Opinion
D073858
09-07-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHION DARBY, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR022074) APPEAL from a judgment of the Superior Court of San Bernardino County, J. David Mazurek, John M. Pacheco, and Harold T. Wilson, Jr., Judges. Affirmed in part; reversed in part, and remanded with directions. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Michion Darby of first degree murder (count 1; Pen. Code, § 187, subd. (a)), robbery (count 2; § 211), attempted robbery (count 3; §§ 664, 211), shooting at an occupied vehicle (count 4; § 246), felon in possession of a firearm (count 5; § 29800, subd. (a)(1)), and street terrorism (count 7; § 186.22, subd. (a)). The jury found true various gang, great bodily injury, and firearm allegations related to counts one through five within the meaning of sections 186.22, subdivision (b); 12022.5, subdivision (a); and 12022.53, subdivisions (b)-(e)(1). The court sentenced Darby to an indeterminate term of 50 years to life plus a determinate term of seven years. On appeal, Darby raises various arguments challenging his conviction and sentence. We conclude that Darby's conviction for attempted robbery (count 3) must be stricken and that there is insufficient evidence to support Darby's conviction for street terrorism (count 7). We also conclude that Darby's sentence must be vacated and remanded for resentencing under section 12022.53, subdivision (h). In all other respects, we affirm the judgment.
All statutory references are to the Penal Code.
BACKGROUND
On the night of January 27, 2016, Rocky Holmes was shot and killed at the intersection of 21st Street and Reedy in San Bernardino, a neighborhood that is reputed to be the heart of Ally Boyz gang territory. Holmes, an Aryan Brotherhood gang member known as the "weed man," was a marijuana dealer. Darby, a member of the Pasadena Denver Lanes (PDL) gang, knew Holmes and had recent contact with him. Jamarius "Mario" Cole, an Ally Boyz member or associate known as "Baby Killer," was in contact with both Holmes and Darby the evening of the murder. The prosecution argued Cole had arranged for Holmes to come to the designated location, where he was confronted and killed by Darby and Tyler Jones, a member of the Ally Boyz gang known as "Big Killer." Darby and Jones thought Holmes would have "pounds of weed in the trunk of his vehicle."
Authorities arriving at the scene found Holmes in the driver's seat of his vehicle (a silver Honda sedan) with multiple gunshot wounds to the head, abdomen, and leg. A small bag of marijuana, two marijuana cigarettes, several plastic "baggies," "pay and owe" sheets, and a gram scale were found in the vehicle; however, no large quantities of drugs or cash were found. Holmes died at the hospital the following day from gunshot wounds to the head and abdomen.
A. Trial Testimony
1. A.W.
A.W. witnessed the shooting, which took place just outside her home. She had not lived in the area long before learning that she had unwittingly moved into Ally Boyz gang territory. According to A.W., "[d]rive-bys, drug raids, beat-downs in the street because somebody owed somebody else some money or, you know, prostitution," were commonplace in the neighborhood, mostly perpetrated by "teenagers with some young adults included."
On the night of the shooting, A.W. saw two Black men in a black vehicle parked next to Holmes's silver sedan. A.W. then saw Darby standing next to the front passenger side of Holmes's vehicle. From inside her home at an open window, A.W. heard Holmes and Darby exchange words before she saw Darby pull out a gun and shoot it at Holmes, who was seated in the driver's seat of his car. Another man emerged from the black car Darby had been in; that man also started shooting. When bullets struck A.W.'s vehicle, which was parked nearby, she began to yell and went outside. She heard Holmes say, "Don't let them get my package" and "Where's my package?" before he slumped over the steering wheel. A.W. testified that a person she knew as "Killer" and "Big Killer" was at the scene during the shooting. She noticed him after Darby's car pulled away "because he was laughing so hard."
After witnessing the incident, A.W. rode in a police car to the police station, where she met with Detective Oldendorf, a homicide detective with the San Bernardino Police Department assigned to investigate the case.
A.W. was hesitant to participate in the subsequent police investigation of the crime. She initially declined to pick Darby's image from a photographic array, but she later contacted authorities, informed them that she would identify the suspect, and identified Darby from the same photographic array. She testified that she initially declined to identify Darby out of fear. After she spoke with the police, the tires on her car were slashed. She and her daughter were threatened, with neighbors telling her that "[t]hey're gonna get you," "[y]ou're a snitch," and "[snitches] don't last too long around here." She testified that she was afraid of Darby because of the "gang association." A.W. and her daughter ultimately moved away from the neighborhood because she feared for their safety.
2. L.H.
L.H. also witnessed the shooting; her brother lived in the neighborhood, and she was driving to his home on 21st Street that night. She noticed a car parked on the side of the street with its headlights on. She pulled past it and into her brother's driveway. While in her car attempting to contact her brother by cell phone, she heard two "booms" and saw embers in the corner of her eye. She turned and saw a White man fall to the ground just outside the parked silver car. She saw a Black man run from the scene. The White man got back into the driver's seat of the silver car after falling to the ground; the car started to slowly roll forward. Within seconds, the Black man returned. L.H. quickly drove away. As she fled she heard more gunfire and, in her mirror, saw the Black man trying to enter the driver's side of the White male's vehicle as it started to roll forward. When she returned to her brother's home shortly thereafter, she saw a security guard approach the parked car. A crowd formed in the area, but the crowd dissipated when police arrived.
3. G.R.
G.R., who lived in the neighborhood, knew Darby as "Meechi" and Jones as "Killer" and "Big Killer." She did not socialize with them, but she knew them from the neighborhood. Jones claimed to be an Ally Boyz gang member; Darby claimed to be a member of PDL.
After the shooting, Darby and Jones separately arrived at her home and changed their clothes. Jones had a gun; G.R. was afraid of him. Darby did not have a gun; G.R. "didn't fear so much about Meechi." Darby appeared to be afraid of Jones.
Darby and Jones stayed for several days. Jones told G.R. he shot the victim three times and he had somebody ransack the victim's car. In Darby's presence, Jones told G.R. that Holmes "wouldn't give up the weed" so he killed him. Also in Darby's presence, Jones told G.R. that Holmes was shot in the head and in the leg as Holmes sat behind the wheel of his car, and that Holmes tried to drive off after the shots started and that was when Darby shot at Holmes. Jones was angry with Darby and told Darby he had not done what Jones had told him to do. At the time of the shooting, Darby and Jones did not know the victim was from a prison gang known as the Aryan Brotherhood; "[a]ll they knew was he sold weed."
Cole, known as "Baby Killer," came to G.R.'s home on a separate occasion after the shooting, when Darby and Jones were not there. She testified Cole was frightened because "his phone was being used" and he left his phone in the victim's car.
After the incident, G.R. and her family moved away from the neighborhood because she feared for their safety and was "afraid of threats." She was afraid to testify, and she was afraid someone was going to hurt her family as a result of her testimony.
Detective Oldendorf later testified that, when he observed G.R.'s testimony in court, he saw Darby touching his chin and using his index finger to wipe the teardrop tattoos near his eye, which he perceived to be "a very subtle sign of intimidation." He remarked that, while he believed this intimidated G.R., it "didn't change her story."
4. K.R.
K.R. testified that he "used to be" an Ally Boyz gang member. His moniker was "Lil Kill." He knew Darby, who goes by the name of "Meechi," from "the neighborhood." He also knew Jones, and knew him to be an Ally Boyz gang member with the moniker "Big Killer." K.R. also knew Cole, whose moniker was "Baby Killer." When asked whether Cole was a member or associate of Ally Boyz, K.R. testified:
"A. He [Cole] was from the clique. I was under it.
Q. Can you explain that?
A. I don't know how to explain it. It's like a party clique and they—
Q He hung out sometimes?
A. Yeah.
[¶] . . . [¶]
Q. So not an associate and not a member, but someone who hung out in a party-type setting?
A. Yes, ma'am.
Q. All right. What about Mr. Darby? Is he Ally Boyz or some other gang or nothing?
A. Some other gang. I don't know.
Q. Have you heard of the gang Pasadena Denver Lanes or PDL?
A. Yes, ma'am.
Q. Is he a PDL member?
A. No idea."
When asked how many Ally Boyz gang members there were in January 2016, K.R. testified that there were "like 30, 40 running the streets."
K.R. testified that he hung out with Darby and Jones and listened to them discussing a robbery that had gone wrong, and stating that they took Cole with them to commit the robbery. While Darby was present, Jones said "the lick"—meaning the robbery—"went all the way south" and Darby "aired [the victim] out"—meaning shot him numerous times. Darby and Jones thought Holmes was supposed to have pounds of weed in the trunk of his vehicle. Darby and Jones said "a thick lady who lived on the corner" had seen everything and talked to the police. They "found out" Holmes was an Aryan Brotherhood gang member and feared retaliation.
Detective Oldendorf testified that, when he had interviewed K.R. during his investigation, K.R. had said that both Darby and Jones talked about the robbery as "a lick and that the lick went all the way south." K.R. had also told Detective Oldendorf that both Darby and Jones had told him that they planned "the lick" and both had indicated "that Meechi aired out the victim."
5. Law Enforcement Testimony Regarding Cell Phone Records
The parties stipulated that cell phone records for three telephone numbers were obtained by warrant during the police investigation; two of the phone numbers belonged to Holmes and Cole, respectively. A San Bernardino County Sheriff's Department deputy's testimony connected Darby to the third number. The deputy testified that Darby was interviewed as a potential witness in connection with the investigation of a residential burglary just days before Holmes was murdered; during that interview, Darby's phone number, which matched the third phone number, was collected and listed in the police report.
Detective Oldendorf testified that he had reviewed the cell phone records; they showed that between December 15, 2015 and January 25, 2016, there were approximately 15 to 20 calls and texts each day between Darby and Holmes; however, communication between their phones stopped on about January 25. On the day of the shooting (January 27), there were six phone calls between Cole and Holmes.
A special agent with the FBI testified that he analyzed cell phone records from the evening of the shooting for the three telephone numbers. The records indicated that Holmes's cell phone traveled from the Riverside County border around 8:56 p.m. to the vicinity of the crime scene around 9:12 p.m. Holmes called Cole three times that evening. Around 9:17 p.m. there were "quite a number of calls" from Cole to Holmes. Seven calls and text messages were made between Cole and Darby between 6:18 p.m. and 11:36 p.m. that evening.
6. Detective Oldendorf
Detective Oldendorf is a homicide detective with the San Bernardino Police Department whose professional background includes training and experience involving gang graffiti and gang investigations. He has previously testified as a gang expert, provided training for the San Bernardino Police Department and others regarding gang-related offenses, and participated as a board member of the Southern California Graffiti Task Force.
Detective Oldendorf was familiar with the Ally Boyz gang and testified that 21st Street and Reedy was "the heart of Ally Boyz turf." He remarked, "Ally Boyz are a gang that's made up of members from numerous gangs."
"Q. [Y]ou mentioned that the Ally Boyz is comprised of sort of a hodgepodge of—of different gang members.
A. I've contacted members that are from LA such as Compton, Pasadena, Alta Dena, Altadena Blocc Crips, Compton Crips, again Pasadena Denver Lanes, Pomona Mafia Crips. So there's—what generally in that area is the Ally Boyz are made up of gang members from multiple locations.
Q. Okay. So it's a group of gang members who work together from multiple locations. Do they work together in committing crimes?
A. They can, yes."
Detective Oldendorf testified that rival gang graffiti within Ally Boyz territory was observed to be crossed out, whereas PDL graffiti was not crossed out on the night of the incident.
"Q. What does that tell you based on your background, training, and experience and investigating gang cases, specifically Ally Boyz and PDL?
A. That they're—there are members of the Pasadena Denver Lanes that live in, congregate in that area that feel comfortable enough to apply that graffiti and can do so without it being disturbed."
Detective Oldendorf knew Darby from previous police contacts; Darby had previously identified himself as being a PDL gang member. Detective Oldendorf observed that Darby had three-inch large tattoos of the letters "D" and "L" "on the back of his head signifying Denver Lanes."
Detective Oldendorf was assigned to the case as lead detective, which required him to report to the crime scene to investigate and interview witnesses, and then to oversee the investigation. When he initially responded to the area of the shooting, he recognized Darby walking toward the crime scene. Darby was 10 or 15 feet from the victim's car when Detective Oldendorf "told him he couldn't walk that way and go back home." Darby left.
Detective Oldendorf opined that evidence from the crime scene indicated to him that Holmes was involved in marijuana sales activity and that marijuana had been removed from the scene.
7. Officer Smith
Officer Smith, a police officer with the San Bernardino Police Department's special enforcement team, testified that, in 2015, he spoke with Jones, who self-identified as a member of the Ally Boyz gang. Smith subsequently filled out an "FI card" or gang card indicating Jones was a member of Ally Boyz. At the time Smith contacted Jones, Jones was with D.J., who also self-identified as Ally Boyz, and D.B., who did not self-identify as Ally Boyz and who had a Hollister bird tattoo on his neck.
8. Officer Hysen
Officer Hysen, an officer with the San Bernardino Police Department, testified he had received training and obtained experience relating to gang activity, culture, and history, and that he had previously testified in court as a gang expert. He testified that one of the ways to join a gang is to "put in work," or commit crimes for the gang. This increases one's status and power within the gang. Gangs generally use violence to spawn fear and intimidation within their communities, which benefits the gang by increasing its power. An individual's association with a gang can be "formal, informal, or both."
Officer Hysen testified that the Ally Boyz gang came into existence in the early 2000's; the gang has "over a dozen" identified members who inhabit and control a particular neighborhood in San Bernardino. Ally Boyz members often display the letters "A" and "B" and identify with the Anaheim Angels baseball team. Primary activities of the Ally Boyz include shootings, robberies, possession of firearms, and burglaries. Ally Boyz is a violent gang; a gang called Touch Money is one of their rivals. Officer Hysen described Ally Boyz as a Black gang; Black gangs are generally rivals with White supremacist gangs. Officer Hysen described 21st Street and Reedy as "the heart of Ally Boyz territory."
Regarding Ally Boyz, the prosecutor asked, "would you describe them as—as strictly one—strictly one group of persons or does it include mult—members from multiple different gangs? Do you understand what I'm saying? Like a hodgepodge?" The following exchange then occurred:
"A. Yes. They—they will include members of other gangs into their gang.
Q. Okay. And what are some of those other members?
A. What gangs?
Q. Yes, what other gangs? Yes.
A. PDL, Pasadena Denver Lanes.
Q. Okay. So if a person is a member of—if a person claims to be PDL, can they also associate and work with Ally Boyz?
A. Yes, they can.
Q. In fact, they can actually be a part of Ally Boyz—be a part of both PDL and Ally Boyz; is that correct?
A. Correct."
Officer Hysen testified that PDL originated in Pasadena in the 1980's. PDL is known as "Pasadena Denver Lanes," "DL," "Denver," "Denva," "Lanes," and "[a]ny of the combinations of Pasadena Denver Lanes, and also the 'Blood' tied with it 'cause they're a Blood gang." PDL's common symbol is primarily the letter "P," but also the letters "D" and "L," and sometimes "PDL" together. PDL has 70 to 80 documented members in the city of San Bernardino. Their primary activities include shootings, attempted murders, possession of illegal firearms, and robberies. PDL is known as a violent gang; a gang called Du Roc and other Crip gangs are their rivals.
Officer Hysen acknowledged that D.B. had a Hollister bird tattoo on his neck. D.B.'s FI card indicates he is an Ally Boyz gang member. Officer Hysen testified that Darby also has a Hollister tattoo on his neck.
Like Detective Oldendorf, Officer Hysen testified about the significance of PDL graffiti within Ally Boyz territory. Officer Hysen explained graffiti is like "advertisement" and crossing a gang's name out is a sign of disrespect. When asked what it would mean to have PDL graffiti left alone, without being crossed out, in Ally Boyz territory, Officer Hysen responded: "That tells me PDL is good to be in Ally Boyz' turf. And by 'good,' I mean Ally Boyz are okay with PDL. They get along with them. There's some sort of relationship established, an alliance of some sort."
Officer Hysen then observed a photograph depicting PDL graffiti within Ally Boyz territory on the night of the incident. After noting that the PDL graffiti depicted in the photograph was left untouched in Ally Boyz territory, the prosecutor asked if this showed the gangs were working together and Officer Hysen responded affirmatively.
"Q. Okay. And does the fact that—that a PDL gang member is able to tag 'PDL' in the heart of Ally Boyz' gang territory indicate to you that Ally Boyz and PDL are still working together?
A. Yes.
Q. And certainly at the time of these photos were taken; correct?
A. Yes.
Q. And the time that we actually see the 'PDL' on the canister, if the photograph was taken at the date, the time of the incident that occurred on January 27th, 2016, would that indicate to you as well that they were actually—the gangs were still associating with one another?
A. Yes."
In another photograph, Hysen observed a group of men including Jayshaun Lindsey, whose prior conviction was offered as one of the predicate offenses in this action. Hysen opined that, "you are looking at a picture of Ally Boyz gang members. You've got Anaheim Angels' apparel clothing. You got an 'A' on the jacket of Mr. Lindsey and you got a gang sign with his left hands holding it up. It's the form of an 'A.' " Hysen explained that this was "a common hand signal to represent the Ally Boyz gang members." In another photograph, Hysen again recognized Jayshaun Lindsey "throwing gang signs at the intersection of 21st and Reedy," the heart of Ally Boyz gang territory.
Officer Hysen recognized D.B. in a photograph where he was wearing an Anaheim Angels' T-shirt with an "A," which Hysen testified indicated Ally Boyz. Officer Hysen also acknowledged that D.B.'s FI (gang) card indicated he was a member of Ally Boyz.
Officer Hysen recognized Darby and D.B. together in a photograph. In another photograph, Hysen observed Darby, Jones, and D.B. together; he identified the neighborhood in which the photo was taken as Ally Boyz territory. Officer Hysen recognized Jones in another photograph with O.B., who Hysen indicated was a PDL gang member. Hysen also observed a photograph of Darby with O.B.
Officer Hysen observed a photograph of Darby from his Facebook page; another individual in the photograph was holding a firearm directed toward the photographer. Officer Hysen observed that Darby's Facebook page indicated that he went by the names "Pasadena Meech" and "Denva Meech." In another photograph of Darby and others, Officer Hysen indicated "they're doing some hand signs." Observing another photograph of Darby, Officer Hysen pointed out: "this is a background picture of a funeral. And we got Hollister on the sweatpants. And the T-shirts to the left of the subject in the sweatpants is 'rest in peace.' I don't recall the name, but the Hollister bird there again. Again just shows that common symbol between now we've seen on PDL and Ally Boyz members [sic]." He opined that this shows "their allegiance to one another or alliance together."
The prosecutor asked, "And I think that the way that you put it initially was—and correct me if I'm wrong—that—that Ally Boyz is really a hodgepodge. It's a bunch of different groups that identify both with Ally Boyz and with their—maybe another gang that they may have come from and some of them are just homegrown Ally Boyz; is that correct?" The following exchange occurred:
"A. Correct.
Q. Okay. But they work as one together as part of an umbrella; is that right?
A. Yes.
Q. Okay. But not—is it an umbrella in the traditional gang umbrella sense or is it really just one gang, Ally Boyz, but they also can have connections to, let's say, PDL?
A. Yeah. It's more of a mutual coming together versus like a higher [sic] of any sort.
Q. So they belong to both gangs?
A. Yes."
Officer Hysen explained that there was a strategic advantage to the Ally Boyz working along with PDL in committing crimes and that the alliance benefited both gangs. It benefitted Ally Boyz, the smaller gang, to have the support of a larger gang like PDL. It benefitted PDL by showing the far reach of the Pasadena-based gang, and it helped them gain dominance and control in Ally Boyz territory.
Officer Hysen testified that he "previously [had] personal contact with" Darby in June of 2014. "[W]e had a conversation where he admitted to me his gang membership, even getting into a little bit of why you join the gangs, some of the history." Darby told Officer Hysen his moniker was "Meechi." Officer Hysen opined that Darby is a member of PDL. "My opinion is [based] strongly on the fact that he told me and his—his tattoos that he's got and the photographs that we've seen."
Officer Hysen opined that Jones is a member of Ally Boyz. This opinion was based on photographs, officer contacts, and his self-admission that he is a member of Ally Boyz.
Officer Hysen testified that, during a jail call, Darby was overheard telling his brother, "Fuck Niga. There's so much shit I do for the hood, Bro. I end up in the ugliest predicaments . . . ." Officer Hysen opined that this statement was a reference to the "work" a gang member was required to "put in . . . for [his] gang [and] [¶] . . . [¶] for the hood."
Officer Hysen testified as to predicate convictions involving three Ally Boyz members whose crimes were gang-related under section 186.22, subdivision (b). He further testified as to predicate convictions involving three PDL members whose crimes were committed in San Bernardino and were gang-related under section 186.22, subdivision (b).
Officer Hysen opined that a hypothetical crime based on the same facts as the robbery and murder of Rocky Holmes would benefit both the Ally Boyz and PDL gangs. Ally Boyz would benefit from PDL support and from the fear and intimidation instilled in the community, which would allow them more secure control of their neighborhood. PDL would benefit by gaining dominance and control in Ally Boyz territory and by demonstrating the far-reaching abilities of their Pasadena-based gang to commit crimes in a location so far from Pasadena.
B. Conviction and Sentencing
A jury convicted Darby in count 1 of first degree murder (§ 187, subd. (a)) and found true allegations that he personally used a firearm (§ 12022.53, subd. (b)); personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); committed the murder for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)); and committed the murder for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members, and that a principal personally used a firearm in the commission of the crime, and that a principal personally and intentionally used a firearm causing death in the commission of the crime (§§ 186.22, subd. (b), 12022.53, subds. (b)-(e)). The jury found not true the allegation that Darby personally and intentionally discharged a firearm causing death in connection with the murder (§ 12022.53, subd. (d)).
The jury convicted Darby in counts 2 and 3 of robbery and attempted robbery (§§ 211, 664) and found true allegations that he personally used a firearm (§ 12022.53, subd. (b)); personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); committed the robbery or attempted robbery for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)); and committed the robbery or attempted robbery for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members, and that a principal personally used a firearm in the commission of the crime, and that a principal personally and intentionally used a firearm causing death in the commission of the crime (§§ 186.22, subd. (b), 12022.53, subds. (b)-(e)). The jury found not true the allegation that Darby personally and intentionally discharged a firearm causing death in connection with the robbery or attempted robbery (§ 12022.53, subd. (d)).
The jury convicted Darby in count 4 of shooting at an occupied vehicle (§ 246) and found true allegations that he personally used a firearm (§ 12022.53, subd. (b)); personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and that he committed the shooting for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)). The jury found not true the allegation that Darby personally and intentionally discharged a firearm causing death in connection with the shooting (§ 12022.53, subd. (d)).
The jury convicted Darby in count 5 of the crime felon in possession of a firearm and found true the allegation that he committed the crime for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)).
Finally, the jury convicted Darby in count 7 of street terrorism (§ 186.22, subd. (a)).
The parties stipulated that Darby had a prior felony conviction. Darby waived his right to a probation report.
The prior felony conviction is not reflected in the abstract of judgment.
The trial court sentenced Darby to an indeterminate term of 50 years to life plus a determinate term of seven years, as follows: On count 1, the trial court imposed an indeterminate term of 25 years to life plus a consecutive 25-year-to-life term for the principal firearm enhancement under section 12022.53, subdivisions (d), (e)(1). On count 5, the trial court imposed three years plus a consecutive four-year term for the gang enhancement under section 186.22, subdivision (b) for a total of seven years. The court also imposed and stayed under section 654 the following terms: five years on count 2; three years on count 3; seven years on count 4; three years on count 7; and the balance of the firearm and gang enhancements.
Darby appeals, contending: (1) reversal of the attempted robbery conviction in count 3 is warranted because it is a lesser included offense of robbery in count 2, involving the same act and course of conduct; (2) there is insufficient evidence to sustain his street terrorism conviction in count 7; (3) the principal firearm enhancements under section 12022.53, subdivisions (d) and (e)(1) in counts 1, 2, and 3 must be stricken because they were not alleged in the information; and (4) remand for resentencing is required under newly effective section 12022.53, subdivision (h).
DISCUSSION
A. Darby's Conviction for Attempted Robbery Must Be Stricken
Darby contends his conviction for attempted robbery requires reversal because attempted robbery is a lesser included offense of robbery, for which he was also convicted, and both convictions are based on the same acts. The Attorney General concedes the argument and agrees that Darby's conviction and sentence for attempted robbery should be stricken. We accept the concession.
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed); §§ 954, 654, subd. (a).) "A judicially created exception to the general rule permitting multiple convictions 'prohibits multiple convictions based on necessarily included offenses.' " (Reed, at p. 1227.) We use the elements test to determine whether one offense is necessarily included in another. (Id. at p. 1231.) "[I]f the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id. at p. 1227.) An attempt to commit a crime is a lesser included offense of the completed crime if the completed crime is one that, like robbery, requires a specific intent, such that "an attempt to commit an offense may be distinguished from the substantive offense solely by the failure to complete the actus reus." (People v. Ngo (2014) 225 Cal.App.4th 126, 156; see People v. Clark (2011) 52 Cal.4th 856, 943 [robbery requires a showing that defendant took personal property in the possession of another from his person or immediate presence, against his will, by means of force or fear, with the specific intent permanently to deprive him of such property]; § 21a ["An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission."].) As such, attempted robbery is a lesser included offense of the crime of robbery. (See, e.g., People v. Webster (1991) 54 Cal.3d 411, 443 [indicating court properly instructed jury on robbery and lesser included offense of attempted robbery]; People v. Crary (1968) 265 Cal.App.2d 534, 540 ["An attempt to commit robbery is for all intents and purposes treated as a lesser included offense of the crime of robbery."].)
Because Darby's convictions for robbery and attempted robbery are based on the same acts and course of conduct, convictions for both the completed and attempted crimes violate the prohibition against multiple convictions based on necessarily included offenses. As such, Darby's conviction and sentence for attempted robbery (count 3) must be stricken. (People v. Medina (2007) 41 Cal.4th 685, 702-703.)
B. The Criminal Street Gang Conviction Must Be Reversed for Insufficient Evidence, but the Gang Enhancements Are Affirmed
Darby contends his substantive gang offense (count 7, § 186.22, subd. (a)) requires reversal because the evidence is insufficient to support it. We agree with Darby that there is insufficient evidence to support the substantive gang offense, but we affirm the gang enhancements associated with counts 1-5, section 186.22, subdivision (b).
1. Applicable Law
Section 186.22 includes a substantive gang offense under subdivision (a), as well as gang enhancement provisions under subdivision (b). Under section 186.22, subdivision (a), the substantive crime is committed by any "person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . ." (§ 186.22, subd. (a), italics added; see also People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 (Rodriguez) [" '[T]hat gang' [under subdivision (a)] clearly refers back to the gang in which the defendant is an active participant."].)
"The elements of the gang participation offense in section 186.22(a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Rodriguez, supra, 55 Cal.4th at p. 1130.)
The enhancement provisions apply when an offense is committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b), italics added.) "Unlike the substantive offense, the enhancement does not require proof of participation in a gang." (Rodriguez, supra, 55 Cal.4th at p. 1130, fn. 5 [enhancements apply (1) to gang-related offenses, (2) where the defendant acts "with the specific intent to promote, further, or assist any criminal conduct by gang members."].)
Section 186.22, subdivision (f) defines " 'criminal street gang' " as "any 'ongoing organization, association, or group of three or more persons' that shares a common name or common identifying symbol; that has as one of its 'primary activities' the commission of certain enumerated offenses; and 'whose members individually or collectively' have committed or attempted to commit certain predicate offenses." (People v. Prunty (2015) 62 Cal.4th 59, 67 (Prunty); § 186.22, subd. (f).)
When a reviewing court considers a claim that the evidence is insufficient to support a verdict, it considers the entire record in the light most favorable to the prosecution and presumes in support of the verdict the existence of every fact the jury could reasonably have deduced from the evidence. (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) "We apply a deferential standard of review when evaluating . . . whether the evidence in this case was sufficient to satisfy the [Street Terrorism Enforcement and Prevention] Act's definition." (Prunty, supra, 62 Cal.4th at p. 71.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
2. Substantive Gang Offense
Darby contends there is insufficient evidence to support his active gang participation conviction because he was a member of the PDL gang, while alleged accomplices Jones and Cole were members of a different gang (Ally Boyz). The Attorney General offers two responses: (1) PDL gang members operating in Ally Boyz territory effectively act as members of the same Ally Boyz gang; and (2) PDL and Ally Boyz have formed an alliance with a shared common goal that is sufficient to satisfy the requirements of Prunty. The Attorney General relies on much of the same evidence to support each argument—i.e., the presence of undisturbed PDL graffiti in Ally Boyz territory, the use of a Hollister symbol by members of both gangs, and photographs depicting certain PDL and Ally Boyz gang members together. Because we conclude the evidence is insufficient to support either of the Attorney General's arguments, Darby's conviction for active participation in a criminal street gang must be reversed.
There is insufficient evidence to support the Attorney General's first argument that Darby was acting as a member of the same Ally Boyz gang as Jones or Cole. Contrary to the Attorney General's assertion, the evidence establishes that the perpetrators of the crime belonged to two different gangs, rather than effectively a single organization. It is undisputed that Darby was a member of the PDL gang, not Ally Boyz—G.R. testified that Darby claimed to be a member of PDL; K.R. testified that Darby was a member of a gang other than Ally Boyz; Detective Olendorf testified that Darby previously identified himself as being a PDL gang member; Officer Hysen opined that Darby was a member of PDL; and Darby had three-inch large tattoos of the letters "D" and "L" signifying the PDL gang. By contrast, Officer Hysen and Officer Smith opined that Jones was an Ally Boyz gang member, and K.R. testified that Jones was an Ally Boyz gang member while Cole was in the same Ally Boyz "clique."
The gang experts' testimony does not support the Attorney General's position that Darby was acting "effectively as an Ally Boyz gang member," or that "PDL gang members operating in Ally Boyz's territory effectively act as Ally Boyz gang members, that is as members of the same gang." To support these claims, the Attorney General relies on expert testimony that "a gang member who claims PDL can also work with and be an associate or member of Ally Boyz." But the gang experts merely stated the Ally Boyz gang includes members of other gangs—including but not limited to PDL—such that a person could be a member of both gangs. This testimony was conclusory and unsupported by any claim of actual cross-over gang membership, including any claim that Darby was a member of both gangs. A defendant must act with a member of his own gang to be convicted of a substantive gang offense. (People v. Velasco (2015) 235 Cal.App.4th 66, 78 (Velasco) ["[W]e interpret section 186.22, subdivision (a) as requiring the defendant to be acting with another member of the defendant's gang."].) Because the evidence only shows Darby acted with a member of another gang rather than his own, and the gang expert testimony does not establish Darby acted as an Ally Boyz gang member, the evidence supporting Darby's substantive gang conviction is insufficient.
As set forth above, the gang expert testimony was introduced through Detective Oldendorf and Officer Hysen. When Detective Oldendorf explained that "Ally Boyz are made up of gang members from multiple locations," the prosecutor asked if "they work together in committing crimes?" Detective Oldendorf merely responded, "They can, yes." When Officer Hysen testified that Ally Boyz "will include members of other gangs into their gang," the prosecutor asked "if a person claims to be PDL, can they also associate and work with Ally Boyz?" Officer Hysen merely responded, "Yes, they can."
The Attorney General's second argument—that PDL and Ally Boyz have formed an alliance and share a sufficient organizational or associational relationship under Prunty—is similarly deficient. The Supreme Court in Prunty considered the proof necessary to establish the existence of a "criminal street gang" when the prosecution's theory turns on the conduct of one or more gang subsets. (Prunty, supra, 62 Cal.4th at p. 67.) The Prunty court "conclude[d] that where the prosecution's case positing the existence of a single 'criminal street gang' . . . turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.) "The key is for the prosecution to present evidence supporting a fact finder's reasonable conclusion that multiple subsets are acting as a single 'organization, association, or group.' " (Id. at p. 80.)
Although the Attorney General cites the Prunty case, it is unclear whether Prunty applies to the factual scenario here because the prosecutor did not specifically proffer the predicate crimes of subset gang members to prove the existence of a criminal street gang. Rather, the prosecutor presented predicate crimes for both PDL and Ally Boyz gang members. And although the term "umbrella" gang was mentioned, Officer Hysen's testimony suggests he was using the term in a different sense than Prunty. Assuming Prunty does apply, we conclude evidence of the requisite associational or organizational connection uniting PDL and Ally Boyz was absent here.
For example, the prosecutor asked "[I]s it an umbrella in the traditional gang umbrella sense or is it really just one gang, Ally Boyz, but they also have connections to, let's say, PDL?" Officer Hysen responded, "Yeah. It's more of a mutual coming together versus like a higher of any sort." (Cf. Prunty, supra, 62 Cal.4th at p. 91 (conc. opn. of Corrigan, J.) [the issue arises "only when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang"].)
The Prunty court provided several examples of the types of evidence that can be used to demonstrate an associational relationship between a gang and its subsets. "Evidence—even indirect evidence—showing collaboration among subset members, long-term relationships among members of different subsets, use of the same 'turf,' behavior demonstrating a shared identity with one another or with a larger organization, and similar proof will show that individual subsets are part of a larger group, without running afoul of the Legislature's decision to embrace even groups based on informal relationships within the scope of the Act." (Prunty, supra, 62 Cal.4th at pp. 73-74.) "For instance, the evidence may show that members of different subsets have 'work[ed] in concert to commit a crime' [citation], or that members have strategized, formally or informally, to carry out their activities." (Id. at p. 78, fn. omitted.) "Even evidence of more informal associations, such as proof that members of two gang subsets 'hang out together' and 'back up each other,' can help demonstrate that the subsets' members have exchanged strategic information or otherwise taken part in the kinds of common activities that imply the existence of a genuinely shared venture." (Ibid.)
However, the Supreme Court made clear that certain evidence is insufficient to satisfy Prunty. For example, it is insufficient to show "merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization." (Prunty, supra, 62 Cal.4th at p. 79.) In addition, "a group must be united by more than shared colors, names, and other symbols." (Id. at p. 74.) "[A] common enemy (or similar evidence of a loose common ideology)" is insufficient, insofar as the statute's use of "the phrase 'organization, association, or group' suggests that subsets of a criminal street gang must be united by their activities, not simply by their viewpoints." (Id. at p. 75.)
Applying these principles, we conclude the proffered evidence—consisting of PDL graffiti in Ally Boyz territory, photographs of some PDL and Ally Boyz gang members together, and a Hollister symbol used by some PDL and Ally Boyz members—is insufficient under Prunty. The photograph of PDL graffiti in Ally Boyz territory was taken on the night of the murder, during the course of the investigation, at around 9:25 p.m. Although Officer Hysen testified that the presence of PDL's undisturbed graffiti in Ally Boyz territory would suggest the gangs were "working together" at the time the photo was taken, there was no testimony detailing when the PDL graffiti was sprayed or how long it had been there. Without more, the fact that a PDL member felt "comfortable enough to apply graffiti" is not sufficient to establish the requisite nexus between the two gangs within the meaning of Prunty. Photographs of some PDL and Ally Boyz gang members together is similarly insufficient. As with the graffiti, the photographs may demonstrate that members of different gangs coexisted within the same turf, but such evidence fails to demonstrate "a genuinely shared venture," "a larger association," or "collaborat[ion] to accomplish shared goals." (Prunty, supra, 62 Cal.4th at p. 78.) Similarly, the mere use of a common symbol such as the Hollister bird is insufficient to connect two gangs. (Id. at pp. 74-75.) Finally, the gang expert's testimony also was insufficient to connect the two gangs. Although Officer Hysen testified that PDL members "have committed crimes in and around the Ally Boyz' turf," he provided no evidence that PDL and Ally Boyz have collaborated with one another in committing any prior crimes.
As set forth above, Darby was in a photograph with Jones and another Ally Boyz gang member. There was also a photograph of Jones with a PDL gang member (O.B.), and a photograph of Darby with O.B.
The Hollister bird was on some unspecified person's sweatpants, as well as tattooed on Darby and D.B. Although the gang expert testified this was a shared symbol, there was also testimony that PDL and Ally Boyz used different gang symbols.
Attempting to show an adequate nexus between PDL and Ally Boyz, the Attorney General relies on People v. Ewing (2016) 244 Cal.App.4th 359 (Ewing), but this case is inapposite. In Ewing, the prosecution's theory was that the defendant actively participated in or associated with the Norteño criminal street gang regiment being set up in Redding around the time of the charged offenses. (Id. at p. 363.) Although the defendant denied belonging to the gang, the evidence established that he and his associates in crime were either members of or associated with the Norteño criminal street gang in Redding, a subset of the Norteño criminal street gang within the regimented criminal organization controlled by the Nuestra Familia prison gang. (Id. at pp. 374-377.) The prosecution demonstrated predicate offenses that had been committed by Norteños in Redding. (Id. at p. 375.) The court concluded the evidence established that "the gang members who committed the predicate crimes were associated with each other, with the Norteño criminal street gang, and with the higher Nuestra Familia prison gang, which oversaw the criminal activities of the Norteño street gang through the regimental rules" (id. at p. 376), and was thus sufficient to satisfy Prunty's requirement of a "single 'organization, association, or group.' " (Id. at p. 377.) The Nuestra Familia gang issued rules applying to the Norteño gang, and the defendant was following those rules in committing various offenses to generate money for the Nuestra Familia gang. (Id. at pp. 377-378.)
In contrast with Ewing, the evidence here established the existence of two separate and distinct gangs, not related subsets within a larger, regimented organization. There was no evidence that Darby was complying with organizational rules of a larger gang overseeing criminal activities of PDL or Ally Boyz members. The Ewing court also distinguished Velasco, supra, 235 Cal.App.4th 66, explaining "the record does not contain any evidence showing Bergara and defendant were members of two different gangs." (Ewing, supra, 244 Cal.App.4th at p. 377.) As already noted, the evidence in this case does establish Darby was a member of a different gang, making this case more analogous to Velasco.
In sum, there is insufficient evidence that PDL and Ally Boyz collaborate to accomplish shared goals, strategize to carry out activities, or profess or exhibit loyalty to one another, such that they may be considered "one and the same" gang. (Prunty, supra, 62 Cal.4th at p. 76; see id. at p. 78 [evidence must "support a fact finder's reasonable conclusion that a single organization, association, or group is present."].) Thus, Darby's conviction under section 186.22, subdivision (a) must be reversed.
3. Gang Enhancements
Although Darby's substantive gang offense must be reversed because there is insufficient evidence that he was acting as a member of the Ally Boyz gang, the requirements for a gang enhancement are different. Because the requirements have been met here, we affirm the gang enhancements.
Gang enhancements apply (1) to gang-related offenses, (2) where the defendant acts "with the specific intent to promote, further, or assist any criminal conduct by gang members . . . ." (§ 186.22, subd. (b).) Notably, "[t]he enhancement set forth in section 186.22(b)(1) does not . . . depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 67-68, italics added.) Accordingly, it was not necessary for the prosecution to prove that Darby was a member of the Ally Boyz gang, or that a sufficient nexus exists between PDL and Ally Boyz, to apply the gang enhancements here.
This court's ruling in People v. Garcia (2016) 244 Cal.App.4th 1349 is instructive. In Garcia, one defendant belonged to the Eastside gang in San Diego and the other two defendants belonged to the Diablos gang in Escondido. (Id. at p. 1353.) The court affirmed the gang enhancements despite the defendants belonging to different gangs. (Id. at pp. 1368-1370.) The gang expert testified that the charged robberies and assaults—committed in Diablos gang territory—benefited the Diablos gang by "spreading fear of the gang in the area," and increasing the gang members' reputation "for their willingness to commit violent crimes." (Id. at p. 1365.) The presence of an Eastside gang member did not alter the expert's opinion that the crimes benefited the Diablos gang—the expert concluded "this was evidence the Eastside gang member was aligned with the Diablos, that the Diablos gang members he was working with could count on him and that he was working to benefit the Diablos gang." (Id. at pp. 1365-1366.) The court found this evidence sufficient to support the gang enhancement, and the court noted Prunty did not foreclose that determination. (Id. at p. 1369.)
The court explained that Garcia's documented membership in a different gang "would not prevent a reasonable fact finder from nonetheless finding that he committed the armed robberies in association with and for the benefit of the Diablos." (Garcia, supra, 244 Cal.App.4th at p. 1369.) Even if Garcia was not formally a member of the Diablos, the crimes occurred in Diablos territory and the other defendants "apparently relied upon and trusted him as if he were one of them." (Ibid.) Similarly, here, the crimes occurred in Ally Boyz territory and Ally Boyz gang members or associates apparently trusted Darby enough to rely upon him in committing these gang-related offenses.
There was sufficient evidence to establish each of the required prongs for the gang enhancements. Testimony from the gang experts sufficiently established that Ally Boyz was a criminal street gang, that predicate crimes were committed by that gang, and that the instant offenses committed in Ally Boyz territory benefited the gang by causing fear and intimidation in the community (including by threatening potential witnesses). (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. [Citation.]"].) Two witnesses (G.R. and K.R.) testified that Darby and Jones admitted to the crime—which the gang expert characterized as a type of "bragging" that again benefits the gang by instilling fear in the community. K.R. also testified that she was afraid for her safety, she had been threatened for talking to Detective Olendorf, and she moved out of the area immediately after the incident. Another witness (A.W.) testified that she was afraid to come forward to identify Darby because of the gang crime, and that she ultimately relocated due to subsequent threats like "[t]hey're gonna get you," and "[snitches] don't last too long around here." (See People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [relying on expert opinion that the murder of a nongang member benefited the gang because "violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents who are, as a result, 'fearful to come forward, assist law enforcement, testify in court, or even report crimes . . . .' "].)
Darby's jail call stating "[t]here's so much shit I do for the hood" further supports an inference that Darby was acting to benefit Ally Boyz, even though Darby did not specifically refer to Ally Boyz when he made this statement.
There was also ample evidence of Darby's specific intent to promote or enable criminal conduct by gang members. The jury could reasonably infer that Darby was the one who had a relationship with Holmes, the "weed man"; Darby lured Holmes to Ally Boyz territory to rob him, in association with Ally Boyz gang members Cole and Jones; and Darby then murdered Holmes when the "lick went all the way south" and Holmes resisted. (See People v. Villalobos (2006) 145 Cal.App.4th 310, 322 ["Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime."].)
Because the above evidence is sufficient to satisfy the requirements of section 186.22, subdivision (b), we affirm all the gang enhancements. Read in the light most favorable to the judgment, the facts in this case constitute substantial evidence that Darby committed his crimes for the benefit of the Ally Boyz gang, with the specific intent to further criminal conduct by Ally Boyz gang members.
C. The Information's Failure to Allege the Principal Firearm Enhancement Was Not Prejudicial, and Darby Forfeited any Claim of Error
Darby contends that the allegations found true under section 12022.53, subdivisions (d) and (e)(1) as to counts 1, 2, and 3, that a principal personally and intentionally used and discharged a firearm causing death, must be stricken because they were not charged in the information. We conclude that Darby forfeited any claim of error by failing to object to the inclusion of the allegations in the jury instructions and verdict forms, and Darby was not prejudiced by the information's failure to include the allegations.
1. Additional Background Relating to Enhancement Allegations
The information charged Darby with murder, robbery, and attempted robbery in counts 1, 2, and 3, and additionally alleged as to count 1 that Darby personally and intentionally discharged a firearm causing the victim's death within the meaning of section 12022.53, subdivision (d). The information alleged he came within the meaning of section 12022.53, subdivisions (b) and (c), and section 186.22, subdivision (b)(1)(C), and that he came within the meaning of section 12022.53, subdivisions (b) and (e)(1), and (c) and (e)(1), for all three counts. However, rather than including an allegation regarding subdivisions (d) and (e)(1), it appears the information mistakenly repeated the allegations regarding subdivisions (b) and (e)(1). Specifically, the information stated:
"It is further alleged as to count(s) 1, 2, 3 that a principal personally used a firearm, a handgun, within the meaning of Penal Code sections 12022.53(b) and (e)(1).
"It is further alleged as to count(s) 1, 2, 3 that a principal personally and intentionally discharged a firearm, a handgun, within the meaning of Penal Code sections 12022.53(c) and (e)(1).
"It is further alleged as to count(s) 1, 2, 3 that a principal personally used a firearm, a handgun, within the meaning of Penal Code sections 12022.53(b) and (e)(1)."
The complaint contained a similar repetition of the subdivisions (b) and (e)(1) language.
The parties discussed jury instructions off the record. On the record, the court stated, "with respect to jury instructions, we talked about those informally. The Court will put what it's going to give on the record now," and proceeded to inform the parties of its intention to instruct on, inter alia, CALCRIM No. 1402. There were no objections to the proposed instruction. The court subsequently instructed the jury with CALCRIM No. 1402, gang-related firearm enhancement (§ 12022.53, subds. (d) and (e)(1)), as follows:
"If you find the defendant guilty of the crimes charged in Counts One, Two, and/or Three, and you find that the defendant committed those crimes for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in any criminal conduct by gang members, you must then decide whether, for each crime, the People have proved the additional allegation that one of the principals personally used or personally and intentionally discharged a firearm during that crime and caused death. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime."
Verdict forms consistent with these instructions were submitted to the jury without objection.
The jury found not true that Darby personally discharged a weapon causing death (§ 12022.53, subd. (d)), but found true that he committed the crime of murder for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members, and that a principal personally and intentionally discharged a firearm causing death in the commission of the crimes (§§ 186.22, subd. (b), 12022.53, subds. (d) & (e)). This resulted in the imposition of a consecutive 25-year-to-life sentence enhancement under section 12022.53, subdivision (e)(1). The jury also found true that Darby committed the crimes of robbery and attempted robbery for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members, and that a principal personally and intentionally discharged a firearm causing death in the commission of the crimes (§§ 186.22, subd. (b), 12022.53, subds. (d) & (e)). Darby contends these enhancements must be stricken because they were not properly alleged in the information.
2. Applicable Law
Section 12022.53 imposes sentence enhancements in varying lengths, corresponding to various uses of a firearm: 10 years for personal firearm use, 20 years for intentional and personal discharge of a firearm, and 25 years to life for intentional and personal discharge of a firearm causing bodily injury or death. (§ 12022.53, subds. (b)-(d); People v. Garcia (2002) 28 Cal.4th 1166, 1171 (Garcia).) "Section 12022.53, subdivision (e)(1), imposes vicarious liability under this section on aiders and abettors who commit crimes in participation of a criminal street gang." (Garcia, at p. 1171.) Section 12022.53, subdivision (j), provides, "For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."
"No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." (Cole v. Arkansas (1948) 333 U.S. 196, 201.) "[F]air notice of the charges against him" ensures that a criminal defendant "may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial." (People v. Anderson (1975) 15 Cal.3d 806, 809.) As such, all the essential elements of an offense must be pleaded. (Apprendi v. New Jersey (2000) 530 U.S. 466, 476.)
"However, an exception to this rule has long been recognized in cases where a defendant expressly or impliedly consents to have the trier of fact consider a nonincluded offense." (People v. Toro (1989) 47 Cal.3d 966, 973 (Toro), disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; see Toro, at p. 973, fn. 4 ["When the defendant acquiesces in conviction of an uncharged offense . . . no amendment [of the pleadings] is necessary."].) In Toro, our Supreme Court recognized that "there is no difference in principle between adding a new offense at trial by amending the information and adding the same charge by verdict forms and jury instructions." (Toro, at p. 976, fn. omitted.) Thus, a defendant's failure to promptly object to verdict forms and jury instructions "will be regarded as a consent to the new charge and a waiver of any objection based on lack of notice." (Ibid.) "The same rules apply to enhancement allegations." (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) As such, when a defendant accepts the jury instruction and the jury's finding on an allegedly uncharged special circumstance with no objection, he acquiesces in the special-circumstance finding and no amendment of the information is necessary. (People v. Ward (2005) 36 Cal.4th 186, 219 (Ward).)
3. Darby Forfeited His Claim That Notice Was Inadequate and Was Not Prejudiced by the Information's Failure to Include the Allegations
The Attorney General concedes that the complaint and information "show what appears to be an error in the charging language. In those pleadings, it appears the second reference to subdivisions (b) and (e)(1) of section 12022.53 in the series was mistakenly substituted for subdivision (d) and (e)(1)." Nonetheless, the Attorney General argues, Darby failed to demur to the pleadings or to otherwise object on the basis of uncertainty. (§ 1004; People v. Holt (1997) 15 Cal.4th 619, 672.) Moreover, without objection, he permitted the jury to be instructed on the enhancement allegations and permitted the verdict forms including the enhancement allegations to be submitted to the jury. This, contends the Attorney General, constitutes forfeiture.
Relying on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) and People v. Arias (2010) 182 Cal.App.4th 1009 (Arias), Darby claims forfeiture should not apply. Our Supreme Court summarized the pertinent facts of Mancebo as follows:
"In Mancebo, the jury had found that the defendant personally used a firearm in the commission of the offense, but the prosecution was forced to choose between using that fact to impose an enhancement under section 12022.5, subdivision (a), or a life term under the 'One Strike' law (§ 667.61, former subd. (e)(4)). [Citation.] Although the prosecution had intended to rely on the defendant's gun use to
impose an enhancement under the One Strike law, for the first time at sentencing the prosecutor sought to dismiss the gun-use allegation under the One Strike law and substitute a multiple-victim circumstance (§ 667.61, former subd. (e)(5)) so that both the determinate-term enhancement and the life term could be imposed. We ruled that section 667.61, subdivision (f) 'precluded the trial court from striking those circumstances in order to free up gun use as a basis for imposing lesser enhancement terms under section 12022.5(a)' and held that the defendant did not forfeit the claim by failing to object at the sentencing hearing."(People v. Houston (2012) 54 Cal.4th 1186, 1228-1229 [finding defendant forfeited his claim regarding the insufficiency of the information, where defendant had adequate notice of the sentence he faced and the jury made express findings supporting the allegations underlying the enhanced sentence].) Mancebo's failure to object at the sentencing hearing did not result in forfeiture of his claim because "errors such as 'legal error resulting in an unauthorized sentence' " are "nonwaivable." (Mancebo, supra, 27 Cal.4th at p. 749, fn. 7.)
Arias relied on Mancebo to reject the argument that defendant waived his claim and struck sentences of life imprisonment where the information charged two counts of attempted murder but failed to allege that the attempted murders were willful, deliberate, and premeditated. (Arias, supra, 182 Cal.App.4th at p. 1017.) In that case, the court instructed the jury that if it found the defendant guilty of attempted murder, then it must make a separate finding whether the attempted murder was done willfully and with premeditation and deliberation, but the verdicts did not include any special findings with regard to premeditation and deliberation, but rather found "first degree attempted murder" as to both victims. (Ibid.)
Houston stopped short of overruling Arias, stating, "[w]e need not and do not decide whether the Arias court erred in ruling that the defendant there did not forfeit his claim" by failing to object at the sentencing hearing, and noting that, in that case, "it is unclear when the trial court issued its proposed jury instructions and verdict forms to the parties and whether this issue was discussed." (Houston, supra, 54 Cal.4th at p. 1229.)
In contrast with Mancebo, the enhancement here was not raised for the first time at sentencing, nor did it result in an unauthorized sentence. Rather, it appears the information contained an error in the charging language. The record indicates the jury was expressly instructed concerning allegations relating to section 12022.53, subdivisions (d) and (e)(1). Unlike Arias, the verdict forms here included specific findings regarding those allegations. Darby never objected to the instructions, to the verdict forms which included the allegations, upon return of the verdict finding the allegations true, or at sentencing, when he was sentenced under section 12022.53, subdivisions (d) and (e)(1). These facts distinguish the present case from Mancebo and Arias.
On this record, we conclude that the jury instructions and verdict forms gave Darby sufficient notice of the enhancement allegations under section 12022.53, subdivisions (d) and (e)(1), foreclosing any claim of prejudice, and his failure to object forfeits any claim of error. (Toro, supra, 47 Cal.3d at p. 976; People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1237 ["Counsel consented to the inclusion of the allegation without amendment of the information, and Valenzuela has therefore forfeited the claim that notice was inadequate."].)
D. Newly-effective Discretion to Strike Firearm Enhancements
Darby contends we should remand for resentencing to allow the trial court to exercise its discretion to strike the firearm enhancements under section 12022.53, subdivision (h). That subdivision, which became effective after Darby was sentenced, allows a trial court, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h).) Darby contends, and the Attorney General concedes, that this amendment applies retroactively to Darby, whose judgment is not final, as his appeal is still pending. (See In re Estrada (1965) 63 Cal.2d 740, 742; People v. Francis (1969) 71 Cal.2d 66, 75.)
However, relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), the Attorney General argues that remand is not warranted here because the record indicates the trial court would not exercise its new discretion to strike any of appellant's firearm enhancements. (See id. at p. 1896 [remand not required if the record shows that the superior court "would not . . . have exercised its discretion to lessen the sentence"].)
We agree that amended section 12022.53, subdivision (h) applies retroactively to all nonfinal judgments, including Darby's. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 424 (McDaniels); People v. Chavez (2018) 22 Cal.App.5th 663, 712 (Chavez).) We believe that remand is appropriate here.
Although the trial court imposed the highest possible sentence, sentencing Darby to the highest terms where it had discretion to choose among the low, middle, and aggravated terms, it is not clear how the court would have exercised its discretion to strike or dismiss the firearm enhancements under section 12022.53, subdivision (h) if it had the authority to do so. As such, we will vacate Darby's sentence and remand for resentencing. (McDaniels, supra, 22 Cal.App.5th at p. 425; Chavez, supra, 22 Cal.App.5th at pp. 713-714.) We express no opinion regarding how the trial court should exercise its discretion.
DISPOSITION
Darby's convictions under counts 3 (attempted robbery) and 7 (street terrorism) are reversed, and the superior court shall dismiss those counts. Otherwise, we affirm the judgment. We remand this matter to the superior court for further proceedings consistent with this opinion. The superior court must resentence Darby consistent with this opinion, including exercising its discretion under section 12022.53, subdivision (h).
The superior court is to prepare the necessary amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
GUERRERO, J. WE CONCUR: AARON, Acting P. J. DATO, J.