Opinion
F073584
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS CASTREJON, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR046034A)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Nicholas Castrejon of 18 counts stemming from a four-day crime spree: an attempted murder (Pen. Code, §§ 664/187, subd. (a); count 6); eight counts of attempted robbery (§§ 664/211; counts 1, 4, 5, 11, 12, 13, 16 & 17); three counts of carjacking (§ 215, subd. (a); counts 2, 7 & 14); five counts of robbery (§ 211; counts 3, 8, 9, 10 & 15); and an attempted carjacking (§§ 664/215, subd. (a); count 18). Both firearm (§ 12022.53, subd. (b)) and gang participation (§ 186.22, subd. (b)) enhancements were found true in each of these 18 convictions. The jury also convicted him of assault with a deadly weapon (§ 245, subd. (a)(1); count 21), and found true a gang enhancement, from an incident that occurred while appellant was in jail pending this trial. Finally, he was convicted of participating in a criminal street gang during both the crime spree and the jail assault (§ 186.22, subd. (a); counts 19 & 22). Appellant received an aggregate determinate prison term of 81 years two months, and an aggregate indeterminate prison term of 45 years.
All future statutory references are to the Penal Code unless otherwise noted.
On appeal, appellant claims the evidence is insufficient to corroborate some of the accomplice testimony used against him at trial. He also argues insufficient evidence supports the gang enhancement found true during the jail assault (count 21). He further contends the trial court abused its discretion in denying a motion for new trial based on newly discovered evidence. In the alternative, he asserts the prosecution committed error pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady) in failing to disclose material evidence. We reject a majority of these contentions. We agree, however, that counts 12 and 13 must be reversed because the evidence is insufficient to corroborate the accomplice testimony for those charges.
Further, via supplemental briefing, the parties agree, as do we, that a limited remand is necessary so appellant may have an opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing. (See § 3051, subds. (a)(1), (b)(1); People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) We remand this matter so the trial court may determine whether appellant was afforded an adequate opportunity to make such a record and, if not, to allow him and the People an adequate opportunity to make a record consistent with Franklin, supra, 63 Cal.4th at p. 284.
Finally, via additional supplemental briefing, the parties agree, as do we, that a recent amendment to section 12022.53 applies to this matter, which gives the trial court discretion to strike or dismiss the imposed firearm enhancements. (§ 12022.53, subd. (h).) Because we are already remanding this matter, and in the interests of justice, we also remand this issue to the trial court so it may exercise its new sentencing discretion. (§ 12022.53, subd. (h).) We reverse counts 12 and 13 but otherwise affirm the judgment.
BACKGROUND
I. The Relevant Facts From The Prosecution's Case-In-Chief.
The prosecution charged six males with crimes associated with the four-day crime spree: (1) appellant; (2) Fernando Magana; (3) Ricardo Cendejas; (4) William Fraire; (5) Elmer Gutierrez and (6) Angel Barrios (collectively the codefendants). At trial, Magana, Cendejas and Gutierrez all testified against appellant pursuant to plea agreements they individually reached with the prosecution. We first recite the general facts surrounding the crime spree and then we summarize the accomplice testimony.
Prior to trial, Barrios entered a plea to carjacking, second degree robbery, and possession of stolen property, with a firearm enhancement.
A. The crime spree.
The prosecution established that a string of robberies, attempted robberies, carjackings and attempted carjackings occurred over a four-day period from January 21 through January 24, 2013 in and around Madera, California. The various victims generally described at least two males involved in these crimes, and sometimes more, but none of the victims could identify the suspects. In each instance, a suspect displayed a shotgun.
We take judicial notice that this four-day crime spree started on a Monday and ended on a Thursday. (Evid. Code, § 452, subd. (h).)
1. The crimes on January 21, 2013 (counts 1-3).
The crimes charged in counts 1 through 3 occurred on January 21, 2013. For count 1, a male carrying "a big rifle" tried to enter a locked convenience store in Madera at around 4:00 a.m. The door was locked for security reasons and a clerk was inside. The male left in a tan colored Buick driven by a second suspect.
About an hour later, the crimes charged in counts 2 and 3 occurred when two suspects stole a Durango truck from a victim near his home in Madera. The victim had been inside the Durango warming it up before work. One male held a shotgun, and wore a "winter camouflage" ski mask and a black "puffy" hooded jacket. He was about five feet nine inches tall, looked in his early 20's, had a medium build, and appeared Hispanic. The second suspect was skinnier than the first and a little taller, about five feet 11 inches; he wore a black ski mask. The suspects also stole the victim's wallet, which contained credit cards, identification and cash. A tan Buick was involved in this carjacking and robbery.
2. The crimes on January 22, 2013 (counts 4-9).
The crimes charged in counts 4 through 9 occurred on January 22, 2013. At about 8:30 p.m., the charged attempted robberies (counts 4 and 5) and attempted murder (count 6) occurred when a male suspect entered a market in Madera while two owners were present. The suspect was armed with a shotgun. One owner retrieved a revolver, firing it once at the suspect, but purposefully missing. The suspect fired birdshot pellets at that owner, narrowly missing him. The suspect fled to a waiting SUV, which drove away. Law enforcement recovered some of the birdshot pellets.
About 30 minutes later, two male suspects stole a Honda (count 7) and purses from two female victims (counts 8 and 9) who had been inside the Honda parked on a residential driveway in Madera. The first suspect wore a black hoodie and had a red bandana covering the bottom half of his face. He carried a "long" gun. He was approximately 20 years old, light-skinned (possibly Hispanic or Caucasian), stood about five feet eight inches to five feet 10 inches tall, and weighed about 150 to 170 pounds.
When speaking with law enforcement, this victim described the gun as a shotgun.
3. The crimes on January 23, 2013 (counts 10-11).
A robbery (count 10) and attempted robbery (count 11) occurred on or about January 23, 2013, at about 11:30 p.m. Two armed suspects stole a purse after accosting two females who were getting their bags and purses out of their car. The victims were parked near a residence in Madera. Both suspects were dressed all in black. The first suspect held a big gun, like a rifle. This suspect wore a black hoodie. The other suspect held a handgun.
When speaking to responding deputies, this victim described the gun as a shotgun.
4. The crimes on January 24, 2013 (counts 12-18).
Either late in the evening on January 23, 2013, or very early in the morning on January 24, 2013, the attempted robberies charged in counts 12 and 13 occurred when two victims were outside their residence in Madera. The victims had just returned home. A small four-door vehicle pulled up and a "tall slender" Hispanic male jumped out of that car from the driver's side back door. The suspect wore a hoodie and held a shotgun. The suspect pointed the shotgun at one victim and he charged at her. The victim swung a trash can at the suspect, knocking him off balance. The suspect jumped back into the car, which drove away. The victim, who is about five feet nine inches tall, estimated that the suspect was about six feet tall.
On January 24, 2013, at around 7:00 p.m., the carjacking, robbery, attempted robberies, and attempted carjacking charged in counts 14 through 18, respectively, occurred when five victims were at a park in Madera. A dark colored, four-door car pulled up. Two suspects exited. One suspect carried a shotgun and the other a handgun. Both suspects wore dark clothing and ski masks. Two victims described the suspect with the shotgun as "skinny" and about five feet eight inches tall. This suspect sounded "Hispanic" and seemed under 25 years of age. Both suspects were 180 pounds or less. The two suspects ordered the victims on the ground while a third suspect drove off with a victim's teal colored Honda Civic. The suspect holding the shotgun fired it once. The suspects fled with personal property, including a cell phone.
Law enforcement recovered two live shotgun shells, and an expended shotgun shell, on the ground at this crime scene. The three shells were all Remington brand and 12-gauge.
B. Law enforcement tracks the stolen cell phone.
Law enforcement tracked the cell phone which was stolen during the last incident in this crime spree. Authorities tracked the stolen phone to Magana's residence. On January 25, 2013, law enforcement personnel from multiple agencies converged and arrested Magana at his residence. Authorities searched his residence and a parked red Toyota. They recovered stolen property from this crime spree. The recovered property belonged to the victims in the crimes charged in count 3 (day one), counts 8 and 9 (day two), and count 14 (day four), including the Honda stolen on the last day. In addition, law enforcement located the stolen Durango (count 2) abandoned in a local parking lot. Inside the Durango was a bank card belonging to the robbery victim in count 10. A camouflaged jacket, camouflaged pants, and a black, hooded sweatshirt were recovered at Magana's residence. A Mossberg 12-gauge shotgun was discovered inside the residence's garage on a washing machine. The shotgun was loaded with Remington birdshot shells similar to the birdshot fired during the attempted murder in count 6 on day two.
Law enforcement also found evidence that tended to implicate appellant in this crime spree. His identification card was found inside a wallet recovered from the glove box of the red Toyota parked in front of Magana's residence. This red Toyota was registered to Magana's mother. Appellant's identification card was with personal property belonging to the victims in counts 3, 8 and 9.
Appellant's 1991 tan colored Buick was parked behind Magana's residence, and it was stuck in mud. A neighbor informed a police officer that she had observed people trying to move appellant's Buick "all day" prior to law enforcement arriving. A live Remington 12-gauge shotgun shell was found in appellant's Buick. The recovered 12-gauge shotgun would fire this shell, and this recovered shell was similar to shell casings recovered at the last crime scene. Inside the trunk of appellant's Buick, deputies found a receipt from a local sporting goods store for 12-gauge shotgun ammunition.
The registration for appellant's Buick, along with a bill of sale, were found in Magana's bedroom. A white iPod was recovered in the glovebox of the Toyota belonging to Magana's mother.
At trial, the jury learned that appellant's sister had loaned him an iPod, which he had not returned to her. At trial, however, she was unable to identify this recovered iPod as hers because it was broken.
At that local sporting goods store, law enforcement found surveillance video showing appellant buying shotgun ammunition on January 17, 2013. The ammunition which appellant purchased was consistent with the ammunition found loaded in the shotgun recovered at Magana's residence. In the store video, appellant was wearing distinctive black and white athletic shoes.
Barrios was present with appellant when he purchased this ammunition.
At trial, a deputy testified that the suspect involved in the first crime in this series, the attempted robbery of the locked convenience store, held the same shotgun that was seized at Magana's residence. That suspect wore a camouflaged hooded jacket and pants, which appeared the same as clothing seized from Magana's residence. Finally, that suspect wore the same distinctive black and white athletic shoes that appellant wore when he purchased the shotgun ammunition at the sporting goods store.
C. Law enforcement searches appellant's residence.
Sheriff deputies impounded appellant's Buick. On January 27, 2013, appellant appeared at a sheriff's station, asking about his Buick. Appellant told a deputy that he last saw his Buick on "Thursday at 12:00 o'clock[.]" Deputies took appellant into custody.
We take judicial notice that January 27, 2013, was a Sunday and the previous Thursday was the last day of this four-day crime spree. (Evid. Code, § 452, subd. (h).)
On February 1, 2013, officers searched appellant's residence. Officers recovered a belt and dark colored jeans. Both were muddy. The jeans had dried mud on each leg. A "puffy" black jacket and a pair of distinctive black and white shoes were located in his bedroom. Police also searched the residence of appellant's sister and her boyfriend, L.R., who was an army veteran. Police found camouflaged clothing there.
D. Appellant's jail phone calls.
While in custody prior to this trial, appellant made a number of jail calls, which were recorded and played for the jury. During some of his calls, he spoke with his mother, who expressed displeasure that something was missing from under her bed. She said she "had seven, now I have six." Appellant denied taking anything. She asked about the "double barrel[.]" Appellant said he "played" with one but did not "shoot it."
During multiple conversations, appellant and his mother discussed his shoes. He asked whether "they" had taken them. He expressed concern multiple times about his shoes. Appellant agreed with his mother that he liked "easy money" and admitted he had to "go pay" for what he did. He explained how he "got off track." He said, "We just kept riding."
A deputy informed the jury that the term "riding" meant "riding around committing criminal acts."
During one conversation with an unidentified male, appellant mentioned some of his codefendants by name and expressed concern that Magana, Cendejas and Gutierrez may have made statements to authorities. Appellant specifically mentioned "Elmer" (Gutierrez's first name) and referred to Gutierrez's location in jail. At trial, a deputy explained that appellant's recorded conversation about his codefendants was important because appellant had previously claimed he did not know them.
E. Appellant's intercepted jail communication.
On February 23, 2016, while in jail before this trial, a correctional officer found a piece of paper in appellant's cell. The paper was rolled up and wrapped in clear plastic. The writing asked the recipient to call appellant's mother, and it provided a telephone number. The recipient was directed to coach appellant's mother that the prosecutor and appellant's defense counsel "are going to drill her about the jail calls." The message also instructed the recipient to contact L.R., the boyfriend of appellant's sister, to coach him that appellant "never had access" to his "Army clothes" and L.R. should "say that he would not know if they were his."
In addition, the jury learned that, when appellant was in juvenile custody in 2009, correctional personnel had intercepted a written message he had attempted to pass to another inmate. Appellant's message had asked other "homies" to provide information for a roster, such as their names, dates of birth, where they were born, nicknames, release dates, and their neighborhoods.
Appellant had transported that message in his mouth. The paper was rolled and covered in plastic. In jail lingo, this type of message is known as a "wila."
F. The firearms in appellant's residence.
At trial, the jury learned that appellant had resided with his mother and her husband. Appellant's stepfather told the jury that they owned six or seven firearms, including "[t]wo or three"12-gauge shotguns, which were kept under a bed. At trial, appellant's stepfather denied that any of their shotguns were missing. When shown the shotgun recovered from Magana's residence, appellant's stepfather denied having a similar gun.
G. The codefendants' descriptions.
At trial, the prosecution's gang expert, who was familiar with the codefendants, provided information about their identities. All of these individuals are Hispanic. When these crimes occurred, all of these individuals were teenagers. Appellant was approximately five feet seven inches tall, and weighed about 140 pounds. Magana was about five feet four inches tall, and weighed about 120 pounds. Cendejas was approximately five feet eight inches tall, and weighed about 150 pounds. Gutierrez stood about five feet seven inches tall, and weighed approximately 180 pounds. Fraire stood about five feet four inches, and weighed approximately 130 pounds. Barrios was around five feet seven inches tall, and weighed about 175 pounds.
H. The accomplice testimony at trial.
At trial, three of appellant's codefendants—Magana, Gutierrez, and Cendejas—testified against him. Prior to this trial, all three of these witnesses had entered plea agreements with the prosecution. Magana provided the most damaging testimony.
1. Magana's trial testimony.
Magana was 15 years old when these crimes occurred. He received a prison sentence of 25 years eight months in exchange for his truthful trial testimony.
Magana told the jury that he was a Norteño gang member but he did not know appellant's gang status. According to Magana, he and appellant took part in a four-day crime spree from January 21 through January 24, 2013. Magana said that, while others participated at times, only he and appellant took part in all of the crimes during this crime spree. Appellant used a shotgun in each of the crimes over those four days.
a. The crime charged in count 1.
On January 21, 2013, at about 4:00 a.m., Magana, appellant and Barrios drove to a convenience store. They used appellant's vehicle, a Buick. Appellant wore a mask and camouflaged clothes. Barrios parked behind the store. Appellant exited and was gone for "maybe a minute" before he ran back and told Barrios to leave. Appellant explained that the door had been locked.
At trial, Magana identified appellant's Buick from a photograph in exhibit 133.
At trial, Magana said he did not see anything in appellant's hands when appellant got out of the Buick.
b. The crimes charged in counts 2-3.
Magana explained that, after driving away from the convenience store on January 21, 2013, they waited in a "field" because police were in the area. Near that convenience store, they drove past a residence and saw a victim warming up a Durango. Appellant and Barrios got out and confronted the victim. Appellant wore the same camouflaged clothes. At trial, Magana could not recall if appellant held the shotgun, but he agreed he previously told officers that appellant had held the shotgun during this crime. Appellant and Barrios took the Durango, and they followed Magana, who drove appellant's Buick back to Magana's residence.
At trial, Magana identified exhibits 98-A and 99-B as the camouflaged pants and a hoodie that appellant wore during these crimes.
c. The crimes charged in counts 4-6.
On January 22, 2013, at about 8:30 p.m., Magana, along with appellant, Cendejas and Fraire, drove the stolen Durango to a store. Cendejas was driving. They formed a plan to rob a store. Once there, appellant exited the Durango with a shotgun. Fraire and Magana also got out. Appellant wore the same camouflaged clothes. A store employee saw appellant, started yelling, and ran inside the store. Magana heard gunshots. Everyone got back inside the Durango and they drove away. Appellant said somebody inside the store had started shooting. Appellant seemed shocked about what had happened.
d. The crimes charged in counts 7-9.
On January 22, 2013, after the shooting at the store, the codefendants drove past "two ladies in a car" and somebody suggested that they steal their vehicle. The codefendants followed the victims to a residence. When the victims parked in the driveway, appellant and Magana exited the Durango. Appellant held a shotgun. After talking to the victims, Magana and appellant drove the victims' Honda back to Magana's residence.
e. The crimes charged in counts 10-11.
On January 23, 2013, close to midnight, Magana testified that he was driving the stolen Honda. Appellant and Barrios were also present. They saw two people in a white Toyota Camry getting ready to get out of that car with some shopping bags. Magana parked nearby. Appellant jumped out and demanded the keys to the Toyota. Appellant held a 12-gauge shotgun. Barrios jumped out of the car after appellant, but Barrios then jumped back into the car, saying they should leave. Barrios said it was "a set-up" and the stolen Honda had "a tracking device or something like that." Appellant hopped back into the Honda and they drove away.
At trial, Magana thought that appellant had taken a purse from one of these victims, but he denied that they recovered anything of value from those victims.
Law enforcement eventually found a victim's bank card from this robbery located inside the abandoned Durango stolen in count 2.
f. The crimes charged in counts 12-13.
At trial, Magana recalled the incident with the lady and the trash can. Magana was driving the stolen Honda. Barrios (in the front seat) and appellant (in the left back seat) were with him. They were looking for somebody to rob. Magana stopped the Honda in front of a residence where a truck had just stopped. Appellant hopped out holding the shotgun. A lady was near a trash can, and she "started screaming and begging [him] not to shoot." The lady picked up a trash can like she was going to shield herself. Appellant got back inside the vehicle and they drove away.
g. The crimes charged in counts 14-18.
On January 24, 2013, Magana needed a new car battery for his mother's vehicle, a red Toyota. Barrios switched out the old battery for a new one. Using his mother's Toyota, Magana, appellant, Barrios, Gutierrez and another "homie" went out. They picked up a bag of camouflaged clothing from Magana's residence. These were the same clothes that Magana identified in court earlier. Everybody "got their things" from this bag. Magana drove his mom's Toyota. Magana told the jury that appellant retrieved the shotgun from his Buick. Appellant put the gun into the backseat of the Toyota.
They drove around for a while "looking for someone." They eventually approached a group of people at a park. Everyone but Magana got out of the Toyota. Appellant got out with the shotgun, pointed it, and he ordered the victims to get down on the ground. Gutierrez drove a victim's car away. Barrios got back inside the Toyota and Appellant started yelling at Barrios, telling him to get out of that car. Magana heard gunshots. Only appellant was still outside when the shots were fired. Appellant got back into the Toyota and they drove away.
Back at Magana's residence, the codefendants searched the newly stolen vehicle. The shotgun was placed on Magana's washing machine. While they were looking through that vehicle, Barrios saw lights flashing towards Magana's residence. All of the codefendants ran away.
Magana explained that appellant's Buick got stuck in mud at his residence sometime during the last day of this crime spree. Magana did not know how the Buick became stuck in mud.
2. Elmer Gutierrez's trial testimony.
Gutierrez testified at trial following a negotiated plea deal with the prosecution. He would receive a prison sentence of 19 years 10 months in exchange for his truthful testimony. Gutierrez, who had been 17 years old in January 2013, participated in the final carjacking in this series of crimes.
According to Gutierrez, Magana picked him up in a red Toyota on January 24, 2013. Four people were in that car, including appellant. Gutierrez told the jury that he was "[n]ot really" familiar with appellant.
They drove to a park. Appellant, Gutierrez and Barrios exited Magana's car. Gutierrez drove away with a victim's car. At trial, Gutierrez generally claimed he could not remember if anybody had a shotgun or not during this crime. Gutierrez drove the stolen car, following Magana to a residence. The stolen car was parked at that residence. Appellant and three other people, including Magana, were at that residence when law enforcement arrived. Everybody "scattered" and went in different directions.
On cross-examination, Gutierrez denied that either Fraire or Cendejas participated in this crime.
3. Ricardo Cendejas's trial testimony.
Cendejas testified at trial pursuant to a plea agreement. In exchange for his truthful testimony, he would receive a prison sentence of 23 years. In January 2013, he was 17 years old. At trial, he said he was "in a way" a dropout from the Norteño gang because he talked to a police officer. He told the jury that appellant was a gang member and a "northerner." He admitted, however, that his belief was based on "hearsay" and he had never seen appellant display any gang signs.
On January 22, 2013, Cendejas participated in an attempted robbery of a liquor store. He drove a Durango that he obtained from Magana. Fraire and appellant also participated. At the store, appellant, Magana, and Fraire jumped out of the Durango. Appellant held a shotgun. Cendejas heard a sound like glass shattering, and the three codefendants ran back to the Durango. Appellant said a man inside the store shot at him and he shot back.
The group then drove around town looking for somebody to rob. They followed two women in a Honda. The women stopped at a house. Appellant and Magana jumped out. Appellant held the shotgun. Magana and appellant took the Honda, driving it back to Magana's house.
I. Appellant's jail assault (count 21).
It is undisputed that on October 31, 2014, appellant assaulted a jail inmate while appellant was in custody prior to his trial in this matter. Appellant executed the attack with another inmate, Dajuan Huddleston. They both entered the victim's cell at the same time. The victim required 25 staples to close wounds to his head.
At trial, a correctional officer testified about the assault. The officer explained that, after this assault, appellant and Huddleston both removed their shirts (or sweatshirts) and dropped them over a railing where inmates collected and hid them. Appellant gave his shoes to another inmate, who dropped them to a third inmate on a lower floor. The jury saw a video, which showed appellant and Huddleston entering the victim's cell together, shutting the door behind them. Just after this assault, they are seen passing their clothing to other inmates.
J. Appellant's gang affiliation.
At trial, the prosecution's gang expert discussed the history of the local criminal street gangs. He explained why a gang member is motivated to commit crimes to benefit a gang. The jury learned that the primary activities of the Norteño gang include robberies and carjackings, among other crimes. The expert reviewed prior predicate offenses involving other Norteño gang members.
The prosecution's gang expert opined that, in January 2013, appellant was a member of the Norteño criminal street gang in a subset known as the Vaudeville or Varrio Tiny Winos (VTW). This opinion was based on his "numerous" gang-related tattoos and his association with other known gang members. In addition, appellant's intercepted wila while in juvenile custody and his recent recorded jail calls used langauge suggesting gang affiliation. The wila referred to "homies" and it attempted to construct a gang roster. During one of his recorded jail calls, appellant said it was "not [an] option" to testify against his codefendants.
During cross-examination, the prosecution's gang expert confirmed that no gang evidence was recovered in either appellant's residence or his Buick. The gang expert was not aware of any documented Norteño having contact with appellant on cellular phones or social media.
The gang expert opined at trial that, based on their individual histories, all of appellant's codefendants in this matter were Norteño gang members. Based on a hypothetical mirroring the facts of this crime spree, the gang expert opined that these crimes were done to benefit a criminal street gang, they were committed in association with a criminal street gang, and done to promote felonious conduct by gang members.
Regarding the jail assault, the gang expert opined that appellant's accomplice, Huddleston, was a Norteño gang member. This opinion was based on Huddleston's tattoos, his conviction of a gang-related offense with other gang members, and his admission of gang affiliation. The gang expert, however, opined that the victim of the jail assault was not a gang member and he had never been in a gang. Based on a hypothetical mirroring the facts of appellant's jail assault, the gang expert opined that the assault was done to benefit a criminal street gang, it was committed in association with a criminal street gang, and it was done to promote felonious conduct by gang members. The expert explained that a gang jail assault can instill fear in other inmates, who would be less likely to oppose gang members in the future.
II. The Relevant Defense Evidence.
Appellant testified in his own defense. We provide a relevant summary of his testimony and that of his other witnesses, breaking the summaries down into pertinent topics.
A. Appellant's gang membership.
Appellant told the jury that he had never been a Norteño gang member. He admitted, however, that he had "associated" with the VTW gang when he was in juvenile hall. He said he stopped that association and he was no longer with that gang. He admitted that he often spent time at a certain residence, which he claimed was not a gang hangout but only a "party" house.
B. Appellant's explanation about his Buick.
Appellant denied taking part in any of the crimes charged during the four-day crime spree. He admitted that his Buick was seen on video during the attempted robbery charged in count 1. However, he claimed he had loaned his Buick to Magana on the Sunday before this crime spree started. Appellant said he went to a casino that night, staying all night. The next morning, a Monday, Magana returned the Buick to appellant. Appellant had left a bag of clothing in the Buick when Magana took it. The bag contained jeans, two shirts, a sweater, the distinctive black and white athletic shoes, schoolbooks, and toiletries. The bag of clothing had been in the trunk. When appellant got the Buick back from Magana, the bag of clothing had been moved farther back in the trunk, away from where appellant usually kept it. At trial, appellant confirmed that nothing had been missing from that bag when Magana returned his Buick.
During cross-examination, appellant denied knowing his codefendant Gutierrez.
Appellant loaned his Buick to Magana again on Wednesday night, January 23, 2013. According to appellant, he had his cell phone, his wallet, and his sister's iPod in the Buick's glove box when he gave the car to Magana. His identification was inside the wallet.
Appellant later saw his Buick stuck in mud behind Magana's residence. He tried unsuccessfully to pull it out, but he did not have keys. The next day, Magana told appellant that the Buick was stuck. Magana also said "we just jacked somebody" and law enforcement had arrived at his residence. The next day, appellant knew his Buick was gone and he tried to find it. He did not know whether law enforcement took his vehicle or if it was stolen. He told the jury that he called 911 and two auto yards looking for his vehicle.
At trial, appellant admitted buying shotgun ammunition at the local sporting goods store. He claimed he bought the ammunition to go hunting with family members, but he first had to practice shooting. When he purchased the ammunition with Barrios, the store clerk helped appellant decided on the ammunition to buy.
A prison inmate testified that he had known appellant since middle school. In January 2013, this inmate saw appellant at a party. Appellant was very drunk. The inmate saw Magana and a group of people leave in appellant's Buick. A few days later, appellant was searching for his car and the inmate suggested that appellant should report it stolen.
C. Retrieving the Buick.
At trial, appellant said he saw his missing Buick as he drove past the sheriff's office. He was arrested when he went inside the office to inquire about it. At trial, L.R., the boyfriend of appellant's sister, confirmed that he was with appellant when they drove to the sheriff's office to see if his vehicle was there. They saw the Buick behind the office through a chain-link fence. Appellant went to talk to the deputies, who took him into custody.
Appellant's mother told the jury that she helped appellant report his vehicle stolen. He had said somebody had borrowed his car. Appellant called her while he was with his sister and her boyfriend, L.R. He said he had found his vehicle at the sheriff's office.
D. The camouflaged clothing.
At trial, the defense called a correctional officer to testify. The officer said appellant had been wearing an extra-large shirt and pants with a size 36-inch waist when he was booked into jail for these charged crimes. At trial, appellant denied owning any camouflage clothing, saying he last owned camouflaged pants when he was about 14 years old. He said he was much bigger in size than L.R.
L.R. told the jury that he was an Army veteran. At trial, L.R. agreed that he had owned camouflaged clothing and some of the clothing seized at Magana's residence (exhibits 99-B and 122-A) was his size. L.R. had a 30-inch waist and he wore a "small long" jacket. Appellant was bigger than L.R., and they wore different sized clothing.
E. The rifles.
At trial, appellant's mother explained that, when officers searched her residence, an officer had told her that appellant had shot at a clerk using one of her guns. She testified that she and her husband kept a collection of firearms under their bed. She explained to the jury that, during her recorded jail conversations with appellant, she had accused him of taking a firearm because she had assumed he had done that. She claimed at trial that none of her firearms were ever missing. Her shotgun was moved into evidence. She told the jury she had retrieved it from under her bed and she had six other rifles at home.
F. The jail assault.
Appellant admitted he committed the jail assault charged in count 21, but he denied knowing that Huddleston had been armed. He denied that this assault was gang related. He told the jury he attacked the victim because the victim had exposed himself to appellant's brother, who also happened to be in custody at the same jail. Appellant's brother had been cellmates with the victim, and the victim had been "doing a lot of homosexual activity in his cell." Appellant's brother had complained to appellant. Appellant had held the victim in "a full Nelson" while Huddleston hit the victim on the top of his head.
Appellant testified that he became baptized while in jail prior to this trial. He described himself as a "solider for Christ." He had the word "Soldado" tattooed on his chest to demonstrate his new beliefs. He believed he obtained this tattoo during the last week of July 2014.
A prison inmate testified that he had known appellant since they "were younger." The inmate was a former member of the VTW gang, which was a subset of the Norteño street gang. According to this inmate, appellant had been baptized in jail and he had wanted "Soldado" tattooed on him to signify he was now a soldier of God. The inmate had tattooed appellant with that word across his chest while they were both in jail.
A jail chaplain testified that he had baptized appellant while he was in custody. At trial, the chaplain could not recall whether or not appellant had the Soldado tattoo on his chest when he was baptized. The chaplain believed that appellant was engaging in church services around the time he was baptized, but the chaplain was not certain.
G. The note found in appellant's cell prior to this trial.
During cross-examination, appellant tried to explain the note that was found in his cell prior to this trial. Appellant explained to the jury that, at the time he found out his Buick had been used in a crime, he had not thought anyone saw it. He wanted to place his vehicle at the casino, where he had been. However, after seeing the video from the locked convenience store, he realized his Buick had been seen. He realized he needed to alert L.R. that his Buick had not been at the casino. He admitted he had initially lied to L.R. and his sister about taking his vehicle to the casino.
III. Rebuttal Evidence.
During rebuttal, the prosecution established that, when appellant was booked into custody on August 31, 2012, he identified himself as a "northerner" and he belonged to a gang known as VTW. He again admitted affiliation with VTW when he was booked into custody on January 27, 2013.
Based on his personal observations, a detective opined that, in January 2013, appellant's waist size was 31 to 33 inches when the four-day crime spree occurred. The same detective also opined that a residence where appellant had spent time was a known Norteño gang hangout.
DISCUSSION
I. Sufficient Independent Evidence Corroborates The Accomplice Testimony For All Counts Except 12 and 13.
Appellant contends that insufficient evidence corroborates the accomplice testimony that he participated in the crimes charged in counts 7 through 18 of the crime spree.
A. Standard of review.
The jury's determination regarding corroboration is binding on appellate review unless the corroborating evidence does not reasonably tend to connect the defendant with the crime or should not have been admitted. (People v. Nelson (2011) 51 Cal.4th 198, 218.) Corroborating evidence to substantiate accomplice testimony may be only slight, entirely circumstantial and entitled to little consideration when standing alone. (People v. Rices (2017) 4 Cal.5th 49, 86 (Rices); People v. Chism (2014) 58 Cal.4th 1266, 1301 (Chism).) Corroborating evidence need not "establish the precise facts to which the accomplice testified. [Citations.]" (People v. Valdez (2012) 55 Cal.4th 82, 148.) Corroborating evidence, however, "must tend to implicate the defendant by relating to an act that is an element of the crime. It need not by itself establish every element, but must, without aid from the accomplice's testimony, tend to connect the defendant with the offense.' [Citation.]" (Rices, supra, 4 Cal.5th at p. 86.)
B. Analysis.
Appellant admits that the prosecution presented sufficient corroborating evidence regarding his involvement in counts 1 through 6. He argues, however, that none of the victims ever identified him, and no forensic evidence connected him to any of the charges during the crime spree. He contends his recorded jail statements did not corroborate his involvement in counts 7 through 18. He asserts he was not in actual or constructive possession of either his personal property or any of the stolen property recovered at Magana's residence. He maintains the nonaccomplice evidence failed to corroborate his participation in counts 7 through 18. Although we disagree with most of appellant's arguments, we agree that the nonaccomplice evidence fails to corroborate appellant's participation in counts 12 and 13. We reverse those two counts but otherwise affirm counts 7 through 11, and 14 through 18.
"Section 1111 prohibits a defendant from being convicted on the uncorroborated testimony of an accomplice." (People v. Nelson, supra, 51 Cal.4th at p. 217.) This section requires accomplice testimony to be corroborated by "'such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.'" (Ibid.) Such corroborating evidence must tend to connect the defendant with the crime so the jury is satisfied that the accomplice is truthful. (People v. Tatman (1993) 20 Cal.App.4th 1, 12.)
There are limitations on how accomplice testimony may be corroborated. The testimony of one accomplice cannot corroborate the testimony of another accomplice. (People v. Boyce (1980) 110 Cal.App.3d 726, 737.) In addition, an accomplice's testimony may not be corroborated just because the accomplice provides details that are consistent with the victim's descriptions of the crime or consistent with physical evidence from the crime scene. Such testimony only shows that the accomplice was at the crime scene, which the accomplice is readily admitting. Instead, corroboration must connect the defendant to the crime independently of the accomplice's testimony in order to satisfy section 1111. (People v. Romero and Self (2015) 62 Cal.4th 1, 36 (Romero and Self).) When determining the sufficiency of the corroboration, the jury may take into account the parties' relationship, their acts, and their entire conduct. (Id. at p. 32.)
We find instructive two high court opinions: (1) Romero and Self, supra, 62 Cal.4th 1; and (2) People v. Rodriguez (2018) 4 Cal.5th 1123.
In Romero and Self, two defendants went on "a two-month crime spree" and they were convicted of multiple crimes, including first degree murder, robbery, attempted robbery and mayhem. The crimes involved the defendants and, at times, two other individuals. One of those individuals eventually testified at trial against the defendants. (Romero v. Self, supra, 62 Cal.4th at pp. 8-9.) On appeal, one defendant challenged the sufficiency of the corroboration for some of his convictions. His appeal focused on two separate incidents during the crime spree. (Id. at p. 31.) The first incident occurred when the defendant and the accomplice attacked a couple late at night. The defendant fired a shotgun at the victims' vehicle, striking the driver in the face. (Id. at p. 33.) After this crime, the defendant admitted to police he had possessed a .20-gauge shotgun before this incident, and he had purchased .20-gauge shells. The defendant made vague statements to police suggesting he may have fired his shells at someone. Wadding from a .20-gauge shotgun was found in the victims' car. (Id. at pp. 33-34.) The high court found corroboration from this evidence. In addition, the high court noted that, about a month before this incident, the defendant and the accomplice had attacked another victim in a similar manner. The prior crime's similar circumstances further corroborated the accomplice testimony. (Id. at pp. 34-35.)
Despite upholding the convictions from the first incident, however, Romero and Self reversed a single count of robbery involving a different victim during a different incident in this crime spree. (Romero and Self, supra, 62 Cal.4th at p. 35.) A shotgun was used in this robbery, but it was undisputed that the other codefendant had held the shotgun during this crime. The high court determined that nothing placed the defendant at this crime scene. No evidence sufficiently corroborated the accomplice testimony and the accomplice's general description of the crime scene was not sufficient. Instead, other evidence had to connect the defendant to the crime independent of the accomplice's testimony. (Id. at pp. 35-36.)
In People v. Rodriguez, supra, 4 Cal.5th 1123, this court affirmed the judgment of a codefendant's murder conviction, which was based solely on accomplice testimony. We had determined that nonaccomplice evidence had corroborated "aspects" of the accomplice testimony. (Id. at p. 1128.) On appeal to the Supreme Court, however, the Attorney General conceded that nothing connected the codefendant to the charged murder. The other evidence against this codefendant only established he was a rival gang member. (Id. at pp. 1128-1129.) The codefendant was not linked to the accomplice, his codefendant, or the victims. The other evidence did not tend to connect the codefendant to the vehicle used during the shooting, the murder weapon, or any of the recovered ammunition. No evidence tended to connect the codefendant to the locations relevant in the crime, or where relevant evidence was recovered. There was no evidence that the codefendant had been involved in any of the prior acts of violence committed by rival gang members that preceded the charged crimes. Other than fights at school, the evidence did not show that the codefendant had committed acts of violence against rival gang members similar to this shooting. Nothing showed a personal motive or opportunity to commit the charged crimes. Like the reversal of the robbery conviction in Romero and Self, nothing tied the codefendant to the crime. Because nothing linked the codefendant to the murder, the high court remanded the codefendant's case to this court to enter a judgment of acquittal on the charges against him. (People v. Rodriguez, supra, 4 Cal.5th at pp. 1129-1130.)
Here, except for counts 12 and 13, sufficient corroborating evidence connects appellant to the charges during the crime spree. Appellant concedes that the evidence sufficiently corroborates the accomplice testimony regarding his participation in the crimes charged in counts 1 through 6. Before this crime spree, it is undisputed that appellant purchased shotgun shells. In count 1, appellant was seen on video wearing his distinctive black and white athletic shoes, and carrying the shotgun, when he attempted to enter the locked convenience store. He fled in his tan Buick. Shortly after this attempted robbery, appellant and Magana used the Buick in carjacking the Durango (count 2) and robbery (count 3). The following day, appellant fired the shotgun during the attempted robberies (counts 4 and 5) and the attempted murder (count 6) in the market. The shotgun pellets fired during the attempted murder were similar to the ammunition which appellant purchased. As such, we agree with appellant that the nonaccomplice evidence connects him with counts 1 through 6.
We note that the circumstantial evidence about the shotgun also tends to connect appellant to the charges during the crime spree. At trial, appellant's mother and his stepfather confirmed that they kept about seven rifles and shotguns under a bed at appellant's residence. They both denied that any of those weapons were ever missing. However, while in jail prior to this trial, appellant spoke with his mother. During some of their recorded conversations, they appeared to discuss weapons. His mother expressed displeasure that something was missing from under her bed. She said she "had seven, now I have six." Appellant denied taking anything. She asked about the "double barrel[.]" Appellant said he "played" with one but did not "shoot it."
Although appellant's mother and his stepfather denied that their weapons were ever missing, other circumstantial evidence suggests that appellant took a weapon from his residence. Indeed, appellant admits in his opening brief that one can infer he took a shotgun from under his mother's bed based on his recorded conversation with her. This is circumstantial evidence that connects appellant to the crime spree and it substantiates the accomplice testimony. (See Rices, supra, 4 Cal.5th at p. 86; Chism, supra, 58 Cal.4th at p. 1301.) We turn to the disputed counts.
1. Counts 7 through 9.
About 30 minutes after the attempted murder and attempted robberies (counts 4 through 6) at the market, two males stole a Honda (count 7) and purses from two female victims (counts 8 and 9). The first suspect wore a black hoodie and had a red bandana covering the bottom half of his face. He carried a "long" gun. He was approximately 20 years old, light-skinned (possibly Hispanic or Caucasian), stood about five feet eight inches to five feet 10 inches tall, and weighed about 150 to 170 pounds.
After this crime spree, law enforcement recovered appellant's identification card inside a wallet in the glove box of a red Toyota parked in front of Magana's residence. The Toyota belonged to Magana's mother. Appellant's identification card was in a wallet that also contained personal property belonging to victims in counts 3, 8 and 9. The carjacking charged in count 7 occurred simultaneously with the robberies charged in counts 8 and 9. Although this evidence is circumstantial, the recovery of appellant's identification card alongside stolen property connects him to the crimes charged in counts 7 through 9.
2. Counts 10 and 11.
A robbery (count 10) and attempted robbery (count 11) occurred on or about January 23, 2013, at about 11:30 p.m. Two armed suspects stole a purse after accosting two females who were getting their bags and purses out of their car. Both suspects were dressed all in black. The first suspect held a big gun, like a rifle. This suspect wore a black hoodie. The other suspect held a handgun.
Appellant was involved in the carjacking of the Durango (count 2). Personal property belonging to the victim in count 10 was later recovered from the abandoned Durango. The crimes charged in counts 10 and 11 occurred simultaneously. As such, a circumstantial link connects appellant to the crimes charged in counts 10 and 11 and this evidence corroborates the accomplice testimony.
3. Counts 12 and 13.
Either late in the evening on January 23, 2013, or very early in the morning on January 24, 2013, the attempted robberies charged in counts 12 and 13 occurred when two victims were outside their residence in Madera. The victims had just returned home. A small four-door vehicle pulled up and a "tall slender" Hispanic male jumped out of that car from the driver's side back door. The suspect wore a hoodie and held a shotgun. The suspect pointed the shotgun at one victim and he charged at her. The victim swung a trash can at the suspect, knocking him off balance. The suspect jumped back into the car, which drove away. The victim, who is about five feet nine inches tall, estimated that the suspect was about six feet tall.
Unlike the other charges during this crime spree, other than accomplice testimony, nothing places appellant at this crime scene or links him to these counts. Magana's general description of the crime scene is not sufficient. (Romero and Self, supra, 62 Cal.4th at pp. 35-36.) As in Romero and Self, because nothing connects appellant to these charges, they must be reversed for insufficient nonaccomplice evidence.
4. Counts 14 through 18.
On January 24, 2013, at around 7:00 p.m., the carjacking, robbery, attempted robberies, and attempted carjacking charged in counts 14 through 18, respectively, occurred when five victims were at a park in Madera. A dark colored, four-door car pulled up. Two suspects exited. One suspect carried a shotgun and the other a handgun. Both suspects wore dark clothing and ski masks. Two victims described the suspect with the shotgun as "skinny" and about five feet eight inches tall. This suspect sounded "Hispanic" and seemed under 25 years of age. Both suspects were 180 pounds or less. The two suspects ordered the victims on the ground while a third suspect drove off with a victim's teal colored Honda Civic. The suspect holding the shotgun fired it once. The suspects fled with personal property, including a cell phone.
Law enforcement recovered two live shotgun shells, and an expended shotgun shell, on the ground at this crime scene. The three shells were all Remington brand and 12-gauge.
Magana testified that he used his mother's Toyota during the crimes charged in counts 14 through 18. After this crime spree, law enforcement found appellant's identification card inside a wallet in the glove box of the red Toyota parked in front of Magana's residence. The Toyota belonged to Magana's mother. Appellant's identification inside the Toyota connects him to counts 14 through 18.
Further, after this four-day crime spree, police recovered appellant's Buick stuck in mud behind Magana's residence. According to Magana, appellant left his vehicle there on the last day of the crime spree (a Thursday) after it became stuck in mud. Prior to his arrest, appellant appeared at a sheriff's station and inquired about his impounded Buick. He claimed he last saw this vehicle on a Thursday. A neighbor informed a police officer that she had observed people trying to move appellant's Buick "all day" prior to law enforcement arriving. Police found dirty jeans in appellant's garage. Dried mud was observed on the leg bottoms. This evidence connects appellant with Magana on the last day of this crime spree.
Moreover, both Magana and Gutierrez testified that Gutierrez was involved in the crimes on the last day. At trial, appellant denied knowing Gutierrez. However, during one of appellant's recorded jail calls (No. 12), he mentioned Gutierrez by his first name ("Elmer") and expressed concern that Gutierrez may have provided information to law enforcement. A testifying deputy found appellant's statements significant, noting that appellant had previously denied knowing his codefendants. Appellant's recorded statements strongly suggest he knew Gutierrez, and his statements imply that he was with Gutierrez during the last day of this crime spree. The nonaccomplice evidence connects appellant to the charges in counts 14 through 18.
Unlike in People v. Rodriguez, supra, 4 Cal.5th 1123, appellant was linked to his codefendants. He was seen on video purchasing the shotgun ammunition with Barrios. During one of his recorded jail conversations, appellant mentioned some of his codefendants by name and expressed concern that Magana, Cendejas and Gutierrez may have made statements to authorities. It is undisputed that appellant purchased the shotgun ammunition that was apparently used throughout this crime spree. The circumstantial evidence strongly suggests he supplied the shotgun. There was evidence inferring he was motivated to commit these crimes because he liked "easy" money and he told his mother, "We just kept riding." The nonaccomplice evidence connects appellant to counts 7 through 11, and 14 through 18. This evidence suggests that the accomplice testimony was truthful.
In addition, the crimes in counts 1 through 6 were very similar in nature and circumstances to the remaining charges during this crime spree. All of these crimes occurred within days of each other, and in the same geographical area. All involved robbery (or its attempt) and carjacking (or its attempt). In each crime, a shotgun was displayed to victims. In each crime, at least two suspects, and sometimes more, were involved. These crimes occurred either in the early morning hours or at night. Appellant's undisputed involvement in counts 1 through 6, and the similar circumstances of those crimes to the incidents charged in the remaining counts, is further compelling circumstantial evidence corroborating the accomplice testimony in counts 7 through 11, and 14 through 18. (See Romero and Self, supra, 62 Cal.4th at pp. 34-35.)
Finally, the jury heard the victims describe the assailants during this crime spree. Based on the verdicts rendered, it is apparent the jury determined that the accomplices' testimonies were sufficiently corroborated. The jury observed appellant firsthand in the courtroom and could judge his physical characteristics against the eyewitnesses' descriptions. It was the jurors' role to judge the questions of fact submitted to them and resolve witness credibility. (§ 1127.) The jury's determination regarding corroboration is binding here because the circumstantial evidence connects appellant with counts 7 through 11, and 14 through 18. (See People v. Nelson, supra, 51 Cal.4th at p. 218.)
Based on this record, the prosecution presented sufficient nonaccomplice evidence to link appellant to all counts except 12 and 13. Accordingly, the accomplice testimony was sufficiently corroborated for counts 7 through 11, and 14 through 18, and this claim fails. (See Romero and Self, supra, 62 Cal.4th at p. 36.)
II. Sufficient Evidence Supports The Gang Enhancement In Count 21.
Appellant argues that the evidence was insufficient to support the gang enhancement for his jail assault in count 21. He asks that we strike this enhancement.
A. Standard of review.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
B. Analysis.
Appellant contends nothing shows he committed the jail assault with the specific intent to benefit a criminal street gang. He argues he committed this assault because the victim, a non-gang member, made homosexual overtures to his brother. He claims the prosecution's gang expert merely speculated about appellant's intent. He relies on three opinions: (1) In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.); (2) People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa); and (3) People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon). We find appellant's arguments and his cited authorities unpersuasive.
A gang enhancement applies when someone commits a felony "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." (§ 186.22, subd. (b)(1).) "'In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period.' [Citations.]" (People v. Sanchez (2016) 63 Cal.4th 665, 698.)
Committing a crime in concert with other known gang members is substantial evidence inferring that a defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. (People v. Miranda (2011) 192 Cal.App.4th 398, 412; accord People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Moreover, a "specific intent to benefit the gang is not required." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Instead, a specific intent to assist gang members in any criminal conduct is sufficient to satisfy section 186.22, subdivision (b). (Morales, at p. 1198.) A jury can reasonably infer the requisite association from the very fact that the defendant committed the charged crimes with fellow gang members. (Ibid.)
We review appellant's three authorities. First, in Frank S., supra, 141 Cal.App.4th 1192, the defendant was alone riding a bicycle when he failed to stop at a red light and he subsequently gave a false name to a police officer. The officer found a knife, a drug bindle, and a red bandana in the defendant's possession. The defendant said he was carrying the knife for protection against rival gang members. (Id. at p. 1195.) On appeal, this court reversed a gang enhancement attached to the defendant's conviction for carrying a concealed dirk or dagger. (Id. at pp. 1194-1195.) There was no evidence the defendant had been in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. (Id. at p. 1199.) "To allow the expert to state the [defendant's] specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Ibid.)
Second, in Ramon, supra, 175 Cal.App.4th 843, a sheriff's deputy pulled the defendant over while he was driving a stolen truck in gang territory. (Id. at p. 847.) Another man was riding in the truck with the defendant and the deputy found an unregistered gun under the driver's seat. (Ibid.) This court found the facts on which the expert based his opinion—gang membership and presence in gang territory—were insufficient to support his opinion as to the defendant's intent to commit this crime for the benefit of a gang. As such, the gang expert's opinion did not constitute substantial evidence in support of the jury's true finding. (Id. at pp. 851, 853.)
Finally, In Ochoa, supra, 179 Cal.App.4th 650, the defendant was charged with carjacking and being a felon in possession of a firearm. He challenged the sufficiency of the evidence supporting a gang enhancement. The defendant, who was a gang member, acted alone in committing a carjacking with a shotgun, and the offense did not occur in his gang's territory. (Ochoa, supra, 179 Cal.App.4th at pp. 653, 662.) Ochoa found the evidence insufficient to sustain the gang-related prong of section 186.22, subdivision (b)(1). Nothing supported the gang expert's opinion that the crimes were gang related. (Ochoa, supra, at pp. 661-662.)
Here, appellant's cited authorities do not assist him because he did not act alone in committing the jail assault and his gang enhancement was based on something more than his mere gang membership. The jury saw video depicting appellant's actions before and after this assault. Appellant and Huddleston entered the victim's cell together. At trial, appellant admitted holding the victim in "a full Nelson" while Huddleston struck the victim over his head. After this assault, appellant and Huddleston relied on multiple inmates to hide their shirts (or sweatshirts). Appellant also gave his shoes to another inmate.
At trial, the prosecution's gang expert opined that both appellant and Huddleston were active Norteño gang members when this jail assault occurred. The expert explained how he reached his conclusions, which were based on appellant's "numerous" gang-related tattoos, his association with other known gang members, the language used in his intercepted wila as a juvenile, and his language in his recorded jail calls. During one of his recorded jail calls, appellant said it was "not [an] option" to testify against his codefendants. Huddleston had gang-related tattoos, a prior conviction of a gang-related offense with other gang members, and he was a self-admitted Norteño. Based on a hypothetical mirroring the facts of appellant's jail assault, the gang expert opined that the assault was done to benefit a criminal street gang, it was committed in association with a criminal street gang, and it was done to promote felonious conduct by gang members.
Unlike appellant's three cited authorities, the gang expert's opinion in this matter was supported by the record. This coordinated attack reasonably suggested gang association. Committing the assault with Huddleston improved appellant's chances of carrying out the attack successfully. It is also reasonable to infer that appellant could rely on Huddleston's loyalty as a fellow gang member to not discuss this crime with authorities. (See People v. Albillar, supra, 51 Cal.4th at pp. 61-62 [it is reasonable to infer that gang members will assist each other and not cooperate with authorities].)
Although appellant denied being an active Norteño gang member when this crime occurred, it was the jury's role to decide this disputed issue. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 162 [the jury has the exclusive province to determine witness credibility, and the truth or falsity of the determinative facts].) Based on the jury's true finding, it is apparent that the jurors decided that issue against him. In doing our review, we will not reweigh the evidence or reassess the credibility of the witnesses. (Ibid.)
The evidence sufficiently supports the jury's finding. A crime is committed "in association with a criminal street gang" if the defendant relied on his or her common gang membership in committing the offense. (People v. Albillar, supra, 51 Cal.4th at p. 60.) Committing a crime with known members of a gang also establishes the specific intent to promote, further or assist criminal conduct by gang members under the second prong of section 186.22, subdivision (b)(1). (People v. Miranda, supra, 192 Cal.App.4th at p. 412; accord People v. Villalobos, supra, 145 Cal.App.4th at p. 322.) A specific intent to benefit the gang is not required, only a specific intent to assist other gang members in any criminal conduct. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) The jury could have reasonably inferred the requisite association from the very fact appellant committed the assault with a fellow gang member. (Ibid.) Moreover, the expert's opinion represented sufficient evidence to support the gang enhancement. (See People v. Vang (2011) 52 Cal.4th 1038, 1048 ["'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the Penal Code section 186.22, subdivision (b)(1), gang enhancement"].)
In raising this claim, appellant does not argue that the prosecution failed to prove that the Norteño gang (1) is an ongoing association of three or more persons with a common name, sign or symbol; (2) that its primary activities involve criminal acts enumerated in the statute; and (3) that its members either individually or collectively have committed the so-called predicate offenses. (See People v. Sanchez, supra, 63 Cal.4th at p. 698.)
Based on this record, a reasonable jury could have found true beyond a reasonable doubt that appellant committed this crime in association with the Norteño criminal street gang. The evidence was reasonable, credible and of solid value. The circumstances reasonably justify the jury's true finding so reversal of that finding is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Albillar, supra, 51 Cal.4th at p. 60.) Accordingly, the jury's true finding regarding the gang enhancement in count 21 was proper and this claim fails.
III. The Trial Court Did Not Abuse Its Discretion In Denying Appellant's Motion For A New Trial And It Is Not Reasonably Probable A More Favorable Outcome Would Have Occurred.
Appellant asserts that the trial court prejudicially erred by denying his motion for new trial based upon newly discovered evidence.
A. Background.
At trial, appellant denied being a gang member. He explained he committed the jail assault charged in count 21 because of "homosexual activity" the victim had displayed in his cell with his (appellant's) brother. Appellant testified he had been baptized while in custody and he had become a solider for Christ. He had tattooed "Soldado" across his chest to reflect his new beliefs. According to appellant, he received this tattoo prior to this jail assault. Appellant's tattoo, however, is not readily visible in the video showing appellant on the day of this assault.
During closing arguments, the prosecutor questioned the veracity of appellant's trial testimony, noting the Soldado tattoo was not visible on his chest on the day of the jail assault. The prosecutor argued appellant got this tattoo not because he was a solider for Christ, but because he was an active Norteño gang member. According to the prosecutor, the video showed appellant and Huddleston working together when they both entered the victim's cell at the same time.
In contrast, appellant's defense counsel asked the jury to view the video carefully. According to defense counsel, the Soldado tattoo was "not very sharp" but it was visible in the video. In rebuttal arguments, the prosecutor reiterated that the Soldado tattoo was not visible in the video on the day of the jail assault. The prosecutor contended this was a gang-related tattoo.
After the jury returned its verdicts, appellant filed a motion for a new trial based, in part, on newly discovered evidence. Appellant asserted that a photograph existed of his chest that showed this tattoo. This photo was in the possession of the department of corrections and it was taken before the jail assault charged in count 21. Appellant argued that the prosecution's video, which did not depict the Soldado tattoo due to poor imaging quality, unfairly made it appear that appellant had lied about the timing of his tattoo. The prosecution opposed the motion for new trial, contending it did not possess the photograph and, even if it existed, it was not probable that appellant would have obtained a different result.
At the hearing on the motion for new trial, the trial court asked if appellant had been present when this photograph was taken. Defense counsel admitted that appellant "was aware" it had been taken but the defense did not have a copy of the picture. The court denied the motion, determining this was not newly discovered evidence and the photograph was "not that important in this matter."
B. Standard of review.
"A motion for new trial is addressed to the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. [Citations.] Since it is the trial court's function in the first instance to assess witness credibility and resolve conflicts in the evidence, the appellate court should give great deference to the trial court's factual determinations [citation] when deciding whether there has been an abuse of discretion. However, questions of law are decided de novo by this court. [Citation.]" (People v. Hinks (1997) 58 Cal.App.4th 1157, 1160.) Motions for a new trial "are looked upon with disfavor" and an appellate court will not interfere unless a "clear showing" of abuse exists. (People v. Williams (1962) 57 Cal.2d 263, 270 (Williams).)
When discretionary power is statutorily vested in the trial court, we will not disturb the trial court's decision on appeal unless "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis.
Appellant asserts that the photograph was newly discovered evidence. He relies on three opinions: (1) People v. Martinez (1984) 36 Cal.3d 816 (Martinez); (2) People v. Shoals (1992) 8 Cal.App.4th 475 (Shoals); and (3) Williams, supra, 57 Cal.2d 263. He further claims that, had the photo been produced at his trial, it is reasonably probable he would have obtained a more favorable outcome. We reject these arguments. The photo was not newly discovered evidence and it is not reasonably probable appellant would have received a more favorable outcome had it been introduced at a retrial.
1. The photograph was not newly discovered evidence.
A trial court may grant a new trial motion when the defendant discovers new, material evidence that he could not, with reasonable diligence, have discovered and produced at the trial. (§ 1181, subd. (8).) Here, the issue is whether the photograph could have been discovered and produced at trial with reasonable diligence. To resolve that question, we review appellant's three cited authorities.
First, in Shoals, supra, 8 Cal.App.4th 475, the Court of Appeal affirmed the trial court's denial of a new trial motion after the defendant tried, but was unable, to call an associate to testify because she had invoked her privilege against self-incrimination. (Id. at p. 484.) After his conviction, the defendant sought a new trial based on the associate's subsequent agreement to testify. (Id. at pp. 484-485.) Shoals determined that, because the associate was legally unavailable as a witness before, her testimony was newly discovered evidence and her failure to testify was not due to the defendant's lack of diligence. (Id. at p. 487.) Shoals, however, determined that this witness's testimony would not contradict the strongest evidence introduced against the defendant at trial, so it affirmed the trial court's denial of a motion for new trial. (Id. at pp. 488-489.)
Second, in Martinez, supra, 36 Cal.3d 816, after the defendant was convicted for second degree burglary, he produced a new witness to support his motion for new trial. The trial court denied the motion, determining the defense did not use due diligence to locate this witness and the jury would not have reached any different verdict. (Id. at p. 821.) On appeal, however, the Martinez court determined that this new testimony contradicted the strongest evidence introduced against the defendant. (Id. at p. 823.) Although this witness should have been known to the defense, the high court refused to permit defense counsel's lack of diligence to bar the defendant from presenting this new evidence. Such an outcome would result in "a manifest miscarriage of justice. [Citation.]" (Id. at p. 826.) The judgment was reversed. (Id. at p. 827.)
Finally, in Williams, supra, 57 Cal.2d 263, the defendant was convicted of first degree robbery. (Id. at p. 265.) He filed a motion for a new trial, arguing a new witness would testify in a way that probably would lead to a different result on a retrial. (Id. at pp. 270-271.) It was undisputed that the defendant had been aware of this witness, but he had failed to inform his defense counsel about her possible testimony because he believed she would not want to help him. (Id. at p. 272.) Our Supreme Court held that facts are not "'newly discovered'" if the defendant knew about them at the time of trial, even if the defendant did not make those facts known to his counsel until later. (Williams, supra, 57 Cal.2d at p. 273, citing People v. Greenwood (1957) 47 Cal.2d 819, 822.) The word "diligence" is incapable of exact definition but must be determined from the unique circumstances of each case. (Williams, supra, 57 Cal.2d at p. 273.) Williams found that the defendant had not received a fair trial and this new testimony could reasonably result in a different outcome on retrial. (Id. at p. 275.) The new evidence also suggested a "deliberate scheme" from certain witnesses to produce false evidence against the defendant. (Ibid.) Based on the "very unusual facts" in this case, the high court found an abuse of discretion when the trial court denied a motion for a new trial. (Ibid.)
Here, appellant's three cited authorities do not establish an abuse of discretion in this matter. During the hearing for the new trial motion, appellant's counsel admitted that appellant had been aware of this disputed photograph before trial commenced. Under these circumstances, we agree with the trial court that this photograph was not newly discovered evidence. Facts are not "'newly discovered'" if the defendant knew about them at the time of trial, even if the defendant did not make those facts known to his counsel until later. (Williams, supra, 57 Cal.2d at p. 273; accord People v. Greenwood, supra, 47 Cal.2d at p. 822.)
Further, appellant's cited authorities are factually distinguishable. Unlike in Shoals, where the witness had invoked her privilege against self-incrimination, the photograph was available but appellant made no attempt to introduce it at trial. Unlike in Martinez, where defense counsel demonstrated a lack of due diligence, appellant was aware of this evidence but failed to inform his counsel. Unlike in Williams, where the defendant failed to inform his counsel about the new evidence, nothing suggests a "deliberate scheme" to produce false evidence against appellant or that he received an unfair trial. (Williams, supra, 57 Cal.2d at p. 275.)
Based on this record, we do not discern an abuse of discretion when the trial court denied the motion. The photograph was not newly discovered evidence. In any event, we also determine that it is not reasonably probable appellant would have obtained a more favorable result had this evidence been produced at a retrial.
2. It is not reasonably probable appellant would have obtained a more favorable result.
When a defendant makes a motion for a new trial based on newly discovered evidence, the defendant bears the burden to establish that a different result is probable on retrial. That is, "at least one juror would have voted to find him not guilty had the new evidence been presented." (People v. Soojian (2010) 190 Cal.App.4th 491, 521.) "'"[A] motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant."' [Citation.]" (People v. Hall (2010) 187 Cal.App.4th 282, 298.)
Here, although appellant disputed that he was a Norteño gang member, it is not reasonably probable he would have received a more favorable outcome had the jury seen a photograph confirming he had the Soldado tattoo before this jail assault. The evidence overwhelmingly suggested that appellant committed this crime in association with the Norteño criminal street gang. The jury saw the video depicting appellant's concerted actions with Huddleston both before and after this attack. Appellant and Huddleston entered the victim's cell together. Appellant admitted holding the victim in "a full Nelson" while Huddleston struck the victim over his head. After the assault, they passed clothing to other inmates, who took it away.
The prosecution's gang expert opined at trial that both appellant and Huddleston were Norteño gang members when this crime occurred. Based on a hypothetical mirroring the facts of appellant's jail assault, the gang expert opined that the assault was done to benefit a criminal street gang, it was committed in association with a criminal street gang, and it was done to promote felonious conduct by gang members.
Based on this record, the photograph of appellant's tattoo does not contradict the strongest evidence introduced against him regarding the gang enhancement alleged in count 21. The imposition of this gang enhancement was based on more than appellant's mere gang membership. It is not reasonably probable the jurors would have decided the gang enhancement favorably for appellant had the photograph been introduced at trial. As such, the trial court's ruling was not arbitrary, capricious or patently absurd resulting in a manifest miscarriage of justice. Accordingly, an abuse of discretion is not present and this claim fails. IV. A Brady Violation Did Not Occur Regarding The Photograph.
Appellant claims that the prosecution suppressed favorable evidence when it did not disclose the photograph depicting appellant with the Soldado tattoo. He contends the prosecution violated Brady in failing to disclose this photograph. We disagree.
In Brady, the high court held that the prosecution's suppression of favorable evidence to an accused upon request violates due process, irrespective of the prosecution's good or bad faith, if the evidence is material to either guilt or punishment. (Brady, supra, 373 U.S. at p. 87.) The defendant has the burden of showing materiality. (In re Sassounian (1995) 9 Cal.4th 535, 545.) "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) On appeal, we independently review a Brady claim. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
Appellant's present claim fails for two reasons. First, under Brady, materiality requires more than showing the suppressed evidence would have been admissible or that its absence made conviction more likely. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 176.) Instead, under Brady, evidence is material if it is reasonably probable the results would have been different had the evidence been disclosed. (Smith v. Cain (2012) 565 U.S. 73, 75; accord People v. Salazar, supra, 35 Cal.4th at p. 1043 [a Brady violation requires nondisclosure so serious that there is a reasonable probability the suppressed evidence would have produced a different verdict].) We do not engage in a sufficiency of evidence test in analyzing a Brady claim. (Kyles v. Whitley (1995) 514 U.S. 419, 434.) Instead, we ask if the likelihood of a different result was great enough to undermine confidence in the outcome of the trial. (Smith v. Cain, at p. 75.)
Here, this disputed photograph was not "material" as defined by Brady and its progeny. (See Smith v. Cain, supra, 565 U.S. at p. 75; People v. Letner and Tobin, supra, 50 Cal.4th at p. 176; People v. Salazar, supra, 35 Cal.4th at p. 1043.) It is not reasonably probable the results would have been different had this photograph been disclosed. The likelihood of a different result is not great enough to undermine confidence in the outcome of this trial. (See Smith v. Cain, supra, 565 U.S. at p. 75.)
Second, "[a]lthough the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him. [Citation.] If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.]" (People v. Salazar, supra, 35 Cal.4th at pp. 1048-1049.) As such, evidence is not "suppressed" unless the defendant was unaware of it and could not have discovered it through reasonable diligence. (Id. at p. 1049.)
Here, even if this disputed photograph was material, a position we do not take, appellant was aware of it before trial. Appellant could have discovered this evidence through reasonable diligence. As such, this evidence was not suppressed for purposes of Brady. Accordingly, this record does not establish a true Brady violation and this claim fails.
V. A Limited Remand Is Required To Allow Appellant The Opportunity To Make A Record Of Information Relevant To His Eventual Youth Offender Parole Eligibility Hearing.
The parties agree, as do we, that a limited remand is required to afford appellant the opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing.
Section 3051, which became effective January 1, 2014, was enacted to bring juvenile sentencing into conformity with the limitations imposed by the Eighth Amendment. (Franklin, supra, 63 Cal.4th at p. 277.) As currently drafted, this statute provides a youth offender parole hearing for certain prison inmates during either their 15th, 20th, or 25th year of incarceration, depending on the length of the imposed prison sentence. (§ 3051, subd. (b)(1)-(4).) Effective January 1, 2016, this section applied to anyone who committed crimes when they were under 23 years of age. (Former § 3051, subd. (b)(1); Stats. 2015, ch. 471, § 1.) Section 3051 applies retrospectively to all eligible youth offenders regardless of the date of conviction. (Franklin, supra, 63 Cal.4th at p. 278.)
Here, appellant was about 19 years old when he committed the present offenses in January 2013. He was sentenced in this matter on April 14, 2016. Based on his age at the time of these crimes, appellant is eligible for a youth offender parole hearing during his 20th year of incarceration because his controlling offense involved a life term of less than 25 years to life. (§ 3051, subd. (b)(2).)
This sentencing record does not readily establish that appellant had a sufficient opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing. Although appellant's family made statements to the trial court regarding appellant's character, the parties did not discuss section 3051 at sentencing, and the probation report was silent on that issue. Appellant did not present any evaluations or testimony that may be relevant at his eventual youth offender parole hearing. As such, we agree with the parties that remand is appropriate.
In Franklin, the high court remanded "the matter to the trial court for a determination of whether [the defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The court stated that "[i]f the trial court determines that [the defendant] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the [Board of Parole Hearings], years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law.'" (Ibid.)
Under Franklin, this matter is remanded to give the parties the opportunity to make a record of information relevant to appellant's eventual youth offender parole eligibility hearing under section 3051.
VI. We Remand This Matter For The Trial Court To Exercise Its Discretion Regarding The Firearm Enhancements.
At the time of appellant's sentencing in this matter, section 12022.53 imposed a mandatory additional and consecutive term of imprisonment in the state prison for 10 years on any person who personally used a firearm in the commission of certain enumerated felonies or attempted felonies, including murder, robbery and carjacking. (Former § 12022.53, subds. (a)(1), (4), (5) & (b).)
On October 11, 2017, the Governor approved Senate Bill No. 620 (Stats. 2017, ch. 682), which amended, in part, section 12022.53. Under the amendment, a trial court now has discretion to strike or dismiss these firearm enhancements otherwise required to be imposed at the time of sentencing. (§ 12022.53, subd. (h).) Via supplemental briefing, the parties agree, as do we, that this amendment applies retroactively to appellant because his case is not yet final. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
Although respondent agrees this amendment applies in this situation, respondent asserts that remand is unnecessary. Respondent claims there is no reasonable probability the trial court would exercise its discretion to strike appellant's firearm enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [finding it unnecessary to remand matter for trial court to consider retroactive discretionary authority].)
To support its position, respondent notes that appellant used a shotgun in a crime spree that included attempted murder, robberies, attempted robberies, carjackings, and attempted carjackings. Appellant fired his shotgun at the convenience store owner. At sentencing, the trial court stated there were a number of circumstances in aggravation and none in mitigation. Appellant engaged in violent conduct that indicated a serious danger to society. The court imposed the upper term on the attempted murder conviction. For all of these reasons, respondent contends it is "clear" no court would strike appellant's firearm enhancements. We disagree that remand is unnecessary.
Although it appears unlikely the trial court will strike or dismiss the imposed firearm enhancements, we are already remanding this matter for further proceedings pursuant to Franklin, supra, 63 Cal.4th 261. It is unknown what additional information, if any, may be presented in the Franklin hearing that could impact the trial court's discretionary authority to strike appellant's firearm enhancement. Accordingly, we remand this issue in the interests of justice.
We take no position regarding how the trial court should exercise its discretion. --------
DISPOSITION
The convictions in counts 12 and 13 are reversed. We remand this matter for resentencing. At resentencing, the trial court shall determine whether appellant was afforded an adequate opportunity to make a record of information that will be relevant to his eventual youth offender parole eligibility hearing and, if not, to allow the parties an adequate opportunity make such a record consistent with Franklin, supra, 63 Cal.4th at p. 284. The court shall also consider whether to strike or dismiss the firearm enhancements pursuant to section 12022.53, subdivision (h). Following resentencing, the court shall forward amended abstracts of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
FRANSON, J.