People v. Batres CA2/1 ( 2023 )

Filed 4/3/23 P. v. Batres CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B313908
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA139632)
v.
ANDREW BATRES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Roberta L. Davis and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Andrew Batres appeals from his convictions for the gang-
related second degree murder of Stephen Johnson and possession
of a firearm by a felon. Batres was tried along with codefendants
Cedrick Devontae Parker and Deandray Bonner, who were
charged not only with the Johnson murder, but also with
multiple other murders, attempted murders, and other violent
crimes including robbery, carjacking, and assault with a firearm,
none of which involved Batres.
On appeal, Batres argues the trial court erred by trying
him jointly with his codefendants. Batres contends the extensive
evidence of Parker’s and Bonner’s violent acts and gang
affiliation was inflammatory and prejudicial to him, and led the
jury to find him guilty by association.
Batres further argues substantive amendments to the
criminal street gang statute enacted after his conviction are
retroactive, and require reversal of the gang findings against him
as well as the firearm enhancement that relies on those gang
findings. Batres asserts the new requirement under Penal Code
section 1109 that gang enhancements be tried separately from
the underlying offense similarly is retroactive, and entitles him to
a new trial on the murder charge as well.
Finally, Batres argues other amendments to the Penal
Code, as well as recent Supreme Court authority require reversal
and resentencing on the firearm enhancement and the firearm
possession count.
We find no error or unfairness in the trial court’s decision
to try Batres jointly with Parker and Bonner. The prosecution’s
theory was that the Johnson murder was a planned, gang-
motivated murder in which Batres was a willing and knowing
participant. Evidence of Parker’s and Bonner’s other gang-
2
motivated crimes around the same time tended to show the
murder was part of a pattern of planned, gang-motivated
violence, and not a spontaneous and unplanned event of which
Batres might have been ignorant. Evidence of Parker’s and
Bonner’s other crimes also was relevant because ballistic
evidence from the Johnson murder matched ballistic evidence at
the scenes of those other crimes.
The Attorney General concedes, and we agree, that the
gang findings and firearm enhancement must be reversed in light
of amendments to the Penal Code, which have changed the
elements of the gang enhancement. We hold, however, that any
failure to bifurcate under section 1109 was harmless, given that
much of the gang evidence would have been admissible to prove
the murder charge, and the evidence against Batres apart from
the gang evidence was strong.
Finally, we agree with Batres that changes to the Penal
Code affecting the trial court’s discretion in selecting the lower,
middle, or upper term for sentencing require resentencing on the
firearm possession count.
Accordingly, we affirm in part, reverse in part, and remand
for retrial on the gang and firearm enhancements and for
resentencing.
BACKGROUND
1. Charges
On August 21, 2018, the People filed a 27-count
information based on offenses committed between January 17,
2016, and March 22, 2016. Count 10 charged Batres, Parker, and
Bonner with the murder of Steven Johnson on or about March 21,
3
2016 (Pen. Code,1 § 187, subd. (a)). The information alleged
firearm enhancements against all defendants based both on
personal discharge of a firearm and a principal’s discharge of a
firearm (§ 12022.53, subds. (c)–(e)). The information further
alleged the murder was committed for the benefit of, at the
direction of, and in association with a criminal street gang
(§ 186.22, subd. (b)(1)(C)).2 Count 27 of the information charged
Batres with one count of possession of a firearm by a felon
(§ 29800, subd. (a)(1)).
The remaining counts in the information did not involve
Batres. Parker and Bonner were jointly charged with conspiracy
to commit murder (§ 182, subd. (a)(1)), carjacking (§ 215,
subd. (a)), second degree robbery (§ 211), two counts of attempted
murder (§§ 664/187, subd. (a)), driving or taking a vehicle without
consent (Veh. Code, § 10851, subd. (a)); and assault with a
firearm (§ 245, subd. (a)(2)).3
The information charged Parker individually with an
additional count of murder (§ 187, subd. (a)), shooting at an
occupied vehicle (§ 246), and five counts of possession of a firearm
by a gang member (§ 25850, subd. (a)).
1 Unspecified statutory citations are to the Penal Code.
2 As to the Johnson murder, the information alleged
special circumstances based on multiple murders and gang-
related murder (§ 190.2, subds. (a)(3), (a)(22)), but these
allegations were not presented to Batres’s jury.
3 Deandre Clayton was charged as an additional defendant
on the conspiracy and two attempted murder counts. Clayton
was not tried with Batres, Parker, and Bonner, and is not party
to this appeal.
4
The information charged Bonner individually with robbery
(§ 211), assault with a firearm (§ 245, subd. (a)(2)), burglary
(§ 459), an additional count of murder (§ 187, subd. (a)),
attempted murder (§§ 664/187, subd. (a)), shooting at an occupied
vehicle (§ 246) (count 25), and four counts of possession of a
firearm by a felon (§ 29800, subd. (a)(1)).
As with the Johnson murder, for these additional crimes
the information alleged criminal street gang enhancements on all
counts except the firearm possession counts, and various firearm
enhancements on all counts except the firearm possession counts
and the count for driving or taking a vehicle without consent.
The information further alleged special circumstances under
section 190.2, subdivisions (a)(3), (21), and (22) on the murders
for which Parker and Bonner were individually charged.
2. Structure of trial
The prosecution sought to try Batres jointly with Parker
and Bonner, and successfully moved to consolidate the cases.
The prosecution requested, however, that Batres have a separate
jury from Parker and Bonner, because the prosecution intended
to introduce statements Batres made to an undercover agent, and
those statements would not be admissible against Parker and
Bonner.
Batres moved to sever his trial from that of Parker and
Bonner, arguing that in a joint trial, Batres’s jury would hear
“voluminous evidence” concerning Parker’s and Bonner’s other
gang-related offenses, in which Batres was uninvolved. Batres
argued this created a risk that his jury would find him guilty
merely based on his association with Parker and Bonner.
The prosecution argued evidence of Parker’s and Bonner’s
other charged offenses was cross-admissible in Batres’s case,
5
including ballistic evidence linking the firearms used in the
Johnson murder to other crimes perpetrated by Parker and
Bonner, and evidence of Parker’s and Bonner’s gang affiliation to
show motive for the Johnson murder and to show it was
committed for the benefit of a criminal street gang.
The trial court stated the trial would proceed with two
juries, and the court would evaluate as necessary whether certain
evidence pertinent to Parker and Bonner was inadmissible
against Batres. On appeal, the parties do not dispute that
Batres’s jury heard all, or nearly all evidence presented at trial,
including the evidence pertaining to the crimes in which Batres
was not involved.
3. Codefendants’ offenses prior to Johnson murder
We briefly summarize the circumstances underlying the
crimes of which Parker and Bonner, but not Batres, were
charged, evidence of which the prosecution presented at trial.
Parker and Bonner were members of the Denver Lane
Bloods gang. On January 17, 2016, Parker and Bonner stole a
vehicle from Edward F. at gunpoint. Approximately 35 minutes
later, Parker and Bonner used Edward F.’s vehicle to perpetrate
a drive-by shooting at several persons, wounding Elliot W. The
shooting took place in the territory of the Hoover Criminals, a
rival gang to the Denver Lane Bloods.
On February 21, 2016, Bonner fired multiple shots from his
vehicle at a vehicle occupied by Nathaniel Ancar and
Lateshia W., killing Ancar.
On March 18, 2016, Parker fired a gun from his vehicle,
killing Kaelen Warren, who was riding past on a minibike.
On March 20, 2016, Parker and Bonner approached several
individuals standing near a liquor store and displayed their
6
handguns. One of the individuals shot at Parker and Bonner,
who returned fire. The area was claimed by Crip gangs, rivals to
the Denver Lane Bloods.
On March 21, 2016, around 1 p.m., Bonner entered the
motel room of Deon E. and robbed him at gunpoint.
4. The Johnson murder
a. Shooting and arrests
At approximately 11:20 p.m. on March 21, 2016, a witness,
who was inside her home near the intersection of 88th Street and
Baring Cross Street, heard gunshots. Looking out her window,
she saw someone lying on the ground, and a young Black man
with a gun run towards a Mercedes and climb into the back seat.
The witness observed that the driver also was a Black male. The
Mercedes drove off.
The man lying on the ground was Steven Johnson. He had
been shot five times and killed. Police found numerous spent
ammunition cartridges at the scene in .380 and .40 caliber.
At approximately 12:07 a.m. on March 22, 2016—less than
an hour after Johnson was killed—a deputy sheriff in his patrol
car observed a vehicle make a left turn without signaling.
Intending to initiate a traffic stop, the deputy followed the vehicle
into the parking lot of an apartment complex on San Pedro
Street. The apartment complex was approximately a 10-minute
drive from 88th Street and Baring Cross Street.
Once in the parking lot, the deputy saw another vehicle, a
silver Mercedes, backing out of a parking stall. As the deputy got
out of his patrol car, three Black males got out of the Mercedes
and ran away, leaving the doors open.
7
Less than a minute later, the driver of the Mercedes got out
and ran over to the area where the apartment complex’s trash
receptacles were. The deputy followed, and saw the driver, later
identified by the deputy as Parker, place a black object on the
ground. The deputy and his partner detained Parker, and the
deputy located a pistol at the spot where he had seen Parker drop
the black object. The pistol was loaded with .40 caliber rounds.
Having detained Parker, the deputy and his partner
searched the Mercedes. They found a plastic bag with five live
.380 caliber rounds, and an expended .380 caliber casing lying on
top of the windshield wiper.
As the deputy and his partner were searching the
Mercedes, a man the deputy later identified as Batres
approached them from the east side of the parking lot. Batres
appeared nervous, was breathing fast, and was sweating a bit.
He told the deputy the Mercedes was his, but two individuals had
stolen it from him at gunpoint 45 minutes earlier, a block or two
north from where they were.
The deputy showed Parker to Batres and asked if he could
identify him. Batres said he did not know Parker.
The deputy determined the Mercedes belonged to a
Rodolfo S. Rodolfo S., a mechanic, confirmed he had loaned the
Mercedes to Batres while he repaired Batres’s car. The car was
then released back to Batres.
The next day, police encountered Bonner, who fled but was
caught and arrested with the assistance of a K-9 unit. Police
found a loaded .40 caliber handgun in Bonner’s vehicle.
b. Batres’s statements to undercover agent
Months later, in August 2016, Batres was placed in custody
in connection with a murder for which he ultimately was not
8
charged. The police conducted a “Perkins” operation4 in which
they placed an agent posing as a fellow inmate into a cell with
Batres and recorded their conversation. Batres discussed both
the uncharged murder and the Johnson murder with the Perkins
agent; the parties do not dispute that in that conversation Batres
referred to the uncharged murder as “the first one” and the
Johnson murder as “the second one.” Throughout the
conversation, Batres referred to an individual nicknamed
“Braze,” and another individual nicknamed “Kilo.” The
prosecution established, and Batres on appeal does not dispute,
that these nicknames referred to Bonner and Parker,
respectively. We do not purport to summarize the entire
conversation, but highlight relevant portions.
Batres told the agent the police had told him they had
found his DNA at both crime scenes. Batres said, “For the first
one, I did not touch no gun, but for the second one [i.e., the
Johnson murder], I know I did. . . . [B]ut I know I didn’t bust it.”
As to the “[s]econd one,” Batres said, “Braze did the whole thing.”
Batres stated he did not know anything about the first murder,
“[b]ut I know something about the second, for sure, for sure.”
The agent asked if Batres might have left his fingerprints
on any shell casings, and Batres answered, “I didn’t have no
gloves or nothing.” The agent asked if Batres thought Bonner
told the police that Batres was the shooter, and Batres said, “I
don’t know. [unintelligible] I don’t ‘cause I—It’s like, it’s like I
know what I did but I didn’t finish it though. You feel me? The
. . . on bloods, like the . . . hop out of the car and . . . just did the
4 Illinois v. Perkins (1990) 496 U.S. 292.
9
thing, did the whole thing.” Later, “But I already know—but I
know what I did.”
The agent asked if on “the second one,” in addition to
Bonner, “Kilo” [i.e., Parker] also was there. Batres said, “Kilo
was with me too.” Batres again said that Bonner “finished the
whole fool off . . . . He told me. . . . Denver Lane Blood, boom,
boom, boom.” Asked what guns they had, Batres said, “The
second one, they had . . . a .40.”
The agent asked what car the police had told Batres was
involved in the Johnson shooting, and he said, “A Benz truck.”
Asked if it was his, he said, “Yeah, yeah, it was, it was my car. I
got robbed. I’m saying I got robbed.”5
The agent suggested Parker and Bonner must be talking to
the police for the police to know so much. Batres said,
“Somebody’s telling.” The agent asked if there might be other
witnesses, asking, “When ya’ll got through popp’n, did you see
anybody outside?” Batres answered, “Hell no, it wasn’t—I feel
there wasn’t nobody outside.”
The agent asked how Parker and Bonner were acting when
they drove away after the shooting. Batres said, “[T]hey did some
crazy shit, man. They did some, crazy shit. Kilo froze up, once he
see the police coming into the uh, to the apartments. Then, it’s
crazy ‘cause, he still . . . had a chance to run . . . .” Batres
explained that Parker got caught with a .40 caliber pistol, and
the police found the gun Bonner used “probably the next night.”
5 Given Batres’s unequivocal statements to the agent that
he was present with Bonner and Parker at the Johnson shooting,
his statement that the car was stolen from him appears to be
Batres telling the agent his explanation to the police, rather than
actually claiming to have had the Mercedes stolen from him.
10
The agent suggested Batres should have “popped” Parker and
Bonner before they snitched on him, and Batres said, “I should
have, I should have, and should have popped Kilo for just
freezing up . . . . What the fuck? You got a burner.”
Batres said he never touched the .40 caliber pistol, and
did not do any shooting. “I didn’t do nothing. [unintelligible] I
feel like I’m being framed right now.” The agent said the police
probably wanted the “trigger man,” and suggested Batres tell
them Parker and Bonner did the shooting. Batres said, “That’s
still conspiracy [to commit murder], though.” The agent said it
wouldn’t be conspiracy if Batres was unaware of what Parker and
Bonner planned to do. Batres said the police would ask, “[W]hy
was y’all going on that side? What was the purpose of you guys
even going around that area?”
The agent told Batres it was a mistake to tell the police he
had been carjacked, because someone had identified Batres as
being at the Johnson shooting. Batres said, “But I know, but I
know for a fact I wasn’t over there . . . .” The agent sought to
clarify that Batres was talking about the first, uncharged murder
not the Johnson killing. Batres said, “I wasn’t there either, so
that’s like I got robbed. So basically I’m getting framed, I’m
getting framed.”
The agent asked if the police had the “burners” from the
Johnson killing. Batres said, “[N]ot the .380, but I know for a
fact they got the .40, the fuck’n .45.[6] That I didn’t even touch.”
The agent asked if the .380 caliber weapon was “in the hood,” and
Batres said, “Hell naw, that shit gone.” The agent urged Batres
6It is unclear to what .45 caliber weapon Batres refers.
He may have mistakenly believed one of the two .40 caliber
handguns used by Parker and Bonner was of a different caliber.
11
to be sure about that, and Batres said, “[H]ell naw that
motherfucker is clean. I cleaned that motherfucker real good.
Hell yeah.”
The agent and Batres continued to discuss the events of the
Johnson killing. The agent asked if Batres got out of the car
during the shooting, and Batres said, “Hell naw, I didn’t get out
of the car with them, hell naw.” Later, “I was in the car the
whole time.” He reiterated, “I didn’t do nothing. I didn’t do no
shooting.”
c. Other evidence
The area in which Johnson was shot was claimed by the
Hoover Criminals gang. A detective testified he learned in his
investigation that Johnson was affiliated with that gang. When
police later returned to the crime scene, they found writing on a
fence indicating Johnson’s nickname, “Stelo,” with the letters
“H.I.P.,” meaning “Hoover in Peace.”
Ballistics evidence linked the shell casings found in the
Mercedes and at the scene of the Johnson murder to other crimes
committed by Parker and Bonner. Casings in .40 caliber found at
the March 20, 2016, liquor store shootout matched casings at the
Johnson murder, and were all fired from the gun Parker
discarded. Different .40 caliber casings recovered from the
Warren killing and the liquor store shootout matched casings
found at the Johnson murder, and all were fired from the gun
found in Bonner’s car. The .380 caliber casings matched casings
recovered from the shooting of Elliot W. and the killing of
Nathaniel Ancar, and all were fired from the same weapon.
Police never found that weapon.
Security camera footage showed Batres in the Mercedes the
afternoon before Johnson’s murder. Other surveillance video
12
showed a silver Mercedes SUV, similar to the one the mechanic
loaned to Batres, being driven near the area of the Johnson
shooting shortly before and shortly after the shooting.
Batres’s cell phone records indicated he terminated his
account the day after the Johnson killing. His records showed at
some point he had made a call to a number associated with
Parker.
5. Gang evidence
To prove Parker and Bonner were members of the Denver
Lane Bloods gang, the prosecution called Detective Christian
Mrakich to opine on pages from Bonner’s Facebook account as
well as videos from that account showing Parker and Bonner
singing together while throwing gang signs, Bonner throwing
gang signs by himself, and Bonner displaying his tattoos.
Mrakich explained how the Facebook posts and messages
indicated Parker’s and Bonner’s affiliation with the Denver Lane
Bloods. For example, he interpreted language used in the
Facebook posts and messages to indicate either Bonner’s fealty to
the Denver Lane Bloods or disrespect to rivals of that gang,
including the Hoover Criminals. Posts referred to a “homie”
called “Keylow,” whom Mrakich explained was Parker. Some
posts referred to firearms, and in three posts, Parker referred to
himself or his friends as a “shooter” or “shooterz.” In several
posts, Bonner purported to be in rival gang territory. In one
exchange, someone reported being shot by the Hoover Criminals.
The Facebook posts included some photographs of Bonner
wearing clothing referencing the Denver Lane Bloods, making
hand gestures disrespectful to the Hoover Criminals, or standing
in front of Denver Lane Bloods graffiti. Parker was in one of the
photographs also making gestures disrespectful to the Hoover
13
Criminals. Another photograph showed Bonner and Parker with
other individuals Mrakich identified as Denver Lane Bloods
members. Mrakich interpreted some of the Facebook messages
as Bonner attempting to obtain a gun.
Mrakich testified regarding the Facebook videos, which he
explained showed Bonner, or Bonner and Parker together,
throwing gang signs, and Bonner displaying his tattoos. He also
analyzed for the jury photographs of Bonner’s tattoos, and
explained how the tattoos were connected to the Denver Lane
Bloods. Mrakich stated that Parker’s tattoos were not gang
related.
Mrakich opined that Bonner was a member of the Denver
Lane Bloods based on his tattoos, Facebook posts and messages
with gang jargon, photographs and videos of Bonner displaying
gang signs, Bonner’s association with other gang members, and
recorded calls to which Mrakich had listened in which Bonner
used gang jargon. Mrakich further opined that Bonner was an
active gang member given how active he was on Facebook with
gang-related messages.
Mrakich similarly opined that Parker was an active
member of the Denver Lane Bloods based on Bonner’s Facebook
postings referring to Parker, the photographs and videos,
Parker’s association with other gang members, and recorded calls
to which Mrakich had listened.
As for Batres, Mrakich opined that he was an active
member of the Athens Park Bloods gang, which was a
“neighboring Blood gang” to the Denver Lane Bloods and one of
the Denver Lane Bloods “closest allies.” Mrakich said Batres’s
moniker was “Wolf or Wolfy.” Mrakich discussed Batres’s tattoos
and explained that several indicated affiliation with the Athens
14
Park Bloods and enmity towards rival Crip gangs. Mrakich
referred to photographs of Batres with other gang members
throwing gang signs that were derogatory to the East Coast
Crips, the primary rivals of the Athens Park Bloods. Mrakich
had also listened to recorded conversations in which Batres used
gang-related slang.
Mrakich opined that, although Batres was an active gang
member, Mrakich would “probably not” “put him on the same
level as Mr. Parker and Mr. Bonner,” “but maybe aspiring to be
or on his way to be.”
Mrakich also provided background information about the
Denver Lane Bloods. He described the gang’s primary activities
as murder, robbery, drug sales, extortion of businesses, witness
intimidation, pimping or pandering, sex trafficking, and white
collar crime including fraud and forgery.
To establish the gang’s predicate felonies, Mrakich testified
about a robbery committed in 2015 by Joseph Quentin Tarver,
whom Mrakich opined was a gang member. Mrakich knew of the
crime because he was involved in the investigation. Mrakich also
testified about a series of crimes, including robberies, committed
by Kwabente Smith, whom Mrakich testified also was a gang
member. Mrakich explained he knew about Smith’s case because
the division in which Mrakich worked was not particularly large,
and “when you’ve been there a long time, there’s people you know
and you take interest in their arrests and there are certain
events that happened in the arrest that make them of interest,
interesting or exciting; and this just happened to be one of them.”
Mrakich said there was no active feud or war between the
Athens Park Bloods and Hoover Criminals, but in the past
Athens Park members had joined with Denver Lane members to
15
commit crimes against Hoovers, and Hoovers had committed
crimes against the Athens Park and Denver Lane gangs as well.
Mrakich explained that murder, assault, robbery, and other
violent crimes benefit gangs because the crimes “promote [the
gang’s] reputation as a fearsome gang,” which then allows the
gang to “operate[ ] [it’s] criminal empire . . . with impunity
without having any fear of people telling on them or snitching on
them, because [the gang has] shown what the consequences could
be.” Mrakich explained that the reputations of individual gang
members similarly benefit from commission of violent crimes.
The prosecution presented Mrakich with hypotheticals
mirroring the various crimes preceding the Johnson murder of
which Parker and Bonner were accused. Mrakich opined that
each was committed for the benefit of, in association with, or at
the direction of a criminal street gang.
The prosecution then presented a hypothetical mirroring
the circumstances of the Johnson shooting, namely two Denver
Lane Bloods members and an Athens Park Bloods member
driving into Hoover Criminals territory and shooting a Hoover
Criminals member at close range. Mrakich again opined that the
shooting was committed for the benefit of, in association with, or
at the direction of a criminal street gang. He opined the
circumstances showed planning, with three gang members
arming themselves, obtaining a vehicle, and driving into rival
territory. “[T]hat means there is no misunderstanding between
the occupants of that vehicle what they are there to do.”
Mrakich opined that the benefit of the Johnson shooting to
the gang and to the gang members would be “reputation amongst
each other, building a strong bond between individual gang
members, showing their ruthless reputation, their willingness
16
and eagerness . . . to go into a rival hood to execute somebody.”
“[M]urder is the ultimate crime, and committing that crime,
obviously, will skyrocket the reputation of that particular gang.”
It did not affect Mrakich’s opinion that the perpetrators were
members of allied gangs rather than all members of the same
gang.
The prosecution asked Mrakich to assume that all of the
prosecution’s hypotheticals were “connected” in that one or more
of the same individuals was involved in each of the crimes.
Mrakich stated that if the crimes were connected in that way, it
“bolster[ed]” his opinion the crimes were for the benefit of, at the
direction of, or in association with a criminal street gang. He
explained that although even one crime increases the reputation
of a gang, a “series of violent crimes together” has an
“exponential” benefit in increasing the gang’s fearsome
reputation. Gang members committing crimes together also
serves as a “training tool” to “learn and practice their . . . trade or
their skill,” and the gang’s improved reputation is a “very
attractive recruitment tool.”
6. Conviction and sentencing
Batres’s jury convicted him of second degree murder, and
found true the allegation that he committed the crime for the
benefit of, at the direction of, or in association with a criminal
street gang. The jury found not true the allegation that Batres
personally discharged a firearm causing injury and death, but
found true the allegation that a principal in the offense
discharged a firearm causing great bodily injury. The jury also
convicted Batres of possession of a firearm by a felon.
At sentencing, the trial court found as factors in
aggravation that the crime involved great violence, great bodily
17
harm, a threat of great bodily harm, or other acts disclosing a
high degree of cruelty, viciousness or callousness; the victim was
particularly vulnerable; the circumstances of the crime indicated
planning, sophistication, or professionalism; and Batres had
engaged in violent conduct indicating a serious danger to society.
As factors in mitigation, the trial court found Batres had a lesser
role than his codefendants in the crime, and he had no significant
prior record of criminal conduct.
The trial court sentenced Batres to 15 years to life for the
murder, with a consecutive term of 25 years to life for the firearm
enhancement. Finding the factors in aggravation outweighed the
factors in mitigation, the court imposed the high term of three
years for the firearm possession count, to be served concurrently
with the indeterminate sentence. Batres’s total sentence
therefore was 40 years to life. The court awarded credit and
imposed fines and fees.7
Batres timely appealed.
7 Parker and Bonner’s jury found them guilty of all
charges, including the Johnson murder, and found all special
circumstances and most enhancement allegations true. Parker
and Bonner each received two terms of life without possibility of
parole, along with determinate and indeterminate terms in
excess of 200 years to life. (People v. Parker et al. (Sept. 24, 2021,
B305256) [nonpub. opn.].) We affirmed the judgments against
Parker and Bonner in an unpublished opinion. (Ibid.)
18
DISCUSSION
A. The Trial Court Did Not Abuse its Discretion In
Trying Batres With Parker and Bonner, Nor Was the
Joint Trial Grossly Unfair
Batres argues the trial court’s decision to try him jointly
with Parker and Bonner was an abuse of discretion that denied
him a fair trial.
Section 1098 states in relevant part, “When two or more
defendants are jointly charged with any public offense, whether
felony or misdemeanor, they must be tried jointly, unless the
court order[s] separate trials.” Our Supreme Court has
interpreted this section to indicate the Legislature’s
“ ‘ “preference for joint trials.” [Citation.]’ [Citation.]” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378 (Bryant).)
The trial court nonetheless has the discretion to order
separate trials “ ‘ “in the face of an incriminating confession,
prejudicial association with codefendants, likely confusion
resulting from evidence on multiple counts, conflicting defenses,
or the possibility that at a separate trial a codefendant would
give exonerating testimony.” [Citations.]’ . . . [Citation.]”
(Bryant, supra, 60 Cal.4th at p. 379.)
“ ‘We review a trial court’s denial of a severance motion for
abuse of discretion based on the facts as they appeared at the
time the court ruled on the motion. [Citation.] If the court’s
joinder ruling was proper at the time it was made, a reviewing
court may reverse a judgment only on a showing that joinder
“ ‘resulted in “gross unfairness” amounting to a denial of due
process.’ ” ’ [Citation.]” (Bryant, supra, 60 Cal.4th at p. 379.)
Batres contends he was prejudiced by his jury hearing
evidence of Parker’s and Bonner’s other crimes, to which he had
19
no connection, as well as the extensive evidence of Parker’s and
Bonner’s involvement with the Denver Lane Bloods. He argues,
“The evidence related to Parker and Bonner and their other
crimes . . . was wholly unrelated to [Batres] and any role he
played in his charged crimes, was extensive, dominated the trial,
forced [Batres’s] jury to sit through days of witness testimony not
related to his charges, and prejudiced [Batres].” Batres argues
the joint trial “prevented his jury from properly assessing [his]
guilt, level of culpability or innocence for the Johnson murder on
an individual and independent basis,” and “any doubt as to
[Batres’s] role . . . was resolved by his mere association with
Bonner and Parker and his presence in court with both men.”
Batres contends the “central issue” before his jury was
whether he participated in the murder of Johnson and did so for
the benefit of the Denver Lane Bloods, “not whether the murder
was committed as part of Bonner’s and Parker’s brazen gang
related crime spree.” Batres argues the evidence against him
would have been “vastly different” had he been tried separately.
“For example,” he asserts, “tried alone, [Batres’s] jury [would] not
hear any of the evidence used to prove Bonner’s and/or Parker’s
guilt for the other attacks, and the amount of inflammatory gang
evidence would have been drastically reduced, since [Batres’s]
jury would not need to find Bonner’s and Parker’s other crimes
were gang related. As a result, the prosecution would be unable
to aggregate the codefendants’ crimes into a global hypothetical
question presented to the gang expert in order to ask whether the
Johnson murder [w]as gang related. Rather, had [Batres] been
tried separately, and the prosecution tried to introduce the
details of his codefendants’ other unrelated crimes, such evidence
would surely be excluded as irrelevant, cumulative and being
20
more prejudicial than probative, or, at minimum drastically
limited.”
It is true that, apart from the Johnson murder, Batres
was not charged with the other crimes of which Parker and
Bonner were accused. This does not mean the entirety of the
evidence of those other crimes, including the evidence they were
gang-related, was not relevant to prove the circumstances of the
Johnson murder such that significant portions of that evidence
would be inadmissible in a hypothetical separate trial.
The prosecution sought to prove that Batres joined Parker
and Bonner in a planned, gang-motivated killing. Evidence that
Parker and Bonner had engaged in a pattern of violent, gang-
motivated crimes in the months and days preceding the Johnson
killing, several of which Parker and Bonner committed together,
tended to show Johnson’s murder was not an isolated,
spontaneous incident, but part of that pattern of gang-motivated
violence. If the prosecution established that pattern, it would
weigh against an inference that the Johnson shooting was
unplanned, that it was not gang-related, or that Batres was
ignorant of Parker’s and Bonner’s intent when the three men
drove into a rival gang’s territory that night. Thus, even if
Batres were tried separately, evidence of Parker’s and Bonner’s
other crimes would be relevant and admissible to show the
Johnson murder was part of a larger pattern of gang violence
perpetrated by Parker and Bonner, and therefore both planned
and gang-motivated.8
8 Our conclusion does not assume or depend upon evidence
that Batres knew of Parker’s and Bonner’s earlier crimes.
Rather, the evidence that Parker and Bonner had planned and
committed other gang-related crimes together suggested that the
21
Evidence of the other crimes also was relevant because of
the ballistics evidence connecting the weapons used in the
Johnson shooting to other crimes in which Parker and Bonner
were involved. The fact that the same weapons were used at
other crime scenes at which Parker and Bonner were identified
bolstered the prosecution’s position that Parker and Bonner
perpetrated the Johnson murder as part of their pattern of gang-
motivated violence, which in turn bolstered the prosecution’s
position that Batres similarly had participated in a gang-
motivated murder.
Given the prosecution’s theory that the Johnson killing was
a planned, gang-motivated murder, and the cross-admissibility of
the evidence of Parker’s and Bonner’s other crimes in support of
that theory, the trial court did not abuse its discretion when it
denied Batres’s motion for a separate trial.
We further hold the trial court’s decision did not result in
gross unfairness amounting to a denial of due process. As our
Supreme Court has stated, “Naturally, anyone facing prosecution
would rather be tried on a single charge, rather than multiple
counts. Likewise, an accused would rather not be associated in
the jury’s mind with other potentially unsavory characters.”
(Bryant, supra, 60 Cal.4th at p. 381.) Nonetheless, a joint trial
is not “unfair” simply because of “the possibility that one
defendant’s chance of acquittal is reduced.” (Id. at p. 380; see
id. at p. 381 [“Defendants are constitutionally entitled to a fair
trial, not one that gives them the best possible chance for an
acquittal.”].)
Johnson killing similarly was planned, which would tend to
suggest that Batres was aware of that plan.
22
Also, the fact that some evidence is introduced in the joint
trial that might not have been introduced in a separate trial
does not render a joint trial unfair: “[T]he issue is not whether a
theoretical separate trial of one defendant would have been
different, but whether the joint trial that actually occurred was in
some manner prejudicially unfair or unreliable.” (Bryant, supra,60 Cal.4th at p. 381.) Thus, “[t]he argument that some evidence
admitted at a joint trial might not have been admitted at a
separate trial misses the mark.” (Ibid.)
As we have explained, much of the evidence to which
Batres objects would have been relevant and admissible in a
separate trial, including the evidence of Parker’s and Bonner’s
other gang-motivated crimes. Perhaps some evidence would not
have been offered or admitted, but that does not in and of itself
render the joint trial unfair.
We further note that on this record, there is little likelihood
the jury convicted Batres based merely on his association with
Parker and Bonner, rather than his individual guilt. (Cf. Bryant,
supra, 60 Cal.4th at p. 383 [“To justify severance the
characteristics or culpability of one or more defendants must be
such that the jury will find the remaining defendants guilty
simply because of their association with a reprehensible person,
rather than assessing each defendant’s individual guilt of the
crimes at issue.”].) The most damning evidence against Batres
was the recording of his conversation with the jailhouse Perkins
agent, in which Batres admitted to being present at Johnson’s
murder, handling one of the pistols used, and then cleaning and
getting rid of it. In that conversation, Batres himself
acknowledged the implausibility of claiming he did not know
what Parker and Bonner intended, stating that if he made such a
23
claim, the police would ask, “[W]hy was y’all going on that side?
What was the purpose of you guys even going around that area?”
Given this evidence of guilt, we cannot find that the evidence
pertaining to Parker’s and Bonner’s gang affiliation and other
crimes rendered the joint trial grossly unfair.
Batres argues that when the prosecution presented
Detective Mrakich with a “global hypothetical” linking all of
Parker’s and Bonner’s crimes as gang-motivated, the prosecution
effectively “link[ed] [Batres] to crimes he did not commit and
show[ed] [Batres] was guilty by association. Again, we disagree.
Batres identifies nowhere in the record in which the prosecution
suggested he was involved in the other crimes. The evidence of
the other crimes, as well as Mrakich’s opinion as to the “global
hypothetical,” would have been admissible in a separate trial, as
we have explained, to show the Johnson murder was not
spontaneous and random but planned and gang-motivated.
Batres cites People v. Chambers (1964) 231 Cal.App.2d 23(Chambers) as an example of prejudicial joinder, but that case is
factually distinguishable and inapposite. In Chambers, the
owner of a rest home and his supervising nurse were jointly
charged with assaulting a patient. (Id. at pp. 24–25.) The action
was consolidated with another action in which the supervising
nurse was charged with three additional assaults against the
same patient, and all four assault charges were tried together.
(Id. at p. 25.) The jury convicted the owner of the one charge
against him, and the nurse of the four charges against her.
(Ibid.)
The Court of Appeal reversed the owner’s conviction,
concluding the owner “was probably convicted by association with
[the nurse], in trial and otherwise, rather than by evidence of his
24
personal guilt.” (Chambers, supra, 231 Cal.App.2d at p. 28.) The
owner’s guilt was established through the testimony of a single
eyewitness, a nursing assistant, which the appellate court noted
suffered from inconsistencies and possible bias, and was
countered by testimony and documentary alibi evidence from the
defendants. (Id. at p. 29.) Thus, “[c]onsidered in isolation, the
thin evidence of [the owner’s] guilt may well have failed to
convince the jury.” (Ibid.)
On the other hand, “[t]he record . . . was inflated by
extensive evidence of [the nurse’s] brutality, tending to fasten
[the owner], as her employer, with moral responsibility for the
acts of his employee.” (Chambers, supra, 231 Cal.App.2d at
p. 29.) Specifically, the prosecution introduced evidence of the
nurse’s attacks on and mistreatment of other patients over a
period of six or seven years, with no evidence of “joint or
conspiratorial action” involving the owner. (Id. at pp. 26–27.)
The prosecution also inappropriately implied through cross-
examination that the owner and nurse were lovers, “thus
intensifying the notion of joint moral responsibility.” (Id. at
p. 29.) The appellate court rejected the notion that evidence of
uncharged misconduct was admissible in this case to show intent
or a common plan or scheme, when the owner’s “intent was not in
issue; nor were these separate and unconnected acts of violence
asserted as separate manifestations of a common plan or
scheme.” (Id. at p. 30.)
Chambers is distinguishable from the instant case. In
Chambers, the evidence of the nurse’s assaults on patients had no
bearing on the owner’s guilt or innocence, apart from the single
instance in which she and the owner were jointly charged. Thus,
the evidence of the nurse’s other assaults was irrelevant to the
25
charge against the owner, and served only to inflame the jury
against him.
In the instant case, in contrast, evidence of Parker’s and
Bonner’s other offenses was relevant to the charges against
Batres, because, as discussed, that evidence tended to show the
crime in which Batres participated was planned and gang-
motivated. Unlike in Chambers, Batres’s intent was an issue
before the jury, and the evidence that the Johnson murder was
part of a gang-motivated crime spree perpetrated by Parker and
Johnson was relevant to Batres’s intent. Also, as discussed,
evidence of Parker’s and Bonner’s other crimes was relevant to
the ballistic evidence found at the Johnson murder. Finally,
unlike the inconsistent and potentially biased eyewitness in
Chambers, Batres himself provided the greatest evidence of guilt
in his recorded jailhouse statements, which militates against a
conclusion that the jury found him guilty solely through his
association with Parker and Bonner.
B. Recent Amendments to the Penal Code Require
Reversal of the Gang and Firearm Enhancements,
But Not the Murder Conviction
Subsequent to Batres’s trial and conviction, Assembly Bill
No. 333 (2021–2022 Reg. Sess.) amended the Penal Code to
change the elements to prove criminal street gang enhancements
under section 186.22. (Stats. 2021, ch. 699, § 4.) That bill also
added section 1109, which requires the trial court to try the gang
enhancement separately from the underlying offense if the
defendant so requests. (Stats. 2021, ch. 699, § 5.)
Batres argues all of these changes are retroactive and
applicable to his judgment, which is not yet final. He contends
that the changes to section 186.22 require reversal of his gang
26
and firearm enhancements, both of which depend on findings
under section 186.22. He further asserts section 1109 requires
reversal of his murder conviction, which the jury decided in the
same trial as the gang enhancement allegations.
We agree, as does the Attorney General, that the gang
and firearm enhancements must be reversed. We disagree
section 1109 requires reversal of the murder conviction.
1. The gang and firearm enhancements must be
reversed
Assembly Bill No. 333 made a number of changes to
section 186.22, including narrowing the definition of “criminal
street gang,” altering the requirements to establish predicate
offenses, and narrowing the definition of “what it means for an
offense to have commonly benefitted a street gang.” (People v.
Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) Because “[t]hese
changes have the effect of ‘increas[ing] the threshold for
conviction of the section 186.22 offense and the imposition of the
enhancement,’ ” our Supreme Court has deemed the changes
ameliorative, and therefore retroactive “ ‘to all cases that are not
yet final as of the legislation’s effective date.’ [Citation.]” (Tran,
at pp. 1206–1207.)
Among the elements of the gang enhancement is that
the underlying felony be committed “for the benefit of, at the
direction of, or in association with a criminal street gang, with
the specific intent to promote, further, or assist in criminal
conduct by gang members . . . .” (§ 186.22, subd. (b)(1).)
Assembly Bill No. 333 added a new subdivision (g) to the section
stating, “As used in this chapter, to benefit, promote, further, or
assist means to provide a common benefit to members of a gang
where the common benefit is more than reputational. Examples
27
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.”
At trial, the prosecution relied on the opinion of Detective
Mrakich to establish the “benefit” of Parker’s, Bonner’s, and
Batres’s crimes to the Denver Lane Bloods. As the Attorney
General concedes, in addressing the Johnson murder, the only
benefit identified by Mrakich was reputational. Mrakich
explained the benefit of the Johnson murder to the gang and
gang members would be “reputation amongst each other, building
a strong bond between individual gang members, showing their
ruthless reputation, their willingness and eagerness . . . to go into
a rival hood to execute somebody.” He further stated, “[M]urder
is the ultimate crime, and committing that crime, obviously, will
skyrocket the reputation of that particular gang.”
Because reputational benefit no longer is a valid basis to
impose an enhancement under section 186.22, subdivision (b),
we reverse the true finding on Batres’s gang enhancement.
We also reverse his firearm enhancement under section 12022.53,
subdivision (e), which has as an element a violation of
section 186.22, subdivision (b). (§ 12022.53, subd. (e)(1)(A);
People v. Lopez (2021) 73 Cal.App.5th 327, 347–348 [reversal of
true findings under § 186.22, subd. (b) requires reversal of true
findings under § 12022.53, subd. (e)(1) as well].) On remand, the
People may retry these allegations if the People so choose.9
9 Should the People elect to retry the firearm
enhancement, we express no opinion whether the People must
prove again that a principal in the offense discharged a firearm
28
Batres argues his gang and firearm enhancements run
afoul of additional provisions of the amended section 186.22, and
also People v. Valencia (2021) 11 Cal.5th 818, which held that
prosecutors cannot rely on hearsay to establish predicate
offenses. (Id. at p. 838.) Given our holding, we decline to address
these additional challenges.
Specific to the firearm enhancement, Batres further argues
we should remand for resentencing because the trial court now
has discretion under People v. Tirado (2022) 12 Cal.5th 688 to
strike a firearm enhancement and impose a lesser uncharged
firearm enhancement. (Id. at p. 692.) Batres also contends
remand is necessary for the trial court to consider whether to
impose a lesser term on the firearm enhancement under the
guidance of the new subdivision (b)(6) of section 1170. Our
reversal of the firearm enhancement moots these arguments, and
we express no opinion on them.
2. Any error in failing to bifurcate under
section 1109 was harmless
Batres contends under section 1109, he is entitled to be
retried on his murder charge with the gang allegations decided in
a subsequent, separate trial. We conclude any error in failing to
bifurcate the proceedings was harmless.
Section 1109, enacted under Assembly Bill No. 333, states,
in relevant part, “If requested by the defense, a case in which a
gang enhancement is charged under subdivision (b) or (d) of
Section 186.22 shall be tried in separate phases as follows: [¶]
causing great bodily injury or death, or only that Batres violated
section 186.22, subdivision (b). The parties have not briefed that
issue, and the trial court may address it in the first instance.
29
(1) The question of the defendant’s guilt of the underlying offense
shall be first determined. [¶] (2) If the defendant is found guilty
of the underlying offense and there is an allegation of an
enhancement under subdivision (b) or (d) of Section 186.22, there
shall be further proceedings to the trier of fact on the question of
the truth of the enhancement.” (§ 1109, subd. (a).)
In enacting section 1109, the Legislature expressed concern
that “[g]ang enhancement evidence can be unreliable and
prejudicial to a jury,” and “that allowing a jury to hear the kind of
evidence that supports a gang enhancement before it has decided
whether the defendant is guilty or not may lead to wrongful
convictions.” (Stats. 2021, ch. 699, § 2, subds. (d)(6), (e).) The
Legislature declared that “[b]ifurcation of trials where gang
evidence is alleged can help reduce its harmful and prejudicial
impact.” (Id., subd. (f).)
The Courts of Appeal are divided as to whether
section 1109 is retroactive. (Compare, e.g., People v. Burgos
(2022) 77 Cal.App.5th 550, 554 [§ 1109 is retroactive], review
granted July 13, 2022, S274743, with People v. Ramirez (2022)
79 Cal.App.5th 48, 53 [§ 1109 is not retroactive], review granted
Aug. 17, 2022, S275341.) The issue currently is pending before
the Supreme Court.
We need not decide whether section 1109 is retroactive,
however, because assuming arguendo it is, we conclude any error
in failing to bifurcate the proceedings was harmless. (See Tran,
supra, 13 Cal.5th at p. 1208 [declining to decide § 1109’s
retroactivity because failure to bifurcate was harmless]).
As an initial matter, we must determine the proper test to
apply when assessing the assumed error in this case. Our
Supreme Court has held that error under section 1109 is subject
30
to the test for state-law harmless error under People v. Watson
(1956) 46 Cal.2d 818, unless the error rendered the trial
“ ‘fundamentally unfair,’ ” in which case we apply the stricter
harmless error standard under Chapman v. California (1967)
386 U.S. 18. (Tran, supra, 13 Cal.5th at p. 1209, italics omitted.)
Batres argues we should apply the Chapman standard
“because the Legislature’s intent in enacting . . . section 1109 was
to promote fairness to the accused, so its contravention will
implicate[ ] the due process clause of the Fourteenth
Amendment.” In making this argument, which is based on the
Legislature’s intent in enacting section 1109 as opposed to the
particular circumstances of his case, Batres seeks to apply the
Chapman standard to any violation of section 1109. This
argument necessarily fails, because our Supreme Court in Tran
made clear the Watson standard applies absent a case-specific
showing of fundamental unfairness. (See Tran, supra, 13 Cal.5th
at p. 1209 [finding constitutional prejudice “did not occur in this
case,” and applying the Watson standard].) Because Batres
makes no argument that under the particular circumstances of
his case, the failure to bifurcate rendered his trial fundamentally
unfair, we apply the Watson standard, under which we will
uphold the judgment unless it is reasonably likely that exclusion
of the gang evidence would change the jury’s verdict on the
murder charge. (Tran, at p. 1209.)
We conclude it is not reasonably likely that bifurcation
would have changed the jury’s verdict. Much of the evidence in
support of the gang enhancement also was relevant to prove
Batres’s murder charge, and would have been admissible for that
purpose even in a bifurcated trial. (See People v. Ramos (2022)
77 Cal.App.5th 1116, 1132 [“nothing in Assembly Bill 333 limits
31
the introduction of gang evidence in a bifurcated proceeding
where the gang evidence is relevant to the underlying charges”];
People v. Hernandez (2004) 33 Cal.4th 1040, 1049–1050
(Hernandez) [“To the extent the evidence supporting
the gang enhancement would be admissible at a trial of guilt, any
inference of prejudice would be dispelled, and bifurcation
would not be necessary.”].)
For example, the evidence that Parker, Bonner, and Batres
were active members of allied gangs, that those gangs were rivals
of the Hoover Criminals, that the rivalry historically manifested
in acts of violence between the rival gangs, that Parker and
Bonner had engaged in such acts of violence numerous times in
the months and days prior to the Johnson killing, and that
Johnson himself was affiliated with the Hoover Criminals, tended
to show the perpetrators’ motive and intent, and weighed against
an inference that the murder of Johnson was anything other than
an orchestrated gang shooting. (Hernandez, supra, 33 Cal.4th at
p. 1049 [“Evidence of the defendant’s gang affiliation—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.”].)
Batres points out that in a bifurcated proceeding, the jury
deciding Batres’s guilt on the murder charge would not hear
evidence specific to the gang enhancement, such as the expert’s
opinion as to the primary criminal activities of the Denver Lane
Bloods and the predicate offenses committed by Tarver and
Smith. None of this evidence was particularly prejudicial. The
violent and criminal nature of Denver Lane Bloods members was
32
illustrated more dramatically by the evidence of Parker’s and
Bonner’s own actions, which as discussed would have been
admissible in a bifurcated trial, than in Mrakich’s generic listing
of gang crimes, or the brief mention of robberies committed by
Tarver and Smith.
Batres further argues that in a bifurcated proceeding “the
gang expert’s responses to hypothetical questions would be very
different in scope since the issues of whether the shooting was for
the benefit of, at the direction of or was in association with [the
Denver Lane Bloods] would not be before the jury.” Given the
need to prove, however, that Batres knowingly engaged in a
planned attack with fellow gang members, the prosecution in the
murder trial would still seek to establish through hypotheticals
that when multiple gang members drive together into rival
territory, they likely are working together to commit gang-
motivated crimes. Thus, whatever damage Batres suffered from
the expert’s assessment of the hypotheticals would exist even in a
bifurcated trial.
Finally, we note again that the strongest evidence of
Batres’s guilt were his own statements to the Perkins agent,
putting him at the scene of the murder in a vehicle with the two
shooters, and admitting he handled, cleaned, and disposed of one
of the weapons used. Even assuming some of the gang evidence
would have been excluded from the guilt phase in a bifurcated
trial, it is not reasonably likely the jury would have reached a
different verdict given the jailhouse statements in combination
with the other evidence we have discussed that would be
admissible even in a bifurcated proceeding.
33
C. Changes to the Penal Code Require Resentencing on
the Firearm Possession Count
Subsequent to Batres’s trial and conviction, the Legislature
amended Penal Code section 1170 to add subdivision (b)(2), which
prohibits the trial court from imposing the upper term on an
offense based on circumstances in aggravation unless “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.” (Stats. 2021,
ch. 731, § 1.3.)
The parties agree section 1170, subdivision (b)(2) is
retroactive to nonfinal judgments like Batres’s. (People v. Flores
(2022) 73 Cal.App.5th 1032, 1039 [amendments to § 1170,
subd. (b) are retroactive].) The parties further agree, as do we,
that the trial court sentenced Batres to the high term on the
firearm possession count based on circumstances in aggravation
the jury did not find true beyond a reasonable doubt and to which
Batres did not stipulate. Accordingly, Batres must be
resentenced on the firearm possession count in accordance with
section 1170, subdivision (b)(2).
Also subsequent to Batres’s trial and conviction, the
Legislature added another subdivision to section 1170, now
codified as subdivision (b)(6). This subdivision requires the trial
court to impose the lower term if certain circumstances apply,
unless imposition of the lower term would be contrary to the
interests of justice. The circumstances mandating imposition of
the lower term include, inter alia, that the defendant “has
experienced psychological, physical, or childhood trauma,” or the
defendant was a youth when the offense was committed. (§ 1170,
subd. (b)(6)(A), (B).) We agree with Batres that during
34
resentencing the trial court should consider the factors under
section 1170, subdivision (b)(6) to the extent they are applicable.
DISPOSITION
The true findings and enhancements on count 10 under
Penal Code sections 186.22 and 12022.53 are reversed. The
sentence is vacated on all counts. The judgment otherwise is
affirmed.
The matter is remanded to the trial court with directions to
allow the People to retry defendant on the allegations under
Penal Code sections 186.22, subdivision (b)(1) and 12022.53,
subdivision (e) on count 10. Following retrial, or if the People
elect not to proceed with retrial, the trial court shall resentence
defendant, consistent with this opinion, and send a new abstract
of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
35