Opinion
B298475
03-21-2022
THE PEOPLE, Plaintiff and Respondent, v. EVERARDO ESTRADA et al. Defendants and Appellants.
Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Flores. Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant Everardo Estrada. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. BA425994, Jose I. Sandoval, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.
Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Flores.
Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant Everardo Estrada.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J. 1
A jury convicted defendants and appellants Everardo Estrada and Carlos Flores of torture, first degree residential burglary, attempted kidnapping, assault with a deadly weapon, assault by means likely to produce great bodily injury, and home invasion robbery, with gang and great bodily injury enhancements. Appellants contend the evidence was insufficient to prove the torture count and the gang enhancements; the trial court committed evidentiary, instructional, and sentencing errors; and the prosecutor committed multiple instances of misconduct during argument. In supplemental briefing, they contend that Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), effective January 1, 2022, applies retroactively to their case and requires reversal of the gang enhancements. They further contend that Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518) and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which amended Penal Code sections 654 and 1170, respectively, require that their sentences be vacated and the matter remanded for resentencing. We agree that the amendments to sections 186.22, 654, and 1170 apply retroactively to appellants' case. We therefore reverse the gang enhancements and vacate appellants' sentences. We also order one prior conviction enhancement imposed on appellant Estrada stricken. We remand to allow the People the option of retrying the gang enhancements under the amended law, and for resentencing in accordance with sections 654 and 1170 as amended. We reject appellants' other claims of error, and affirm the judgments in all other respects. 2
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We derive the facts primarily from testimony offered by the victim, Hugo O.; his former girlfriend, Maricarmen G.; one of appellants' accomplices; and various law enforcement personnel. Apart from the testimony of a gang expert offered by Estrada, the defense presented no evidence.
1. Facts
a. Background
Hugo O. owned a duplex located on Sheridan Street in Los Angeles, where he lived with his girlfriend, Maricarmen G.; her eight-year-old son sometimes stayed there as well. The duplex was divided into two apartments, one upstairs and one downstairs. Hugo and Maricarmen lived in the upper apartment, and used the living room as their bedroom. Hugo rented three bedrooms in the upper apartment to other persons, including Marcos L., one of Hugo's "helpers" in his construction business. The upper apartment had a front door that led into the living room, and a back door off the kitchen. The property was surrounded by a chain link fence and was equipped with a security camera that showed the front yard and entrance. Hugo worked as a contractor, and was not a gang member.
At the time of trial, Maricarmen and Hugo were no longer in a relationship.
For ease of reference, we hereinafter refer to this room as the living room.
Carlos Flores, Everardo Estrada, Carlos Pena, and Jorge Nieto were all members of the State Street criminal street gang. Estrada, who went by the moniker "Lalo," and Flores, who went by the moniker "Solo," were in their 40's. They were "respected, " 3 older members of the gang. Pena, who was 19 at the time of the crimes, went by the moniker "Trigger" or "Little Trigger." Nieto, who was known as "Sporty," was 17.
State Street gang members would often jump Hugo's fence and cross his property. Over time, their behavior escalated, and they would break into the lower apartment and hang out there. When Hugo asked them to stop, they laughed, said it was their neighborhood, and he could not tell them what to do. When Hugo told Estrada he would call the police, Estrada replied, "Well, go ahead and you see what's going to happen to you motherfucker." Afraid, Hugo did not follow through on his threat. On one occasion the gang members broke a couple of windows; on another, they kicked the door of the upper apartment, damaging it. Hugo boarded up the lower level in an attempt to stop them entering, but they pulled the boards off.
Nieto, however, was friendly towards Hugo. Nieto told Hugo he did not think it was right for the other gang members to invade his property, and said he was on Hugo's side. Hugo allowed Nieto into the upstairs apartment and socialized with him sometimes. Pena was also cordial to Hugo. At some point, Hugo offered both Pena and Nieto construction jobs. He also asked them to keep the other gang members from invading the lower apartment.
b. The burglary, robbery, and assault
Hugo did not own an assault rifle. However, approximately a month before the charged crimes, "Mike," a friend of one of Hugo's tenants, brought an assault rifle to the duplex and showed it to Hugo. Hugo held the rifle, and then gave it back to Mike. Nieto was present at the time; he held the rifle as well. Hugo saw the rifle at the duplex the next day. 4
Approximately two weeks later, in mid-May 2014, Estrada and two other gang members came to the duplex and demanded that Hugo give Estrada two guns and $400 within two weeks. Hugo stated he did not think that would be possible. Estrada said he was not playing, and Hugo "better have that ready for me in two weeks or you'll take the consequences motherfucker."
At approximately 2:00 a.m. on June 8, 2014, Hugo was in his tenant Marcos's room, talking to Marcos and Marcos's two friends, who were visiting. Maricarmen was in the living room, awake; her son was asleep. Via the security camera, she saw five men running toward the front door. Pena was among them. As he approached, Maricarmen heard Pena say, "Who cares, fool, we'll just blast him." The men banged on the door, repeatedly screaming "open the door" and threatening to break it down. She ran to get Hugo. When she and Hugo returned to the front door, they found a gang member with the moniker "Sinner" already inside, trying to open it for the others. However, the door had three locks and Sinner could not reach the highest one. Sinner told Hugo, "there's someone here to see you." Hugo told him no one was coming into his house, and ordered him to get out. As Hugo pushed Sinner toward the back door, Hugo told Maricarmen to stay in the living room and if something didn't seem right, to call the police.
Thereafter, a man came into the living room, demanded Maricarmen's cell phone, and told her to stay there with the door closed. Maricarmen could hear men in the duplex, demanding that everyone give them their wallets and cell phones, and telling them to "shut the fuck up." She recognized Estrada's voice, and heard him punching someone. At some point a gang member placed Victoria, a visitor who was also present in the duplex, in 5 the room with Maricarmen. Victoria advised Maricarmen to take her son and leave. Maricarmen did so, despite her fears for Hugo. She ran with her son to a fast food restaurant, where she borrowed a phone and called 911. A tape of her 911 call was played for the jury.
Meanwhile, just after he told Maricarmen to stay in the living room and as he was escorting Sinner out the back, Hugo encountered Pena and Nieto coming inside through the back door. They forced him into Marcos's room. Pena said quietly to Hugo, "Hey, they're going to ask you if you have guns here, just tell them you don't have any and you're going to be okay.
Flores entered the bedroom and said he was Solo from State Street, he was there to get something that belonged to one of his friends, and someone else needed to talk to Hugo as well. Estrada followed and ordered Nieto and Pena to take wallets and phones from Hugo, Marcos, and Marcos's friends. Pena took Hugo's phone and wallet. Nieto took wallets and phones from Marcos and the two visitors. Hugo complied with the demand to relinquish his wallet and phone because he was afraid and was outnumbered.
After obtaining the phones and wallets, Nieto and Pena stood back. Estrada said, "So where is my stuff that I asked you to get motherfucker." Hugo replied that he didn't know what Estrada was talking about. Estrada replied, "where my guns and my money motherfucker." Estrada then punched Hugo in the face, breaking his nose and knocking him to the ground. Hugo did not fight back. Estrada kicked Hugo's head and body and then forced him to stand up. Estrada said: "I'm going to ask you one more time motherfucker, I'm not fucking playing where is my guns and my money." When Hugo said he had nothing for 6 Estrada, Estrada resumed the attack, punching Hugo's face and body. Estrada then said to Flores, "Come on, you can fuck him up." When Marcos attempted to come to Hugo's aid, the assailants forced him to face the wall on his knees.
Flores and Estrada engaged in a prolonged attack on Hugo. They took turns kicking, stomping and punching him. They stood on his stomach and knees and jumped with full force, and pushed his head into the floor. Estrada burned Hugo's hand with a lit cigarette. Pena did not participate in the attack, and Hugo did not see Pena after he took Hugo's phone. During the assault, Hugo did not fight back, but simply tried to cover himself.
Eventually, Estrada complained that his hand was hurting from hitting Hugo, and demanded that someone retrieve a knife from the kitchen so he could "finish this motherfucker." No one responded. Estrada repeated his command, but then noticed one of Hugo's construction tools, a cordless drill with a three-inch screwdriver bit. Estrada grabbed the drill and threatened to put out Hugo's eyes with it. He attempted to do so, but Hugo used all his remaining strength to push the drill away. Estrada then used the drill on Hugo's stomach, inflicting two wounds through his clothing. At some point during the attack, Estrada pulled cash from Hugo's wallet and said, "Look, boys, more money for the hood."
Estrada then told Nieto, "You fuck him up now," and Nieto moved to comply; however, Estrada changed his mind and stopped him. Estrada then asked Hugo where Maricarmen was. Hugo said she was in the living room where her son was sleeping, and pleaded with him to "leave her out of this" and not hurt her or her child. Estrada replied that he did not "give a fuck" about them. Estrada told Nieto to grab Hugo, and the group headed for 7 the living room. As they walked down the hall, Estrada hit the back of Hugo's head with the drill, causing a large gash and excruciating pain.
Upon discovering that Maricarmen was no longer in the living room, Estrada called Hugo a liar and said, "let's take this motherfucker for a ride." He told Nieto and Flores to take any of Hugo's tools that they wanted. Hugo observed them yank the surveillance camera equipment and monitor from the wall. The group forced Hugo down the stairs to the back of the house. Hugo quietly asked Nieto to let him go, but Nieto refused.
Once outside, Hugo saw two men standing next to a car, with the trunk open. In the trunk sat a large knife. Fearing that he was about to be killed, Hugo unsuccessfully attempted to grab the knife. The men circled around him. Estrada's phone rang, and he stepped away from the others to answer it. With the assailants momentarily distracted, Hugo broke free and ran for his life. Flores chased after him. Hugo ran past his dog, a pit bull, who was chained outside the duplex. The dog apparently stopped Flores's pursuit, giving Hugo time to escape. Flores yelled after him, "You're dead anyways motherfucker," and mimicked firing a gun at him.
Hugo knocked on the door of a nearby residence, but no one answered. He then fled down a dark alley, found an unlocked residence where no one was home, and hid inside for hours. He could hear men's voices and believed the gang was looking for him. At daylight, he walked to a nearby police station and reported what had transpired. He was transported to a hospital by ambulance, where he remained for two days. 8
Nieto initially pled guilty to torture, with a gang enhancement. He testified pursuant to an agreement that if a judge determined he testified truthfully, he would be allowed to withdraw his plea and instead plead guilty to robbery in concert and assault with a deadly weapon, with a negotiated sentence of 10 years.
Nieto testified that he hung out at Hugo's house on a daily basis, usually with persons other than Hugo. However, he hung out with Hugo a "good amount of times," and was in Hugo's room "occasionally." He went to the residence to "get high" on "crystal meth" with Hugo's tenants, and occasionally with Hugo. Hugo had offered him construction work.
At approximately 1:00 a.m. on June 8, 2014, Nieto and Pena were drinking beer at Pena's house. Pena's neighbor asked if they knew someone who sold methamphetamine because he wished to purchase some. They called a neighborhood contact, "Raylene," for that purpose. Pena did not wish to go, because his girlfriend was imminently due to give birth, but Nieto talked him into going. Pena, Nieto, and the neighbor walked down the street to meet Raylene. En route, they ran into Flores, Estrada, and another gang member known as "Scrappy." The older gang members stopped them, told the neighbor to leave, and asked whether Nieto had a gun. When Nieto said no, Flores asked why he was "running around" without one.
Nieto explained that, as a State Street gang member, he was expected to carry a gun when walking around the streets.
Flores then brought up an incident that had occurred a few days earlier, in which Nieto had "made a mistake." He had been in a car with Pena and another gang member. When police 9 pulled the car over, Nieto panicked and fled, leaving a gun in the car and causing the driver's arrest. As punishment for this error, Flores "regulated" Nieto by beating him with his fists for 10 to 15 seconds.
Estrada then stated that "Hugo still has my rifle." Flores accused Hugo of being a "snitch" and working with the police. Flores asked if Nieto was a snitch as well, since he hung around Hugo's residence. Nieto denied it. Estrada said, "Let's go get the rifle then." Nieto believed this to be a challenge. He understood the rifle in question was the one he had previously seen at the duplex.
According to Nieto, when he knocked on the door at the duplex, Maricarmen asked who it was. After Nieto identified himself, Hugo opened the door. Estrada, Flores, and Scrappy barged in; Pena followed. Once inside, at Estrada's directive, Nieto took cell phones and money from the occupants. When Hugo said he did not have the gun, Estrada, Flores, and Scrappy beat Hugo up, including punching, stomping, and kicking him. Pena did not participate. Estrada then pulled out the drill and aimed for Hugo's eye. At that point Pena said, "I got to bounce, I ain't trying to catch a case with my kid on the way," and left. Nieto described the continuing attack on Hugo generally consistently with Hugo's account. After Hugo escaped, the assailants went their separate ways. Nieto threw the phones and wallets he had taken in a trash can.
d. Aftermath
After receiving Maricarmen's 911 call, officers responded to the duplex at approximately 2:50 a.m. They observed three to five people running from the duplex in different directions. They caught and detained Flores, who was holding a drill and was in 10 possession of three cell phones. No gun was found in the duplex. The security camera was missing.
Across the street, police found a bloody shirt lying on the curb. They photographed and collected it, but did not test the blood for comparison with the victim or the defendants.
Hugo identified Flores, Estrada, Nieto, and Pena as the assailants. Maricarmen identified Estrada and Pena.
Hugo was relocated and never returned to his duplex, except to pick up his belongings while escorted by police officers. In addition to the security camera, his tools and equipment were gone, and the house had been ransacked. At the time of trial, Hugo still suffered severe physical pain and blackouts due to the attack.
e. Gang testimony
Los Angeles Police department Officer Jorge Talledo testified as the People's gang expert. He described the State Street gang's origins, primary activities, territory, membership, hierarchy, rivals, symbols, and predicate crimes. Flores and Pena had admitted their State Street gang membership to him. When given a hypothetical question based upon the evidence in the case, Talledo opined that the offenses were committed to benefit the State Street gang. The crimes would cause fear and intimidation within the community; community members would be less likely to report criminal activity to the police; and this, in turn, would make it easier for the gang to commit crimes within its territory. Obtaining a gun would also benefit State Street because it could be used to commit robberies or violent acts, 11 injure rival gang members, and assist in protection of the gang's territory. A gang member who commits a crime in the presence of other gang members gains status in the gang and bolsters his reputation.
We discuss his testimony regarding the predicate crimes in more detail where relevant, post.
Martin Flores testified as the defense gang expert. When given a hypothetical based on the facts of the case, he opined that the crime might have been committed for the gang's benefit, but might have arisen from a personal dispute between the parties.
2. Procedure
Estrada, Flores, and Pena were tried together by a jury. It convicted both Estrada and Flores of torture (§ 206, count 1); first degree residential burglary (§ 459, count 2); attempted kidnapping (§§ 664, 207, subd. (a), a lesser included offense of kidnapping, count 3); assault with a deadly weapon (§ 245, subd. (a)(1), count 4); assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count 5); and home invasion robbery (§§ 211, 213, subd. (a)(1)(A), count 6). It found all the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)); that both appellants personally inflicted great bodily injury during commission of count 5 (§ 12022.7, subd. (a)); and that Estrada personally inflicted great bodily injury during commission of count 4. The jury acquitted appellants of kidnapping (§ 207, subd. (a)) and found the great bodily injury enhancements alleged on counts 2 and 3 not true. 12
Pena is not a party to this appeal. We previously affirmed his judgment in People v. Pena (June 18, 2021, B303543) nonpublished opinion.
The trial court denied appellants' new trial motions. Flores admitted suffering a prior "strike" conviction for attempted murder. Estrada admitted suffering four prior serious felony convictions (§ 667, subd. (a)(1)): one for second degree robbery, two for assault with a deadly weapon, and one for violation of Health and Safety Code section 11378.5.
The trial court sentenced Flores to two life terms plus 15 years, configured as follows: on count 1, torture, a life term with a minimum parole eligibility period of 15 years; on count 3, attempted kidnapping, a consecutive term of 15 years (five years plus a 10-year gang enhancement); and on count 6, home invasion robbery, a life term with a 15-year parole eligibility minimum. The court stayed sentence on counts 2, 4, and 5 pursuant to section 654.
The court configured Estrada's sentence as follows: on count 1, torture, a life term with a minimum parole eligibility period of 15 years; on count 3, attempted kidnaping, four years plus 10 years for the gang enhancement; on count 6, home invasion robbery, a life term with a 15-year parole eligibility minimum; and 15 years for the three section 667, subdivision (a)(1) serious felony enhancements. The court stayed sentence on counts 2, 4, and 5 pursuant to section 654.
Although Estrada admitted four section 667, subdivision (a) priors, at sentencing the prosecutor explained that two of the assault priors were not separately tried.
As to both appellants, the court stayed all fines and fees pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157.
Estrada and Flores appeal. 13
DISCUSSION
1. Sufficiency of the evidence to prove torture
Flores contends that the evidence was insufficient to prove he committed the offense of torture. We disagree.
To determine whether the evidence was sufficient to sustain a criminal conviction,"' "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.]'" (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Baker (2021) 10 Cal.5th 1044, 1103.) Reversal is unwarranted unless it appears" '" 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" '" the verdict. (People v. Penunuri (2018) 5 Cal.5th 126, 142.) The same standard applies when the prosecution relies on circumstantial evidence. (People v. Vargas (2020) 9 Cal.5th 793, 820.)
"The crime of torture, as set forth in section 206, provides: 'Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain.' Thus, 'torture has two elements: (1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of 14 revenge, extortion, persuasion, or for any sadistic purpose.' [Citation.]" (People v. Flores (2016) 2 Cal.App.5th 855, 870-871; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426.)
A person aids and abets a crime when he or she (1) knows of the perpetrator's unlawful purpose; (2) intends to commit, facilitate, or encourage commission of the crime; and (3) by act or advice, aids, promotes, encourages or instigates its commission. (People v. Delgado (2013) 56 Cal.4th 480, 486; People v. Abelino (2021) 62 Cal.App.5th 563, 578.)" 'Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.' [Citation.]" (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Flores suggests he was prosecuted as an aider and abettor to torture, rather than as a direct participant. This is incorrect. Flores both aided and abetted Estrada and personally tortured Hugo, and there was ample evidence to prove his guilt on both theories.
First, the evidence proved Hugo suffered great bodily injury, and Flores does not appear to argue otherwise. For purposes of section 206, great bodily injury is" 'a significant or substantial physical injury'" rather than injury that is insignificant, trivial, or moderate. (People v. Cross (2008) 45 Cal.4th 58, 63-64.) The attack left Hugo bloodied, with a broken nose and a gash in his head, and he spent two days in the hospital. At the time of trial, approximately two and a half years after the incident, he still suffered from significant knee pain; had a scar from where Estrada hit his head with the drill; and still suffered blackouts, blurry vision, and panic attacks. This 15 evidence established he suffered great bodily injury. (See, e.g., People v. Washington (2012) 210 Cal.App.4th 1042, 1047-1048.)
Second, there was ample evidence the attack was carried out for purposes of extortion, and that Flores knew of and shared this purpose. (See § 518 [extortion is the obtaining of another's property by a wrongful use of force or fear].) Two or three weeks before the attack, Estrada demanded that Hugo give him guns and $400 or there would be consequences. When Flores entered the room on the night of the attack he said he was there to get something that belonged to Lalo. Estrada then demanded, "where is my stuff that I asked you to get motherfucker?" and "where my guns and my money motherfucker? When Hugo said he did not know what Estrada was talking about, Estrada punched and kicked Hugo and then reiterated, "I'm going to ask you one more time motherfucker, I'm not fucking playing where is my guns and my money." When Hugo said, "I don't have nothing," Estrada began punching him again and said to Flores, "Come on, you can fuck him up." Estrada and Flores took turns beating Hugo. Eventually, Estrada said, "I don't understand this motherfucker, my hands are hurting like . . . shit right now, I can't fucking stand my hands no more and this motherfucker won't fucking give up what we came for." From this evidence, the only reasonable conclusion was that Estrada and Flores were torturing Hugo in an effort to extort money and firearms from him.
Third, the evidence proved both Estrada and Flores intended to-and did-inflict extreme pain and suffering. (See People v. Flores, supra, 2 Cal.App.5th at p. 871 [because intent is rarely susceptible of direct proof, it generally must be inferred from the circumstances].) Flores and Estrada engaged in a 16 brutal attack on an unresisting victim, during which time they took turns punching, kicking, and stomping Hugo's face, head, and body. Estrada broke Hugo's nose. Both men jumped on Hugo's knees and stomach, Estrada burned Hugo's hand with a lit cigarette, attempted to put out Hugo's eyes with a drill, and then used the drill on Hugo's stomach. Estrada also hit Hugo in the head with the drill, causing excruciating pain, a large gash, and a scar. Given the nature of the attack, it was an eminently reasonable inference that both appellants intended to cause extreme pain. Indeed, we can conceive of no other reasonable theory by which jurors could have concluded otherwise.
Finally, there was ample evidence Flores and Estrada aided and abetted each other's infliction of torture. The evidence showed both participated in the attack and both knew that the purpose was to force Hugo to give up the guns and cash they believed he possessed. Flores's presence, even when he was not personally attacking Hugo, helped prevent Hugo from defending himself or obtaining help, and thereby facilitated the attack.
Flores argues that the evidence was insufficient to prove intent because (1) he had never met Hugo before; (2) he "disagreed they should go to [Hugo's] home to obtain Estrada's rifle because appellant believed [Hugo] was a police snitch"; (3) appellants were not armed when they entered Hugo's house; (4) no evidence showed they discussed inflicting great bodily injury with the requisite intent; (5) Flores did not encourage or facilitate Estrada's use of the drill or his burning of Hugo's hand; and (6) when Estrada hit Hugo in the head with the drill, "it was not clear where [Flores] was."
None of these contentions is persuasive. That Flores had not previously met Hugo was insignificant; the evidence showed 17 he was there to assist his gang leader, not due to personal animosity toward Hugo. The absence of evidence of specific discussions in which the men expressly averred their intent is of no moment; intent is typically proved by circumstantial evidence and there is no requirement that the perpetrators expressly announce their intentions. That the men were not armed does nothing to demonstrate evidentiary insufficiency; arming was not an element of the crime. The assertion that Flores disagreed with the decision to go to the house is incorrect. In the cited portion of the record, Nieto testified that when he and Pena ran into Estrada and Flores just before the attack, Estrada said "Hugo still has my rifle, too." Flores said, "fuck that fool, he's a snitch, he's working with the cops." This testimony in no way suggests that Flores was opposed to the group's excursion to Hugo's. The notion that Flores was not present when Estrada hit Hugo in the head with the drill is also unsupported by the record. The evidence showed that when the beating, burning, and drilling did not succeed in forcing Hugo to produce guns and cash, Estrada demanded to be taken to where Maricarmen and her child were, despite Hugo's pleas to leave them out of it. While walking from one room to the other, Estrada hit Hugo in the head with the drill. Flores was with Estrada in the room where the beating occurred, and in the living room with Estrada and Hugo after the group walked between the two rooms. There was no evidence suggesting Flores went somewhere else while Estrada and Hugo walked the brief distance between the two rooms, or that he had some other place to be.
In any event, none of the foregoing arguments compel the conclusion that the evidence was insufficient. Instead, they merely amount to a request that this court reweigh the evidence. 18 That is not our function. We do not" 'reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.]'" (People v. Orloff (2016) 2 Cal.App.5th 947, 952; People v. Reed (2018) 4 Cal.5th 989, 1006-1007.)
The evidence was sufficient.
2. Limitation on cross-examination
Appellants contend the trial court improperly limited their cross-examination of Hugo in violation of their rights to confrontation, to present a complete defense, a fair trial, and due process of law. We disagree.
a. Additional facts
During Hugo's cross-examination, the trial court suggested to Flores's counsel at sidebar that it appeared he was attempting to impeach Hugo with "bad acts," that is, the defense theory that Hugo's residence was a "trap house," and if so, counsel should shorten his examination to get to that point. Counsel then inquired of Hugo, "Do you smoke methamphetamine?" The prosecutor objected on relevance grounds. At another sidebar, the prosecutor agreed that Hugo's methamphetamine use at or near the time of the incident was relevant, but argued that general testimony about his purported drug use at other times was not. The trial court suggested that a witness could be impeached with prior bad acts involving moral turpitude. The 19 prosecutor responded that drug use did not involve moral turpitude, and there was no evidence Hugo was engaged in selling drugs. Flores's counsel responded, "I'm not trying to impeach him with a crime of moral turpitude." Instead, he was hoping to catch Hugo in a lie. Since Hugo had admitted, at the preliminary hearing, that he was under the influence of methamphetamine, if he answered differently "he's just committed perjury." Estrada's counsel opined that if Hugo had a history of methamphetamine use, it could have impaired his cognitive functions and ability to remember. The court pointed out that such evidence would have to be presented through an expert, and appellants had not included one on their witness lists. Pending further research into the issue of whether methamphetamine use was "a bad act subject to impeachment," the court ruled that Hugo could be asked whether he was high at the time of the incident only.
The term "trap house" was not defined during the evidentiary portion of the trial. An online dictionary indicates that "trap house" is a slang term for a place where illicit drugs are bought, sold, or used. (<https://www.dictionary.com/browse/ trap-house> (as of Mar. 16, 2022], archived at <https://perma.cc/9TS2-AGT3>.)
When cross-examination resumed, Flores's counsel asked whether Hugo had ever smoked methamphetamine; Hugo answered, "yes." Counsel then asked, "how many times" and "who did you snort it with." The prosecutor's objections to the latter questions were sustained. Counsel was permitted to inquire into how much methamphetamine Hugo ingested near the time of the incident and whether he was high. Over the prosecutor's objection, counsel was also permitted to ask, "There's another type of activity that goes on on your property; isn't there" that was "related to your methamphetamine use?" Hugo responded that he did not know what counsel was talking about. Counsel asked, "Your property is a trap house; isn't it?" The court asked Hugo whether he knew what a "trap house" was. He did not. The court permitted the defense "to explore this 20 witness's non-familiarity with that term." Counsel was also permitted to ask whether Hugo had declined to call police to remove the loitering gang members "for all of these years" because "you were smoking methamphetamine on that property; right?" Hugo denied it. Despite the court's earlier ruling, Flores's counsel continued to ask about Hugo's methamphetamine use. The court stated, "I thought I made myself clear" and admonished counsel to question consistent with its ruling; in response, counsel laughed.
The court and parties discussed the issue numerous additional times during trial, as follows. Flores's and Estrada's counsels reiterated their previously stated theories of admissibility. Flores's counsel additionally argued that if Hugo was not honest and forthright about "what he does on that property"-which counsel continued to characterize as a "trap house"-he was not honest about the facts of "what these gentlemen are alleged to have done to him." He averred that a defense theory "might" be that "what actually happened was there was [a] bunch of guys that got together, it was a drug party or it was a drug deal or whatever, something went [awry] and it had nothing to do with going to get guns." The prosecutor provided authority to the court supporting his position that inquiry into Hugo's drug use, except for on the night of the incident, was irrelevant; the defense attorneys did not. The court precluded Flores's counsel from asking Hugo whether he had smoked methamphetamine with Nieto, but over the prosecutor's objection, it allowed Nieto to be questioned on the subject.
b. Applicable legal principles
Only relevant evidence is admissible. (Evid. Code, § 350.)" 'Relevant evidence' means evidence, including evidence relevant 21 to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; People v. Jackson (2016) 1 Cal.5th 269, 330.) We review a trial court's decision to admit or exclude evidence for abuse of discretion. (People v. Dworak (2021) 11 Cal.5th 881, 895; People v. Nieves (2021) 11 Cal.5th 404, 445.)
A criminal defendant has a federal constitutional right to a meaningful opportunity to present a defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690; People v. Gonzales (2012) 54 Cal.4th 1234, 1258.) A state court's application of the ordinary rules of evidence generally does not infringe upon this right. (People v. Johnson (2022) 12 Cal.5th 544, 607; People v. Nieves, supra, 11 Cal.5th at p. 445.) The federal constitution permits the exclusion of evidence that is marginally relevant or that poses an undue risk of prejudice. (Gonzales, at p. 1259; People v. Nieves, at p. 445.) A defendant also has a Sixth Amendment and state constitutional right to confront adverse witnesses, but a trial judge may impose limits on defense counsel's inquiry. (People v. Wilson (2008) 44 Cal.4th 758, 793.) The Confrontation Clause" 'guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' [Citation.]" (Id. at p. 794.)
c. Discussion
The trial court did not abuse its discretion by limiting cross-examination regarding Hugo's purported drug use, and there was no infringement upon appellants' rights to confrontation or to present a defense. People v. Panah (2005) 35 Cal.4th 395, governs this case. In Panah, defense counsel was 22 precluded from asking a witness whether she and defendant had smoked marijuana together. Our Supreme Court made short shrift of defendant's contention that the court's ruling violated his state and federal constitutional rights. It stated the rule thusly: "Evidence of a witness's drug use is inadmissible unless the testimony 'tends to show that the witness was under the influence thereof either (1) while testifying, or (2) when the facts to which he testified occurred, or (3) that his mental faculties were impaired by the use of such narcotics.' [Citation.] . . . . [D]efense counsel's question was phrased in the past tense and referred to some unspecified time. It was, therefore, properly excluded as irrelevant. Because the trial court's ruling was proper, 'there is thus no predicate error on which to base the constitutional claims.' [Citation.]" (Id. at p. 478.)
The same is true here. Hugo admitted using methamphetamine the day or evening of the attack. The attorneys were given free rein to inquire about his use at that time, including what time he used the drug, how much he ingested, how he ingested it, whether he was high the evening of the assault, and whether methamphetamine "usually" made him sleepy. Counsel was also allowed to ask whether, after escaping, Hugo hid rather than going straight to police because he was still high. Appellants' attempts to distinguish Panah are unavailing; this court is, and the trial court was, bound by the rule Panah set forth. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 23
There was no suggestion that Hugo was under the influence when he testified at trial.
The trial court correctly ruled that without expert testimony, Hugo could not be questioned about his general drug use on the theory that long-term drug use affects cognition or memory. In People v. Wilson, supra, 44 Cal.4th 758, the defendant was precluded from introducing evidence of a witness's alleged long-term methamphetamine use on that theory. (Id. at pp. 791-792.) Our Supreme Court concluded that even if there had been evidence the witness was a habitual drug user, "neither defense counsel accepted the trial court's suggestion to call an expert to lay a foundation regarding the effect of habitual methamphetamine use on one's ability to perceive and recall events. 'Evidence of habitual narcotics . . . use is not admissible to impeach perception or memory unless there is expert testimony on the probable effect of such use on those faculties.' [Citations.] Defendant does not persuasively explain how this long-standing evidentiary rule undermined his ability to effectively cross-examine [the witness]. . . ." (Id. at p. 794.) Here, as in Wilson, appellants never sought to call an expert to testify on the issue, despite the trial court's invitation to do so. Appellants contend that Hugo could nevertheless have been asked what effect he thought long-term methamphetamine use had on him. Appellants cite no authority for this proposition, which runs directly counter to Wilson.
Nor was evidence of Hugo's alleged drug use admissible as "bad acts" evidence. A witness may be impeached with prior conduct involving moral turpitude (People v. Clark (2011) 52 Cal.4th 856, 931), but drug possession or use does not involve moral turpitude. Possession of narcotics for sale does. (See People v. Vera (1999) 69 Cal.App.4th 1100, 1103.) But there was no evidence Hugo sold drugs. The prosecutor represented that 24 Hugo had no convictions or arrests for drug sales or possession for sale, and appellants did not make a contrary showing. Detective Vincent Carreon testified that when Hugo's residence was searched, officers found no narcotics paraphernalia, no scales, no pay-owe sheets, and no other evidence indicating narcotics were being sold. Nieto testified that on the night of the attack, he and Pena were en route to obtain drugs from a contact named Raylene, not from Hugo. And, counsel for Flores-the primary proponent of cross-examination on the issue-twice expressly averred he was not interested in admitting drug evidence on this basis.
Instead, Flores's counsel indicated he was trying to catch Hugo in a lie. He hoped that by eliciting an untruthful response on an irrelevant and collateral matter-"what [Hugo] does on that property"-he could then argue Hugo was untruthful regarding the facts of the charged crimes. This was not a valid basis for the proposed cross-examination. It is "improper to elicit otherwise irrelevant testimony on cross-examination merely for the purpose of contradicting it." (People v. Mayfield (1997) 14 Cal.4th 668, 748, disapproved on another ground by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2; People v. Lavergne (1971) 4 Cal.3d 735, 744 ["A party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be contradicted."].)
Flores's hypothesis that the crimes were the result of a drug party gone bad was conjecture unsupported by the record or a valid offer of proof. (See People v. Lomax (2010) 49 Cal.4th 530, 580 ["the trial court properly prevented counsel from asking questions that lacked a good faith basis and invited jury speculation on claims that would not be given any evidentiary 25 support"]; People v. Nieves, supra, 11 Cal.5th at p. 445 [trial court does not abuse its discretion by excluding evidence that produces only speculative inferences].) The question of whether or not Hugo allowed drug use on his property or used methamphetamine himself at times apart from the incident had minimal, if any, relevance to the issues presented at trial. It is just as illegal to torture, assault and rob a drug user as it is to commit those offenses against a nonuser. A court is not required to admit evidence of drug use" 'that merely makes the victim of a crime look bad.'" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
Nothing in our discussion is meant to imply that Hugo was in fact a regular user of methamphetamine.
Appellants complain that the trial court's limitation on Hugo's cross-examination improperly curtailed their inquiry into Hugo's relationship with appellants and other State Street gang members; impaired their ability to attack Hugo's credibility, bias, and motivation; and limited their ability to show Hugo's "relationship to the defendants vis-a-vis the business he did or did not do out of his home," a circumstance that might have shown the "dispute" between him and appellants was personal and not gang-related.
These contentions are patently meritless. We have set forth above, in connection with our discussion of the parties' discussions on the issue, various questions counsel was permitted to ask regarding drug use at the residence. Counsel was also permitted to ask Hugo, in reference to Nieto, "Did you give him something" and "Did he give you something?" a question geared 26 toward revealing a drug exchange or sale, or a purported business deal. Hugo denied it.
Appellants were not precluded from questioning Hugo about his relationship to them and other gang members, and the prosecutor agreed this was a permissible area of inquiry. Counsel asked how long Hugo had known Flores; Hugo testified he had never seen or spoken to him prior to the attack. Thus, there was no "relationship" to examine. Counsel asked about Hugo's encounters with Estrada and elicited that Hugo had known Estrada for approximately two or three months before the attack; they met when Estrada knocked on Hugo's door and informed him he was "running State Street." On direct examination, Hugo testified that he did not owe Estrada money or anything else and had not offered to sell him guns or "anything like that." He and Estrada had "never bought or sold anything from one another" and had "no business interactions." Instead, Hugo tried to avoid Estrada; didn't want anything to do with him; and declined Estrada's requests to come speak with him. Counsel inquired as to "what else were you doing besides running a contracting business"; Hugo replied that he was doing repairs on the building. The evidence thus showed there was no business or sales relationship between Hugo and appellants, and the defense attorneys were never precluded from questioning Hugo about this testimony. 27
Counsel's attempt to discredit this testimony by asking Hugo, "Well, you had been there for 11 years, but he's just now coming to see who you were?" was curtailed not by the court, but by counsel's apparent choice, after a sidebar discussion, to avoid disclosing that Estrada had only recently been released from prison, a fact the prosecutor had advised Hugo not to mention.
Considerable testimony was elicited by the defense attorneys, as well as the prosecutor, regarding Hugo's relationship with Nieto and Pena, including the frequency and timing of their interactions and the fact Hugo had offered them jobs. As to Hugo's relationship with gang members in general, counsel and the prosecutor were permitted to inquire regarding how long the gang members had hung out at the residence, how often Hugo had lived there, his efforts to remove them, whether he had friends who were State Street gang members, why he thought the gang hung out at his house, and gang members' responses when he asked why they were doing so. Hugo also testified he may have offered two additional gang members work, as he had done with Pena and Nieto.
Finally, it is clear appellants were not actually prevented from presenting a defense. In addition to the testimony just described, Nieto's testimony provided evidence that he spent considerable time hanging out with Hugo, went to the house to "get high" on "crystal meth," occasionally smoked it with Hugo, and Hugo's tenants used methamphetamine at the house. Officer Martha Guzman testified that Hugo's residence was a "hot spot" for gang activity and methamphetamine and drug use. Appellants' attorneys argued extensively that Hugo's testimony was not credible. Flores's counsel argued in closing that Hugo was evasive about "what he did on his property," was "smoking drugs with" the gang members, was running a trap house, and offered his drug-party-gone-bad theory. In sum, there was no error and no violation of appellants' constitutional rights. 28
3. Prosecutorial misconduct
Appellants contend the prosecutor committed multiple instances of misconduct during argument. We discern no reversible error.
a. Applicable legal principles
The federal and state standards governing prosecutorial misconduct are well settled." 'When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.' [Citation.]" (People v. Masters (2016) 62 Cal.4th 1019, 1052; People v. Wright (2021) 12 Cal.5th 419, 443-444.) When a claim of misconduct is based on the prosecutor's arguments before the jury, we consider whether there is a reasonable likelihood the jury construed or applied the challenged remarks in an objectionable fashion. (People v. Centeno (2014) 60 Cal.4th 659, 667.) We consider the statements in context, and view the argument and instructions as a whole. (Ibid.) "We review claims of prosecutorial misconduct under an abuse of discretion standard." (People v. Dworak, supra, 11 Cal.5th at p. 910; People v. Peoples (2016) 62 Cal.4th 718, 792-793.)
b. Comments regarding the defense expert
During closing, the prosecutor argued, in regard to the defense gang expert: "you've got . . . Martin Flores who has every-and I'm not going to call Mr. Flores a liar, he's the defense expert, I'm not going to call him a [liar], but he does have every 29 reason on earth to shade the truth, doesn't he? I mean, he makes his living by his own admission 100 percent from being called to testify by defense attorneys, right . . . and he's going to make over $3,000, I don't know the exact number, but he's going to make over $3,000 for coming in here and saying-and testifying, and if he doesn't say what defense attorneys want they have 11 other guys, he told us they have 11 other guys they can call to testify. So he does have an incentive to shade the truth which it appears is what he did here." Appellants contend these remarks inappropriately disparaged defense counsel, because they were tantamount to an assertion that the defense attorneys fabricated a defense and paid a witness to give false testimony.
Appellants have forfeited this claim by failing to object below. A "claim of prosecutorial misconduct is forfeited when there was neither a timely and specific objection nor a request for admonition." (People v. Powell (2018) 6 Cal.5th 136, 182; People v. Silveria and Travis (2020) 10 Cal.5th 195, 306.) Contrary to appellants' assertions, the record does not suggest an objection would have been futile. In light of this forfeiture, appellants contend their attorneys provided ineffective assistance. To establish that claim, a defendant must show both that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance resulted in prejudice; that is, there is a reasonable probability that, but for counsel's failings, defendant would have achieved a more favorable result. (People v. Bell (2019) 7 Cal.5th 70, 125; People v. Sepulveda (2020) 47 Cal.App.5th 291, 301.)
It is of course misconduct to disparage defense counsel, imply counsel has fabricated evidence, or impugn his or her integrity (People v. Cook (2006) 39 Cal.4th 566, 613; People v. Sandoval 30 (1992) 4 Cal.4th 155, 183), but the prosecutor did not do so here. "[A]n attorney is free to argue that the opinions of paid expert witnesses may be biased." (People v. Cook, at p. 614; People v. Dworak, supra, 11 Cal.5th at pp. 909-911.) "[C]ounsel is not precluded from reminding the jurors that the expert's findings support the goals of the party who called him, and may therefore not be objective." (People v. Arias (1996) 13 Cal.4th 92, 182.) An argument that the defense team may have sought an expert whose opinions would favor the defendant's case does not reflect adversely on counsel's ethics or integrity, and an "argumentative reminder that defense counsel may have chosen [an expert] for this reason is not equivalent to an insinuation that counsel suborned perjury or engaged in deception." (Ibid.)
Arguments more colorful than those made here have been found not to amount to prosecutorial misconduct. In People v. Dworak, for example, the prosecutor argued that the defense expert was" 'a hired mouthpiece, really, who would say what they pay him to say,' characterized his opinion as one 'bought by the defense,' and added that '[f]or $3,600, defendant bought an outrageous, antiquated and preposterous opinion about rape.'" (People v. Dworak, supra, 11 Cal.5th at p. 909.) Our Supreme Court concluded it was not likely the jury took the prosecutor's statements to mean defense counsel lacked integrity. (Id. at p. 910; see also People v. Salcido (2008) 44 Cal.4th 93, 154 [prosecutor argued that expert's testimony was the result of his long friendship with defense counsel; no misconduct because a "prosecutor has considerable leeway in suggesting an expert may testify a certain way for financial gain or other reasons, without committing misconduct"]; People v. Spector (2011) 194 Cal.App.4th 1335, 1403, 1406 [prosecutor's arguments, including 31 " 'If you can't change the evidence, change the science, and if you can't change the science . . . just go out and buy yourself a scientist'" and" '[t]his was a "pay to say" defense. You pay it; I'll say it'" was not likely to have been construed by the jury as an attack on defense counsel's personal integrity].) Likewise, here, the jury was not likely to construe the challenged portion of the prosecutor's argument as an attack on counsels' integrity. Accordingly, defense counsel did not provide ineffective assistance by failing to object. "Failure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90.)
c. Contentions related to blood testing and the bloody shirt
(i) Background
Detective Carreon testified that swabs were taken of blood found on a wall and on a toolbox in the living room, as well as from blood drops found outside the residence. The swabs were preserved but not tested. Carreon thought it unnecessary to have them analyzed because there was no question, in his mind, that the blood was Hugo's. Based on his training and experience, Carreon was able to recognize the substance as blood, but admitted he could not determine whether it was human or animal blood. On the curb across from Hugo's house officers found and collected a bloody shirt. It was not determined to whom the shirt belonged, or how long it had been there. When shown a photograph of the shirt, Hugo testified that it looked like his, but it could have been someone else's; he did not know how it got there. There was no blood found elsewhere inside the house.
During cross-examination of Carreon, Estrada's counsel confirmed that the blood had not been tested. He queried, "So 32 you're telling me that [due to] your training and experience you can look at some red substance on the ground or on the wall or on clothing and tell whether or not it's blood or not?" and "So you didn't bother to even figure out if this was human blood. . . ?"; and "[W]ouldn't it have been prudent to test it to see even if it was [Hugo's] blood?"
During redirect, the prosecutor asked Carreon, "Have those swabs been available for two and a half years for myself or counsel to have them tested to find out [whose] blood that was?" Carreon replied affirmatively. Estrada's counsel, joined by the other defense attorneys, objected on the ground of "[b]urden shifting." Pena's counsel moved for a mistrial. Estrada's counsel requested that the jury be given a curative instruction. The court sustained the objection, admonished the jury that the People had the burden of proof, and denied the mistrial motion.
The court stated: "Folks, you heard [the prosecutor] ask whether or not any of the defense counsel tested any of the blood. Consistent with what I told you at the beginning of this trial the sole obligation is on the DA to prove these allegations true beyond a reasonable doubt and defense counsel have no obligation to offer any witness or do anything of the sort that [the prosecutor] alluded to so I want you to ignore that question. And the objection will be sustained again."
The following morning the prosecutor provided the court with citations to authority that showed his question had been proper. Later that day the court concluded its ruling had been erroneous and reversed itself out of the jury's presence. It did not provide any further explanation to the jury on the issue.
During his opening argument, the prosecutor stated: "Now as bloody as this guy is, Hugo . . . in the picture I showed you at 33 the beginning, as bloody as he is you might expect that Solo Flores would have blood on his shirt, right. And we can see here there's no blood on his shirt. But he's just wearing a tank top. So if he had a shirt over it he could have gotten rid of it. I mean, if you had just beaten somebody into a pulp and they bled all over your shirt you might take it off, you might wipe up the blood on the floor with it, you might not realize it that you had blood on your shirt until you got out of the house, you might not worry about the blood on your shirt until you got out of the house. But what would you do if you saw the police coming? You'd probably throw it to the curb, probably get rid of it, probably distance yourself from it. And we don't know. We have no idea what shirt that guy was wearing when he was committing these crimes against Hugo . . . . But common sense tells us that shirt was a part of this crime because it would be really weird if it was just a coincidence that a blood[-]soaked shirt was found within a couple of hours of a terrible bloody beating right across the street. That shirt common sense tells us was a part of this crime whether or not one of the defendants was wearing it or whether or not they used it to wipe up the blood. But common sense also tells us it's not Hugo['s] shirt. . . . you would expect somebody who had been beaten that badly and who wasn't there when the police arrived to be in a great big hurry to run away and he's not going to stop to change his shirt across the street when he could be chased or caught by the people that did this to him. That's just common sense." There was no objection.
During their arguments, Flores's and Estrada's attorneys argued that if the attack transpired as Hugo described, there would have been blood in the room where it happened, and also questioned why the blood swabs and the shirt had not been 34 tested. Estrada's counsel argued, "[I]t was swabbed but not tested. Why? You got all this massive amount of blood and you didn't test any of it, right. [¶] Now of course the DA is going to tell you, well, the defense could have tested it, they didn't test it either. But remember the burden is on [the prosecution] not on us. We don't have to prove a negative, he has to prove it. He has the burden to prove that it's even blood and he didn't do that."
In closing, the prosecutor responded to these arguments by stating, "I wasn't there, okay, so if I offer an explanation of . . . why there might be a bloody shirt across the street on the curb, I have no idea, I'm just trying to use my head to think it through, but it seems to me there's no doubt where that blood came from, the same place where all the other blood came from, Hugo['s] head, right. I mean, it would be an unbelievable coincidence- how often do you see a bloody shirt on the street when you are walking down the street? . . . it would be an unbelievable coincidence if Hugo . . . got beaten like that and there was blood everywhere and that shirt was not his own, right? That would be another miracle."
Shortly thereafter, he continued: "Now [Flores's counsel] asked why not test that shirt on the sidewalk for DNA. . . . [¶] And [Estrada's counsel] asked Detective Carreon why didn't he test the blood from the walls and the tool box. The implication could be that, as they argued, Detective Carreon was unreasonable or not diligent in his investigation. But the fact is where a guy's face is all beat in and brutalized like Hugo . . . and there's blood at his house and there's blood on the shirt across the street and there's no evidence anybody [else] was bleeding, it's reasonable for Detective Carreon to say that is Hugo['s] blood. It's reasonable for him not to request DNA testing to find out 35 whether or not it was cat blood, right. And if there was any reasonable or important disagreement counsel could have tested it themselves or had somebody test it . . . . And you remember when I asked Detective Carreon were those blood swabs sitting in evidence for two and [a] half years available for counsel to test, they objected there was a big scene and the judge sustained the objection."
Flores's counsel objected to use of the phrase, "a big scene." The court overruled the objection, stating, "Objections were done in front of the jury and we did have a sidebar so go ahead. Overruled."
The prosecutor continued: "Now the judge reviewed its decision and he changed his decision and that happened yesterday morning I think when you weren't here yet. And if I'm lying somebody will object and the judge will stop me and tell you so. So when Detective Carreon answered my question yes, it was available for them, you are allowed to consider that to determine whether or not you think there's any debate or reasonable question as to whether or not that was Hugo['s] blood in the house, on the shirt that Detective Carreon swabbed or off the shirt that he collected. You can consider that."
(ii) Discussion
Appellants assign multiple claims of error to the foregoing arguments, asserting that the prosecutor (1) misstated facts by saying the shirt was Flores's; (2) improperly shifted the burden of proof to appellants when he argued that they could have tested the swabs and shirt; and (3) disparaged defense counsel by using the phrase "big scene." These contentions lack merit. 36
A. Purported misstatement of the evidence
Appellants argue that there was no evidence the shirt belonged to Flores, that the stains were human bloodstains, or that the shirt was in any way connected to the attack on Hugo. Accordingly, they insist, the prosecutor committed misconduct by arguing otherwise.
Appellants made no objection to the challenged comments, and therefore this argument has been forfeited. (See, e.g., People v. Powell, supra, 6 Cal.5th at p. 182.) And appellants fail to establish their counsel provided ineffective assistance by failing to object, because the argument was not improper. (See People v. Bradley, supra, 208 Cal.App.4th at p. 90.)
It is misconduct for a prosecutor to misstate or mischaracterize the evidence, or to refer to facts not in evidence. (People v. Fayed (2020) 9 Cal.5th 147, 204; People v. Thomas (2011) 51 Cal.4th 449, 494.) But prosecutors have" 'wide latitude in commenting on the evidence, including the reasonable inferences and deductions that can be drawn therefrom.'" (People v. Fayed, at p. 204; People v. Ellison (2011) 196 Cal.App.4th 1342, 1353.) The argument may be vigorous as long as it amounts to fair comment on the evidence. (People v. Sandoval (2015) 62 Cal.4th 394, 439.) The challenged portion of the prosecutor's argument was a fair comment on the evidence. Hugo testified that Flores's and Estrada's shirts were bloody. The inferences the prosecutor argued were eminently reasonable. Counsel is allowed to argue"' "whatever conclusions counsel properly believes can be drawn from the evidence." '" (People v. Thomas, at p. 494.) Moreover, the prosecutor explicitly told the jury, both in opening and closing argument, that he was simply drawing common-sense inferences from the evidence rather than 37 stating a definitive conclusion. His argument was phrased in terms of what a perpetrator would "probably" do and what "might" have happened. The argument was a classic example of drawing permissible inferences from the evidence, and did not constitute misconduct.
B. Burden shifting
Appellants urge that the prosecutor's questions to Detective Carreon and his argument that the defense could have had the blood evidence tested impermissibly shifted the burden of proof to them.
A prosecutor may not suggest a defendant has a duty or burden to produce evidence or prove his innocence. (People v. Centeno, supra, 60 Cal.4th at p. 673.) But, it has long been held that "prosecutorial comment upon a defendant's failure 'to introduce material evidence or to call logical witnesses' is not improper. [Citations.]" (People v. Wash (1993) 6 Cal.4th 215, 262-263; People v. Steskal (2021) 11 Cal.5th 332, 351; People v. Gomez (2018) 6 Cal.5th 243, 299.) The prosecutor's questions to Detective Carreon were not improper. They did not suggest the defense bore any burden of proof; "the prosecutor did not ask whether the defense had a duty to do independent testing, merely whether the defense had an opportunity to do so." (People v. Cook, supra, 39 Cal.4th at p. 607.)
The prosecutor's subsequent argument about the testing was a fair comment on the state of the evidence. A" 'distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and . . . an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.'" (People v. Steskal, supra, 11 Cal.5th at p. 352.) Fairly read, the prosecutor's 38 comments here fall into the former camp. The prosecutor did not suggest appellants had any burden to produce evidence or prove their innocence. (See People v. Cook, supra, 39 Cal.4th at p. 607 ["Pointing out that contested physical evidence could be retested did not shift the burden of proof."].)
Appellants assert that the prosecutor's statement that the court had changed its ruling implied that the court's previous advice-that the defense had no burden of proof-"was no longer the case." Appellants did not object to this aspect of counsel's argument or request clarification, which has therefore been forfeited. (See People v. Redd (2010) 48 Cal.4th 691, 740.) Even if not forfeited, we see no likelihood the jury would have construed the prosecutor's remark as appellants suggest. The prosecutor merely averred that if there had been "any reasonable or important disagreement" about the blood evidence, the defense could have tested it," and the jury could consider that point. This argument did not suggest the defense had any burden of proof. The jury was instructed that the attorneys' arguments and questions were not evidence; if their comments conflicted with the court's instructions, it must follow the latter; that the defendants were presumed innocent; and that the prosecutor bore the burden of proof. (See Redd, at p. 740 [even if any juror interpreted the prosecutor's argument to indicate the defendant had a burden of proof, this impression would have been dispelled by the instructions and numerous reminders that the People bore the burden].)
C. Use of the phrase "big scene"
Appellants contend the prosecutor disparaged defense counsel by using the phrase "big scene." They assert that this phrase mocked them and attacked their integrity. We do not 39 believe a reasonable jury would have understood the prosecutor's comment in this fashion. We do not lightly infer that the jury drew the most, rather than the least, damaging meaning from the prosecutor's statements. (People v. Covarrubias (2016) 1 Cal.5th 838, 894.) The jury was likely to think the prosecutor was simply referring to the sidebar that transpired, not casting aspersions on counsel. Even assuming the prosecutor's choice of words was less than ideal, we cannot conceive that this exceedingly brief and relatively benign phrase rendered the trial unfair, constituted a deceptive or reprehensible method, or had any effect on the outcome.
d. Other purported disparagement of defense counsel
In his closing argument, the prosecutor responded to appellants' contention that Hugo was untruthful. He argued: "Why would Hugo . . . want to point to guys-wouldn't he want to point to the guys that did it? And of all the people on earth why would he point to the scary gangsters who have been intimidating him. Why would he point to the people downstairs that would make it so his life was in danger. Why would he point to the people who made it so he had to move. Why wouldn't he point to anything, anybody. He had every reason not to . . . say it was these people." Instead, Hugo "could have said anything, right, that it would have been safer for him, it would have been easier for him. You can't think that he wanted to come in here, not just the preliminary hearing, but here in this trial in this courtroom for four days and get sneered at and ridiculed and even threatened, for four days. At any point along the way he could have said that's it, I was mistaken, I screwed up. At any point. If it wasn't the truth, it would have been easier for him to say it wasn't the truth, but he did not." (Italics added.) 40
Appellants contend the italicized portion of the argument improperly disparaged the defense attorneys by suggesting they were engaged in inappropriate behavior that victimized Hugo. But there was no objection to the comments that appellants now assert were improper, and the contention has been forfeited. (People v. Johnsen (2021) 10 Cal.5th 1116, 1164-1165.) There is no indication in the record that an objection would have been futile or ineffective.
In any event, whether considering the claim on the merits or through the lens of ineffective assistance of counsel, it fails. The crux of the prosecutor's comments was not that defense counsel had engaged in improprieties. Instead, jurors would have understood the argument to be that it was unlikely Hugo would make up a story that subjected him to four days in the courtroom, which included repeated and vigorous cross-examination from three defense attorneys. This argument-which drew on common experience and reasonable inferences-was not improper. Although this court cannot discern the tone of the questions or any counsels' demeanor from a cold record, the record suggests the cross-examination was certainly robust. During Maricarmen's cross-examination, the prosecutor expressed concern at sidebar about the "tone of the cross-examination over the past few days, it's not professional, it's not respectful, and it's argumentative. I think it's intimidating, it's difficult to listen to, and I don't think it's fair." Counsel for Flores immediately responded, "I'll ratchet it down." He stated, "Litigation is a tough sport, you know" and acknowledged he had "an aggressive style," but averred he was just vigorously defending his client. The trial court found no impropriety, but expressed appreciation for the offer to "ratchet it down." Our point is not to suggest that 41 defense counsel engaged in misconduct, but to illustrate that, from Hugo's perspective, cross-examination was doubtless unpleasant. The prosecutor's argument was not improper.
As to the prosecutor's reference to a threat, the record does not reflect that the defense attorneys threatened Hugo. Just prior to the italicized portion of the argument, the prosecutor had argued that Hugo's accusations potentially placed him in danger of retaliation. Nonetheless, the threat comment was inaccurate. But this brief, fleeting reference did not infect the trial with unfairness or constitute a reprehensible or deceptive method.
Even if the reference to a threat is considered misconduct, reversal would not be required." 'A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.'" (People v. Flores (2020) 9 Cal.5th 371, 403; People v. Navarro (2021) 12 Cal.5th 285, 332.) The jury was instructed that nothing the attorneys said was evidence, and that it must decide the case based upon the evidence alone. "It has often been emphasized that arguments of counsel 'generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation], and are likely viewed as the statements of advocates; the latter . . . are viewed as definitive and binding statements of the law.' [Citations.]" (People v. Centeno, supra, 60 Cal.4th at p. 676.) We" 'presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.'" (People v. Cortez (2016) 63 Cal.4th 101, 131.) There is no likelihood of a more favorable result for 42 appellants even had the reference to a threat been excised from the argument.
e. Misstatement of the evidence regarding Nieto's knowledg e
(i) Background
At the preliminary hearing, Hugo testified that on the date of the attack, he was renting a room to only one tenant, Leslie R. The defense attorneys questioned Hugo about who was in the room where the beating occurred, as follows. (1) Flores's counsel asked, "Was anybody in your unit at the time that you were taken out of it?" Hugo replied, "Yeah, there was other people, but nobody did anything." (2) After eliciting that when Estrada attacked Hugo with the drill, Nieto was in the hallway, counsel asked, "And, in fact, there were only two individuals in addition to yourself inside that room?" Hugo answered affirmatively. (3) Pena's counsel subsequently elicited that Hugo's construction helper and the helpers' friends were present in the bedroom when the attack occurred. Hugo told police about their presence.
We hereinafter refer to these statements as preliminary hearing statements 1, 2, and 3.
At trial, referring to preliminary hearing statement 2 ante, Estrada's counsel asked, "So at the preliminary hearing according to you this helper and his two friends weren't in the room with you, correct?" Hugo responded, "I didn't say that." But when shown preliminary hearing statement 2-but not statements 1 or 3-Hugo agreed, "that's what it says right here." Counsel also elicited that Hugo had told a detective about the two friends being there, and also saw Leslie's friend Victoria in the hallway during the attack. Hugo also admitted at trial that, 43 contrary to his preliminary hearing testimony, he was renting rooms to two other tenants in addition to Leslie; he did not mention the others to avoid getting them involved and potentially jeopardizing their safety.
Nieto testified at trial that the construction helper and "two other guys" were in the room when Estrada began beating Hugo. Nieto confirmed he had been present at the preliminary hearing and heard all the testimony offered therein.
During closing, Estrada's counsel argued, "Hugo admitted committing perjury at least three times here . . . . He testified at the preliminary hearing that he only had one tenant at the time. That was Leslie, and there was no one else in the house at the time that this took place." (Italics added.) Counsel also urged that Nieto's testimony should not be trusted because he would say whatever the prosecutor wished in order to obtain the favorable plea deal. He stressed that Nieto was able to make his story match Hugo's because Nieto had attended the preliminary hearing and heard Hugo's testimony.
During closing, the prosecutor argued that Nieto must have been present during the attack, because he was aware of facts he could have known only had he been there. He argued: "What would you be looking for if you wanted to know whether or not Nieto was there . . . . You would be looking for something that he couldn't know unless he was there. You would be looking for something that only Hugo . . . knew and that Hugo . . . had never told anybody before but that Jorge Nieto also knew, and of course there is something like that. . . . Hugo . . . never told anybody until he came into this trial that the other people that he lived with the tenants and the tenants [sic] friends were in the room while he was getting beaten. Do you remember that? He never 44 told that to anybody before, not to Officer Guzman at the station, not to Detective Carreon at the . . . hospital, not even at the preliminary hearing, only here at trial for the first time. So that [Estrada's counsel] argues proves that he's lying about everything, but in fact that . . . admission that he was hiding the truth before is what proves he was telling the truth. Why do I say that?" Counsel for Estrada objected that the argument misstated the preliminary hearing evidence. The court overruled the objection, stating, "I disagree. Go ahead." The prosecutor continued his argument along the same lines.
He further urged: "So [Estrada's counsel] says Hugo . . . wouldn't tell anybody the people were in the room at the preliminary hearing that proves that he's lying here, but it proves he's telling the truth because . . . Jorge Nieto could not have known the other people were in the room at the same time unless he was there because since [Hugo] wouldn't admit it, there was no police report that said the other people were in the room, there was no testimony at the preliminary hearing not in front of Jorge Nieto, not that Jorge Nieto could have seen in a transcript, there was nothing, nothing, no way, no way Jorge Nieto could have known that those other people were in the room while Hugo . . . was getting beaten unless he was there and saw it. There's no other way. . . . There's no written word, no testimony, Hugo carried that in his head until he admitted it to you that they were in the room, but he never told anybody because he was trying to protect them. Jorge Nieto knew. There's only one way he could have known because he was there and he saw them."
The next day, Estrada's counsel, joined by Flores's counsel, objected that he had checked the record and the prosecutor's statements were inaccurate; Hugo had told Detective Carreon at the hospital, and had stated at the preliminary hearing, that others were in the room. The prosecutor responded that he 45 believed his representation of the facts had been correct. The trial court observed that there had been some confusion on the issue. It assumed the accuracy of defense counsel's statements about the evidence, but pointed out that the prosecutor's argument was not evidence and the jury was so instructed. Accordingly, corrective action was not warranted. Estrada's counsel moved for a mistrial. Finding insufficient prejudice, the court denied the motion.
(ii) Discussion
Appellants contend the prosecutor's argument misstated the evidence and improperly bolstered Nieto's credibility, thereby violating their due process rights to a fair trial. As noted ante, it is misconduct for a prosecutor to misstate or mischaracterize the evidence. (People v. Fayed, supra, 9 Cal.5th at p. 204; People v. Thomas, supra, 51 Cal.4th at p. 494.) Here, there was evidence in the record-elicited by Estrada's attorney-that Hugo did not testify at the preliminary hearing that his construction helper and friends were in the room where the attack occurred. And, Estrada's counsel referenced this evidence in his closing argument. Therefore, the prosecutor's argument was not wholly without basis. As the trial court recognized, the record was confusing. However, it is clear that Nieto, who was present at the preliminary hearing, would have heard Hugo's preliminary hearing statements 1 and 3, indicating that Hugo's helper and friends were present. Furthermore, there was trial testimony that Hugo had told the police that other persons were present in the room. Accordingly, the prosecutor's assertions that Hugo never disclosed the presence of his helper and friends, and that Nieto could not have been aware prior to trial that other persons were in the room, were not well founded. 46
Nevertheless, the prosecutor's misstep does not require reversal. As stated ante, a defendant's conviction will not be reversed for prosecutorial misconduct unless it is reasonably probable that, without such misconduct, an outcome more favorable to the defendants would have resulted. (People v. Navarro, supra, 12 Cal.5th at p. 332; People v. Flores, supra, 9 Cal.5th at p. 403.) The court twice instructed the jury that nothing the attorneys said was evidence, and also instructed that the jury should not take anything the court said or did during trial as an indication of what the judge thought about the facts, the witnesses, or what the verdict should be. We presume jurors followed these instructions, and did not substitute the prosecutor's argument for their own recollections of the evidence. (See People v. Flores, at p. 405; People v. Morales (2001) 25 Cal.4th 34, 47.)
Moreover, the prosecutor's argument was that the asserted facts demonstrated Nieto was present at the scene. There was overwhelming evidence an attack occurred, and Nieto was there. Hugo, Maricarmen, and Nieto all testified that the attack occurred. Maricarmen made a frantic 911 call reporting the attack as it was happening. Police found Flores leaving Hugo's residence with a drill and several cell phones. Photographic evidence showed Hugo's injuries. There was no dispute that Hugo was relocated and did not return to his house. While there were inconsistencies in, and unexplained aspects of, the People's evidence, these did not readily support a conclusion that no attack happened and Nieto, Hugo, and Maricarmen were making the whole thing up.
To the extent the prosecutor's argument was aimed at rebutting the defense argument that Nieto was simply parroting 47 what he heard Hugo say at the preliminary hearing, any error was likewise harmless. There was already ample evidence that Nieto was not simply matching his testimony to Hugo's. For example, Nieto testified that the gang member known as "Sinner" was not present, contrary to Hugo's testimony that he found Sinner trying to open the door. Nieto recounted that a gang member named "Scrappy" participated in the beating, whereas Hugo testified that only Flores and Estrada did so. Nieto testified that when Estrada attacked Hugo with the drill, Hugo was on the ground; Hugo, on the other hand, was certain he was standing up.
In light of foregoing, there is no reasonable probability that the outcome would have been more favorable to appellants had the challenged portion of the prosecutor's argument been omitted, and reversal is not warranted.
4. Unanimity instruction
Appellants contend that the trial court prejudicially erred by failing to give a unanimity instruction in regard to the torture and assault counts, in violation of their right to a unanimous verdict. This contention lacks merit.
a. Applicable legal principles
A jury verdict in a criminal case must be unanimous. (People v. Selivanov (2016) 5 Cal.App.5th 726, 751.) This means that" 'the jury must agree unanimously the defendant is guilty of a specific crime.' [Citation.] Thus, 'if one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act." [Citations.]' 48 [Citation.]" (People v. Jo (2017) 15 Cal.App.5th 1128, 1178; People v. Covarrubias, supra, 1 Cal.5th at pp. 877-878.) The prosecutor may make such an election during argument. (People v. Brown (2017) 11 Cal.App.5th 332, 341.) The unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense all the jurors agree he or she committed. (People v. Sorden (2021) 65 Cal.App.5th 582, 615.) The trial court must give a unanimity instruction sua sponte where the circumstances of the case require it. (People v. Covarrubias, at p. 877; People v. Jo, at p. 1178.)
However, neither an election nor a unanimity instruction is required where the case falls within the continuous conduct exception, which arises in two contexts. (People v. Jo, supra, 15 Cal.App.5th at p. 1178; People v. Hernandez (2013) 217 Cal.App.4th 559, 572.) First, no unanimity instruction is required "when the criminal acts are so closely connected that they form part of the same transaction, and thus one offense" (People v. Jo, at p. 1178), or if "the defendant offers the same defense or defenses to the various acts constituting the charged crime." (People v. Jennings (2010) 50 Cal.4th 616, 679; People v. Covarrubias, supra, 1 Cal.5th at p. 879; People v. Williams (2013) 56 Cal.4th 630, 682.) Second, no unanimity instruction is required when the statute in question "defines the offense to comprise a continuous course of conduct over a period of time." (People v. Jo, at p. 1178; Jennings, at p. 679.) We review questions of instructional error de novo. (People v. Sorden, supra, 65 Cal.App.5th at p. 616.) 49
b. No unanimity instruction was required
Neither an election nor a unanimity instruction was required here because the acts of torture and assault comprised a continuous course of conduct. The beating, punching, burning, and drilling transpired within a brief period of time-probably considerably less than an hour-with no significant breaks. The attack was carried out against a single victim, Hugo, by the same perpetrators, Flores and Estrada, in the same place, Hugo's residence, with the same goal of obtaining money and guns. (See People v. Williams, supra, 56 Cal.4th at p. 682 [unanimity instruction not required where the criminal acts took place within a very small window of time]; People v. Hernandez, supra, 217 Cal.App.4th at p. 573 [a continuous course of conduct exists "when the same actor performs the same type of conduct at the same place within a short period of time, such that a jury cannot reasonably distinguish different instances of conduct."].)
Hugo believed the intruders arrived at approximately 2:00 a.m. The radio call to the officers went out at approximately 2:44 a.m. and they arrived at the scene at approximately 2:50 a.m. At trial Hugo estimated that the attack lasted between 30 and 40 minutes. Maricarmen testified that no more than a half hour elapsed from the point at which she saw the intruders approaching the house to when she placed the 911 call, perhaps less.
Torture, by its nature, is the type of offense that is often committed via a series of acts, that is, a course of conduct, a principle that has been recognized by the courts. People v. Hamlin (2009) 170 Cal.App.4th 1412, explained: "Just as child, spousal, and animal abuse can be committed by a course of conduct rather than a single act, so can torture. . . . For torture, 50 the 'unlawful goal or effect' is the infliction of great bodily injury with the intent to cause severe pain for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (Id. at p. 1429.) "[W]here the cumulative result of the course of conduct is great bodily injury, and the requisite intent can be found, then the crime of torture has been committed under the course of conduct exception to the election/unanimity requirement." (Ibid.; see People v. Jennings, supra, 50 Cal.4th at p. 680; People v. Mejia (2017) 9 Cal.App.5th 1036, 1043.)
Flores argues that Hamlin has no application here because in that case, the defendant committed torture against the victim over a course of months. (People v. Hamlin, supra, 170 Cal.App.4th at p. 1427; see also People v. Jennings, supra, 50 Cal.4th at p. 680 [acts of torture began in November 1995 and continued through February 1996].) Here, the charging document did not assert a course of conduct occurring over time, nor did it need to, because the offenses occurred in a single incident. It would be absurd to hold that different acts of torture occurring days or months apart fall within the continuous conduct exception, but actions occurring over a single hour cannot; if the former can comprise a single course of conduct, the latter can as well.
Appellants urge that the evidence showed, and the prosecutor argued, "distinct, discrete acts with distinct, discrete injuries," any of which could have formed the basis for the charged torture and assaults. We disagree. That the torture and assaults were comprised of a series of acts that caused a variety of injuries does not mean the continuous conduct exception is inapplicable; instead, the exception covers precisely this type of situation. (See, e.g., People v. Sorden, supra, 65 Cal.App.5th at pp. 616-617 [defendant's acts of struggling with a female victim, 51 punching a male victim, and then throwing the female victim over his shoulder and carrying her down a driveway, were so closely connected in time as to form part of one transaction]; People v. Percelle (2005) 126 Cal.App.4th 164, 182 [defendant twice attempted to purchase cigarettes using a counterfeit access card; there was "no reasonable basis to distinguish between defendant's first visit to Discount Cigarettes on September 20, 2002, and his second visit a little over an hour later"; he did not proffer a separate defense to the two acts and there was "no conceivable construction of the evidence that would permit the jury to find defendant guilty of the crime based upon one act but not the other."]; People v. Haynes (1998) 61 Cal.App.4th 1282, 1295-1296 [continuous conduct exception applied where two robberies occurred just minutes and blocks apart, involved the same victim, the same property, and had the same objective of getting all the victim's cash].)
That appellants here applied different modes of torture and assault does not negate the fact all were carried out as part of a continuous course of conduct. Nor do we view the prosecutor's arguments as inconsistent with the continuous conduct exception. And, there is no merit to appellants' argument that the prosecutor suggested that either fists or the drill could amount to the deadly weapon at issue in count 4: the prosecutor clearly stated, "In this case, the deadly weapon is the drill."
Significantly, appellants did not present different defenses to the different component acts that comprised the torture and assaults. Instead, both argued that the People's evidence was riddled with contradictions and inconsistencies, and failed to prove their guilt. Flores theorized that he was not even present during the attack, and Estrada characterized Hugo's testimony 52 as "fantastical tales." (See, e.g., People v. Williams, supra, 56 Cal.4th at p. 682 [continuous conduct rule" 'applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' "]; People v. Hernandez, supra, 217 Cal.App.4th at p. 573 [exception applies "when a defendant proffers the same defense to multiple acts because the return of a guilty verdict indicates that the jury rejected the defendant's defense in toto."].)
People v. Riel (2000) 22 Cal.4th 1153, is instructive. There, the defendants robbed a truck stop and kidnapped the cashier, drove him to another location, stole his wallet while in the car, and killed him. (Id. at pp. 1172-1173.) The defendant argued that a unanimity instruction was required because the evidence disclosed two distinct acts of robbery: (1) the initial robbery at the truck stop, and (2) the subsequent robbery of the victim in the car. (Id. at p. 1199.) Riel rejected this argument, reasoning: "Even assuming that two distinct robberies occurred rather than one continuous robbery, 'there was no evidence here from which the jury could have found defendant was guilty of' the robbery in the car but not the earlier one. [Citation.] . . . . The parties never distinguished between the two acts. The defense was the same as to both: defendant was asleep in the backseat of the car and did not participate in any act of robbery." (Ibid.) It was "inconceivable" that a juror would have believed the testimony of a prosecution witness regarding commission of the car robbery, but disbelieved his testimony about the truck stop robbery. (Id. at p. 1200; see People v. Covarrubias, supra, 1 Cal.5th at pp. 877-880 [no unanimity instruction required despite the fact four different takings occurred during home invasion robbery; 53 defendant's defense to all takings was to accuse a co-perpetrator of testifying untruthfully].)
Appellants' attempts to show they offered, or might have offered, different defenses to different components of the torture and assaults fail. Estrada acknowledges his "overall defense" was that the prosecution witnesses were not credible, but asserts that he made "particularized arguments as to specific injuries and physical evidence presented." Flores argues that his attack on the prosecution witnesses' credibility and his assertion that the physical evidence was lacking amounted to distinct defenses. These are nothing more than different ways of making the identical argument-that the People's evidence was not persuasive-and do not amount to the sort of distinct defenses contemplated by the relevant authorities. (See, e.g., People v. Williams, supra, 56 Cal.4th at p. 682 ["Defendant did not offer a defense based on a showing that he committed either the attempted robbery or the completed robbery, but not both. Rather, his defense was that he was not present at the scene of the crime and therefore played no role whatsoever in any of the crimes committed there."]; People v. Davis (2005) 36 Cal.4th 510, 562 ["the potential defenses to the two acts of robbery were entirely different: as to the car, the defense was that Boyd was not legally in possession of it; as to the rings, the defense was that its taking constituted only the lesser included crime of theft"]; People v. Hernandez, supra, 217 Cal.App.4th at p. 574; People v. Castaneda (1997) 55 Cal.App.4th 1067, 1071.)
Estrada's argument that different jurors might have concluded appellants had different intents at different times during the incident fares no better. Appellants did not make this argument at trial, and we see no evidentiary basis for any juror 54 to so conclude. Nor are we persuaded by Flores's theory that he had a "different potential defense" to Estrada's act of hitting Hugo in the head with the drill because (1) it occurred at a "different location and time" than the other acts constituting torture and assault, and (2) when Estrada inflicted this head injury, "it was not clear where [Flores] was" and whether he was aware of Estrada's actions. The hit to the head with the drill occurred in the hallway between the bedrooms in the house; it did not occur at a significantly different place and time, nor was there any basis for jurors to conclude Flores lacked the requisite intent for only this momentary period. Flores did not actually offer this defense at trial, and for good reason: as we have explained ante, the inference that Flores was not present when Estrada hit Hugo in the head was unpersuasive.
Finally, the cases appellants cite in support of their arguments do not assist them. In People v. Wolfe (2003) 114 Cal.App.4th 177, the defendant was charged with one count of unlawful possession of a firearm based on numerous guns found at a variety of locations in the trailer in which he lived. (Id. at pp. 181-182.) He presented a unitary defense-that all the guns belonged to his mother-but a unanimity instruction was required because his possession of the firearms was "fragmented" as to space and time, and the circumstances surrounding the possession of the various guns were "significantly different." (Id. at p. 185.) No such fragmentation or different circumstances existed here. In People v. Sanchez (2001) 94 Cal.App.4th 622, the defendant was convicted of seven counts of animal cruelty. A unanimity instruction was required as to only one of the counts, in which the defendant kicked two dogs at entirely different times. (Id. at pp. 625, 634.) In this case, in contrast, all the 55 actions occurred within a single continuous incident. And in our view, People v. Bui (2011) 192 Cal.App.4th 1002, supports, rather than undermines, application of the continuous conduct exception. Bui observed that the exception applies if" 'the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them." (Id. at pp. 1010-1011.) Such is the case here.
In light of our conclusion we do not address the parties' arguments regarding prejudice.
5. Contentions related to the gang enhancements
Appellants raise three claims related to the gang enhancements. First, they contend that their indeterminate life sentences on count 6, home invasion robbery, imposed pursuant to section 186.22, subdivision (b)(4)(B)'s alternate penalty provision, must be stricken because the information pled only a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C). Imposition of sentence under the unpled subdivision, they argue, resulted in an unauthorized sentence and violated their rights to due process and fair notice. Second, they argue that the trial court improperly admitted case-specific hearsay in regard to proof of two "predicate offenses," an error they contend violated their confrontation rights and rendered the evidence insufficient to prove the enhancements. Third, in supplemental briefing, they contend that the amendments to the gang enhancement statute made by Assembly Bill 333 apply retroactively to them, and require reversal of all the gang enhancements.
We agree that Assembly Bill 333 applies retroactively to appellants, and therefore the true findings on the gang 56 enhancements must be reversed and appellants' sentences vacated. This disposition moots appellants' first argument, and accordingly we do not reach it. We must nonetheless consider appellants' claim that the evidence was insufficient to prove the gang enhancements, because resolution of this question determines whether the enhancements may be retried on remand. (See, e.g., People v. Eroshevich (2014) 60 Cal.4th 583, 591 [defendant may not be retried if the judgment is reversed because, as a matter of law, the evidence was insufficient].) We turn to that question first, and then address application of Assembly Bill 333.
a. The evidence was sufficient to prove the predicate offe nses
(i) Applicable legal principles
One of the elements necessary to prove a section 186.22, subdivision (b)(1) gang enhancement is that the group alleged to be a gang has engaged in a "pattern of criminal gang activity." (§ 186.22, subd. (f).) When the instant matter was tried, "pattern of criminal gang activity" was defined as the" 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [enumerated] offenses, provided at least one of these offenses occurred after the effective date of [the enacting legislation] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . .'" (People v. Valencia (2021) 11 Cal.5th 818, 829 (Valencia); former § 186.22, subd. (e).) These prior offenses have come to be known as "predicate offenses." (Valencia, at p. 826.) "[P]roof of a predicate offense must establish that a member of a defendant's alleged gang was 57 involved in its commission." (Id. at p. 829 & fn. 10.) "Such proof will generally require evidence of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes." (Id. at p. 830.)
Prior to Valencia, it was not entirely clear that the persons who committed the predicates had to be gang members. The statute provided that the predicates had to be committed "by two or more persons." (Italics added.) (See People v. Garcia (2020) 46 Cal.App.5th 123, 165 ["It is not clear whether the predicate offenses must be committed by gang members."].)
Crawford v. Washington (2004) 541 U.S. 36 held that the federal constitution's confrontation clause generally bars admission at trial of a testimonial out-of-court statement offered for its truth against a criminal defendant. (Crawford, at p. 68; Valencia, supra, 11 Cal.5th at p. 830.) In California, it had long been the law that gang experts could rely on hearsay in forming their opinions and could testify regarding the basis for such opinions even if that evidence would otherwise have been inadmissible. (See Valencia, at p. 832; People v. Iraheta (2017) 14 Cal.App.5th 1228, 1243.) After Crawford, California appellate courts generally held that the admission of testimonial out-of-court statements or other hearsay evidence offered as the basis for a gang expert's opinion did not violate Crawford because they were not offered for their truth. (People v. Iraheta, at p. 1243.)
People v. Sanchez (2016) 63 Cal.4th 665, clarified application of Crawford in the context of gang expert testimony, and rejected this former approach. Sanchez drew a distinction between an expert's general knowledge about facts accepted in the expert's field, and "case-specific facts about which the expert has no independent knowledge. Case-specific facts are those 58 relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, at p. 676; Valencia, supra, 11 Cal.5th at p. 831.) "An expert may . . . testify about more generalized information[, even if derived from hearsay, ] to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Valencia, at p. 831, citing Sanchez, at p. 676; see People v. Navarro, supra, 12 Cal.5th at p. 309.)
After Sanchez, California appellate courts came to different conclusions regarding whether evidence of predicate offenses constituted background information or case-specific facts. (See Valencia, supra, 11 Cal.5th at p. 835.) After briefing was partially completed in this case, our Supreme Court clarified the issue in Valencia, holding that predicate offenses are case-specific and must be proven by independently admissible evidence and "may not be established solely by the testimony of an expert who has no personal knowledge of facts otherwise necessary to satisfy the prosecution's burden." (Id. at pp. 826, 838.)
(ii) The evidence was sufficient
The People sought to prove two predicate offenses in addition to the charged crimes: a September 2011 attempted murder committed by Alex Miranda in case No. BA390804, and a November 2011 murder committed by Juan Martin Figueroa in case No. BA441336.
To prove the Miranda predicate, the People introduced a certified court docket showing that Miranda was convicted by plea of attempted murder in the case. Officer Cesar Wences, one of the victims of the crime, testified that on September 27, 2011, 59 while he and a partner were driving undercover, he observed a group of four male Hispanics and saw one of the men throw gang signs in his direction. That individual and another one of the men got into a silver car and one of them fired shots at the officers, hitting their car. Wences identified Miranda as the driver and two other men as the passengers, one of whom fired the shots. Wences had not previously encountered Miranda or the others, and did not testify as to whether or not they were gang members. Officer David Manriquez testified that he had had numerous contacts with Miranda, who had admitted to him that he was a State Street gang member. Based on this admission and on Miranda's "participation in the State Street gang," Manriquez believed him to be a State Street gang member.
To prove the second predicate, the People offered a certified court record showing Figueroa was convicted by a jury of two November 30, 2011 murders in case No. BA441336. Manriquez testified that he was familiar with Figueroa and knew him to be a member of the State Street gang based on his past contacts with him. The prosecutor asked Manriquez to briefly explain what happened in the charged murders, and Estrada's relevance objection was overruled. Manriquez testified that Figueroa, known as "Trusty," and another State Street gang member known as "Toker," got into a "beef" with two other State Street gang members, known as "Tudy or Vago," and "Wicked." The four men became involved in an altercation and Toker killed Wicked and Tudy/Vago. Manriquez had testified as the gang officer at Figueroa's trial.
Appellants argue that aspects of Officer Manriquez's testimony constituted testimonial hearsay and its admission violated their confrontation rights. Without his inadmissible 60 testimony, they assert, the evidence failed to show the dates of the convictions or that Figueroa and Miranda were State Street gang members, and therefore the evidence was insufficient.
There is no dispute that admissible evidence-the certified records of conviction-established that the crimes of attempted murder and murder were committed by Miranda and Figueroa. These records provided the requisite evidence of who committed the crimes and their nature, i.e., murder and attempted murder. (See People v. Garcia, supra, 46 Cal.App.5th at pp. 170-171; People v. Duran (2002) 97 Cal.App.4th 1448, 1461; Evid. Code, § 452.5, subd. (b)(1).) Appellants assert that the People were also required to prove the predicates were "gang related." They are incorrect; at the time of trial, the law did not so require. (See People v. Garcia, at p. 165 ["The predicate offenses need not themselves be' "gang-related."' "]; People v. Thompkins (2020) 50 Cal.App.5th 365, 403.)
Admissible evidence clearly existed to prove the date of commission of the Miranda predicate: Officer Wences, one of the victims, testified to the date, as well as to the circumstances of the crime. This testimony was based on his personal experience, and was not hearsay. As to the date of the Figueroa offenses, the certified court record stated the date of their commission. Courts have held "[c]onviction records in general are not testimonial in nature because they are 'prepared to provide a chronicle of some act or event relating to the public employee's duty' and are not 'produced to be used in a potential criminal trial or to determine whether criminal charges should issue.'" (People v. Thompkins, supra, 50 Cal.App.5th at p. 412; People v. Taulton (2005) 129 Cal.App.4th 1218, 1225; but see People v. Garcia, supra, 46 61 Cal.App.5th at pp. 171-172 [conviction records are testimonial when offered to prove the date a prior crime was committed]).
The People were also required to prove Miranda and Figueroa were members of the State Street gang. (See Valencia, supra, 11 Cal.5th at p. 830 & fn. 10.) Officer Manriquez testified that Miranda had admitted his gang membership to him. This testimony was based on his personal knowledge. But Miranda's out-of-court statement, offered for the truth of the matter asserted, was hearsay. (Evid. Code, § 1200.) For the other predicate, Manriquez testified that he was familiar with Figueroa based on past contacts with him, and knew him to be a gang member. He did not provide further testimony elaborating on these contacts or the basis for his belief about Figueroa's gang status. Thus, while it seems likely Manriquez's testimony on this point was hearsay, it is not possible to make that determination on the record before us. Nor have appellants shown that Manriquez's testimony regarding Miranda's and Figueroa's gang membership was testimonial, given the limited record. (See People v. Garcia, supra, 46 Cal.App.5th at p. 167 [where the record is unclear because appellant did not seek to develop it, reviewing courts will not presume a confrontation clause violation].)
Were we not compelled to reverse the gang enhancements in light of Assembly Bill 333, we would proceed to a determination of whether appellants preserved their claims and whether any errors were prejudicial. But, we need not address 62 these points because, given application of Assembly Bill 333, the relevant question is whether, assuming the challenged testimony was admitted in error, it rendered the evidence insufficient.
Appellants failed to object below on confrontation, hearsay, improper opinion, or lack of foundation grounds to any of the evidence now challenged. Generally, this omission results in forfeiture. (See People v. Johnson (2022) 12 Cal.5th 544, 616-617; People v. Schultz (2020) 10 Cal.5th 623, 667-668; Evid. Code § 353, subd. (a).) We are not convinced by appellants' arguments that their failure to object was excused because the law was confused at the time of trial.
It did not. People v. Navarro, supra, 12 Cal.5th 285, compels rejection of appellants' insufficiency of the evidence claim. In Navarro, as here, the defendant argued that a gang expert's testimony about predicate crimes was based on hearsay and was inadmissible under Sanchez. Our Supreme Court agreed that some of the testimony was inadmissible, but disagreed that the result was evidentiary insufficiency. The court explained: "In contending that the evidence was insufficient to support his convictions, defendant misunderstands the effect of a finding of Sanchez error. Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission. [Citations.] Sanchez error therefore does not affect the sufficiency of the evidence to convict. Instead, the question . . ., as with any other erroneously admitted hearsay, is whether the error in admitting that evidence was prejudicial. Unlike a finding of insufficient evidence, a finding of prejudice does not bar retrial of the overturned conviction." (Navarro, at p. 311.)
We turn, then, to application of Assembly Bill 333.
b. Assembly Bill 333
Assembly Bill 333, which took effect on January 1, 2022, made significant amendments to section 186.22. The legislation 63 redefined "pattern of criminal gang activity" in five respects. (1) Previously, the predicate offenses had to have been committed, or convictions had to have occurred, within three years of each other. Now, additionally, the last offense must have occurred within three years of the date the current offense is alleged to have been committed. (§ 186.22, subd. (e)(1).) (2) The amended law expressly states that the predicate crimes must have been committed by "members," not simply "persons," as formerly stated. (Ibid.) (3) The amendments impose a new requirement that the predicate offenses "commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational." (Ibid.) (4) Looting, felony vandalism, felony theft of an access card or account, and other identity fraud crimes no longer qualify as predicates, while other offenses (kidnapping, mayhem, torture, and felony extortion) now do so qualify. (Ibid.) (5) The currently charged offense may not be used to establish the pattern of criminal gang activity. (Id. at subd. (e)(2); see People v. Lopez (2021) 73 Cal.App.5th 327, 345 (Lopez).)
Assembly Bill 333 also modified the definition of "criminal street gang." Previously, section 186.22 stated that a criminal street gang was "any ongoing organization, association, or group" of three or more persons, whether formal or informal. That language has been changed to "an ongoing organized association or group of three or more persons, whether formal or informal." (§ 186.22, subd. (f), italics added; Lopez, supra, 73 Cal.App.5th at p. 344.) The previous definition required that the gang's "members individually or collectively engage in, or have engaged in," the pattern of criminal gang activity. (Former § 186, 22, subd. (f), italics added). Now, the word "individually" has been 64 excised and the gang's members must "collectively" engage in, or have engaged in, the pattern of criminal gang activity. (§ 186.22, subd. (f).) The amendment also added a new subdivision that clarifies what it means to benefit the gang: "As used in this chapter, to benefit, promote, further or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).)
Assembly Bill 333 also enacted new section 1109. That section provides, inter alia, that if requested by the defense, a charged section 186.22, subdivision (b) or (d) enhancement "shall be tried in separate phases," with the question of guilt of the underlying offense to be determined first and the truth of the gang enhancement tried thereafter. (§ 1109, sub. (a).) Due to the procedural posture of this case, section 1109 has no application here, and we need not decide whether it would apply retroactively to nonfinal cases.
We allowed the parties to file supplemental briefs regarding the application of Assembly Bill 333. Appellants argue that they are entitled to the ameliorative benefits of the amendments to section 186.22, and the People concede the point. We accept the concession. Our colleagues in Division Eight have concluded that Assembly Bill 333's amendments to section 186.22 apply retroactively where a defendant's conviction was not final before the amendments took effect, and we agree. (Lopez, supra, 73 Cal.App.5th at pp. 343-344.) Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), we assume that, absent contrary evidence, 65 an amendment reducing punishment for a crime applies retroactively to all nonfinal judgments. (Id. at p. 745; People v. Brown (2012) 54 Cal.4th 314, 323.) For retroactivity purposes, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
The Estrada rule has been applied to penalty enhancements, as well as to amendments giving the court discretion to impose a lesser penalty. (People v. Nasalga (1996) 12 Cal.4th 784, 792; People v. Francis (1969) 71 Cal.2d 66, 75- 76.)
Assembly Bill 333 does not directly reduce punishment for a gang enhancement, but the Estrada rule also applies where "an enhancement has been amended to redefine to an appellant's benefit the conduct subject to the enhancement." (Lopez, supra, 73 Cal.App.5th at p. 344.) "Where a criminal statute is amended to repeal another criminal statute, reduce the punishment for a criminal offense, or modify the elements of a penalty enhancement, an offender of the law that has been so amended is entitled to the benefit of the law unless the Legislature indicates a contrary intent." (People v. Roberts (1994) 24 Cal.App.4th 1462, 1466, italics added.)
For example, in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, a defendant was charged in adult court with various sex crimes committed when he was a juvenile. Thereafter, Proposition 57 amended the law to require a transfer hearing before a transfer to adult court. (Id. at p. 303.) Lara concluded this provision applied retroactively to benefit the defendant, reasoning: "In [Estrada], we held that a statute that reduced the 66 punishment for a crime applied retroactively to any case in which the judgment was not final before the statute took effect. In People v. Francis (1969) 71 Cal.2d 66 . . ., we applied Estrada to a statute that merely made a reduced punishment possible. Estrada is not directly on point; Proposition 57 does not reduce the punishment for a crime. But its rationale does apply. The possibility of being treated as a juvenile in juvenile court-where rehabilitation is the goal-rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada's inference of retroactivity applies." (Lara, at p. 303.) Because nothing in the proposition's text or ballot materials rebutted this inference, Lara concluded the proposition applied to juveniles charged in adult court whose judgment was not final when the Proposition was enacted. (Id. at pp. 303-304.)
In People v. Figueroa (1993) 20 Cal.App.4th 65, the defendant's sentence for selling cocaine was enhanced because the sale took place within 1000 feet of a school. During the pendency of his appeal, the enhancement statute was amended to apply only when the narcotics trafficking occurred when the school was in session or minors were using the facility. (Id. at p. 69.) Applying the rationale of Estrada the court held, "a defendant is entitled to the benefit of an amendment to an enhancement statute, adding a new element to the enhancement, where the statutory change becomes effective while the case was on appeal, and the Legislature did not preclude its effect to pending cases." (Figueroa, at p. 68.) The court reasoned: "The Estrada principle is based on presumed legislative intent. In almost every case, its application has been to amendments that 67 reduce punishment or make an act formerly criminal, not a crime at all. The circumstances of an amendatory change to a penalty statute are covered, however, in Tapia v. Superior Court [(1991) 53 Cal.3d 282, 301.] In that case the Supreme Court discussed amendments to the death penalty law adopted in 1992 by Proposition 115. One of the changes added an intent element to each of two of the death penalty special circumstances, Penal Code section 190.2, subdivision (a)(11) and (a)(12). The court held that the new requirement applied to defendants whose crimes were committed before the change if their conviction was not yet final. Reduced to a nondeath penalty context, that is our case. Based on Estrada and Tapia, we conclude that appellant must be given the benefit of the amended statute." (Figueroa, at pp. 70-71.) The People were "entitled to an opportunity, on remand, to prove up the new element." (Id. at p. 68; see also, e.g., People v. Frahs (2020) 9 Cal.5th 618, 629 [the Estrada rule has been applied to statutes "that merely made a reduced punishment possible"]; People v. Nasalga, supra, 12 Cal.4th at p. 787 [increased threshold for imposition of enhancements applied retroactively]; People v. Vinson (2011) 193 Cal.App.4th 1190, 1197 [change in elements necessary to prove petty theft with a prior applied retroactively].)
These authorities compel the conclusion that Assembly Bill 333 retroactively applies to appellants' case, which was not final when the amendments took effect. Assembly Bill 333 changed the elements of the gang enhancement in a way that potentially favors defendants, and nothing in Assembly Bill 333 rebuts the Estrada inference of retroactivity.
We next consider whether the amendments could have had any effect on appellants' case. Appellants argue that because 68 their jury was not instructed on the gang enhancements in accordance with the new law, and because the evidence was insufficient to prove the gang enhancements as newly defined, the true finding on the enhancements must be reversed.
Many of the amendments to section 186.22 could have had no effect here. The Miranda predicate was committed within three years of commission of the charged offenses; the predicates were for murder and attempted murder, not the offenses that no longer qualify as predicates; and there was evidence the persons who committed the predicates were State Street gang members. Although the jury was instructed that it could consider the currently charged offenses when determining whether a pattern of criminal gang activity existed, as appellants argue elsewhere in their briefing this could have had no effect: the jury was also instructed that the pattern of criminal gang activity meant any combination of murder or attempted murder, crimes not charged in the case.
But at least one of the new elements required by Assembly Bill 333 was unmet: there was no evidence that the predicate crimes collectively benefited the gang in a way that was more than reputational. Indeed, the jury was instructed, in accordance with the law in effect at the time, that the prior offenses did not have to be gang-related. Given this evidentiary deficit, the true findings on the gang enhancements must be reversed and the matter remanded to allow the prosecution the option of retrying 69 the enhancements and establishing all elements required by Assembly Bill 333, with admissible evidence.
As remand for a potential retrial of the gang enhancements is required, we need not decide whether any of the other new elements of section 186.22 were, or were not, met.
6. Resentencing based on Assembly Bill 518 and Senate Bill 567
The parties agree that the amendment of two additional laws requires that the matter be remanded for resentencing.
When appellants were sentenced, former section 654 provided that an "act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Former § 654, subd. (a).) Assembly Bill 518, effective January 1, 2022, amended section 654 to provide that where an act or omission is punishable by different provisions, the defendant "may be punished under either of such provisions." (§ 654, subd. (a).) Thus, where section 654 applies, trial courts now have discretion to determine which sentencing provision to apply.
Effective January 1, 2022, Senate Bill 567 amended section 1170. As relevant here, section 1170, subdivision (b), now provides that when a statute specifies three possible terms of imprisonment, "the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided" in section 1170, subdivision (b)(2). Subdivision (b)(2), in turn, provides that a court may impose a sentence exceeding the middle term "only when there are 70 circumstances in aggravation of the crime that justify" such increased term "and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." A trial court may nonetheless consider a defendant's prior convictions when making its sentencing decision, based on a certified record of conviction, without submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).)
The amendments to sections 654 and 1170 potentially confer ameliorative benefits on appellants. For the reasons we have discussed ante in regard to the retroactivity of Assembly Bill 333, we agree with the parties that the amendments made by Assembly Bill 518 and Senate Bill 567 also apply retroactively.
In their supplemental briefs, the parties address the question of how these amendments impact their sentences, but we need not. We are remanding for possible retrial of the gang enhancements and a full resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.) Accordingly, on remand, the trial court shall resentence appellants in accordance with the law as amended by Assembly Bill 518 and Senate Bill 567.
7. One of Estrada's serious felony enhancements must be stricken
The second amended information alleged, as a section 667, subdivision (a)(1) five-year prior, that Estrada had suffered a 2006 conviction for violation of Health and Safety Code section 11378.5 in case No. BA290577. Estrada waived trial on the allegation, admitted suffering the conviction, and-after speaking with his attorney-admitted it was "alleged pursuant to . . . 71 section 667(a)(1)." At sentencing, the trial court imposed a five-year enhancement for the prior conviction.
Section 667, subdivision (a)(1), provides for a five-year enhancement for a defendant who is "convicted of a serious felony who previously has been convicted of a serious felony . . . ." A serious felony is defined as one of the offenses listed in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).) As the parties agree, violation of Health and Safety Code section 11378.5 is not listed in section 1192.7, subdivision (c) and thus is not a serious felony for purposes of section 667, subdivision (a). Imposition of this five-year enhancement was therefore an unauthorized sentence, and must be stricken. (See People v. Rivera (2019) 7 Cal.5th 306, 348-349 [a sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case; the error may be corrected even absent an objection below]; People v. Francis (2017) 16 Cal.App.5th 876, 884.) 72
Our resolution of this issue makes it unnecessary to reach Estrada's contention that his counsel provided ineffective assistance by allowing him to admit the allegation.
DISPOSITION
The gang enhancements are reversed and appellants' sentences are ordered vacated. The matter is remanded for the trial court to: (1) strike the five-year section 667, subdivision (a)(1) enhancement imposed on appellant Estrada based on his prior conviction for violation of Health and Safety Code section 11378.5 in case No. BA290577; (2) provide the People with an opportunity to retry the section 186.22, subdivision (b) gang enhancements under the law as amended by Assembly Bill 333; and (3) at the conclusion of any retrial of the gang enhancements, or on remand if the People elect not to conduct such a retrial, conduct a full resentencing of appellants in accordance with amended sections 654 and 1170. In all other respects, the judgments are affirmed.
We concur: LAVIN, J., EGERTON, J. 73