Opinion
G053328
03-09-2018
THE PEOPLE, Plaintiff and Respondent, v. IVAN CASTANEDA and JESUS VALDIVIA CRUZ, Defendants and Appellants.
Ivan Castaneda, in pro. per.; and Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant Ivan Castaneda. Ron Boyer for Defendant and Appellant Jesus Valdivia Cruz. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CF1009) OPINION Appeals from judgments of the Superior Court of Orange County, Richard M. King, Judge. Remanded in part with directions and in all other respects affirmed. Ivan Castaneda, in pro. per.; and Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant Ivan Castaneda. Ron Boyer for Defendant and Appellant Jesus Valdivia Cruz. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
This matter comes to us following a remand for resentencing based on People v. Chiu (2014) 59 Cal.4th 155 (Chiu). A jury had convicted Ivan Castaneda and Jesus Valdivia Cruz of the first degree murder of Jose Miguel Quiroz (count 1) and the attempted murder of David Quiroz (count 2). The jury also had convicted Castaneda and Cruz each of one count of street terrorism under Penal Code section 186.22, subdivision (a) (count 3). As to counts 1 and 2, and as against both Castaneda and Cruz, the jury found true enhancements alleged under Penal Code section 186.22, subdivision (b)(1) and enhancements alleged under Penal Code section 12022.53, subdivisions (d) and (e)(1).
In People v. Castaneda and Cruz (Nov. 9, 2015, G048862) [nonpub. opn.] we reversed the convictions for first degree murder based on Chiu, supra, 59 Cal.4th at pages 158-159. We concluded the evidence was sufficient to hold Castaneda and Cruz guilty of second degree murder and attempted murder, and gave the People the option on remand of accepting a reduction of the convictions to second degree murder or of electing to retry the greater offenses. (Id. at p. 168.)
Following remand, the People elected to accept a reduction in the degree of offense and not to retry the matter. The convictions on count 1 were reduced to second degree murder. The trial court sentenced Castaneda and Cruz each to a 15-years-to-life term for second degree murder and left the remainder of their prior sentences unchanged, including two consecutive 25-years-to-life sentences on the enhancements alleged and found true. (Execution of sentence on count 3 was stayed under Penal Code section 654.) As a consequence, both Castaneda and Cruz received a total sentence of 72 years to life in prison.
Castaneda and Cruz appealed after resentencing. Cruz argues the evidence was insufficient to support the gang allegations. Consequently, he argues, the evidence was insufficient to support the conviction under count 3, the true findings on the enhancement allegations, and the convictions for second degree murder and attempted murder. He argues his prior appellate counsel was ineffective for not presenting those arguments in the first appeal. We conclude (Discussion, subsection I) those arguments may not be made in this appeal due to the limited scope of remand following the prior appeal.
Castaneda's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), and Castaneda himself filed a supplemental brief. We issued an order striking counsel's Wende/Anders brief and permitting Castaneda to file a new opening brief. We deem Castaneda to have joined in any argument applicable to him that has been raised by Cruz in this appeal.
Cruz has filed a petition for writ of habeas corpus (In re Cruz, G054363) in which he has also raised those issues. We denied Cruz's motion to consolidate the petition for writ of habeas corpus and in the order denying consolidation stated the petition will be considered with this appeal. In light of our decision here, we will issue an order to show cause in that matter.
After Cruz and Castaneda filed their notices of appeal, the California Supreme Court issued its opinion in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Based on Sanchez, Cruz argues the prosecution expert witness related as true case-specific facts made in hearsay statements and related testimonial hearsay in violation of the confrontation clause and Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We conclude (Discussion, subsection II) the prosecution expert related as true general background information about the gang, which is permissible under Sanchez, and any violation of the confrontation clause was harmless beyond a reasonable doubt.
Cruz argues the sentence imposed after remand constitutes cruel and unusual punishment under the United States Constitution and cruel or unusual punishment under the California Constitution. We conclude (Discussion, subsection III) the sentences imposed on Cruz and Castaneda were not unconstitutional.
Finally, we conclude (Discussion, subsection IV) that the amendments to Penal Code section 12022.53 (section 12022.53) that became effective on January 1, 2018 are controlling and apply retroactively to this case. We remand for the sole purpose of permitting the trial court to decide whether to strike or dismiss those enhancements pursuant to section 12022.53, subdivision (h), as amended by Statutes 2017, chapter 682, section 2.
In all other respects, we affirm the judgment.
FACTS
The following facts are taken from our opinion in People v. Castaneda and Cruz, supra, G048862:
We granted Cruz's motion for judicial notice of the appellate record in the prior appeal, People v. Castaneda and Cruz, supra, G048862.
"I.
"Murder at the Taqueria De Anda Restaurant
"At about 2:00 a.m. on July 25, 2010, a gray Lincoln Town Car and a black Chevrolet Suburban arrived at a Taqueria De Anda restaurant in Santa Ana. Inside the vehicles were friends and family members, including Jose [Quiroz] and David [Quiroz], who had come from a wedding they had attended earlier that evening and had decided to stop and get a bite to eat. Once everyone had gotten out of the vehicles, Castaneda and Cruz, who had been seen standing in the parking lot, approached them.
"Evidence was presented at trial to show that none of the wedding guests was affiliated with a gang and nobody had a weapon. Evidence was also presented that several of the wedding guests were affiliated with gangs or tagging crews, or had been involved in criminal activity.
"Castaneda and Cruz, who were drunk, made hand signs toward the wedding guests. Cruz told them this was his taqueria and his barrio. He yelled, 'where you from?' and 'Westside Compadres,' the name of a street gang. Someone from among the wedding guests replied, 'we just want to eat tacos. We don't want any problems.' Castaneda shouted he was 'Creeper' and told the wedding guests they could not eat at the Taqueria De Anda restaurant because it was in his gang's claimed territory. Two women and a man walked over from a nearby minimart and started arguing with men from the wedding party. One of the wedding guests announced they did not want any trouble and would leave.
"The wedding guests walked back to the vehicles. Castaneda and Cruz followed them. Castaneda shouted something in the direction of an alley leading to an apartment complex and appeared as though he was trying to contact someone. An unidentified person made a call on a cell phone. About two to three minutes later, two men, one of whom had a gun tucked under his waistband, appeared from the alley and ran toward the Suburban.
"One witness testified that one of the two women who had come from the minimart made the cell phone call. Another witness, Miguel Angel Quiroz, testified that "[t]he third guy" made the phone call.
"Some of the guests managed to get inside the Suburban. Castaneda opened a door of the Suburban and began to punch David as he sat inside. David struck back and knocked Castaneda to the ground. The Suburban quickly emptied of its occupants, and some of them joined in the fray. Miguel Angel Quiroz and Alejandro Martinez kicked Castaneda when he tried to get up from the ground.
"As he was getting out of the Suburban, Miguel Angel Quiroz saw the two men who were running toward the Suburban from the alley. The man carrying the gun ran up behind Castaneda and from there shot David [Quiroz] in the stomach. The gunman then fired five shots toward Jose [Quiroz], Alejandro Martinez, and two others, who were standing together about seven feet away. Jose [Quiroz] fell to the ground, mortally wounded. The assailants, except for Castaneda, fled. Castaneda, his face bloodied, was left behind lying on the ground.
"Santa Ana Police Officer Armando Chacon heard the gunshots and within minutes arrived at the parking lot of the Taqueria De Anda restaurant. He found Jose [Quiroz] lifeless. While Chacon was checking Jose [Quiroz]'s vital signs, David [Quiroz] approached, identified himself as the victim's cousin, and displayed a wound to his abdomen. Chacon requested additional police assistance and notified police dispatch that Jose [Quiroz] was dead.
"Santa Ana Police Officer Maybelline Solideo followed Chacon in her patrol car to the Taqueria De Anda restaurant's parking lot. On arriving at the scene, she saw Jose [Quiroz] lying next to a black Chevrolet Suburban and David standing next to the Suburban with his shirt lifted to reveal the wound to his abdomen.
"Solideo also saw Castaneda lying on the sidewalk just to the west of the Suburban. She got out of the patrol car and walked toward him. As she approached Castaneda, he slowly sat up, and she noticed he was bleeding profusely from his face. Solideo told Castaneda to stay seated; he disobeyed her, stood up, and fell into the street. Solideo stepped into the street to block oncoming traffic. Castaneda stood up again and walked slowly through the parking lot, disobeying Solideo's command to stop. Solideo followed him. She became concerned when he reached for his front waistband because she thought he might have a weapon. Castaneda started running through the parking lot and turned into an alley. Solideo caught up with him, grabbed his waistband, and brought him to the ground. He grabbed at her legs. As Solideo pulled her Taser out of its holster, Castaneda stood and assumed a fighting stance with hands curled into fists. When Castaneda lunged at Solideo, she 'Tased' him. Castaneda fell, then got back up and ran. Solideo "Tased" him again. He continued to run. Several other police officers joined the pursuit and eventually apprehended Castaneda.
"Another suspect, Marcos Barona, was also taken into custody a short distance from the crime scene. Cruz, who had escaped apprehension, appeared at a police station on July 26, 2010 to talk about the case. Cruz gave a brief statement to police after being read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
"II.
"Barona's Police Interview
"Santa Ana Police Detective Clinton Achziger interviewed Barona starting at about 6:00 a.m. on July 25, 2010. During the interview, Barona said he, Castaneda, and Cruz went to a minimart to buy beer. From the minimart, Barona and Castaneda walked to the Taqueria De Anda restaurant to use the restrooms, which, as it turned out, were not working. When Barona and Castaneda walked back outside, they saw Cruz doing a "hit-up" of a group of people standing next to a black SUV. Castaneda ran over to help Cruz. Barona heard either Castaneda or Cruz shout the gang name, Los Compadres, and someone shout back, "Brown" (possibly referring to a tagging crew).
"Barona, who was charged with first degree murder, testified for the prosecution under a grant of immunity. Barona denied any relationship with a gang despite having a gang tattoo on his neck. He claimed not to remember the events of July 25, 2010 or the police interview and testified he did not even know of a Taqueria De Anda restaurant. His answer to most questions posed to him was 'I don't know' or 'I don't remember.' The trial court found Barona was intentionally evasive and permitted the prosecution to impeach him with Achziger's testimony about Barona's prior inconsistent statements made during the police interview. (See Evid. Code, § 1235.)
"A hit-up occurs when a gang member asks someone, 'where you from,' meaning to identify his or her gang. It is considered a challenge.
"After the hit-up, Barona ran over to Castaneda and Cruz to act as backup, but did not join in the verbal confrontation. Instead, Barona claimed he tried to 'mediate' by telling the wedding guests 'it's cool' and they could eat tacos. Castaneda started a fistfight and Cruz joined in. Just three or four seconds later, Barona heard gunshots. Barona did not know who the shooter was or where he came from.
"Barona admitted being a Los Compadres gang member. He had joined the gang 20 years earlier. His gang moniker was 'Silent.' He said that Castaneda and Cruz were Los Compadres gang members too.
"III.
"Expert Testimony on Criminal Street Gangs
"Achziger testified as an expert on criminal street gangs. His qualifications as a gang expert are not disputed.
"Achziger's opinions, as relevant to this appeal, included the following:
"1. Los Compadres is a criminal street gang in Santa Ana. It is sometimes called 'Los Comps,' 'Westside Santa Ana Los Comps,' or 'W.S.L.C.'
"2. Cruz, Castaneda, and Barona were active members of the Los Compadres gang as of July 25, 2010.
"3. The Taqueria De Anda restaurant at which the shootings occurred is within the claimed territory of the Los Compadres gang.
"4. Gang members share firearms with other gang members. A gang often will have a 'gang gun' that is kept by one gang member. Other gang members can retrieve the gang gun when needed. Gang members let each other know where the gang gun is being kept.
"5. A hit-up occurs when a gang member asks someone, "where you from," meaning to identify his or her gang. It is considered a challenge. Achziger explained that in a hit-up, '[y]ou're challenging that person to see if they're going to represent their gang.'
"6. A person who is the subject of a hit-up, even if not a gang member, could be robbed, beaten, stabbed, or forced out of the area.
"7. Hit-ups often result in a shooting. Most of the murder cases Achziger investigated started with a hit-up.
"8. Gang members are more likely to conduct a hit-up within their gang's claimed territory. Sometimes hit-ups are planned, and sometimes they are 'crimes of opportunity.'
"9. Gang members act as 'backup' for fellow gang members. Achziger explained: '[I]f gang member A picks a fight and starts to lose, his backup is going to jump in and now also participate in the fight.'"
DISCUSSION
I.
Sufficiency of the Evidence and Ineffective Assistance of
Prior Appellate Counsel Issues
Cruz argues the evidence at trial was insufficient to support the criminal street gang allegations, in particular, that the evidence was insufficient to show the primary activities of Los Compadres brought it within the definition of a criminal street gang and that he knew of the criminal activities of Los Compadres. As a consequence, Cruz argues, the conviction under count 3 for street terrorism and the true findings on the enhancements must be reversed. In addition, without proof of the criminal street gang allegation, Cruz asserts the evidence was insufficient under the theory of culpability presented at trial to support the convictions for second degree murder and attempted murder. Cruz argues his prior appellate counsel was ineffective for not presenting those arguments in the prior appeal.
The scope of issues permitted on an appeal following a remand is limited by the scope of the remand: "In an appeal following a limited remand, the scope of the issues before the court is determined by the remand order." (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397 (Murphy); see People v. Senior (1995) 33 Cal.App.4th 531, 533 ["when a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have waived the right to raise the issue in a subsequent appeal"].)
In Murphy, supra, 88 Cal.App.4th at page 392, the Court of Appeal had remanded a matter to the trial court for the sole purpose of deciding whether to exercise its discretion to vacate one or more of the jury's strike findings, but affirmed the judgment in all other respects. (Id. at pp. 393-394.) Following remand, the trial court declined to vacate any strikes and returned the defendant to prison. (Id. at p. 394.) The defendant appealed a second time. (Ibid.) In the second appeal, the defendant contended not only that the trial court had erred by not vacating any prior strikes, but also by using a prior burglary conviction to elevate a petty theft to a felony. (Ibid.) The Court of Appeal concluded that "given our limited remand, the issue [the defendant] now seeks to raise was not before the trial court once the court denied his request to vacate the strike findings." (Id. at pp. 395-396.) Thus, the defendant was "precluded from raising his dual use argument . . . because the time in which to make it has passed." (Id. at p. 396.)
The defendant in People v. Deere (1991) 53 Cal.3d 705, 710-711, had been convicted of first degree murder and sentenced to death. The California Supreme Court reversed the penalty judgment only, affirmed in all other respects, and remanded for a retrial of the penalty phase. (Id. at pp. 711, 713.) The defendant was again sentenced to death but in his direct appeal to the California Supreme Court contended his trial counsel had been deficient at the guilt phase of trial. (Ibid.) The court declined to consider that contention because "[c]ontentions relating to the guilt phase were considered and rejected by this court in defendant's first appeal" and "only errors relating to the penalty phase retrial may be considered in this subsequent appeal." (Id. at p. 713.)
In People v. Smyers (1969) 2 Cal.App.3d 666, 667, the defendant had been convicted of burglary, rape, and robbery and, in a prior appeal, the judgment was reversed "'for the purpose only of rearraigning appellant for judgment under circumstances which will accord to him his constitutional right to counsel at that time.'" After remand, the trial court denied the defendant's motion for a new trial and rearraigned him in accordance with the Court of Appeal's directions. (Ibid.) The defendant appealed again. He raised no questions about the rearraignment, but asserted only errors in the conduct of trial. (Id. at p. 668.) The Court of Appeal concluded the claimed errors in the conduct of trial were outside the scope of the second appeal. The court explained that in the prior appeal the judgment had been impliedly affirmed in all respects except for rearraignment and reversal had been specifically limited. (Ibid.) "Where an appellate court limits its reversal solely for the purpose of rearraigning defendant for judgment and sentence, on a subsequent appeal following the rearraignment for judgment hearing, only errors connected with that hearing may be considered." (Ibid.)
In People v. Castaneda and Cruz, supra, G048862, we remanded the matter solely for the purpose of giving the People the opportunity to exercise the option of accepting a reduction of the convictions or retrying the greater offense. We affirmed in all other respects and concluded the evidence was sufficient to hold Castaneda and Cruz liable for second degree murder and attempted murder. The issues in this appeal are limited by that limited reversal and remand, and "only errors relating to the [proceedings after remand] may be considered in this subsequent appeal." (People v. Deere, supra, 53 Cal.3d at p. 713.) Because the People elected to accept a reduction in degree of murder, the only issues we may consider in this appeal are the validity of that election, any errors in resentencing, including the constitutionality of the sentences given, and the effect of any intervening changes in the law.
Thus, issues regarding the sufficiency of the evidence, and whether appellate counsel was ineffective in the prior appeal, may not be considered in this appeal. The proper way to raise a claim of ineffective assistance of appellate counsel is by petition for writ of habeas corpus, not by appeal. (People v. Lucas (2014) 60 Cal.4th 153, 307, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) In his petition for writ of habeas corpus, Cruz has raised issues of ineffective assistance of prior appellate counsel. An order to show cause shall issue in In re Cruz, G054363.
II.
Sanchez and Confrontation Clause Issues
Penal Code Section 186.22, subdivision (f) defines the term criminal street gang to mean "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in a pattern of criminal gang activity." (Italics added.)
Cruz argues the trial court violated Sanchez by allowing the prosecution gang expert witness to testify on the subject of the primary activities of the Los Compadres criminal street gang. Cruz argues the expert's testimony on that subject was inadmissible under Sanchez because that testimony was case specific and, by relating testimonial hearsay, violated the confrontation clause of the United States Constitution. The error was prejudicial, according to Cruz, under both People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18 (Chapman). A. Retroactivity of Sanchez, Scope of Remand, and Forfeiture
First we address retroactivity of Sanchez, the scope of issues to be decided on remand, and forfeiture of hearsay and confrontation clause claims. Issues arising out of Sanchez could not have been addressed in the prior appeal because Sanchez was issued in June 2016, after the trial court had resentenced Castaneda and Cruz, and after they had filed their notices of appeal. We will assume, for sake of analysis, that Sanchez and the confrontation clause claim are fully retroactive to the trial in this case (see People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507; see also People v. Guerra (1984) 37 Cal.3d 385, 399 [explaining retroactivity analysis]) and constituted an intervening change in law such that issues arising out of Sanchez may be raised notwithstanding the narrow scope of remand (see People v. Iraheta (2017) 14 Cal.App.5th 1228, 1237, 1243-1244; see also People v. Livingston (2012) 53 Cal.4th 1145, 1158 [confrontation clause claims based on Crawford applicable to cases still on appeal when opinion was issued]).
We conclude that neither Castaneda nor Cruz forfeited his hearsay and confrontation clause claims by not making appropriate objections at trial. Hearsay and confrontation clause objections likely would have been futile because the trial court would have been bound as a matter of stare decisis to overrule them based on pre-Sanchez authority. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4; People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7 (Meraz), review granted Mar. 22, 2017, S239442, opn. ordered to remain precedential; see People v. Gardeley (1996) 14 Cal.4th 605, disapproved in People v. Sanchez, supra, 63 Cal.4th 665; People v. Hill (2011) 191 Cal.App.4th 1104, 1128-1131.) B. The Confrontation Clause and Sanchez
The confrontation clause of the Sixth Amendment grants a criminal defendant the right to confront adverse witnesses. (U.S. Const., 6th Amend.) Admission of testimonial hearsay is therefore barred by the confrontation clause unless the speaker is unavailable to testify and the accused previously had the opportunity to cross-examine the speaker, or the accused has forfeited the right to do so by his or her own wrongdoing. (Crawford, supra, 541 U.S. at p. 68.)
In Sanchez, the California Supreme Court concluded the holding in Crawford applies to testimonial hearsay information concerning a defendant's gang affiliation and activity. (Sanchez, supra, 63 Cal.4th at pp. 679-685.) In Sanchez, the court held (1) an expert witness may not relate as true case-specific facts asserted in hearsay statements unless they are independently proven and (2) if a prosecution expert witness seeks to relate testimonial hearsay, there is a violation of the confrontation clause of the Sixth Amendment to the United States Constitution unless there is a showing of unavailability, the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing. (Id. at p. 686.) The Sanchez court noted that a gang expert's background testimony about general gang behavior or descriptions of a gang's behavior in a community is relevant and admissible when based on well-recognized sources in the expert's area of expertise. (Id. at p. 698.)
The California Supreme Court confirmed that an expert may rely on hearsay in forming an opinion but concluded an expert may not relate case-specific facts asserted in hearsay statements "unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.) An expert may "testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean." (Id. at p. 676.)
The court in Sanchez explained that case-specific facts are those of which the expert has no independent knowledge and relate "to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) The expert may render an opinion based on case-specific facts but may not relate such facts unless they are within the expert's personal knowledge. (Ibid.) The California Supreme Court gave several examples to clarify the difference between background and case-specific facts, one of which was: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Id. at p. 677.)
The same happened at trial in this case. Authenticated photographs showed that Cruz had the letters "W.S." and "S.A." tattooed on his arms and neckline and the word "Comps" tattooed on his lower back, and Castaneda had the word "Comps" tattooed on the back of his head. Achziger testified that the Los Compadres gang goes by the name "Comps" and Westside Santa Ana, abbreviated as "W.S.S.A."
The Sanchez court considered Crawford and its effect on state hearsay rules and announced a two-step test to determine whether an out-of-court statement is admissible: "In light of our hearsay rules and Crawford, a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
The Sanchez court considered the permissible scope of expert testimony and the Crawford holding and adopted this rule: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) C. Expert Witness Testimony at Trial Regarding Criminal Street Gangs
At trial, Santa Ana Police Detective Achziger testified as an expert witness on the subject of criminal street gangs. His qualifications and credentials as an expert were never questioned. In the course of his experience, he had contacted "thousands of gang members" and had investigated "over a thousand cases."
Achziger testified about the nature, characteristics, and culture of traditional Hispanic street gangs in Southern California. He testified there were commonalities among the gangs in Orange County. Some of the characteristics of a traditional Hispanic street gang were (1) a claimed territory; (2) a gang name; (3) alignment with a prison gang system; and (4) use of tagging and graffiti.
Achziger testified that respect is of utmost importance to a gang and that gangs instill respect through violence: "The more violence and more criminal activity, the more violent that criminal activity is, the more fear and respect you get." Guns are an important part of gang culture because they can be used to achieve the goal of committing acts of violence and can enhance the power of individual gang members. To that end, gang members share firearms with other members of their gang. A gang often will have a "gang gun" that is kept by one gang member. Other gang members can retrieve the gang gun when needed. Gang members let each other know where the gang gun is being kept.
A common characteristic of traditional Hispanic street gangs is the hit-up. Achziger testified that a hit-up occurs when a gang member asks someone, "where you from," meaning to identify his or her gang. It is considered a challenge. Achziger explained that in a hit-up, "[y]ou're challenging that person to see if they're going to represent their gang." A person who is the subject of a hit-up, even if not a gang member, could be robbed, beaten, stabbed, or forced out the area. Hit-ups often result in a shooting. Most of the murder cases Achziger had investigated started with a hit-up. Gang members are more likely to conduct a hit-up within their gang's claimed territory. Sometimes hit-ups are planned, and sometimes they are "crimes of opportunity."
Achziger testified that Los Compadres is a traditional Hispanic criminal street gang in Santa Ana and is sometimes called "Los Comps," "Westside Santa Ana Los Comps," or "W.S.L.C." He explained that Los Compadres had been around since the 1980's and its claimed territory is in the west side of the City of Santa Ana.
Castaneda and Cruz were members of Los Compadres. That fact, which is not in dispute, was proven by, among other things, photographs of Castaneda and Cruz showing they had gang tattoos and a STEP notice that Achziger had issued to Castaneda in February 2010.
Achziger testified the primary activities of Los Compadres included felonious firearms possession, assault with a deadly weapon, and murder. Achziger bolstered his opinion by relating these eight criminal offenses:
1. On April 23, 2010, a Los Compadres gang member named Ricardo Guillen was arrested in gang territory armed with a rifle.
2. On December 18, 2009, a Los Compadres gang member named Eduardo Guzman was found in possession of a handgun.
3. On February 10, 2009, Castaneda and two other Los Compadres gang members were the subjects of a vehicle stop during which Castaneda was observed holding a firearm.
4. On February 7, 2010, a Los Compadres gang member named Clarence Reil conducted a hit-up and placed a knife to the victim's throat.
5. On June 28, 2009, Richard Reil was arrested for murdering a man in his driveway.
6. On June 13, 2008, Mario Flores pointed a chrome handgun at a victim.
7. On April 20, 2010, Bruno Ocampo, an active participant of the Los Compadres gang, was convicted of unlawful possession of a firearm, possession of methamphetamine, and actively participating in the Los Compadres criminal street gang.
8. On February 20, 2009, Jose Luis Ocampo, an active participant of the Los Compadres gang, was convicted of carjacking, brandishing a loaded firearm, actively participating in the Los Compadres criminal street gang and committing his crimes in association with the gang. Achziger was lead investigator on this case.
In support of the first six crimes, Achziger cited to police reports. In support of crimes seven and eight, he cited to conviction records. D. Testimony About the Gang's Primary Activities Was Not Case Specific
The challenged expert testimony in Sanchez concerned the defendant's membership in a criminal street gang, which the court deemed to be case specific. (Sanchez, supra, 63 Cal.4th at p. 673.) The court did not address whether information about a gang's primary activities was case specific or background.
In Meraz, supra, 6 Cal.App.5th at page 1175, the Court of Appeal concluded that expert testimony regarding a criminal street gang's "operations, primary activities, and pattern of criminal activities" is background testimony when unrelated to the defendant or the specific offense. The gang expert in Meraz had testified to general background information about the gang, its rivalry with another gang, its primary activities, and its pattern of criminal activity. (Id. at p. 1173.) The court in Meraz held that testimony was admissible under Sanchez as background information: "Thus, under state law after Sanchez, [the gang expert] was permitted to testify to non-case-specific general background information about [the gang], its rivalry with [another gang], its primary activities, and its pattern of criminal activity, even if it was based on hearsay sources like gang members and gang officers." (Ibid.; see People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411 [quoting Meraz with approval].)
We agree with Meraz. In Sanchez the court described impermissible case-specific facts as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676, italics added.) Achziger's testimony about the primary activities of Los Compadres did not relate to the jury any particular events involved in the case being tried and did not touch upon the events at the taco restaurant on July 25, 2010 leading to the murder of Jose Quiroz and the attempted murder of David Quiroz. Achziger testified that in his opinion the primary activities of Los Compadres included felonious firearms possession, assault with a deadly weapon, and murder. His opinion was the product of his extensive knowledge of, and experience with, the Los Compadres gang and was bolstered by evidence of six police reports and two certified conviction records. None of the police reports and conviction records conveyed case-specific information, and, therefore, "we tolerate its admission due to the latitude we accord experts, as a matter of practicality, in explaining the basis for their opinions." (People v. Stamps (2016) 3 Cal.App.5th 988, 996, citing Sanchez, supra, 63 Cal.4th at p. 676.)
Cruz criticizes Meraz as misinterpreting and expanding the following passage from Sanchez, supra, 63 Cal.4th at page 698, in which the court addressed harmless error: "Defendant raises no confrontation claim against [the gang expert]'s background testimony about general gang behavior or descriptions of the Delhi gang's conduct and its territory. This testimony was based on well-recognized sources in [the expert]'s area of expertise. It was relevant and admissible evidence as to the Delhi gang's history and general operations." Cruz asserts the Meraz court erred by relying on that passage to state, "[t]he [Sanchez] court made clear that an expert may still rely on general 'background testimony about general gang behavior or descriptions of the . . . gang's conduct and its territory,' which is relevant to the 'gang's history and general operations.'" (Meraz, supra, 6 Cal.App.5th at p. 1175, quoting Sanchez, supra, 63 Cal.4th at p. 698.) We believe Meraz correctly interpreted Sanchez.
Cruz also argues "it is incorrect to say that the 'primary activities, and pattern of criminal activities' of the gang specified in the charging document are 'unrelated to defendants or the current shooting.'" Sanchez makes quite clear, however, that case-specific facts are "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676, italics added.) E. Any Error in Relaying Hearsay or Testimonial Hearsay Was Harmless.
Even though Achziger's opinion of the primary activities of Los Compadres was not case specific and related no case-specific facts, we nonetheless consider whether Achziger's testimony related testimonial hearsay in violation of Crawford. In describing the gang's primary activities, Achziger identified eight criminal offenses. Offenses one through six were substantiated with police reports, while offenses seven and eight were substantiated with certified conviction records.
Police reports generally are testimonial unless made in an ongoing emergency or for a primary purpose other than preserving facts for use at trial. (Sanchez, supra, 63 Cal.4th at p. 694.) The Attorney General neither argues nor cites to evidence that the police reports substantiating offenses one through six are not testimonial.
Certified conviction records are not testimonial. (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225.) Exhibits 45 and 46 are certified conviction records, which are admissible under Evidence Code section 1280 "to prove the commission, attempted commission, or solicitation of a criminal offense." (Evid. Code, § 452.5, subd. (b)(1).) Evidence Code section 452.5, subdivision (b) creates an exception to the hearsay rule and allows admission of qualifying court records to prove not only the fact of conviction but that the offense reflected in the record did in fact occur. (People v. Duran (2002) 97 Cal.App.4th 1448, 1460.)
Because the police reports substantiating offenses one through six were testimonial, the trial court erred under Sanchez and the Confrontation Clause by allowing Achziger to testify about them. Confrontation clause violations are subject to the harmless error standard of Chapman, supra, 386 U.S. 18. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 395.) Under the Chapman standard, error is harmless when it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24) "'"To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.'" [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is "'whether the . . . verdict actually rendered in this trial was surely unattributable to the error."'" (People v. Pearson (2013) 56 Cal.4th 393, 463.)
We conclude any error in allowing Achziger to testify about police reports substantiating offenses one through six was harmless beyond a reasonable doubt. The conviction records substantiating offenses seven and eight were particularly powerful evidence of Los Compadres's criminal purpose. Exhibit 45 established that on April 20, 2010, Bruno Ocampo, an active participant of the Los Compadres gang, was convicted of unlawful possession of a firearm, possession of methamphetamine, and active participation in the Los Compadres criminal street gang. Exhibit 46 established that on February 20, 2009, Jose Luis Ocampo, an active participant of Los Compadres, was convicted of carjacking, brandishing a loaded firearm, actively participating in the Los Compadres criminal street gang and committing his crimes in association with the gang.
We say "any error" because under the law in effect at the time of trial, expert testimony about the police reports was admissible and, therefore, the trial court did not err.
As exhibits 45 and 46 are certified court records of conviction, they are excepted from the hearsay rule and were admissible to prove the offenses reflected in those records were committed. (Evid. Code, § 452.5, subd. (b).) Thus, the conviction records proved that Bruno Ocampo and Jose Ocampo had committed the offense of active participation in a criminal street gang and that gang was Los Compadres. The convictions reflected in the convictions records (2009 and 2010) were close in time to the date of the charged offenses (July 2010).
In assessing prejudice, we must consider everything the jury considered on the issue in question. (People v. Pearson, supra, 56 Cal.4th at p. 463.) Achziger, whose credentials were unquestioned, testified in detail about the characteristics and culture of traditional Hispanic gangs in Southern California, and about the history and nature of Los Compadres. Achziger's testimony made resoundingly clear that respect is of the utmost importance to traditional Hispanic gangs, that gangs instill respect through violence, and that gangs use guns to commit acts of violence. Achziger testified that Los Compadres is a traditional Hispanic gang in Southern California; that is, respect is of the utmost importance to Los Compadres, it instills respect through violence, and it uses guns to commit acts of violence. This paradigm is precisely what happened here.
The sum total of the evidence, without the evidence of the police reports and testimony about them, was sufficient to support a finding that Los Compadres had as one of its primary activities the commission of one or more of the criminal acts listed in Penal Code section 186.22, subdivision (e). We review the record to determine whether there was substantial evidence upon which the jury could have concluded that "the commission of one or more of the statutorily enumerated crimes [was] one of [Los Compadres]'s 'chief' or 'principal' occupations." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) "Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities." (Ibid.)
Within a 17-month period, from February 2009 through July 2010, members of Los Compadres committed the crimes of unlawful possession of a firearm (Pen. Code, § 186.22, subd. (e)(31)), possession of methamphetamine, carjacking (id., § 186.22, subd. (e)(21)), brandishing a firearm, the target offenses in this case—assault, battery, and disturbing the peace, and second degree murder and attempted murder (id., § 186.22, subd. (e)(3)) for which Cruz and Castaneda were convicted. This evidence was sufficient to support a primary activities finding. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1212, 1225 [commission of three violent assaults by members of defendant's gang within a 12-week period, including the charged offense, constituted sufficient evidence of the gang's primary activities].)
In addition, Achziger testified that in his opinion the primary activities of Los Compadres included felonious firearms possession, assault with a deadly weapon, and murder. The commission of those crimes may serve as a primary activity of a criminal street gang. (Pen. Code, § 186.22, subds. (e)(1), (3) & (31), (f).) Although, as examples of this, he related the police reports, his opinion was also the product of his extensive knowledge of and experience with the Los Compadres gang. As part of his work with the gang suppression unit, Achziger had contact with Los Compadres gang members, had investigated cases involving gang members, and, as a patrol officer had responded to calls for service regarding gang members.
The California Supreme Court addressed a similar situation in People v. Nguyen (2015) 61 Cal.4th 1015, 1068, in which the court stated: "In the present case, Westminster Police Detective Mark Nye testified as an expert on gangs. He said that some of the primary activities of the Nip Family gang were 'homicides, attempted homicides, assaults, assault[s] with deadly weapons, home invasion robberies, burglaries, auto theft, narcotic sales.' Nearly all of these are crimes enumerated in the statute. (§ 186.22, subd. (e).) This evidence was sufficient." Achziger's testimony likewise was sufficient.
People v. Nguyen was not disapproved in Sanchez. (See Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.)
In light of the evidence, including, in particular, Achziger's opinion testimony and evidence of the certified correction records, we conclude the verdict was "surely unattributable" to any error in receiving evidence of the police reports. (People v. Pearson, supra, 56 Cal.4th at p. 463.)
Cruz argues prejudice is shown by the prosecutor's closing argument regarding the primary activities of Los Compadres. The prosecutor's argument on that point was brief and did not refer specifically to any of the police reports testified to by Achziger. Cruz also argues that prejudice is shown by the jury's question regarding the wording of the gang allegation on the verdict form, the jury's two requests for a readback of Achziger's testimony about "Los Comps crimes," and the length of deliberations.
The jury's question about the verdict form was not directed to the primary activities of Los Compadres. As for a readback of Achziger's testimony, the jury first requested "[t]ranscript from Detective Achziger's testimony answering questions from the People." Later, the jury requested "[t]estimony from Det. Achziger concerning Los Comps crimes." The court responded: "You are directed to People's Exhibits #45 and #46, also, the court reporter will provide read back testimony of Detective Achziger regarding the primary activity of and any other crimes involving Los Compadres." The court minutes reflect the jury asked the court reporter to end the readback before it was completed. The jury's request for a readback of Achziger's testimony regarding the primary activities of Los Compadres does reflect the jury's attention to that issue. But we decline to read anything more into the request. The court's response directed the jury's attention first to the conviction records, which were not testimonial, and the court minutes do not indicate at what place in Achziger's testimony the jury asked the readback to end.
The jury asked: "We are working through the legal language to understand the questions. Does the 1st paragraph in question ask is this gang affiliated and the second paragraph address murder?"
The length of deliberations is a factor in assessing the prejudicial effect of erroneous evidentiary rulings. (See People v. Woodard (1979) 23 Cal.3d 329, 341.) But it is not dispositive, and the length of deliberations in this difficult and complicated case (about seven hours over three days) does not alter our conclusion that the evidence of the police reports, in relation to everything else the jury considered, did not beyond a reasonable doubt contribute to the verdict.
Because the admission of the police reports was harmless under the federal standard of Chapman, it was also harmless under state standard of People v. Watson, supra, 46 Cal.2d 818.
III.
Constitutional Challenges to Punishments Imposed
After remand, the trial court resentenced Cruz to a total term of 72 years to life in prison. Castaneda received the same sentence. Cruz argues his sentence amounts to life without possibility of parole and therefore violates the state constitution's prohibition on cruel or unusual punishment (Cal. Const., art. I, § 17) and the federal constitution's prohibition on cruel and unusual punishment (U.S. Const., 8th Amend.). The gist of Cruz's argument is that his criminal liability was "linked to a criminal intent no greater than that required for simple battery, simple assault, or disturbing the peace," which were the target offenses for the convictions based on the natural and probable consequences basis of criminal liability.
The United States and the California Constitutions prohibit cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) A sentence may be unconstitutional if it is grossly disproportionate to the crime committed. (Graham v. Florida (2010) 560 U.S. 48, 59-60; People v. Dillon (1983) 34 Cal.3d 441, 478.) Whether a sentence constitutes cruel or unusual punishment is a question of law that we review de novo, viewing the underlying facts in the light most favorable to the judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A defendant must overcome a "considerable burden" when challenging a penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
The Eighth Amendment to the United States Constitution "prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271.) In determining whether a particular sentence is grossly disproportionate, "we look to the gravity of the offense and the harshness of the penalty" and we may consider an intrajurisdictional and interjurisdictional comparison of punishments. (Solem v. Helm (1983) 463 U.S. 277, 290-292.) Although Cruz cites the Eighth Amendment to the United States Constitution, he does not develop his federal cruel and unusual punishment claim. The claim would not succeed. (See Ewing v. California (2003) 538 U.S. 11, 18, 30-31 [25-years-to-life sentence for stealing three golf clubs not cruel and unusual]; Lockyer v. Andrade (2003) 538 U.S. 63, 76 [25-years-to-life sentence for stealing videotapes worth about $150 not cruel and unusual]; Harmelin v. Michigan (1991) 501 U.S. 957 [life sentence without possibility of parole for possession of 672 grams of cocaine not cruel and unusual].)
A sentence violates California's prohibition on cruel or unusual punishment if the punishment is so disproportionate to the crime for which it was imposed that it "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) We apply a three-part test to determine whether a particular sentence is disproportionate to the offense for which it is imposed. First, we examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Id. at p. 425.) Second, we compare the punishment imposed with punishments prescribed by California law for more serious offenses. (Id. at pp. 426-427.) Third, we compare the punishment imposed with punishments prescribed by other jurisdictions for the same offense. (Id. at pp. 427-429.) "Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
As to the nature of the offense and/or the offender part of the Lynch test, Cruz and Castaneda were convicted of second degree murder and attempted murder, with enhancements for vicarious use of a firearm. There can be no dispute these are very serious crimes. Cruz and Castaneda were hardened criminal street gang members and committed those offenses to promote their gang. The punishments meted out do not shock the conscience.
Cruz focuses on the target offenses of simple assault, simple battery, and disturbing the peace to argue his mental state was no greater than that required for a misdemeanor. He argues that his "guilt of one of these misdemeanor offenses was elevated to the crimes of murder and attempted murder not by any act that differentiated his offense from any other misdemeanor commission of these offenses." This argument misapprehends that nature and purpose of the natural and probable consequences doctrine.
"The natural and probable consequences doctrine was recognized at common law and is firmly entrenched in California law as a theory of criminal liability." (Chiu, supra, 59 Cal.4th at p. 163.) The doctrine is based on the principle that liability should extend to the actual rather than the planned or intended crime because aiders and abettors should be responsible for criminal harms they "'naturally, probably, and foreseeably put in motion.'" (Id. at p. 164.) "In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for punishing such aiders and abettors—to deter them from aiding or encouraging the commission of offenses—is served by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder." (Id. at p. 165.)
Cruz's culpability for second degree murder and attempted murder therefore is not based solely on the mens rea necessary for misdemeanor assault, battery, and disturbing the peace. Cruz's culpability for second degree murder and attempted murder is based on his role as an aider and abettor. His culpability arises because a reasonable person in Cruz's position at the time of the target offenses were committed would have or should have known that murder and attempted murder were reasonably foreseeable consequences of aiding and abetting the commission of the target offenses of assault, battery, and disturbing the peace. (Chiu, supra, 59 Cal.4th at p. 166.)
The evidence in this case showed that Cruz and Castaneda committed or participated in a gang hit-up, that a hit-up can lead to violence and often murder, and that, as gang members, they knew that to be the case. Cruz himself conducted the hit-up and provoked the fight with innocent wedding guests. Castaneda summoned the accomplice from the alley and punched David Quiroz as he sat in the Suburban. After Jose Quiroz was mortally wounded and David Quiroz had been shot in the abdomen, Cruz fled. Castaneda disobeyed officer Solideo's order to stop, ran away, and had to be tased and pursued by several officers to be apprehended. The sentences imposed for second degree murder and attempted murder were not disproportionate based on the nature of the offense and/or the offender.
Cruz also argues the two consecutive 25-year enhancements imposed under section 12022.53, subdivisions (d) and (e)(1) were disproportionate because he was not the shooter and the enhancement was not based on an intent to kill. As explained in the next subsection, we are striking the sentences imposed on the section 12022.53 enhancements in order to give the trial court the opportunity to exercise its discretion under newly-enacted section 12022.53, subdivision (h) to decide whether to strike or dismiss those enhancements.
We note that a 25-year enhancement under section 12022.53, subdivisions (d) and (e)(1) for vicarious use of a firearm by an aider and abettor in the commission of a crime that violated Penal Code section 186.22, subdivision (b) has been held not to constitute cruel or unusual punishment under the California Constitution. (People v. Gonzalez (2001) 87 Cal.App.4th 1, 16-18 (Gonzalez); People v. Martinez, supra, 76 Cal.App.4th at p. 498.) In Gonzalez, supra, 87 Cal.App.4th at page 18, the Court of Appeal explained: "'The Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, "substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime." The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives.'" The court added: "The Legislature has chosen to severely punish aiders and abettors to crimes by a principal armed with a gun committed in furtherance of the purposes of a criminal street gang. It has done so in recognition of the serious threats posed to the citizens of California by gang members using firearms." (Id. at p. 19.) We agree with Gonzalez. (See People v. Em (2009) 171 Cal.App.4th 964, 974-975.) --------
The second part of the Lynch test is a comparison of the punishment imposed with punishments prescribed by California law for more serious offenses. (Lynch, supra, 8 Cal.3d at pp. 426-427.) Cruz and Castaneda were sentenced to indeterminate terms of 15 years to life for second degree murder. First degree murder, a more serious offense, is punishable by death, life in prison without the possibility of parole, or 25 years to life in prison. (Pen. Code, § 190, subd. (a).) Cruz and Castaneda were sentenced to the middle term of seven years for attempted murder. (Pen. Code, §§ 190, 664, subd. (a).) The sentences imposed were not disproportionate to those prescribed for more serious offenses.
Cruz does not address third part of the Lynch test—a comparison of the punishment imposed with punishments prescribed by other jurisdictions for the same offense. (Lynch, supra, 8 Cal.3d at pp. 427-429.) Cruz has cited nothing to suggest the punishments imposed were harsher than those prescribed by other jurisdictions for the same offense, although it would not be conclusive on the matter if he had done so. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433 ["'That California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual.'"].)
This is not one of the rarest of cases in which we could declare a sentence prescribed by the Legislature to be unconstitutionally harsh. The sentences imposed on Cruz and Castaneda do not "shock[] the conscience and offend[] fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.)
IV.
Section 12022.53 Enhancements
Cruz and Castaneda each were sentenced to a term of 25-years-to-life on the enchancement allegations under section 12022.53, subdivisions (d) and (e)(1). When they were sentenced, the trial court had no discretion to strike the enhancements. Former section 12022.53, subdivision (h) provided that "[n]othwithstanding any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of the statute."
In 2017, the Governor signed legislation amending subdivision (h) of section 12022.53 to give the trial court discretion to strike or dismiss the enchancement. (Stats. 2017, ch. 682, § 2.) Effective January 1, 2018, subdivision (h) of section 12022.53 (Amended Section 12022.53(h)) reads: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
We vacated submission to allow the parties to file supplemental briefs addressing whether Amended Section 12022.53(h) applies to Cruz and Castaneda. The Attorney General concedes it does as of January 1, 2018. We agree.
Unless there is evidence to the contrary, courts presume the Legislature intends for a statutory amendment reducing criminal punishment to apply retroactively in cases that are not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) This presumption applies both to amendments reducing a criminal penalty and amendments giving the trial court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
Amended Section 12022.53(h) gives the trial court discretion at sentencing to strike or dismiss a firearm enhancement, which would result in a defendant having a lesser sentence. There is nothing in the language of Amended Section 12022.53(h), or in the broader language of the Senate Bill, indicating the Legislature intended the subdivision to be only prospective. (Sen. Bill. No. 620 (2017-2018 Reg. Sess.).) Accordingly, we conclude Amended Section 12022.53(h) applies to Cruz and Castaneda because their sentences were not final at the time Amended Section 12022.53(h) became effective and Amended Section 12022.53(h) could result in lower sentences for them. (People v. Francis, supra, 71 Cal.2d at pp. 75-76; see People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091 [Amended Section 12022.53(h) applies retroactively to "every case to which it constitutionally could apply"].)
We remand to give the trial the opportunity to exercise its discretion under Amended Section 12022.53(h).
DISPOSITION
As to both Cruz and Castaneda, the matter is remanded with directions to the trial court to exercise its discretion under Amended Section 12022.53(h). If the trial court elects to strike or dismiss the enhancement as to either Cruz or Castaneda, then the trial court is directed to resentence either or both of them. In all other respects, the judgments are affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.