People v. Sutton CA5 ( 2023 )

Filed 6/26/23 P. v. Sutton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083379
Plaintiff and Respondent,
(Super. Ct. No. BF180086A)
v.
VANNOY ZEON SUTTON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Pretending to be interested buyers, Vannoy Zeon Sutton (appellant) and
codefendant Jerry Bowen1 responded to Miguel Flores’s online listing for the sale of used
video games. At the agreed upon meeting place, they robbed Flores at gunpoint.
A jury convicted appellant and Bowen of robbery (Pen. Code, §§ 211, 212.5,
subd. (c))2 with enhancements for the use of a firearm (§ 12022.53, subds. (b), (e)(1)) and
acting for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and other related
offenses and enhancements. The trial court sentenced appellant to 17 years in state
prison and Bowen to 22 years in state prison.
On appeal, appellant contends his substantive gang offense conviction, gang
enhancement findings, and other gang-related findings must be vacated in light of newly
enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1–5).
Respondent concedes, and we accept respondent’s concession. We reverse the
conviction for the substantive gang offense and true findings for the gang enhancement
and other gang-related findings, and we remand the matter to give the People the option
of retrial.
Appellant raises the related claim that his remaining convictions must be reversed
for failure to bifurcate the gang allegations. We conclude any error in failing to bifurcate
was harmless. We also reject appellant’s assertion that his convictions for carrying a
loaded firearm (§ 25850, subd. (a)) are unconstitutional following New York State Rifle &
Pistol Assn., Inc. v. Bruen (2022) 597 U.S. ___ [142 S.Ct. 2111] (Bruen). We affirm.
1 Bowen filed a separate appeal (case No. F083347).
2 All further statutory references are to the Penal Code unless otherwise indicated.
2.
PROCEDURAL BACKGROUND
The Kern County District Attorney’s Office filed an information charging
appellant and Bowen as follows: count 1 – second degree robbery (§§ 211, 212.5,
subd. (c); appellant and Bowen) with a use of a firearm enhancement (§ 12022.53,
subd. (b); appellant and Bowen), a gang-related firearm enhancement (§ 12022.53,
subd. (e)(1); appellant and Bowen), and a gang enhancement (§ 186.22, subd. (b)(1);
appellant and Bowen); count 2 – second degree robbery (§§ 211, 212.5, subd. (c); Bowen
only) with a gang enhancement (§ 186.22, subd. (b)(1)); count 3 – carrying a loaded
firearm (§ 25850, subd. (a); Bowen only) with the additional allegation that Bowen was
not the registered owner of the firearm (§ 25850, subd. (c)(6)) and a gang enhancement
(§ 186.22, subd. (b)(1)); count 4 – carrying a loaded firearm (§ 25850, subd. (a);
appellant only) with the additional allegation that appellant was not the registered owner
of the firearm (§ 25850, subd. (c)(6)) and a gang enhancement (§ 186.22, subd. (b)(1));
count 5 – participation in a criminal street gang (§ 186.22, subd. (a); appellant and
Bowen); and count 6 – carrying a loaded firearm (§ 25850, subd. (a); appellant and
Bowen) with the additional allegation of active participation in a criminal street gang
(§ 25850, subd. (c)(3)).
During trial, pursuant to a negotiated agreement, the People moved to amend the
information to add count 7 – misdemeanor petty theft (§§ 484, subd. (a), 488; Bowen
only). Bowen then pled no contest to count 7, and in exchange, the People moved to
dismiss count 2.
The jury found appellant guilty as charged. The jury convicted Bowen of all
counts and allegations, except it was unable to reach a verdict on count 5, and the gang-
related punishment provision in count 6.
3.
FACTUAL BACKGROUND
I. Appellant and Bowen Rob Flores at Gunpoint.
Flores posted a listing on an internet application called “LetGo,” offering to sell
several used video games. On January 30, 2020, he was contacted on LetGo by a person
with the profile name “Bakersfield Buyer.” They negotiated a price for the video games
and agreed to meet after Flores’s college class that evening at an address in a residential
neighborhood.
Flores drove to the agreed upon address around 9:00 p.m. His car was equipped
with a dashboard camera. He also brought his Glock 19 handgun, which was equipped
with a laser light. The Glock was visible in the center console. Flores testified he
brought the Glock for protection.
Flores parked on the street, and appellant and Bowen walked toward his car.
Appellant asked to see the video games. Flores agreed, and appellant placed a stack of
cash on top of Flores’s car. After appellant finished looking through the games, he said
something to Bowen that Flores could not make out, and Bowen drew a handgun and
pointed it at Flores’s face. Bowen sat Flores down in the driver’s seat of his car and
searched through his pockets. He took out Flores’s cell phone and dropped it. He
struggled to remove Flores’s wallet from his pants pocket and dropped it. There was no
cash inside of the wallet. At one point Bowen stopped searching Flores and said, “Oh,
I’m sorry. I have schizophrenia. Like sorry about that.” Appellant said something to
Bowen, and Bowen again raised the handgun and pointed it at Flores’s face. Bowen then
reached into the car and took Flores’s gun from the center console. After Bowen grabbed
the gun, appellant told Bowen, “Blast him.” Flores told Bowen to “[c]hill,” and appellant
and Bowen ran off.
Flores drove away from the scene of the robbery and called the police. He met
with officers in a nearby parking lot and gave a statement.
4.
The video recording from Flores’s dashboard camera was played for the jury. The
recording does not include any audio. It shows appellant and Bowen approach Flores’s
car on foot, then run back the way they came approximately two minutes later. It does
not capture the actual robbery. Although Flores’s headlights were on, the video is too
dark to see appellant’s and Bowen’s faces. However, their shoes and legs were
illuminated and are visible.
Flores identified appellant and Bowen in court at trial. He also identified them in
photographic lineups, which he was shown several weeks after the robbery.
On cross-examination, Flores acknowledged he told police on the night of the
robbery that the person who did not have the gun (appellant) was the person who
searched him and took his gun from the center console. He explained that he was
nervous and “shooken up” on the night of the robbery and must have been confused. He
also admitted that he knew it was illegal to carry a loaded firearm in his vehicle.
II. Traffic Stop and Recovery of Flores’s Firearm.
On February 15, 2020, around 3:00 a.m., a police detective effectuated a traffic
stop on a vehicle driven by appellant for driving on the wrong side of the road. After the
officer activated his overhead lights and siren, the vehicle turned into a cul-de-sac. Just
before the vehicle came to a stop, the officer saw appellant discard an object out of the
driver’s side window. Appellant then exited the vehicle and attempted to jump over a
wall, but then obeyed commands from the officer to stop and get on the ground. There
were four other people in the vehicle, including Bowen, who was sitting in the left rear
seat.
Officers recovered the object appellant discarded from the window. It was
Flores’s Glock 19 handgun with the laser light still attached.
5.
III. Bowen Takes a Pendant From a Rival Gang Member (Count 2).
On February 18, 2020, an officer saw Bowen and a known Bloods gang member
running through a parking lot. The officer detained them. He searched Bowen and
located an “S” shaped pendant in his pants pocket.
During the detention, the officer was contacted by Javar Gilmore, who demanded
the return of his pendant, and provided a receipt for it. The officer gave the pendant to
Gilmore.
Law enforcement knew Gilmore to be a member of the Country Boy Crips
criminal street gang, which is a rival of the Bloods. The letter “S” is a symbol that gang
members associate with that gang.
Officers subsequently obtained video surveillance footage from a nearby business.
The video shows Bowen approach Gilmore. Gilmore throws the first punch, and a
physical exchange ensues. Afterward, Bowen appears to pick up an object off the
ground.
As noted above, prior to the close of evidence the People agreed to dismiss count 2
and allow Bowen to plead no contest to misdemeanor petty theft (count 7). The only
explanation offered by the parties was the prosecutor’s statement that the plea agreement
was “based on the evidence that we have so far.” The trial court instructed the jury that
the underlying evidence was still admissible and relevant “to the extent that that incident
provides some insight into the elements that need to be proven in other counts,” but that it
could not be considered as character evidence.
IV. Internet Evidence.
Detectives obtained records from LetGo via search warrant and discovered the
“Bakersfield Buyer” account was registered to appellant’s Google e-mail address. They
also obtained records from Google, which showed the LetGo application was installed
onto a cell phone using appellant’s e-mail address when the phone was located at 129
Cypress Street in Bakersfield. The detectives were familiar with appellant and knew he
6.
resided at that address, which is located approximately one block from the scene of the
robbery.
Detectives also obtained records for appellant’s and Bowen’s Facebook accounts
via search warrant. The records showed they had been “friends” on Facebook since April
2019, and that they communicated on Facebook regularly. Their accounts contained
numerous photos of them together. In several of these photos, appellant and Bowen were
with other Bloods gang members, wearing gang colors, and showing gang signs. One of
these photographs shows appellant and Bowen together in front of appellant’s residence
at 129 Cypress Street. Another photograph shows appellant holding Flores’s Glock
handgun, which is identifiable by the distinctive laser light attachment. In another
photograph, Bowen is standing with appellant and wearing distinctive red shoes with
white soles. Bowen can be seen wearing the same shoes in the dashboard camera footage
from Flores’s car.
The Facebook records also included conversations indicating involvement in
criminal activity. In October 2019, appellant sent Bowen a message asking, “Did you
bring [my] banger back yet?” Also in October 2019, appellant had a conversation with
“Mudd Ball,” who appears to be appellant’s stepfather. They discussed committing
crimes for the benefit of the Bloods gang, and appellant reaffirmed that he is a “Crip
Killer all the way.” In December 2019, appellant had a conversation with “Jeff Brown,”
who was later determined to be Bowen’s cousin, regarding luring potential robbery
victims by listing items for sale online on an application like LetGo.
V. Gang Evidence.
In addition to the Facebook records described above, the People presented
extensive evidence that appellant and Bowen were active members of the Bloods criminal
street gang. This included evidence that appellant and Bowen were targeted in shootings
by rival gang members, and contacts with law enforcement during which appellant and
7.
Bowen were associating with known gang members and wearing gang clothing. Based
on this evidence, the People’s gang expert opined that appellant and Bowen were active
members of the Bloods criminal street gang.
The gang expert also testified that the primary activities of the Bloods gang
include homicide, assault with a deadly weapon, robbery, burglary, and firearm
possession. He explained that firearm possession is especially important to status within
the gang because it allows a gang member to “put in work,” which includes shooting rival
gang members and committing crimes such as burglary and robbery, which benefits the
gang.
To establish that the Bloods gang engages in a pattern of criminal activity, the
gang expert described three predicate offenses committed by Bloods gang members. In
each predicate offense, an individual Bloods gang member was convicted of illegal
firearms possession. The predicate offenses did not involve appellant or Bowen. The
gang expert offered no opinion on how the predicate offenses benefitted the Bloods, and
there was no evidence any predicate offense was committed by more than one person.
Based on a hypothetical question mirroring the facts of the Flores robbery, the
gang expert opined that the robbery was committed for the benefit of the Bloods gang.
He explained that the robbery would enhance the reputation of the gang and instill fear in
both rival gang members and the community generally. Additionally, any property
obtained during a robbery would benefit the gang financially. With respect to firearm
possession, the gang expert stated that possession of a firearm bolsters the status of an
individual gang member within the gang because it can be used to commit crimes and
intimidate rivals.
VI. Appellant’s Testimony.
Appellant elected to testify in his own defense and claimed no robbery occurred.
He admitted to being a gang member but claimed he was a member of the “Warlord Piru”
8.
gang and not the Bloods gang. He identified himself and Bowen in the dashboard camera
video. He claimed that he initially intended to buy video games from Flores, but when he
arrived at the meeting place with Bowen, Flores offered to sell his handgun. He testified
he agreed to buy the handgun, and Flores stated he would have to report it stolen because
it was registered in his name. Flores told them about his dashboard camera, so appellant
and Bowen ran away in view of the camera as part of a “little fake scene” to make it look
like a robbery.
DISCUSSION
I. The Record is Insufficient to Sustain the Substantive Gang Offense and
Gang-related Findings Under Newly Enacted Assembly Bill No. 333. We
Reverse and Remand for Further Proceedings.
While this appeal was pending, the Legislature enacted Assembly Bill No. 333,
which became effective on January 1, 2022. Assembly Bill No. 333 amended section
186.22 to modify the showing necessary to sustain gang offenses and enhancements.
Appellant contends Assembly Bill No. 333 applies retroactively to this case, and that his
gang offense, enhancements, and findings must be reversed. He argues the evidence at
trial was insufficient under the law as amended, and that the jury instructions did not
reflect said amendments.
The substantive gang offense (§ 186.22, subd. (a)) and the gang enhancement
(§ 186.22, subd. (b)(1)) require the People to prove the existence of a “criminal street
gang.” To do so, the People must establish a “ ‘pattern of criminal gang activity’ ” by
proving, among other things, the existence of two or more predicate crimes committed by
gang members. (§ 186.22, subd. (e)(1).) As pertinent here, Assembly Bill No. 333
changed this predicate requirement in two ways. First, the People must prove that each
predicate offense was committed by three or more gang members; proof of offenses
committed by individual gang members is no longer sufficient. (§ 186.22, subd. (f);
People v. Lopez (2021) 73 Cal.App.5th 327, 344.) Second, the People must prove that
9.
the predicate offenses “commonly benefitted a criminal street gang, and the common
benefit of the offenses is more than reputational.” (§ 186.22, subd. (e)(1).)
Respondent concedes Assembly Bill No. 333’s amendments to section 186.22
apply retroactively to this case. We agree. As we explained in People v. Ramos (2022)
77 Cal.App.5th 1116, 1126, this aspect of Assembly Bill No. 333 “was an ameliorative
change in the law that applies retroactively to cases not yet final on appeal” because it
“increased the evidentiary burden necessary to prove a gang-related enhancement.” Our
Supreme Court subsequently reached the same conclusion in People v. Tran, holding that
“[t]hese changes have the effect of ‘increas[ing] the threshold for conviction of the
section 186.22 offense and the imposition of the enhancement,’ with obvious benefit to
defendants like Tran.” (People v. Tran (2022) 13 Cal.5th 1169, 1207 (Tran).)
Respondent also concedes appellant’s substantive gang offense conviction
(count 5) must be reversed and gang enhancements (counts 1 and 4) must be vacated
because the evidence at trial was insufficient under section 186.22 as amended. Again,
we agree. Each predicate offense in this case involved conduct by only one gang
member, and the People offered no evidence or expert opinion that the predicates
benefitted the gang.
Additionally, respondent concedes that the gang-related punishment provision
finding as to count 6 must be vacated for insufficient evidence. Section 25850,
subdivision (c)(3), requires proof that the defendant was “an active participant in a
criminal street gang, as defined in subdivision (a) of [s]ection 186.22,” the substantive
gang offense. Our Supreme Court has held that all the elements in section 186.22,
subdivision (a) must be satisfied before the alternative punishment provision of section
25850, subdivision (c)(3) applies. (People v. Lamas (2007) 42 Cal.4th 516, 524
[analyzing the interplay of section 186.22, subdivision (a), with former section 12031,
subdivision (a)(2)(C)].) Because the evidence was insufficient to sustain appellant’s
10.
conviction for the substantive gang offense, it was also insufficient to sustain the gang-
related punishment provision finding as to count 6.
We also agree that appellant’s gang-related firearm enhancement (count 1) must
be vacated for insufficient evidence. The evidence at trial only established that a
principal in the robbery, codefendant Bowen, used a firearm. It did not establish that
appellant personally used a firearm. Appellant’s liability for the firearm enhancement
was based on section 12022.53, subdivision (e)(1), which provides: “The enhancements
provided in this section shall apply to any person who is a principal in the commission of
an offense if both of the following are pled and proved: [¶] (A) The person violated
subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act
specified in subdivision (b), (c), or (d).” As we explained above, the evidence was
insufficient to sustain the section 186.22, subdivision (b) gang enhancements. Thus, the
evidence is also insufficient to sustain the gang-related firearm enhancement.
Accordingly, we reverse the conviction for the substantive gang offense and
vacate the gang enhancements, gang-related firearm enhancement, and gang-related
punishment provision. On remand, the People will have the option to retry the reversed
offense and enhancements. (People v. Sek (2022) 74 Cal.App.5th 657, 669 [“ ‘Because
we do not reverse based on the insufficiency of the evidence required to prove a violation
of the statute as it read at the time of trial, the double jeopardy clause of the Constitution
will not bar a retrial.’ ”].)
II. Any Presumed Error Resulting from the Failure to Bifurcate Gang
Allegations was Harmless.
In addition to amending section 186.22, Assembly Bill No. 333 also created
section 1109. This section requires that a trial court conduct a bifurcated proceeding on
the truth of gang enhancements alleged under section 186.22, subdivision (b) or (d), if
requested by the defense. (§ 1109, subd. (a).) It also requires a bifurcated trial for any
charge of participation in a criminal street gang (§ 186.22, subd. (a)). (§ 1109, subd. (b).)
11.
Appellant claims section 1109 applies retroactively, and the trial court’s failure to
bifurcate warrants reversal of his underlying convictions. Alternatively, appellant argues
that even if section 1109 does not apply retroactively, the trial court abused its discretion
by denying his motion to bifurcate under then existing law. Respondent argues that
section 1109 applies prospectively only, and that lack of bifurcation was harmless error.
As we explain below, we agree that the trial court’s failure to bifurcate pursuant to
section 1109 or under then existing law was harmless because there is no basis to
conclude bifurcation would have affected the outcome of the trial. Accordingly, we need
not consider whether section 1109 applies retroactively or the merits of appellant’s
bifurcation motion.3
A. Relevant Procedural Background.
Prior to trial, appellant and Bowen moved to bifurcate the gang allegations under
then existing law, contending the gang evidence was highly prejudicial and not relevant
to the underlying charges. The trial court denied the motion, concluding the gang
evidence was relevant to the motive to commit the underlying offenses.
B. We Apply the Watson Standard.
Appellant argues the trial court’s failure to bifurcate is subject to the more
stringent “beyond a reasonable doubt” standard for federal constitutional error set forth in
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Respondent, on the other
hand, argues the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818,
836 (Watson) is appropriate. Under the Watson standard, which applies to errors of state
law, reversal is not required unless it is reasonably probable the defendant would have
obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at
p. 836.)
3 The question of whether section 1109 applies retroactively to cases that are not yet
final is currently under review by the California Supreme Court in People v. Burgos
(2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743.
12.
We agree with respondent. Appellant’s right to bifurcation under section 1109 is
purely statutory. “ ‘Typically, a defendant who has established error under state law must
demonstrate there is a reasonable probability that in the absence of the error he or she
would have obtained a more favorable result.’ ” (People v. Anzalone (2013) 56 Cal.4th
545, 553; accord, People v. Epps (2001) 25 Cal.4th 19, 29 [where the error “is purely one
of state law, the Watson harmless error test applies”].) The denial of the motion to
bifurcate is also an issue of state law, and therefore subject to the same harmless error
standard. (People v. Flinner (2020) 10 Cal.5th 686, 713; People v. Pinholster (1992)
1 Cal.4th 865, 931–932 [failure to sever robbery count from other charges subject to
Watson standard] disapproved on other grounds in People v. Williams (2010) 49 Cal.4th
405, 459; see People v. Champion (1995) 9 Cal.4th 879, 923 [failure to exclude gang
evidence subject to Watson standard], disapproved on other grounds in People v. Combs
(2004) 34 Cal.4th 821, 860.)
Recently, in Tran, our high court held that the failure to bifurcate pursuant to
section 1109 is not structural error. (Tran, supra, 13 Cal.5th at pp. 1208–1210.) The
court also rejected the appellant’s argument that the Chapman standard for federal
constitutional error applies, reasoning that the admission of gang evidence in that case
was not so prejudicial that it rendered the trial “ ‘fundamentally unfair.’ ” (Tran, supra,
13 Cal.5th at p. 1209.) Instead, it evaluated the trial court’s failure to bifurcate under the
Watson standard. (Tran, at pp. 1209–1210.)
For the reasons discussed below, we see no basis to conclude the admission of
gang evidence rendered the trial fundamentally unfair, or otherwise implicated
appellant’s federal constitutional rights. (See Tran, supra, 13 Cal.5th at p. 1209.)
Accordingly, we apply the Watson standard.
13.
C. Any Presumed Error was Harmless.
In assessing prejudice under Watson, “an appellate court may consider ‘whether
the evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.’ ” (People v.
Rogers (2006) 39 Cal.4th 826, 870.)
Here, the evidence establishing appellant’s guilt of the underlying charges was
overwhelming. Flores identified appellant and Bowen in photographic lineups and in
court at trial. Two weeks after the robbery, appellant was caught attempting to discard
Flores’s stolen firearm during a traffic stop, with Bowen in the back seat. Records from
LetGo obtained by law enforcement showed appellant was the owner of the “Bakersfield
Buyer” account used to contact Flores to set up the robbery. Records from Facebook
included a photo of appellant posing with Flores’s gun, and a photo of Bowen wearing
the same distinctive red shoes seen in the dashboard camera recording. Additionally, the
records contained a conversation between appellant and Bowen’s cousin discussing
setting up robberies by listing items for sale online; the same modus operandi employed
in the robbery of Flores. Finally, appellant testified that he and Bowen were the two
individuals who met with Flores, and he identified himself and Bowen in the dashboard
camera recording.
Appellant contends that if the gang allegations had been tried separately, it is
likely that the jury would have believed his testimony that he purchased the handgun
from Flores and that no robbery occurred. We disagree. During closing argument, the
prosecutor argued appellant’s testimony was not credible, and that his claim that he
purchased Flores’s firearm was not reasonable. The prosecutor explained that if Flores
needed to feign a robbery to report the handgun stolen, there was no reason for Flores to
later identify appellant and Bowen to the police. There was also no need to film
appellant and Bowen fleeing on the dashboard camera. Moreover, appellant’s claim that
14.
he only intended to purchase video games from Flores was wholly undermined by his
online conversation with Bowen’s cousin about using online listings to set up robberies.
The verdict, therefore, demonstrates the jury agreed and rejected appellant’s testimony,
and the circumstantial evidence clearly supports the jury’s decision.
Appellant also contends that the substantial amount of evidence tying him to the
Bloods gang was highly prejudicial because it suggested he was involved in uncharged
criminal conduct and portrayed him “as a young man immersed in a dangerous and
violent lifestyle.” We agree that evidence of gang membership and prior criminal acts
inherently carries some risk that a jury will improperly infer that a defendant has a
propensity to commit criminal offenses. (See People v. Hernandez (2004) 33 Cal.4th
1040, 1049.) However, nothing in Assembly Bill No. 333 or section 1109 “limits the
introduction of gang evidence in a bifurcated proceeding where the gang evidence is
relevant to the underlying charges.” (People v. Ramos, supra, 77 Cal.App.5th at
p. 1132.) This includes evidence that is offered for identity, motive, or intent (among
others) under Evidence Code section 1101, subdivision (b). Here, some of the gang
evidence was relevant to appellant’s and Bowen’s motive. This was particularly true in
count 2, where the evidence showed Bowen took a pendant of a gang symbol from a rival
gang member. It was also relevant to identity, as it buttressed the connection between
appellant and Bowen that was central to the People’s case. Because it is very likely that
at least some of the gang evidence admitted in appellant’s trial would still have been
admissible in a bifurcated trial, the potential for prejudice is significantly limited. (See
People v. Hernandez, supra, 33 Cal.4th at pp. 1049–1050.)
We also observe that the jurors were given a limiting instruction not to consider
the gang evidence for any improper purpose, including that appellant “is a person of bad
character or that he has a disposition to commit crime.” (See CALCRIM No. 1403.) We
presume the jury followed this instruction. (See People v. Franklin (2016) 248
Cal.App.4th 938, 953 [“We presume that the jury followed these limiting instructions
15.
[regarding considering gang evidence for limited purpose], and there is nothing in this
record to rebut that presumption.”].)
Finally, any inference of prejudice stemming from the gang evidence is negated by
the fact that the jury was unable to reach a verdict on all counts and allegations.
Specifically, the jury deadlocked as to Bowen on count 5, active participation in a
criminal street gang (§ 186.22, subd. (a)), and the gang-related punishment provision as
to count 6 (§ 25850, subd. (c)(3)). This result demonstrates the jury was not simply
overwhelmed by the presentation of the gang evidence, but that it closely and carefully
examined the evidence supporting each allegation. (See People v. Ramos, supra, 77
Cal.App.5th at pp. 1131–1132 [“It is apparent from this record the jury did not simply
rely on the gang evidence to convict the defendants of the charged crimes.”].)
Considering the strength of the evidence, the use of a limiting instruction, and the
likelihood that some gang evidence would still have been admitted even if the gang
allegations had been bifurcated, it is not reasonably probable that the admission of gang
evidence impacted the result of appellant’s trial. Therefore, we conclude the trial court’s
failure to bifurcate pursuant to section 1109 or under then existing law was harmless
under Watson.
III. Bruen Does Not Render Appellant’s Convictions for Carrying a Loaded
Firearm Unconstitutional.
Appellant was convicted in counts 4 and 6 of carrying a loaded firearm in public
in violation of section 25850, subdivision (a). While this appeal was pending, the United
States Supreme Court issued Bruen, holding that the “proper cause” requirement of New
York State’s public carry licensing scheme violated the Second Amendment. (Bruen,
supra, 597 U.S. ___ [142 S.Ct. at p. 2156].)
Appellant contends his carrying a loaded firearm convictions must be reversed
under Bruen, arguing that California’s analogous “good cause” requirement (§§ 26150,
subd. (a)(2), 26155, subd. (a)(2)), renders section 25850 and California’s licensing
16.
scheme facially unconstitutional. We disagree. While we recognize that California’s
“good cause” requirement is unconstitutional under Bruen, the rest of the licensing
scheme, and section 25850, remain facially valid.
A. Relevant Statutes.
Section 25850, subdivision (a) states: “A person is guilty of carrying a loaded
firearm when the person carries a loaded firearm on the person or in a vehicle while in
any public place or on any public street in an incorporated city or in any public place or
on any public street in a prohibited area of unincorporated territory.”4
Section 25850 does not apply to a person who has received a license to carry a
concealed weapon.5 (§ 26010.) To obtain such a license, one must apply with either the
county sheriff (§ 26150), or the chief of police (§ 26155). Under California’s licensing
statutes, the sheriff or chief of police “may issue a license to [the applicant] upon proof of
all of the following:
“(1) The applicant is of good moral character.
“(2) Good cause exists for issuance of the license.
4 A violation of section 25850 is punishable as a misdemeanor unless the jury finds
true one of the punishment provisions set forth in subdivision (c)(1) through (6),
inclusive. Here, in count 4, the jury found true the allegation that appellant was not the
registered owner of the handgun (§ 25850, subd. (c)(6)), elevating the conviction to a
wobbler. In count 6, the jury found true the allegation that appellant was an active
participant in a criminal street gang (§ 25850, subd. (c)(3)), elevating the conviction to a
felony.
5 Section 25850 is subject to numerous other statutory exemptions, such as for
peace officers (§ 25900), military personnel (§ 26000), persons using target ranges to
practice shooting (§ 26005, subd. (a)), persons carrying a loaded firearm within the
person’s place of business or the person’s private property (§ 26035), lawful hunting
(§ 26040), persons carrying a loaded firearm who reasonably believe that “any person or
the property of any person is in immediate, grave danger” and “the carrying of the
weapon is necessary for the preservation of that person or property” (§ 26045, subd. (a)),
and persons under threat from the subject of a restraining order (id., subd. (b)).
17.
“(3) [The applicant is a resident of the county or a city within the county.]
“(4) The applicant has completed a course of training as described in
Section 26165.” (§§ 26150, subd. (a), 26155, subd. (a).)
Before a license may issue, the fingerprints of the applicant must be taken and
forwarded to the Department of Justice. (§ 26185, subd. (a)(1).) A license “shall not be
issued if the Department of Justice determines that the person is prohibited by state or
federal law from possessing, receiving, owning, or purchasing a firearm.” (§ 26195,
subd. (a).)
B. New York State Rifle & Pistol Assn., Inc. v. Bruen.
In Bruen, the United States Supreme Court considered the constitutionality of New
York’s public carry licensing scheme. Under that scheme, to obtain a license to possess a
firearm at home or his place of business, an applicant “must convince a ‘licensing
officer’—usually a judge or law enforcement officer—that, among other things, he is of
good moral character, has no history of crime or mental illness, and that ‘no good cause
exists for the denial of the license.’ ” (Bruen, supra, 597 U.S. ___ [142 S.Ct. at
pp. 2122–2123].) Prior to Bruen, to obtain a license to carry a firearm outside of the
home or place of business for self-defense purposes, the applicant had to establish
“ ‘proper cause,’ ” which New York courts interpreted as requiring “ ‘a special need for
self-protection distinguishable from that of the general community.’ ” (Id. at p. 2123.)
This “demanding” standard generally required the applicant to present “evidence ‘of
particular threats, attacks or other extraordinary danger to personal safety.’ ” (Ibid.)
The petitioners in Bruen were “law-abiding” residents of New York who applied
for public carry licenses for general self-defense purposes. (Bruen, supra, 597 U.S. ___[142 S.Ct. at pp. 2124–2125].) After their applications were denied for failure to satisfy
the “proper cause” requirement, they sued for declaratory and injunctive relief,
contending state officials violated their Second Amendment rights “by denying their
unrestricted-license applications on the basis that they had failed to show ‘proper cause,’
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i.e., had failed to demonstrate a unique need for self-defense.” (Id. at p. 2125, italics
omitted.)
Bruen held the New York licensing scheme’s proper cause standard violates the
Second Amendment because the state “issues public-carry licenses only when an
applicant demonstrates a special need for self-defense.” (Bruen, supra, 597 U.S. ___[142 S.Ct. at pp. 2122, 2156].) Applying the “text-and-history standard” set forth in
District of Columbia v. Heller (2008) 554 U.S. 570, the court began by reasoning that the
plain text of the Second Amendment “presumptively guarantees” law abiding citizens “a
right to ‘bear’ arms in public for self-defense.” (Bruen, supra, 597 U.S. ___ [142 S.Ct. at
pp. 2135, 2138].) The court then considered “the Nation’s historical tradition of firearm
regulation,” and concluded that “the historical record … does not demonstrate a tradition
of broadly prohibiting the public carry of commonly used firearms for self-defense” or
“any … tradition limiting public carry only to those law-abiding citizens who
demonstrate a special need for self-defense.” (Id. at pp. 2129–2130, 2138, fn. omitted.)
Bruen noted that like New York, California, the District of Columbia, and four
other states, have “ ‘may issue’ licensing laws,” which include “analogues to the ‘proper
cause’ ” standard. (Bruen, supra, 597 U.S. ___ [142 S.Ct. at pp. 2123–2124].) Under
these “ ‘may issue’ ” licensing regimes, “authorities have discretion to deny concealed-
carry licenses even when the applicant satisfies the statutory criteria, usually because the
applicant has not demonstrated cause or suitability for the relevant license.” (Ibid.) On
the other hand, 43 other states “are ‘shall issue’ jurisdictions, where authorities must
issue concealed-carry licenses whenever applicants satisfy certain threshold
requirements, without granting licensing officials discretion to deny licenses based on a
perceived lack of need or suitability.” (Id. at p. 2123, fn. omitted.) In a footnote, the
court made clear that “nothing in [its] analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a
general desire for self-defense is sufficient to obtain a [permit].’ ” (Id. at p. 2138, fn. 9.)
19.
“[S]hall-issue regimes, which often require applicants to undergo a background check or
pass a firearms safety course, are designed to ensure only that those bearing arms in the
jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ [Citation.] And they
likewise appear to contain only ‘narrow, objective, and definite standards’ guiding
licensing officials, [citation], rather than requiring the ‘appraisal of facts, the exercise of
judgment, and the formation of an opinion,’ [citation]—features that typify proper-cause
standards like New York’s.” (Ibid.)
In his concurrence, Justice Kavanaugh clarified that “the Court’s decision does not
prohibit States from imposing licensing requirements for carrying a handgun for self-
defense.” (Bruen, supra, 597 U.S. ___ [142 S.Ct. at p. 2161] (conc. opn. of Kavanaugh,
J.).) “Going forward, therefore, the 43 States that employ objective shall-issue licensing
regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6
States including New York potentially affected by today’s decision may continue to
require licenses for carrying handguns for self-defense so long as those States employ
objective licensing requirements like those used by the 43 shall-issue States.” (Id. at
p. 2162.)
C. Section 25850 and California’s Licensing Scheme are Facially
Constitutional.
1. Appellant has Standing to Bring a Facial Challenge Only.
Initially, respondent contends appellant lacks standing to bring this constitutional
challenge because there is no evidence that he suffered a constitutional injury from the
good cause requirement. We agree that the record does not show, and appellant does not
claim, that he applied for and was denied a license to carry a concealed firearm. Nor
does appellant make any showing that he was deterred from seeking a license because of
the now invalid good cause provision. Thus, appellant lacks standing to bring an as
applied constitutional challenge on this basis, because he cannot show “ ‘ “that his rights
20.
[were] affected injuriously by the law which he attacks and that he is actually aggrieved
by its operation.” ’ ” (People v. Conley (2004) 116 Cal.App.4th 566, 576.)
Appellant repeatedly emphasizes, however, that his claim is not an as applied
challenge but a facial constitutional challenge. “A facial challenge to the constitutional
validity of a statute or ordinance considers only the text of the measure itself, not its
application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana
(1995) 9 Cal.4th 1069, 1084 (Tobe).) Because appellant was convicted of violating
section 25850, subdivision (a), “[t]he question of the validity of the statute, upon which
the prosecution is based, is necessarily presented.” (Smith v. Cahoon (1931) 283 U.S.
553, 562.) Therefore, by virtue of his conviction, appellant has standing to challenge the
facial validity of section 25850. This extends to his challenge to the facial validity of
California’s licensing scheme to the extent that it implicates the constitutionality of
section 25850.
Appellant also suggests he has standing based on the overbreadth doctrine.
“Technically, overbreadth is a standing doctrine that permits parties in cases involving
First Amendment challenges to government restrictions on noncommercial speech to
argue that the regulation is invalid because of its effect on the First Amendment rights of
others not presently before the Court.” (Hoffman Estates v. Flipside, Hoffman Estates,
Inc. (1982) 455 U.S. 489, 508 (conc. opn. of White, J.).) “Outside these limited settings,
and absent a good reason, we do not extend an invitation to bring overbreadth claims.”
(Sabri v. United States (2004) 541 U.S. 600, 610.) Appellant has not cited, nor are we
aware of, any case applying this doctrine to Second Amendment claims. As the United
States Supreme Court has explained, “[a]pplication of the overbreadth doctrine in this
manner is, manifestly, strong medicine. It has been employed by the Court sparingly and
only as a last resort.” (Broadrick v. Oklahoma (1973) 413 U.S. 601, 613.) Accordingly,
we decline to extend the overbreadth doctrine to appellant’s claim.
21.
2. Standard of Review.
“ ‘ “To support a determination of facial unconstitutionality, voiding the statute as
a whole, petitioners cannot prevail by suggesting that in some future hypothetical
situation constitutional problems may possibly arise as to the particular application of the
statute .… Rather, petitioners must demonstrate that the act’s provisions inevitably pose
a present total and fatal conflict with applicable constitutional prohibitions.” ’ ” (Tobe,
supra, 9 Cal.4th at p. 1084.)
“A defendant challenging the constitutionality of a statute carries a heavy burden:
‘The courts will presume a statute is constitutional unless its unconstitutionality clearly,
positively, and unmistakably appears; all presumptions and intendments favor its
validity.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 696.) Indeed, “Facial challenges to
statutes and ordinances are disfavored. Because they often rest on speculation, they may
lead to interpreting statutes prematurely, on the basis of a bare-bones record. [Citation.]
Also, facial challenges conflict with the fundamental principle of judicial restraint that
courts should not decide questions of constitutional law unless it is necessary to do so,
nor should they formulate rules broader than required by the facts before them.”
(Building Industry Assn. of Bay Area v. City of San Ramon (2016) 4 Cal.App.5th 62, 90,
citing Washington State Grange v. Washington State Republican Party (2008) 552 U.S.
442, 450.)
3. California’s Good Cause Requirement is Severable.
Bruen deemed the good cause provision in California’s licensing statutes
(§§ 26150, subd. (a), 26155, subd. (a)) to be equivalent to New York’s invalid “proper
cause” standard. (Bruen, supra, 597 U.S. ___ [142 S.Ct. at pp. 2123–2124].) Thus,
following Bruen, the good cause provision is clearly unconstitutional. Respondent
concedes this, noting that the day after Bruen was issued, the California Attorney General
issued a “Legal Alert” advising permitting agencies throughout the state that they may no
22.
longer enforce the good cause provision. (Office of the Attorney General, Legal Alert:
U.S. Supreme Court Decision in New York State Rifle & Pistol Association v. Bruen, No.
20-843 (June 24, 2022) [as of June 22, 2023].)
Although the good cause provision is unconstitutional, it does not necessarily
render the entire licensing scheme invalid. Rather, we must consider whether the good
cause provision is severable. “ ‘Generally speaking, when confronting a constitutional
flaw in a statute, we try to limit the solution to the problem,’ severing any ‘problematic
portions while leaving the remainder intact.’ [Citation.] Because ‘[t]he
unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of
its remaining provisions,’ [citation] the ‘normal rule’ is ‘that partial, rather than facial,
invalidation is the required course.’ ” (Free Enterprise Fund v. Public Co. Accounting
Oversight Bd. (2010) 561 U.S. 477, 508.)
“In determining whether the invalid portions of a statute can be severed, we look
first to any severability clause. The presence of such a clause establishes a presumption
in favor of severance.” (California Redevelopment Assn. v. Matosantos (2011) 53
Cal.4th 231, 270 (Matosantos).) Where, as here, the statute contains no such clause, we
consider whether the invalid provision is “ ‘grammatically, functionally, and volitionally
separable.’ ” (Id. at p. 271.) As we explain below, we conclude the criteria for
severability are satisfied.
“Grammatical separability … depends on whether the invalid parts ‘can be
removed as a whole without affecting the wording’ or coherence of what remains.”
(Matosantos, supra, 53 Cal.4th at p. 271.) In other words, “the valid and invalid parts of
the statute can be separated by paragraph, sentence, clause, phrase, or even single words.”
(Abbott Laboratories v. Franchise Tax Bd. (2009) 175 Cal.App.4th 1346, 1358.) Here,
the now unconstitutional “good cause” requirement in subdivision (a)(2) of the licensing
statutes (§§ 26150, 26155), is grammatically detached from the other licensing
23.
requirements set forth in subdivision (a). Removing subdivision (a)(2) does not impair
the wording or coherence of the remaining statutes.
Functional separability depends on whether, after separation of the invalid portion,
the remainder of the statute is “ ‘ “ ‘complete in itself’ ” ’ and ‘capable of independent
application.’ ” (Abbott Laboratories v. Franchise Tax Bd., supra, 175 Cal.App.4th at
p. 1358.) Again, the “good cause” requirement is just one of four requirements to obtain
a license to carry a concealed firearm. Its removal would have no impact on the
independent application of the remainder of the statute.
“Volitional separability depends on whether the remainder ‘ “would have been
adopted by the legislative body had the latter foreseen the partial invalidation of the
statute.” ’ ” (Matosantos, supra, 53 Cal.4th at p. 271.) “The issue, when assessing
volitional separability, is not whether a legislative body would have preferred the whole
to the part .… Instead, the issue is whether a legislative body, knowing that only part of
its enactment would be valid, would have preferred that part to nothing, or would instead
have declined to enact the valid without the invalid.” (Id. at p. 273.) We conclude the
Legislature would prefer a licensing scheme without a “good cause” provision over
having no licensing scheme at all. The clear purpose of the licensing scheme is to
effectuate “the government’s vital public safety interest in controlling dangerous
weapons.” (Nichols v. County of Santa Clara (1990) 223 Cal.App.3d 1236, 1246.)
Given this interest, there is no basis to conclude that the Legislature would also want to
do away with the remaining licensing requirements, which are also geared toward
enhancing public safety. Accordingly, all three of the severability criteria are satisfied,
and the good cause provision is severable from California’s licensing scheme.
4. Section 25850 and California’s licensing scheme remain facially
valid.
Having concluded the good cause requirement is severable, we turn to whether
Bruen otherwise impacted the constitutional validity of section 25850 or California’s
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licensing scheme. We conclude it did not. While appellant notes that Bruen held the
Second Amendment protects the right to carry handguns publicly for self-defense, it did
not hold that this right is absolute. Rather, Bruen expressly approved of licensing
schemes that condition a person’s ability to lawfully carry a firearm in public on certain
conditions. (Bruen, supra, 597 U.S. ___ [142 S.Ct. at p. 2138, fn. 9].) Following
severance, the remaining requirements to obtain a license in California include “good
moral character,” proof of residency, completion of a firearms safety course, and a
background check. (§§ 26150, 26155, 26185, 26195.) Consistent with Bruen, these
requirements are “ ‘narrow, objective, and definite,’ ” and appear “designed to ensure
only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible
citizens.’ ” (Bruen, supra, 597 U.S. ___ [142 S.Ct. at p. 2138, fn. 9].)
Appellant argues that even if the good cause provision is severable, the licensing
statutes are still facially unconstitutional under Bruen because the “may issue” language
in the statutes gives licensing officials the authority to deny license applications even if
the other enumerated requirements have been met. He relies on language from California
appellate cases characterizing the discretion of licensing authorities as “extremely broad,”
and “unfettered.” (Gifford v. City of Los Angeles (2001) 88 Cal.App.4th 801, 805; CBS,
Inc. v. Block (1986) 42 Cal.3d 646, 655.)
We are not persuaded. The cases cited by appellant evaluated the discretion of
licensing authorities when the good cause provision was still valid. Without it, the
discretion of licensing authorities is significantly limited. Moreover, Bruen’s holding is
based on its analysis of the “proper cause” standard in the New York statute. The court
makes no mention of, let alone relies upon, the presence or absence of “may issue”
language. In fact, the New York statute at issue included “shall issue” language. (See
N.Y. Penal Law former § 400.00(2) (2021) [“A license for a pistol or revolver, other than
an assault weapon or a disguised gun, shall be issued to ... (f) have and carry concealed,
without regard to employment or place of possession, by any person when proper cause
25.
exists for the issuance thereof ....” (italics added)].) Moreover, at least two of the “shall
issue” licensing regimes identified by the high court utilize the permissive “may” in their
statutes. (See, e.g., Conn. Gen. Stat. § 29-28(b) (2021); Del. Code, tit. 11, § 1441
(2022).) Accordingly, the “may issue” language in California’s licensing statutes does
not affect their validity.
Appellant also contends that severance analysis cannot be “applied retroactively”
to “save” his convictions, because the good cause provision was in effect when he
committed the offenses. This argument goes beyond the scope of his facial constitutional
claim, which is limited to the text of the challenged statute. Instead, it requires us to
consider the constitutionality of the good cause provision as applied to the particulars of
appellant’s case. (See Tobe, supra, 9 Cal.4th at p. 1084 [an as applied challenge
“contemplates analysis of the facts of a particular case or cases to determine the
circumstances in which the statute or ordinance has been applied and to consider whether
in those particular circumstances the application deprived the individual to whom it was
applied of a protected right”].) Appellant repeatedly emphasizes that he is raising a facial
challenge rather than an as applied challenge, so we decline to construe it differently. In
any event, as we explained above, appellant lacks standing to bring an as applied
challenge, because the now unconstitutional good cause requirement was wholly
irrelevant to appellant’s convictions.
To conclude, the good cause requirement is unconstitutional under Bruen, but it is
severable and does not otherwise impact the facial constitutional validity of section
25850 or California’s licensing scheme. Accordingly, appellant cannot demonstrate that
following Bruen, section 25850 and the licensing scheme “ ‘inevitably pose a present
total and fatal conflict’ ” with the Second Amendment. (Tobe, supra, 9 Cal.4th at
p. 1084.)
26.
IV. Appellant May Address the Applicability of Senate Bill No. 567, Assembly
Bill No. 124, and Assembly Bill No. 518 on Remand.
Appellant contends remand and resentencing are required pursuant to three new
sentencing laws that became effective while this appeal was pending: Senate Bill No.
567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3), Assembly Bill No. 124 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5), and Assembly Bill No. 518 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 441, § 1).
We need not address whether remand is appropriate based on these enactments
because we have already determined remand and resentencing are necessary. Regardless
of how the parties elect to proceed on remand, appellant will be entitled to “ ‘a full
resentencing as to all counts … so the trial court can exercise its sentencing discretion in
light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) If
appellant so chooses, he may raise his claims regarding the applicability of these
enactments in the trial court during resentencing.
We take no position on how the trial court should exercise its sentencing
discretion when it resentences appellant.
DISPOSITION
The true findings in count 1 regarding the gang enhancement and gang-related
firearm enhancement are vacated. The true finding in count 4 regarding the gang
enhancement is vacated. The conviction in count 5 is reversed. The true finding in
count 6 regarding the gang-related punishment provision is vacated.
Appellant’s sentence is vacated, and this matter is remanded for further
proceedings. The People shall have the option to retry appellant regarding the gang
enhancement and gang-related firearm enhancement in count 1, the gang enhancement in
count 4, the charge of active gang participation in count 5, and the gang-related
punishment provision in count 6. If the People do not bring appellant to retrial within the
27.
time limits of section 1382, subdivision (a)(2), the trial court shall proceed to resentence
appellant accordingly. In all other respects, appellant’s judgment is affirmed.
LEVY, J.
WE CONCUR:
HILL, P. J.
MEEHAN, J.
28.