People v. Shinn CA2/2 ( 2023 )

Filed 5/17/23 P. v. Shinn CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B316256
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA102184)
v.
ORDER MODIFYING
EDWARD ALCARAZ SHINN et OPINION AND DENYING
al., REHEARING
Defendants and CHANGE IN THE
Appellants. JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on April 27, 2023, be
modified as follows:
1. On page 2, in the last paragraph, omit the last sentence
that begins with “We affirm their convictions” and insert
the following in its place:
We affirm their convictions for murder and general
conspiracy, but vacate their convictions for gang
conspiracy as well as some of the sentencing
enhancements and one of the special circumstances;
we thus remand for resentencing.
2. On page 10, in the last paragraph, omit the first
sentence that begins with “Shinn, Moreno and Landeros
challenge” and insert the following in its place:
In 344 pages of briefing (which does not include 192
pages of the People’s responsive brief), Shinn, Moreno
and Landeros challenge their convictions and
sentences on a plethora of grounds.
3. On page 21, in the penultimate line, immediately
following the phrase “and (2) the gang enhancements,”
insert the phrase “the gang conspiracy conviction, and”
so that the full sentence reads as follows:
Based on these changes, defendants argue that (1)
AB 333 invalidates all of their convictions because
the charged gang enhancements were tried at the
same time as their guilt (rather than being
bifurcated); and (2) the gang enhancements, the gang
conspiracy conviction, and the special circumstance
2
finding based on gang involvement and the firearm
enhancements for Shinn and Moreno that also turn
on their gang involvement, must be vacated and
retried under AB 333’s more stringent definitions.
4. On page 24, in the section heading that starts with “B.
Invalidation” insert the phrase “gang conspiracy
conviction,” immediately following the phrase “gang
enhancement,” so that the full section heading reads as
follows:
B. Invalidation of gang enhancement, gang
conspiracy conviction, gang-related firearm
enhancement, and gang-related special
circumstance
5. On page 24, omit the last sentence of the page that
continues onto page 25 and begins with “These
amendments apply not only” and the parenthetical
citation that immediately follows it; insert the following
in its place:
These amendments apply not only to the gang
enhancement itself in section 186.22, but also to the
firearms enhancement, special circumstance, and
gang conspiracy crime that incorporate the definition
set forth in section 186.22. (People v. Lee (2022) 81
Cal.App.5th 232, 244-245 (Lee), review granted Oct.
19, 2022, S275449; People v. Lopez (2022) 82
Cal.App.5th 1, 25.)
3
6. On page 26, omit the sentence that begins in line 8 with
“Because that proof is lacking here,” and insert the
following in its place:
Because that proof is lacking here, we must vacate
the gang enhancement and gang conspiracy
conviction as to all three defendants, the firearm
enhancements for Shinn and Moreno, and the gang-
related special circumstance finding as to all three
defendants.
7. On page 39, in the second sentence of the first
paragraph that begins with “The gang enhancements for
all three defendants,” delete the first word of the
sentence and replace it with “The gang conspiracy
conviction for all three defendants, the” so that the full
sentence reads as follows:
The gang conspiracy conviction for all three
defendants, the gang enhancements for all three
defendants, the firearm enhancements for Shinn and
Moreno, and the gang-related special circumstances
for all three defendants are vacated; the People may
elect whether to retry them.
8. On page 39, in the sentence that begins in line 6 with
“The sentences are to be vacated:” add the word
“general” immediately before the phrase “conspiracy
counts” and add the phrase “the gang conspiracy
4
convictions,” immediately after the phrase “if the People
elect not to retry” so that the full sentence reads as
follows:
The sentences are to be vacated: The multipliers on
Shinn’s and Moreno’s first degree murder LWOP
sentences are to be eliminated; the trial court is to
impose sentences on the general conspiracy counts; if
the People elect not to retry the gang conspiracy
convictions, the gang-related firearm enhancements
(for Shinn and Moreno) and the gang-related special
circumstances (for all defendants), they are to be
stricken; and the court is not to impose any parole
revocation fine.
* * *
This modification changes the judgment.
Appellants’ petitions for rehearing are denied.
——————————————————————————————
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
5
Filed 4/27/23 P. v. Shinn CA2/2 (unmodified opinion)
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 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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B316256
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA102184)
v.
EDWARD ALCARAZ SHINN et
al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed in part,
vacated in part and remanded with directions.
Donna L. Harris, under appointment by the Court of
Appeal, for Defendant and Appellant Edward Alcaraz Shinn.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant Edgardo Moreno.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant Alfredo Landeros.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.
******
After a Mexican Mafia gang member’s years-long practice
of beating his mistress resulted in a beating that landed her in
the hospital, the mistress—who was also the mother of one of his
children—started to cooperate with law enforcement to prosecute
him. Before she could testify at his trial on charges of domestic
violence and attempting to dissuade a witness, he directed other
gang members to execute her. The gang member and two other
gang members appeal their convictions for first degree murder
and other charges. We affirm their convictions, but vacate some
of the sentencing enhancements and one of the special
circumstances and also remand for resentencing.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Defendant Edward Shinn (Shinn) and Shanta
Lucero (Lucero) have an affair in which Shinn regularly
beats Lucero
In 2006, Shinn was married to Elysa Garcia (wife). That
same year, he started an extra-marital affair with Lucero.
Shinn’s affair with Lucero was marked by domestic
violence. In the more than two years between the time they met
and her murder, Shinn beat her or burned her with cigarettes
more than 100 times. When, in 2006, Lucero told Shinn that she
was pregnant with his child, he urged her to abort the pregnancy
because Shinn’s wife was pregnant at the same time. Shinn
continued to beat Lucero, even while she was pregnant. Lucero
left California at Shinn’s insistence.
In May 2007, Lucero returned to California; gave birth to
her child; got back together with Shinn; and he resumed beating
her regularly.
In July 2007, Shinn was arrested on charges of beating
Lucero. To avoid having to testify against him, Lucero moved to
Lompoc, California, again at Shinn’s insistence. Due to her
absence, the new criminal charges were dismissed and the case
was prosecuted solely as a parole violation; this resulted in a
shorter sentence, and Shinn was released from custody just a few
months later, in February 2008.
Upon Shinn’s release, Lucero moved back to town and
moved in with Shinn. The beatings resumed.
On June 24, 2008, Shinn chased Lucero outside their home
while she was carrying their child and proceeded to punch her
more than 10 times, including in the face. Shinn coaxed Lucero
3
back into the residence, where he beat her further. Lucero’s
injuries were severe: She had a broken nose, burst blood vessels
in her eyes, and a swollen jaw. She was taken to a hospital for
treatment.
While at the hospital, she told law enforcement that Shinn
had inflicted these injuries.
B. Shinn is prosecuted for the June 2008 beating
When Shinn learned that Lucero had spoken with police,
he took their son away, beat her, and forced her to call the
investigating police officer to say that her June 2008 beating was
caused—not by Shinn—but instead by a group of women. Lucero
subsequently told the police that Shinn had forced her to call
with a new story.
On June 30, 2008, the People charged Shinn with domestic
violence and with dissuading a witness. Shinn was arrested and
held in custody pending trial.
In the days prior to the preliminary hearing on those
charges, Shinn warned Lucero that he would have her killed if
she testified at the hearing. Lucero testified anyway. While she
testified, Shinn “smirk[ed]” and “sort of laugh[ed]” in the
courtroom. Immediately after she testified, Shinn called to tell
her, “I’m done with you, bitch. And fuck that kid, too.”
C. Shinn’s active role in the Mexican Mafia
For many years up to and including 2008, Shinn was a
member of the Oxnard-based Chiques gang, which was one of the
many Southern California-based gangs under the umbrella of the
Mexican Mafia. The Mexican Mafia oversees many street gangs
in California, including the Chiques gang and the West Side
Longos gang. Shinn enjoyed an elevated stature within the
4
Mexican Mafia because he worked directly with some of its
leaders.
By mid-2008, Edgardo Moreno (Moreno), Albaro Miranda
(Miranda), and Alfredo Landeros (Landeros) were all members of
the West Side Longos gang. Moreno was a “shot caller” (or “key
holder”) of the gang—that is, a member who directed the gang’s
members regarding which crimes to commit. Miranda was the
gang’s armorer; he was a repository of the gang’s firearms and
would loan or sell them to the gang’s members as directed.
Landeros was a younger gang member anxious to “earn his
stripes” by committing crimes for the gang.
A key policy of the Mexican Mafia—and hence of the street
gangs under its control—is that cooperating with law
enforcement against gang members is punishable by death.
D. Shinn tries to persuade Lucero not to testify,
while simultaneously hinting he might have her killed
Because Shinn had two prior “strike” convictions within the
meaning of our “Three Strikes” law, he believed that he was
“fighting . . . 175 to life” in the pending domestic violence case
involving Lucero.
Shinn took a two-track approach to his “fight.”
On one track, Shinn repeatedly called Lucero from jail to
encourage her to change her testimony. Specifically, he told
Lucero that she needed to be “school[ed]” on how to change her
testimony so as to blame her injuries on someone else. Shinn
reassured her that he did not want anything to happen to her,
and even said that he had divorced his wife so that he and Lucero
could be together. Shinn was lying: The day after Shinn told
Lucero about his divorce, he called his wife to ask her to forge
paperwork making it look like they were getting a divorce. Shinn
5
later bragged to others that he was trying to “brainwash” Lucero
into testifying in a way that exonerated him.
On the other track, Shinn strongly hinted to Lucero that
she would be killed if she rejected his “schooling.” He
“threatened her a lot of times”: He told her that she might have
trouble if she was informing on anyone, bragged that he had the
names and booking numbers of over 2,000 “homies,” and told her
that “it’s going to be all bad” for Lucero if his “people . . . get in
touch with Moreno.”
E. Shinn arranges to have Lucero killed
On August 10, 2008, Shinn called his wife from jail to ask
her to copy and transmit some “paperwork” to various “shot
callers” in the West Side Longos, East Side Longos, and Wilmas
street gangs. Around that time, Moreno approached a “shot
caller” in the West Side Longos named Lewis Guerrero
(Guerrero) with “paperwork” showing that Lucero had made
statements to police against “her baby daddy” (that is, Shinn) as
well as against another gang member out of Compton. Moreno
told Guerrero that Lucero “had to go.” Guerrero declined to take
action against Lucero, telling Moreno that it was a “domestic”
matter rather than a matter affecting the neighborhood.
On August 22, 2008, Lucero told Shinn that she was not
inclined to change her testimony because, in her view, Shinn
needed to “take responsibility” for his conduct in beating her.
On September 13, 2008, Moreno called Miranda and told
him that two people would be coming by Miranda’s residence and
needed to borrow one of his firearms. Moreno was miles away in
La Mirada at the time. Around 5 p.m., Moreno called Landeros.
Around 6 p.m., Landeros showed up at Miranda’s residence with
6
another gang member named Little Blanco. Miranda gave
Landeros a loaded revolver.
Around an hour later, Landeros called Lucero from a
location near her residence, and did so while blocking his phone
number. Landeros and Lucero traveled together to a nearby
alley. Landeros had Lucero get out of his car and get down on
her knees at the alley’s mouth. Landeros then shot her three
times in the back, killing her. Cell phone records confirmed
everyone’s movements.
The following day, Landeros and Little Blanco returned the
empty revolver to Miranda. The two men pantomimed someone
getting on their knees in prayer and “bragg[ed]” about how they
had executed her. Because the revolver had been used to “smoke
some girl,” Miranda disposed of it.
A few days after Lucero’s death, Moreno told others that
Lucero was a “rat” who got “smoked,” and that Moreno had had
“his torpedoes take care of it.”
F. Post-arrest statements
After his arrest, Landeros told police that he did not know
Lucero. Landeros had no explanation for the calls between his
phone and Lucero’s on the night of Lucero’s killing or how their
phones were traveling in tandem in the minutes before her death.
After his arrest, Miranda told a cell mate in a jail cell that
was equipped with a recording device that Lucero had been killed
because she had “snitch[ed]” on the “fool” who had hit her in the
face.
II. Procedural Background
A. Charges
In February 2021, the People charged Shinn, Moreno and
Landeros (collectively, defendants) with (1) the murder of Lucero
7
(Pen. Code, § 187, subd. (a)),1 (2) conspiracy to commit murder (§§
182, subd. (a)(1), 187, subd. (a)), and (3) criminal street gang
conspiracy to commit murder (§§ 182.5, 187, subd (a)). The
People alleged two special circumstances for the murder count—
namely, that (1) the victim was a witness to a crime who was
killed to prevent her testimony (§ 190.2, subd. (a)(10)), and (2) the
defendants committed the killing while active participants in a
criminal street gang (id., subd. (a)(22)). The People further
alleged that defendants either personally discharged a firearm
causing death (as to Landeros) (§ 12022.53, subd. (d)), or were
principals in a gang-related crime when a fellow principal
discharged a firearm causing death (as to Shinn and Moreno) (id.,
subds. (d), (e)(1)). The People alleged that all three crimes had
been committed for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).
As to Shinn, the People alleged that his two robbery convictions
each constituted “strikes” within our Three Strikes law (§§
1170.12, subds. (a)-(d), 667, subds. (b)-(j)); as to Moreno, the
People alleged that his prior assault with a deadly weapon count
constituted a “strike”; the People further alleged that these prior
felonies constituted “prior serious felonies” (§ 667, subd. (a)).
B. Trial
The matter proceeded to a four-week joint jury trial.
Shinn took the stand. He admitted to beating Lucero
regularly, but claimed that he was trying to protect her. Lucero
joined the West Side Longos after she had testified against a
1 All further statutory references are to the Penal Code
unless otherwise indicated.
The People also charged Miranda, but his appeal is not
before us.
8
gang member in Compton; according to Shinn, this automatically
meant she put a death warrant over her head the moment she
joined the gang. Shinn testified that he was trying to protect
Lucero and was asking Moreno for help in doing so. Although
Shinn, on various jail calls, repeatedly stated his belief that
Lucero was the “only witness” against him and that he would
“walk” if she did not show up at his trial, Shinn testified that he
had no reason to kill Lucero because Shinn knew that Lucero’s
preliminary hearing testimony could still be admitted at trial
against him under the former testimony exception to the hearsay
rule.
Moreno took the stand. Although Moreno had previously
stated on jailhouse calls that Landeros had killed Lucero at
Moreno’s behest (and that Moreno himself was at a family vow
renewal ceremony in La Mirada at the time of the killing), and
although Moreno’s cell phone was pinging towers in La Mirada,
Moreno testified that he had killed Lucero and had done so solely
because she had cooperated with the police in the case regarding
the Compton gang member. Moreno said he did not care about
Lucero’s cooperation in the domestic violence case involving
Shinn.
Miranda took the stand. He denied that Moreno ever asked
him to supply Landeros with a gun, denied knowing Landeros at
all, and denied the statements he made in jail to an undercover
informant admitting to giving Landeros the gun.
The jury found defendants guilty of all charges, including
for first degree murder, and found true all allegations.
Shinn waived his right to a jury, and the judge found the
prior “strike” convictions true. Moreno admitted his prior “strike”
conviction.
9
C. Sentencing
The trial court sentenced Shinn to three terms of life
without the possibility of parole (LWOP) on the first degree
murder charge (comprised of one LWOP sentence, but tripled
because it was a third strike), plus 25 years for the firearm
enhancement, plus 10 years for the two prior serious felony
convictions. The court did not orally pronounce any sentence as
to the remaining conspiracy counts, but “stayed” them under
section 654. The court also imposed $11,295.50 in victim
restitution, a $10,000 restitution fine, and court fees and
assessments totaling $210.
The trial court sentenced Moreno to two LWOP sentences
(comprised of one LWOP sentence, but doubled because it was a
second strike), plus 25 years for the firearm enhancement, plus
five years for the prior serious felony conviction. The court did
not orally pronounce any sentence as to the remaining conspiracy
counts, but “stayed” them under section 654.
The trial court sentenced Landeros to LWOP, plus 25 years
for the firearm enhancement. The court did not orally pronounce
any sentence as to the remaining conspiracy counts, but “stayed”
them under section 654.
D. Appeal
Shinn, Moreno and Landeros filed timely notices of appeal.
DISCUSSION
Shinn, Moreno and Landeros challenge their convictions
and sentences on a number of grounds. We have broken these
challenges into three broad categories—namely, challenges to
evidentiary rulings, challenges based on Assembly Bill No. 333
(2021-2022 Reg. Sess.) (AB 333), and challenges to various
aspects of their sentences.
10
I. Evidentiary Challenges
Shinn raises three challenges to the trial court’s
evidentiary rulings. We review such rulings for an abuse of
discretion. (People v. Mataele (2022) 13 Cal.5th 372, 413.)
A. Admission of wife’s statement
1. Pertinent facts
During a July 21, 2019, jailhouse telephone call, Shinn and
his wife got into an argument over a “star witness” in the
upcoming trial in this case. After a heated back-and-forth
exchange where the wife kept cutting Shinn off as he was urging
her to contact that witness, the following exchange occurred:
[Wife:] “If you fuckin’ mak[e] this shit worse, I’m
gonna tell the fuckin’ people I—”
[Defendant:] “Please, listen, Mom—”
[Wife:] “—still have—”
[Defendant:] “—mira (look).”
[Wife:] “—the fuckin’ letter.”
[Defendant:] “Mira (Look).”
[Wife:] “I still have the letter when you sent those
guys to fuckin’ kill—”
[Defendant:] “—Mamita (Little Momma)—”
[Wife:] “—that bitch.”
[Defendant:] “Mama (Mommy).”
[Wife:] “So I’m gonna call the fuckin’—”
[Automated
operator:] “Thank you for using GTL.”
(Italics added.)
Over Shinn’s hearsay objection, the trial court ruled that
the jury could hear the snippet of the call containing the
italicized language and decide for itself whether the wife’s
11
statement—in light of Shinn’s decision to hang up on her rather
than refute her statement—could be treated as his tacit
admission that he did, in fact, send a letter directing Lucero’s
murder. The court instructed the jury using CALCRIM No. 357,
leaving the jury to decide for itself whether to believe that Shinn
would have “naturally … denied the statement if he thought it
was not true” and whether he “could have denied it but did not.”
2. Analysis
The hearsay rule bars the admission of out-of-court
statements for their truth. (Evid. Code, § 1200.) The rule does
not, however, bar the admission of a party’s statements when
offered against that party—whether the party makes those
statements himself (Evid. Code, § 1220) or whether the party
adopts statements made by someone else (Evid. Code, § 1221). A
party is deemed to adopt someone else’s statement as his own—
and hence have it admitted against him notwithstanding the
hearsay rule—if the other person’s statement “‘“would normally
call for a response if the statement were untrue,”’” yet the party
instead remained silent, evasive, or equivocal. (People v.
Jennings (2010) 50 Cal.4th 616, 661 (Jennings); People v. Riel
(2000) 22 Cal.4th 1153, 1189.) A trial court properly allows a
“‘jury to decide’” whether to treat a party’s statement as an
adoptive admission as long as “‘the evidence supports a
reasonable inference that an accusatory statement was made
under circumstances affording a fair opportunity to deny the
accusation.’” (People v. Geier (2007) 41 Cal.4th 555, 590, quoting
People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)
Here, the trial court did not abuse its discretion in
concluding that the evidence sufficiently supported a reasonable
inference that Shinn had adopted his wife’s statement when he
12
hung up on her, such that it should go to the jury. Shinn hung up
on his wife immediately after she said, “I still have the letter
when you sent those guys to fuckin’ kill . . . that bitch.” Whether
an accusation of orchestrating a murder, if untrue, would
“normally call for a response” is certainly reasonable enough to go
to the jury. Whether Shinn’s act of hanging up rather than
denying the wife’s accusation constitutes an adoption of that
accusation through requisite silence, evasiveness, or equivocality
is also reasonable enough to go to the jury. (Accord, In re Jordan
R. (2012) 205 Cal.App.4th 111, 136 [defendant’s conduct in
hanging up when accused of misconduct rendered the statements
“adoptive admission[s]”].)
Shinn responds with three groups of arguments.
First, he argues there was insufficient evidence to submit
the issue of whether this was an adoptive admission to the jury.
He points to the transcript, urging that his wife kept interrupting
him and thus prevented him from denying the truth of her
statement. Although his wife certainly interrupted him several
times, once she got out her full statement, Shinn did not even try
to correct her; he simply hung up. Shinn posits that the trial
court’s ruling was based on incorrect facts because the court
stated that Shinn hung up “the moment [his wife] mentioned
anything [potentially about] this case” and because Shinn and his
wife talked about the case during the call for several minutes
before she made the italicized statement. Shinn misreads the
transcript. What the transcript shows is that Shinn and his wife
discussed his efforts to have her contact a “star witness” for many
minutes before he hung up on her; the topic of Shinn’s “kill order”
did not come up until the very end of the conversation, right
before he hung up on his wife. It is clear from the context of the
13
court’s ruling that what it meant by “anything [potentially about]
this case” was the kill order, not the prior discussions about the
star witness. Shinn lastly asserts that it was unclear who hung
up on whom. We disagree. The transcript reflects that the end of
the call cut off the wife mid-sentence; a jury could reasonably
conclude that she did not hang up on herself mid-sentence.
Similarly, the prosecutor proffered—without dispute—that
defendant had ample money on his phone card to avoid having
the call cut short due to lack of money; and even if that proffer
may not be considered, the jury could look at the context as a
whole and reasonably conclude that Shinn hung up on his wife.
That is all that is needed to send this question to the jury.
Second, Shinn argues that the statement should have been
excluded under Evidence Code section 352. That section
empowers a trial court to “exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time, or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352.) Here, Shinn’s
adoptive admission is very probative of his intent to kill Lucero
and his involvement in directing others to kill her. Shinn is
correct that this statement is prejudicial to him (as all relevant
evidence introduced by the People typically is), but Evidence
Code section 352 is concerned with whether it is unduly
prejudicial, and undue prejudice turns on whether the evidence is
emotionally evocative. (E.g., People v. Schultz (2020) 10 Cal.5th
623, 670.) This evidence is not.
Lastly, Shinn argues that admission of this evidence
violated due process. Because it complied with the Evidence
Code, however, it did not violate due process. (People v.
14
Hawthorne (1992) 4 Cal.4th 43, 58; People v. Lawley (2002) 27
Cal.4th 102, 154-155.)
B. Admission of Carlos Ponce’s statement
1. Pertinent facts
a. Jailhouse calls
Moreno was placed in a jail cell with Carlos Ponce (Ponce)
and Raul Aguilar (Aguilar), two other West Side Longos gang
members. The cell contained a hidden recording device.
i. March 26, 2010, Conversation
On March 26, 2010, the three men discussed Lucero’s
killing. Moreno told Ponce and Aguilar that Landeros wanted to
“do it” because he wanted to “earn [his] stripes” in the gang, and
that Moreno had consequently “told [Landeros] to do it alone.”
Ponce then noted that prosecutors could still “try to get [Moreno]
for the conspiracy to commit murder” unless Moreno got
Landeros “to say that he didn’t do it” and unless Moreno came up
with an alibi. Moreno responded that he had an alibi because he
was “at a wedding” when the killing went down. Moreno later
reported that Miranda had supplied the gun used to kill Lucero
and had called Moreno afterwards to tell him that “[t]he . . . (job)”
was “done.”
ii. May 3, 2010, Conversation
Five weeks later, the three men again discussed Lucero’s
killing. Moreno again reminded Ponce and Aguilar of his alibi for
the killing as well as the fact that Landeros was “the one that did
her.” Ponce again responded that prosecutors could “still get
[Moreno] for conspiracy.” After Ponce recounted that Shinn had
passed the “paperwork” on Lucero to his wife, so that the wife
could pass that paperwork on to Moreno, Ponce seemingly
expressed admiration for Shinn, noting “He had his baby’s mom
15
killed. He killed his baby’s mom. That’s gangster.” (Italics
added.) Moreno did not dispute that statement; instead, Moreno
explained how he would avoid responsibility for his role in
Lucero’s killing by denying knowing Shinn (because Shinn was
“from Oxnard”) and by asserting his alibi.
b. Severance motion
Prior to trial, Shinn made two motions to sever his trial
from his codefendants. Shinn also objected to the introduction of
Ponce’s May 3, 2010, statements italicized above.2 The People
opposed severance, and argued that Moreno had adopted Ponce’s
statement and Moreno’s adoptive admission was against his
penal interest. The trial court denied the severance motion and
ruled that Ponce’s statement was admissible.
2. Analysis
Although Shinn urged that severance was appropriate
because the admission of Ponce’s statement violated the
Confrontation Clause and because it was inadmissible hearsay,3
Shinn on appeal presses only the hearsay objection as well as a
new objection that admission of this evidence contravenes
Evidence Code section 352.
2 Shinn’s motions also opposed the introduction of
statements made by other codefendants, but Shinn does not
appeal the introduction of those other statements.
3 The Confrontation Clause objection is not well taken
anyway. The jailhouse conversations were recorded
surreptitiously, and it is now well settled that the Confrontation
Clause after Crawford v. Washington (2004) 541 U.S. 36 only
applies if an out-of-court statement is “testimonial” and that
statements between friends who do not realize they are being
recorded are not “testimonial” statements. (People v. Washington
(2017) 15 Cal.App.5th 19, 28-29 [so holding].)
16
a. Admissibility of Ponce’s May 3, 2010,
statement under the hearsay rule
Hearsay is generally inadmissible. (Evid. Code, § 1200,
subd. (b).) Two exceptions to this general rule of inadmissibility
are pertinent to—and together justify—the admission of Ponce’s
statement during the May 3, 2010, conversation.
The first pertinent exception is the adoptive admission
exception. As noted above, a party is deemed to adopt someone
else’s statement as his own if the other person’s statement “would
normally call for a response if the statement were untrue” and if
the party—rather than dispute the statement—instead remains
silent, evasive, or equivocal. (Evid. Code, § 1221; Jennings,
supra, 50 Cal.4th at p. 661.) Here, Ponce asserted that Shinn
had committed the crime of murder by “ha[ving] his baby’s mom
killed,” yet Moreno—rather than denying the truth of this
statement—merely reaffirmed that he would deny knowing
Shinn and would assert an alibi. Contrary to what Shinn argues
on appeal, Ponce knew Moreno was potentially liable for Lucero’s
murder (1) because Moreno had previously told Ponce—during
their March 26, 2010, conversation—that he had ordered
Landeros to do the killing, (2) because Shinn had transmitted the
paperwork on Lucero to Moreno, and (3) because Moreno had
gotten confirmation of the killing from Miranda. Indeed, Ponce
had repeatedly remarked that Moreno could still be liable for
Lucero’s murder as a coconspirator. Because Moreno had
admitted to Ponce that Moreno had orchestrated Lucero’s murder
after Shinn gave him the “paperwork” on her, Ponce’s statement
that Shinn “had his baby’s mom killed” implicated Moreno in the
murder. Because a person liable for a murder (whether on a
theory of direct liability or a theory of conspiratorial liability)
17
would normally dispute his involvement, Moreno adopted Ponce’s
statement when he failed to dispute Ponce’s reaffirmation of
Shinn’s role in making the kill order that Moreno subsequently
carried out. As a result, Ponce’s statement became Moreno’s
statement.
The second pertinent hearsay exception is the exception for
declarations against interest. Evidence Code section 1230
provides that a hearsay statement is admissible if (1) the
declarant is unavailable, (2) the declaration was against the
declarant’s penal interest when made, and (3) the declaration is
sufficiently reliable. (People v. Duarte (2000) 24 Cal.4th 603, 610-
611.) In applying this hearsay exception, the appropriate
question is whether each statement to be admitted is “specifically
disserving to the interests of the declarant.” (People v. Leach
(1975) 15 Cal.3d 419, 441.) Because Moreno adopted Ponce’s
statement, the declarant is Moreno. Moreno was unavailable to
testify at the joint trial due to his privilege against self-
incrimination. The statement that Shinn had directed Lucero’s
murder—stated immediately after Moreno had admitted his role
in carrying out that murder as well as Ponce’s (accurate)
assessment that Moreno could be held liable for the murder as a
conspirator—was against Moreno’s penal interest when Moreno
adopted it. And because it was, as far as Moreno and Ponce
knew, a statement between fellow gang members who had no
incentive to exaggerate or to minimize their roles, it was
sufficiently reliable. (People v. Greenberger (1997) 58 Cal.App.4th
298, 335 (Greenberger) [“the most reliable circumstance is one in
which the conversation occurs between friends in a noncoercive
setting that fosters uninhibited disclosures”].) Under California
law, if a statement constitutes a declaration against penal
18
interest as to one party and “implicates” another party at the
same time, that statement is admissible in a joint trial against
both of those parties notwithstanding the hearsay rule as long as
it meets the “constitutional requirement of trustworthiness.” (Id.
at pp. 332-335; People v. Cervantes (2004) 118 Cal.App.4th 162,
176-177.) Here, the trial court did not abuse its discretion in
finding that Moreno’s adoptive admission implicated both himself
and Shinn in Lucero’s murder and, as noted above, was reliable
and hence trustworthy.
Because Ponce’s statement was properly admitted into
evidence and was admissible against both Moreno and Shinn, the
trial court properly admitted that statement and did not abuse its
discretion in denying Shinn’s severance motion because the cross-
admissibility of that evidence counseled strongly in favor of a
joint trial. (People v. Holmes, McClaine & Newborn (2002) 12
Cal.5th 719, 801-802 [noting that “joint trials are preferred” and
that severance “may be appropriate” only “‘if there is an
incriminating confession’” admissible against one—but not all—
defendants to be jointly tried]; People v. Sanchez (2016) 63
Cal.4th 411, 463-464 [same].)
b. Admissibility of Ponce’s May 3, 2010,
statement under Evidence Code section 352
The trial court also did not abuse its discretion in admitting
Ponce’s statement—as adopted by Moreno—under Evidence Code
section 352. The statement was probative of Shinn’s role in
getting the ball rolling on Lucero’s murder. It was also not
unduly prejudicial.
c. Lack of prejudice
The erroneous admission of evidence and the failure to
sever defendants can be harmless if there is no reasonable
19
probability that the defendant would have obtained a better
result if the matter had been severed. (People v. McLain (1988)
46 Cal.3d 97, 105-106; People v. Wheeler (1973) 32 Cal.App.3d
455, 461; People v. Partida (2005) 37 Cal.4th 428, 439.) Shinn
argues that we must apply the harmless error test reserved for
federal constitutional errors; we reject this argument, as the
alleged error here is purely one of state evidentiary law. But
even if we were to apply the more stringent harmless error test
and ask whether the admission of Ponce’s statement was
harmless beyond a reasonable doubt, it was. That is because the
evidence of Shinn’s involvement in Lucero’s murder was very
strong. Shinn had the motive to kill her due to her upcoming
testimony in his trial that would put him away for “175 to life.”
Shinn told Lucero she was in trouble if “his people” got hold of
Moreno, and Shinn proceeded to make good on that threat by
transmitting Lucero’s “paperwork” to Moreno to facilitate
Lucero’s killing. Shinn’s wife stated on the later jailhouse call
that the paperwork Shinn gave her was effectively a kill order.
Ponce’s statement regaling Shinn for issuing that kill order does
not undercut this otherwise overwhelming evidence of Shinn’s
involvement.
d. Shinn’s further arguments
Shinn makes three further arguments.
First, he argues that Ponce’s statement is not admissible
because it is not admissible against Ponce’s penal interest. This
is irrelevant. What matters, as noted above, is that Moreno
adopted Ponce’s statement as his own and that Moreno’s
acknowledgment that Shinn had directed a murder that Moreno
had—in front of Ponce—already taken responsibility for carrying
out, was certainly against Moreno’s penal interest.
20
Second, Shinn argues that Greenberger is not factually “on
all fours” with this case. Again, this is irrelevant because
Greenberger set forth the applicable test for admitting one
defendant’s declaration against interest against another
defendant during their joint trial; as noted above, that test is
satisfied here.
Lastly, Shinn argues that Ponce’s statement would have
mattered to the outcome of his trial. Again, we disagree for the
reasons stated above.
C. Cumulative error
Shinn argues that these two errors, even if not sufficient on
their own to justify reversal of his convictions, do so when
considered cumulatively. We disagree. Because we conclude that
the trial court did not commit two evidentiary errors, there is no
error to cumulate. (People v. Carpenter (1999) 21 Cal.4th 1016,
1064.)
II. AB 333-Based Challenges
Effective January 1, 2022, AB 333 (1) alters the
requirements of the street gang enhancement set forth in section
186.22, which had the ripple effect of altering the requirements of
the firearm enhancement and special circumstance that borrow
section 186.22’s definition (People v. Lopez (2021) 73 Cal.App.5th
327, 346 (Lopez)); and (2) requires that adjudication of the gang
enhancement be bifurcated to a separate stage of trial following
the adjudication of guilt (Pen. Code, § 1109). (Stats. 2021, ch. 699,
§§ 4, 5.) Based on these changes, defendants argue that (1) AB
333 invalidates all of their convictions because the charged gang
enhancements were tried at the same time as their guilt (rather
than being bifurcated); and (2) the gang enhancements, as well as
the special circumstance finding based on gang involvement and
21
the firearm enhancements for Shinn and Moreno that also turn
on their gang involvement, must be vacated and retried under AB
333’s more stringent definitions. Because resolution of these
issues requires statutory interpretation, constitutional questions,
and the application of the law to undisputed facts, our review is
de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694 (Tirado)
[statutory interpretation]; County of Santa Clara v. Superior
Court (2023) 87 Cal.App.5th 347, 358 (County of Santa Clara)
[constitutional interpretation]; Martinez v. Brownco Construction
Co. (2013) 56 Cal.4th 1014, 1018 (Martinez) [application of law to
undisputed facts].)
A. Invalidation of all convictions due to failure to
bifurcate the gang enhancement (and other enhancements
and special circumstances based on the gang
enhancement)
AB 333 added section 1109, which requires that the “truth”
of the gang enhancement allegation contained in section 186.22
be adjudicated “in [a] separate phase[]” after guilt is adjudicated.
(§ 1109, subd. (a).) Currently, the appellate courts in California
are divided over whether section 1109 applies retroactively to
persons, like defendants, whose convictions are not yet final but
who were tried prior to AB 333’s effective date. (Compare People
v. Burgos (2022) 77 Cal.App.5th 550, 564 (Burgos) [section 1109
is retroactive], review granted July 13, 2022, S274743; People v.
Ramos (2022) 77 Cal.App.5th 1116, 1128 [same]; People v.
Montano (2022) 80 Cal.App.5th 82, 108 [same] with People v.
Perez (2022) 78 Cal.App.5th 192, 207 [section 1109 is not
retroactive]; People v. Bourkes (2022) 83 Cal.App.5th 937, 948
[same]; People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [same],
22
review granted Oct. 12, 2022, S275341.) Our Supreme Court has
granted review in Burgos, ostensibly to resolve this split.
We need not wade into this split of authority, or try to read
the tea leaves about what our Supreme Court will do, because our
Supreme Court has held that any error in the failure to bifurcate
the gang enhancement under section 1109 is harmless if it is not
reasonably likely the exclusion of evidence related solely to the
gang enhancement would have changed the jury’s verdicts on
guilt. (People v. Tran (2022) 13 Cal.5th 1169, 1208-1210 (Tran).)
The vast majority of gang-related evidence in this case was
directly relevant to the charged crimes of murder, conspiracy to
commit murder, and gang conspiracy to commit murder. Thus,
even if the gang enhancements, gang-related firearm
enhancements and gang-related special circumstances had been
bifurcated, much of the gang-related evidence would still have
been admitted during the guilt phase of the trial. This includes
the evidence regarding Shinn’s elevated role in the Mexican
Mafia, that gang’s tenets against snitching, the organization of
that gang as well as the West Side Longos, and the positions of
Moreno, Landeros and Miranda within the West Side Longos.
The only evidence that would have been excluded—because it
was relevant solely to the gang enhancement—was the evidence
of (1) the four crimes committed in the past by two Mexican
Mafia gang members and two West Side Longos gang members—
none of whom had any role in Lucero’s murder—relevant to prove
the pattern of gang activity; (2) the gang experts’ testimony
regarding the Mexican Mafia’s and West Side Longos’ primary
activities (which included murder, attempted murder, assault
with a deadly weapon, possession of illegal firearms, and witness
intimidation) relevant to prove the gang’s purpose; and (3) the
23
gang expert testimony regarding the symbols and sizes of the two
gangs. Yet this evidence is either less egregious than the crimes
charged in this case or wholly irrelevant to whether the charged
defendants committed the crimes charged in this case. (Accord,
Tran, at pp. 1208-1210 [finding failure to bifurcate harmless];
People v. E.H. (2022) 75 Cal.App.5th 467, 480 [same].) The
evidence of defendants’ guilt of Lucero’s murder is also incredibly
strong, and is comprised of the wealth of recorded jailhouse calls
where Shinn and Moreno admitted to their roles in the killing, of
cell phone records, and of the recorded statements of others
complicit in the crime. Thus, the failure to bifurcate provides no
basis for disturbing defendants’ convictions.
B. Invalidation of gang enhancement, gang-
related firearm enhancement, and gang-related special
circumstance
AB 333 also amends the definition of the gang
enhancement in several ways because it now requires: (1) the
commission of two or more prior offenses within three years of
the date of the current offense, and does not include the crimes
charged in this case in that tally; (2) the benefit of the charged
crime(s) to the gang be “more than reputational”; and (3) proof
that the gang members “collectively engage in, or have engaged
in, a pattern of criminal gang activity.” (§ 186.22, subds. (f), (g).)
These amendments apply retroactively to cases, like defendants’,
that are not yet final. (Tran, supra, 13 Cal.5th at pp. 1206-1207.)
Because these amendments effectively impose new requirements
of proof, jury instructions that omit them are defective. (Id. at p.
1207.) These amendments apply not only to the gang
enhancement itself in section 186.22, but also to the firearms
enhancement and special circumstance that incorporate the
24
definition set forth in section 186.22. (People v. Lee (2022) 81
Cal.App.5th 232, 244-245 (Lee), review granted Oct. 19, 2022,
S275449.) The People assert that AB 333 cannot amend the
special circumstance because doing so would unconstitutionally
amend a voter-enacted initiative (namely, Proposition 21). The
Courts of Appeal are also currently split on this question.
(Compare People v. Rojas (2022) 80 Cal.App.5th 542, 547, 557
(Rojas) [AB 333 unconstitutionally amends Proposition 21],
review granted Oct. 19, 2022, S275835 with Lee, supra, at pp.
240-245 [AB 333 does not unconstitutionally amend Proposition
21]; People v. Lopez (2022) 82 Cal.App.5th 1, 24-25 [same].) This
question is also currently before our Supreme Court. (Rojas,
supra, 80 Cal.App.5th 542; Lee, supra, 81 Cal.App.5th 232.)
However, we are more persuaded by the reasoning of the cases
holding that AB 333 may constitutionally be applied to the
special circumstance; because the People’s arguments to the
contrary are ably dealt with in those cases, we will not repeat
them here.
Of course, the omission of elements is subject to harmless
error analysis under Chapman v. California (1967) 386 U.S. 18,
24 (Chapman). (Tran, supra, 13 Cal.5th at pp. 1207-1209.) In
this context, Chapman’s harmless beyond a reasonable doubt
analysis requires us to ask: Is the evidence of the missing
elements undisputed and overwhelming? (People v. Merritt
(2017) 2 Cal.5th 819, 828.) We conclude the answer is “no.”
Here, nearly all of the prior convictions admitted in this case
were committed by a single person; they were not committed
“collectively.” Although the Courts of Appeal are split on what
the term “collectively” means (compare People v. Delgado (2022)
74 Cal.App.5th 1067, 1088-1089 [“collectively” requires proof that
25
the prior offenses were “committed by more than one person”];
Lopez, supra, 73 Cal.App.5th at pp. 344-345 [same] with People v.
Clark (2022) 81 Cal.App.5th 133, 145-146 [“collective[]” action
may also be shown by “two gang members who separately
committed crimes on different occasions”]), we are more
persuaded by the cases holding that collectively means that each
prior crime must be committed by more than one gang member.
Because that proof is lacking here, we must vacate the gang
enhancements as to all three defendants, the firearm
enhancements for Shinn and Moreno, and the gang-related
special circumstance finding as to all three defendants.
III. Sentencing Challenges
Defendants raise a number of challenges to their sentences.
Trial court rulings involving the interpretation of statutes or the
application of undisputed facts to the law are reviewed de novo.
(Tirado, supra, 12 Cal.5th at p. 694 [statutory interpretation];
County of Santa Clara, supra, 87 Cal.App.5th at p. 358
[constitutional interpretation]; Martinez, supra, 56 Cal.4th at p.
1018 [application of law to undisputed facts].) Factual findings
are reviewed for substantial evidence. (E.g., People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.) And sentencing decisions
involving the exercise of discretion are reviewed for an abuse of
that discretion. (E.g., People v. Panozo (2021) 59 Cal.App.5th
825, 837.)
A. Allocution
Shinn argues that the trial court violated his statutory and
due process-based rights to speak (or allocute) at his sentencing
hearing.
26
1. Pertinent facts
At his November 1, 2021, sentencing hearing, Shinn was
represented by counsel. At the outset of the hearing, the trial
court confirmed that Shinn’s counsel had filed a motion for new
trial that needed to be resolved prior to sentencing. Shinn’s
counsel noted that Shinn himself was “requesting” a continuance
of the sentencing hearing because Shinn had consulted a new
attorney about filing a second motion for new trial and Shinn was
“working on legal filings of his own.” After confirming with
Shinn that his attorney’s representations were correct, the trial
court denied the request for a continuance. The court then
invited argument on the previously filed new trial motion and
ultimately denied the motion.
The court then asked, “Defendant waive time for judgment,
arraignment for sentencing, no legal cause?” Shinn’s counsel
responded, “Yes, your honor.” Shinn then asked, “Can I address
the court?” but the trial court proceeded to impose sentence. (The
record does not reflect whether the court heard defendant’s
question.) The court imposed sentence. When the court asked
the prosecutor for the current tally of Shinn’s custody credits,
Shinn twice interjected, “I want to address the judge.” The court
then imposed direct restitution and informed Shinn of his right to
appeal.
When the court asked Shinn’s counsel if he had “anything
further,” counsel noted an objection to the amount of the $10,000
restitution fine and then said that Shinn “would like to address
the court.” The court responded, “No.” The following colloquy
occurred:
[Shinn:] “I can’t address the court?”
[The court:] “No.”
27
[Shinn:] “There’s no bias? Conflict of interest?
Huh?”
[The court:] “That’s what you want to address, bias?”
[Shinn:] “You’re biased. Yeah, you’re biased.”
Shinn then opined that the trial judge had been “prejudicial”
“from the get-go,” and that he was “gonna appeal.”
2. Analysis
Before a trial court may impose a criminal sentence, the
court must ask the defense “whether [there is] any legal cause to
show why judgment should not be pronounced against him.” (§
1200.) “Legal cause” to prevent the pronouncement of judgment
is statutorily defined to include that (1) the defendant “is insane,”
or (2) the defendant has “good cause to offer, either in arrest of
judgment or for a new trial.”4 (§ 1201.) A defendant also has the
right to present evidence in support of a mitigated sentence by
testifying on his own behalf under oath and subject to cross-
examination. (§ 1204; People v. Evans (2008) 44 Cal.4th 590, 598
(Evans).) However, a defendant does not have the right to argue
mitigating factors other than as a witness, particularly when
represented by counsel. (Evans, at pp. 599-600; Tran, supra, 13
Cal.5th at pp. 1225-1226.)
The trial court did not transgress any of these rules. The
court asked Shinn’s counsel if there was “any legal cause” not to
impose sentence, and counsel responded, “No.” That is
sufficient—by itself—to constitute compliance with section 1200.
4 A motion “in arrest of judgment” tests whether the court
lacks “jurisdiction of the offense” charged, whether the facts
“constitute a public offense,” or whether there is a “legal bar” to
prosecution. (§§ 1185, 1004; People v. Morgan (1977) 75
Cal.App.3d 32, 39-40.)
28
(Tran, supra, 13 Cal.5th at p. 1225 [“Here, the trial court asked
whether there was ‘any legal cause as to why [the] sentence
should not be imposed’ [and] . . . Tran’s counsel replied, ‘No.’
That satisfies section 1200”].) Defendant also did not at any
point offer or ask to testify on his own behalf at the sentencing
hearing. Thus, there was no violation of section 1204. And, as
noted above, defendant has no other statutory or constitutional
right to address the court at sentencing.
Defendant resists this conclusion with two arguments.
First, defendant seems to argue that he is entitled to
countermand his counsel’s representation to the court that there
was no “legal cause” to forestall the imposition of sentence. He is
wrong. A criminal defendant who is represented by an attorney
is bound by his attorney’s representations to the court. (People v.
Merkouris (1956) 46 Cal.2d 540, 554-555 (Merkouris); Townsend
v. Superior Court (1975) 15 Cal.3d 774, 780-781; cf. McCoy v.
Louisiana (2018) __U.S.__ [138 S.Ct. 1500, 200 L.Ed.2d 821]
[defendant not bound by counsel’s tactical decisions about the
theory of the defense].) The defendant will not be permitted to
contradict his attorney. (Merkouris, supra, at pp. 554-555.)
Indeed, California cases specifically recognize that counsel may
declare “no legal cause” on behalf of the client. (E.g., People v.
Cross (1963) 213 Cal.App.2d 678, 681-682; People v. Wiley (1976)
57 Cal.App.3d 149, 166.) At most, a defendant in this situation
would be left to argue that his counsel’s representation
constituted ineffective assistance of counsel. To prevail on such a
claim, however, a defendant would need to show that his
counsel’s performance was deficient and that, but for the
deficiency, it is reasonably probable that the result of the
proceeding would have been different. (People v. Mickel (2016) 2
29
Cal.5th 181, 198.) Even if we assume for the sake of argument
that Shinn’s counsel was somehow constitutionally deficient for
representing that there was no legal cause to forestall sentencing,
defendant has not established that counsel’s conduct was
prejudicial. Contrary to defendant’s intimation that we must
presume prejudice because we do not know what defendant was
trying to put on the record, it is Shinn’s burden to show prejudice.
(People v. Ledesma (1987) 43 Cal.3d 171, 217-218; accord, People
v. Nelson (1967) 257 Cal.App.2d 282, 285 [“Omission of the
allocution is in itself not necessarily prejudicial,” particularly
where the defense is represented by counsel]; People v. Billets
(1979) 89 Cal.App.3d 302, 310-311 [even outside of the ineffective
assistance of counsel context, defendant must prove that the
failure to allocute was prejudicial].) Although Shinn’s counsel
said that Shinn himself and perhaps a new lawyer would be
making additional filings, Shinn has not established—either
before the trial court or this Court—that those filings would have
forestalled the imposition of sentence, particularly when those
filings would constitute defendant’s second and third motions for
new trial. At most, Shinn seemed to indicate that he thought the
trial judge was biased, but this argument was a recurring
complaint of Shinn’s and, on the record here, falls woefully short
of what is necessary to invalidate any of the trial court’s rulings.
Second, Shinn argues that the court separately erred in not
allowing him to address the court by taking the stand again as he
had at trial. But there is nothing in the record to indicate that
Shinn asked to testify a second time; indeed, all Shinn offers on
that point in his briefs is speculation.
30
B. Doubling and Tripling of LWOP Sentences
Shinn and Moreno argue that the trial court erred in
tripling (in Shinn’s case) and doubling (in Moreno’s case) the
LWOP sentence imposed on the first degree murder conviction.
The Courts of Appeal are divided over whether an LWOP
sentence may be doubled or tripled under our Three Strikes law.
The majority rule is that it is inappropriate to do so. (People v.
Smithson (2000) 79 Cal.App.4th 480, 503-504; People v.
Mason (2014) 232 Cal.App.4th 355, 367-368; People v. Coyle
(2009) 178 Cal.App.4th 209, 219.) These cases rely on the plain
language of the governing statute: That statute mandates the
doubling (due to one prior “strike”) or tripling (due to two prior
“strikes”) of (1) the “determinate term” or (2) the “minimum term
for an indeterminate term.” (§ 667, subd. (e)(1).) Because an
LWOP sentence is by definition not a “determinate term” and
does not have a “minimum term,” these cases reason, the
statutory mandate to double or triple a sentence simply does not
apply to LWOP sentences. The minority rule provides that
doubling or tripling the sentence is permissible because the
statutory language is ambiguous and the overarching purpose of
the Three Strikes law is to increase sentences. (People
v. Hardy (1999) 73 Cal.App.4th 1429, 1433-1434 (Hardy).) As
between the two lines of authority, we conclude that the majority
rule is better reasoned: It is more consistent with the language of
the statute; further, doubling or tripling an LWOP sentence does
not in any meaningful sense increase a sentence because, as the
saying goes, we only have one life to live. The sole impediment to
this conclusion is that Hardy is a prior decision of this Division.
The People contend that this fact means that the stare decisis
forever binds us. We disagree. Although we agree that “stare
31
decisis teaches that a court usually should follow prior judicial
precedent even if the current court might have decided the issue
differently,” particularly when it comes to “issue[s] of statutory
construction” (Bourhis v. Lord (2013) 56 Cal.4th 320, 327), that
principle is “not absolute” and may be overcome “for good reason”
(ibid.). Here, we find such good reason—chiefly, that Hardy was
decided without the benefit of reasoning set forth in the later
cases and that disregarding Hardy harmonizes the law in
California and brings uniformity (and hence certainty) to the law
on this issue. We accordingly reverse the trial court’s sentences
on the first degree murder counts with directions to impose a
single LWOP sentence instead.
C. Application of Assembly Bill No. 518 (2021-2022
Reg. Sess.) (AB 518)
Moreno and Landeros argue that they are entitled to a
remand to allow the trial court to reconsider whether to stay
their LWOP sentences instead of staying their two conspiracy
convictions, which ostensibly carry a lower sentence. At the time
of their initial sentencing, section 654 required trial courts—
when confronted with multiple counts of conviction for the same
conduct—to impose the sentence “under the provision that
provide[d] for the longest potential term of imprisonment” and to
stay the other counts. (Former § 654, subd. (a).) However, our
Legislature subsequently enacted AB 518, which took effect on
January 1, 2022, and which is retroactive to non-final
convictions. (People v. Mani (2022) 74 Cal.App.5th 343, 379-380
(Mani) [AB 518 is retroactive].) AB 518 amends section 654 to
give trial courts the discretion to choose which of two terms to
impose and which to stay (rather than being obligated to impose
32
sentence on the count with the longer term of imprisonment). (§
654.)
We reject Moreno and Landeros’s argument for two
reasons.
First, applying the amended version of section 654 in a
manner that would empower a trial court to stay an LWOP
sentence in favor of a lower sentence would violate section
1385.1. That section provides that, “[n]otwithstanding Section
1385 or any other provision of law, a judge shall not strike or
dismiss any special circumstance which is admitted by a plea of
guilty or nolo contendere or is found by a jury or court as
provided in Sections 190.1 to 190.5, inclusive.” (§ 1385.1, italics
added.) Because applying AB 518 to section 654 when one of the
sentences is an LWOP sentence would give a trial court the
power to functionally strike and/or dismiss the special
circumstance that mandates that LWOP sentence, section
1385.1’s instruction that it applies “[n]otwithstanding . . . any
other provision of law” means that it takes precedence over the
newly amended section 654. (Accord, People v. Garcia (2022) 83
Cal.App.5th 240, 257-258.) Moreno resists this conclusion,
countering that striking a special circumstance or an
enhancement is not the same as staying the resulting LWOP
sentence under section 654. Whether it is technically the same or
not, it has the same effect and would, in effect, nullify section
1385.1. We decline to construe AB 518 to do an end run around a
statute that takes precedence.
Second, even if we were to conclude that the newly
amended section 654 applied to Moreno and Landeros, remand
for the trial court to apply its newfound discretion is not
warranted in this case. That is because remand is not warranted
33
if the trial court has already “clearly indicated” at sentencing
“that it would not . . . have stricken [the] enhancement”—or, in
this case, stayed one sentence in favor of a shorter sentence—had
it had the discretion to do so. (See People v. McDaniels (2018) 22
Cal.App.5th 420, 425 [applying this standard to new legislation
granting discretion to dismiss a different enhancement].) Put
differently, if ““‘the record shows that the trial court would
not have exercised its discretion even if it believed it could do so,
then remand would be an idle act and is not required.”’” (Ibid.)
Here, the trial court made it abundantly clear that it would not
reduce the sentences of either Moreno or Landeros if it were ever
granted greater discretion to do so. For instance, after the court
stated that it had the discretion to strike the firearm
enhancements, it declared that “positively not would I ever strike
[them]” nor would the court “even think about striking [them].”
Anticipating any further discretion that may be conferred in the
future, the court went on to state: “I want to make it perfectly
clear I would never, ever, ever think of striking the special
circumstances as to Mr. Moreno and Mr. Landeros. [¶] I would
never think of striking the gun allegations to Mr. Moreno and Mr.
Landeros. [¶] I would never think of striking the strikes that
have been applied to Mr. Moreno, Mr. Landeros. And that is
based on the totality of this evidence, how evil these two are, and
how morally corrupt they are.” Moreno responds that the trial
court, on remand, might have a change of heart and provide him
“with a motive for attempted reform.” We disagree; the court’s
intentions are crystal clear.
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D. Failure to impose sentence on conspiracy
counts
The trial court in this case imposed LWOP sentences on the
first degree murder count for each defendant, and then stayed
the remaining two conspiracy counts under Penal Code section
654. However, the trial court never imposed any sentence as to
those conspiracy counts. This was error. Penal Code section 654
allows for the execution of a sentence to be stayed, not the
imposition of that sentence. (Mani, supra, 74 Cal.App.5th at p.
380; People v. Salazar (1987) 194 Cal.App.3d 634, 640; Couzens,
Bigelow & Prickett, Sentencing Cal. Crimes (The Rutter Group
2021) § 13:10.) Because the trial court never imposed any
sentence on the conspiracy counts, we must remand for the court
to do so.
E. Shinn’s challenge to the imposition of fines and
assessments
At the time Shinn was sentenced in November 2021, the
court imposed a $10,000 restitution fine (Pen. Code, § 1202.4,
subd. (b)), a $40 per count court operations fee (Pen. Code, §
1465.8, subd. (a)(1)), and a $30 per count court facilities fee (Gov.
Code, § 70373, subd. (a)(1)). The court also ordered Shinn to pay
$11,295.50 in victim restitution to the California Victim
Compensation Board, liability to be joint and several with the
codefendants. Citing People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas), Shinn argues that the trial court was required to
find that he had an ability to pay all of the fines, fees, and
assessments before they were imposed, and insufficient evidence
supports any implicit ability-to-pay determination.
We reject Shinn’s argument for three reasons.
35
First, he arguably forfeited this objection. When defendant
objected, he merely said that it would take him a long time to pay
the fines because, with his sole income being prison wages, he
would only be earning “pennies an hour.”5 At no point did
defendant say he had the inability to pay the fees.
Second, we have held that Dueñas was wrongly decided.
(People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted
Nov. 26, 2019, S258946.) The propriety of Dueñas is currently
before our Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th
47, review granted Nov. 13, 2019, S257844).
Lastly, Shinn has not carried his burden of showing that he
is unable to pay. Dueñas, by its terms, does not excuse the
payment of victim restitution (Dueñas, supra, 30 Cal.App.5th at
p. 1169), so Shinn’s objection—at most—reaches the $10,210 in
fines and assessments. Yet this amount is not beyond Shinn’s
ability to pay in light of his LWOP sentence. “[E]very able-
bodied” prisoner must work while imprisoned. (Pen. Code, § 2700;
see also Cal. Code Regs., tit. 15, § 3040, subd. (k) [“An inmate’s
assignment to a paid position is a privilege dependent on
available funding, job performance, seniority and conduct”].)
Prison wages range from $12 to $56 per month. (Cal. Code. Regs.,
tit. 15, § 3041.2, subd. (a)(1).) The California Department of
Corrections and Rehabilitation is entitled to collect victim
restitution and the restitution fine by deducting 50 percent of a
prisoner’s wages and trust account deposits, plus another 5
5 Counsel stated: “I computed it out, and $10,000 is about a
25-year undertaking before that obligation is lifted.” This
equates to a little less than $33.34 per month, but we note
defendant was sentenced to LWOP, not a 25-year term of
imprisonment.
36
percent for the administrative costs of the deduction. (Pen. Code,
§ 2085.5, subds. (a)-(d); Cal. Code Regs., tit. 15, § 3097, subds.
(c), (f).) Despite Shinn’s protestation that he has “no marketable
skills” because he has “spent most of his adult life in custody,” he
is still able to earn wages by undertaking one of the many jobs on
the long list of paying positions in prison. (Cal. Dept. of
Corrections and Rehabilitation, Operations Manual (Jan. 1, 2022)
§ 51120.7.) Even the lowest paying category of jobs includes
positions whose duties should be compatible with Shinn’s
purported lack of skills, such as shoe shiner, kitchen helper, or
server. (Ibid.) To be sure, it may take Shinn a significant
amount of time to earn enough money to pay the fees, but given
his LWOP sentence, the trial court could have reasonably
concluded that he failed to carry his burden to “present evidence
of his . . . inability to pay.” (People v. Castellano (2019) 33
Cal.App.5th 485, 490; People v. Aviles (2019) 39 Cal.App.5th
1055, 1062 [defendant sentenced to term of 82 years to life had
ability to pay $10,600 in restitution fines, $160 in court
operations assessments, and $120 in court facilities funding
assessments].)
F. Imposition of parole revocation fine
Defendants argue that the trial court improperly imposed
(but stayed) parole revocation fines against them pursuant
to section 1202.45 because their life sentences do not include the
possibility of parole. The People concede this was error. We
agree. (People v. Oganesyan (1999) 70 Cal.App.4th 1178,
1185; People v. Brasure (2008) 42 Cal.4th 1037, 1075.)
G. Correction of Abstract of Judgment
Landeros was convicted of three counts and the trial court
was required to impose a $40 court operations assessment and a
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$30 criminal conviction assessment as to each count. (Pen. Code,
§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) The trial
court erred here because it only imposed each of those
assessments once, not three times. We may correct a trial court’s
failure to impose a mandatory fee on appeal. (People v.
Castellanos (2009) 175 Cal.App.4th 1524, 1530.) Accordingly, we
order the clerk of the superior court to prepare an amended
abstract of judgment to reflect the appropriate fines and
assessments. (People v. Chan (2005) 128 Cal.App.4th 408, 425-
426.)
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DISPOSITION
The convictions for the underlying offenses are affirmed.
The gang enhancements for all three defendants, the firearm
enhancements for Shinn and Moreno, and the gang-related
special circumstances for all three defendants are vacated; the
People may elect whether to retry them. The sentences are to be
vacated: The multipliers on Shinn’s and Moreno’s first degree
murder LWOP sentences are to be eliminated; the trial court is to
impose sentences on the conspiracy counts; if the People elect not
to retry the gang-related firearm enhancements (for Shinn and
Moreno) and the gang-related special circumstances (for all
defendants), they are to be stricken; and the court is not to
impose any parole revocation fine. The matter is remanded for
these purposes.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
39