Opinion
2d Crim. B301047
01-18-2023
THE PEOPLE, Plaintiff and Respondent, v. ALVARO ANAYA, Defendant and Anaya.
Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. SA095033. Lauren Weis Birnstein, Judge
Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
BALTODANO, J.
Alvaro Anaya, an 18th Street gang member, was charged with first degree murder (Pen. Code, § 187, subd. (a), 189, subd. (a), count 1); attempted first degree murder (§§ 664/187, subd. (a), counts 2 through 5); and assault with a firearm (§ 245, subd. (b), count 6). It was alleged the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b)(4), (5)).
All statutory references are to the Penal Code unless otherwise stated.
The jury found Anaya guilty of counts 1, 2 and 6, and found true the criminal street gang enhancement. With respect to the murder conviction, the jury also found true that a gang principal personally and intentionally discharged a firearm. (§ 12022.53, subds. (b), (c), (e)(1).) As to the attempted murder conviction, the jury found true that Anaya personally and intentionally discharged a firearm causing great bodily injury and personally inflicted great bodily injury. (Id., subds. (b)-(d); § 12022.7, subd. (a).) And for the conviction for assault with a firearm, the jury found true that a principal was armed with a firearm. (§ 12022, subd. (a)(1).) Anaya admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).), and the trial court sentenced him to an aggregate prison term of 98 years to life, including an upper term sentence on count 6.
Anaya contends the trial court committed reversible error by instructing the jury pursuant to CALCRIM No. 315 that it could consider the certainty of the eyewitness who identified Anaya as the shooter on January 21, 2017. He also contends he is entitled to ameliorative relief under Senate Bill No. 567 (S.B. No. 567), requiring reduction of the upper term sentence on count 6. Anaya further asserts, and the Attorney General concedes, that Assembly Bill No. 333 (A.B. No. 333) applies retroactively to Anaya and requires a remand on the gang and gang-firearm enhancements. We accept this concession and remand for possible retrial of these enhancements.
We also conclude remand is proper on count 6 to allow the trial court to reconsider the upper term sentence pursuant to People v. Buycks (2018) 5 Cal.5th 857, 893 ["full resentencing rule" permits trial courts to modify every aspect of sentence upon resentencing]. Resentencing proceedings shall be conducted in accordance with S.B. No. 567 and Senate Bill No. 81 (S.B. No. 81). However, we reject Anaya's claim of instructional error regarding CALCRIM No. 315. Not only did Anaya forfeit this argument by failing to object below, but the argument also fails under People v. Lemcke (2021) 11 Cal.5th 644, 657, 660-661 (Lemcke).
FACTUAL HISTORY
January 21, 2017 Shooting (Count 6)
On January 21, 2017, at about 1:30 p.m., Freddy Manolo Moran Ceron (Moran) was near 15th Street and Magnolia Avenue in the Pico Union neighborhood of Los Angeles. Moran had lived in the area for more than 13 years and was familiar with the Drifters and 18th Street gangs. Moran saw a Drifters gang member approach a group of four 18th Street gang members who were spraying graffiti. The Drifters gang member exchanged "words" with the 18th Street gang members, and then ran out of Moran's view. The 18th Street gang members ran after the Drifters gang member.
The four 18th Street gang members returned and got into Anaya's black Chevrolet Silverado pickup truck. The Silverado travelled on Magnolia and turned left on 14th Street out of Moran's view. Less than a minute later, Moran heard several gunshots.
A neighbor, Samoa Bernal, looked out of her living room window and saw a man running on 14th Street toward Magnolia. The man was Hispanic, thin with short hair, and about five-feet-seven-inches tall. He wore a white tank top and was in his mid-20s. About five seconds later, a second man stopped on 14th Street in front of Bernal's window. He displayed a firearm and fired several shots towards Magnolia. The shooter wore a black sweatshirt with the hood covering his face.
Another neighbor, Sandra Torres, stood near a back window in her second-floor apartment when she heard several gunshots. She saw a man on 14th Street standing outside the open front passenger door of a four-door Silverado and shooting towards her building. The shooter got into the Silverado, which drove off. The driver and front passenger/shooter were Hispanic men. The shooter looked like he was in his late 20s or early 30s. Torres called 911. She was not able to identify Anaya as the shooter.
The police responded to the crime scene and recovered six 9-millimeter shell casings. There was fresh 18th Street graffiti painted over Drifters graffiti on the northwest corner of 15th Street and Magnolia.
The police obtained surveillance video, which confirmed that around 1:30 p.m., Anaya's Silverado travelled north on Magnolia, then turned left onto 14th Street. The video showed someone in a white t-shirt running on 14th Street and turning into an alley.
On February 22, 2017, the police showed Moran a "six-pack" photographic lineup. Moran did not identify anyone from that lineup as the January 21, 2017 shooter. On March 14, 2017, the police showed Moran a second six-pack lineup. Moran said that the photographs in position numbers 3 and 4 "looked like the guy." Moran did not identify Anaya from that six-pack. Moran testified at Anaya's preliminary hearing but did not identify any of the four 18th Street gang members involved in the January 21 shooting.
At both of Anaya's trials, Moran identified Anaya as one of the four 18th Street gang members. Moran said he was able to identify Anaya at trial because he had "more time to see him" and could "see him better." Moran had no doubt that Anaya was one of the gang members he saw on January 21, 2017.
February 5, 2017 Shootings (Counts 1 and 2)
On February 5, 2017, rival gang member Anthony Vargas approached Anaya, who was in a truck near an alley where Vargas lived. Anaya told Vargas that he was looking for Daniel Sainz, another rival gang member, and that if anyone was with Sainz, "they were going to get it." Vargas noticed Anaya had a 9-millimeter pistol.
Around 10 or 11 a.m., Omar Carrillo, a rival gang member, saw Anaya with two or three other people inside a blue SUV at an alley near Holt and Sherbourne. Carrillo recognized the driver as "Bouncer" from 18th Street. Anaya was in the front passenger seat. A "young kid," who looked about 17 or 18 years old, was in the rear seat behind the driver.
Sometime that afternoon, rival gang member Kevin Baquedano smoked marijuana at fellow gang member Justin Johnson's house. Around 4 or 5 p.m., Baquedano walked to a nearby liquor store with Sainz and one of their friends, Nataly Sernas. Frank "Bobby" Vasquez, one of Johnson's friends, stopped by Johnson's house. Vasquez left and met up with Baquedano, Sernas and Sainz.
According to Vasquez, as the group approached the intersection of Sherbourne and Guthrie, two Hispanic males walked up and started shooting. Vasquez could not identify either shooter. The first shooter ran west on Guthrie, while the second ran east on Guthrie. Vasquez ran to a driveway on Guthrie to avoid getting shot. He heard several gunshots.
As Sainz walked west on Guthrie, he saw Anaya and another man in Sherbourne alley. Anaya wore a white shirt, a black hooded sweatshirt, and black and red shorts. Anaya and the man ran towards Sainz, Baquedano and Sernas, and then turned on a pathway out of Sainz's view. Sainz knew the pathway led to Sherbourne.
Sainz caught up with Sernas and told her to stay back. He told Baquedano, "Man, it's coming." Sainz was armed with a .380 caliber handgun. Sainz saw Anaya on Sherbourne, south of Guthrie. Sainz heard gunshots before he was shot in the leg. Sainz fired his handgun once before it jammed. Sainz fell to the ground and saw Anaya on the sidewalk shooting at him. A bullet scratched Sainz's elbow. Anaya stopped shooting and ran east on Guthrie. Several people approached Sainz, including Carrillo. Sainz told Carrillo that Anaya had shot him.
Sernas and Baquedano heard gunshots while walking near Sherbourne and Guthrie. They tried to dodge the bullets, but Baquedano was hit in the stomach and later died from his wounds. Sernas was not hit. She did not see the shooters. Vasquez ran to Baquedano. Vasquez told Sernas to call 911, and then went to get help.
Police recovered from the crime scene 9-millimeter rounds and casings, four live .380 caliber rounds and fired bullet projectiles. On March 23, 2017, Officer Frank Zuniga arrested Phillip Yang on a Vehicle Code violation and recovered a 9-millimeter semiautomatic handgun in his possession. Three 9-millimeter casings from the February 5, 2017 shootings and six 9-millimeter casings from the January 21, 2017 shootings were fired from the handgun recovered from Yang. A bullet recovered from Baquedano's body was also fired from the same firearm.
Police arrested Anaya, recovered his iPhone, and searched his apartment. The officers recovered a pair of red-and-black shorts which looked like the shorts worn by one of the shooters. A photograph taken of Anaya during an earlier traffic stop also showed him wearing red-and-black shorts.
Anaya's iPhone contained a photo of a hand holding a 9-millimeter handgun and another of a hand holding a revolver. Detective Dave Vinton believed the revolver was used in Basquedano's murder.
DISCUSSION
Anaya Forfeited His Challenge to CALCRIM No. 315 By Failing to Object at Trial
Pursuant to CALCRIM No. 315, the trial court instructed the jury: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony." The court listed 17 "questions" for the jury to consider, including, "How certain was the witness when he or she made an identification?" The court also instructed: "The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." Anaya did not object to the instruction or request any modifications.
In People v. Sanchez (2016) 63 Cal.4th 411 (Sanchez), the defendant claimed the trial court erred when it instructed jurors pursuant to CALJIC No. 2.92 that they should consider "'the extent to which the witness is either certain or uncertain of the identification.'" He contended the language was at odds with "scientific studies that conclude there is, at best, a weak correlation between witness certainty and accuracy." (Sanchez, at p. 461, fn. omitted.) Our Supreme Court determined the defendant's claim had been forfeited by his failure to request modification of the instruction in the trial court. (Id. at pp. 461462; see also People v. Ward (2005) 36 Cal.4th 186, 213 (Ward) [finding no sua sponte duty to modify CALJIC No. 2.92 and no due process violation].)
Anaya similarly forfeited any challenge to the trial court's eyewitness identification instruction by failing to object to the instruction or to request its modification. (See Sanchez, supra, 63 Cal.4th at pp. 461-462; Ward, supra, 36 Cal.4th at p. 213.)
But even if Anaya had not forfeited his challenge to CALCRIM No. 315, his claim still would fail. In Lemcke, supra, 11 Cal.5th at p. 646, our Supreme Court rejected the defendant's due process challenge to CALCRIM No. 315. The Court found "nothing in CALCRIM No. 315's instruction on witness certainty that operates to 'lower the prosecution's burden of proof.'" (Lemke, at p. 657.) Nor did the instruction violate the defendant's due process rights "by denying him 'a "meaningful opportunity to present a complete defense"'" or by rendering the trial fundamentally unfair. (Id. at pp. 660-661; but see id. at pp. 647-648 [referring the issue to the Judicial Council for evaluation of how the instruction may be "modified to avoid juror confusion regarding the correlation between certainty and accuracy"].)
As in Lemcke, we conclude that the instruction did not lower the prosecution's burden of proof or otherwise violate Anaya's due process rights. Anaya has not demonstrated reversible error.
A.B. No. 333 Requires that the True Findings on the Gang Enhancements and Gang-Related Firearm Enhancement be Reversed and Remanded for Possible Retrial
Anaya contends A.B. No. 333 should be applied retroactively to his case and that, under current law, there is insufficient evidence to support imposition of the gang enhancement (§ 186.22, subd. (b)(4), (b)(5).) and gang-related firearm enhancement. (§ 12022.53, subds. (b), (c), (e)(1).) Anaya asks us to vacate the true findings on these enhancements and to remand the matter for retrial.
A.B. No. 333 amended section 186.22 to require proof of additional elements to establish a gang enhancement. (People v. Lopez (2021) 73 Cal.App.5th 327, 343.) The Attorney General concedes, and we agree, the modifications to section 186.22 apply retroactively to Anaya. (In re Estrada (1965) 63 Cal.2d 740; People v. Delgado (2022) 74 Cal.App.5th 1067, 1087 [A.B. No. 333's amendments to section 186.22 apply retroactively to nonfinal judgments].)
The jury made two types of gang findings. First, as to counts 1, 2, and 6, the jury found true that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b)(4), (5).) Second, as to count 1 for murder, the jury found true the gang-principal firearm discharge allegation. (§ 12022.53, subds. (b), (c), (e)(1).)
Consistent with section 186.22, the true findings on the gang enhancement and the gang-related firearm enhancement must be vacated and the matter remanded to allow for retrial of those enhancements. On remand, Anaya may raise arguments concerning any intervening authority.
Given the applicability of A.B. No. 333, we do not reach Anaya's argument that insufficient evidence supports the gang enhancement findings.
Anaya is Entitled to be Resentenced in Accordance with Amended Section 1170, Subdivision (b)
Anaya also asserts the trial court's selection of the upper term on count 1 is barred by S.B. No. 567 (2021-2022 Reg. Sess.), which amended section 1170, subdivision (b), effective January 1, 2022 (Stats. 2021, ch. 731, § 1.3).
The Governor signed S.B. No. 567 on October 8, 2021. The legislation prohibits imposition of the upper term unless there are "circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) But "the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury." (Id., subd. (b)(3).)
The Attorney General concedes that S.B. No. 567's amendments apply here but maintains that vacating Anaya's sentence and remanding the case for resentencing is unnecessary because the trial court properly relied on Anaya's prior criminal history in imposing the upper term.
But as the People recognize, a remand already is required to permit retrial of the gang and gang-related firearm enhancements. Since the trial court did not have the opportunity to consider the amendments to section 1170, remand is appropriate to allow the court to resentence Anaya on count 6. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.)
Finally, Anaya contends that S.B. No. 81 applies to future resentencing proceedings. We agree. In 2021, the Legislature enacted S.B. No. 81, "which amended section 1385 to specify the factors that the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. (Stats. 2021, ch. 721, § 1.) Most notably, under the newly enacted subdivision (c)(2)(C) of section 1385, if '[t]he application of an enhancement could result in a sentence of over 20 years,' the trial court 'shall . . . dismiss' the enhancement. (Stats. 2021, ch. 721, § 1.) These requirements 'shall apply to sentencings occurring after the effective date of'" S.B. No. 81. (People v. Sek (2022) 74 Cal.App.5th 657, 674, fn. omitted.) Because any resentencing in this case will take place after S.B. No. 81 became effective on January 1, 2022, the trial court shall apply the new law in any such proceeding. We express no opinion as to how the court should exercise its discretion on remand.
DISPOSITION
The sentence is vacated. The true findings on the gang enhancement (§ 186.22, subd. (b)(4), (5)) on counts 1, 2, and 6, and gang-related firearm enhancement (§12022.53, subds. (b), (c), &(e)(1)) on count 1, are vacated. This matter is remanded for further proceedings. The People shall have 60 days from the date of the remittitur in which to file an election to retry Anaya on the enhancements. If the People elect not to retry Anaya, the trial court shall modify the judgment by striking the enhancements and shall resentence Anaya consistent with all laws, including section 1170, subdivision (b), as amended by S.B. No. 567, and section 1385, as amended by S.B. No. 81.
Following the conclusion of proceedings on remand, the trial court shall prepare an amended abstract of judgment to reflect the new sentence and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., YEGAN, J.