People v. Vigueras CA2/2 ( 2022 )

Filed 8/31/22 P. v. Vigueras CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302530
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA467075)
v.
MANUEL VIGUERAS et al.,
Defendants and
Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed in part;
reversed in part and remanded as to Vigueras, Delgado and
Castro.
Gary V. Crooks, under appointment by the Court of Appeal,
for Defendant and Appellant Manuel Vigueras.
Rachel Varnell, under appointment by the Court of Appeal,
for Defendant and Appellant Aimee Castro.
Elana Goldstein, under appointment by the Court of
Appeal, for Defendant and Appellant Bayron Randolfo Pineda.
Susan L. Ferguson, under appointment by the Court of
Appeal, for Defendant and Appellant Sergio Delgado.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Defendants and appellants Manuel Vigueras, Aimee
Castro, Bayron Randolfo Pineda, and Sergio Delgado appeal from
the judgments entered after their joint trial.1 Each defendant
contends that the trial court erred in imposing fees and
assessments without first determining their ability to pay, and
all defendants submit joinders in one another’s arguments.
Individually they contend: Vigueras, that his convictions of
robbery and felon in possession of a firearm were unsupported by
substantial evidence, that the trial court abused its discretion in
imposing the upper term for robbery, and that Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) requires remand
for resentencing; Castro, that her criminal threat conviction was
not supported by substantial evidence, and she is entitled to
additional custody credits; Pineda, that he was prejudiced by
prosecutorial misconduct during argument; and Delgado, that
substantial evidence did not support his extortion conviction, that
he was prejudiced by instructional error, and that the gang
1 We refer to the four appellants collectively as defendants
and individually by each defendant’s surname.
2
enhancement was unsupported by substantial evidence. Delgado
also expressly joins in Pineda’s claim of prosecutorial misconduct.
After defendants’ appeals were filed, Assembly Bill No. 333
(2021-2022 Reg. Sess.) (Assembly Bill 333), amending Penal Code
section 186.22 and adding section 1109, went into effect.2 (Stats.
2021, ch. 699.) After the parties were given an opportunity to file
supplemental briefs, Vigueras, Castro and Delgado filed briefs
seeking reversal of the gang enhancements imposed pursuant to
section 186.22. Vigueras and Castro additionally seek reversal of
their convictions and remand for a new trial.
We order the correction of Castro’s judgment, adding seven
days of presentence custody credit, but find no merit to
defendants’ claims of error regarding the imposition of fees and
assessments. We agree that the gang enhancements were
unsupported by substantial evidence when considered under the
recently amended section 186.22, and that Senate Bill 567
applies to Vigueras’s sentence, but find no merit to defendants’
remaining contentions. We thus affirm the judgments of
conviction, but conditionally reverse the gang-related
enhancements, vacate the sentences of Vigueras, Castro and
Delgado, and remand the matter for a limited retrial based on
statutory changes to section 186.22 due to Assembly Bill 333 and
for resentencing Vigueras pursuant to section 1170 as amended
by Senate Bill 567.
2 All further statutory references are to the Penal Code,
unless otherwise indicated.
3
BACKGROUND
Charges and allegations
In an 11-count information, defendants were charged as
follows:
Count 1, as to all defendants, attempted extortion from
Jenny D. by means of threat, in violation of sections 664 and 518;
Count 2, as to Vigueras, Castro, and Delgado, criminal
threats against Jenny D. in violation of section 422, subdivision
(a);
Count 4,3 as to Vigueras, Castro, and Delgado, second
degree robbery of Jenny D. in violation of section 211;
Count 5, as to Vigueras, Castro, and Delgado, dissuading a
witness, Jenny D., by means of force or threat in violation of
section 136.1, subdivision (c)(1);
Count 6, as to Pineda and Delgado, extortion from
Yenis H.,4 by means of force and threat in violation of section 518;
Count 7, as to Pineda and Delgado, criminal threats
against Yenis H. in violation of section 422, subdivision (a);
Count 8, as to Pineda, second degree robbery of Yenis H. in
violation of section 211;
Count 9, as to Pineda, dissuading a witness, Yenis H. by
means of force or threat in violation of section 136.1, subdivision
(c)(1);
Count 10, as to Vigueras, possession of a firearm by a felon
in violation of section 29800, subdivision (a)(1);
3 The information does not contain a count 3.
4 Yenis testified at trial that the initial of her last name was
P. After summarizing the information, we will refer to her last
name as P.
4
Count 11, as to Pineda, possession of a controlled substance
(methamphetamine) for sale in violation of Health and Safety
Code section 11378; and
Count 12, alleged as to Pineda, possession of a controlled
substance (cocaine) for sale in violation of Health and Safety
Code section 11351.
In addition, pursuant to section 186.22, former subdivision
(b), the information alleged as to counts 1, 2, 4, 5, 6, 7, 8 and 9
gang allegations. Other allegations as to counts 1, 2, 4 and 5
were as follows: Vigueras was out on bail on his own recognizance
in case No. A462807; he had been convicted of a prior serious or
violent felony, subjecting him to sentencing under section 667,
subdivisions (a)(1), (b)-(j), and section 1170.12; and he had four
prior prison terms, within the meaning of section 667, subdivision
(b); and Castro had two prior prison terms, within the meaning of
section 667, subdivision (b). Additional allegations regarding
Delgado in counts 1, 2, 4, 5, 6 and 7 included that he had been
convicted of a prior serious or violent felony, subjecting him to
sentencing under section 667, subdivisions (a)(1), (b)-(j), and
section 1170.12; and he had six prior prison terms, within the
meaning of section 667, subdivision (b).
Verdicts and sentencing
Vigueras
Vigueras was found guilty of attempted extortion, second
degree robbery, and felon in possession of firearm, and not guilty
of criminal threat and dissuading a witness. The gang allegation
pursuant to section 186.22, former subdivision (b)(1) was found
true only as to count 1. On October 23, 2019, the trial court
found true Vigueras’s prior convictions and sentenced him to a
total term of 13 years four months in prison. With count 4 as the
5
base term, the court imposed the high term of five years, doubled
as a second strike, plus a consecutive term of six months as to
count 1 (one-third the middle term of 18 months), doubled to one
year, enhanced by one year (one-third the gang enhancement)
pursuant to section 186.22, subdivision (b)(1)(A). The court also
imposed eight months for unlawful possession of a firearm (one-
third the middle term of 24 months), doubled to 16 months. The
court struck the five-year enhancement allegation of section 667,
subdivision (a)(1) and dismissed the prior prison term
enhancements.
Vigueras filed a timely notice of appeal from the judgment.
Castro
Castro was found guilty in counts 1, 2, 4 and 5 as charged
and the gang allegation attached to each count was found true.
On December 16, 2019, the trial court sentenced Castro to a term
of eight years in prison, comprised of the high term of three years
on count 2, plus a five-year gang enhancement pursuant to
section 186.22, subdivision (b)(1)(B). The court imposed and
stayed pursuant to section 654 the remaining terms and gang
enhancements, and struck the prior prison term enhancements.
Castro filed a timely notice of appeal from the judgment.
Pineda
Pineda was found guilty of criminal threat, second degree
robbery, dissuading a witness, possession of methamphetamine,
and possession of cocaine, but the gang allegations were not
found true. He was also found not guilty of counts 1 and 6. On
October 21, 2019, the trial court sentenced Pineda to five years in
prison. The sentence was comprised of the middle term of three
years on count 8 as the base term, plus a concurrent middle term
of two years as to count 7, a consecutive term of one year (one-
6
third the middle term of three years) as to each of counts 9 and
12, and a concurrent middle term of two years as to count 11.
Pineda filed a timely notice of appeal.
Delgado
Delgado was found guilty of attempted extortion, two
counts of criminal threats, and extortion. The gang allegations
pursuant to section 186.22, former subdivision (b)(1) were found
true. Delgado admitted the prior convictions as alleged. Delgado
was found not guilty of counts 4 and 5. On February 28, 2020,
the trial court sentenced him to a total term of 19 years in prison.
The court imposed the high term of three years for count 2, the
base term, doubled to six years as a second strike, plus five years
for the gang enhancement pursuant to section 186.22, subdivision
(b)(1)(B), a concurrent middle term of 18 months as to count 1,
and a concurrent term of three years as to count 6. Pursuant to
section 654, the court stayed the gang enhancement alleged
under section 186.22, subdivision (b)(1)(C). On count 7, the court
imposed a consecutive term of eight months, one-third the middle
term of 24 months, doubled to 16 months as a second strike, plus
20 months, one-third the five-year term provided by section
186.22, subdivision (b)(1)(B). Pursuant to section 667,
subdivision (a)(1) the court imposed an additional five years to
Delgado’s sentence.
We deemed Delgado’s notice of appeal, filed July 6, 2020, to
have been timely filed.
Prosecution evidence
Jenny D.’s testimony (counts 1, 2, 4, 5)
Jenny D. testified that prior to April 1, 2018, she had
worked at the Rodeo Room bar as a “fichera,” a woman who
drinks with men at the bar, for about one year. She identified
7
Delgado (Risky) and Pineda (Brian) in court as men who
frequented the bar. She mostly saw Delgado standing by the
door to the smoking patio, drinking water or cranberry juice and
looking around. She never saw him interact with the waitresses,
bartenders, managers, security guard, or two cashiers who
worked at the bar. Once when Jenny asked about his tattoos
Delgado told her they represented a gang called “Playboys,”
which made her somewhat fearful, but since he had not done
anything to her, she had no reason to be afraid.
Though he was always there when she was, Jenny denied
that she and Pineda were friends. Rather she just saw him there,
playing billiards or selling drugs. She always saw Delgado and
Pineda at the bar together when she was there. They would talk
and leave together. In the back where people smoked, Jenny
often saw some people give Pineda money, and he would give
them a little bag. Pineda also charged people for rides. He twice
gave her a ride home and thus knew her address.
On April 1, 2018, around 9:00 p.m. Jenny was drinking
with a man at the Rodeo Room, when another man approached
her saying Delgado wanted to talk to her in the patio. A
surveillance video of the interaction was played for the jury and
Jenny narrated the action, which showed the man telling her to
go see Delgado. Two people then come into view, who Jenny
identified as Vigueras and Castro. Pineda is seen handing pool
sticks to the man before Jenny gets up and goes through the patio
door.
When Jenny got to the patio and Vigueras and Castro were
there, Jenny asked Delgado what was going on. Castro then
placed herself in front of Jenny, said that Vigueras was her
husband and that Pineda and Delgado said Jenny was selling
8
drugs at the bar. Jenny denied selling drugs and told Castro she
was working there and had three children to support. Castro
replied, “Yes, you do sell drugs here. And if you’re going to sell
drugs, you have to make a donation [of] $50 every week.” Jenny
continued to deny selling drugs and refused to pay Castro any
money. As Vigueras stepped aside, Castro told Jenny, “You know
who we are,” that they were from the Playboys gang, and she was
going to kill Jenny if she did not give them money, since Jenny
could not be selling drugs there without Castro’s permission.
When Jenny refused, Castro said, “I don’t want to see your
fuckin’ face here again.” Vigueras returned, Castro hit Jenny
and immediately after that, Vigueras punched Jenny on the side
of her head next to her forehead.
Jenny ran back inside and tried to dial 911 as Castro and
Vigueras came up behind her. Castro grabbed the phone and
said, “Oh, you call the police? That’s the last thing you’re gonna
do.” Though Jenny tried to get it back, Castro gave the phone to
Vigueras, and then they left the bar. After Castro and Vigueras
left the bar with her phone, Delgado also left. She did not see
Pineda, who had not threatened her, leave. After they left, Jenny
unsuccessfully tried to call the police. Jenny was worried they
might harm her children, so she quickly took a taxi home to check
on them. She then went to the police station, where she spoke to
a female officer who did not speak Spanish. About a month later
a detective gave Jenny her phone back.
Because Jenny interpreted “[t]hat’s the last thing you’re
gonna do” as a death threat and had been hit, she was afraid.
She was also afraid while testifying. Because they knew where
she lived and she was afraid that they could come back and hurt
her or her children, she moved.
9
Yenis P.’s testimony (counts 6, 7, 8, and 9)
Yenis testified that she was a waitress at the Rodeo Bar
and worked five days per week. She identified Pineda and
Delgado, whom she met there, and knew as Brian and Risky,
respectively. The men were there together every time she was
there, but they were not customers, rather they sold drugs there.
Yenis testified that she dressed somewhat formally, and at first
both Pineda and Delgado seemed to think she was a detective by
saying things like, “What are you doing here? You look like
you’re infiltrating, like you’re a police officer.” Eventually, they
stopped and tried to make friends with her.
Yenis tried to keep Delgado at a distance because of his
drug dealing. Delgado told her he was a member of the Playboy
gang and that he had previously been in jail. She knew that
Pineda was also a member of the gang. Pineda would follow her,
call her on the phone and look her up through social media.
Yenis had an affair with Pineda and went to a hotel room with
him about three times. Then Yenis decided not to see Pineda
again since he was married. When she told him, he said they
could still see each other and was upset. He then acted jealously
and continuously bothered her.
On March 6, 2018, while Yenis was working at the bar,
Pineda and Delgado were there selling drugs and seemed angry.
Sometime during the evening, Pineda told her that he knew
where she lived and where her kids stayed. Delgado told her that
everyone there was paying a quota, and she had to give him
money for “rent.” She understood that he meant she was
required to pay him to work at the Rodeo Room because the
Playboys gang was in charge of the place. Yenis did not want to
pay him, but gave him $90 or $92 because she knew “[t]hey were
10
the ones who were bossing around there,” and she was afraid to
refuse.
Yenis left the bar about 2:00 a.m. and went home. About
2:45 a.m. she heard a knock at her door, looked out the window,
and saw Pineda. He appeared angry and told her to open the
door, which she did with her phone in her hand, prepared to call
the police. Pineda snatched the phone from her hand as she
dialed 911. He held it as she struggled to take it back. Pineda
scratched Yenis on her left wrist, slapped her left lower cheek
and jaw area, and punched her in the stomach. He pulled a knife
with a gray handle from his pocket, showed it to her, took her by
the hands and hair while holding the knife, and forced her to his
car, where he put her in the front passenger seat and fastened
the seat belt. Delgado was seated in the back seat behind her.
After the car was moving and the two men said they were
going to kill her because she was a “whore,” a “bitch,” and a
“buttinsky,” Yenis tried to remove the seatbelt and throw herself
out of the car. They discussed whether to cut her throat, dump
her in some alley, or tell Delgado’s girlfriend Christina to beat
her up. Yenis feared for her life. She had met Christina at the
Rodeo Room. Christina would solicit women, including Yenis, to
work as prostitutes. When Yenis refused, she became angry and
developed a hatred for Yenis. Pineda and Delgado tried calling
Christina but were unable to reach her. Pineda continued to
drive around for about two hours as Yenis begged them to let her
go and promised not to say anything. They told her that if she
talked, they would find her. Pineda hit her and held the knife in
his right hand or in his lap with the blade turned toward her. He
held the wheel with one hand and would punch her with the
other. Sometimes he let go of the wheel to punch her with both
11
hands. Once during the ordeal, he tried to throw her out of the
car while travelling about 90 miles per hour. Eventually they
released her. Pineda told her if she filed a police report, they
would get out, look for her, and make her pay for what she had
done. She did not report the incident right away.
Later that morning Yenis took her children to school.
Pineda followed her with her phone in his hand and offered to
return it to her. Very frightened, Yenis ran into the school with
her children and spoke to a teacher who advised her to report this
to the police. Yenis then went to the police station to make a
report, but was too afraid to tell them all that had happened the
night before. Yenis never returned to work at the Rodeo room
after that night.
Yenis testified that Pineda’s knife had gray tape on it and
looked homemade. She identified her phone and a photograph of
the knife in court. She had not seen her phone since Pineda tried
to return it to her at her children’s school.
The investigation
Los Angeles police gang detective Samuel Arnold, the
investigating detective in this case, testified that he obtained
surveillance video from cameras located outside the bar. The
video, which showed Castro and Vigueras, was played for the
jury.
Detective Arnold also identified for the jury photographs he
had taken inside the residence shared by Castro and Vigueras
pursuant to a search warrant, specifically an image of a Playboy
Bunny and the letter “P,” and the words “China” and “Pelon” with
12
a heart between them, written on the wall.5 Photographs were
also taken of a cabinet with “KILLO” and “NR” written on it next
to “Rabbit (Gang),” and a photograph of the phone found in the
residence, which Jenny identified as being hers.
Detective Arnold also searched two vehicles in the
driveway, a black Dodge Charger and a Nissan SUV. Hidden
under the passenger glove box in the Charger, he found a nine-
millimeter black pistol with a brown grip, which appeared to be
operable. When the Nissan SUV was searched, he found a BB
gun in the middle console.
Jenny gave Detective Arnold the license plate number of
Pineda’s SUV. While observing the SUV parked in front of the
Rodeo Room, detectives saw Pineda walk out of the bar, converse
with a person on the sidewalk, rummage in the rear of the SUV,
hand the person something, and then drive away. He was
stopped by patrol officers, made to lie down, was handcuffed, and
a large knife was removed from his waistband. A search of the
SUV turned up several bindles of what appeared to be
methamphetamine and cocaine. A scale was also found.
Detective Arnold interviewed Castro at the Los Angeles
Police Department (LAPD) jail on the night of April 16 to 17. The
recorded interview was played for the jury. Castro denied ever
having been to the Rodeo Room bar until Detective Arnold
showed her photographs taken from video showing her inside the
bar on April 1, 2018. She then identified herself and said, “I
must have been really doped up.” Castro admitted she was
associated with the Playboys gang. When asked about the phone
5 “China” was Castro’s nickname and “Pelon” was Vigueras’s
“street name.”
13
that had been found during the search of her home, she said it
belonged to “[s]ome girl I had a little argument with because she
wanted to sell me some dope that day, and I didn’t want no dope
that day.” Castro claimed that she told the girl to leave her alone
because she was already high, and the girl then started to call
the police. Castro admitted that she “snatched” the phone and
left.
Detective Arnold also conducted a recorded interview with
Vigueras at the LAPD jail on April 16, 2018, which was also
played for the jury. Vigueras identified himself in a photograph
Detective Arnold showed him of Vigueras standing in the parking
lot just south of the Rodeo Room. Vigueras admitted he was a
member of the Playboys gang and that his street name was
Pelon.
Detective Arnold interviewed Delgado on April 19, 2018, at
which time Delgado told Detective Arnold that he did not “work
there [(the Rodeo Room)], but technically, if a fight breaks out or
something, I’m the one who goes and breaks it all up . . . .”
Delgado said that he had been there for years, everyone knew
him, and that he was “something like” security. He went there
every day and stayed until 2:00 a.m. to make sure things ran
smoothly, that no one was robbed, “and all that stuff.” Delgado
admitted having Playboys gang tattoos, that he belonged to the
Dukes clique of the Playboys, and was called Risky. Delgado said
the Rodeo Room was not in Playboys’ territory, but belonged to
other gangs whose members went there and with whom the
Playboys had no problem.
Detective Arnold also conducted a recorded interview of
Pineda, who said he had been giving rides for money from the
Rodeo Room for approximately eight years. He denied taking
14
Yenis’s phone or knowing about any drugs found in his car.
Pineda admitted having gone to Yenis’s children’s school but said
he just wanted to talk to her.
Gang evidence
Officer Samuel Gil, the prosecution’s gang expert, testified
that he had participated in hundreds of gang investigations and
about 10 percent of them involved the Playboys gang. He
testified that gangs establish territory in order to safely conduct
illicit activity ranging from narcotics sales, transportation of
firearms and street robberies. Officer Gil explained that gang
members conduct criminal activities such as extortions in order
to earn money not only for themselves, but also for the gang so
that narcotics or firearms may be purchased in order to continue
to commit other crimes and earn more money. Gangs tend to
commit crimes in their own territory in order to lessen the
probability of being attacked or “taxed” by another gang for
conducting elicit activity in its territory. The territory of the
Playboys gang is a fairly large area of south central Los Angeles.
Officer Gil testified that the primary activities of the
Playboys gang are assaults, robberies, shootings, extortion, and
shootouts with police officers. The prosecution also presented
evidence of predicate offenses by Playboys gang members in the
form of certified court dockets showing the convictions of Gerardo
Calindres and Felipe Burgos. Officer Gil was acquainted with
both men and knew them to be Playboys gang members. One
record showed that Calindres was convicted on August 9, 2017, of
assault by means of force likely to produce great bodily injury in
violation of section 245, subdivision (a)(4), a felony, committed on
April 11, 2017. The other record showed that Burgos was
15
convicted on August 25, 2016, of attempted extortion in violation
of section 524, committed on or about July 25, 2015.
Officer Gil identified Castro and Vigueras in court, whose
monikers he knew to be China and Boxer. He had spoken with
both of them previously and knew they both have Playboys-
related tattoos. Officer Gil said Vigueras’s residence is a known
Playboys hangout, and he was of the opinion that they both were
Playboys gang members.
Given hypothetical questions mirroring the facts in
evidence, Officer Gil opined that the acts described were
committed for the benefit of a criminal street gang, at the
direction of the gang, and in association with another gang
member. He explained that in his experience, extortion by gang
members serves to create revenue for the gang, which is used to
buy narcotics or firearms or to support gang members without
jobs. He also explained that taking a victim’s phone while she
tried to call 911 would benefit the gang by preventing the victim
from calling for help. In addition, intimidating and threatening
the “ficheras” benefits the gang by instilling fear so that they will
continue to pay the gang members to work at the bar.
Defense evidence: Vigueras’s testimony
Direct examination
Vigueras admitted he had been convicted in 2012 of robbery
and in 2010 of receiving stolen property. He remembered going
to the Rodeo Room on the evening of April 1, 2018, to look for his
friend, Delgado, and claimed that he had been inside the bar just
once before. He and his wife (Castro) went there to both give
Delgado a ride and to pick up the chain that Delgado had taken
from her. Castro was upset about the chain. As they walked in,
Vigueras recognized Jenny, one of the women who worked there.
16
He did not see Delgado, so they walked to the back of the bar and
saw Pineda. While Castro was asking where Delgado was,
Vigueras went to the parking lot, where he asked a man standing
near the door to go tell Jenny he wanted to speak to her. When
Jenny appeared, Vigueras began to ask whether she had seen
Delgado. Vigueras then saw Delgado coming down the stairs of
the next door apartment shouting, “Hey, hey, what are you doing
talking to that, you know, female?” Castro, who was high, having
used drugs that evening, came outside and confronted both
Vigueras and Jenny for talking to each other. All of them began
arguing in Spanish. When they shoved each other, Vigueras
separated them, and Jenny returned to the bar. Vigueras and
Castro followed, and Castro said some last things to Jenny before
they left the bar. Vigueras denied seeing Castro take Jenny’s
phone, but did see Castro with it later. He denied ever having
the phone himself.
Cross-examination
Vigueras admitted he owned a black Charger on April 1,
2018, and his wife owned a white Nissan Pathfinder around that
time. Shown a photograph of the gun found in the Charger,
Vigueras denied ever before seeing the gun and that it was the
gun found in his Charger.
Vigueras did not recall telling Detective Arnold that he had
never been to the Rodeo Room, and he did not remember having
heard himself say that on the recorded interview played in open
court. Vigueras explained that he had been there more than once
but had gone inside only once before the incident, and it was from
that one time he knew Jenny. Vigueras acknowledged having
asked her to come outside that night because he believed she
17
would know Delgado’s location, even though he did not know that
she knew Delgado.
Vigueras testified that he was called Pelon by friends,
family and his fellow gang members. He claimed his friend
“Blaks” wrote the names China and Pelon and admitted he was
there at the time. Vigueras testified that he had known Delgado
for a long time and that they were more than good friends.
Vigueras grew up on the next block from the bar in Playboys’
territory and claimed the area of the bar was contested, so he
could not say it was Playboys’ territory. He claimed writing
“PBS” in the bar did not mark it as Playboys’ territory,
explaining, “[I]t’s just representing [the] gang.” Vigueras
“believed” Delgado was a member of the Playboys, but claimed
that Castro was not, but she thought she was.
When shown a photograph of Jenny’s phone, Vigueras
denied knowing whether it was the phone Castro took from
Jenny and then handed to him, that he ever had that phone in
his hand, or that he knew where it had been found. He claimed
that although the subject night was just the second time he had
been in Rodeo Room, he went straight to the back of the bar
expecting to find Delgado there. He explained his expectation
was because Delgado had called him from someone else’s phone,
and Vigueras did not recognize the number. He acknowledged
seeing Pineda, who would drive Delgado, in the back of the bar.
Vigueras claimed that on April 1 he was high on
methadone and had taken Xanax bars. He claimed that Castro
had smoked “weed,” taken Xanax bars and had been drinking.
Although Castro was high and he thought not in a condition to
drive, she drove, not poorly, that night. Vigueras acknowledged
18
that the video showed them leaving the bar, walking normally,
and Castro was running without a problem.
Vigueras denied he remembered telling Detective Arnold
that he did not witness any kind of altercation between Castro
and Jenny, explaining that he did not remember telling him
anything at all. Vigueras acknowledged never having seen Jenny
sell drugs and had no belief she was a drug dealer. She did not
try to sell him drugs, and no one talked about drugs during the
incident of April 1. Castro told him that Jenny tried to sell her
drugs, but it was in his “peripheral hearing” and Vigueras “really
didn’t hear it.” Vigueras acknowledged that he did not tell
Detective Arnold anything about an argument between Castro
and Jenny.
DISCUSSION6
I. Vigueras’s appeal
A. Substantial evidence of robbery
Vigueras contends that his robbery conviction was not
supported by substantial evidence. In particular, he argues that
Jenny’s testimony that Castro handed him the phone was not
credible, and there was insufficient evidence to show he knew
Castro was going to take the phone.
“The proper test for determining a claim of insufficiency of
evidence in a criminal case is whether, on the entire record, a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must
6 We discuss each defendant’s individual issues first, after
which we discuss the ability-to-pay issue, and then gang
enhancements and Assembly Bill 333.
19
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (People v.
Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies
when the conviction rests primarily on circumstantial evidence.”
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court
must accept logical inferences that the jury might have drawn
from the circumstantial evidence.” (People v. Maury (2003) 30
Cal.4th 342, 396.)
“[B]ecause ‘we must begin with the presumption that the
evidence . . . was sufficient,’ it is defendant, as the appellant, who
‘bears the burden of convincing us otherwise.’” (People v. Hamlin
(2009) 170 Cal.App.4th 1412, 1430.) Reversal on a substantial
evidence ground “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297,
331.)
1. Jenny’s credibility
The bar surveillance video shows the struggle over Jenny’s
phone, but there is no video showing Castro handing the phone to
Vigueras. While the People do not claim that the handoff is
visible in the video, they counter that Vigueras has not pointed to
any part of the video that would exculpate him. Even though the
handoff of the phone is not visible in the video, the jury was
entitled to believe Jenny.7 Vigueras acknowledges that a single
witness is sufficient proof of a fact, but suggests an additional
(apparently implied) exception to Evidence Code section 411,
7 Evidence Code section 411 provides: “Except where
additional evidence is required by statute, the direct evidence of
one witness who is entitled to full credit is sufficient for proof of
any fact.”
20
citing People v. Reyes (1974) 12 Cal.3d 486, 499: “[W]here the
testimony of a single witness is contradicted by other more
substantial evidence, it may be considered insubstantial, and will
not support a conviction.” We find nothing in the cited case that
would allow us to override the jury’s credibility determination
based upon evidence we find “more substantial” than other
substantial evidence. We do not reweigh the evidence. (People v.
Young (2005) 34 Cal.4th 1149, 1181.) The testimony of a single
witness is sufficient to support a conviction, so long as the
testimony is not physically impossible or inherently improbable.
(Ibid.)8
Vigueras does not show Jenny’s testimony was physically
impossible, but instead argues improbability. Vigueras notes the
bar surveillance video shows that 41 seconds elapsed between the
time Jenny picked up her phone to call 911 and the time that he
and Castro were seen at the front door about to leave. He argues
that it is inherently improbable that those events could occur in
just 41 seconds, because the prosecutor referred to Jenny’s
struggle with Castro as “extended” and “not fast.” Vigueras thus
infers that Jenny’s testimony is inherently improbable. However,
testimony is inherently improbable only if its “‘“falsity [is]
apparent without resorting to inferences or deductions.
8 Additionally, the facts of People v. Reyes are
distinguishable. There, three disinterested witnesses gave a
description of the defendant as a participant, while one alibi
witness who was not wearing his needed glasses testified that he
saw defendant in a crowded bar, although he had never seen him
before and had three seconds to observe him, making such
testimony clearly less substantial. (See People v. Reyes, supra, 12
Cal.3d at p. 499.)
21
[Citations.] Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.”’” (People v. Mayberry
(1975) 15 Cal.3d 143, 150; see Davis v. Judson (1910) 159 Cal.
121, 128, quoted by Vigueras.) Vigueras’s argument is based only
on his suspicion that 41 seconds was insufficient time for Jenny
to pick up her phone, dial 911, struggle with Castro, who grabbed
the phone, and for Delgado to tell Jenny, “I warned you. And the
next time we’re not going to be so friendly with you.” However
the prosecutor characterized the struggle, Vigueras has failed to
demonstrate its impossibility or inherent improbability. We thus
reject Vigueras’s invitation to disbelieve Jenny’s testimony.
2. Aiding and abetting
Vigueras also contends that insufficient evidence supports
his conviction of robbery on an aiding and abetting theory
because he could not possibly have known that Castro intended
to take Jenny’s cell phone prior to the taking.
One aids and abets the commission of a crime when he,
acting with knowledge of the unlawful purpose of the perpetrator
and with the intent or purpose of committing, encouraging, or
facilitating the commission of the offense, by act or advice, aids,
promotes, encourages or instigates the commission of the crime.
(People v. Beeman (1984) 35 Cal.3d 547, 561.) For aiding and
abetting liability to attach, the intent to aid and abet must be
formed prior to or during commission of the offense. (See People
v. Cooper (1991) 53 Cal.3d 1158, 1164-1165 (Cooper).) For
purposes of robbery, “a taking is not over at the moment of
caption; it continues through asportation.” (People v. Gomez
22
(2008) 43 Cal.4th 249, 256.) “Although, for purposes of
establishing guilt, the asportation requirement is initially
satisfied by evidence of slight movement [citation], asportation is
not confined to a fixed point in time. The asportation continues
thereafter as long as the loot is being carried away to a place of
temporary safety. Therefore, . . . for conviction of . . . aiding and
abetting a robbery, a getaway driver must form the intent to
facilitate or encourage commission of the robbery prior to or
during the carrying away of the loot to a place of temporary
safety.” (Cooper, supra, at p. 1165, fns. omitted.)
Vigueras is no different from the getaway driver in Cooper.
Jenny testified that Castro handed the phone to Vigueras, and we
have rejected Vigueras’s challenge to that testimony. Thus, by
leaving with Castro, Delgado, and the phone shortly after
Delgado warned Jenny they would not be so friendly next time,
Vigueras facilitated the commission of the robbery “during the
carrying away of the loot to a place of temporary safety.” (People
v. Cooper, supra, 53 Cal.3d at p. 1165, italics omitted.) As there
is no merit to Vigueras’s claim that he could not be convicted as
an aider and abettor because he did not know or intend that
Castro take Jenny’s phone prior to the taking, we reject this
substantial evidence challenge as well.
B. Felon in possession of a firearm
Vigueras challenges the evidence supporting his conviction
of felon in possession of a firearm. No one who has been
convicted of a felony may lawfully own, purchase, receive, possess
or have custody or control of any firearm. (§ 29800.) The
possession, custody, or control of the firearm must be with the
defendants’ knowledge. (People v. Snyder (1982) 32 Cal.3d 590,
592 [analyzing former § 12021, subd. (a)(1), the predecessor
23
statute to § 29800].) “Possession may be physical or constructive,
and more than one person may possess the same contraband.
[Citation.] Possession may be imputed when the contraband is
found in a place which is immediately accessible to the joint
dominion and control of the accused and another.” (People v.
Miranda (2011) 192 Cal.App.4th 398, 410.)
Vigueras asserts that the evidence was insufficient to prove
he had knowledge of the firearm’s existence. He argues that
although he owned the black Charger that was parked in his
driveway, he was not in the car when police found the firearm
inside the car, and no evidence was presented regarding when he
had been in the car. A DNA test of the firearm was inconclusive,
and when shown a photograph of the gun found, Vigueras denied
having ever seen it before.
Vigueras relies on several cases where the defendant
denied knowledge of the firearm and the evidence was
nevertheless found to be sufficient to support the conviction. (See
People v. Neese (1969) 272 Cal.App.2d 235, 246-247 [custody or
control issue, not knowledge]; People v. Nieto (1966) 247
Cal.App.2d 364, 368 [guns found under front seat of the
defendant’s car when he had been driving it]; People v. Hunt
(1963) 221 Cal.App.2d 224, 225 [gun found in car owned and
being driven by the defendant]; People v. Pearson (1957) 150
Cal.App.2d 811, 817-818 [gun found in pocket of the defendant’s
overcoat when he put it on to go with police].) The cited cases
merely show that there was sufficient evidence in those cases, not
that proof here is insufficient without the particular facts of the
cited cases. “When we decide issues of sufficiency of evidence,
comparison with other cases is of limited utility, since each case
24
necessarily depends on its own facts.” (People v. Thomas (1992) 2
Cal.4th 489, 516.)
The defendant’s awareness of the presence of a gun in his
car may be proved by circumstantial evidence. (People v. Hunt,
supra, 221 Cal.App.2d at p. 227.) A jury is free to disbelieve a
defendant’s denial that he was aware of the presence of a firearm.
(People v. Miranda, supra, 192 Cal.App.4th at p. 411.) Here,
Vigueras did not testify that he was unaware of the gun in his
car. Rather, he claimed he had just bought the car and did not
contend that he had not driven it or that he had not been in the
car. When shown a photograph of the gun found in Charger,
Vigueras merely denied ever seeing that gun before or knowing
that the gun in the photograph was the one found in his
Charger.9 Moreover, the jury was not required to believe
Vigueras. (See People v. Miranda, supra, at p. 411.)
“[T]he judgment is not subject to reversal on appeal simply
because the prosecution relied heavily on circumstantial evidence
and because conflicting inferences on matters bearing on guilt
could be drawn at trial. Although the jury is required to acquit a
criminal defendant if it finds the evidence susceptible of two
reasonable interpretations, one of which favors guilt and the
other innocence, it is the jury, not the appellate court, which
must be convinced of his guilt beyond a reasonable doubt.”
(People v. Millwee (1998) 18 Cal.4th 96, 132.) Here, sufficient
circumstantial evidence supported a reasonable inference that
Vigueras was aware of the gun’s presence. The car belonged to
him and was parked in his driveway. Detective Arnold testified
9 The recorded interview of Vigueras at the LAPD jail on
April 16, 2018, was played for the jury. In it Vigueras said he
had just bought the black Charger.
25
that when he searched the Charger it was apparent to him that
the carpet beneath the glove box had been tampered with, so he
looked under it and found the gun. The jury evidently found the
tampered carpet would have been apparent to Vigueras as well,
whenever it was that he bought the car. We conclude that
substantial evidence supported Vigueras’s conviction of felon in
possession of a firearm.
C. Discretion to impose upper term
Vigueras contends the trial court’s imposition of the upper
term for robbery was an abuse of discretion because the court
relied on his criminal record while recognizing he played a minor
role in the robbery.
Vigueras concedes that he made no objection, and, without
an objection, a defendant fails to preserve for review “claims
involving the trial court’s failure to properly make or articulate
its discretionary sentencing choices. Included in this category are
cases in which the stated reasons allegedly do not apply to the
particular case, and cases in which the court purportedly erred
because it double-counted a particular sentencing factor,
misweighed the various factors, or failed to state any reasons or
give a sufficient number of valid reasons.” (People v. Scott (1994)
9 Cal.4th 331, 353.)
Vigueras argues that the issue was preserved for appeal
based on his sentencing brief, which cited the circumstance in
mitigation set forth in rule 4.423(a)(1) of California Rules of
Court that “[t]he defendant was a passive participant or played a
minor role in the crime” and by listing several facts supporting
that factor.10 The People note Vigueras’s sentencing brief did not
10 Vigueras cites People v. Partida (2005) 37 Cal.4th 428, 437.
We find no support for defendant’s preservation argument in that
26
address whether an upper term may be based on a defendant’s
criminal record or whether the suggested factors in mitigation
necessarily outweighed other factors.
In the event we find forfeiture, Vigueras asserts ineffective
assistance of counsel and asks that we reach the merits.
“‘Sentencing courts have wide discretion in weighing aggravating
and mitigating factors [citations], and may balance them against
each other in “qualitative as well as quantitative terms”
[citation] . . . . We must affirm unless there is a clear showing
the sentence choice was arbitrary or irrational.’” (People v.
Avalos (1996) 47 Cal.App.4th 1569, 1582.) “Only a single
aggravating factor is required to impose the upper term . . . .”
(People v. Osband (1996) 13 Cal.4th 622, 728, citations omitted;
see People v. Myles (2012) 53 Cal.4th 1181, 1221.) Here, the trial
court selected the high term due to defendant’s record of both
violent and nonviolent felonies, which it found to be a significant
factor in aggravation that outweighed any factors in mitigation,
“including the defendant’s minor role in these offenses, or
relatively minor role in these offenses.”
Partially quoting and paraphrasing language in People v.
Black (2007) 41 Cal.4th 799, 817 (Black), Vigueras argues (in his
words): “An aggravating circumstance must be one that makes
the offense ‘distinctly worse than the ordinary’ and makes the
defendant deserving of punishment more severe than that
merited for other offenders in the same category.” (Italics added.)
case. There, the California Supreme Court held that an objection
to evidence without a separate due process objection is sufficient
to preserve a federal due process claim where the due process
claim is merely “an additional legal consequence of the asserted
[state] error.” (Id. at pp. 437-438.)
27
The actual quote in Black is: “An aggravating circumstance is a
fact that makes the offense ‘distinctively worse than the
ordinary.’” (People v. Black, supra, at p. 817, quoting People v.
Moreno (1982) 128 Cal.App.3d 103, 110; see People v. Hicks
(2017) 17 Cal.App.5th 496, 512.) It is apparent that the quoted
language did no more than define aggravating factor.
Nevertheless, Vigueras appears to misinterpret the Black
quote as requiring any relied-upon criminal history as an
aggravating factor to be “distinctively worse than the ordinary”
aggravating factor. He does this presumably because his
criminal history includes one prior violent felony and six
nonviolent felonies, making his record not distinctively worse
than an ordinary criminal history, and thus the trial court
abused its discretion by relying on his record. In addition
Vigueras appears to interpret Black’s language to mean that
aggravating circumstances must be derived from the particular
facts of the current offense, rather than his own criminal history.
Vigueras concludes that the imposition of the upper term
required a “circumstance [that] made this robbery distinctively
worse than the ordinary robbery.” Black does not support either
interpretation.
Vigueras refers to the trial court’s language concerning how
his criminal record outweighed any factors in mitigation,
“including the defendant’s minor role in these offenses, or
relatively minor role in these offenses,” as indicating that the
court relied on an unrelated fact from a different count in this
case as an aggravating factor. For this he relies on People v.
Searle (1989) 213 Cal.App.3d 1091, 1097, which held that facts
pertaining to only one count cannot be used as an aggravating
factor to support an upper term on a different count unrelated to
28
those facts. The court’s reference to “these offenses” was not
directed to an aggravating fact in another count; rather the court
was explaining that Vigueras’s criminal history outweighed the
mitigating factor of Vigueras’s relatively minor role in the crimes
committed at the Rodeo Room. Searle contains no language
barring the use of a fact from another count as a mitigating factor
or barring the use of a defendant’s criminal history as an
aggravating factor.
Finally, Vigueras urges that we reverse his sentence based
upon the policy expressed in section 1170, subdivision (a)(1)11:
“The . . . purpose of sentencing is public safety achieved through
punishment, rehabilitation, and restorative justice. When a
sentence includes incarceration, this purpose is best served by
terms that are proportionate to the seriousness of the offense
with provision for uniformity in the sentences of offenders
committing the same offense under similar circumstances.”
Vigueras also cites policy considerations of recent changes in
other sentencing laws, arguing in essence that the current trend
in sentencing law bars the trial court from relying on Vigueras’s
criminal history as an aggravating factor.
The trial court is permitted to rely on the factors that
reasonably relate to the defendant. (Cal. Rules of Court, rule
4.421(c).) Vigueras cites no authority that a sentencing court
exercises its discretion in an arbitrary or irrational manner
unless the court makes a sentencing decision based on his review
of the legislative history of various new sentencing laws,
particularly when it has not been asked to do so. Furthermore,
11 For a discussion of the current version of section 1170 as
amended by Senate Bill 567, see part I.D. below.
29
Vigueras cites no authority suggesting his attorney provided
ineffective assistance of counsel by failing to provide a
dissertation on the policy and history of sentencing laws. Finally,
Vigueras provides no authority for this court to judicially
legislate by analyzing policy trends in sentencing. Vigueras has
failed to demonstrate that the trial court’s sentence choice was
arbitrary or irrational, and he has thus failed to establish an
abuse of discretion.
D. Senate Bill No. 567
In a supplemental brief Vigueras seeks resentencing under
section 1170, subdivision (b) as amended by Senate Bill 567.12
Senate Bill 567 became law on October 8, 2021, effective
January 1, 2022. The legislation amended the determinate
sentencing law, which affects the trial court’s discretion and
authority to impose one of three statutory terms of imprisonment,
known as the lower, middle, and upper terms.
Section 1170, subdivision (b)(1) now provides:
“When a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the
court shall, in its discretion, order imposition of a
sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).”
Section 1170, subdivision (b)(2) provides in relevant part:
“The court may impose a sentence exceeding the
middle term only when there are circumstances in
aggravation of the crime that justify the imposition of
a term of imprisonment exceeding the middle term,
12 Vigueras refers to this legislation as “AB 567.” Although
Vigueras may have meant Assembly Bill No. 124 (Stats. 2021, ch.
695, § 5.3), which was enacted the same day as Senate Bill 567,
we assume he meant Senate Bill 567.
30
and the facts underlying those circumstances have
been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.”
In sentencing Vigueras to the high term, the trial court
relied upon a consideration of Vigueras’s record, including both
violent and nonviolent felony convictions. Vigueras claims his
case should be remanded for resentencing because the facts
supporting the upper term were not found by a jury or admitted
by him. In making this claim Vigueras disregards the very next
paragraph of the amended statute, section 1170, subdivision
(b)(3), which provides an exception to subdivision (b)(2). The
court is allowed to “consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction
without submitting the prior convictions to a jury.” (§ 1170, subd.
(b)(3).)
Vigueras admitted at least one of the relied-upon felony
convictions: a prior robbery conviction. Vigueras makes no claim
of lack of certified record of his other prior convictions before the
court. He did not seek to augment the record when he filed his
supplemental brief, nor did he attempt to provide a settled
statement. Indeed, Vigueras has not acknowledged the section
1170, subdivision (b)(3) exception at all. We need not address
claims not made, or make arguments for parties. (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 106.)
We note that Senate Bill 567 applies retroactively (People
v. Garcia (2022) 76 Cal.App.5th 887, 902), and we will reverse
Vigueras’s sentence on other grounds as discussed within. If
Vigueras raises this issue on remand, the prosecutor will have
the opportunity to provide a certified copy of Vigueras’s
California Law Enforcement Telecommunications System record,
31
a certified copy of a section 969b packet from the Department of
Corrections and Rehabilitation, or other certified record of
Vigueras’s prior convictions. (Garcia, at p. 902, citing People v.
Valenzuela (2019) 7 Cal.5th 415, 424-425 and People v. Buycks
(2018) 5 Cal.5th 857, 893.)
II. Castro’s appeal
A. Substantial evidence of criminal threat
Castro contends that her conviction of criminal threat was
unsupported by substantial evidence.
“To establish a criminal threat, the prosecution must prove:
(1) the defendant willfully threatened death or great bodily injury
to another person; (2) the threat was made with the specific
intent that it be taken as a threat, regardless of the defendant’s
intent to carry it out; (3) the threat was ‘on its face and under the
circumstances in which it [was] made, . . . so unequivocal,
unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution’; (4) the threat caused the person threatened ‘to be in
sustained fear for his or her own safety or for his or her
immediate family’s safety’; and (5) this fear was reasonable under
the circumstances. (§ 422, subd. (a); see People v. Toledo (2001)
26 Cal.4th 221, 227-228.)” (People v. Turner (2020) 10 Cal.5th
786, 826.)
The prosecution identified the following threat made by
Castro to Jenny: “Oh, you call the police? That’s the last thing
you’re gonna do.” Castro contends this statement cannot
constitute a criminal threat because it did not contain a threat to
commit a crime that would result in death or great bodily injury,
nor was the statement specific or clear enough to convey an
intention to do so. “‘[Section 422] does not concentrate on the
32
precise words of the threat. Instead, the statute focuses on the
effect of the threat on the victim, to wit, communication of a
gravity of purpose and immediate prospect of execution of the
threat. These impressions are as surely conveyed to a victim
when the threatened harm is conditioned on an occurrence
guaranteed to happen as when the threat is absolutely
unconditional.’” (People v. Wilson (2010) 186 Cal.App.4th 789,
807.) Furthermore, the specific intent required by section 422 is
not an intent to actually carry out the threatened crime, but an
intent that the victim receive and understand the threat. “‘“A
threat is not insufficient simply because it does ‘not communicate
a time or precise manner of execution [since] section 422 does not
require those details to be expressed.’”’” (Wilson, at p. 807.)
When the words of a threat are equivocal, ambiguous, or
conditional, the intent that the words be taken as a threat must
be determined from all the surrounding circumstances and not
just on the words alone. (People v. Butler (2000) 85 Cal.App.4th
745, 753-755.)
The surrounding circumstances cited by Castro are that
she made the statement immediately before grabbing the phone
from Jenny who was calling the police, and although the two
women fought over the phone by pushing each other, Jenny was
not harmed. Soon thereafter Castro gave the phone to Vigueras
and left the bar. Castro argues “[t]hese are not the actions of
someone threatening death or great bodily injury” and adds such
circumstances give rise to just one interpretation: that Castro
“was not going to let Jenny call the police because she was going
to take her phone, not because she was going to kill her or inflict
great bodily injury.”
33
Castro’s argument fails to consider all the surrounding
circumstances. Jenny testified that she heard Castro’s words as
a death threat because the words were accompanied by being hit
following the events on the patio. When Jenny refused to pay $50
per week, Castro said, “You know who we are,” that she and her
group were from the Playboys gang, and that she was going to
kill Jenny if she did not give Castro money. When Jenny again
refused, Castro punched her and then Vigueras, whom Castro
had referred to as her husband, also punched Jenny. Castro
suggests that the incident on the patio should not be considered
because that threat to kill Jenny was not the basis of the criminal
threat charge. Here, the parties’ history includes the infliction of
physical violence upon Jenny and the death threat on the patio.
“‘The parties’ history can also be considered as one of the relevant
circumstances.’” (People v. Butler, supra, 85 Cal.App.4th at
p. 754.)
Castro was convicted of robbery for taking the phone, which
she does not challenge. The use of force or fear to overcome
resistance during or subsequent to seizure of the victim’s
property will support a charge of robbery. (See People v. Hudson
(2017) 11 Cal.App.5th 831, 838-839.) Castro acknowledges that
Jenny resisted by pushing Castro in an effort to retrieve her
phone and that Castro pushed back, thwarting Jenny’s efforts
until Castro was able to give the phone to Vigueras and abscond.
It is notable that Castro took the phone and overcame Jenny’s
resistance while standing in close proximity to Vigueras, the man
whose punch had just injured Jenny. We cannot agree with
Castro’s conclusion that “[t]hese are not the actions of someone
threatening death or great bodily injury.”
34
“‘Although it is the duty of the jury to acquit a defendant if
it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other
innocence [citations], it is the jury, not the appellate court which
must be convinced of the defendant’s guilt beyond a reasonable
doubt. “‘If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.’”’”
(People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Considering
all the circumstances, we conclude that the jury could and did
reasonably find Castro’s statement, “That’s the last thing you’re
gonna do,” sufficiently unequivocal, unconditional, immediate
and specific to convey to Jenny a gravity of purpose and an
immediate prospect of death or serious bodily injury. We
therefore reject Castro’s alternative interpretation.
Castro next contends that the evidence was insufficient to
support a finding that Jenny experienced a state of sustained fear
due to the threat. “Section 422 requires the person threatened
‘reasonably to be in sustained fear for his or her own safety’” but
“does not define ‘sustained’ fear.” (People v. Allen (1995) 33
Cal.App.4th 1149, 1156.) “Defining the word ‘sustained’ by its
opposites, . . . means a period of time that extends beyond what is
momentary, fleeting, or transitory.” (Ibid.) That period of time
can be as little as 15 to 30 minutes depending on the
circumstances. (People v. Mendoza (1997) 59 Cal.App.4th 1333,
1341; see People v. Allen, supra, at p. 1156 [“Fifteen minutes of
fear of a defendant who is armed, mobile, and at large, and who
has threatened to kill the victim and her daughter, is more than
sufficient . . . .”].)
35
Jenny heard Castro’s words as a death threat and tried to
call the police after Castro left the bar, but was unable to get
through. She worried that Castro and her group might harm her
children, so Jenny quickly took a taxi home to check on them,
then went to the police station to report the incident. Jenny
moved to another residence because Pineda knew where she
lived, and she was afraid they might hurt her or her children.
Jenny testified that she was afraid and remained so at the time
of trial. The threat was made on April 1, 2018, and Jenny gave
her testimony on September 10, 2019. A rational jury surely
could reasonably find that one year five months is a sufficient
amount of time for her fear to have been sustained, and not just
momentary, fleeting, or transitory.
Castro argues that if Jenny really feared for her life, she
would not have resisted. Castro also claims that Jenny followed
her “without hesitation” to the parking lot when Castro left the
bar. “If she feared for her life, she would have called the police
after appellant left the bar, not followed her to the parking lot.”
Castro misstates the facts. Jenny did not follow Castro to the
parking lot. She testified that she followed her and her
companions to the door, but she did not leave the bar. In
addition, Jenny tried to call the police after they left with a
borrowed phone, but the call would not go through.
Even if Castro’s summary of the relevant facts is used, our
task is still to determine whether substantial evidence supports
the jury’s finding, not whether substantial evidence supports a
contrary finding. (See People v. Saterfield (1967) 65 Cal.2d 752,
759.) As the circumstances justify the jury’s finding that Jenny’s
fear was sustained and not just momentary, fleeting, or
transitory, Castro has failed to show “‘that upon no hypothesis
36
whatever is there sufficient substantial evidence to support [the
conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.) We
thus reject her substantial evidence challenge.
B. Custody credits
Castro contends that she is entitled to an additional seven
days of presentence custody credit, noting she was given 606
actual days and 90 days of conduct credit on December 16, 2019,
while the probation report gives her date of arrest as April 14,
2018. From the date of arrest through the date of sentencing is
612 actual days. With one additional day of conduct credit,
Castro is entitled to a total of 703 days. (See §§ 2933.1, subds.
(a), (c), 667.5, subd. (c)(9).) Respondent agrees. We correct the
judgment accordingly.
III. Pineda’s appeal: claims of prosecutorial misconduct
Pineda contends that in rebuttal argument the prosecutor
made irrelevant and prejudicial comments amounting to
prosecutorial misconduct in violation of Pineda’s rights to due
process and a fair trial. In particular, he claims the prosecutor
implied, without evidentiary support, that a witness refused to
testify due to intimidation by the defendants, and that the
prosecutor improperly appealed to the jurors’ sympathy for the
victims.
“We review the trial court’s rulings on prosecutorial
misconduct for abuse of discretion.” (People v. Peoples (2016) 62
Cal.4th 718, 792-793.) “‘Under this standard, a trial court’s
ruling will not be disturbed, and reversal of the judgment is not
required, unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.’” (People v. Dunn (2012) 205
Cal.App.4th 1086, 1094.)
37
“Improper comments violate the federal Constitution when
they constitute a pattern of conduct so egregious that it infects
the trial with such unfairness as to make the conviction a denial
of due process. [Citation.] Improper comments falling short of
this test nevertheless constitute misconduct under state law if
they involve use of deceptive or reprehensible methods to attempt
to persuade either the court or the jury. [Citation.] To establish
misconduct, defendant need not show that the prosecutor acted in
bad faith . . . [citation] [but must] ‘show that, “[i]n the context of
the whole argument and the instructions” [citation], there was “a
reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.[”]’”
(People v. Cortez (2016) 63 Cal.4th 101, 130.)
A. Comments about absent witnesses
During closing arguments, Castro’s and Pineda’s defense
counsel noted the absence of witnesses to corroborate the victims’
testimony. Vigueras’s counsel argued that the prosecutor was
seeking guilty verdicts based completely on the testimony of
noncredible victims but not other witnesses from the bar. “What
about the people who were there when this thing allegedly went
down? Wouldn’t you want to hear from them? Isn’t that what
you’d want to know before you decide something is proved beyond
a reasonable doubt?” Counsel suggested that because the
prosecutor had the burden of proving guilt beyond a reasonable
doubt, the prosecution, not defendants, was responsible for
calling witnesses such as the bar manager, security guard, and
others. After counsel for Vigueras’s argument, Pineda’s attorney
reminded the jury, “[W]e’ve talked about additional witness[es],”
and told the jury, “Remember, Mr. Pineda does not have to
provide any additional witnesses.”
38
The prosecutor then rebutted without objection: “We’re
trying to figure out the truth of these charges, okay? Speculating
about what so and so might have said if they were in court
doesn’t get us any closer to that. And it’s not fair to our victims
to punish them because there aren’t other people that came to
court.” It is the next passage that Pineda challenges as
misconduct:
“[L]ook, you can’t speculate why people aren’t in
court. But how do you think that works? Do you
think people normally want to come to court to testify
against gang members? [¶] The manager—you want
the manager to come to court when Detective Arnold
goes into the bar and asks the manager what he saw,
do you think he’s gonna give a statement or cooperate
and come to court?”
Vigueras’s attorney objected to the last sentence without
stating grounds and Castro’s attorney stated, “It’s prosecutorial
misconduct.” The trial court sustained the objection, adding,
“Not the second one, the first one.” The prosecutor went on to
urge the jury not to speculate about any possible testimony from
absent witnesses.
After the prosecutor’s rebuttal and outside the presence of
the jury, counsel for Vigueras argued that the prosecutor had
implied that witnesses were not presented by the prosecution
because they were afraid to come to court when in fact they had
not even been interviewed or subpoenaed. Counsel suggested
that the only cure for the misapprehension created would be for
the prosecutor to stipulate that none of the people mentioned
were interviewed, subpoenaed, or asked to come to court, and
absent a stipulation, he would ask for a mistrial. Counsel for
Pineda and Delgado joined. The prosecutor declined to give a
39
stipulation, but was open to a curative instruction. He explained
that it was not his intention to imply that absent witnesses were
afraid to come to court but was instead directly responding to the
arguments of defense counsel.
The trial court denied the motion for mistrial but agreed
that the prosecutor’s argument may have created an inference
that the bar manager and other witnesses did not come forward
because they were afraid. The court gave the following
instruction upon the jury’s return to the courtroom:
“[D]uring the prosecution’s most recent argument,
there was reference made to other witnesses possibly
being afraid to come forward as a reason where you
didn’t hear from additional witnesses. [¶] And there
was simply no evidence of that whatsoever. And so it
would be inappropriate for you to consider that
inference, because there’s just no evidence of it. [¶]
The evidence is what the evidence is. And
speculation about things like that are wholly
inappropriate. So you are directed not to engage in
that kind of speculation and to not give credence to
that portion of the argument that suggested it might
be the case.”
Pineda did not suggest or request any additional language
for the admonition, and he does not claim on appeal that the
court’s admonition was error or that the court abused its
discretion in finding no misconduct or denying the motion for
mistrial.13 The trial court has “‘considerable discretion’ to
13 For the first time in his reply brief, Pineda asserts that the
court’s admonition should have informed the jury that the bar
manager was never even subpoenaed by the prosecution and
claims without citation to authority that because the prosecutor
would not so stipulate, the only other remedy was a mistrial.
40
determine whether . . . the error can be cured through
admonishment or instruction.” (People v. Perez (2018) 4 Cal.5th
421, 459.) Instead of challenging the trial court’s discretion,
Pineda argues that the prosecutor’s errors in closing argument
caused him prejudice, which requires reversal. Pineda’s appeal is
essentially taken from the alleged prosecutorial misconduct, not
the court’s rulings, which amounts to a suggestion that we should
review the misconduct issue de novo. As that is not the standard
of review and Pineda makes no effort to demonstrate that the
court’s ruling was arbitrary, capricious, or patently absurd, we
decline Pineda’s invitation.
We note the court instructed the jury that nothing the
attorneys say in closing arguments is evidence and that neither
side is required to call all witnesses who may have information
about the case. Pineda draws on a comparison to People v. Woods
(2006) 146 Cal.App.4th 106, 118, to support his assertion that the
court’s admonition and instruction did not cure the effect of the
alleged misconduct. In Woods, the appellate court held that an
instruction that argument is not evidence was ineffective because
the prosecutor’s arguments were rife with numerous serious
misstatements of the evidence, and the trial court overruled the
defendant’s objections to them. (Id. at pp. 116-118.) There is no
apt comparison between that case and this one. Here Pineda
objected to just one sentence in the prosecutor’s argument. The
objectionable inference was a brief part of a longer argument
Pineda did not request an admonition and has not challenged
here the discretionary decision to deny a mistrial. (See People v.
Mendoza (2007) 42 Cal.4th 686, 704.) We do not address
undeveloped claims or claims raised first in a reply brief. (People
v. Mickel (2016) 2 Cal.5th 181, 197.)
41
urging jurors not to speculate regarding absent witness
testimony, which Pineda does not challenge. Also, unlike the
Woods court, the trial court sustained the objection and read an
admonition. We presume that admonition cured any prejudice.
(See People v. Dickey (2005) 35 Cal.4th 884, 914.) As Pineda
points to no evidence to the contrary, we presume the jury
followed its instructions. (People v. Mendoza, supra, 42 Cal.4th
at p. 699.) We conclude that Pineda has failed to demonstrate
that the trial court abused its discretion in finding no misconduct
or in its implied finding that the curative instruction was
adequate to dissipate any prejudice.
B. Sympathy comment
Pineda also assigns as prosecutorial misconduct the
following statement in rebuttal: “You know, I feel bad for—we
should all feel bad for Jenny that she had to have this happen to
her and leave and not feel safe—” Pineda’s counsel objected on
the ground that that the comments called for sympathy. The
trial court overruled the objection, and counsel did not ask that
the jury be admonished to disregard the comment.
Pineda also challenges two statements the prosecution
made some time after the objection was overruled. The
prosecutor told the jury that “Jenny and Yenis had to change jobs
over what happened,” and later that “[t]hese women are not in a
good situation. They don’t make a lot of money. They don’t
speak English.” Defendants did not object to these last two
comments or request an admonition.
“[I]n order to preserve a claim of prosecutorial misconduct
for appeal, a defendant must make a timely and specific objection
to the alleged misconduct and request the jury be admonished to
disregard it.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1339.)
42
“A defendant will be excused from the necessity of either a timely
objection and/or a request for admonition if either would be
futile.” (People v. Peoples, supra, 62 Cal.4th at p. 797.) Where a
defendant offers no excuse or does not explain why an objection
or admonishment would have been futile, he has forfeited the
issue. (Ibid.)
Here, Pineda makes no attempt to explain the failure to
request an admonishment after objecting to the first comment or
his failure to object to the remaining comments. This issue has
been forfeited. Furthermore, he has not shown prejudice. The
trial court instructed the jury not to be influenced by sympathy,
prejudice or bias for or against alleged victims, including bias
based on gender, nationality, national origin, race or ethnicity, or
socioeconomic status. The court also instructed the jury that
nothing that the attorneys say in closing arguments is evidence.
We presume the jury followed its instructions. (People v.
Mendoza, supra, 42 Cal.4th at p. 699.)
IV. Delgado’s appeal14
A. Conflicting instructions
Delgado contends that the trial court prejudicially erred by
instructing the jury that extortion is a general intent crime.
Instructional error is a question of law, which we review de novo.
(People v. Guiuan (1998) 18 Cal.4th 558, 569.)
Extortion is a specific intent crime (People v. Bollaert
(2016) 248 Cal.App.4th 699, 726), as it “requires an unlawful use
of force or fear with the intent of achieving a further consequence,
14 We discuss Delgado’s claim of instructional error first, and
then the substantial evidence challenge to the extortion
conviction. The gang enhancement issues we resolve below in
part VI regarding Assembly Bill 333.
43
the inducement of another person to consent to the actor’s
obtaining the other’s property” (People v. Hesslink (1985) 167
Cal.App.3d 781, 789-790). The trial court read CALCRIM
No. 252 in relevant part as follows:
“The crimes . . . charged require proof of the union or
joint operation of act and wrongful intent. [¶] The
following crimes require general intent: Extortion, as
charged in count 6, and felon in possession of a
firearm, as charged in count 10. [¶] For you to find a
person guilty of [this crime], that person must not
only commit the prohibited act, but must do so with
wrongful intent. [¶] A person acts with wrongful
intent when he or she intentionally does a prohibited
act. However, it is not required that he or she intend
to break the law. The act required is explained in the
instruction for that crime . . . . [¶] The following
crimes . . . require a specific intent or mental state:
attempted extortion, as charged in count 1 . . . . [¶]
For you to find a person guilty of these crimes . . . ,
that person must not only intentionally commit the
prohibited act, but must do so with a specific intent
and mental state. The act and the specific intent and
mental state required are explained in the
instruction for that crime or allegation.”
The People agree that giving CALCRIM No. 252
erroneously listed the specific intent crime of extortion as a
general intent crime, but argue that the instructional error was
harmless because CALCRIM No. 1830 correctly instructed the
jury on the intent required for the crime of extortion.15
15 The trial court read CALCRIM No. 1830 the elements of
extortion, in relevant part as follows:
“[D]efendants Delgado and Pineda are charged in
count 6 with extortion by threat in violation of Penal
44
Relying on People v. Lee (1987) 43 Cal.3d 666, 669-675,
Delgado contends that giving contradictory instructions
regarding specific intent is similar to omitting the issue of
specific intent altogether. In Lee, the defendant was charged
with attempted murder. The trial court correctly instructed that
a required element was intent to kill, but the court also gave
instructions on implied malice, which does not require an intent
to kill. (Id. at pp. 669-670.) The appellate court held:
“[C]onflicting instructions, which appear to require a specific
intent to kill but which eliminate that requirement where
implied malice is found, are closely akin to instructions which
completely remove the intent issue from the jury’s consideration:
If the implied malice instructions are followed, the issue of intent
may indeed be removed from the case.” (Id. at p. 674.) In such a
case, conflicting instructions regarding intent may implicate due
process and require a harmless error analysis under the of
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), for
federal constitutional error. (Lee, supra, at pp. 668-669, 676.) An
error may be harmless under the Chapman test when “it appears
‘beyond a reasonable doubt that the error complained of did not
Code section 518. [¶] Extortion requires the People
to prove that: [¶] 1. The defendant threatened to
unlawfully injure another person; [¶] 2. When
making the threat, the defendant intended to use
that fear to obtain the other person’s consent to give
the defendant money or property; [¶] 3. As a result
of the threat, the other person consented to give the
defendant money or property; and [¶] 4. As a result
of the threat, the other person then gave the
defendant money or property.”
45
contribute to the verdict obtained.’” (Neder v. United States
(1999) 527 U.S. 1, 15, quoting Chapman, supra, at p. 24.)
We do not agree that the instructional error here was akin
to removing the intent element from the jury’s consideration.
The trial court instructed there must be a concurrence of act and
wrongful intent, explaining that “to find a person guilty of these
crimes, that person must not only commit the prohibited act, but
must do so with wrongful intent,” and that although the “person
acts with wrongful intent when he or she intentionally does a
prohibited act[,] . . . it is not required that he or she intend to
break the law.” That instruction is a generic instruction that
applies to both general criminal intent and specific intent. (See
People v. Zerillo (1950) 36 Cal.2d 222, 232; People v. Hewitt
(1961) 198 Cal.App.2d 247, 251.) Thus, the remainder of
CALCRIM No. 252, listing extortion as a general intent crime,
did not negate specific intent. However, as such an instruction
can cause confusion when specific intent is in issue, it should be
qualified by adequate instructions on the requirement of specific
intent. (People v. Zerillo, supra, at p. 232.) As the People point
out, that was done here. The court instructed the jury that the
act, intent and mental state required for a crime are explained in
the instruction for that crime. CALCRIM No. 1830 lists the
elements of extortion including the requirement that the
prosecution prove that the defendant intended to use fear to
obtain another person’s consent to give him money or property.
“‘We presume jurors “generally understand and follow
instructions.”’” (People v. Jackson (2014) 58 Cal.4th 724, 767.)
The trial court did not instruct the jury that specific intent
was not required or that intent could be implied and did not
expressly define general criminal intent. As the court’s definition
46
of general criminal intent was consistent with both general and
specific intent and the court explained the specific intent
requirement for extortion in CALCRIM No. 1830, we conclude
that any conflict was resolved by the instructions and was thus
not irreconcilable. (See Francis v. Franklin (1985) 471 U.S. 307,
322.)
At most, the erroneous listing of extortion as a general
intent crime created an ambiguity. “If a jury instruction is
ambiguous, we inquire whether there is a reasonable likelihood
that the jury misunderstood and misapplied the instruction.”
(People v. Smithey (1999) 20 Cal.4th 936, 963, citing Estelle v.
McGuire (1991) 502 U.S. 62, 72 & fn. 4; see People v. Rogers
(2006) 39 Cal.4th 826, 873.) “‘“[T]he correctness of jury
instructions is to be determined from the entire charge of the
court, not from a consideration of parts of an instruction or from a
particular instruction.”’” (People v. Smithey, supra, at p. 963.)
We discern no reasonable likelihood that the erroneous part of
CALCRIM No. 252 could have caused the jury to misunderstand
the intent required for extortion in light the court’s reference to
the intent requirement in the instruction regarding the crime
that adequately explained the intent required for extortion.
Moreover we discern no reasonable likelihood that the jury
understood the instructions “in a way that prevent[ed] the
consideration of constitutionally relevant evidence.” (Boyde v.
California (1990) 494 U.S. 370, 380; see People v. Jackson, supra,
58 Cal.4th at pp. 766-767.) However, even assuming the
constitutional error Delgado posits, we would find it harmless
under the Chapman test as “it appears ‘beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.’” (Neder v. United States, supra, 527 U.S. at
47
p. 15.) In making this determination in the case of an omitted
element, the erroneous instruction is properly found to be
harmless if we can conclude “beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have
been the same absent the error.” (Id. at p. 17.)
First, it was not Delgado’s defense that he did not harbor
the intent to use fear to obtain Yenis’s consent to give him money.
Instead it was the incident did not happen, that Yenis lied. His
counsel suggested that she had accused Delgado of asking for
money only after she had problems with Pineda and broke up
with him “in a bad way.” Counsel argued that text messages
showed that Yenis and Delgado were friends, and it made no
sense that a close or intimate friend “is just gonna say, hey, you
gotta pay taxes.” Counsel also argued that there was no
extortion and no threat because Delgado did not ask or demand
money and never said he was going to do anything to her in
relation to getting $100. Counsel concluded that Yenis “flat-out
lied.”
Second, the evidence was overwhelming that Delgado
demanded money with the intent to obtain Yenis’s compliance by
using her fear of losing her job. Yenis was employed as a
waitress at the Rodeo Room. Delgado was at the bar every day
until 2:00 a.m. to act, as he said, “something like security,”
although he was not an employee of the bar, and the bar actually
employed a security guard. Jenny testified that Delgado and
Pineda were always at the bar together when she was there and
they would leave together. Delgado did not interact with the
security guard or other bar staff. Delgado would just stand by
the door to the smoking patio, drinking water or cranberry juice,
48
looking around and sometimes going outside to talk to Pineda,
who sold drugs in the patio. Thus, Delgado was not an employee
of the bar, and his conduct implied that the security he provided
was intended to support illegal activities there.
Delgado had told Yenis he was a member of the Playboys
gang and had been in jail, and, because of that, she feared him.
When Delgado demanded that she pay her quota, he called it
“rent.”16 Delgado told Yenis that she had to pay rent because she
was there, and she understood he meant payment for the right to
work there, like a permit.
It is clear beyond a reasonable doubt the erroneous listing
of extortion as a general intent crime did not contribute to the
verdict obtained, and a rational jury would have found the
Delgado guilty of extortion without the error. The error was thus
harmless. (See Neder v. United States, supra, 527 U.S. at pp. 15,
17.)
B. Substantial evidence of extortion
Delgado contends that substantial evidence does not
support his conviction of extortion of Yenis (count 6).
As relevant here, “[e]xtortion is the obtaining of property or
other consideration from another, with . . . her consent,
. . . induced by a wrongful use of fear . . . .” (§ 518, subd. (a).)
“Fear, such as will constitute extortion, may be induced by a
threat of any of the following: [¶] 1. To do an unlawful injury to
the person or property of the individual threatened or of a third
16 Detective Arnold testified that he spent most of his 14
years as a police officer investigating gangs, including extortion
cases involving gang members. He had spoken to “ficheras” and
knew that “rent” and “taxing” were terms for protection money to
be paid by workers to allow them to continue working.
49
person.” (§ 519.) “The threat may be implied from all of the
circumstances: ‘“No precise or particular form of words is
necessary in order to constitute a threat under the circumstances.
Threats can be made by innuendo and the circumstances under
which the threat is uttered and the relations between [the
defendant] and the [target of the threats] may be taken into
consideration in making a determination of the question
involved.”’” (People v. Bollaert, supra, 248 Cal.App.4th at p. 725.)
“Property” must be given a sufficiently broad interpretation
to advance the statutory purpose “by recognizing there are many
real-world vulnerabilities an extortionist might exploit to induce
a victim—including the victim’s employment” such as “by
threatening to end the victim’s means of livelihood.” (Galeotti v.
International Union of Operating Engineers Local No. 3 (2020) 48
Cal.App.5th 850, 859.)
Delgado suggests that there was no attempt to commit
extortion because there was no express threat.17 He asserts that
Yenis testified that on March 6, 2018, Delgado “simply asked her
for money as a ‘rent’ payment for working at the Rodeo Room”
and that he “did not say he was going to do anything to her when
he asked for the money.” Delgado told Yenis that she had to give
him some money because she was there and that everyone paid a
17 Incorrectly paraphrasing a passage in People v. Ochoa
(2016) 2 Cal.App.5th 1227, Delgado argues that “if there is no
attempt to compel the victim to consent to give up money or
property, there can be no extortion.” The issue in Ochoa was
attempted extortion. The court actually stated: “[I]f there is no
attempt to compel the victim to consent to give up money or
property, there can be no attempted extortion.” (Id. at p. 1231.)
Delgado does not challenge his attempted extortion of Jenny
(count 1).
50
quota. She understood his use of the word “rent” to mean money
for the right to work there, like a permit. Delgado’s word implied
a threat that she would not be permitted to work unless she paid
him, which she did out of fear. As we explained in part IV.A.
above, the evidence was overwhelming that Delgado demanded
money with the intent to obtain Yenis’s compliance by using her
fear of losing employment.
Delgado also argues that the circumstances did not
demonstrate an implied threat because there was evidence that
during the three days before and including March 6, but before he
asked for “rent,” Yenis sent friendly text messages to Delgado
that were sometimes flirtatious or affectionate. Delgado infers
from the texts that Yenis was not afraid of him. Delgado’s
argument appears to be that if Yenis was not afraid of Delgado
before he implied he would interfere with her livelihood if she did
not pay, she must not have been afraid afterward, and if she was
not afraid after that, it must be inferred that he did not threaten
her livelihood. A conclusion such as Delgado’s is no more than
speculation and conjecture. (See People v. Massie (2006) 142
Cal.App.4th 365, 374.)
In any event, there is no need here to infer fear or the
absence of fear. Yenis testified directly that she was afraid to say
no to Delgado when he asked for rent. Yenis also testified that
she did not have Delgado’s phone number and had not sent him a
text message. Instead, she identified multiple texts on her cell
phone that she had sent to Pineda during the few days before
March 6. We do not reweigh the evidence or resolve conflicts
within the evidence. The testimony of a single witness is
sufficient to support a conviction, so long as the testimony is not
51
physically impossible or inherently improbable. (People v.
Mayberry, supra, 15 Cal.3d at p. 150.)
Delgado has made no attempt to show that Yenis’s
testimony is impossible or inherently improbable. Instead he
cites exhibit H (68 unpaginated pages of screen shots of text
messages and their translations), which was admitted into
evidence with the stipulation that they were taken from Yenis’s
cell phone, the phone Pineda took from her when he and Delgado
came to her home hours after he demanded rent. The phone was
not turned over to investigators, and Detective Arnold testified
that he first learned of its existence in court about a week before
his testimony. He had not been able to download the contents for
analysis. Given these circumstances, the jury was entitled to find
Yenis’s testimony more credible than exhibit H.
V. Fines and fees
All defendants contend that the trial court should have
determined their ability to pay the amounts of fines and fees
assessed at sentencing pursuant to section 1202.4, subdivision
(b), section 1465.8, and Government Code section 70373.18 None
of the defendants objected to the procedure or requested a
hearing on their ability to pay at sentencing. Now all defendants
claim that they had ineffective assistance of counsel on this issue.
Defendants rely primarily on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), where Division Seven of this court
held that principles of due process and equal protection required
reading into Government Code section 70373 and Penal Code
section 1465.8 a procedure for obtaining a waiver of the
assessments on the ground of inability to pay. (Dueñas, supra, at
18 Each defendant’s total obligation was under $600.
52
pp. 1164-1167.) The court also held that due process required a
consideration of the defendant’s inability to pay even when only
the minimum fine is imposed. (Id. at p. 1172 & fn. 10.) The
Dueñas court relied on United States Supreme Court and
California Supreme Court decisions, which have held that
constitutional equal protection and due process guarantees
prohibit states from denying indigent criminal defendants access
to the courts or punishing them solely on the basis of their
poverty. (Id. at pp. 1166-1168, citing Bearden v. Georgia (1983)
461 U.S. 660, Tate v. Short (1971) 401 U.S. 395, Griffin v. Illinois
(1956) 351 U.S. 12 & In re Antazo (1970) 3 Cal.3d 100.) From
these two concepts the Dueñas court explained in a subsequent
opinion that its holding created the “newly announced
constitutional principle” that “it was unconstitutional to impose
fines, fees or assessments without a [prior] determination of the
defendant’s ability to pay.” (People v. Castellano (2019) 33
Cal.App.5th 485, 489.)19
In general, a failure to object to fines, fees, and
assessments in the trial court based on an inability to pay,
forfeits the right to challenge them on appeal. (See People v.
Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46
Cal.4th 680, 729.) More to the point, the failure to object or to
request a determination of ability to pay forfeits a Dueñas issue
on appeal. (People v. Greeley (2021) 70 Cal.App.5th 609, 624.)
19 Currently pending before the California Supreme Court is
People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844, to consider whether a court must consider a
defendant’s ability to pay before imposing or executing fines, fees,
and assessments. If so, who bears the burden of proof regarding
a defendant’s inability to pay?
53
The Sixth Amendment right to assistance of counsel
includes the right to the effective assistance of counsel.
(Strickland v. Washington (1984) 466 U.S. 668, 686-687; see Cal.
Const., art. I, § 15.) To make out a claim that counsel rendered
constitutionally ineffective assistance, one must show counsel’s
performance fell below an objective standard of reasonableness
under prevailing professional norms. Second, resulting prejudice
must be shown. A defendant must show the record discloses
counsel had no rational tactical purpose for the challenged act or
omission, that counsel was asked for a reason and failed to
provide one, or there could be no satisfactory explanation.
(People v. Hoyt (2020) 8 Cal.5th 892, 958.)
None of the defendants asserts their counsel was asked
their reasons for not objecting or requesting a hearing. Castro
argues there can be no satisfactory explanation for counsel’s
failure to object because an objection would only have helped her.
Vigueras does not argue that there can be no satisfactory
explanation. Delgado argues there can be no satisfactory
explanation because the probation report notes that he was
unemployed. Pineda argues there can be no satisfactory
explanation because there is no reasonable explanation for not
objecting to the imposition of fines and fees. Defendants’
conclusory arguments fail to show there could not be a
satisfactory explanation. The People aptly note there is nothing
in the record that reveals counsel’s reasons and that a possible
reasonable explanation is counsel might have known their clients’
financial conditions, and the evidence would not show an
inability to pay the fines and fees. As defendants have failed to
both preserve this issue for review and to show that it can be
54
resolved on the trial record, their ineffective assistance of counsel
claims fail.
Regardless, even if defendants had not forfeited the Dueñas
claim, we would reject it as meritless. We have previously
disagreed with Dueñas’s analysis and have concluded it was
wrongly decided. In particular, we disagree with Dueñas that
due process demands an ability to pay finding prior to the
imposition of fines or fees. (People v. Hicks (2019) 40 Cal.App.5th
320, 326-329, review granted Nov. 26, 2019, S258946.) In order
to demonstrate a due process violation, a defendant must show
that the “‘imposition of these financial obligations . . . denied
defendant access to the courts’ [or] ‘. . . result[ed] in defendant’s
incarceration.’” (People v. Petri (2020) 45 Cal.App.5th 82, 92,
quoting People v. Hicks, supra, at p. 329; see People v. Caceres
(2019) 39 Cal.App.5th 917, 922-923, 928-929.) As defendants do
not claim that they have been denied access to the courts or are
presently faced with incarceration or other impending
consequence due to a failure to pay amounts due, their due
process claims fail.20
20 Pineda also suggests that he has a claim under the Eighth
Amendment, citing Timbs v. Indiana (2019) ___ U.S. ___, [139
S.Ct. 682], in which the United States Supreme Court declined to
overrule precedent holding that the the Fourteenth Amendment
incorporates the excessive fines clause and applies to civil in rem
forfeitures that are at least partially punitive. (Id. at p. ___ [139
S.Ct. at pp. 689-690].) Pineda did not raise this issue below and
makes no effort to show how that case applies here. We therefore
find this claim is also forfeited and without merit.
55
VI. Assembly Bill 333
A. Section 186.22
Gang enhancements were imposed pursuant to section
186.22, former subdivision (b) as follows: count 1, as to Vigueras;
counts 1, 2, 4 and 5, as to Castro; and counts 1, 2, 6 and 7, as to
Delgado. Effective January 1, 2022, Assembly Bill 333 amended
section 186.22. (Stats. 2021, ch. 699, § 3.) All three defendants
seek reversal of the enhancements due to the amended statute.
The People concede the amendments apply retroactively to
defendants. (See People v. Lopez (2021) 73 Cal.App.5th 327, 343.)
Under the rule articulated in In re Estrada (1965) 63 Cal.2d 740,
744-746 (Estrada), “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.”
(Lopez, at pp. 344-345.) The People further concede that remand
is required due to the insufficiency of the evidence supporting the
gang enhancements under the terms of the amended section
186.22.
As amended, section 186.22, subdivision (b)(1) now applies
to a conviction of “a felony committed for the benefit of, at the
direction of, or in association with a criminal street gang,”
instead of “any criminal street gang” as the former statute
provided. Section 186.22, subdivision (f) has redefined “criminal
street gang” as “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
56
gang activity.” (Italics added.) Thus the prosecution must now
prove collective, not merely individual, engagement in a pattern
of criminal gang activity.
A “pattern of criminal gang activity” now means the
commission, attempted commission, or conviction of two or more
offenses enumerated in section 186.22, subdivision (e)(1),
“provided at least one of these offenses occurred after the
effective date of this chapter, and the last of those offenses
occurred within three years of the prior offense and within three
years of the date the current offense is alleged to have been
committed, the offenses were committed on separate occasions or
by two or more members, the offenses commonly benefited a
criminal street gang, and the common benefit of the offense is
more than reputational.” “Examples of a common benefit that
are more than reputational may include, but are not limited to,
financial gain or motivation, retaliation, targeting a perceived or
actual gang rival, or intimidation or silencing of a potential
current or previous witness or informant.” (§ 186.22, subd. (g).)
“The currently charged offense shall not be used to establish the
pattern of criminal gang activity.” (§ 186.22, subd. (e)(2).)
Evidence of two offenses committed by Playboys gang
members was presented at defendants’ trial to establish a pattern
of criminal gang activity. These predicate offenses were
enumerated in section 186.22, subdivision (e)(1)(A) (assault by
means of force likely to produce great bodily injury) and (R)
(attempted extortion). Both crimes were of the kind that were
among the Playboys gang’s primary activities, were committed
within three years of each other, and were committed within
three years of the currently charged offense. However, no
evidence was introduced at trial to establish that the predicate
57
crimes were committed collectively, that the predicate offenses
commonly benefitted a criminal street gang, or that the benefit
was more than reputational. Indeed, as the People note, the jury
was told that the predicate “crimes themselves don’t have
necessarily to be gang related.” Further, the prosecutor told the
jury that if it found that three defendants were members of the
gang and that they committed crimes, those findings could factor
into the jury’s finding a pattern of activity to establish that the
Playboys gang was a criminal street gang.
In sum, the evidence was insufficient under section 186.22
as amended by Assembly Bill 333 to establish a pattern of
criminal gang activity. The gang enhancements must therefore
be vacated, and the matter will be remanded to give the
prosecution the opportunity to prove the allegations under the
amendments to section 186.22. (See People v. Lopez, supra, 73
Cal.App.5th at p. 346.)
B. Retroactivity of section 1109
Assembly Bill 333 also enacted section 1109, which allows
the section 186.22, subdivision (b) or (d) gang enhancement to be
tried separately from guilt. (§ 1109, subd. (a).) Vigueras and
Castro contend section 1109 should be applied retroactively to
afford them a new trial, bifurcated from the gang enhancement
should the People choose to retry the enhancement.
There is no language contained in section 1109 declaring it
to be retroactive. “No part of the Penal Code ‘is retroactive,
unless expressly so declared.’ (§ 3.) ‘[T]he language of section 3
erects a strong presumption of prospective operation, codifying
the principle that, “in the absence of an express retroactivity
provision, a statute will not be applied retroactively unless it is
very clear from extrinsic sources that the [lawmakers] . . . must
58
have intended a retroactive application.” [Citations.]
Accordingly, “‘a statute that is ambiguous with respect to
retroactive application is construed . . . to be unambiguously
prospective.’”’” (People v. Buycks, supra, 5 Cal.5th at p. 880.)
However, a “limited rule of retroactivity” (the Estrada rule)
applies to newly enacted criminal statutes that are intended to
ameliorate criminal punishment or possible criminal punishment
for certain crimes or a class of offenders. (Buycks, at p. 881,
citing Estrada, supra, 63 Cal.2d at p. 745; Buycks, at p. 883, fn. 8,
citing People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308
(Lara).)
In supplemental briefs Vigueras and Castro contend section
1109 applies retroactively to afford them a new trial on the issue
of guilt, arguing that the California Supreme Court has extended
the Estrada rule to apply not only to statutory amendments that
reduce punishment but to all amendments that might provide
any “ameliorative benefit” to criminal defendants.
To support this contention, Castro relies on People v.
Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022,
S274100 (Burgos), in which the majority held “the California
Supreme Court has clarified the scope of the Estrada rule,
expressly holding that a new statute may apply retroactively
even if it concerns purely procedural changes that do not directly
reduce the punishment for a crime.” (Id. at p. 565.) The court
found an indirect relationship to punishment in section 1109, in
that without the prejudicial impact of gang evidence, some
defendants might be acquitted of the underlying offense, thereby
eliminating any possible punishment. (Burgos, at p. 567.) The
court pointed to People v. Wright (2006) 40 Cal.4th 81, which
applied Estrada to a new law that created an affirmative defense,
59
and to Lara, supra, 4 Cal.5th at pages 307-308, in which the
California Supreme Court held that Proposition 57 (as approved
by voters, Gen. Elec. (Nov. 8, 2016)) applied retroactively,
because it required criminal cases against minors to be filed first
in juvenile court with a greater possibility of more lenient
treatment than in adult court. The Burgos court also relied on
People v. Frahs (2020) 9 Cal.5th 618, 629 (Frahs), where the
statute at issue provided the possibility of diversion in lieu of
punishment. (Burgos, supra, at p. 565.)
None of the three cases cited in Burgos held that absent
evidence of legislative intent, retroactivity is extended to any
possible benefit that might be considered ameliorative of some
aspect of criminal procedure unrelated to punishment or an
affirmative defense. As Justice Elia pointed out in his dissent in
Burgos, neither Estrada, Frahs, Lara, nor “any other [authority]
has ever applied the Estrada rule to a statute, like section 1109,
that does not alter the punishment for an offense, make a lesser
punishment possible, or change the elements of an offense or a
defense. Section 1109, unlike all of the amendatory statutes to
which the Estrada rule has been applied, is a prophylactic rule of
criminal procedure expressly intended to employ new procedures
aimed at enhancing the fairness of future criminal proceedings.”
(Burgos, supra, 77 Cal.App.5th at p. 572 (dis. opn. of Elia, J.),
review granted.)
The People cite People v. Perez (2022) 78 Cal.App.5th 192,
207, review granted August 17, 2022, S275090, which pointed out
that “[u]nlike the new law in Lara, [supra, 4 Cal.5th 299], which
was a new procedural law that had the effect of potentially
reducing the punishment for a class of defendants, . . . section
1109 is a procedural statute that ensures a jury will not be
60
prejudiced by the introduction of evidence to support gang
enhancement allegations—it does not reduce the punishment
imposed.” We agree with the Perez court that “[a]lthough section
1109 is designed to minimize the prejudicial impact of gang
evidence, it does not reduce the punishment or narrow the scope
of the application of the gang statute [and thus] does not apply
retroactively to a trial that has already occurred.” (Ibid.)
Moreover, even if section 1109 were retroactive, we would
not order a new trial unless it is reasonably probable that a
bifurcated trial would have produced a more favorable result.
(People v. E.H. (2022) 75 Cal.App.5th 467, 480.) We conclude
that it is not reasonably probable, as much of the gang evidence
would be admissible and highly probative in any retrial. “In
cases not involving the gang enhancement, . . . evidence of gang
membership is potentially prejudicial and should not be admitted
if its probative value is minimal.” (People v. Hernandez (2004) 33
Cal.4th 1040, 1049.) However, “[t]he People are generally
entitled to introduce evidence of a defendant’s gang affiliation
and activity if it is relevant to the charged offense.” (People v.
Chhoun (2021) 11 Cal.5th 1, 31.) Gang evidence, “‘including
evidence of the gang’s territory, membership, signs, symbols,
beliefs and practices, criminal enterprises, rivalries, and the
like[,] can help prove identity, motive, modus operandi, specific
intent, means of applying force or fear, or other issues pertinent
to guilt of the charged crime.’” (Ibid., quoting People v.
Hernandez, supra, at p. 1049.) Here, force or fear is an element
of several of the charges against defendants. To prove extortion
the prosecution would be required to present evidence that
defendant wrongfully used fear. (§ 518, subd. (a).) To prove
criminal threat, there must be evidence that the threat caused
61
the victim to be in sustained fear. (§ 422, subd. (a).) Proof of
robbery must include evidence that the crime was accomplished
by means of force or fear. (§ 211.)
In addition, “[e]vidence that a witness is afraid to testify or
fears retaliation for testifying is relevant to the credibility of that
witness and . . . [a]n explanation of the basis for the witness’s
fear is likewise relevant to her credibility . . . .” (People v.
Burgener (2003) 29 Cal.4th 833, 869, citations omitted.) The
credibility of Jenny and Yenis was under attack at trial. During
closing arguments, Castro’s and Pineda’s counsel noted the
absence of witnesses corroborating the victims’ testimony.
Vigueras’s counsel argued that the prosecutor was seeking guilty
verdicts based completely on the testimony of victims who were
not credible, even though there were other witnesses in the bar.
Pineda’s counsel argued: “[W]hen you look at what’s really going
on in this case, and who is making up stories, and Yenis is the
one that’ s doing it”; and, “[T]hese are not all of them. But in
going through the evidence, I put ‘the changes, the stories, the
lies, the impeachment all by Yenis.’”
Gang evidence was highly probative of the victims’ fear and
the means and methods used by defendants to instill fear.
Delgado told Jenny that his tattoos represented the Playboys
gang, which caused Jenny some fear. It can reasonably be
inferred that Jenny knew Vigueras and Castro were gang
members, as both defendants have Playboys-related tattoos and
were acquainted with Delgado. In addition, when Castro
demanded money from Jenny, she told Jenny that she and her
group were from the Playboys gang, saying, “You know who we
are,” and that Castro was going to kill Jenny if Jenny did not give
money. Castro and Vigueras then hit Jenny, followed her inside,
62
where Castro again threatened her and took her phone. Jenny
was so fearful they could come back and hurt her or her children,
that she moved.
Delgado told Yenis that everyone there was paying a quota,
and she had to give him money for “rent.” She understood that
he meant that she was required to pay him to work at the Rodeo
Room because the Playboys gang was in charge of the place.
Yenis also knew that Pineda and Delgado were members of the
gang. She was afraid not to pay because she knew that “[t]hey
were the ones bossing around there.”
We conclude that in a retrial without the gang
enhancements, gang evidence would continue to be compelling
proof of the fear experienced by Jenny and Yenis, their
credibility, as well as defendants’ motives, methods, and means of
applying force or fear. It is thus not reasonably probable that a
bifurcated trial would yield a better result for defendants and
remand for retrial on the charges is unwarranted. (See People v.
E.H., supra, 75 Cal.App.5th at p. 480.)
DISPOSITION
Castro’s judgment is amended to add an additional seven
days of presentence custody credit, consisting of six additional
actual days and one additional day of conduct credit, for a total of
703 days. The trial court is directed to prepare an amended
abstract of judgment reflecting the modified presentence custody
credit and to forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation.
The true findings as to the enhancement allegations under
section 186.22, former subdivision (b) are reversed, and the
sentences of Vigueras, Castro, and Delgado are vacated to permit
63
retrial of the gang-related enhancement allegations should the
People so elect and to permit the court to comply with section
1170, subdivision (b). If the People prove the gang-related
allegations pursuant to the requirements of section 186.22, the
sentences of Castro and Delgado shall be reinstated, and the
sentence of Vigueras will be reinstated if the court also complies
with section 1170, subdivision (b). Otherwise, the court is
directed to resentence Castro, Vigueras, and Delgado in
accordance with the views expressed in this opinion.
In all other respects, the judgments are affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
64