Opinion
G054593
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO ALONZO, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12NF3887) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson and Cheri T. Pham, Judges. Affirmed and remanded with directions. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Fernando Alonzo was convicted of attempted murder and other crimes for shooting at a rival gang member. On appeal, he does not dispute he carried out the shooting. Instead, he challenges the jury's finding he committed it to benefit a criminal street gang in which he was an active participant. In defendant's view, the gang charges were not proven by admissible evidence, they lack substantial evidentiary support, and the jury was misinstructed on their elements. We disagree with these contentions. As the People concede, however, the case must be remanded to allow defendant to make a record relevant to his future parole hearing, and to permit the trial court to decide whether to dismiss certain sentencing enhancements. Thus, while we affirm the judgment, we remand for further proceedings.
FACTS
In 2012, defendant and codefendant Jesus Ramos were members of an Anaheim gang known as Folks. In the summer of that year, their fellow gang member Christian Frausto was assaulted by a member of a rival gang called Fullerton Tokers Town (FTT). Three months later, FTT member Jeovany Salgado was in Folks' territory to attend a party with various members of his family. Upon learning of this, defendants and several other Folks members congregated in a nearby alley. When they saw Salgado leave the party, they yelled out "Folks," made Folks hand signs, and derided FTT. Then defendants stepped apart from their group and exchanged words. Ramos said, "Let's get this fool," and defendant proclaimed, "They call me Superman because I have the 'F' on my chest." Salgado and his family hurried to their cars and began to drive away, but Ramos handed defendant a gun that he fired into Salgado's vehicle. Although the shots did not hit anyone, they shattered the rear window of the vehicle, and two of its occupants were injured by flying glass.
The prosecution charged defendants with conspiracy to commit murder, attempted murder, shooting at an occupied vehicle and active participation in a criminal street gang. (Pen. Code, §§ 182/187; 664/187; 246; 186.22, subd. (a).) It also alleged defendants acted for the benefit of a criminal street gang and intentionally discharged a firearm. (§§ 186.22, subd. (b); 12022.53, subds. (c) & (e)(1).)
Unless noted otherwise, all further statutory references are to the Penal Code.
To prove the gang charges, the prosecution presented testimony from a variety of police officers. One of them testified as a gang expert, and the others testified about their personal contacts with defendants in the years leading up to the shooting. During those contacts, Ramos admitted he was a Folks member and was aware Frausto had been assaulted by a rival from FTT. Defendant also made statements evincing his affiliation with Folks. He said he was "walked" into the gang (meaning he was allowed to join by virtue of having friends and/or family in the gang), had been a member for several years, and his moniker was "Spanky." When asked about his level of respect within the gang, he said he was "ahead of others because of his status[.]"
The prosecution's gang expert was Anaheim Police Investigator Garrett Melberg. He said gangs thrive on "respect," which they earn by committing crimes and making sure perceived slights do not go unreciprocated. Therefore, "[a]ny act that might be disrespectful to [a] gang is usually met with violence." Melberg explained the more violent the retaliatory act is, the more respect it will garner, and the more respect a gang member acquires, the greater his status and leadership responsibilities will be within his gang. Melberg also spoke to the issue of trust, saying gang members like to know the people they are associating with won't snitch on them when they commit crimes.
Melberg stated that when this case arose in the fall of 2012, Folks had about 100 documented members, but only about 20 of them were active. He said the gang's primary activities were possessing guns and committing assaults with deadly weapons, and as to both of these activities he was aware of at least three examples in which Folks members had engaged in them. He cited several cases in which Folks members had been convicted of firearm offenses. He said because guns are coveted by gang members they are typically handled by members who are "more respected and more trusted within the gang."
Speaking to the present case, Melberg opined defendants were both members of Folks when the shooting occurred. Given a hypothetical reflecting what they allegedly did, he opined the shooting was committed for the benefit of and in association with their gang, and their actions would promote and further criminal conduct by its members. Melberg described the shooting as a classic case of retaliation, where one gang tries to one-up its rival by using gunfire to avenge a previous assault on one of its members. He said the shooting would not just send a message to the victim's gang that the shooter's gang was not to be trifled with, it would also spread fear in the broader community and make people reluctant to report the shooter's gang to the police.
Defendant's attorney did not dispute the gang evidence. In closing argument, he said "the evidence is pretty darn conclusive [defendant has] an association with Folks criminal street gang. I'm not fighting that. The evidence is there." However, he argued it would not be fair to convict defendant simply because he was a gang member. He also attacked the identification evidence linking his client to the crimes. Ramos' attorney picked apart the identification evidence, as well. Additionally, he argued that even if Ramos was at the scene, he lacked the specific intent to murder Salgado.
The jury acquitted Ramos of conspiracy to commit murder and attempted murder and was unable to reach a verdict on the charges that he shot at an occupied vehicle and actively participated in a criminal street gang. As to defendant, the jury acquitted him of conspiracy, but it convicted him of the remaining charges and found the firearm and gang allegations true. The trial court sentenced him to prison for 15 years to life for his crimes.
DISCUSSION
Evidentiary Issues
Defendant claims the admission of Ramos's police statements violated his Sixth Amendment confrontation rights, and Melberg's testimony exceeded the permissible scope of expert testimony. Neither claim has merit.
1. Sixth Amendment Claim
During trial, several police officers testified that when they contacted Ramos before the instant case arose, he admitted he was a member of the Folks gang. However, because Ramos invoked his right not to testify defendant was unable to cross-examine him about those admissions. Defendant claims this violated his confrontation rights under the Sixth Amendment. In addition, he asserts the violation was prejudicial because to prove the charge of active participation in a criminal street gang, the prosecution had to establish he carried out the shooting with at least one other member of his gang. (People v. Rodriguez (2012) 55 Cal.4th 1125.)
As the People point out, however, defendant did not object to the admission of Ramos' statements, which raises the specter of forfeiture. (Evid. Code, § 353, subd. (a) [no verdict shall be reversed due to the erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made"].) Defendant contends the objection requirement should be excused in this case because the law regarding the confrontation clause was in a state of flux when his trial commenced. We disagree.
Defendant's confrontation clause claim is based on a rule of law that was developed half a century ago in People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton). The Aranda/Bruton rule applies in cases where the prosecution seeks to introduce a confession by one defendant that also implicates his codefendant. If the confessing defendant chooses not to testify, the confession cannot be admitted against his codefendant without violating the Sixth Amendment's Confrontation Clause, even when the jury is instructed to consider the confession only against the defendant who made it. (Bruton, supra, 391 U.S. at p. 136; Aranda, supra, 63 Cal.2d at p. 529.)
More recently, in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court limited the scope of the confrontation clause to hearsay statements that are testimonial, meaning those made under circumstances indicating they would later be used at trial. (Id. at p. 61.) The court held such statements are inadmissible under the Sixth Amendment unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. (Id. at p. 68.)
Despite these precedents, defendant asserts there was no reason to believe Ramos' statements were objectionable until the California Supreme Court issued its decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which came down just a week before his trial started. Sanchez is a groundbreaking case because, in a departure from California precedent, it ruled hearsay evidence used as the basis for an expert's opinions is admitted for its truth and thus subject to exclusion under the Sixth Amendment. (Id. at pp. 684-686.) However, that aspect of the Sanchez decision has no application here because Ramos' statements were not admitted as basis evidence for gang expert Melberg's opinions. Rather, they were admitted through the testimony of the very officers to whom the statements were made.
Defendant notes Sanchez ruled the hearsay statements at issue in that case, which like those here arose from police contacts, were testimonial. (Sanchez, supra, 63 Cal.4th at pp. 694-697.) However, in coming to that conclusion Sanchez did not break new ground. Instead, it simply applied the various formulations of the term testimonial that had been developed by Crawford and its progeny. (Id. at pp. 687-694.) Because those decisions were already on the books by the time defendant's trial took place defense counsel could have used them to challenge Ramos' statements. He did not need the Sanchez case in order to do so.
In any event, the record shows the parties were fully aware of the Sanchez decision before trial started in this case. In fact, during a pretrial hearing the prosecutor said he had revised his witness list "in light of Sanchez," presumably to include the police officers to whom Ramos made his statements. So even though Sanchez was decided shortly before defendant's trial, defense counsel had ample opportunity to invoke that decision to the extent it was applicable in this case. Because of this, and because the grounds for challenging Ramos' statement under the Sixth Amendment were well established before Sanchez was handed down, defendant forfeited his Sixth Amendment claim by failing to raise it at trial.
Anticipating this result, defendant falls back to the position his attorney was ineffective for not objecting to Ramos' statements. To prevail on this claim, defendant must demonstrate 1) his attorney was incompetent for failing to object, and 2) absent such incompetency, it is reasonably probable he would have obtained a more favorable result at trial. (In re Hardy (2007) 41 Cal.4th 977, 1018-1019.) This he cannot do.
Recall, defendant's underlying argument is that the admission of Ramos' statements violated the Aranda/Bruton rule. However, that rule applies only when a "facially incriminating" confession of a nontestifying defendant "expressly implicat[es]" another defendant in a joint trial. (Richardson v. Marsh (1987) 481 U.S. 200, 207-208.) Here, Ramos' statements did not so much as mention defendant, let alone incriminate him. Therefore, their admission did not violate Aranda/Bruton, and his attorney was not incompetent for failing to object to them. (See United States v. Lung Fong Chen (2d Cir. 2004) 393 F.3d 139, 148-150 [no Sixth Amendment violation found where codefendant's statements did not facially incriminate the defendant]; Unites States v. Cuong Gia Le (E.D.Virg. 2004) 316 F.Supp.2d 330, 338 [same]; People v. Lucero (2000) 23 Cal.4th 692, 732 [counsel not ineffective for failing to make futile objections].)
Moreover, there was a plethora of evidence apart from Ramos' statements showing he was a member of the Folks gang. That evidence consisted of photographs of Ramos making gang signs with other men, as well as testimony the police once found a bottle at Ramos' house that had a numerical reference to Folks and the monikers of several Folks members written on it. There was also evidence that when contacted by the police on one occasion, Ramos was wearing a Pittsburgh Steelers jacket. This is significant because Folks claims black and yellow as its signature colors, and Ramos acknowledged that by wearing the jacket, he was violating a civil injunction that had been issued against the gang.
Then there were the circumstances of the case at hand. The very fact Ramos handed the gun to defendant shows he was a committed member of Folks who could be trusted to handle a firearm and not snitch to the police about their activities. In light of all the evidence, it is simply not reasonably probable defendant would have received a more favorable verdict had Ramos' statements to the police been excluded from the trial. Therefore, his attorney was not ineffective for failing to challenge them.
2. Permissible Scope of Expert Testimony
Defendant asserts Melberg's opinion that he was an active participant in Folks violated his constitutional right to due process and trial by jury because it usurped the jury's duty to decide that issue and "risked the jury construing that opinion as conclusive" on the substantive gang charge. Once again, we cannot agree.
As this court has pointed out, "The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) While an expert may not offer his or her opinion on the defendant's guilt (People v. Prince (2007) 40 Cal.4th 1179, 1227), expert testimony is not inadmissible simply because it embraces the ultimate issue to be decided by the trier of fact. (People v. Olguin, supra, 31 Cal.App.4th at p. 1371; accord, People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
Gang expert Melberg's opinion that defendant was an active participant in Folks related to a single element of the substantive gang charge. It did not amount to an opinion on defendant's guilt as to that charge as a whole. In fact, his opinion was not even determinative of that single element because the trial court's instructions permitted the jury to disregard the testimony of any witness, including Melberg's expert opinions. (CALCRIM No. 332.)
Still, Melberg's opinion regarding the active participation requirement was highly probative because it was based on specialized knowledge of criminal street gangs he had acquired through his work as a gang investigator. Defendant argues the jury was well equipped in its own right to determine whether he was an active participant in Folks. However, "determining whether someone is involved [in a gang] and the level of involvement is not a simple matter and requires the accumulation of a wide variety of evidence over time and its evaluation by those familiar with gang arcana in light of pertinent criteria." (People v. Valdez (1997) 58 Cal.App.4th 494, 506-507.) Because these issues are beyond the ken of the average juror, the trial court did not err in allowing Melberg to give his opinions on them. His opinions did not usurp the jury's role or infringe defendant's constitutional rights in any respect. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512 [upholding expert's opinion the defendant was an active participant in a criminal street gang]; People v. Killebrew, supra, 103 Cal.App.4th 644, 651-652 [while gang expert could not opine on the defendant's subjective intent, he could properly speak to the issues of gang membership and participation].)
Defendant also assails Melberg's testimony on the basis he was allowed to consider the underlying facts of the case in determining whether defendant was an active participant in Folks. Defendant claims this was tantamount to Melberg telling the jury he was guilty of all of the charged offenses. That is not the case.
The jury was instructed, "In evaluating the believability of an expert witness, . . . consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert relied was true and accurate." (Italics added.) Based on this instruction, the jury would have known that just because Melberg relied on the facts of the case in forming his opinion about defendant's gang status, that did not mean those facts were true. We therefore reject defendant's challenge to Melberg's testimony.
Sufficiency of the Evidence
Defendant asserts there is insufficient evidence to support the jury's verdict on the substantive gang charge as well as the gang enhancement allegations. Not so.
1. Standard of Review
The standard of review for assessing the sufficiency of the evidence to support a criminal conviction is "highly deferential." (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence of the defendant's guilt. (People v. Alexander (2010) 49 Cal.4th 846, 917.) In so doing, we do not reweigh the evidence or reevaluate the credibility of the witnesses who testified at trial; rather, "[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . 'If the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.]" (Ibid.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [it]."' [Citation.]" (People v. Cravens (2012) 53 Cal.4th 500, 508.) The same standard of review applies to true findings on enhancement allegations. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) With respect to both substantive counts and enhancement allegations, the defendant "bears an enormous burden" in challenging the sufficiency of the evidence to support the jury's verdict. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
2. Elements of Gang Charges
The substantive offense of active gang participation is set forth in section 186.22, subdivision (a), which provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished [for up to three years in prison]." In addition, section 186.22, subdivision (b), provides a sentence enhancement for anyone "who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]"
To constitute a "criminal street gang" for purposes of these provisions, a group must have as one of its "primary activities" the commission of one or more statutorily enumerated crimes (§ 186.22, subd. (f)), including assault with a deadly weapon, carrying a concealed firearm, carrying a loaded firearm, and possessing a firearm as a felon. (§ 186.22, subds. (e)(1), (31)-(33).) To satisfy this requirement, the prosecution must prove the commission of such crimes "is one of the group's 'chief' or 'principal' occupations. [Citation.]" (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) This may be shown by evidence of past or present criminal acts or through an expert witness who has knowledge of the gang's activities. (Id. at pp. 323-324; People v. Gardeley (1996) 14 Cal.4th 605, overruled on other grounds in People v. Sanchez (2016) 63 Cal.4th 665; People v. Duran (2002) 97 Cal.App.4th 1448, 1465.)
3. Primary Activities Requirement
Gang expert Melberg testified that when this case arose in 2012, the primary activities of the Folks gang were "gun possession" and "assaults with deadly weapons." Defendant asserts the reference to "gun possession" was too general to satisfy the primary activities requirement because gun possession is not illegal per se, and not all forms of illegal firearms possession are included among the crimes enumerated in section 186.22, subdivision (e). However, Melberg cited three specific cases in which Folks members had been convicted of possessing firearms as felons, which is one of the statutorily enumerated crimes. He also cited a case in which a Folks member had been convicted of discharging a firearm with gross negligence, which satisfies the enumerated crime of carrying a loaded firearm. Considering Folks only had about 20 active members at the time, this is a significant number of firearm violations. Of course, the facts of the present case also demonstrate Folks' penchant for illegal firearm activity, in that defendants carried a concealed and loaded gun at the time of the shooting.
Defendant also committed assault with a deadly weapon, which was the other primary activity ascribed to the gang by Melberg. Having found defendant guilty of attempted murder, the jury could consider it as corroboration of Melberg's testimony. This refutes defendant's claim there was no factual basis to support Melberg's opinion about the gang's primary activities. So does Melberg's testimony that he was aware of at least three other examples in which Folks members had committed assault with a deadly weapon. Although Melberg did not provide the details of those assaults, he was aware of them from talking with Folks members, investigating their activities, speaking with other police officers, and reviewing police reports, gang records and court documents. This was a sufficient foundation for Melberg's opinions. Viewing the evidence in favor of the judgment below, as we are required to do, there is substantial evidence to support the primary activities requirement.
4. Active Participation and Knowledge Requirements
Defendant also contends there is insufficient evidence he actively participated in a criminal street gang with knowledge its members engage in or have engaged in a pattern of criminal gang activity. (§ 186.22, subd. (a).) The active participation requirement is shown by gang involvement that is more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 752.) It may be gleaned from the circumstances of the charged crimes (id. at p. 753; People v. Morales (2003) 112 Cal.App.4th 1176, 1198), the defendant's association with other known gang members (People v. Salcido (2007) 149 Cal.App.4th 356, 361, disapproved on other grounds in People v. Rodriguez, supra, 55 Cal.4th 1125) or other indicia such as gang monikers and tattoos (People v. Galvez (2011) 195 Cal.App.4th 1253, 1258; People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 884). These factors may also be used to establish the knowledge requirement, which is typically satisfied by circumstantial evidence. (People v. Loeun (1997) 17 Cal.4th 1, 8; People v. Carr (2010) 190 Cal.App.4th 475, 488-489; People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
The record shows defendant was contacted by the police numerous times before the present case arose. During those contacts, defendant admitted he had been a Folks member for many years and his moniker was Spanky. He said he was walked into the gang at an early age and had gained its members trust by "always being around." He also admitted having a higher status/respect level in the gang as compared to other members. This is noteworthy because, according to the expert testimony, gang members achieve respect by committing crimes, especially violent ones. And the more respect a gang member has, the more power and responsibility he is likely to have within the gang. The fact defendant was able to work his way up the social hierarchy of the gang strongly suggests he was among its active participants and would know about its criminal endeavors.
Furthermore, the facts reveal defendant took a leadership role in the present case, which had all the signs of a gang related shooting. After his gang tracked down rival Salgado and taunted him with signs and slogans, defendant and Ramos stepped to the forefront of the group. Defendant even went so far as to proclaim he was like Superman because he had an "F" on his chest. Although he did not literally have an "F" on his chest, the jury could reasonably infer he was asserting himself as a prominent member of Folks. Indeed, his subsequent actions in getting the gun from Ramos and firing multiple shots into Salgado's car leave little doubt he was a devoted member of the gang. Of course, the jury also heard testimony from gang expert Melberg that defendant was an active participant in Folks. Considered in its totality, the evidence was more than sufficient to prove the gang charges.
Given our conclusion in this regard, we necessarily reject defendant's concomitant argument that the lack of evidence to support the gang charges violated his due process rights.
Instructional Issues
Defendant contends the jury's instructions were flawed in two respects. First, the trial court failed to clarify the meaning of the term "in association with" for purposes of the gang allegations. Second, the court's instruction on motive impermissibly lowered the prosecution's burden of proof as to those allegations. We are not persuaded.
1. Failure to Clarify Instructions
The trial court instructed the jury that in order to prove the gang allegations, the People had to prove defendant committed the charged offense "for the benefit of, at the direction of, or in association with a criminal street gang." Although he did not challenge this instruction in the trial court, defendant argues the court had a sua sponte duty to clarify the term "in association with." Defendant's argument is based on People v. Albillar (2010) 51 Cal.4th 47 (Albillar), which he maintains gave that term a specialized legal definition that needed to be provided to the jury in his case.
That's not the way we read Albillar. In reviewing the sufficiency of the evidence to support the jury's finding the defendants acted in association with their gang, Albillar did state the "defendants relied on their common gang membership and the apparatus of the gang in committing" those crimes. (Albillar, supra, 51 Cal.4th at p. 60.) However, contrary to defendant's claim, Albillar did not say such a showing was required to prove the "in association with" element. In fact, in support of its conclusion the evidence was sufficient in that case, Albillar relied on decisions in which the element was established by other types of evidence. (See id. at pp. 61-62, citing People v. Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 7 ["the fact . . . the defendant had a fellow gang member in the stolen vehicle with him would support a finding that he acted in association with the gang"]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332 [relying on the fact the defendant committed the subject crimes with another member of his gang and an expert opined the crimes were committed in association with a gang]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 ["jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members"].)
Because Albillar was a sufficiency of the evidence case, and because it did not purport to give the term "in association with" any special legal meaning, we find nothing in it to suggest the trial court erred in failing to clarify that term for defendant's jury. (See People v. Ellis (1999) 69 Cal.App.4th 1334, 1338 [when a term is commonly understood, the trial court is not required to sua sponte amplify or clarify its meaning to the jury].)
2. Motive Instruction
Per CALCRIM No. 370, the trial court instructed, "The People are not required to prove that the defendant had a motive to commit any of the crimes charged." Defendant contends this instruction reduced the prosecution's burden of proof on the gang allegations, which, as noted above, required proof he acted for the benefit of, at the direction of, or in association with a criminal street gang. However, the motive instruction had no bearing on the gang allegations because, per its terms, it applied only to the "crimes charged," not the enhancement allegations.
Furthermore, the gang enhancement makes no reference to the issue of motive, so even if the jury somehow thought the motive instruction applied to the enhancement allegations, it would not have created any confusion. (Compare People v. Maurer (1995) 32 Cal.App.4th 1121, 1126-1127 [motive instruction found confusing where alleged offense required proof defendant's conduct was "motivated" by an unnatural interest in children].) Therefore, the motive instruction is not cause for reversal. (People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139-1140 [rejecting claim motive instruction lessened the state's burden of proof on the gang allegations].)
Sentencing
After defendant was sentenced, the Legislature amended section 12022.53 to give trial courts the discretionary authority to strike firearm enhancements in the interest of justice. (See § 12022.53, subd. (h), as amended Jan. 1, 2018.) The People concede this amendment applies retroactively to defendant's case, and therefore the matter must be remanded to allow the trial court to exercise its discretion in this regard. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.)
The People also concede that because defendant was only 24 years old when he committed his crimes, a remand is required under People v. Franklin (2016) 63 Cal.4th 261 (Franklin) so the parties can make a record of information that will be relevant to his future youthful offender parole hearing. (§ 3051, as amended Jan. 1, 2016; People v. Tran (2018) 20 Cal.App.5th 561; People v. Perez (2016) 3 Cal.App.5th 612, 619.) We find the People's concessions well taken.
DISPOSITION
The judgment is affirmed. The matter is remanded for a Franklin hearing and to allow the trial court to determine whether defendant's firearm enhancements should be stricken in the interest of justice.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. MOORE, J.