People v. Guillen CA5 ( 2022 )

Filed 4/12/22 P. v. Guillen CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079524
Plaintiff and Respondent,
(Super. Ct. No. VCF361107)
v.
STEVEN GUILLEN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald Engler, Deputy
Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and
Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Meehan, J.
Following a jury trial, defendant Steven Guillen, was found guilty of attempted
voluntary manslaughter. The same jury also found true allegations he committed the
crime to benefit a street gang, caused great bodily injury, and personally used a deadly
weapon. In his appeal, defendant initially challenged the evidence supporting the
conclusion the crime was committed for the benefit of a street gang. Defendant also
challenged the use of a prior prison term enhancement and various fines and fees imposed
by the court. Due to recent legislative changes, defendant now contends he is entitled to
a new trial on the street gang enhancement and a new sentence. The Attorney General
agrees these changes require defendant be retried and resentenced, and we agree. We,
therefore, vacate the sentence imposed and remand for further proceedings.
PROCEDURAL SUMMARY
In an information filed on June 8, 2018, defendant was charged with attempted
murder (count 1; Pen. Code,1 §§ 664, 187, subd. (a)). The information also included
several special allegations (the crime benefitted a street gang (§ 186.22, subd. (b)(1)(C)),
gang related/potential life sentence (§ 186.22, subd. (b)(5)), defendant caused great
bodily injury (§ 12022.7, subd. (a)), used a deadly weapon (§ 12022, subd. (b)(1)),
suffered two prior “strike” convictions (§§ 1170.12, subds. (a)–(i), 667, subds. (b)–(i)),
suffered a prior serious felony conviction (§ 667, subd. (a)(1)), and suffered a prior prison
term (§ 667.5, subd. (b)).
On May 28, 2019, the jury found defendant not guilty of attempted murder, but
guilty of the lesser included offense of attempted voluntary manslaughter (§ 192). The
jury also found true the street gang allegation, as well as the allegations defendant caused
great bodily injury and used a deadly weapon. Following a bifurcated proceeding, the
1 Unless otherwise specified, all further statutory references will be to the Penal
Code.
2.
trial court found defendant suffered two prior strike convictions, two prior serious felony
convictions, and served one prior prison term.
On June 25, 2019, after striking one prior “strike” offense and a prior serious
felony conviction, the trial court sentenced defendant to an aggregate term of 30 years in
state prison, as follows: 11 years for attempted voluntary manslaughter, one-half the
upper term doubled under the “Three Strikes Law”; 10 years consecutive for the gang
enhancement; three years consecutive for the great bodily injury enhancement; one year
consecutive for the use of a deadly weapon; and an additional five years consecutive for
the prior serious felony conviction. An additional enhancement for a prior prison term
was imposed and stayed. Various fines and court fees were also imposed.
FACTUAL SUMMARY
Because this appeal does not challenge the jury’s findings on attempted
manslaughter, or two of the enhancements the jury found true, this summary will focus
on the facts addressing whether the crime was committed for the benefit of a street gang.
On January 13, 2018, after several days of using methamphetamines and
marijuana, A.S. spent the day sleeping on a couch in an apartment in Visalia. Around
6:00 p.m., A.S. was awakened when a group entered the apartment. After A.S.
commented everyone should be quiet, defendant, who was part of the group, told A.S. not
to disrespect him, and that, “this is the Northern Rider gang. They call me Lifer for a
reason.” Defendant then proceeded to stab A.S. approximately three or four times.
G.T., who was part of the group that entered the apartment, testified he was aware
defendant was a member of the Northern Rider gang, and that he was known as “Lifer.”
G.T. admitted during his testimony he was hesitant to testify about the confrontation
because one day earlier defendant’s brother called him a “snitch” while in the hallway of
the courthouse, putting him in danger with the gang.
Additional evidence was introduced to support the allegation the attack on A.S.
was done to benefit a criminal street gang. In 2014, Kevin Renard was a correctional
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deputy at a Tulare County pretrial facility. On July 7, 2014, while conducting a routine
check of jail cells, Renard noticed defendant with blood splattered on his face. Defendant
and A.S. shared a cell at this facility at that time.2 Renard testified he understood the
altercation between defendant and A.S. was about the cleanliness of their cell, which A.S.
testified is a rule the Norteño gang enforces. Apparently, the altercation started after A.S.
told defendant to clean up the cell. A.S. admitted in his testimony that he and defendant
did not get along.
Michael Lombardo, an officer with the Visalia Police Department, offered
testimony as a gang expert. Lombardo testified the Northern Riders was originally a
subset of the Nuestra Familia gang, that eventually broke away because of their desire not
to be obligated to pay “taxes”3 to the larger gang and abide by their rules. Northern
Riders is considered a “drop-out” gang that recruits mostly individuals who no longer
want to be part of Nuestra Familia, or other highly structured gangs. Lombardo testified
the Northern Riders have no specific territory. They are not considered a subset of any
other gang and have no subsets within their own gang. They consider the entirety of
California their territory.
Responding to a question about the types of criminal activity Northern Riders
engage in, Lombardo testified their primary crimes involve identity theft, gun possession,
weapon possession, assault, and narcotics possession for sale. Lombardo then testified
about three different “predicate” crimes committed by Northern Riders in various parts of
California in 2015 and 2016. The first crime Lombardo mentioned was an assault
committed by a Northern Rider in 2016 in Santa Rosa County. The second crime
involved the unlawful possession of a firearm by a felon, committed by another Northern
2 During his testimony, A.S. stated he once shared a cell with defendant while they
were both active members of the Norteño gang. There is no confirmation in the record
that defendant was ever a formal party of the Norteño gang.
3 Defined as a portion of proceeds from criminal activity.
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Rider in Tulare County in 2015. The third crime discussed by Lombardo involved an
attempted murder by yet another Northern Rider committed in Tulare County in 2016.
Lombardo testified these crimes were consistent with the list of primary crimes usually
committed by Northern Riders’s gang members, and that each crime was committed by
an active Northern Riders gang member.
Lombardo also explained how he concluded defendant was a member of Northern
Riders. His testimony addressed defendant’s tattoo, nickname, and his possession of
paperwork related to the gang. Lombardo earlier testified that many Northern Riders
have an upside down Playboy bunny tattoo with a star that appears to be cracked or
falling. Defendant had such a tattoo. Lombardo also cited the fact defendant admitted
membership in the Northern Riders while in a correctional facility.
The testimony then turned to the question of whether the crime committed by
defendant “benefit[ted]” the Northern Riders gang. Lombardo offered the following
testimony on this question:
“This is Northern Rider gang. By yelling that, he’s telling everybody [i]n
earshot why he’s doing that, who he’s doing it for, to demand respect for
himself and the gang. [¶] … [¶] It instills fear not only to the public, but
other gang members specifically, like the Nortenos.”
Lombardo explained this type of statement benefits the gang because it serves as a
warning not to provide testimony against the gang member, and further bolsters the
reputation of the gang member.
The Defense
Defendant chose to testify on his own behalf. Defendant denied being a current
member of the Northern Riders. He also explained that his tattoo of a Playboy bunny
was acquired while he was in prison as a favor to a friend who was learning how to create
tattoos. Defendant also denied identifying himself as a Northern Rider that night in the
apartment, and claimed A.S. tried to rob him, which led to the confrontation.
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The defense provided its own expert on gangs, Daniel Longoria, a former gang
member. Longoria testified that drop-out groups, like the Northern Riders, should not be
considered gangs. Longoria explained this type of group did not have the hierarchy and
structure needed to be considered a gang. Members of the Northern Riders would also
not commit crimes for the benefit of the group, but only for their own benefit.
Longoria did not believe defendant was an active member of the Northern Riders
at the time of the incident in this case. Longoria also rejected the idea that the three
crimes the prosecution presented as “predicate” crimes had any connection to defendant.
The defendants in those cases did not know defendant, and the defendants in those cases
were not charged with street gang enhancements.
DISCUSSION
Again, defendant originally claimed the evidence did not support the jury’s finding
on the street gang allegation, violating his federal and state constitutional rights.
Alternatively, defendant argued both the trial court and his trial counsel erred by not
providing or seeking a more detailed instruction to the jury on the street gang allegation.
With respect to his sentence, defendant challenged the imposition (though stayed) of an
enhancement for serving a prior prison term because of recent legislative changes, and
further challenged the imposition of various fines and fees because no finding was made
on his ability to pay.
Recent legislative changes have rendered most, if not all of these claims moot.
I. Assembly Bill No. 333 - Criminal Street Gang Enhancement
While this appeal was pending, Assembly Bill No. 333 (2021−2022 Reg. Sess.),
(Assembly Bill 333) was enacted amending section 186.22. This amendment increased
the threshold for establishing a crime was committed for the benefit of a “criminal street
gang.” (See People v. Rodriguez (2022) 75 Cal.App.5th 816, 822−823.) For instance,
the prosecution must now provide evidence that the “benefit” to the gang goes beyond
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merely protecting or enhancing the reputation of the street gang. (§ 186.22, subd. (g).)
(Stats. 2021, ch. 699, §§ 1–5, eff. Jan. 1, 2022.)
Because defendant’s judgment was not final on January 1, 2022, when these
changes went into effect, defendant will receive the benefit of any changes that have the
potential of reducing his punishment.
“[A]bsent evidence to the contrary, [we presume] 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. [Citations.] This principle also applies when an
enhancement has been amended to redefine to an appellant’s benefit the
conduct subject to the enhancement.” (People v. Lopez (2021) 73
Cal.App.5th 327, 344, citing In re Estrada (1965) 63 Cal.2d 740, 744–746.)
While we conclude the gang-related enhancement must be vacated, we also believe this
matter must be remanded to the trial court, providing the prosecution the opportunity to
decide whether to retry defendant under the newly amended version of section 186.22.
A. Substantial Evidence Supported the Criminal Street Gang
Enhancement at the Time of Trial
While double jeopardy forbids retrial after a reversal due to insufficient evidence
supporting the verdict, double jeopardy is not implicated when the prosecution makes its
case under the law as it existed at the time of trial. (In re D.N. (2018) 19 Cal.App.5th
898, 902.) However, where “evidence is not introduced at trial because the law at that
time would have rendered it irrelevant, the remand to prove that element is proper and the
reviewing court does not treat the issue as one of sufficiency of the evidence.” (People v.
Figueroa (1993) 20 Cal.App.4th 65, 72.) As explained below, the prosecutor provided
sufficient evidence to support the criminal street gang enhancement based upon the law
as it stood at the time of defendant’s trial.
1. Applicable Law
When defendant was tried, the prosecution was required to show that the relevant
crime was committed “ ‘for the benefit of, at the direction of, or in association with’ ” a
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criminal street gang. (People v. Gardeley (1996) 14 Cal.4th 605, 609–610.) When
focusing on the specific street gang the defendant was trying to benefit, the prosecution
had to also show the gang previously committed primary offenses or predicate offenses,
that were consistent with the offense the defendant committed. (People v. Prunty (2015)
62 Cal.4th 59, 81.) A gang committed these primary activities or predicate offenses
when its members participated in two or more of the criminal offenses listed in
section 186.22, “within a certain time frame and ‘on separate occasions, or by two or
more persons.’ ” (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The gang or “group”
requirement had to be satisfied with evidence showing more than three people shared a
“common name or common identifying sign or symbol.” (§ 186.22, subd. (f).)
Moreover, the prosecution’s evidence had to allow a jury to infer that the group the
defendant sought to benefit, and the group the prosecution sought to prove existed, “are
one and the same.” (Prunty, supra, at p. 75.) Expert opinion testimony on whether a
particular act of criminal conduct benefited a gang was not only permissible but could
support a gang enhancement. (People v. Franklin (2016) 248 Cal.App.4th 938, 948–
949.)
When considering whether a conviction is supported by the evidence, this court
must review the entire record to determine whether any rational trier of fact could find
support for the essential elements of the crime beyond a reasonable doubt. (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) The evidence must be “reasonable, credible, and
of solid value—such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.” (Ibid.) Therefore, this court must review the evidence in a manner
that favors the prosecution. (People v. Wahidi (2013) 222 Cal.App.4th 802, 806–807,
citing Zamudio, at p. 357.) We look for substantial evidence, we do not consider
conflicts in the evidence or weigh the strength of that evidence. (Wahidi, at p. 806.) A
reversal based on insufficient evidence is not warranted unless there is no basis for
concluding sufficient substantial evidence supports the jury’s verdict. (Ibid.)
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2. Analysis
The evidence presented at trial supports the conclusion defendant was a member
of the Northern Riders, as the law stood at the time. Eyewitness testimony recounted
how defendant announced his connection to the Northern Riders before stabbing A.S.
The prosecution’s expert, Lombardo, also offered his opinion, based on his experience
and knowledge about various northern California gangs, that defendant was a member of
the Northern Riders.
On the issue of whether the crime was committed to benefit the Northern Riders,
Lombardo testified when defendant told everyone he is “Northern Rider[s],” just before
attacking A.S., “he’s telling everybody [i]n earshot why he’s doing that, who he’s doing
it for, to demand respect for himself and the gang.” According to Lombardo, these
statements are made to instill fear in the public and potentially to any witness who might
consider testifying against gang members in the future. Such statements might also
bolster the respect an individual might have within the gang.4 There is also evidence
defendant may have considered A.S. a rival gang member based on their interaction
while sharing a jail cell in 2014. Testimony from Lombardo suggested attacking a rival
gang member was good for the gang as well as the individual who was the aggressor in
the attack.
Lombardo also explained the organizational structure of the Northern Riders.
Specifically, the group had a structure that was different from other northern California
gangs, because it incorporated mentoring potential members and requiring a unanimous
4 Amendments to section 186.22, subdivision (g), now require that a “benefit” be
more than reputational. The evidence supporting “benefit” should now address
“retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a
potential current or previous witness or informant.”
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vote for membership. Lombardo did not believe there were any subsets or cliques within
the gang, and all those who considered themselves members of the Northern Riders
throughout California, were members of the same gang. This was important because the
evidence offered to establish the existence of predicate offenses committed by a member
of the Northern Riders were committed by members of the same group and not by any
subsets or cliques, even though those crimes were committed in different cities or
regions.5
Lombardo also testified that members of the Northern Riders often had tattoos that
looked like an upside down Playboy bunny with a star. The star often had cracks or
appeared to be falling. This was apparently in reference to their break away from the
Norteño gang and its members who used similar stars in their tattoos. During his own
testimony, defendant admitted having a tattoo of a Playboy bunny with a star.
Again, we presume every fact supporting what the trier of fact could reasonably
deduce from the evidence. (People v. Albillar (2010) 51 Cal.4th 47, 60.) Reversal of a
judgment is not warranted simply because the circumstances might also reasonably lead
to a contrary finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “A reviewing court
neither reweighs evidence nor reevaluates a witness’s credibility.” (Ibid.)
Based on the version of section 186.22 that existed at the time defendant was
convicted, this evidence met the substantial evidence test. Because substantial evidence
supported the jury’s finding on this enhancement at the time of trial, the prosecution is
not prohibited from retrying this portion of the case using the newly amended version of
section 186.22.
II. Senate Bill No. 136 - Prior Prison Term Enhancement
5 “The evidence that these gang members individually engaged in a pattern of
criminal gang activity was sufficient at the time of trial to meet the requirements of
section 186.22 .…” (People v. Lopez, supra, 73 Cal.App.5th at pp. 344−345.)
10.
While this appeal was pending, Senate Bill No. 136 (2019−2020 Reg. Sess.)
(Senate Bill 136), was enacted amending section 667.5, subdivision (b) to limit prior
prison term enhancements to prior terms that were served for a sexually violent offense,
as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5,
subd. (b).) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Defendant contends Senate
Bill 136 applies retroactively to him and requires that the enhancement for a prior prison
term be stricken. Again, the People concede, and we agree.
The trial court found defendant had been convicted of a robbery in March 2015.
The court imposed, then stayed, a one-year enhancement under section 667.5, subdivision
(b), as it existed at the time of sentencing. This prior conviction can no longer be used to
enhance defendant’s sentence when he is resentenced in this case. (See People v.
Gastelum (2020) 45 Cal.App.5th 757, 772.)
III. Defendant’s Ability to Pay Fines
Because this matter must be remanded under the full resentencing rule (People v.
Buycks (2018) 5 Cal.5th 857, 893), defendant’s challenge to the fines and fees imposed,
advanced pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 and related cases, is
moot. We will, thus, not consider those claims here.
DISPOSITION
Defendant’s sentence is vacated, and this case is remanded for resentencing. The
prosecution may elect to retry the section 186.22 gang enhancement, following changes
made by Assembly Bill 333. When defendant is resentenced, the trial court can no longer
rely on a prior prison term to enhance the sentence if it does not involve a sexually
violent offense, as is now required by section 667.5, subdivision (b), as amended by
Senate Bill 136. Following resentencing, the court shall forward an amended abstract of
judgment to the appropriate entities. In all other respects, defendant’s judgment is
affirmed.
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