defendant to a term of 30 years to life on the robbery conviction
and firearm/gang enhancements.
On appeal, defendant contends he is entitled to the benefit
of recently enacted ameliorative laws that took effect before his
judgment was final. The People concede remand is necessary
in light of the new laws. We therefore reverse the true findings
as to the gang and firearm use allegations, vacate defendant’s
sentence, and remand the matter to the trial court for further
proceedings consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
The evidence at defendant’s trial established the following:
On April 4, 2009, Brian Lee and Garrett Norris went to
Orizaba Park to play basketball. Norris placed his iPhone by
the pole holding up the backboard. Nine-year-old Aaron was
playing in pick-up games at the court along with his brother
Francisco and their friends Jose and Asaf. They played with
Norris and Lee for a while, and then sat courtside watching
others play. The boys saw two African American men standing
near the basketball court. Hearing one of them say, “ ‘Hey,
man,’ ” or “ ‘Hey, you,’ ” Asaf approached the men and asked,
“ ‘Can I help you?’ ” One of them replied, “ ‘Stay the fuck out
1 Statutory references are to the Penal Code.
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of my business.’ ” Francisco asked if the men were going to play,
but they said they would just watch.
The African American men then approached the backboard
pole. Aaron saw them whispering to each other and then one of
them started walking away. Ten seconds later, the other man
picked up Norris’s cell phone and started walking toward a
nearby alley. Jose also saw one of the men leave first and the
remaining man then reach down and grab a cell phone from
the base of the backboard pole. Asaf, too, had seen the two men
whispering together before the phone was taken. Someone
yelled out that a phone had just been stolen. By this time, the
two African American men were both headed toward the alley.
Aaron, Francisco, Jose, and Asaf saw the men go into the alley.
After running toward the backboard pole and confirming
his phone had been taken, Norris ran after the two men. Lee
and the boys also started chasing the men. When he reached
the alley, Lee saw one of the men point a gun at Norris and shoot
him. Norris walked a few steps before collapsing. Lee, who
was in medical school, saw that Norris had been shot and began
performing CPR. Norris had sustained a non-fatal gunshot
wound to the abdomen and a fatal gunshot wound to the neck.
Aaron and Jose identified defendant in court as one of
the men they saw standing next to the pole at the basketball
court who later ran into the alley where Norris was shot.
Francisco identified defendant from a photo lineup as the man
who took Norris’s phone. Although defendant looked different
in court than he did in the photograph, Francisco testified
defendant was the same man he selected from the photo lineup.
Asaf had identified defendant in a photo lineup, but he was
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uncertain the man he identified was one of the men he had seen
in the park.
Defendant’s mother, Martha Green, told Detective Mark
McGuire she had spoken to defendant about the incident and
that he had given her the following account. He had been
walking by himself near the park when he saw some people
playing basketball, so he headed in their direction. He spotted
an iPod on the ground, picked it up and started running away.
He looked behind him and saw that he was being chased. Then
he heard gunshots and he thought people were shooting at him.
He kept going.
At trial, Green denied having spoken to defendant about
the incident and testified she was drunk when she talked to
Detective McGuire. Green acknowledged it was her voice on
a recording of the conversation with McGuire, but she denied
having ever said defendant was at the park that day or involved
in a theft.
A gang expert testified defendant was a member of the
Baby Insane gang, a subset of the Insane Crips. The gang’s
primary activities included robbery and murder. Robbery of cell
phones was common. Orizaba Park was in Baby Insane territory.
Davion Davis testified he was a member of the Baby Insane
gang and he knew defendant, but he denied defendant was in
the gang. Davis testified he had been at Orizaba Park on the
day of the shooting and defendant was not the man who had run
from the basketball courts while holding a gun. That person was
T-Bam, another Baby Insane gang member.
The jury convicted defendant of murder (§ 187, subd. (a))
under the felony murder doctrine and second-degree robbery
(§ 211). The jury also found the gang (§ 186.22, subd. (b)(1)(C))
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and firearm (§ 12022.53, subds. (d) & (e)(1)) special allegations
to be true as to both counts.2 Defendant received a sentence of
50 years to life in state prison for the murder (25 years to life
plus an additional 25 years to life for the firearm enhancement),
and a stayed sentence of 30 years to life for the robbery (the
high term of five years plus an additional 25 years to life for
the firearm enhancement).
After an unsuccessful appeal to this court, defendant
filed a petition for writ of habeas corpus, which included a
claim that he was entitled to resentencing under section 1172.6
(former section 1170.95). The trial court denied the petition, but
construed the section 1172.6 claim as a petition for resentencing.
The People did not oppose resentencing, and the court granted
the petition, dismissing the murder conviction. The court then
resentenced defendant to an aggregate term of 30 years to life:
the high term of five years for the robbery conviction, plus
25 years to life on the firearm enhancement.
Defendant filed a notice of appeal.
2 As we observed in our opinion affirming defendant’s
convictions, the evidence established defendant “was the man
who grabbed the phone and his companion was the one who
shot Norris.” (People v. Harris (Feb. 26, 2014, B241038) [nonpub
opn.].) Although there was insufficient evidence to establish
defendant “personally and intentionally discharge[d] a firearm”
(§ 12022.53, subd. (d)), the trial court sentenced him as a
“principal” in each offense who committed it for the benefit of
a criminal street gang because another principal in the offense
had discharged a firearm and caused death. (§§ 186.22, subd. (b),
12022.53, subd. (e)(1).)
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DISCUSSION
1. Amendments to Section 186.22 Apply to this Case and
Require Remand for Retrial of the Enhancements
Defendant argues Assembly Bill No. 333 (2021–2022
Reg. Sess.) requires that we reverse the true findings on the
gang and firearm allegations and remand for retrial of the
enhancements under section 186.22, as recently amended
(Stats. 2021, ch. 699, §§ 3, 4). The People agree.
Assembly Bill No. 333 took effect on January 1, 2022.
It amended section 186.22 by modifying the definitions of
“ ‘pattern of criminal activity’ ” and “ ‘criminal street gang,’ ”
and it clarified what is required to show an offense “ ‘benefit[s],
promote[s], further[s], or assist[s]’ ” a criminal street gang.
It also added section 1109, which requires that, if requested by
the defense, a gang enhancement charged under section 186.22,
subdivision (b) or (d) must be tried separately and only after the
defendant’s guilt of the underlying offense has been established.
(People v. Perez (2022) 78 Cal.App.5th 192, 206 (Perez), review
granted Aug. 17, 2022, S275090.)
Under the new legislation, “ ‘imposition of a gang
enhancement requires proof of the following additional
requirements with respect to predicate offenses: (1) the offenses
must have “commonly benefited a criminal street gang” where
the “common benefit . . . is more than reputational”; (2) the last
predicate offense must have occurred within three years of the
date of the currently charged offense; (3) the predicate offenses
must be committed on separate occasions or by two or more
gang members, as opposed to persons; and (4) the charged offense
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cannot be used as a predicate offense.’ ” (Perez, supra, 78
Cal.App.5th at p. 206, quoting People v. Lopez (2021) 73
Cal.App.5th 327, 345.)
The parties agree Assembly Bill No. 333 applies
retroactively as the judgment is not yet final. In In re Estrada
(1965) 63 Cal.2d 740, our Supreme Court held that, absent
evidence to the contrary, the Legislature intended amendments
to statutes that reduce punishment for a particular crime
to apply to all whose judgments are not yet final on the
amendments’ operative date. (Id. at pp. 744–745.) Because
Assembly Bill No. 333 increases the threshold for conviction
of the section 186.22 offense and the imposition of the
enhancement, defendant is entitled to the benefit of this
change in the law. (Perez, supra, 78 Cal.App.5th at p. 206.)
Under this authority, Assembly Bill No. 333 applies
retroactively to defendant’s case, which was not final when the
amendments took effect. And, as the People also acknowledge,
the evidence did not establish the new statutory requirements
of section 186.22. For example, the People concede, and
the record confirms, no evidence was presented to prove the
perpetrator of the second predicate offense was a gang member.
(§ 186.22, subd. (e)(1).) Moreover, because the additional
elements were not required in 2012, the jury was not instructed
that it had to determine whether gang members had commonly
produced a benefit to the gang that was “more than reputational.”
In view of this evidentiary deficit, we must vacate the gang and
firearm enhancements (see fn. 2, ante) and remand the matter
to give the People the opportunity to prove the applicability of
the enhancements under the amendments to section 186.22.
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Defendant also urges us to reconsider our holding in
Perez regarding retroactive application of section 1109.3 The
new statute, as discussed, requires a separate trial on gang
allegations, if requested by the defense. (§ 1109, subd. (a).)
In Perez, we recognized “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,” and, thus, it “does not
apply retroactively to a trial that has already occurred.” (Perez,
supra, 78 Cal.App.5th at p. 207, italics added.) Other courts,
however, have reached a different conclusion, reasoning
section 1109 should apply retroactively under Estrada because
the new “legislation is geared to address wrongful convictions and
mitigate punishment resulting from the admission of irrelevant
gang evidence at trial.” (People v. Ramos (2022) 77 Cal.App.5th
1116, 1129; see also People v. Burgos (2022) 77 Cal.App.5th 550,
566–568, review granted July 13, 2022, S274743.)
We need not decide whether the statute is retroactive
because remand will result in a new hearing that satisfies
the requirements of section 1109. (See People v. Tran (2022)
13 Cal.5th 1169, 1208 (Tran).) Similarly, because we determine
remand is necessary to retry the gang allegation, we need
not consider defendant’s other arguments regarding the
enhancements.
To the extent defendant contends the admission of the
gang evidence nonetheless rendered his trial fundamentally
unfair, our Supreme Court has “reject[ed] [the] contention that
the failure to bifurcate constitutes structural error.” (Tran,
3 The People’s concession regarding retroactivity does not
extend to section 1109.
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supra, 13 Cal.5th at p. 1208.) And it is not reasonably probable
that defendant was prejudiced by the trial of the gang allegations
with the underlying offenses. (See id. at pp. 1208–1209; People
v. E.H. (2022) 75 Cal.App.5th 467, 480.) Four eyewitnesses
identified defendant as one of the men who stole Norris’s phone
and fled to the alley where Norris was shot. Two of those
witnesses identified defendant in court. One of the witnesses
identified defendant as the man who took Norris’s phone—an
identification substantiated by defendant’s mother, who told a
detective defendant admitted taking an “iPod” from the ground
before running away. Defendant has not demonstrated it is
reasonably probable that the jury would have rejected those
eyewitness identifications absent the gang evidence. (See E.H.,
at p. 480 [“when the evidence of guilt on the relevant charges
is ‘overwhelming,’ as it was here, it is unlikely the defendant
was harmed by the format of the trial”].)
2. Amendments to sections 1170 and 1385 Apply to
this Case and Require Remand for Resentencing
Defendant contends we must also remand for resentencing
because he is entitled to the benefits of Senate Bill Nos. 81 and
567 (2021-2022 Reg. Sess.). The People again agree.
We begin with Senate Bill No. 567. The legislation, which
took effect on January 1, 2022, amends section 1170 and makes
changes affecting the trial court sentencing discretion, including
the court’s authority to impose the upper term for a conviction.
(Stats. 2021, ch. 731, § 1.3; § 1170, subd. (b)(1), (2).) Under
the amended statute, the trial court may impose an upper term
sentence only where there are aggravating circumstances, and
the facts underlying those circumstances have been stipulated to
by the defendant or found true beyond a reasonable doubt by a
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jury or court trial. (§ 1170, subd. (b)(1), (2).) The amendment
makes an ameliorative change in the law and thus applies
retroactively to nonfinal convictions. (People v. Flores (2022)
73 Cal.App.5th 1032, 1039.) Because the trial court imposed
the upper term sentence for defendant’s robbery conviction, and
defendant’s judgment was not final when the new law went into
effect, we must remand the case for the trial court to resentence
defendant in accordance with the amended statute. (See People
v. Garcia (2022) 76 Cal.App.5th 887, 902.)
Senate Bill No. 81 also took effect on January 1, 2022.
The legislation amends section 1385 to require a court to dismiss
an enhancement if the court determines “it is in the furtherance
of justice to do so,” and the amended statute requires the court
to consider certain mitigating circumstances in making that
determination. (Stats. 2021, ch. 721, § 1; § 1385, subd. (c)(1),
(c)(3)(A)–(I).) Proof of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement. (§ 1385, subd.
(c)(2).) By its terms, the amended statute applies to sentencings
occurring after the legislation’s effective date. (Id., subd. (c)(7).)
Because the enhancements must be retried, the amended statute
applies to defendant’s case.
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DISPOSITION
The true findings as to the gang and firearm use
allegations are reversed, and defendant’s sentence is vacated.
The matter is remanded with directions to the trial court
(1) to afford the People an opportunity to retry the section
186.22 gang allegation and section 12022.53, subdivisions (d)
and (e)(1) firearm use allegation under the amended law; and
(2) to resentence defendant under section 1170, subdivision (b),
as amended.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
RICHARDSON (ANNE K.), J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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