People v. Hoffman CA3 ( 2022 )

Filed 4/25/22 P. v. Hoffman CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093703
Plaintiff and Respondent, (Super. Ct. No. 19FE021695)
v.
TYLER SHAWN HOFFMAN,
Defendant and Appellant.
Defendant Tyler Shawn Hoffman appeals from a judgment after a jury found him
guilty of carrying a concealed, loaded, and unregistered firearm in a vehicle (Pen. Code,
§ 25400, subds. (a)(1) & (c)(6)—count one)1 and carrying a loaded and unregistered
firearm in public (§ 25850, subds. (a) & (c)(6)—count two), and found true gang
enhancements (§ 186.22, subd. (b)(1)) as to both counts. On appeal, defendant contends
the jury’s true findings on the gang enhancements must be reversed because the trial
1 Undesignated statutory references are to the Penal Code.
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court erroneously admitted “inflammatory” rap lyrics that were found in his jail cell.
Alternatively, he contends the gang enhancements must be vacated and the matter
remanded for retrial due to statutory changes made by recently enacted Assembly Bill
No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) (Stats. 2021, ch. 699, § 3). He also
contends that a remand for resentencing is required under recently enacted Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) (Stats. 2021, ch. 731), in conjunction
with Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124) (Stats. 2021,
ch. 695) and Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill 1540)
(Stats. 2021, ch. 719).
The Attorney General agrees, as do we, that defendant is entitled to the retroactive
benefit of Assembly Bill 333 and Senate Bill 567 (Assembly Bill 124) under In re
Estrada (1965) 63 Cal.2d 740 (Estrada). Accordingly, we shall vacate the gang
enhancements and remand to give the People an opportunity to retry the enhancements
under Assembly Bill 333’s new requirements. We also shall vacate the sentence on
counts one and two and remand for resentencing in accordance with Senate Bill 567. In
all other respects, the judgment is affirmed.
BACKGROUND FACTS AND PROCEDURE
On November 2, 2019, California Highway Patrol (CHP) officers on patrol in an
unincorporated area of Fair Oaks, California, stopped defendant for driving a vehicle with
expired registration tags. The officers subsequently arrested defendant on an outstanding
warrant and called to have the vehicle towed for storage. Before the vehicle was taken,
one of the officers conducted an inventory search inside the vehicle, but he did not search
under the vehicle’s hood.
A. Firearm evidence
Defendant’s vehicle was towed to a secure tow yard equipped with surveillance
cameras. In the days thereafter, various persons, including two men and a female with a
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baby, tried to get into the vehicle, each claiming to be the registered owner of the vehicle.
The tow yard employees denied them access to the car.
A sheriff’s deputy called the tow yard and expressed concern that someone might
try to break into the vehicle. On the night of November 19, 2019, the owner of the tow
yard was alerted by security cameras that someone was trying to break into the tow yard.
To protect the vehicle, the owners of the tow yard attempted to move the vehicle inside
their warehouse, but the vehicle would not start. When they opened the hood to charge
the battery, they saw a black semiautomatic handgun near the car battery and called the
police. The gun later was identified as a “Glock 19” handgun, loaded with an extended
magazine and a cartridge in the chamber. The gun was not registered to defendant.
While defendant was in custody awaiting trial, he had several telephone
conversations with a friend named “Quintin.” The conversations were recorded and
excerpts were played for the jury. During the conversations, defendant asked Quintin to
find out where the vehicle was towed and to get “the thing” from the vehicle. Defendant
made it clear that he wanted Quintin to act quickly because the vehicle was going to be
sold at auction.
In a telephone call on the evening of November 18, 2019, Quintin informed
defendant that he was going to “get his shit tonight,” meaning that he was going to
retrieve defendant’s personal items from the vehicle, which included the gun. Defendant
told him to “open up the thing,” which Quintin understood to mean the vehicle’s hood.
Quintin then confirmed, “Do you want me to get the stuff . . . the hood; right[?]” About
1:30 the next morning, November 19, Quintin and another person went to the tow yard
and attempted, unsuccessfully, to find the vehicle and retrieve the gun.
Months later, a sheriff’s detective questioned Quintin about the incident. Quintin
told the officer that he went to the tow yard as defendant requested because he “didn’t
want [defendant] to get a gun charge.”
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B. Gang evidence
Sacramento County Sheriff’s Detective Ruben Ledesma testified as a gang expert
for the prosecution. He testified that the “Valley Hi Piru” is a criminal street gang
associated with the Valley High area in South Sacramento. He testified that the signs and
symbols associated with the gang include “VHP,” a hand sign that spells out V-H-P, the
color burgundy, and the numbers “78” (or “7800”) and “55” (or “5500”). He indicated
that Valley Hi Piru members refer to themselves as “Ru,” which is short for “Piru.” He
explained that Piru members show disrespect to the Crips, a rival gang, by replacing the
letter “c” with a different letter, such as “x,” except when the letters “c” and “k” appear
together, which stands for “Crip killer.”
Detective Ledesma testified that he set up a pretext phone call with defendant
through a fake social media account as part of an investigation into another Valley Hi
Piru gang member. On the call, which took place in February 2019, a female officer
pretended to be a person needing information about gangs for a paper that she was
writing. The recorded conversation was played to the jury. During the call, defendant
answered questions about the Valley Hi Piru gang, telling the officer that the gang’s color
is burgundy; that there are about 100 members in Sacramento; that there are five different
subsets within the gang; and that he was part of the “hunnits mafia” subset, which was
“strictly Valley Hi Piru.” Defendant also told the officer that the gang sold “powder,”
meaning cocaine.
Investigators searched defendant’s Facebook social media profile. Defendant’s
profile contained references to “Tyler Ru” and “Valley Hi Piru,” and included the phrase,
“No xut Hunnits Mafia striCKtly VHP WH78P.” Defendant listed “sells drugs” as his
occupation. Defendant’s profile picture showed him wearing a necklace with a “78”
pendant on it, and making the V-H-P hand sign.
In late November 2019, a sheriff’s deputy conducted a search of defendant’s jail
cell. The deputy observed gang-related writing on the walls near where defendant slept,
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including “Tyler Ru 78,” “7800 Piru,” and “VHP Hunnits mafia 7855 Piru no XUT.” On
the edge of defendant’s bunk, the deputy found a bag with papers inside. The
handwriting on the papers matched the writing on the wall. The papers appeared to
contain rap lyrics, one of which was titled, “Ballad to 7800 [¶] By: Tyler Ru 7855
Bloxk.” Excerpts of the lyrics were admitted at trial. They included numerous references
to guns, gun violence, selling drugs, and the Valley Hi Piru gang. For example, one part
of the lyrics stated, “Ghost gun with a switch and a drum can’t be traced.” Another part
stated, “Empty the whole switch barrell steamin[,] leave a nigga brains on the street . . . .”
Detective Ledesma testified about the significance of the writings found in the jail
cell. He explained that the writings demonstrated defendant was an active participant in
the Valley Hi Piru gang, and that the lyrics described the gang lifestyle, which involved
guns, drugs, and violence. Detective Ledesma testified that it would be life threatening
for someone to present as Valley Hi Piru if they were not a gang member.
To prove the existence of a criminal street gang for purposes of section 186.22, the
prosecutor offered the following predicate offenses.
On August 25, 2017, Leon Pringle was arrested for illegal possession of a stolen
firearm. In response to questioning, Pringle told the detective that he was affiliated with
Valley Hi Piru. Pringle was convicted for unlawful possession of a firearm based on the
incident.
On April 23, 2016, Sacramento police attempted to stop Eddy Robinson for
driving a vehicle with an expired registration tag. Robinson failed to stop and a pursuit
ensued. At one point during the pursuit, Robinson threw a firearm out of the driver’s side
window. Later during the pursuit, Robinson rammed the officer’s vehicle. Robinson was
convicted for being a felon in possession of a firearm, assault with a deadly weapon on a
peace officer, and evading a peace officer. Previously, during an August 2015 traffic
stop, Robinson had admitted that he was a member of the Valley Hi Piru gang. The
letters “V” and “H” were tattooed on Robinson’s left forearm; the numbers “7” and “8”
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were tattooed on his right and left hands, respectively; and the word “Piru” was tattooed
on his chest.
Relying in part on these predicate offenses, Detective Ledesma opined that Valley
Hi Piru is a criminal street gang because it is an ongoing association of three or more
individuals, having a common name or common identifying sign or symbol, whose
members collectively engage in, or have engaged in, a pattern of criminal gang activity
such as the offenses committed by Pringle and Robinson. Detective Ledesma also
opined, based on the totality of the circumstances, that defendant was an active
participant in the gang. In response to a hypothetical matching the facts of this case,
Detective Ledesma further opined that defendant committed the charged crimes for the
benefit of the gang.
C. Verdict and sentencing
Defendant was charged in an amended felony complaint, deemed the information,
with unlawfully carrying a concealed firearm in a vehicle, with special allegations that
the firearm was loaded and that defendant was not the registered owner (§ 25400, subds.
(a)(1) & (c)(6)—count one); and with unlawfully carrying a loaded firearm in public,
with a special allegation that defendant was not the registered owner (§ 25850, subds. (a)
& (c)(6)—count two). The information further alleged criminal street gang
enhancements (§ 186.22, subd. (b)(1)) as to both counts.
Following a trial, the jury found defendant guilty of both counts and found the
special allegations to be true. On February 19, 2021, the trial court sentenced defendant
to the middle term of two years on count one, plus the low term of two years for the gang
enhancement, for an aggregate term of four years. The court imposed an identical
sentence on count two, but stayed its execution under section 654. On February 24,
2021, defendant filed a timely notice of appeal.
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DISCUSSION
I
Assembly Bill 333
After sentencing, but while this appeal was pending, the Legislature enacted
Assembly Bill 333, which significantly modified the requirements to prove a gang
enhancement under section 186.22, effective January 1, 2022. (People v. Sek (2022) 74
Cal.App.5th 657, 663, 665 (Sek).) Defendant argues that the amendments apply
retroactively to his case, and that, because the jury convicted him under the prior version
of the law, the gang enhancements must be reversed. The Attorney General agrees, as do
we.
Section 186.22 provides for enhanced punishment when a person is convicted of
an enumerated felony “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).)
Before the enactment of Assembly Bill 333, the statute defined a “ ‘criminal street
gang’ ” as “any ongoing organization, association, or group of three or more persons, . . .
having as one of its primary activities the commission of one or more [enumerated
criminal acts], having a common name or common identifying sign or symbol, and whose
members individually or collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (§ 186.22, former subd. (f), italics added; Stats. 2017, ch. 561, § 178.) To
establish a “pattern of criminal gang activity,” the prosecution needed to prove only that
those associated with the gang committed two or more predicate offenses within a period
of three years and that the offenses were committed on separate occasions, or by two or
more persons on the same occasion. (Menifee v. Superior Court (2020) 57 Cal.App.5th
343, 362.) A predicate offense could be established by evidence of the charged offense
and, in most cases, it was unnecessary to prove that the predicate offenses were gang
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related.2 (Menifee, supra, at p. 362; People v. Rodriguez (2022) 75 Cal.App.5th 816, 822
(Rodriguez); People v. Garcia (2020) 46 Cal.App.5th 123, 165.)
Assembly Bill 333 increased the evidentiary burden necessary to prove a gang-
related enhancement in several respects. First, Assembly Bill 333 narrowed the
definition of “ ‘criminal street gang’ ” to “an ongoing, organized association or group of
three or more persons . . . whose members collectively engage in, or have engaged in, a
pattern of criminal gang activity.” (§ 186.22, subd. (f), italics added.) The statute now
requires the prosecution to prove that two or more gang members committed each
predicate offense. (People v. E.H. (2022) 75 Cal.App.5th 467, 477 (E.H.).)
Second, Assembly Bill 333 created stricter requirements to prove “a pattern of
criminal gang activity.” Under the new legislation, (1) the last predicate offense must
have occurred not only within three years of the prior predicate offense, but also within
three years of the date of the currently charged offense, (2) the predicate offenses must
have “commonly benefited a criminal street gang,” and that benefit must be “more than
reputational,”3 and (3) the currently charged offense cannot be used as a predicate
offense.4 (§ 186.22, subds. (e)(1)-(2), (g), italics added; People v. Lopez (2021) 73
Cal.App.5th 327, 345 (Lopez); Rodriguez, supra, 75 Cal.App.5th 822-823.)
2 Because the charged offense is required to be gang related (People v. Albillar
(2010) 51 Cal.4th 47, 60), if the prosecution used the charged offense to establish one of
the predicate offenses, the predicate offense was required to be gang related.
3 “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).)
4 In addition, under the new legislation, the predicate offenses must have been
committed by two or more gang “members,” as opposed to “persons,” and the list of
qualifying predicate offenses is reduced. (E.H., supra, 75 Cal.App.5th at pp. 477-478;
§ 186.22, subd. (e)(1).) Further, new section 1109 requires the court to bifurcate the trial
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The parties agree, as do we, that Assembly Bill 333’s changes apply retroactively
to defendant’s case. Under Estrada, supra, 63 Cal.2d 740, absent evidence to the
contrary, we presume that the Legislature intended such ameliorative changes to the
criminal law to apply to all criminal cases not yet final on appeal. (Id. at pp. 744-746;
Tapia v. Superior Court (1991) 53 Cal.3d 282, 301; People v. Nasalga (1996) 12 Cal.4th
784, 792.) Assembly Bill 333 is an ameliorative amendment that increases the threshold
for imposition of a gang enhancement. (Lopez, supra, 73 Cal.App.5th at p. 345; accord,
People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032.) Because Assembly Bill 333 is
silent regarding retroactivity, under Estrada, we presume it applies retroactively to all
nonfinal cases on appeal, including this one. (See, e.g., Lopez, at pp. 343-344; Sek,
supra, 74 Cal.App.5th at p. 667.)
Here, it is undisputed that the evidence presented at trial was insufficient to prove
the gang enhancements under the new law. The People did not present evidence to prove
that the predicate offenses constituted “collective” criminal gang activity, or that the
offenses commonly benefited the gang in a manner that was more than reputational. In
addition, the jury was not prohibited from relying upon the currently charged offenses to
establish a predicate offense, nor was it told that the predicate offenses must provide a
common benefit to the gang that is more than reputational.
In sum, the jury was not asked to, and therefore did not make, the factual
determinations that are now required to impose a gang enhancement under section
186.22. We therefore conclude that the gang enhancements must be vacated, and the
matter remanded to give the People an opportunity to retry the gang enhancements under
the amended law. (E.H., supra, 75 Cal.App.5th at p. 480; accord, Lopez, supra, 73
of any gang enhancement, upon the defendant’s request. (§ 1109, subd. (a); Stats. 2021,
ch. 699, § 5.)
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Cal.App.5th at p. 346; Sek, supra, 74 Cal.App.5th at p. 669; Rodriguez, supra, 75
Cal.App.5th at p. 823, fn. 19.)
II
Senate Bill 567
On October 8, 2021, while this appeal was pending, the Governor signed Senate
Bill 567, which altered the sentencing discretion under section 1170, effective January 1,
2022.5 (Stats. 2021, ch. 731.) Relevant here, Senate Bill 567 amended section 1170,
former subdivision (b), to create a presumption in favor of the low prison term whenever
“youth” was a contributing factor in the offense.6 (§ 1170, subd. (b)(6); Stats. 2021, ch.
731, § 1.3; see People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039.)7
Defendant argues that due to his age at the time of the offense (age 20), he meets
the statutory criteria for the new presumption. He further argues that because his
5 Three bills amending section 1170 were enacted and signed into law on the same
date. (Stats. 2021, ch. 695, § 5 (Assem. Bill No. 124), effective Jan. 1, 2022; Stats. 2021,
ch. 719, § 2 (Assem. Bill No. 1540), effective Jan. 1, 2022; Stats. 2021, ch. 731, § 1.3
(Sen. Bill No. 567), effective Jan. 1, 2022.) Senate Bill 567—which takes precedence
because it was enacted last (Gov. Code, § 9605)—states that if all three bills amending
section 1170 are enacted and become effective on or before January 1, 2022, and Senate
Bill 567 is enacted last, then section 1.3 of that bill, which incorporates the amendments
proposed by Senate Bill 567, Assembly Bill 124, and Assembly Bill 1540, shall become
operative. (Stats. 2021, ch. 731, § 3.)
6 A “ ‘youth’ ” is defined to include “any person under 26 years of age on the date
the offense was committed.” (§§ 1170, subd. (b)(6), 1016.7, subd. (b).)
7 Specifically, section 1170, subdivision (b)(6) provides in relevant part:
“Notwithstanding [section 1170, subdivision (b)(1)], and unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances [such] that imposition
of the lower term would be contrary to the interests of justice, the court shall order
imposition of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] . . . [¶] (B) The person is a youth, or was a youth as
defined under subdivision (b) of Section 1016.7 at the time of the commission of the
offense.” (§ 1170, subd. (b)(6); Stats. 2021, ch. 731, § 1.3.)
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judgment is not final, he is entitled to retroactive application of the amendments to
section 1170. Thus, he contends we must vacate his sentence and remand this matter so
the trial court can exercise its sentencing discretion in light of the new legislation.
The Attorney General concedes the change in the law is ameliorative and applies
retroactively to defendant’s case, requiring remand for resentencing. We accept the
Attorney General’s concessions. (See Estrada, supra, 63 Cal.2d at pp. 744-746; People
v. Flores, supra, 73 Cal.App.5th at p. 1039.) Accordingly, we will vacate the sentence on
counts one and two and remand for resentencing.
III
Admission of Rap Lyrics
Defendant also argues that the trial court violated Evidence Code section 352 and
the due process clause by admitting the “rap lyrics” found in defendant’s jail cell.
Defendant argues that the rap lyrics should have been excluded because the evidence was
more prejudicial than probative and it was cumulative of other, less inflammatory gang
evidence.8 He argues that the trial court’s error in admitting the evidence requires
reversal of the gang enhancements because, absent such evidence, it is reasonably
probable that the jury would have found the gang enhancement allegations “not true.”
In view of our conclusion that the gang enhancements must be reversed on other
grounds, we need not reach this issue. The trial court is best suited to consider
defendant’s evidentiary objections in the first instance should the People elect to retry the
enhancements.
8 Anticipating forfeiture, defendant alternatively argues that his counsel’s failure to
object to admission of the rap lyrics (1) should be excused because an objection would
have been futile; or (2) constituted ineffective assistance of counsel.
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DISPOSITION
We reverse the findings on the gang enhancements and remand this matter to give
the People an opportunity to retry the gang enhancements under Assembly Bill 333’s new
standard. If the People decline to retry the gang enhancements, defendant shall be
resentenced without reimposition of the gang-related enhancements. We also vacate the
sentence on counts one and two and remand for resentencing in accordance with Senate
Bill 567. In all other respects, the judgment is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
HOCH , J.
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