Opinion
B306009
03-10-2022
THE PEOPLE, Plaintiff and Respondent, v. DARIO ALFARO, Defendant and Appellant.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA459245, Henry J. Hall, Judge. Remanded with directions.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
A jury found Dario Alfaro guilty of willful, deliberate, and premeditated attempted murder with true findings on gang and principal gun use allegations. He appealed, contending there was insufficient evidence to support the premeditation finding and that the jury was misinstructed on that issue. After we filed an opinion rejecting those contentions and affirming the judgment, Assembly Bill Nos. 333 (2021-2022 Reg. Sess.) (Stats.2021, ch. 699) and 518 (2021-2022 Reg. Sess.) (Stats.2021, ch. 441) took effect. Assembly Bill No. 333 amended the gang enhancement statute, Penal Code section 186.22, while Assembly Bill No. 518 amended section 654. Alfaro filed a petition for rehearing raising those new laws, we granted the petition, and we now find that he is entitled to the benefit of those new laws. Accordingly, we remand the matter.
We hereafter refer to willful, deliberate, and premeditated attempted murder as attempted premeditated murder.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
I. The attempted murder
Alfaro was jointly tried with fellow Easy Rider gang members Ronald Hernandez and Rafael Rivera for attempted premeditated murder and shooting at an occupied vehicle.Alfaro's gang moniker was Lil Boy, Hernandez's gang monikers were Stranger and Muerto, and Rivera's gang moniker was Drowzy.
This Division affirmed the judgments of conviction as to Rivera in People v. Rivera (Aug. 20, 2020, B297551) [nonpub. opn.] and as to Hernandez in People v. Hernandez (Feb. 10, 2021, B303457) [nonpub. opn.].
The victim testified that on July 13, 2017, at 2:20 p.m., he was driving his Mustang to a friend's house when he heard someone yell. Thinking that a friend might be calling to him, he made a U-turn and stopped in front of an apartment building where he had seen three men standing, two of whom the victim identified as Hernandez and Rivera. The victim recognized Hernandez because they had gone to school together.
Hernandez and Rivera walked up to the victim, who asked," 'What's up?'" Hernandez and Rivera threw gang signs and replied," 'Riders.'" The victim did not associate with gangs, so he drove away. As he left, Rivera threw something at his car.
About 10 to 15 minutes later, the victim was taking a shortcut through a nearby car wash when he saw Hernandez and Rivera in a Mercedes. Hernandez was driving the car, and Rivera was in the front passenger seat. The victim could not tell if anyone else was in the car. The Mercedes made a U-turn and pursued the victim until the Mercedes was positioned behind the victim's car. Through his rearview mirror, the victim saw Rivera reach down towards his feet. Panicked, the victim had jumped the double lines into incoming traffic when he saw the Mercedes moving to the open space on his right. As the victim was turning onto another street, he heard the Mercedes's engine revving and then the Mercedes hit the back of the victim's car, the victim thought intentionally. The victim heard at least two gunshots, then about three more. Three or four bullets struck the victim's car. The victim was uninjured.
A witness saw the Mercedes crash into the victim's car and someone from the rear passenger side of the Mercedes fire a revolver three to four times at the victim's car. But the witness could not tell how many people were in the Mercedes and saw none of their faces.
Around the time of these events, Alfaro messaged his girlfriend at 2:32 p.m. that," 'I'm a call you. If you get a jail call[, ] answer.'" Later that night, Alfaro told her that he had been with Hernandez and another guy, and they had a fight or altercation with someone. They chased him in Hernandez's car, crashed into the car, and shots were fired.
The day after the shooting, Alfaro told his girlfriend in text messages that Stranger had gotten locked up and someone had snitched. He sent her a screenshot of a message from Rivera that said," 'Strangers got locked up yesterday. They took his car, raided his pad and all. Someone followed us and snitched.'" When she asked about the" 'bitch,' " Alfaro responded that he had to move it. Later, he texted that" 'we moved her.'" Alfaro also told his girlfriend that they had acquired the gun three days before the shooting.
Alfaro used this word to refer to a gun.
II. Communications between defendants and Easy Rider gang members
Evidence was introduced that in the days leading up to the shooting, Alfaro had discussions with Rivera and other gang members about getting a gun. On the day before the shooting, Rivera complained to Alfaro via Facebook that "Stranger" refused to give the" 'toy'" (referring to a gun) to Rivera. Easy Rider gang member and shot caller Osbaldo Chavez, whose gang moniker was Kasper, resolved the dispute by designating Alfaro to be" 'on point, '" meaning in charge of the gun. Kasper instructed that the gun was for emergencies only and that Alfaro should keep it unless either Kasper or "Sparks" (another Easy Rider) approved giving it to someone else. Alfaro confirmed to Kasper that he had the" 'baby, '" referring to a gun. Rivera and Alfaro also discussed how the gun is" 'there for when someone needs it'" and that" 'Kasper said it's supposed to be there at the homies' reach in case of anything.' "
On the evening of the shooting, Kaspar and Alfaro messaged each other. Kaspar asked Alfaro if the" 'girl is cool?'" Alfaro responded that he had moved "her to a better spot me and Strange know."
The gun was never recovered.
III. The People's gang expert testimony
The People's gang expert Los Angeles Police Officer Erica Garcia explained that gangs are hierarchical. At the top is the original gangster or "OG," who can dictate orders to other gang members. Gang members will share guns and use code words when referring to guns. Shot callers decide who is "on point," meaning in charge of the gun. Officer Garcia also testified that respect is important to gangs, and if a gang is disrespected, it is vital for the disrespected gang to respond, usually violently.
Officer Garcia had monitored the Easy Rider gang for two years. The gang's primary activities were murder, assault with a deadly weapon, felony vandalism, robbery, and burglary, and it generates income through robberies and drug sales. She opined that Hernandez, Rivera, and Alfaro were all Easy Rider gang members.
To establish the predicate offenses, the People introduced two certified minute orders. The first showed that Francisco Piogunito was convicted of robbery on January 13, 2014. According to Officer Garcia, Piogunito is an Easy Rider gang member and was a gang member when he committed the robbery. The second certified minute order showed that Victor Torres was convicted of assault with a firearm and negligent discharge of a firearm, which were committed in October 2016. Torres also is an Easy Rider gang member.
The prosecutor posed two hypotheticals to the officer, one positing a gang member spray painting graffiti on a guardrail while a second acts as a lookout. Such a crime would be committed in association with and to advance the gang because the graffiti establishes the gang's territory, committing a crime in an open area instills fear in the community, and the crime informs the neighborhood that gang members are putting in work. The second hypothetical was modeled on the facts underlying the attempted murder and shooting at an occupied vehicle. Officer Garcia again opined that the crimes were committed in association with and for the benefit of the gang. The gang members would have felt disrespected by the victim saying "What's up?" and would have felt expected to lash out violently in response. They committed the crimes in association with each other to show the community and rival gang members not to mess with the gang and to instill fear in the community. Had they done nothing, it would have suggested their lack of loyalty and respect for their hood.
IV. The defense
Hernandez testified in his defense. He admitted he was an Easy Rider gang member. He also admitted that he had the gun but gave it to Alfaro the morning of the shooting.
The day of the shooting, Hernandez was with Alfaro and Rivera in front of Hernandez's apartment building. However, Hernandez had walked away to talk to an ex-girlfriend, so he did not witness the verbal exchange with the victim.
Upset because he had argued with his ex-girlfriend, Hernandez asked Alfaro and Rivera to drive with him to a park to drink. They were in Hernandez's car, with Hernandez in the driver's seat, Alfaro in the backseat, and Rivera in the front passenger seat when they happened upon the victim. Rivera told Hernandez to" 'pull up on this nigga, I'm going to dump on this fool.'" Rivera pulled a gun from a black bag and shot out the window. Alfaro also said he wanted to" 'dump on'" the victim.
Up to that moment, Hernandez did not know there was a gun in the car. Although Hernandez tried to drive in a manner to avoid any confrontation, he accidentally crashed into the victim's car, which was when Rivera shot at the victim.
V. Verdict and sentence
A jury found Alfaro guilty of attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a); count 1), shooting at an occupied motor vehicle (§ 246; count 3), and vandalism by graffiti (§ 594, subd. (a); count 4). As to counts 1, 3, and 4, the jury found true gang allegations (§ 186.22, subd. (b)). As to counts 1 and 3, the jury found true principal gun use allegations (§ 12022.53, subds. (b), (c) & (e)).
The jury also found Rivera and Hernandez guilty of attempted premeditated murder with true findings on gang and principal gun use allegations. Personal gun use allegations were never presented to the jury as to any of the three defendants.
Alfaro was found not guilty of count 2, assault with a deadly weapon.
On December 11, 2019, the trial court sentenced Alfaro on count 1 to life with a minimum parole eligibility of seven years plus 20 years for the gun enhancement and to a consecutive two years on count 4. On count 3, the trial court imposed but stayed under section 654 a sentence of life with a minimum parole eligibility of 15 years.
DISCUSSION
I. There was sufficient evidence to support the premeditation finding, assuming Alfaro was the shooter.
Alfaro contends there was insufficient evidence to support the premeditation finding. His contention proceeds on the assumption that the jury found that he was the shooter-even though the prosecutor's theory of the case was that either Rivera or Alfaro could have been the shooter, and the jury found true only principal gun use allegations. Nonetheless, adopting this assumption, we find that there was sufficient evidence to support the premeditation finding.
Murder is of the first degree when it is willful, deliberate and premeditated. (§ 189, subd. (a).) Premeditation and deliberation require more than a showing of intent to kill. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) A killing is premeditated and deliberate if it is considered beforehand and occurred as the result of preexisting thought and reflection, rather than as the product of an unconsidered or rash impulse. (People v. Pearson (2013) 56 Cal.4th 393, 443.) "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. (Ibid.) However, it is unnecessary to prove the defendant maturely and meaningfully reflected upon the gravity of his act. (§ 189, subd. (d).) Premeditation and deliberation do not require any extended period of time. (People v. Salazar (2016) 63 Cal.4th 214, 245.) The issue is not so much the duration of time as it is the extent of reflection, because thoughts may follow each other with great rapidity, and cold, calculated judgment may be arrived at quickly. (People v. Potts (2019) 6 Cal.5th 1012, 1027.) Also, courts do not differentiate between completed first degree murder and attempted murder for purposes of determining if there is sufficient evidence of premeditation and deliberation. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8, disapproved on another ground by People v. Mesa (2012) 54 Cal.4th 191, 199.)
Three categories of evidence are especially probative to establish premeditation and deliberation: (1) what was the defendant doing before he committed the crime (planning activity), (2) facts about the relationship between the victim and the defendant (motive), and (3) the manner of killing. (People v. Potts, supra, 6 Cal.5th at p. 1027; People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) These so-called Anderson factors are not all required, are not exclusive, and need not be accorded any particular weight; instead, they are a framework to guide appellate review. (People v. Morales (2020) 10 Cal.5th 76, 89.)
Review of the sufficiency of the evidence to support a premeditation finding involves consideration of the evidence presented and all logical inferences in light of the above definitions of premeditation. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)" '[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation]. We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation]. If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
Applying these standards here, there was more than sufficient evidence of all three Anderson factors.
First, there was evidence of planning activity. In the days leading to the shooting, Rivera and "Stranger" (inferentially, Hernandez) argued about who would have the gang gun. Kasper dictated that Alfaro would be in charge of the gun, and Alfaro confirmed to Kasper that he had the gun the day before the shooting. To be sure, at that time, Alfaro could not have planned to use the gun the next day against this specific victim. Nonetheless, as the People's gang expert testified and as Kasper said, gang guns were for emergencies. Alfaro thus armed himself in preparation for an emergency, which, it was reasonable to infer, he thought had occurred when he and his codefendants encountered the victim. (See, e.g., People v. Ramos (2004) 121 Cal.App.4th 1194, 1208 [gang member armed himself before attending party, showing a "willingness to take immediate lethal action" if need arose].)
And although the incident happened suddenly, there was nonetheless evidence of a plan to shoot the victim. (See, e.g., People v. Sanchez (2001) 26 Cal.4th 834, 849 [premeditation established in gang context even though time between seeing victim and actual shooting was brief].) After the victim drove away, Alfaro and the others got into Hernandez's car and pursued him. Hernandez positioned his car so that they were behind the victim, immobilized the victim's car by crashing into it, and a person or persons from inside Hernandez's car fired gunshots at the victim.
There was also evidence that Alfaro and Rivera discussed who would "dump on" the victim, with both men wanting to do it. Alfaro dismisses his statement as the product of an unconsidered or rash impulse that cannot support a premeditation finding. (See, e.g., People v. Pearson, supra, 56 Cal.4th at p. 443 [premeditated killing is not one that is unconsidered or done on rash impulse].) But, as we have said, a cold, calculated judgment may be arrived at quickly. (People v. Potts, supra, 6 Cal.5th at p. 1027.)
Moreover, Alfaro and his codefendants had a loaded gun, and the evidence suggested that Alfaro had control of it. Bringing a loaded gun or other weapon to a confrontation shows that the attempted murder was planned. (See, e.g., People v. Salazar, supra, 63 Cal.4th at p. 245 [bringing weapon to murder victim's home showed premeditation]; People v. Lee (2011) 51 Cal.4th 620, 636 [same].) Also, hiding the gun after the shooting supported the premeditation finding. (See, e.g., People v. Clark (1967) 252 Cal.App.2d 524, 529.)
Second, there was evidence Alfaro had a motive to shoot the victim. Alfaro told his girlfriend that there had been an altercation with the victim, who had said" 'What's up'" to them. The People's gang expert testified that such a comment could have been perceived as a challenge or as disrespectful. (See, e.g., People v. Ramos, supra, 121 Cal.App.4th at p. 1208 [expert testified that gang members are expected to defend fellow gang member who has been disrespected].) Indeed, defendants perceived the exchange they had with the victim outside the apartment building as disrespectful because Rivera threw something at the departing victim's car. The victim's perceived slight, per the gang's notions of respect, had to be answered with aggression.
Finally, the manner of the attempted killing supported the premeditation finding. Alfaro and his accomplices got into Hernandez's car, pursued the victim, and crashed into the victim's car, which the jury could have believed was to immobilize the victim. Multiple gunshots were fired from Hernandez's car in the victim's direction, striking the victim's car. (See, e.g., People v. Herrera, supra, 70 Cal.App.4th at pp. 1463-1464 [dozen shots fired during drive-by shooting evidenced premeditation]; People v. Bolin (1998) 18 Cal.4th 297, 332 [firing multiple gunshots at victims supported premeditation finding].)
To be sure, the evidence here is different than in the many cases Alfaro cites involving arguably more horrific evidence. In one, People v. Romero (2008) 44 Cal.4th 386, 401, the defendant killed the victim execution style by shooting him in the back of the head and firing a single shot. (Accord, People v. Brady (2010) 50 Cal.4th 547, 564 [defendant ensured victim was dead by standing over prone body and firing another shot]; People v. Martinez (2003) 113 Cal.App.4th 400 [defendant tried to shoot rival gang member by aiming gun at victim's head and pulling trigger].) Although killing someone execution style may be a quintessential example of a premeditated killing, it is not the only type of killing or attempted killing that will support a premeditation finding, as the other cases we have cited demonstrate. (See, e.g., People v. Poindexter (2006) 144 Cal.App.4th 572, 588 ["The manner of killing, while not an execution-style single shot to the head, could still support a finding of premeditation and deliberation, as defendant quickly fired three shots at the victim, with a shotgun, from a relatively close range."].)
In sum, our review of the three Anderson factors- planning, motive, and manner of killing-shows that there is more than sufficient evidence that Alfaro acted with premeditation, assuming that the jury found he was the shooter.
Alfaro cursorily argues that there was insufficient evidence he was the shooter. Not so. Alfaro was "on point" for the gun; a witness said the shots came from the rear passenger seat, which is where Hernandez said Alfaro was sitting; and Alfaro said he wanted to be the one to "dump on" the victim. Soon after the shooting, Alfaro told his girlfriend that if she got a "jail call," to answer it, and he helped hide the gun. Notwithstanding other evidence showing that Rivera was the shooter, the jury could have believed that one or both Rivera and Alfaro shot at the victim.
II. There was sufficient evidence to support the premeditation finding if Alfaro was an aider and abettor, and the jury was properly instructed.
Alfaro next contends that if he was not the shooter, then there was insufficient evidence he aided and abetted an attempted premeditated murder. From this, he makes two arguments. First, the jury should have been instructed that he had to personally premeditate in order to be sentenced to a life term as an aider and abettor. Second, and to the extent his guilt depended on Rivera who, in this scenario we are to assume was the shooter, there was insufficient evidence that Rivera premeditated a murder. Neither argument is persuasive.
A. Instructional error
Alfaro contends that the trial court should have sua sponte instructed the jury that an aider and abettor must personally act willfully, deliberately, and with premeditation for the section 664, subdivision (a), allegation to be found true. However, our Supreme Court held to the contrary in People v. Lee (2003) 31 Cal.4th 613, 623. In that case, the court described section 664, subdivision (a), as a penalty provision that increases the penalty for attempted murder to life when the attempted murder is premeditated. (Lee, at p. 622.) The provision requires only that the murder attempted was premeditated and does not require an aider and abettor to attempted murder to personally act with premeditation. (Id. at p. 623; accord, People v. Favor (2012) 54 Cal.4th 868, 872 [when defendant is tried under natural and probable consequences theory, the jury need not be instructed that a premeditated attempt to murder must have been a natural and probable consequence of the target offense].)
Although Alfaro acknowledges that we are bound by Lee (see generally Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), Alfaro tries to distinguish it based on the way in which his jury was instructed. Alfaro's jury was instructed with CALCRIM No. 601, which stated in part, "The attempted murder was done willfully and with deliberation and premeditation if either the defendant or another perpetrator or aider and abettor or both of them acted with that state of mind." (Italics added.) He argues that this language undercut Lee's holding that the jury must find that the attempted murder was premeditated. We disagree. CALCRIM No. 601 as a whole instructed that the jury had to find that the attempted murder was premeditated. At its outset it stated, "If you find the defendant guilty of attempted murder . . ., you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation." Thus, the jury necessarily found that someone involved in the attempted murder premeditated. Moreover, the reference to "aider and abettor" in the instruction actually undercuts Alfaro's argument; that is, it told the jury that an aider and abettor could also personally premeditate the attempted murder. Thus, although CALCRIM No. 601 did not tell the jury it had to find that any aider and abettor personally premeditated, it suggested it as a possibility.
Alfaro also urges us to ignore Lee and instead to follow People v. Dennis (2020) 47 Cal.App.5th 838. The defendant in that case was prosecuted based on the theory that he aided and abetted the actual shooter's attempted premeditated murder by committing a target offense, the natural and probable consequence of which was attempted murder (not attempted premeditated murder). Dennis, at page 852, relied on Alleyne v. United States, supra, 570 U.S. 99, 103, which held that the Sixth Amendment requires any fact that by law increases the mandatory minimum for a crime to be treated as an element of the crime, so it must be submitted to the jury and found true beyond a reasonable doubt. Dennis, at page 854, held that the jury had to be instructed that to make the premeditation finding, it had to find that the attempted premeditated murder was a natural and probable consequence of the target crime.
The Supreme Court granted review of Dennis and remanded the matter with the direction to the Court of Appeal to vacate its decision and reconsider the cause in light of Senate Bill No. 775, which expanded eligibility for resentencing under section 1170.95 to persons convicted of attempted murder. Although Dennis has become not citeable in the time the petition for rehearing has been pending, we address it since Alfaro relies so heavily on it.
Dennis does not apply because Alfaro's jury was not instructed on a natural and probable consequences theory. Rather, Alfaro was tried as a direct aider and abettor. The jury was accordingly instructed on the principles of aiding and abetting liability and attempted murder. (CALCRIM Nos. 400, 401, 252, 600.)
Because we are bound by Lee and because Dennis does not apply, no instructional error occurred under current law.
B. Any instructional error was harmless.
Even if we were not bound by Lee and even if Dennis applied, we would find any instructional error to be harmless beyond a reasonable doubt. (See generally People v. Aledamat (2019) 8 Cal.5th 1, 12-13 [instructing on legally inadequate theory is reviewed under Chapman v. California (1967) 386 U.S. 18]; People v. Merritt (2017) 2 Cal.5th 819, 832 [" '[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.' "].) That is, there was more than sufficient evidence that Alfaro aided and abetted Rivera to commit an attempted murder that they both premeditated.
Our discussion of law and facts in Discussion section I applies with equal force here. But, as to the specific issue of Alfaro's status as an aider and abettor to attempted murder, we add that attempted murder "requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee, supra, 31 Cal.4th at p. 623.) A person aids and abets the commission of a crime when the person, acting with (1) knowledge of the perpetrator's unlawful purpose; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense; (3) by act or advice aids, promotes, encourages, or instigates, commission of the crime. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) Factors relevant to aiding and abetting are presence at the scene of the crime, companionship, and conduct before and after the offense. (Ibid.)
Alfaro and Rivera were members of the same gang and were hanging out together before the shooting occurred. The jury thus could have found that Alfaro was with Rivera when the initial exchange with the victim occurred and witnessed the exchange or participated in it. Indeed, Alfaro told his girlfriend that there had been a fight with the victim, so he had knowledge of it. Further, the victim saw three men outside the apartment building, which also suggests that Alfaro was aware of the exchange with the victim. Rivera was directly involved in the initial exchange with the victim and, as the gang expert suggested, Rivera perceived that exchange as disrespecting him and the Easy Riders, so he threw something at the victim's car.
Alfaro then got into the car with Hernandez and, it is reasonable to infer, an angry Rivera. This suggests that Alfaro and Rivera were not just going to the park to hang out and drink. The People's gang expert explained that in a context like this a gang member does not get into a vehicle to passively "go along for the ride." Having believed that the victim disrespected them, Alfaro and Rivera instead were pursuing the victim to defend their gang. (See, e.g., People v. Campbell (1994) 25 Cal.App.4th 402, 409 [accomplice did not just "happen by" crime scene].)
Moreover, Alfaro and Rivera got in a car with Hernandez and a gun to pursue the victim. There was substantial evidence that Alfaro and Rivera knew a gun was in the car. In the days before this shooting, they had been in a dispute about who would be in control of the gang gun, and Kasper had ordered Alfaro to be "on point." Hence, if Alfaro was in the car, so was the gun, and Rivera would have known this. Indeed, the victim saw Rivera reach down, inferentially to get the gun, and Hernandez testified that Rivera got the gun from a black bag and shot at the victim, all while declaring his intent to "dump on"-shoot-the victim. At the same time, Alfaro declared his intent also to "dump" on the victim. Rivera and Alfaro thus shared, and stated aloud, an intent to kill the victim.
Alfaro's conduct after the shooting also shows he was an aider and abettor. He helped hide the gun. He told his girlfriend he might be going to jail, which shows a consciousness of guilt.
Alfaro suggests that hiding the gun merely made him an accessory after the fact and not an aider and abettor. Accessories are person who, after a felony has been committed, harbor, conceal or aid a principal in the felony with the intent of helping the principal avoid criminal liability and knowing that a felony has been committed. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) However, Alfaro made no argument in the trial court that he was merely an accessory after the fact, and, as we have said, there was sufficient evidence he was a principal in the crime.
Alfaro's take on this evidence, however, is that the three defendants happened upon the victim, and the attack was just "random." This amounts to an improper request we reweigh the evidence and reevaluate witnesses' credibility. (People v. Brown (2014) 59 Cal.4th 86, 106.)
Rather, Alfaro's presence at the scene of the crime, companionship with his fellow gang members, and conduct before and after the offense supported his liability for the offenses as an aider and abettor. Therefore, whether the viability of Alfaro's conviction as an aider and abettor for attempted premeditated murder hinged on either his personal premeditation or on Rivera's, Alfaro's conviction must stand.
III. Gang enhancement
As we have said, the jury found gang allegations true against Alfaro as to all counts and those allegations were used to enhance his sentence by imposing minimum terms of parole eligibility under section 186.22, subdivision (b)(4).
However, Assembly Bill No. 333, which took effect on January 1, 2022, made significant amendments to the gang statute, section 186.22. The legislation redefined "pattern of criminal gang activity" in five respects. (1) Previously, the predicate offenses had to have been committed, or convictions had to have occurred, within three years of each other. Now, additionally, the last offense must have occurred within three years of the date the current offense is alleged to have been committed. (§ 186.22, subd. (e)(1).) (2) The amended law now states that the predicate crimes must have been committed by "members," not simply "persons," as the law had formerly stated. (Ibid.) (3) The amendments impose a new requirement that the predicate offenses "commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational[.]" (Ibid.) (4) Looting, felony vandalism, felony theft of an access card or account, and other identity fraud crimes no longer qualify as predicates, while other offenses (kidnapping, mayhem, torture, and felony extortion) now do so qualify. (Ibid.) (5) The currently charged offense may not be used to establish the pattern of criminal gang activity. (Id. at subd. (e)(2); see People v. Lopez (2021) 73 Cal.App.5th 327, 345 (Lopez).)
Assembly Bill No. 333 also modified the definition of "criminal street gang." Previously, section 186.22 stated that a criminal street gang was "any ongoing organization, association, or group" of three or more persons, whether formal or informal. That language has been changed to "an ongoing organized association or group of three or more persons, whether formal or informal." (§ 186.22, subd. (f), italics added.) The previous definition required that the gang's "members individually or collectively engage in, or have engaged in," the pattern of criminal gang activity. (Former § 186.22, subd. (f), italics added). Now, the word "individually" has been excised and the gang's members must "collectively" engage in, or have engaged in the pattern of criminal gang activity. (§ 186.22, subd. (f).) The amendment also added a new subdivision that clarifies what it means to benefit the gang: "As used in this chapter, to 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 intimidating or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).)
Assembly Bill No. 333 also enacted new section 1109. That section provides, inter alia, that if requested by the defense, a charged section 186.22, subdivision (b) or (d) enhancement "shall be tried in separate phases," with the question of guilt of the underlying offense to be determined first and the truth of the gang enhancement tried thereafter. (§ 1109, subd. (a).)
Alfaro argues that he is entitled to the ameliorative benefits of the amendments to section 186.22, and the People concede the point. We accept the concession. Courts of Appeal that have considered the issue have concluded that Assembly Bill No. 333's amendments to section 186.22 apply retroactively where, as here, a defendant's conviction was not final before the amendments took effect. (See, e.g., Lopez, supra, 73 Cal.App.5th at pp. 343-344; People v. Vasquez (2022) 74 Cal.App.5th 1021; People v. Sek (2022) 235 Cal.App.5th 1388.)
The People's concession, however, does not extend to section 1109, which we do not address.
Under In re Estrada (1965) 63 Cal.2d 740, 745, we assume that, absent contrary evidence, an amendment reducing punishment for a crime applies retroactively to all nonfinal judgments. (People v. Brown (2012) 54 Cal.4th 314, 323.) For retroactivity purposes, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.) The Estrada rule has been applied to penalty enhancements, as well as to amendments giving the court discretion to impose a lesser penalty. (People v. Nasalga (1996) 12 Cal.4th 784, 792; People v. Francis (1969) 71 Cal.2d 66, 75-76.)
Assembly Bill No. 333 does not directly reduce punishment for a gang enhancement, but the Estrada rule also applies where "an enhancement has been amended to redefine to an appellant's benefit the conduct subject to the enhancement." (Lopez, supra, 73 Cal.App.5th at p. 344.) "Where a criminal statute is amended to repeal another criminal statute, reduce the punishment for a criminal offense, or modify the elements of a penalty enhancement, an offender of the law that has been so amended is entitled to the benefit of the amendment unless the Legislature indicates a contrary intent." (People v. Roberts (1994) 24 Cal.App.4th 1462, 1466, italics added.)
For example, in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, a defendant was charged in adult court with various sex crimes committed when he was a juvenile. Thereafter, Proposition 57 amended the law to require a transfer hearing before a transfer to adult court. (Id. at p. 303.) Lara concluded this provision applied retroactively to benefit the defendant, reasoning: "In [Estrada], we held that a statute that reduced the punishment for a crime applied retroactively to any case in which the judgment was not final before the statute took effect. In People v. Francis (1969) 71 Cal.2d 66 . . ., we applied Estrada to a statute that merely made a reduced punishment possible. Estrada is not directly on point; Proposition 57 does not reduce the punishment for a crime. But its rationale does apply. The possibility of being treated as a juvenile in juvenile court- where rehabilitation is the goal-rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada's inference of retroactivity applies." (Ibid.) Because nothing in the proposition's text or ballot materials rebutted this inference, Lara, at pages 303 to 304, concluded the proposition applied to juveniles charged in adult court whose judgment was not final when the Proposition was enacted.
Similarly, in People v. Figueroa (1993) 20 Cal.App.4th 65, the defendant's sentence for selling cocaine was enhanced because the sale took place within 1, 000 feet of a school. During the pendency of his appeal, the enhancement statute was amended to apply only when the narcotics trafficking occurred when the school was in session or minors were using the facility. (Id. at p. 69.) Applying the rationale of Estrada, the court held, "a defendant is entitled to the benefit of an amendment to an enhancement statute, adding a new element to the enhancement, where the statutory change becomes effective while the case was on appeal, and the Legislature did not preclude its effect to pending cases." (Figueroa, at p 68.) The court reasoned: "The Estrada principle is based on presumed legislative intent. In almost every case, its application has been to amendments that reduce punishment or make an act formerly criminal, not a crime at all. The circumstances of an amendatory change to a penalty statute are covered, however, in Tapia v. Superior Court [(1991) 53 Cal.3d 282, 301.] In that case the Supreme Court discussed amendments to the death penalty law adopted in 1992 by Proposition 115. One of the changes added an intent element to each of two of the death penalty special circumstances, Penal Code section 190.2, subdivision (a)(11) and (a)(12). The court held that the new requirement applied to defendants whose crimes were committed before the change if their conviction was not yet final. Reduced to a nondeath penalty context, that is our case. Based on Estrada and Tapia, we conclude that appellant must be given the benefit of the amended statute." (Id. at pp. 70- 71.) The People were "entitled to an opportunity, on remand, to prove up the new element." (Id. at p. 68; see, e.g., People v. Frahs (2020) 9 Cal.5th 618, 629 [Estrada rule has been applied to statutes "that merely made a reduced punishment possible."]; People v. Nasalga, supra, 12 Cal.4th at p. 787 [increased threshold for imposition of enhancements applied retroactively]; People v. Vinson (2011) 193 Cal.App.4th 1190, 1197 [change in elements necessary to prove petty theft with a prior applied retroactively].)
Under this authority, Assembly Bill No. 333 retroactively applies to Alfaro's case, which was not final when the amendments took effect. And, as the People further concede, the evidence did not support the new statutory requirements of section 186.22. There was no evidence, for example, that the two predicate offenses introduced at trial benefited a criminal street gang in a way that was more than reputational. (§ 186.22, subd. (e)(1).) Indeed, the jury was instructed, in accordance with the law in effect at the time, that the predicate offenses did not have to be gang-related.
Given this evidentiary deficit, the true findings on the gang enhancements must be reversed and the matter remanded to allow the prosecution the option of retrying the enhancements and establishing all elements required by Assembly Bill No. 333, with admissible evidence.
As remand for a potential retrial of the gang enhancements is required, we need not decide whether any of the other new elements of section 186.22 were met.
IV. Assembly Bill No. 518
When Alfaro was sentenced in 2019, section 654 provided that a criminal act punishable in different ways by different provisions of law must be punished under the provision providing the longest potential term of imprisonment. Our legislature has since passed Assembly Bill No. 518 (Stats.2021, ch. 441), which amended section 654. As amended, section 654 now provides that an act or omission punishable in different ways by two different provisions of law, as in this case, may be punished under either provision. Hence, the longest term of imprisonment is no longer mandatory.
The Attorney General concedes that Assembly Bill No. 518 is retroactive and applies to Alfaro. The trial court sentenced Alfaro on count 1 to life with a minimum parole eligibility of seven years plus 20 years for the gun enhancement. On count 3, the trial court imposed but stayed under section 654 a sentence of life with a minimum parole eligibility of 15 years. Under the new law, should it be relevant at any resentencing, the trial court would have the discretion to decide which sentence on which count should be stayed. We express no opinion on how that discretion should be exercised on remand.
DISPOSITION
The true findings on the gang allegations are reversed and Alfaro's sentence is vacated. The matter is remanded with the direction to the trial court to provide the People an opportunity to retry the section 186.22, subdivision (b), gang allegations under the law as amended by Assembly Bill No. 333. At the conclusion of any retrial on the gang allegations or on remand if the People elect not to retry the gang allegations, the trial court shall resentence Alfaro and consider the potential applicability of Assembly Bill No. 518. In all other respects, the judgment is affirmed.
We concur: LAVIN, J., EGERTON, J.