People v. Pratt CA3 ( 2023 )

Filed 3/3/23 P. v. Pratt CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094603
Plaintiff and Respondent, (Super. Ct. No. 19FE017389)
v.
KEONDRE ALIJAH PRATT,
Defendant and Appellant.
This case arises out of three gang-related shootings, one of which resulted in a
death. A jury found defendant Keondre Alijah Pratt guilty of assault with a
semiautomatic firearm (Pen. Code, § 245, subd. (b); count one),1 murder (§ 187, subd.
(a); count three), and two counts of possession of a firearm by a felon (§ 29800, subd.
(a)(1); counts two and four). The jury also found true the firearm and gang enhancement
1 Undesignated statutory references are to the Penal Code.
1
allegations (§§ 12022.5, subd. (a), 12022.53, subd. (d), 186.22, subd. (b)), and the special
circumstance that defendant perpetrated the murder by intentionally discharging a firearm
from a motor vehicle at a person outside the vehicle with the intent to inflict death (§
190.2, subd. (21)). In a bifurcated proceeding, the trial court found defendant had a prior
conviction that qualified as a serious felony (§ 667, subd. (a)) and a strike (§§ 667, subds.
(b)-(i), 1170.12). The court sentenced defendant to life in prison without the possibility
of parole for the murder, a consecutive 25 years to life for the firearm enhancement
attached thereto, and a consecutive aggregate term of 55 years four months for the
remaining charges and enhancements.
Defendant appeals, contending that reversal is required for a number of reasons,
including evidentiary error, instructional errors, prosecutorial misconduct, a recent
change in the law regarding the elements of a gang enhancement effectuated by
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill No. 333), insufficiency of
the evidence as to one of the firearm convictions, and sentencing errors. He further
contends he is entitled to resentencing in light of recent changes to the determinate
sentencing law effectuated by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill
No. 567) and Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill No. 124).
Defendant also contends the matter must be remanded to allow the trial court to consider
whether to exercise its discretion to impose a less severe firearm enhancement pursuant
to People v. Tirado (2022) 12 Cal.5th 688. In a supplemental brief, defendant argues
because Assembly Bill No. 333 requires bifurcation of the trial of gang enhancements
from that of the underlying offenses, reversal is required.
We agree that defendant is entitled to resentencing given the recent changes in the
determinate sentencing law, that one of his firearm convictions (count four) must be
reversed for insufficiency of the evidence, and that the jury’s true findings on the gang
enhancements must be vacated. We will affirm the convictions on counts one, two, and
three, vacate the sentence, and remand the matter to allow the prosecution the opportunity
2
to retry the gang enhancements under the current version of section 186.22, and for a full
resentencing, where the trial court may reexamine all aspects of defendant’s sentence in
light of the changes to his judgment and consideration of new sentencing laws.
FACTUAL BACKGROUND
The prosecution’s theory was that defendant was a member of the Strawberry
Manor Gangster Bloods (SMGB) criminal street gang, and that he was involved in three
separate shootings over the course of a week in September 2019 involving members of
rival criminal street gangs, the Del Paso Heights Bloods (DPHB) and the Stand-Up Boys
(SUB).2 Two of the shootings--the first and third--provided the basis for the charges in
this case. Evidence of the second shooting in time was introduced as uncharged act
evidence for the purpose of showing defendant’s motive and intent to commit the charged
offenses.
The defense theory was that defendant was not involved in any of the shootings;
the critical issue at trial was identity. The defense did not dispute that defendant was a
validated member of the SMGB, and there was no material dispute as to how the
shootings were committed or that they were gang related. But the defense posited that
other members of defendant’s gang perpetrated the shootings. Defendant did not testify,
and the defense offered no evidence.
At trial, a gang expert explained that the gangs involved in this case are African-
American gangs, and that “[r]espect is everything in the gang culture”; it gives gang
members status and can be obtained by committing crimes for the gang, promoting the
gang (e.g., posting videos and photographs on social media), carrying a firearm, and
disrespecting rival gang members (e.g., harming rivals, posting disparaging videos and
photographs on social media). The expert also explained that the “atmosphere” with
2 The SMGB is an “offshoot” of the DPHB. Both gangs identify with the color red.
3
respect to the SMGB and their rivals in September 2019 was “very violent.” There were
numerous shootings and homicides from the year prior to September 2019 through the
year after.
In view of the issues raised on appeal, we summarize only the pertinent facts.
Additional information will be set forth, as necessary, in the Discussion section.
The First Shooting--September 15, Assault with a Firearm
Around 7:30 p.m. on September 15, 2019, police officers responded to a
ShotSpotter alert of gunshots fired near the intersection of Fairfield Street and Eleanor
Avenue in north Sacramento County.3 At the scene, 21 .40-caliber expended cartridge
casings were found along Fairfield Street in two distinct groupings; the first grouping
consisted of 16 casings spread out over approximately 25 yards near the Super X Market,
while the second grouping consisted of five casings in an area to the north of the first
grouping. The location of the casings suggested there were two shooters, and that they
were moving when the shots were fired. The ShotSpotter activation also supported the
conclusion that there were two shooters, as all of the gunshots were fired “pretty much in
sequence.”
Video surveillance footage from the Super X Market, which captured the area
north of the market on Fairfield Street between Eleanor Avenue and Las Palmas Avenue,
showed a speeding car crash into a black Ford Fusion. The video also showed a person
running north along Fairfield Street toward an apartment complex on Las Palmas Avenue
(the Las Palmas complex). Gunshots can be heard on the footage.
Video footage captured by a residential surveillance system showed a black car
travelling south on Fairfield Street around the time of the shooting, and then two men
running south on Fairfield Street, away from the Las Palmas complex.
3 ShotSpotter is an acoustic gunshot detection system that alerts law enforcement to the
area where gunshots may have been fired.
4
At the time of this shooting, the police were aware that a group of 10 to 20 young
men, including defendant, gathered at the Las Palmas complex on a regular basis. The
location of the shooting was considered “neutral territory,” but was “[f]airly close” to the
territory controlled by the SMGB and the DPHB.4
The (Uncharged) Second Shooting--September 17
On September 17, 2019, police were watching the Las Palmas apartment complex
after learning a person affiliated with apartment number three might have been involved
in the (first) shooting two days earlier. Around 4:00 p.m., officers saw defendant enter
apartment number three. He was also seen getting in and out of a silver Chrysler sedan,5
which was parked at the complex. Later that same day, defendant and another man went
to the Super X Market in the Chrysler; defendant drove. When the men returned to the
complex, they went inside apartment number three.
Around 7:30 p.m., witness S.C. heard gunshots and then saw a silver Chrysler
sedan speed past his home. A police officer was dispatched to the area in response to a
ShotSpotter alert of gunshots fired near that address. Upon his arrival, the officer spoke
with the owner of the black Hummer parked in front of the residence. The owner’s son
(Cain) lived there and was a validated member of the DPHB.
A search of the area revealed four expended .40-caliber cartridge casings in the
street, and a bullet hole in the driver’s door of the Hummer. S.C. described the driver of
the Chrysler as a “light-skinned” black man with a “small afro”; this broadly describes
defendant, as we later explain.
4 The territory of the respective gangs is “extremely close,” only separated by a single
street.
5 At trial, the Chrysler was described as being silver, gray, blue, and silver/blue. In
closing argument, defense counsel acknowledged that, depending on the lighting, the
Chrysler looked silver, blue, or gray.
5
The next day, September 18, 2019, defendant was seen going in and out of
apartment number three at the Las Palmas apartment complex.
Events Following the Second Shooting
On September 19, 2019, a police officer conducted a traffic stop of a black Ford
Fusion less than a mile from the scene of the first shooting. The driver, Tyriece
Washington, Sr., was the founder and a validated member of the SUB, which was
affiliated with the DPHB and a rival of the SMGB. Upon questioning, Washington told
the officer that a “young person” he did not know shot at him four days earlier in the area
near Fairfield Street and Eleanor Avenue.6 Washington also indicated that his moniker
(i.e., nickname) was “OG Ty Bud.” At trial, a gang expert explained that the more well
known a gang member is, the “more of a target” that person is for rival gang members, as
more status will be obtained by killing them.
On September 20, 2019, a police officer contacted defendant while he was sitting
in the front passenger seat of the Chrysler, which was parked at the Las Palmas complex.
The registered owner of the car (Cannon) was sitting in the passenger seat. During this
encounter, there were approximately eight other people gathered in the area, including at
least two members of the SMGB. The officer seized defendant’s cell phone before
leaving the area.
The Third Shooting--September 21, Murder
Around 3:45 p.m. on September 21, 2019, Syncere Dixon was shot and killed in a
drive-by shooting near the intersection of Rio Linda Boulevard and North Avenue.
6 Washington would not tell the officer details of the shooting, saying something to the
effect of, “You know how it goes out here. I can’t tell you what the person who shot [at]
me looks like.” At trial, a gang expert explained that, in gang culture, “snitching”
(cooperating with law enforcement) is one of the worst things a gang member can do.
6
Dixon died of a gunshot wound to the right side of his chest. The wound was elongated,
which suggested that the bullet passed through something else before it entered his body.
At the time of the shooting, Dixon was in the front passenger seat of a red Dodge
sport utility vehicle (SUV) driven by Cain. The shooting occurred shortly after Cain and
several other young males (including Dixon) left a high school that was located in the
territory of the DPHB. Four of the young males in the Dodge (including Dixon and Cain)
were members of the DPHB or affiliated with that gang.
At the scene of the shooting, which was in DPHB territory, 10 .40-caliber
expended cartridge casings were found along North Avenue. There were multiple bullet
strikes on the passenger side of the red Dodge SUV, and no bullet strikes on the driver’s
side.
Video footage captured by various surveillance systems showed a silver Chrysler
sedan chasing a red Dodge SUV before the Chrysler accelerated and pulled up to the
passenger side of the Dodge. The Chrysler drove toward the Las Palmas complex after
the shooting.
An eyewitness to the shooting, L.N., told the police that the shooter was a skinny,
“lighter-skinned” African-American man, with a “short fade” (short hairstyle). L.N.
noted that she got a “quick” but “not a great” look at the shooter’s face. She explained
that the shooter was driving a blue four-door Chrysler sedan and sitting “low in his seat.”
She explained that the driver of the Chrysler pulled alongside a red car, put his arm out
the window, fired multiple gunshots at the red car, and then continued driving. She
estimated that the shooter was in his mid-20s.
L.N. was shown a photographic lineup that day and could not identify the shooter,
but she identified defendant as one of three individuals in the lineup who she believed
could have been the shooter. Approximately three weeks later, she participated in a
recorded in-person lineup at the county jail and selected defendant, who was the only
individual who appeared in both lineups. She selected him “just based on his skin
7
complexion” as “[i]t was kind of hard” because his “face was scrunched up.” She said
“maybe” defendant was the shooter, and that she “guess[ed]” defendant was the shooter,
but did not identify him with certainty at that time.
At trial, L.N. explained that she only saw a “glimpse” of the shooter, and that she
was primarily focused on the gun. But she testified that she was “very sure” defendant
was the shooter when she identified him at the in-person lineup based on his complexion,
although she later clarified that she identified defendant because he “looked familiar, . . .
like the guy . . . [she] saw shooting,” not “just because he was a lighter-skinned African
American.” When asked whether defendant was the person she saw shooting on
September 21, 2019, L.N. said, “I think so.”
L.N. explained at trial that, at the time of the shooting, she was in her driveway on
North Avenue watching her niece and nephew play in a swimming pool. She was sitting
in a chair with her back to the street. She heard two gunshots, and then quickly turned
around and saw the driver of a blue car pointing a gun in the direction of a red car. When
L.N. saw the gun, she immediately grabbed her niece and ran into her house.
Another eyewitness to the shooting, E.A., heard five or six gunshots and then ran
into her house. As she was doing so, she looked in the direction of the gunshots and saw
a red car and a silver or “bluish silver” four-door Chrysler car driving “really fast.” The
front windows of the Chrysler were down, and the back windows were up. She told law
enforcement that the Chrysler contained a group of possibly three African-American
men. The “silver car passed the red car, made a U-ey, [and] booked past the red car
again.”
At trial, E.A. confirmed that the “blue” Chrysler she saw on the day of the
shooting was the same car that she and other witnesses described as being gray or silver.
Other Evidence
An image captured by a red light camera showed defendant driving the Chrysler
on September 16, 2019. Cannon was in the front passenger seat.
8
On September 25, 2019, the Chrysler was impounded. On that same day,
defendant and another man, Christopher Fuimano, were arrested. Based on information
learned from Fuimano, a search was conducted at a residence on Tundra Way. During
that search, a .40-caliber semiautomatic Glock, with a 15-round magazine, was found
under a mattress. The gun was distinctive in that it had permanent discoloration on the
slide. Given the capacity of the magazine, the gun was capable of firing 16 bullets.
A gang expert testified that gang members sometimes share guns.
A firearm expert determined that the .40-caliber expended cartridge casings found
at the scene of the third shooting, as well as the group of 16 casings found at the scene of
the first shooting, were fired from the gun found at Tundra Way. The group of five .40-
caliber expended cartridge casings found at the scene of the first shooting as well as the
casings found at the scene of the (uncharged) second shooting were fired by the same
gun--an unknown, different .40-caliber “Glock type pistol.”
A gunshot residue expert determined that particles associated with gunshot residue
were located in various areas of the Chrysler, including on the front driver’s side
headliner, the gear shift, the steering wheel, the rear driver’s side headliner, the rear
driver’s side door panel, the rear passenger side headliner, the rear passenger side door
panel, and the front passenger side head rest.7
A search of defendant’s cell phone revealed multiple photographs and videos of
him holding a gun that looked similar to the gun found at Tundra Way, including videos
made on September 16 and 19, 2019. There was also a video of what appeared to be
defendant driving the Chrysler on September 17, 2019, and a video of defendant holding
7 The expert explained that gunshot residue particles are a mixture of three main
chemical elements. All three chemical elements were found on the front driver’s side
headliner, the rear passenger side headliner, and the rear passenger side door panel. The
other areas of the car where particles of residue were found only had one or two of the
chemical elements.
9
a gun and talking about killing rival gang members on July 12, 2018. Defendant’s phone
also contained photographs showing that he was near the area of the first shooting the day
before it happened, and a video of him driving by the scene of the second shooting on
August 12, 2019, while holding what appears to be the gun found at Tundra Way.
A search of defendant’s Instagram account disclosed that, about 30 minutes after
the first shooting, defendant posted a message reading: “Sum just happened. Might go
down.” Around 40 minutes later, he posted a message that he had to get “out of there”
because he did not want to go to jail. Around 30 minutes later, he posted another
message with a reference to getting “out of there with poles,” which a detective explained
is slang for guns.
Other videos and photographs obtained from defendant’s Instagram account
showed him promoting the SMGB and disrespecting the DPHB. In a video posted on
September 21, 2019--the day of the third shooting--defendant is seen physically
assaulting Daniel B., a member of the DPHB who had posted disrespectful things about
the SMGB on social media. During the assault, which occurred in front of the Las
Palmas complex, defendant stated, “Say that shit again” while his fellow gang members
encouraged him. In connection with this video, defendant commented, “You soft ass. I
was just waiting to catch you. Now they know the real you.” There were also comments
from other SMGB gang members praising defendant for the assault.
In a November 2019 jail call, defendant indicated that he had a problem with the
driver of the red Dodge SUV (Cain). Defendant explained that they “got into it at the
mall” and Cain texted him “some dumb shit” thereafter. In a subsequent jail phone call
made in February 2020, defendant made a reference to Cain as a “bitch ass,” who was
“talkin’ hella breezy and shit.”
At trial, Cain denied that he knew defendant. However, the last two saved
photographs in his cell phone, which was seized shortly after the third shooting, were
10
images of defendant taken on September 19, 2019. There were other photographs of
defendant “throughout” Cain’s phone.
DISCUSSION
I
Alleged Evidentiary Error
Defendant contends the trial court prejudicially erred and also violated his
constitutional rights by allowing the prosecution to introduce evidence of the uncharged
assault of rival gang member Daniel B. As we next explain, we see no error in the
court’s decision that the assault was relevant to defendant’s motive and intent to commit
the charged offenses.
A. Applicable Legal Principles
Although evidence of an uncharged act is not admissible to establish a defendant’s
propensity to commit crime, it may be used for non-propensity purposes to prove a
material fact at issue, including motive and intent to commit the charged offenses. (Evid.
Code, § 1101, subd. (b); People v. Cage (2015) 62 Cal.4th 256, 273 (Cage).)
Motive is an intermediate fact that may be probative of such ultimate issues as
intent or identity. (People v. Lewis (2001) 26 Cal.4th 334, 370; People v. Demetrulias
(2006) 39 Cal.4th 1, 14; People v. Clark (2021) 62 Cal.App.5th 939, 960) “When the
commission of the criminal act by a defendant is a disputed issue in an action, evidence
that tends to prove that the defendant had a motive for committing the criminal act is
deemed relevant evidence. ‘Motive’ is itself a state-of-mind or state-of-emotion fact.
Evidence that tends to prove ‘motive’ meets the test of relevancy by virtue of the
circumstantial-evidence-reasoning process that accepts as valid the principle that one
tends to act in conformity with his state of mind or emotion.” (People v. De La Plane
(1979) 88 Cal.App.3d 223, 246, disapproved on another ground in People v. Green
(1980) 27 Cal.3d 1, 39, fn. 25.)
11
“[E]vidence of motive makes the crime understandable and renders the inferences
regarding defendant’s intent more reasonable. ‘Motive is not a matter whose existence
the People must prove or whose nonexistence the defense must establish. [Citation.]
Nonetheless, “[p]roof of the presence of motive is material as evidence tending to refute
or support the presumption of innocence.” ’ ” (People v. Roldan (2005) 35 Cal.4th 646,
707, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.
22.) “Although motive is not an element of . . . defendant’s crime[ ], ‘the absence of
apparent motive may make proof of the essential elements less persuasive.’ ” (People v.
Davis (2009) 46 Cal.4th 539, 604.)
Uncharged act evidence is admissible to establish two different types or categories
of motive evidence. (People v. Spector (2011) 194 Cal.App.4th 1335, 1381.) As for the
category that applies here, “ ‘the uncharged act evidences the existence of a motive, but
the act does not supply the motive. . . . [T]he motive is the cause, and both the charged
and uncharged acts are effects. Both crimes are explainable as a result of the same
motive.’ ” (Ibid.)
When evidence of an uncharged act is offered to establish a defendant’s motive
and intent to commit the charged offenses, it may be admitted if there is “ ‘sufficient
evidence for the jury to find defendant committed both sets of acts, and sufficient
similarities to demonstrate that in each instance the perpetrator acted with the same intent
or motive.’ ” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 827; see Cage,
supra, 62 Cal.4th at p. 274 [where uncharged act evidence is offered to establish motive,
the “evidence may be dissimilar to the charged offenses provided there is a direct
relationship or nexus between it and the current alleged crimes”]; People v. Demetrulias,
supra, 39 Cal.4th at p. 15 [where uncharged act evidence is offered to establish intent, the
charged offenses and the uncharged act need only be “ ‘sufficiently similar to support the
inference that the defendant “ ‘probably harbor[ed] the same intent in each instance’ ” ’
”].) An uncharged gang-related incident is relevant to establish motive and intent when
12
the charged offenses were committed under circumstances indicating they were gang
related as well. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212 [evidence of
the defendant’s involvement in an uncharged gang-related drive-by shooting was
admissible to show the defendant’s motive and intent in committing the charged crime of
murder, as it “helped show that he likely committed the [charged] drive-by shooting for
gang-related purposes”].)
Even if uncharged act evidence is admissible under Evidence Code section 1101,
subdivision (b), it should be excluded under Evidence Code section 352 if its probative
value is substantially outweighed by the probability that its admission will require undue
consumption of time, confuse or mislead the jury, or pose a substantial risk of undue
prejudice. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 406-407.)
“ ‘ “ ‘Prejudice’ as contemplated by [Evid. Code] section 352 is not so sweeping as to
include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as
that term is used in [an Evid. Code] section 352 context, merely because it undermines
the opponent’s position or shores up that of the proponent.’ ” ’ ” (People v. Scott (2011)
52 Cal.4th 452, 490-491.) “ ‘Evidence is prejudicial within the meaning of Evidence
Code section 352 if it “ ‘uniquely tends to evoke an emotional bias against a party as an
individual’ ” [citation] or if it would cause the jury to “ ‘ “prejudg[e]” a person or cause
on the basis of extraneous factors’ ” [citation].’ [Citation.]” (People v. Foster (2010) 50
Cal.4th 1301, 1331; see Scott, at p. 491 [“evidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury, motivating
them to use the information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors’ emotional reaction”].)
We review a trial court’s rulings on the admission of evidence under Evidence
Code sections 1101 and 352 for abuse of discretion. (People v. Davis, supra, 46 Cal.4th
at p. 602.)
13
B. Analysis
We begin by acknowledging that the uncharged evidence of defendant’s physical
assault of a rival gang member was highly probative on the issues of motive, intent, and
identity. “It is elementary, evidence of motive to commit an offense is evidence of the
identity of the offender.” (People v. Daniels (1971) 16 Cal.App.3d 36, 46.) Defendant’s
identity as the shooter was the sole contested issue at trial, and the prosecution attempted
to establish identity largely by circumstantial evidence; hence, motive was highly
material. (See People v. Kovacich (2011) 201 Cal.App.4th 863, 896 [evidence of motive
is particularly material where the prosecution attempts to establish identity by
circumstantial evidence].) In addition to its relevance as to the identity of the shooter,
evidence of motive was also relevant to the issue of whether defendant intended to kill in
connection with the third shooting. Both the uncharged act and the charged offenses
were gang-related, involving acts of violence against rival gang members. The
uncharged act evidence raised a reasonable inference that the first and third shootings
were motivated by defendant’s desire to seek out and do violence to rival gang members
for gang-related purposes, including enhancing the reputation of his own gang and
disrespecting a rival gang. The probative value of the uncharged act evidence was
enhanced by the proximity of the physical assault in time and place to the first and third
shootings; all three incidents occurred in the area near the Las Palmas complex, with the
physical assault occurring on the same day as the third shooting, which occurred less than
a week after the first shooting. (See People v. Kipp (1998) 18 Cal.4th 349, 371.) There
was a direct nexus between the uncharged act and the charged offenses, and both sets of
acts were sufficiently similar for the jury to infer that in each instance defendant acted
with the same motive and intent.
We likewise disagree with defendant’s contention that the trial court abused its
discretion in refusing to exclude the uncharged act evidence as unduly prejudicial under
Evidence Code section 352. “ ‘[B]ecause a motive is ordinarily the incentive for criminal
14
behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is
permitted in admitting evidence of its existence.’ ” (People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1550; People v. Pertsoni (1985) 172 Cal.App.3d 369, 375.) Although
disturbing, the physical assault was not unduly prejudicial and “not significantly more
inflammatory” than the charged crimes of murder and assault with a semiautomatic
firearm. (See People v. Kipp, supra, 18 Cal.4th at p. 372; People v. Eubanks (2011) 53
Cal.4th 110, 144 [potential for prejudice is decreased when uncharged acts are no more
inflammatory than the charged offenses].) We are similarly unpersuaded by defendant’s
contention that evidence of the physical assault should have been excluded because it was
cumulative to the other evidence establishing his motive to commit the charged offenses.
Finally, because the trial court did not err in admitting the uncharged act evidence,
we reject defendant’s claim that the admission of this evidence violated his constitutional
right to a fair trial. (People v. Fuiava (2012) 53 Cal.4th 622, 670.)
II
Alleged Instructional Errors
Defendant raises two claims of instructional error on appeal, which present
questions of law we review de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579;
People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Hernandez (2013) 217
Cal.App.4th 559, 568.) As we next explain, we find no error.
A. Flight Instruction
Defendant initially contends the trial court prejudicially erred and also violated his
constitutional rights by instructing the jury that it could consider flight from the scene in
determining whether he was guilty of the charged offenses. He argues reversal is
required because there was no evidence identifying him as one of the persons who fled
from the scene of the first and third shootings. We disagree.
15
1. Applicable Legal Principles
In relevant part, CALCRIM No. 372 states: “If the defendant fled . . . immediately
after the crime was committed . . . that conduct may show that . . . he . . . was aware of
. . . his . . . guilt. If you conclude that the defendant fled[,] . . . it is up to you to decide
the meaning and importance of that conduct. However, evidence that the defendant fled
. . . cannot prove guilt by itself.” “CALCRIM No. 372 is merely a distillation of the
instructional duty imposed on the trial court by . . . section 1127c.” (People v. Pettigrew
(2021) 62 Cal.App.5th 477, 499.)8
A jury must be instructed on flight where there is evidence identifying the
defendant as the person who fled the crime scene, and such evidence is relied upon by the
prosecution as tending to show guilt. (People v. Mason (1991) 52 Cal.3d 909, 943
(Mason); People v. Abilez (2007) 41 Cal.4th 472, 521-522.) “ ‘A flight instruction is
proper whenever evidence of the circumstances of [a] defendant’s departure from the
crime scene . . . logically permits an inference that his movement was motivated by guilty
knowledge.’ ” (Abilez, at p. 522; see also People v. Bonilla (2007) 41 Cal.4th 313, 328.)
Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances
of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.]
To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e.,
departed the scene to avoid arrest, only that a jury could find the defendant fled and
permissibly infer a consciousness of guilt from the evidence.” (Bonilla, at p. 328.)
8 Section 1127c provides: “In any criminal trial or proceeding where evidence of flight
of a defendant is relied upon as tending to show guilt, the court shall instruct the jury
substantially as follows: [¶] The flight of a person immediately after the commission of
a crime, or after he is accused of a crime that has been committed, is not sufficient in
itself to establish his guilt, but is a fact which, if proved, the jury may consider in
deciding his guilt or innocence. The weight to which such circumstance is entitled is a
matter for the jury to determine. [¶] No further instruction on the subject of flight need
be given.”
16
“[T]he facts of each case determine whether it is reasonable to infer that flight shows
consciousness of guilt.” (Mason, supra, 52 Cal.3d at p. 941.)
A flight instruction is proper if there is substantial evidence to support the
instruction. (People v. Richardson (2008) 43 Cal.4th 959, 1020, superseded by statute on
another ground as stated in People v. Nieves (2021) 11 Cal.5th 404, 509; People v.
Boyette (2002) 29 Cal.4th 381, 438-439.) And the need for a flight instruction “ ‘does
not change just because identity [of the perpetrator] is [a contested] issue. Instead, such a
case [only] requires the jury to proceed logically by deciding first whether the [person
who fled] was the defendant and then, if the answer is affirmative, how much weight to
accord to flight in resolving the other issues bearing on guilt. The jury needs the
instruction for the second step.’ ” (Mason, supra, 52 Cal.3d at p. 943; see People v. Avila
(2009) 46 Cal.4th 680, 710 [flight instruction is proper even when identity is at issue].)
2. Analysis
We conclude the trial court properly instructed the jury on flight. The prosecution
presented sufficient evidence that defendant was one of the people who fled the scene of
the first and third shootings in a manner suggesting a purpose to avoid being observed
and/or arrested, which rationally supported an inference that he was aware of his guilt.
There is no dispute that the perpetrators involved in the shootings immediately left the
scene. Nor is there a dispute that the shootings were gang related. The circumstances of
how the perpetrators departed the scene of each shooting supported the prosecution’s
theory that the shooter(s) intended to kill the victims, who were rival gang members.
Contrary to defendant’s contention, there was ample evidence (as described in detail
ante) from which a reasonable jury could have determined that he perpetrated the first
and third shootings. In addition to the substantial compelling circumstantial evidence
pointing to defendant as a shooter, including firearm evidence, an eyewitness to the third
shooting identified him as the person who shot and killed Dixon.
17
We reject defendant’s suggestion that CALCRIM No. 372, the pattern instruction
on flight, improperly invited the jury to infer guilt, thereby violating his constitutional
right to due process. Courts, including our Supreme Court, have consistently rejected
similar challenges to CALCRIM No. 372. (See People v. Pettigrew, supra, 62
Cal.App.5th at pp. 501-502 [collecting cases]; see also Cage, supra, 62 Cal.4th at p. 286
[CALCRIM No. 372 “ ‘does not “create an unconstitutional permissive inference or
lessen the prosecutor’s burden of proof” ’ ”].)
B. Eyewitness Instruction
Next, defendant contends his murder conviction must be reversed because the trial
court prejudicially erred and also violated his constitutional rights by improperly
instructing the jury to consider the level of certainty of an eyewitness’s identification in
evaluating the reliability of that identification. We disagree.
1. Additional Background
As detailed ante, there were three eyewitnesses to the third shooting, which
resulted in the death of Dixon. One of those witnesses, L.N., identified defendant as the
shooter at an in-person lineup conducted approximately three weeks after the shooting.
On cross-examination, L.N. acknowledged that she failed to identify defendant as the
shooter from a photographic lineup on the day of the shooting, but claimed she was “very
sure” defendant was the shooter when she subsequently identified him during the in-
person lineup. On recross-examination, L.N. clarified that she identified defendant as the
shooter because he “looked familiar, . . . like the guy . . . [she] saw shooting,” not “just
because he was a lighter-skinned African American.”
Prior to deliberations, the jury was instructed with CALCRIM No. 315 regarding
evaluation of an eyewitness’s testimony. That instruction lists numerous factors for the
jurors to consider in determining “whether an eyewitness gave truthful and accurate
testimony,” including the following: “How certain was the witness when he or she made
an identification?” (See CALCRIM No. 315.)
18
2. Analysis
As an initial matter, we conclude that defendant’s claim is forfeited because he
failed to object to the challenged instruction or request that it be modified to omit the
certainty factor. (People v. Sanchez (2016) 63 Cal.4th 411, 461 [failure to request
eyewitness identification instruction be modified to omit certainty factor results in
forfeiture of appellate claim of instructional error].) Given the evidence adduced at trial,
it is unclear that defendant would have wanted omission of that factor; indeed, there were
tactical reasons for the defense to want it given. As we have described, there was
evidence that called into question the certainty of L.N.’s identification of defendant.
In any event, we conclude the claim fails on the merits. Defendant contends
CALCRIM No. 315 deprived him of due process by “skewing [the] jury’s function to
assess witness credibility,” and by “creating a procedure that gives an unfair advantage to
the prosecution and interferes with [a] defendant’s ability to secure a fair trial.”
However, as defendant acknowledges, our Supreme Court recently concluded that the
version of CALCRIM No. 315 given to the jury in this case does not, by itself, violate a
defendant’s due process rights by lowering the prosecution’s burden of proof or by
depriving the defendant of a meaningful opportunity to present a defense. (See People v.
Lemcke (2021) 11 Cal.5th 644, 646-647, 657, 660-661 (Lemcke).) In Lemcke, the high
court held that a due process violation occurs only if the instruction--“ ‘ “in the context of
the instructions as a whole and the trial record” ’ ”--renders the defendant’s trial
fundamentally unfair. (Id. at p. 661.)
Despite the absence of a due process violation, the Lemcke court exercised its
supervisory powers to direct trial courts to omit the certainty factor from the instruction
until the Judicial Council had the opportunity to consider modifying the language to
minimize juror confusion on this issue, unless the defendant requested otherwise.
(Lemcke, supra, 11 Cal.5th at pp. 647-648, 669.) The Lemcke court also observed that
the instruction did not correct the common misconception that a witness’s high degree of
19
certainty in an identification correlates to accuracy. (Id. at pp. 647, 666.) Rather, by
“merely directing the jury to consider a witness’s level of certainty, without any further
caveats, [the instruction] effectively operates to reinforce that misconception.” (Id. at p.
666.) This is especially problematic in cases like Lemcke’s, where the conviction was
based almost entirely on the testimony of a single witness who expressed certainty in her
identification and had no prior relationship with the defendant. (Id. at pp. 647, 665-666.)
Although the Lemcke decision was issued about a month before the jury returned
its verdicts in this case, the trial court did not omit the certainty factor from the
CALCRIM No. 315 instruction, and it was not asked to do so by the defense. On appeal,
defendant makes no effort to show a due process violation under the standard articulated
in Lemcke. Instead, he generally insists that there was a due process violation, even
though he acknowledges that we are bound by our Supreme Court’s holding in Lemcke.
And defendant does not identify any restriction on his opportunity to present a defense on
the issue of identity. While it is true that part of the defense in Lemcke involved a
defense eyewitness expert (Lemcke, supra, 11 Cal.5th at pp. 647, 650-652), nothing
prevented defendant here from producing such an expert as part of his defense. Further,
defendant had the opportunity to cross-examine L.N. and the investigating officers
regarding her identification of defendant as the shooter and the procedures used during
the lineups. And, unlike in Lemcke, defendant’s murder conviction was not primarily
based on the testimony of a single witness.
Because defendant has not shown that instructing the jury on witness certainty
rendered his trial fundamentally unfair, we treat any instructional error as a violation of
state law subject to the harmless error standard set forth in People v. Watson (1956) 46
Cal.2d 818, 836. (See People v. Ward (2005) 36 Cal.4th 186, 214 [applying Watson
standard to claim that the pattern instruction regarding an eyewitness’s level of certainty
was erroneous].) Thus, “reversal is required if it is reasonably probable the result would
have been more favorable to the defendant had the error not occurred.” (People v. Guiton
20
(1993) 4 Cal.4th 1116, 1130.) In determining whether there was prejudice, we examine
the entire record. (Ibid.)
Viewing the record as a whole, including the substantial evidence pointing to
defendant as Dixon’s killer, we see no prejudice from the asserted instructional error.
The challenged instruction cited the certainty factor in a neutral manner and did not
suggest that certainty equals accuracy. The instruction told the jury to consider a large
number of different factors in evaluating whether L.N.’s identification was trustworthy.
(See CALCRIM No. 315.) The trial court instructed the jury to evaluate all of these
factors against a backdrop of additional instructions: “People sometimes honestly forget
things or make mistakes about what they remember”; “You must decide what the facts
are”; “You alone must judge the credibility and believability of the witnesses”; “You may
believe all, part, or none of any witness’s testimony”; that defendant “is presumed to be
innocent”; and that, “[u]nless the evidence proves the defendant guilty beyond a
reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
(CALCRIM Nos. 200, 220, 226, 315.)
By drawing the jury’s attention to L.N.’s level of certainty in identifying defendant
as the shooter, the challenged instruction served to highlight the deficiencies in her
identification that were revealed at trial and pointed out by defense counsel during
closing argument. With respect to the Dixon shooting, defense counsel focused her
closing argument on the eyewitness factors listed in CALCRIM No. 315. As for L.N.,
defense counsel initially noted that L.N. acknowledged she did not “really see [the
shooter’s] face,” as she was focused on the gun and immediately ran inside her home
after grabbing her niece and nephew. Defense counsel also noted that L.N. was in a
stressful, shocking situation and not in a position to get a “clear view of what happened,”
as she was behind a vehicle or in between two vehicles at the time of the shooting.
Further, defense counsel pointed out that L.N. is not the same race as the shooter, she
only gave a general description of the shooter that was not consistent with what defendant
21
looked like on the day of the shooting, she failed to identify defendant in the
photographic lineup on the day of the shooting, and she only identified defendant at the
in-person lineup three weeks later based on his “skin complexion” and because he
“look[ed] familiar.” Defense counsel argued that L.N.’s in-person identification was
influenced by the fact that defendant was the only person in both lineups, and urged the
jury to reject L.N.’s identification as insufficient to support a finding of guilt because it
was not a “true identification,” but rather a “tentative [identification] at best.”
For his part, the prosecutor did not argue that L.N. was certain or highly confident
in her identification of defendant as the shooter. Instead, the prosecutor acknowledged
that L.N. did not see the shooter’s face “for a long time” and that, according to L.N., his
face was “scrunched up at time of the shooting.” The prosecutor acknowledged that L.N.
failed to identify defendant as the shooter from a photographic lineup on the day of the
shooting. The prosecutor noted that L.N. identified defendant during the in-person lineup
because he “looked familiar,” and urged the jury to watch the video recording of L.N.’s
identification.
Under the circumstances presented, we are convinced that it is not reasonably
probable defendant would have obtained a more favorable outcome absent the asserted
instructional error.9 In light of this conclusion, we need not and do consider defendant’s
9 We are unpersuaded by defendant’s suggestion that E.A.’s identification of the
Chrysler as the car the shooter was driving implicates the Lemcke court’s concerns about
CALCRIM No. 315’s certainty factor. At no point did E.A. express a degree of certainty
about her identification. She was not asked whether she was certain about her
identification, and did not volunteer that she was. When she was shown a picture of the
Chrysler at trial, she indicated that it “look[ed] familiar,” and that she “could tell it was
the same car” she saw on the day of the shooting because it was the same color, a
Chrysler, and “pretty distinctive from the body of it.” However, she acknowledged that
there was nothing particularly distinctive about the car she saw, such as scratches or
“spinning wheels,” and that the type of car she saw was not “rare.” In short, nothing in
the record supports the conclusion that E.A. was certain in her identification. In any
22
alternative contention that his trial counsel was ineffective for failing to object to the
challenged instruction or request it be modified to omit the certainty factor.
III
Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct by making
comments in rebuttal closing argument that reduced or trivialized the reasonable doubt
standard. Anticipating that he may have forfeited this claim by failing to object in the
trial court, defendant alternatively argues his trial counsel was ineffective. We see no
basis for reversal.
A. Additional Background
Prior to closing argument, the trial court orally instructed the jury pursuant to
CALCRIM No. 220. The jury was told that defendant was presumed innocent, and that
this presumption required the prosecution to prove defendant was guilty of the charges
beyond a reasonable doubt. The court gave the jury the standard definition of reasonable
doubt: “Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt.” (See
CALCRIM No. 220.)
In closing, the prosecutor did not define or attempt to explain the reasonable doubt
standard in his initial argument to the jury. Instead, he discussed the evidence and argued
that defendant should be found guilty as charged because there was sufficient evidence to
satisfy the reasonable doubt standard. At the outset of her closing argument, defense
event, we see no prejudice resulting from the trial court’s failure to omit the certainty
factor from the CALCRIM No 315 instruction. As we have discussed, there was
substantial compelling evidence connecting defendant to the Chrysler and the murder of
Dixon. E.A.’s testimony was not the only--or even the strongest--evidence that defendant
was the person who shot and killed Dixon.
23
counsel reminded the jury of the presumption of innocence and that the prosecution had
the burden to prove the charges beyond a reasonable doubt. Defense counsel also read
the first sentence of the standard definition of reasonable doubt as set forth in CALCRIM
No. 220. Immediately thereafter, defense counsel explained that an abiding conviction
means a “long-lasting conviction,” one that is “enduring,” and argued that the jury must
return not guilty verdicts if this standard was not met. In her final remarks to the jury,
defense counsel reminded the jurors that they must have “an abiding conviction” that a
charge is true to return a guilty verdict, which meant that the jurors must be sure that a
guilty verdict is “the right decision not only today, but tomorrow, next month, next year,
next decade.”
In rebuttal closing argument, the prosecutor argued that the evidence, including
the evidence of motive, supported a finding that he was guilty as charged. In his
concluding remarks to the jury, the prosecutor urged the jurors to consider “the universe
of the evidence together,” including all of the circumstantial evidence connecting
defendant to the charged offenses, and then stated:
“Let’s call one track the gun. Let’s call one track the car. Let’s call one track the
motive. All these tracks are leading you towards the defendant.
“Every single one, every single one. And the defense is standing in the middle
pointing you to the left. Which way are you going to go? To the right. Because that’s
the only reasonable interpretation of this evidence.
“Proof beyond a reasonable doubt. Yes, we have it here. It’s met across this state
like defense said, across the city. Every day in this courthouse it’s met. It’s not
unattainable. You have it here.
“This case has been proven beyond a reasonable doubt, and it’s now time for you
to hold the defendant accountable. Return those verdicts. This is conduct that needs to
be checked, that cannot go unchecked in this county. Thank you.”
24
Prior to deliberations, the jury was provided a packet of written instructions, which
included CALCRIM No. 220.
B. Applicable Legal Principles
1. Beyond a Reasonable Doubt Standard
“Under the due process clauses of the Fifth and Fourteenth Amendments, the
prosecution must prove a defendant’s guilt of a criminal offense beyond a reasonable
doubt, and a trial court must so inform the jury.” (People v. Aranda (2012) 55 Cal.4th
342, 356.) Proof beyond a reasonable doubt requires “a subjective state of near certitude”
about the accused’s guilt. (Jackson v. Virginia (1979) 443 U.S. 307, 315.) California
law defines reasonable doubt as follows: “ ‘It is not a mere possible doubt; because
everything relating to human affairs is open to some possible or imaginary doubt. It is
that state of the case, which, after the entire comparison and consideration of all the
evidence, leaves the minds of jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.’ ” (§ 1096.)
CALCRIM No. 220 describes proof beyond a reasonable doubt as “proof that
leaves you with an abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to some possible or
imaginary doubt.” In People v. Zepeda (2008) 167 Cal.App.4th 25, a panel of this court
explained that “[t]he modifier ‘abiding’ informs the juror his conviction of guilt must be
more than a strong and convincing belief. Use of the term ‘abiding’ tells the juror his
conviction must be of a ‘lasting, permanent nature,’ it informs him ‘as to how strongly
and deeply his conviction must be held.’ ” (Id. at pp. 30-31 [finding the “phrase, ‘proof
that leaves you with an abiding conviction that the charge is true,’ unmistakably conveys
the conviction’s subjective nature and the very high level of certainty required”].)
“The United States Supreme Court and the California Supreme Court,
respectively, have described ‘an abiding conviction’ as one that is ‘settled and fixed’
25
[citation] and one that is ‘lasting [and] permanent’ [citation].” (People v. Pierce (2009)
172 Cal.App.4th 567, 573.)
2. Prosecutorial Misconduct
“ ‘ “A prosecutor who uses deceptive or reprehensible methods to persuade the
jury commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such ‘ “unfairness as to make the resulting conviction a
denial of due process.” ’ ” ’ [Citations.] ‘ “Under state law, a prosecutor who uses such
methods commits misconduct even when those actions do not result in a fundamentally
unfair trial.” ’ [Citations.] . . . Prosecutorial misconduct can result in reversal under state
law if there was a ‘reasonable likelihood of a more favorable verdict in the absence of the
challenged conduct’ and under federal law if the misconduct was not ‘harmless beyond a
reasonable doubt.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 333-334.)
A prosecutor commits misconduct if he or she misstates the applicable law.
(People v. Boyette, supra, 29 Cal.4th at p. 435; People v. Cortez (2016) 63 Cal.4th 101,
130.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, a
defendant must show that, “ ‘ “[i]n the context of the whole argument and the
instructions” [citation], there was “a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner.’ [Citation.] If the
challenged comments, viewed in context, ‘would have been taken by a juror to state or
imply nothing harmful, [then] they obviously cannot be deemed objectionable.’ ” ’ ”
(Cortez, at p. 130.)
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.’ ” (People v. Prieto (2003) 30 Cal.4th 226, 259; see also People v. Tully
(2012) 54 Cal.4th 952, 1010.) “ ‘The primary purpose of the requirement that a
defendant object at trial to argument constituting prosecutorial misconduct is to give the
26
trial court an opportunity, through admonition of the jury, to correct any error and
mitigate any prejudice.’ ” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) The
general forfeiture rule is subject to two exceptions. A claim of prosecutorial misconduct
is reviewable on appeal, absent an objection and request for an admonition, if an
objection and/or a request for admonition would have been futile or an admonition would
not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th
800, 820.)
C. Analysis
As an initial matter, we conclude that defendant has forfeited his prosecutorial
misconduct claim. He never raised the issue of misconduct or asked the trial court to
admonish the jury to disregard any impropriety on the part of the prosecutor. On appeal,
defendant does not argue that an objection and/or a request for admonition would have
been futile or that an admonition would not have cured any harm from the challenged
remarks. However, because defendant also argues ineffective assistance of counsel, we
briefly reach the merits of defendant’s claim and conclude it fails.
The prosecutor did not improperly trivialize the reasonable doubt standard or
otherwise misstate the law in rebuttal closing argument as to the burden of proof.
Instead, the prosecutor simply noted that it is not impossible for the standard to be met,
and argued it was satisfied in this case. In doing so, the prosecutor made the
unremarkable point that prosecutors in Sacramento and across the state satisfy the burden
on a daily basis. We conclude that, when the entire argument and the instructions are
examined, it is not reasonably likely the jury understood or applied the disputed remarks
in an improper or erroneous manner.
We are unpersuaded by defendant’s contention that the jury likely understood the
challenged remarks as an invitation by the prosecutor to consider defendant’s status as a
criminal defendant as evidence tending to prove his guilt. The trial court properly
defined the reasonable doubt standard in both the oral and written instructions given to
27
the jury. As part of those instructions, the jurors were specifically told that defendant
was presumed innocent, the fact that criminal charges had been filed against defendant
was not evidence the charges were true, and that they must not be biased against
defendant just because he had been arrested, charged with crimes, and brought to trial.
(CALCRIM No. 220.) The jury was instructed to ignore any of the attorney’s comments
that conflicted with the law stated in the trial court’s instructions. (See CALCRIM No.
200.) We presume the jury understood and followed these instructions. (People v.
McKinnon (2011) 52 Cal.4th 610, 670.)
Finally, contrary to defendant’s contention, the challenged remarks did not reduce
the prosecutor’s burden to prove the charges beyond a reasonable doubt. The prosecutor
did not, as defendant suggests, imply that the jurors could convict defendant if they had
less than an abiding conviction the charges were true. Moreover, as noted ante, the jury
was properly instructed on the prosecution’s burden of proof. Multiple instructions
informed the jury as to the prosecution’s burden of proof. (See, e.g., CALCRIM Nos.
220 [reasonable doubt], 315 [eyewitness identification], 359 [corpus delicti], 520
[murder].) And defense counsel emphasized the court’s instructions on the presumption
of innocence and reasonable doubt in closing argument, including reading the first
sentence of the standard definition of reasonable doubt to the jury. Counsel argued an
abiding conviction means a “long-lasting conviction,” one that is “enduring.” In her final
remarks to the jury, counsel reminded the jurors that they must have “an abiding
conviction” that the charges are true to return a guilty verdict, which meant that the jurors
must be sure that a guilty verdict is “the right decision not only today, but tomorrow, next
month, next year, next decade.” The prosecutor said nothing to contradict this assertion.
Even if we were to assume misconduct, defendant suffered no prejudice from the
brief and isolated remarks challenged on appeal. In light of these conclusions, we need
not and do not address defendant’s alternative contention that his trial counsel was
ineffective for failing to object to the remarks.
28
IV
Assembly Bill No. 333
Effective January 1, 2022, Assembly Bill No. 333 made significant modifications
to the substantive and procedural requirements for establishing a gang enhancement
under section 186.22. (See People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran);
People v. E.H. (2022) 75 Cal.App.5th 467, 477-478 (E.H.); Stats. 2021 ch. 699, § 3.) In
addition to the substantive changes, Assembly Bill No. 333 added section 1109, which
provides a new procedure for trying gang enhancements under section 186.22. (E.H., at
p. 478; Stats. 2021 ch. 699, § 5.) Our Supreme Court recently concluded that the
ameliorative benefit of Assembly Bill No. 333’s statutory amendments to section 186.22
applies to all cases not yet final on appeal. (Tran, at p. 1206.) However, the high court
expressly declined to resolve the split of authority among the Courts of Appeal as to
whether the new section 1109 applies retroactively. (Tran, at p. 1208 [declining to
resolve split because any asserted error in failing to bifurcate was harmless].)
On appeal, defendant raises two claims under Assembly Bill No. 333. We address
those claims in turn next.
A. Substantive Changes to Section 186.22
Defendant initially contends that the jury’s true findings on the gang
enhancements must be reversed due to the recent substantive changes to section 186.22.
We agree.
1. Statutory Framework
Section 186.22 provides for enhanced punishment when a person is convicted of
an enumerated felony committed “for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote, further, or assist in
criminal conduct by gang members.” (186.22, subd. (b)(1).)
“Assembly Bill 333 made the following changes to the law on gang
enhancements: First, it narrowed the definition of a ‘criminal street gang’ to require that
29
any gang be an ‘ongoing, organized association or group of three or more persons.’
[Citation.] Second, whereas section 186.22, former subdivision (f) required only that a
gang’s members ‘individually or collectively engage in’ a pattern of criminal activity in
order to constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any such
pattern have been ‘collectively engage[d] in’ by members of the gang. [Citation.] Third,
Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal activity’ by
requiring that (1) the last offense used to show a pattern of criminal gang activity
occurred within three years of the date that the currently charged offense is alleged to
have been committed; (2) the offenses were committed by two or more gang ‘members,’
as opposed to just ‘persons’; (3) the offenses commonly benefitted a criminal street gang;
and (4) the offenses establishing a pattern of gang activity must be ones other than the
currently charged offense. [Citation.] Fourth, Assembly Bill 333 narrowed what it
means for an offense to have commonly benefitted a street gang, requiring that any
‘common benefit’ be ‘more than reputational.’ ” (Tran, supra, 13 Cal.5th at p. 1206,
italics omitted.) Section 186.22, subdivision (g) now explains: “[T]o benefit, promote,
further, or assist means to provide a common benefit to members of a gang where the
common benefit is more than reputational. Examples of a common benefit that are more
than reputational may include, but are not limited to, financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a
potential current or previous witness or informant.”
2. Analysis
The Attorney General concedes that the jury was not instructed on the elements to
prove a gang enhancement as required following the enactment of Assembly Bill No.
333, but argues that reversal is unnecessary because it is clear beyond a reasonable doubt
that the jury would have found true the gang enhancement allegations under the current
version of section 186.22. We disagree.
30
When a jury does not determine all elements of a charged offense because the
instructions omitted an element of the offense, the resulting prejudice is assessed under
the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Flood
(1998) 18 Cal.4th 470, 491; People v. Sek (2022) 74 Cal.App.5th 657, 668.) We apply
this same standard of review when the jury was not instructed on an element because trial
occurred before the effective date of the amendment adding the element. (Tran, supra,
13 Cal.5th at p. 1207; E.H., supra, 75 Cal.App.5th at pp. 478-479.) Under the Chapman
standard, the absence of instruction on the amended version of section 186.22 requires
reversal unless “it appears beyond a reasonable doubt that the error did not contribute to
th[e] jury’s verdict.” (Flood, at p. 504.) “The inquiry ‘is not whether, in a trial that
occurred without the error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely unattributable to the error.’
[Citation.] This standard is much higher than substantial evidence review. For example,
courts have found harmless error under the Chapman standard where the missing element
from an instruction was uncontested or proved as a matter of law.” (E.H., supra, 75
Cal.App.5th at p. 479-480.) But where “ ‘the basis of the jury’s verdict is not so clear,’ ”
such as where “the prosecution presented evidence of both financial and reputational
benefit, ‘we cannot rule out the possibility that the jury relied on reputational benefit to
the gang as its basis for finding the enhancements true.’ ” (Id. at p. 480.)
On this record, we cannot conclude beyond a reasonable doubt that the jury would
have reached the same result on the gang enhancements had it been instructed on the
current version of section 186.22. Although there was some evidence suggesting that the
predicate offenses were committed for the common benefit of the SMGB gang because
gang rivals were targeted, this element was not proved as a matter of law. (See E.H.,
supra, 75 Cal.App.5th at p. 479 [where the prosecution presented evidence of both
financial and reputational benefit, the omission was not harmless error].) Here, the
prosecution was not required to prove, and the jury was not asked to find, that the
31
predicate offenses commonly benefitted the SMGB gang in a way that was more than
reputational. And the prosecution’s evidence and argument focused on reputational
benefit to the gang, which is no longer permitted under the current version of section
186.22. Further, the jury was not asked to find that the most recent predicate offense was
committed within three years of the charged offenses. And the jury was also permitted to
consider the charged offenses in determining whether the prosecution had proven a
pattern of criminal gang activity.
Even if we were to agree with the Attorney General that there is evidence in the
record supporting a true finding on the gang enhancements under the current version of
186.22, we cannot uphold the jury’s findings on this basis. “To rule that the existence of
evidence in the record that would permit a jury to make a particular finding means that
the jury need not actually be asked to make that finding would usurp the jury’s role and
violate [the defendant’s] right to a jury trial on all the elements of the charged
allegations.” (People v. Lopez (2021) 73 Cal.App.5th 327, 346; see People v. Sek, supra,
74 Cal.App.5th at pp. 668-669 [presentation of evidence that benefit to the gang was
more than reputational does not rule out possibility that jury relied on reputational benefit
as the basis for finding gang enhancements true].) Again, the question is not whether
there is sufficient evidence to satisfy the standard of proof under the law as amended, but
rather whether it is clear beyond a reasonable doubt that the verdict was not attributable
to the error. We cannot reach that conclusion here.
Because we are unable to rule out the possibility that the jury relied on the
reputational benefit to the gang as the basis for finding that the predicate offenses
requirement was satisfied (as argued by the prosecutor in closing argument), or that the
jury considered the currently charged offenses in determining that the pattern of criminal
gang activity requirement was satisfied, we will vacate the gang enhancements and
remand the matter to provide the prosecution with the opportunity to prove the gang
enhancements under the law as amended, should it choose to attempt to do so. (See E.H.,
32
supra, 75 Cal.App.5th at p. 480 [“The proper remedy for this type of failure of proof–
where newly required elements were ‘never tried’ to the jury–is to remand and give the
People an opportunity to retry the affected charges”].)10
B. Section 1109
As relevant here, section 1109, subdivision (a) requires a gang enhancement
charged under section 186.22, subdivision (b) to be tried separately from the substantive
offense(s) upon request from the defense. (§ 1109, subd. (a).) In enacting Assembly Bill
No. 333, the Legislature explicitly found that “[g]ang enhancement evidence can be
unreliable and prejudicial to a jury because it is lumped into evidence of the underlying
charges which further perpetuates unfair prejudice in juries and convictions of innocent
people,” “California courts have long recognized how prejudicial gang evidence is,”
“[s]tudies suggest that allowing a jury to hear the kind of evidence that supports a gang
enhancement before it has decided whether the defendant is guilty or not may lead to
wrongful convictions,” and that “[b]ifurcation of trials where gang evidence is alleged
can help reduce its harmful and prejudicial impact.” (Stats. 2021 ch. 699, § 2.)
10 Because we have concluded that reversal of the gang enhancements and remand for
their potential retrial is required, we need not and do not decide whether any of the other
new elements of section 186.22 were, or were not, met and whether other aspects of the
instruction given were erroneous. Currently, there is a split of authority among the
Courts of Appeal regarding whether predicate offenses may be committed solely by an
individual gang member. (Compare People v. Delgado (2022) 74 Cal.App.5th 1067,
1089 [“[T]he prosecution could meet [the requirement to show that two predicate
offenses were committed on separate occasions or by two or more members] by proving
two gang members individually committed the predicate offenses on two separate
occasions or two gang members collectively committed two predicate offenses on the
same date”] with People v. Clark (2022) 81 Cal.App.5th 133, 145-146, review granted
Oct. 19, 2022, S275746 [pattern of gang activity may be established by “(1) two gang
members who separately committed crimes on different occasions, or (2) two gang
members who committed a crime together on a single occasion”].) Recently, our
Supreme Court expressly declined to resolve this split. (Tran, supra, 13 Cal.5th at p.
1208.)
33
The parties dispute whether section 1109 applies retroactively and whether
defendant’s convictions must be reversed because the trial on the gang enhancement
allegations was not bifurcated from the trial on the substantive charges. We need not
decide whether section 1109 applies retroactively because even if we assume it does,
defendant was not prejudiced by the failure to bifurcate.
As an initial matter, we reject defendant’s contention that the failure to bifurcate
constitutes structural error. Our Supreme Court recently concluded that the failure to
bifurcate is subject to the Watson standard, unless the failure to bifurcate rendered the
trial fundamentally unfair, in which case the Chapman standard applies. (Tran, supra, 13
Cal.5th at pp. 1209-1210 [applying Watson standard].) Because defendant has made no
effort to show, and we do not see how, the prosecution’s use of gang evidence rendered
the trial fundamentally unfair, we will apply the Watson harmless error standard. (See
People v. Ramos (2022) 77 Cal.App.5th 1116, 1131 [applying Watson standard]; E.H.,
supra, 75 Cal.App.5th at p. 480 [same].)
Applying that standard, we conclude defendant has failed to show prejudice. As
we have explained, there was substantial compelling circumstantial evidence pointing to
defendant as the perpetrator of the first and third shootings (e.g., firearm evidence), and
an eyewitness identified him as the perpetrator of the third shooting. Further, some gang
evidence was relevant to, and admissible, regarding the underlying charges, including
defendant’s intent and motive. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049
[gang evidence can help prove motive, specific intent, and other issues pertinent to guilt
of the charged crime]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 [“Gang
evidence is relevant and admissible when the very reason for the underlying crime, that is
the motive, is gang related”].) Indeed, the prosecution’s theory was that defendant was a
gang member who intentionally shot at the victims because they were rival gang
members. The defense, for its part, did not dispute that defendant was in a gang or that
the shootings were gang related. Rather, the defense claimed that the shootings were
34
perpetrated by other members of defendant’s gang. Thus, gang evidence was relevant
and admissible in a trial on the substantive offenses.
Defendant concedes that even if the gang enhancements had been tried in a
bifurcated proceeding, the jury was “probably going to hear about much of the same gang
evidence” in a hypothetical separate trial on the substantive offenses. Nevertheless, he
insists that he was prejudiced by the failure to bifurcate because the evidence supporting
his guilt was “underwhelming” and the jury’s determination that he was guilty as charged
did not “dispel the possibility of undue influence” from the gang evidence.
As we have explained, the evidence supporting defendant’s guilt was not
“underwhelming.” And gang evidence may be properly admitted even where the
defendant stipulates to membership in a gang and even where the prosecution may be
able to establish disputed matters with other evidence. (People v. Valdez (2012) 55
Cal.4th 82, 134.) Thus, a defendant who concedes that “some” gang evidence would be
admissible must identify and discuss specific items of evidence they believe should have
been excluded in order to establish prejudice. (People v. Coneal (2019) 41 Cal.App.5th
951, 963-964 [“Absent an analysis of specific evidence, reference to volume alone is
meaningless,” and the defendant “fails to explain how he was prejudiced by this
cumulative evidence.”].) Defendant has failed to do so here.
Under the circumstances presented, we cannot conclude that it is reasonably
probable defendant would have obtained a more favorable result had the gang
enhancements been tried in a bifurcated proceeding.
V
Sufficiency of the Evidence to Support Count Four
In counts two and four, defendant was charged with being a felon in possession of
a .40-caliber semiautomatic firearm in violation of section 29800, subdivision (a)(1). The
information alleged that these offenses were committed on the same days as the first and
third shootings. As described ante, the evidence adduced at trial showed that the .40-
35
caliber semiautomatic firearm found at Tundra Way was the only gun used by defendant
in these shootings.
On appeal, defendant contends that one of his firearm convictions must be
reversed because, while he possessed a firearm during both shootings, his continuous
possession of the same firearm over a single period of time constituted only one violation
of section 29800, subdivision (a)(1). The Attorney General concedes the point. We
agree with the parties.
In relevant part, section 29800, subdivision (a)(1) provides: “Any person who has
been convicted of a felony . . . and who owns . . . receives, or has in possession or under
custody or control any firearm is guilty of a felony. The purpose of this prohibition is “to
protect the public by denying firearms to felons, who are considered more likely to
commit crimes with them.” (People v. Correa (2012) 54 Cal.4th 331, 342.)
In People v. Mason (2014) 232 Cal.App.4th 355, the defendant was convicted of
four counts of being a felon in possession of a firearm in violation of former section
12021. (Mason, at p. 357.) The prosecution proved that the defendant possessed the
same firearm on four separate dates, corresponding to the dates of three shootings and the
date the firearm was recovered after he dropped it while fleeing from the police. (Id. at
pp. 363-364.) The appellate court reversed three of the four convictions because “there
was no evidence that [the defendant’s] possession of the firearm was anything but
continuous over the period encompassing the four dates.” (Id. at p. 366.) The Mason
court explained: “The Supreme Court has recognized that possession of a firearm by a
felon is a continuing offense.” “ ‘In the case of continuing offenses, only one violation
occurs even though the proscribed conduct may extend over [an] indefinite period.’
[Citations.] Thus, our Supreme Court recognized more than 70 years ago that the Deadly
Weapons Act, from which former section 12021 [and now section 29800 were] derived,
‘does not provide that it is an offense for each day that the ex-convict is in possession of
36
the weapon. . . .’ ” (Id. at p. 365; see § 29800 [continuing former § 12021 without
substantive change], Stats. 2010, ch. 711, § 6.)
Here, defendant was convicted of multiple counts of violating section 29800,
subdivision (a)(1) based on his possession of the same firearm on separate dates. As in
People v. Mason, supra, 232 Cal.App.4th 355, there is no evidence establishing that his
possession of the firearm was anything but continuous between the time of the first and
third shootings. We therefore will reverse the second firearm conviction--count four.
VI
Senate Bill No. 567 and Assembly Bill No. 124
The parties agree, as do we, that the matter must be remanded for resentencing due
to recent changes in the determinate sentencing law effectuated by Senate Bill No. 567
and Assembly Bill No. 124, which retroactively apply to defendant because they have the
potential to lessen the punishment for his crimes. (See People v. Flores (2022) 75
Cal.App.5th 495, 500; People v. Gerson (2022) 80 Cal.App.5th 1067, 1095; People v.
Frahs (2020) 9 Cal.5th 618, 629.)
Effective January 1, 2022, Senate Bill No. 567 and Assembly Bill No. 124
amended section 1170, subdivision (b). (People v. Flores, supra, 75 Cal.App.5th at p.
500; People v. Gerson, supra, 80 Cal.App.5th at p. 1095.) Under current law, a
sentencing court may not impose a prison sentence exceeding the middle term unless the
facts supporting the aggravating circumstances are (1) established by the defendant’s
stipulation to them, (2) proven to a jury (or to a court, if a jury is waived) beyond a
reasonable doubt, or (3) based on prior convictions evidenced by a certified record of
conviction. (§ 1170, subd. (b)(1)-(3).) Assembly Bill No. 124 also added a provision
that requires a sentencing court to impose the low term if the defendant’s psychological,
physical, or childhood trauma was a contributing factor in the commission of the offense,
or the defendant was a “youth” (under 26) as defined under subdivision (b) of section
1016.7, “unless the court finds that the aggravating circumstances outweigh the
37
mitigating circumstances [so] that imposition of the lower term would be contrary to the
interests of justice.” (§ 1170, subd. (b)(6).) Even where there is no evidence that the
circumstances listed in subdivision (b)(6) of section 1170 are present, the trial court
retains discretion to impose the lower term. (§ 1170, subd. (b)(7).)
At sentencing, the trial court selected count one, assault with a semiautomatic
firearm (§ 245, subd. (b)), as the principal term and imposed an upper term sentence of
nine years, which was doubled due to the strike prior. The trial court also imposed an
upper term sentence on the attached firearm enhancement (§ 12022.5, subd. (a)), plus five
years for the gang enhancement (§ 186.22, subd. (b)(1)). In so doing, the court cited
several aggravating circumstances. (See Cal. Rules of Court, rule 4.421.) However,
none of those circumstances were admitted, proven beyond a reasonable doubt, or
involved prior convictions evidenced by a certified record of conviction. Further, the
record reflects that defendant was 19 years old--a youth--at the time of the events giving
rise to the charges in this case, and there were statements made at sentencing indicating
that childhood trauma may have been a contributing factor in the commission of the
offenses. Prior to imposition of sentence, defendant’s godmother told the trial court that
defendant had a “very rough life,” including being placed in foster care at the age of nine
following the death of his mother.
Given the recent amendments to the determinate sentencing law, we will vacate
defendant’s sentence and remand for full resentencing. Under the full resentencing rule,
“when part of a sentence is stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th
857, 893.) Accordingly, we need not and do not address defendant’s claims of
sentencing error and ineffective assistance of counsel related to sentencing. Nor do we
consider defendant’s contention that remand is required under People v. Tirado, supra,
12 Cal.5th 688, to allow the trial court to consider striking the section 12022.53,
38
subdivision (d) firearm enhancement and imposing a less severe enhancement.
Defendant will have the opportunity to raise these issues anew in the trial court. At
resentencing, the trial court has the discretion to reexamine any aspect of defendant’s
sentence.
DISPOSITION
The judgment is reversed as to defendant’s conviction on count four (§ 29800,
subd. (a)), and the jury’s true findings on the gang enhancements (§ 186.22) are vacated.
Defendant’s sentence is vacated and the matter is remanded. The judgment is otherwise
affirmed.
On remand, the trial court shall give the prosecution the opportunity to retry the
gang enhancements under the current version of section 186.22. If the prosecution elects
not to retry defendant, or at the conclusion of any retrial, the trial court shall conduct a
full resentencing, where it will have the discretion to reexamine all aspects of defendant’s
sentence in light of any new law that applies to him.
/s/
Duarte, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Boulware Eurie, J.
39